TERMS AND CONDITIONS
Effective Date: June 17, 2019
Summary of Important Information and Limitations:
- The Services are subject to network availability and are available only in the “Service Area” which is the United States, other than American Samoa, Guam, Northern Mariana Islands, Puerto Rico, and the United States Virgin Islands. LoJack is not liable for the failure of the Services or any features of the Software outside of the Service Area.
- You and anyone who uses Your vehicle in which the Unit is installed and the Services are enabled (the “Vehicle”) will only use the Services when it is safe to do so and in compliance with applicable law and this Agreement.
- LoJack will have no liability for failure to provide, or delays in providing, the Services or Software features due to (a) the limitations set forth in SECTION 15 including, but not limited to limitations of technology, such as limited or failed cellular or wireless network coverage and service; (b) the unavailability or loss of GPS signal; (c) the improper installation of or damage to the Unit in accordance with SECTION 2; (d) the failure of Your mobile device; (f) the failure of hardware and/or Software compatibility; and/or (g) the unavailability of third party services, such as mapping services.
- The SureDrive App will request access to Your mobile device contacts to add the LoJack Call Center Services phone number to Your mobile device contacts for Your convenience. Refer to SECTION 3B contained herein for more information about LoJack Call Center Services.
- For important information about the Services and hardware-related warranties refer to SECTION 13 contained herein.
- You must contact LoJack to transfer the Unit and Services to another party, without the Unit being removed from the Vehicle (for example: if You sell the Vehicle). A $99.00 transfer fee is required in such instances. If You want to remove the Unit from the Vehicle and have it placed in another vehicle, please contact us at (844) 7LOJACK for pricing and scheduling of an authorized installer to complete the transfer.
- THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION THAT AFFECTS YOUR RIGHTS TO BRING DISPUTES INVOLVING THE UNIT, SOFTWARE, OR THE SERVICES. YOU SHOULD READ THIS PROVISION CAREFULLY.YOU MAY OPT OUT OF THIS ARBITRATION PROVISION BY SENDING LOJACK WRITTEN NOTICE OF YOUR INTENT TO DO SO BY REGISTERED MAIL WITHIN TEN (10) DAYS OF THE ACTIVATION OF YOUR SUREDRIVE SERVICES.
- INSTALLATION: Improper Unit mounting location or procedure may result in complete or partial loss of functionality of the Unit and the inability to utilize Software or Services under this Agreement. If You or a third party other than a LoJack authorized installer install the Unit You understand and agree that (a) it is solely Your responsibility to ensure that it is properly installed at all times, (b) LoJack will 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 or Software functionality due to such improper installation) and (c) You shall indemnify and hold LoJack harmless from any and all claims or damages You or any person may have for any loss or damage caused by such improper installation of the Unit. You understand and agree that LoJack is not responsible for any complete or partial loss of functionality of the Unit or the inability to utilize the Software or Services under this Agreement if the installation of the Unit is directly or indirectly modified or effected by the installation of other motor vehicle parts and accessories by You or any third party other than a LoJack-authorized installer. IF A SUBSCRIBER IDENTITY MODULE (“SIM”) CARD IS SUPPLIED WITH THE UNIT, THEN SUCH SIM CARD MAY ONLY BE USED IN SUCH UNIT AND IN NO OTHER WIRELESS DEVICE. IN NO EVENT SHALL THE SERVICES BE USED WITH ANY WIRELESS DEVICE OTHER THAN THE UNIT.
- LOCATION AND DATA COMMUNICATION SERVICES: By accepting the terms of this Agreement, You agree that You are enrolling in all of the Services listed in subsections (A) through (C), below:
- Data Services. To provide for the connectivity with Your Unit, specific airtime services and data services (collectively, the “Data Services”) are included with Your purchase of the Unit. You acknowledge and agree that the Data Services does not include any voice services. You also understand and agree that the Data Services (like all wireless networks) may be subject to and impacted by network capacity, Your Unit, terrain, buildings, foliage and weather, in addition to being outside of the Service Area. You understand and agree that there also may be certain instances when Your Unit is not in transmission range, even within the Service Area.
- Call Center Services. The SureDrive App will request access to Your mobile device contacts to add the LoJack Call Center Services phone number to Your mobile device contacts for Your convenience. Failure to allow this permission may result in Your inability to use all or some of the features of the Services and Software, including, but not limited to, the LoJack Call Center Services reaching You for crash notifications, and LoJack shall have no liability for such failures. LoJack provides the following Call Center Services:
- Stolen Vehicle Location Assist. If You alert LoJack that the Vehicle has been stolen, LoJack will attempt to contact the Unit to send a notice to LoJack regarding the location of the Vehicle. You are solely responsible for contacting the appropriate law enforcement agency or emergency services personnel to report the Vehicle stolen. LoJack will contact the law enforcement agency identified by You when You report to LoJack that the Vehicle has been stolen. You are solely responsible for filing a stolen vehicle report with the relevant law enforcement agency in the event the Vehicle has been stolen. You will need to provide satisfactory identification to LoJack, and the police must be treating the Vehicle as stolen, before any Vehicle location data will be shared with any law enforcement agency or third party on Your behalf.
- Crash Notification. In the event of certain conditions indicating that the Vehicle has been involved in a crash, the Unit will attempt to send a Crash Notification to LoJack. If the Vehicle continues to move and/or otherwise operate in a manner suggesting that the Crash Notification may have been in error, LoJack may (in its sole discretion) elect not to contact You and/or law enforcement. Otherwise LoJack will attempt to contact You at the number You provided to LoJack at the time You registered for the Services to ask You if any assistance is required. If there is a response indicating there is no need for assistance, no further action will be taken. If You do not respond, or if You or a passenger in the Vehicle respond and ask for assistance, then (i) LoJack will use location data from the Unit to identify the appropriate local law enforcement agency to contact regarding the crash and report to such agency available information on Your location, the severity of the crash, and the Vehicle make/model and (ii) LoJack will provide the name and contact information of Your emergency contact, if You identified one during Your enrollment process, to law enforcement. LoJack will not provide any medical assistance or advice.
- SureDrive App. When You download the SureDrive App to Your mobile device You will be able to enroll in certain application services and alerts that You select or otherwise enable when downloading and/or configuring the SureDrive App. You understand and agree that the full use of the SureDrive App requires the use of Your own mobile device, with its own airtime, voice services and data plan. Use of the SureDrive App is not covered by the Data Services discussed in SECTION 3(A), above. LoJack is not responsible for any charges that You may incur under Your wireless provider’s terms and conditions governing the use of Your mobile device for Your use of the SureDrive App.
- General Services Limitations. You understand and agree that some of these Services may require the Vehicle’s ignition to be on to function properly. You understand that the Services provide no direct connection to any law enforcement agency or emergency services personnel. Use of the Services is limited to the Service Area. All Services are subject to the Limitations of Technology set out in SECTION 15 of this Agreement, and the proper installation, use, and maintenance of the Unit.
- PRICING OF THE SERVICES:
- Services Pricing. The pricing of the Unit and Services is assigned to You at the point of sale of the Unit at time of Your purchase. Though LoJack may revise the rates of the Services at any time, the rate You will pay for the Services You purchase will not change for Your Initial Term as defined in this Agreement.
- Services Renewal. After the end of Your Initial Term You may renew the Services at the prevailing rates in effect at the time of Your renewal. You may also purchase additional Services at the prevailing rates for those Services at the time of their purchase. Sales and/or use tax may apply.
- Transfer of Services and/or Unit. You will notify LoJack when You plan to sell or dispose of the Vehicle. For a $99.00 transfer fee, You may transfer Your ownership of the Unit and Your right to use the Services and Software licensed to You under this Agreement to a new owner of the Vehicle. Otherwise, sale or transfer of the Vehicle will result in termination of this Agreement, and Your rights to use the Services and Software, and You will not be entitled to a refund from LoJack or to transfer the remaining term of this Agreement to another Unit. Additionally, You may request that we transfer the Unit to another vehicle and to continue providing the Services in connection with that new vehicle. You are responsible for contacting us at (844) 7LOJACK to request that a LoJack authorized installer transfer the Unit to a new vehicle and the for the cost associated with such transfer.
- LOJACK’S TEST OF SERVICES. You acknowledge and agree that LoJack may from time-to-time, for its internal test and control purposes, without charge to You, locate or communicate with the Vehicle.
- COMPLIANCE WITH LAW: You are responsible for the use of the Software and Services, including any optional services selected. You agree to comply with all applicable laws, ordinances, rules and regulations, including without limitation traffic rules and regulations and statutes and/or regulations that prohibit unauthorized electronic tracking and/or stalking, of each applicable federal, state, local or foreign government and any agency or public authority thereof, and to indemnify and hold LoJack harmless from liability or loss by reason of any asserted or established violation of said laws, ordinances, rules, or regulations by You or anyone You authorize to use the Vehicle, the Unit or the SureDrive App.
- PAYMENT, TAXES, INDEMNITY: You will bear full responsibility for, and will pay LoJack or its reseller, all fees and charges (together with all applicable taxes thereon) in advance of receiving the Software or Services on a prepaid basis. All charges, including airtime charges, for Software and Services commence immediately upon activation and are billed on a one-time, prepaid basis. All prepaid amounts 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, VAT, sales, use, property, retailer’s occupation or similar taxes, or any duties, customs or similar charges. YOU AGREE THAT TIME IS OF THE ESSENCE AND YOU AGREE THAT PREPAID FEES ARE NON-REFUNDABLE REGARDLESS OF ANY CLAIM, SETOFF, COUNTERCLAIM, OR DEFENSE YOU MAY HAVE AGAINST LOJACK, THE MANUFACTURER, SALESPERSON, OR ANY OTHER PARTY.
- DISCLOSURE OF RELATIONSHIP WITH SERVICE PROVIDERS:
- Third-Party Providers. You understand that the Software and Services furnished by LoJack depend upon services provided by third parties (“Service Providers“) pursuant to agreements between such Service Providers and LoJack and are subject to certain terms, conditions and limitations set out in such agreements. You expressly understand and agree that (i) LoJack may share information about You and/or the Vehicle with the Service Providers to the extent necessary to provide You with the Software and Services under this Agreement and (ii) You have no contractual relationship whatsoever with the Service Providers and that You are not a third party beneficiary of any agreement between LoJack and such Service Providers. In addition, You expressly agree that the agreements and terms in this SECTION 8 will survive the termination of this Agreement. You hereby acknowledge that LoJack is acting as agent to the Service Providers for the limited purpose of securing performance of the provisions of this SECTION 8.
- Services Offered by Third-Parties. The SureDrive App may offer You certain third-party applications and services within the SureDrive App. These may include (among others) third-party roadside assistance and parking spot reservation services. You do not have to purchase or otherwise agree to use any such third-party applications and services in order to use the SureDrive App or the Unit, Services or Software governed by this Agreement. Third-party applications, websites or services are not owned or controlled by LoJack. Such third-parties may ask You to provide credit card and other payment information from You to purchase their application and/or to use their services. If You make such a purchase You understand and agree that You are providing Your payment information directly to the third party offering the application and/or services and that LoJack is not responsible for Your provision of such payment information or Your payment instructions to such third party. LoJack will not collect, store or use credit card or other payment information if You elect to make such a purchase. You understand that LoJack has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party applications, web sites or services. You further acknowledge and agree that LoJack shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with Your use of or reliance on any such content, goods or services available on or through any such applications, web sites or services.
- Data Transmissions. You understand that LoJack and its Service Providers cannot guarantee the security of data transmissions sent using third-party networks, and will not be liable for any lack of security relating to the transmission of data over third-party networks directly or indirectly caused by the third party providers of such networks. 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 Software or Services, and You agree that You will have no claims against the Service Providers of any kind with respect thereto.
- PROPRIETARY RIGHTS: You acknowledge and agree that LoJack and/or LoJack’s Service Providers own all legal right, title, and interest in and to the Software and Services, including any intellectual property rights which exist in the Software and Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). LoJack and its licensors reserve all rights in and to the Software and Services not expressly granted to You in this Agreement. The Services and Software (and all copies thereof) are licensed to You, not sold, under this Agreement. There are no implied licenses in this Agreement. You further acknowledge (a) that the Software and Services may contain information which is designated confidential by LoJack and that You will not disclose such information without LoJack’s prior written consent, (b) unless You have agreed otherwise in writing with LoJack, You have no right to use any of LoJack’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features, and (c) You will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Software or Services.
- SOFTWARE LICENSE:
- Limited License. LoJack grants You a limited personal, worldwide, non-assignable, non-transferable (except as set forth herein), and non-exclusive license to use the Software provided to You by LoJack as part of the Services. This license is for the sole purpose of enabling You to use and enjoy the benefit of the Services as provided by LoJack, in the manner permitted by this Agreement. You agree not to access (or attempt to access) any of the Services by any means other than through the interfaces that are provided by LoJack. 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). You may not (and You may not cause or permit anyone else to) copy, reproduce, modify, create any derivative work of, reverse engineer, disassemble, decompile, or otherwise attempt to gain access to or extract the source code of the Software or any part thereof, or otherwise transfers any part of Your rights to use the Software.
- Updates. The Software which You use may from time to time automatically download and install updates from LoJack. 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 LoJack to deliver these to You) as part of Your use of the Services.
- Data Use. The Software and Services may result in You receiving or sending phone calls or SMS (text) messages, and may access the data network, from the mobile device on which the Software is installed and You are solely responsible for any such charges that result, including those incurred due to the normal functioning of the Services.
- SECURITY; PERSONAL INFORMATION AND PRIVACY:
- Data Access. You understand and agree that by installing the SureDrive App on Your mobile device the Software and Services may access and use GPS and/or wireless network based location services of Your mobile device to, determine Your precise or approximate location. You agree to allow this access and You understand that locations services must be on in order for the Services to be fully functional. You understand and agree that by installing the SureDrive App on Your mobile device the Software and Services will request access to Your mobile device contacts to add the LoJack Call Center Services phone number to Your mobile device contacts and You agree to allow this access. Failure to allow any or all of these permissions may result in Your inability to use all or some of the features of the Services and Software and LoJack shall have no liability for such failures.
- Data Collection. Examples of the information collected and analyzed by the Services and the Software include the Internet protocol (IP) address or any other identifying information for the Unit and Your mobile device on which the SureDrive App is installed; Your login; Your e-mail address; Your password for the SureDrive App; Vehicle and mobile device GPS coordinates; Vehicle data bus information captured by the Unit (such as Vehicle data bus information captured via a standardized (OBD) connector); information regarding Your mobile device such as browser type, version, and time zone setting; browser plug-in types and versions operating system, and platform; the phone number You used to call our phone number; Unit device ID and call information; cellular data settings; and identity. We may also use data on certain parts of our Services and Software applications for fraud prevention and other purposes.
- Data Uses. We may use software tools to measure and collect information regarding Your use of the SureDrive App to visit certain screens and pages within the SureDrive App, including page response times, download errors, length of visits to certain pages, page interaction information (such as scrolling and clicks). You understand and agree that in conjunction with employee training, quality control and the provision of the Software and Services, LoJack and/or its agents or Service Providers may monitor the activities and location of You and the Vehicle and the usage of the SureDrive App.
- Unauthorized Access to Your Mobile Device. You understand that You are responsible for the parties who may have access to Your mobile device on which the SureDrive App is installed and for the security of Your login or other access credentials required to use such mobile device. LoJack will not be liable to You or any other third party for any claims, loss, damages or costs which may result from the theft or unauthorized use of Your mobile device or the compromise of Your login and/or mobile device access credentials. You assume full responsibility for the establishment of appropriate security measures to control access to Your respective mobile device equipment and information.
- Security of the Software and Services. LoJack uses and maintains commercially-reasonably measures to protect against anticipated threats to the security and/or integrity of the Software and/or Services. The measures may include administrative, technical, and physical safeguards to the Software and/or Services. LoJack may evaluate and revise such safeguards from time to time.
- USE OF SOFTWARE: LoJack maintains the Software that You may access and/or use in connection with the Services You license from LoJack or the Service Providers.
A . Unauthorized Access and Uses. You agree that You, and others You authorize to use the Services and Software will not use or attempt to use the Services or Software for any purpose: 1) that is any way unlawful or prohibited (including, but not limited to, any use of the Services and Software that may constitute unauthorized electronic tracking and/or stalking under applicable law), 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 LoJack’s network services, 5) that attempts to gain unauthorized access to LoJack’s network services, and/or 6) that impairs or limits LoJack’s ability to operate the Software or Services or any other person’s ability to access or use the Software or Services. You agree that You will only access or use information related to You and/or the Vehicle in accordance with the Software and Services You purchase, and not for any illegal purposes.
- Assumption of Risk. You agree that You will access and use the Software and Services in compliance with the terms of this Agreement. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE IMPROPER USE OF THE SOFTWARE OR SERVICES, AND FOR YOUR USE OF THE INTERNET GENERALLY. You understand that LoJack cannot and does not ensure continuous access to the Software or Services. Access may be interrupted due to technical limitations, such as heavy use and server malfunctions, or other circumstances such as maintenance. Your access to and use of the Software and Services may be interrupted if Your rights in and to the Unit are lost for any reason. You will notify LoJack when You plan to sell or dispose of the Vehicle. LoJack reserves the right to modify the Software at any time without Your consent. YOU UNDERSTAND AND AGREE THAT LOJACK WILL NOT BE LIABLE FOR ANY PERSONAL INJURY, DEATH, PROPERTY DAMAGE OR ANY 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 SOFTWARE OR SERVICES OR ANY MATERIALS, INFORMATION, PRODUCTS OR SERVICES OBTAINED OR ACCESSED THROUGH THE SOFTWARE. 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 WILL BE CONSTRUED TO PERMIT THE MAXIMUM EXCLUSION OR LIMITATION PERMITTED BY APPLICABLE LAW.
- LIMITED WARRANTY AND LIMITATION OF LIABILITY:
- Limited Warranty (Unit). LoJack warrants to You, as the original purchaser, that the Unit will be free from defects in workmanship, excluding installations performed by non LoJack third-parties, and materials under normal use (“Defects”) for a period of two (2) years from the date the Service is activated (“Warranty Period”). During the Warranty Period the Unit will be repaired or replaced at LoJack’s choice (“Limited Warranty”) without charge to You for either parts and/or labor. Exclusions:This Limited Warranty does not cover damage caused by normal wear and tear or as a result of the Unit being opened or repaired by someone not authorized by LoJack, and does not cover damage caused by: misuse, moisture, liquids, proximity or exposure to heat and accident, abuse, non-compliance with the instructions supplied with the Unit, neglect or misapplication. The Limited Warranty does not cover physical damage to the surface of the Unit. Further this warranty will be deemed null and void if You did not call LoJack prior to transferring Unit to different vehicle. Claims Process: In order to make a claim under the Limited Warranty, You must contact LoJack at 1-844-7LOJACKduring the Warranty Period to explain the Defect. LoJack will troubleshoot the matter in the event LoJack is unable to resolve the issue, LoJack shall issue a Return Materials Authorization (“RMA”) number, if necessary. Upon receipt of the RMA, You shall arrange to have the defective Unit returned to LoJack. LoJack shall be responsible for replacement and installation of the replacement Unit. Within thirty (30) days of LoJack’s issuance of an RMA, LoJack shall suspend or cancel the Service for the defective Unit and will activate the Service for the replacement Unit. Miscellaneous: If any part of this Limited Warranty is held to be invalid or unenforceable, the remainder of the Limited Warranty shall nonetheless remain in full force and effect. If applicable law requires any implied warranties with respect to the Unit, all such warranties are limited in duration to the duration of the Warranty Period. Some states and/or jurisdictions do not allow limitations on how long an implied warranty lasts, so the above may not apply to You. This Limited Warranty gives You specific legal rights, and You may also have other rights which vary from State to State.
- Limited Warranty (Software). For a period of ninety (90) days following the activation of Your SureDrive App account (“Warranty Period”), LoJack warrants to You, as the original purchaser, that the Software shall perform in all material respects according to the specifications (“Limited Warranty”). Should the Software not so perform, Your exclusive remedy, and LoJack’s sole obligation under this Limited Warranty shall be correction of any failure to perform in all material respects according to the specifications (“Defect”). Exclusions:This Limited Warranty shall not apply to the Software if modified by anyone or if used improperly or on an operating environment not approved by LoJack or in event performance issues or interruptions are a result of limitations set forth in SECTION 15 or otherwise contained herein. Any warranty offered by third parties, such as resellers, to You is offered solely by the third party and LoJack shall have no responsibility for any such warranty. Claims Process: In order to make a claim under the Limited Warranty, You must contact LoJack at 1-844-7LOJACK during the Warranty Period to explain the Defect. LoJack will troubleshoot the matter and correct the Defect. Miscellaneous: If any part of this Limited Warranty is held to be invalid or unenforceable, the remainder of the Limited Warranty shall nonetheless remain in full force and effect. If applicable law requires any implied warranties with respect to the Unit, all such warranties are limited in duration to the duration of the Warranty Period. Some states and/or jurisdictions do not allow limitations on how long an implied warranty lasts, so the above may not apply to You. This Limited Warranty gives You specific legal rights, and You may also have other rights which vary from State to State.
- Service Interruptions. LoJack may in its sole discretion give a credit (the amount of which is determined by LoJack in its sole discretion) for continuous Service interruption of more than 24 hours on a case-by-case basis, as long as such interruptions did not result from any of the limitations set forth in SECTION 15 or otherwise contained herein, and if You notify LoJack within seven (7) days of the continuous interruption. Any such credit shall constitute Your sole and exclusive remedy for such failures, and You waive and release us, our affiliates, and our Service Partners from any further liability to You in connection with the Service interruption.
- Limitation of Liability. EXCEPT AS PROVIDED EXPRESSLY HEREIN, LOJACK WILL NOT BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR ANY LOSS OR DAMAGE CAUSED BY THE USE OF THE SERVICES OR THE SOFTWARE OR FOR ANY ERRORS IN OR INTERRUPTION OF THE SERVICES OR THE SOFTWARE, REGARDLESS OF CAUSE. IN NO EVENT WILL LOJACK’S LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES OR THE SOFTWARE IN QUESTION. LoJack will 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 Vehicle or assets or loss of profits, revenues or data, even if LoJack has been advised of the possibility of such damages. Some states do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to You. You agree to indemnify and hold LoJack harmless from and against any and all claims, liabilities, losses and damages arising from any misuse or unauthorized use of the Unit, Services or Software or breach of this Agreement by You, users or other administrators added by You, or otherwise in connection with Your SureDrive account. You additionally agree to waive and release LoJack from and against any and all claims, losses or damages for delay in response by law enforcement agencies or other emergency personnel, other causes beyond LoJack’s control, and/or or for any interruption of the Services and the Software. No action will be brought for any breach of this Agreement more than one (1) year after accrual of such cause of action except by LoJack 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 will 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 AND SOFTWARE IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH HEREIN AND EXCEPT AS MAY BE PROHIBITED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; AND LOJACK 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. TO THE MAXIMUM EXTENT ALLOWED BY LAW, LOJACK DOES NOT WARRANT SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY DATA OR MATERIAL OF ANY KIND CONTAINED WITHIN THE SERVICES OR SOFTWARE FOR ANY PURPOSE. UNLESS OTHERWISE PROHIBITED BY APPLICABLE LAW, LOJACK MAKES NO REPRESENTATIONS THAT THE SERVICES WILL BE FREE FROM LOSS, INTERRUPTION, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND LOJACK DISCLAIMS ANY LIABILITY RELATING THERETO. LOJACK DOES NOT PROVIDE ANY WARRANTY AS TO THE AVAILABILITY OF THE SERVICES OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, LOJACK IS NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS OR FAILURES IN THE TRANSMISSION OF DATA, ANY COMPUTER VIRUS, ACTS OR OMISSIONS OF THIRD PARTIES THAT DAMAGE THE NETWORK OR IMPAIR WIRELESS SERVICE, DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING A CALL TO ANY ENTITY, INCLUDING 911, OR ANY OTHER EMERGENCY SERVICE, OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE.
- INTERRUPTION OF SERVICES; FORCE MAJEURE: LoJack will have no liability for a failure to provide, or for delay in providing the Services or the Software due directly or indirectly to the Limitations of Technology described in SECTION 15 or other causes beyond the control of LoJack or its Service Providers. If LoJack is unable to wholly or partially perform the Services or provide the Software because of any cause beyond its control, LoJack may terminate this Agreement without any liability to You, other than the refund of any amounts paid for unused Services.
- WIRELESS CARRIER TERMS AND CONDITIONS:
- YOU HAVE NO CONTRACTUAL RELATIONSHIP WITH THE UNDERLYING WIRELESS SERVICE CARRIER AND YOU ARE NOT A THIRD-PARTY BENEFICIARY OF ANY AGREEMENT BETWEEN LOJACK AND THE UNDERLYING CARRIER.YOU UNDERSTAND AND AGREE THAT THE UNDERLYING CARRIER HAS NO LEGAL, EQUITABLE, OR OTHER LIABILITY OF ANY KIND TO YOU. IN ANY EVENT, REGARDLESS OF THE FORM OF THE ACTION, WHETHER FOR BREACH OF CONTRACT, WARRANTY, NEGLIGENCE, STRICT LIABILITY IN TORT OR OTHERWISE, YOUR EXCLUSIVE REMEDY FOR CLAIMS ARISING IN ANY WAY IN CONNECTION WITH THIS AGREEMENT, FOR ANY CAUSE WHATSOEVER, INCLUDING BUT NOT LIMITED TO ANY FAILURE OR DISRUPTION OF SERVICE PROVIDED HEREUNDER, IS LIMITED TO PAYMENT OF DAMAGES IN AN AMOUNT NOT TO EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES DURING THE TWO-MONTH PERIOD PRECEDING THE DATE THE CLAIM AROSE.
- YOU AGREE TO RELEASE THE UNDERLYING WIRELESS SERVICE CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS, INCLUDING WITHOUT LIMITATION CLAIMS FOR LIBEL, SLANDER, OR ANY PROPERTY DAMAGE, PERSONAL INJURY OR DEATH, ARISING IN ANY WAY, DIRECTLY OR INDIRECTLY, IN CONNECTION WITH THIS AGREEMENT OR THE USE, FAILURE TO USE, OR INABILITY TO USE THE UNIT EXCEPT WHERE THE CLAIMS RESULT FROM THE UNDERLYING CARRIER’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT.YOU AGREE TO INDEMNIFY THE UNDERLYING WIRELESS SERVICE CARRIER AND ITS OFFICERS, EMPLOYEES, AND AGENTS AGAINST ANY AND ALL CLAIMS ARISING OUT OF YOUR MISUSE OF THE UNIT OR WIRELESS SERVICE. THIS INDEMNITY WILL SURVIVE THE TERMINATION OF THE AGREEMENT.
- YOU HAVE NO PROPERTY RIGHT IN ANY NUMBER ASSIGNED TO THE DEVICE AND UNDERSTAND THAT ANY SUCH NUMBER CAN BE CHANGED FROM TIME TO TIME.
- YOU UNDERSTAND THAT THE UNDERLYING CARRIER CANNOT GUARANTEE THE SECURITY OF WIRELESS TRANSMISSIONS, AND WILL NOT BE LIABLE FOR ANY LACK OF SECURITY RELATING TO THE USE OF THE SERVICES.
- THE SERVICE IS FOR YOUR USE ONLY AND YOU MAY NOT RESELL THE SERVICE TO ANY OTHER PARTY.
- YOU UNDERSTAND THAT THE UNDERLYING CARRIER DOES NOT GUARANTEE ANY END USER UNINTERRUPTED SERVICE OR COVERAGE.THE UNDERLYING CARRIER DOES NOT WARRANT THAT END USERS CAN OR WILL BE LOCATED USING THE SERVICE. THE UNDERLYING CARRIER MAKES NO WARRANTY, EXPRESS OR IMPLIED, OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY, OR PERFORMANCE REGARDING ANY SERVICES OR GOODS, AND IN NO EVENT SHALL THE UNDERLYING CARRIER BE LIABLE, WHETHER OR NOT DUE TO ITS OWN NEGLIGENCE, FOR ANY: (A) ACT OR OMISSION OF A THIRD PARTY INCLUDING, BUT NOT LIMITED TO, INTENTIONAL OR NEGLIGENT ACTS OF THIRD PARTIES THAT DAMAGE OR IMPAIR THE NETWORK OR DISRUPT SERVICE; (B) MISTAKES, OMISSIONS, INTERRUPTIONS, ERRORS, FAILURES TO TRANSMIT, DELAYS, OR DEFECTS IN THE SERVICE PROVIDED BY OR THROUGH THE UNDERLYING CARRIER; (C) DAMAGE OR INJURY CAUSED BY SUSPENSION OR TERMINATION BY THE UNDERLYING CARRIER; OR (D) DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING A CALL TO ANY ENTITY, INCLUDING 911 OR ANY OTHER EMERGENCY SERVICE. TO THE FULL EXTENT ALLOWED BY LAW, YOU RELEASE THE UNDERLYING CARRIER FROM AND AGAINST ANY AND ALL CLAIMS OF ANY PERSON OR ENTITY FOR DAMAGES OF ANY NATURE ARISING IN ANY WAY FROM OR RELATING TO, DIRECTLY OR INDIRECTLY, SERVICES PROVIDED BY THE UNDERLYING CARRIER OR ANY PERSON’S USE THEREOF, INCLUDING CLAIMS ARISING IN WHOLE OR IN PART FROM THE ALLEGED NEGLIGENCE OF THE UNDERLYING CARRIER.
- TERM AND TERMINATION: This Agreement will remain in full force and effect for the initial term of Your Agreement as is disclosed to You in Your welcome email to the Services (“Initial Term”).You may renew the Services purchased under this Agreement at the end of the Initial Term of this Agreement as is outlined in SECTION 4(B) of this Agreement.
- LoJack’s Right to Terminate. Notwithstanding the foregoing, this Agreement will terminate immediately without liability if the authorizations held by LoJack are revoked by the FCC or other authority governing the provision of the Services. LoJack may terminate this Agreement immediately, including the Services, at any time following the expiration of Your Initial Term without notice to You.
- Change in Vehicle Ownership. LoJack reserves the right to terminate this Agreement immediately upon receiving notice that the Vehicle has been repossessed, sold, transferred or otherwise taken from Your custody or control. Your failure to advise LoJack of any loss of rights in and to the Unit for any reason will result in immediate termination of this Agreement.
- Post termination. Upon termination or expiration for any reason: Your license to the Software and Services will cease immediately; Your access to the call center in the event of a vehicle accident or any other event will cease immediately; Your access to Vehicle location information will cease immediately. You are not entitled to a refund or transfer of Services from LoJack in the event of termination or expiration of this Agreement for any reason.
- ARBITRATION: This Arbitration Provision describes when and how a claim may be arbitrated. A “claim” is any claim, dispute or controversy between You and LoJack 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 LoJack 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 will be the American Arbitration Association (“AAA”),www.adr.org, (800) 778-7879. If the AAA is unwilling to serve as the Administrator, the parties will attempt to agree upon a substitute Administrator. If the parties are unable to so agree, each will select one representative, and the two (2) representatives will select a third party, and the two (2) representatives and the third party will select the Administrator. Any arbitration hearing that You attend must take place at a location reasonably convenient to Your primary location.
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. LoJack will pay these fees if required by applicable law or if otherwise necessary to ensure that this Arbitration Provision is enforceable. LoJack will not ask You to pay or reimburse LoJack for any fees LoJack pays the Administrator. If LoJack requires a claim to be arbitrated, LoJack 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 LoJack or You require a Claim to be arbitrated, You may tell LoJack 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, LoJack 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 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 LoJack, 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 LoJack, this Arbitration Provision will govern. You may opt out of this arbitration provision by sending LoJack written notice of Your intent to do so by registered mail, provided You send the notice within ten (10) days of the date of activation of Your SureDrive Services. 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) LoJack 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 the federal district in which You reside; and (3) You will not have the right to opt out of this arbitration provision.
- Governing Law. You agree that this Agreement will 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 18) or litigation in connection with this Agreement will be the federal district in which You reside. Your signature (through electronic acceptance) of this Agreement constitutes Your acknowledgment that You will submit Yourself to the personal jurisdiction of the courts with jurisdiction within the federal district in which You reside.
- Severability.If any term hereof is contrary to, prohibited by or deemed invalid under applicable laws or regulations, such term will be deemed omitted to the extent prohibited or invalid but the remainder of the terms and this Agreement will not be invalidated and will be given effect so far as possible.
- Waiver. Any waiver of any right in, or breach of, this Agreement will not be a continuing waiver and will not prevent any claim of breach of the same term or any other term of this Agreement.
- Assignment. This Agreement is fully assignable by LoJack to any person or entity and will inure to the benefit of such assignee or successor. You may not assign this Agreement without the prior written consent of LoJack.
- Eligibility and Age Restrictions. The Services and Software are for use only by those who have reached the legal age of majority in Your jurisdiction and have full legal capacity to enter into binding contracts, have reached legal driving age and possess legal parental or guardian consent and are fully able and competent to enter into and abide by this Agreement. If You do not meet these requirements, You must decline these terms and You are not permitted to use the Services or Software. If you are the purchaser of the Unit, You are not authorized to add users or administrators for Your SureDrive account who do not meet these requirements. We do not knowingly collect any information from individuals who are under the age of 13.
BY SIGNING (THROUGH ELECTRONIC ACCEPTANCE), YOU AGREE TO ALL TERMS OF THIS AGREEMENT, INCLUDING THE ARBITRATION PROVISION UNDER SECTION 18.