Terms of Service
Last updated: January 8, 2023
Important notice
This agreement contains a binding arbitration provision and class action waiver. It affects your legal rights as detailed in the arbitration and class action waiver section below. Please read carefully.
Please note that your use of and access to the services (defined below), including any access to Metropolis locations (defined below) are subject to the following terms. If you do not agree to all of the following terms, you may not use or access the services in any manner.
1. Agreement to Terms
These Terms of Service (the "Terms") are a binding legal agreement between you and Metropolis Technologies, Inc. ("Metropolis", "we", "us" or "our"). The terms "user," "you" and "your" refer to the individual or entity that uses the websites, applications, and other online products and services provided by us and online and offline services related thereto, including physical locations where our technology is used, and including any services, transactions, or engagement you might have with us (collectively, the "Services"). By using our Services, whether as a digital user accessing the online aspects of the Services (either directly or through a third-party platform) or as a visitor to one of our or our customers' or business partners' physical locations (a "Metropolis Location"), you agree to be bound by these Terms. If you don't agree to be bound by these Terms, do not use or access the Services, including any Metropolis Location. If you use the Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and "you" and "your" herein shall refer to that entity, its directors, officers, employees, and agents.
2. Privacy Policy
Please refer to our Privacy Policy for information on how we collect, use, and share your information. You acknowledge and agree that your use of the Services is subject to our Privacy Policy.
3. Changes to these Terms or the Services
Except for Section 17, providing for binding arbitration and waiver of class action rights, Metropolis reserves the right, at its reasonable and sole discretion, to modify or replace these Terms at any time. You are responsible for reviewing and becoming familiar with any such modifications. Changes will be effective immediately unless otherwise provided. If we determine a revision to the Terms, in our sole discretion, is material, we will notify you as required by law. Use of the Services by you after any modification to the Terms constitutes your acceptance of the Terms as modified. If you do not accept the changes, you must discontinue using the Services.
Metropolis reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, the Services or any part thereof, with or without notice. Except for payments or refunds expressly available to you under these Terms (or as required by law), you agree that Metropolis shall not be liable to you for any modification, suspension, or discontinuance of the Services.
4. Who May Use the Services?
A. Eligibility
You may use the Services only if you are at least 16 years of age, and not otherwise barred from using the Services under applicable law. Specific features or aspects of the Services may have a different age limit. By using the Services, you represent and warrant that you (or your parent or legal guardian, as required by applicable law if you are unable to form a binding contract) have reviewed and agreed to these Terms. Parents and guardians are responsible for the acts of their children when using our Services.
B. Types of Accounts
For certain features of the Services, you'll need an account ("Account"). When you create an Account, your Account status will depend on the information you provide to us.For example, a "Standard Account" allows users to access and use certain features of the Services, such as certain parking related-services, mobility-related Services, and ancillary Services (e.g., vehicle recall and deployment, vehicle cleaning or package delivery). By providing Payment Information (as defined below) to us via the functionality of the Services, your Standard Account will automatically upgrade to a "Member Account," and you may access certain additional Services, such as subscription-based parking and seamless access and payment. Available Services may vary from location to location.
C. Registration and Your Information
In connection with creating an Account, you may be required to submit certain personal information, including without limitation, your name, email address, mobile phone number, vehicle information, and/or valid Payment Information (as defined below). You agree to provide accurate, current, and complete information that does not infringe on the rights of any third party, and to update all information you provide to keep it accurate, current, and complete. You are solely responsible for safeguarding your Account password and for all activity that occurs on your Account, and you will notify Metropolis immediately of any unauthorized use of your Account. We are not liable for any losses by any party caused by an unauthorized use of your Account. You agree to comply with all billing procedures, including, as applicable, providing and maintaining accurate and lawful Payment Information for your Account. Unless otherwise explicitly permitted by Metropolis, you may only possess one Account. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree that the sole and specific purpose of registering an Account is to make use of the Services.
D. Verification of Identity.
In certain instances, such as at a Metropolis Location, you may be asked to provide proof of identity to access or use the Services. You agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
5. Feedback
By sending us any feedback, comments, questions, or suggestions concerning Metropolis or the Services (collectively "Feedback"), you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against Metropolis and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account, these Terms, or your participation in the Services.
6. Guest Payments and Subscription
Metropolis requires payment for use of the Services (or certain portions thereof). By using our Services, you agree to the pricing, payment, and billing policies posted or otherwise communicated to you. You have the option of making a guest payment ("Guest Payment") or purchasing a subscription ("Subscription") for such use. Special pricing and/or eligibility terms may apply to certain offers and Subscriptions.
A. General
Whether you make a Guest Payment or purchase a Subscription (each, a "Transaction"), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction and future Transactions via the payment features of the Services. We may ask you to supply additional information relevant to your Transaction, including your credit card number(s), the expiration date of your credit card(s) and your email and postal addresses for billing and notification (such information, "Payment Information"). We (or our third-party payment processor) may authorize charges using your Payment Information in anticipation of Subscription or other Service-related payments in advance. In some instances, your available balance or credit limit may be reduced to reflect the authorization. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars. For certain Payment Information, the issuer of the payment method may charge you certain additional fees (e.g., foreign transaction fees or processing fees). You will be solely responsible for such fees. You remain responsible for any amounts we are unable to collect for your use of the Services.
B. Service Fee
Each Transaction is subject to a fee (each a "Service Fee"). Service Fees are charged in connection with each Transaction and are calculated based on a formula specific to the Services. The application of a Service Fee and the rate is set by Metropolis in its sole discretion.
C. Subscriptions and Renewal
For certain features of the Services you'll need a Subscription. If you purchase a Subscription, you will be charged the Subscription fee for the applicable Subscription period, plus any applicable taxes, and other charges ("Subscription Fee"), at the beginning of your Subscription and automatically at the beginning of each subsequent Subscription period commencing thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE METROPOLIS TO AUTOMATICALLY INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. Your Subscription will automatically continue at the selected interval, and we (or our third-party payment processor) will automatically charge at the beginning of each new Subscription period commencing after the initial Subscription period for your Subscription, using the Payment Information you have provided, unless prior to the end of the current subscription period: (a) you terminate your Account; (b) you cancel your Subscription (as described below); (c) we decline to renew your Subscription; or (d) these Terms are otherwise properly terminated as expressly permitted herein. We may receive updated credit card information (new credit card number or updated expiration date) from your credit card issuer. We may use these new details in order to help prevent any interruption to the Services. If you would like to use a different payment method or if there is a change in payment method, please visit the settings area of your Account to update your billing information. Subscriptions may include additional terms and conditions as may be described at the time of purchase or in other communications we send to you. The Subscription Fee is non-refundable except as expressly set forth in these Terms or in accordance with applicable law. If any Subscription Fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel or terminate your access to the Services or cancel your Subscription. You will be responsible for paying all past due amounts.
D. Cancelling a Subscription
All sales are final. Metropolis may consider refund requests on a case-by-case basis, and decisions on whether to grant a refund request are in the sole discretion of Metropolis. If we issue a refund, credit, or discount, we are under no obligation to issue the same or similar refund in the future. EXCEPT AS EXPRESSLY PROVIDED HEREIN, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE AT ANY TIME UNLESS REQUIRED BY LAW. You may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period and you cancel only future charges associated with your Subscription. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN-CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION UNLESS REQUIRED BY LAW. To cancel, you can send an email to help@metropolis.io or use the functionality provided in the Services, for example by accessing the relevant active plan in your Account and confirming cancellation of your Subscription. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then-current Subscription period (unless we provide you with a refund or otherwise allow you to use the unused portion towards another service or subscription) and will then terminate without further charges. Please note, if you signed up for your Subscription or provided Payment Information through a third party, you may need to cancel your Subscription through that third party.
E. Termination of your Subscription
We may terminate your Subscription at our sole discretion and without any notice. If we cancel your Subscription, we may give you a prorated refund based on the amount of time remaining that you cannot use, provided, however, that we will not be obligated to grant you a refund if we terminate your Account or your Subscription because we determine, in our sole discretion, that your actions or your use of the Services violates these Terms or any applicable law or has harmed another user.
F. Changes to the Subscription
We may change the Subscription terms or Subscription Fees at any time on a going forward basis in our discretion. If the pricing for your Subscription increases, we will notify you, and provide you an opportunity to change your Subscription before applying those changes to your Account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove benefits and features from a Subscription. Your continued use of the Services after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue subscribing with the new fees or features, you may cancel your Subscription. If you accept the new Subscription, its terms and conditions will apply for that renewal and all renewals going forward.
7. Content
A. User Content
Content such as video, audio, images, information, text (in posts or communications with us or others), and other materials that you post or otherwise make available (including via entry into a Metropolis Location) through the Services, including content you make available for initiation of support requests or as submissions to enter contests or promotions, is referred to as "User Content". Metropolis does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
B. Permissions to Your User Content
By making any User Content available through the Services, you hereby grant to Metropolis a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in all formats and distribution channels now known or hereafter devised (including in connection with operating, providing, improving, updating, analyzing, marketing and promoting the Services and in connection with third-party operators of Mobility Resources and other third party partners). This license shall survive termination of the Services, these Terms, or your Account. Metropolis does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit your User Content.
C. Your Responsibility for User Content
You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your provision of User Content to be made available through the Services, nor any use of your User Content by Metropolis on or through the Services will infringe, misappropriate, or violate a third party's intellectual property rights or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
D. Removal of User Content
The functionality of the Services may give you the ability to remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
8. Application License
Subject to your compliance with these Terms, Metropolis grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the Metropolis mobile or desktop application (the "App") on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend, or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
If you have downloaded the App, you agree to promptly download and install any new version that we make available through the iTunes App Store or Google Play store, as applicable. Some new versions may contain updated Terms. Some new versions may contain security fixes and service improvements, whether or not we disclose that they do; accordingly, failure to promptly update your version of the App may in some cases expose you to increased security risks or App malfunctions.
9. General Prohibitions and Metropolis’ Enforcement rights
You agree you will not use the Services for a purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by Metropolis. By way of example, and not as a limitation, you agree not to do any of the following:
A. Post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates, or violates a third party's patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
B. In connection with your access to or use of the Services, cause a nuisance, annoyance, or inconvenience, or take actions that result in property damage, whether to a Metropolis Location, a Mobility Resource or any third party;
C. Use, display, copy, modify, distribute, license, lease, sell, resell, transfer, perform, transmit, stream, broadcast, mirror, frame, or otherwise exploit the Services or any individual element within the Services, Metropolis's name, any Metropolis trademark, logo or other proprietary information, or the layout and design of any webpage or form contained on a webpage, without Metropolis's express written consent;
D. Access, tamper with, or use non-public areas of the Services, Metropolis's computer systems, Metropolis Locations, or the technical delivery systems of Metropolis's providers;
E. Attempt to probe, scan, or test the vulnerability of any Metropolis system or network, or breach any security or authentication measures;
F. Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by Metropolis or any of Metropolis's providers or any other third party to protect the Services;
G. Scrape, access, monitor, index, frame, link, or copy any content on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or using any method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any approved mobile application, application programming interface, or client application;
H. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
I. Use any meta tags or other hidden text or metadata utilizing a Metropolis trademark, logo URL or product name without Metropolis's express written consent;
J. Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
K. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information;
L. Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services;
M. Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
N. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
O. Create multiple Accounts;
P. Use another user's Account to access the Services;
Q. Impersonate or misrepresent your affiliation with any person or entity;
R. Falsely imply Metropolis's endorsement or partnership, or otherwise mislead others as to your affiliation with Metropolis;
S. Access the Services or content in order to build a similar or competitive website, product, or service;
T. Violate any applicable law or regulation; or
U. Encourage or enable any other individual to do any of the foregoing.
Metropolis is not obligated to monitor access to or use of the Services or to review or edit any User Content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. Metropolis further reserves the right to report unlawful activity to law enforcement or other regulatory authorities.
10. SMS Terms
By registering for the Services, you consent to receive communications from us, which may include calls and text messages to the cellular telephone number you provide to us. Depending on your relationship with us and consents received, we or our service providers send text messages to: (1) provide you with information you requested from us; (2) update you regarding your orders and other transactions with us; (3) respond to your customer service requests and other inquiries regarding your use of our services; and/or send you marketing or promotional text messages.
Any text messages we send to you are subject to the SMS Terms set forth in this section.
A. E-SIGN Disclosure
By agreeing to these SMS Terms, you also consent to the use of an electronic record to document your agreement. You may withdraw your consent to the use of the electronic record by emailing Metropolis at privacy@metropolis.io "Revoke SMS Electronic Consent" in the subject line.
To view and retain a copy of this disclosure or any information regarding your enrollment in this program, you will need (i) a device (such as a computer or mobile phone) with a web browser and Internet access and (ii) either a printer or storage space on such device. For a free paper copy, or to update our records of your contact information, email Metropolis at privacy@metropolis.io your contact information and the address for delivery.
B. Consent to Receipt of Metropolis Text Messages
You may provide us with consent to send you text messages through our website or mobile application (e.g. by providing us with your phone number and signing up for text messages) or through communications or transactions with us (e.g. by initiating or agreeing to receive text message communications with customer service). By providing your consent, you agree to these SMS Terms, our Terms of Service, and our Privacy Policy.
By consenting to receive Metropolis text messages, you agree that Metropolis or its service providers may use any automated or non-automated technology to send you transactional and/or marketing text messages. You are not required to consent to marketing text messages as a condition of purchase.
Metropolis may terminate any text messaging services or your participation in our text message program at any time with or without notice, including, for example, before you have received any or all messages that you otherwise would have received, but these SMS Terms will still apply.
C. Costs of Metropolis Text Messages
Metropolis does not charge you for our text message program. But message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.
D. Frequency of Text Messages
We may send you one or more welcome messages or administrative messages, such as (in some cases), a request to confirm your opt-in. After that, you will receive recurring text messages, and the specific amount may vary depending on how you use our services (e.g. if you communicate with us through SMS, or if you send a HELP request).
E. Participating Carriers
Metropolis text messages are supported on all U.S. carriers. Please note, however, that the supporting mobile carriers may change without notice, and the particular text message program you join may be limited to specific carriers. Metropolis and the mobile carriers (for example, Verizon, AT&T and T-Mobile) are not liable for delayed or undelivered messages.
F. Eligibility
By consenting to receive Metropolis text messages, you represent that you are 16 years of age or older and understand the obligations and agree to the terms set forth in these SMS Terms. You further represent that you are the subscriber of the cellular service at the mobile number provided or that you are authorized by the subscriber to sign-up for texts.
G. Opting Out of Metropolis Text Messages
To opt out of text messages, you must text STOP to that number. Text HELP to that number for help. After doing so, we may send you confirmation of your opt-out via text message. You further agree that texting STOP in response to our text message is the only reasonable method of opting out of our text messages. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than "STOP" or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
If you have revoked consent and want to re-enroll in our text message program, you can re-enroll by texting START.
H. Modifications to these SMS Terms
We reserve the right to modify these SMS Terms, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your continued enrollment in Metropolis' text messaging program shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.
11. Third Parties
A. Links to Third-Party Websites or Resources
The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products, or services on or available from those resources or any links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party resources.
B. Mobility Resources
The Services may allow you to access a number of mobility and hospitality facilities and tools at Metropolis Locations, including, without limitation, garages, parking lots, valet operations, hospitality lounges, car cleaning or repair services, refueling and/or vehicle charging services, ride-share platforms, carpool programs, restrooms, vending machines, convenience stores, and rentals for bikes, scooters and/or other vehicles (collectively "Mobility Resources"). Mobility Resources may be operated by us or by third-party operators, including without limitation, any valet service providers, event or other venues organizers and partners, distributors of the Services, other entities with whom we have a co-branding relationship, companies or entities for whom we provide our software or Services, entities for whom we provide parking management services, educational institutions, governmental agencies, municipalities, our affiliates, and any other entities or companies for whom we provide our Services as a service provider. Third parties may promote Mobility Resources and Services in conjunction with their own products and services. There may be additional terms governing your use of the Mobility Resources with such third-party products and services. You acknowledge sole responsibility for and assume all risk arising from your use of any Mobility Resources and acknowledge and agree that any Mobility Resources accessible in connection with the Services are, as between Metropolis and you, provided solely on an "AS IS" basis without warranty of any kind. Specifically, you agree that the Terms are not an agreement between you and any third party, but are an agreement between you and us, even if the Services or the Mobility Resources are accessed through a third-party website or app.
C. Access to Services
If you access our Services through a third-party platform, that third-party platform, and not us, shall be responsible for your use of the Services and your rights to use the Services shall be limited solely to those provided under your agreement with such third party.
12. Termination
We may terminate your access to and use of the Services, at our sole discretion, at any time and with or without notice to you. Subject to Section [6d] herein, you may cancel your Account at any time by sending us an email at help@metropolis.io. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: [2] (Privacy Policy), [5] (Feedback); [6] (Guest Payments and Subscription), [7] (Content), [9] (General Prohibitions and Metropolis's Enforcement Rights), [12] (Termination), [13] (Disclaimers), [14] (Representations; Release and Indemnity), [15] (Limitation of Liability), [16] (Governing Law and Forum Choice), [17] (Arbitration and Class Action Waiver), [18] (General Terms), and any other provisions that are necessary to effectuate those sections.
13. Disclaimers
A. The services, mobility resources, and metropolis locations are provided "as is," without warranty of any kind. Without limiting the foregoing, we explicitly disclaim any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, and any warranties arising out of course of dealing or usage of trade. We make no warranty that the services, mobility resources, or metropolis locations will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any information or content on or available in connection with the services, mobility resources, or metropolis locations. The performance of the services can vary due to several factors, including without limitation: specific mobile device limitations and capabilities; mobile device service provider or network limitations and capabilities; mobile device multi-tasking; mobile device memory; gps "lock" time, availability, and accuracy; mobile device settings; internet availability; messaging opt outs; and services availability, operability, or errors. Metropolis makes no representations or warranties with respect to the performance, operability, or availability of the services or mobility resources.
B. You explicitly agree that your use of the Services, Mobility Resources, and Metropolis Locations is at your own and sole risk. You park at your own risk and are solely responsible for all aspects of your parking at and access to the Metropolis Locations and Mobility Resources. You are responsible for determining your own safety and the safety of your vehicle and any articles left in your vehicle at any Metropolis Location. We are not responsible for damage to your vehicle, loss of your vehicle, or loss of articles left in your vehicle or for any personal injury in any circumstances, including, without limitation: fire, weather, or other act of God; theft or other criminal activity of any kind; mechanical defects; accidents; or your use of the Services, whether in motion or at rest. We are not responsible for any Penalties you incur or receive, even if the Services were used in connection with a Transaction. "Penalty" means any penalty, parking fine, ticket, summons, or citation; your vehicle being wheel booted, towed, or impounded; and/or other methods of enforcing any notices, signs, rules, or directions provided by relevant government authorities; traffic attendants; third-party operators of Mobility Resources or other authorized people or entities (collectively, "authorities"), including, without limitation, enforcement of rules relating to spaces or zones designated as "no parking," "emergency," "tow-away," "handicapped," "reserved" and the like, time or day limitations and vehicle size limitations. You are solely responsible for resolving with the relevant authorities any issues that you may have regarding Penalties.
C. The content made available on or through any Services should not be relied upon when making financial decisions about any Mobility Resource. Metropolis is not responsible for price inaccuracies relating to any Mobility Resource.
D. Your sole and exclusive remedy for any breach by us of any term or condition set forth in these Terms is to cease using the Services, un-install the App, and terminate your Account.
14. Representation; Release and Indemnity
A. You represent and warrant that you are authorized, and possess all applicable permits, licenses and approvals required under applicable laws, rules, and regulations to operate the vehicle(s) with which you are accessing any Services, Mobility Resources, or Metropolis Locations.
B. To the extent permitted by law and in consideration of being allowed to use the Services, you hereby waive any and all claims, disputes, actions, demands, damages, losses, costs and expenses (including, without limitation, reasonable legal and accounting fees), and liabilities (collectively, "Claims") which you or your heirs and next of kin may now or hereafter have or claim against Metropolis and/or its affiliates and its and their respective officers, directors, shareholders, agents, partners and employees (collectively, "Releasees"), for any and all loss, theft or damage to property and for injuries, illness, disease, or death to your person occurring in, upon or about, or connected with or arising out of any use of or other activity at the Services, Mobility Resources, or Metropolis Locations, including, without limitation, any activity relating to services and/or advice of any third-party operator of Mobility Resources, independent contractor, or employee, whether caused by active or passive negligence of Releasees or otherwise ("Release"). You hereby assume the risk of all mistakes of fact or law with regard to entering into this Release. You understand, acknowledge, and agree that if any fact now or at the time of the Claim believed to be true is found hereafter to be other than, or different from, that which is now believed, you expressly assume the risk of such difference in fact and agree that this Release shall and will remain effective notwithstanding any such difference in fact. You further represent and warrant that you understand that (a) you may have sustained damages, expenses and losses based upon, attributable to, arising out of, in connection with or in any way related to the subject matter of the Claims which are presently unknown or not suspected and that such damages, expenses and losses, if any, may give rise to additional damages, expenses and losses in the future which are not now or at the time of the Claim anticipated by you and (b) that this Release has been agreed upon despite this realization. Being fully advised regarding the foregoing, you voluntarily and with full knowledge of its significance, expressly waive and relinquishes any and all rights you may have under any state or federal statute, rule or common law principle, in law or equity, relating to limitations on releases, including, but not limited to, § 1542 of the California Civil Code (or any other similar law in any jurisdiction) which would limit the effect of the foregoing release to those Claims actually known or suspected to exist at the time of the effectiveness of the foregoing release. California Civil Code § 1542 provides:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
It is your intention, for yourself and for your past, present and future spouses, heirs, next of kin, guardians, beneficiaries, legal representatives, executors, administrators, successors and assigns (as well as their respective spouses, heirs, next of kin, guardians, beneficiaries, legal representatives, executors, administrators, successors and assigns) that, notwithstanding the possibility that they or their counsel could discover or gain a more complete understanding of the facts, events or law which, if presently or at the time of the Claim known or fully understood, would have affected the foregoing release, this Release shall be deemed to have fully, finally and forever settled any and all Claims, without regard to the subsequent discovery or existence of different or additional facts, events or law and that this Release shall be effective as a full and final accord and satisfaction and mutual general release of and from all released matters.
You agree to indemnify, defend, and hold harmless Releases from and against any Claims out of or in any way connected with (a) your access to or use of the Services, Mobility Resources, or Metropolis Locations; (b) your User Content; (c) your violation of these Terms; or (d) your negligent act or omission or willful misconduct occurring at or in connection with any Services, Mobility Resources, or Metropolis Locations. Metropolis reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with Metropolis in the defense of such matter.
You understand and acknowledge that Metropolis is not obliged to carry insurance on you, and the existence of insurance shall not change, alter, or increase any liability of Metropolis or affect the terms of this release, waiver of liability and indemnification under this Section [14(b)].
15. Limitation of Liability
A. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER METROPOLIS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT METROPOLIS OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
B. TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL METROPOLIS'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO METROPOLIS FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO METROPOLIS, AS APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
C. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN METROPOLIS AND YOU.
16. Governing Law and Forum Choice
For any dispute not subject to arbitration or under the jurisdiction of a small claims court, you and Metropolis agree to submit to the personal and exclusive jurisdiction of any venue in the state and federal courts located in Los Angeles County, California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available. The Terms and the relationship between you and Metropolis shall be governed by the laws of the State of California without regard to conflict of law provisions.
17. Arbitration and Class Action Waiver
PLEASE READ THIS SECTION CAREFULLY — IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
If you have a dispute with Metropolis or if Metropolis has a dispute with you and such dispute cannot be resolved informally, such dispute will be resolved on an individual basis in accordance with the provisions set forth below:
A. Initial Dispute Resolution
The parties shall use their best efforts to engage in informal dispute resolution to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration. To adequately engage in this initial dispute resolution process, each party must notify the other party, in writing, of the facts of the dispute and all damages claimed. Such a writing must be sent to (a) the user's email address on file with Metropolis, or (b) help@metropolis.io, whichever is applicable ("Dispute Notification"). The party receiving the Dispute Notification has thirty (30) days from receipt of the Dispute Notification to respond. The other party then has 15 days to reply to the response.
B. Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 45 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. This agreement to arbitrate is a contract governed by the Federal Arbitration Act, 9 U.S.C. section 1, et seq., and evidences a transaction involving commerce. Specifically, all claims arising out of or relating to these Terms (including their formation, performance, and breach), the parties' relationship with each other, and/or your use of the Services and any services made available through the Services shall be finally settled by binding arbitration administered by JAMS in accordance with the provisions of its Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class or representative actions and except that each party will be permitted at least one deposition unless forbidden by JAMS. If for any reason JAMS is unable to administer arbitration, either party may apply to a court to appoint an arbitrator pursuant to 9 U.S.C. section 5.
Except as explicitly set forth in this Section [17], the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment of JAMS administrative or arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall also be empowered to consolidate claims raised between the same parties to a single arbitration proceeding. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute. The arbitrator's award shall be written and binding on the parties and may be entered as a judgment in any court of competent jurisdiction. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration.
The Streamlined Arbitration Rules governing the arbitration may be accessed at www.jamsadr.com or by calling JAMS at (800) 352-5267. If you commence arbitration in accordance with these Terms, you will be required to pay $250 to initiate the arbitration. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, the arbitrator may require Metropolis to pay the additional cost. You are responsible for your own attorneys' fees unless the arbitration rules and/or applicable law provide otherwise. If the arbitrator finds the arbitration to be non-frivolous, Metropolis will pay the remaining filing and arbitrator fees for the arbitration, provided your claim does not exceed $75,000. For claims above $75,000, fees and costs will be determined in accordance with applicable JAMS rules. The arbitration rules permit you to recover attorney's fees in certain cases.
Any arbitration demand or counterclaim asserted by either party must contain sufficient information to provide fair notice to the other party of the asserting party's identity, the claims being asserted, and the factual allegations on which they are based. The arbitrator and/or JAMS may require amendment of any demand or counterclaim that does not satisfy these requirements. The arbitrator has the right to impose sanctions in accordance with JAMS Rule 24 for any claims the arbitrator determines to be frivolous or improper (under the standard set forth in Federal Rule of Civil Procedure 11).
The parties agree that JAMS has discretion to modify the amount or timing of any administrative or arbitration fees due under JAMS's Rules where it deems appropriate, provided that such modification does not increase the costs to you, and you waive any objection to such fee modification. The parties also agree that a good-faith challenge by either party to the fees imposed by JAMS does not constitute a default, waiver, or breach of this Section [17] while such challenge remains pending before JAMS, the arbitrator, and/or a court of competent jurisdiction.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
C. Location
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. You and Metropolis agree to submit to the personal jurisdiction of any federal or state court in Los Angeles County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
D. Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND METROPOLIS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Notwithstanding any other provision of these terms, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. If there is a final judicial determination that applicable law precludes enforcement of this paragraph's limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
E. Exception - Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court's jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party's right to arbitration under this agreement.
F. 30-Day Right to Opt Out
You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt-out to the following email address: help@metropolis.io. The notice must be sent within 30 days of October 1, 2022 or your first use of the Services, whichever is later, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt-out of these arbitration provisions, Metropolis also will not be bound by them.
G. Changes to this Section.
Metropolis will provide 30 days' notice of any changes affecting the substance of this Section [17]. Changes will become effective on the 30th day. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which Metropolis does not have actual notice are subject to the revised clause
18. General Terms
A. Customer Support
To find more information about our Services, or if you need assistance with your Account, please visit the Metropolis Help Center, located at https://app.metropolis.io/help. In certain instances, customer service may best be able to assist you by using a remote access support tool through which we have full access to your computer. If you do not want us to have this access, you should not consent to support through the remote access tool, and we will assist you through other means. In the event of any conflict between these Terms and information provided by customer service or other portions of our website, these Terms will control.
B. Reservation of Rights
Metropolis and its licensors exclusively own all right, title, and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the explicit limited license granted in these Terms; or (ii) to use or reference in any manner company names, logos, product or service names, trademarks, or service marks of Metropolis or its licensors.
C. Entire Agreement
These Terms (and any additional terms, contracts, rules, and conditions that Metropolis may post through the Services), the Privacy Policy, and, if applicable, the Enterprise Agreement, Validation Agreement or other license agreements constitute the entire and exclusive understanding and agreement between Metropolis and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Metropolis and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.
D. Assignment.
You may not assign or transfer these Terms, by operation of law or otherwise, without Metropolis's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Metropolis may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
E. Notices.
Metropolis may give notice by any means of communication reasonably anticipated to notify you of the information provided. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. By way of example only, such communication may be a general notice on the Services or via email to the email address listed on your Account. It is your obligation to update your Account information so that we may contact you as may be necessary. Such notice shall be deemed to have been given 48 hours after dispatch. If physical notice (e.g., US Mail) is used, then such notice shall be deemed to have been given 7 days after dispatch. Except as explicitly described in the "Arbitration and Class Action Waiver" section, you may give notice to Metropolis (such notice shall be deemed given when received by Metropolis) at any time by contacting us in writing at help@metropolis.io.
F. Waiver of Rights.
Metropolis's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Metropolis. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
G. Section Titles.
The section titles in the Terms are solely used for the convenience of the parties and have no legal or contractual significance.
H. Statute of Limitations.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. This statute of limitations provision does not apply to residents of New Jersey.
I. No Third-Party Beneficiaries.
You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
19. Contact Information
If you have any questions about these Terms or the Services, please contact Metropolis at help@metropolis.io.
20. iOS Terms
You acknowledge and agree that (i) these Terms are binding between you and Metropolis only, and Apple is not a party hereto, and (ii) as between Metropolis and Apple, it is Metropolis that is responsible for the App and the content thereof. You must use the iOS version of the App only on an Apple-branded product that runs iOS. Your use of the iOS version of the App must comply with the terms of use applicable to the Apple source from which you obtain it (including the Usage Rules set forth in the Apple App Store Terms of Service). You acknowledge that Apple has no obligation to furnish you with any maintenance and support services with respect to the App.
You acknowledge that Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App or your possession and use of the App, including, but not limited to, (i) product warranty or liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; (iii) claims arising under consumer protection or similar legislation; or (iv) claims that the App infringes a third party's intellectual property rights.
In the event of any failure of the iOS version of the App to conform to any applicable warranty that has not been effectively disclaimed by these Terms, you may notify Apple, and Apple will refund the purchase price for the App (if any) to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App, and, as between Apple and Metropolis, any other claims, losses, liabilities, damages, costs, or expenses attributable to any failure to conform to any warranty will be Metropolis's responsibility, but only to the extent provided by these Terms. Please read the entire Terms, as other sections of these Terms limit Metropolis's liability in this regard.
Apple, and Apple's subsidiaries, are third-party beneficiaries of these Terms. Upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms against you as a third-party beneficiary thereof.
