Welcome to Automox. Please read the following terms and conditions of service (“Terms”) carefully as they contain the legal terms and conditions that you agree to when you access or use the Service (defined below) provided to you by Automox Inc. (“Automox,” “we,” “our,” or “us”) through the Automox web site (the “Site”). Automox provides an online service that assists customers in the management, monitoring and applying of software patches to devices (“Service”). Customer (defined below) desires to subscribe to the Service on the terms and conditions set forth herein, and Automox desires to provide access to the Service on the terms and conditions set forth herein.
BY ACCESSING OR USING THE SITE YOU AGREE TO BE BOUND BY THE TERMS OF SECTION A AND SECTION C BELOW, WHICH CONTAIN PROVISIONS APPLICABLE TO ALL USERS OF THE SITE, INCLUDING CASUAL VISITORS TO THE SITE. IF YOU CHOOSE TO REGISTER FOR AND CREATE AN ACCOUNT OR USE THE SERVICE, YOU AGREE TO BE BOUND BY THE TERMS SET FORTH IN SECTION B, IN ADDITION TO THE TERMS OF SECTION C.
SECTION A. TERMS APPLICABLE TO UNREGISTERED USERS OF THE SITE
- Availability.YOU UNDERSTAND AND AGREE THAT THE SITE IS PROVIDED “AS-IS” WITHOUT ANY WARRANTY OF ANY KIND. You are responsible for obtaining access to any Site and understand that access may involve third party fees (such as Internet service provider or airtime charges). You are responsible for those third party fees, including those fees associated with the display or delivery of advertisements (if any). In addition, you must provide and are responsible for all equipment necessary to access the Site.
- Trademarks.All brand, product and service names used on the Site which identify Automox are proprietary marks of Automox. All brand, product and service names used on the Site which identify third parties and their products and services are proprietary marks of such third parties. Nothing in the Site shall be deemed to confer on any person any license or right on the part of Automox or any third party with respect to any such image, logo or name.
- Copyright.Unless otherwise stated in these Terms or on the Site, Automox is the owner of all copyright and database rights in the Service, the Site, and the contents of each. You may not publish, distribute, extract, reuse or reproduce any such content in any material form (including photocopying or storing it in any medium by electronic means) other than in accordance with these Terms.
- External Links.From time to time Automox may provide links that will take you to third party websites. These links are provided for your convenience only. If you decide to access linked websites you do so at your own risk. Automox does not endorse or take responsibility for the content on other website or the availability of other website and you agree that Automox is not liable for any loss or damage that you may suffer by using any other website.
- Amendment of Terms.We reserve the right to amend these Terms agreed to by you from time to time without notice. Your continued use of the Site constitutes acceptance of any amendments, additions, or modifications to these Terms.
SECTION B. TERMS APPLICABLE TO REGISTERED USERS
1. Order Process; Agreement.
- “Agreement” means these Terms and any terms provided or made available to you during the ordering or registration process (“Order Process”) into which these Terms are incorporated, including without limitation all pricing and payment terms.
- You agree that you are an employee or agent of the business entity or person (“Customer” or “you”) and are entering into this Agreement for use of the Service by Customer for Customer’s own business purposes. You hereby agree that you enter into this Agreement on behalf of Customer and that you have the authority to bind Customer to this Agreement.
- Automox is willing to provide the Service to Customer only on the condition that you accept all of the terms in this Agreement. By accessing or otherwise using the Service, you acknowledge that you have read this Agreement, understand this Agreement and that Customer agrees to be bound by all of the terms of this Agreement.
- If you do not agree to the terms and conditions of this Agreement, Automox is unwilling to provide or make the Service available to Customer, and therefore, cancel and do not complete the registration process or otherwise use the Service. If you do not accept this Agreement, Customer should immediately cease any use of the Service.
- In the case of inconsistencies between these Terms and information included in other materials (e.g., promotional materials and mailers), these Terms shall always govern and take precedence. In the case of inconsistencies between these Terms and the Order Process, the Order Process shall always govern and take precedence.
- Amendment of Terms. You agree that Automox retains the right to amend this Agreement and its service offerings and prices at any time, for any reason, with or without providing notice to you. You agree to review the posting of this Agreement periodically to be aware of such changes. Continued use of the Service constitutes acceptance of any amendments, additions, or modifications to this Agreement. Any amendments or modifications made by Automox shall be prospective only. You shall be bound by all such modifications, whether or not you have notice thereof. If you continue to use the Service, after any amendments or modifications are made you shall be deemed to have accepted those changes.
3. Fees; Payments.
- Platform. Subject to the terms and conditions of this Agreement, Automox shall provide access to and use of the Platform to Customer solely as necessary for Customer to use the Service. “Platform” means all technology and intellectual property, including any hardware and software, used by Automox to configure and deliver the Service to Customer in accordance with this Agreement. Customer may also install the Automox software agent code (“Agent”) in order to implement the Service.
- Access and Use Rights. Automox grants you a personal, limited, revocable, non-exclusive and non-transferable right to access and use the Platform and Service and install the Agent. These rights are exclusive to you and you may not sublicense the use of the Platform. Automox expressly retains all ownership rights, title and interest in and to all aspects of the Service and the Platform, including, but not limited to, all current and future patents, copyrights, trademarks, trade secrets, know-how, and other proprietary rights included or embodied in the Platform. You may leverage our available APIs, but You may not modify the Platform, create derivative works of the Platform, or reverse engineer, reverse compile, reverse assemble or do any other operation with the Platform that would reveal any source code, trade secrets, know-how or other proprietary information. These rights shall not be construed or interpreted as granting or providing rights to you to use, reproduce, modify, distribute, perform, display, possess or control the source code or any other aspect of the Platform. You may not remove or modify any notice of confidentiality, trade secret, trademark or copyright encoded or embodied in the Platform or displayed by, on, or in the Platform. You may use the Platform only while these Terms remain in effect. Under no circumstances shall you have any rights of any kind in or to the Platform after any termination or expiration of your agreement to these Terms for any reason.
- Administrative Usernames and Passwords. Automox shall provide Customer a unique username and password to enable Customer to access the Platform pursuant to this Agreement. Customer acknowledges and agrees that only the authorized number of users, if applicable, are entitled to access the Platform with the username and password provided to Customer. Customer is responsible for maintaining the confidentiality of all Customer usernames and passwords, and is solely responsible for all activities that occur under these usernames. Customer agrees (a) not to allow a third party to use its account, usernames or passwords at any time; and (b) to notify Automox promptly of any actual or suspected unauthorized use of its account, usernames or passwords, or any other breach or suspected breach of this Agreement. Automox reserves the right to terminate any username and password, which Automox reasonably determines may have been used by an unauthorized third party or an individual other than the Customer to whom such username and password was originally assigned.
- Usage Data. “Usage Data” means any and all data collected or generated by Automox or Customer in connection with the Service (including without limitation, any information of or related to device data and information, login passwords, public keys, network monitoring, analysis in an aggregated form. You acknowledge and agree that we may (i) internally use and modify any Usage Data solely for the purposes of providing services to Customer and in certain cases we may leverage learnings derived from Usage Data to enhance the Service for you and other customers, and (ii) freely use and publish aggregated data for our business purposes without restriction; provided that we do not disclose any Customer Content (as defined below) or Confidential Information. Automox may use all Usage Data for any lawful purpose, provided that Automox shall not disclose or use any Customer Content in violation of this Agreement.
- Support. Automox shall provide Customer with support regarding the Platform and Service in accordance with the support program you are entitled to through the Order Process. Customer shall promptly report to Automox those bugs, errors and non-conformities regarding the Platform and Service of which Customer becomes aware. All support services shall be provided only to administrative Users that have been assigned administrative rights in the Automox Console. In no event shall Automox have any obligation to provide support services directly to any non-administrative Users.
- Fees. Customer shall pay Automox all fees as described in and in accordance with the applicable Order Process, or as described on the Site (“Fees”), and Customer hereby authorizes Automox to charge Customer for all applicable Fees using Customer’s selected method of payment. All payments are non-refundable.
- Invoiced Payments. Customer shall pay all Fees described in an invoice within 10 days after Customer’s receipt of the applicable invoice. All Fees exclude, and Customer shall be responsible for, all sales, use, excise and other taxes applicable to the transactions contemplated by this Agreement, except for taxes based on Automox’s income. Fees are non-refundable. Automox may assess a late payment fee of the lesser of one and one-half percent per month or the maximum rate permitted by applicable law on all amounts not paid when due from the due date until paid. In the event of any failure by Customer to make payments of any undisputed Fees in accordance with this Section 3.2, Automox shall be entitled to suspend its performance of the Service upon notice to Customer. All Fees shall be considered valid unless disputed by you in writing within 30 days after your receipt of the applicable invoice. No adjustments will be made for disputed Fees made more than 30 days after that date. All Fees shall be paid in U.S. dollars.
- Subscriptions and Auto-Renewals. IF CUSTOMER’S ACCOUNT IS SET TO AUTO-RENEWAL OR IF CUSTOMER ELECTS DURING THE ORDER PROCESS TO PURCHASE A SUBSCRIPTION TO THE SERVICE THAT AUTOMATICALLY RENEWS, AUTOMOX MAY CHARGE CUSTOMER’S SELECTED PAYMENT METHOD AUTOMATICALLY FOR SUCH RENEWAL, UNLESS THE CUSTOMER NOTIFIES AUTOMOX THAT THE CUSTOMER WANTS TO CANCEL THE SUBSCRIPTION OR DISABLE AUTO-RENEWAL. Customer will not be eligible for a prorated refund of any portion of the subscription fee paid for the then-current subscription period. If Automox does not receive payment for a renewal prior to the date of renewal, Automox may, in its discretion, do one or more of the following: (i) demand full payment, (ii) charge any form of payment Customer has obtained to replace its provided form of payment (e.g., Customer has obtained a replacement credit card number), and Customer hereby authorizes Automox to do so, and (iii) terminate or suspend Customer’s subscription.
- Variable Fee Calculations. For fees charged based on Endpoint (defined as any desktop, laptop, server, virtual machine or other device that has the Automox agent installed on it), Automox will bill Customer for the maximum number of Endpoints reflected in the Customer console at any point in time during a calendar month) on a monthly basis in arrears.
4. Customer Responsibilities
- Content and Users. As between Automox and Customer, Customer shall be solely responsible for (a) all acts or omissions of Users in relation to the use of the Service, (b) all of Customer information, data, files, links, images, works of authorship, and other Customer materials submitted or made available to Automox by Customer and used in connection with the Services, including information about Customer’s information technology infrastructure provided to Automox (“Customer Content”) and (c) any liability that may arise from any act or omission of Users in relation to the Service and all Customer Content. Customer Content does not include any Usage Data.
- Ownership of Content. As between Automox and Customer, Customer Content shall at all times remain the property of Customer or its licensors. Automox shall have no rights in Customer Content other than the limited right to use such Customer Content as required for Automox to perform the Service in accordance with this Agreement.
- Limitations. Customer agrees that Customer shall not: (a) permit any party to access and/or use the Service, other than the Users authorized under this Agreement; (b) rent, lease, loan, or sell access to the Service or Platform to any third party; (c) interfere with, disrupt, alter, translate, or modify the Service, Platform or any part thereof, or create an undue burden on the Service, Platform or the networks or services connected to the Service; (d) reverse engineer or access the Service in order to (i) build a competitive product or service, (ii) build a product using similar ideas, features, functions or graphics of the Service, or (iii) copy any ideas, features, functions or graphics of the Service; (e) without Company’s express written permission, introduce software or automated agents or scripts to the Service so as to produce multiple accounts, generate automated searches, requests and queries, or to strip or mine data from the Service; (f) perform or publish any performance or benchmark tests or analyses relating to the Service or the use thereof; or (g) cover or obscure any page or part of the Service by any means. Except as expressly set forth herein, no express or implied license or right of any kind is granted to Customer regarding the Service, Platform or any part thereof.
6. Warranties; Disclaimer.
- It is the policy of Automox to respect the privacy of individuals who visit the website, create accounts and/or provide comments to us. Automox stores user data in two ways; our website (www) and our application. When visiting our website, the IP address of visitors are collected in web server logs, which is standard for most web sites. If a visitor signs up for email communications or wishes to be contacted by sales their email address and name are stored.
- When a customer signs up for the Automox application the the only information stored is the users email address. The application itself requires information about computers including OS, IP and other meta data. When a customer closes their account, the stored data will be immediately removed from the application, it will age out of offline backups after a period of 7 days.
7. Term and Termination.
- Service Warranty. Automox warrants that it shall provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service shall materially conform to Automox’s then current documentation for the Service under normal use and circumstances. If you notify Automox of a breach of warranty, Automox shall reperform the nonconforming service. The foregoing constitutes your sole and exclusive remedy for any breach of warranty.
- Disclaimer. EXCEPT FOR THE LIMITED WARRANTY CONTAINED IN SECTION 6.1 ABOVE, AUTOMOX EXPRESSLY DISCLAIMS ALL WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARISING FROM OR RELATED TO THIS AGREEMENT, THE SERVICE, THE PLATFORM, THE SITE AND THE LANDING PAGE.
- Term. Unless otherwise expressly set forth in the Order Process, the “Term” of this Agreement shall commence on the date that Customer agrees to this Agreement and shall continue until this Agreement is terminated as set forth herein.
- Termination for Cause. Except as otherwise provided for herein, either party may terminate this Agreement upon the material breach of the other party, if such breach remains uncured for ten days following the breaching party’s receipt of written notice of the breach.
- Termination for Convenience. Except as otherwise provided for herein, either party may terminate this Agreement for any reason by providing the other party at least thirty days prior written notice.
- Effect of Termination. Upon termination or expiration of this Agreement, (a) Automox shall terminate the Service and remove all copies of the Customer Content from servers within its control and (b) Customer shall promptly pay Automox all amounts owed under this Agreement without regard to whether any invoices had or had not been issued. Sections 2.3, 2.4, 3, 4.3, 5, 7.4 8, 9 and 10 of Section B and all of Section C shall survive termination or expiration of this Agreement.
9. Confidential Information.
- Ownership of Platform. As between Automox and Customer, Automox owns all right, title and interest in and to the Platform and Service, including any and all intellectual property and proprietary rights in any intellectual property (including without limitation copyrights, patents rights, trade secret right, rights of reproduction, trademark rights, rights of publicity, moral rights, contract rights and the right to secure registrations, renewals, reissues, and extensions thereof) in any country or jurisdiction of the world (“Intellectual Property Rights”) related to or embodied in the Platform and Service. Customer acknowledges and agrees that (i) it does not acquire any rights, express or implied in or to the Platform or Service, except as specifically set forth in this Agreement; (ii) any configuration or deployment of the Platform shall not affect or diminish Automox’s rights, title and interest in and to the Platform; and (iii) if Customer suggests any new features, functionality or performance for the Service and/or the Platform that Automox subsequently incorporates into the Service and/or the Platform, Automox shall have a worldwide, non-exclusive royalty-free perpetual right and license to use and incorporate such suggestions into the Service and/or the Platform. Customer acknowledges that the incorporation of such new features, functionality, or performance shall be the sole and exclusive property of Automox and all such suggestions shall be free from any confidentiality restrictions that might otherwise be imposed upon Automox pursuant to the terms of this Agreement.
- Reservation of Rights. All rights in and to Platform not expressly granted to Customer in this Agreement are reserved by Automox and its suppliers. Nothing in this Agreement shall be deemed to grant, by implication, estoppel or otherwise, a license under any of Automox’s existing or future intellectual property. Customer shall not remove, alter, or obscure any proprietary notices (including copyright notices) of Automox or its suppliers on the Platform.
- Third Party Content. The Service contains (or you may access through the Service) links to other websites belonging to third parties (“Third Party Services”). Third Party Services and Third Party Content are not investigated, monitored or checked for accuracy, appropriateness, or completeness by Automox, and Automox is not responsible for any Third Party Services accessed through the Service or any Third Party Content linked or posted through the Service. Automox uses a third party to process payment transactions. Automox does not ask for, transmit or collect your personal or payment information. Any issues with payments related to the Service should be directed to our third-party payment provider. Automox makes no representations or warranties regarding any Third Party Content found on or through the Service or that is otherwise available using the Service. Customer represents and warrants that any Third Party Content that it uses or has access to shall not (a) be copied, altered, or redistributed by Customer without the prior written consent of the owner of such Third Party Content; or (b) be used in any documents, reports, presentations or publications by Customer without the prior written consent and without attribution to the owner and/or author of such Third Party Content or to any other sources of such Third Party Content as may be appropriate. “Third Party Content” means any information, data, results, ideas, plans, sketches, texts, files, links, images, photos, video, sound, inventions (whether or not patentable), notes, works of authorship, articles, feedback, or other materials that is either (a) provided by third parties (including other users of the Service) to the Service; or (b) made available on third party websites and linked to on the Service.
- Definition. “Confidential Information” means all information of the disclosing party disclosed to the receiving party that is marked or identified as confidential, or disclosed in circumstances that would lead a reasonable person to believe such information is confidential. The Platform shall be considered Automox’s Confidential Information, notwithstanding any failure to mark or identify it as such. The terms and conditions of this Agreement are Confidential Information of the parties, but the relationship of the parties created by this Agreement is not Confidential Information.
- Protection. The party receiving Confidential Information (“Receiving Party”) from the other party (“Disclosing Party”) shall not use any Confidential Information of the Disclosing Party for any purpose not expressly permitted by this Agreement, and shall disclose the Confidential Information of the Disclosing Party only to the employees or individual independent contractors of the Receiving Party who have a need to know such Confidential Information for purposes of this Agreement and who are under a duty of confidentiality no less restrictive than the Receiving Party’s duty hereunder. The Receiving Party shall protect the Disclosing Party’s Confidential Information from unauthorized use, access, or disclosure in the same manner as the Receiving Party protects its own confidential or proprietary information of a similar nature and with no less than reasonable care.
- Exceptions. The Receiving Party’s obligations under Section 9.2 above with respect to any Confidential Information of the Disclosing Party shall terminate if and when the Receiving Party can document that such information: (a) was already lawfully known to the Receiving Party at the time of disclosure by the Disclosing Party; (b) is disclosed to the Receiving Party by a third party who had the right to make such disclosure without any confidentiality restrictions; (c) is, or through no fault of the Receiving Party has become, generally available to the public (including any information made available through the Service that is not protected by confidentiality obligations); or (d) is independently developed by the Receiving Party without access to, or use of, the Disclosing Party’s Confidential Information. In addition, the Receiving Party may disclose Confidential Information of the Disclosing Party to the extent that such disclosure is: (i) approved in writing by the Disclosing Party, (ii) necessary for the Receiving Party to enforce its rights under this Agreement in connection with a legal proceeding; or (iii) required by law or by the order of a court or similar judicial or administrative body, provided that the Receiving Party notifies the Disclosing Party of such required disclosure in writing prior to making such disclosure and cooperates with the Disclosing Party, at the Disclosing Party’s reasonable request and expense, in any lawful action to contest or limit the scope of such required disclosure. Notwithstanding the foregoing, Customer grants Automox permission to use its name in Automox’s marketing materials and to publish its name, trademark and/or logo on the Automox website, solely for the purpose of identifying Customer as a customer of Automox.
- Claims Against Customer. Automox shall defend, at its own expense, any claim, suit or action against Customer brought by a third party to the extent that such claim, suit or action is based upon an allegation that the Platform infringes any U.S. patents or any copyrights or misappropriates any trade secrets of such third party (“Customer Claim”), and Automox shall indemnify and hold Customer harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Customer specifically attributable to such Customer Claim or those costs and damages agreed to in a monetary settlement of such Customer Claim. The foregoing obligations are conditioned on Customer: (a) promptly notifying Automox in writing of such Customer Claim; (b) giving Automox sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Automox’s request and expense, assisting in such defense. Notwithstanding the foregoing, Automox shall have no obligation under this Section 10.1 or otherwise with respect to any infringement claim based upon: (1) any use of the Platform not in accordance with this Agreement; (2) any use of the Platform in combination with products, equipment, software, or data not supplied by Automox if such infringement would have been avoided without the combination with such other products, equipment, software or data; or (3) any modification of the Platform by any person other than Automox or its authorized agents or subcontractors. If use of the Service is, or in Automox’s opinion is likely to become, enjoined, Automox may at its discretion either: (i) modify the Platform so that it is non-infringing; (ii) replace the portion of the Platform that infringes or allegedly infringes with non-infringing components that is functionally equivalent; (iii) obtain a license that shall enable Customer to continue the use of the Service and Platform as provided hereunder; or, if none of the foregoing are commercially reasonable for Automox, (d) terminate this Agreement. THIS SECTION 10.1 STATES AUTOMOX’S ENTIRE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY FOR INFRINGEMENT CLAIMS OR ACTIONS.
- Claims Against Automox. Customer shall defend, at its own expense, any claim, suit or action against Automox brought by a third party to the extent that such claim, suit or action arising from or related to (i) any Customer Content, (ii) any User acts or omissions, or (iii) any failure by Customer to meet its obligations under Section 4 (each, an “Automox Claim”), and Customer shall indemnify and hold Automox harmless from and against all losses, damages, liabilities, costs, and expenses (including reasonable attorneys’ fees) incurred by Automox specifically attributable to such Automox Claim or those costs and damages agreed to in a monetary settlement of such Automox Claim. The foregoing obligations are conditioned on Automox: (a) promptly notifying Customer in writing of such Automox Claim; (b) giving Customer sole control of the defense thereof and any related settlement negotiations; and (c) cooperating and, at Customer’s request and expense, assisting in such defense. Notwithstanding the foregoing, Customer shall have no obligation under this section or otherwise with respect to any claim to the extent based upon any gross negligence or intentional misconduct of Automox.
SECTION C. TERMS APPLICABLE TO REGISTERED AND UNREGISTERED USERS
2. General Provisions.
- Limitations on Liability. IN NO EVENT SHALL AUTOMOX BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES (HOWEVER ARISING, INCLUDING NEGLIGENCE), OR FOR ANY LOST PROFITS, INTERRUPTED COMMUNICATIONS, OR LOST DATA, ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT EVEN IF AUTOMOX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUTOMOX’S AGGREGATE LIABILITY TO CUSTOMER UNDER THIS AGREEMENT SHALL NOT EXCEED DAMAGES IN EXCESS OF THE AMOUNTS RECEIVED BY AUTOMOX FROM CUSTOMER DURING THE 12 MONTH PERIOD PRECEDING THE EVENTS GIVING RISE TO SUCH LIABILITY.
- Governing Law. This Agreement is governed and construed in accordance with the laws of the State of Colorado without giving effect to any rule or law that would apply the law of another jurisdiction. Both parties submit to the exclusive personal jurisdiction in Colorado and further agree that any cause of action arising under this Agreement shall be brought in a court in Denver County, Colorado.
- Arbitration Agreement. Please read this Arbitration Agreement carefully. It is part of your contract with us and affects your rights. It contains procedures for mandatory binding arbitration and a class action waiver.
1. Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Agreement or the use of the Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and Automox.
2. Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to Automox should be sent to: 1909 Broadway, Suite 200, Boulder, CO 80302. After the Notice is received, you and Automox may attempt to resolve the claim or dispute informally. If you and Automox do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
3. Arbitration Rules. Arbitration shall be initiated through JAMS, an established alternative dispute resolution provider that offers arbitration as set forth in this section, or if JAMS is not available to arbitrate, the parties shall agree to select an alternative provider (“ADR Provider”). This Agreement and the rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Agreement (“Arbitration Rules”). The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearing. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that Automox made to you prior to the initiation of arbitration, Automox will pay you the greater of the award or 125% of the settlement offer. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
4. Additional Rules for Non-Appearance Based Arbitration. If non-appearance based arbitration is elected pursuant to Section “(c)” above, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
5. Time Limits. If you or Automox pursues arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the Arbitration Rules for the pertinent claim.
6. Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and Automox, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the ADR Provider’s rules, and the Agreement. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and Automox.
7. Waiver of Jury Trial. The parties hereby waive their constitutional and statutory rights to go to court and have a trial in front of a judge or a jury, instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement. Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and Automox in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, you and Automox waive all rights to a jury trial, instead electing that the dispute be resolved by a judge.
8. Waiver of Class or Consolidated Actions. All claims and disputes within the scope of this Arbitration Agreement must be arbitrated or litigated on an individual basis and not on a class basis, and claims of more than one User cannot be arbitrated or litigated jointly or consolidated with those of any other User.
9. Confidentiality. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
10. Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
11. Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
12. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Automox.
13. Small Claims Court. Notwithstanding the foregoing, either you or Automox may bring an individual action in small claims court.
14. Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
15. Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
16. Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the state and federal courts located in Denver, Colorado, for such purpose.
3. Compliance with Laws. Each party shall comply with all applicable laws, rules and regulations while performing under this Agreement.
4. Severability; Waiver. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions shall continue in full force without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision which most closely approximates the intent and economic effect of the invalid provision. The waiver by either party of a breach of any provision of this Agreement shall not operate or be interpreted as a waiver of any other or subsequent breach.
5. Headings. Headings used in this Agreement are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section or in any way affect this Agreement.
6. Assignment. Neither party may assign or transfer, by operation of law or otherwise, this Agreement, or any of its rights under this Agreement or delegate any of its duties under this Agreement to any third party without the other party’s prior written consent; except pursuant to a transfer of all or substantially all of such party’s business and assets to which this Agreement relates, whether by merger, sale of assets, sale of stock, or otherwise. Any attempted assignment or transfer in violation of the foregoing shall be void. This Agreement shall inure to the benefit of and be binding upon any permitted successors or assigns.
7. Independent Contractors. The parties to this Agreement are independent contractors, and no agency, partnership, joint venture or employee-Customer relationship is intended or created by this Agreement. Neither party shall have the power to obligate or bind the other party. Personnel supplied by Automox shall work exclusively for Automox and shall not, for any purpose, be considered employees or agents of Customer. Automox assumes full responsibility for the acts of such personnel while performing services hereunder and shall be solely responsible for their supervision, direction and control, compensation, benefits and taxes.
8. Notice. Any notices required or permitted hereunder shall be given to the appropriate party at the address specified during the Order Process or at such other address as the party shall specify in writing. Such notice shall be deemed given: upon personal delivery; if sent by telephone facsimile, upon confirmation of receipt; or if sent by certified or registered mail, postage prepaid, five days after the date of mailing.
9. Subcontractors. Automox may, at its sole discretion, delegate the performance of any portion of the Service provided hereunder to any of its affiliates or to a subcontractor of Automox’s choosing. Automox shall require subcontractors to enter into nondisclosure or other agreements consistent with the terms of this Agreement. Automox shall remain responsible for the performance of all services delegated to its subcontractors.
10. Counterparts. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument.
11. Entire Agreement. This Agreement, including the exhibits attached hereto, sets forth the entire understanding and agreement of the parties and supersedes any and all oral or written agreements or understandings between the parties as to the subject matter of this Agreement. Neither party is relying upon any warranties, representations, assurances or inducements not expressly set forth herein.