Terms of Service
THIS IS A BINDING LEGAL CONTRACT BETWEEN INTEGRATED ENGINEERING LLC, A UTAH LIMITED LIABILITY COMPANY (TOGETHER WITH ITS AFFILIATES AND SUBSIDIARIES, COLLECTIVELY, THE “COMPANY”) AND YOU (THE “USER”). USERS SHOULD CAREFULLY READ THESE TERMS OF USE (“TERMS OF USE”) BEFORE, AS APPLICABLE, ACCESSING, USING, INSTALLING AND/OR PURCHASING (1) ANY OF THE COMPANY’S WEBSITES, APPLICATIONS AND PLATFORMS, INCLUDING ANY MOBILE WEBSITES, APPLICATIONS AND PLATFORMS (COLLECTIVELY, THE “SITES”); (2) ANY PRODUCTS OR SERVICES, INCLUDING, WITHOUT LIMITATION, ANY TUNING SOLUTIONS AND SOFTWARE PRODUCTS AND SERVICES, PROVIDED BY OR THROUGH THE SITES (COLLECTIVELY, THE “SERVICES”); AND/OR (3) ANY PRODUCTS, EQUIPMENT OR DEVICES, INCLUDING, WITHOUT LIMITATION, ANY VEHICLE TUNING DEVICES, PROVIDED BY OR THROUGH THE SITES (COLLECTIVELY, THE “DEVICES”). BY ACCESSING, INSTALLING, PURCHASING, DOWNLOADING OR OTHERWISE USING THE SITES OR SERVICES, USER AGREES TO BE BOUND BY THESE TERMS OF USE, AND BE LIABLE TO COMPANY FOR ANY NONCOMPLIANCE WITH THESE TERMS OF USE. IF USER DOES NOT AGREE TO THESE TERMS OF USE, AS THESE TERMS OF USE MAY BE MODIFIED FROM TIME TO TIME, THE USER MAY NOT PURCHASE, DOWNLOAD, USE OR OTHERWISE ACCESS THE SITES, SERVICES OR DEVICES.
Certain Devices or Services purchased may require Users to enter into separate terms or agreements (“User Contract”), such User Contracts shall supplement these Terms of Use; provided, however, that to the extent there is a conflict between these Terms of Use and any User Contract, the User Contract shall govern and control with respect to such conflict.
Certain Acknowledgements. User acknowledges and agrees to the following:
The Company reserves the right to discontinue, temporarily or permanently, the Sites or Services or any features or portions thereof without prior notice to User. The Company shall not be liable for any suspension or discontinuance of the Sites or Services or any portion thereof. User further expressly acknowledges and agrees that these Terms of Use do not entitle User to any support for the Sites or Services, and the Company may update or modify the Sites or Services from time to time and at Company’s sole discretion (in each instance, an “Update”), and may require User to obtain and use the most recent version of the Sites and Services. Updates may adversely affect how Devices purchased or used by the User communicate with the Sites and Services, and Users may be required to make enhancements, improvements, upgrades or changes to their vehicles for integration as a result of such Update at User’s sole cost and expense.
The Sites and Services include tools that, together with Devices or other equipment and devices, may permit User to customize, enhance, adjust, convert or otherwise change or modify User’s vehicle(s), which may adversely affect manufacturer warranties of such vehicle(s). User shall be solely responsible and liable for all changes and/or modifications to the User’s vehicle(s) relating to, or resulting from, the Sites, Services or Devices, including, without limitation, (i) the termination or loss of any manufacturer warranty; (ii) any injury or death caused by, or arising from, the vehicle(s) being driven or transported by User or any other driver of the vehicle(s), whether or not such driver is permitted to operate the vehicle; (iii) any injury or death suffered by User or any driver or passenger of the vehicle(s); (iv) any injury or death suffered by User or any person relating to or arising from any defect, malfunction or other issue of the Sites, Service or Devices.
THE SITES AND SERVICES, INCLUDING ANY PROPRIETARY MATERIALS AND THE LICENSED MATERIALS OF THIRD PARTIES ON, INCORPORATED INTO OR OTHERWISE MADE AVAILABLE THROUGH THE SITES AND SERVICES, SUCH AS DATA, TEXT, PHOTOGRAPHS, VIDEOS, AUDIO CLIPS, WRITTEN POSTS AND COMMENTS, LOGOS, BUTTON ICONS, DATA COMPILATIONS, GRAPHICS, SCRIPTS, ILLUSTRATIONS, INTERFACES, GRAPHICAL USER INTERFACES, INTERACTIVE FEATURES, SOFTWARE, SCRIPTS, AND ALL OTHER RESOURCES, SPECIFICATIONS, KNOW-HOW, INTELLECTUAL PROPERTY AND MATERIALS IN, ON OR AVAILABLE THROUGH THE SITES AND SERVICES (COLLECTIVELY, THE “MATERIALS”), ARE PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY.
(i) User shall not use the Sites, Services or Devices with any vehicle if (x) User is not the legal owner or lessee of such vehicle, (y) such vehicle is not registered in the name of the User, and (z) User does not have a valid driver’s license; (ii) the Sites, Services, Devices and Materials have not been developed to meet User’s individual requirements, and it is User’s sole responsibility to ensure that the facilities and functions of the Sites, Services and Devices meet User’s requirements; (iii) it is User’s sole responsibility to maintain User’s vehicle so as to ensure operability of the Devices and Services, including, without limitation, maintaining full battery charge; (iv) installing and/or using the Devices and Services requires a minimum operating system in order to be compatible with the User’s vehicle, and that such minimum operating system is subject to change as the Company updates and modifies its Sites, Services and Devices; (v) that where installation of Devices are required User shall ensure that such installation is completed by an authorized installer in accordance with the applicable instructions and best practices; and (vi) the User shall be solely responsible for the improper installation of the Services or Devices.
Although the Company makes reasonable efforts to update information, the Company makes no representations, warranties or guarantees, whether express or implied, that (i) the Sites, Services and Materials, including any tuning or performance information on or through the Sites or Services, are accurate, complete or up to date, (ii) the Company will in the future take any actions to update or correct the Sites, Services or Materials, including any tuning or performance information on or through the Sites or Services, or (iii) that the Sites, Services or Materials are compatible with any mobile device, tablet, computer equipment or any programs.
The Company shall not be responsible for any errors or omissions relating to the Materials or any other information included in, contained on, or made available through the Sites and Services (including, without limitation, any pricing or tuning, testing or performance related display, user interface or information).
The Company reserves the right in its sole and absolute discretion to refuse or cancel any orders of the Services or Devices. If payment was made by a User prior to the cancellation by the Company, the Company will issue a full refund of the payment less any fees and expenses determined by the Company to be necessary or appropriate in its sole and absolute discretion.
Right to Use. Subject to all limitations and restrictions set forth in these Terms of Use, User will have a limited, fully revocable, non-exclusive, non-commercial, non-transferable, and non-sublicensable right to use the Sites and Services. All rights not expressly granted to Users are reserved by the Company and any of its licensors. The Sites, Services, Devices and Materials may contain copyrighted material, trademarks, and other proprietary information and materials. Except for the content that is in the public domain or content that User has permission to use in connection with User’s use of the Sites and Services and in compliance with these Terms of Use, User shall not copy, modify, publish, transmit, distribute, perform, or display in any content, nor shall User sell, license, rent, or otherwise use or exploit any content for commercial use or in any way that violates any rights of the Company or any third party. The Company may, but is not required to, remove, block, edit or modify any content (including any Materials, Feedback or User Content) in Company’s sole discretion at any time for any reason or no reason at all and without notice to User. USER ACKNOWLEDGES AND AGREES THAT COMPANY RESERVES THE RIGHT TO ACCESS, READ, PRESERVE, AND DISCLOSE ANY INFORMATION THE COMPANY BELIEVES, IN ITS SOLE AND ABSOLUTE DISCRETION, IS NECESSARY TO SATISFY APPLICABLE LAWS OR PROTECT THE RIGHTS PROPERTY OR SAFETY OF THE COMPANY, THE COMPANY’S OWNERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, USERS, THE PUBLIC OR ANY THIRD PARTY.
Use Restrictions and Prohibited Conduct. User shall not, and shall not permit any other person or entity to, access or use the Sites, Services or Devices except as expressly permitted by these Terms of Use. For purposes of clarity and without limiting the generality of the foregoing, User shall not, as determined by the Company in its sole and absolute discretion: (a) copy, modify, or create derivative works or improvements of the Sites, Services, Devices, Materials or Intellectual Property (as defined below); (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Sites, Services, Materials, Devices or Intellectual Property to any person; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Sites, Services, Devices or Intellectual Property, in whole or in part; (d) bypass or breach any security device or protection used by the Sites, Services or Intellectual Property or access or use the Sites, Services or Intellectual Property other than through the use of User’s own then valid access credentials; (e) input, upload, transmit, or otherwise provide to or through the Sites or Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful or malicious code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Sites, Services, Intellectual Property, or Company’s provision of services to any third party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices from any Sites, Services, Devices, Materials or Intellectual Property, including any copy thereof; (h) access or use the Sites, Services, Devices, Materials or Intellectual Property in any manner or for any purpose that infringes, misappropriates, or otherwise violates any right, title, or interest of the Company or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any user), or that violates any applicable law; (i) access or use the Sites, Services or Devices for purposes of competitive analysis of the Sites, Services or Devices, the development, provision, or use of a competing service, device or product or any other purpose that is to the Company’s detriment or commercial disadvantage; (j) access or use the Sites or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, (k) falsely state or misrepresent the User or the User’s affiliation with any person or entity, express or imply that the Company endorses the User, the User’s vehicles or the User’s business; (l) use the Sites or Services in any manner that is obscene, derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person or entity, including as such relates to the harassment, degradation, intimidation, or victimization of an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; (m) use the Sites, Services, Devices or Materials in any manner that may harm the Company or the Company’s affiliates, subsidiaries, licensees, officers, directors, shareholders, principals, employees, contractors, subcontractors, agents, distributors, service providers and/or suppliers; (n) attempt to interfere with or disrupt the Sites and Services, including, without limitation, the operation of the Sites and Services, or the servers or networks that host the Sites and Services; (o) use any type of data mining, robots, scrapers or any other data collection sources, methods or tools; or (p) access or use the Sites, Services or Devices for any purpose for which they are not intended or beyond the scope of the authorization granted under these Terms of Use.
“Intellectual Property” means any intellectual property of the Company in any jurisdiction throughout the world, including, but not limited to: (i) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto and all patents, patent applications and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof, (ii) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, Internet domain names, uniform resource locators and e-mail addresses, and rights in telephone numbers, together with all translations, adaptations, derivations and combinations thereof and including all goodwill associated therewith and all applications, registrations and renewals in connection therewith, (iii) all copyrightable works, all copyrights, and all applications, registrations and renewals in connection therewith, (iv) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals), (v) all software, including computer programs, machine-readable instruction sets or data in computerized form, whether in source code, object code or other form, and all data, databases and related documentation, (vi) all other proprietary rights and (vii) all copies and tangible embodiments thereof (in whatever form or medium).
Certain Other Restrictions. In no event will User disassemble, decompile, or reverse engineer the Sites, Services, Devices or Intellectual Property or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (a) converting the Intellectual Property from a machine-readable form into a human-readable form; (b) disassembling or decompiling the Intellectual Property by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (c) examining the machine-readable object code that controls the Intellectual Property’s operation and creating the original source code, binary code or any approximation thereof by, for example, studying the Intellectual Property’s behavior in response to a variety of inputs; or (d) performing any other activity related to the Intellectual Property that could be construed to be reverse engineering, disassembling, or decompiling.
Feedback and User Data.
Feedback. User understands and agrees that that any suggestions, questions, reviews, messages that User sends, submits or otherwise provides to Company (“Feedback”) shall become the sole and exclusive property of the Company, and the Company may, in its sole and absolute discretion, determine whether to disclose, respond to, incorporate or otherwise use the Feedback. User hereby assigns to Company all of User’s rights, title and interests in and to the Feedback, including any intellectual property rights therein. For the avoidance of doubt Feedback does not include any User Data or Feedback.
License to User Data. User hereby grants to Company a royalty-free, perpetual, worldwide, and non-exclusive license to use, upload, display, copy and store all User Data (defined below). “User Data” means information, data, and other content, in any form or medium that is collected, downloaded, or otherwise received, directly or indirectly from User by or through the Sites or Services. For the avoidance of doubt, User Data does not include any Feedback or Content (defined below) submitted by User, Sites or Services, including: (i) data and information related to User’s access and use of the Sites, Services and/or Devices, including to compile statistical and performance information related to the provision and operation of the Sites and Services; and (ii) any information reflecting the access or use of the Sites, Services and/or Devices by or on behalf of User. Notwithstanding the foregoing, the Company will use and store User Data in accordance with the Company’s Privacy Policy, which can be found here.
Submitted Content. The Sites and Services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards and/or other interactive features and areas that may allow User to submit, post, display, publish or transmit comments, background information, messages, photographs, videos, audio, recordings, suggestions and any other related content through the Sites and/or the Services (the “Content”). By submitting the Content, User represents and warrants that: (x) User is the sole author and owner of the Content; (y) User is at least 18 years of age; and (z) the Content supplied by User will not violate these Terms of Use, or any applicable law and will not violate any rights of, or otherwise cause any injury to, any person or entity.
User also represents and warrant that the Content is NOT, as determined by the Company in its sole and absolute discretion, any of the following: false, inaccurate, misleading, a violation of any local, state, federal, international or other applicable law, or otherwise obscene, derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person or entity, including as such relates to the harassment, degradation, intimidation, or victimization of an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; an infringement on the rights of others, such as infringements on any patent, copyright, trademarks, trade secret, publicity or privacy rights; an advertisement, solicitation or spam link to other websites or individuals, except if such an advertisement or solicitation has been expressly consented to in writing by the Company; a chain letter or pyramid scheme, or part of a chain letter or pyramid scheme; an impersonation of, and does not purport to impersonate, another business, person, or entity, including the Company and its employees and agents; or a virus or other harmful computer code, and does not contain a virus or other harmful code.
USER EXPRESSLY AGREES THAT ALL CONTENT SUBMITTED TO THE SITES AND SERVICES WILL NOT BE CONSIDERED CONFIDENTIAL OR PROPRIETARY AND USER AUTOMATICALLY GRANTS AND/OR WARRANTS THE COMPANY A ROYALTY-FREE, PERPETUAL, IRREVOCABLE, WORLDWIDE, FULLY-PAID UP, UNLIMITED, AND NON-EXCLUSIVE LICENSE TO USE, REPRODUCE, CREATE DERIVATIVE WORKS FROM, MODIFY, PUBLISH, EDIT, TRANSLATE DISTRIBUTE, PERFORM AND DISPLAY THE SUBMISSION AND/OR THE CONTENT IN ANY MEDIA OR MEDIUM, OR ANY FORM, FORMAT OR FORUM WHETHER NOW KNOWN OR HEREAFTER DEVELOPED. USER EXPRESSLY ACKNOWLEDGES THAT ANY CONTENT CONTRIBUTED BY USER (WHETHER DIRECTLY OR INDIRECTLY) MAY BE PUBLICLY ACCESSIBLE OR VIEWABLE.
User acknowledges and agrees that User shall NOT submit any Content to, on or through the Sites or Services: (i) with respect to a vehicle, if (x) User is not the legal owner of the vehicle, or (y) the vehicle is not registered in the name of the User; (ii) where the purpose of submitting the Content is to compete with the Company or its Sites and Services; (iii) containing (x) unsolicited promotions, advertisements, contents and raffles or (y) fabricated, false, illegal, misleading, inaccurate, offensive or inappropriate information; (iv) infringe or violate (x) the Intellectual Property rights of the Company or the intellectual property rights of any third party, (y) any other rights of the Company or any third party (including any contractual rights), and (z) any applicable federal, state or local laws, regulations and ordinances; (v) that include another person’s or entity’s identification documents or sensitive financial information; (vi) violating any of these Terms of Use or any other agreements that User may enter into with the Company; and (vii) on behalf of any other person or entity where such other person or entity would violate the above restrictions or any of these Terms of Use.
User further understands and acknowledges that Company has the right, but not the obligation, to monitor all Content and any submission made to or on the Sites or the Services. Company has the right, in its sole discretion and for any reason, to edit, delete, move, or to refuse to post any Content or any other submission to the Sites or the Services. NOTWITHSTANDING THE FOREGOING, USER IS SOLELY RESPONSIBLE FOR ANY CONTENT AND/OR ANY OTHER SUBMISSION USER MAKES TO OR ON THE SITES OR THE SERVICES, AND USER AGREES TO INDEMNIFY THE COMPANY FOR ALL CLAIMS RELATED TO OR ARISING FROM SUCH CONTENT AND/OR SUBMISSIONS.
Eligibility. THE SITES, SERVICES AND DEVICES ARE NOT DIRECTED TOWARDS, NOR INTENDED FOR USE BY, ANYONE UNDER THE AGE OF 18. IF THE USER IS UNDER THE AGE OF 18, USER MAY NOT, UNDER ANY CIRCUMSTANCES OR FOR ANY REASON, USE THE SERVICES OR DEVICES. By accessing or using the Sites, Services or Devices, User represents and warrants that User (a) has the right, authority, and capacity to enter into Terms of Use, (b) will abide by all of the terms and conditions of these Terms of Use, and (c) is at least 18 years of age. User hereby expressly acknowledges and agrees that User’s eligibility to access and use the Sites, Services and Devices shall be contingent on User’s continued compliance with these Terms of Use.
Accounts & Passwords. Users may need to sign up for an account with the Company in order to access or use part or all of the Sites or Services. Users must provide accurate and up-to-date information for their account, and each User further represents and warrants that such User has not and will not (a) intentionally impersonate another person or entity by using such other person’s or entity’s name or email address, (b) use an offensive name or email address as determined by the Company in its sole and absolute discretion, or (c) use a name or email address for which such User does not have proper authorization. The Company reserves the right to (x) require that a User change their username or use another email address or (y) change any username and password for any User at any time, with notice to the User following any such change. User further acknowledges and agrees that User (i) is prohibited from using another person’s account or registration information for the Sites or Services, (ii) User shall be responsible for all activity that occurs on User’s account and keeping User’s password secure; and (iii) in the event there is unauthorized access or use of the User’s account, User shall immediately notify the Company at the following email address: support@performancebyie.com USER ACKNOWLEDGES AND AGREES THAT COMPANY SHALL NOT (A) BE LIABLE FOR ANY UNAUTHORIZED USE OF USER’S ACCOUNT, OR (B) REFUND ANY AMOUNT PAID TO COMPANY OR ANY AFFILIATE OR THIRD PARTY PARTNER OF THE COMPANY RELATING TO ANY UNAUTHORIZED USE OF USER’S ACCOUNT. User further understands and agrees that the Company has the right, but not the obligation, to monitor and verify the identity of Users. Company has the right, in its sole and absolute discretion and for any or no reason, to delete and/or remove any User account. NOTWITHSTANDING THE FOREGOING, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE VERIFICATION OF ANY USER’S IDENTITY, AND USER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THE IDENTITY OF ANY OTHER USER PRIOR TO INTERACTING OR ENGAGING WITH SUCH OTHER USER THROUGH THE SITES OR SERVICES.
Third Party Software. The Sites, Services, Devices and Intellectual Property may contain third party software that requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions may be requested from Company and are made a part of and incorporated by reference into these Terms of Use. By accepting these Terms of Use, User is also accepting the additional terms and conditions, if any, set forth therein.
Links to Other Websites & Third Party Content. The Sites and Services may contain links to or be linked from other websites and resources located on servers maintained by third parties over which Company has no control (“Linked Websites”). The Linked Websites are provided for User’s convenience and information only and, as such, User accesses them at User’s own risk. User agrees and acknowledges that the Company is not responsible for, and does not endorse or warrant, the content of or anything that may be delivered to User or User’s computer as a result of accessing any Linked Websites, whether or not the Company is affiliated with the owners of such Linked Websites. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER SHALL WAIVE ANY CLAIMS RELATED TO, AND THE COMPANY IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR, USER’S ACCESS OF ANY INFORMATION ON OR USE OF THE LINKED WEBSITES, INCLUDING BUT NOT LIMITED TO, ANY VIRUSES OR OTHER ILLICIT CODE THAT MAY BE DOWNLOADED THROUGH A LINKED WEBSITE, OR BY ACCESSING A LINKED WEBSITE.
The information presented on or through the Sites, Services, Devices and/or Materials is made available solely for general information purposes and the Company does not warrant the accuracy, completeness, or usefulness of this information. Any reliance User places on such information is strictly at User’s own risk. Company disclaims all liability and responsibility arising from any reliance placed on the Sites, Services, and/or Materials by the User or any other party who may be informed of any the information contained in, on, through or by the Sites, Services and/or Materials. The Sites, Services and Materials may include information and content provided by third parties, including the Content and other materials provided by other users, bloggers and third-party licensors, syndicators, aggregators, and/or reporting services (“Third Party Content”). ALL STATEMENTS AND/OR OPINIONS EXPRESSED IN THE THIRD PARTY CONTENT, AND ALL ARTICLES AND RESPONSES TO QUESTIONS AND OTHER CONTENT, OTHER THAN THE CONTENT AND MATERIALS PROVIDED BY THE COMPANY, ARE SOLELY THE OPINIONS AND THE RESPONSIBILITY OF THE PERSON OR ENTITY PROVIDING SUCH THIRD PARTY CONTENT. THE THIRD PARTY CONTENT DOES NOT NECESSARILY REFLECT THE OPINION OF THE COMPANY, AND THE COMPANY IS NOT RESPONSIBLE OR LIABLE TO ANY USER OR ANY THIRD PARTY FOR THE ACCURACY OF ANY OF THE THIRD PARTY CONTENT.
The Company is not responsible for the terms and conditions or privacy practices employed by Linked Websites. Each User acknowledges and agrees that the Company does not control how third parties may use personal information a User discloses to such third parties, and it is the User’s responsibility to carefully review the privacy policies of any Linked Websites or other third party websites before viewing, accessing, using, sharing or otherwise engaging with any Third Party Content or Linked Websites.
Risk of Loss. For the avoidance of doubt, Devices shall be deemed delivered upon, delivery of possession of such Devices to the carrier (each a “Delivery Point”). Each User agrees that such User shall take delivery of the Devices immediately upon delivery of the Devices to the Delivery Point (“Delivery Time”). USER SHALL BEAR ALL RESPONSIBILITY FOR ALL COSTS, EXPENSES AND LIABILITIES RELATING TO PICKING UP AND LOADING THE DEVICES AT THE DELIVERY POINT, INCLUDING ALL STORAGE, FREIGHT, INSURANCE, SHIPPING AND ALL OTHER EXPENSES FROM AND AFTER THE DELIVERY POINT TO THE FINAL DESTINATION. USER SHALL ALSO, FROM AND AFTER THE DELIVERY TIME, BE SOLELY RESPONSIBLE FOR ALL RISK OF LOSS OR DESTRUCTION OF OR DAMAGE TO THE DEVICES.
Reservation of Rights. USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT NOTHING IN THESE TERMS OF USE GRANTS ANY RIGHT, TITLE, OR INTEREST IN OR TO (INCLUDING ANY LICENSE UNDER) ANY INTELLECTUAL PROPERTY IN OR RELATING TO, THE SITES, SERVICES, OR ANY MATERIALS PROVIDED BY COMPANY TO USER, WHETHER EXPRESSLY, BY IMPLICATION, ESTOPPEL, OR OTHERWISE. All right, title, and interest in and to the Sites, Services, Devices, Materials and Intellectual Property will remain with the Company (subject to any limitations associated with intellectual property rights of third parties with respect to materials, content or intellectual provided by such third parties), even if the Feedback or other enhancements or changes suggested or requested by User become incorporated into the Sites, Services, Devices, Materials or Intellectual Property.
Limited Warranty. The Company provides a limited warranty with respect to certain Devices. For more information regarding the limited warranty, please click here. USER ACKNOWLEDGES AND AGREES THAT COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SITES, SERVICES, DEVICES, MATERIALS OR INTELLECTUAL PROPERTY OF THE COMPANY.
DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 13, ALL SITES, SERVICES, MATERIALS, INTELLECTUAL PROPERTY, DEVICES, CONFIDENTIAL INFORMATION, AND ANY OTHER TECHNOLOGY OR MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SITES, SERVICES, DEVICES AND/OR MATERIALS FURNISHED BY COMPANY, OR ANY PRODUCTS OR RESULTS OF THE ACCESS OR USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OTHER SERVICES, APPLICATIONS, DEVICES, VEHICLES OR BE SECURE, ACCURATE, FUNCTION, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ACCESS, USE AND/OR INSTALLATION OF THE SERVICES AND SOFTWARE, INCLUDING ANY UPDATES AND MODIFICATIONS, MAY AFFECT THE AVAILABILITY, USABILITY AND FUNCTIONALITY OF THE COMPANY’S SOFTWARE AND SERVICES AND THIRD PARTY SOFTWARE, APPLICATIONS AND SERVICES. ALL THIRD PARTY CONTENT, SERVICES AND/OR INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY CONTENT, SERVICES, OR INTELLECTUAL PROPERTY IS STRICTLY BETWEEN USER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY CONTENT, SERVICES, AND/OR INTELLECTUAL PROPERTY.
USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ACCESS AND USE OF THE COMPANY’S, SITES, SERVICES, DEVICES, SOFTWARE AND ANY SERVICES IS AT USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH USER. SPECIFICALLY, USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT INSTALLATION OF THIS SOFTWARE, INCLUDING ANY UPDATES OR MODIFICATIONS, MAY INVALIDATE MANUFACTURER WARRANTIES.
USER FURTHER ACKNOWLEDGES AND AGREES THAT THE SITES, SERVICES, MATERIALS, SOFTWARE AND DEVICES ARE NOT INTENDED NOR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA, MATERIALS OR INFORMATION PROVIDED BY OR THROUGH THE SITES, SERVICES OR SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING, WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
CERTAIN FEATURES, FUNCTIONALITY, AND/OR MATERIALS OR USER CONTENT OFFERED ON OR THROUGH THE SITES AND SERVICES MAY BE HOSTED, ADMINISTERED, RUN, OR OTHERWISE PARTICIPATED IN BY THIRD PARTIES. THESE SERVICE PROVIDERS MAY REQUIRE THAT USER AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS, AND/OR RULES. USER’S COMPLIANCE WITH ANY SUCH ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS, AND/OR RULES IS SOLELY USER’S RESPONSIBILITY AND WILL HAVE NO EFFECT ON USER’S CONTINUING OBLIGATION TO COMPLY WITH THESE TERMS OF USE WHEN ACCESSING OR USING THE SITES OR SERVICES. THE COMPANY, ITS SUPPLIERS, SERVICE PROVIDERS, LICENSORS, CONTRACTORS, SUBCONTRACTORS AND AGENTS SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE ACTS OR OMISSIONS OF THE COMPANY OR SUCH THIRD PARTIES.
THE COMPANY, ITS SERVICE PROVIDERS, SUPPLIERS, LICENSORS, CONTRACTORS, SUBSCONTRACTORS AND AGENTS SHALL NOT BE RESPONSIBLE FOR INCOMPLETE, INCORRECT, LOST, DELAYED, LATE, MISDIRECTED, GARBLED, DAMAGED, ILLEGIBLE, UNDELIVERABLE, OR INCOMPLETELY RECEIVED COMMUNICATIONS OR MESSAGING FROM OR TO THE COMPANY, USER, OR BETWEEN ANOTHER USER AND THE USER FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, BY REASON OF HARDWARE, SOFTWARE, BROWSER, NETWORK, COMMUNICATIONS SYSTEM FAILURE, MALFUNCTION, DELAY, OR CONGESTION, OR ANY INCOMPATIBILITY AT THE COMPANY’S SERVERS OR ELSEWHERE, OR FOR ANY OTHER TECHNICAL PROBLEMS, ANY FORM OF ACTIVE OR PASSIVE FILTERING BY A USER'S COMPUTER, MOBILE OR OTHER DEVICE OR VEHICLE OR ACCESS PROVIDER, INSUFFICIENT SPACE ON USER'S COMPUTER, MOBILE OR OTHER DEVICE OR ACCOUNT/PROFILE, OR ANY OTHER CAUSE OR COMBINATION THEREOF.
USER FURTHER EXPRESSLY ACKNOWLEDGES AND AGREES THAT COMPANY HAS NO DUTY TO TAKE ANY ACTION REGARDING (i) ANY INFORMATION, CONTENT, OR MATERIALS ACCESSED BY THE USER ON OR THROUGH THE SITES AND SERVICES; (ii) THE EFFECTS THE CONTENT OR MATERIALS MAY HAVE ON THE USER; OR (iii) HOW THE USER MAY INTERPRET THE INFORMATION, CONTENT OR MATERIALS.
THE COMPANY MAKES NO WARRANITES, EXPRESS OR IMPLIED, CONCERNING THE ACCURACY, COMPLETENESS, FUNCTIONALITY OR SUITABILITY OF THE MATERIALS, CONTENT, INFORMATION AND DATA PROVIDED THROUGH THE SITES AND SERVICES.
THE COMPANY SHALL NOT BE RESPONSIBLE FOR THE MISUSE OR MISREPRESENTATION OF THE MATERIALS, CONTENT, INFORMATION AND/OR DATA PROVIDED THROUGH THE SITES AND SERVICES, AND ANY RELIANCE USER PLACES ON SUCH MATERIALS, CONTENT, INFORMATION AND/OR DATA IS STRICTLY AT USER’S OWN RISK.
EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT USER’S PERSONAL DATA AS SET FORTH IN THE COMPANY’S PRIVACY POLICY, THE COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER CONTENT, USER DATA, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
EACH USER EXPRESSLY AGREES THAT SUCH USER SHALL (A) BE RESPONSIBLE FOR ANY AND ALL LOSS AND/OR DAMAGE TO USER’S VEHICLE(S) RELATING TO OR ARISING FROM THE SITES, SERVICES AND DEVICES, AND (B) INDEMNIFY AND HOLD HARMLESS THE COMPANY FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES, INJURIES, CLAIMS, DEMANDS, COSTS AND EXPENSES ARISING OUT OF THE USER’S USE, POSSESSION OR CONTROL OF USER’S VEHICLE(S) AND ANY BREACH OF USER’S REPRESENTATIONS AND RESPONSIBILITIES SET FORTH HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, USER RELEASES COMPANY FROM RESPONSIBILITY, LIABILITY, CLAIMS, DEMANDS, AND/OR DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING, BUT NOT LIMITED TO, CLAIMS OF NEGLIGENCE), ARISING OUT OF OR RELATED TO DISPUTES BETWEEN USERS AND THE ACTS OR OMISSIONS OF OTHER USERS OR THIRD PARTIES.
Indemnification. User shall indemnify, defend, and hold harmless Company (including its affiliates and subsidiaries) and its licensors, suppliers, service providers, contractors and subcontractors, and each of its and their respective officers, directors, employees, principals, agents, successors, and assigns (each, an “Indemnitee”) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers), incurred by any Indemnitee arising out of or resulting from, or are alleged to arise out of or result from (a) Content and User Data, including any processing of Content and/or User Data by or on behalf of Company; (b) User’s use or misuse of, or access to, the Devices, Sites and/or Services; (c) User’s violation of these Terms of Use, or infringement by User, or any third party using User’s account or identity in, on or through the Sites or Services, of any intellectual property or other right of any person or entity; (d) allegation of facts that, if true, would constitute User’s breach of any of its representations, warranties, covenants, or obligations under these Terms of Use or any User Contract; (e) any violation of any right of any third party or the breach of any obligation to any third party under any agreement or other arrangement between User and such third party, including, but not limited to, the infringement, violation or misappropriation of any copyright, patent, trademark, trade dress, trade secret or other proprietary or intellectual property right of any third party or the breach of any contract; (f) the termination or loss of manufacturer warranties with respect to vehicle(s) owned or operated by User; (ii) any injury or death caused by, or arising from, User’s vehicle(s) being driven or transported by User or any other driver of the vehicle(s), whether or not such driver is permitted to operate the vehicle; (iii) any injury or death suffered by User or any driver or passenger of User’s vehicle(s); (iv) any injury or death suffered by User or any person relating to or arising from any defect, malfunction or other issue of the Sites, Service or Devices.
LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR ANY USER CONTRACT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE DEVICES, SITES OR SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (e) COST OF REPLACEMENT GOODS, DEVICES OR SERVICES; (f) INSTALLATION RELATED REPAIRS AND COSTS, INCLUDING, WITHOUT LIMITATION, MECHANICS TIME; (g) VEHICLE RECOVERY AND/OR TOWING RELATED COSTS AND EXPENSES; (h) ANY AND ALL DAMAGE TO OR OF USER’S VEHICLE OR ANY OTHER VEHICLE IN WHICH THE DEVICES ARE PLACED; (h) LOSS OF GOODWILL OR REPUTATION; OR (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CAP ON LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR ANY USER CONTRACT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE SUM OF FIVE HUNDRED DOLLARS ($500.
THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THE COMPANY IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND/OR NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Term and Termination. The Company may terminate or suspend User’s account or access to the Sites or Services at any time for any reason, with or without notice to User. Such termination may result in the loss of some or all information, including any Content, associated with User’s account. User may also delete their accounts by following the directions through the Sites or Services. All provisions of these Terms of Use which by their nature should survive termination shall survive, including without limitation all rights, licenses and obligations provided in Sections 10-20, together with any remedies for breach.
Modifications and Amendments. THESE TERMS OF USE MAY BE UPDATED OR AMENDED BY COMPANY AT ANY TIME, WITH OR WITHOUT NOTICE TO USER AND USER’S CONTINUED USE OF THE SITES AND SERVICES SHALL CONSTITUTE USER’S ACCEPTANCE OF THE UPDATED OR AMENDED TERMS OF USE.
Assignment. User may not assign all or any part of its rights or obligations hereunder, whether by operation of law, change of control, or in any other manner, without the prior written consent of Company. Any such assignment in violation of this Section will be deemed void. The Company may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation and without providing notice to User.
Electronic Communications and Signatures.
The communications between User and Company use electronic means, whether User visits the Sites or sends Company emails, or whether Company posts notices on the Sites or Services or communicates with User via email. For contractual purposes, User (a) consents to receive communications from Company in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to User electronically satisfies any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect User’s non-waivable rights.
User Contracts and other documents may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company or other third parties post such documents, or provide a link thereto on the Sites, Services or Linked Websites; or (ii) on which such documents are posted on User’s behalf on an internet or intranet website, if any, to which the Company has access (whether a commercial, third-party website or whether sponsored by the Company); provided that the Company shall have no obligation to maintain paper copies of the documents referred to above, however, upon a User’s request the Company shall deliver by electronic mail electronic versions (i.e., soft copies) of such documents.
These Terms of Use and any User Contracts including User Contracts required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Borrower agrees that any Electronic Signature on or associated with any User Contract shall be valid and binding on User to the same extent as a manual signature, and that any User Contract entered into by Electronic Signature, will constitute the legal, valid and binding obligation of User enforceable against such in accordance with the terms thereof to the same extent as if manually executed. Any User Contract may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same User Contract. For the avoidance of doubt, the authorization under this paragraph may include use or acceptance by the Company of a manually signed paper User Contract which has been converted into electronic form (such as scanned into PDF format), or an electronically signed User Contract converted into another format, for transmission, delivery and/or retention. The Company may, at its option, create one or more copies of any User Contract in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such person’s business, and destroy the original paper document. All User Contracts in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the Company is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Company pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Company has agreed to accept such Electronic Signature, the Company shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of User without further verification and (b) upon the request of the Company, any Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
Third Parties. Company will have the right to use third parties, including, but not limited to, employees of Company’s affiliates and subsidiaries (“subcontractors”), in performance of its obligations and services hereunder, and for purposes of these Terms of Use, all references to Company or its employees will be deemed to include such subcontractors.
Technical Data. User shall not provide to Company any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. User shall certify that all information provided to Company has been reviewed and scrubbed so that all technical data and other sensitive information relevant to User’s ITAR regulated project has been removed and the information provided is only relevant to bug reports on Company products.
U.S. EXPORT CONTROLS. NEITHER THE SITES, SERVICES, DEVICES NOR ANY MATERIALS OR SOFTWARE PROVIDED BY THE COMPANY THROUGH THE SITES AND SERVICES (“COMPANY ITEMS”) MAY BE EXPORTED OR RE-EXPORTED (I) INTO THE TERRITORY OF (OR TO A NATIONAL OR RESIDENT OF) CUBA, NORTH KOREA, IRAN, SYRIA, SUDAN, OR ANY OTHER COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS OR SERVICES; OR (II) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S TABLE OF DENY ORDERS. BY ACCESSING THE SITES OR SERVICES OR DOWNLOADING OR USING ANY COMPANY ITEMS PROVIDED THROUGH THE SITES OR SERVICES, USER REPRESENTS AND WARRANTS THAT USER IS NOT LOCATED IN, UNDER THE CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these Terms of Use and any User Contract.
Force Majeure. In no event will Company be liable or responsible to any User, or be deemed to have defaulted under or breached these Terms of Use or any User Contract, for any failure or delay in fulfilling or performing any provision of these Terms of Use or any User Contract when and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, whether or not any such circumstances are or were foreseeable or are due to negligence or willful default including, but not limited to, Device failure or performance issues, user error or User’s negligence or reckless actions or omissions, inaccuracy of third party license or service providers, poor weather, failure of public or private telecommunications networks, disruption of telecommunications services due to technical issues, improper installation of a Device by an installer, any failure of any third party whom User has engaged to access, use or install the Sites, Services or Devices, acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, epidemics or pandemics as determined and/or defined by the U.S. Centers for Disease Control and Prevention or the World Health Organization, embargoes or blockades in effect on or after the date of these Terms of Use or any User Contract, whichever is dated earlier, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation, or any other event beyond the Company’s reasonable control making it inadvisable, illegal or impractical to perform its obligations hereunder.
Restricted Rights. Use of the Sites, Services or Devices by or for the United States Government is conditioned upon the Government agreeing that the Sites, Services and Devices are subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. User shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Sites, Services or Devices, when accessed by the government, is correctly marked as required by applicable government regulations governing such Restricted Rights as of such access.
Privacy. User understands and acknowledges that User’s personal data will be collected, protected, and used by the Company in accordance with the Company’s Privacy Policy found here, which is incorporated into these Terms of Use as if set forth verbatim herein.
Entire Agreement. These Terms of Use, together with any User Contract and the documents and exhibits attached thereto, constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein.
Governing Law & Arbitration. These Terms of Use are governed by and construed in accordance with the laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. ANY LEGAL CLAIM, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR THE RIGHTS OR LICENSES GRANTED HEREUNDER WILL BE SUBJECT FIRST TO MEDIATION BETWEEN THE PARTIES AND IF MEDIATION IS UNSUCCESSFUL TO BINDING ARBITRATION PURSUANT TO THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) COMMERCIAL RULES IN EFFECT AS OF THE DATE OF THE DISPUTE. THE SOLE AND EXCLUSIVE VENUE FOR ANY SUCH ARBITRATION IS THE AAA OFFICE IN DENVER, COLORADO. Service of process, summons, notice, or other document by mail to User’s address set forth on the Sites shall be effective service of process for any suit, action, or other proceeding brought in any such court.
WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR ANY USER CONTRACT, OR ANY TRANSACTION CONTEMPLATED BY THESE TERMS OF USE OR ANY USER CONTRACT.
California Civil Code Section 1542 Waiver. User expressly acknowledges and agrees that all rights under Section 1542 of the California Civil Code are expressly waived. That section provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. In addition, User hereby knowingly and voluntarily waives any protection that may exist under any comparable or similar statutes and principles of common law or any other state laws as it pertains to the enforcement of the releases provided in this paragraph.
Updated: January 05, 2024
Certain Devices or Services purchased may require Users to enter into separate terms or agreements (“User Contract”), such User Contracts shall supplement these Terms of Use; provided, however, that to the extent there is a conflict between these Terms of Use and any User Contract, the User Contract shall govern and control with respect to such conflict.
Certain Acknowledgements. User acknowledges and agrees to the following:
The Company reserves the right to discontinue, temporarily or permanently, the Sites or Services or any features or portions thereof without prior notice to User. The Company shall not be liable for any suspension or discontinuance of the Sites or Services or any portion thereof. User further expressly acknowledges and agrees that these Terms of Use do not entitle User to any support for the Sites or Services, and the Company may update or modify the Sites or Services from time to time and at Company’s sole discretion (in each instance, an “Update”), and may require User to obtain and use the most recent version of the Sites and Services. Updates may adversely affect how Devices purchased or used by the User communicate with the Sites and Services, and Users may be required to make enhancements, improvements, upgrades or changes to their vehicles for integration as a result of such Update at User’s sole cost and expense.
The Sites and Services include tools that, together with Devices or other equipment and devices, may permit User to customize, enhance, adjust, convert or otherwise change or modify User’s vehicle(s), which may adversely affect manufacturer warranties of such vehicle(s). User shall be solely responsible and liable for all changes and/or modifications to the User’s vehicle(s) relating to, or resulting from, the Sites, Services or Devices, including, without limitation, (i) the termination or loss of any manufacturer warranty; (ii) any injury or death caused by, or arising from, the vehicle(s) being driven or transported by User or any other driver of the vehicle(s), whether or not such driver is permitted to operate the vehicle; (iii) any injury or death suffered by User or any driver or passenger of the vehicle(s); (iv) any injury or death suffered by User or any person relating to or arising from any defect, malfunction or other issue of the Sites, Service or Devices.
THE SITES AND SERVICES, INCLUDING ANY PROPRIETARY MATERIALS AND THE LICENSED MATERIALS OF THIRD PARTIES ON, INCORPORATED INTO OR OTHERWISE MADE AVAILABLE THROUGH THE SITES AND SERVICES, SUCH AS DATA, TEXT, PHOTOGRAPHS, VIDEOS, AUDIO CLIPS, WRITTEN POSTS AND COMMENTS, LOGOS, BUTTON ICONS, DATA COMPILATIONS, GRAPHICS, SCRIPTS, ILLUSTRATIONS, INTERFACES, GRAPHICAL USER INTERFACES, INTERACTIVE FEATURES, SOFTWARE, SCRIPTS, AND ALL OTHER RESOURCES, SPECIFICATIONS, KNOW-HOW, INTELLECTUAL PROPERTY AND MATERIALS IN, ON OR AVAILABLE THROUGH THE SITES AND SERVICES (COLLECTIVELY, THE “MATERIALS”), ARE PROVIDED FOR GENERAL INFORMATIONAL PURPOSES ONLY.
(i) User shall not use the Sites, Services or Devices with any vehicle if (x) User is not the legal owner or lessee of such vehicle, (y) such vehicle is not registered in the name of the User, and (z) User does not have a valid driver’s license; (ii) the Sites, Services, Devices and Materials have not been developed to meet User’s individual requirements, and it is User’s sole responsibility to ensure that the facilities and functions of the Sites, Services and Devices meet User’s requirements; (iii) it is User’s sole responsibility to maintain User’s vehicle so as to ensure operability of the Devices and Services, including, without limitation, maintaining full battery charge; (iv) installing and/or using the Devices and Services requires a minimum operating system in order to be compatible with the User’s vehicle, and that such minimum operating system is subject to change as the Company updates and modifies its Sites, Services and Devices; (v) that where installation of Devices are required User shall ensure that such installation is completed by an authorized installer in accordance with the applicable instructions and best practices; and (vi) the User shall be solely responsible for the improper installation of the Services or Devices.
Although the Company makes reasonable efforts to update information, the Company makes no representations, warranties or guarantees, whether express or implied, that (i) the Sites, Services and Materials, including any tuning or performance information on or through the Sites or Services, are accurate, complete or up to date, (ii) the Company will in the future take any actions to update or correct the Sites, Services or Materials, including any tuning or performance information on or through the Sites or Services, or (iii) that the Sites, Services or Materials are compatible with any mobile device, tablet, computer equipment or any programs.
The Company shall not be responsible for any errors or omissions relating to the Materials or any other information included in, contained on, or made available through the Sites and Services (including, without limitation, any pricing or tuning, testing or performance related display, user interface or information).
The Company reserves the right in its sole and absolute discretion to refuse or cancel any orders of the Services or Devices. If payment was made by a User prior to the cancellation by the Company, the Company will issue a full refund of the payment less any fees and expenses determined by the Company to be necessary or appropriate in its sole and absolute discretion.
Right to Use. Subject to all limitations and restrictions set forth in these Terms of Use, User will have a limited, fully revocable, non-exclusive, non-commercial, non-transferable, and non-sublicensable right to use the Sites and Services. All rights not expressly granted to Users are reserved by the Company and any of its licensors. The Sites, Services, Devices and Materials may contain copyrighted material, trademarks, and other proprietary information and materials. Except for the content that is in the public domain or content that User has permission to use in connection with User’s use of the Sites and Services and in compliance with these Terms of Use, User shall not copy, modify, publish, transmit, distribute, perform, or display in any content, nor shall User sell, license, rent, or otherwise use or exploit any content for commercial use or in any way that violates any rights of the Company or any third party. The Company may, but is not required to, remove, block, edit or modify any content (including any Materials, Feedback or User Content) in Company’s sole discretion at any time for any reason or no reason at all and without notice to User. USER ACKNOWLEDGES AND AGREES THAT COMPANY RESERVES THE RIGHT TO ACCESS, READ, PRESERVE, AND DISCLOSE ANY INFORMATION THE COMPANY BELIEVES, IN ITS SOLE AND ABSOLUTE DISCRETION, IS NECESSARY TO SATISFY APPLICABLE LAWS OR PROTECT THE RIGHTS PROPERTY OR SAFETY OF THE COMPANY, THE COMPANY’S OWNERS, LICENSORS, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, USERS, THE PUBLIC OR ANY THIRD PARTY.
Use Restrictions and Prohibited Conduct. User shall not, and shall not permit any other person or entity to, access or use the Sites, Services or Devices except as expressly permitted by these Terms of Use. For purposes of clarity and without limiting the generality of the foregoing, User shall not, as determined by the Company in its sole and absolute discretion: (a) copy, modify, or create derivative works or improvements of the Sites, Services, Devices, Materials or Intellectual Property (as defined below); (b) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any Sites, Services, Materials, Devices or Intellectual Property to any person; (c) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Sites, Services, Devices or Intellectual Property, in whole or in part; (d) bypass or breach any security device or protection used by the Sites, Services or Intellectual Property or access or use the Sites, Services or Intellectual Property other than through the use of User’s own then valid access credentials; (e) input, upload, transmit, or otherwise provide to or through the Sites or Services, any information or materials that are unlawful or injurious, or contain, transmit, or activate any harmful or malicious code; (f) damage, destroy, disrupt, disable, impair, interfere with, or otherwise impede or harm in any manner the Sites, Services, Intellectual Property, or Company’s provision of services to any third party, in whole or in part; (g) remove, delete, alter, or obscure any trademarks, warranties, or disclaimers, or any copyright, trademark, patent, or other Intellectual Property or proprietary rights notices from any Sites, Services, Devices, Materials or Intellectual Property, including any copy thereof; (h) access or use the Sites, Services, Devices, Materials or Intellectual Property in any manner or for any purpose that infringes, misappropriates, or otherwise violates any right, title, or interest of the Company or other right of any third party (including by any unauthorized access to, misappropriation, use, alteration, destruction, or disclosure of the data of any user), or that violates any applicable law; (i) access or use the Sites, Services or Devices for purposes of competitive analysis of the Sites, Services or Devices, the development, provision, or use of a competing service, device or product or any other purpose that is to the Company’s detriment or commercial disadvantage; (j) access or use the Sites or Services to store or transmit infringing, libelous, or otherwise unlawful or tortious material, (k) falsely state or misrepresent the User or the User’s affiliation with any person or entity, express or imply that the Company endorses the User, the User’s vehicles or the User’s business; (l) use the Sites or Services in any manner that is obscene, derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person or entity, including as such relates to the harassment, degradation, intimidation, or victimization of an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; (m) use the Sites, Services, Devices or Materials in any manner that may harm the Company or the Company’s affiliates, subsidiaries, licensees, officers, directors, shareholders, principals, employees, contractors, subcontractors, agents, distributors, service providers and/or suppliers; (n) attempt to interfere with or disrupt the Sites and Services, including, without limitation, the operation of the Sites and Services, or the servers or networks that host the Sites and Services; (o) use any type of data mining, robots, scrapers or any other data collection sources, methods or tools; or (p) access or use the Sites, Services or Devices for any purpose for which they are not intended or beyond the scope of the authorization granted under these Terms of Use.
“Intellectual Property” means any intellectual property of the Company in any jurisdiction throughout the world, including, but not limited to: (i) all inventions (whether patentable or unpatentable and whether or not reduced to practice), all improvements thereto and all patents, patent applications and patent disclosures, together with all reissuances, continuations, continuations-in-part, revisions, extensions and reexaminations thereof, (ii) all trademarks, service marks, trade dress, logos, slogans, trade names, corporate names, Internet domain names, uniform resource locators and e-mail addresses, and rights in telephone numbers, together with all translations, adaptations, derivations and combinations thereof and including all goodwill associated therewith and all applications, registrations and renewals in connection therewith, (iii) all copyrightable works, all copyrights, and all applications, registrations and renewals in connection therewith, (iv) all trade secrets and confidential business information (including ideas, research and development, know-how, formulas, compositions, manufacturing and production processes and techniques, technical data, designs, drawings, specifications, customer and supplier lists, pricing and cost information and business and marketing plans and proposals), (v) all software, including computer programs, machine-readable instruction sets or data in computerized form, whether in source code, object code or other form, and all data, databases and related documentation, (vi) all other proprietary rights and (vii) all copies and tangible embodiments thereof (in whatever form or medium).
Certain Other Restrictions. In no event will User disassemble, decompile, or reverse engineer the Sites, Services, Devices or Intellectual Property or permit others to do so. Disassembling, decompiling, and reverse engineering include, without limitation: (a) converting the Intellectual Property from a machine-readable form into a human-readable form; (b) disassembling or decompiling the Intellectual Property by using any means or methods to translate machine-dependent or machine-independent object code into the original human-readable source code or any approximation thereof; (c) examining the machine-readable object code that controls the Intellectual Property’s operation and creating the original source code, binary code or any approximation thereof by, for example, studying the Intellectual Property’s behavior in response to a variety of inputs; or (d) performing any other activity related to the Intellectual Property that could be construed to be reverse engineering, disassembling, or decompiling.
Feedback and User Data.
Feedback. User understands and agrees that that any suggestions, questions, reviews, messages that User sends, submits or otherwise provides to Company (“Feedback”) shall become the sole and exclusive property of the Company, and the Company may, in its sole and absolute discretion, determine whether to disclose, respond to, incorporate or otherwise use the Feedback. User hereby assigns to Company all of User’s rights, title and interests in and to the Feedback, including any intellectual property rights therein. For the avoidance of doubt Feedback does not include any User Data or Feedback.
License to User Data. User hereby grants to Company a royalty-free, perpetual, worldwide, and non-exclusive license to use, upload, display, copy and store all User Data (defined below). “User Data” means information, data, and other content, in any form or medium that is collected, downloaded, or otherwise received, directly or indirectly from User by or through the Sites or Services. For the avoidance of doubt, User Data does not include any Feedback or Content (defined below) submitted by User, Sites or Services, including: (i) data and information related to User’s access and use of the Sites, Services and/or Devices, including to compile statistical and performance information related to the provision and operation of the Sites and Services; and (ii) any information reflecting the access or use of the Sites, Services and/or Devices by or on behalf of User. Notwithstanding the foregoing, the Company will use and store User Data in accordance with the Company’s Privacy Policy, which can be found here.
Submitted Content. The Sites and Services may contain message boards, chat rooms, personal web pages or profiles, forums, bulletin boards and/or other interactive features and areas that may allow User to submit, post, display, publish or transmit comments, background information, messages, photographs, videos, audio, recordings, suggestions and any other related content through the Sites and/or the Services (the “Content”). By submitting the Content, User represents and warrants that: (x) User is the sole author and owner of the Content; (y) User is at least 18 years of age; and (z) the Content supplied by User will not violate these Terms of Use, or any applicable law and will not violate any rights of, or otherwise cause any injury to, any person or entity.
User also represents and warrant that the Content is NOT, as determined by the Company in its sole and absolute discretion, any of the following: false, inaccurate, misleading, a violation of any local, state, federal, international or other applicable law, or otherwise obscene, derogatory, defamatory, threatening, harassing, abusive, slanderous, hateful or embarrassing to any other person or entity, including as such relates to the harassment, degradation, intimidation, or victimization of an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age or disability; an infringement on the rights of others, such as infringements on any patent, copyright, trademarks, trade secret, publicity or privacy rights; an advertisement, solicitation or spam link to other websites or individuals, except if such an advertisement or solicitation has been expressly consented to in writing by the Company; a chain letter or pyramid scheme, or part of a chain letter or pyramid scheme; an impersonation of, and does not purport to impersonate, another business, person, or entity, including the Company and its employees and agents; or a virus or other harmful computer code, and does not contain a virus or other harmful code.
USER EXPRESSLY AGREES THAT ALL CONTENT SUBMITTED TO THE SITES AND SERVICES WILL NOT BE CONSIDERED CONFIDENTIAL OR PROPRIETARY AND USER AUTOMATICALLY GRANTS AND/OR WARRANTS THE COMPANY A ROYALTY-FREE, PERPETUAL, IRREVOCABLE, WORLDWIDE, FULLY-PAID UP, UNLIMITED, AND NON-EXCLUSIVE LICENSE TO USE, REPRODUCE, CREATE DERIVATIVE WORKS FROM, MODIFY, PUBLISH, EDIT, TRANSLATE DISTRIBUTE, PERFORM AND DISPLAY THE SUBMISSION AND/OR THE CONTENT IN ANY MEDIA OR MEDIUM, OR ANY FORM, FORMAT OR FORUM WHETHER NOW KNOWN OR HEREAFTER DEVELOPED. USER EXPRESSLY ACKNOWLEDGES THAT ANY CONTENT CONTRIBUTED BY USER (WHETHER DIRECTLY OR INDIRECTLY) MAY BE PUBLICLY ACCESSIBLE OR VIEWABLE.
User acknowledges and agrees that User shall NOT submit any Content to, on or through the Sites or Services: (i) with respect to a vehicle, if (x) User is not the legal owner of the vehicle, or (y) the vehicle is not registered in the name of the User; (ii) where the purpose of submitting the Content is to compete with the Company or its Sites and Services; (iii) containing (x) unsolicited promotions, advertisements, contents and raffles or (y) fabricated, false, illegal, misleading, inaccurate, offensive or inappropriate information; (iv) infringe or violate (x) the Intellectual Property rights of the Company or the intellectual property rights of any third party, (y) any other rights of the Company or any third party (including any contractual rights), and (z) any applicable federal, state or local laws, regulations and ordinances; (v) that include another person’s or entity’s identification documents or sensitive financial information; (vi) violating any of these Terms of Use or any other agreements that User may enter into with the Company; and (vii) on behalf of any other person or entity where such other person or entity would violate the above restrictions or any of these Terms of Use.
User further understands and acknowledges that Company has the right, but not the obligation, to monitor all Content and any submission made to or on the Sites or the Services. Company has the right, in its sole discretion and for any reason, to edit, delete, move, or to refuse to post any Content or any other submission to the Sites or the Services. NOTWITHSTANDING THE FOREGOING, USER IS SOLELY RESPONSIBLE FOR ANY CONTENT AND/OR ANY OTHER SUBMISSION USER MAKES TO OR ON THE SITES OR THE SERVICES, AND USER AGREES TO INDEMNIFY THE COMPANY FOR ALL CLAIMS RELATED TO OR ARISING FROM SUCH CONTENT AND/OR SUBMISSIONS.
Eligibility. THE SITES, SERVICES AND DEVICES ARE NOT DIRECTED TOWARDS, NOR INTENDED FOR USE BY, ANYONE UNDER THE AGE OF 18. IF THE USER IS UNDER THE AGE OF 18, USER MAY NOT, UNDER ANY CIRCUMSTANCES OR FOR ANY REASON, USE THE SERVICES OR DEVICES. By accessing or using the Sites, Services or Devices, User represents and warrants that User (a) has the right, authority, and capacity to enter into Terms of Use, (b) will abide by all of the terms and conditions of these Terms of Use, and (c) is at least 18 years of age. User hereby expressly acknowledges and agrees that User’s eligibility to access and use the Sites, Services and Devices shall be contingent on User’s continued compliance with these Terms of Use.
Accounts & Passwords. Users may need to sign up for an account with the Company in order to access or use part or all of the Sites or Services. Users must provide accurate and up-to-date information for their account, and each User further represents and warrants that such User has not and will not (a) intentionally impersonate another person or entity by using such other person’s or entity’s name or email address, (b) use an offensive name or email address as determined by the Company in its sole and absolute discretion, or (c) use a name or email address for which such User does not have proper authorization. The Company reserves the right to (x) require that a User change their username or use another email address or (y) change any username and password for any User at any time, with notice to the User following any such change. User further acknowledges and agrees that User (i) is prohibited from using another person’s account or registration information for the Sites or Services, (ii) User shall be responsible for all activity that occurs on User’s account and keeping User’s password secure; and (iii) in the event there is unauthorized access or use of the User’s account, User shall immediately notify the Company at the following email address: support@performancebyie.com USER ACKNOWLEDGES AND AGREES THAT COMPANY SHALL NOT (A) BE LIABLE FOR ANY UNAUTHORIZED USE OF USER’S ACCOUNT, OR (B) REFUND ANY AMOUNT PAID TO COMPANY OR ANY AFFILIATE OR THIRD PARTY PARTNER OF THE COMPANY RELATING TO ANY UNAUTHORIZED USE OF USER’S ACCOUNT. User further understands and agrees that the Company has the right, but not the obligation, to monitor and verify the identity of Users. Company has the right, in its sole and absolute discretion and for any or no reason, to delete and/or remove any User account. NOTWITHSTANDING THE FOREGOING, COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE VERIFICATION OF ANY USER’S IDENTITY, AND USER SHALL BE SOLELY RESPONSIBLE FOR VERIFYING THE IDENTITY OF ANY OTHER USER PRIOR TO INTERACTING OR ENGAGING WITH SUCH OTHER USER THROUGH THE SITES OR SERVICES.
Third Party Software. The Sites, Services, Devices and Intellectual Property may contain third party software that requires notices and/or additional terms and conditions. Such required third party software notices and/or additional terms and conditions may be requested from Company and are made a part of and incorporated by reference into these Terms of Use. By accepting these Terms of Use, User is also accepting the additional terms and conditions, if any, set forth therein.
Links to Other Websites & Third Party Content. The Sites and Services may contain links to or be linked from other websites and resources located on servers maintained by third parties over which Company has no control (“Linked Websites”). The Linked Websites are provided for User’s convenience and information only and, as such, User accesses them at User’s own risk. User agrees and acknowledges that the Company is not responsible for, and does not endorse or warrant, the content of or anything that may be delivered to User or User’s computer as a result of accessing any Linked Websites, whether or not the Company is affiliated with the owners of such Linked Websites. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, USER SHALL WAIVE ANY CLAIMS RELATED TO, AND THE COMPANY IS NOT RESPONSIBLE AND SHALL HAVE NO LIABILITY FOR, USER’S ACCESS OF ANY INFORMATION ON OR USE OF THE LINKED WEBSITES, INCLUDING BUT NOT LIMITED TO, ANY VIRUSES OR OTHER ILLICIT CODE THAT MAY BE DOWNLOADED THROUGH A LINKED WEBSITE, OR BY ACCESSING A LINKED WEBSITE.
The information presented on or through the Sites, Services, Devices and/or Materials is made available solely for general information purposes and the Company does not warrant the accuracy, completeness, or usefulness of this information. Any reliance User places on such information is strictly at User’s own risk. Company disclaims all liability and responsibility arising from any reliance placed on the Sites, Services, and/or Materials by the User or any other party who may be informed of any the information contained in, on, through or by the Sites, Services and/or Materials. The Sites, Services and Materials may include information and content provided by third parties, including the Content and other materials provided by other users, bloggers and third-party licensors, syndicators, aggregators, and/or reporting services (“Third Party Content”). ALL STATEMENTS AND/OR OPINIONS EXPRESSED IN THE THIRD PARTY CONTENT, AND ALL ARTICLES AND RESPONSES TO QUESTIONS AND OTHER CONTENT, OTHER THAN THE CONTENT AND MATERIALS PROVIDED BY THE COMPANY, ARE SOLELY THE OPINIONS AND THE RESPONSIBILITY OF THE PERSON OR ENTITY PROVIDING SUCH THIRD PARTY CONTENT. THE THIRD PARTY CONTENT DOES NOT NECESSARILY REFLECT THE OPINION OF THE COMPANY, AND THE COMPANY IS NOT RESPONSIBLE OR LIABLE TO ANY USER OR ANY THIRD PARTY FOR THE ACCURACY OF ANY OF THE THIRD PARTY CONTENT.
The Company is not responsible for the terms and conditions or privacy practices employed by Linked Websites. Each User acknowledges and agrees that the Company does not control how third parties may use personal information a User discloses to such third parties, and it is the User’s responsibility to carefully review the privacy policies of any Linked Websites or other third party websites before viewing, accessing, using, sharing or otherwise engaging with any Third Party Content or Linked Websites.
Risk of Loss. For the avoidance of doubt, Devices shall be deemed delivered upon, delivery of possession of such Devices to the carrier (each a “Delivery Point”). Each User agrees that such User shall take delivery of the Devices immediately upon delivery of the Devices to the Delivery Point (“Delivery Time”). USER SHALL BEAR ALL RESPONSIBILITY FOR ALL COSTS, EXPENSES AND LIABILITIES RELATING TO PICKING UP AND LOADING THE DEVICES AT THE DELIVERY POINT, INCLUDING ALL STORAGE, FREIGHT, INSURANCE, SHIPPING AND ALL OTHER EXPENSES FROM AND AFTER THE DELIVERY POINT TO THE FINAL DESTINATION. USER SHALL ALSO, FROM AND AFTER THE DELIVERY TIME, BE SOLELY RESPONSIBLE FOR ALL RISK OF LOSS OR DESTRUCTION OF OR DAMAGE TO THE DEVICES.
Reservation of Rights. USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT NOTHING IN THESE TERMS OF USE GRANTS ANY RIGHT, TITLE, OR INTEREST IN OR TO (INCLUDING ANY LICENSE UNDER) ANY INTELLECTUAL PROPERTY IN OR RELATING TO, THE SITES, SERVICES, OR ANY MATERIALS PROVIDED BY COMPANY TO USER, WHETHER EXPRESSLY, BY IMPLICATION, ESTOPPEL, OR OTHERWISE. All right, title, and interest in and to the Sites, Services, Devices, Materials and Intellectual Property will remain with the Company (subject to any limitations associated with intellectual property rights of third parties with respect to materials, content or intellectual provided by such third parties), even if the Feedback or other enhancements or changes suggested or requested by User become incorporated into the Sites, Services, Devices, Materials or Intellectual Property.
Limited Warranty. The Company provides a limited warranty with respect to certain Devices. For more information regarding the limited warranty, please click here. USER ACKNOWLEDGES AND AGREES THAT COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THE SITES, SERVICES, DEVICES, MATERIALS OR INTELLECTUAL PROPERTY OF THE COMPANY.
DISCLAIMER OF WARRANTIES. EXCEPT AS SET FORTH IN SECTION 13, ALL SITES, SERVICES, MATERIALS, INTELLECTUAL PROPERTY, DEVICES, CONFIDENTIAL INFORMATION, AND ANY OTHER TECHNOLOGY OR MATERIALS ARE PROVIDED “AS IS” AND “AS AVAILABLE.” COMPANY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND ALL WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, COMPANY MAKES NO WARRANTY OF ANY KIND THAT THE SITES, SERVICES, DEVICES AND/OR MATERIALS FURNISHED BY COMPANY, OR ANY PRODUCTS OR RESULTS OF THE ACCESS OR USE THEREOF, WILL MEET USER’S OR ANY OTHER PERSON’S REQUIREMENTS, OPERATE WITHOUT INTERRUPTION, ACHIEVE ANY INTENDED RESULT, BE COMPATIBLE OR WORK WITH ANY SOFTWARE, SYSTEM, OTHER SERVICES, APPLICATIONS, DEVICES, VEHICLES OR BE SECURE, ACCURATE, FUNCTION, COMPLETE, FREE OF HARMFUL CODE, OR ERROR FREE. ACCESS, USE AND/OR INSTALLATION OF THE SERVICES AND SOFTWARE, INCLUDING ANY UPDATES AND MODIFICATIONS, MAY AFFECT THE AVAILABILITY, USABILITY AND FUNCTIONALITY OF THE COMPANY’S SOFTWARE AND SERVICES AND THIRD PARTY SOFTWARE, APPLICATIONS AND SERVICES. ALL THIRD PARTY CONTENT, SERVICES AND/OR INTELLECTUAL PROPERTY ARE PROVIDED “AS IS” AND “AS AVAILABLE” AND ANY REPRESENTATION OR WARRANTY OF OR CONCERNING ANY THIRD PARTY CONTENT, SERVICES, OR INTELLECTUAL PROPERTY IS STRICTLY BETWEEN USER AND THE THIRD PARTY OWNER OR DISTRIBUTOR OF THE THIRD PARTY CONTENT, SERVICES, AND/OR INTELLECTUAL PROPERTY.
USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, ACCESS AND USE OF THE COMPANY’S, SITES, SERVICES, DEVICES, SOFTWARE AND ANY SERVICES IS AT USER’S SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH USER. SPECIFICALLY, USER EXPRESSLY ACKNOWLEDGES AND AGREES THAT INSTALLATION OF THIS SOFTWARE, INCLUDING ANY UPDATES OR MODIFICATIONS, MAY INVALIDATE MANUFACTURER WARRANTIES.
USER FURTHER ACKNOWLEDGES AND AGREES THAT THE SITES, SERVICES, MATERIALS, SOFTWARE AND DEVICES ARE NOT INTENDED NOR SUITABLE FOR USE IN SITUATIONS OR ENVIRONMENTS WHERE THE FAILURE OR TIME DELAYS OF, OR ERRORS OR INACCURACIES IN THE CONTENT, DATA, MATERIALS OR INFORMATION PROVIDED BY OR THROUGH THE SITES, SERVICES OR SOFTWARE COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE, INCLUDING, WITHOUT LIMITATION, THE OPERATION OF NUCLEAR FACILITIES, AIRCRAFT NAVIGATION OR COMMUNICATION SYSTEMS, AIR TRAFFIC CONTROL, LIFE SUPPORT OR WEAPONS SYSTEMS.
CERTAIN FEATURES, FUNCTIONALITY, AND/OR MATERIALS OR USER CONTENT OFFERED ON OR THROUGH THE SITES AND SERVICES MAY BE HOSTED, ADMINISTERED, RUN, OR OTHERWISE PARTICIPATED IN BY THIRD PARTIES. THESE SERVICE PROVIDERS MAY REQUIRE THAT USER AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS, AND/OR RULES. USER’S COMPLIANCE WITH ANY SUCH ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS, AND/OR RULES IS SOLELY USER’S RESPONSIBILITY AND WILL HAVE NO EFFECT ON USER’S CONTINUING OBLIGATION TO COMPLY WITH THESE TERMS OF USE WHEN ACCESSING OR USING THE SITES OR SERVICES. THE COMPANY, ITS SUPPLIERS, SERVICE PROVIDERS, LICENSORS, CONTRACTORS, SUBCONTRACTORS AND AGENTS SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE ACTS OR OMISSIONS OF THE COMPANY OR SUCH THIRD PARTIES.
THE COMPANY, ITS SERVICE PROVIDERS, SUPPLIERS, LICENSORS, CONTRACTORS, SUBSCONTRACTORS AND AGENTS SHALL NOT BE RESPONSIBLE FOR INCOMPLETE, INCORRECT, LOST, DELAYED, LATE, MISDIRECTED, GARBLED, DAMAGED, ILLEGIBLE, UNDELIVERABLE, OR INCOMPLETELY RECEIVED COMMUNICATIONS OR MESSAGING FROM OR TO THE COMPANY, USER, OR BETWEEN ANOTHER USER AND THE USER FOR ANY REASON, INCLUDING, WITHOUT LIMITATION, BY REASON OF HARDWARE, SOFTWARE, BROWSER, NETWORK, COMMUNICATIONS SYSTEM FAILURE, MALFUNCTION, DELAY, OR CONGESTION, OR ANY INCOMPATIBILITY AT THE COMPANY’S SERVERS OR ELSEWHERE, OR FOR ANY OTHER TECHNICAL PROBLEMS, ANY FORM OF ACTIVE OR PASSIVE FILTERING BY A USER'S COMPUTER, MOBILE OR OTHER DEVICE OR VEHICLE OR ACCESS PROVIDER, INSUFFICIENT SPACE ON USER'S COMPUTER, MOBILE OR OTHER DEVICE OR ACCOUNT/PROFILE, OR ANY OTHER CAUSE OR COMBINATION THEREOF.
USER FURTHER EXPRESSLY ACKNOWLEDGES AND AGREES THAT COMPANY HAS NO DUTY TO TAKE ANY ACTION REGARDING (i) ANY INFORMATION, CONTENT, OR MATERIALS ACCESSED BY THE USER ON OR THROUGH THE SITES AND SERVICES; (ii) THE EFFECTS THE CONTENT OR MATERIALS MAY HAVE ON THE USER; OR (iii) HOW THE USER MAY INTERPRET THE INFORMATION, CONTENT OR MATERIALS.
THE COMPANY MAKES NO WARRANITES, EXPRESS OR IMPLIED, CONCERNING THE ACCURACY, COMPLETENESS, FUNCTIONALITY OR SUITABILITY OF THE MATERIALS, CONTENT, INFORMATION AND DATA PROVIDED THROUGH THE SITES AND SERVICES.
THE COMPANY SHALL NOT BE RESPONSIBLE FOR THE MISUSE OR MISREPRESENTATION OF THE MATERIALS, CONTENT, INFORMATION AND/OR DATA PROVIDED THROUGH THE SITES AND SERVICES, AND ANY RELIANCE USER PLACES ON SUCH MATERIALS, CONTENT, INFORMATION AND/OR DATA IS STRICTLY AT USER’S OWN RISK.
EXCEPT FOR COMPANY’S OBLIGATIONS TO PROTECT USER’S PERSONAL DATA AS SET FORTH IN THE COMPANY’S PRIVACY POLICY, THE COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY USER CONTENT, USER DATA, USER COMMUNICATIONS OR PERSONALIZATION SETTINGS.
EACH USER EXPRESSLY AGREES THAT SUCH USER SHALL (A) BE RESPONSIBLE FOR ANY AND ALL LOSS AND/OR DAMAGE TO USER’S VEHICLE(S) RELATING TO OR ARISING FROM THE SITES, SERVICES AND DEVICES, AND (B) INDEMNIFY AND HOLD HARMLESS THE COMPANY FROM AND AGAINST ANY AND ALL LOSSES, LIABILITIES, DAMAGES, INJURIES, CLAIMS, DEMANDS, COSTS AND EXPENSES ARISING OUT OF THE USER’S USE, POSSESSION OR CONTROL OF USER’S VEHICLE(S) AND ANY BREACH OF USER’S REPRESENTATIONS AND RESPONSIBILITIES SET FORTH HEREIN.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, USER RELEASES COMPANY FROM RESPONSIBILITY, LIABILITY, CLAIMS, DEMANDS, AND/OR DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN (INCLUDING, BUT NOT LIMITED TO, CLAIMS OF NEGLIGENCE), ARISING OUT OF OR RELATED TO DISPUTES BETWEEN USERS AND THE ACTS OR OMISSIONS OF OTHER USERS OR THIRD PARTIES.
Indemnification. User shall indemnify, defend, and hold harmless Company (including its affiliates and subsidiaries) and its licensors, suppliers, service providers, contractors and subcontractors, and each of its and their respective officers, directors, employees, principals, agents, successors, and assigns (each, an “Indemnitee”) from and against any and all losses, damages, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable attorneys’ fees and the costs of enforcing any right to indemnification hereunder and the cost of pursuing any insurance providers), incurred by any Indemnitee arising out of or resulting from, or are alleged to arise out of or result from (a) Content and User Data, including any processing of Content and/or User Data by or on behalf of Company; (b) User’s use or misuse of, or access to, the Devices, Sites and/or Services; (c) User’s violation of these Terms of Use, or infringement by User, or any third party using User’s account or identity in, on or through the Sites or Services, of any intellectual property or other right of any person or entity; (d) allegation of facts that, if true, would constitute User’s breach of any of its representations, warranties, covenants, or obligations under these Terms of Use or any User Contract; (e) any violation of any right of any third party or the breach of any obligation to any third party under any agreement or other arrangement between User and such third party, including, but not limited to, the infringement, violation or misappropriation of any copyright, patent, trademark, trade dress, trade secret or other proprietary or intellectual property right of any third party or the breach of any contract; (f) the termination or loss of manufacturer warranties with respect to vehicle(s) owned or operated by User; (ii) any injury or death caused by, or arising from, User’s vehicle(s) being driven or transported by User or any other driver of the vehicle(s), whether or not such driver is permitted to operate the vehicle; (iii) any injury or death suffered by User or any driver or passenger of User’s vehicle(s); (iv) any injury or death suffered by User or any person relating to or arising from any defect, malfunction or other issue of the Sites, Service or Devices.
LIMITATION OF LIABILITY. IN NO EVENT WILL COMPANY OR ANY OF ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THESE TERMS OF USE OR ANY USER CONTRACT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, AND OTHERWISE, FOR ANY: (a) LOSS OF PRODUCTION, USE, BUSINESS, REVENUE, OR PROFIT OR DIMINUTION IN VALUE; (b) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE DEVICES, SITES OR SERVICES; (c) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY; (d) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION); (e) COST OF REPLACEMENT GOODS, DEVICES OR SERVICES; (f) INSTALLATION RELATED REPAIRS AND COSTS, INCLUDING, WITHOUT LIMITATION, MECHANICS TIME; (g) VEHICLE RECOVERY AND/OR TOWING RELATED COSTS AND EXPENSES; (h) ANY AND ALL DAMAGE TO OR OF USER’S VEHICLE OR ANY OTHER VEHICLE IN WHICH THE DEVICES ARE PLACED; (h) LOSS OF GOODWILL OR REPUTATION; OR (i) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED, OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
CAP ON LIABILITY. IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF COMPANY AND ITS AFFILIATES, LICENSORS, SERVICE PROVIDERS, AND SUPPLIERS ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR ANY USER CONTRACT, WHETHER ARISING UNDER OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR ANY OTHER LEGAL OR EQUITABLE THEORY, EXCEED THE SUM OF FIVE HUNDRED DOLLARS ($500.
THE FOREGOING LIMITATIONS APPLY EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE, THE COMPANY IS NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGE AND/OR NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Term and Termination. The Company may terminate or suspend User’s account or access to the Sites or Services at any time for any reason, with or without notice to User. Such termination may result in the loss of some or all information, including any Content, associated with User’s account. User may also delete their accounts by following the directions through the Sites or Services. All provisions of these Terms of Use which by their nature should survive termination shall survive, including without limitation all rights, licenses and obligations provided in Sections 10-20, together with any remedies for breach.
Modifications and Amendments. THESE TERMS OF USE MAY BE UPDATED OR AMENDED BY COMPANY AT ANY TIME, WITH OR WITHOUT NOTICE TO USER AND USER’S CONTINUED USE OF THE SITES AND SERVICES SHALL CONSTITUTE USER’S ACCEPTANCE OF THE UPDATED OR AMENDED TERMS OF USE.
Assignment. User may not assign all or any part of its rights or obligations hereunder, whether by operation of law, change of control, or in any other manner, without the prior written consent of Company. Any such assignment in violation of this Section will be deemed void. The Company may assign, in whole or in part, its rights, interests, and obligations hereunder without limitation and without providing notice to User.
Electronic Communications and Signatures.
The communications between User and Company use electronic means, whether User visits the Sites or sends Company emails, or whether Company posts notices on the Sites or Services or communicates with User via email. For contractual purposes, User (a) consents to receive communications from Company in an electronic form; and (b) agrees that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to User electronically satisfies any legal requirement that such communications would satisfy if it were in writing. The foregoing does not affect User’s non-waivable rights.
User Contracts and other documents may be delivered electronically and if so delivered, shall be deemed to have been delivered on the date (i) on which the Company or other third parties post such documents, or provide a link thereto on the Sites, Services or Linked Websites; or (ii) on which such documents are posted on User’s behalf on an internet or intranet website, if any, to which the Company has access (whether a commercial, third-party website or whether sponsored by the Company); provided that the Company shall have no obligation to maintain paper copies of the documents referred to above, however, upon a User’s request the Company shall deliver by electronic mail electronic versions (i.e., soft copies) of such documents.
These Terms of Use and any User Contracts including User Contracts required to be in writing, may be in the form of an Electronic Record and may be executed using Electronic Signatures. Borrower agrees that any Electronic Signature on or associated with any User Contract shall be valid and binding on User to the same extent as a manual signature, and that any User Contract entered into by Electronic Signature, will constitute the legal, valid and binding obligation of User enforceable against such in accordance with the terms thereof to the same extent as if manually executed. Any User Contract may be executed in as many counterparts as necessary or convenient, including both paper and electronic counterparts, but all such counterparts are one and the same User Contract. For the avoidance of doubt, the authorization under this paragraph may include use or acceptance by the Company of a manually signed paper User Contract which has been converted into electronic form (such as scanned into PDF format), or an electronically signed User Contract converted into another format, for transmission, delivery and/or retention. The Company may, at its option, create one or more copies of any User Contract in the form of an imaged Electronic Record (“Electronic Copy”), which shall be deemed created in the ordinary course of such person’s business, and destroy the original paper document. All User Contracts in the form of an Electronic Record, including an Electronic Copy, shall be considered an original for all purposes, and shall have the same legal effect, validity and enforceability as a paper record. Notwithstanding anything contained herein to the contrary, the Company is under no obligation to accept an Electronic Signature in any form or in any format unless expressly agreed to by the Company pursuant to procedures approved by it; provided, further, without limiting the foregoing, (a) to the extent the Company has agreed to accept such Electronic Signature, the Company shall be entitled to rely on any such Electronic Signature purportedly given by or on behalf of User without further verification and (b) upon the request of the Company, any Electronic Signature shall be promptly followed by such manually executed counterpart. For purposes hereof, “Electronic Record” and “Electronic Signature” shall have the meanings assigned to them, respectively, by 15 USC §7006, as it may be amended from time to time.
Third Parties. Company will have the right to use third parties, including, but not limited to, employees of Company’s affiliates and subsidiaries (“subcontractors”), in performance of its obligations and services hereunder, and for purposes of these Terms of Use, all references to Company or its employees will be deemed to include such subcontractors.
Technical Data. User shall not provide to Company any technical data as that term is defined in the International Traffic in Arms Regulations (“ITAR”) at 22 CFR 120.10. User shall certify that all information provided to Company has been reviewed and scrubbed so that all technical data and other sensitive information relevant to User’s ITAR regulated project has been removed and the information provided is only relevant to bug reports on Company products.
U.S. EXPORT CONTROLS. NEITHER THE SITES, SERVICES, DEVICES NOR ANY MATERIALS OR SOFTWARE PROVIDED BY THE COMPANY THROUGH THE SITES AND SERVICES (“COMPANY ITEMS”) MAY BE EXPORTED OR RE-EXPORTED (I) INTO THE TERRITORY OF (OR TO A NATIONAL OR RESIDENT OF) CUBA, NORTH KOREA, IRAN, SYRIA, SUDAN, OR ANY OTHER COUNTRY TO WHICH THE UNITED STATES HAS EMBARGOED GOODS OR SERVICES; OR (II) TO ANYONE ON THE U.S. TREASURY DEPARTMENT’S LIST OF SPECIALLY DESIGNATED NATIONALS OR THE U.S. COMMERCE DEPARTMENT’S TABLE OF DENY ORDERS. BY ACCESSING THE SITES OR SERVICES OR DOWNLOADING OR USING ANY COMPANY ITEMS PROVIDED THROUGH THE SITES OR SERVICES, USER REPRESENTS AND WARRANTS THAT USER IS NOT LOCATED IN, UNDER THE CONTROL OF, OR A NATIONAL OR RESIDENT OF ANY SUCH COUNTRY OR ON ANY SUCH LIST.
Compliance with Laws. Both parties agree to comply with all applicable laws, regulations, and ordinances relating to such party’s performance under these Terms of Use and any User Contract.
Force Majeure. In no event will Company be liable or responsible to any User, or be deemed to have defaulted under or breached these Terms of Use or any User Contract, for any failure or delay in fulfilling or performing any provision of these Terms of Use or any User Contract when and to the extent such failure or delay is caused by any circumstances beyond Company’s reasonable control, whether or not any such circumstances are or were foreseeable or are due to negligence or willful default including, but not limited to, Device failure or performance issues, user error or User’s negligence or reckless actions or omissions, inaccuracy of third party license or service providers, poor weather, failure of public or private telecommunications networks, disruption of telecommunications services due to technical issues, improper installation of a Device by an installer, any failure of any third party whom User has engaged to access, use or install the Sites, Services or Devices, acts of God, flood, fire, earthquake or explosion, war, terrorism, invasion, riot or other civil unrest, epidemics or pandemics as determined and/or defined by the U.S. Centers for Disease Control and Prevention or the World Health Organization, embargoes or blockades in effect on or after the date of these Terms of Use or any User Contract, whichever is dated earlier, national or regional emergency, strikes, labor stoppages or slowdowns or other industrial disturbances, passage of law or any action taken by a governmental or public authority, including imposing an embargo, export or import restriction, quota, or other restriction or prohibition or any complete or partial government shutdown, or national or regional shortage of adequate power or telecommunications or transportation, or any other event beyond the Company’s reasonable control making it inadvisable, illegal or impractical to perform its obligations hereunder.
Restricted Rights. Use of the Sites, Services or Devices by or for the United States Government is conditioned upon the Government agreeing that the Sites, Services and Devices are subject to Restricted Rights as provided under the provisions set forth in FAR 52.227-19. User shall be responsible for assuring that this provision is included in all agreements with the United States Government and that the Sites, Services or Devices, when accessed by the government, is correctly marked as required by applicable government regulations governing such Restricted Rights as of such access.
Privacy. User understands and acknowledges that User’s personal data will be collected, protected, and used by the Company in accordance with the Company’s Privacy Policy found here, which is incorporated into these Terms of Use as if set forth verbatim herein.
Entire Agreement. These Terms of Use, together with any User Contract and the documents and exhibits attached thereto, constitute the entire agreement between the parties regarding the subject matter hereof and supersedes all proposals and prior discussions and writings between the parties with respect to the subject matter contained herein.
Governing Law & Arbitration. These Terms of Use are governed by and construed in accordance with the laws of the State of Utah without giving effect to any choice or conflict of law provision or rule that would require or permit the application of the laws of any jurisdiction other than those of the State of Utah. ANY LEGAL CLAIM, ACTION, OR PROCEEDING ARISING OUT OF OR RELATED TO THESE TERMS OF USE OR THE RIGHTS OR LICENSES GRANTED HEREUNDER WILL BE SUBJECT FIRST TO MEDIATION BETWEEN THE PARTIES AND IF MEDIATION IS UNSUCCESSFUL TO BINDING ARBITRATION PURSUANT TO THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) COMMERCIAL RULES IN EFFECT AS OF THE DATE OF THE DISPUTE. THE SOLE AND EXCLUSIVE VENUE FOR ANY SUCH ARBITRATION IS THE AAA OFFICE IN DENVER, COLORADO. Service of process, summons, notice, or other document by mail to User’s address set forth on the Sites shall be effective service of process for any suit, action, or other proceeding brought in any such court.
WAIVER OF JURY TRIAL. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY WAIVES ANY RIGHT IT MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LEGAL ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR ANY USER CONTRACT, OR ANY TRANSACTION CONTEMPLATED BY THESE TERMS OF USE OR ANY USER CONTRACT.
California Civil Code Section 1542 Waiver. User expressly acknowledges and agrees that all rights under Section 1542 of the California Civil Code are expressly waived. That section provides: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR. In addition, User hereby knowingly and voluntarily waives any protection that may exist under any comparable or similar statutes and principles of common law or any other state laws as it pertains to the enforcement of the releases provided in this paragraph.
Updated: January 05, 2024