Mobileoffer, Inc. DBA Freebird Rides Service Agreement

Effective Date:7-21-2017

IMPORTANT: PLEASE REVIEW THE ARBITRATION AGREEMENT SET FORTH BELOW CAREFULLY. IT REQUIRES YOU TO HANDLE DISPUTES WITH MOBILEOFFER, INC., dba FREEBIRD RIDES ON AN INDIVIDUAL BASIS THROUGH FINAL AND BINDING ARBITRATION. BY ENTERING THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND ALL OF THE ARBITRATION TERMS, AS WELL AS THE OTHER TERMS OF THIS AGREEMENT AND AGREE TO ABIDE BY THOSE TERMS. PLEASE TAKE THE TIME TO READ THEM CAREFULLY, AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS, INCLUDING LIABILITY LIMITATIONS AND EXCLUSIONS.

IMPORTANTLY, YOU MUST UNDERSTAND THAT FREEBIRD RIDES PROVIDES A REFERRAL SERVICE, SIMPLY CONNECTING YOU WITH ONE OR MORE RIDESHARE SERVICES THAT MAY TAKE YOU TO THE ESTABLISHMENTS OF VARIOUS BUSINESSES. FREEBIRD RIDES DOES NOT PROVIDE ANY RIDESHARE SERVICES, AND IT DOES NOT OFFER ANY OF THE SERVICES OR PRODUCTS THAT MAY BE OFFERED BY ANY ESTABLISHMENT TO WHICH THE RIDESHARE SERVICE CONVEYS YOU. YOU AGREE THAT ANY RIDESHARE SERVICE AND ANY ESTABLISHMENT YOU VISIT ARE SOLELY RESPONSIBLE FOR THEIR CONDUCT AND LIABILITIES. FREEBIRD RIDES’ SOLE RESPONSIBILITIES AND LIABILITIES ARE THOSE SET FORTH IN THESE TERMS OF SERVICE.

Contract Formation

These Terms of Service ("Terms") govern your access or use of the applications, websites, content, products, and services (the “Services”) made available by Freebird Rides and its affiliates, employees, agents, and officers (collectively, "Freebird Rides"). In these Terms, the words "including" and "include" mean "including, but not limited to."

By accessing or using the Services, you confirm your agreement to be bound by these Terms. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede any prior agreements or arrangements with you. Freebird Rides may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

Freebird Rides may also amend these Terms from time to time. Your continued use of the Services indicates your ongoing acceptance of these Terms, including any amended Terms. If you object to any amended Terms, you may reject any amended Terms by sending us notice (as hereinafter provided) of your rejection within 30 days after the effective date of the amendment to which you object. Such rejection Notice must include a clear reference to the amended items rejected and your name and e-mail address. Upon receipt of your rejection notice, the version of the Terms that was effective immediately prior to receipt of your rejection notice will remain in effect.

You agree that this agreement is entered into electronically and that Freebird Rides may contact you electronically at the e-mail address and mobile telephone number connected with your account, whether provided to us directly or through Uber, for the purposes of communicating with you about your account and for marketing purposes. You may opt out of any marketing messages by sending us notice of your opt out to optout@freebirdrides.com.

The Services

Freebird Rides is a referral service. Freebird Rides contracts with businesses that wish to encourage customers to visit their places of business (“Member Businesses”) by offering to reimburse their potential customers for some or all of their costs of obtaining transportation from a third party rideshare service such as Uber or Lyft. Freebird Rides’ Services include access to a mobile application and related tools (the “Application”) that integrate with the rideshare services, track the offers of Member Businesses, and communicate them to you. When you become a customer of a Member Business by making a purchase at the Member Business, the Application handles reimbursement to you in the amount of the offer from the Member Business or the cost of the ride, whichever is less.

The Services are made available to you for your own personal and non-commercial use. YOU ACKNOWLEDGE THAT PROVIDING THE SERVICES DOES NOT MAKE FREEBIRD RIDES A TRANSPORTATION PROVIDER, DELIVERY SERVICE, OR CARRIER.

License and Restrictions Related to the Services

Subject to your compliance with these Terms, Freebird Rides grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) access and use the Application on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by Freebird Rides. You may not use any of Freebird Rides’ trademarks, logos, or other intellectual property except as expressly provided in the Terms.

You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by Freebird Rides; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.

In connection with the Services, you may access services offered by third parties services (“Third-Party Services”). Those Third-Party Services may involve drink and food specials from Member Businesses and other advertising offered by third parties. These third parties and the Third-Party Services are not governed by these Terms, and you acknowledge that your relationships with such third parties, including any liability relating to those relationships, are governed by your contracts and other legal relationships with those parties. This includes your relationships with rideshare providers, Member Businesses, and any other third parties who may advertise using the Services or with whom you may come in contact through the Services.

Agreement to Binding Arbitration

You and Freebird Rides agree that any dispute, claim or controversy arising out of or relating to (a) these Terms or the existence, breach, termination, enforcement, interpretation or validity thereof, or (b) your access to or use of the Services at any time, whether before or after the date you agreed to the Terms, will be settled by binding arbitration between you and Freebird Rides, and not in a court of law.

You acknowledge and agree that you and Freebird Rides are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Unless both you and Freebird Rides otherwise agree in writing, any arbitration will be conducted only on an individual basis and not in a class, collective, consolidated, or representative proceeding. However, you and Freebird Rides each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the AAA’s Consumer Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this Arbitration Agreement. The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.

The parties agree that the arbitrator (“Arbitrator”), and not any federal, state, or local court or agency, shall have exclusive authority to resolve any disputes relating to the interpretation, applicability, enforceability or formation of this Arbitration Agreement, including any claim that all or any part of this Arbitration Agreement is void or voidable. The Arbitrator shall also be responsible for determining all threshold arbitrability issues, including issues relating to whether the Terms are unconscionable or illusory and any defense to arbitration, including waiver, delay, laches, or estoppel.

Notwithstanding any choice of law or other provision in the Terms, the parties agree and acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (“FAA”), will govern its interpretation and enforcement and proceedings pursuant thereto. It is the intent of the parties that the FAA and AAA Rules shall preempt all state laws to the fullest extent permitted by law. If the FAA and AAA Rules are found to not apply to any issue that arises under this Arbitration Agreement or the enforcement thereof, then that issue shall be resolved under the laws of the state of California.

The Arbitrator will render an award within the time frame specified in the AAA Rules. Judgment on the arbitration award may be entered in any court having competent jurisdiction to do so. The Arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. An Arbitrator’s decision shall be final and binding on all parties. An Arbitrator’s decision and judgment thereon shall have no precedential or collateral estoppel effect. The party that prevails in arbitration will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law.

If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of the Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to the Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.

User Accounts and Feedback

When you download the Application, you will be required to set up an account with Freebird Rides (“Account”). As part of the registration process, you will be required to give us certain information such as your name, address, mobile phone number and age, as well as banking information for deposits of amounts to be reimbursed to you. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to do so may result in your inability to access or use the Services. You may only have one Account and may not allow any third party to use your Account for any purpose.

You are responsible for any costs or fees related to network access and data or messaging fees for your mobile device and for the security of your login and password related to your Account, as well as for all activity that occurs under your Account.

You must be 18 or older to access the Services, and you warrant and represent that you are 18 or over. You may not assign these Terms to any third party. If you do, Freebird Rides may, at its sole option, retroactively declare any such assignment void at the moment of assignment. You may not use your Account or access the Services for any purpose not in compliance with applicable law, and you may not use the Services in a manner that causes nuisance, annoyance, damage, or inconvenience to any third party.

The Services may permit you to submit feedback, user community contributions and comments, technical support information, suggestions, enhancement requests, recommendations, and messages relating to the use and operation of the Service. You grant to us a royalty-free, fully paid, non-exclusive, perpetual, irrevocable, worldwide, transferable license to display, use, copy, modify, publish, perform, translate, create derivative works from, sublicense, distribute, and otherwise exploit such content without restriction.

Payment Terms

Payment Process:
When you download the Application and register for an Account, you will receive access to available offers made by Member Businesses (each an “Offer”). If you accept an Offer and hail a ride pursuant to an Offer, payment for the total amount of the ride will be made to the rideshare operator using your credit card or other payment method on file with such rideshare operator. Payment will be governed by your agreement with the rideshare operator and any applicable agreement with your credit card company.

When you reach the Member Business establishment and make a purchase there, Freebird Rides will receive notice of the purchase and other payment information, including the date and time of purchase, amount of purchase, last four digits of the credit card number, city/state/zip code, and payment card type (“Payment Information”). You give permission to each Member Business and credit card processing company to share the Payment Information with Freebird Rides. Providing this information to Freebird Rides allows Freebird Rides to track the value of the Services on behalf of Member Businesses. Freebird Rides will keep confidential all Payment Information in accordance with applicable law and best industry practices and will not use such Payment Information for any purpose whatsoever, other than as set forth herein.

Upon receipt of notice that you have made a purchase, Freebird Rides will transfer credit from the Member Business’s account with Freebird Rides directly to your Account subject to the operating procedures of your bank. The amount will show as pending until such time as settlement occurs (usually within 24 hours), at which time you may transfer the credit into the bank account you have given us for the purposes of making reimbursements to you.

You are required to make a purchase at the Member Business before receiving reimbursement, but no specific amount of purchase is required.

If, for any reason, you do not make a purchase at the Member Business, you will not be reimbursed for the amount paid to the rideshare operator. Freebird Rides makes reimbursements based on the conditions set forth herein, and any exceptions or other allowances will be at the sole discretion of Freebird Rides.

Disclaimers; Limitation of Liability; Indemnity

Disclaimer:

THE SERVICES ARE PROVIDED "AS IS" AND "AS AVAILABLE." FREEBIRD RIDES DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, FREEBIRD RIDES MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES REQUESTED THROUGH THE USE OF THE SERVICES OR GOODS OBTAINED AT ANY MEMBER BUSINESS, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. FREEBIRD RIDES DOES NOT GUARANTEE THE QUALITY, SUITABILITY, SAFETY OR ABILITY OF THIRD PARTY PROVIDERS. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SERVICES, AND ANY SERVICE OR GOOD REQUESTED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW.

Limitation of Liability:

FREEBIRD RIDES SHALL NOT BE LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE RELATED TO, IN CONNECTION WITH, OR OTHERWISE RESULTING FROM ANY USE OF THE SERVICES, REGARDLESS OF THE NEGLIGENCE (EITHER ACTIVE, AFFIRMATIVE, SOLE, OR CONCURRENT) OF FREEBIRD RIDES, EVEN IF FREEBIRD RIDES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

FREEBIRD RIDES SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE SERVICES OR YOUR INABILITY TO ACCESS OR USE THE SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER, EVEN IF FREEBIRD RIDES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. FREEBIRD RIDES SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND FREEBIRD RIDES'S REASONABLE CONTROL. YOU ACKNOWLEDGE THAT THIRD PARTY PROVIDERS PROVIDING TRANSPORTATION SERVICES, ACCOMMODATIONS, MEALS OR OTHER SERVICES OR GOODS MAY NOT BE PROFESSIONALLY LICENSED OR PERMITTED.

THE SERVICES MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION WTH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT FREEBIRD RIDES HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION PROVIDED TO YOU BY THIRD PARTY PROVIDERS OR GOODS OR SERVICES PROVIDED BY MEMBER BUSINESSES OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.

THE LIMITATIONS AND DISCLAIMER IN THIS SECTION DO NOT PURPORT TO LIMIT LIABILITY OR ALTER YOUR RIGHTS AS A CONSUMER THAT CANNOT BE EXCLUDED UNDER APPLICABLE LAW. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, FREEBIRD RIDES’S LIABILITY SHALL BE LIMITED TO THE EXTENT PERMITTED BY LAW. THIS PROVISION SHALL HAVE NO EFFECT ON FREEBIRD RIDES’S CHOICE OF LAW PROVISION SET FORTH BELOW.

Indemnity:

You agree to defend, indemnify and hold Freebird Rides and its affiliates and their officers, directors, employees, and agents harmless from and against any and all claims, demands, losses, liabilities, and expenses (including attorneys' fees), arising out of or related to: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) the acts or omissions of any third-party provider, Member Business, or third party, including any claim related to a personal injury occurring en route to a Member Business and any claim related to a good purchased from a Member Business; or (iv) your violation of the rights of any third party, including third party providers.

Choice of Law

These Terms shall be governed by and construed in accordance with the laws of the State of California, U.S.A., without respect to their conflict of law principles, except as may be otherwise provided in the Arbitration Agreement above. The foregoing choice of law and forum selection provisions do not apply to the arbitration clause in the Terms or to any arbitrable disputes as defined therein. Instead, the Federal Arbitration Act shall apply to any such disputes.

Notice

Freebird Rides may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, telephone or text message to any phone number provided in connection with your account, or by written communication sent by first class mail or pre-paid post to any address connected with your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email or telephone). You may give notice to Freebird Rides, with such notice deemed given when received by Freebird Rides, at any time by first class mail or pre-paid post to [insert address for notice]. You may also give notice to Freebird Rides via e-mail directed to [insert e-mail address for notice]. E-mail notice shall be deemed delivered when affirmatively acknowledged by Freebird Rides.

General

No joint venture, partnership, employment, or agency relationship exists between you or Freebird Rides as a result of these Terms or use of the Services. If any provision of these Terms is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent possible under law. Freebird Rides' failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Freebird Rides in writing. This provision shall not affect any portion of the Arbitration Agreement of these Terms. These Terms are the complete and fully integrated expression of the parties’ agreement with respect to the matters addressed herein and may be modified or supplemented only by written agreement signed by the parties or as set forth in the Terms.