Octant Terms of Service
Last Updated: May 30, 2017
These terms of service constitute a legally binding agreement (the “Agreement”) between you and Octant Technologies, Inc. (“Octant,” “we,” “us” or “our”) governing your use of the Octant application, website, and technology platform (collectively, the “Octant Platform”).
PLEASE BE ADVISED: THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW CLAIMS YOU AND OCTANT HAVE AGAINST EACH OTHER CAN BE BROUGHT (SEE SECTION 15 BELOW). THESE PROVISIONS WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST OCTANT 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 USER, YOU HAVE AN OPPORTUNITY TO OPT OUT OF ARBITRATION WITH RESPECT TO CERTAIN CLAIMS AS PROVIDED IN SECTION 15.
By entering into to this Agreement, you expressly acknowledge that you understand this Agreement (including the dispute resolution and arbitration provisions Section 15) 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 OCTANT PLATFORM.
1. The Octant Platform
The Octant Platform provides a way for persons (“Users”) who seek to sell their driving information the ability to collect, aggregate, and send their information to Octant. For purposes of the Agreement, the driving and information collection services provided by Users to Octant shall be referred to collectively as “Services”. Any decision by a User to offer Services is a decision made in such User’s sole discretion.
2. Modification to the Agreement
In the event Octant modifies the terms and conditions of this Agreement, such modifications shall be binding on you only upon your acceptance of the modified Agreement. Octant 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 Octant 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 Octant Platform may only be used by individuals who can form legally binding contracts under applicable law. The Octant 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.
If you are a User, you will receive payment for your provision of Services. Octant will process all payments due to you through its third party payments processor. You acknowledge and agree that such amounts shall not include any interest and will be net of any amounts that we are required to withhold by law.
Pricing. You expressly authorize Octant to set the prices on your behalf for the provision of all Services. Octant reserves the right to change the Pay rate schedule at any time in our discretion based upon local market factors, and we will provide you with notice in the event of changes.
Pay Adjustment. Octant reserves the right to adjust or withhold all or a portion of Pay if it believes that (i) you have attempted to defraud or abuse Octant or Octant’s payment systems, (ii) in order to resolve a data discrepancy (e.g., idle time was reported erroneously as driving time). Octant’s decision to adjust or withhold Pay in any way shall be exercised in a reasonable manner.
5. Octant Communications
By becoming a User, you agree to receive communications from us, including via e-mail, text message, calls, and push notifications. You agree that texts, calls or prerecorded messages may be generated by automatic telephone dialing systems. Communications from Octant, its affiliated companies and/or Users, may include but are not limited to: operational communications concerning your User account or use of the Octant Platform or Services, updates concerning new and existing features on the Octant Platform, communications concerning promotions run by us or our third- party partners, and news concerning Octant 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 EMAIL DRIVERCOMMS@OCTANT.IO TO OPT OUT. YOU ACKNOWLEDGE THAT YOU ARE NOT REQUIRED TO CONSENT TO RECEIVE PROMOTIONAL TEXTS OR CALLS AS A CONDITION OF USING THE OCTANT PLATFORM OR THE SERVICES.
6. Your Information
Your Information is any information you provide, publish or post to or through the Octant Platform (including any profile information you provide) or send to other Users (including via in-application feedback, any email feature, or through any Octant-related Facebook, Twitter or other social media posting) (your “Information”). You consent to us using your Information to create a User account that will allow you to use the Octant Platform and participate in the Services. You are solely responsible for your Information and your interactions with other members of the public. You agree to provide and maintain accurate, current and complete information and that we and other members of the public may rely on your Information as accurate, current and complete.
You hereby grant to Octant the exclusive, perpetual, irrevocable, royalty-free, sublicensable, transferable right for Octant to aggregate your information (as defined in Octant’s Privacy Agreement), such that such aggregated information does not identify you (collectively, “Aggregated Data”), and to analyze, copy, use and disclose such Aggregated Data for any purpose. Aggregated Data is information that Octant generates from individualized information but subsequently maintains and uses in a form that combines information about numerous individuals so that no individual can be identified.
7. Promotions and Referral Programs
Octant, 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 Octant. Octant reserves the right to withhold or deduct credits or benefits obtained through a promotion the event that Octant determines or 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, Octant may provide you with or allow you to create a “Octant Code,” a unique alphanumeric code for you to distribute to friends, family and other persons (each a “Referred User”) to become new Octant Users. Octant Codes may only be distributed for promotional purposes and must be given away free of charge. You may not sell, trade, or barter your Octant Code. Octant reserves the right to deactivate or invalidate any Octant Code at any time in Octant’s discretion.
From time to time, Octant may offer you with incentives to refer new Users to the Octant community (the “Referral Program”). These incentives may come in the form of Octant Credits, and Octant may set or change the incentive types, amounts, terms, restrictions, and qualification requirements for any incentives in its sole discretion.
8. Restricted Activities
With respect to your use of the Octant Platform and your participation in the Services, you agree that you will not:
impersonate any person or entity;
stalk, threaten, or otherwise harass any person, or carry any weapons;
violate any law, statute, rule, permit, ordinance or regulation;
interfere with or disrupt the Services or the Octant Platform or the servers or networks connected to the Octant Platform;
post Information or interact on the Octant Platform or Services in a manner which is false, inaccurate, misleading (directly or by omission or failure to update information), defamatory, libelous, abusive, obscene, profane, offensive, sexually oriented, threatening, harassing, or illegal;
use the Octant Platform in any way that infringes any third party’s rights, including but not limited to: intellectual property rights, copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy;
post, email or otherwise transmit any malicious code, files or programs designed to interrupt, damage, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or surreptitiously intercept or expropriate any system, data or personal information;
forge headers or otherwise manipulate identifiers in order to disguise the origin of any information transmitted through the Octant Platform;
“frame” or “mirror” any part of the Octant Platform, without our prior written authorization or use meta tags or code or other devices containing any reference to us in order to direct any person to any other web site for any purpose; or
modify, adapt, translate, reverse engineer, decipher, decompile or otherwise disassemble any portion of the Octant Platform or any software used on or for the Octant Platform;
rent, lease, lend, sell, redistribute, license or sublicense the Octant Platform or access to any portion of the Octant Platform;
use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, scrape, “data mine”, or in any way reproduce or circumvent the navigational structure or presentation of the Octant Platform or its contents;
link directly or indirectly to any other web sites;
transfer or sell your User account, password and/or identification to any other party
discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or
cause any third party to engage in the restricted activities above.
9. User Representations, Warranties and Agreements
By providing Services as a User on the Octant Platform, you represent, warrant, and agree that:
You possess a valid driver’s license and are authorized and medically fit to operate a motor vehicle and have all appropriate licenses, approvals and authority to operate a motor vehicle in all jurisdictions in which you provide Services.
You own, or have the legal right to operate, the vehicle you use when providing Services, and such vehicle is in good operating condition and meets the industry safety standards and all applicable statutory and state department of motor vehicle requirements for a vehicle of its kind.
You will not engage in reckless behavior while driving, drive unsafely, operate a vehicle that is unsafe to drive, be involved in a motor vehicle accident or collision of any kind, provide Services as a User while under the influence of alcohol or drugs, or take action that harms or threatens to harm the safety of the Octant community or third parties.
You will only provide Services using the vehicle that has been reported to, and approved by Octant.
You will not make any misrepresentation regarding Octant, the Octant Platform, the Services or your status as a User.
You will not attempt to defraud Octant in connection with your provision of Services. If we suspect that you have engaged in fraudulent activity we may withhold applicable Pay or other payments for the ride(s) in question.
You agree that we may obtain information about you, including your criminal and driving records, and you agree to provide any further necessary authorizations to facilitate our access to such records during the term of the Agreement.
You have a valid policy of liability insurance (in coverage amounts consistent with all applicable legal requirements) that names or schedules you for the operation of the vehicle you use to provide Services.
You will pay all applicable federal, state and local taxes based on your provision of Services and any payments received by you.
10. Intellectual Property
All intellectual property rights in the Octant Platform shall be owned by Octant absolutely and in their entirety. These rights include and are not limited to 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 Octant 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 Octant. Octant 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.
Octant and other Octant logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of Octant in the United States and/or other countries (collectively, the “Octant Marks”). If you provide Services as a User, Octant 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 Octant Marks solely in connection with providing the Services through the Octant Platform (“License”). The License is non-transferable and non-assignable, and you shall not grant to any third party any right, permission, license or sublicense with respect to any of the rights granted hereunder without Octant’s prior written permission, which it may withhold in its sole discretion. The Octant Marks may not be used in any manner that is likely to cause confusion.
You acknowledge that Octant is the owner and licensor of the Octant Marks, including all goodwill associated therewith, and that your use of the Octant Marks will confer no additional interest in or ownership of the Octant Marks in you but rather inures to the benefit of Octant. You agree to use the Octant Marks strictly in accordance with Octant’s Trademark Usage Guidelines, as may be provided to you and revised from time to time, and to immediately cease any use that Octant determines to nonconforming or otherwise unacceptable.
You agree that you will not: (1) create any materials that incorporate the Octant Marks or any derivatives of the Octant Marks other than as expressly approved by Octant in writing; (2) use the Octant Marks in any way that tends to impair their validity as proprietary trademarks, service marks, trade names or trade dress, or use the Octant Marks other than in accordance with the terms, conditions and restrictions herein; (3) take any other action that would jeopardize or impair Octant’s rights as owner of the Octant Marks or the legality and/or enforceability of the Octant Marks, including, without limitation, challenging or opposing Octant’s ownership in the Octant Marks; (4) apply for trademark registration or renewal of trademark registration of any of the Octant Marks, any derivative of the Octant Marks, any combination of the Octant Marks and any other name, or any trademark, service mark, trade name, symbol or word which is similar to the Octant Marks; (5) use the Octant 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 Octant’s sole discretion. If you create any materials bearing the Octant Marks (in violation of this Agreement or otherwise), you agree that upon their creation Octant exclusively owns all right, title and interest in and to such materials, including without limitation any modifications to the Octant Marks or derivative works based on the Octant Marks. You further agree to assign any interest or right you may have in such materials to Octant, and to provide information and execute any documents as reasonably requested by Octant to enable Octant to formalize such assignment.
Octant respects the intellectual property of others, and expects Users to do the same. If you believe, in good faith, that any materials on the Octant Platform or Services infringe upon your copyrights, please contact Octant at email@example.com for information on how to make a copyright complaint.
The following disclaimers are made on behalf of Octant, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and shareholders.
The Octant 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 Octant Platform and/or the Services, including the ability to provide or receive Services at any given location or time. We specifically disclaim any implied warranties of title, merchantability, 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 Octant 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 Octant Platform will be corrected, or that the Octant 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 Octant Platform or Services.
Octant is not responsible for the conduct, whether online or offline, of any User of the Octant Platform or Services. You are solely responsible for your interactions with other Users. By using the Octant Platform and participating in the Services, you agree to accept such risks and agree that Octant is not responsible for the acts or omissions of Users on the Octant Platform or participating in the Services.
Octant 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 Octant 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 Octant Platform or through the Services. Please carefully select the type of information that you post on the Octant 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 Octant or made available through the Octant 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 Octant Platform or otherwise. We reserve the right, but we have no obligation, to monitor the materials posted on the Octant 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.
Neither Octant, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data tracked or displayed by the Octant Platform. Any of your Information, including geolocational data, you upload, provide, or post on the Octant Platform may be accessible to Octant and certain Users of the Octant Platform.
Octant advises you to use the Octant Platform with a data plan with unlimited or very high data usage limits, and Octant shall not responsible or liable for any fees, costs, or overage charges associated with any data plan you use to access the Octant Platform.
This paragraph applies to any version of the Octant Platform that you acquire from the Apple App Store. This Agreement is entered into between you and Octant. Apple, Inc. (“Apple”) is not a party to this Agreement and shall have no obligations with respect to the Octant Platform. Octant, not Apple, is solely responsible for the Octant 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.
You will defend, indemnify, and hold Octant 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 Octant 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, without limitation, Users, 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 Octant 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 User; and/or (5) any other activities in connection with the Services. This indemnity shall be applicable without regard to the negligence of any party, including any indemnified person.
13. Limitation of Liability
IN NO EVENT WILL OCTANT, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR SHAREHOLDERS (COLLECTIVELY “OCTANT” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE OCTANT PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE OCTANT PLATFORM, THE SERVICES, OR THIS AGREEMENT, HOWEVER ARISING INCLUDING NEGLIGENCE, EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. 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.
14. Term and Termination
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 Octant; 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 8 or breach of Section 9(a) through (i) of this Agreement. In addition, Octant 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) Octant has the good faith belief that such action is necessary to protect the safety of the Octant community or third parties, provided that in the event of a deactivation pursuant to (1)-(2) above, you will be given notice of the potential or actual deactivation and an opportunity to attempt to cure the issue to Octant’s reasonable satisfaction prior to Octant permanently terminating the Agreement. For all other breaches of this Agreement, you will be provided notice and an opportunity to cure the breach. If the breach is cured in a timely manner and to Octant’s satisfaction, this Agreement will not be permanently terminated. Sections 2, 5, 6 (with respect to the license), 10-11, 12-17, and 18 shall survive any termination or expiration of this Agreement.
15. DISPUTE RESOLUTION AND ARBITRATION AGREEMENT
(a) Agreement to Binding Arbitration Between You and Octant.
YOU AND OCTANT MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION, as set forth below. This agreement to arbitrate (“Arbitration Agreement”) is governed by the Federal Arbitration Act and survives after the Agreement terminates or your relationship with Octant 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 (defined below) between you and Octant, including our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, or shareholders.
Except as expressly provided below, ALL DISPUTES AND CLAIMS BETWEEN US (EACH A “CLAIM” AND COLLECTIVELY, “CLAIMS”) SHALL BE EXCLUSIVELY RESOLVED BY BINDING ARBITRATION SOLELY BETWEEN YOU AND OCTANT. These Claims include, but are not limited to, any dispute, claim or controversy, whether based on past, present, or future events, arising out of or relating to: this Agreement and prior versions thereof (including the breach, termination, enforcement, interpretation or validity thereof), the Octant Platform, the Services, any other goods or services made available through the Octant Platform, your relationship with Octant, the threatened or actual suspension, deactivation or termination of your User Account or this Agreement, payments made by you or any payments made or allegedly owed to you, any promotions or offers made by Octant, any city, county, state or federal wage-hour law, trade secrets, unfair competition, compensation, breaks and rest periods, expense reimbursement, wrongful termination, discrimination, harassment, retaliation, fraud, defamation, emotional distress, breach of any express or implied contract or covenant, claims arising under federal or state consumer protection laws; claims arising under antitrust laws, claims arising under the Telephone Consumer Protection Act and Fair Credit Reporting Act; and claims arising under the Uniform Trade Secrets Act, Civil Rights Act of 1964, Americans With Disabilities Act, Age Discrimination in Employment Act, Older Workers Benefit Protection Act, Family Medical Leave Act, Fair Labor Standards Act, Employee Retirement Income Security Act (except for individual claims for employee benefits under any benefit plan sponsored by Octant and covered by the Employee Retirement Income Security Act of 1974 or funded by insurance), and state statutes, if any, addressing the same or similar subject matters, and all other federal and state statutory and common law claims. All disputes concerning the arbitrability of a Claim (including disputes about the scope, applicability, enforceability, revocability or validity of the Arbitration Agreement) shall be decided by the arbitrator, except as expressly provided below.
BY AGREEING TO ARBITRATION, YOU UNDERSTAND THAT YOU AND OCTANT ARE WAIVING THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL FOR ALL CLAIMS, EXCEPT AS EXPRESSLY OTHERWISE PROVIDED IN THIS ARBITRATION AGREEMENT. This Arbitration Agreement is intended to require arbitration of every claim or dispute that can lawfully be arbitrated, except for those claims and disputes which by the terms of this Arbitration Agreement are expressly excluded from the requirement to arbitrate.
(b) Prohibition of Class Actions and Non-Individualized Relief.
YOU UNDERSTAND AND AGREE THAT YOU AND OCTANT 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 OCTANT 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 OCTANT, WHICH ARE ADDRESSED SEPARATELY IN SECTION 13(C).
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.
Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA 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, the class, collective, and/or representative action on such Claims must be litigated 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) Representative waiver.
Notwithstanding any other provision of this Agreement or the Arbitration Agreement, to the fullest extent permitted by law: (1) you and Octant agree not to bring a representative action on behalf of others in any court or in arbitration, and (2) for any claim brought on a private attorney general basis, both you and Octant agree that any such dispute shall be resolved in arbitration on an individual basis only (i.e., to resolve whether you have personally been aggrieved or subject to any violations of law), and that such an action may not be used to resolve the claims or rights of other individuals in a single or collective proceeding (i.e., to resolve whether other individuals have been aggrieved or subject to any violations of law) (collectively, “representative waiver”). Notwithstanding any other provision of this Agreement, the Arbitration Agreement or the AAA Rules, disputes regarding the scope, applicability, enforceability, revocability or validity of this waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. If any provision of this representative waiver is found to be unenforceable or unlawful for any reason: (i) the unenforceable provision shall be severed from this Agreement; (ii) severance of the unenforceable provision shall have no impact whatsoever on the Arbitration Agreement or the requirement that any remaining Claims be arbitrated on an individual basis pursuant to the Arbitration Agreement.
(d) Rules Governing the Arbitration.
Any arbitration conducted pursuant to this Arbitration Agreement shall be administered by the American Arbitration Association (“AAA”) pursuant to its Consumer Arbitration Rules that are in effect at the time the arbitration is initiated, as modified by the terms set forth in this Agreement. Copies of these rules can be obtained at the AAA’s website (www.adr.org) (the “AAA Rules”) or by calling the AAA at 1-800-778-7879. Notwithstanding the foregoing, if requested by you and if proper based on the facts and circumstances of the Claims presented, the arbitrator shall have the discretion to select a different set of AAA Rules, but in no event shall the arbitrator consolidate more than one person’s Claims, or otherwise preside over any form of representative, collective, or class proceeding.
As part of the arbitration, both you and Octant will have the opportunity for reasonable discovery of non-privileged information that is relevant to the Claim. The arbitrator may award any individualized remedies that would be available in court. 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. The arbitrator will provide a reasoned written statement of the arbitrator’s decision which shall explain the award given and the findings and conclusions on which the decision is based.
The arbitrator will decide the substance of all claims in accordance with applicable law, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Users, but is bound by rulings in prior arbitrations involving the same User to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof, provided that any award may be challenged in a court of competent jurisdiction.
(e) Arbitration Fees and Awards.
The payment of filing and arbitration fees will be governed by the relevant AAA Rules subject to the following modifications:
If you initiate arbitration under this Arbitration Agreement after participating in the optional Negotiation process described in subsection (k) below and are otherwise required to pay a filing fee under the relevant AAA Rules, Octant agrees that, unless your claim is for $5,000 or more, your share of the filing and arbitration fees is limited to $50, and that, after you submit proof of payment of the filing fee to Octant, Octant will promptly reimburse you for all but $50 of the filing fee. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules.
If Octant initiates arbitration under this Arbitration Agreement, Octant will pay all AAA filing and arbitration fees.
With respect to any Claims brought by Octant against a User, or for Claims brought by a User against Octant that: (A) are based on an alleged employment relationship between Octant and a User; (B) arise out of, or relate to, Octant’s actual deactivation of a User’s User account or a threat by Octant to deactivate a User’s User account; (C) arise out of, or relate to, Octant’s actual termination of a User’s Agreement with Octant under the termination provisions of this Agreement, or a threat by Octant to terminate a User’s Agreement; or (D) arise out of, or relate to, Pay (as defined in this Agreement), other than disputes relating to referral bonuses, other Octant promotions, or consumer-type disputes (the subset of Claims in subsections (A)-(D) shall be collectively referred to as “User Claims”), Octant 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 Octant pursuant to the fee provisions above). However, if you are the party initiating the User 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, unless a lower fee amount would be owed by you pursuant to the AAA 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.
Except as provided in Federal Rule of Civil Procedure 68 or any state equivalents, each party shall pay its own attorneys’ fees and pay any costs that are not unique to the arbitration (i.e., costs that each party would incur if the claim(s) were litigated in a court such as costs to subpoena witnesses and/or documents, take depositions and purchase deposition transcripts, copy documents, etc.).
At the end of any arbitration, the arbitrator may award reasonable fees and costs or any portion thereof to you if you prevail, to the extent authorized by applicable law.
Although under some laws Octant may have a right to an award of attorneys' fees and non-filing fee expenses if it prevails in an arbitration, Octant agrees that it will not seek such an award.
If the arbitrator issues you an award that is greater than the value of Octant’s last written settlement offer made after you participated in good faith in the optional Negotiation process described in subsection (j) below, then Octant will pay you the amount of the award or U.S. $1,000, whichever is greater.
(f) Location and Manner of Arbitration.
Unless you and Octant agree otherwise, any arbitration hearings between Octant and a User will take place in the county in which the User provides Services. If AAA arbitration is unavailable in your county, the arbitration hearings will take place in the nearest available location for a AAA arbitration. If your Claim is for $10,000 or less, Octant agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as determined by the AAA Rules. If your Claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules.
(g) 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; (2) a representative action brought on behalf of others under private attorneys general acts, to the extent the representative waiver in Section 15(c) of such action is deemed unenforceable by a court of competent jurisdiction; (3) claims for workers’ compensation, state disability insurance and unemployment insurance benefits; and (4) claims that may not be subject to arbitration as a matter of law.
Nothing in this Arbitration Agreement prevents you from making a report to or filing a claim or charge with the Equal Employment Opportunity Commission, U.S. Department of Labor, Securities Exchange Commission, National Labor Relations Board, 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 you knowingly and voluntarily waive the right to seek or recover money damages of any type pursuant to any administrative complaint and instead may seek such relief only through arbitration under this Agreement. 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, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
(i) Driver Claims in Pending Settlement.
If you are a member of a putative class in a lawsuit against Octant involving User Claims and a Motion for Preliminary Approval of a Settlement has been filed with the court in that lawsuit prior to this Agreement’s effective date (a “Pending Settlement Action”), then this Arbitration Agreement shall not apply to your User Claims in that particular class action. Instead, your User Claims in that Pending Settlement Action shall continue to be governed by the arbitration provisions contained in the applicable Agreement that you accepted prior to this Agreement’s effective date.
(j) Opting Out of Arbitration for User Claims That Are Not In a Pending Settlement Action.
As a User, you may opt out of the requirement to arbitrate User Claims defined in Section 15(e)(3) (except as limited by Section 15(i) above) pursuant to the terms of this subsection. If you do not wish to be subject to this Arbitration Agreement with respect to User Claims, you may opt out of arbitration with respect to such User Claims, other than those in a Pending Settlement Action, by notifying Octant in writing of your desire to opt out of arbitration for such User Claims, which writing must be dated, signed and delivered by electronic mail to contact@Octant.com.
Cases have been filed against Octant and may be filed in the future involving User Claims. You should assume that there are now, and may be in the future, lawsuits against Octant alleging class, collective, and/or representative User Claims in which the plaintiffs seek to act on your behalf, and which, if successful, could result in some monetary recovery to you. But if you do agree to arbitration of User Claims with Octant under this Arbitration Agreement, you are agreeing in advance that you will bring all such claims, and seek all monetary and other relief, against Octant in an individual arbitration provision, except for the User Claims that are part of a Pending Settlement Action. You are also agreeing in advance that you will not participate in, or seek to recover monetary or other relief, for such claims in any court action or class, collective, and/or representative action. You have the right to consult with counsel of your choice concerning this Arbitration Agreement and you will not be subject to retaliation if you exercise your right to assert claims or opt- out of any User Claims under this Arbitration Agreement.
(k) Optional Pre-Arbitration Negotiation Process.
Before initiating any arbitration or proceeding, you and Octant 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 Octant. 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 Octant’s business, operations and properties, including User information (“Confidential Information”) disclosed to you by Octant 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 Octant in order to prevent it from falling into the public domain. Notwithstanding the above, you shall not have liability to Octant with regard to any Confidential Information which you can prove: was in the public domain at the time it was disclosed by Octant 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 Octant; becomes known to you, without restriction, from a source other than Octant without breach of this Agreement by you and otherwise not in violation of Octant’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 Octant to enable Octant to seek a protective order or otherwise prevent or restrict such disclosure.
17. Relationship with Octant
As a User on the Octant Platform, you acknowledge and agree that you and Octant are in a direct business relationship, and the relationship between the parties under this Agreement is solely that of independent contracting parties. You and Octant expressly agree expressly agree that (1) this is not an employment agreement and does not create an employment relationship between you and Octant; and (2) no joint venture, franchisor-franchisee, partnership, or agency relationship is intended or created by this Agreement. You have no authority to bind Octant, and you undertake not to hold yourself out as an employee, agent or authorized representative of Octant.
Octant 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 Octant Platform. With the exception of any signage required by law or permit/license rules or requirements, Octant shall have no right to require you to: (a) display Octant’s names, logos or colors on your vehicle(s); or (b) wear a uniform or any other clothing displaying Octant’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.
These Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, including its conflicts of law rules, and the United States of America. You agree that any dispute arising from or relating to the subject matter of these Terms of Service shall be governed by the exclusive jurisdiction and venue of the state and federal courts of Boston, Massachusetts.
Last Updated: February 8, 2017
2. Information We Collect
A. Information You Provide to Us
Registration Information. When you sign up for a Octant account, you give us your name, email address, and phone number.
Communications. If you contact us directly, we may receive additional information about you. For example, when you contact our Customer Support Team, we will receive your name, email address, phone number, the contents of a message or attachments that you may send to us, and other information you choose to provide.
User Application Information. If you decide to join our Octant driver community, in addition to the basic registration information we ask you for your date of birth, physical address, Social Security number, driver’s license information, vehicle information, car insurance information, and in some jurisdictions we may collect additional business license or permitting information. We share this information with our partners who help us by running background checks on Users to help protect the Octant community.
Payment Information. To make sure Users get paid, we keep information about Users’ bank routing numbers, tax information, and any other payment information provided by Users.
B. Information We Collect When You Use the Octant Platform
The nature of Octant’s service is an exchange of User’s driving information for Pay. By participating on the Octant Platform, User’s agree to the collection, transmission, and use of the following information:
Phone-based data. The Octant Platform app will collect movement and geolocation data available through the User’s phone. This information includes readings from your phone’s accelerometer, gyroscope, and global positioning system (GPS).
On-Board Diagnostic (“OBD”) data. The OBD sensor will collect vehicle-specific information, which is transmitted to Octant through the Octant Platform app. The OBD collects information including but not limited to vehicle speed, engine speed, and throttle position. By using the Octant Platform, the User grants full read access to the User’s vehicle OBD port.
Other vehicle sensors. A subset of Users may be selected to opt-in for additional vehicle sensors. These users will be provided an additional Terms of Service in addition to the conditions included in this document.
Usage Information. To help us understand how you use the Octant Platform and to help us improve it, we automatically receive information about your interactions with the Octant Platform, like the pages or other content you view, your actions within the Octant app, and the dates and times of your visits.
3. How We Use the Information We Collect
We use the information we collect from all Users to:
Provide, improve, expand, and promote the Octant Platform;
Analyze how the Octant community uses the Octant Platform;
Communicate with you, either directly or through one of our partners, including for marketing and promotional purposes;
Personalize the Octant experience for you;
Send you text messages and push notifications;
Facilitate transactions and payments;
Provide you with User support;
Find and prevent fraud;
Sending emails and text messages to Users who have started the driver application process regarding the status of their application;
Determining a User’s eligibility to drive for Octant
Notifying Users about pricing and service updates;
Aggregating and providing collections of User driving data (where no individual User can be identified) to our partners and customers for their research needs