Upshift Membership Agreement
August 23rd, 2016
This Upshift Membership Agreement (this “Agreement”) is entered into between Upshift, Inc., a Delaware corporation (“Upshift” or “we” or “us”), and you (“you”). This Agreement governs the relationship, rights, and obligations between us and you with regards to your membership in the Upshift vehicle service (the “Service”), including your use of vehicles available through the Service (“Vehicles”).
I. DRIVING RECORD REQUIREMENTS
a) I understand that having and maintaining a satisfactory driving record is a condition of using the Upshift Service. I agree to allow the Upshift, Inc. to check my driving record prior to membership and to check it periodically thereafter. I further agree to immediately report to Upshift any change in license status, license suspensions, serious accidents or offenses, points added to my license, or any other condition that may affect my ability to drive an Upshift Vehicle after I am admitted as a member. This may mean that you will not be covered by our insurance during your trip and you are no longer eligible for membership in the Service.
b) If you have any of the following on your record, we cannot accept you as a member at this time: major moving violations, vehicular manslaughter, excessive speeding, excessive disregard for red lights/stop signs, reckless driving, driving while suspended, or DUI.
c) I certify that I have at least 2 (two) consecutive years of driving experience.
d) I understand that Upshift will use this information for membership purposes only and not furnish this information to a third party without my written consent. I agree to release Upshift, Inc., its employees and those who supplied them with my information from any liability for any damage which may result from furnishing the requested information or my failure to be accepted for the membership for which I am applying.
e) If you cease to meet the above eligibility requirements for Service membership, or if you use the Vehicle in a manner prohibited by this Agreement, including but not limited to the use of a Vehicle by anyone other than an approved Upshift member ("Authorized Operator") while you are in the Vehicle, or failure to report damage or loss as required by this Agreement, you may not be covered by the Vehicle Insurance Policy and may be solely liable for any and all damage to the Vehicle, your own injuries, all and injuries and/or property damage to any third party.
f) Upshift reserves the right, in its sole discretion, (a) to determine whether to accept your application for membership with the Service, and (b) to revoke your membership at any time without cause (we will notify you immediately if this step must be taken). I authorize Upshift’s insurers and their agents to check my credit and employment history and my driving record, CLUE report, and insurance score. This Agreement and all of the above consumer reports will be used to determine acceptance into the Upshift program. I also understand that this information will be retained by Upshift’s insurers and/or their agents whether or not my application is approved. The application fee is non-refundable in the event of non-approval by insurance company.
g) In connection with my desire to carshare, I hereby authorize and direct Upshift, Inc., either itself or through a third party consumer reporting agency, to obtain information about my background including investigation into my motor vehicle or driving record(s). I understand this authorization will be valid until I withdraw my authorization, in writing, by contacting Checkr, Inc., 2505 Mariposa St., San Francisco, CA 94110. I understand that my desire to carshare is not related to any employment relationship. To this end, I hereby authorize, without reservation, any law enforcement agency, administrator, state or federal agency, or information service bureau to furnish any and all background information requested by Checkr, Inc. 2505 Mariposa St., San Francisco, CA 94110 | 844-824-3257 | email@example.com as it pertains to my motor vehicle or driving record(s). I agree that an electronic copy of this Authorization shall be valid as the original.
h) Upshift makes no express or implied warranties regarding the Vehicles or any component included in the Vehicles nor the service provided by Upshift, including any warranty of merchantability or that the vehicle or the service is fit for a particular purpose.
II. USAGE FEES AND OTHER CHARGES
a) You agree to be bound by (i) our current usage fees as in effect at the time you make your reservation (as made available on the Website or by other means), and (ii) other charges that you may incur in the course of using the Service, as described in the Fees and Credits Schedule, as such Fees and Credits Schedule may be revised from time-to-time in accordance with the procedures set forth in Section VII. The fees and charges that will apply to your reservation and use of a Vehicle are those in effect at the time that you make your reservation.
b) We bill you for any applicable membership fee, your usage fees, and other applicable charges, subject to any credits, at the end of each trip. The credit or debit card that we have on file will be charged automatically for the amount shown on your bill.
c) You will be responsible for paying all parking, traffic and toll violation fines and penalties, all towing, storage and impoundment fees and all tickets charged to the Vehicle, arising out of use, possession or operation of the Vehicle by you or with your permission. You also agree to indemnify Upshift if we pay such fines, penalties or fees. You agree to pay, upon billing, a Ticket Processing Fee (as set forth in the Fees and Credits Schedule) related to each parking, toll or other citation incurred during the term of your reservation of a Vehicle that we pay on your behalf. You further understand that we may furnish information regarding you, including but not limited to your name, address and driver's license number to the governmental agency or court responsible for issuing or enforcing parking, toll or other citations that you incur.
a) Each Vehicle rented through the Service is covered by a California compliant vehicle insurance policy obtained by Upshift (the “Vehicle Insurance Policy”) that remains in effect during your rental period, provided that the Vehicle is reserved and used in compliance with this Agreement.
The Vehicle Insurance Policy includes the following types of coverage, in each case subject to all of its terms, conditions, and exclusions as set forth in such policy:
1) Liability coverage, subject to a combined per person coverage limit of $100,000 and per incident coverage limit of $300,000;
2) Collision coverage (covering damage to the Vehicle due to collision), subject to a per incident coverage limit of $50,000 and a $1,000 deductible;
3) Comprehensive coverage (covering damage to the Vehicle other than due to collision), subject to a per incident coverage limit of $50,000 and a $1,000 deductible; with a maximum limit on any one comprehensive catastrophic loss or event of $500,000; and
4) Uninsured motorist coverage (covering bodily injury and property damage), subject to a per incident coverage limit of $15,000/$30,000 BI non-stacking and/or underinsured if applicable.
b) The coverage limits described above may not be adequate to cover fully your liability in the event that you are involved in an accident. You will be responsible for the total value of all injuries and/or property damage that occur during your rental of a Vehicle, including injuries to yourself, Upshift employees and third parties and damage to property of yourself, Upshift employees and third parties, except to the extent such injuries and/or property damage are covered by the Vehicle Insurance Policy.
c) The Vehicle Insurance Policy has a deductible of $1,000 for damage to the Vehicle. This means that you are responsible for the first $1,000 of damages and claims to the Vehicle in the event of a collision or other vehicle damages.
d) You agree to immediately report to Upshift, by phone or in person, any accident or damage in connection with a Vehicle you are renting, and to cooperate fully with Upshift's investigation of any such accident or damage. After an accident, you may only continue using the Vehicle with the express permission of Upshift.
e) Insurance covering any theft or loss of personal belongings or personal accident insurance is not included with your rental. You agree that Upshift is not responsible to you, any Authorized Operators or anyone else for any loss of or damage to your or their personal property caused by your or their acts or omissions, those of any third party or, to the extent permitted by law, Upshift's negligence.
IV. PROHIBITED USES OF THE VEHICLE
a) You may not:
1) Let anyone drive the vehicle who is not already a card carrying Upshift member
2) Intentionally destroy, damage or aid in the theft of the vehicle;
3) Take or attempt to take the Vehicle into Mexico, Canada or to anywhere else outside of the United States, except as expressly permitted under the Member Agreement;
4) Engage in any willful or wanton misconduct, which, among other things, may include reckless conduct such as: the failure to use seat belts, the failure to use child seats or other child restraints where legally required, use when overloaded (including with more occupants than seat belts provided), use off paved roads or on roads that are not regularly maintained, or failing to close and lock all doors, vehicle windows and the trunk;
5) Use or permit the use of the vehicle by anyone:
(i) While legally intoxicated or under the influence of alcohol, drugs or other absorbed elements which may adversely affect a person's ability to drive safely;
(ii) For any purpose that could properly be charged as a crime, such as the illegal transportation of persons, drugs or contraband;
(iii) To tow or push anything;
(iv) In a speed test, contest, race, rally, or demonstration;
(v) In driver training activity;
(vi) To carry persons for a charge, fee or for any activities relating to “Ride Sharing Services”;
(vii) If the vehicle has been obtained from Upshift by fraud or misrepresentation; or
(viii) To carry hazardous materials (other than normal quantities of materials used in the operation of the vehicle that are stored within the containers provided for them), explosives, biologically active materials that are hazardous to human health or radioactive material including, but not limited to, any biologically active or radioactive material for research, education, development or industrial purposes, or for incidental purposes.
b) To the extent permitted by law, if a vehicle is used in a manner prohibited above or you fail to report damage or loss as required by the Member Agreement, you may cease to be covered under the vehicle insurance policy. You may also be liable for damages to Upshift or third parties caused by the breach, together with Upshift's and/or such third parties’ related costs and attorneys' fees.
V. TERMINATION AND SUSPENSION OF YOUR MEMBERSHIP
a) You may terminate your membership with Service at any time by contacting us by phone, email or on the website. You will be responsible for any and all charges accrued by you up to and including the date of termination of your membership.
b) We may suspend or terminate your membership:
1) If you do not pay charges at the time such charges are due to be paid;
2) If you no longer meet the Service's membership requirements;
3) If, in Upshift's sole discretion, we determine that you have failed to comply with the terms and conditions of this Agreement; or
4) If, in Upshift's sole discretion, we determine that you have abused your membership in a way that detrimentally affects other Service members (including, without limitation, regularly returning Vehicles late, damaged, under-fueled, or in an unclean condition).
Member is still responsible for any charges already incurred including but not limited to, damages, fees, insurance deductible, etc.
VI. VEHICLE MAINTENANCE
Upshift will provide me with access to vehicles owned, leased, or rented by Upshift, and Upshift will pay for vehicle-related expenses such as tires, maintenance, and repairs. Upshift will endeavor to ensure Vehicles are clean, reliable and well maintained and will periodically inspect the Vehicles.
1) Upshift will rely on members for primary inspection of Vehicles that they use; members must immediately report to Upshift all maintenance and safety problems or concerns.
2) Upshift does not make any representations or warranties as to the fitness or condition of any Vehicle.
3) Upshift will have a program of regular preventative maintenance and will take action with respect to defects that are reported to it.
4) If the vehicle is equipped with or you install a bicycle rack, snow chains, ski rack, trailer hitch, or child seat, you assume all risk for loss or damage to property resulting from your use of it. Upshift is not responsible to you, any member or anyone else for any loss of or damages to your or their personal property resulting from the use of any bicycle or ski rack, snow chains, trailer hitch or child seat regardless of whether this is caused by your or their acts or omissions, those of any third party or, to the extent permitted by law, Upshift's negligence. You and any members waive any claim against Upshift, its agents, employees or affiliates, for loss of or damage to your or anyone else's personal property arising from the use of a bicycle or ski rack, snow chains, trailer hitch or child seat caused by your or any member’s, by any third party's or, to the extent permitted by law, by Upshift's negligence in whole or in part.
a) To the maximum extent permitted by law, you agree to defend, indemnify and hold harmless Upshift, its affiliates and their respective directors, officers, employees and agents from and against any and losses, liabilities, damages, costs and expenses (including reasonable attorneys fees) arising out of third-party claims, actions, suits or proceedings related to (a) your breach of this Agreement or (b) your use of the Service, including without limitation your rental of any Vehicle through the Service.
VIII. LIMIT ON LIABILITY
a) UPSHIFT WILL NOT BE LIABLE TO YOU, ANY AUTHORIZED OPERATORS, OR ANYONE ELSE, UNDER ANY THEORY OF LIABILITY (WHETHER CONTRACT, TORT INCLUDING NEGLIGENCE OR OTHERWISE), FOR ANY INDIRECT, SPECIAL OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS) ARISING IN ANY WAY OUT OF ANY MATTER COVERED BY THIS AGREEMENT, WHETHER OR NOT WE HAVE BEEN ADVISED OF OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES ARISING.
a) Upshift may amend this Agreement at any time. Upshift will notify you of such amendment the next time you login or make a booking within thirty (30) days after the amendment effective date. In addition, you may, at any time request from Upshift the current version of this Agreement. It is your responsibility, at the time you rent a Vehicle through the Service, to make sure you have received the then current version of this Agreement.
a) No waiver of default by either party under any of the terms or conditions of this Agreement shall be construed as a waiver of any subsequent default of any of the terms or conditions of this Agreement.
b) This Agreement and your relationship with us under this Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. You and we agree to submit to the exclusive jurisdiction of the state and federal courts located within the City and County of San Francisco, California to resolve any legal matter arising from this Agreement. Notwithstanding this, you agree that we shall still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.
c) If any court of law, having the jurisdiction to decide on this matter, rules that any provision of this Agreement is invalid, then that provision will be removed from this Agreement without affecting the rest of this Agreement. The remaining provisions of this Agreement will continue to be valid and enforceable.
d) This Agreement, along with any amendments hereto, encompasses the entire agreement between you and Upshift, and supersedes all previous understandings and agreements between you and Upshift. You and Upshift acknowledge and represent that you and Upshift, respectively, have not relied on any representation, assertion, guarantee, warranty, collateral contract or other assurance, except those set out in this Agreement, made by or on behalf of any other party or any other person or entity whatsoever, prior to the execution of this Agreement.
e) We may assign or transfer this Agreement at any time. You may not assign or transfer this Agreement, or any of your rights or obligations hereunder, without our prior written consent, which we can refuse in our sole discretion.
f) No agency, partnership, joint venture, employer-employee or franchisor-franchisee relationship is intended or created by this Agreement or your use of the Service.
By joining and using the Upshift service, I accept and agree to the terms of this Agreement (including without limitation the Fees Schedule) and I certify that everything in my application is true and accurate to the best of my knowledge.