|At Least||But Less Than||Surcharge on Service Fee|
If you're going to use our Application and/or Services, we strongly recommend you read it, maybe even twice, because it is important that you do. The following terms which may be in bold or all caps (or both) are especially important and we urge you to carefully review them.
BY CLICKING ON THE BOX NEXT TO THE LANGUAGE ON THE WEBSITE, APPLICATION OR RELATED PLATFORM WHICH STATES “I AGREE TO THE TERMS OF SERVICE” , BY PROCEEDING BEYOND THE PAGE ON THE WEBSITE, OR RELATED PLATFORM WHICH STATES “I AGREE TO THE KIDS ON THE GO USA’S TERMS OF SERVICE”, BY INSTALLING OR YOU: (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THIS AGREEMENT (WHICH INCLUDES THESE TERMS AND ANY APPLICABLE SUPPLEMENTAL TERMS); (2) REPRESENT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT; AND (3) REPRESENT THAT YOU HAVE THE AUTHORITY TO ENTER INTO THIS AGREEMENT, (i) PERSONALLY, (ii) ON BEHALF OF A COMPANY, ORGANIZATION, SCHOOL OR OTHER ENTITY (EACH, AN “AFFILIATE”), ON BEHALF OF THAT AFFILIATE AS ITS LEGALLY AUTHORIZED REPRESENTATIVE AND TO BIND SUCH AFFILIATE TO THE TERMS OF THIS AGREEMENT, AND (iii) IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF ANOTHER INDIVIDUAL, ON BEHALF OF THAT INDIVIDUAL AS ITS LEGALLY AUTHORIZED REPRESENTATIVE AND TO BIND SUCH INDIVIDUAL TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT ACCEPT AND AGREE TO ALL OF THE FOLLOWING TERMS AND CONDITIONS, OR IF YOU DO NOT HAVE SUCH AUTHORITY, YOU WILL NOT BE PERMITTED TO ACCESS OR USE THE SERVICES. PROCEEDING BEYOND THE PAGE ON THE WEBSITE, APPLICATION OR RELATED PLATFORM WHICH STATES “I AGREE TO THE KIDS ON THE GO USA’S TERMS OF SERVICE”, OR ACCESSING OR USING THE SERVICES CONSTITUTES YOUR ELECTRONIC SIGNATURE ON THIS AGREEMENT AND YOUR CONSENT TO EXECUTE THIS AGREEMENT ELECTRONICALLY.
IMPORTANT, PLEASE READ: THE TERMS INCLUDE A CLASS ACTION WAIVER AND REQUIRE BINDING ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS.
1. DISCLAIMER: YOUR USE OF THE KIDS ON THE GO USA PROPERTIES IS AT YOUR SOLE RISK. THE KOTGUSA PROPERTIES ARE PROVIDED “AS IS” AND “AS AVAILABLE”. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KOTGUSA AND ITS OFFICERS, EMPLOYEES, DIRECTORS, AND SHAREHOLDERS,COLLECTIVELY, THE “COVERED PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE AND NON-INFRINGEMENT), INCLUDING WITHOUT LIMITATION WITH RESPECT TO ANY BOOSTER SEATS PROVIDED BY KOTGUSA OR THE INSTALLATION OF SUCH BOOSTER SEATS. THE COVERED PARTIES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE KOTGUSA PROPERTIES OR THE DRIVERS, ARRANGERS, RIDERS, AFFILIATES OR OTHER USERS.
2. DISPUTE RESOLUTION - Please Read
a. MANDATORY AND EXCLUSIVE ARBITRATION: (i)If a dispute arises out of or relates to this Agreement, or the breach thereof, and if said dispute cannot be settled through direct discussions KOTGUSA., you agree to first endeavor to settle the dispute in an amicable manner by mediation using a process agreed upon by the parties to this Agreement. Thereafter, any unresolved controversy or claim arising out of or relating to this contract, or breach thereof, shall be settled by binding arbitration in accordance with the Texas General Arbitration Act, Chapter 171 of the Texas Civil Practice and Remedies Code. The arbitrator selected shall be a member of the National Academy of Arbitrators. (ii) you agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be settled by binding arbitration between you and KOTGUSA U.S.A., Inc. , except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and KOTGUSA are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and KOTGUSA otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
b. Arbitration rules and governing law: (i)The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section. (ii) This agreement shall be governed by and construed and enforced in accordance with the laws of the State of Texas. Venue for any action to enforce the terms and conditions of this agreement shall be Fort Bend County, Texas.
c. Arbitration process: A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at www.adr.org/aaa/ShowPDF?doc=ADRSTG_004175). The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
d. Arbitration process and procedure: Unless you and KOTGUSA otherwise agree, the arbitration will be conducted in Fort Bend County, Texas. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and KOTGUSA submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
e. Arbitrator’s decision: The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. KOTGUSA will not seek, and hereby waives all rights KOTGUSA may have under applicable law to recover, attorneys' fees and expenses if KOTGUSA prevail in arbitration.
f. Fees.: (i)Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, KOTGUSA will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). (ii)All sums due under this agreement are payable in Fort Bend County, Texas, in the United States of America. Agent (Kids On the Go U.S.A., Inc.) and client expressly agree that the laws of the State of Texas or of the federal government of the United States of America, as applicable, shall govern the construction and enforcement of this Agreement and all obligations of the parties are to be performed in Fort Bend County, Texas.
g. Changes: Notwithstanding the provisions of the modification-related provisions above, if KOTGUSA changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by providing KOTGUSA written notice of such rejection by mail or hand delivery to: KOTGUSA, Attn: Dispute Resolutions, P.O. Box 16506, Sugar Land, TX 77496 or by email email@example.com , within 30 days of the date such change became effective, as indicated in the "Last update" date above. In order to be effective, the notice must include your full name and clearly indicate your intent to reject changes to this "Dispute Resolution" section. By rejecting changes, you are agreeing that you will arbitrate any Dispute between you and KOTGUSA in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
3. LIMITATION OF LIABILITY(i) TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, KOTGUSA shall not be liable for indirect, incidental, special, exemplary, punitive, or consequential damages, including lost profits, lost data, personal injury, or property damage related to, in connection with, or otherwise resulting from any use of the services, even if KOTGUSA has been advised of the possibility of such damages. KOTGUSA Shall not be liable for any damages, liability or losses arising out of: (A) your use of or reliance on the services or your inability to access or use the services; or (B) any transaction or relationship between you and any third party provider, even if KOTGUSA has been advised of the possibility of such damages. KOTGUSA shall not be liable for delay or failure in performance resulting from causes beyond Kids on The Go U.S.A.,’s reasonable control. You acknowledge KIDS ON THE GO USA transportation services requested may offer ridesharing or peer-to-peer transportation services and may not be professionally licensed or permitted. In no event shall Kids on The Go U.S.A.,’s total liability to you in connection with the services for all damages, losses and causes of action exceed five hundred U.S dollars (U.S. $500.00).
(ii ) KIDS ON THE GO USA’s services may be used by you to request and schedule transportation, goods, or logistics services with third party providers, but you agree that KOTGUSA has no responsibility or liability to you related to any transportation, goods or logistics services provided to you by third party providers other than as expressly set forth in these terms. (iii.) The limitations and disclaimer in this Section (11) do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.
4. RELEASE You hereby release the Covered Parties from claims, demands any and all losses, damages, rights, claims, and actions of any kind including, without limitation, personal injuries, death, and property damage, that is either directly or indirectly related to or arises from (i) your use of the Application or Services, or (ii) any transportation services arranged as a result of your activities through the KOTGUSA Properties
5. INDEMNITY You agree to indemnify and hold KOTGUSA and its officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or in connection with: (A) your use of the services or services or goods obtained through your use of the Services; (B) your breach or violation of any of these terms.
6. FUEL SURCHARGE KIDS ON THE GO USA Fuel Surcharge Table Effective September 6, 2016 (prices per gallon of regular unleaded fuel)
b. Date Average Monthly Fuel Price Determined as of: September 6, 2016 based on http://www.eia.gov/dnav/pet/pet_pri_gnd_dcus_y44ho_m.htm
c. There is a one-month lag between the fuel price index and the fuel surcharge. For example, the fuel surcharge for November 2016 is based on the October 2016 average spot price of fuel. KOTGUSA may use the monthly average fuel price posted on eia.gov as of this date or calculate the monthly average price based on daily spot prices posted as of the date.