| DIRECTED SMARTSTART TERMS AND CONDITIONS |
|
Your SmartStart is an “always-on” connected device that communicates over the GSM network. Just like a cell phone, your SmartStart requires a service plan from a 3rd party provider to communicate over the network.
Like all other "unlimited” services such as cell phone data plans, we do have a limit on the number of uses per month that we can enforce on a case by case basis in the event that a device is malfunctioning or a subscriber is clearly abusing the service (e.g. commercial purposes). In the unlikely event that you approach the usage limits of your service plan, you’ll receive a notice with an option to opt up to a higher usage plan for an additional fee.
Feature availability of your SmartStart system may vary based on features enabled by the installer, the type of compatible Directed remote start/security system installed (with the DSM100 module), and the type of vehicle. Visit www.Directed.com/SmartStart for more information on SmartStart hardware or installation requirements.
For any other questions about operating your SmartStart, the latest information on new features, or customer support, please visit www.Directed.com/SmartStart.
|
|
|
| CALAMP ONLINE SUBSCRIBER AGREEMENT TERMS AND CONDITIONS |
|
|
This CalAmp Online Subscriber Agreement (the "Agreement") is made between CalAmp DataCom, Inc. ("CalAmp") and the purchaser ("You or Your") of communication data services ("Services"), as further described below.
|
|
- ACCEPTANCE: This Agreement constitutes the entire agreement and understanding between You and CalAmp and supersedes all previous proposals, oral or written, and all other communications between the parties relating to the purchase of Services from CalAmp for the CalAmp Mobile Location Unit (the “Unit”) identified by You by serial number in connection Your request for activation of the Unit. Execution (through electronic acceptance) of this Agreement by You constitutes acceptance of these Terms. CalAmp is not bound by different terms and conditions elsewhere unless expressly agreed to in writing by an officer of CalAmp. This Agreement applies to any Services You purchase from CalAmp or CalAmp’s agents in connection with the Unit You are activating through this subscription agreement.
- INSTALLATION: Improper mounting location or procedure may result in complete or partial loss of functionality of the Unit and the inability to utilize Services purchased under this Agreement. It is solely Your responsibility to ensure that the Unit is properly installed. CalAmp shall not be liable to You or to any person for any loss or damage caused by improper installation of the Unit, including any loss of Services due to improper installation. You agree to indemnify and hold CalAmp, and any air time or cellular provider and any hardware supplier of CalAmp (collectively, “Third Party Providers”), harmless from any and all claims or damages You or any person may have for any loss or damage caused by improper installation of the Unit.
- LOCATION AND DATA COMMUNICATION SERVICES: Specific services, service rates and service terms and conditions (“Service Plan”) may be included with the Purchase of the Units or may be purchased by You by logging onto one of CalAmp’s internet websites. All Services are subject to the Limitations of Technology set out in this Agreement, proper installation, use and maintenance of the Unit, and the terms and conditions of CalAmp’s Service Plans. CalAmp is constantly innovating in order to provide the best possible experience for its customers. You acknowledge and agree that the form and nature of the Services may change from time to time without prior notice to You. The Services are for vehicle location, if applicable, and communication with the Unit only, and are not intended as emergency services. The Services have no connection to any law enforcement agency or emergency services personnel. If needed, You or Your customer, as applicable, must contact the appropriate law enforcement agency or emergency services personnel to obtain assistance. If Services are purchased for commercial purposes, You agree to communicate to Your customer that the Services are not intended to provide access to emergency personnel or services and that Your customer must contact law enforcement agencies or emergency services personnel directly through means other than the Services provided. CalAmp accepts no responsibility or liability for use of the Services in emergency situations and does not contact or communicate with law enforcement agencies on Your or, if applicable, Your customer’s behalf.
- PRICING OF SERVICES: The Services are priced in terms of access units and/or actions, with each type of location and data communication service being assigned a specific number of actions. The Unit is assigned to the Service Plan that has been selected by You at time of purchase of the Unit or Service Plan on one of CalAmp’s websites. The number of actions included and pricing will be as described at the time of purchase. System usage beyond the number of actions included under Your selected Service Plan will require you to purchase additional Service. You agree that CalAmp may terminate Your Service Plan for excessive or uncontrolled airtime action and use due to Unit malfunction or Your abuse. CalAmp may invoice You for system usage beyond the number of actions included under Your selected Service Plan at CalAmp’s standard access unit and/or action rates in accordance with the terms of your specific Service Plan. The aggregate number of actions and/or actions included under the selected Service Plan may be used only as set forth in that Service Plan. No credit will be given for actual but unintended usage. At the conclusion of the Service Plan term, any unused airtime actions will expire. CalAmp may, at any time, revise (a) the rates for Service Plans, (b) the number of actions assigned to each location and data communication service, and (c) the cost and features of the Services and programs. Though CalAmp may revise the rates of Service Plans at any time, the rate you will pay for any Service Plan you purchase will not change for the initial term of Your subscription. You may renew any Service Plan or purchase additional Service Plans at the prevailing rates for those Service Plans at the time of renewal of the Service Plan or purchase of additional Service Plans. Following the expiration of Your Service Plan, CalAmp’s new Service Plans and Service Plan rates will be applicable to You for continued Services. The Services are solely for the purpose of allowing You to locate and communicate with the Unit and may not be resold or otherwise offered to or used by third parties. You agree not to access (or attempt to access) any of the Services by any means other than through the interface that is provided by CalAmp, unless You have been specifically allowed to do so in a separate agreement with CalAmp. You specifically agree not to access (or attempt to access) any of the Services through any automated means (including the use of scripts or web crawlers). You agree that You will not engage in activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services).
- CALAMP’S TEST OF SERVICES: You acknowledge that CalAmp may, for its internal test and control purposes, without charge to You, locate or communicate with vehicles equipped with a Unit.
- COMPLIANCE WITH LAW: You are responsible for the use of the Services, including any optional services selected. You agree to comply with all applicable laws, ordinances, rules and regulations of each applicable federal, state, local or foreign government and any agency or public authority thereof, and to hold CalAmp and its Third Party Providers harmless from liability or loss by reason of any asserted or established violation of said laws, rules, or regulations by You or anyone You authorize to use a vehicle equipped with a Unit. You acknowledge that certain GPS and/or starter disablement technology may not be permitted by law when used for commercial purposes in certain states, either now or in the future. CalAmp is not liable for any claims or damages that may arise out of the fact that GPS and/or starter disablement technologies are not permitted in a particular jurisdiction.
- PAYMENT, TAXES, INDEMNITY: You shall bear full responsibility for, and shall pay CalAmp all fees and charges (together with all applicable taxes thereon) in accordance with the terms stated in this Agreement and outlined on any invoice, and at such place as CalAmp designates on such invoice. Airtime charges for Services commence immediately upon activation and are billed based on Your selected Service Plan. For Service Plans billed monthly, charges for the first and last monthly period shall be prorated based on the number of days the Services are provided in such period. All amounts paid for prepaid airtime are non-refundable. Prices relating to the Services purchased pursuant to this Agreement are exclusive of taxes including, without limitation, any federal, state, local or foreign excise, sales, use, property, retailer’s occupation or similar taxes, or any duties, customs or similar charges. You are solely responsible for and shall pay any and all sales, excise, use, transfer or other taxes, and fees assessed or imposed by any federal, provincial, state, county, municipal or local taxing authority in connection with the use of the Services. In the event You fail to pay such taxes or fees, CalAmp may, in its absolute sole discretion and without accepting any liability to do so, pay such taxes or fees on Your behalf and, in such event, You hereby authorize CalAmp to pay any such taxes or fees on Your behalf, and You agree to reimburse CalAmp promptly upon demand for the amount of any taxes, fees and charges that CalAmp pays on Your behalf.
You agree to indemnify and hold CalAmp harmless against any and all losses, liabilities, claims, damages, costs or expenses, including costs of collection, legal fees, court costs and expenses incurred by CalAmp by reason of or arising out of or relating to any failure by You to make any payments under this Agreement as and when due.
CalAmp reserves the right in its absolute discretion to suspend or terminate the Services if any charges payable by You under this Agreement are delinquent in excess of thirty days from the due date or You are otherwise in default under this Agreement. You acknowledge that such suspension or termination of Services will prevent You or, if applicable, Your customers, from tracking or locating assets equipped with a Unit. You are liable for all reasonable costs associated with the collection of Your delinquent account including, without limitation, reasonable legal and court costs, to the extent not prohibited by applicable law. If Your account is placed in the hands of an outside agency for collection, You agree to pay reasonable attorney fees and collection costs, even though legal proceedings may not be filed, to the extent not prohibited by applicable law. In the event legal proceedings are filed, the amounts of such reasonable attorney fees shall be fixed by the court in which the proceeding is filed, including any appeal therein. You agree that this Agreement shall be governed by and construed in accordance with the laws of the State of California. Jurisdiction and venue with respect to any claim (including any claim in arbitration pursuant to section 17) or litigation in connection with this Agreement shall reside in the County of Orange, California. Your signature (through electronic acceptance) hereto constitutes Your acknowledgment that You will submit yourself to the personal jurisdiction of the courts with jurisdiction within the County of Orange, California.
- DISCLOSURE OF RELATIONSHIP WITH SERVICE PROVIDERS: You understand that the Services furnished by CalAmp depend upon services provided by third parties (“Service Providers”) pursuant to agreements between such Service Providers and CalAmp and are subject to certain terms, conditions and limitations set out in such agreements. You expressly understand and agree that You have no contractual relationship whatsoever with the Service Providers and that You are not a third party beneficiary of any agreement between CalAmp and such Service Providers. In addition, You expressly agree that the agreements and terms in this section 8 shall survive the termination of this Agreement.
You understand that CalAmp and Service Provider cannot guaranty the security of data transmissions, and will not be liable for any lack of security relating to the use of the Services or the transmission of data. You further acknowledge that the Service Providers disclaim all liability of any nature to You, whether direct, indirect, incidental or consequential, arising out of use of the Services, and You agree that You shall have no claims against the Service Providers of any kind with respect thereto. You agree to indemnify CalAmp, the Third Party Providers and the Service Providers, and hold CalAmp, the Third Party Providers and the Service Providers harmless for any claims made against CalAmp, the Third Party Providers or the Service Providers, including any claims made by Your customers, if applicable, arising out of use of the Services, to the fullest extent under the law.
- PROPRIETARY RIGHTS: (a) You acknowledge and agree that CalAmp or CalAmp’s Service Providers own all legal right title and interest in and to the Services, including any intellectual property rights which exist in the Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge that the Services may contain information which is designated confidential by CalAmp and that You shall not disclose such information without CalAmp’s prior written consent. (b) Unless You have agreed otherwise in writing with CalAmp, you have no right to use any of CalAmp’s trade names, trade marks, service marks, logos, domain names, and other distinctive brand features. (c) You agree that You shall not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Services. (d) Unless You have been expressly authorized to do so in writing by CalAmp, You agree that in using the Services, You will not use any trade mark, service mark, trade name, logo of any company or organization in a way that is likely or intended to cause confusion about the owner or authorized user of such marks, names or logos.
- SOFTWARE LICENSE FROM CALAMP: CalAmp gives You a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the software provided to You by CalAmp as part of the Services (referred to as the “Software” below). This license is for the sole purpose of enabling You to use and enjoy the benefit of the Services as provided by CalAmp, in the manner permitted by this Agreement and your Service Plan. You may not (and You may not permit anyone else to) copy, modify, create a derivative work of, reverse engineer, decompile or otherwise attempt to extract the source code of the Software or any part thereof, unless this is expressly permitted or required by law, or unless You have been specifically told that you may do so by CalAmp, in writing. Unless CalAmp has given You specific written permission to do so, You may not assign (or grant a sub-license of) Your rights to use the Software, grant a security interest in or over your rights to use the Software, or otherwise transfer any part of Your rights to use the Software. The Software which You use may automatically download and install updates from time to time from CalAmp. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules and complete new versions. You agree to receive such updates (and permit CalAmp to deliver these to You) as part of Your use of the Services.
- SECURITY; PERSONAL INFORMATION AND PRIVACY: You agree and understand that You are responsible for maintaining the confidentiality of passwords associated with any account you use to access the Services. Accordingly, you agree that you will be solely responsible to CalAmp for all activities that occur under your account. If you become aware of any unauthorized use of Your password or of your account, You agree to notify CalAmp immediately at +1 (877) 684-2040. You agree that, in order to perform its obligations under this Agreement, CalAmp may collect personal information about You or, if applicable, Your customers, and when the Services are used, and about Your or, if applicable, Your customers’ assets. You understand and agree that in conjunction with employee training, quality control and the provision of the Services, CalAmp and/or its agents or service providers may monitor the activities and location of Your or, if applicable, Your customers’ assets and the usage of the CalAmp system. Further, You understand that privacy cannot be guaranteed on the CalAmp system or other systems such as those used in order to provide the Services, and CalAmp shall not be liable to You or any other third party for any claims, loss, damages or costs which may result from a lack of privacy. You consent to CalAmp using information about You and Your assets to (i) administer the Services, (ii) electronically locate Your or, if applicable, Your customers’ assets equipped with a Unit in conjunction with providing the Services, (iii) provide information to third party service providers, wireless carriers or other persons for the purpose of providing the Services, or in response to a subpoena or other legal process, and (iv) use and share Your information and statistics that do not include information that identifies You or, if applicable, Your clients, personally. In addition, You consent to CalAmp using information about You and Your assets including contact information and the types of Services that You purchase and use to (i) enforce the terms of this Agreement, (ii) prevent fraud and respond to regulatory and legal requirements, or in conjunction with a government inquiry, or in litigation or dispute resolution, and (iii) share information with CalAmp affiliates in conjunction with the Services and for the purpose of providing You with any promotional offers and marketing materials. You also consent and agree to the use of Your personal information to (i) administer Your account, including for credit and collections purposes, and (ii) disclose such information to Your bank or to a third party collection agency. You may obtain a copy of the full text of the CalAmp Privacy Policy Statement by contacting CalAmp’s Privacy Officer. YOU ACKNOWLEDGE THAT IT IS YOUR RESPONSIBILITY TO ADVISE ALL OCCUPANTS OR USERS OF YOUR OR, IF APPLICABLE, YOUR CUSTOMERS’ ASSETS EQUIPPED WITH A UNIT ABOUT HOW INFORMATION ABOUT THEM MAY BE COLLECTED, USED AND DISCLOSED BY CALAMP.
- USE OF WEBSITE: CalAmp maintains a website that You may access in connection with Services You purchase from CalAmp or CalAmp’s authorized agents. You agree that You will not use or attempt to use this website for any purpose: 1) that is any way unlawful or prohibited, 2) that transmits any unauthorized or unsolicited advertisements, solicitations, schemes, spam, flooding, or other unsolicited e-mail or unsolicited commercial communications, 3) that transmits any viruses, 4) that interferes with CalAmp’s network services; 5) that attempts to gain unauthorized access to CalAmp’s network services, or 6) that impairs or limits CalAmp’s ability to operate this website or any other person’s ability to access or use the website. You agree that You will only access or use information related to You in accordance with the Services You purchase, and not for any illegal purposes. You agree that you will access this website at your own risk. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE USE OF THIS WEBSITE, SERVER AND THE INTERNET GENERALLY. You understand that CalAmp cannot and does not ensure continuous access to the website. Access may be interrupted due to technical limitations, such as heavy use and server malfunctions, or other circumstances such as maintenance. CalAmp reserves the right to modify this website at any time without Your consent. YOU UNDERSTAND AND AGREE THAT CALAMP WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES RESULTING FROM, OR IN ANY WAY CONNECTED TO, YOUR ACCESS TO, USE OF, INABILITY TO USE, OR RELIANCE ON THE WEBSITE OR ANY MATERIALS, INFORMATION, PRODUCTS OR SERVICES OBTAINED OR ACCESSED THROUGH THE WEBSITE. FOR THOSE JURISDICTIONS THAT EITHER DO NOT ALLOW OR PLACE RESTRICTIONS UPON THE EXCLUSION OR LIMITATION OF DAMAGES IN CERTAIN TYPES OF AGREEMENTS, THIS LIMITATION SHALL BE CONSTRUED TO PERMIT THE MAXIMUM EXCLUSION OR LIMITATION PERMITTED BY APPLICABLE LAW.
- LIMITATION OF LIABILITY: CalAmp shall not be liable to You or to any other person for any loss or damage caused by the use of the Services or for any interruption of the Services, regardless of cause. In no event shall CalAmp’s liability to You exceed the amount paid by You for the Services in question. CalAmp shall not be liable to You or any third party for consequential, incidental, general, special or exemplary damages, including, without limitation, loss of or damage to Your vehicles or assets or loss of profits, revenues or data, even if CalAmp has been advised of the possibility of such damages. You agree to indemnify and hold CalAmp harmless from and against any and all losses or damages caused by the use of the Services or for any interruption of the Services. No action shall be brought for any breach of this Agreement more than one year after accrual of such cause of action except by CalAmp for money due on an open account. Certain of the above limitations may not apply in some states. To the extent that any such limitations are precluded in a given state, such preclusion shall not affect any other limitations not so prohibited or precluded.
NOTWITHSTANDING ANYTHING ELSE SET FORTH IN THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. CALAMP EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
- INTERRUPTION OF SERVICES; FORCE MAJEURE: CalAmp shall have no liability for a failure to provide, or for delay in providing the Services due directly or indirectly to the Limitations of Technology or other causes beyond the control of CalAmp or its subcontractors. If CalAmp is unable to wholly or partially perform the Services because of any cause beyond its control, CalAmp may terminate this Agreement without any liability to You, other than the refund of any amounts paid for unused Services.
- LIMITATIONS OF TECHNOLOGY: You have read, understand and acknowledge the following inherent technical limitations relating to the use of the Services: (a) Wireless Network Coverage and Service. Complete coverage of the service area at all times is improbable. The existence of adverse conditions, such as short-term unpredictable meteorological effects and sky wave interference from distant stations, can interrupt the Services at times. Certain circumstances such as weather, tunnels, underground structures, terrain, high-rise buildings, enclosed or underground parking or driving areas, faulty installation, motor ignition and other electrical noises and radio signals from external sources may interfere with the Services. CalAmp utilizes wireless networks with broad coverage areas to access moving vehicles and assets. There are still areas within the service area that have not yet been included in the wireless coverage areas. Therefore, if a vehicle travels out of the available service area, communication with that vehicle is unavailable until it returns to the available service area. Also, from time to time, poor coverage areas (“holes”) occur even in fully developed areas, thereby limiting system performance. Other wireless network environmental issues may affect the communications link between the Units and the CalAmp Online System. Environmental issues may include; service interruptions, network congestion, roaming and similar access issues. (b) Global Positioning System (GPS) Drift and Urban Canyon. GPS is a satellite based positioning system providing expansive coverage throughout the world. The GPS antenna must have a direct line of sight to the satellites. If said path is impaired (e.g. underground parking lots or the shadow of tall buildings), it can affect the ability of the Services to recognize an accurate location. (c) Tampering with the Unit. If the unit is tampered with, disconnected, or the unit completely removed, the functionality of the Units and Services will be jeopardized. (d) Privacy. The Units and Services have many complex elements and are not guaranteed against eavesdroppers, hackers, denial of service attacks, viruses or interceptors. You acknowledge and agree, and undertake to inform any users of the Units and Services, that CalAmp and any of its Service Providers shall not be liable for any lack of privacy or security resulting from use of CalAmp products or Services. In addition, to the extent You have a privacy right in the location, characteristics, performance or operation of a vehicle equipped with a Unit, You agree to voluntarily waive such right. (e) Availability of Cellular Technology/Mapping. Services are based on cellular technology which may become obsolete in the future as a result of changes in wireless technology or actions by telecom regulators with respect to cellular technology in mapping applications. In such event, CalAmp shall have no obligation to issue a refund or furnish substitute services. In addition, CalAmp assumes no responsibility for the accuracy or inaccuracy of any maps upon which the Services are based. (f) Capacity Limitation. The parties recognize that unusual concentrations of usage may occur in certain locations. CalAmp shall incur no liability for its inability to provide adequate Services hereunder arising from or related to a lack of network capacity on the equipment which results from the aforesaid usage concentration, and nothing herein shall require CalAmp to expend any capital to insure capacity for Your use of the Services.
- TERM AND TERMINATION; RENEWAL: This Agreement shall remain in full force and effect for the term of the Service Plan You purchase in connection with the purchase of any Unit, and shall automatically renew upon the purchase of any additional Service Plans for the Unit being activated. Notwithstanding the foregoing, this Agreement shall terminate immediately without liability if the authorizations held by CalAmp are revoked by the FCC or other authority governing the provision of the Services. CalAmp may terminate this agreement, including the Services, at any time following the expiration of Your initial Service Plan upon thirty (30) days’ prior written notice to You.
- ARBITRATION. This Arbitration Provision describes when and how a Claim may be arbitrated. A “claim” is any claim, dispute or controversy between You and CalAmp that in any way arises from or relates to this Agreement and includes: initial claims, counterclaims, cross-claims and third-party claims; disputes based on contract, tort, fraud and other intentional torts (at law or in equity, including any claim for injunctive or declaratory relief); disputes based on constitutional grounds or on laws, regulations, ordinances or similar provisions; and disputes about the validity, enforceability, arbitrability or scope of this Arbitration Provision or this Agreement.
IF YOU OR WE CHOOSE ARBITRATION,
- ANY CLAIM WILL BE DECIDED BY ARBITRATION AND NOT IN COURT OR BY A JURY TRIAL.
- DISCOVERY AND RIGHTS TO APPEAL ARE LIMITED BY THE ARBITRATION RULES OF THE ARBITRATION ADMINISTRATOR.
- YOU GIVE UP YOUR RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF A CLASS IN A CLASS ACTION (“CLASS ACTION WAIVER”).
- CLAIMS BROUGHT BY OR AGAINST ONE BUYER MAY NOT BE JOINED WITH CLAIMS BY A CO-BUYER OR CO-SIGNER.
- OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
Either You or CalAmp may require any Claim to be arbitrated, except neither party is obligated to arbitrate a Claim that is brought and maintained as an individual (as opposed to a class) claim and that involves an amount in dispute or claim for damages of less than $25,000. Arbitration begins when a party gives written notice to the other party of the intent to require arbitration. This notice may be given before or after a lawsuit has been started over the Claim or with respect to other Claims brought later in the lawsuit. Arbitration of a Claim must comply with this Arbitration Provision and the applicable rules of the arbitration Administrator. We will not choose to arbitrate an individual claim that you bring against us in small claims court or your state’s equivalent court, if any. If that Claim is transferred, removed or appealed to a different court, or if You modify the claim to seek class relief, we then may choose arbitration.
The arbitration Administrator shall be the American Arbitration Association (“AAA”), 335 Madison Avenue, New York, NY 10017, www.adr.org, (800) 778-7879. If the AAA is unwilling to serve as the Administrator, the parties shall attempt to agree upon a substitute Administrator. If the parties are unable to so agree, each shall select one representative, and the two representatives shall select a third party, and the two representatives and the third party shall select the Administrator. Any arbitration hearing that you attend must take place at a location reasonably convenient to your residence.
You give up Your right to participate in a class action. This means that You may not be a representative or member of any class of claimants or act as a private attorney general in court or in arbitration with respect to any Claim. Notwithstanding any other part of this Arbitration Provision, the validity and effect of the Class Action Waiver must be determined only by a court and not by an arbitrator. If a court limits or voids the Class Action Waiver, then this entire Arbitration Provision (except for this paragraph) will be null and void.
An Administrator charges fees to administer an arbitration proceeding. This may include fees not charged by a court. When You choose an Administrator, You should carefully review the fees charged by the Administrator. CalAmp will pay these fees if required by applicable law, or if otherwise necessary to ensure that this Arbitration Provision is enforceable. CalAmp will not ask You to pay or reimburse CalAmp for any fees CalAmp pays the Administrator. If CalAmp requires a Claim to be arbitrated, CalAmp will pay or reimburse You for up to $1,000 in fees that would otherwise be charged to You by the Administrator. However, if either CalAmp or You require a Claim to be arbitrated, You may tell CalAmp in writing that You are unable to pay the fees charged by the Administrator or that You believe those fees to be excessively high. If You do so, CalAmp will pay or reimburse You for up to all of the fees that would otherwise be charged to You by the Administrator if your request is reasonable and in good faith. Each party must pay the expense of that party’s attorneys, experts, and witnesses, regardless of which party prevails in the arbitration, unless applicable law and/or this Arbitration Provision provide otherwise.
In addition to the parties’ rights to obtain discovery under the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope for discovery normally allowable under the arbitration rules of the Administrator. The Arbitrator will have discretion to grant or deny that request.
Judgment upon the arbitration award may be entered in any court having jurisdiction. In response to a timely request from either party, the arbitrator must provide a brief written explanation of the basis for any award. The arbitrator’s decision is final and binding, except for any right of appeal provided by the Federal Arbitration Act. However, if the amount of the award exceeds $100,000 or is a “take nothing” award, a party can appeal the award to a three-arbitrator panel administered by the Administrator, which must reconsider any aspect of the initial award requested by the appealing party. Reference in this Arbitration Provision to the “arbitrator” means the panel of arbitrators if an appeal of the arbitrator’s decision has been taken. Subject to applicable law, costs of any appeal will be borne by the appealing party regardless of the outcome of the appeal.
This Arbitration Provision is governed by the Federal Arbitration Act and not by any state arbitration law. The arbitrator must apply applicable statutes of limitations and claims of privilege recognized at law, and applicable substantive law consistent with the Federal Arbitration Act. The arbitrator is authorized to award all remedies permitted by substantive law that would apply if the action were pending in court.
This Arbitration Provision survives the repayment of all amounts You owe CalAmp, the transfer of this Agreement, and any bankruptcy by You, to the extent not inconsistent with applicable bankruptcy law. Except as provided above, if any part of this Arbitration Provision is determined to be invalid or unenforceable, this Arbitration Provision and the Agreement will remain enforceable. In the event of a conflict or inconsistency between this Arbitration Provision and the applicable arbitration rules or the other provisions of this Agreement or any other contract between You and CalAmp, this Arbitration Provision will govern.
You may opt out of this arbitration provision by sending CalAmp written notice of your intent to do so by registered mail, provided You send the notice within 10 days of the date of this Agreement.
If You are a corporation, partnership, association or other business or commercial entity, You agree that notwithstanding anything to the contrary in this paragraph 17: (1) CalAmp will not pay any part of Your costs and expenses of arbitration unless ordered to do so by the arbitrator; (2) any arbitration under this Agreement will be held in Lake Forest, California; and (3) You will not have the right to opt out of this arbitration provision.
- GENERAL: No amendment or modification hereof shall be binding upon CalAmp unless such amendment or modification is in writing signed by an authorized officer of CalAmp. If any term hereof is contrary to, prohibited by or deemed invalid under applicable laws or regulations, such term shall be deemed omitted to the extent prohibited or invalid but the remainder of these Terms and this Agreement shall not be invalidated and shall be given effect so far as possible. Any waiver of any right in, or breach of, this Agreement shall not be a continuing waiver and shall not prevent any claim of breach of the same term or any other term of this Agreement. This Agreement is fully assignable by CalAmp to any person or entity and shall inure to the benefit of such assignee or successor. You may not assign this Agreement without the prior written consent of CalAmp.
By signing (through electronic acceptance), You agree to all terms of this Agreement, including the arbitration provision under Section 17.
|
|
|
 |
|