Terms Of Service
WE ADVISE YOU TO READ THESE TERMS AND CONDITIONS OF SERVICE (THESE “TERMS”) CAREFULLY. THESE TERMS AFFECT YOUR LEGAL RIGHTS BY, AMONG OTHER THINGS, LIMITING OUR LIABILITY AND REQUIRING MANDATORY ARBITRATION OF DISPUTES. YOU MAY OPT-OUT OF THIS ARBITRATION PROVISION BY FOLLOWING THE PROCEDURE DESCRIBED IN SECTION 12.2 BELOW.
These Terms govern your rights and obligations with respect to the purchase and use of the Service (as defined below) and are a legally binding agreement between you (“Customer” or “you” or “your”) and 1898 Ventures, LLC (“1898 Ventures”, “we”, “us” or “our”). When you order or purchase the Service or any component or element thereof, or otherwise use or access the Service or any component or element thereof, you agree to be bound by these Terms. You may also be asked to click “I accept” at the appropriate place prior to a purchase or you gaining access to the Service, but clicking accept is not required for you to consent to these Terms. Your use of the Service serves as consent to these Terms. At such time, if you do not click “I accept”, you may not be able to complete such purchase or gain such access. If you do not agree to these Terms, please refrain from using or accessing the Service. We reserve the right, at our sole discretion, to change, modify, add or remove portions of these Terms at any time. Your continued use of the Service following the posting of changes will mean that you accept and agree to the changes.
By accepting these Terms, you represent and warrant that you are eighteen (18) years of age or older, and that you have the right, authority and capacity to agree to and abide by these Terms and that you will use the Service in a manner consistent with any and all applicable laws and regulations. If you are accessing or using the Service on behalf of a business or entity, then “you” and “your” includes you and that business or entity, and you represent and warrant that you are an authorized representative of the business or entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
1. THE SERVICE
Kayo is a vehicle management solution used to manage your vehicles and includes (collectively, the “Service”): (a) our software application (the “App”), (b) other software (including any firmware embedded in a Device) that we provide or is otherwise used in connection with the Service (such software, along with the App, “Software”), (c) data, reports, text, images and other content and documentation made available by us on the App or otherwise and (d) an on-board diagnostic device (the “Device”) that will be plugged into your vehicle’s on-board diagnostics port.
2. ACCOUNT AND SUBSCRIPTION
The App can be downloaded at the App Store® or Google Play Store (each, a “Platform Store”). You will need to create and register for an account (“Account”) through the App to access and use the Service. We will manage your Account. Your registration and the management of your Account will be governed by and be subject to the rules, policies, terms and conditions of the applicable Platform Store (“Platform Store Rules”) and these Terms. It is important that you provide accurate, complete and up-to-date information for your Account (including information about the specific Devices you have purchased and the vehicles in which the Device(s) are installed) and you agree to update such information, as needed, to keep it accurate, complete and up to date.
In order to activate the Service, you also will be required to purchase a Subscription that will include a monthly fee for each vehicle that utilizes the Service (“Subscription”). Subscriptions can only be purchased through the App and the terms of your purchase and the administration of your Subscription will be governed by and be subject to the applicable Platform Store’s payment policy and such other applicable Platform Store Rules then in effect. Your Subscription will automatically renew on a monthly or annual basis until cancelled by you in accordance with the applicable Platform Store Rules. You may cancel your Subscription at any time. Except as may be provided in a free trial, cancellation of your Subscription will not relieve you of any obligation to pay any accrued fees or charges. We reserve the right to change our Subscription plans or adjust pricing for our service or any components thereof in any manner and at any time as we may determine in our sole and absolute discretion, in each case, subject to the applicable Platform Store Rules.
You agree to provide access to the Service only to your employees or such other users that you have authorized (“Authorized Users”), and to require such Authorized Users to keep Account login information, including user
names and passwords, strictly confidential and not provide such Account login information to any unauthorized parties. Authorized Users may only use the Service strictly on your behalf and are subject to the terms and conditions applicable to Customer herein. You are responsible and liable for any breach by an Authorized User of his or her obligations hereunder. We will not be liable for any losses resulting from unauthorized access to or use of the Service or your Subscription and you may be liable to us or other parties due to such unauthorized access and/or use.
Your Subscription and use of the Service will be conditioned on your adherence to these Terms and the applicable Platform Store Rules. In the event of any conflict between Platform Store Rules and these Terms, the Platform Store Rules shall prevail.
From time to time, we may offer services identified as beta, pilot, developer preview, non-production, evaluation or by a description of similar import (“Beta Services”). You may accept or decline Beta Services. Depending on the Beta Services offer, you may or may not be required to purchase a Subscription, but you will still be required to create and register for an Account through the App to access and use the Service. We will manage your Account. Your registration and the management of your Account will be governed by and be subject to the Platform Store Rules and these Terms. All Beta Services: (a) are provided only for evaluation purposes; (b) may not be relied on by you for production use; (c) may not be supported; and (d) may be subject to additional terms. Unless otherwise stated, any Beta Services trial period will expire on the date that a version of the Beta Services becomes generally available or is discontinued. We may discontinue Beta Services at any time in our sole discretion and may never make Beta Services generally available.
3. THE DEVICE
Purchasing the Device
You will be required to purchase a Device in order to utilize the Service. At this time, Devices are only available for purchase at Amazon.com. You will be permitted to return the Device for a full refund within thirty (30) days of your initial purchase, subject to the refund and return policies of the sales channel place of purchase (e.g. Amazon.com) and these Terms. Before purchasing the Device, you should confirm at the time of purchase that the Device will be compatible with your vehicle. You are responsible for installing your Device into your vehicle and for following the installation instructions provided with the Device or in the App.
We warrant that the Device will be free from defects in materials and workmanship for the greater of (a) twelve months or (b) the period for which you have an uninterrupted paid Subscription on the Device (“Warranty Period”), subject to the following terms and conditions. If a defect in the Device arises within the Warranty Period, we will, at our sole option and subject to applicable laws, repair or replace it with a new or refurbished product or component through our warranty process. This limited warranty is extended only to you, the initial customer that purchased the Device. Warranty coverage will terminate if you sell the Device, cancel your Subscription or if the Subscription expires. This warranty does not apply (x) where the written instructions for use and activation of the Device are not complied with, (y) where the Device is damaged as a result of improper installation, storage, abuse, accident, unauthorized modification or attempted repair, or any other causes beyond our reasonable control, or (z) with respect to any Device made available to you at no charge under beta, pilot, developer preview, non-production, evaluation or by a description of similar import. We will not replace a Device which was stolen. This warranty gives you specific legal rights, and you may also have other rights which vary from state to state. To obtain warranty service, please contact: email@example.com.
YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY NON-CONFORMING OR DEFECTIVE DEVICE SHALL BE LIMITED TO REPAIR OR REPLACEMENT OF THE NON-CONFORMING DEVICE DURING THE WARRANTY PERIOD THROUGH OUR WARRANTY PROCESS. WE EXPRESSLY DISCLAIM, WHERE AND TO THE EXTENT PERMITTED BY LAW, ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE DEVICE, INCLUDING WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY, ACCURACY, NON-INFRINGEMENT, SATISFACTORY QUALITY OR FITNESS FOR A PARTICULAR PURPOSE.
If you have accepted Beta Services, we may provide a Device or Devices to you at no cost to use in connection with the Beta Services. In such case, the Purchasing the Device and Limited Warranty provisions above are not applicable to you or the Devices provided to you. Unless stated otherwise in writing, we retain ownership of any Device provided to you in connection with Beta Services and permit you to use the Device for the Beta Services term pursuant to a limited license. Instructions on how to return the Device at the expiration or termination of the Beta Services term will be provided. ALL BETA SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTY OF ANY KIND. BETA SERVICES MAY BE TERMINATED AT ANY TIME. 1898 VENTURES DISCLAIMS ALL OBLIGATIONS AND LIABILITY UNDER THESE TERMS FOR ANY HARM OR DAMAGE ARISING OUT OF OR IN CONNECTION WITH A BETA SERVICE, INCLUDING ANY OBLIGATION OR LIABILITY WITH RESPECT TO THE DEVICE OR ANY CUSTOMER DATA. ANY CUSTOMER DATA ENTERED INTO BETA SERVICES MAY BE PERMANENTLY LOST IF THE BETA SERVICES ARE SUSPENDED, TERMINATED, OR DISCONTINUED.
5. USE OF THE SERVICE, SERVICE FEATURES AND CERTAIN LIMITATIONS
Use of the Service
You have full responsibility and assume all risks related to the use of the Service in your vehicle. You may only use the Service when it is safe to do so. Failure to do so may result in an accident involving serious injury or death.
ALWAYS OPERATE THE VEHICLE IN A SAFE MANNER. DO NOT USE THE APP WHILE DRIVING, AND ALWAYS BE FULLY AWARE OF ALL DRIVING CONDITIONS. DO NOT ATTEMPT TO INSPECT OR ADJUST THE DEVICE WHILE DRIVING. PULL OVER IN A SAFE AND LEGAL MANNER BEFORE ATTEMPTING SUCH OPERATIONS
YOU ARE SOLELY RESPONSIBLE FOR SAFE VEHICLE OPERATION AND YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT IT IS YOUR SOLE RESPONSIBILITY TO ENSURE THAT YOU (AND/OR ANY OTHER USER OR OCCUPANT OF YOUR VEHICLE) EXERCISE GOOD JUDGMENT AND OBEY TRAFFIC RULES AND ALL OTHER APPLICABLE LAWS AND REGULATIONS WHEN OPERATING YOUR VEHICLE, ACCESSING AND/OR USING THE SERVICE, PERMITTING OTHERS TO USE YOUR VEHICLE AND/OR EVALUATING WHETHER THE USE OF ANY OF THE SERVICE FEATURES ARE SAFE AND LEGAL UNDER THE CIRCUMSTANCES.
Service Features and Service Partners
The Service includes a collection of features described (“Service Features”) as described in these Terms, on the App, on the Amazon Marketplace and on the Kayo Website www.kayoauto.com. These Service Features are provided by us, our affiliates or third party providers, including wireless service providers, equipment and software manufacturers, developers, licensors, content providers and any other person or entity who provides any service, equipment, content, feature or facilities in connection with the Service (“Service Partners”). We may alter, suspend or discontinue the availability of any Service Feature, database or content at any time. We may also impose limits on certain features and aspects of the Service or restrict your access to parts or all of the Service without notice or liability.
Vehicle Location Services
Some Service Features are based on tracking your vehicle’s location. We make these Service Features available using data collected by the Service while the Device is properly installed in your vehicle. Data collected by the Service may include information about your vehicle’s use, operation, location, performance, and other driving behavior information, and by subscribing to the Service, you agree that we may collect such information as part of the Service. You agree to use the Service and location information provided through the Service solely for lawful purposes and in accordance with these Terms, and will comply with any applicable local, state, federal and foreign laws, government rules or requirements. To stop the Device from collecting and transmitting vehicle and location data to us, you must remove the Device from your vehicle’s OBD Port.
SECRET OR NONCONSENSUAL USE OF THE SERVICE TO COLLECT OR TRACK INFORMATION OF OTHERS AND ANY OTHER USE THAT VIOLATES LAW IS PROHIBITED. IT IS YOUR RESPONSIBILITY TO USE THE SERVICE AND DISPOSE OF ANY DEVICE IN A MANNER THAT COMPLIES WITH LAW AND DOES NOT CAUSE HARM. IT IS YOUR RESPONSIBILITY TO NOTIFY EVERYONE WHO USES OR OCCUPIES YOUR VEHICLE THAT LOCATION AND DATA COLLECTION FEATURES ARE ACTIVE AND ALLOW YOU TO ACCESS INFORMATION ABOUT THE VEHICLE, INCLUDING ITS LOCATION.
THE SERVICE IS NOT INTENDED AND SHOULD NOT BE USED AS A STOLEN VEHICLE LOCATION AND RECOVERY SERVICE.
As part of the Service we provide, you may (if enabled) receive push notifications, text messages, alerts, emails, or other types of messages directly sent to you outside or inside the App (“Notifications”). You have control over the Notifications settings and can opt in or out of these Notifications through the Service (with the possible exception of infrequent, important service announcements and administrative messages). Please be aware that third party messaging fees may occur for some of the Notifications depending on the message plan you have with your wireless carrier and we are not liable for fees incurred.
The Service monitors the on-board diagnostics of your vehicle. We make this Service Feature available using data collected by the Service while the Device is properly installed in your vehicle. You understand that the Service does not provide all vehicle diagnostic codes and does not report all conditions that may affect the operation of your vehicle. In addition to the other limitations on liability in these Terms, you agree and acknowledge that we are not liable for any performance or mechanical issues relating to your vehicle. The information the Device can retrieve from your vehicle may be different than that available from other vehicles based on differences between manufacturers, models, and model years. In such cases, you may not receive access to certain Service Features that will be available to other people enrolled in the Service.
THE VEHICLE DIAGNOSTIC SERVICES ARE INFORMATIONAL ONLY AND ARE DESIGNED TO HELP IDENTIFY THE LIKELY SOURCE OF A PROBLEM BASED ON THE DIAGNOSTIC CODES TRIGGERED AND ARE NOT INTENDED TO REPLACE ACTUAL IN-PERSON SERVICE EVALUATIONS. YOU SHOULD ALWAYS OBTAIN PROFESSIONAL ASSISTANCE FROM A VEHICLE SPECIALIST FOR DIAGNOSIS AND REPAIR OF ANY ERRORS OR OTHER PROBLEMS WITH YOUR VEHICLE.
The Device includes a SIM card that will connect to a cellular network operated by a third party wireless carrier. Use of the cellular service is included in your Subscription and you will not be charged any separate or additional fees for
such service. In connection therewith, you will adhere to and comply with all terms of service of such wireless carriers and and/or third parties providing connectivity to such wireless carrier networks (the “Wireless Terms of Service”) set forth in Section 16 of these Terms as they may be updated from time to time and which are incorporated into these Terms. The Service is currently only available in the continental United States. The cellular service included with you Service works only with the Service and for no other purpose or application.
The location of your vehicle, particularly in remote or enclosed areas, may affect the availability and quality of the Service that we can provide to you. The Service generally works using wireless communication networks of our wireless Service Partners and the Global Positioning System (GPS) satellite network. The Device receives GPS signals and communicates with our data centers and those of our affiliates or Service Partners through use of wireless and landline communications networks. The Service cannot work unless your vehicle is in a place where our wireless carriers and/or their roaming partners have coverage, network capacity and reception. The aspects of the Service that involve location information about your vehicle cannot work unless GPS satellite signals are unobstructed, available in that location and compatible with the Device.
6. INDIVIDUAL USER DATA
To the extent you own Individual User Data, you hereby grant to us a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, display, and distribute Individual User Data in connection with operating and providing the Service. You further agree that we may collect and use analytics, statistics or other data related to the Individual User Data and your use of the Service (a) in order to provide the Service; (b) for statistical reporting and use (provided that such data is not personally identifiable); (c) to monitor, analyze, develop upon, maintain, and improve the Service; and (d) for other business purposes, which, in each case of the foregoing, includes the right to provide such data to third party services for the aforementioned purposes. Our right to use such data shall survive the right to use such data shall survive the termination of these Terms, unless prohibited by applicable law.
7. INTELLECTUAL PROPERTY/OWNERSHIP
1898 Ventures (and/or its affiliates or Service Partners) exclusively own all right, title and interest (including all intellectual property rights) in and to (a) the Service (including Software), including without limitation, all improvements, updates, modifications or derivative works of the foregoing, (b) any data or analytics, derived or generated by the Service, including from Individual User Data and (c) all feedback, communications, and suggestions about the Service that you or your Authorized Users provide. Without limiting the foregoing, we retain ownership of all firmware embedded in the Device, notwithstanding the fact that you will own the Device.
Provided that you comply with these Terms, we grant you and your Authorized Users a non-exclusive, non-transferable, limited, revocable license, without the right to assign or sublicense, to access and use the Service for solely for the purposes set forth in for the term of your Subscription. Except for the foregoing license, all intellectual property rights in the Service are expressly reserved and no other rights or licenses are granted, either express or implied.
You will not (a) rent, lease, resell, assign, or otherwise transfer rights or access to the App, the Software or the Service; (b) distribute, copy, reproduce, display, republish, or transmit any portion of the App, the Software or the Service; (c) modify, translate, reverse engineer, decompile, disassemble, or create derivative works based upon the App, the Software or the Service or any software or programming related thereto; (d) use any device, software, methodology, or routine to interfere with the proper working of the Device or the Service or servers or networks connected thereto; or (e) in any other way interfere with or disrupt the proper operation or use of the Service in a way that harms us or any of our other customers. We may update the Software from time to time. We may do this remotely without notifying you first. These Software updates or changes may affect or erase data or metadata that is stored in the Service. We are not responsible for any affected or erased data or metadata due to a software update or change.
Any trademarks, logos and service marks (collectively, “Trademarks”) displayed in connection with the Service (including on the Device) are the registered and/or unregistered trademarks of 1898 Ventures or our affiliates or Service Partners. Nothing herein or contained in the Service may be construed as granting, by implication, estoppel or otherwise, any license or right to use or display any Trademarks or any variation thereof without our written permission.
Any trademarks, logos and service marks (collectively, “Trademarks”) displayed in connection with the Service (including on the Device) are the registered and/or unregistered trademarks of 1898 Ventures or our affiliates or Service Partners. Nothing herein or contained in the Service may be construed as granting, by implication, estoppel or otherwise, any license or right to use or display any Trademarks or any variation thereof without our written permission.
The Service may contain certain software that is covered by open source licensing requirements. All open source software contained with the Service is distributed WITHOUT ANY WARRANTY. All such software is subject to the copyrights of the authors and to the terms of the applicable licenses included in the list.
8. NO WARRANTIES
EXCEPT FOR THE LIMITED DEVICE WARRANTY DESCRIBED IN SECTION 3, THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE APP, THE SOFTWARE AND THE DEVICE) IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE DO NOT WARRANT THE OPERATION, PERFORMANCE OR AVAILABILITY OF THE SERVICE, OR THAT THE SERVICE WILL CONTINUE IN EXISTENCE FOR ANY PERIOD OF TIME. WE MAKE NO REPRESENTATIONS THAT THE SERVICE WILL BE ERROR-FREE OR FREE FROM LOSS, INTERRUPTION, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND WE DISCLAIM ANY LIABILITY RELATING THERETO.
9. LIMITATIONS OF LIABILITY AND INDEMNIFICATION
TO THE EXTENT PERMITTED BY LAW, 1898 VENTURES AND ITS AFFILIATES AND SERVICE PARTNERS WILL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE (INCLUDING, WITHOUT LIMITATION, THE APP, THE SOFTWARE AND THE DEVICE), WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY.
TO THE EXTENT PERMITTED BY LAW, IN NO EVENT SHALL OUR AGGREGATE LIABILITY EXCEED THE AMOUNTS PAID BY CUSTOMER TO US FOR THE DEVICE AND THE SERVICE OR $1,000, WHICHEVER IS LESS. THESE LIMITS AND EXCLUSIONS APPLY EVEN IF WE KNEW OR SHOULD HAVE KNOWN ABOUT THE POSSIBILITY OF THE DAMAGES AND WHETHER ARISING BASED ON NEGLIGENCE, TORT OR BREACH OF CONTRACT. THESE LIMITATIONS SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS, AND APPLY TO CUSTOMER, AUTHORIZED USERS OR ANYONE USING THE SERVICE OR DEVICE OR MAKING A CLAIM ON YOUR BEHALF.
TO THE EXTENT PERMITTED BY LAW, YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS 1898 VENTURES AND ITS EMPLOYEES, AFFILIATES, AND SERVICE PARTNERS FOR ANY DAMAGES, LOSSES OR EXPENSES (INCLUDING, WITHOUT LIMITATION, REASONABLE ATTORNEYS’ FEES AND COSTS) THAT WE SUFFER OR INCUR IN CONNECTION WITH ANY CLAIMS, SUITS, JUDGMENTS, AND CAUSES OF ACTION ARISING OUT OF (A) ANY VIOLATION OF APPLICABLE LAWS OR REGULATIONS BY YOU (OR ANY PARTIES WHO USE YOUR ACCOUNT, WITH OR WITHOUT YOUR PERMISSION, TO ACCESS THE SERVICE); (B) YOUR USE OF THE SERVICE; (C) VIOLATION OR INFRINGEMENT OF CONTRACTUAL RIGHTS, PRIVACY, CONFIDENTIALITY, COPYRIGHT, PATENT, TRADEMARK, TRADE SECRET, OR OTHER INTELLECTUAL PROPERTY AND PROPRIETARY RIGHTS ARISING FROM YOUR USE OF THE SERVICE; OR (D) YOUR BREACH OF ANY PROVISION OF THESE TERMS.
10. OUR TERMINATION RIGHTS
We may suspend or terminate your use of the Service as a result of your fraud or violation of these Terms, including the violation of any applicable Platform Store Rules or terms and conditions of our Service Partners. Such termination or suspension may be immediate and without notice. In addition to all other termination rights provided
in these Terms, we may discontinue providing the Service or any Service Feature at any time upon thirty (30) days’ prior notice to you.
11. GOVERNING LAW
These Terms, interpretation of these Terms and any disputes covered by it are governed by the laws of the State of Georgia, without regard to its conflict of laws provisions.
12. DISPUTE RESOLUTION; MANDATORY BINDING ARBITRATION; CLASS ACTION AND MASS ACTION WAIVER
IF YOU FOLLOW THE PROCEDURES SET FORTH IN SECTION 12.2 BELOW, YOU HAVE THE RIGHT TO OPT OUT OF THIS DISPUTE RESOLUTION PROVISION (“DISPUTE RESOLUTION PROVISION”) (EXCEPT JURY TRIAL WAIVER) WITHIN 30 DAYS OF YOUR ACCEPTANCE OF THESE TERMS (THE “OPT-OUT PERIOD”). OTHERWISE, YOU WILL BE BOUND TO SETTLE ANY DISPUTES YOU MAY HAVE WITH 1898 VENTURES THROUGH THE FOLLOWING DISPUTE RESOLUTION PROCEDURES.
12.1 YOU AND 1898 VENTURES AGREE TO ARBITRATE — RATHER THAN LITIGATE IN COURT — any and all claims, disputes, or controversies between you and 1898 Ventures (and/or any affiliates, officers, directors, employees, or agents of 1898 Ventures), whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, negligence, or any other intentional tort) or other legal or equitable theory, except as expressly provided in Sections 12.7 and 12.8 below (“
12.2 Opt Out: You may opt out of this Dispute Resolution Provision (except for the jury trial waiver contained in Section 12.11 below) by notifying us of that intent during the Opt-Out Period by sending an email to us at ArbitrationOptOut@cox.com or a letter via U.S. mail to the Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328 stating that you are opting out of this dispute resolution provision. Exercising this right, should you choose to do so, will not affect any of the other terms of these Terms with 1898 Ventures, and you may remain our customer. If you opt out of the Dispute Resolution Provision, that opt out will remain in effect if we modify this section in the future or you agree to a new term of service under these Terms. If you enter into a new agreement with us that includes a dispute resolution provision and you want to opt out of that provision, you will need to follow the instructions in that agreement for opting out.
12.3 Class Action and Mass Action Waiver: All Disputes between us must be resolved on an individual basis. Except as specified below, you and 1898 Ventures agree that all Disputes between you and 1898 Ventures will be arbitrated individually, and that you will not file or participate in a “Class Action” (as defined in federal, state, or arbitration procedural rules), any other form of class, collective, representative, or consolidated actions (collectively “Mass Action,” which term includes, but is not limited to, any action in which you, jointly or in coordination with twenty or more other individuals, file functionally identical arbitration claims within thirty days of one another.) You and 1898 Ventures agree that it is a material breach of this Dispute Resolution Provision to file or participate in a Class Action or Mass Action, and 1898 Ventures may enforce this prohibition as set forth in Section 12.8 below. If either you or 1898 Ventures brings a claim in small claims court, this Class Action and Mass Action waiver will apply. Nothing in this subsection bars any claims by you for public injunctive relief, which must be decided in court under Section 12.8 below. You and 1898 Ventures agree that this Class Action and Mass Action waiver is an essential part of our arbitration agreement and that if this Class Action and Mass Action waiver is found to be unenforceable by any court or arbitrator then the entire arbitration agreement set forth in this Section 12 will not apply to any Dispute between you and 1898 Ventures, except for the provisions of Section 12.7 waiving the right to jury trial. This Class Action and Mass Action waiver may not be severed from our arbitration agreement.
12.4 Arbitrator Authority: The arbitration between you and 1898 Ventures will be binding. In arbitration, there is no judge and no jury. Instead, our Disputes will be resolved by an arbitrator, whose authority is governed by the terms of this Terms. You and 1898 Ventures agree that an arbitrator may only award such relief as a court of competent jurisdiction could award, limited to the same extent as a court would limit relief pursuant to the terms of this Terms. Except as provided in Section 12.8 below, the arbitrator may resolve all disputes concerning whether this Dispute Resolution Provision is enforceable, unconscionable, applicable, valid, void, or voidable. An arbitrator may award attorneys' fees and costs if a court would be authorized to do so, and may issue injunctive or declaratory relief if that relief is required or authorized by the Applicable Law, but that injunctive or declaratory relief may not extend beyond you and your dealings with 1898 Ventures. Review of arbitration decisions in the courts is very limited. Any arbitrator award – whether or not confirmed – is neither res judicata nor collateral estoppel as to any Dispute or issue between the parties not subject to or not submitted to arbitration (including, but not limited to, any claim for public injunctive relief) or as to any Dispute or claim between 1898 Ventures and any non-parties to the arbitration. Because of, among other things, the nature of any Dispute submitted to arbitration, the informality of the procedures to adjudicate any such Dispute, and the limited review of arbitration decisions by the court, the award is conclusive only as to the Dispute resolved in arbitration and only as to the parties to that arbitration.
12.5 Informal Dispute Resolution: You and 1898 Ventures agree that you must attempt to resolve disputes informally before you may file an arbitration, as set forth in this section (the "Informal Dispute Resolution Process"). If you have a dispute, first call our Customer Care at the number listed on your monthly bill statement. If our representative is unable to resolve your dispute in a timely manner, you agree to then notify us of the dispute by sending a written description of your claim to Cox Customer Care, ATTN: Corporate Escalation Team, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328, along with your address, so that we can attempt to resolve it with you. If we do not satisfactorily resolve your claim within 45 calendar days of receiving written notice to our Customer Care of your claim, then you may pursue the claim in arbitration, and if you do so, you must first notify us in writing of your intent to file for arbitration by sending a written notice of your intent to file for arbitration to us via U.S. mail to the Cox Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. We will notify you before it files for arbitration by sending you a written notice of our intent to file for arbitration to the last known address of record we have on file for you at least 45 calendar days prior to initiating arbitration or a small claims action. At any time during the Informal Dispute Resolution process, either you or 1898 Ventures may elect to have the Dispute resolved in small claims court in accordance with Section 12.7 below. This Informal Dispute Resolution is mandatory, and we both agree that it is an essential part of our arbitration agreement. We both agree that it is a material breach of this Dispute Resolution Provision to initiate an arbitration or small claims action without first engaging in the Informal Dispute Resolution Process.
12.6 Arbitration Procedures: You and 1898 Ventures agree that this Terms and the services we provide to you affects interstate commerce and that the Federal Arbitration Act and not state arbitration laws applies for all Disputes. All arbitrations shall be conducted by National Arbitration and Mediation ("NAM") under its Comprehensive Rules and Procedures, as modified by this Dispute Resolution Provision. NAM's rules are available on its website www.namadr.com or by calling 1-800-358-2550. You must file your own demand, which sets forth your own claim, and may not join in a claim filed by another person. If the arbitrator determines that claim is for $25,000 or less, you agree that it may be resolved based only on written submissions. For claims about $25,000, the arbitration will be held at a location in the county of your billing address then appearing in our records unless you and we both agree to (or the arbitrator orders) another location, a remote video hearing, or a telephonic or “desk” arbitration (i.e. an arbitration conducting solely on the basis of written submissions by the participants.) If there is a conflict between NAM's rules and this Dispute Resolution Provision, this Dispute Resolution Provision shall control. To initiate arbitration, you must send a letter requesting arbitration and describing your claims to us at ArbitrationOptOut@cox.com or via U.S. mail to our Legal Department, Attn: Litigation Counsel, 6205B Peachtree Dunwoody Road, Atlanta, GA 30328. You must also comply with the NAM's rules regarding initiation of arbitration. We will pay all filing fees and costs for commencement of arbitration, except the portion of such fees allocated to you under NAM’s fee schedule then in effect. We agree that fees imposed by NAM will be due at the time set forth under NAM’s rules, or thirty days from the date the invoice is issued, whichever is later. You will be responsible for your own attorneys' fees and costs unless otherwise determined by the arbitrator. We will not seek to recover our fees and costs from you in the arbitration, unless your claim has been determined to be frivolous or to have been brought for an improper purpose. If you are successful in the arbitration, we will pay your reasonable attorney's fees and costs. If you obtain an award from the arbitrator greater than our last written settlement offer, we will pay you $5,000 in addition to what you have been awarded in the arbitration. Any arbitrator’s decision, findings, or conclusions shall only apply to the individual arbitration and shall not have any res judicata, collateral estoppel or other preclusive effect.
12.7 Small Claims: Notwithstanding this agreement to arbitrate, you and 1898 Ventures may bring appropriate Disputes against each other in small claims court, if the Dispute falls within the small claims court's jurisdiction, or before the Federal Communications Commission, the relevant state public utilities commission, or any other federal, state, or local government agency authorized by law to hear the Dispute. A small claims court includes any court designated as small claims or any court of limited jurisdiction in which claims are only resolved on an individual basis. During the 45 day period following your submission of written notice of a Dispute to us, during which time you and 1898 Ventures attempt to informally resolve the Dispute, or within 30 days after you or 1898 Ventures has initiated an arbitration, either you or 1898 Ventures may elect to have the Dispute resolved in small claims court by sending written notice to the other party of this election. In the event there is any disagreement between you and 1898 Ventures concerning whether the Dispute is within the jurisdiction of the small claims court, only the small claims court may resolve that disagreement. If the small claims court determines that it lacks jurisdiction to hear the Dispute, then the Dispute may be submitted to arbitration in accordance with the terms of this Section 12. If the small claims court determines that it has jurisdiction over part of that dispute, then that part shall first be resolved in small claims court, and any remaining issues in the Dispute shall be resolved in accordance of with the terms of this Section 12. We both agree that it is a material breach of this Dispute Resolution Provision to initiate an arbitration when the other party has elected to have the Dispute resolved in small claims court, absent a determination by the small claims court that it does not have jurisdiction over the Dispute.
12.8 Exceptions to Arbitration.
(a) This Dispute Resolution Provision does not require arbitration of claims for public injunctive relief. To the extent that you have a Dispute that is subject to arbitration and also assert a claim for public injunctive relief that is required to be brought in court, the arbitrator shall first decide the merits of the Dispute. A court may then decide your claim for public injunctive relief de novo (without giving any law of the case, res judicata or collateral estoppel effect to the award or arbitration decision on the Dispute).
(b) This Dispute Resolution Provision shall not require arbitration of any claim concerning whether you have filed or participated in a prohibited Class Action or Mass Action, which shall be determined by a court of competent jurisdiction.
(c) This Dispute Resolution Provision shall not require arbitration of any claim that you or 1898 Ventures have breached this Dispute Resolution Provision, including but not limited to claims of material breach of Sections 12.3 [Class Action and Mass Action Waiver], 12.5 [Informal Dispute Resolution], or 12.7 [Small Claims], and we agree that any of the remedies set forth in section 12.9 [Remedies for Breach of Dispute Resolution Provision] may be imposed.
(d) Should we notify NAM and you in writing that it contends an arbitration(s) you filed breaches the Dispute Resolution Process, that you have participated or will be participating in a prohibited Class Action or Mass Action, or that you have otherwise materially breached Sections 12.3, 12.5, or 12.7, then NAM will stay the arbitration(s). In such event, either you may bring an action against us to compel it to arbitrate such Dispute(s) or we may bring an action for declaratory relief that it is not required to arbitrate such Dispute(s). Such actions must be brought in a court of competent jurisdiction located in the same judicial district as the address listed in the Informal Dispute Resolution Notice, the small claims court that we contend should resolve the Dispute(s), or the NAM office specified in demand for arbitration filed by you.
12.9 Remedies for Breach of Dispute Resolution Provision. As set forth above in Sections 12.3, 12.5, and 12.7, we agree that certain actions constitute a material breach of this Dispute Resolution Agreement. We agree that one of the essential purposes of this Dispute Resolution Provision is to provide for the prompt, efficient, and inexpensive resolution of disputes, and Sections 12.3, 12.5, and 12.7 further this purpose by ensuring disputes are resolved on an individual basis and by providing for alternative low-cost paths to resolving individual disputes. In the event a court determines that a breach of the Dispute Resolution Provision has occurred, then we agree on the following remedies, in addition to any other remedy ordered by the court:
(a) The court may enter an order permitting the dispute to be heard in court, rather than arbitration. Whether the Dispute proceeds to resolution in court or in arbitration, you agree that the Dispute will be resolved on an individual basis as set forth in Section 12.3.
(b) The court may enter an order that breaching party bear the non-breaching party’s costs, including but not limited to fees incurred in court or in arbitration.
12.10 Non-Severability: It is the intention of the Parties that the provisions of this Dispute Resolution Provision are mutually dependent and not severable. If any part of this Dispute Resolution Provision is determined to be unenforceable for any reason, then the entire Dispute Resolution Provision, except for the Jury Trial Waiver set forth in Section 12.11, shall be unenforceable.
12.11 Jury Trial Waiver: If for any reason this arbitration agreement is found to be unenforceable under Section 12.10 [Non-Severability], or if you opt out of this dispute resolution agreement, you and 1898 Ventures expressly and knowingly WAIVE THE RIGHT TO TRIAL BY JURY. This means that a Judge rather than a Jury will decide disputes between you and 1898 Ventures if, for any reason, the arbitration agreement is not enforced.
12.12 Survival: This dispute resolution provision survives the termination of your services with 1898 Ventures. If you bring a claim against us after termination of your services that is based in whole or in part on events or omissions that occurred while you were our customer, this dispute resolution provision shall apply.
13. GOVERNMENTAL NOTICES
The California Electronic Waste Recycling Act of 2003 requires recycling of certain electronics. For more Information on the applicability to the Device, see www.erecycle.org.
15. CONTACT US
We want you to be satisfied our products and services. Should you have any questions about or difficulties with the operation or performance of the Service, please contact: firstname.lastname@example.org
16. WIRELESS TERMS OF SERVICE
The following Wireless Terms of Service are incorporated into these Terms:
Customer acknowledges that the wireless telecommunication services (“Wireless Services”) required for the use of the Service are procured and/or provided by KORE Wireless, Inc. (“KORE”) and underlying wireless service carriers. Customer expressly understands and agrees that it has no contractual relationship whatsoever with the underlying wireless service carrier and that Customer is not a third party beneficiary of any agreement between KORE and any underlying wireless carrier. In addition, CUSTOMER EXPRESSLY UNDERSTANDS AND AGREES THAT THE UNDERLYING WIRELESS CARRIER(S) SHALL HAVE NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO CUSTOMER AND CUSTOMER HEREBY WAIVES ANY AND ALL CLAIMS OR DEMANDS THEREFOR.
Customer shall indemnify and hold harmless any person that has been authorized by KORE directly or indirectly to perform one or more of KORE’s obligations (a “KORE Service Provider”), their officers, employees, affiliates and agents from and against any claims, irrespective of the nature of the cause of the claims, alleging loss, costs, expenses, damages or injuries (including injuries resulting in death) arising out of or in connection with claims for
Customer expressly acknowledges and agrees that the use of any information available through the Wireless Services is at Customer’s own risk and responsibility. Customer acknowledges that except as required by law, it acquires no proprietary interest in the number assigned by KORE for its use.
CUSTOMER AGREES THAT, TO THE FULLEST EXTENT PROVIDED BY LAW:
ANY CONTROVERSY OR CLAIM RELATED TO THE WIRELESS SERVICES BETWEEN CUSTOMER AND KORE (OR AN UNDERLYING WIRELESS SERVICE CARRIER) WILL BE SETTLED BY INDEPENDENT ARBITRATION INVOLVING A NEUTRAL ARBITRATOR AND ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER WIRELESS INDUSTRY ARBITRATION (“WIA”) RULES, AS MODIFIED HEREIN. WIA RULES AND FEE INFORMATION ARE AVAILABLE FROM KORE OR THE AAA. ARBITRATION IS NOT A COURT PROCEEDING. THE RULES OF ARBITARATION DIFFER FROM THE RULES OF COURT. THERE IS NO JUDGE OR JURY IN AN ARBITRATION PROCEEDING;
EVEN IF APPLICABLE LAW PERMITS CLASS ACTIONS OR CLASS ARBITRATIONS, CUSTOMER WAIVES ANY RIGHT TO PURSUE ON A CLASS BASIS ANY SUCH CONTROVERSY OR CLAIM AGAINST KORE SERVICE PROVIDERS, OR ANY OF THEIR AFFILIATES OR PREDECESSORS IN INTEREST, AND KORE WAIVES ANY RIGHT TO PURSUE ON A CLASS BASIS ANY SUCH CONTROVERSY OR CLAIM AGAINST CUSTOMER. IF MULTIPLE CLAIMS ARE JOINED IN ONE ACTION, SOME OF WHICH WOULD NOT BE SUBJECT TO ARBITRATION, THE LATTER CLAIMS MUST BE STAYED UNTIL ANY CLAIMS IN THAT ACTION THAT ARE SUBJECT TO ARBITRATION HAVE BEEN RESOLVED. IF CLAIMS ARE ASSERTED AGAINST MULTIPLE PARTIES, SOME OF WHOM ARE NOT REQUIRED TO ARBITRATE, THE CLAIMS SUBJECT TO ARBITRATION MUST BE SEVERED; HOWEVER, END USER RETAINS THEIR RIGHT TO FILE A COMPLAINT WITH ANY REGULATORY AGENCY OR COMMISSION;
NO ARBITRATOR HAS AUTHORITY TO AWARD RELIEF IN EXCESS OF WHAT IS AGREED HEREIN, OR TO ORDER CONSOLIDATION OR CLASS ARBITRATION, EXCEPT THAT AN ARBITRATOR DECIDING A CLAIM ARISING OUT OF OR RELATING TO A PRIOR AGREEMENT MAY GRANT AS MUCH SUBSTANTIVE RELIEF ON A NON-CLASS BASIS AS SUCH PRIOR AGREEMENT WOULD PERMIT. IN ALL ARBITRATIONS, THE ARBITRATOR MUST GIVE EFFECT TO APPLICABLE STATUTES OF LIMITATIONS AND WILL DECIDE WHETHER AN ISSUE IS ARBITRABLE OR NOT. IN A LARGE/COMPLEX CASE ARBITRATION, THE ARBITRATORS MUST ALSO APPLY THE FEDERAL RULES OF EVIDENCE AND THE LOSING PARTY MAY HAVE THE AWARD REVIEWED BY A REVIEW PANEL CONSISTING OF THREE (3) ARBITRATORS;
IN THE EVENT THE FOREGOING ARBITRATION REQUIREMENTS DO NOT APPLY, CUSTOMER AND KORE EACH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY AND A JUDGE WILL DECIDE ANY AND ALL DISPUTES; AND
BY AGREEING TO THESE WIRELESS TERMS OF SERVICE, CUSTOMER AND KORE ARE EACH WAIVING IMPORTANT RIGHTS. CUSTOMER AGREES THAT KORE’S MAXIMUM LIABILITY TO CUSTOMER UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) IS LIMITED TO AN AMOUNT EQUAL TO THE PORTION OF THE CHARGES TO CUSTOMER FOR THE WIRELESS SERVICES RELATING TO THE PERIOD OF SERVICE DURING WHICH SUCH DAMAGES OCCUR. KORE’S MAXIMUM LIABILITY TO CUSTOMER UNDER ANY THEORY (INCLUDING BUT NOT LIMITED TO FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, OR PRODUCTS LIABILITY) IS LIMITED TO CHARGES DUE AND OWING BY CUSTOMER TO KORE, NEITHER CUSTOMER NOR KORE CAN RECOVER (A) PUNITIVE DAMAGES; (B) TREBLE, CONSEQUENTIAL, INDIRECT, OR SPECIAL DAMAGES; OR (C) ATTORNEY’S FEES. CUSTOMER AND KORE AGREE NOT TO MAKE, AND TO WAIVE TO THE FULLEST EXTENT ALLOWED BY LAW, ANY CLAIM FOR DAMAGES OTHER THAN DIRECT, COMPENSATORY DAMAGES AS LIMITED ABOVE. EXCEPT FOR CREDIT FROM KORE FOR CERTAIN DROPPED CALLS OR INTERRUPTED SERVICE, NEITHER KORE NOR ANY OTHER KORE SERVICE PROVIDER IS LIABLE TO CUSTOMER FOR DROPPED CALLS, INTERRUPTED SERVICE, OR PROBLEMS CAUSED BY OR CONTRIBUTED TO BY CUSTOMER, BY ANY THIRD PARTY, BY BUILDINGS, HILLS, TUNNELS, NETWORK CONGESTION, ATMOSPHERIC CONDITIONS OR OTHER THINGS KORE SERVICE PROVIDERS DO NOT CONTROL, OR BY ANY ACT OF GOD OR NATURAL DISASTER. IF ANOTHER WIRELESS CARRIER IS INVOLVED IN ANY PROBLEM (FOR EXAMPLE, BECAUSE OF ROAMING),
CUSTOMER ADDITIONALLY AGREES TO ANY LIMITATIONS OF LIABILITY THAT KORE SERVICE PROVIDER IMPOSES ON ITS CUSTOMERS.