Last updated: September 13, 2018
To stop the Adapter from collecting and transmitting Vehicle Data (defined below) to us, you must unplug the Adapter from your vehicle’s OBD port.
We collect information from and about you through the Site and the Adapter, including:
IT IS YOUR RESPONSIBILITY TO NOTIFY EVERYONE WHO USES OR OCCUPIES YOUR VEHICLE THAT VEHICLE AND LOCATION TRACKING FEATURES ARE ACTIVE AND ALLOW YOU AND US TO ACCESS INFORMATION ABOUT THE VEHICLE, INCLUDING ITS LOCATION.
We and third party service providers use information that we collect about you or that you provide to us, including any personal information, for the following purposes:
Yes. We may share or sell your personal information with:
We may also share or sell information with third parties in an aggregated or otherwise anonymized form that does not reasonably identify you.
Without an additional opt-in consent, we will not share your Location/Driving Data with auto dealerships, automakers, insurance companies, U.S. government institutions (including tolling services) and other third parties (“Third Parties Requiring Opt-In”). If you have opted-in to this sharing and would like to opt-out, please email us at firstname.lastname@example.org.
Stop collection of Vehicle Data. The Adapter will track Vehicle Data and transmit it to us once it is installed in a vehicle. To stop the Adapter from collecting and transmitting Vehicle Data to us you must unplug the Adapter from your vehicle’s OBD port.
Opt-Out of Sharing with Third Parties. With respect to Location/Driving Data, we will seek your opt-in consent before sharing that data with Third Parties Requiring Opt-In (see Section 4). We may share or sell your Other Personal Data and personal information with third parties for other purposes, including promotional purposes, which you may opt out of by contacting us at email@example.com.
Access to your Mobile Device Information. You may control the App’s access to your mobile device information through the “Settings” app on your mobile device. For instance, you can withdraw permission for the App to access your address book, location, photo stream, and camera.
How to control your communications preferences. You can stop receiving promotional email communications from us by clicking on the “unsubscribe link” provided in such communications. We attempt to promptly process all unsubscribe requests. You may not opt out of service-related communications (e.g., account verification, transactional communications, changes/updates to features of the Service, technical and security notices). Clicking on the “unsubscribe link” will not stop the Adapter from tracking Vehicle Data and transmitting it to us once it is installed in a vehicle. To stop the Adapter from collecting and transmitting Vehicle Data to us you must unplug the Adapter from your vehicle’s OBD port.
Modifying or deleting your information. If you have any questions about reviewing, modifying, or deleting your information, you can contact us directly at firstname.lastname@example.org. We may not be able to modify or delete your information in all circumstances.
Smart Device Data. To stop Automatic’s collection of Smart Device Data from your Smart Devices, you must disconnect the Smart Devices from the Service by contacting customer support at email@example.com. Depending on the Smart Device, you may be able to control the Smart Device Data we collect through the Smart Device settings.
Data storage and transfer: Your information collected through the Service may be stored and processed in countries throughout the world. We may transfer information, including personal information, to a country and jurisdiction that does not have the same data protection laws as your jurisdiction.
Data retention: We will retain your personal information for as long as reasonably necessary to provide the Service to you and to meet legal and accounting obligations. In addition, we may anonymize and/or aggregate personal information and store it in order to analyze aggregate metrics and trends.
Keeping your information safe: We care about the security of your information and employ physical, administrative, and technological safeguards designed to preserve the integrity and security of all information collected through our Service. No security system is impenetrable, and we do not guarantee the security of our systems. We are not responsible for the functionality or security measures of any Smart Devices or third party product or service you use or access.
We participate in interest-based advertising and use third party advertising companies to serve you targeted advertisements based on your online browsing history and your interests. We permit third party online advertising networks, social media companies and other third party services, to collect, information about your use of our Site over time so that they may play or display ads on our Site, on other websites, apps or services you may use, and on other devices you may use. Typically, though not always, the information used for interest-based advertising is collected through cookies or similar tracking technologies. We may share a common account identifier (such as an email address or user ID) or hashed data with our third party advertisers to help identify you across devices. We and third parties use this information to make the advertisements you see online more relevant to your interests, as well as to provide advertising-related services such as reporting, attribution, analytics and market research.
To learn more about interest-based advertising and how you may be able to opt-out of some of this advertising, you may wish to visit the Network Advertising Initiative’s online resources, at http://www.networkadvertising.org/choices, and/or the Digital Advertising Alliance’s resources at www.aboutads.info/choices. You may also be able to set your browser to delete or notify you of cookies by actively managing the settings on your browser or mobile device. Some advertising opt-outs may not be effective unless your browser is set to accept cookies. Furthermore, if you use a different device, change browsers or delete the opt-out cookies, you may need to perform the opt-out task again, because we do track your uses of the Site across devices. You may also be able to limit certain interest-based mobile advertising through the settings on your mobile device by selecting “limit ad tracking” (iOS) or “opt-out of interest based ads” (Android).
Google Analytics and Advertising. We may also utilize certain forms of display advertising and other advanced features through Google Analytics, such as Remarketing with Google Analytics, Google Display Network Impression Reporting, and Google Analytics Demographics and Interest Reporting. These features enable us to use first-party cookies (such as the Google Analytics cookie) and third-party cookies (such as the DoubleClick advertising cookie) or other third-party cookies together to inform, optimize, and display ads based on your past visits to the Site. You may control your advertising preferences or opt-out of certain Google advertising products by visiting the Google Ads Preferences Manager, currently available at https://google.com/ads/preferences, or by vising NAI’s online resources at http://www.networkadvertising.org/choices.
We do not knowingly collect or solicit any information from anyone under the age of 13 on the Site or through the Service. In the event that we learn that we have inadvertently collected personal information from a child under age 13, we will delete that information as quickly as possible. If you believe that we might have any information from a child under 13, please contact us at firstname.lastname@example.org.
The Service may contain links to and from third-party websites of advertisers, and social media sites and our users may post links to third-party websites. If you follow a link to any of these websites, please note that these websites have their own privacy policies and that we do not accept any responsibility or liability for their policies. We strongly recommend that you read their privacy policies and terms and conditions of use to understand how they collect, use, and share information. We are not responsible for the privacy practices or the content on the websites of third-party sites.
Last updated: September 13, 2018Welcome to www.automatic.com/connectedcarassistant and the websites and services of Automatic Labs Inc. (“Company,” “Automatic,” “we,” “us,” or “our”). This Customer Agreement (this “Agreement”) explains the terms by which you may access and use: (i) www.automatic.com/connectedcarassistant and any other website on which we post this Agreement (“Website”); (ii) Automatic hardware and devices, including the Automatic removable adapter (“Adapter”), and the software embedded in the Adapter (“Firmware,” and together with the Adapter, the “Product”); and (iii) the Automatic mobile application and software for use in connection with the Product (the “App”) ((i) – (iii) collectively, together with any related software, hardware, documentation and hosted services, the “Service”).
IF YOU DO NOT CANCEL YOUR SUBSCRIPTION PLAN WITHIN SEVEN (7) DAYS OF THE START OF YOUR SUBSCRIPTION, THIS AGREEMENT WILL BE LEGALLY BINDING ON YOU. YOUR SUBSCRIPTION PLAN WILL BE DEEMED TO START ON THE DAY YOU ARE ABLE TO USE OUR SERVICE OR RECEIVE A COPY OF THIS AGREEMENT, WHICHEVER IS SOONER. TO CANCEL YOUR SUBSCRIPTION PLAN PLEASE FOLLOW THE INSTRUCTIONS IN SECTION 8 BELOW.
Trial Subscriptions to our Service will automatically stop at the end of your trial period, unless you purchased a paid Subscription.
If you purchase a Subscription Plan, it will continue under this Agreement for the length of the Subscription Plan you’ve selected, and will automatically renew for additional periods of the same plan length, or for the length described in the offer you select, at the rates in effect at that time, unless you cancel it, or Automatic suspends, discontinues, or terminates it, as provided below.
Any dispute between us may be resolved by binding arbitration on an individual basis. By agreeing to this Agreement and binding arbitration you are waiving your right to go to court, including the right to a jury.
NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM AUTOMATIC OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT. IN PARTICULAR, ALTHOUGH AUTOMATIC ENDEAVORS TO ENSURE SUCCESSFUL DETECTION OF MOST CRASHES, NOT ALL CRASHES MAY BE DETECTED AND AUTOMATIC DOES NOT GUARANTEE THAT THE SERVICE OR ADAPTER WILL DETECT AND/OR REPORT ALL VEHICLE CRASHES OR THAT EMERGENCY ASSISTANCE WILL BE PROVIDED IN THE EVENT OF ANY CRASH. AUTOMATIC IS NOT LIABLE FOR THE ACTIONS OR INACTIONS OF THE USER, OR OF ANY EMERGENCY RESPONDERS OR OTHER SERVICE PROVIDERS WE MAY CONTACT ON YOUR BEHALF, OR FOR THE SERVICE’S INABILITY TO CONTACT ANY EMERGENCY RESPONDER OR OTHER SERVICE PROVIDER IN ANY PARTICULAR SITUATION. FURTHER, THE SERVICE DOES NOT GUARANTEE THAT USE OF THE ADAPTER, SOFTWARE OR SERVICES WILL RESULT IN ANY GAS SAVINGS OR EFFICIENCIES, OR ANY OTHER PARTICULAR RESULTS OR BENEFITS. THE SERVICE INCLUDES LOCATION TRACKING FEATURES BUT IT IS NOT INTENDED AND SHOULD NOT BE USED AS A STOLEN VEHICLE LOCATION AND RECOVERY SERVICE. YOU ARE SOLELY RESPONSIBLE FOR SAFE VEHICLE OPERATION AND PROPER VEHICLE MAINTENANCE AND YOU SHOULD ALWAYS OBTAIN PROFESSIONAL ASSISTANCE FROM A VEHICLE SPECIALIST FOR DIAGNOSIS AND REPAIR OF ANY ERRORS OR OTHER PROBLEMS WITH YOUR VEHICLE. THE SERVICE AND THE ADAPTER DO NOT WORK OUTSIDE OF THE U.S.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE COMPANY SERVICE OR ANY LINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
IF YOU ACCESS OR USE THE SERVICE ON BEHALF OF A COMPANY, PRINCIPAL OR OTHER ENTITY (WHETHER A SINGLE ENTITY OR MULTIPLE ENTITIES), YOU REPRESENT AND WARRANT THAT YOU HAVE AUTHORITY TO BIND EACH SUCH ENTITY AND ITS AFFILIATES TO THIS AGREEMENT AND THAT THIS AGREEMENT IS FULLY BINDING UPON SUCH ENTITY AND ITS AFFILIATES. IN SUCH CASE, THE TERM “YOU” AND “YOUR” WILL REFER TO BOTH YOU INDIVIDUALLY AND SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE AUTHORITY, OR IF YOU DO NOT AGREE WITH THIS AGREEMENT, YOU MAY NOT ACCESS OR USE THE SERVICE. YOU SHOULD READ AND KEEP A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
Secret or nonconsensual use of the Service to collect or track information of others is prohibited. IT IS YOUR RESPONSIBILITY TO NOTIFY EVERYONE WHO USES OR OCCUPIES YOUR VEHICLE THAT VEHICLE AND LOCATION TRACKING FEATURES ARE ACTIVE AND ALLOW YOU AND US TO ACCESS INFORMATION ABOUT THE VEHICLE, INCLUDING ITS LOCATION.
By Email: To contact us by email, email@example.com.
1.1 Subject to your compliance with this Agreement in all respects, Company grants you a non-exclusive, revocable, nonsublicensable, nontransferable, limited license to access and use the Service for your personal, non-commercial use only and as permitted by the features of the Service, and for no other purpose. Company hereby grants you a non-exclusive, revocable, nonsublicensable, nontransferable, limited license to use a compiled code copy of the Software (defined below) for one Service account on the Product owned or leased solely by you, for your personal use.
1.2 You may not download, copy, install, or use any portion of the Service for any other purpose without Company’s prior written consent. No rights or licenses are granted except as expressly set forth in this Agreement. All Firmware, and all software contained in or provided in connection with the Product, App and Service (collectively, “Software”), is protected by U.S. copyright law and international treaties. Third-party code incorporated in the Software may be covered by an applicable open source or third-party license or licenses authorizing use of such code, and by using the Product and Services you agree to be bound by the terms thereof. Nothing in this Agreement limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable end user license for such open source software. All Software and any related documentation are “commercial items” as that term is defined in the United Stated Federal Acquisition Regulations (“FAR”) 2.101, consisting of “commercial computer software” and “commercial computer software documentation,” respectively, as such terms are used in FAR 12.212 and DFARS 227.7202. The Software is licensed to you, not sold.
1.3 You shall not: (i) modify, disassemble, decompile or reverse engineer the Software; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Software to any third party or use the Software to provide time sharing or similar services for any third party; (iii) make any copies of the Software; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Software, including features that prevent or restrict use or copying of any content accessible through the Software, or features that enforce limitations on use of the Software; or (v) delete the copyright and other proprietary rights notices on the Software. You acknowledge that Company may from time to time issue upgraded versions of the Software, and may automatically electronically upgrade the version of the Software that you are using on your Product. You consent to such automatic upgrading on your Product, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Notwithstanding the foregoing, Company has no responsibility to provide maintenance or support services with respect to any Software.
1.4 Your Automatic account gives you access to the Service and functionality that we may establish and maintain from time to time and in our sole discretion. You may never use another user’s account without permission. You are solely and fully responsible and liable to Company for the activity that occurs on your account, including the acts or omissions of each user on your account (such as your family members, employees, contractors and service providers) or any other person accessing or using the Service through or in connection with your account. When creating your account, you must provide accurate and complete information, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Company immediately of any breach of security or unauthorized use of your account. Company will not be liable for any losses caused by any unauthorized use of your account. By providing Company your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your account settings. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
1.5 We may offer you the chance to enroll to receive SMS/text messages from us. You may enroll to receive text messages about account-related news and alerts and/or offers for Company products and services. By enrolling in our SMS/text messaging service, you agree to receive text messages from Company to your mobile phone number provided, and you certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such text messages. You acknowledge and agree that the text messages may be sent using an automatic telephone dialing system and that standard message and data rates may apply. Consent to receive SMS/text messages from us is not required as a condition of purchase of a subscription plan or other activity on your account. To unsubscribe from text messages at any time, reply STOP to the Company phone number sending you to a text message. You consent that following such a request to unsubscribe, you may receive one final text message from Company confirming your request. For help, contact us at firstname.lastname@example.org.
1.6 You agree not to engage, or to assist or authorize any third party to engage, in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including by any automated or non-automated “scraping” on the Website; (ii) using any automated system, including “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to our servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Company grants the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) using the Service for transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or using any personally identifiable information, including account names, from the Service; (viii) using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; (xii) bypassing the measures we may use to prevent or restrict access to the Service, including features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein; (xiii) copying, modifying or creating derivative works based on the Service; (xiv) distributing, transferring, sublicensing, leasing, lending or renting the Service to any third party; (xv) reverse engineering, decompiling or disassembling the software underlying the Service; (xvi) making the functionality of the Service available to multiple users through any means; (xvii) using our Services in connection with vehicles with modified engine or electronic control systems, or vehicles of any make, model or year that we do not support, as set forth on the Website; or (xviii) use the Service in any way that may distract or prevent you from operating your motor vehicle or complying with traffic or safety laws or regulations.
1.7 To fully enjoy all of the Service features available with a paid subscription, you MUST download the App to your mobile device, create a service account on the App, and enroll in a paid subscription plan. You still will enjoy some of the Service’s benefits if you do not do the above, as described on our WEBSite OR OTHERWISE PROVIDED IN WRITING. IN ORDER FOR THE SERVICE TO FUNCTION (INCLUDING EMERGENCY NOTIFICATION SERVICES), THE ADAPTER MUST BE PROPERLY INSTALLED IN YOUR VEHICLE. THE MOBILE DEVICE and adapter MUST ALSO HAVE ADEQUATE NETWORK AND DATA SERVICE IN THE LOCATION WHERE NEEDED. Your vehicle must have a working electrical system for the Adapter and the Service to operate properly. The Adapter will not work without adequate electrical and battery power, and it may not work at all if you attempt to modify it or add any equipment or software in or to your vehicle that is not expressly authorized by us or is otherwise incompatible with the Adapter or Service including other aftermarket devices or products. The reception of the Service may vary in different vehicles depending on the electrical systems of the vehicle and the version of the Adapter or software in the vehicle. The location of your Vehicle and your MoBile Device, particularly in remote or enclosed areas, may affect the availability and quality of the Service. The Service cannot work unless your Vehicle AND/OR MOBILE DEVICE are in a place where YOUR Wireless CARRIER or its roaming partners has coverage, network capacity, and reception when the Service is needed. The aspects of the Service that involve location information about your Vehicle also cannot work unless LTE Connection signals are unobstructed, available in that location, and compatible with the ADAPTER AND SERVICE. The Service is currently available only in the United States (excluding territories of the United States). HOWEVER, the service may not be available EVERYWHERE, PARTICULARLY IN REMOTE OR ENCLOSED AREAS, OR ON ALL vehicles, OR AT ALL TIMES.
1.8 You have full responsibility and assume all risks related to the use of the Service in your Vehicle. 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. You are responsible for following all applicable laws, rules, and regulations, including requirements of relevant government regulatory bodies, applicable to the use of the Service. You are responsible for not only your own compliance with this Agreement but also for the compliance of all occupants of your Vehicle and additional users of your account and users of your Vehicle, whether or not authorized by you. You agree to make all other drivers, passengers, or guests of your Vehicle aware of this Agreement and the services that are available under it. You are solely responsible for the use of the Service for your Vehicle, even if you are not the one using the Service and even if you claim later that another person's use was not authorized.
2.1 To use the App you must have a mobile device that is compatible with the App. We do not warrant that the App will be compatible with your mobile device. Company hereby grants you a non-exclusive, non-transferable, non-sublicensable, revocable license to use a compiled code copy of the App for one Service account on mobile devices owned or leased solely by you, for your personal use. You shall not: (i) modify, disassemble, decompile or reverse engineer the App; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the App to any third party or use the App to provide time sharing or similar services for any third party; (iii) make any copies of the App; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the App, including features that prevent or restrict use or copying of any content accessible through the App, or features that enforce limitations on use of the App; or (v) delete the copyright and other proprietary rights notices on the App. You acknowledge that Company may from time to time issue upgraded versions of the App, and may automatically electronically upgrade the version of the App that you are using on your mobile device. You consent to such automatic upgrading on your mobile device, and agree that the terms and conditions of this Agreement will apply to all such upgrades. Third-party code incorporated in the App may be covered by an applicable open source or third-party license or licenses authorizing use of such code. The foregoing license grant is not a sale of the App or any copy thereof, and Company or its third party suppliers retain all right, title, and interest in the App (and any copy thereof). Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Company reserves all rights not expressly granted under this Agreement.
2.2 If the App is being acquired on behalf of the United States Government, then the following provision applies: Use, duplication, or disclosure of the App by the U.S. Government is subject to restrictions set forth in this Agreement and as provided in DFARS 227.7202-1(a) and 227.7202-3(a) (1995), DFARS 252.227-7013(c)(1)(ii) (OCT 1988), FAR 12.212(a) (1995), FAR 52.227-19, or FAR 52.227-14 (ALT III), as applicable. The App originates in the United States, and is subject to United States export laws and regulations. The App may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the App may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to use of the App and the Service.
2.3 The following applies to the App you acquire from the iTunes Store (“iTunes-Sourced Software”): You acknowledge and agree that this Agreement is solely between you and Company, not Apple Inc. (“Apple”), and that Apple has no responsibility for the iTunes-Sourced Software or content thereof. Your use of the iTunes-Sourced Software must comply with the iTunes Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the iTunes-Sourced Software. In the event of any failure of the iTunes-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the iTunes-Sourced Software to you, if any; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the iTunes-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by this Agreement and any law applicable to Company as provider of the software. You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the iTunes-Sourced Software or your possession and/or use of the iTunes-Sourced Software, including, but not limited to: (i) product liability claims; (ii) any claim that the iTunes-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation; and all such claims are governed solely by this Agreement and any law applicable to Company as provider of the software. You acknowledge that, in the event of any third party claim that the iTunes-Sourced Software or your possession and use of that iTunes-Sourced Software infringes that third party’s intellectual property rights, Company, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by this Agreement. You and Company acknowledge and agree that Apple, and Apple’s subsidiaries, are third party beneficiaries of this Agreement as relates to your license of the iTunes-Sourced Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement as relates to your license of the iTunes-Sourced Software against you as a third party beneficiary thereof.
2.4 The following applies to the App you acquire from the Google Play Store (“Google-Sourced Software”): (i) you acknowledge that this Agreement is between you and Company only, and not with Google, Inc. (“Google”); (ii) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (iii) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (iv) Company, and not Google, is solely responsible for its Google-Sourced Software; (v) Google has no obligation or liability to you with respect to Google-Sourced Software or this Agreement; and (vi) you acknowledge and agree that Google is a third-party beneficiary to this Agreement as it relates to Company’s Google-Sourced Software.
3.1 The Service collects and records content that you provide to the Service and that we collect while providing the Service, including (a) your personal information, such as your name, email address, phone number, address, payment information, vehicle identification number (“VIN”), and emergency contact information, comments, questions, commands, and other information and content you provide to Automatic (collectively, “User Content”), and (b) information collected from the Adapter, such as real-time geolocation of the vehicle (latitude and longitude), trip durations and routes, parking locations of your vehicle, fuel cost/volume, fuel economy, path taken, trip start/end locations and times, speed, braking, hard acceleration, fuel consumption, ignition status (on/off), VIN & characteristics (such as engine size and power), codes and metrics describing engine/emissions issues, battery health, fuel level, and other metrics related to diagnostics and the operation and performance of the vehicle (“Vehicle Data,” and together with User Content and any and all content or materials (including personal data or information) that is provided or recorded or made available on or through any functionality of the Service and any and all information recorded by your actions on the Service, “User Data”).3.2 Company has the right (but not the obligation) in its sole discretion to remove any User Data on the Service. You agree not to post or make available, and shall be solely liable for, User Data that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person, or to any animal; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that may, in our view, be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including the disclosure of another party’s trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; (viii) contains any information or content that you know is not correct and current; or (ix) violates any school or other applicable policy, including those related to cheating or ethics. You agree that any User Data that you post does not and will not violate third-party rights of any kind, including any Intellectual Property Rights (as defined below) or rights of privacy. Company reserves the right, but is not obligated, to reject and/or remove any User Data that Company believes, in its sole discretion, violates these provisions.
The roadside assistance service feature of the Service is provided by Company’s third party service providers, and is subject to the terms and conditions currently available at http://www.crosscountrymotorclub.com/automatic, as may be updated by Company from time to time. We will provide your User Data to our third party service providers in order to provide the roadside assistance service feature. Our attempt through the Service to locate your vehicle is subject to all limitations of service described elsewhere in this Agreement.
5.1 Subscription Plans. We may offer plans that allow you to use certain aspects of the Service on a recurring subscription basis (a “Subscription Plan”). Subscription Plans may set allotments for use of designated Service aspects. Use of Service aspects in excess of a Subscription Plan’s designated allotment may result in additional fees, as specified in the Subscription Plan.
5.2 Billing Policies. Subscription Plans may be offered for a fee or other charge for a set period of time of Service use (e.g., monthly, or annually) (a “Subscription Period”). If you elect to purchase a paid Subscription Plan, you agree to the pricing and payment terms provided to you in writing and herein as we may update them from time to time. Company may change Subscription Plans by offering new services for additional fees and charges, and adding or amending fees and charges for existing Subscription Plans/services, at any time in its sole discretion. Any change to a Subscription Plan’s pricing or payment terms shall become effective in the billing cycle following notice of such change to you as provided in this Agreement.
5.3 Recurring Payments. If you enroll in a Subscription Plan, you agree to a recurring payment program, which will continue for the agreed-upon subscription period and automatically renew for additional subsequent periods, at the rates in effect at that time, unless and until you cancel the Subscription Plan in accordance with this Agreement or Automatic suspends, discontinues, or terminates them. Automatic may offer a number of Subscription Plans for Service with different conditions and limitations. Any materially different terms from those described in this Agreement will be disclosed at your signup or in other communications made available to you. We automatically charge the payment method associated with your Company account (“Payment Method”) on a recurring basis (depending on the subscription term you choose). Day one of your billing cycle is tied to the date you activate your Subscription Plan by pairing them to Services. You acknowledge that the amount billed may vary due to promotional offers, changes in your Subscription Plan and changes in applicable taxes, and you authorize us to charge your payment method for the corresponding amounts. You further acknowledge that the amount of the recurring charge may change if the applicable tax rates change or if you are notified that there will be an increase in the applicable subscription fees. We will not be responsible for your failure to receive notice of an increase in subscription fees. You must promptly notify us of a change in any of your contact information.
5.4 Payment Information; Taxes. All information that you provide in connection with a purchase, Subscription Plan, or other monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase, Subscription Plan, or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases.
5.5 Trial Subscription. We may offer you a free trial subscription to the Service (“Trial Subscription”). Specific terms and conditions for your Trial Subscription will be stated in the material describing the particular Trial Subscription or during your sign-up. If you have enrolled in a paid Subscription Plan, once your Trial Subscription ends, we will begin billing your Payment Method for your periodic subscription fees (plus any applicable taxes), unless you cancel prior to the end of your Trial Subscription period. You may be asked to set up a valid Payment Method during your sign-up.
You hereby represent and warrant that: (a) you are at least eighteen (18) years old, and you have the legal capacity to enter into contracts; (b) your User Data and use of the Service will comply at all times with all applicable laws and regulations, including privacy and data protection laws; (c) you have all necessary rights, licenses and consents to provide, receive, access and/or use the User Data and any other content you provide, receive, access and/or use through or in connection with the Service; (d) you have obtained and are solely responsible for obtaining all consents as may be required by law to transmit or provide any User Data relating to third parties, and you are responsible for clearing all rights and paying all licensing fees and other costs and expenses arising in connection with your User Data; (e) your User Data and Company’s use or distribution thereof as contemplated by this Agreement and the Service will not violate any law or infringe or misappropriate any rights of any third party, including any intellectual property rights and privacy rights; (f) Company may exercise the rights to your User Data granted under this Agreement without liability for payment of any third party fees, residuals, payments, or royalties; and (g) your User Data and other information that you provide to us is truthful and accurate.
7.1 Except for your User Content, the Service and all materials therein or transferred thereby, including software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, music, and User Content belonging to other Users (collectively, the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is strictly prohibited. For the purposes of this Agreement, “Intellectual Property Rights” means all patent rights, copyright rights, mask work rights, moral rights, rights of publicity, trademark, trade dress and service mark rights, goodwill, trade secret rights and other intellectual property rights as may now exist or hereafter come into existence, and all applications therefore and registrations, renewals and extensions thereof, under the laws of any state, country, territory or other jurisdiction.
7.2 You may choose to or we may invite you to submit comments or ideas about the Service, including about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
7.3 You acknowledge that you do not own the account you use to access the Service. You agree that Company has the absolute right to manage, regulate, control, modify and/or eliminate your account and related data as it sees fit in its sole discretion, in any general or specific case, and that Company will have no liability to you based on its exercise of such right. All data on Company’s servers are subject to deletion, alteration or transfer. NOTWITHSTANDING ANY VALUE ATTRIBUTED TO SUCH DATA BY YOU OR ANY THIRD PARTY, YOU UNDERSTAND AND AGREE THAT ANY DATA, ACCOUNT HISTORY AND ACCOUNT CONTENT RESIDING ON COMPANY’S SERVERS, MAY BE DELETED, ALTERED, MOVED OR TRANSFERRED AT ANY TIME FOR ANY REASON IN COMPANY’S SOLE DISCRETION, WITH OR WITHOUT NOTICE AND WITH NO LIABILITY OF ANY KIND. COMPANY DOES NOT PROVIDE OR GUARANTEE, AND EXPRESSLY DISCLAIMS, ANY VALUE, CASH OR OTHERWISE, ATTRIBUTED TO ANY DATA RESIDING ON COMPANY’S SERVERS.
You have the right to terminate your account at any time in accordance with the procedures set forth on the Website. If you have a paid Subscription Plan, you may cancel your subscription by emailing email@example.com, or by clicking Support on the App, subject to this Section 8. IF YOU DO NOT CANCEL YOUR SUBSCRIPTION PLAN WITHIN SEVEN (7) DAYS OF THE START OF YOUR SUBSCRIPTION, THIS AGREEMENT WILL BE LEGALLY BINDING ON YOU.
Except as otherwise expressly set forth in this Agreement, you are not entitled to a refund for any Subscription Plan that you cancel. If we terminate your Subscription Plan for reasons beyond your control, we will grant you a prorated refund for the remaining unused portion of your Subscription Period. You may notify us of your intent to cancel at any time, but the cancellation will become effective at the end of your current billing period, unless otherwise set forth herein. Cancellations are effective as of the following billing cycle. You will continue to have the same access and benefits of your product for the remainder of the current billing period. You will be responsible for all charges (including any applicable taxes and other charges) incurred with respect to any orders processed prior to your cancellation of your Subscription Plan.
Automatic reserves the right to (i) modify or discontinue, temporarily or permanently, the Service (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any of your User Data in the Service for any reason, including if Automatic believes that you have violated this Agreement. Automatic shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service. Automatic will attempt to contact you to warn you prior to suspension or termination of your account by Automatic. All of your User Data on the Service (if any) may be permanently deleted by Automatic upon any termination of your account in its sole discretion. Upon any termination or expiration of this Agreement all provisions will survive except your right to access and use the Service.
You represent, warrant and covenant that you will not sell or transfer the Adapter to another user and that you will not sell or transfer title to your vehicle or return a leased vehicle to its owner without first notifying us at firstname.lastname@example.org. If you want to transfer the Adapter from a registered vehicle to another vehicle that you own or lease or to a new vehicle you acquire, you must notify us prior to such transfer so that we can confirm whether the Adapter will function properly with that vehicle. After we confirm compatibility with the Adapter and agree to the transfer, you may transfer the Adapter to the new vehicle. We reserve the right to reject the transfer of an Adapter to a vehicle that you have previously registered with us, in which case we will terminate your account as described above.
The Adapter is warranted to be free from defects in materials or workmanship under normal use (a) for new Adapter, eighteen (18) months from the date of purchase of the Adapter (or purchase or lease of the vehicle containing the Adapter) by the original end user consumer, and (b) for refurbished Adapter, ninety (90) days after the date the refurbished Adapter is shipped by Automatic to you or the remainder of the new Adapter Warranty Period, whichever is longer (as applicable, the “Warranty Period”). Within the Warranty Period, Automatic will, at its sole option, and as Automatic’s sole liability and your exclusive remedy, (a) repair the Adapter with new or refurbished parts, (b) replace the Adapter with a reasonably available equivalent new or refurbished Adapter, or (c) refund the actual purchase price of the Adapter less any rebates and discounts. Such repairs or replacement will be made at no charge to you for parts, labor or shipping. All Adapters and parts that are replaced become the property of Automatic.
This limited warranty extends only to Adapter purchased from Automatic or a third party authorized in writing by Automatic. This limited warranty does not apply to: (i) cosmetic damage, such as scratches, nicks and dents; (ii) consumable parts, such as batteries, unless Adapter damage has occurred due to a defect in materials or workmanship of the Adapter; (iii) damage caused by abnormal physical or electrical stress, negligence, accident, abuse, misuse, water, flood, fire, or other acts of nature or external causes; (iv) damage caused by service or repair performed by anyone who is not an authorized service provider of Automatic; (v) damage to Adapter that has been modified or altered without the written permission of Automatic; (vi) Adapter that has not been installed, operated, or maintained in accordance with instructions supplied by Automatic; or (vii) Adapter that was supplied or licensed for beta, evaluation, testing or demonstration purposes for which Automatic does not charge a purchase price or fee. In addition, Automatic reserves the right to refuse warranty claims for any Adapter that is obtained and/or used in contravention of the laws of any country.
To make a claim under the Limited Warranty and to process your repair, replacement or refund, please email our customer service department at email@example.com with your name, contact information and the serial number on your Adapter, as well as a purchase receipt.
THE LIMITED WARRANTY SET FORTH IN THIS SECTION 9 IS THE ONLY EXPRESS WARRANTY COMPANY PROVIDES FOR THE SERVICE, AND THE REMEDY SET FORTH IN THIS SECTION 9 IS YOUR SOLE REMEDY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER STATUTORY OR IMPLIED, ARISING FROM COURSE OF CONDUCT OR OTHERWISE, REGARDING THE SERVICE, EXCEPT THAT ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT ARE LIMITED IN DURATION TO THE PERIOD OF THE EXPRESS WARRANTY ABOVE.
EXCEPT AS OTHERWISE SET FORTH IN THIS SECTION 9, THE SERVICE (INCLUDING THE ADAPTER): IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT; AND YOUR USE THEREOF IS AT YOUR OWN RISK. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT ACCESSED THROUGH THE SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
Certain aspects of the Service are provided through Third party service providers with whom we may contract from time to time. IF THE PROVIDER IS A THIRD PARTY, THEN YOU UNDERSTAND THAT THE PRODUCT IS PROVIDED BY THE THIRD PARTY PROVIDER AND THAT COMPANY DOES NOT PROVIDE ANY WARRANTY WHATSOEVER (WHETHER MENTIONED IN THIS SECTION OR OTHERWISE) RELATED TO SUCH SERVICE OR INFORMATION PROVIDED BY OR THROUGH SUCH THIRD PARTY PROVIDER.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW EXCLUSIONS AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
THE SERVICE IS CONTROLLED AND OPERATED FROM FACILITIES IN THE UNITED STATES. COMPANY MAKES NO REPRESENTATIONS THAT THE SERVICE IS APPROPRIATE OR AVAILABLE FOR USE IN ANY OTHER LOCATIONS. YOU MAY NOT ACCESS OR USE THE SERVICE FROM OUTSIDE OF THE UNITED STATES. YOU MAY NOT USE THE SERVICE IF YOU ARE A RESIDENT OF A COUNTRY EMBARGOED BY THE UNITED STATES, OR ARE A FOREIGN PERSON OR ENTITY BLOCKED OR DENIED BY THE UNITED STATES GOVERNMENT. UNLESS OTHERWISE EXPLICITLY STATED, ALL MATERIALS FOUND ON THE SERVICE ARE SOLELY DIRECTED TO INDIVIDUALS LOCATED IN THE UNITED STATES.
No Company employee or representative or its affiliates or any third party is authorized to make any modification, extension or addition to this Section 9 or any part of this Agreement. If any term of this Section 9 is held to be illegal or unenforceable, the remaining terms of this Section 9 will remain in full force and effect.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE IN ACCORDANCE WITH THIS AGREEMENT; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) USER DATA OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER IN THE THREE (3) MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and its and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs and expenses (including attorney’s fees and costs) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of this Agreement, including your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) any claim or damages that arise as a result of any of your User Data or any that is submitted via your account; or (vi) any other party’s access and use of the Service through your account.
The Service may contain links to third-party websites, advertisers, services, special offers, or other events or activities that are not owned or controlled by Company. Company does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third party website or service from the Service, you do so at your own risk, and you understand that this Agreement and the Privacy Policies do not apply to your use of such websites or services. You expressly relieve Company from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Company shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
You shall comply with all export laws and restrictions and regulations of the Department of Commerce, the United States Department of Treasury Office of Foreign Assets Control, or other United States or foreign agency or authority, and you shall not export, or allow the export or re-export of the Service in violation of any such restrictions, laws or regulations. By using the Service, you agree to the foregoing and represent and warrant that you are not located in, under the control of, or a national or resident of any restricted country.
PLEASE READ THE PROVISIONS OF THIS SECTION CAREFULLY. IT PROVIDES THAT ANY DISPUTE MAY BE RESOLVED BY BINDING ARBITRATION. THIS MEANS THAT YOU ARE HEREBY WAIVING THE RIGHT TO GO TO COURT, INCLUDING THE RIGHT TO A JURY. IN ARBITRATION, A DISPUTE IS RESOLVED BY AN ARBITRATOR, OR A PANEL OF ARBITRATORS, INSTEAD OF A JUDGE OR JURY. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT OR OPPORTUNITY TO LITIGATE DISPUTES THROUGH A COURT AND TO HAVE A JUDGE OR JURY DECIDE THEIR CASE, BUT THEY CHOOSE TO HAVE ANY DISPUTES RESOLVED THROUGH ARBITRATION.
Any legal or equitable claim relating to the Service, your Subscription Plan or this Agreement (a “Claim”), will be resolved as follows:
13.1 Informal Claim Resolution. To initiate an informal resolution to a Claim, you must send a notice by first class United States mail to Sirius XM Radio Inc., 1290 Avenue of the Americas, 11th Floor, New York, NY 10104, Attention: CRM. Neither of us may start a formal proceeding (except for Claims described in subsection 3 below) for at least sixty (60) days after one of us notifies the other of a Claim in writing. If we initiate a Claim, we will send our notice to the billing address on file with us.
13.2 Formal Resolution.If we cannot resolve a Claim informally, including past, present, and future Claims and disputes, and including any dispute as to the validity or applicability of this arbitration clause, then these Claims shall be resolved, upon election by either party, exclusively and finally by binding arbitration.
The party initiating arbitration must follow the rules and procedures of the American Arbitration Association (“AAA”) in effect at the time the Claim is filed, and the parties agree that the arbitration shall be administered by the AAA. You may obtain copies of the current rules, forms and instructions for initiating an arbitration by contacting:
American Arbitration Association
1633 Broadway, 10th Floor
New York, New York 10019
Web site: www.adr.org
This arbitration agreement is made pursuant to a transaction involving interstate commerce and shall be governed by the Federal Arbitration Act (“FAA”), and not by any state law concerning arbitration.
13.3 Exceptions. Notwithstanding the foregoing, any dispute involving an actual or alleged violation of the Communications Act of 1934, 47 U.S.C. §605, the Electronic Communications Privacy Act, 18 U.S.C. §§2510-2521, or a violation of our intellectual property rights or data privacy and security rights may be decided only by a court of competent jurisdiction.
13.4 Small Claims. Instead of proceeding to arbitration, either you or we have the option to pursue a Claim in small claims court (or the equivalent) so long as the Claim: 1) remains in that court, 2) is made solely on our behalf (if brought by us) or on your behalf, and 3) does not seek damages or other monetary relief in excess of $5,000. However, if that Claim is transferred or appealed to a different court, we reserve our right to elect arbitration.
13.5 Cost Sharing.Whoever files the arbitration pays the initial filing fee. If we file, we pay; if you file, you pay. If you have paid the initial filing fee and you prevail, we will reimburse you for that fee. If there is a hearing, we will pay any fees of the arbitrator and arbitration firm for the first day of that hearing. All other fees will be allocated as provided by the rules of the arbitration firm and applicable law. In no event will you be required to reimburse us for any arbitration filing, administrative, or hearing fees in an amount greater than what your court costs would have been if the Claim had been resolved in a state court with jurisdiction. However, we will advance or reimburse your fee if the arbitration firm or arbitrator determines there is good reason requiring us to do so, or if you ask us and we determine there is good reason for doing so. Each party will bear the expense of its own attorneys, experts, and witnesses, and other expenses, regardless of which party prevails, but a party may recover any or all expenses from another party if the arbitrator, applying applicable law, so determines.
13.6 Class Actions and Severability. You do not have the right to act as a class representative or participate as a member of a class of claimants with respect to any Claim submitted to arbitration (“Class Action Waiver”). A “Claim” does not include any challenge to the validity and effect of the Class Action Waiver, which must be decided by a court. There shall be no right or authority for any claims to be arbitrated on a class action basis or on bases involving Claims brought in a purported representative capacity on behalf of the general public, as a private attorney general, or other Subscribers, or other persons similarly situated. The parties acknowledge and agree that under no circumstances will a class action be arbitrated.
The Class Action Waiver is material and essential to the arbitration of any disputes between the parties and is nonseverable from this agreement to arbitrate Claims. If the Class Action Waiver is limited, voided or cannot be enforced, then the parties' agreement to arbitrate (except for this sentence) shall be null and void, subject to the right to appeal any limitation or invalidation of the Class Action Waiver. If this entire agreement to arbitrate is determined to be null and void, then the parties agree that any actions shall be brought in the State or Federal courts of New York, New York.
13.7 Binding Effect. In the arbitration proceeding, the arbitrator must follow applicable law, and any award may be challenged, as set forth in the FAA. Any court with jurisdiction may enter judgment upon the arbitrator’s award. The arbitrator's decision is final and binding on all parties and may be enforced in any federal or state court with jurisdiction.
We cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you use the Service at your own risk.
This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our Website or in the App, as determined by Company in its sole discretion. Company reserves the right to determine the form and means of providing notifications to Users, provided that you may opt out of certain means of notification as described in this Agreement. Company is not responsible for any automatic filtering you or your network or service provider may apply to email notifications we send to the email address you provide us. Company may, in its sole discretion, modify or update this Agreement from time to time, and so you should review this page periodically. When we change this Agreement in a material manner, we will update the ‘last updated’ date at the top of this page. Your continued use of the Service after any such change constitutes your acceptance of the new Customer Agreement. If you do not agree to any of the terms of this Agreement or any future version of this Agreement, do not use or access (or continue to access) the Service.
No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under this Agreement shall not constitute a waiver of such right or provision.
This Agreement, together with any amendments and any additional agreements you may have entered into or may enter into with Company in connection with the Service, shall constitute the entire agreement between you and Company concerning the Service and supersedes and cancels all previous agreements and communications (written or oral) relating to its subject matter. If any provision of this Agreement is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Agreement, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
If you are a California resident, in accordance with California Civil Code Section 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Sites of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Boulevard, Suite N 112 Sacramento, California 95834, or by telephone at (800) 952-5210 or (916) 445-1254.
Please contact us at firstname.lastname@example.org to report any violations of this Agreement or to pose any questions regarding this Agreement or the Service.