1. Acceptance of Terms
In addition to the terms defined elsewhere in this TOS, the terms listed below are defined as follows:
“Wheelz DriveBox™” means the device installed by Wheelz in Vehicles that, among other things, allow for keyless entry, tracking, and network management.
“Driver” means a Member who uses an Owner’s Vehicle via the Service during a Usage Period.
“Member” means a person of at least the age of 18 at the time of registration with Wheelz who has registered with Wheelz and been approved for Owner or Driver status.
“Non-Member Owner” or “NMO” means an Owner who approves, via the applicable registration process with Wheelz, a Member making that Vehicle available to Wheelz for use by Drivers via the Service.
“Owner” means a person who owns the legal title to a Vehicle and makes his/her Vehicle(s) available to Wheelz for use by Drivers during a Usage Period and who is either registered as a Member or as a Non-Member Owner.
“Service” means, collectively, the Wheelz website, the Wheelz App, the Wheelz DriveBox™, the Wheelz service offering, car-share program, and any associated applications, products and/or services.
“TOS” means this Terms of Service document, including all provisions contained within it, as updated from time to time by Wheelz.
“Usage Period” means the period of time for which a Member has use of a Vehicle, beginning immediately upon the Member accessing the Vehicle with the Member’s Wheelz membership card and/or via the Wheelz App and immediately and automatically terminating upon the occurrence of one of the following events: (i) immediately and automatically at the end of the reservation period, provided that the Vehicle has been returned to the designated return zone (“Home Zone”) by the end of the reservation period; (ii) immediately and automatically upon the return of the Vehicle to the Home Zone if returned after the reservation period, subject to applicable late fees and/or rates, or (iii) upon early termination of the reservation period executed by using the Wheelz App, sending a text message to Wheelz, or calling Wheelz customer service, provided that the Vehicle has been returned to the Home Zone prior to such early termination.
“Vehicle(s)” mean(s) the passenger car(s) made available by the participating Owner(s) for use by Members.
“Wheelz” means Wheelz Inc., a Delaware corporation.
“Wheelz App” means the Wheelz smartphone application that is based, in part, on the Wheelz website.
“you” or “your” means the person clicking and accepting this TOS, sometimes also referred to as “Member”, “Driver,” “Owner,” or “Non-Member Owner” (“NMO”) as applicable.
The TOS is a legal agreement between you and Wheelz that governs your use of the Service and your relationship with Wheelz, whether you are a Member Owner, Member Driver or NMO, as applicable. The TOS governs any and all access to and use of the Service and your activities in the capacity of a Member, either as a Driver or Owner, or as a NMO, as applicable. You must agree to the TOS before you can be approved for Member or NMO status and access or use the Service. Please read the TOS carefully and be sure that you understand all terms in the TOS. If you do not agree to any of the terms contained in the TOS, please do not register as a Member or NMO or use or access the Service.
By clicking the “I Accept and Agree” box on the applicable Wheelz registration page, you acknowledge that you have read all of the terms and conditions of the TOS, understand all terms, and agree to be legally bound by them. You should print or otherwise save a copy of the TOS for your records.
2. Relationship with Wheelz
Your relationship with Wheelz may be that of a Driver, Owner or NMO.
Owners may be Members or NMOs. Those Owners who currently hold the legal title to a Vehicle but who are authorizing another person to register as a Member for purposes of making that particular Vehicle available to Drivers via Wheelz may only register as NMOs. In other words, those Owners will not be Members. All other Owners must register as Members. Owners (other than NMOs) may also be Drivers, and vice versa. Wheelz does not make any commitment or guarantee that you will be approved for Member Owner and/or Driver status.
You understand that your application (or renewal application) to become a Member Owner or Driver is subject to Wheelz approval and is not guaranteed upon submission by you. You also understand that your ongoing compliance with the TOS is a prerequisite for renewal of your Owner or Driver status.
3. Application Process
You understand and consent to Wheelz: (a) sharing all or any portion of the content of your application (or renewal application) to become an Owner or Driver with third party vendors that Wheelz uses for purposes of determining whether to accept your application, including but not limited to its insurance carriers, (b) conducting a credit check, DMV verification and review, CarFax check, reference checks conducted via social media, and similar checks of credit history, driving records, vehicle condition, and/or other relevant information in reference to your application (or renewal application) to become an Owner or Member, as applicable (collectively referred to as “Wheelz Checks”), and (c) relying upon the results of such checks in making a determination to accept your Owner and/or Driver application (or renewal application), as applicable. You acknowledge that Wheelz has no obligation and makes no promise to disclose the contents of any Wheelz Checks to you. You further acknowledge that the content of Wheelz Checks may not always be accurate or error-free and that, regardless of such inaccuracy or errors, Wheelz may rely upon the content of Wheelz Checks in making decisions to accept new or renewal applications submitted by you. You hereby release Wheelz, its affiliates and third party vendors from any claim, loss or liability associated with the results of any Wheelz Checks, determinations made on the basis of any Wheelz Checks, and inaccuracies or errors, if any, contained in any Wheelz Checks.
4. Representations and Warranties
You represent and warrant that you have the full power and authority to enter into and accept the TOS, and that the acceptance of the TOS: (a) does not and will not contravene any provisions, or constitute a default under any indenture, mortgage, contract, or other instrument to which you are bound; and (b) shall constitute a legal, valid and binding agreement by you.
In addition, if you are an Owner, you represent and warrant that: (c) you are responsible for applicable charges, fees, duties, taxes, and assessments associated with payments made or your participation in the Service, (d) you currently own all right, title and interest in the Vehicle, (e) the Vehicle is free from defects, is roadworthy and will at all times be in compliance with state inspection and registration requirements, (f) you will maintain the Vehicle in accordance with the manufacturer’s instructions, and (g) you authorize the applicable Driver(s) renting use of your Vehicle to perform, at your expense, any service necessary to bring a Vehicle into compliance with this provision during a Usage Period. Lastly, if you are a Non-Member Owner, you further represent and warrant that: (h) you personally completed the NMO registration with Wheelz, (i) you knowingly grant permission to the applicable Member identified in your completed NMO registration to register your Vehicle with Wheelz, and (j) you authorize that Member to exercise any and all rights associated with a Wheelz Membership in connection with that Vehicle, including rental of the Vehicle to Drivers via the Service.
Wheelz does not make any representations or warranties as to the fitness or condition of any Vehicle available under or via the Service. Wheelz makes no promise, commitment or guarantee as to the amounts that Owner may expect to receive in connection with Owner’s rental of his/her Vehicles to Drivers.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, AS SUCH, TO THE EXTENT SUCH EXCLUSIONS ARE SPECIFICALLY PROHIBITED BY APPLICABLE LAW, SOME OF THE EXCLUSIONS SET FORTH BELOW MAY NOT APPLY TO YOU. YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICE, WHEELZ DRIVEBOX™, AND ANY VEHICLES MADE AVAILABLE THROUGH THE SERVICE, AND YOUR DOWNLOAD AND USE OF THE WHEELZ APP, IS AT YOUR SOLE RISK AND THE SERVICE, INCLUDING THE WHEELZ APP AND WHEELZ DRIVEBOX™, IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WHEELZ AND ITS OFFICERS, DIRECTORS, EMPLOYEES, CONSULTANTS, AGENTS, AND PARTNERS (COLLECTIVELY, “WHEELZ PARTIES”), EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
WHEELZ PARTIES MAKE NO WARRANTY THAT: (I) ALL OR ANY PORTION OF THE SERVICE WILL MEET YOUR REQUIREMENTS OR PRODUCE SPECIFIC RESULTS; (II) YOUR USE OF ALL OR ANY PORTION OF THE SERVICE WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; AND (III) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE SERVICE WILL BE ACCURATE OR RELIABLE. IN ADDITION, WHEELZ PARTIES MAKE NO WARRANTY AS TO: (IV) THE SERVICE, (V) THE WHEELZ DRIVEBOX™, (VI) THE WHEELZ APP, (VII) ANY VEHICLES, (VIII) THE QUALITIES OF OTHER MEMBERS OR OWNERS PARTICIPATING IN THE SERVICE, OR (IX) THE FITNESS OR CONDITION OF ANY VEHICLE AVAILABLE UNDER OR VIA THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM WHEELZ OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THE TOS.
A. For Owners
- Liability. Wheelz agrees to maintain insurance providing coverage to Owners and Wheelz for liability for any bodily injury or property damage arising from the operation of the Vehicle, provided the injury or damage occurs during any Usage Period (a “Covered Incident”). The insurance shall have limits of liability that are equal to or greater than three times the limits required for private passenger vehicles by the state in which the Vehicle is registered. Wheelz may in its sole discretion and without notice to Owner, modify Wheelz’ insurance at any time.
- Physical Damage to Vehicle/ Theft of Vehicle. In the event of damage to, or destruction, loss or theft of, the Vehicle that occurs (i) during any Usage Period or (ii) while the Vehicle is in the possession of Wheelz for installation or removal of Wheelz Equipment (a “Covered Loss”), Wheelz shall reimburse Owner for the cost of a replacement rental car, at a rate of up to $40 per day, from the date of loss until the repairs are completed or, in the event of a total loss, until the earlier of the following: (i) the date the first settlement offer is provided to Owner by Wheelz, Wheelz’ insurer, or their respective agents; or (ii) the date Owner replaces the Vehicle. In the event of a Covered Loss, Wheelz shall, at its discretion, place such Vehicle in good condition, repair and working order, or, if the cost to repair exceeds the actual cash value of the vehicle, to pay to the Owner the actual cash value. Wheelz agrees to maintain comprehensive and collision insurance providing coverage to Owner and Wheelz against Covered Losses. Wheelz may, in its sole discretion and without notice to Owner, modify Wheelz’ insurance at any time, including opting to self-insure.
- Owner’s Property. Owner understands and agrees that the Owner assumes responsibility for all of Owner’s property and personal items that are in, on or attached to the Vehicle during any Usage Period (“Owner’s Property”), and that the Owner bears the entire risk of damage to, or destruction, loss or theft of, Owner’s Property. Owner understands and agrees that Wheelz shall not be liable for, and that Wheelz is not required to obtain insurance coverage for, any damage to, or loss, destruction or theft of, any of Owner’s Property.
- Duties of the Owner. In the event of a Covered Loss or Covered Incident, Owner shall cooperate with Wheelz in: (1) submitting a claim to Wheelz insurer(s); (2) providing Wheelz and the insurer(s) with all information and documents reasonably requested regarding the claim; and (3) providing all information and documents required under law. Owner hereby appoints Wheelz as his or her attorney-in-fact to make claim for, receive payment of, execute and endorse all documents, checks, or drafts, in connection with any Covered Loss or Covered Incident. In the event of a Covered Loss or a Covered Incident, all insurance proceeds shall belong solely and exclusively to Wheelz, and Owner expressly disclaims any interest in such proceeds.
- Duties of Wheelz. Wheelz shall obtain insurance complying with this section from companies qualified to do business in California. Upon request, Wheelz shall provide to Owner evidence of insurance complying with this section. By clicking the “I Accept and Agree” box on the Owner Application Form, Owner expressly acknowledges that in purchasing the insurance described in this section, Wheelz is permitted to obtain the minimum limits required under law for uninsured motorists, underinsured motorists, medical payments, liability for bodily injury and property damage, and first party benefits, or to waive these coverages where permitted by law.
B. For Drivers
Liability. Wheelz agrees to maintain insurance providing coverage to Drivers and Wheelz for bodily injury or property damage arising from Member’s operation of the Vehicle, provided the injury or damage occurs during any Usage Period (a “Covered Incident”). The insurance shall have limits of liability that are equal to or greater than three times the limits required for private passenger vehicles. Wheelz may, as conditions warrant, and in its sole discretion and without notice to Driver, modify Wheelz’ insurance at any time.
Subject to Driver’s compliance with the TOS, during your Wheelz rental Driver is covered by Wheelz’ insurance policy while the Vehicle is driven by Driver in a lawful, safe and prudent manner and otherwise used in accordance with the TOS and applicable law. In the event of a Covered Incident, Member is responsible to pay for the first $500 of loss or damage, akin to a standard insurance deductible. Only approved and active Drivers in good-standing with Wheelz are insured and authorized to drive the Vehicles.
In order to be approved as a driver on our system, you must agree to meet the following conditions:
- All drivers must be at least 18 years of age.
- All drivers must have been licensed for at least one year.
- All drivers must not have any alcohol/drug related incidents in the last seven years.
- Drivers under age 21 must have a clear motor vehicle record: only one minor moving violation or one accident in the last three years is allowed.
- Drivers over age 21 must have no major violations in the past three years, and no more than two minor violations or accidents, combined in the last three years. (Note: Violations that constitute “Major violations” or “minor violations” are determined by Wheelz in its sole discretion)
Physical Damage to Vehicle; Theft of Vehicle. Wheelz agrees to maintain insurance providing coverage to Driver and Wheelz against damage to, or loss, destruction or theft of, the Vehicle that occurs during any Usage Period (a “Covered Loss”). Wheelz may, in its sole discretion and without notice to Driver, modify Wheelz’ insurance at any time.
In the event of a Covered Loss in which it is determined that Driver was at fault, Driver shall be responsible for any costs, damages, claims, and fees that are not covered by Wheelz’ insurance policy, including but not limited to any insurance deductible applicable to the Covered Loss. Deductibles may vary over time and by Vehicle.
- Driver’s Property. Member understands and agrees that Member assumes responsibility for all of Driver’s property and personal items that are in, on or attached to the Vehicle during any Usage Period (“ Driver’s Property”), and that Driver bears the entire risk of damage to, or destruction, loss or theft of, Driver’s Property. Driver understands and agrees that Wheelz shall not be liable for, and that Wheelz is not required to obtain insurance coverage for, any damage to, or loss, destruction or theft of, any of Driver’s Property.
- Duties of the Driver. In the event of a Covered Loss or Covered Incident, Driver shall cooperate with Wheelz in (1) submitting a claim to the insurer; (2) providing Wheelz and the insurer with all information and documents reasonably requested regarding the claim; and (3) providing all information and documents required under law. Driver hereby appoints Wheelz as its attorney-in-fact to make claim for, receive payment of, execute and endorse all documents, checks, or drafts, for loss or damage under said insurance policy(ies). In the event of a Covered Loss or a Covered Incident, all insurance proceeds shall be applied toward the payment of Driver’s obligations to Wheelz, or of Wheelz’ obligations to the applicable Owner of the Vehicle, in connection with the Covered Loss or Covered Incident. Any remaining proceeds shall belong solely and exclusively to Wheelz, and Driver expressly disclaims any interest in such remaining proceeds.
- Duties of Wheelz. Wheelz shall obtain insurance complying with this section from companies qualified to do business in California. Upon request, Wheelz shall provide to Driver evidence of insurance complying with this section. By clicking the “I Accept and Agree” box on the applicable registration pages, you expressly acknowledge that in purchasing the insurance described in this section, Wheelz is permitted to obtain the minimum limits required under law for uninsured motorists, underinsured motorists, medical payments, liability for bodily injury and property damage, and first party benefits, or to waive these coverages where permitted by law.
- Additional Insurance or Non-Insurance Products. Wheelz may, in its sole discretion, offer insurance or non-insurance products to Driver which may provide, among other things, limits supplementing the limits set forth above, or the option of reducing Driver’s exposure for deductibles, costs, loss or damage in the event of a Covered Loss or a Covered Incident. Such products, if offered by Wheelz and accepted and purchased by Driver, shall be the subject of a separate agreement between the parties.
A. For Owners
Each party (the “Indemnifying Party”) will defend, indemnify and hold harmless the other party and its officers, directors, employees, contractors, agents and representatives (the “Indemnified Parties”) against any action, proceeding, damage, liability, cost or expense (including reasonable attorneys’ fees) they suffer or incur that arises from (i) any acts or omissions by the Indemnifying Party; or (ii) a breach of the Indemnifying Party’s warranties hereunder or from any claim, suit or action alleging facts which, if true, would constitute such a breach.
B. For Drivers
To the extent such liability or expense is not covered by Wheelz’ insurance policy, you agree to defend, indemnify and hold harmless Wheelz and the Wheelz Parties where any of them has incurred liability, damages or expense (including, without limitation, attorneys’ fees and costs) as the result of a claim by a third party for personal injury (including, but not limited to bodily injury or death) or property damages arising out of use of a Wheelz Vehicle through your membership, unless Wheelz’ gross negligence solely caused the damage.
8. Waiver of Responsibility
A. For Owners
You understand that, unless otherwise specifically noted by Wheelz on it website, your Vehicle(s) will be used by third parties and not by Wheelz. Although Wheelz obligates its Drivers to operate Vehicles in a safe and prudent manner and in accordance with state and local rules, laws and regulations regarding the operation of vehicles, Wheelz does not undertake background checks of each Driver or monitor a Driver’s use of your Vehicle(s). As a result, by participating in the Service, you waive any and all rights you have to sue or make claims against Wheelz, including any Wheelz Parties and any Member for any damages or losses arising out of or in connection with either Vehicle or property-related issues (including, without limitation, destruction, loss or theft of any Owner Property or, a Vehicle not being returned when it was supposed to be, any damage suffered to the Vehicle, any malfunction of or deficiency in a Vehicle, any defect in a Vehicle, or any breach of warranty or other obligation by any manufacturer or supplier or repairer of a Vehicle); or personal injury-related issues (including without limitation, any damage or injury to persons or death) or, in the case of the Wheelz Parties, any actions or inaction of the Driver. Regardless of the above statements, your participation in the Service does not waive any rights you may have under applicable law to make claims against each of Wheelz Parties or the applicable Member(s) for damages arising solely from their respective gross negligence or willful misconduct.
B. For Drivers
You understand that, unless otherwise specifically noted by Wheelz on its website, the Vehicles offered hereunder are owned by third parties and not owned or maintained by Wheelz. Although Wheelz obligates the Owners of the Vehicles to maintain Vehicles in compliance with state inspection requirements, in good repair, condition and working order and in accordance with the manufacturer’s instructions, Wheelz does not independently inspect or repair such Vehicles. As a result, by participating in the Service, you hereby waive any and all rights you have to sue or make claims against any Wheelz Parties and the Owner(s) of the Vehicle(s) for any damages or losses arising out of or in connection with either Vehicle or property-related issues (including, without limitation, a Vehicle not being available when it was supposed to be, any malfunction of or deficiency in a Vehicle, any defect in a Vehicle, or any breach of warranty or other obligation by any manufacturer or supplier or repairer of a Vehicle); or personal injury-related issues (including without limitation, any damage or injury to persons or death) or, in the case of the Wheelz Parties, any actions or inaction of the Vehicle Owner. Regardless of the above statements, your participation in the Service does not waive any rights you may have under applicable law to make claims against each of Wheelz Parties or the Owner for damages arising solely from their respective gross negligence or willful misconduct.
9. Limitation of Liability
To the maximum extent permitted by applicable law, Wheelz’ maximum aggregate liability, whether for breach of warranty or contract, tort (including negligence), infringement or otherwise, shall not exceed the following, as applicable: (a) if you are an Owner, the total amount paid by Wheelz to Owner during the twelve month period immediately prior to the date the applicable cause of action arose, (b) if you are a Driver, the total amount you paid to Wheelz during the twelve month period immediately prior to the date the applicable cause of action arose, or (c) if you are a NMO, the total amount paid by Wheelz to the applicable Member you have authorized to manage use of your Vehicle via the Service during the twelve month period immediately prior to the date the applicable cause of action arose.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL WHEELZ OR ANY OF THE WHEELZ PARTIES BE LIABLE TO YOU, OR ANY PARTY CLAIMING THROUGH YOU, FOR ANY INDIRECT, TORT, PUNITIVE, EXEMPLARY, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES IN CONNECTION WITH OR ARISING OUT OF THE SERVICE, THE TOS OR YOUR USE OF OR PARTICIPATION IN THE SERVICE, HOWEVER CAUSED, WHETHER ARISING IN BREACH OF CONTRACT, BREACH OF WARRANTY OR IN TORT, INCLUDING NEGLIGENCE, EVEN IF SUCH PARTY HAS PREVIOUSLY BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AND WHEELZ AGREE THAT THE SECTIONS ON INSURANCE AND LIMITATIONS OF LIABILITY FAIRLY ALLOCATE THE RISKS OF THE PARTIES.
10. Collection and Use of Information
A. For Owners
Owner may not assign the TOS, in whole or in part, without advance written consent of Wheelz. Any assignment in violation of the above sentence will be null and void and of no force and effect. Regardless of Wheelz consent to any such assignment, Owner warrants that Wheelz and its Members shall quietly enjoy use of the Vehicles, subject to the terms and conditions of the TOS. Subject to the above, the TOS inures to the benefit of and is binding upon the heirs, legatees, personal representatives, successors and assignees of the Owner.
B. For Drivers
You may not assign this TOS, in whole or in part, without advance written consent of Wheelz. Any assignment in violation of the above sentence will be null and void and of no force and effect.
C. For Wheelz
Wheelz may assign, transfer or delegate all or any portion of the TOS, or its obligations under the TOS, in its sole and absolute discretion, to any third party without notice. In that event, the TOS inures to the benefit of and is binding upon the heirs, legatees, personal representatives, successors and assignees of Wheelz.
A. For Owners
In all cases, either you or Wheelz may terminate your Owner status (whether as a Member or NMO) for convenience at any time upon thirty (30) days written notice to the other party. Notice may be provided by Wheelz to you via email to the email associated with your Wheelz account.
B. For Drivers
Either you or Wheelz may terminate your status as a Driver at any time, with or without cause, and without notice. If your membership is terminated, you shall remain liable for all amounts, including account balances and any damages incurred as of the effective date of such termination. Upon termination, you shall return all Wheelz property (including without limitation, Wheelz DriveBox™(es) keys, fobs, or keycards) to Wheelz as soon as possible but in no event later than within fifteen days. You understand that you shall receive a refund of any funds due you, less all outstanding account balances, damages, and losses chargeable by Wheelz against you no later than sixty (60) days after return all such property to Wheelz.
C. For Wheelz
In addition to Wheelz’ termination rights mentioned above, Wheelz also reserves the right to immediately terminate, discontinue, suspend the TOS and all or any portion of the Service at any time and without notice if: (a) required by any law or court order, (b) a force majeure event affecting Wheelz continues for more than 15 days, (c) if Wheelz determines, in its reasonable discretion, that doing so is necessary and appropriate to ensure compliance with applicable law, or (d) your breach of the TOS.
13. General Terms
The remedies described in the TOS are not Wheelz’ exclusive remedies for your breach or default of any terms contained or referenced in the TOS, but shall be in addition to all other remedies available to Wheelz at law or in equity, subject only to applicable law.
All notices, consent and other communications required or permitted to be given under the TOS will be in writing and will be deemed to have been duly given if and when delivered personally, or via first class certified mail, or sent by a nationally recognized courier service. Notice shall be sent to the you at the address listed in the your Wheelz profile page. Notice shall be sent to Wheelz at the following address:
151 10th Street
San Francisco, CA 94103
Regardless of the above, Wheelz shall be permitted to send valid and enforceable notices to you via email to your email address associated with your Wheelz account if permitted by other sections of the TOS.
C. Entire Agreement/Amendments
The TOS states the entire understanding between the parties with respect to the Service, your participation in and use of the Service and relationship with Wheelz and supersedes all earlier oral and written communications and agreements with respect to the same subject matter. The TOS and any terms referenced in the TOS may be modified by Wheelz from time to time by posting the updated TOS. Such changes shall be effective immediately, although, if you disagree with the updated TOS, you may terminate your relationship with Wheelz, subject to the termination section above. Your ability to continue to access the Service constitutes the consideration for the changes made by us to the TOS. All amendments or modifications of the TOS shall be binding upon you regardless of any determination of a lack of sufficient consideration.
D. No Waivers
The performance of any obligation required of you may be waived only by a written waiver signed by Wheelz, and such waiver shall be effective only with respect to the specific obligation described. The waiver by Wheelz of a breach of any provision of the TOS by you shall not be construed as a waiver of any future breach of the same section or another section of the TOS. No failure to exercise, delay in exercising, or single or partial exercise of any right, power or remedy by Wheelz, and no course of dealing between Wheelz and you, will constitute a waiver of, or will preclude any other or further exercise of, the same or any other right, power or remedy.
If any term, condition or provision of this TOS is held to be or becomes invalid or is held to be or becomes a violation of any applicable law, statute or regulation, the same shall be deemed to be deleted from this TOS and shall be of no force and effect, and the TOS shall remain in full force and effect as if such term, condition or provision had not originally been contained in the TOS. The validity and enforceability of the other sections of the TOS shall not be affected as a result. If the TOS should have a gap, Wheelz shall substitute a valid and enforceable section completing the TOS.
Section and subsection headings are for convenience or reference only, do not constitute a part of the TOS, and will not affect its interpretation.
G. Governing Law
The TOS, the rights and obligations of the parties, and any claims or disputes relating to the TOS, your relationship with Wheelz or the Service, shall be governed by and construed in accordance with the laws of the State of California, without regard to its conflict of laws provisions. You agree that any claim or dispute you may have against Wheelz must be resolved exclusively by a state or federal court located in Santa Clara County, California. You agree to submit to the personal jurisdiction of the courts located within California for the purpose of litigating all such claims or disputes.
H. No Agency, Authority
Except as otherwise provided for in the TOS and except as to any NMO and his/her relationship with the applicable designated Member, the TOS is not deemed, expressly or by implication, to create an agency, affiliate or employee relationship between or among any of the parties hereto, or any affiliates of the parties for any purpose whatsoever. You understand and agree that you have no authority to enter into any contract or otherwise obligate Wheelz or any other Wheelz Driver(s) or Owner(s) to any third party without prior, specific written authorization from such other party.
I. Force Majeure
Wheelz will not be liable for any failure of or delay in the performance of the Service or its obligations under the TOS for the period that such failure or delay is due to acts of God, public enemy, war, acts of terrorism, strikes or labor disputes, public health epidemics, internet issues, power failures, viruses or malicious code attacks, or any other cause beyond Wheelz’s reasonable control. Wheelz shall either terminate the Service and/or the relationship with you pursuant to the TOS or resume performance as promptly as practicable after such cause is terminated or resolved.
You understand that your compliance with applicable state, federal and local laws and regulations is a material component of your relationship with Wheelz and Wheelz’ decision to acknowledge your Member Owner, Driver or NMO status, as applicable. As a result, you agree to comply in all material respects and at all times with all applicable state, federal and local laws and regulations.
The obligations of you and Wheelz under the TOS which, by their nature, would continue beyond expiration, termination or cancellation of this TOS (including, without limitation, the warranties, indemnification obligations, confidentiality requirements and ownership and property rights) shall survive any expiration, termination or cancellation of the TOS or the Service.
II. ADDITIONAL TERMS FOR WHEELZ DRIVEBOX™
The following additional terms listed in this Section II shall apply to you if you own and/or operate any Vehicle with a Wheelz DriveBox™.
1. SCOPE OF LICENSE.
Subject to the terms and conditions of this TOS, the license granted to you for the Wheelz DriveBox™ is limited to a non-exclusive and non-transferable license to use the Wheelz DriveBox™ solely in connection with the Service and the Vehicle in which the Wheelz DriveBox™ is installed.
2. LICENSE RESTRICTIONS.
You agree and acknowledge that you will not: (i) decompile, disassemble, or otherwise reverse engineer any portion of the Wheelz DriveBox™; (ii) disclose, distribute, sell, sublicense, rent, lease, time-share, loan, or otherewise make available the Wheelz DriveBox™, or any portion thereof, to a third party; (iii) modify, copy, or create derivative works of the Wheelz DriveBox™; or (iv) remove any copyright or proprietary notices contained on or within the Wheelz DriveBox™.
3. OWNERSHIP AND FEEDBACK.
Wheelz shall own and retain all right, title, and interest, including all intellectual property rights, in and to the Wheelz DriveBox™ and any of its related technology. Additionally, Wheelz has a non-exclusive, fully paid-up, royalty-free perpetual, irrevocable, worldwide, transferable, sublicensable license to use, copy, modify, or distribute, including by incorporating into the Wheelz DriveBox™, any suggestions, enhancement requests, recommendations or other feedback regarding the Wheelz DriveBox™ which you provide to Wheelz. Except for the license expressly granted in Section II.1 above, no other rights, licenses or privileges are granted by Wheelz to you with respect to the Wheelz DriveBox™.
III. Additional Terms for Wheelz Smartphone App Users
The following additional terms listed in this Section II shall apply to you if you download and access the Service via the Wheelz iPhone App.
You and Wheelz acknowledge that the TOS is between you and Wheelz only, and not with Apple Inc. (“Apple”), and that Wheelz, not Apple, is solely responsible for the Wheelz App and the content of the Wheelz App. If applicable and regardless of any other provision of the TOS, you agree to adhere to the Apple App Store Terms of Service with respect to your download of and access to the Wheelz App.
2. Scope of License.
The license granted to you for the Wheelz App is limited to a non-transferable license to use the Wheelz App on any iPhone or iPod touch that you own or control as permitted by the Usage Rules set forth in the Apple App Store Terms of Service.
3. Maintenance and Support.
Wheelz is solely responsible for providing maintenance and support services, if any, with respect to the Wheelz App should Wheelz elect to provide such services or as required under applicable law. You and Wheelz acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance or support services with respect to the Wheelz App.
Wheelz is solely responsible for any warranties, whether express or implied by law made under these TOS. In the event of any failure of the Wheelz App to conform to any applicable express warranty, you may notify Apple, and Apple will refund the purchase price for the Wheelz App to you. To the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Wheelz App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any express warranty will be the sole responsibility of Wheelz.
5. Product Claims.
You and Wheelz acknowledge that Wheelz, not Apple, is responsible for addressing any claims made by you or any third party relating to the Wheelz App or your possession and/or use of the Wheelz App, including, but not limited to: (a) product liability claims; (b) any claim that the Wheelz App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under any consumer protection or similar legislation.
6. Intellectual Property Rights.
You and Wheelz acknowledge that, in the event of any third party claim that the Wheelz App or your possession and use of the Wheelz App infringes that third party’s intellectual property rights, Wheelz, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
7. Legal Compliance.
You represent and warrant that: (a) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (b) you are not listed on any U.S. Government list of prohibited or restricted parties.
8. Developer Name and Address.
All notices, consent and other communications required or permitted to be given under the TOS will be in writing and will be deemed to have been duly given if and when delivered personally, or via first class certified mail, or sent by a nationally recognized courier service. Notice shall be sent to you at the address listed in your Wheelz profile page. Notice shall be sent to Wheelz at the following address:
151 10th Street
San Francisco, CA 94103
9. Third Party Beneficiary.
You and Wheelz acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Section III of the TOS, and that upon your acceptance of the TOS by downloading and using the Wheelz App, Apple will have the right (and will be deemed to have accepted the right) to enforce this Section II of the TOS against you as a third party beneficiary thereof.
IV. Additional Terms for Owners
Owner agrees to make one or more Vehicles available to Wheelz for use by Drivers, in each instance, for the entire duration of the applicable Usage Periods. During the Usage Period, the Vehicle is and shall at all times be and remain the sole and exclusive property of Owner. Wheelz shall have no rights of ownership, title, or possession of the Vehicle, except as expressly set forth in the TOS, or as otherwise provided under California law. Except as otherwise permitted by Owner in the TOS or as otherwise set forth in the TOS, neither Wheelz nor its Members shall make any alterations, additions or improvements to any Vehicle without Owner’s prior written consent.
2. Vehicle Use.
In connection with the registration of your Vehicle, you will be directed by Wheelz to an automotive service center for the purpose of installing the equipment to enable the rental and tracking of the Vehicle (the “Device”). Wheelz will use commercially reasonable efforts to ensure that the Device will not damage the Vehicle and Wheelz agrees to provide for the removal of the Device by an automotive service center upon the termination of your relationship with Wheelz. Owner agrees (a) not to move, adjust or otherwise tamper with the Device during the period of your relationship with Wheelz, (b) to report any damage to the Device to Wheelz and (c) to deliver the Vehicle to the automotive service center appointed by Wheelz for removal of the Device upon termination.
3. Member's Pick Up of Vehicle
On your Wheelz profile page, you shall have the ability to set the times during which you make the Vehicle available for rental, and to specify the location where the Vehicle shall be kept (“Home Zone”). During the times when such Vehicle is made available, Owner shall ensure that the Vehicle is kept within the Home Zone. Owner agrees that the Home Zone shall be a location within the State of California.
4. Wheelz Rights
During your relationship with Wheelz, you acknowledge that Wheelz may require that certain equipment, labels or other markings, including without limitation the Device (“Wheelz Equipment”) shall, at Wheelz’s expense, be affixed to and remain on the Vehicle. Wheelz shall have the right to enter the Vehicle for the purpose of inspecting the Wheelz Equipment. Upon the termination of your relationship with Wheelz, Wheelz shall remove all decals and Wheelz Equipment from the Vehicle.
5. Usage Fee
As rental for the use of each Vehicle, Wheelz shall pay Owner the amount collected from the Drivers based on the Usage rate set by Wheelz, less the applicable fees due Wheelz, as outlined on the website (the “Fee Schedule”), together with any sales and use tax thereon as posted on the Fee Schedule. The Fee Schedule may be adjusted from time to time by Wheelz and the amounts payable to Owner shall be based on the Fee Schedule posted at the time the usage occurs. All payments accrued to Owner shall be payable within thirty (30) days after the end of each Month. The usage payment may be subject to set off, deduction, or credit, for amounts or obligations due or owing from you to Wheelz, including but not limited to penalties, indemnity obligations, or breach of warranties.
6. Event Reporting
Wheelz agrees that, at the end of each Usage Period the Vehicle shall be surrendered to Owner in good repair, condition and working order, ordinary wear and tear resulting from proper use thereof alone excepted. Nothing in the TOS limits your obligation as the Owner of the Vehicle to regularly check for any defects in the operations or safety of the Vehicle, and inspect and maintain the Vehicle as described in the TOS. After each Usage Period, Owner shall be responsible for reporting any damage to the Vehicle promptly upon becoming aware of such damage. Failure to report damage promptly may result in Owner’s responsibility for such damage. Upon reporting such damage, Wheelz or its agents shall be responsible for determining, in its reasonable judgment, whether the damage occurred during a Usage Period. As part of this determination and as a condition to receiving reimbursement for any damages incurred, Owner shall cooperate and provide such information as reasonably requested by the Wheelz, its insurers and/or their respective agents.
V. Additional Terms for Drivers
1. Member Driving Eligibility
You understand that Wheelz’ acceptance of your application to become a Driver and subsequent activation of that Driver status are subject to your payment of any applicable application fees. You also understand that your eligibility to participate in the Service is subject to review of your official driving record and credit history. By registering as a Driver and accepting the TOS, you authorize Wheelz and its agents to review your driving record and other background information Wheelz deems relevant to your participation in the Service. You understand that Wheelz, its agents and insurers may retain this information regardless of whether your application is approved. Failure to disclose vehicle-related violations or accidents will cause automatic rejection of your application to become a Driver. You understand that the TOS applies to your application as a Driver and your use of the Vehicles offered in the Service.
2. Member Driver Benefits
As an approved Wheelz Driver, you may use Vehicles provided by participating Wheelz Owners, subject to your compliance with all terms and conditions of the TOS. Wheelz will require Owners to ensure that Vehicles are clean, reliable, well maintained, and periodically inspected.
3. Driver Payment Obligations
You will be responsible for paying and hereby agree to pay any and all fees when they come due in connection with your use of and participation in the Service, including but not limited to your use of any Vehicles. By clicking the “I Accept and Agree” box on the applicable registration pages, you authorize Wheelz to charge your credit card for all charges, including but not limited to, usage fees, fines/penalties, deductibles and damages.
4. Proper Treatment and Use of Vehicle; Initial Inspection
As a Driver, you must agree to treat the Vehicles with respect, just as any reasonable person would with their own property. Prior to use of any Vehicle during the Usage Period, you shall complete a visual inspection of the Vehicle. If any damages noted during the initial inspection affect the drivability or safety of the Vehicle, you agree not to drive the Vehicle and to contact Wheelz immediately. Failure to note any damages existing at the time you begin the Usage Period may result in your responsibility for such damage. You shall wear seatbelts at all times during operation of a Wheelz Vehicle and shall require that all passengers wear seatbelts when the Vehicle is in use. You shall also properly install car seats in the Vehicle if you are traveling with any infants, toddlers or young children under the state-mandated weight limit for use of seat belt. You are responsible for the costs relating to paying or disputing any citations and fines (for example, toll violations, parking tickets, towing fines, and moving violations, including moving violations recorded by traffic cameras) incurred during the Usage Period. You are also responsible for the costs relating to paying or disputing any citations and fines immediately following the Usage Period (before the Owner or the next Driver uses the car) if the Vehicle has not been parked in an authorized and legal parking space and/or has been parked in an improper manner. In addition to the terms of the TOS, see the Wheelz website for additional resources about the proper use of Vehicles.
5. Accident Reporting
Wheelz membership includes coverage for certain collision damage to Vehicles occurring during the Usage Period only and driven by you for a personal, non-commercial purpose, in a lawful, safe and prudent manner, in accordance with the TOS. Any accident or damage in connection with the Vehicle you are using must be immediately reported to Wheelz by calling 1-855-4-WHEELZ (855-494-3359) and to the police. In the event of such accident or damage, you shall use all reasonable efforts to secure evidence from any available witnesses, and to provide Wheelz with a written description of the accident, including but not limited to how, when and where the accident occurred; the other drivers’ names and addresses; and, to the extent possible, the names and addresses of any injured persons; and the damage or injury incurred. A copy of the police report must be turned in to Wheelz. You are also required to cooperate in any loss investigation conducted by Wheelz or our insurer. Failure to follow these procedures may result in a denial of coverage under Wheelz’ insurance policy. After an accident, you may continue your trip only with the explicit permission from Wheelz staff.
6. Safety Issues
If at any time during the Usage Period you notice anything affecting the driveability or safety of the Vehicle, you agree not to drive the Vehicle and to contact Wheelz immediately.
7. Parking and Traffic Violations
Parking and all other traffic violations are your responsibility. Wheelz and the applicable Owner of the Vehicle are not liable. You will be reported to appropriate governmental authorities and/or contacted regarding any and all unpaid violations.
8. Prohibited Use of Vehicle
Any misuse of a Vehicle will be grounds for fines, suspension, and/or immediate termination of your Membership status with Wheelz. You agree to the following list of prohibited Vehicle uses and/or activities:
- Permitting someone who is not an approved and active Wheelz Member to drive a Vehicle.
- Making any alterations, additions or improvements to any Vehicle.
- Using a Vehicle in any race, speed contest, test, or competition, whether organized or otherwise.
- Using a Vehicle in a careless or negligent manner.
- Using a Vehicle for a commercial purpose, including to carry persons or property for hire (e.g., taxi or parcel delivery service). You may, however, use the Vehicle for business purposes, such as attending meetings and carrying associated materials.
- Transporting any flammable, toxic, volatile, or poisonous substances or materials, hazardous waste, biohazards, or illegal substances.
- Transporting a pet outside of a pet carrier that keeps all hair and feces inside.
- Using a Vehicle for any illegal purpose.
- Using the Vehicle to facilitate or aid in the commission of a felony.
- Using the Vehicle to transport any fugitive.
- Transporting any firearms.
- Using a Vehicle while you are under the influence of any intoxicating substance.
- Using a Vehicle on unpaved roads. You may use a Vehicle on unpaved driveways, service or access roads for the sole purpose of reaching your destination, provided (1) the unpaved roads are even and safe; and (2) you drive on the unpaved roads at a reduced rate of speed to avoid damage to the Vehicle.
- Fueling a Vehicle with improper type of fuel.
- Using a Vehicle when it has been loaded beyond its rated capacity or with more passengers than the Vehicle has operable seatbelts.
- Using a Vehicle outside the States of California or Nevada.
- Using a Vehicle to tow or push anything.
- Using a Vehicle unless a reservation has been made for a Usage Period. Using Vehicles without reservations or outside of your Usage Period constitutes unauthorized use.
- Using a Vehicle without a valid license. It is your responsibility to inform us when your license is expired or suspended.
If you violate any of the above-mentioned rules or otherwise use the Vehicle(s) in an unauthorized manner or in a manner that is inconsistent with the TOS you will be subject to fines and other fees and charges according to the fee schedule found on the Wheelz website, your Wheelz Membership may be terminated immediately, and Wheelz reserves the right to notify law enforcement authorities that Vehicle has been stolen or used for an illegal purposes. You release and discharge Wheelz, the Wheelz Parties and the applicable Owner of the Vehicle from, and indemnify, defend and hold harmless Wheelz and the Wheelz Parties from and against any liability arising from such notice.
Updated: November 8, 2012