Terms of service
Last Updated: 8/30/2021
Welcome, and thank you for your interest in MagicBus, Inc. (“MagicBus,” “we,” or “us”) and our platform, website, and application for searching and reserving transportation services (collectively, our “Platform”). These Terms of Service are a legally binding contract between you and MagicBus regarding your use of the Platform and your relationship with MagicBus. If you agree to these Terms on behalf of an organization, then you represent and warrant that you have the authority to bind that organization to these Terms. In that case, the term “you” will refer to the organization.
PLEASE READ THE FOLLOWING TERMS CAREFULLY.
MAGICBUS DOES NOT PROVIDE TRANSPORTATION SERVICES. YOU AGREE THAT ANY TRANSPORTATION SERVICES ARRANGED THROUGH THE PLATFORM (“TRANSPORTATION SERVICES”) ARE PROVIDED BY THE APPLICABLE THIRD-PARTY TRANSPORTATION PROVIDER AND NOT MAGICBUS, AND THAT MAGICBUS’S LIABILITY TO YOU SHALL BE LIMITED AS SET FORTH IN SECTIONS 11 AND 12.
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 15.2, you agree that disputes arising under these Terms will be resolved by binding, individual arbitration, and BY ACCEPTING THESE TERMS, YOU AND MAGICBUS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract (except for matters that may be taken to small claims court). Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
- MagicBus Platform Overview. The Platform enables users to find information about stops and schedules for, and book rides on, transportation routes operated by third-party providers of Transportation Services (“Transportation Providers”).
- Eligibility. You must be at least 18 years old to use the Platform. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Platform; and (c) your registration and your use of the Platform will not violate any law or regulation.
Accounts and Registration
- Your Information. To use the Platform, you must register an account. When you register an account, you may be required to provide us with some information about yourself, such as your name, the name of your employer or educational institution, your email address, your telephone number, pick up and drop off locations (which may be near your home or work addresses) and other contact information. You agree that the information you provide to us is accurate and that you will keep such information accurate and up-to-date at all times. You hereby authorize MagicBus to share the foregoing information with Transportation Providers and their agents and representatives (including the drivers of vehicles on transportation routes associated with Transportation Providers) to the extent necessary to enable you to reserve a space on a vehicle offered by a Transportation Provider (a “Reservation”), otherwise verify your eligibility to receive such Transportation Services or recommend a new transportation route to a Transportation Provider. You agree that Transportation Providers and their agents and representatives (including drivers) may contact you in connection with the matters described in the immediately foregoing sentence.
- Account Security. When you register an account, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your account and password, and you accept responsibility for all activities that occur under your account. If you have reason to believe that your account is no longer secure, then you must immediately notify us at [email protected]
- Limited License. Subject to your complete and ongoing compliance with these Terms, MagicBus grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to: (a) install and use one object code copy of any mobile application associated with the Platform obtained from a legitimate marketplace (e.g., Apple Store or Google Play) on a mobile device that you own or control; and (b) access and use the Platform.
- License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Platform; (b) make modifications to the Platform; or (c) interfere with or circumvent any feature of the Platform, including any security or access control mechanism. If you are prohibited under applicable law from using the Platform, you may not use it.
Transportation Services; Fees
- Transportation Services. You may use the Platform to search for Transportation Services (and related routes, stops and schedules) offered by Transportation Providers and purchase Reservations. Any Reservations are subject to these Terms and any applicable third-party terms provided by the applicable Transportation Provider (including any such terms presented to you at or prior to the time you purchase the Reservation) (“Third-Party Terms”). In the event of a conflict between these Terms and any Third-Party Terms, these Terms shall control. MagicBus may cancel your Reservation without refund if you breach these Terms or any Third-Party Terms.
- Fees. You may be required to pay fees for services requested through the Platform (“Fees”). Before you pay any Fees, you will have an opportunity to review and accept the Fees that you will be charged. All Fees are in U.S. dollars and are refundable only as set forth in Section 5.4. You authorize MagicBus to charge all such Fees, including all applicable taxes, to the payment method specified in your account. If you pay any fees with a credit card, MagicBus may seek pre-authorization of your credit card account prior to your purchase to verify that the credit card is valid and has the necessary funds or credit available to cover your purchase.
- Reservations. MagicBus does not control Transportation Providers that may offer Transportation Services to you through the Platform. A Transportation Provider may fail to honor a Reservation, or MagicBus may elect to cancel a Reservation in its sole discretion. If MagicBus cancels a Reservation other than for cause under this Agreement, or if MagicBus determines, in its sole discretion, that a Transportation Provider has failed to honor a Reservation placed in accordance with these Terms, then MagicBus will refund to you the amount of the Fees (if any) that you paid to place that Reservation. Provision of the foregoing refund is MagicBus’s sole liability, and your sole remedy, for any failure by a Transportation Provider to honor a Reservation.
- Cancellations. You may reach out to us by email at [email protected] or by text at (626) 624-4295 at least 24 hours prior to the start time of a Reservation to request cancellation of that Reservation. We will accept or deny the cancellation request in accordance with our cancellation policy and the cancellation policy of the applicable Transportation Provider.
- Documentation. You may be required to possess and produce certain documents, including valid photo identification, prior to participating in booked Transportation Services. If you are unable to produce such documents upon request by MagicBus or a Transportation Provider, then you may not be permitted to utilize the Transportation Services and your Reservation may be canceled without refund.
Prohibited Conduct. YOU AGREE NOT TO:
- use the Platform for any illegal purpose, or in violation of any local, state, national, or international law or regulation;
- violate any right of MagicBus or a third party in connection with the Platform, including by infringing or misappropriating any intellectual property right;
- perform any fraudulent activity including (a) providing any false personal information to MagicBus, (b) creating a false identity or impersonating any other person in any way, (c) making a booking for the purpose of holding or blocking seats, or making any booking that is otherwise abusive, (d) claiming a false affiliation or (e) accessing any other Platform account without permission;
- copy, distribute, relist, display, mirror, frame or otherwise embed the Platform, or any portion thereof, in or through any other application or website without first obtaining MagicBus’s express written consent;
- interfere with security-related features of the Platform, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Platform except to the extent that the activity is expressly permitted by applicable law;
- interfere with the operation of the Platform or any user’s enjoyment of the Platform, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Platform; (c) collecting personal information about another user or third party without consent; or (d) interfering with, intruding into, or disrupting any network, equipment, or server connected to or used to provide the Platform;
- sell or otherwise transfer (a) the access granted under these Terms, (b) any services you have arranged via the Platform, (c) any Materials (as defined in Section 18), or (d) any right or ability to view, access, or use any Materials;
- engage in disruptive behavior or consume illegal substances while receiving Transportation Services reserved through the Platform; or
- attempt to do any of the acts described in this Section 6, or assist, encourage, permit, or request any third party to engage in any of the acts described in this Section 6.
- User Content Generally. Certain features of the Platform may permit users to upload content to the Platform, including messages, reviews, photos, video, images, data, text, and other types of works (“User Content”) and to publish User Content on the Platform. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Platform.
- Limited License Grant to MagicBus. By providing User Content to or via the Platform, you grant MagicBus a worldwide, non-exclusive, irrevocable, royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify, and distribute your User Content, in whole or in part, in any media formats and through any media channels now known or hereafter developed, including for the purposes of promoting MagicBus and the Platform.
- Limited License Grant to Other Users. By providing User Content to or via the Platform, you grant other users of the Platform a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Platform.
User Content Representations and Warranties. MagicBus disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Platform. By providing User Content via the Platform, you affirm, represent, and warrant that:
- you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize MagicBus and users of the Platform to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section, in the manner contemplated by MagicBus, the Platform, and these Terms;
- your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause MagicBus to violate any law or regulation; and
- your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, hateful, or otherwise inappropriate.
- User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. MagicBus may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Platform, you may be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against MagicBus with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, MagicBus does not permit copyright-infringing activities on the Platform.
- Text Messaging. MagicBus and those acting on our behalf may send you text (SMS) messages at the phone number you provide us. These messages may include operational messages about your use of the Platform, as well as marketing messages. You may opt out of receiving marketing and/or operational text messages at any time by sending an email to [email protected] indicating that you no longer wish to receive such texts along with the phone number of the mobile device receiving the texts, and you may opt out of receiving marketing text messages by texting “STOP” “END” to “(626) 624-4295” from the mobile device receiving the messages. You may continue to receive text messages for a short period while MagicBus processes your request, and you may also receive text messages confirming the receipt of your opt-out request. Opting out of receiving operational text messages may impact the functionality that the Platform provides to you. Text messages may be sent using an automatic telephone dialing system. Your agreement to receive text messages is not a condition of any purchase or use of the Platform. Standard data and message rates may apply whenever you send or receive such messages, as specified by your carrier.
- Push Notifications. If we make available to you a mobile app and you elect to install our app on your mobile device, then you agree to receive push notifications, which are messages an app sends you on your mobile device when the app is not on. You can turn off notifications by visiting your mobile device’s “settings” page.
- Email. We may send you emails concerning our products and services, as well as those of third parties. You may opt out of promotional emails by following the unsubscribe instructions in the promotional email itself.
Digital Millennium Copyright Act
- Policy. MagicBus complies with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). Please see the MagicBus DMCA Policy at https://www.magicbus.io/dmca-policy/.
Term, Termination and Modification of the Platform
- Term. These Terms are effective beginning when you accept the Terms or first download, install, access, or use the Platform, and ending when terminated as described in Section 10.2.
- Termination. If you violate any provision of these Terms, your authorization to access the Platform and these Terms automatically terminate. In addition, MagicBus may, at its sole discretion, terminate these Terms or your account on the Platform, or suspend or terminate your access to the Platform, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at [email protected]
- Effect of Termination. Upon termination of these Terms: (a) your license rights will terminate and you must immediately cease all use of the Platform; (b) you will no longer be authorized to access your account or the Platform; and (c) all payment obligations accrued prior to termination and Sections 5.2, 6 through 9, 10.3, 11 through 16 and 18 through 28 will survive.
- Modification of the Platform. We also reserve the right to modify or discontinue the Platform or any of its features at any time, temporarily or permanently, without notice. We will have no liability whatsoever on account of any change to the Platform or any suspension or termination of your access to or use of the Platform.
Disclaimers; No Warranties
THE PLATFORM AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, AND MAGICBUS DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. MAGICBUS DOES NOT PROVIDE TRANSPORTATION SERVICES AND IS NOT A COMMON CARRIER. IT IS THE RESPONSIBILITY OF THE APPLICABLE TRANSPORTATION PROVIDER TO PROVIDE THE TRANSPORTATION SERVICES. THE PLATFORM PROVIDES INFORMATION AND A MEANS OF OBTAINING TRANSPORTATION SERVICES FROM TRANSPORTATION PROVIDERS, BUT DOES NOT, AND WILL NOT BE DEEMED TO, PROVIDE SUCH TRANSPORTATION SERVICES. CERTAIN INFORMATION ACCESSIBLE THROUGH THE PLATFORM, INCLUDING INFORMATION CONCERNING TRANSPORTATION ROUTES, SCHEDULES AND AVAILABILITY (IF ANY), IS PROVIDED BY TRANSPORTATION PROVIDERS; AND WITHOUT LIMITING THE OTHER PROVISIONS OF THIS SECTION 11. MAGICBUS DOES NOT CONTROL, AND MAKES NO WARRANTIES CONCERNING, SUCH INFORMATION. AS SET FORTH IN SECTION 12, MAGICBUS HAS NO RESPONSIBILITY OR LIABILITY FOR ANY TRANSPORTATION SERVICES PROVIDED TO YOU BY SUCH THIRD PARTIES.
MAGICBUS DOES NOT WARRANT THAT THE PLATFORM OR ANY PORTION OF THE PLATFORM, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE PLATFORM, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. NO ADVICE, INFORMATION, MATERIALS, OR CONTENT, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM MAGICBUS OR THE PLATFORM, WILL CREATE ANY WARRANTY REGARDING MAGICBUS OR THE PLATFORM THAT IS NOT EXPRESSLY STATED IN THESE TERMS, AND NO AGENT OR EMPLOYEE OF MAGICBUS IS AUTHORIZED TO MAKE ANY WARRANTY OR GUARANTEE EXCEPT AS SET FORTH IN THE TERMS OF THIS AGREEMENT. YOU ACKNOWLEDGE AND AGREE THAT TRANSPORTATION SERVICES ARE INHERENTLY DANGEROUS AND MAY LEAD TO SERIOUS INJURY OR DEATH, AND YOU AGREE TO ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR DEALING WITH ANY TRANSPORTATION PROVIDER, YOUR RECEIPT OF TRANSPORTATION SERVICES OR YOUR USE OF OR ACCESS TO THE PLATFORM AND ANY MATERIALS OR CONTENT AVAILABLE ON THE PLATFORM. YOU USE AND ACCESS THE PLATFORM, ANY MATERIALS OR CONTENT AVAILABLE ON THE PLATFORM, AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR OTHER EQUIPMENT USED IN CONNECTION WITH THE PLATFORM), OR LOSS OF DATA RESULTING FROM USE OF OR ACCESS TO THE PLATFORM AND MATERIALS OR CONTENT AVAILABLE ON THE PLATFORM. MAGICBUS IS NOT RESPONSIBLE FOR: (A) PERSONAL BELONGINGS LEFT IN A VEHICLE; OR (B) ANY EVENTS THAT RESULT FROM MAGICBUS’S DISCLOSURE TO A THIRD PARTY (INCLUDING A TRANSPORTATION PROVIDER, THIRD-PARTY SERVICE PROVIDER OR THE DRIVER OF A VEHICLE ON A NETWORK OPERATED BY A TRANSPORTATION PROVIDER), IN ACCORDANCE WITH THESE TERMS OR OTHERWISE PURSUANT TO YOUR INSTRUCTIONS, OF THE PERSONAL INFORMATION (INCLUDING ADDRESS INFORMATION) YOU PROVIDE TO US .
THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. MagicBus does not disclaim any warranty or other right that MagicBus is prohibited from disclaiming under applicable law.
Limitation of Liability
- NO CONSEQUENTIAL DAMAGES. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE MAGICBUS ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) RELATED TO THIS AGREEMENT OR THE PLATFORM, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT MAGICBUS HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS PROVIDED IN SECTION 15.5(ii), THE AGGREGATE LIABILITY OF MAGICBUS TO YOU FOR ALL MATTERS RELATED TO THE PLATFORM, OR ARISING OUT OF OR RELATED TO THE SUBJECT MATTER OF THIS AGREEMENT, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO MAGICBUS FOR ACCESS TO AND USE OF THE PLATFORM IN THE 12 MONTHS PRIOR TO THE EVENTS OR CIRCUMSTANCES GIVING RISE TO CLAIMS; OR (B) $100.
- TRANSPORTATION SERVICES. THE QUALITY OF THE TRANSPORTATION SERVICES IS THE SOLE RESPONSIBILITY OF THE TRANSPORTATION PROVIDER THAT PROVIDES SUCH TRANSPORTATION SERVICES TO YOU. YOU UNDERSTAND THAT BY USING THE PLATFORM, YOU MAY BE EXPOSED TO ACTIVITIES THAT ARE POTENTIALLY DANGEROUS, HARMFUL, OR OTHERWISE UNSAFE AND THAT YOU USE THE PLATFORM AT YOUR OWN RISK. IN NO EVENT WILL MAGICBUS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE SERVICES OF, OR ASSETS PROVIDED BY, TRANSPORTATION PROVIDERS, INCLUDING WITHOUT LIMITATION, DEATH, BODILY INJURY, OR EMOTIONAL DISTRESS.
- EXCEPTIONS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
- COMPLIANCE WITH LAWS AND REGULATIONS. MAGICBUS MAY CONNECT YOU WITH TRANSPORTATION PROVIDERS WHO PROVIDE YOU WITH TRANSPORTATION SERVICES, BUT MAGICBUS DOES NOT ASSESS THE SUITABILITY, LEGALITY, OR SKILL OF ANY TRANSPORTATION PROVIDER TO PROVIDE THOSE SERVICES. IN PARTICULAR, MAGICBUS WILL NOT BE RESPONSIBLE FOR ANY LIABILITY, CLAIMS, OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO A TRANSPORTATION PROVIDER’S FAILURE TO (1) MAINTAIN A CURRENT LICENSE AND/OR OTHER APPLICABLE PERMIT, OR (2) OTHERWISE COMPLY WITH ALL APPLICABLE LAWS OR REGULATIONS. MAGICBUS WILL NOT BE A PARTY TO DISPUTES, OR NEGOTIATIONS RELATED TO DISPUTES, BETWEEN YOU AND ANY TRANSPORTATION PROVIDER. RESPONSIBILITY FOR THE DECISIONS YOU MAKE WHEN YOU ENGAGE A TRANSPORTATION PROVIDER THROUGH THE PLATFORM RESTS SOLELY WITH YOU.
- ALLOCATION OF RISK. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 12 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Platform and your receipt of any Transportation Services, and you will defend and indemnify MagicBus and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “MagicBus Entities”) from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your access to, use of, or misuse of, the Platform; (b) your breach of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or violation of any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any breach by you of Third-Party Terms, or any other any dispute or issue between you and a third party (including a Transportation Provider). We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
- Third Party Services and Linked Websites. MagicBus may provide tools through the Platform that enable you to export information to third party-services, including through features that allow you to link your account on MagicBus with an account on the third party service, such as Twitter or Facebook, or through our implementation of third party buttons (such as “like” or “share” buttons). By using one of these tools, you agree that MagicBus may transfer that information to the applicable third-party service. Third party services are not under MagicBus’s control, and, to the fullest extent permitted by law, MagicBus is not responsible for any third party’s use of your exported information (including third-party services to which you transfer the exported information and other persons who might access to such exported information through such third party). The Platform may also contain links to third party websites. Linked websites are not under MagicBus’s control, and MagicBus is not responsible for their content.
Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and MagicBus in the most expedient and cost effective manner, and except as described in Section 15.2, you and MagicBus agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND MAGICBUS ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
- Exceptions. Despite the provisions of Section 15.1, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Opt-Out. If you do not wish to resolve disputes by binding arbitration, you may opt out of the provisions of this Section 15 within 30 days after the date that you agree to these Terms by sending a letter to MagicBus, Inc., Attention: Arbitration Opt-Out, 555 West 5th St 35th Floor, Los Angeles, CA 90013 that specifies: your full legal name, the email address associated with your account on the Platform, and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once MagicBus receives your Opt-Out Notice, this Section 15 will be void and any action arising out of these Terms will be resolved as set forth in Section 20. The remaining provisions of these Terms will not be affected by your Opt-Out Notice.
- Arbitrator. Any arbitration between you and MagicBus will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting MagicBus. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
- Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). MagicBus’s address for Notice of Arbitration is: MagicBus, Inc., 555 West 5th St 35th Floor, Los Angeles, CA 90013. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or MagicBus may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or MagicBus must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by MagicBus in settlement of the dispute prior to the award, MagicBus will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
- Fees. If you commence arbitration in accordance with these Terms, MagicBus will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand 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 fees will be governed by the AAA Rules. In that case, you agree to reimburse MagicBus for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
- No Class Actions. YOU AND MAGICBUS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and MagicBus agree otherwise, the arbitrator may not consolidate more than one person’s claims and may not otherwise preside over any form of a representative or class proceeding.
- Modifications to this Arbitration Provision. If MagicBus makes any future change to this arbitration provision, other than a change to MagicBus’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to MagicBus’s address for Notice of Arbitration, in which case your account with MagicBus will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
- Enforceability. If Section 15.7 or the entirety of this Section 15 is found to be unenforceable or if MagicBus receives an Opt-Out Notice from you, then the entirety of this Section 15 will be null and void and, in that case, the exclusive jurisdiction and venue described in Section 20 will govern any action arising out of or related to these Terms.
- Additional Terms. Your use of the Platform is subject to all additional terms, policies, rules, or guidelines applicable to the Platform or certain features of the Platform that we may post on or link to from the Platform (the “Additional Terms”), as well as any Third-Party Terms. All Additional Terms are incorporated by this reference into, and made a part of, these Terms.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, you will be required to accept the modified Terms in order to continue to use the Platform. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was effective at the time the dispute arose.
- Ownership; Proprietary Rights. The Platform is owned and operated by MagicBus. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Platform (“Materials”) provided by MagicBus are protected by intellectual property and other laws. All Materials are the property of MagicBus or our third-party licensors. MagicBus reserves all rights to the Materials not expressly granted in these Terms.
- Feedback. If you choose to provide us with input and suggestions regarding problems with or proposed modifications or improvements to the Platform (“Feedback”), then you hereby grant MagicBus a perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Platform and create other products and services.
- Governing Law. These Terms are governed by the laws of the State of California without regard to conflict of law principles. You and MagicBus submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Santa Clara County, California for resolution of any lawsuit or court proceeding permitted under these Terms.
- Force Majeure. MagicBus shall not be liable for any default or delay in the performance of its obligations under these Terms to the extent its performance is delayed or prevented due to causes beyond its reasonable control, such as acts of God, pandemics, epidemics, public health emergencies, natural disasters, terrorist acts, war or other hostilities, labor disputes, civil disturbances, the actions or omissions of third parties, electrical or communication system failures, or governmental action.
- Contact Information. The Platform is offered by MagicBus, Inc., located at 555 West 5th St 35th Floor, Los Angeles, CA 90013. You may contact us by sending correspondence to that address or by emailing us at [email protected]
- Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Platform or to receive further information regarding use of the Platform.
- No Support. We are under no obligation to provide support for the Platform. In instances where we may offer support, the support will be subject to published policies (if any).
- Third Party Software. The Platform may include or incorporate third party software components that are generally available free of charge under licenses granting recipients broad rights to copy, modify, and distribute those components (“Third-Party Components”). Although the Platform is provided to you subject to these Terms, nothing in these Terms prevents, restricts, or is intended to prevent or restrict you from obtaining Third-Party Components under the applicable third-party licenses or to limit your use of Third-Party Components under those third-party licenses.
- Notice Regarding Apple. To the extent that you use our mobile applications on an iOS device, the terms of this Section 28 apply. You acknowledge that these Terms are between you and MagicBus only, not with Apple Inc. (“Apple”), and Apple is not responsible for the Platform or its content. Apple has no obligation to furnish any maintenance or support services with respect to the Platform. If the Platform fails to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the mobile application to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation with respect to the Platform. Apple is not responsible for addressing any claim by you or any third party relating to the Platform or your possession or use of the Platform, including: (a) product liability claims; (b) any claim that the Platform fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement or discharge of any third-party claim that the Platform or your possession and use of the mobile application infringe that third party’s intellectual property rights. You agree to comply with any applicable third-party terms when using the Platform. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary of these Terms. You hereby represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- Promotions. From time to time, we may offer certain promotions related to the Platform, as further described at https://magicbus.io/rider-rewards (collectively, “Promotions”). We may modify or discontinue the Promotions at any time.