This License Agreement and Terms of Service (“Agreement”) is between Konexial, Inc. ("Konexial", "We", "Us", or "Our") and you the Licensee ("Licensee" or "You") as You use the Hardware and the website located at Konexial.com (the "Site"). Please read this Agreement and its Terms of Service (the "Terms") carefully because they govern Your use of Our Service, Hardware, Software, Site, and App (all as defined below). By using our Services, you agree to be bound by these Terms, with your agreement being further specified in Section 2. Please contact us with any questions at firstname.lastname@example.org.
1.1. The "Service(s)" means Konexial's My20 mobile device application ("App"), GoLoad service ("Software"), the use of the Site, and the Electronic Location Device, cables, display devices, and accessories ("Hardware"), any software embedded in the Hardware) the Subscription Services (as defined in Section 9 of these Terms), and all of Our Content (as defined below). The Service does not include Your Data (as defined below) or any software application or service that is provided by You or a third party, which You use in connection with the Services, whether or not Konexial designates them as official integrations (each a "Non-Konexial Product"). Any modifications, updates, and features added to the Service by Konexial are also subject to these Terms. All rights, title and interest in and to the Service and its components (including all intellectual property rights) will remain with and belong exclusively to Konexial, including the rights to any text, graphics, ../images, music, software, audio, video, documents, works of authorship of any kind, de-identified and aggregated data collected by the Services, and information or other materials that are posted, generated, provided or otherwise made available by us through the Services ("Our Content").
3.1. Konexial hereby grants a license, and You hereby accept that license, to use the Services, including the Hardware, Software, Site, and App.
3.2. You may access and use the Services only for lawful, authorized purposes and You shall not misuse the Services in any manner (as determined by Konexial in its sole discretion). You shall comply with any codes of conduct, policies, storage limitations, or other notices Konexial provides you or publishes in connection with the Services.
3.3. Any Software, Hardware, or any of Our Content that may be made available by or on behalf of Konexial in connection with the Service contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to these Terms, Konexial only grants You a personal, non-sublicensable, non-exclusive and revocable license to use the Software, Site, Hardware, and App solely in connection with the Service. Any rights not expressly granted herein are reserved.
3.3. Subject to your compliance with these Terms, Konexial grants you a limited, non-exclusive, non-transferable, non-sublicensable and revocable license to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App. Konexial reserves all rights in and to the App not expressly granted to you under these Terms.
3.4. You may use the Services only if you are 18 years or older and capable of forming a binding contract with Konexial and are not barred from using the Services under applicable law.
3.5. You agree to create an account ("Account") to access and use the Services. You agree to provide Us with accurate, complete and up-to-date information for Your Account and You agree to update such information to keep it accurate, complete and up-to-date.
3.6. You agree to we have the authority to suspend or terminate your Account for any reason.
3.7. You agree that you won't disclose your Account password to anyone and you'll notify us immediately of any unauthorized use of your Account. You're responsible for all activities that occur under your Account, whether or not you know about them. You agree to prevent any unauthorized access or use of Your Account and to terminate any unauthorized use of or access to the Services under Your Account
3.8. You may not share your Account information with, or allow access to your Account by, any third party. You are solely responsible for all activity that occurs under your access credentials.
3.9. You may not sell, resell or lease the Services.
3.10. You shall promptly notify Konexial if you learn of a security breach related to the Service.
3.11. You assume sole responsibility for Your driving and driving logs and for complying with all state and federal regulation including, but not limited to, FMCSA Hours of Service of drivers.
4.3. Your acceptance of these Terms does not grant us full ownership of all of Your Data. As between Konexial and you, you are only granting us the rights and licenses necessary to provide our Services to you and any other services for which you have signed up through any of our resellers, business partners and affiliated businesses. In order for us to provide the Services to you, we need to be able to transmit, store and copy Your Data in order to display it to you and to those with whom you share it, to index it so you are able to search it, to make backups to prevent data loss, to send your submissions and messages through our platform, and so on. For example, if you submit documents or send messages to a Fleet User, you are granting us a royalty-free, perpetual, sublicensable, irrevocable and worldwide license for us to transform, modify, reproduce, display, perform and distribute such documents and messages for your and the Fleet User's use of the Services.
Your acceptance of these Terms gives us the permission to do so and grants us any such rights and licenses necessary to provide the Service to you, and any other services or products for which you have signed up through any of our resellers, business partners and affiliated businesses. For example, if you have agreed to share any of Your Data, or any other data we collect in connection with your use of the Services, with one of our partners or affiliates or other third party, you grant us the rights and licenses to share or deliver such data. This permission includes allowing us to use third-party service providers (such as Amazon Web Services) in the operation and administration of the Service and the rights granted to us are extended to these third parties to the degree necessary in order for the Service to be provided.
If you authorize a third party to receive Your Data, we may provide Your Data to a third party. If we have an agreement with such third party to market the Services or otherwise provide services or products to you, either jointly or separately, we may rely on a representation from that third party that you have authorized such third party to receive Your Data.
4.4. You are solely responsible for your conduct (including by and between all users), the content of Your Data, and all communications with others while using the Services. You represent and warrant that you own all Your Data or you have all rights that are necessary to grant us the license rights in Your Data under these Terms. You also represent and warrant that neither Your Data, nor your use and provision of Your Data, nor any use of Your Data by Konexial on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. We are not responsible for the accuracy, appropriateness, or legality of Your Data or any other information you and your users may be able to access using the Services. Should you be in violation of these Terms, we have the right to remove any of Your Data causing such violation.
4.5. While you retain ownership in all rights to your feedback and suggestions, you agree that by submitting suggestions or other feedback regarding our Services or Konexial, Konexial may use such feedback for any purpose without compensation to you. We appreciate all of your feedback and suggestions, and you can submit feedback by emailing us at feedback@Konexial.com.
4.6. The Children's Online Privacy Protection Act ("COPPA") requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register or sign up for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as possible. If you believe that a child under 13 may have provided us personal information, please contact us at email@example.com.
5.1. We may modify these Terms at any time, in our sole discretion. Any modifications will be posted on the Site or through other communications. Continue use the Services after a modification is Your acquiesces to those modification and Your agreement to be bound by the modified Terms.
6.1. Konexial is not a party to any relationships or agreements between you and any third parties for the performance of any duties between the parties, and does not have control over and disclaims all liability for the quality, timing, legality, failure to provide, or any other aspect whatsoever of any professional duties performed by you or other users of the Services. Konexial acts only as an interface to facilitate -- not to direct or control -- communications between users of Konexial's Services.
7.1. The Services enable a commercial motor vehicle driver ("Driver") to connect directly with a motor carrier ("Company"), allowing Drivers to send messages and automatically share their driving logs, documents, location information and other data ("Driver Data") with the Company. When Drivers connect with a Company through the Services, the Company's employees and other third parties who are also connected to that Company ("Company Users") may access Driver Data for all Drivers who are connected to that same Company.
7.2. If a Driver connects with a Company, the Driver should be aware that the Driver's Driver Data will be automatically shared with that Company and its Company Users and that Company and its Company Users will be able to send messages to that Driver. Please consider carefully the parties with whom you choose to connect and what you choose to share. Konexial's role in this process is solely to provide the technology and platform that enables these Services.
The following provisions of this Section 8 apply to you only if you have ordered Subscription Services and have a direct billing relationship with Konexial for such Subscription Services. If you have Licensed any Konexial Hardware from us or a reseller, please refer to the Hardware Warranty available at https://Konexial.com/warranty (the "Hardware Warranty") for further terms related to your Konexial Electronic Location Device.
8.1. Description of the Subscription Services. Konexial offers a service that Driver connects with a Company for the purpose of allowing a Driver to transport cargo for the Company "Subscription Services"). Subscription Services requires You to submit and agree to the terms of an order form, or other form of communication, for ordering the Subscription Services from Konexial, as applicable ("Order Form"), which is subject to Konexial's acceptance. Konexial reserves the right to refuse any Order Form, and receipt of an Order Form is not considered acceptance of such Order Form. To the extent you use any of our Subscription Services, you will be required to provide Konexial accurate information regarding your credit card or other payment instrument (a "Payment Method"). You will promptly update your Account information with any changes in your Payment Method. If you do not update your Account with changes in your Payment Method, we may suspend or terminate your subscription to the Subscription Services. If any of the Services which you are currently using are free, we will notify you before any such Services become paid Services and if you wish to continue using such Services, you must pay all applicable fees for such Services.
8.2.1. Pricing and Payments. Upon acceptance of Your Order Form by Konexial, You agree to pay Konexial in accordance with the terms set forth on Your Order Form and the terms of this Agreement, and you authorize Konexial to bill your Payment Method in advance on a periodic basis in accordance with such terms. Please be aware that the pricing for the Subscription Services will be governed by the terms in your Order Form, upon acceptance by Konexial, and not the pricing set forth at Konexial.com/pricing.
8.2.2. Billing Arrangement. We use a third-party payment processor (the "Payment Processor") to bill you through a payment account linked to your Account on the Services (your "Billing Account") for use of the Subscription Services. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to these Terms. We are not responsible for error by the Payment Processor. By choosing to use Subscription Services, you agree to pay us, through the Payment Processor, all charges at the prices then in effect for any use of such Paid Services in accordance with the applicable payment terms and you authorize us, through the Payment Processor, to bill your Payment Method. You agree to make payment using that selected Payment Method. We reserve the right to correct any errors or mistakes that it makes even if it has already requested or received payment.
8.2.3. Payment Method. The terms of your payment will be based on your Payment Method and may be determined by agreements between you and the financial institution, credit card issuer or other provider of your chosen Payment Method. If we, through the Payment Processor, do not receive payment from you, you agree to pay all amounts due on your Billing Account upon demand.
8.2.4. Recurring Billing. Some of the Subscription Services may consist of an initial period, for which there is a one-time charge, followed by recurring period charges as agreed to by you. By choosing a recurring payment plan, you acknowledge that such Subscription Services have an initial and recurring payment feature and you accept responsibility for all recurring charges prior to cancellation. WE MAY SUBMIT PERIODIC CHARGES (E.G., MONTHLY) WITHOUT FURTHER AUTHORIZATION FROM YOU, UNTIL YOU PROVIDE PRIOR NOTICE (RECEIPT OF WHICH IS CONFIRMED BY US) THAT YOU HAVE TERMINATED THIS AUTHORIZATION OR WISH TO CHANGE YOUR PAYMENT METHOD. SUCH NOTICE WILL NOT AFFECT CHARGES SUBMITTED BEFORE WE REASONABLY COULD ACT. TO TERMINATE YOUR AUTHORIZATION OR CHANGE YOUR PAYMENT METHOD, EMAIL firstname.lastname@example.org.
8.2.5. Change in Amount Authorized. If the amount to be charged to your Billing Account varies from the amount you preauthorized (other than due to the imposition or change in the amount of state sales taxes), you have the right to receive, and we shall provide, notice of the amount to be charged and the date of the charge before the scheduled date of the transaction. Any agreement you have with your payment provider will govern your use of your Payment Method. You agree that we may accumulate charges incurred and submit them as one or more aggregate charges during or at the end of each billing cycle.
8.2.6. Billing Disputes. If you dispute any charges you must let Konexial know within sixty (60) days after the date that Konexial invoices you. All amounts paid are non-refundable and we reserve the right to change our prices in the future. Konexial may choose to bill you through an invoice, in which case, full payment for invoices issued must be received by the date specified in the invoice. Past due fees are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection.
8.2.7. Taxes. You are responsible to pay any and all taxes that we may be required to collect or pay based on providing the Services other than taxes based on our net income.
8.2.8. Discontinuation of Services. If you choose to discontinue, cancel or terminate any Subscription Services for which you have agreed to on an Order Form before the end of the term agreed to in such Order Form, Konexial shall have the right to immediately charge the Payment Method associated with your Account for the remaining balance due with respect to the agreed upon Term of your Subscription Services, all as further specified in your Order Form or in any agreements to extend the initial term of your Order Form.
8.2.9. AUTO-RENEWAL FOR SUBSCRIPTION SERVICES. Unless you opt out of auto-renewal, which can be done by emailing us at email@example.com or by calling us at 800-xxx-xxxx, any Subscription Services you have signed up for will be automatically extended for successive renewal periods of the same duration as the subscription term originally selected, at the then-current non-promotional rate. If you terminate a Subscription Service, you may use your subscription until the end of your then-current term; your subscription will not be renewed after your then-current term expires. However, you won't be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period.
8.2.10. Reaffirmation of Authorization. Your non-termination or continued use of any Subscription Service reaffirms that we are authorized to charge your Payment Method for that Premium Service. We may submit those charges for payment and you will be responsible for such charges. This does not waive our right to seek payment directly from you. Your charges may be payable in advance, in arrears, per usage, or as otherwise described when you initially selected to use the Premium Service.
8.3. Terms Related to Hardware Devices
8.3.1. Delivery. Please refer to your Order Form and further communications with Konexial regarding the estimated time of delivery of the Hardware. Konexial is not liable for any delayed or late delivery of the Hardware.
8.3.2. Installation. You are solely responsible for installing the Hardware in accordance with Konexial's written instructions. You acknowledge that you're aware that in order to install the Hardware you may choose to drill holes in your vehicle, and you agree that Konexial is not liable for any cost, expense or damages arising from the installation of the Hardware. Konexial is not responsible for any damage arising from installation of the Hardware that does not follow Konexial's written instructions.
8.3.3. Terms Related to Leased Hardware
(i) Ownership of the Hardware. Notwithstanding delivery of the Hardware to you and your license to use the Services, unless you have purchased the Hardware in full from Konexial, Konexial retains ownership of the Hardware and the software contained therein.
(ii) Return of Leased Hardware. At the end of the initial term specified on the Order Form or as such term is extended by further agreement between you and Konexial ("Term"), or if the Subscription Services have been terminated for any other reason, you must, at your own expense, uninstall, package and return the Hardware to Konexial within 30 days of the end of the Term, in reasonable condition allowing for wear and tear. If we haven't received the Hardware within 30 days of termination of the Subscription Services, or if the Hardware is returned in damaged condition, we will charge you $200 per unit of unreturned or damaged Hardware, so please ensure that you promptly return your Hardware. We reserve the right to charge these fees to the Payment Method that you have on file with us.
(iii) Your Responsibility for the Hardware. Except for with respect to our gross negligence or willful misconduct, you are responsible for the loss of, damage to, or the entire cost of any necessary service or repair of the Hardware. You have no right to sell, give away, transfer, pledge, mortgage, alter or tamper with the Hardware.
(iv) Material Defects. If you report to us, in writing, a material defect in the Hardware or the Subscription Services, we will run a diagnostic test of the Hardware and Subscription Services. If we determine that there is a material defect in the Hardware or the Subscription Services, we will send you replacement Hardware or work to resolve any other issues with the Subscription Services. Within 30 days of receipt of the replacement Hardware you must, at your own expense, uninstall, package and return the defective Hardware to Konexial. If we haven't received the defective Hardware within 30 days of your receipt of the replacement Hardware, or if the equipment is returned in damaged condition, we will charge you $200 per unit of unreturned or damaged Hardware, so please promptly attend to your Hardware return. We reserve the right to charge these fees to the Payment Method that you have on file with us. If we are unable to reasonably correct the defect within 15 days of your report, we will refund you a proportionate amount of the fees paid for the Subscription Services for those parts of the Subscription Services that were inoperative from the time of the report to when the defect was resolved ("Material Defects Refund"). You agree that the your only remedy for such a defect is your right to a Material Defects Refund as provided in this paragraph.
(v) Limitations on the Material Defects Refund. The Material Defects Refund policy in Section 9.3.7 is null and void in the event of (a) any alteration, modification or special configuration or installation or deinstallation of the Hardware or the embedded software without following Konexial's written instructions; (b) accidents affecting the Hardware, misuse, tampering with, abuse, neglect or damage the Hardware; (c) use the Services not in the ordinary course of your business operations; (d) connecting the Hardware to an improper voltage supply; (e) water, weather or physical damage; or (f) use of the Hardware with accessories and/or devices which are not approved by Konexial.
8.3.6. Warranty Disclaimer and Limitation of Liability
(i) TO THE MAXIMUM EXTENT ALLOWABLE BY LAW AND EXCEPT AS PROVIDED HEREIN AND IN THE HARDWARE WARRANTY, WHICH APPLIES TO YOU ONLY IF YOU HAVE LICENSED THE HARDWARE, WE MAKE NO WARRANTY OR REPRESENTATION, EITHER EXPRESS OR IMPLIED, REGARDING ANY OF THE HARDWARE, WHICH IS PROVIDED TO YOU AS IS AND WITH ALL FAULTS. ALL SUCH WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE EXPRESSLY EXCLUDED. YOU BEAR THE ENTIRE RISK AS TO THE QUALITY AND PERFORMANCE OF THE HARDWARE. KONEXIAL IS NOT RESPONSIBLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATING TO THE HARDWARE.
(ii) The Hardware connects to the battery of your vehicle and consumes a small drain on your vehicle's battery, which may adversely affect your vehicle while not in operation. Konexial is not liable for any consequences of the battery drain associated with use of the Hardware or the Services.
8.3.7. Customer Service. In the event the Hardware does not operate, please contact us by emailing us at firstname.lastname@example.org or by calling us at 1-xxx-xxx-xxxx.
10.1. IT IS STRICTLY FORBIDDEN TO USE THE KONEXIAL APP WHILE DRIVING.
10.2. You further agree not to do any of the following:
10.2.1. Post, upload, publish, submit or transmit anything that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
10.2.2. Use, display, mirror or frame the Services, or any individual element within the Services, Konexial's name, any Konexial trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Konexial's express written consent;
10.2.3. Access, tamper with, or use non-public areas of the Services, Konexial's computer systems, or the technical delivery systems of Konexial's providers;
10.2.4. Attempt to probe, scan, or test the vulnerability of any Konexial system or network or breach any security or authentication measures;
10.2.5. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Konexial or any of Konexial's providers or any other third party (including another user) to protect the Services;
10.2.6. Attempt to access or search the Services or download any Software or Our Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Konexial or other generally available third party web browsers;
10.2.7. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
10.2.8. Use any meta tags or other hidden text or metadata utilizing a Konexial trademark, logo, URL or product name without Konexial's express written consent;
10.2.9. Use the Services for the benefit of any third party or in any manner not permitted by these Terms;
10.2.10. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
10.2.11. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
10.2.12. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
10.2.13. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
10.2.14. Impersonate or misrepresent your affiliation with any person or entity;
10.2.15. Violate any applicable law or regulation; or
10.2.16. Encourage or enable any other individual to do any of the foregoing.
10.3. Although we're not obligated to monitor access to or use of the Services or to review or edit any of Services or Your Data, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, or to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any of Our Content or Your Data, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any of Our Content or Your Data to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
These Terms apply to your use of all the Services, including the iPhone and iPad applications available via the Apple, Inc. ("Apple") App Store (each an "App Store App"), but the following additional terms also apply to App Store Apps:
(i) Both you and Konexial acknowledge that the Terms are concluded between you and Konexial only, and not with Apple, and that Apple is not responsible for App Store Apps or the Content;
(ii) The App Store Apps are licensed to you on a limited, non-exclusive, non-transferable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
(iii) You will only use the App Store Apps in connection with an Apple device that you own or control;
(iv) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Apps;
(v) In the event of any failure of the App Store Apps to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple's sole warranty obligation to you will be to refund to you the purchase price, if any, of the App Store App;
(vi) You acknowledge and agree that Konexial, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App Store App;
(vii) You acknowledge and agree that, in the event of any third party claim that the App Store App or your possession and use of the App Store App infringes that third party's intellectual property rights, Konexial, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
(viii) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
(ix) Both you and Konexial acknowledge and agree that, in your use of the App Store App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
(x) Both you and Konexial acknowledge and agree that Apple and Apple's subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
PLEASE READ THIS SECTION CAREFULLY AS IT MAY AFFECT YOUR LEGAL RIGHTS AND YOUR RIGHT TO FILE A LAWSUIT IN COURT, YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION. Unless otherwise agreed to by both parties in writing, you and Konexial agree that, in order to expedite and control the cost of any disputes, any legal or equitable claim arising out of or relating in any way to your use of the Services, or any use of the Services by a user to whom you provide access to your Account, or arising out of or relating to these Terms and the Hardware Warranty ("Claim") will be resolved as follows:
12.1. Informal Dispute Resolution. Except with respect to Claims listed in Section 13.6, below, you and Konexial agree to attempt to resolve any disputes informally before initiating any arbitration or other formal proceedings, and neither of us may start an arbitration or other formal proceeding for at least 30 days after you contact us or we contact you regarding any dispute ("Informal Negotiation Period").
12.2. Agreement to Arbitrate. If such dispute is not resolved within 30 days, you or Konexial may initiate a formal arbitration proceeding in accordance with the terms in this Section 13. Except with respect to Claims listed in Section 13.6, below, you and Konexial agree to resolve any Claims relating to or arising from the Services, these Terms or the Hardware Warranty through final and binding arbitration in accordance with the terms in this Section 13.
12.3. Arbitration Notice. If either you or Konexial chooses to start an arbitration proceeding, the party initiating the proceeding will send a notice of its Claim ("Arbitration Notice") to the other party. You will send your Arbitration Notice by email to email@example.com and by U.S. mail to:
12.4. Arbitration Procedures. Any arbitration proceedings between you and us will be conducted under the commercial rules then in effect for the American Arbitration Association ("AAA"), except with respect to the provision of this agreement which bars class actions in Section 13.8 and any specific rules and procedures explicitly discussed in this Section 13.4. The award rendered by the arbitrator(s) shall include costs of arbitration, reasonable costs of expert and other witness and reasonable attorneys' fees. For claims less than $10,000, we will advance to you AAA's filing fees; provided, however, that such fees must be repaid to Konexial if Konexial prevails in the arbitration. Please see this link for the AAA's current rules and procedures or contact the AAA at 1-800-778-7879.
12.5. Non-Appearance-Based Arbitration Option. Except with respect to the exceptions to arbitration below in Section 13.6, for Claims where the total amount of the award sought in arbitration is less than $10,000, the party seeking the award may choose non-appearance-based arbitration. If non-appearance-based arbitration is elected, the arbitration will be conducted online, by telephone, and/or solely based on written submissions to the arbitrator. The specific manner shall be chosen by the party initiating arbitration. Non-appearance-based arbitration involves no personal appearances by parties or witnesses unless otherwise mutually agreed to by the parties.
12.6. Exceptions to the Agreement to Arbitrate.
12.6.1. Notwithstanding the foregoing, the Arbitration Notice requirement and the Informal Negotiation Period do not apply to either law suits solely for injunctive relief to stop unauthorized use of the Services or lawsuits concerning copyrights, trademarks, moral rights, patents, trade secrets, claims of piracy or unauthorized use of the Services.
12.6.2. Either you or Konexial may assert claims which qualify for small claims court in San Francisco, CA or in any United States county in which you either live or work.
12.7. Opting Out of the Agreement to Arbitrate. You have the right to opt-out and not be bound by the binding agreement to arbitrate provided in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org AND by U.S. Mail to Konexial, _______________________________________. In order for your opting out to be valid, your notice must be sent within 30 days of first using the Services.
12.8. No Class Actions. Unless you and Konexial agree otherwise, you may only resolve disputes with us on an individual basis. Class actions, class arbitrations, private attorney general actions and consolidations with other Claims are not allowed. Neither you nor Konexial may not consolidate a Claim or Claims as a plaintiff or a class member in a class action, a consolidated action or a representative action.
12.9. Consent to Jurisdiction. If the agreement to arbitrate provided for in these Terms is found not to apply to you or your Claim, or if you or Konexial challenges any arbitration award or seeks to have an arbitration award enforced, you and Konexial agree that any judicial proceeding will be brought in the federal or state courts located in San Francisco, CA. You and Konexial consent and agree to both venue and personal jurisdiction in the federal and state courts located in San Francisco, CA.
12.10. Release from Third-Party Claims. Because Konexial is not party to any agreements between you and any third parties or involved in the completion of any associated professional services, in the event that you have a dispute with one or more other Drivers, Company Users or Companies or other third parties, as applicable (each, an "Other Party"), you agree to address such dispute directly with the Other Party in question and you release Konexial (and our officers, directors, agents, investors, subsidiaries, and employees from any and all claims, demands, or damages (actual or consequential)) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
13.1. The Services may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such sites. You acknowledge sole responsibility for, and assume all risk arising from, your use of any third-party websites or resources.
14.1. We respect the ownership rights of artists and other content owners and creators and ask that you do too. We respond to notices that we receive regarding alleged infringement if they comply with the requirements of and process specified in the Digital Millennium Copyright Act of 1998 ("DMCA"). For an overview of the DMCA's notice and takedown procedures for allegedly infringing material, please see http://www.copyright.gov/legislation/dmca.pdf. For more comprehensive provisions please see http://www.copyright.gov/title17/92chap5.html#512. To review our complete Copyright Dispute Policy and learn how to report potentially infringing content, click here.
14.2. Upon receipt of a notice which complies with the DMCA, we will take whatever action we deem appropriate, including removing the allegedly infringing content from the Services and limiting or terminating use of the Services for any users who are infringing the property rights of others.
14.3. Please note that this Section is intended to inform you and copyright owners of procedures under the DMCA and to comply with Konexial's rights and obligations under the DMCA. This Section does not constitute legal advice, and it may be advisable to contact an attorney concerning your rights and obligations under the DMCA and any other applicable laws.
15.1. These Terms will continue in full force and effect unless and until your Account or these Terms are terminated as described herein.
15.2. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at email@example.com. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of the Terms that should, by their nature, survive termination of this Terms will survive termination. Such provisions include, but are not limited to: Your Data, Your Privacy, Your Ownership of Your Data, and Licenses for Our Use of Your Data; Disclaimers; Indemnity; Limitation of Liability; Arbitration Agreement, Dispute Resolution and Release; General Terms; and provisions related to ownership.
15.3. In the event that you have paid for Subscription Services, and we terminate your Account in our own discretion with no fault of your own, we will refund you a proportionate amount of the fees paid for the Subscription Services for the time from which we terminated your Account to the end of the then-current payment period.
15.4. All accrued rights to payment shall survive termination of the Terms.
15.5. Notwithstanding Section 15.2, please be aware that once your Account has been terminated, we no longer have any obligation to maintain or provide Your Data, and we may delete or destroy all copies of Your Data in our possession or control, unless legally prohibited.
16.1. THE SERVICES ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. KONEXIAL EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY DRIVER, FLEET USER, COMPANY OR OTHER THIRD PARTY. Except with respect to the limited warranty contained in the Hardware Warranty, if applicable to you, we make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any of the Services or anything shared by any users of the Services.
16.2. You are solely responsible for your interactions with other users on the Services. You are solely responsible for, and will exercise caution, discretion, common sense and judgment in, using the Services.
16.3. Neither Konexial nor its affiliates or licensors is responsible for the conduct of any user of Konexial's Services. Your use of the Services and your use of Your Data in connection with the Services and performance of and participation in any professional services is at your sole risk and discretion and Konexial hereby disclaims any and all liability to you or any third party relating thereto.
17.1. NEITHER KONEXIAL NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES OR CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT KONEXIAL HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
17.2. TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, KONEXIAL DOES NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY PROFESSIONAL SERVICES PERFORMED BY USERS OF OUR SERVICES IN CONNECTION WITH THEIR USE OF THE SERVICES. KONEXIAL WILL NOT BE LIABLE TO YOU UNDER ANY CIRCUMSTANCES ARISING OUT OF THE MISUSE OF YOUR USER CONTENT BY THIRD PARTIES INCLUDING, WITHOUT LIMITATION, OTHER USERS WITH WHOM YOU HAVE CONNECTED THROUGH THE SERVICES OR ENTERED INTO AN AGREEMENT IN CONNECTION WITH THE PERFORMANCE OF PROFESSIONAL SERVICES. IN NO EVENT WILL KONEXIAL'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES OR CONTENT EXCEED THE GREATER OF (A) ONE HUNDRED DOLLARS ($100) OR (B), IF YOU HAVE ORDERED SUBSCRIPTION SERVICES FROM KONEXIAL, THE TOTAL AMOUNT OF FEES RECEIVED BY KONEXIAL FROM YOU FOR THE USE OF SUBSCRIPTION SERVICES DURING THE PAST SIX (6) MONTHS. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN KONEXIAL AND YOU.
17.3. Any cause of action related to the Services or the Terms must commence within one (1) year after the cause of action arises. Otherwise, such cause of action is barred permanently.
18.1. You will indemnify, defend and hold harmless Konexial and its officers, directors, employees and agents, from and against, and covenant not to sue them for any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Our Content; (ii) Your Data; (iii) your performance of or participation in professional services in connection with your use of the Services or Our Content; or (iv) your violation of these Terms. Konexial reserves the right to control and conduct the defense of any matter subject to indemnification under these Terms. If Konexial decides to control or conduct any such defense, you agree to cooperate with Konexial's requests in assisting Konexial's defense of such matters.
19.2. Assignment. You may not assign or transfer these Terms, by operation of law or otherwise, without Konexial's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Konexial may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
19.3. Governing Law. The Terms and the relationship between you and Konexial shall be governed by the laws of the State of California.
19.4. Notices. Any notices or other communications provided by Konexial under these Terms, including those regarding modifications to these Terms, will be given by Konexial: (i) via email; or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
19.5. Waiver and Severability. Konexial's failure to enforce any right or provision of these Terms will not be considered a waiver of those rights. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Konexial. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If any of these Terms are unenforceable, it will not affect the enforceability of the rest of the Terms.