Hero CarCare, LLC

Terms and Conditions July 27, 2015

1. INTRODUCTION

The terms and conditions stated herein (collectively, the "Agreement") constitute a legal agreement between you, an individual from within the United States and its territories, and Hero CarCare, LLC, a Georgia Limited Liability Company (the "Company"). In order to use the Service and the associated Software you must agree to the terms and conditions that are set forth below. By using or receiving any services supplied to you by the Company (collectively, the "Service"), and downloading, installing or using any associated software supplied by the Company which purpose is to enable you to use the Service (collectively, the "Software"), you hereby expressly acknowledge and agree to be bound by the terms and conditions of this Agreement, and any future amendments and additions to this Agreement as published from time to time at http://www.herocarcare.com/terms or through the Service. If you do not agree to these terms, you may not access or use the Services. These terms expressly supersede prior agreements or arrangements with you. Company may immediately terminate these terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.

The Company reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service or Software at any time, effective upon posting of an updated version of this Agreement on the Service or Software. You are responsible for regularly reviewing this Agreement. Continued use of the Service or Software after any such changes shall constitute your consent to all such changes.

2. THE SERVICES

The Services constitute a technology platform that enables users of Company’s mobile applications or websites provided as part of the Services (each, an "Application") to arrange and schedule automotive services with third party providers of such services, including independent third party automotive services providers and third party logistics providers under agreement with Company or certain of Company's affiliates ("Third Party Providers"). Unless otherwise agreed by Company in a separate written agreement with you, the Services are made available solely for your personal, noncommercial use.

THE COMPANY DOES NOT PROVIDE AUTOMOTIVE SERVICES OF ANY KIND, AND THE COMPANY IS NOT A LOGISTICS CARRIER. IT IS UP TO THE THIRD PARTY PROVIDER TO OFFER AUTOMOTIVE SERVICES WHICH MAY BE SCHEDULED

Hero CarCare, LLC

THROUGH USE OF THE SOFTWARE OR SERVICE. THE COMPANY OFFERS INFORMATION AND A METHOD TO OBTAIN SUCH THIRD PARTY PROVIDER SERVICES, BUT DOES NOT AND DOES NOT INTEND TO PROVIDE AUTOMOTIVE SERVICES OR ACT IN ANY WAY AS A COURIER, AND HAS NO RESPONSIBILITY OR LIABILITY FOR ANY THIRD PARTY PROVIDER OR COURIER.

3. REPRESENTATIONS AND WARRANTIES

By using the Software or Services, you expressly represent and warrant that you are legally entitled to enter this Agreement. If you reside in a jurisdiction which restricts the use of the Services because of age, or restricts the ability to enter into agreements such as this one due to age, you must abide by such age limits and you must not use the Software and Service. Without limiting the foregoing, the Service and Software is not available to children (persons under the age of 18). By using the Software or Services, you represent and warrant that you are at least 18 years old. By using the Software or the Services, you represent and warrant that you have the right, authority and capacity to enter into this Agreement and to abide by all of the terms and conditions of this Agreement. Your participation in using the Service and/or Software is for your sole, personal use. You may not authorize others to use your user status, and you may not assign or otherwise transfer your user account to any other person or entity. When using the Software or Service you agree to comply with all applicable laws of the location in which you are physically present while using the Software or Service. You may only access the Services using authorized means. It is your responsibility to check to ensure you download the correct Software for your device.

By using the Software or the Services, you agree that:

  • You will only use the Service or Software for lawful purposes; you will not use the

    Services for sending or storing any unlawful material or for fraudulent purposes.

  • You will not use the Service or Software to cause nuisance, annoyance or inconvenience.

  • You will not impair the proper operation of the network.

  • You will not try to harm the Service or Software in any way whatsoever.

  • You will not copy, or distribute the Software or other content without written permission

    from the Company.

  • You will only use the Software and Service for your own use and will not resell it to a

    third party.

  • You will keep secure and confidential your account password or any identification we

    provide you which allows access to the Service.

  • You will provide us with whatever proof of identity we my reasonably request.

  • You will only use an access point or 3G data account (AP) which you are authorized to

    use.

4. TERM AND TERMINATION OF AGREEMENT

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This Agreement is effective upon the use of the Software or the Service. You or the Company may terminate your participation in the Service at any time, for any reason and the Company may prohibit your use of the Software or Service at any time in its sole discretion. The terms of this Agreement, and any subsequent modification of this Agreement, shall remain in effect at all times after you or the Company terminate your participation or access to the Software or Service.

5. LICENSE AND RESTRICTIONS OF USE

The Company hereby grants you a non-exclusive, non-transferable, right to use the Software and Service, solely for your own personal, non-commercial purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by the Company and its licensors. You shall not:

  1. license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Software in any way;

  2. modify or make derivative works based upon the Service or the Software;

  3. create Internet "links" to the Service or "frame" or "mirror" any Software on any other

    server or wireless or Internet-based device;

  4. reverse engineer or access the Software in order to

    a. build a competitive product or service
    b. build a product using similar ideas, features, functions or graphics of the Service

    or Software, or
    c. copy any ideas, features, functions or graphics of the Service or Software, or

  5. launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Service or Software.

You may use the Software and Service only for your personal, non-commercial purposes and shall not:

  1. send spam or otherwise duplicative or unsolicited messages in violation of applicable laws;

  2. send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights;

  3. send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs;

  4. interfere with or disrupt the integrity or performance of the Software or Service or the data contained therein; or

  5. attempt to gain unauthorized access to the Software or Service or its related systems or networks.

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6. USER PROVIDED CONTENT AND USE OF SERVICE

ACCOUNT CREATION. You must register with Company and create an account to use the Service. You are the sole authorized user of your account. You are responsible for maintaining the confidentiality of any password and account number provided by you or Company for accessing the Service. You are solely and fully responsible for all activities that occur under your password or account. Company has no control over the use of any user's account and expressly disclaims any liability derived therefrom. Should you suspect that any unauthorized party may be using your password or account or you suspect any other breach of security, you will contact Company immediately.

COLLECT INFORMATION. We collect information you provide directly to us, such as when you create or modify your account, request services, contact customer support, or otherwise communicate with us. This information may include: name, email, phone number, postal address, profile picture, payment method and transaction details, items requested (for automotive services), request notes, location information and other information you choose to provide.

SHARING OF INFORMATION. We may share the information we collect about you:

  • With Third Party Providers to enable them to provide the Services you request;

  • With third parties to provide you a service you requested through a partnership or

    promotional offering made by a third party or us;

  • With third parties with whom you choose to let us share information, for example other

    apps or websites that integrate with our Service, or those with a Service with which we

    integrate;

  • With Company subsidiaries and affiliated entities that provide services or conduct data

    processing on our behalf, or for data centralization and/or logistics purposes;

  • With vendors, consultants, marketing partners, and other service providers who need

    access to such information to carry out work on our behalf;

  • In response to a request for information by a competent authority if we believe disclosure

    is in accordance with, or is otherwise required by, any applicable law, regulation, or legal process;

USE OF INFORMATION. We may use the information we collect about you to provide, maintain, and improve our Service, including, for example, to facilitate payments, send receipts, provide products and services you request (and send related information), develop new features, provide customer support to users and Third Party Providers, develop safety features, authenticate users, and send product updates and administrative messages.

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  • With law enforcement officials, government authorities, or other third parties if we believe your actions are inconsistent with our user agreements, Terms of Service, or policies, or to protect the rights, property, or safety of the Company or others;

  • In connection with, or during negotiations of, any merger, sale of Company assets, consolidation or restructuring, financing, or acquisition of all or a portion of our business by or into another company;

  • If we otherwise notify you and you consent to the sharing; and

  • In an aggregated and/or anonymized form which cannot reasonably be used to identify

    you.

7. THIRD PARTY PROVIDERS ARE INDEPENDENT CONTRACTORS

If you are a Third Party Provider, you are an independent contractor and you are not an employee, owner, joint venturer, partner or agent of the Company and that there is no employment agreement between you and the Company. As such, Company will not be liable for any tax or withholding, including but not limited to unemployment insurance, employer’s liability, social security or payroll withholding tax in connection with your services. In addition, if you are a Third Party Provider, you further understand and agree that you have no authority to bind the Company and you will not make any representations to any party that you have any authority to bind the Company, as an employee, partner or otherwise.

You agree to indemnify, hold harmless and defend Company from any and all claims that a Third Party Provider was misclassified as an independent contractor, any liabilities arising from a determination by a court, arbitrator, government agency or other body that a Third Party Provider was misclassified as an employee (including, but not limited to, taxes, penalties, interest and attorney’s fees), any claim that Company was an employer or joint employer of a Third Party Provider, as well as claims under any employment-related laws, such as those relating to employment termination, employment discrimination, harassment or retaliation, as well as any claims for overtime pay, sick leave, holiday or vacation pay, retirement benefits, worker's compensation benefits, unemployment benefits, or any other employee benefits.

8. PAYMENT TERMS

Any fees which the Company may charge you for the Software or Service, are due immediately and are non-refundable. This no refund policy shall apply at all times regardless of your decision to terminate your usage, our decision to terminate your usage, disruption caused to our Software or Service either planned, accidental or intentional, for any reason whatsoever. The Company reserves the right to determine final prevailing pricing. The pricing information published on the website may not reflect the prevailing pricing.

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In addition to the amount due, delinquent accounts and/or chargebacks will be charged with fees and/or charges that are incidental to the collection of delinquent accounts and/or chargebacks including, but not limited to, collection fees and/or convenience fees and/or other third party charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to the Company by you. Such communication may be made by the Company or by anyone on its behalf, including but not limited to a third party collection agent.

The Company, at its sole discretion, makes promotional offers with different features and different rates to any of our customers. These promotional offers, unless made to you, shall have no bearing whatsoever on your offer or contract. The Company may change the fees for our Service or Software as we deem necessary for our business. We encourage you to check back at our website periodically if you are interested about how we charge for the Service of Software.

9. THIRD PARTY SERVICES AND CONTENT

During use of the Software and Service, you may enter into correspondence with, purchase goods and/or services from, or participate in promotions of third party service providers, advertisers or sponsors showing their goods and/or services through the Software or Service. Any such activity, and any terms, conditions, warranties or representations associated with such activity, is solely between you and the applicable third-party. The Company and its licensors shall have no liability, obligation or responsibility for any such correspondence, purchase, transaction or promotion between you and any such third-party. The Company does not endorse any sites on the Internet that are linked through the Service or Software, and in no event shall the Company or its licensors be responsible for any content, products, services or other materials on or available from such sites or third party providers. The Company provides the Software and Service to you pursuant to the terms and conditions of this Agreement. You recognize, however, that certain third-party providers of goods and/or services may require your agreement to additional or different terms and conditions prior to your use of or access to such goods or services, and the Company disclaims any and all responsibility or liability arising from such agreements between you and the third party providers.

The Company may rely on third party advertising and marketing supplied through the Software or Service and other mechanisms to subsidize the Software or Service. By agreeing to these terms and conditions you agree to receive such advertising and marketing. The Company may compile and release information regarding you and your use of the Software or Service on an anonymous basis as part of a customer profile or similar report or analysis. You agree that it is your responsibility to take reasonable precautions in all actions and interactions with any third party you interact with through the Service.

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10. OWNERSHIP OF INTELLECTUAL PROPERTY

The Company alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Software and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Software or the Service. This Agreement does not convey to you any rights of ownership in or related to the Software or the Service, or any intellectual property rights owned by the Company. The Company name, the Company logo, and the product names associated with the Software and Service are trademarks of the Company or third parties, and no right or license is granted to use them.

11. CLAIMS OF COPYRIGHT INFRINGEMENT

Company respects the intellectual property of others, and expects you to do the same. If you believe, in good faith, that any materials provided on or in connection with the Service infringes upon your copyright or other intellectual property right, please send copyright infringement information to Company's Copyright Agent at: 3379 Peachtree RD NE, Suite 555 Atlanta, GA 30326:

12. CONFIDENTIAL INFORMATION

You acknowledge that Confidential Information (as hereinafter defined) is a valuable, special and unique asset of Company and agree that you will not disclose, transfer, use (or seek to induce others to disclose, transfer or use) any Confidential Information for any purpose other than disclosure to your authorized employees and agents who are bound to maintain the confidentiality of Confidential Information. You shall promptly notify Company in writing of any circumstances which may constitute unauthorized disclosure, transfer, or use of Confidential Information. You shall use best efforts to protect Confidential Information from unauthorized disclosure, transfer or use. You shall return all originals and any copies of any and all materials containing Confidential Information to Company upon termination of this Agreement for any reason whatsoever. The term “Confidential Information” shall mean any and all of Company’s trade secrets, confidential and proprietary information and all other information and data of Company that is not generally known to the public or other third parties who could derive value, economic or otherwise, from its use or disclosure. Confidential Information shall be deemed to include technical data, know-how, research, product plans, products, services, customers, markets, software, developments, inventions, processes, formulas, technology, designs, drawings, engineering, hardware configuration information, marketing, finances or other business information disclosed directly or indirectly in writing, orally or by drawings or observation.

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13. INDEMNIFICATION

By entering into this Agreement and using the Software or Service, you agree that you shall defend, indemnify and hold the Company, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, members, employees, attorneys, assigns and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with:

  1. your violation or breach of any term of this Agreement or any applicable law or regulation, whether or not referenced herein;

  2. your violation of any rights of any third party, including providers of courier services arranged via the Service or Software, or

  3. your use or misuse of the Software or Service.

14. LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT COMPANY IS ONLY WILLING TO PROVIDE THE SERVICE IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABLITY TO YOU AND THIRD PARTIES. IN NO EVENT SHALL THE COMPANY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE SIX (6) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL THE COMPANY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING PERSONAL INJURY, LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE). THE COMPANY AND/OR ITS LICENSORS SHALL NOT BE LIABLE FOR ANY LOSS, DAMAGE OR INJURY WHICH MAY BE INCURRED BY YOU, INCLUDING BY NOT LIMITED TO LOSS, DAMAGE OR INJURY ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICE OR SOFTWARE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE OR SOFTWARE, ANY RELIANCE PLACED BY YOU ON THE COMPLETENESS, ACCURACY OR EXISTENCE OF ANY ADVERTISING, OR AS A RESULT OF ANY RELATIONSHIP OR TRANSACTION BETWEEN YOU AND ANY THIRD PARTY SERVICE PROVIDER, ADVERTISER OR SPONSOR WHOSE ADVERTISING APPEARS ON THE WEBSITE OR IS REFERRED BY THE SERVICE OR SOFTWARE, EVEN IF THE COMPANY AND/OR ITS LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

THE COMPANY MAY INTRODUCE YOU TO THIRD PARTY PROVIDERS FOR THE PURPOSES OF PROVIDING CERTAIN AUTOMOTIVE SERVICES. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY

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PROVIDERS AND YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL ANY LIABILITY, CLAIMS OR DAMAGES ARISING FROM OR IN ANY WAY RELATED TO THE THIRD PARTY PROVIDERS. THE COMPANY WILL NOT BE A PARTY TO DISPUTES, NEGOTIATIONS OF DISPUTES BETWEEN YOU AND SUCH THIRD PARTY PROVIDERS. WE CANNOT AND WILL NOT PLAY ANY ROLE IN MANAGING PAYMENTS BETWEEN YOU AND THE THIRD PARTY PROVIDERS. RESPONSIBILITY FOR THE DECISIONS YOU MAKE REGARDING SERVICES OFFERED VIA THE SOFTWARE OR SERVICE (WITH ALL ITS IMPLICATIONS) RESTS SOLELY WITH YOU. WE WILL NOT ASSESS THE SUITABILITY, LEGALITY OR ABILITY OF ANY SUCH THIRD PARTIES AND YOU EXPRESSLY WAIVE AND RELEASE THE COMPANY FROM ANY AND ALL LIABILITY, CLAIMS, CAUSES OF ACTION, OR DAMAGES ARISING FROM YOUR USE OF THE SOFTWARE OR SERVICE, OR IN ANY WAY RELATED TO THE THIRD PARTIES INTRODUCED TO YOU BY THE SOFTWARE OR SERVICE.

THE QUALITY OF THE SERVICES SCHEDULED THROUGH THE USE OF THE SERVICE OR SOFTWARE IS ENTIRELY THE RESPONSIBILITY OF THE THIRD PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT YOU USE THE SOFTWARE AND THE SERVICE AT YOUR OWN RISK.

15. DISCLAIMER OF WARRANTIES

THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR SOFTWARE. THE COMPANY DOES NOT REPRESENT OR WARRANT THAT:

  1. THE USE OF THE SERVICE OR SOFTWARE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA;

  2. THE SERVICE OR SOFTWARE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS;

  3. ANY STORED DATA WILL BE ACCURATE OR RELIABLE;

  4. THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER

    MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE

    WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS;

  5. ERRORS OR DEFECTS IN THE SERVICE OR SOFTWARE WILL BE

    CORRECTED; OR

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f. THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.

THE SERVICE AND SOFTWARE IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY THE COMPANY. THE COMPANY MAKES NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, SAFETY, TIMELINESS, QUALITY, SUITABILITY OR AVAILABILITY OF ANY SERVICES, PRODUCTS OR GOODS OBTAINED BY THIRD PARTIES THROUGH THE USE OF THE SERVICE OR SOFTWARE. YOU ACKNOWLEDGE AND AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE SOFTWARE AND SERVICE, AND ANY THIRD PARTY SERVICES OR PRODUCTS REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY LAW.

16. NOTICE

The Company may give notice by means of a general notice on the Service, electronic mail to your email address on record in the Company's account information, or by written communication sent by first class mail or pre-paid post to your address on record in the Company's account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to the Company (such notice shall be deemed given when received by the Company) at any time by any of the following: letter sent by confirmed electronic mail transmission (e-mail) to the Company at the following e-mail address (whichever is appropriate): admin@herocarcare.com or letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to the Company at the following addresses (whichever is appropriate): 3379 Peachtree RD NE, Suite 555, Atlanta, GA 30326 addressed to the attention of: Administrator.

17. INFORMATION NEGOTIATIONS AND DISPUTE RESOLUTION

INFORMAL NEGOTIATIONS. To expedite resolution and reduce the cost of any dispute, controversy or claim related to this Agreement (“Dispute”), you and Company agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon written notice. Your address for such notices is your billing

 

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address, with an email copy to the email address you have provided to Company. Company’s address for such notices is 3379 Peachtree RD NE, Suite 555, Atlanta, GA 30326; Attention: Legal.

ARBITRATION. If you and Company are unable to resolve a Dispute through informal negotiations, you agree that any Dispute will be settled by binding arbitration between you and Company, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights. You acknowledge and agree that you and Company are each waiving the right to a trial by jury or to participate as a plaintiff or class in any purported class action or representative proceeding. Further, unless both you and Company otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.

The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.

A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration at https://www.adr.org/aaa/ShowPDF?doc=ADRSTG_015820.) The arbitrator will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.

If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and Company submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. If your claim for damages does not exceed USD 10,000, Company will pay all such fees unless the arbitrator finds that either the substance of your claim

 

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or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Company may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.

18. MISCELLANEOUS PROVISIONS

ASSIGNMENT. This Agreement may not be assigned by you without the prior written approval of the Company but may be assigned without your consent by the Company to: (i) a parent or subsidiary; (ii) an acquirer of assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.

GOVERNING LAW. This Agreement shall be governed by the laws of the state of Georgia, without regard to the choice or conflicts of law provisions.

GENERAL. No joint venture, partnership, employment, or agency relationship exists between you, the Company or any third party provider as a result of this Agreement or use of the Service or Software. If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. The failure of the Company to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by the Company in writing. This Agreement comprises the entire agreement between you and the Company and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.

I HEREBY ACKNOWLEDGE THAT I HAVE READ AND UNDERSTAND THE FOREGOING TERMS AND CONDITIONS AND AGREE THAT MY USE OF THE SERVICE IS AN ACKNOWLEDGMENT OF MY AGREEMENT TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT.

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