PLEASE READ THIS AGREEMENT CAREFULLY. THIS AGREEMENT CONTAINS A BINDING MUTUAL ARBITRATION PROVISION (INCLUDING A CLASS ACTION WAIVER). BY ACCEPTING THIS AGREEMENT, YOU WAIVE YOUR RIGHT TO A JURY TRIAL AND AGREE TO BINDING ARBITRATION.
THIS AGREEMENT IS NOT A LEASE NOR A RENTAL AGREEMENT.
THIS AGREEMENT AUTOMATICALLY RENEWS ACCORDING TO THE PROVISIONS HEREOF, AND YOU AGREE THAT WE MAY CHARGE YOUR PREFERRED PAYMENT METHOD ON A MONTHLY BASIS, AS MORE FULLY DESCRIBED BELOW. YOU MAY TERMINATE THIS AGREEMENT FOR ANY OR NO REASON BY PROVIDING THIRTY (30) DAYS’ PRIOR WRITTEN NOTICE OF YOUR INTENT TO TERMINATE THIS AGREEMENT, IN ACCORDANCE WITH AND SUBJECT TO THE PROVISIONS OF THIS AGREEMENT.
This Porsche Master Subscription Services Agreement is entered into between Porsche Smart Mobility Canada, Ltd. and the individual accepting this Agreement for participation in the Porsche Passport Program or Porsche Drive Program (defined below) and for the use and custodianship of one or more of the vehicles that we arrange to be made available to you hereunder. Subject to vehicle availability and the other terms and conditions hereof, this Agreement gives you the right during its term to rent certain vehicles through Porsche dealer affiliates who are then participating in the Program. By clicking to accept this Agreement, as it may be amended from time to time as provided above, you and any Secondary Driver (defined below) agree to comply with and be bound by all of its terms and conditions. This Agreement is effective as of the date of your acceptance.
TO DRIVE SUCH VEHICLES, USE OUR SOFTWARE AND APPLICATIONS, AND PARTICIPATE IN THE PROGRAM, YOU AGREE TO BE BOUND BY THIS ENTIRE AGREEMENT. YOU CANNOT PICK AND CHOOSE CERTAIN PROVISIONS TO AGREE TO AND YOU CANNOT MODIFY THIS AGREEMENT IN ANY WAY. NEITHER OUR CUSTOMER SERVICE REPRESENTATIVES NOR ANY PORSCHE DEALER HAS THE POWER OR AUTHORITY TO AGREE TO ANY MODIFICATION TO OR WAIVER OF THIS AGREEMENT. YOU MAY NOT PARTICIPATE IN OUR PORSCHE PASSPORT OR PORSCHE DRIVE PROGRAMS IF YOU DO NOT AGREE TO THIS AGREEMENT.
WARNING: THE VEHICLE IS DUE BACK AT THE TIME PROVIDED OR REFERENCED IN THIS AGREEMENT OR IMMEDIATELY UPON DEMAND BY US, WHICHEVER SHALL FIRST OCCUR. FAILURE TO RETURN THE VEHICLE IN ACCORDANCE WITH THE PROVISIONS OF THIS AGREEMENT OR THE APPLICABLE RENTAL AGREEMENT MAY RESULT IN PROSECUTION AND CONVICTION FOR THEFT AND/OR CONVERSION IN ACCORDANCE WITH APPLICABLE LAW.
You are applying to participate in one or more of the following Programs that we currently offer:
(a) Porsche Passport, which enables pre-approved members to have continuous access to rent Vehicles and the ability to request and exchange rented Vehicles from a fleet through our App, subject to availability and in accordance with the terms and conditions of this Agreement and the Porsche Passport Terms and Conditions as set forth in Schedule 1.
(b) Porsche Drive, which enables customers to rent Vehicles through the Porsche Passport App, subject to availability and in accordance with the terms and conditions of this Agreement and the Porsche Drive Terms and Conditions as set forth in Schedule 2.
1. DEFINITIONS. In this Agreement, the following definitions apply:
“AAA” has the meaning given in Section 10.6 (ARBITRATION).
“App” means the Porsche Passport smartphone application.
“Diminished Value” means the difference between the fair market value of the Vehicle immediately before the damage to the Vehicle and after the Vehicle has been repaired.
“Insurance” has the meaning given in Schedule 1 or Schedule 2, as applicable.
“Loss of Use” means, as applicable, our loss of the ability to use the Vehicle for any purpose due to damage to it or loss of it during the Program Period, including uses other than for rental, such as display for rent or sale, opportunity to upgrade or sell, or transportation of employees.
“Passport Membership Fee” means the fees due every Passport Membership Period for the Porsche Passport Program. The Passport Membership Fees will be in the amounts described in Schedule 1.
“Passport Membership Period” means each monthly period during which you maintain an active membership in the Porsche Passport Program.
“Porsche Drive Program” means the Program specifically described in Schedule 2.
“Porsche Indemnitees” has the meaning given in Section 5 (RESPONSIBILITY FOR LOSS AND DAMAGE INCLUDING DAMAGE TO OR LOSS OF VEHICLES; INDEMNITY).
“Porsche Passport Program” means the Program specifically described in Schedule 1.
“Program” means, as applicable, the Porsche Passport program specifically described in Schedule 1 or the Porsche Drive program specifically described in Schedule 2.
“Program Fees” means the fees due in connection with your participation in the applicable Program, including, but not limited to, Passport Membership Fees. The Program Fees will be in the amounts described in Schedule 1 and Schedule 2, as applicable, and any additional charges as set forth in this Agreement.
“Program Period” means the period between the time that you take possession of a Vehicle and the time that the Vehicle is either returned to or recovered by and checked in by us or the Porsche dealer under the applicable Rental Agreement.
“Program Plan” means in respect of the Porsche Passport Program, as applicable, the tier you select during the application/registration process or as you may update in the App from time to time.
“Prohibited Use” has the meaning given in Schedule 1 or Schedule 2, as applicable.
“Rental Agreement” means the applicable vehicle rental agreement that you enter into with a Porsche dealer affiliate participating in the Program and pursuant to which you obtain use of a Vehicle.
“Rental Fee” means the fee owed for the Vehicle rented in connection with the Porsche Drive Program.
“Rental Period” means the time period during which you have an active rental of a Vehicle in connection with the Porsche Drive Program.
“Secondary Driver” means, as applicable to the Passport Program, the one (1) additional person, whether a family member or otherwise, who is authorized by you and approved in writing by us to operate the Vehicle and participate in the Passport Program under your account with us and in accordance with the provisions of this Agreement. Secondary Driver also includes any person who operates the Vehicle during an emergency situation to a medical facility if so stated by applicable provincial or territorial laws.
“Service Area” means a pre-defined area surrounding a Porsche dealer participating in the Program wherein we will deliver or retrieve a Vehicle available to you under the provisions of this Agreement. Current Service Areas can be viewed on www.porschepassport.com as applicable.
“Services” has the meaning given in Section 3 (PROGRAM PARTICIPATION) below.
“Schedules” means all schedules, rate plans, and policies annexed to or incorporated by reference into this Agreement, each as amended, modified or supplemented from time to time, with or without notice.
“Vehicle” means any of the vehicles that are made available by us for use by you under your Program Plan. Vehicle includes tires, tools, equipment, accessories, plates and documents.
“We”, “our” or “us” means Porsche Smart Mobility Canada, Ltd. or any of its successors and assigns.
“You” means the person who accepts this Agreement by clicking “Accept”, with respect to this Agreement, on the “Accept terms and conditions” page of the App and who is responsible for all fees, charges and other costs associated with participation in the Program under this Agreement, as further described in Schedule 1 and Schedule 2, as applicable. For greater certainty, “you” expressly includes any Secondary Driver approved by us to use the Vehicle(s) provided under the Porsche Passport Program.
2.1. Overview. To be eligible to drive the Vehicles and participate in the Program, you must at all times:
(a) meet the age requirement as set forth in Schedule 1 or Schedule 2, as the case may be;
(b) hold a driver’s licence valid for use in the jurisdiction(s) in which you will use the Vehicle(s);
(c) have a valid credit card or debit card;
(d) have continuous access to a mobile phone compatible with the App; and
(e) meet any residency requirement as set forth in Schedule 1 or Schedule 2, as the case may be.
For greater certainty, you, where applicable, and any Secondary Driver currently listed on your account are permitted to operate the Vehicle(s) only if you meet and continue to meet the eligibility criteria noted above during your Program Period. You will report, as soon as practicable, but in no event more than twenty-four (24) hours after such change, any change in your satisfaction of the eligibility criteria and any information that you provided to us during the application process.
2.2. Application Process. In order to become a member of the Program and to have access to the Vehicles, you must, as determined by us in our sole discretion:
(a) accurately, truthfully and fully complete our application for membership through our App;
(b) deliver all information and documents that we may request in the application process or otherwise;
(c) meet the eligibility criteria set forth in this Agreement; and
(d) have your application to operate Vehicle(s) approved in writing by us.
Please note that acceptance of your application is subject to our approval, and your membership or participation in the Program may be denied or, even if it is accepted, it can thereafter be terminated based upon criteria established from time to time by us or our insurance providers. You acknowledge that the approval or denial of your application or the decision to terminate it based upon our or our insurers’ criteria will be at our sole discretion. In addition, even if we approve your application and have not terminated it, you may be restricted from driving certain Vehicles based upon your driving history and experience or the type of Vehicle class that you have selected.
2.3. Secondary Drivers (Porsche Passport Program Only). In respect of the Porsche Passport Program only, you may invite one individual to be listed on your account as a Secondary Driver, and you may request that a Secondary Driver be de-listed from your account and invite a different person to apply to be listed as a Secondary Driver on your account at any time. Each prospective Secondary Driver will be required to apply for the Program in accordance with the same process outlined above. By applying to be a Secondary Driver, such applicant agrees to be bound by and comply with all of the provisions of this Agreement applicable to Secondary Drivers.
A Secondary Driver’s status as a Secondary Driver will immediately terminate upon the occurrence of any one of the following events:
(a) at your request;
(b) if, in our sole discretion, the Secondary Driver breaches or violates any of the provisions of this Agreement applicable to a Secondary Driver; or
(c) if this Agreement is terminated for any reason.
You acknowledge and agree that you will be fully responsible for all acts and omissions of any Secondary Driver.
If you are the Secondary Driver, then all of the terms and conditions of this Agreement apply to you in the same manner as the primary driver.
2.4. Contact Information. You agree to provide to and maintain with us your current email address, your current mobile phone number, your current municipal mailing address and all other account information, including your current credit card or debit card information or such other payment method information as we may accept from time to time. You also agree that we can update your credit score and driving history verification from time to time at our discretion.
2.5. Driving Records and Licence Requirements. By applying to participate in the Program, you authorize us to obtain your driving records from the jurisdiction that issued your driver’s licence and in any other jurisdiction that we desire. If you do not have a driver’s licence from the jurisdiction in which you reside, then failure to get one when required by applicable law constitutes your breach of this Agreement. We may from time to time require you to demonstrate compliance with the driver licensing laws of your jurisdiction of residence and/or impose further policies regarding the obligation to be licensed in your jurisdiction of residence. We reserve the right to request additional information from you, such as your proof of address at any time. As a condition to us agreeing to allow you to drive the Vehicles, you must maintain a good driving record as determined by us in our sole discretion, and we may, from time to time, check your driving records. If you do not continue to meet all of our eligibility requirements, then we reserve the right, in our sole discretion, to suspend, limit or terminate your right to drive the Vehicles and participate in the Program. If your licence is suspended or revoked or becomes invalid, or if you have any further endorsements or accidents on your driving record, or if you are convicted of or receive a citation or summons for driving under the influence of alcohol or drugs, distracted driving, dangerous or reckless driving, or exceeding the relevant speed limit, then you agree to report such suspension, revocation, changes, conviction, citation or summons to us promptly, but in no event later than twelve (12) hours from such event. Please be advised that, among other things, such events, or the failure to notify us promptly of any such events, may lead to you not being covered by insurance when driving the Vehicles and will give us the right to immediately terminate this Agreement.
3. PROGRAM PARTICIPATION
3.1. No Additional Right to Vehicles. You understand and agree that We or one of our affiliates, are and will continue to be the owner of all Vehicles and any other items that we may arrange to make available to you during the term of this Agreement, including, without limitation, everything that is provided to you with the Vehicles (such as electronic toll passes, car chargers and other vehicle accessories), and all software and applications (“Services”) that we use (or that we arrange to make available for you to use) in connection with the Vehicles and the Program. Your operation of, and rights in relation to, any Vehicle, Service, or item provided or made available by us under this Agreement are limited to those rights of use stated in this Agreement and subject to the terms and conditions of this Agreement and the applicable Rental Agreement, including payment of all fees, expenses and other costs referenced in Section 4 (PROGRAM FEES; PAYMENT TERMS) below. You are not acquiring any ownership interest, right, or title in or to any Vehicle or any other personal property, including, without limitation, any option to purchase one or more Vehicles.
3.2. Visual Inspection. At delivery or pick-up of a Vehicle, our representative will conduct a “walk around” visual inspection of the exterior of the Vehicle with you to confirm that there is no visible damage to the Vehicle at the time you take possession of such Vehicle. Upon return we will do the same with you. You acknowledge and agree that you are solely responsible for any loss of the Vehicle or any damage to the Vehicle beyond normal wear and tear, in each case, occurring from the time of delivery or pick-up of the Vehicle until the time that it is returned to us and is accepted by our representative in undamaged condition.
3.3. Vehicle Maintenance. We have the right to issue a return request and remove any Vehicle from service and availability at any time and for any or no reason, including, without limitation, for maintenance or safety recall purposes. Only we are permitted to modify or repair Vehicles. You and Secondary Driver shall not operate any Vehicle that you or they believe may be unsafe to operate. You are solely responsible for immediately notifying us of any potential safety defect or concern you identify in a Vehicle.
4. PROGRAM FEES; PAYMENT TERMS
Your membership or participation in the Program will be subject to your payment of the fees, expenses and other costs set forth in Schedule 1 or Schedule 2, as applicable, in accordance with the terms and conditions set forth under this Agreement, including such Schedules.
5. RESPONSIBILITY FOR LOSS AND DAMAGE INCLUDING DAMAGE TO OR LOSS OF VEHICLES; INDEMNITY
Notwithstanding any provision set forth in this Agreement to the contrary, and to the fullest extent permitted by applicable law, you agree that you are responsible and liable for any and all loss and damage that is caused by you or the Vehicles during a Program Period. Your liability shall include, without limitation, the full value of any loss or damages (including, without limitation, those resulting from bodily injury or death) caused to third parties or their property to the extent the insurance described in Schedule 1 or Schedule 2, as applicable, does not cover such loss or damages, regardless of the reason for such non-coverage, whether because of your breach of this Agreement, your obligation to pay a deductible, or otherwise.
In addition, you are responsible and liable for all loss of or damage to a Vehicle during a Program Period resulting from any cause, including, without limitation, accident, collision, rollover, theft, vandalism, road condition, weather, or acts of nature. To the fullest extent permitted by applicable law, your liability includes, without limitation, the following (to the extent the coverage described in Schedule 1 or Schedule 2, as applicable, does not cover the loss or damages, regardless of the reason for such non-coverage, whether because of your breach of this Agreement, your obligation to pay a deductible, or otherwise): (a) all physical or mechanical damage to the Vehicle measured as follows: (i) if we determine that the Vehicle is a total loss, the actual cash value of the Vehicle immediately prior to the event giving rise to such total loss; (ii) if we determine that the Vehicle is repairable: (A) the difference between the value of the Vehicle immediately before the damage and the value immediately after the damage; or (B) the reasonable estimated retail value or actual cost of repair plus Diminished Value; (b) any Loss of Use, which shall be measured by multiplying the prorated daily rate by the actual or estimated number of days from the date the Vehicle is damaged until it is replaced or repaired, which you agree represents a reasonable estimate of Loss of Use damages and not a penalty, and Loss of Use shall be payable regardless of fleet utilization; (c) a reasonable administrative fee; (d) any towing, storage, and impound charges and other reasonable incidental and consequential damages; and (e) all costs associated with our enforcement of this Agreement or collection of charges, including lawyer’s fees, collection fees, and costs whether or not litigation is commenced.
To the fullest extent permitted by applicable law, you irrevocably and unconditionally agree that you shall defend, indemnify and hold harmless us and our affiliates and, where applicable, any third party suppliers or subcontractors, and our and their respective present and former directors, officers, shareholders, employees, contractors, suppliers, agents, successors and assigns (we and such other persons being hereinafter referred to as the “Porsche Indemnitees”), and each of them, from and against any and all claims, demands, actions, suits, proceedings, damages, losses, fines, penalties, costs, expenses (including, without limitation, any lawyer’s fees), obligations and other liabilities of any nature whatsoever, whether foreseen or unforeseen, which may be made or brought against any of the Porsche Indemnitees or of which any of the Porsche Indemnitees may suffer or incur arising out of or relating to (a) any personal injury or death or property damage suffered by any person or persons as a result of or in any way connected to the selection, possession, use, operation and return of the Vehicles, (b) any breach of this Agreement by you, (c) anything done or omitted to be done (or purported to be done or omitted to be done) by you or any Secondary Driver, in connection with the Vehicles or this Agreement, and (d) each rental transaction under a Rental Agreement. The foregoing indemnification rights and obligations shall survive any termination of this Agreement.
6. LIMITATIONS OF LIABILITY AND DISCLAIMER
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE OR OUR THIRD PARTY SUPPLIERS OR SUBCONTRACTORS BE LIABLE FOR ANY LOSSES INCURRED OR SUSTAINED BY, OR IMPOSED UPON, YOU ARISING OUT OF OR RELATING TO YOUR OR ANY CURRENT OR SECONDARY DRIVER’S CRIMINAL, WILLFUL, OR RECKLESS ACTION OR OMISSION IN CONNECTION WITH THIS AGREEMENT, THE OPERATION OF A VEHICLE, OR IN CONNECTION WITH YOUR PARTICIPATION IN THE PROGRAM.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES WILL WE OR OUR THIRD PARTY SUPPLIERS OR SUBCONTRACTORS BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, ANY LIABILITY FOR INCONVENIENCE, LOSS OF USE, TIME, REVENUE, PROFIT OR ANTICIPATED PROFIT, GOODWILL, BUSINESS OPPORTUNITY OR ANTICIPATED SAVINGS, OR LOSS OF OR DAMAGE TO ANY PROPERTY OR FOR ANY THIRD-PARTY CLAIMS AGAINST YOU OR ANY SECONDARY DRIVER, ARISING FROM OR RELATED TO THIS AGREEMENT, YOUR PARTICIPATION IN THE PROGRAM OR YOUR OPERATION OF A VEHICLE, AND WHETHER OR NOT THE POSSIBILITY OF SUCH LOSS OR DAMAGES WAS DISCLOSED TO OR REASONABLY COULD HAVE BEEN FORESEEN BY YOU. Without in any way limiting the generality of the foregoing, to the fullest extent permitted by applicable law, we and our third party suppliers or subcontractors shall have no liability for (a) any loss of, or damage to, any goods in or on any of the Vehicles or in or on any third-party vehicle, (b) any loss, damage, injury or death in relation to you or any other person arising from any of the Vehicles, (c) any loss or damage incurred by you as a result of any claims made by a third party, or (d) any loss or damage incurred by arising from or in relation to either (i) the non-availability, supply, operation or use of one of the Vehicles, or (ii) any accessories in or to one of the Vehicles, whether supplied or installed by us or by you (for example, luggage racks, bicycle racks, baby seats and the like), and in all cases, you or such current or previous Secondary Driver are responsible for the safe installation of such accessories and must check the condition of such accessories before each use, unless and to the extent such loss or damage is incurred due to our negligence or our failure to carry out our express responsibilities under this Agreement.
The foregoing limitations on our liability under this Agreement shall (a) apply regardless of the basis of the claim or form of action including, without limitation, negligence or other tort, or breach of contract, and (b) survive the termination of this Agreement.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU TAKE POSSESSION OF VEHICLES AND ANY ACCESSORIES OR SERVICES AS IS, AND WE AND OUR THIRD-PARTY SUPPLIERS AND SUBCONTRACTORS, EXPRESSLY DISCLAIM AND EXCLUDE AND SHALL NOT BE BOUND BY ANY AND ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, WITH RESPECT TO THE VEHICLES AND ANY ACCESSORIES OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY AND ALL IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABLE QUALITY, FITNESS FOR ANY PARTICULAR PURPOSE, OR DURABILITY FOR A REASONABLE PERIOD OF TIME.
YOU ACKNOWLEDGE AND AGREE THAT THE OBLIGATIONS, RESTRICTIONS, DISCLAIMERS, EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 6 APPLICABLE TO YOU, SHALL ALSO APPLY TO ANY CURRENT OR PREVIOUS SECONDARY DRIVER(S), AS THE CASE MAY BE.
7. TERM AND TERMINATION; REPOSSESSION OF VEHICLES
7.1. Term and Termination. This Agreement shall commence at the time that you accept this Agreement by clicking “Accept” in connection with this Agreement in the App. The term of this Agreement shall continue until such time as your participation in the Program is canceled or terminated in accordance with Schedule 1 or Schedule 2, as applicable.
7.2. Effect of Termination. Upon termination of this Agreement, all of your rights and, as applicable, the rights of any Secondary Driver to use the Vehicles and participate in the Program shall immediately terminate. Upon termination of this Agreement or upon our demand, whichever shall first occur, you agree to immediately return the Vehicles (and any of the other property that you received with the Vehicle) in your care, custody, possession or control to the Service Area for our or our agents’ or subcontractors’ retrieval as soon as safely practicable, but in no event more than twelve (12) hours after termination of this Agreement or upon our demand, as applicable.
With respect to any termination of this Agreement, you shall remain responsible, on full indemnity basis, for any and all fees, costs or expenses incurred prior to termination of this Agreement, and you hereby authorize us to charge your preferred payment method for all outstanding Program Fees. Additionally, you shall be responsible for, and you agree to pay, on full indemnity basis, any and all legal fees, court costs and other expenses associated with enforcing the provisions of this Agreement, whether upon termination or otherwise.
7.3. Repossession. To the fullest extent permitted by applicable law: (a) we shall have the right, without demand or other notice, and without court order or other process, and at your cost and expense, to have any of the Vehicles in your care, custody, possession or control peacefully repossessed at any time and wherever the same may be located, should you or any current or previous Secondary Driver(s) violate any of the terms and conditions of this Agreement or any Rental Agreement, or fail to return the Vehicle as required by this Agreement, or we learn the Vehicle has been abandoned; (b) you agree to pay, on full indemnity basis, all expenses and other costs associated with the recovery, as well as reasonable legal fees as a result of the repossession; and (c) you and all current or previous Secondary Drivers hereby agree to waive all claims for damages connected with the recovery.
IN PARTICULAR, IN ORDER TO PROVIDE THE VEHICLES AND SERVICES TO YOU, WE TRANSFER YOUR PERSONAL INFORMATION TO SERVICE PROVIDERS, WHO PROVIDE PROCESSING AND OTHER RELATED SERVICES IN RESPECT OF SUCH PERSONAL INFORMATION. SUCH TRANSFERS MAY BE WITHIN OR OUTSIDE OF CANADA. WE USE CONTRACTUAL OR OTHER MEANS THAT ARE DESIGNED TO PROVIDE A COMPARABLE LEVEL OF PROTECTION FOR SUCH TRANSFERRED PERSONAL INFORMATION. YOU HEREBY CONSENT TO SUCH TRANSFERS OF YOUR PERSONAL INFORMATION FOR SUCH PURPOSES.
YOU CONSENT TO THE MONITORING AND RECORDING OF ALL CONVERSATIONS WITH US OR OUR SERVICE PROVIDERS ABOUT THE VEHICLE OR YOUR ACCOUNT, AND YOU RELEASE US AND ANY THIRD PARTY BENEFICIARIES FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES AND LOSSES THAT MAY RESULT FROM ANY SUCH MONITORED AND/OR RECORDED CONVERSATIONS.
The Vehicle(s) made available to you under this Agreement may be equipped with global positioning satellite (GPS) technology, electronic monitoring technology, or another telematics system, and/or an event data recorder (EDR). For more information regarding these technologies, please refer to the owner’s manual of the Vehicle. You acknowledge and authorize that your use of this Vehicle may be remotely monitored by us or on behalf of us through such systems to the extent permitted by law. This remote monitoring may include collection of Vehicle data, such as location, speed, braking, odometer, oil life, and fuel level, tire pressure, battery state of charge, diagnostic trouble codes, and other elements we may deem necessary. These systems may use cellular communications, and you should have no expectation of privacy related to such monitoring of your use of this Vehicle. You agree to inform all drivers and passengers of the Vehicle of the provisions of this Section, and that you have authorized the release of information collected by GPS, electronic monitoring technology, other telematics systems or EDR. We are not responsible for the operability of any telematics, navigational or other system included with the Vehicle. To the extent permitted by law, you irrevocably and unconditionally agree to defend, indemnify and hold the Porsche Indemnitees, and each of them, harmless from and against all claims, damages, losses, obligations and liabilities of any nature whatsoever, whether foreseen or unforeseen, caused by failure of the GPS, electronic monitoring technology, other telematics systems or EDR to operate properly, or otherwise arising from the use of the GPS, electronic monitoring technology, other telematics systems or EDR.
You agree that we may contact you in order to assist you with the Services provided under this Agreement, to address any questions or concerns regarding your participation in the Program or your account, to send you notices regarding your account or approval of your application for participation in the Program for which you apply, including, without limitation, to send notice regarding payment of your account.
9. SCHEDULES TO THIS AGREEMENT. The following Schedules are attached and incorporated as a part of this Agreement:
Schedule 1: Porsche Passport Program Terms and Conditions
Schedule 2: Porsche Drive Program Terms and Conditions.
10.1. Acknowledgement. By accepting this Agreement, you represent and warrant to us that you have received all explanations that you may have reasonably requested concerning the content of this Agreement, including all Schedules, and that you have carefully read this Agreement in its entirety and that you understand and agree to all of its provisions. You further represent and warrant that you and, as applicable, each Secondary Driver meet the eligibility requirements described in Section 2 (ELIGIBILITY) above, and that you will promptly inform us of any changes during the term of this Agreement.
10.2. Assignment. The rights granted to you or, as applicable, a Secondary Driver under this Agreement, are not assignable or transferable, in whole or in part. Any attempt by you to assign or transfer the whole or any part of this Agreement without our prior written consent shall be void and of no force and effect. We may, without your consent, transfer or assign this Agreement or any of our rights and obligations pursuant to this Agreement to one or more affiliates or third parties. Without limiting the generality of the foregoing, we may subcontract performance of our obligations to third parties.
10.3. No Waiver; Remedies Cumulative. No delay or omission by us in our exercise of any right occurring upon any noncompliance or default by you or, as applicable, any current or previous Secondary Driver, with respect to any of the terms or conditions of this Agreement shall impair any such right or be construed to be a waiver thereof. Any waiver by us of any covenant, condition, or agreement to be performed by you or, as applicable, any current or previous Secondary Driver, shall not be deemed to be a waiver of any prior or subsequent breach of the same, or of any other covenant, condition, or agreement hereunder. Unless stated otherwise, all remedies provided for in this Agreement shall be cumulative and in addition to and not in lieu of any other remedies available to either party at law, in equity, or otherwise.
10.4. Severability. If any term, provision, covenant or condition of this Agreement is held invalid or unenforceable for any reason, the remainder of the provisions will continue in full force and effect as if this Agreement had been executed with the invalid portion eliminated. The parties hereto further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
10.5. Governing Law. This Agreement shall be governed by, construed and interpreted in accordance with the laws of the Province of Ontario and the federal laws of Canada applicable therein, without reference to its conflicts of laws or choice of law rules. The parties hereto irrevocably and unconditionally attorn to the exclusive jurisdiction of the courts of the Province of Ontario and all courts competent to hear appeals from them, provided, however, that the foregoing shall not in any way limit or restrict a party from taking any action or proceeding in any other jurisdiction in order to enforce any judgment rendered in the Province of Ontario.
ARBITRATION CLAUSE --- IMPORTANT --- PLEASE REVIEW --- AFFECTS YOUR LEGAL RIGHTS
10.6. Arbitration. If you and we have a disagreement related to the Program, we’ll try to resolve it by talking with each other. If we can’t resolve it that way, then you and we agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to: (i) claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; (ii) claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); (iii) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and (iv) claims that may arise after the termination of this Agreement. References to “us” and “we” in this Section include any third party beneficiaries, and references to “you,” “we” and “us” in this Section include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of the Program or the Services under this or prior agreements between you and us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Trade Commission. Such agencies can, if the law allows, seek relief against us on your behalf. YOU AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND WE ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision will survive termination of this Agreement.
A party who intends to seek arbitration must first send to the other, by certified mail, a written notice of dispute (“Notice”). The Notice should be addressed to: Porsche Smart Mobility, Inc. One Porsche Drive, Atlanta, GA 30354. The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought. If we and you do not reach an agreement to resolve the claim within thirty (30) days after the Notice is received, you or we may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you will not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or we are entitled.
Private arbitration will be conducted by a neutral arbitrator and administered by the American Arbitration Association (“AAA”) in accordance with the AAA Consumer Arbitration Rules. Arbitration is not a court proceeding. The rules of arbitration differ from the rules of court. There is no judge and jury in an arbitration proceeding. Discovery and rights to appeal in arbitration are generally more limited than in a lawsuit, and other rights that you and we would have in court may not be available in arbitration. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless we and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. The arbitrator will issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. If for some reason these arbitration requirements don’t apply, or a claim proceeds in small claims court, you and we each waive any trial by jury and a judge will decide any and all disputes.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this paragraph of this arbitration provision is found to be unenforceable, then the entirety of this arbitration provision will be null and void.
10.7. Notices. Any notices or other communications required or permitted to be given to you shall be in writing and shall be sufficiently given if delivered by email or mailed to you at the email or postage address provided to us in your completed application or within your Program account, as updated by you from time to time and on file with us. Any notices or other communications required or permitted to be given to us shall be in writing and shall be sufficiently given if delivered via email to email@example.com or mailed to us at the following address:
Porsche Smart Mobility Canada, Ltd.
165 Yorkland Blvd, Unit 150
Any notice delivered via email shall be deemed to have been received on the first business day after which it was sent, unless the sending party is notified that the email address is invalid. Any notice sent by letter shall be deemed to have been received on the fourth business day after it was posted in the regular Canadian mail.
10.8. French Language. The parties acknowledge that they have requested that this document and all other documents relating to it, be drawn up in the English language. Les parties reconnaissent avoir exigé que le présent document et tous les autres documents qui s’y rapportent soient rédigés en anglais.
10.9. Binding Effect. This Agreement shall enure to the benefit of and be binding upon the parties hereto and their respective personal representatives, successors and permitted assigns.