Effective date: November 14,2016
Welcome to eDriveCARE
eDrivecare, LLC (“eDrivecare”) provides its Hardware and Services (each as defined below) to you through its mobile applications, its websites located at www.edrivecare.com or under edrivecare.com (the “Sites”) and via other channels, subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Services, Sites, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you do not agree with this TOS, you must not accept this TOS and may not use the Services.
We reserve the right, at our sole discretion, to change or modify portions of this TOS at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Services or Hardware after the date any such changes become effective constitutes your acceptance of the new TOS.
Description of Service
The “Services” includes the Sites, any specialty services offered to users, eDrivecare’s vehicle information and related services, and all mobile applications and other software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”).
Any updates or new features added to or augmenting the Services or the Hardware are also subject to this TOS; to keep the Software up-to-date, you agree that we may automatically provide you with such updates without your further consent or notice to you. NOTE THAT IN ORDER FOR THE SERVICES TO FUNCTION (INCLUDING EMERGENCY NOTIFICATION SERVICES), THE MOBILE DEVICE ONTO WHICH THE EDRIVECARE APPLICATION IS INSTALLED MUST BE LOCATED IN THE VEHICLE ASSOCIATED WITH YOUR SERVICES AND THE HARDWARE MUST BE PROPERLY INSTALLED IN YOUR VEHICLE. THE MOBILE DEVICE MUST ALSO HAVE ADEQUATE NETWORK AND DATA SERVICES IN THE LOCATION WHERE NEEDED.
General Conditions / Access and Use of the Services and Hardware
Subject to the terms and conditions of this TOS, you may access and use the Services and Hardware only for lawful purposes. You shall not use our Services or Hardware (and we will not be liable for your use of the Services and Hardware) in connection with cars with modified engine or electronic control systems, or cars of any make, model or year that we do not support, as described on our website. All rights, title and interest in and to the Services, the Hardware and their components will remain with and belong exclusively to eDrivecare. You shall not: sublicense, resell, rent, lease, transfer, assign or otherwise commercially exploit or make the Services available to any third party; use the Services or the Hardware in any unlawful manner (including, without limitation, in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Services, the Hardware or their components, modify, adapt or hack the Services or the Hardware to, or otherwise attempt to, gain unauthorized access to the Services, the Hardware or their related systems or networks, or (d) use the Services or Hardware to obtain or attempt to access any materials or information through any means not intentionally made available or provided for through the Services or Hardware. You shall comply with any codes of conduct, policies or other notices eDrivecare provides you or publishes in connection with the Services and the Hardware, and you shall promptly notify eDrivecare if you learn of a security breach related to the Services. Our Services is available on mobile devices. Do not use the Services in a way that distracts you and/or prevents you from obeying traffic or safety laws.
Any software that may be made available by eDrivecare in connection with the Service, such as eDrivecare’s mobile applications and any software embedded on the Hardware (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, eDrivecare hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software solely in connection with the Services (and in the case of Software embedded on the Hardware, you may only use such Software on the Hardware), provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Services by any means other than through the interface that is provided by eDrivecare for use in accessing the Service. The eDrivecare name and logos are trademarks and service marks of eDrivecare (collectively the “eDrivecare Trademarks”). Other company, product, and services names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in this TOS or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the eDrivecare Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of eDrivecare Trademarks will inure to our exclusive benefit. Any rights not expressly granted herein by eDrivecare are reserved and no license or right to use any trademark of eDrivecare or any third party is granted to you in connection with the Services or Hardware. Software, Hardware and the transmission of applicable data, if any, is subject to United States export controls. No Hardware or Software may be downloaded from the Services or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Services and Hardware.
eDrivecare uses reasonable security measures to protect the data we receive via the Services and Hardware. However, we cannot guarantee that third parties will never defeat our security measures. You acknowledge that you are using the Services and Hardware and sharing information at your own risk.
The Services includes certain services that are available via a mobile device, including the ability to upload data to the Services via a mobile device, the ability to browse the Services and the Sites from a mobile device and the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Services through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding eDrivecare and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable services and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your eDrivecare account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your eDrivecare account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages which may not be delivered or may be sent to the person that acquires your old number.
Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Services are for your personal use.
The failure of eDrivecare to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and eDrivecare, even though it is electronic and is not physically signed by you and eDrivecare, and it governs your use of the Services and Hardware and takes the place of any prior agreements between you and eDrivecare related to the subject matter hereof. If you are using our Services on behalf of a business, that business accepts these terms.
Social Networking Services
Apple or Android Enabled Software Applications.
eDriveCARE offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”) at AppStore or Android at Android Marketplace, among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”, “Android-Enabled Software), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
eDriveCARE and you acknowledge that this Agreement are concluded between eDriveCARE and you only, and not with Apple, and that as between eDriveCARE and Apple, eDriveCARE, not Apple or Google, is solely responsible for the Apple-Enabled Software and the content thereof.
You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software or Android-Enabled Software in, or otherwise be in conflict with, the App Store or Android Marketplace Terms of Service.
Your license to use the Apple-Enabled Software or Android-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product or Android-Enabled Software on an Android Product, that you own or control, as permitted by the Usage Rules set forth in the App Store or Android Market Place Terms of Service.
Apple or Google has no obligation whatsoever to provide any maintenance or support services with respect to the Apple or Android Enabled Software.
Apple or Google is not responsible for any product warranties, whether express or implied by law. Apple or Google will have no warranty obligation whatsoever with respect to the Apple or Android Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be eDriveCARE’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
eDriveCARE and you acknowledge that eDriveCARE, not Apple or Google, is responsible for addressing any claims of you or any third party relating to the Apple or Android Enabled Software or your possession and/or use of that Apple or Android Enabled Software, including, but not limited to: product liability claims; any claim that the Apple or Android Enabled Software fails to conform to any applicable legal or regulatory requirement; and claims arising under consumer protection or similar legislation.
In the event of any third party claim that the Apple or Android Enabled Software or the end-user’s possession and use of that Apple or Android Enabled Software infringes that third party’s intellectual property rights, as between eDriveCARE and Apple or Google, eDriveCARE, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
You represent and warrant that 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 you are not listed on any U.S. Government list of prohibited or restricted parties.
If you have any questions, complaints or claims with respect to the Apple or Android Enabled Software, they should be directed to eDriveCARE as follows: email@example.com; or Client Services 910 N Ogden Dr, Suite 1, West Hollywood, CA 90046.
eDriveCARE and you acknowledge and agree that Apple, Google and their subsidiaries, are third party beneficiaries of this Agreement with respect to the Apple and Android Enabled Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple or Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Apple or Android Enabled Software as a third party beneficiary thereof.
Beta Product/Service Conditions
If you are participating in a pilot or beta program, the following terms are applicable during the course of such a program.
WHEREAS, eDriveCARE is willing to supply the product/service for this program, any related materials and documentation made available by eDriveCARE (collectively, the “Evaluation Materials”) to Licensee subject to the terms and conditions of this Agreement; WHEREAS, Licensee desires to test and evaluate the Evaluation Materials in accordance with the terms herein; NOW, THEREFORE, in consideration of the foregoing and the mutual covenants hereinafter set forth, the parties hereby agree as follows:
1. Use of Evaluation Materials; No Support. Subject to the terms of this Agreement, eDriveCARE grants to Licensee a personal, non-sublicensable, nonexclusive license to use the Evaluation Materials, solely in accordance with the documentation or instructions supplied by eDriveCARE and solely for Licensee’s internal testing and evaluation purposes during the term of this Agreement. eDriveCARE shall at all times retain all title to and ownership of the Evaluation Materials and all copies thereof. Licensee agrees to use the Evaluation Materials only in the ordinary course of its evaluation, and Licensee shall not (and shall not permit any third party to): (a) reproduce or modify the Evaluation Materials or any portion thereof, (b) rent, sell, lease or otherwise transfer the Evaluation Materials or any part thereof or use it for the benefit of a third party, or (c) reverse assemble, reverse compile or reverse engineer the Evaluation Materials, or otherwise attempt to discover any Evaluation Materials source code or underlying Confidential Information (as that term is defined below). This Agreement does not entitle Licensee to any support, upgrades, patches, enhancements, or fixes for the Evaluation Materials (collectively, “Support”), but any such Support that may be made available by eDriveCARE (in its sole discretion) shall become part of the Evaluation Materials and subject to this Agreement.
2. Confidentiality; Licensee acknowledges that, in the course of using the Evaluation Materials and performing its activities under this Agreement, it may obtain information relating to the Evaluation Materials and/or eDriveCARE (“Confidential Information”). Such Confidential Information shall belong solely to eDriveCARE and includes, but is not limited to, the existence of the Evaluation Materials, related features and mode of operation, this Agreement, trade secrets, know-how, inventions (whether or not patentable), techniques, processes, programs, ideas, algorithms, schematics, testing procedures, software design and architecture, computer code, internal documentation, design and function specifications, product requirements, problem reports, analysis and performance information, benchmarks, software documents, and other technical, business, product, marketing and financial information, plans and data. With respect to Confidential Information: (a) Licensee shall not use (except as expressly authorized by this Agreement) or disclose Confidential Information without the prior written consent of eDriveCARE unless such Confidential Information becomes part of the public domain without breach of this Agreement by Licensee, its officers, directors, employees or agents; (b) Licensee agrees to take reasonable measures to maintain the Confidential Information and Evaluation Materials in confidence; (c) Licensee will disclose the Evaluation Materials and Confidential Information only to those of its employees as are necessary for the use expressly and unambiguously licensed hereunder, and only after such employees have agreed in writing to be bound by terms no less restrictive than the provisions of this Agreement; and (e) Licensee will not remove or export the Evaluation Materials or any Confidential Information or any direct product thereof in violation of any applicable law or regulation. Further, if Licensee provides or communicates to eDriveCARE any feedback, discoveries, ideas, concepts or suggestions relevant to the Evaluation Materials (or improvements, enhancements or modifications thereto) or eDriveCARE’s business, technology or Confidential Information (“Feedback”), Licensee hereby assigns to eDriveCARE all right, title and interest in and to such Feedback and all intellectual property rights therein (and hereby waives any associated moral rights or the like).
3. Feedback Licensee agrees to provide feedback during the beta testing period which may disclose: (1) which portions of the Evaluation Materials have been used, (2) the nature of that use, (3) the extent or amount of use, (4) all errors or difficulties discovered, and (5) the characteristic conditions and symptoms of the errors and difficulties, in sufficient detail to allow eDriveCARE to recreate the errors and difficulties itself.
4. Publicity. After termination of the Beta Period (defined below), Licensee will consider participating in marketing activities for the Evaluation Materials, which shall be mutually agreed upon by the parties, including creating a case study and/or press release based upon Licensee’s use of the Evaluation Materials, and eDriveCARE may use Licensee’s user first name on eDriveCARE’s website and marketing materials in order to identify Licensee as a customer of eDriveCARE (subject to any reasonable trademark guidelines provided by Licensee).
5. Warranty Disclaimer. The parties acknowledge that the Evaluation Materials are provided “AS IS” without warranty of any kind. EDRIVECARE DISCLAIMS ALL WARRANTIES RELATING TO THE EVALUATION MATERIALS, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES AGAINST INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE.
6. Limitation of Remedies and Damages. EDRIVECARE SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY (A) FOR LOSS OR INACCURACY OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, OR (B) FOR ANY INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO LOSS OF REVENUES AND LOSS OF PROFITS, OR (C) FOR ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES PAID BY LICENSEE HEREUNDER, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). EDRIVECARE SHALL NOT BE RESPONSIBLE FOR ANY MATTER BEYOND ITS REASONABLE CONTROL
7. General. Neither party shall have the right to assign this Agreement, except that either party may assign its rights and obligations without consent to a successor to substantially all its relevant assets or business. This Agreement shall be governed by and construed in accordance with the laws of the State of California without regard to the conflicts of law’s provisions therein. In any action to enforce this Agreement the prevailing party will be entitled to costs and attorneys’ fees. In the event that any of the provisions of this Agreement shall be held by a court or other tribunal of competent jurisdiction to be unenforceable, such provisions shall be limited or eliminated to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect and enforceable. This Agreement constitutes the entire agreement between the parties pertaining to the subject matter hereof, and any and all written or oral agreements previously existing between the parties are expressly cancelled. Any modifications of this Agreement must be in writing and signed by both parties. Licensee acknowledges and agrees that due to the unique nature of eDriveCARE’s Confidential Information, there can be no adequate remedy at law for any breach of its obligations hereunder, that any such breach may allow Licensee or third parties to unfairly compete with eDriveCARE resulting in irreparable harm to eDriveCARE, and therefore, that upon any such breach or threat thereof, eDriveCARE shall be entitled to injunctions and other appropriate equitable relief in addition to whatever remedies it may have at law.
Representations and Warranties
You represent and warrant to eDrivecare that: you have full power and authority to enter into this TOS; you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your data collection using the Hardware, posting and other activities (and allow eDrivecare to perform its obligations) in connection with the Services and Hardware without obtaining any further releases or consents; Your Content and other activities in connection with the Services and eDrivecare’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and you are fifteen (15) years of age or older.
You have the right to terminate your account at any time in accordance with the procedures set forth on the Site. eDrivecare reserves the right to (i) modify or discontinue, temporarily or permanently, the Services or Hardware (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 Services and remove and discard any of Your Content in the Services for any reason, including if eDrivecare believes that you have violated this TOS. eDrivecare shall not be liable to you or any third party for any modification, suspension or discontinuation of the Services or Hardware. eDrivecare will use good faith efforts to contact you to warn you prior to suspension or termination of your account by eDrivecare. All of Your Content on the Services (if any) may be permanently deleted by eDrivecare upon any termination of your account in its sole discretion.
DISCLAIMER OF WARRANTIES
THE HARDWARE COMES WITH A LIMITED WARRANTY FOR MORE DETAILS. THE SERVICE, INCLUDING THE SITES, CONTENT AND ANY DATA OR OTHER INFORMATION PROVIDED BY THE HARDWARE, SOFTWARE OR SERVICE, AND ALL SERVER AND NETWORK COMPONENTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND, AND EDRIVECARE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, QUALITY, ACCURACY, TIMELINESS, COMPLETENESS, CORRECTNESS OR RELIABILITY. EDRIVECARE MAKES NO WARRANTY THAT (I) THE SERVICES OR HARDWARE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICES OR HARDWARE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE OR ERROR-FREE, (III) THE RESULTS (SUCH AS VEHICLE ERROR CODE ANALYSIS) THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES OR HARDWARE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS. NO INFORMATION, ADVICE OR SERVICES OBTAINED BY YOU FROM EDRIVECARE OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS TOS.
FURTHER, THE SERVICES DOES NOT GUARANTEE THAT USE OF THE HARDWARE, SOFTWARE OR SERVICES WILL RESULT IN ANY GAS SAVINGS OR EFFICIENCIES OR THAT VEHICLE ERROR DETECTION WILL BE ACCURATE OR ERROR-FREE. THE SERVICES IS NOT INTENDED AND SHOULD NOT BE USED AS A STOLEN VEHICLE LOCATION 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.
9. LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL EDRIVECARE BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, (B) ANY INJURIES TO PERSONS OR DAMAGE TO PROPERTY RELATED TO YOUR USE OF THE SERVICES OR HARDWARE, INCLUDING ANY DAMAGES RELATING TO THE INSTALLATION, REPAIR, OR MAINTENANCE OF THE HARDWARE, OR (C) ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE SERVICES FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO SERVICES FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, EDRIVECARE’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless eDrivecare from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Services or Hardware. eDrivecare shall provide notice to you of any such claim, suit or demand. eDrivecare reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting eDrivecare’s defense of such matter.
You may not assign this TOS without the prior written consent of eDrivecare, but eDrivecare may assign or transfer this TOS, in whole or in part, without restriction.
This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by eDrivecare in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Services or Hardware.
Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. Most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at firstname.lastname@example.org. In the unlikely event that our customer care team is unable to resolve a complaint you may have (or if eDrivecare has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. Also, in any arbitration under this arbitration provision in which you seek less than $75,000 in damages, eDrivecare will pay reasonable attorneys’ fees should you prevail. eDrivecare will not seek attorneys’ fees from you. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of attorneys’ fees will be governed by the AAA Rules (as defined below). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
Arbitration Agreement: eDrivecare and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
- claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
- claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising);
- claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and
- claims that may arise after the termination of this TOS.
References to “eDrivecare”, “you”, and “us” include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this TOS, you and eDrivecare are each waiving the right to a trial by jury or to participate in a class action. This TOS evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this TOS.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to eDrivecare should be sent to the address located in Section 15 of this Terms of Service (“Notice Address”). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If eDrivecare and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or eDrivecare may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by eDrivecare or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or eDrivecare is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this TOS. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless eDrivecare and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. eDrivecare will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND EDRIVECARE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and eDrivecare agree in writing otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
Notwithstanding any provision in this TOS to the contrary, we agree that if eDrivecare makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Services or Hardware, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Hardware from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at eDrivecare, LLC., 910 N Ogden Dr, Suite 1, West Hollywood, CA90046 (“Notice Address”).
Questions? Concerns? Suggestions?
Please contact us at email@example.com to report any violations of this TOS or to pose any questions regarding this TOS, the Service, or the Hardware.