Last Updated: 5 February, 2022
These terms of service constitute a legally binding agreement (the “Agreement”) between you and Smaart app,(“Smaart,” “we,” “us” or “our”) governing your use of the Smaart application, website, and technology platform (collectively, the “Smaart Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND SMAART HAVE AGAINST EACH OTHER CAN BE BROUGHT (see section 17 below). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST smaart TO BINDING AND FINAL ARBITRATION ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING. AS A DRIVER OR DRIVER APPLICANT, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 17.
By entering into to this Agreement, and/or by using or accessing the Smaart Platform you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions in Section 17) and accept all of its terms. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT USE OR ACCESS THE smaart PLATFORM. If you use the services of Smaart or its affiliates in another country, by using the Smaart Platform in that country you agree to be subject to Smaart terms of service for that country.
1.The Smaart Platform
The Smaart Platform provides a marketplace where persons who seek transportation to certain destinations (“Riders”) can be matched with persons driving to or through those destinations (“Drivers”). Drivers and Riders are collectively referred to herein as (“Users”) and each User shall create a User account that enables access to the Smaart Platform. Each User may only create one User account, and Smaart reserves the right to shut down any additional accounts that any particular User may attempt to create. As a User, you authorize Smaart to match you with a Driver or Rider based on factors such as your location, the estimated time to pickup, your destination, user preferences, and platform efficiency, and to cancel an existing match and rematch based on the same considerations. For purposes of this Agreement, the driving services provided by Drivers to Riders that are matched with one another through the Platform shall be referred to collectively as the “Services”. Any decision by a User to offer or accept any Services is a decision made in such User’s sole discretion. Each transportation Service provided by a Driver to a Rider shall constitute a separate agreement between such persons. The Services offered through the Smaart Platform are only available in certain cities and the applicable cities (“Smaart Cities”) are listed in the Smaart Cities page.
In the event Smaart modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Smaart reserves the right to modify any information referenced in the hyperlinks from this Agreement from time to time, and such modifications shall become effective upon posting. Continued use of the Smaart Platform or Services after any such changes shall constitute your consent to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of this Agreement does not create a renewed opportunity to opt out of arbitration (if applicable).
The Smaart Platform may only be used by individuals who can form legally binding contracts under applicable law. The Smaart Platform is not available to children (persons under the age of 18) or Users who have had their User account temporarily or permanently deactivated. By becoming a User, you represent and warrant that you are at least 18 years old and that you have the right, authority and capacity to enter into and abide by the terms and conditions of this Agreement. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.
As a Rider, you understand that request or use of the Services may result in charges to you (“Charges”). Charges include, but are not limited to, Fares and other applicable fees as may be charged by Smaart from time to time, tolls, surcharges, and taxes as may be applicable in your country’s Smaart City, plus any tips to the Driver that you elect to pay. Smaart has the authority and reserves the right to determine and modify pricing by posting applicable pricing terms regarding your country’s Smaart City or quoting you a price for a specific ride at the time you make a request. Pricing may vary based on the type of service you request (e.g.Smaart Hatchback, Smaart Sedan, Smaart SUV and Smaart Premium) as described on your market’s Smaart City. You are or shall be responsible for all Charges incurred under your User account and you will receive prior notification of any Charges that you are about to incur.
Fares: There are two types of fares, variable and quoted.
Fees and Other Charges.
Other Charges: Other fee and surcharges may apply to your ride, including, but not limited to actual or anticipated airport fees, state or local fees, event fees as determined by Smaart or its marketing partners, and processing fees for split payments. In addition, where required by law Smaart will charge any taxes that may be applicable to your use of the Services. See your market’s Smaart Cities page for details on other Charges that may apply to your ride.
Tips: Following a ride, you may elect to tip your Driver in cash or through the Smaart application. Any tips will be provided entirely to the applicable Driver.
No Refunds: All Charges are non-refundable. This no-refund policy shall apply at all times regardless of your decision to terminate usage of Smaart Platform, any disruption to Smaart Platform or Services, or any other reason whatsoever.
Coupons: You may receive coupons that you can apply toward payment of certain Charges upon completion of a Ride. Coupons are only valid for use on the Smaart Platform and are not transferable or redeemable for cash except as required by law. You may only use one Coupon per Ride and Coupons cannot be combined to provide a greater discount, and if the cost of your ride exceeds the applicable credit or discount value reflected on a Coupon, we will charge your preferred payment method recorded in your User Account for the outstanding cost of the Ride. For Quoted Fares or Variable Fares, Smaart may deduct the amount attributable to the Service Fee, Tolls, or Other Charges before application of the coupon. If you split payment for a Ride with another User, your coupon will only apply to your portion of the Charges. Additional restrictions on coupons may apply as communicated to you in a relevant promotion or by clicking on the relevant coupon within the Promotions section of the Smaart App.
If you are a Driver, you will receive payment for your provision of Services pursuant to the terms of the Driver Addendum, which shall form part of this Agreement between you and Smaart. The Driver Addendum is available in the Driver dashboard when you log into your account.
By entering into this Agreement or using the Platform, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or pre-recorded messages may be generated by automatic telephone dialing systems. Communications from Smaart, its affiliated companies and/or Drivers, may include but are not limited to operational communications concerning your User account or use of the Smaart Platform or Services, updates concerning new and existing features on the Smaart Platform, communications concerning promotions run by us or our third-party partners, and news concerning Smaart and industry developments. Standard text messaging charges applied by your cell phone carrier will apply to text messages we send.
IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF. IF YOU WISH TO OPT OUT OF PROMOTIONAL CALLS OR TEXTS, YOU MAY TEXT “END” TO FROM THE MOBILE DEVICE RECEIVING THE MESSAGES. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE smaart PLATFORM OR THE SERVICES. IF YOU WISH TO OPT OUT OF ALL TEXTS OR CALLS FROM smaart (INCLUDING OPERATIONAL OR TRANSACTIONAL TEXTS OR CALLS), YOU CAN TEXT THE WORD “STOPALL” TO FROM THE MOBILE DEVICE RECEIVING THE MESSAGES, HOWEVER YOU ACKNOWLEDGE THAT OPTING OUT OF RECEIVING ALL TEXTS MAY IMPACT YOUR USE OF THE smaart PLATFORM OR THE SERVICES.
You may be able to create or log-in to your Smaart User account through online accounts you may have with third party social networking sites (each such account, a "Apple Account or Google"). By connecting to Smaart through these network account, you understand that Smaart may access, store, and make available any Apple or Google Account content according to the permission settings of your Social Network Services Account ("SNS Account”) (e.g., friends, mutual friends, contacts or following/followed lists (the “SNS Content”)). You understand that, should you choose to log in to your Smaart-User account through your SNS Account, SNS Content may be available on and through the Smaart Platform to other Users who log in through a SNS account.. Unless otherwise specified in this Agreement, all SNS Content, if any, shall be considered to be your Information.
Smaart, at its sole discretion, may make available promotions with different features to any Users or prospective Users. These promotions, unless made to you, shall have no bearing whatsoever on your Agreement or relationship with Smaart. Smaart reserves the right to withhold or deduct credits or benefits obtained through a promotion in the event that Smaart determines or reasonably believes that the redemption of the promotion or receipt of the credit or benefit was in error, fraudulent, illegal, or in violation of the applicable promotion terms or this Agreement.
As part of your User account, Smaart may provide you with or allow you to create a “Smaart Code,” a unique alphanumeric code for you to distribute to your friends and family (each a “Referred User”) to become new Smaart Riders (“Referred Riders”) or Drivers (“Referred Drivers”) in your country. Smaart Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Smaart Code. You are prohibited from advertising Smaart Codes in any way, including through any and all social media websites, resale websites, online marketplaces or the like, including, but not limited to the following: Google, Facebook, Twitter, Instagram, Bing, Gumtree, OLX, Takealot and Craigslist. Smaart reserves the right to deactivate or invalidate any Smaart Code at any time in Smaart’s sole discretion.
From time to time, Smaart may offer you incentives to refer your friends and family to become new Users of the Smaart Platform in your country (the “Referral Program”). These incentives may come in the form of Smaart Credits, and Smaart may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion. Your distribution of Smaart Codes and participation in the Referral Program is subject to this Agreement.
With respect to your use of the Smaart Platform and your participation in the Services, you agree that you will not:
Should you breach any of the provisions of this clause 9, your User Account will be terminated in accordance with clause 16 below.
By providing Services as a Driver on the Smaart Platform, you represent, warrant, and agree that:
Should you breach any of the provisions of this clause 10, your account will be terminated in accordance with clause 16 below.
All intellectual property rights in the Smaart Platform is owned by SMAART APP GROUP PTY LTD absolutely and in their entirety. These rights include database rights, copyright, design rights (whether registered or unregistered), trademarks (whether registered or unregistered) and other similar rights wherever existing in the world together with the right to apply for protection of the same. All other trademarks, logos, service marks, company or product names set forth in the Smaart Platform are the property of their respective owners. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of Smaart. Smaart shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
Smaart and other Smaart logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Smaart in South Africa and/or other countries (collectively, the “Smaart Marks”). If you provide Services as a Driver, Smaart grants to you, during the term of this Agreement, and subject to your compliance with the terms and conditions of this Agreement, a limited, revocable, non-exclusive license to display and use the Smaart Marks solely in connection with providing the Services through the Smaart Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sub-license with respect to any of the rights granted hereunder without Smaart’s prior written permission, which it may withhold in its sole discretion. The Smaart Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Smaart is the owner and licensor of the Smaart Marks, including all goodwill associated therewith, and that your use of the Smaart Marks will confer no additional interest in or ownership of the Smaart Marks in you but rather inures to the benefit of Smaart. You agree to use the Smaart Marks strictly in accordance with Smaart ’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Smaart determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that use the Smaart Marks or any derivatives of the Smaart Marks as a trademark, service mark, trade name or trade dress, other than as expressly approved by Smaart in writing; (2) use the Smaart Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Smaart Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Smaart’s rights as owner of the Smaart Marks or the legality and/or enforceability of the Smaart Marks, including, challenging or opposing Smaart ’s ownership in the Smaart Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Smaart Marks, any derivative of the Smaart Marks, any combination of the Smaart Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Smaart Marks; (5) use the Smaart Marks on or in connection with any product, service or activity that is in violation of any law, statute, government regulation or standard.
Violation of any provision of this License may result in immediate termination of the License, in Smaart’s sole discretion. If you create any materials bearing the Smaart Marks (in violation of this Agreement or otherwise), you agree that upon their creation Smaart exclusively owns all right, title and interest in and to such materials, including any modifications to the Smaart Marks or derivative works based on the Smaart Marks. You further agree to assign any interest or right you may have in such materials to Smaart, and to provide information and execute any documents as reasonably requested by Smaart to enable Smaart to formalize such assignment.
Smaart respects the intellectual property of others and expects Users to do the same. If you believe, in good faith, that any materials on the Smaart Platform or Services infringe upon your copyrights, please contact us (email@example.com) for information on how to make a copyright complaint.
The following disclaimers are made on behalf of Smaart, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
Smaart does not provide transportation services, and Smaart is not a transportation carrier. Smaart is not a common carrier or public carrier. It is up to the Driver to decide whether to offer a Ride to a Rider contacted through the Smaart Platform, and it is up to the Rider to decide whether or not to accept a Ride from any Driver contacted through the Smaart Platform. We cannot ensure that a Driver or Rider will complete an arranged transportation service. We have no control over the quality or safety of the transportation that occurs as a result of the Services.
The Smaart Platform is provided on an “as is” basis and without any warranty or condition, express, implied or statutory. We do not guarantee and do not promise any specific results from use of the Smaart Platform and/or the Services, including the ability to provide or receive Services at any given location or time. To the fullest extent permitted by law, we specifically disclaim any implied warranties of title, merchant-ability, fitness for a particular purpose and non-infringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.
We do not warrant that your use of the Smaart Platform or Services will be accurate, complete, reliable, current, secure, uninterrupted, always available, or error- free, or will meet your requirements, that any defects in the Smaart Platform will be corrected, or that the Smaart Platform is free of viruses or other harmful components. We disclaim liability for, and no warranty is made with respect to, connectivity and availability of the Smaart Platform or Services.
We cannot guarantee that each Rider is who he or she claims to be. Please use common sense when using the Smaart Platform and Services, including looking at the photos of the Driver or Rider you have matched with to make sure it is the same individual you see in person. Please note that there are also risks of dealing with underage persons or people acting under false pretence, and we do not accept responsibility or liability for any content, communication or other use or access of the Smaart Platform by persons under the age of 18 in violation of this Agreement. We encourage you to communicate directly with each potential Driver or Rider prior to engaging in an arranged transportation service.
Smaart is not responsible for the conduct, whether online or offline, of any User of the Smaart Platform or Services. You are solely responsible for your interactions with other Users. We do not procure insurance for, nor are we responsible for, personal belongings left in the car by Drivers or Riders. By using the Smaart Platform and participating in the Services, you agree to accept such risks and agree that Smaart is not responsible for the acts or omissions of Users on the Smaart Platform or participating in the Services.
You are responsible for the use of your User account and Smaart expressly disclaims any liability arising from the unauthorized use of your User account. Should you suspect that any unauthorized party may be using your User account, or you suspect any other breach of security, you agree to notify us immediately.
It is possible for others to obtain information about you that you provide, publish or post to or through the Smaart Platform (including any profile information you provide), send to other Users, or share during the Services, and to use such information to harass or harm you. We are not responsible for the use of any personal information that you disclose to other Users on the Smaart Platform or through the Services. Please carefully select the type of information that you post on the Smaart Platform or through the Services or release to others. We disclaim all liability, regardless of the form of action, for the acts or omissions of other Users (including unauthorized users, or “hackers”).
Opinions, advice, statements, offers, or other information or content concerning Smaart or made available through the Smaart Platform, but not directly by us, are those of their respective authors, and should not necessarily be relied upon. Such authors are solely responsible for such content. Under no circumstances will we be responsible for any loss or damage resulting from your reliance on information or other content posted by third parties, whether on the Smaart Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Smaart Platform and remove any such material that in our sole opinion violates, or is alleged to violate, the law or this agreement or which might be offensive, illegal, or that might violate the rights, harm, or threaten the safety of Users or others.
Location data provided by the Smaart Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Smaart, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Smaart Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Smaart Platform may be accessible to Smaart and certain Users of the Smaart Platform.
Smaart advises you to use the Smaart Platform with a data plan with unlimited or very high data usage limits, and Smaart shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Smaart Platform.
This paragraph applies to any version of the Smaart Platform that you acquire from the Apple App Store. This Agreement is entered into between you and Smaart. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Smaart Platform. Smaart, not Apple, is solely responsible for the Smaart Platform and the content thereof as set forth hereunder. However, Apple and Apple’s subsidiaries are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference Apple’s Licensed Application End User License Agreement, for purposes of which, you are “the end-user.” In the event of a conflict in the terms of the Licensed Application End User License Agreement and this Agreement, the terms of this Agreement shall control.
Certain jurisdictions require additional disclosures to you. You can view any disclosures required by your local jurisdiction at www.smaartaap.com. We will update the disclosures page as jurisdictions add, remove or amend these required disclosures, so please check in regularly for updates.
You will defend, indemnify, and hold Smaart including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders harmless from any claims, actions, suits, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of your use of the Smaart Platform and participation in the Services, including: (1) your breach of this Agreement or the documents it incorporates by reference; (2) your violation of any law or the rights of a third party, including, Drivers, Riders, other motorists, and pedestrians, as a result of your own interaction with such third party; (3) any allegation that any materials that you submit to us or transmit through the Smaart Platform or to us infringe or otherwise violate the copyright, trademark, trade secret or other intellectual property or other rights of any third party; (4) your ownership, use or operation of a motor vehicle or passenger vehicle, including your provision of Services as a Driver; and/or (5) any other activities in connection with the Services.
IN NO EVENT WILL SMAART, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “SMAART” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE SMAART PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE SMAART PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE SMAART PLATFORM MAY BE USED BY YOU TO REQUEST AND SCHEDULE TRANSPORTATION, GOODS, OR OTHER SERVICES WITH THIRD PARTY PROVIDERS, BUT YOU AGREE THAT SMAART HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ANY TRANSPORTATION, GOODS OR OTHER SERVICES PROVIDED TO YOU BY THIRD PARTY PROVIDERS OTHER THAN AS EXPRESSLY SET FORTH IN THIS AGREEMENT. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.
This Agreement is effective upon your creation of a User account. This Agreement may be terminated: a) by User, without cause, upon seven (7) days’ prior written notice to Smaart; or b) by either Party immediately, without notice, upon the other Party’s material breach of this Agreement, including but not limited to any breach of Section 9 or breach of Section 10 of this Agreement. In addition, Smaart may terminate this Agreement or deactivate your User account immediately in the event: (1) you no longer qualify to provide Services or to operate the approved vehicle under applicable law, rule, permit, ordinance or regulation; (2) you fall below Smaart’s star rating or cancellation threshold and remain below such threshold for a continuous period of at least 1 month; (3) Smaart has the good faith belief that such action is necessary to protect the safety of the Smaart community or third parties, provided that in the event of a deactivation pursuant to (1)-(3) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Smaart ’s reasonable satisfaction prior to Smaart permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure ting/the breach. If the breach is cured in a timely manner and to Smaart’s satisfaction, this Agreement will not be permanently terminated. Sections 2, 6, 7 (with respect to the license), 11-12, 14-19, and 21 shall survive any termination or expiration of this Agreement.
(a) Agreement to Binding Arbitration Between You and Smaart.
YOU AND smaart MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE and/OR JURY, AS CONTEMPLATED IN THE LAWS APPLICABLE TO YOUR COUNTRY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the International Arbitration Act, No. 15 of 2017 (the “Act”) and survives after the Agreement terminates or your relationship with Smaart ends. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
Except as expressly provided below, this Arbitration Agreement applies to all claims, as set out below, between you and Smaart, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders. This Arbitration Agreement also applies to claims between you and Smaart ’s service providers, including but not limited to background check providers and payment processors; and such service providers shall be considered intended third party beneficiaries of this Arbitration Agreement. For the purposes of this clause, Smaart an Users shall be collectively referred to as the “Parties” and “Party” shall mean either Smaart or a User, as the case may be.
that dispute shall, unless resolved by the Parties within 10 Business days of any Party’s written notice to the other Parties calling for resolution of the dispute, be referred to arbitration and be determined in terms of this clause.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND smaart MAY EACH BRING CLAIMS IN ARBITRATION AGAINST THE OTHER ONLY IN AN INDIVIDUAL CAPACITY AND NOT ON A CLASS, COLLECTIVE ACTION, OR REPRESENTATIVE BASIS (“CLASS ACTION WAIVER”). YOU UNDERSTAND AND AGREE THAT YOU AND smaart BOTH ARE WAIVING THE RIGHT TO PURSUE OR HAVE A DISPUTE RESOLVED AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, COLLECTIVE OR REPRESENTATIVE PROCEEDING. NOTWITHSTANDING THE FOREGOING, THIS SUBSECTION (B) SHALL NOT APPLY TO REPRESENTATIVE PRIVATE ATTORNEYS GENERAL ACT CLAIMS BROUGHT AGAINST smaart.
The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on any basis other than an individual basis. The arbitrator shall have no authority to consider or resolve any Claim or issue any relief on a class, collective, or representative basis. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claims.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the arbitration rules of AFSA (“AFSA Rules”), disputes regarding the scope, applicability, enforceability, revocability or validity of the Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which: (1) the dispute is filed as a class, collective, or representative action and (2) there is a final judicial determination that the Class Action Waiver is unenforceable as to any Claims, then those Claims shall be severed from any remaining claims and may be brought in a civil court of competent jurisdiction, but the Class Action Waiver shall be enforced in arbitration on an individual basis as to all other Claims to the fullest extent possible.
(c) Arbitration Fees and Awards.
The payment of any applicable filing and arbitration fees will be governed by the AFSA Rules subject to the following modifications:
(A) are based on an alleged employment relationship between Smaart and a Driver;
(B) arise out of, or relate to, Smaart’s actual deactivation of a Driver’s User account or a threat by Smaart to deactivate a Driver’s User account;
(C) arise out of, or relate to, Smaart ’s actual termination of a Driver’s Agreement with Smaart under the termination provisions of this Agreement, or a threat by Smaart to terminate a Driver’s Agreement;
(D) arise out of, or relate to, Fares (as defined in this Agreement, including Smaart’s commission or fees on the Fares), tips, or average hourly guarantees owed by Smaart to Drivers for Services, other than disputes relating to referral bonuses, other Smaart promotions, or consumer-type disputes, or
(E) arise out of or relate to background checks performed in connection with a user seeking to become a Driver (the subset of Claims in subsections (A)-(E) shall be collectively referred to as “Driver Claims”),
Smaart shall pay all costs unique to arbitration (as compared to the costs of adjudicating the same claims before a court), including the regular and customary arbitration fees and expenses (to the extent not paid by Smaart pursuant to the fee provisions above). However, if you are the party initiating the Driver Claim, you shall be responsible for contributing up to an amount equal to the filing fee that would be paid to initiate the claim in the court of general jurisdiction in the state in which you provide Services to Riders, unless a lower fee amount would be owed by you pursuant to the AFSA Rules, applicable law, or subsection (e)(1) above. Any dispute as to whether a cost is unique to arbitration shall be resolved by the arbitrator. For purposes of this Section 17(c)(3), the term “Driver” shall be deemed to include both Drivers and Driver applicants who have not been approved to drive.
(d) Exceptions to Arbitration.
This Arbitration Agreement shall not require arbitration of the following types of claims: (1) small claims actions brought on an individual basis that are within the scope of such small claims court’s jurisdiction, and (2) claims for workers’ compensation, state disability insurance and unemployment insurance benefits.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, SA Department of Labor, Securities Exchange Commission, National Labor Relations Board (“NLRB”), or Office of Federal Contract Compliance Programs, or similar local, state or federal agency, and nothing in this Arbitration Agreement shall be deemed to preclude or excuse a party from bringing an administrative claim before any agency in order to fulfill the party's obligation to exhaust administrative remedies before making a claim in arbitration However, should you bring an administrative claim, you may only seek or recover money damages of any type pursuant to this Arbitration Provision, and you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint, except for a complaint issued by the NLRB. Should you participate in an NLRB proceeding, you may only recover money damages if such recovery does not arise from or relate to a claim previously adjudicated under this Arbitration Provision or settled by you. Similarly, you may not recover money damages under this Arbitration Provision if you have already adjudicated such claim with the NLRB. Nothing in this Agreement or Arbitration Agreement prevents your participation in an investigation by a government agency of any report, claim or charge otherwise covered by this Arbitration Provision.
In addition to the severability provisions in subsections (c) above, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable under applicable law not preempted by the FAA, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(f) Notices and Domicilia.
Smaart chooses the domicilium citandi et executandi (“domicilium”) for all purposes under this Agreement, whether in respect of court process, notices or other doucments or communications of whatsoever nature, the following address:
Address: Smaart App Group
Shop 6, Freeport Centre, Oostewal Road, Langebaan, South Africa
In order to be effective, (A) the writing must clearly indicate the nature of a dispute, (B) the writing must include the name, phone number, and email address associated with your User Account, and (C) the email or envelope containing the signed writing must be sent within 30 days of the date this Agreement is executed by you.
Any Party may, by delivery of written notice to the other Party, change the physical address chosen as his/her/its domicilium to another physical address in the Republic of South Africa/country of residence of a User which is not a post office box or poste restante or change its e-mail address, provided that the change shall be effective on the 5th business day from delivery of the written notice to the other Parties.
Any notice delivered to any Party (the “addressee”) shall be delivered by hand or communicated by e-mail (and by no other means) on a business day. In the case of any notice which (1) or delivered by hand during the normal business hours of the addressee at the addressee’s domicilium for the time being shall be presumed , until the contrary is proved by the addressee, to have been received by the addressee at the time of delivery, or (2) is sent during the normal business hours of the addressee by e-mail to his/her/its chosen e-mail address stipulated in this clause 17(f) shall be deemed to have been received on the date of dispatch (unless the contrary is proved).
Any notice or communication required or permitted to be given in terms of this agreement shall be valid and effective only if delivered in the manner as set forth in this clause 17(f).
(g) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Smaart may agree to first attempt to negotiate any dispute, claim or controversy between the parties informally for 30 days, unless this time period is mutually extended by you and Smaart . A party who intends to seek negotiation under this subsection must first send to the other a written notice of the dispute (“Notice”). The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought. All offers, promises, conduct and statements, whether oral or written, made in the course of the negotiation by any of the parties, their agents, employees, and attorneys are confidential, privileged and inadmissible for any purpose, including as evidence of liability or for impeachment, in arbitration or other proceeding involving the parties, provided that evidence that is otherwise admissible or discoverable shall not be rendered inadmissible or non-discoverable as a result of its use in the negotiation.
You agree not to use any technical, financial, strategic and other proprietary and confidential information relating to Smaart’s business, operations and properties, information about a User made available to you in connection with such User’s use of the Platform, which may include the User’s name, pick-up location, contact information and photo (“Confidential Information”) disclosed to you by Smaart for your own use or for any purpose other than as contemplated herein. You shall not disclose or permit disclosure of any Confidential Information to third parties. You agree to take all reasonable measures to protect the secrecy of and avoid disclosure or use of Confidential Information of Smaart in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Smaart with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Smaart or has entered the public domain through no fault of yours; was known to you, without restriction, at the time of disclosure, as demonstrated by files in existence at the time of disclosure; is disclosed with the prior written approval of Smaart ; becomes known to you, without restriction, from a source other than Smaart without breach of this Agreement by you and otherwise not in violation of Smaart ’s rights; or is disclosed pursuant to the order or requirement of a court, administrative agency, or other governmental body; provided, however, that You shall provide prompt notice of such court order or requirement to Smaart to enable Smaart to seek a protective order or otherwise prevent or restrict such disclosure.
As a Driver on the Smaart Platform, you acknowledge and agree that you and Smaart are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Smaart expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Smaart; and (2) no joint venture, franchisor- franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Smaart, and you undertake not to hold yourself out as an employee, agent or authorized representative of Smaart .
Smaart does not, and shall not be deemed to, direct or control you generally or in your performance under this Agreement specifically, including in connection with your provision of Services, your acts or omissions, or your operation and maintenance of your vehicle. You retain the sole right to determine when, where, and for how long you will utilize the Smaart Platform. You retain the option to accept or to decline or ignore a Rider’s request for Services via the Smaart Platform, or to cancel an accepted request for Services via the Smaart Platform, subject to Smaart ’s then-current cancellation policies. With the exception of any signage required by law or permit/license rules or requirements, Smaart shall have no right to require you to: (a) display Smaart ’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying Smaart’s names, logos or colors. You acknowledge and agree that you have complete discretion to provide Services or otherwise engage in other business or employment activities.
In addition to connecting Riders with Drivers, the Smaart Platform may enable Users to provide or receive goods or services from other third parties. For example, Users may be able to use the Smaart Platform to order a delivery of goods, purchase a digital item, request a carpool ride from a commuter going in your direction, or when travelling outside of South Africa, to connect with local transportation platforms and request rides from local drivers (collectively, the “Other Services”). You understand and that the Other Services are subject to the terms and pricing of the third-party provider. If you choose to purchase Other Services through the Smaart Platform, you authorize Smaart to charge your payment method on file according to the pricing terms set by the third-party provider. You agree that Smaart is not responsible and may not be held liable for the Other Services or the actions or omissions of the third- party provider. Such Other Services may not be investigated, monitored or checked for accuracy, appropriateness, or completeness by us, and we are not responsible for any Other Services accessed through the Smaart Platform.
Except as provided in Section 17, this Agreement shall be governed by the laws of the Republic of of South Africa without regard to choice of law principles. This choice of law provision is only intended to specify the use of South African law to interpret this Agreement and is not intended to create any other substantive right to non- South Africans to assert claims under South African law whether by statute, common law, or otherwise. If any provision of this Agreement is or becomes invalid or non- binding, the parties shall remain bound by all other provisions of this Agreement. In that event, the parties shall replace the invalid or non-binding provision with provisions that are valid and binding and that have, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of this Agreement. You agree that this Agreement and all incorporated agreements may be automatically assigned by Smaart, in our sole discretion by providing notice to you. Except as explicitly stated otherwise, any notices to Smaart shall be given by certified mail, postage prepaid and return receipt requested to Smaart app, Shop No 6, Oostewal Road, Langebaan, South Africa. Any notices to you shall be provided to you through the Smaart Platform or given to you via the email address or physical you provide to Smaart during the registration process. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. The words “include”, “includes” and “including” are deemed to be followed by the words “without limitation”. A party’s failure to act with respect to a breach by the other party does not constitute a waiver of the party’s right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between you and Smaart with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.
If you have any questions regarding the Smaart Platform or Services, please contact our Customer Support Team.