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.
YOU MAY TERMINATE THIS AGREEMENT AT ANY TIME AND FOR ANY OR NO REASON BY PROVIDING US WITH THIRTY (30) DAYS’ ADVANCE WRITTEN NOTICE PURSUANT TO SECTION 10 (MISCELLANEOUS) BELOW.
THIS AGREEMENT AUTOMATICALLY RENEWS ACCORDING TO THE TERMS HEREOF, AND YOU AGREE THAT WE CAN CHARGE YOUR PREFERRED PAYMENT METHOD ON A MONTHLY BASIS, AS MORE FULLY DESCRIBED BELOW. YOU MAY CANCEL THIS AGREEMENT BY PROVIDING THIRTY (30) DAYS’ PRIOR NOTICE OF YOUR INTENT TO CANCEL THIS AGREEMENT, IN ACCORDANCE WITH AND SUBJECT TO THE TERMS OF THIS AGREEMENT.
YOU ARE RESPONSIBLE FOR CERTAIN CHARGES, INCLUDING THOSE FOR TOLLS AND VIOLATIONS, WHICH MAY BE CHARGED TO YOUR CREDIT CARD ON FILE AS NEEDED, AS FURTHER SET FORTH IN SCHEDULE 1.
This Master Subscription Services Agreement is entered into between Porsche Smart Mobility, Inc. and the individual accepting this Agreement for participation in the Porsche Passport Vehicle subscription or Porsche Drive rental Program (defined below) and for the use and custodianship of one or more the Vehicles. By clicking to accept this Agreement, as it may be amended from time to time as provided below, you and any Secondary Driver (defined below) agree to comply with and be bound by the following terms and conditions. This Agreement is effective as of the date of your acceptance.
TO DRIVE THE 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. OUR CUSTOMER SERVICE REPRESENTATIVES DO NOT HAVE 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 NOTED IN THIS AGREEMENT AND IMMEDIATELY UPON DEMAND. FAILURE TO RETURN THE VEHICLE IN ACCORDANCE WITH THE TERMS OF THIS 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:
• Porsche Passport, which enables pre-approved members to have continuous access to Vehicles and the ability to request and exchange 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 1A.
• Porsche Drive, which enables customers to rent Vehicles through our 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 1B.
1. DEFINITIONS. In this Agreement, the following definitions apply:
“AAA” has the meaning given in Section 10 (Miscellaneous).
“Authorized Representative” means an authorized Porsche dealer and/or their affiliate who is engaged in the trade or business of renting or leasing motor vehicles under the Programs.
“App” means the Porsche Passport App.
“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.
“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.
“Program” means the Porsche Passport or Porsche Drive program as each are specifically described in Schedule 1.
“Program Fees” means the fees due in connection with your participation in the applicable Program, including, but not limited to, Subscription Fees. The Program Fees will be in the amounts described in Schedule 1 and any additional charges as set forth in this Agreement.
“Program Period” means the period between the time you take possession of a Vehicle and the time that the Vehicle is either returned to or recovered by and checked in by us.
“Program Plan” means, 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.
“Rental Fee” means the fee owed for the Vehicle rented in the Porsche Drive Program.
“Rental Period” means the time period during which you have an active rental of a Vehicle under the Porsche Drive Program.
“Rules” means all of the rules, requirements, policies and procedures related to your use of the Vehicles and participation in the Program, whether set forth in this Agreement, appearing elsewhere on our website or App or otherwise issued from time to time by us, each as amended, modified or supplemented from time to time, with or without notice, as set forth in Schedule 1.
“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 drive the Vehicles and participate in the Passport Program under your account with us and in accordance with the terms 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 local statutes.
“Service Area” means a pre-defined area surrounding an Authorized Representative wherein we will deliver or retrieve a Vehicle available to you under the terms of this Agreement. Current Service Areas can be viewed on www.porschepassport.us and www.porschedrive.us, as applicable.
“Services” has the meaning given in Section 3 below.
“Schedule 1” means with respect to Porsche Passport, Schedule 1A and with respect to Porsche Drive, Schedule 1B.
“Schedules” means all schedules, rate plans, and policies referenced in or incorporated into this Agreement, each as amended, modified or supplemented from time to time, with or without notice.
“Subscription Fee” means the fees due every Subscription Period for the Porsche Passport Program. The Subscription Fees will be in the amounts described in Schedule 1.
“Subscription Period” means each monthly period during which you maintain an active subscription in the Porsche Passport Program.
“Vehicle” means any of the vehicles that are provided by us and our Authorized Representatives and made available 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, Inc. or any of its subsidiaries, affiliates, successors, agents, employees, subcontractors, and/or 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 the participation in the Program under this Agreement as further described in Schedule 1. For the avoidance of doubt, “you” expressly includes any Secondary Driver(s) approved by us to use the Vehicle(s) provided under the Porsche Passport Program.
Overview. To be eligible to drive the Vehicles and participate in the Program, you must:
• Meet the age requirement as set forth in Schedule 1;
• Hold a driver's license valid for use in the jurisdiction(s) in which you will use our Vehicle(s);
• Have a valid credit card or debit card;
• Have continuous access to a mobile phone compatible with the App; and
• Meet any residential requirement as set forth in Schedule 1.
For the avoidance of doubt, you, where applicable, and any Secondary Driver(s) 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 no 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.
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:
• Accurately, truthfully and fully complete our application for membership through our App;
• Deliver all information and documents that we may request in the application process or otherwise;
• Meet the eligibility criteria set forth in this Agreement; and
• 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 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 criteria will be at our 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.
Secondary Drivers (Porsche Passport 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 the terms of this Agreement applicable to Secondary Drivers.
A Secondary Driver’s status as a Secondary Driver will immediately terminate upon the occurrence of the following events:
• At your request;
• If, in our sole discretion, the Secondary Driver fails to abide by the terms of this Agreement applicable to Secondary Drivers; or
• If this Agreement is terminated.
You acknowledge and agree that you will be fully responsible for the acts and omissions of any Secondary Driver.
If you are the Secondary Driver, all of the terms and conditions of this Agreement apply to you in the same manner as the primary driver.
Contact Information. You agree to provide to and maintain with us your current email address, your current mobile phone number, your current 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 based on your participation in the Program from time to time at our discretion.
Driving Records and License Requirements. By applying to participate in the Program, you authorize us to obtain your driving records from the jurisdiction that issued your driver’s license and in any other jurisdiction that we desire. If you do not have a driver’s license from the jurisdiction in which you reside, failure to get one when required by applicable law constitutes your breach of this Agreement. We may at any time require you to demonstrate compliance with the 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, such as a copy of your passport or 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 discretion, and we may, from time to time, check your driving records. If you do not continue to meet our eligibility requirements, we reserve the right, at our discretion, to suspend, limit or terminate your right to drive the Vehicles and participate in the Program. If your license 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 for driving under the influence of alcohol or drugs, dangerous or reckless driving, or exceeding the relevant speed limit, you agree to report such suspension, revocation, changes, conviction or citation 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 our insurance policy when driving the Vehicles and will give us the right to immediately terminate this Agreement.
3. PROGRAM PARTICIPATION.
No Additional Right to Vehicles. You understand and agree that We or our agents, are and will continue to be the owner of, and our Authorized Representatives have a legal interest in, all Vehicles and any other items that we may provide 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 you use in connection with the Vehicles and the Program. Your operation of, and rights in relation to, any Vehicle, Service, or item provided 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, including payment of all fees described in Section 4 below. You are not acquiring any ownership interest, right, or title in or to any Vehicle or any other personal property, including, but not limited to, any option to purchase one or more Vehicles.
Visual Inspection. At delivery or pick-up of a Vehicle, our Authorized 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 our Authorized Representative will do the same with you. You acknowledge and agree that you are solely responsible for any damage to the Vehicle beyond normal wear and tear.
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 will 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 participation in the Program will be subject to your payment of the fees, expenses and costs set forth in Schedule 1 in accordance with the terms and conditions set forth therein.
5. RESPONSIBILITY TO THIRD PARTIES AND RESPONSIBILITY FOR DAMAGE TO OR LOSS OF VEHICLES.
Notwithstanding any term set forth in this Agreement and to the fullest extent permitted by law, you agree that you are responsible for any and all loss and damage that is caused by the Vehicles during your use under one of our Programs. To the fullest extent permitted by law, your responsibility will include the full value of any damages or injuries caused to third parties or their property to the extent the insurance described in Schedule 1 does not cover such damages or injuries, 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 for all loss of or damage to a Vehicle during a Program Period resulting from any cause, including collision, rollover, theft, vandalism, road condition, weather, or acts of nature. To the fullest extent permitted by law, your responsibility includes the following (to the extent the coverage described in Schedule 1 does not cover the damages or loss, 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; or (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 attorneys’ fees, collection fees, and costs whether or not litigation is commenced.
To the fullest extent permitted by applicable law, you will defend, indemnify, hold harmless and reimburse us, our affiliates, our Authorized Representatives and, where applicable, any third party suppliers or subcontractors, and all of such parties’ respective directors, officers, shareholders, employees, contractors, suppliers, and agents from and for all claims, liabilities, damages, losses, fines, costs, or expenses, including without limitation, any attorneys’ fees, incurred by any such parties or paid by any of them arising out of or relating to your or, as applicable, any current or previous Secondary Driver’s liability. The foregoing indemnification rights and obligations shall survive the termination of this Agreement.
6. LIMITATIONS OF LIABILITY AND DISCLAIMER.
TO THE FULLEST EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL WE, OUR AUTHORIZED REPRESENTATIVES, 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 GROSSLY NEGLIGENT 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 LAW, UNDER NO CIRCUMSTANCES WILL WE, OUR AUTHORIZED REPRESENTATIVES, OR OUR THIRD PARTY SUPPLIERS OR SUBCONTRACTORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, LOSS OF PROFIT, REVENUE, GOODWILL, BUSINESS OPPORTUNITY OR ANTICIPATED SAVINGS, ARISING FROM OR RELATED TO THIS AGREEMENT OR YOUR PARTICIPATION IN THE PROGRAM. Without limiting the foregoing, to the fullest extent permitted by law, we, our Authorized Representatives and our third party suppliers or subcontractors shall have no liability for (1) any loss of, or damage to, any goods in or on any of the Vehicles or in or on any third party vehicles, (2) any loss, damage, injury or death in relation to you or any other third party arising from any of the Vehicles, (3) any loss or damage incurred by you as a result of any claims made by a third party, or (4) any loss or damage incurred by you arising from or in relation to either (A) the non-availability, supply, operation or use of one of the Vehicles, or (B) 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 survive the termination of this Agreement.
YOU TAKE POSSESSION OF VEHICLES AND ANY ACCESSORIES OR SERVICES AS IS, AND WE, OUR AUTHORIZED REPRESENTATIVES, AND OUR THIRD PARTY SUPPLIERS AND SUBCONTRACTORS EXCLUDE ALL WARRANTIES, EXPRESS AN IMPLIED, WITH RESPECT TO THE VEHICLES AND ANY ACCESSORIES OR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
YOU ACKNOWLEDGE AND AGREE THAT THE OBLIGATIONS, RESTRICTIONS 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.
Term. 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.
Effect of Termination. Upon termination of this Agreement, all of your rights and, as applicable, the rights of any Secondary Drivers to use the Vehicles and participate in the Program shall immediately terminate. Upon termination of the Agreement or sooner upon our demand, you agree to immediately return the Vehicles and any of our other property in your possession to the Service Area for our or our agents’ retrieval as soon as safely practicable, but in no event more than twelve (12) hours after termination of this Agreement or upon our request, as applicable.
With respect to any termination or cancellation of this Agreement, you shall remain responsible for any 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, any legal fees, court costs or expenses associated with enforcing the terms of this Agreement, whether upon termination or otherwise.
Repossession. To the fullest extent permitted by law: (a) we can have any of the Vehicles in your possession peacefully repossessed at any time at your expense and without notice should you or any current or previous Secondary Driver(s) violate any of the terms and conditions of this 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 all 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.
YOU CONSENT, ON BEHALF OF YOURSELF, ALL OCCUPANTS OF THE VEHICLE, AND ANYONE ENGAGED IN A CONVERSATION WITH US, OUR AUTHORIZED REPRESENTATIVES OR A SERVICE PROVIDER ABOUT THE VEHICLE OR YOUR ACCOUNT, TO THE MONITORING AND RECORDING OF ALL CONVERSATIONS BETWEEN US AND OUR SERVICE PROVIDERS AND SUCH PERSONS, 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 your use of this Vehicle. You agree to inform all drivers and passengers of the Vehicle of the terms of this Section, and that you have authorized release of information collected by GPS, electronic monitoring technology, other telematics systems or EDR. Neither we nor our Authorized Representatives are responsible for the operability of any telematics navigational or other system included with the Vehicle. To the extent permitted by law, you agree to indemnify, defend and hold us and our Authorized Representatives harmless from any damage to persons or property 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, our Authorized Representatives and our service providers 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, and to send you notices regarding your account or approval of your application for participation in the Program for which you apply, including to send notice regarding payment or your account.
9. ATTACHMENTS TO THIS AGREEMENT. The following documents are attached and incorporated as a part of this Agreement:
Schedule 1A: Porsche Passport Program Terms and Conditions
Part A: Additional Program Terms and Conditions
Part B: Schedule of Fees
Part C: How it Works and Rules of Use
Schedule 1B: Porsche Drive Program Terms and Conditions
Part A: Additional Program Terms and Conditions
Part B: Schedule of Fees
Part C: How it Works and Rules of Use
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 reviewed and understand your commitments and our obligations hereunder. You further represent and warrant that you and, as applicable, each Secondary Driver meet the eligibility requirements described in Section 2 above, and that you will promptly inform us of any changes during the term of this Agreement.
Third Party Beneficiaries. Authorized Representatives are intended to be, and are hereby expressly designated as, third party beneficiaries of this Agreement with respect to each paragraph hereof; provided, however, that Authorized Representatives may enforce the terms hereof only in defense of a claim, action, demand, lawsuit, arbitration, proceeding, litigation, citation, summons, subpoena, or investigation of any nature (each, an “Action”). For purposes of this section, “defense” shall be broadly construed to include any action taken in the context of defending itself in or responding to an Action, including without limitation the assertion of one or more affirmative defenses.
No Assignment. The rights granted to you or, as applicable, any Secondary Driver(s) under this Agreement are not assignable or transferable, in whole or in part. Any attempt to transfer this Agreement without our written consent shall be void and of no force and effect. We may assign this Agreement or our rights and responsibilities pursuant to this Agreement to one or more affiliates or third parties.
No Waiver. 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 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.
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 further agree to substitute for the invalid provision a valid provision that most closely approximates the intent and economic effect of the invalid provision.
Amendment; Modifications. We reserve the right to amend the terms of this Agreement, including the Schedules, at any time and from time to time, with or without notice. Within the App, we will give you thirty (30) days’ notice of any material changes. Unless we designate a different date, all changes will be effective when we give you such notice. Notice will be considered given when such notice is referenced on and accessible from the first page accessed on our website or our mobile website and App, when we provide it to you by email to your address on file with us if you have requested or allowed email delivery, or when we provide it to you via our online newsletter. You agree that the amended terms and conditions of this Agreement shall be effective and binding on you as set forth in this paragraph without you having to sign or accept this Agreement again and without you having to sign or accept a copy of any amendment hereto.
Governing Law. This Agreement is governed by the laws in force in the State of Georgia and shall be interpreted according to the internal laws of the State of Georgia, without reference to its conflicts of laws or choice of law rules. All disputes hereunder shall be resolved solely in the applicable state or federal courts in the State of Georgia. The parties hereby consent to the exclusive jurisdiction of such courts, agree to accept service of process by mail, and waive any jurisdictional or venue defenses otherwise available.
ARBITRATION CLAUSE --- IMPORTANT --- PLEASE REVIEW --- AFFECTS YOUR LEGAL RIGHTS
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 our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as our Authorized Representatives and 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.
Notices. Any notices or 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 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, Inc.
One Porsche Drive
Atlanta, GA 30354
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 U.S. mail.