Kahu / LoJack Consumer Renewal Terms

LICENSED APPLICATION END USER LICENSE AGREEMENT
“This is an Optional service and not required or related to any loan, lease or other financing arrangement for your vehicle. This is an agreement for the number of years marked in the box at the bottom of the first page of your Service Agreement, for the services described (“Kahu Services”).
You have chosen to purchase optional GPS services (the “Services”) provided by Spireon, Inc. or its affiliate (“Spireon”). The Services offered are offered to you strictly on an optional basis, and are not required as a condition to the purchase, financing, or leasing of any vehicle. The products transacted through the Service are licensed, not sold, to You for use only under the terms of this license agreement, unless a Product is accompanied by a separate license agreement, in which case the terms of that separate license agreement will govern, subject to Your prior acceptance of that separate license agreement. Company, as licensor hereunder, reserves all rights not expressly granted to You. The Product that is subject to this license is referred to in this license as the “Licensed Application.”
1. Scope of License: This license granted to You for the Licensed Application by Company is limited to a non-transferable license to use the Licensed Application on any supported Android or Apple device (each a “Consumer Device” that You own or control and as permitted by the Usage Rules set forth in the App Store Terms and Conditions (the “Usage Rules”). This license does not allow You to use the Licensed Application on any Mobile Device that You do not own or control, and You may not distribute or make the Licensed Application available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Licensed Application. You may not copy (except as expressly permitted by this license and the Usage Rules), decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the Licensed Application, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or to the extent as may be permitted by the licensing terms governing use of any open sourced components included with the Licensed Application). Any attempt to do so is a violation of the rights of Company and its licensors. If You breach this restriction, You may be subject to prosecution and damages. The terms of the license will govern any upgrades provided by Company that replace and/or supplement the original Product, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
2. Consent to Use of Data:
A. You hereby acknowledge and agree that, in the course of providing the Kahu Services and operating the Company Site, subject to applicable law, Spireon, Inc. (“Company”) is hereby permitted to collect, maintain, and use any of Your Information made available, or otherwise disclosed, by or on behalf of You. For purposes herein, “Your Information” means any data or other information made available to Company arising out of Your use of the Company Equipment, Kahu Services, Your Vehicle (with an activated Company Equipment), the Kahu Mobile App or the Company Site, including, but not limited to (a) information provided or obtained from Your vehicle’s manufacturer, or dealer; (b) information provided or obtained during Your registration; (c) information provided or obtained for the purpose of granting access rights to You; (d) Your contact information; (e) Your Vehicle Identification Number (VIN); (f) information about your driving behavior, including the operation, location, mileage or features of Your vehicle; (g) information and data about collisions involving Your Vehicle; (h) information about Your subscription to, or any and all use of, the Kahu Services and Company Site; (i) any information provided by You on the telephone or via email to Company; or (j) all other personally identifiable information about You provided or obtained by Company, including but not limited to your name, physical address, email address, and your telephone number, arising out of the Kahu Services and Company Site.
B. Without limiting the generality of the foregoing, but subject to applicable law, You acknowledge and agree and consent that Company is hereby authorized to use, maintain and disclose any and all of Your Information in any way it deems appropriate in order to carry out the Kahu Services or any of the other provisions of your agreement with Company, including, but not limited to, the following uses: (A) to provide Kahu Services to Your vehicle, including sharing Your Information with roadside assistance providers, emergency service providers, and other third party service providers; (B) to check and maintain the Company Equipment in Your vehicle; (C) to provide information to Your vehicle’s manufacturer or dealer about Your vehicle’s operation, location or status; (D) to help maintain Your vehicle (E) to assist law enforcement with stolen vehicle recovery; (F) to evaluate and improve the Kahu Services and offer You new products and services; (G) after You opt-in, to provide Your Information to third party service providers in order for them to determine the types of offers for additional products and services (such as offers of insurance), to promote to you based on Your Information. If you choose to pursue a third party offer and they become your service provider, and if the third party requests it, we may provide Your Information to third parties on a continuous basis, and those third parties may provide Your Information to your service providers (such as your insurance company) on a continuous basis, with your prior consent, and if your service provider agreement or policy allows for it.; (H) to comply with legal requirements, valid court orders and exigent circumstances; (I) to protect the rights, property, or safety of You and others; and (J) to perform market research or provide anonymous data on an aggregated basis; and (K) to enforce Company’s agreement with You or others and to prevent fraud or misuse of the Kahu Services. You may request that Company cease sharing Your Information by calling (877) 563-0032 at any time, but that may result in Company being unable to continue providing some or all of the Kahu Services to you, and you understand that in such case no refunds or credits will be owed to You.
C. SUBJECT TO APPLICABLE LAW, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE OTHER PROVISIONS HEREIN, YOU HEREBY AUTHORIZE COMPANY, AT ANY TIME AND FROM TIME TO TIME, FOR ANY PURPOSES, TO DISCLOSE YOUR INFORMATION TO ANY OF THE FOLLOWING: (A) ANY THIRD PARTIES PROVIDING ALL OR PART OF THE KAHU SERVICES BEING PROVIDED UNDER THIS AGREEMENT; (B) AS REQUIRED PURSUANT TO ANY COURT ORDER, SUBPOENA, DISCOVERY DEMAND OR ANY GOVERNMENT AGENCY OR LAW ENFORCEMENT AGENCY; OR (C) ANY OF COMPANY’S WIRELESS SERVICE PROVIDERS.
D. In the event that Company’s privacy policy changes, you will receive notice either: (i) by notification from the App Store of the need to accept updates; or (ii) as provided for in the Subscription Services Agreement (“SSA”) in place between You and Company. Capitalized terms in this Agreement that are not defined herein will be deemed to have the meaning as defined in the SSA.
E. You acknowledge that as part of the Kahu Services the Company has the right to push SMS notifications to You and that You will be responsible for any charges your cell phone carrier charges for receiving those SMS notifications. If You have enabled optional location services, then Company will make use of the location information provided by your mobile device to provide the Services (for example, directions to walk to your car) and may also push information about opportunities near your location (for example, a coupon for an oil change at a nearby car repair center).
3. Termination. The license is effective until terminated by You or Company. Your rights under this license will terminate automatically without notice from Company if You fail to comply with any term(s) of this license. Upon termination of the license, You shall cease all use of the Licensed Application, and destroy all copies, full or partial, of the Licensed Application.
4. Services; Third Party Materials; Marketing. The Licensed Application may enable access to Company’s and third party services and web sites (collectively and individually, “Services”). Use of the Services may require Internet access and that You accept additional terms of service. You understand that by using any of the Services, You may encounter content that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that the results of any search or entering of a particular URL may automatically and unintentionally generate links or references to objectionable material. Nevertheless, You agree to use the Services at Your sole risk and that Company shall not have any liability to You for content that may be found to be offensive, indecent, or objectionable. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party web sites. By using the Services, You acknowledge and agree that Company is not responsible for examining or evaluating the content, accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or web sites. Company does not warrant or endorse and does not assume and will not have any liability or responsibility to You or any other person for any third-party Services, Third Party Materials or web sites, or for any other materials, products, or services of third parties. Third Party Materials and links to other web sites are provided solely as a convenience to You. Location data provided by any Services is for basic navigational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither Company, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of location data displayed by any Services. Y ou agree that any Services contain proprietary content, information and material that is protected by applicable intellectual property and other laws, including but not limited to copyright, and that You will not use such proprietary content, information or materials in any way whatsoever except for permitted use of the Services. No portion of the Services may be reproduced in any form or by any means. You agree not to modify, rent, lease, loan, sell, distribute, or create derivative works based on the Services, in any manner, and You shall not exploit the Services in any unauthorized way whatsoever, including but not limited to, by trespass or burdening network capacity. You further agree not to use the Services in any manner to harass, abuse, stalk, threaten, defame or otherwise infringe or violate the rights of any other party, and that Company is not in any way responsible for any such use by You, nor for any harassing, threatening, defamatory, offensive or illegal messages or transmissions that You may receive as a result of using any of the Services. In addition, third party Services and Third Party Materials that may be accessed from, displayed on or linked to from the Mobile Device are not available in all languages or in all countries. Company makes no representation that such Services and Materials are appropriate or available for use in any particular location. To the extent You choose to access such Services or Materials, You do so at Your own initiative and are responsible for compliance with any applicable laws, including but not limited to applicable local laws. Company, and its licensors, reserve the right to change, suspend, remove, or disable access to any Services at any time without notice. In no event will Company be liable for the removal of or disabling of access to any such Services. Company may also impose limits on the use of or access to certain Services, in any case and without notice or liability. You agree that Company and its designees may contact You for marketing purposes during the term of this license and thereafter until a reasonable time after you provide Company with written notice that you no longer authorize such marking activity.
5. LIMITED PRODUCT WARRANTY – Company hereby warrants (“Limited Warranty”) only to the purchaser that first activates the Product, that the Product will be free from defects in workmanship and materials for a period equal to the term of the initial service plan you purchased from the dealer (“Limited Warranty Period”) which in any event cannot exceed three years. The Limited Warranty Period shall not be extended by your subsequent purchase of service renewals. The Limited Warranty does not apply to normal wear and tear and does not cover repair or replacement if the Product is damaged by tampering, misuse, accident, abuse, neglect, improper installation, misapplication, alteration of any kind, disaster, defects due to repairs or modifications made by anyone other than Company or an authorized service representative of Company, device obsolescence, or reception problems caused by signal conditions or cable or antenna systems outside the Product. Further, the Limited Warranty does not apply to physical damage of any nature whatsoever to the Product, including any opening or attempted opening of the Product, and any such opening or attempted opening of the Product shall render the Limited Warranty invalid. THE REPAIR OR REPLACEMENT OF THE PRODUCT AS PROVIDED UNDER THIS LIMITED WARRANTY IS YOUR SOLE AND EXCLUSIVE REMEDY. THE SOFTWARE LOADED ON THE PRODUCT IS PROVIDED “AS IS” WITHOUT WARRANTY. COMPANY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES FOR BREACH OF THE LIMITED WARRANTY. However, some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. TO THE MAXIMUM EXTENT PERMITTED BY LAW, COMPANY EXPRESSLY DISCLAIMS, AND YOU EXPRESSLY WAIVE, ALL OTHER WARRANTIES, WHETHER EXPRESSED, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ALL IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTY ARISING OUT OF ANY PROPOSAL, SPECIFICATION, OR SAMPLE. THE TERM OF ANY IMPLIED WARRANTIES THAT CANNOT BE DISCLAIMED UNDER APPLICABLE LAW SHALL BE LIMITED TO THE DURATION OF THE FOREGOING LIMITED WARRANTY PERIOD. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES AND/OR DO NOT ALLOW LIMITATIONS ON THE AMOUNT OF TIME AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THIS LIMITED WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS. YOU MAY HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. You agree that neither Company nor any other party has made any representations or warranties, nor have you relied on any representations or warranties, express or implied, including any implied warranty of merchantability or fitness for any particular purpose with respect to the Products. You acknowledge that no affirmation of fact or statement (whether written or oral) made by Company, its representatives, a Reseller, or any other party outside of this Agreement with respect to the Products shall be deemed to create any express or implied warranty on the part of Company, its representatives, or a Reseller. The Price for replacement of Product outside of the Limited Warranty is $90.00 (“Replacement Cost”). To obtain warranty service or out of warranty replacement, contact the Customer Service Department using the support number located from the login screen within the Kahu mobile app. Upon verification of coverage or upon payment of the Replacement Cost, an RA# will be issued and provided to you by Company via fax, email, or over the phone. You must then return to the dealer where You purchased the Product, and a replacement Product will be installed at no additional installation cost. If you are unable to return to the dealer, you may request a mobile installation. Mobile installation fees are not covered by the Limited Warranty or included in the Replacement Cost and are due before Company will schedule the installation.
6. Limitation of Liability. YOU AGREE THAT, TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL COMPANY BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, INDIRECT, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO THE KAHU SERVICES, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR PERSONAL INJURY, OR OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. In no event shall Company’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of fifty dollars ($50.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose. In the event of a conflict between this agreement and Your SSA, the limitations of liability in the SSA will govern.
7. You may not use or otherwise export or re-export the Licensed Application except as authorized by United States law and the laws of the jurisdiction in which the Licensed Application was obtained. In particular, but without limitation, the Licensed Application may not be exported or re-exported (a) into any U.S. embargoed countries or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Licensed Application, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use these products for any purposes prohibited by United States law, including, without limitation, the development, design, manufacture or production of nuclear, missiles, or chemical or biological weapons.
8. The Licensed Application and related documentation are “Commercial Items”, as that term is defined at 48 C.F.R. §2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation”, as such terms are used in 48 C.F.R. §12.212 or 48 C.F.R. §227.7202, as applicable. Consistent with 48 C.F.R. §12.212 or 48 C.F.R. §227.7202-1 through 227.7202-4, as applicable, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end users (a) only as Commercial Items and (b) with only those rights as are granted to all other end users pursuant to the terms and conditions herein. Unpublished-rights reserved under the copyright laws of the United States.
9. Governing Law. The laws of the State of Tennessee, excluding its conflicts of law rules, govern this license and your use of the Licensed Application. Your use of the Licensed Application may also be subject to other local, state, national, or international laws.
10. Independent Agreement. Your use of the Licensed Application constitutes acknowledgement that this Agreement is a separate and independent agreement between You and Company, and this Agreement shall not enlarge or expand Company’s liability under any other agreement with You. If You have any questions or complaints regarding the Licensed Application, you may contact Company by email to KahuSupport@Spireon.com or by phone at 1-877-563-0032, select Option 4.
CONSUMER GPS DEVICE SUBSCRIPTION SERVICES AGREEMENT
You have chosen to purchase optional GPS services provided by Spireon, Inc. or its affiliate (“Company”). The services offered are offered to you strictly on an optional basis; you are not required to enter into this agreement or obtain services from Company for any reason, including as a condition to the purchase, financing, or leasing of any vehicle. However, use of the Company Site (as defined below) and the Company Services (as defined below) are conditioned on acceptance, without modification, of the following terms and conditions of Use (this “Agreement”) by you as a user of this Company Site and the Company Services (“Customer” or “You”). YOU HEREBY “ACCEPT” THIS AGREEMENT UPON SIGNING THE SPIREON SALES FORM OR OTHERWISE USING THE SPIREON SERVICES. IF YOU DO NOT WANT TO BE FURTHER BOUND BY THIS AGREEMENT, YOU MAY CANCEL YOUR SPIREON SERVICES BY CONTACTING US AT (877) 563-0032.
THIS AGREEMENT INCLUDES AN ARBITRATION PROVISION AT SECTION 19. IF VIEWING THIS AGREEMENT ONLINE, YOU SHOULD DOWNLOAD AND PRINT THIS AGREEMENT FOR YOUR RECORDS.
By accepting this Agreement, You agree to the following:
1. DEFINITIONS. In addition to other defined terms in this Agreement, the following terms shall have the following meanings:
1. 1.1 “Customer Vehicle” means any new or used vehicle that the Customer leases, purchases or otherwise uses that has the Company Equipment installed therein.
2. 1.2 “Company Equipment” means hardware approved by Company for use with Company Services (such equipment to be offered by Company-approved dealers or by Company directly).
3. 1.3 “Company Server” means the computer software and/or hardware that serves the Company Site to users across the Internet, and which hosts the pages, scripts, programs, and multimedia files and serves them using a protocol designed to send files to users.
4. 1.4 “Company Services” means Company’s wireless telematic services provided by Company to Customer for use by Customer in its Customer Vehicle.
Page 4 of Kahu Service Agreement
5. 1.5 “Company Site” or “this Site” means any of Company’s internet websites with domain names including but not limited to Company.com, and also includes any Company licensed applications (or apps) that are provided by Company to Customer for use with the Company Services.
2. PURCHASE OF EQUIPMENT; SPIREON SERVICES; PAYMENTS FOR SPIREON SERVICES
2.1 Customer must register with Company on the Company Site in accordance with the registration instructions set forth by Company before Customer will have any Access Right (as defined herein) to use the Company Services or this Company Site (“Customer Registration”). The Access Right (as defined herein) to use the Company Services and Company Site will not be granted, or will be revoked, if Customer fails to have and maintain a valid and accurate Customer Registration with Company. Without limiting the foregoing, by attempting to gain Access Rights, you represent and warrant to Company that you are the owner, purchaser or lessor of the Customer Vehicle and the Company Equipment. Any attempt to gain Access Rights in violation of the foregoing is strictly prohibited.
2.2 Subject to the terms and conditions of this Agreement, including but not limited to, Customer having a valid and accurate Customer Registration with Company, Company hereby grants to Customer, only during the Customer’s “Activation Period” (as such term is defined in Section 2.3 herein), a non-exclusive, revocable, and limited right to access and use this Company Site, and to use the Company Services, in strict compliance with this Agreement (the “Access Right”). Company reserves the right to suspend or revoke this Access Right at our sole discretion without notice. Notwithstanding the foregoing Access Right, Company also has the right to change, suspend, or discontinue any (or all) aspects of the Company Site or Company Services at any time, and from time to time, including the availability of any features of the Company Services. The Access Right (and all other rights, if any) granted to Customer pursuant to this Agreement will immediately terminate upon the expiration, cancellation or termination of this Agreement for any reason.
2.3 For purposes of this Agreement, the term “Activation Period” means the period Customer owns and uses the Customer Vehicle, and has a valid, activated account for the Company Services. Your Activation Period ends when Customer sells, leases, trades, transfers, disposes of, or otherwise no longer owns or uses the Customer Vehicle.
2.4 From time to time, Company may make available to Customer additional services, features and components. The fees charged by Company for these services (“Company Services Fees”), if any, shall be as disclosed and agreed to by Customer. Company also reserves the right to revise the Company Services Fees at any time, and from time to time, upon 30 days’ prior notice to the Customer. Company has the right to terminate this Agreement and the Customer’s Access Right to use the Company Services and this Company Site if Customer fails to pay any Company Services Fees.
3. OTHER CONDITIONS ON ACCESS RIGHT; OTHER CUSTOMER OBLIGATIONS
3.1 Customer shall be responsible for obtaining and maintaining all equipment or ancillary services needed to connect to or access the Company Site and Company Services, including, without limitation, computers, modems, hardware, software, ISP providers, and any other telecommunication services.
3.2 Customer is solely responsible for any use of Company Services in Customer’s Vehicle, whether or not Customer is present in the Customer Vehicle, and even if Customer later claims the use was not authorized by Customer. Customer is solely responsible for any Company Services requested by or on behalf of Customer.
3.3 As a condition of the Access Right (including, but not limited to, Customer’s continued use of the Company Services and the Company Site) the Customer hereby further agrees that:
(A) Customer will not use the Company Site or Company Services (i) for any unlawful purpose; (ii) in any manner that would damage, disable, overburden, or impair the Company Services, Company Site, or any Company Servers; (iii) in any way that interferes with Company’s delivery of services to its other customers or the other customers’ use or enjoyment of the Company Site or Company Services; (iv) in any way which damages Company’s business operations, services, reputation, employees, facilities, or service providers; or (v) for any other purpose that is prohibited by this Agreement;
(B) Customer will not obtain, use, or attempt to obtain or use, any materials, information or functions through any means not intentionally made available, or provided for, through the Company Services and Company Site.
(C). Customer will not use any information Customer receives from the Company Services or the Company Site except as expressly authorized by this Agreement or by Company. Customer shall not copy, store, reproduce, distribute, modify, display, publish, perform, transmit, broadcast, or create derivative works from any such information.
(D) Customer will not upload to, distribute or otherwise publish on or through, or transmit on or through, the Company Site or Company Services (i) any message, data, information, text, work, or other material (“Content”) that is (in Company’s determination) unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or otherwise objectionable; (ii) any Content that would constitute or encourage a criminal offense, violate the rights of any party, or would otherwise create liability or violate any local, state, federal or international law; or (iii) any Content that may infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party anywhere.
(E) Without limiting the generality of the foregoing, Customer agrees to all of the following provisions: (a) Customers are prohibited from violating or attempting to violate the security of the Company Site, the Company Server or any third party sites, including, without limitation, (i) accessing data not intended for such Customer or logging into a server or account which the Customer is not authorized to access; (ii) attempting to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (iii) attempting to interfere with service to any user, host, or network, including, without limitation, via means of submitting a virus to, or overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Company Site, Company Server, or any third party site. Any violations of any system or network security (including, but not limited to, that of the Company Site or the Company Server) may result in civil or criminal liability and Company has the right to investigate occurrences that may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting Users who are involved in such violations. Company reserves the right to cooperate with any and all law enforcement agencies, including complying with warrants, court orders and subpoenas and disclosing to law enforcement agencies any information about any Customer and anything a Customer does with respect to the Company Site and any third party site. By accepting this Agreement, Customer authorizes Company to take such action.
(F) Customer will not otherwise use the Company Services or Company Site for any commercial purposes or for any purposes not explicitly permitted by this Agreement.
3.4 In addition to any other right to terminate this Agreement, Company has the absolute right to immediately terminate, without warning, any account and Access Rights which it believes, in its sole discretion, breaches any of the provisions of this Section 3 and Customer will be responsible for any damages sustained by Company, or any amount claimed by any third party against Company, plus any expenses, resulting in whole or in part from any such breach by Customer.
4. INTELLECTUAL PROPERTY POLICY
4.1 Company’s policy is to respect the proprietary rights of others. Company has the absolute right to (i) immediately terminate, without warning, any accounts and the Access Rights of the Customer who appear to infringe upon the proprietary or other intellectual property rights of others, and (ii) remove, download or upload any Content from, to, via or through the Company Site or through the Company Services that, in Company’s sole opinion, may infringe upon the proprietary or other intellectual property rights of any third party.
4.2 Customer acknowledges and agrees that it will not, at any time: (a) modify, alter, reverse engineer, decompile or disassemble any components of the Company Equipment, the Company Services, this Company Site, Company Servers, or any other proprietary assets of Company (collectively, “Company Proprietary Assets”); or (b) remove, alter, or obscure in any way any proprietary rights notices of Company or any other party on any of Company’s Proprietary Assets.
4.3 Except for the limited Access Right, no rights are granted to Customer in any Company Proprietary Assets. Company reserves all rights, title and interest (including, but not limited to, all intellectual property rights) in and to all of Company’s Proprietary Assets.
4.4 In the event Customer contests or challenges the validity or ownership by Company of, or any of Company’s rights in, any of Company Proprietary Assets, then Company shall have the right, at its sole discretion, to immediately terminate (without any right to cure) this Agreement, all Access Rights, and all other rights to use the Company Services, Company Site and the Company Equipment.
5. PRIVACY POLICY
5.1 The terms and conditions set forth in this Section 5 are collectively referred to as the “Privacy Policy”. In addition to any other right to terminate this Agreement, Company has the absolute right to immediately terminate, without warning, any account and Access Rights in the event Company believes, in its sole discretion, the Customer has breached any of the provisions of the Privacy Policy. Customer is solely responsible for maintaining the confidentiality of the Customer’s personal identification number and other security authorization information, including, but not limited to, login and passwords (collectively, the “Customer Security Data”) and the Customer is responsible for all uses of their Customer Security Data. Customer is required to immediately notify Company of any unauthorized use of its Customer Security Data. Neither Company nor any service provider has any obligation to inquire about the authority of anyone’s use of Company Equipment purchased by Customer, or the Customer’s personal identification number or other security authorization.
5.2 Customer hereby acknowledges and agrees that, in the course of providing the Company Services and operating this Company Site, subject to applicable law, Company is hereby permitted to collect, maintain, and use any Customer Information made available, or otherwise disclosed, by or on behalf of the Customer. For purpose this Agreement, “Customer Information” means any data or other information made available to Company arising out of the Customer’s use of the Company Equipment, Company Services, Customer Vehicle (with an activated Company Equipment) or the Company Site, including, but not limited to (a) information provided or obtained from the Customer Vehicle’s manufacturer or dealer; (b) information provided or obtained during Customer’s registration; (c) information provided or obtained for the purpose of granting Access Rights to Customer; (d) Customer’s contact information; (e) Customer’s Vehicle Identification Number (VIN); (f) information about Customer’s driving behavior, including the operation, location, mileage or features of the Customer Vehicle; (g) information and data about collisions involving the Customers Vehicle; (h) information about Customer’s subscription to, or any and all use of, the Company Services and Company Site; (i) any information provided by Customer on the telephone or via email to Company; or (j) all other personally identifiable information about Customer provided or obtained by Company, including but not limited to Customer’s name, physical address, e-mail address, and Customer’s telephone number, arising out of the Company Services and Company Site.
5.3 Without limiting the generality of the foregoing, but subject to applicable law, Customer acknowledges and agrees and consents that Company is hereby authorized to use, maintain and disclose any and all Customer Information in any way it deems appropriate in order to carry out the Company Services or any of the other provisions of this Agreement, including, but not limited to, the following uses: (A) to provide Company Services to the Customer Vehicle, including sharing that Customer Information with roadside assistance providers, emergency service providers, and other third party service providers; (B) to check and maintain the Company Equipment in the Customer Vehicle; (C) to provide information to the Customer Vehicle’s manufacturer or dealer about the Customer Vehicle’s operation, location or status; (D) to help maintain Your vehicle (E) to assist law enforcement with stolen vehicle recovery; (F) to evaluate and improve the Company Services and offer Customer new products and services; (G) after You opt-in, to provide Customer Information to third party service providers in order for them to determine the types of offers for additional products and services (such as offers of insurance), to promote to Customer based on Customer’s Information. If Customer chooses to pursue a third party offer and a third party becomes Customer’s service provider, and if the third party requests it, Company may provide Customer Information to third parties on a continuous basis and those third parties may provide Customer Information to Customer’s service providers on a continuous basis with Customer’s prior consent, and if Customer’s service provider agreement or policy allows for it; (H) to comply with legal requirements, valid court orders and exigent circumstances; (I) to protect the rights, property, or safety of Customer and others; and (J) to perform market research; and (K) to enforce this Agreement with Customer or others and to prevent fraud or misuse of the Company Services. Additionally, without limiting the foregoing, Customer grants Company a perpetual license to use any and all Customer Information in a generic manner (with Customer’s personally identifiable information removed) for any lawful purpose.
5.4 SUBJECT TO APPLICABLE LAW, AND WITHOUT LIMITING THE GENERALITY OF ANY OF THE OTHER PROVISIONS OF THIS SECTION 5, CUSTOMER HEREBY AUTHORIZES SPIREON, AT ANY TIME AND FROM TIME TO TIME, FOR ANY PURPOSES, TO DISCLOSE CUSTOMER INFORMATION TO ANY OF THE FOLLOWING: (A) THIRD PARTIES PROVIDING ALL OR PART OF THE SPIREON SERVICES BEING PROVIDED UNDER THIS AGREEMENT; (B) AS REQUIRED PURSUANT TO ANY COURT ORDER, SUBPOENA, WARRANT, DISCOVERY DEMAND OR ANY GOVERNMENT AGENCY OR LAW ENFORCEMENT AGENCY; OR (C) ANY OF SPIREON’S WIRELESS SERVICE PROVIDERS.
5.5 Customer acknowledges and agrees that, because Company provides the Company Services through wireless networks, (a) Company cannot guarantee that Customer’s communications will be secure from interception by others; and (b) Company will not be liable for any damages for any loss of privacy occurring in communication over such networks.
5.6 Customer also acknowledges and agrees that Company hereby has the right to (a) record and randomly monitor conversations from Customer or others with Company, with emergency service providers, or with the law enforcement agencies to maintain or improve the quality of the Company Services, for training purposes, or to promote and otherwise offer the Company Services; (b) randomly monitor Customer’s interactions with Company’s; automated services for quality improvement purposes; and (c) Company Customer Service Representatives may remain on telephone lines during and after telephone interactions with Customer if the Company Customer Service Representatives conferences in a third party to assist in completing a service request and that any and all such data or information that Company and its Customer Service Representative derive from any of the above situations shall be deemed to be, and shall be treated as, “Customer Information” pursuant to this Section 5.
5.7 CUSTOMER HEREBY ACKNOWLEDGES AND AGREES THAT SPIREON, SUBJECT TO APPLICABLE LAW, WILL NOT BE LIABLE TO CUSTOMER OR TO ANY OTHER PARTY FOR ANY INJURIES, HARM, CLAIMS OR DAMAGES OF ANY KIND (UNDER ANY AND ALL THEORIES OF LAW) WHICH MAY ARISE OUT OF, OR ARE RELATED IN ANY WAY TO, SPIREON’S COLLECTION, MAINTAINENCE, DISCLOSURE OR OTHER USE OF ANY OF THE CUSTOMER INFORMATION. THIS SECTION IS ALSO SUBJECT TO ANY AND ALL OTHER DISCLAIMERS AND LIMITATIONS AS SET FORTH IN SECTIONS 6 AND 8 OF THIS AGREEMENT.
6. DISCLAIMER OF WARRANTIES.
6.1 THE SPIREON EQUIPMENT AND SPIREON SERVICES ARE OFFERED “AS IS,” AND SPIREON GRANTS, AND CUSTOMER RECEIVES, NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, BY STATUTE, COMMUNICATION OR CONDUCT WITH DEALER, OR OTHERWISE. SPIREON SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING THOSE OF MERCHANTABILITY FITNESS FOR A PARTICULAR PURPOSE, AND NONINFRINGEMENT. WITHOUT LIMITATION OF THE ABOVE, SPIREON GRANTS NO WARRANTY THAT THE SPIREON EQUIPMENT OR SPIREON SERVICES ARE ERROR-FREE OR WILL OPERATE WITHOUT INTERRUPTION, AND GRANTS NO WARRANTY REGARDING THEIR USE OR THE RESULTS THEREFROM INCLUDING, WITHOUT LIMITATION, THEIR CORRECTNESS, ACCURACY OR RELIABILITY.
7. INDEMNIFICATION
7.1 Customer hereby agrees to indemnify, defend and hold harmless Company, its affiliates, service providers and their respective shareholders, members, officers, agents, directors and employees harmless from any and all claims, demands, judgments, damages, liabilities, expenses, costs and fees, including reasonable attorneys’ fees, relating to or arising out of any claim or the defense of any claim, regardless of the nature of the cause of the claims, demands, judgments, damages, liabilities, expenses, costs and fees (including injuries resulting in death) made by any third party that arises out of or in connection with (A) Customer’s breach of any of its covenants, representations, or warranties in this Agreement; (B) any unauthorized use of the Company Equipment, Company Services, Company Site or any other Company Proprietary Assets (as defined in Section 4 herein); (C) any use or possession of data or information (including, but not limited to, Customer Information) provided by or on behalf of the Customer; and (D) any claims for libel, slander, or any property damage, personal injury or death, arising out of or related in any way directly or indirectly to Customer’s use of the Company Equipment or Company Services.
7.2 If Customer has authorized Company to charge amounts due against Customer’s credit or debit card account or other similar account by giving Company a card or account number, then Customer’s agreement in this Section 7 to Indemnify Company extends to claims, expenses, liabilities, or damages arising out of or in connection with use or ownership of such credit or debit card account or other similar payment account, or from the issuer’s refusal to pay amounts charged to such account.
8. ADDITIONAL LIMITATIONS OF LIABILITY IN ACCORDANCE WITH APPLICABLE LAW, CUSTOMER AND SPIREON EACH WAIVE IMPORTANT RIGHTS. UNLESS FORBIDDEN BY LAW IN A PARTICULAR INSTANCE, SPIREON AND CUSTOMER EACH AGREE AS FOLLOWS:
8.1 SPIREON IS NOT LIABLE FOR THE ACTIONS OR INACTIONS OF ANY THIRD PARTY SERVICE PROVIDER THAT SPIREON CONTACTS FOR CUSTOMER OR CUSTOMER VEHICLE, NOR FOR ANY INABILITY BY SPIREON TO CONTACT ANY THIRD PARTY SERVICE PROVIDER IN ANY PARTICULAR SITUATION.
8.2 SPIREON IS NOT LIABLE TO CUSTOMER FOR (1) ANY INJURIES TO PERSONS OR PROPERTY ARISING OUT OF OR RELATING TO CUSTOMER’S USE OF SPIREON EQUIPMENT OR SPIREON SERVICES, NOR (2) ANY DAMAGES ARISING OUT OF OR RELATING TO THE INSTALLATION, REPAIR, OR MAINTENANCE OF ANY OF SAME.
8.3 THE LIABILITY OF SPIREON, ITS AGENT(S), REPRESENTATIVE(S) AND EMPLOYEE(S) TO CUSTOMER FOR DAMAGES OR ALLEGED DAMAGES UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) WITH RESPECT TO THIS AGREEMENT IS LIMITED TO AND SHALL NOT EXCEED THE AMOUNTS PAID BY CUSTOMER TO SPIREON UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE EVENT AND/OR PRODUCT GIVING RISE TO THE DAMAGES.
8.4 SPIREON SHALL NOT BE LIABLE FOR (1) PUNITIVE DAMAGES, (2) TREBLE, CONSEQUENTIAL, INDIRECT OR SPECIAL DAMAGES, OR (3) ATTORNEYS’ FEES. CUSTOMER AGREES NOT TO MAKE, AND TO WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES OTHER THAN DIRECT, COMPENSATORY DAMAGES AS LIMITED IN THE TERMS AND CONDITIONS OF THIS AGREEMENT, EVEN IF CUSTOMER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.5 SPIREON HAS NO LIABILITY FOR SERVICE INTERRUPTIONS OF 6 HOURS OR LESS. TO RECEIVE SERVICE CREDIT FOR LONGER INTERRUPTIONS, CUSTOMER MUST NOTIFY SPIREON WITHIN 2 DAYS AFTER THE TIME WHEN SUCH SERVICE INTERRUPTION COMMENCED. SPIREON IS NOT LIABLE TO CUSTOMER FOR INTERRUPTED SERVICE NOR FOR PROBLEMS CAUSED BY OR CONTRIBUTED TO BY CUSTOMER, BY ANY THIRD PARTY, BY THE PRESENCE OF BUILDINGS, HILLS, TUNNELS, NETWORK CONGESTION, WEATHER, OR ANY OTHER CIRCUMSTANCES THAT SPIREON AND/OR ITS SERVICE PROVIDERS DO NOT CONTROL.
8.6 CUSTOMER AGREES TO EXCUSE ANY NON- PERFORMANCE BY SPIREON OR ANY SERVICE PROVIDER CAUSED IN WHOLE OR IN PART BY AN ACT OR OMISSION OF A THIRD PARTY, OR BY ANY EQUIPMENT FAILURE, ACT OF GOD, NATURAL DISASTER, STRIKE, EQUIPMENT OR FACILITY SHORTAGE, OR OTHER CAUSES BEYOND THE CONTROL OF SPIREON OR ITS SERVICE PROVIDERS.
8.7 ALL DATA AND INFORMATION PROVIDED BY SPIREON, ITS AFFILIATES AND/OR ITS SERVICE PROVIDERS TO CUSTOMER IS PROVIDED ON AN “AS IS” BASIS. CUSTOMER AGREES THAT NEITHER SPIREON NOR ANY SERVICE PROVIDER THAT PROVIDES DATA OR INFORMATION TO CUSTOMER THROUGH THE SPIREON SERVICES OR SPIREON EQUIPMENT ARE LIABLE FOR, AND CUSTOMER SHALL NOT BE ENTITLED TO RECOVER ANY DAMAGES OF ANY KIND, INCLUDING CONSEQUENTIAL, INDIRECT, SPECIAL OR PUNITIVE DAMAGES FOR, ANY ERRORS, DEFECTS, PROBLEMS, OR MISTAKES IN SUCH DATA OR INFORMATION.
8.8 CUSTOMER HAS NO CONTRACTUAL RELATIONSHIP WHATSOEVER WITH ANY OF SPIREON’S WIRELESS SERVICE PROVIDERS UNDER THIS AGREEMENT, AND IS NOT A THIRD PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN SPIREON AND ANY OF ITS WIRELESS SERVICE PROVIDERS. NO SPIREON WIRELESS PROVIDER IS SUBJECT TO LEGAL, EQUITABLE OR OTHER LIABILITY OF ANY KIND TO DEALER, AND CUSTOMER WAIVES ANY AND ALL CLAIMS AND/OR DEMANDS FOR SUCH LIABILITY, UNLESS CUSTOMER HAS A SEPARATE CONTRACT WITH SUCH SPIREON WIRELESS SERVICE PROVIDER.
8.9 Customer shall make any of its passengers, guests, or drivers of Customer Vehicle aware of Company’s rights and limitations under this Agreement.
8.10 THE PROVISIONS OF THIS SECTION 8 MAY NOT APPLY IN STATES THAT DO NOT ALLOW AN EXCLUSION OR LIMITATION OF INCIDENTIAL OR CONSEQUENTIAL DAMAGES OR CERTAIN OTHER DAMAGES.
8.11 In the event that a wireless Service Provider is involved in any claim arising in connection with this Agreement, Customer agrees to be subject to any limitations of liability of such Service Provider to the same extent customers of such wireless Service Provider are limited. Neither Company nor any Service Provider that provides Customer with data or information warrant that any such data or information will be error-free.
9. INSURANCE. The Company Services are intended as a convenience. Customer’s payments for the Company Service are not related to the value of Customer’s Vehicle or any property in it, nor the cost of any injury to or damages suffered by Customer. Accordingly, Customer agrees to obtain and maintain all appropriate insurance regarding personal injury, loss of property, and other risks. CUSTOMER HEREBY RELEASES AND DISCHARGES SPIREON, AND ITS SERVICE PROVIDERS, THEIR AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, AND EMPLOYEES FROM AND AGAINST ALL HAZARDS COVERED BY CUSTOMER’S INSURANCE FOR ANY CLAIMS MADE BY CUSTOMER AND ANY OTHER THIRD PARTY CLAIMING UNDER CUSTOMER. CUSTOMER AGREES THAT NO INSURANCE COMPANY OR INSURER HAS ANY RIGHT OF SUBROGATION AGAINST SPIREON OR ITS SERVICE PROVIDERS.
10. MODIFICATIONS OF SPIREON SERVICES. Company can modify the Company Services at any time, and from time to time, in its sole discretion, including modifying the scope of the Company Services, the payments to be paid by Customer for the Company Services and any of the terms and conditions of this Agreement. Such modifications will be effective on the earlier of: (a) Customer clicking to accept revised terms and conditions on any Company Site, or (b) thirty (30) days if Customer does not cancel the Company Service within thirty (30) days after Company provides notice of a modification to Customer, then Customer agrees to such modification, and such modified terms become part of this Agreement between Company and Customer. Only Customer may request that Company activate, cancel, deactivate, reactivate, renew, transfer, or otherwise change the Company Services received by Customer or portions thereof. If Company deactivates certain Company Services at Customer’s request, Customer remains responsible for payment of such services unless otherwise set forth in this Agreement. If Company takes any of the aforementioned actions at the request of Customer, Customer agrees to pay any fees associated with such requests.
11. CUSTOMER’S CANCELLATION OF SERVICES. Customer may cancel the Company Services by notifying Company in writing (as contemplated by the Notice provision herein). If Customer cancels Customer’s Company Service, Company will not refund any amounts previously paid to Company by Customer unless otherwise set forth in this Agreement or agreed to by Company in writing in its sole discretion. If Customer cancels the Company Service, Company may immediately turn off the Company Equipment and discontinue the Company Services. Customer’s cancellation of this Agreement will have no impact on any vehicle financing arrangement for the Customer Vehicle, the price of the Customer Vehicle, the cost of financing or any other costs or fees under any financing arrangement for the Customer Vehicle.
12. SPIREON’S TERMINATION OF ACCESS RIGHT AND SPIREON SERVICES. Company may, at its option, suspend or terminate the Access Right, including, but not limited to, Customer’s use of the Company Services and this Company Site, immediately and without prior notice to Customer if Customer (i) breaches any part of this Agreement; (ii) fails to pay any amount due to Company or its service providers or has a credit or debit card provider that refuses a charge or bounces a check (or otherwise has a check dishonored) (iii) attempts to modify any equipment or software in the Customer Vehicle, including, but not limited to, the Company Equipment; (iv) uses the Company Service or associated wireless phone number for illegal or improper purposes; or (v) otherwise disrupts Company’s business. If Company terminates the Access Right (including, but not limited to, termination of the Company Services), Company may elect, in its sole discretion, whether or not to reactivate the Company Services for Customer. Customer acknowledges and agrees that Customer has no right to have the Company Service reactivated in the event of any such deactivation by Company, regardless of whether Customer cures any cause for any such termination.
13. LIMITATIONS ON AVAILABILITY OF SPIREON SERVICES
13.1 The Company Services may use cellular or other wireless networks as well as the Global Positioning System (“GPS”) satellite network. Customer acknowledges and agrees that: (i) Company Services cannot work unless the Customer Vehicle is in a location where Company has entered into an agreement with a wireless service provider for service, and service is available in that area and (ii) Company Services that involve location information about the Customer Vehicle cannot work unless GPS satellite signals are available at such location.
13.2 Customer acknowledges and agrees that (i) not all Company Services are available on all Customer Vehicles; (ii) for the Company Equipment to operate, the Customer Vehicle must have a working electrical system and adequate battery power; and (iii) Customer Vehicle must be in good working condition and in compliance with all applicable government regulations.
13.3 Customer acknowledges and agrees that the Company Service may not function if (i) the Company Equipment is not properly installed by an authorized Company representative; and (ii) Customer attempts to modify any equipment or software in the Customer Vehicle, including the Company Equipment.
13.4 Customer acknowledges and agrees that Company has the right to occasionally temporarily suspend the Company Service due to network or system maintenance or improvement, or as a result of network congestion.
13.5 Customer acknowledges and agrees that the Company Services may not be available at particular time or place as a result of circumstances out of Company’s control, such as lack of adequate cellular coverage, damage to Customer Vehicle, hills, tall buildings, tunnels, weather, or wireless network congestion.
14. ADDITIONAL SERVICE DISCLAIMERS Customer further acknowledges and agrees as follows:
14.1 Stolen Vehicle Location. For Company Services providing stolen vehicle recovery, Customer must immediately (within 24 hours of Customer first becoming aware of the theft) provide to Company a stolen vehicle report filed with the appropriate authorities, together with any other information required by Company or the appropriate authorities. Company is not obligated to continue to attempt to locate Customer’s Vehicle after 48 hours from the time Customer first reports Customer’s Vehicle as stolen. Company is not required to try to find Customer’s Vehicle for the purpose of locating a person.
14.2 Third Party Services. For Company Services providing an active connection to Customer’s Vehicle, in performing the Company Services, an Company Customer Service Representative may link Customer or Customer’s Vehicle to third party service providers such as the police. Company will use reasonable efforts to contact appropriate service providers for assistance when Customer asks for it or when the Company Service signals for such assistance, but Company cannot promise that any service providers will respond in a timely manner or at all.
15. TRANSFERRING OWNERSHIP OF CUSTOMER’S VEHICLE. Customer agrees to promptly notify Company if: (i) Customer sells Customer’s Vehicle, (ii) Customer ends Customer’s lease of Customer’s Vehicle, or (iii) Customer’s Vehicle is repossessed. If Customer sells or otherwise transfers ownership of Customer’s Vehicle and does not notify Company, Customer agrees to indemnify and hold Company harmless for any unauthorized use of the Company Services by Customer. Notwithstanding such notification, Company reserves the right, in its sole discretion, to terminate the Access Right, including but not limited to termination of the Company Services, upon such transfer.
16. NO RIGHTS AGAINST WIRELESS CARRIERS OR IN WIRELESS NUMBERS. Company has contracted with, and will contract from time to time with, one or more wireless carriers (individually and collectively, “Wireless Carrier”) to provide wireless data transmission service (“Wireless Service”) for the Product over a cellular telephone network. Customer understands and agrees that Customer has no contractual rights under those agreements with the Wireless Carrier or its affiliates or contractors and that Customer is not a third party beneficiary of any such, nor shall the Wireless Carrier or its affiliates or contractors have any legal, equitable, or other liability of any kind to Customer, and Customer hereby waives any and all claims or demands therefor. Customer acknowledge and agree that Customer’s Service may be temporarily suspended or permanently terminated upon little or no notice in the event that Company’s agreement with the Wireless Carrier is terminated. Customer waives any and all claims against the Wireless Carrier and Company for such suspension or termination. Customer understands that the Wireless Carrier cannot guarantee the security of wireless transmissions and will not be liable for any lack of security relating to the use of the Wireless Service. Subject to FCC number portability rules, Customer has no property right in any telephone number assigned to Customer or any Deliverable, and Customer understands and agrees that any such number can be changed from time to time. Company is not responsible to Customer for any theft of Customer’s wireless number or numbers.
17. TERMINATION
17.1 Termination for Convenience. Company may immediately terminate this Agreement, with or without cause, upon sixty (60) days written notice to Customer.
17.2 Termination for Cause. Company may terminate this Agreement upon the occurrence of any one of the following events: (a) immediately upon Customer’s breach of any of the provisions of this Agreement (without a right to cure); or (b) immediately if Customer becomes insolvent or is otherwise unable to pay its debts as they become due.
17.3 Effects. Upon any cancellation, expiration or termination of this Agreement, Customer’s Access Right (including, but not limited to its right to use the Company Services and this Company Site) shall immediately terminate.
17.4 Survival. For greater certainty, and without limiting other rights of survival specifically provided for in this agreement or which are implied, the rights and obligations of the parties provided for in Sections 3.3, 4, 5.4, 5.5, 5.7, 6.3, 7, 8, 9, this 17, 18, and 19 shall survive the cancellation, expiration and termination of this Agreement.
18. GENERAL PROVISIONS
18.1 Entire Agreement; Amendments. This Agreement, including any exhibits, contains the entire, complete and final agreement and understanding of the parties with respect to the subject matter hereof and all prior or contemporaneous agreements between the parties pertaining to the subject matter hereof are superseded and are merged into this Agreement. This Agreement cannot be modified or amended in any respect except by a writing executed by the parties.
18.2 No Implied Rights. This Agreement pertains only to the rights and licenses specifically granted herein. No implied rights or implied licenses are to be inferred or granted by this Agreement. All rights other than expressly granted are reserved by and for Company.
18.3 Binding Effect. This Agreement is binding on the parties and their heirs, agents, executors, administrators and successors, including, without limitation, successor officers, directors and trustees, if any, of Company and Customer.
18.4 Severability. Except as set forth in Section 19, should any one or more provisions of this Agreement be determined to be illegal, invalid or unenforceable, such provision or provisions shall be modified to the minimum extent necessary to make it or its application valid and enforceable. If modification of such provision or provisions cannot cure such illegality, invalidity or unenforceability the provision or provisions in question shall then be severed and the remaining provisions shall be interpreted and if need be modified in a manner which provides the maximum enforceability and validity of the entire remaining Agreement.
18.5 Assignment, Transfer and Delegation. The rights granted under this Agreement are specific and personal to Customer and cannot be assigned or transferred to any other party without the prior written approval of Company (which may be granted by Company in its sole discretion). Company has the right to assign or transfer its rights under this Agreement to any party.
18.6 Waiver. No failure or delay by Company in exercising any right, power or privilege in this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any right, power or privilege under this Agreement.
18.7 Notices. Any written notice from Customer required by this Agreement will be considered given when Company receives it at 9724 Kingston Pike, Suite 800, Knoxville, TN 37922. Any written notice from Company required by this agreement will be considered given two days after Company mails or emails it to Customer at the address Company has on file for Customer at the time, or when notice is presented to Customer on login to any Company site. Any oral or other notices will be considered given when Company calls or emails the Customer.
18.8 Cumulative Remedies. Each right and remedy of Company shall be cumulative, and shall be in addition to every other right or remedy in this Agreement, or now or hereafter existing at law, or in equity, or by statute or otherwise, and the exercise or beginning of exercise by a party of any one or more of the rights or remedies in this Agreement, as now or hereafter existing, shall not preclude the simultaneous or later exercise by a party of any or all other rights or remedies in this Agreement as now or hereafter existing at law, or in equity, or by statute or otherwise.
18.9 Governing Law. This Agreement shall be governed solely by the laws of the State of Tennessee without giving effect to any conflict of laws provisions thereof. Except as provided in Section 19, each party hereby consents to the exclusive jurisdiction of the state and federal courts sitting in Knox County, Tennessee, for any action that may be brought under or in connection with this Agreement or the transactions contemplated by this Agreement.
18.10 Attorneys’ Fees. Except as provided in Section 19, if either party files an action against the other party concerning this Agreement, the prevailing party shall be entitled to recover court costs and reasonable attorneys’ fees from the other party.
18.11 Force Majeure. Company shall not be liable to Customer for delays or failures to perform under this Agreement if the delay or failure is caused by shortage of labor, labor disputes, war, act of enemies, riots, insurrection, civil commotion, federal, state or municipal action, statute, ordinance, regulation, fire, flood, earthquake, accident, storm, explosions, acts of God, the inability to obtain essential materials or other resources, or other causes beyond Company’s reasonable control.
19. ARBITRATION OF CLAIMS
19.1 Definitions. For purposes of this Section 19, a “Dispute” is any contract, tort, statutory or other claim or dispute between Company and Customer arising out of or relating to this Agreement or any resulting transaction or relationship (including any such relationship with third parties who do not sign this Agreement). “Dispute” includes any disagreement over the interpretation and scope of this Section 19, or the arbitrability of the Dispute.
19.2 Agreement to Arbitrate Upon Request. Any Dispute shall, at Company’s or Customer’s request, be resolved by binding arbitration and not in court. Arbitration will be by one arbitrator on an individual basis and not as a class action. Customer waives any right Customer may have to arbitrate a Dispute as a class action (this is referred to below as the “class action waiver”). Arbitration will be conducted by and under the rules of the American Arbitration Association, 335 Madison Ave., Floor 10, New York, NY 10017-4605 (www.adr.org), or any other arbitration organization Customer selects, subject to Company’s approval. Customer may get the rules of the organization by contacting it or visiting its website.
19.3 Arbitrators and Location of Arbitration. Arbitrators shall be attorneys or retired judges selected under the applicable rules. The arbitrator shall apply governing substantive law in making an award. The arbitration hearing shall be conducted in the federal district in which Customer resides, or at some other location convenient to Customer.
19.4 Costs of Arbitration. Company will pay Customer’s filing, administration, service or case management fee and Customer’s arbitrator or hearing fee all up to a maximum of $1,500. Company will pay additional arbitration expenses to the extent that the arbitrator determines that Company must in order to ensure the enforceability of this Arbitration Agreement. Each party shall be responsible for its own attorney, expert and other fees, unless otherwise awarded by the arbitrator under applicable law.
19.5 Award and Right to Repeal. The arbitrator’s award is final and binding on all parties, except that if the arbitrator’s award for a party is $0 or against a party exceeds $100,000, or includes an award of injunctive relief against a party, that party may request a new arbitration hearing under the rules of the arbitration organization by a three-judge panel. Unless prohibited by law, the appealing party requesting new arbitration shall be responsible for the filing fee and other arbitration costs, subject to a final determination by the arbitrators of a fair apportionment of the costs. Any arbitration shall be governed by the Federal Arbitration Act and not by any state arbitration law.
19.6 Additional Provisions. Customer and Company retain the right to sue in small claims court for a Dispute within that court’s jurisdiction, unless such action is transferred, removed or appealed to a different court. Neither Customer nor Company waive the right to arbitrate by filing suit. Any court having jurisdiction may enter judgment on the arbitrator’s award. If any part of this Section 19, other than the class action waiver, is deemed or found to be unenforceable for any reason, the remainder of this Section 19 is enforceable. If the class action waiver is deemed or found to be unenforceable, then this entire Section 19 shall be unenforceable.
19.7 Right to Opt Out. Customer may opt out of this Section 19 regarding arbitration by doing so in writing to Company as set forth in Section 18.7 of this Agreement (“Notices”), postmarked no later than 10 days from the date of this agreement.

REV 08/2019