Terms of Service

(Draft under review by TxDOT 12/27/23)

This Houston ConnectSmart (ConnectSmart) application provides for optimizing transportation to improve efficiency and reduce environmental emissions. It can connect with third-party providers of services to provide users of the application the opportunity to optimize their travel and potentially to receive rewards for doing so. To utilize the ConnectSmart application, you have to agree to be bound by these terms of service.

These ConnectSmart application Service Terms (“Agreement”) are a legally binding agreement between you and the State of Texas acting by and through the Texas Department of Transportation (“TxDOT”) – Houston, with its registered address at Houston District Headquarters 7600 Washington Avenue, Houston, Texas 77007 (“Application Owner,” “we,” “us,” or “our”) that governs your use of the ConnectSmart application, including access to and the use of supporting ConnectSmart websites. (the “Service”).

Please read the terms and conditions of this Agreement carefully before downloading, installing, registering for, or using the Service.

By entering into this Agreement, and/or by using the Service or accessing the Service, you expressly accept this Agreement and all of its terms, and you agree to abide by them. In accepting this Agreement, you (a) acknowledge that you have read and understand this Agreement; (b) consent to this Agreement; and (c) agree to be legally bound by this Agreement. In addition, by using the Service, you signify your acknowledgement of the “Privacy Policy”. If you do not agree to be bound by the terms and conditions of this Agreement, you may not use or access the Service.

Background: TxDOT has contracted Metropia, Inc., 3040 Post Oak Blvd. Suite 1800-136, Houston, TX 77056, to administer the ConnectSmart application. Their duties as Administrator include—but are not limited to—enrolling users, gathering data, selecting third-party providers, and operating the ConnectSmart application. In this capacity, the “we”, “us”, or “our” may refer to Metropia, Inc.

1. Eligibility

The Service is intended for use by users who are of the legal age required to form legally binding contracts under applicable law. Under certain circumstances, with parental permission and parental consent to the terms of this Agreement, as discussed below, some minors 16 and over may be permitted to use the Service. Under no circumstances is the Service available to users who are under the age of 16, users who have had their ConnectSmart account temporarily or permanently deactivated, or users who seek to use the Service for anything other than strictly non-commercial purposes. By using the Service, you represent and warrant that you are 18 years of age or older, or have parental permission as discussed in Section 30 and meet all of the foregoing eligibility requirements. If you are not 16 years of age and older and do not meet all of these requirements, you must not access or use any of the Service. Please note that ConnectSmart accounts of individuals under the age of 16 years will be cancelled and deleted by us upon receiving notice.

2. ConnectSmart Account and Contact Information

You will be required to create a ConnectSmart account to be able to use features of the Service. When you create a ConnectSmart account via the Service, you will be providing your name, phone number, and email address (VoIP phone numbers are not eligible). You will also be asked if you are entering the program at the encouragement of your employer and, if so, to provide the name of your employer. You may also register for a ConnectSmart account by using Facebook, Google, or Apple ID.

You are personally responsible for any use of the Service through your ConnectSmart account. You agree to provide and maintain true, accurate, complete, and up-to-date information in your ConnectSmart account, and the Application Owner may rely on the information that is in your ConnectSmart account. You agree to create and use only one ConnectSmart account, and that creating multiple accounts is a violation of these terms. If you wish to delete your ConnectSmart account, please follow the steps in Section 14 below.

In addition, when you use the feature of the Service that enables you to book a service with any third-party transportation services provider (e.g., a taxi, Tow & Go, Metro) (“Transport Provider”), who provides its transportation services to you through such feature, you may be asked to provide your name and phone number to facilitate the Service.

3. The Service

The Service provides you with the ability to navigate to your desired destination and to seek transportation from third-party providers that make their transportation services available to you via the Service, strictly for your individual, non-commercial uses. These may include, but are not limited to, individual ride hailing services, towing, public transportation, and parking.

You acknowledge and agree that the Application Owner (ConnectSmart) acts only as the provider of the online platform, enabling the Service that provides you with the ability to navigate and to obtain transportation services from third-party providers of transportation services. The Application Owner is not, under any circumstances, a party to the agreement you may enter into with the transportation services provider. The Application Owner does not provide transportation services. It is up to you to decide whether to use a third-party provider of transportation services. The Application Owner has no control over the quality or safety of the transportation services that occurs as a result of the Service. As such, the Application Owner is not responsible or involved in any issues between you and the transportation services provider regarding cost/pricing, overcharges, or refund issues. You must send any communications—such as cancellation requests, route changes, and time changes—for any ride you booked directly to the Transportation Service Provider. Please note that the Application Owner has no control over the cancellation policies of the Transport Providers. Please see the Transport Providers’ Terms of Use which you must obtain from the Transport Service Provider.

The Application Owner also does not verify the identity of the Transport Providers and is not and shall not be liable for their: (i) compliance with all applicable laws and regulations; (ii) the accuracy, completeness, reliability, or error-free nature of the Transport Provider’s details, descriptions, or other content provided by it; or (iii) any act or omission of a Transport Provider in connection with the Service.

The Service will also allow you to receive information about available public transportation and the route to the location where you can use the public transportation of your choice. Please note that the Application Owner relies on third-party resources, including, for example, third-party public transportation service providers, to obtain route, location timetable, and fare information, and is not responsible for the accuracy, reliability, completeness, or error-free nature of this information.

You acknowledge that the route, timetable, and location services we provide are intended for basic location and navigation purposes and should not be relied upon when a precise location is needed, or where inaccurate location information may cause death, personal injury, property, or environmental damage. Neither the Application Owner nor our third-party service providers guarantee the accuracy or reliability of the location information provided through the Service.

4. Electronic Communications

You agree that we may provide notices and messages about the Service to you in the following ways: (a) within the Service, or (b) sent to your contact information provided to us (e.g., email or phone number). You agree to keep your contact information shared with us up-to-date.

You agree that texts may be generated by automatic systems. Communications from us, or our affiliated companies, may include text, email messages, and push notifications regarding the operation of the Service, as well as updates regarding new, existing, and discontinued features of the Service. We do not charge for text messages, but standard or other charges imposed by your carrier may apply. Please check your carrier’s plan before using the Service to be sure you understand any charges that may be incurred by you.

You may unsubscribe from promotional emails and texts at any time by using the “Unsubscribe” link at the bottom of text messages or emails we send to you or email to: support@houstonconnectsmart.com

5. Changes of this Agreement

We reserve the right, at our discretion, to update, change, modify, add, or remove portions of this Agreement at any time in order to conform them to our business practices. All non-material changes are effective immediately when we post them and apply to all access to and use of the Services thereafter. If we make material updates to this Agreement that would negatively impact your rights or increase your obligations under this Agreement, we will notify you of the change in advance via the Service. If you do not agree with the change, you have the right to terminate this Agreement by closing your ConnectSmart account and removing the Service from your Device(s) as defined below. Your continued use of the Service following such notification will constitute your acceptance of the change and consent to this Agreement as revised.

6. License Grant

During the term of this Agreement, the Application Owner hereby grants you a free-of-charge, limited, revocable, non-exclusive, non-sublicensable, and non-transferable license to download, install, register for, and use the Service and the Content (as defined in Section 9 below) for non-commercial use on your device(s), owned or otherwise controlled or leased to you, including mobile cellular telephones and internet-enabled tablets (collectively “Device(s)”), strictly in accordance with this Agreement. This license has the sole purpose of enabling you to use and enjoy the benefit of the Service as provided by us, in the manner permitted by this Agreement and subject to the use restrictions described herein. You may only use the Service and Content for your private and personal purposes. You may not make any commercial use of the Service and the Content. Please note that certain Content may only be available to residents of certain geographical areas. You are bound by any restrictions applicable to specific Content you obtain through the Service.

The Application Owner will have the right, at all times, as further set out at Section 14 below, to reclaim, prohibit, suspend, limit, or otherwise restrict you from accessing or using the Service.

You acknowledge and agree that the Service and the Content are provided under license, and not sold, to you. You do not acquire any ownership interest in the Service and the Content under this Agreement, or any other rights thereto other than to use the Service and the Content in accordance with the license granted, and subject to all terms, conditions, and restrictions, under this Agreement. The Application Owner and its licensors and service providers reserve and shall retain their entire right, title, and interest in and to the Service and the Content, including all copyrights, trademarks, patents, software rights, and other intellectual property rights (whether registered or unregistered) therein or relating thereto, except as expressly granted to you in this Agreement.

7. License Restrictions

You (and/or any third-party on your behalf) may not:

copy, modify, translate, adapt, or otherwise create derivative works or improvements, whether or not patentable, of the Service, the Content, or any part thereof;
save as to the extent permitted by law for certain purposes, reverse-engineer, disassemble, decode, or otherwise attempt to derive or gain access to the source code of the Content, the Service, or any part thereof;
remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Content, the Service, including any copy thereof;
rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Content, the Service, or any features or functionality of the Service, to any individual or third-party for any reason, or make the Service available on a network where it is capable of being accessed by any Third-Party Outlet (as defined in Section 26 below), or individuals;
remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Content, the Service, or any part thereof;
use any content that may include, link to, or distribute any viruses, spam, files, code malware, or any other malicious software programs, technology, or content that may harm or disrupt the operation of the Service or any other Application Owner product or service;
engage in or encourage any activity or use of content that violates any applicable law, rule, or regulation, including, without limitation, privacy laws and regulations;
use, endorse, or promote content, which is pornographic, obscene, excessively profane, racist, ethnically offensive, threatening, infringing, excessively violent, libelous, gambling-related, or discriminatory, offensive, misleading, or deceptive;
defame, abuse, harass, stalk, threaten, or otherwise violate the legal rights of others, including others’ copyrights and other intellectual property rights;
transmit or otherwise make available in connection with the Service, or any part thereof, any virus, worm, Trojan Horse, time bomb, web bug, spyware, or any other computer code, file, or program that may or is intended to damage, interfere with, or hijack the operation of any hardware, software, or telecommunications equipment, or any other actually or potentially harmful, disruptive, or invasive code or component;
interfere with or disrupt the operation of the Content, the Service, or any part thereof, or the servers or networks that host the Service or make the Service available, or disobey any requirements, procedures, policies, or regulations of such servers or networks;
sell, license, or exploit for any commercial purposes any use of or access to the Content and/or the Service, or any part thereof;
frame or mirror any part of the Content, the Service, or any part thereof, without our prior express written consent;
transfer or assign your ConnectSmart account to any third-party, even temporarily;
engage in fraudulent misrepresentation, such as impersonating any person or entity, or forging or manipulating identifiers to disguise the origin of information transmitted through the Service;
interfere with the operation of the Content or the Service, including disrupting service or network connectivity or sending malicious code, malware, or other harmful software designed to impair the functionality of the Service or any part thereof;
infringe any third-party rights, including intellectual property rights, copyright, patent, trademark, trade secret, or other proprietary rights or rights of publicity or privacy; or
use the Content or the Service in any way not expressly permitted by this Agreement.

8. Allegations of Copyright Infringement

You may notify us of copyright infringement on the Service by providing notice (a) by email with “Copyright Notification” in the subject line to support@connectsmart.com, (b) by a document titled “Copyright Notification” mailed to Houston TxDOT Attn: Copyright Office, Houston District Headquarters 7600 Washington Avenue, Houston, Texas 77007. Your notice must:

identify the original copyrighted work you claim is infringed;
identify the content on the Service that you claim is infringing the copyrighted work. Please provide enough detail for us to locate the allegedly infringing content on the Service;
provide your contact information, including your full name, mailing address, telephone number, and email address, if available;
provide a statement that you have a good faith belief that the use of the content in the manner complained of is not authorized by the copyright owner, its agent, or the law;
provide this statement: "I swear, under penalty of perjury, that the information in this notification and complaint is accurate and that I am the copyright owner or am authorized to act on behalf of the copyright owner of an exclusive right that is infringed.";
provide your signature, as applicable; and
the foregoing shall not affect your rights should it be your copyright that is being infringed.

9. Intellectual Property Rights

The Service, and any content, materials, graphics, audiovisual files, processes and code, features, functionality, and products or services accessible on or through the Service (collectively, “Content”) and all upgrades, updates, corrections, and enhancements thereto and all copyrights and other intellectual property rights related thereto are the property of Application Owner, its affiliates, and its licensors or suppliers, and Application Owner, its affiliates, and its licensors and suppliers retain all right, title, and interest in and to the Service, the Content and all intellectual property rights therein or in connection thereto. The Service and the Content are owned and operated by the Application Owner and they are licensed, not sold, to you.

All the Application Owner logos, trademarks, designs, graphics, icons, scripts, and service names are registered trademarks or trade dress of the Application Owner (collectively, the “Application Owner Marks”). In addition, the design, trade dress, and the ‘look and feel’ of the maps available to you as part of the Service are protected works under applicable copyright laws and we and our affiliates, licensors, and suppliers retain all intellectual property rights in them. The license granted to you in this Agreement does not extend to or include a license to use the maps displayed by the Services or any mark, indicator, logo, or notation embedded in the maps other than as part of the Service. You acknowledge that we are the owner and licensor of the Application Owner Marks, including all goodwill associated therewith, and that your use of the Application Owner Marks will confer no additional interest in or ownership of the Application Owner Marks in you but rather inures to the benefit of the Application Owner.

All other trademarks, logos, service marks, or product names set forth in the Service, such as the logos or trademarks of any third-party provider of transportation services, are the property of their respective owners.

10. Your Data & Consent

Through your use of our Service, your personal data, as described in the Privacy Policy available on the ConnectSmart mobile app and website, will automatically be collected by the Application Owner or a third-party provider, and you may, in addition and as described in the Privacy Policy, actively enter and submit information or data in connection with your use of the Service, including information provided in the free-text comments box of a ride you wish to book with a Transport Provider, or your ConnectSmart account (collectively “User Data”). You assume sole responsibility for any User Data you share, and you alone are liable for the consequences when you post User Content (as defined below) or User Data. All User Data and User Content is subject to the Privacy Policy.

To enable us to provide you with the Service, you hereby grant us: (a) a non-exclusive, worldwide, royalty-free, transferable, sublicensable, right and license to collect, process, and use your User Data as set forth in the Privacy Policy and this Agreement; and (b) an irrevocable, perpetual, worldwide, non-exclusive, royalty-free, transferable and sublicensable right and license to use for any lawful purpose your User Data in anonymized form. The Application Owner does not share, sell, lease, or rent your personal information you provide to third-parties unless absolutely necessary as outlined in the Privacy Policy. If you are participating in an employer-sponsored program, your employer may have access to your information. If you select to use a third-party, we may share your information with such third- party to the extent they need it to provide their services and they agree to protect it from disclosure or other unauthorized use.

In addition, in the course of your use of the Service, you may submit and share content and information with us or with other users of the Service, which may include feedback, comments, improvements, suggestions, questions, ideas, or other information (collectively “User Content”). You represent and warrant that you own all intellectual property rights in your User Content or otherwise have the right, and received all required consents, authorizations and licenses to use the User Content for the Service and to provide the User Content to us as contemplated hereunder, and that by submitting or sharing your User Content with us, you are granting us, our affiliates who are companies that provide services to the Application Owner with an irrevocable, worldwide, perpetual, unrestrictive, non-exclusive, royalty-free, transferable and sublicensable right and license to use, copy, distribute, disseminate, prepare derivative works of, and display your User Content in any manner we deem fit, including for commercial purposes or otherwise, at our sole discretion and without acknowledgment or compensation to you, but, in each case, we will not share or publish your personal data without your express prior written consent.

As between you and the Application Owner, subject to the rights granted to us in this Agreement, you retain full ownership of all of your User Data and User Content and any intellectual property rights or other proprietary rights associated with your User Data and User Content.

You are solely responsible for making backup copies of your User Data and User Content. If the Service is discontinued or canceled, we may permanently delete your User Data and User Content in accordance with the terms of the Privacy Policy.

11. Geographic Restrictions

The Service and the Content are provided from the United States and data will be stored in the United States. If you reside outside of the United States, you acknowledge that you may not be able to access all or some of the Content within your country, and that access thereto may not be legal by certain persons or in certain countries. If you access the Content from within your country, you are responsible for compliance with local laws, including any laws applicable to the export of software or technology. If you provide the Application Owner with your personal data, you hereby expressly agree to such transfer, storage, and processing within the United States. For additional information data collection, please refer to the Privacy Policy.

12. Updates; Availability

The Application Owner may, from time to time in its sole discretion, develop and provide Service updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features or modifications or discontinuation of existing features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality of the Service. You agree that the Application Owner has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Device(s) settings when your Device(s) is/are connected to the internet either: (a) the Service will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install all available Updates.

You shall promptly download and install all Updates and acknowledge and agree that the Service or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Service and be subject to all terms and conditions of this Agreement.

The Service and the Content availability and functionality depends on multiple factors. We do not warrant or guarantee that the Service and the Content will operate and/or be available at all times without disruption or interruption, or that it will be immune from unauthorized access error-free. The availability of the Service and the Content may vary and is subject to our sole discretion. We reserve the right at our sole discretion to modify, correct, amend, enhance, improve, make any other changes to, or discontinue, temporarily or permanently, the Service (or any part or feature thereof) without notice, at any time and at its sole discretion. The Service, the Content, and their operation and certain features available therein may also be dependent on the network you use, compatibility of your Devices, and the content formats supported. You will have the right to terminate this Agreement by deleting the app or not using the website if we make any material changes to the Service that you do not agree with.

13. Third-Party Materials

The Service may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“third-party Materials”). You acknowledge and agree that the Application Owner is not responsible for third-party materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. The Application Owner does not assume and will not have any liability or responsibility to you or any other person or entity for any third-party materials. Third-party materials and links thereto are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to such third-parties’ terms and conditions.

14. Terms and Termination

This Agreement is effective upon your acceptance of this Agreement. You may terminate this Agreement at any time by deleting the Service from your Device(s) and by ceasing your use of the Service. However, if you wish to delete all the information that is associated with the Service, you must send us an email to support@connectsmart.com with your request for deletion. For details of how to access your data and/or delete your data, please see the following sections of the Privacy Policy: “How to opt out”.

We may terminate this Agreement at any time if:

you breach, or we reasonably believe that you are in breach of, any term within this Agreement or applicable law; or
you are misusing the Service or pose a threat to the security of the Service.

Upon termination either by you or by us: (i) all rights granted to you under this Agreement will terminate; (ii) you must cease all use of the Service and delete all copies of the Service, and your User Account; and (iii) our rights with respect to User Data shall survive only as set forth in the Privacy Policy.

Except as set forth in the Privacy Policy, we are not responsible for any removal or loss of your User Data or User Content. When information or content is removed from the Service by either you or us, traces or copies may still remain elsewhere. The termination of this Agreement will not limit any of the Application Owner’s rights or remedies at law or in equity.

In addition to our right to terminate the Agreement, we reserve the right to, without limitation and at our sole discretion:

limit your use of the Service; and
remove any content from the Service, including without limitation, User Content, immediately and without notification to you, if we believe, at our sole discretion, that such content is infringing, offensive, harmful, or inappropriate.

15. Your Responsibilities as a User of the Service

You acknowledge that if you disable certain functionalities of the Service, including location services, the Service will not function as intended. You are responsible for, and will indemnify and hold the Application Owner, its affiliates, and its and their respective directors, officers, employees, contractors, agents, representatives, successors, and assigns, harmless from and against any claims arising out of your responsibilities or failure to comply with this Agreement, or your failure to use the Service as intended.
You are solely responsible for maintaining the confidentiality of your ConnectSmart account. You agree not to create more than one ConnectSmart account, to transfer your ConnectSmart account to another person or lend or otherwise transfer your use of or access to the Service to anyone else. You are also solely responsible for any and all activities that occur under your ConnectSmart account with the Service.
By using the Service to request transportation services from any third-party provider of transportation services, you accept, agree, and acknowledge that a direct legal relationship is created and assumed solely between you and the relevant third-party provider of transportation services. The Application Owner shall not be responsible or liable for your and/or any third-party provider of transportation services’ actions, omissions, and behavior or in relation to your and/or any third-party provider of transportation services’ activities. For purposes of this clause, the participation of a driver or a passenger in a private carpool shall be considered third-party services.
You represent and undertake to procure and ensure that you comply with, adhere to, and observe the terms and conditions set forth in this Agreement and all applicable laws, regulations, rules, statutes, or ordinances governing or otherwise relating to your use of the Service.
You undertake that you will safeguard, protect, and keep your ConnectSmart account confidential and shall not disclose it to any person, or store the information in any manner, except as required by law.
You shall immediately notify the Application Owner of any actual, suspected, or potential security breach or improper use of the Service or the User Data.
You agree that you will behave in a safe and lawful manner while using the Service and that you will not engage in reckless or unsafe behaviors, including carrying a weapon (unless legally authorized to do do), or threatening the health, safety, and wellbeing of yourself, or other third-parties while using the Service.
You agree to only use the Service if you are of the legal age to use them, or otherwise authorized to use the Services under the terms of this Agreement.

16. Disclaimer of Warranties

The Service and the Content are provided to you “as-is” and with all faults and defects without warranty of any kind. To the maximum extent permitted under applicable law, the Application Owner, on its own behalf and on behalf of its affiliates and its and their respective licensors and service providers, expressly disclaims all warranties, whether express, implied, statutory, or otherwise, with respect to the Service and the Content, including all implied warranties of, merchantability, fitness for a particular purpose, title, and non-infringement, and warranties that may arise out of course of dealing, course of performance, usage, or trade practice.

Without limitation to the foregoing, the Application Owner provides no warranty or undertaking, and makes no representation of any kind that the Service and the Content will meet your requirements, achieve any intended results, be compatible, or work with any other software, applications, systems, or services, operate without interruption, meet any performance or reliability standards or be error-free, or that any errors or defects can or will be corrected.

You acknowledge and agree that use of the Service and the Content is at your own risk. By using the Service and the Content, you agree to accept such risks and agree that the Application Owner and its affiliates, or any of its or their respective licensors or service providers, are not liable for any acts or omissions of other users of the Service.

17. Limitation of Liability

To the fullest extent permitted by applicable law, in no event will the Application Owner or its affiliates, or any of its or their respective licensors or service providers, have any liability arising from or related to your use of or inability to use the Service or the Content for direct damages. The limitation will apply whether such damages arise out of breach of contract, tort (including negligence), or otherwise and regardless of whether such damages were foreseeable, or the Application Owner was advised of the possibility of such damages.

The Application Owner is not responsible and may not be held liable for the actions or omissions of any third-party transportation services provider. While these third-party transportation services providers provide you with their transportation services via the Service, it is your choice whether to use their services or not and we are not responsible for any transportation services that may be accessed via the Service. Any issue that you may have with any such third-party transportation provider should be addressed to that provider and will be subject to that provider’s terms and conditions and liability provisions.

18. Indemnification

To the extent permitted by law, you agree to indemnify, defend, and hold harmless the Application Owner, its affiliates, and your employer who may authorize or promote this service to you, and their respective directors, officers, employees, contractors, agents, representatives, successors, and assigns from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including reasonable attorneys’ fees, arising from or relating to:

your use or misuse of the Service and/or the Content;
your breach of this Agreement, including but not limited to your User Content you submit or make available through the Service; and
any personal or property damage caused by you. You and the Application Owner acknowledge that, in the event of any third-party claim, that the Service and/or the Content or your possession and use of the Service and/or the Content infringes that third-party’s intellectual property rights, the Application Owner, and not the third- party outlet(s), will be solely responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim.

19. General

This Agreement and the Privacy Policy constitute the entire agreement between you and the Application Owner with respect to the Service and the Content and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the Service and the Content. No failure to exercise, and no delay in exercising, on the part of either party, any right or any power hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any right or power hereunder preclude further exercise of that or any other right hereunder. In the event of a conflict between this Agreement and any applicable purchase or other terms, the terms of this Agreement shall govern.

20. Choice of Law; Dispute Resolution

The Agreement is governed by the laws the state of Texas without regard to its conflicts of law provisions. The courts in Texas have exclusive jurisdiction to settle any disputes or claims arising out of or in connection with this Agreement, including any non-contractual rights or obligations arising out of or in connection with this Agreement.

21. Severability

If any provision of this Agreement is illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of this Agreement will continue in full force and effect.

22. Assignment

You may not assign or transfer your rights in and to the Service and the Content, without our prior written consent. We may assign our rights in and to the Service and the Content to any third-party at our sole discretion, provided that such third-party undertakes to comply with our obligations to you under this Agreement.

23. Relationship between You and the Application Owner

This Agreement and your use of the Service, do not, and shall not be construed as creating any relationship, joint venture, partnership, employment, or agency in any way and of any kind between you and the Application Owner. Your access and use of the Service is intended for your enjoyment and benefit and the provision of the Service to you (subject to your compliance with this Agreement) constitutes the sole and sufficient consideration that you are entitled to receive for any User Data or other contributions you have made to the Service, or any part thereof.

24. Notice

If you have any questions or concerns about this Agreement or the Service, please contact us via email at support@connectsmart.com or at: ConnectSmart c/o Houston TxDOT, Houston District Headquarters 7600 Washington Avenue, Houston, Texas 77007

25. Third-Party Outlets

If you are using an iOS or Google Chrome version of the Service, from your Device(s), you agree that:

The Service is made available to you via third-parties, including Apple, Inc.’s “App Store” or Google, Inc.’s “Google Play” store (collectively, the “third-party outlets”).
Apple and Google are not parties to these terms.
This Agreement is between you and the Application Owner only. Third-party outlets have no obligations to you or responsibility for the Service, including without limitation, furnishing any maintenance and support services for the Service. Third-party outlets are not responsible for addressing any claims of any user or any third-party relating to the Service, including, but not limited to: (i) product liability claims; (ii) any claim that the Service failed to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
The third-party Outlets and their subsidiaries are third-party beneficiaries of this Agreement, and that upon your acceptance of this Agreement, each third-party Outlet will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.

26. No Third-Party Rights

This Agreement is solely between you as the user of the Service and the Application Owner.

A person who is not a party to this Agreement shall have no right under the Contracts (Rights of Third Parties) Act 1999 to enforce any of its terms. Each party represents to the other that their respective rights to terminate, rescind or agree any amendment, variation, waiver, or settlement under this Agreement are not subject to the consent of any person that is not a party to this Agreement.

27. User Rewards and Promotional Campaigns

From time to time, ConnectSmart may offer contests (“Contests”) through the Service, which may be sponsored by the Application Owner or a third-party (either, the “Contest Sponsor”), but in each case will be administered by the Application Owner. Each Contest will be subject to and governed by these Terms of Service and any other Contest rules that may be applicable to the Contest. The Contest Sponsor reserves the right, at its sole discretion, to suspend, modify, or cancel any Contest. The creation of additional accounts to participate in promotional campaigns, contests, or take advantage of special offers is strictly prohibited.

No purchase is required to enter a Contest.

All Contests are open to legal residents of the United States who are at least 18 years old at the time of entry. If you wish to enter a Contest and are under the age 18, you must obtain permission from your parent or guardian to enter, and you represent and warrant that you possess such parental consent. Note the Application Owner cannot guarantee that some of the prizes will be available to individuals under age 18. Only individuals are eligible to enter Contests. By entering a Contest, you (i) accept the conditions stated in these Terms of Service, (ii) agree to be bound by any additional Contest rules, which shall be provided to you at the time of entry, and (iii) warrant you are eligible to participate in the Contest. Employees, independent contractors, officers, and directors of the Application Owner and the Contest Sponsor, and their respective affiliates, subsidiaries, advertising, promotion, and fulfillment agencies, administrators and legal advisors, and their immediate family members and persons living in the same household, are not eligible to participate in any Contest. CONTESTS ARE VOID WHERE PROHIBITED OR RESTRICTED BY LAW and are subject to applicable federal, state, and local laws and regulations.

Prizes (“Prizes”), the approximate retail value of the prizes, and the number of winners to be selected in each Contest will be determined by the Contest Sponsor at its sole discretion. To receive a prize, the winner may be required to provide proof of identification and any other information required by the Internal Revenue Service for tax purposes or other applicable laws. Any taxes applicable to prizes are the sole responsibility of the contest winner.

By participating in the ConnectSmart Referral Program, you may earn rewards in accordance with expressed restrictions.

28. ConnectSmart Coins and Tokens

The Service may include an opportunity for you to earn (by completing tasks or taking part in activities) a type of virtual currency (“Coins and Tokens”) which may be used to obtain discounts, offers, or other goods or services offered by ConnectSmart, third-party partners and sponsors, or its successor (such items or other rewards, collectively called “Rewards”). To earn Coins and Tokens, you must create an account with ConnectSmart as directed by the Application Owner. You may earn up to 300 Coins and Tokens per-day from using the Service and may earn up to 1,000 Coins and Tokens per-day from participating in certain ConnectSmart user-engagement activities such as user surveys, focus groups, user-testing meetings, and other marketing campaigns. ConnectSmart Coins and Tokens are not real money, do not have monetary value, and may never be redeemed for money, or other items of monetary value from outside of the Service (except as otherwise expressly permitted by ConnectSmart). We make no guarantee as to the nature, quality, or value of the features of the Service or any third-party good or services that will be accessible through the use of ConnectSmart Coins and Tokens, or the availability or supply of ConnectSmart Coins.

By taking a driving, transit, biking, walking, or carpooling trip using ConnectSmart’s navigation feature, users may be eligible to earn reward Coins. Trips must be at least 1 mile in length. For ConnectSmart to provide the Service and for you to earn Coins, the Service must access your Trip information, including your point of origin, the address of your destination, the starting time of your journey, and the Trip recommended to you, and must periodically receive your GPS location.

Drivers and Passengers are limited to the number of Coins and Tokens they may receive in any day. They will not receive credit for trips that exceed the maximum Coins and Tokens per-day. Furthermore, breaking up a trip into two trips to gain additional Coins and Tokens is not allowed and may subject the user to forfeiting the Coins and Tokens for the trip. To help prevent this, trips must be at least 15 minutes apart in order to count for Coins. Note that the Application Owner is always looking at ways to improve its services and reward its users; to this end, it may occasionally create different reward systems for certain drivers, passengers, and/or routes. The Application Owner may do this at its sole discretion. In the event that you are affected by such changes, you may be notified.

The ConnectSmart Coins and Tokens obtained via the Service are provided to you under a limited, personal, revocable, non-transferable, non-sublicensable license to use through the most up-to-date Coins and Tokens redemption system offered by the Application Owner. Unless otherwise expressly permitted by the Application Owner, Coins and Tokens and Rewards may not be transferred or resold in any manner, including, without limitation, by means of any direct sale or auction service. Use of the Application Owner Coins and Tokens Rewards may be subject to a separate license or agreement with the Application Owner, or one or more other third-parties. Aside from terms specifically provided to you in writing by a third-party as to third-party Rewards, you have no property interest, right, or title in/to any Coins and Tokens or Rewards appearing or originating in the Service, or any other attributes associated with use of the Service. Any “virtual currency” balance shown in your account does not constitute a real-world balance or reflect any stored value, but instead constitutes a measurement of the extent of your license, if any. The value of a Coin is determined solely by the Application Owner at the time of redemption.

All Coins and Tokens and Rewards may be forfeited if your account with ConnectSmart is terminated or suspended for any reason, or if the Application Owner discontinues availability of some or all of its Coin-related services.

Once Coins or Tokens have been lost or spent, they will be subtracted from your account and cannot be refunded or returned, except at the sole discretion of the Application Owner. Refunds for unredeemed Coins purchased by the user may be issued upon request at the sole discretion of the Application Owner. No Coins or Tokens will be re-credited to your account in the event of a return or exchange of a Reward, or any problem with any Reward.

We have no liability for hacking or loss of your Coins and Tokens or Rewards, or any goods or services obtained via Coins and Tokens. We have no obligation to, and will not, reimburse you for any Coins and Tokens or Rewards, or any goods or services obtained via Coins and Tokens that are lost due to your violation of these Terms of Service. We reserve the right, without prior notification, to limit the quantity of Coins, Tokens, and/or Rewards, or to refuse to provide you with any Coins and Tokens and/or Rewards. Price, exchangeability, and availability of Coins, Tokens and Rewards are determined by ConnectSmart at its sole discretion and are subject to change without notice. You agree that we have the absolute right to manage, distribute, regulate, control, modify, and/or eliminate Coins and Tokens provided in connection with the Service as we see fit at our sole discretion, and that we will have no liability for exercising such right. We reserve the right to disqualify and prosecute to the fullest extent permitted by law any user who, in our reasonable suspicion, tampers with the Service (including Coins and Tokens), intentionally and improperly obtains more than the allowed Coins, or acts in an unsportsmanlike or disruptive manner.

You agree that under no circumstances are we liable to you for any damages or claims that may arise from the loss or use of your Coins and Tokens, regardless of the circumstances. You absolve us of any responsibility to maintain or update your Coins and Tokens account. However, if there is a failure of Coins and Tokens earned via the Service to be added to your ConnectSmart account due to technical or operational problems with the Service, we will make commercially reasonable efforts to credit the appropriate number of Coins and Tokens once we have verified that you have earned such Coins and Tokens. Without limiting any of the foregoing, our maximum liability or responsibility to you is to credit the Coins and Tokens lost.

In using the Service, you authorize ConnectSmart to access your GPS enabled hardware and otherwise obtain this Trip information from your device, and to record, compile and display such information. Our use of such information is subject to the ConnectSmart privacy policy located at www.houstonconnectsmart.com/privacy (the “Privacy Policy”).

29. Employer Program Sponsorship

When you provide the information requested in Section 2 above, you will be asked to provide information about your employer, if you have one, and to update this information should your status change. Your employer, if participating in the program, may elect to offer certain incentives to participating employees. The employer sets up the rules for the incentives and the Application Owner only implements such rules. Any issues and concerns for these rules for incentives remain between the employee and the employer. The employer may change any incentive rules without prior notification to employees. The employer retains the right to determine who is eligible to join any employer-sponsored program.

By joining the employer-sponsored program, you acknowledge that ConnectSmart may provide individual usage information (nature of trips taken; such as origin, destination, travel dates and time, and modes used) as well as aggregate statistics to the employer for the trip validation and reporting purposes.

The employer-sponsored incentives are in addition to and may supplement the Coins, Tokens, and Rewards offered in Sections 27 and 28 above.

30. Parental Consent for Minors Age 16 and Over

Parental permission is required for minors ages 16 and over who will use the service. By providing this consent, the parent agrees to supervise the aforementioned minor(s) use of the service, adhere to its rules, and be responsible for any issues. “You,” used throughout this agreement, shall be construed as the parent and the aforementioned minor(s). The parents’ consent shall be memorialized through a separate electronic document provided to the parent on request, which shall be acknowledged and agreed to by the parent.

(Draft under review by TxDOT 12/27/23)