Welcome to the AutoGravity service hosted by AutoGravity Corporation (hereafter also referred to as “AutoGravity,” “we”, “us” and “our”). Please review the following terms and conditions concerning your use of and access to the AutoGravity website located at www.autogravity.com (“Website”), mobile application (“App”), and any products or services offered therefrom (collectively referred to hereafter as, the “Services”). By accessing, using, subscribing, purchasing or downloading any materials or content from AutoGravity or via the Services, you agree to follow and be bound by the following terms and conditions (the “Terms & Conditions”) and any other terms and conditions embodied by any other agreements you enter into with us, all of which constitute a legal agreement between us and you. If you do not agree with the Terms & Conditions, you may not use the Services.
PLEASE BE ADVISED THAT THESE TERMS & CONDITIONS CONTAIN PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN US ARE RESOLVED, WHICH INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER. PLEASE SEE SECTION 16 FOR MORE DETAILS.
2. Changes to the Terms & Conditions
We reserve the right to change these Terms & Conditions at any time by posting an updated version to reflect those changes and that will go into effect on the Effective Date indicated above. Changes to the Terms & Conditions may arise for a variety of reasons, including without limitation, changes in market conditions affecting our business, technology or our business model, relevant laws and regulatory requirements, and our systems. We will give you notice of the updated Terms & Conditions by posting the revised terms on the Website and App and by sending an email notice to you using the contact information you have provided us and/or by posting a notice on the Website and App. You agree to keep the contact information you provide to us up-to-date and to periodically review the Terms & Conditions from time to time to take notice of any changes we make, as they are binding on you. Continued access or use of the Services shall be deemed conclusive evidence of your acceptance of any modified Terms & Conditions.
3. Accessing and Using the App/Services
3.1 Limited License to Use the App/Services and Related Restrictions
Subject to and conditional upon your compliance with the Terms & Conditions and other agreements between you and AutoGravity (including any payment terms), AutoGravity hereby grants to you a limited, revocable, non-exclusive, personal, non-sublicensable, non-transferable, non-assignable license to use certain software applications and platforms accessible through the Services (collectively, “AutoGravity Software”). AutoGravity reserves all other rights in AutoGravity Software not expressly granted to you in these Terms & Conditions. You may not use AutoGravity Software in any manner that could: (i) damage, disable, overburden, or impair the software application or platform (or any server or networks connected thereto), or (ii) interfere with any third party’s use and/or enjoyment of the software application or platform (or any server or networks connected thereto).
Except as expressly specified in the Terms & Conditions, you may not: (a) copy or modify the AutoGravity Software; (b) transfer, sublicense, lease, lend, rent or otherwise distribute AutoGravity Software to any third party; or (c) use the AutoGravity Software in any unlawful manner, for any unlawful purpose, or in any manner inconsistent with the Terms & Conditions. You acknowledge and agree that portions of the AutoGravity Software, including, without limitation, the source code and the specific design and structure of individual modules or programs, constitute or contain trade secrets of AutoGravity and its licensors. Accordingly, you agree not to disassemble, decompile or otherwise reverse engineer any components of the AutoGravity Software provided in object code or any other AutoGravity products or services, in whole or in part, or permit or authorize a third party to do so, except to the extent such activities are expressly permitted by law notwithstanding this prohibition.
Furthermore, with respect to any App accessed through or downloaded from an App Store such as the Apple App Store or Android Market (an “App Store Sourced Application”), you will only use the App Store Sourced Application: (i) on a product that runs the operating system for which it was intended and (ii) as permitted by the “Usage Rules” set forth in the corresponding App Store. Use of the App from a third party App Store is also subject to the following provisions:
When you download our App, you may do so through a third party’s App Store. You acknowledge that the terms of these Terms & Conditions are between you and us and not with the owner or operator of the App Store (“App Store Owner”). As between the App Store Owner and us, we, and not the App Store Owner, are solely responsible for the Services, including the App, the content, maintenance, support services, and warranty, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the App, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store Owner in connection with the Services, including the App. The following applies to any App Store Sourced Application:
(a) Your use of the App Store Sourced Application must comply with the App Store’s “Terms of Service” or equivalent terms.
(b) You acknowledge that the App Store Owner has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify the App Store Owner, and the App Store Owner will refund the purchase price for the App Store Sourced Application to you (if any) and to the maximum extent permitted by applicable law, the App Store Owner will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between AutoGravity and the App Store Owner, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of AutoGravity.
(d) You and we acknowledge that, as between AutoGravity and the App Store Owner, the App Store Owner is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and we acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between AutoGravity and the App Store Owner, AutoGravity, not the App Store Owner, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms & Conditions.
(f) You and we acknowledge and agree that the App Store Owner, and the App Store Owner’s subsidiaries, are third-party beneficiaries of this Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of these Terms & Conditions, the App Store Owner will have the right (and will be deemed to have accepted the right) to enforce the terms of this Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
(h) Without limiting any other terms in these Terms & Conditions, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
3.2 Customer Account Access/Security
In order to utilize certain Services, you may need to create a customer account. You agree to (a) create only one account; (b) provide accurate, truthful, current and complete information when creating your account; (c) maintain and promptly update your account information; (d) maintain the security of your account by not sharing your username or password with others and restricting access to your account and your computer; and (e) promptly notify us if you discover or otherwise suspect any security breaches relating to the Services or your account.
By using the Services, you acknowledge and agree that you are contracting with us electronically, and that we may provide you with all notices and disclosures in electronic format (e.g. via email or via the Website and App).
4. Information available via the Services
AutoGravity provides an online platform (“Platform”) that connects individuals like you with third party entities that have products or services that they wish to offer (“Third Party Providers”). You understand that when using the Services, you will have access to or otherwise be exposed to products, services and content (collectively, “Content”) from a variety of sources, and that AutoGravity is not responsible for the quality, usefulness, safety, legality or intellectual property rights of or relating to such Content. You further understand and acknowledge that you may be exposed to Content that is inaccurate, offensive, indecent, or objectionable, and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against AutoGravity with respect thereto, and agree to indemnify and hold AutoGravity, its successors, affiliates, and/or licensors, harmless to the fullest extent allowed by law regarding all matters related to your use of the Services.
We reserve the right to amend or terminate the Services without warning. Unless otherwise agreed to by us in writing, all features, content, specifications, products and services described, depicted or made available via the Services are subject to change at any time without notice, except as may be required by applicable law.
5. Auto Loan Request Services
AutoGravity seeks to provide you one or more conditional loan offers through its network of third party, nonaffiliated lenders (“Lenders”). The AutoGravity Platform enables consumers to shop for loan products but AutoGravity does not make loans or credit decisions in connection with loans. Any loan inquiry you submit is not an application for credit. Instead, it is an inquiry to be matched with Lenders’ loan criteria so that you may receive loan offers from those Lenders. You will have to complete a formal application with the Lender you choose before it will extend an unconditional offer. AutoGravity does not endorse or recommend the products of any particular Lender. You should rely on your own judgment in deciding which available loan product, terms and Lender (if any) best suits your needs and financial situation. The Lender is solely responsible for its services to you, and you agree that AutoGravity will not be liable for any damages or costs arising out of or in any way connected with your use of the Lender’s services. AutoGravity does not guarantee acceptance by any particular Lender or any specific terms or conditions with any Lender; loan approval standards are established and maintained solely by individual Lenders. Likewise, AutoGravity does not guarantee that the loan terms or rates offered and made available by Lenders will be the best terms or lowest rates available. You are free to work with a Lender or not. A Lender’s offer may be subject to market conditions, approval and qualification. The rates and fees actually provided by Lenders may be higher or lower depending on your credit profile. You understand that AutoGravity and Lenders may keep your loan request information and any other information provided by you in the processing of your loan request for any required retention period, whether or not you are qualified for a loan with the Lender or if you receive a loan from them.
By submitting a loan inquiry form, you authorize AutoGravity to match you with one or more Lenders, each of whom may return multiple loan product offers. Once presented with your Lenders and loan offers, Lenders may begin to call you; however, you may request that a Lender contact you at another number or via another means of communication. If you wish for a Lender to cease calling and competing for your business, you should contact the Lender directly and request that your inquiry be removed from consideration and to place you on their internal Do-Not-Call List.
YOU HEREBY AUTHORIZE THE LENDERS, ALONG WITH ANY ADDITIONAL BROKERS OR THIRD PARTIES NECESSARY TO COMPLETE YOUR LOAN INQUIRY TO CALL YOU AT THE NUMBER YOU HAVE PROVIDED BY LIVE DIALING, AUTOMATED DIALING OR PRE-RECORDED MESSAGE EVEN IF YOU ARE ON A DO-NOT-CALL LIST. YOU ACKNOWLEDGE AND AGREE THAT YOUR CONSENT IS NOT BEING GIVEN AS A CONDITION OF PURCHASING ANY PROPERTY, GOOD OR SERVICE. YOU HAVE THE RIGHT TO REFUSE OR REVOKE SUCH CONSENT. YOU MAY UPDATE YOUR PREFERENCES AT ANY TIME BY CONTACTING CUSTOMER SUPPORT AT SUPPORT@AUTOGRAVITY.COM AND INFORMING US OF YOUR PREFERENCES. IF YOU PROVIDED A MOBILE NUMBER, CHARGES MAY APPLY. IF YOU PROVIDED AN EMAIL ADDRESS, AUTOGRAVITY AND THE LENDERS MAY SEND YOU COMMUNICATIONS ELECTRONICALLY UNTIL YOU OPT OUT FROM THE SAME.
If you provide personally identifiable information to the Lender, the Lender may do either a “soft inquiry” or “hard inquiry” into your credit to complete your formal loan application, which means that the Lender may request from one or multiple credit bureaus/reporting agencies, your credit bureau report including any ancillary credit scores or ratings and to verify that your request is true and accurate to the best of your knowledge.
By clicking “submit” (or any button indicating acceptance) you are certifying that all of the information you have provided in your loan inquiry is true, accurate and complete to the best of your knowledge.
“Soft inquiries” will not impact your score according to Fair Isaac Corporation (the company that provides “FICO” credit scores). “Hard inquiries” may affect your FICO score as determined by the Fair Isaac Corporation. FICO reports that, for mortgage, student loans, credit cards or auto loans, it disregards multiple inquiries prior to the completion (or closing) of the loan and it consolidates these types of credit checks as a single inquiry. FICO considers all inquiries within a 45 day period for a mortgage, auto or student loan as a single inquiry. http://www.myfico.com/crediteducation/questions/inquiry-credit-score.aspx
Lenders may require additional information prior to providing an actual offer. In these situations, the Lender(s) may contact you directly to discuss your loan request and to discuss the specific terms of your offer(s). NOTE: You are providing express written consent for AutoGravity and the selected Lender to share your private personally identifiable information for purposes permitted or required by law.
6. Restrictions on and Termination of Use of the App/Services
We have the right to suspend or close any account with us and block your use of our Services if you have failed to comply with any part of the Terms & Conditions (as determined by us in our sole discretion). You are responsible for ensuring that any and all persons you authorize to use your account with us are aware of the Terms & Conditions, and that they fully comply with them. We reserve the right to refuse to provide access to the Services to any person or organization for any reason. You may only use the Services for your own lawful purposes. It is your obligation to comply with all applicable state, federal and international laws. In consideration of being allowed to use our Services, you agree that any of the following actions shall constitute a material breach of these Terms & Conditions:
• Collecting information about our App, users of our App or our Services without our prior written consent;
• Modifying, framing, rendering (or re-rendering), mirroring, truncating, injecting, filtering or changing any content or information contained in our Website or App, without our prior written consent.
• Using any deep-link, page-scrape, robot, crawl, index, spider, click spam, macro programs, Internet agent, or other automatic device, program, algorithm or methodology which does the same things, to use, access, copy, acquire information, generate impressions or clicks, input information, store information, search, generate searches, or monitor our Website or App or any portion thereof;
• Accessing or using our Website or App for competitive purposes;
• Disguising the origin of information transmitted to, from, or through the Website or App;
• Impersonating another person or representative of an organization;
• Distributing viruses or other harmful computer code;
• Allowing any other person or entity to impersonate you to access or use our Services;
• Using the Services for any purpose in violation of local, state, national, international laws or regulations;
• Using our Services in any way that is intended to harm, or a reasonable person would understand would likely result in harm, to the user or others; and
• Circumventing any measures implemented by us aimed at preventing violations of the Terms & Conditions.
7. Links to Other Websites
The Website and/or App may contain links to other websites which may be of interest to you. We are providing these links to you only as a convenience, and the inclusion of any link does not imply endorsement by us of the linked website and/or the content and materials found at the linked website, except as specifically stated otherwise by us. It is your responsibility to take precautions to ensure that whatever you select for your use is free of viruses or other items of an intrusive nature. We do not accept responsibility for any third party’s website, content or materials. Accessing any such links from our Website or App to gain access to other websites is at your own risk.
8. Intellectual Property Rights
Except where expressly stated otherwise, AutoGravity or its licensors is the owner or the licensee of all intellectual property located on the Website or App or in the materials published or otherwise made available through the Services. Those works, marks or inventions may be protected by copyright, patent and trademark laws and treaties around the world and may not be modified, copied, printed, reproduced, distributed, republished, performed, downloaded, displayed, posted, transmitted, and/or otherwise used in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means, unless expressly permitted by us. Except where expressly provided otherwise by us, nothing on our Website or App may be construed to confer any license or ownership right in or materials published or otherwise made available through our Services, whether by estoppel, implication, or otherwise. All rights not granted to you in these Terms & Conditions are reserved.
9. Copyright Infringement Notice
All users of the Services represent and warrant they shall comply with all applicable copyright laws. In the event we receive proper notification of claimed copyright infringement, the response to such notice may include removing or disabling access to material claimed to be the subject of infringing activity and possibly terminating your account and/or the right to use our Services. If you believe any material made available via the Services constitutes an infringement of a copyright you own, you may file a notice of infringement to the contact identified below. A user who materially misrepresents that material is infringing will be liable for the costs incurred by us and our associated persons, including attorney fees. Accordingly, if you are uncertain whether you are or you represent the proper copyright holder or if copyright laws protect the subject materials, you are strongly advised to consult a qualified attorney at your own expense. Any copyright infringement notification must be a written communication, transmitted by regular mail, setting forth the following:
(i) a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
((ii) detailed identification of the copyrighted work claimed to have been infringed;
((iii) identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material;
((iv) your contact information, including your address, telephone number, and an email address;
((v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
((vi) a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.
Copyright Infringement Notifications should be addressed as follows: AutoGravity Corporation, attn.: Copyright Agent, Support@AutoGravity.com.
Promptly after receipt of a valid removal notification, we will remove or disable access to the allegedly infringing content. We will also notify the party that posted it of your claim that the material is infringing and will give that party an opportunity to send us a written counter-notification that the allegedly infringing material is not infringing.
10. No Agency Relationship
Except where provided for in a separate agreement with AutoGravity, no agency, partnership, joint venture, employer-employee or franchiser-franchisee relationship is intended or created by the Terms & Conditions. Without limiting the foregoing, except as expressly set forth herein, AutoGravity is not acting and does not act as an agent for any user of the Services.
YOU AGREE THAT YOUR USE OF THE SERVICES SHALL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT WHERE EXPRESSLY PROVIDED OTHERWISE BY US, THE SERVICES ARE PROVIDED “AS IS,” AND ARE FOR USE SOLELY AS CONTRACTED HEREIN. EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, WE HEREBY DISCLAIM ALL EXPRESS OR IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS WITH REGARD TO OUR SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED REPRESENTATIONS, WARRANTIES, GUARANTIES, AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AND QUALITY OF OUR PRODUCTS AND SERVICES EXCEPT TO THE EXTENT THAT SUCH DISCLAIMERS ARE HELD TO BE LEGALLY INVALID. WE MAKE NO REPRESENTATIONS, GUARANTIES OR WARRANTIES REGARDING THE RELIABILITY, AVAILABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF THE SERVICES AND/OR MATERIALS ASSOCIATED WITH THE SERVICES, OR THE RESULTS YOU MAY OBTAIN BY ACCESSING OR USING THE SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE DO NOT REPRESENT OR WARRANT THAT (A) THE OPERATION OR USE OF THE WEBSITE OR APP WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE; (B) THE QUALITY OF SERVICES, INFORMATION, OR OTHER MATERIALS YOU PURCHASE OR OBTAIN THROUGH THE SERVICES WILL MEET YOUR REQUIREMENTS; OR (C) THE PRODUCTS, SERVICES, MATERIALS, OR THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ACKNOWLEDGE THAT WE DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICES AND/OR MATERIALS ASSOCIATED THEREWITH MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
12. Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF AUTOGRAVITY, OR ANY OF ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS, EXCEED $500.00. IN NO EVENT SHALL AUTOGRAVITY OR THE THIRD PARTY PROVIDERS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY DAMAGES TO YOUR COMPUTER, TELECOMMUNICATION EQUIPMENT, OR OTHER PROPERTY, PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM ACCESS TO AND USE OF OUR SERVICES, AND/OR FOR LOSS OF DATA, CONTENT, IMAGES, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THESE TERMS & CONDITIONS, INCLUDING BUT NOT LIMITED TO THE ACCESSING OR USE OF, OR INABILITY TO USE, THE SERVICES, INCLUDING BUT NOT LIMITED TO THE DOWNLOADING OF ANY MATERIALS, REGARDLESS OF CAUSE, WHETHER IN AN ACTION IN CONTRACT OR NEGLIGENCE OR OTHER TORTIOUS ACTION, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR THE THIRD PARTY PROVIDER HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATION OF LIABILITY SET FORTH IN THIS SECTION SHALL NOT APPLY IN THE EVENT OF CUSTOMER’S BREACH, OR RELATED TO ITS INDEMNITY OBLIGATIONS. THIS PARAGRAPH SHALL NOT AFFECT THE RIGHTS LISTED BELOW IN THE SECTION TITLED “INDEMNIFICATION.” THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS & CONDITIONS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF IMPLIED WARRANTIES, SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN YOU AND AUTOGRAVITY, THAT THE PARTIES HERETO HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS OF THESE TERMS AND CONDITIONS WOULD BE SUBSTANTIALLY DIFFERENT.
TO THE FULLEST EXTENT PERMITTED BY LAW, YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS AUTOGRAVITY, ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AGENTS, LICENSORS, AND SUPPLIERS FROM AND AGAINST ALL LOSSES, EXPENSES, DAMAGES AND COSTS, INCLUDING, BUT NOT LIMITED TO, ALL ATTORNEYS’ FEES, RESULTING FROM (I) ANY VIOLATION OF THE TERMS & CONDITIONS BY YOU OR ANY OTHER PERSON ACCESSING THE SERVICES ON YOUR BEHALF; OR (II) YOUR VIOLATION OF ANY THIRD PARTY RIGHT, INCLUDING WITHOUT LIMITATION ANY COPYRIGHT, PROPERTY, OR PRIVACY RIGHT. THIS DEFENSE AND INDEMNIFICATION OBLIGATION SHALL SURVIVE THESE TERMS AND CONDITIONS AND YOUR USE OF THE SERVICES.
If any provision of these Terms & Conditions or any word, phrase, clause, sentence, or other portion thereof should be held to be unenforceable or invalid for any reason, then such provision or portion thereof shall be modified or deleted in such manner as to render the Terms & Conditions as modified legal and enforceable to the maximum extent permitted under applicable laws.
16. Governing Law & Dispute Resolution
The laws of the State of California (subject to the Federal Arbitration Act discussed below) will govern these Terms & Conditions without giving effect to any principles of conflicts of laws.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It is part of your agreement with us and affects your rights. This Arbitration Agreement provides that all disputes between you and AutoGravity will be resolved by BINDING ARBITRATION. You thus GIVE UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under these Terms & Conditions (EXCEPT for matters that may be taken to SMALL CLAIMS COURT as described herein). Please note that:
• Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury.
• You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT.
• Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
(a) Dispute Resolution by Arbitration: Any and all claims, controversies, or disputes arising out of or related in any way to these Terms & Conditions or your use of the Services shall be subject to binding arbitration pursuant to the Federal Arbitration Act. This Arbitration Agreement is made pursuant to a transaction involving interstate commerce, and shall be governed by the Federal Arbitration Act (the “FAA”), 9 U.S.C. Sections 1-6. This Arbitration Agreement applies to, without limitation, (1) all issues concerning any transaction in connection with which this Arbitration Agreement has been entered into; (2) initial claims, counterclaims, cross-claims, and third-party claims, whether arising in law or equity, and whether based upon federal, state, or local law; contract; tort; fraud or other intentional tort; constitution, common law, or statute; (3) any issue as to whether any such claims, controversies, or disputes are subject to arbitration; and (4) any claims, controversies, or disputes that would otherwise be subject to class actions. This means that all claims, controversies or disputes that are the subject of class actions will also be subject to binding arbitration under the FAA and this Arbitration Agreement. THE ARBITRATOR SHALL NOT CONDUCT CLASS ARBITRATION; THAT IS, THE ARBITRATOR SHALL NOT ALLOW YOU OR US TO SERVE AS A PRIVATE ATTORNEY GENERAL, AS A REPRESENTATIVE, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION.
(b) Consent to Arbitration: You and we understand and agree that you and we are choosing arbitration rather than litigation to resolve disputes. You and we understand that you and we have the right to litigate disputes but that you and we prefer to do so through arbitration. In arbitration, you may choose to have a hearing and be represented by counsel. THEREFORE, YOU UNDERSTAND THAT BY ENTERING INTO THIS ARBITRATION AGREEMENT, YOU VOLUNTARILY AND KNOWINGLY:
(i) WAIVE ANY RIGHTS TO HAVE A TRIAL BY JURY TO RESOLVE ANY CLAIM OR DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES;
(ii) WAIVE YOUR RIGHT TO HAVE A COURT, OTHER THAN A SMALL CLAIMS COURT, RESOLVE ANY CLAIM OR DISPUTE ALLEGED AGAINST US OR RELATED THIRD PARTIES; AND
(iii) TO THE EXTENT PERMITTED BY APPLICABLE LAW, WAIVE YOUR RIGHT TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR IN ANY OTHER REPRESENTATIVE CAPACITY, AND/OR TO PARTICIPATE AS A MEMBER OF A CLASS OF CLAIMANTS, IN ANY LAWSUIT FILED AGAINST US AND/OR RELATED THIRD PARTIES.
(c) Opt-out Right. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: [insert AG address, attn.: Legal] within 30 days of entering into these Terms & Conditions. If you send this notice, then the Arbitration Agreement will not apply to either party. If you do not send this notice, then you agree to be bound by this Arbitration Agreement.
(d) Procedure for Arbitration. Arbitration may be heard, at the claimant’s election, by:
• The American Arbitration Association: https://www.adr.org “(877) 495-4185“ firstname.lastname@example.org
• JAMS: (800) 352-5267 http://www.jamsadr.com/adr-arbitration/ http://www.jamsadr.com/contactus/fbGeneral.aspx?xpST=ContactForm
• or any other arbitration forum as you and we may agree.
You may initiate arbitration by contacting the arbitration forum of your choice using the contact points provided above. If you require assistance in a language other than English, or special services to accommodate a disability, please select an arbitration forum that can accommodate your needs.
(i) The arbitration shall be conducted by a single neutral, qualified and competent arbitrator selected by you and us under the rules of the arbitration forum selected. The arbitrator shall apply applicable substantive law consistent with the FAA and applicable statutes of limitation, and shall honor all claims of privilege recognized by law. The Arbitration shall take place in a location determined by the arbitrator in the federal district of your residence.
(ii) If you file for arbitration under this Arbitration Agreement, the only fee you may be required to pay is the applicable filing fee, which is approximately equivalent to current court filing fees. We will bear all other costs of the arbitration, except for your attorneys’ fees and costs. If we file for arbitration under this Arbitration Agreement, we will be required to pay all costs associated with the arbitration, except for your attorneys’ fees and costs. However, if circumstances relating to the dispute (including, among other things, the size and nature of the dispute, the nature of the services that we have provided you, and your ability to pay) it would be unfair or burdensome for you to pay the arbitration filing fees, we will advance the initial filing, administration, and hearing fees required by the arbitrator, who will ultimately decide who will be responsible for paying those amounts.
(iii) You can participate without representation or may choose to be represented by an attorney or other authorized representative, unless that choice is prohibited by applicable law. Because arbitration is a final, legally-binding process that may impact your legal rights, you may want to consider consulting an attorney. Each party, you and we, shall bear our own costs and expenses, including attorneys’ fees, that we incur with respect to the arbitration.
(iv) The Arbitrator shall allow for the discovery or exchange of non-privileged information relevant to the dispute, under the Arbitrator’s supervision, prior to the arbitration hearing or submission of written presentations.
(v) Arbitrations may be decided upon written presentations, unless the amount of relief requested exceeds $25,000. The Arbitrator may consider dispositive motions, but shall generally hold a conference call among all the parties prior to permitting any written motion. The Arbitrator may hold hearings in person or by conference call, and hearings generally will not exceed one day. If you or we show good cause, the arbitrator may schedule additional hearings within seven calendar days after the initial hearing.
(e) Interpretation of this Arbitration Agreement. Any dispute as to the arbitrability of a claim shall be decided by the arbitrator. Any dispute as to the validity of the portion of this Arbitration Agreement that prohibits class arbitration shall be a matter for resolution by a court and not by the arbitrator. In the event that the court deems the portion of this Arbitration Agreement that prohibits class arbitration to be unenforceable, then the court shall retain jurisdiction over the dispute and this Arbitration Agreement shall be null and void.
(f) Statutes of Limitations. All statutes of limitations that are applicable to any claim or dispute shall apply to any arbitration between you and us.
(g) Attorneys’ Fees: The arbitrator may, but is not required to, award reasonable expenses and attorneys’ fees to the prevailing party if allowed by statute or applicable law and by the rules of the arbitration forum.
(h) Awards. The arbitrator shall issue the award in accordance with the rules of the arbitration forum. Unless you and we agree otherwise, the award shall provide the concise written reasons for the decision and shall apply any identified, pertinent contract terms, statutes and legal precedents. The arbitrator may grant any remedy, relief or outcome that you or we could have received in court.
(i) Enforcement of Award. The award of the arbitrator shall be binding and final after fifteen (15) days have passed and judgment upon the arbitrator’s award may thereafter be entered in any court having jurisdiction.
(j) Appeal Procedure. Within fifteen (15) days after an award by the arbitrator, any party may appeal the award by requesting in writing a new arbitration before a panel of three neutral arbitrators designated by the same arbitration service. The decision of the panel of three neutral arbitrators will be immediately binding and final.
(k) Small Claims Court. Notwithstanding any other provision of this Arbitration Agreement, either you or we shall retain the right to seek adjudication in Small Claims Court of any matter within its jurisdiction. Any matter not within the Small Claims Court’s jurisdiction shall be resolved by arbitration as provided above. Any appeal from a Small Claims Court judgment shall be conducted, at the appellant’s option, either (i) in accordance with the provisions of Sections 116.710-116.795 of the California Code of Civil Procedure, or (ii) in accordance with Section (j) of this Arbitration Agreement.
17. Notice for Users in California
This notice is for users of the Services residing in the State of California. Please be advised that the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be reached by mail at 1625 North Market Blvd., Sacramento, CA 95834 or by telephone at (800) 952-5210.
You may not assign these Terms & Conditions without the prior written approval of AutoGravity but AutoGravity may assign these Terms & Conditions without restriction. Any purported assignment in violation of this section shall be void. AutoGravity reserves the right to use Third Party Providers in the provision of the Services. The terms and conditions herein may be waived or amended only in writing and only by the party that is entitled to the benefits of the term(s) or condition(s) being waived or amended. Any and all rights not expressly granted herein are reserved by AutoGravity.
19. Contact Us
Please feel free to contact us with any comments, questions or suggestions you might have regarding the Services. If you have any concerns about any aspect of our Services, please let us know and we will do our best to respond promptly and to try to resolve any issue. You can contact us at email@example.com.