Updated August 9th, 2023
This agreement contains a binding arbitration provision and class action waiver. It affects your legal rights as detailed in the arbitration and class action waiver section below. Please read carefully.
Please note that your use of and access to the services (defined below), including any access to AirGarage locations (defined below) are subject to the following terms. If you do not agree to all of the following terms, you may not use or access the services in any manner.
These Terms of Service (the "Terms") are a binding legal agreement between you and AirGarage, Inc. ("AirGarage", "we", "us" or "our"). The terms "user," "you" and "your" refer to the individual or entity that uses the websites, applications, and other online products and services provided by us and online and offline services related thereto, including physical locations where our technology is used, and including any services, transactions, or engagement you might have with us (collectively, the "Services"). By using our Services, whether as a digital user accessing the online aspects of the Services (either directly or through a third-party platform) or as a visitor to one of our or our customers' or business partners' physical locations (an "AirGarage Location"), you agree to be bound by these Terms. If you don't agree to be bound by these Terms, do not use or access the Services, including any AirGarage Location or Product. If you use the Services on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and "you" and "your" herein shall refer to that entity, its directors, officers, employees, and agents.
Except for Section 16, providing for binding arbitration and waiver of class action rights, AirGarage reserves the right, at its reasonable and sole discretion, to modify or replace these Terms at any time. You are responsible for reviewing and becoming familiar with any such modifications. Changes will be effective immediately unless otherwise provided. If we determine a revision to the Terms, in our sole discretion, is material, we will notify you as required by law. Use of the Services by you after any modification to the Terms constitutes your acceptance of the Terms as modified. If you do not accept the changes, you must discontinue using the Services.
AirGarage reserves the right at any time to modify, suspend, discontinue, or terminate, temporarily or permanently, the Services or any part thereof, with or without notice. Except for payments or refunds expressly available to you under these Terms (or as required by law), you agree that AirGarage shall not be liable to you for any modification, suspension, or discontinuance of the Services.
A. Eligibility
You may use the Services only if you are at least 16 years of age, and not otherwise barred from using the Services under applicable law. Specific features or aspects of the Services may have a different age limit. By using the Services, you represent and warrant that you (or your parent or legal guardian, as required by applicable law if you are unable to form a binding contract) have reviewed and agreed to these Terms. Parents and guardians are responsible for the acts of their children when using our Services.
B. Registration and Your Information
In order to use the Services, you must create an “Account”. When creating an Account you may be required to submit certain personal information, including without limitation, your name, email address, mobile phone number, vehicle information, and/or valid Payment Information (as defined below). You agree to provide accurate, current, and complete information that does not infringe on the rights of any third party, and to update all information you provide to keep it accurate, current, and complete. You are solely responsible for safeguarding your Account information and for all activity that occurs on your Account, and you will notify AirGarage immediately of any unauthorized use of your Account. We are not liable for any losses by any party caused by an unauthorized use of your Account. You agree to comply with all billing procedures, including, as applicable, providing and maintaining accurate and lawful Payment Information for your Account. Unless otherwise explicitly permitted by AirGarage, you may only possess one Account. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity. You agree that the sole and specific purpose of registering an Account is to make use of the Services.
By sending us any feedback, comments, questions, or suggestions concerning AirGarage or the Services (collectively "Feedback"), you represent and warrant (a) that you have the right to disclose the Feedback, (b) that the Feedback does not violate the rights of any other person or entity, and (c) that your Feedback does not contain the confidential or proprietary information of any third party or parties. By sending us any Feedback, you further (i) agree that we are under no obligation of confidentiality, express or implied, with respect to the Feedback, (ii) acknowledge that we may have something similar to the Feedback already under consideration or in development, (iii) grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide license to use, modify, prepare derivative works, publish, distribute, and sublicense the Feedback, and (iv) irrevocably waive, and cause to be waived, against AirGarage and its users any claims and assertions of any moral rights contained in such Feedback. This Feedback section shall survive any termination of your Account, these Terms, or your participation in the Services.
AirGarage requires payment for use of the Services (or certain portions thereof). By using our Services, you agree to the pricing, payment, and billing policies posted or otherwise communicated to you. AirGarage offers multiple options to use the Services including options for Hourly or Daily Basis (a “Parking Payment”) or purchasing a Monthly Permit with a recurring monthly payment ("Monthly Permit") for such use. Special pricing and/or eligibility terms may apply to certain offers and Monthly Permits.
A. General
Whether you make a Parking Payment or purchase a Monthly Permit (each, a "Transaction"), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction and future Transactions via the payment features of the Services. We may ask you to supply additional information relevant to your Transaction, including your credit card number(s), the expiration date of your credit card(s) and your email and postal addresses for billing and notification (such information, "Payment Information"). We (or our third-party payment processor) may authorize charges using your Payment Information in anticipation of Monthly Permit or other Service-related payments in advance. In some instances, your available balance or credit limit may be reduced to reflect the authorization. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars. For certain Payment Information, the issuer of the payment method may charge you certain additional fees (e.g., foreign transaction fees or processing fees). You will be solely responsible for such fees. You remain responsible for any amounts we are unable to collect for your use of the Services.
B. Service Fee
Each Transaction is subject to a fee (each a "Service Fee"). Service Fees are charged in connection with each Transaction and are calculated based on a formula specific to the Services. The application of a Service Fee and the rate is set by AirGarage in its sole discretion.
C. Monthly Permits and Renewal
For certain features of the Services you'll need a Monthly Permit. If you purchase a Monthly Permit, you will be charged the Monthly Permit fee for the applicable period, plus any applicable taxes, and other charges, at the beginning of your Monthly Permit and automatically at the beginning of each subsequent Monthly Permit period commencing thereafter. BY PURCHASING A MONTHLY PERMIT, YOU AUTHORIZE AIRGARAGE TO AUTOMATICALLY INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. Your Monthly Permit will automatically continue at the selected interval, and we (or our third-party payment processor) will automatically charge at the beginning of each new Monthly Permit period commencing after the initial period for your Monthly Permit, using the Payment Information you have provided, unless prior to the end of the current period: (a) you terminate your Account; (b) you cancel your Monthly Permit; (c) we decline to renew your Monthly Permit; or (d) these Terms are otherwise properly terminated as expressly permitted herein. We may receive updated credit card information (new credit card number or updated expiration date) from your credit card issuer. We may use these new details in order to help prevent any interruption to the Services. If you would like to use a different payment method or if there is a change in payment method, please log in to your Account to update your billing information. Monthly Permits may include additional terms and conditions as may be described at the time of purchase or in other communications we send to you. The Monthly Permit Fee is non-refundable except as expressly set forth in these Terms or in accordance with applicable law. If any Monthly Permit Fee is not paid in a timely manner, or your transaction cannot be processed, we reserve the right to suspend, disable, cancel or terminate your access to the Services or cancel your Monthly Permit. You will be responsible for paying all past due amounts.
D. Termination of your Monthly Permit
We may terminate your Monthly Permit at our sole discretion and without any notice. If we cancel your Monthly Permit, we may give you a prorated refund based on the amount of time remaining that you cannot use, provided, however, that we will not be obligated to grant you a refund if we terminate your Account or your Monthly Permit because we determine, in our sole discretion, that your actions or your use of the Services violates these Terms or any applicable law or has harmed another user.
E. Changes to the Monthly Permit
We may change the Monthly Permit terms or Monthly Permit Fees at any time on a going forward basis in our discretion. If the pricing for your Monthly Permit increases, we will notify you, and provide you an opportunity to change your Monthly Permit before applying those changes to your Account or charging you in connection with an automatic renewal. We may choose in our sole discretion to add, modify, or remove benefits and features from a Monthly Permit. Your continued use of the Services after the changes become effective will constitute your acceptance of the changes. If you do not wish to continue with the new fees or features, you may cancel your Monthly Permit. If you accept the new Monthly Permit, its terms and conditions will apply for that renewal and all renewals going forward.
F. Autostart Payments and Courtesy Fees
AirGarage requires payment for use of the Services (or certain portions thereof). In some instances a user may access an AirGarage Location without an active Monthly Permit or Parking Payment. In order to prevent disruption to the Services or to prevent user from being in violation of the Services, AirGarage may automatically charge user with an active Account a Parking Payment for use of the Services (“Autostart Payment”). Autostart Payments may also include an additional fee (“Courtesy Fee”).
A. User Content
Content such as video, audio, images, information, text (in posts or communications with us or others), and other materials that you post or otherwise make available (including via entry into a AirGarage Location) through the Services, including content you make available for initiation of support requests or as submissions to enter contests or promotions, is referred to as "User Content". AirGarage does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
B. Permissions to Your User Content
By making any User Content available through the Services, you hereby grant to AirGarage a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in all formats and distribution channels now known or hereafter devised (including in connection with operating, providing, improving, updating, analyzing, marketing and promoting the Services. This license shall survive termination of the Services, these Terms, or your Account. AirGarage does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit your User Content.
C. Your Responsibility for User Content
You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your provision of User Content to be made available through the Services, nor any use of your User Content by AirGarage on or through the Services will infringe, misappropriate, or violate a third party's intellectual property rights or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
D. Removal of User Content
The functionality of the Services may give you the ability to remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Subject to your compliance with these Terms, AirGarage grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the AirGarage mobile application (the "App") on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend, or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
If you have downloaded the App, you agree to promptly download and install any new version that we make available through the iTunes App Store or Google Play store, as applicable. Some new versions may contain updated Terms. Some new versions may contain security fixes and service improvements, whether or not we disclose that they do; accordingly, failure to promptly update your version of the App may in some cases expose you to increased security risks or App malfunctions.
You agree you will not use the Services for a purpose that is unlawful or prohibited by these Terms, or any other purpose not reasonably intended by AirGarage. By way of example, and not as a limitation, you agree not to do any of the following:
A. Post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates, or violates a third party's patent, copyright, trademark, trade secret, moral rights, or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar, or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment, or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
B. In connection with your access to or use of the Services, cause a nuisance, annoyance, or inconvenience, or take actions that result in property damage, whether to a AirGarage Location or any third party;
C. Use, display, copy, modify, distribute, license, lease, sell, resell, transfer, perform, transmit, stream, broadcast, mirror, frame, or otherwise exploit the Services or any individual element within the Services, AirGarage's name, any AirGarage trademark, logo or other proprietary information, or the layout and design of any webpage or form contained on a webpage, without AirGarage's express written consent;
D. Access, tamper with, or use non-public areas of the Services, AirGarage's computer systems, AirGarage Locations, or the technical delivery systems of AirGarage's providers;
E. Attempt to probe, scan, or test the vulnerability of any AirGarage system or network, or breach any security or authentication measures;
F. Avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by AirGarage or any of AirGarage's providers or any other third party to protect the Services;
G. Scrape, access, monitor, index, frame, link, or copy any content on the Services by accessing the Services in an automated way, using any robot, spider, scraper, web crawler, or using any method of access other than manually accessing the publicly-available portions of the Services through a browser or accessing the Services through any approved mobile application, application programming interface, or client application;
H. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
I. Use any meta tags or other hidden text or metadata utilizing a AirGarage trademark, logo URL or product name without AirGarage's express written consent;
J. Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
K. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive, or false source-identifying information;
L. Attempt to decipher, decompile, disassemble, or reverse engineer any of the software used to provide the Services;
M. Interfere with, or attempt to interfere with, the access of any user, host, or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
N. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
O. Create multiple Accounts;
P. Use another user's Account to access the Services;
Q. Impersonate or misrepresent your affiliation with any person or entity;
R. Falsely imply AirGarage's endorsement or partnership, or otherwise mislead others as to your affiliation with AirGarage;
S. Access the Services or content in order to build a similar or competitive website, product, or service;
T. Violate any applicable law or regulation; or
U. Encourage or enable any other individual to do any of the foregoing.
AirGarage is not obligated to monitor access to or use of the Services or to review or edit any User Content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any User Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. AirGarage further reserves the right to report unlawful activity to law enforcement or other regulatory authorities.
By registering for the Services, you consent to receive communications from us, which may include calls and text messages to the cellular telephone number you provide to us. Depending on your relationship with us and consents received, we or our service providers send text messages to: (1) provide you with information you requested from us; (2) update you regarding your orders and other transactions with us; (3) respond to your customer service requests and other inquiries regarding your use of our services; and/or send you marketing or promotional text messages.
Any text messages we send to you are subject to the SMS Terms set forth in this section.
A. Consent to Receipt of AirGarage Text Messages
You may provide us with consent to send you text messages through our website or mobile application (e.g. by providing us with your phone number and signing up for text messages) or through communications or transactions with us (e.g. by initiating or agreeing to receive text message communications with customer service). By providing your consent, you agree to these SMS Terms and our Terms of Service.
By consenting to receive AirGarage text messages, you agree that AirGarage or its service providers may use any automated or non-automated technology to send you transactional messages. You are not required to consent to marketing text messages as a condition of purchase.
AirGarage may terminate any text messaging services or your participation in our text message program at any time with or without notice, including, for example, before you have received any or all messages that you otherwise would have received, but these SMS Terms will still apply.
B. Costs of AirGarage Text Messages
AirGarage does not charge you for our text message program. But message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.
C. Frequency of Text Messages
We may send you one or more welcome messages or administrative messages, such as (in some cases), a request to confirm your opt-in. After that, you will receive recurring text messages, and the specific amount may vary depending on how you use our services (e.g. if you communicate with us through SMS).
D. Participating Carriers
AirGarage text messages are supported on all U.S. carriers. Please note, however, that the supporting mobile carriers may change without notice, and the particular text message program you join may be limited to specific carriers. AirGarage and the mobile carriers (for example, Verizon, AT&T and T-Mobile) are not liable for delayed or undelivered messages.
E. Eligibility
By consenting to receive AirGarage text messages, you represent that you are 16 years of age or older and understand the obligations and agree to the terms set forth in these SMS Terms. You further represent that you are the subscriber of the cellular service at the mobile number provided or that you are authorized by the subscriber to sign-up for texts.
F. Opting Out of AirGarage Text Messages
To opt out of text messages, you must text STOP to that number. After doing so, we may send you confirmation of your opt-out via text message. You further agree that texting STOP in response to our text message is the only reasonable method of opting out of our text messages. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than "STOP" or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
G. Modifications to these SMS Terms
We reserve the right to modify these SMS Terms, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your continued enrollment in AirGarage' text messaging program shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.
A. Links to Third-Party Websites or Resources
The Services may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products, or services on or available from those resources or any links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from your use of any third-party resources.
B. Access to Services
If you access our Services through a third-party platform, that third-party platform, and not us, shall be responsible for your use of the Services and your rights to use the Services shall be limited solely to those provided under your agreement with such third party.
We may terminate your access to and use of the Services, at our sole discretion, at any time and with or without notice to you. You may cancel your Account at any time by sending us an email at contact@airgarage.com. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: [4] (Feedback); [5] (Parking Payments and Monthly Permits), [6] (Content), [8] (General Prohibitions and AirGarage's Enforcement Rights), [11] (Termination), [12] (Disclaimers), [13] (Representations; Release and Indemnity), [14] (Limitation of Liability), [15] (Governing Law and Forum Choice), [16] (Arbitration and Class Action Waiver), [17] (General Terms), and any other provisions that are necessary to effectuate those sections.
A. The services and AirGarage locations are provided "as is," without warranty of any kind. Without limiting the foregoing, we explicitly disclaim any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement, and any warranties arising out of course of dealing or usage of trade. We make no warranty that the services or AirGarage locations will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness, or reliability of any information or content on or available in connection with the services or AirGarage locations. The performance of the services can vary due to several factors, including without limitation: specific mobile device limitations and capabilities; mobile device service provider or network limitations and capabilities; mobile device multi-tasking; mobile device memory; gps "lock" time, availability, and accuracy; mobile device settings; internet availability; messaging opt outs; and services availability, operability, or errors. AirGarage makes no representations or warranties with respect to the performance, operability, or availability of the services.
B. You explicitly agree that your use of the Services, and AirGarage Locations is at your own and sole risk. You park at your own risk and are solely responsible for all aspects of your parking at and access to the AirGarage Locations. You are responsible for determining your own safety and the safety of your vehicle and any articles left in your vehicle at any AirGarage Location. We are not responsible for damage to your vehicle, loss of your vehicle, or loss of articles left in your vehicle or for any personal injury in any circumstances, including, without limitation: fire, weather, or other act of God; theft or other criminal activity of any kind; mechanical defects; accidents; or your use of the Services, whether in motion or at rest. We are not responsible for any Penalties you incur or receive, even if the Services were used in connection with a Transaction. "Penalty" means any penalty, parking fine, ticket, summons, or citation; your vehicle being wheel booted, wheel locked, towed, or impounded; and/or other methods of enforcing any notices, signs, rules, or directions provided by relevant government authorities; traffic attendants; or other authorized people or entities (collectively, "authorities"), including, without limitation, enforcement of rules relating to spaces or zones designated as "no parking," "emergency," "tow-away," "handicapped," "reserved" and the like, time or day limitations and vehicle size limitations. You are solely responsible for resolving with the relevant authorities any issues that you may have regarding Penalties.
C. Your sole and exclusive remedy for any breach by us of any term or condition set forth in these Terms is to cease using the Services, uninstall the App, and terminate your Account.
A. You represent and warrant that you are authorized, and possess all applicable permits, licenses and approvals required under applicable laws, rules, and regulations to operate the vehicle(s) with which you are accessing any Services or AirGarage Locations.
B. To the extent permitted by law and in consideration of being allowed to use the Services, you hereby waive any and all claims, disputes, actions, demands, damages, losses, costs and expenses (including, without limitation, reasonable legal and accounting fees), and liabilities (collectively, "Claims") which you or your heirs and next of kin may now or hereafter have or claim against AirGarage and/or its affiliates and its and their respective officers, directors, shareholders, agents, partners and employees (collectively, "Releasees"), for any and all loss, theft or damage to property and for injuries, illness, disease, or death to your person occurring in, upon or about, or connected with or arising out of any use of or other activity at the Services or AirGarage Locations, including, without limitation, any activity relating to services and/or advice of any third-party operator, independent contractor, or employee, whether caused by active or passive negligence of Releasees or otherwise ("Release"). You hereby assume the risk of all mistakes of fact or law with regard to entering into this Release. You understand, acknowledge, and agree that if any fact now or at the time of the Claim believed to be true is found hereafter to be other than, or different from, that which is now believed, you expressly assume the risk of such difference in fact and agree that this Release shall and will remain effective notwithstanding any such difference in fact. You further represent and warrant that you understand that (a) you may have sustained damages, expenses and losses based upon, attributable to, arising out of, in connection with or in any way related to the subject matter of the Claims which are presently unknown or not suspected and that such damages, expenses and losses, if any, may give rise to additional damages, expenses and losses in the future which are not now or at the time of the Claim anticipated by you and (b) that this Release has been agreed upon despite this realization. Being fully advised regarding the foregoing, you voluntarily and with full knowledge of its significance, expressly waive and relinquishes any and all rights you may have under any state or federal statute, rule or common law principle, in law or equity, relating to limitations on releases, including, but not limited to, § 1542 of the California Civil Code (or any other similar law in any jurisdiction) which would limit the effect of the foregoing release to those Claims actually known or suspected to exist at the time of the effectiveness of the foregoing release. California Civil Code § 1542 provides:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
It is your intention, for yourself and for your past, present and future spouses, heirs, next of kin, guardians, beneficiaries, legal representatives, executors, administrators, successors and assigns (as well as their respective spouses, heirs, next of kin, guardians, beneficiaries, legal representatives, executors, administrators, successors and assigns) that, notwithstanding the possibility that they or their counsel could discover or gain a more complete understanding of the facts, events or law which, if presently or at the time of the Claim known or fully understood, would have affected the foregoing release, this Release shall be deemed to have fully, finally and forever settled any and all Claims, without regard to the subsequent discovery or existence of different or additional facts, events or law and that this Release shall be effective as a full and final accord and satisfaction and mutual general release of and from all released matters.
You agree to indemnify, defend, and hold harmless Releases from and against any Claims out of or in any way connected with (a) your access to or use of the Services or AirGarage Locations; (b) your User Content; (c) your violation of these Terms; or (d) your negligent act or omission or willful misconduct occurring at or in connection with any Services or AirGarage Locations. AirGarage reserves the right, at its own expense, to assume exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with AirGarage in the defense of such matter.
You understand and acknowledge that AirGarage is not obliged to carry insurance on you, and the existence of insurance shall not change, alter, or increase any liability of AirGarage or affect the terms of this release, waiver of liability and indemnification under this Section [13(b)].
A. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER AIRGARAGE NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE, SYSTEM FAILURE, OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT AIRGARAGE OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
B. TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL AIRGARAGE’S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO AIRGARAGE FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO AIRGARAGE, AS APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
C. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN AIRGARAGE AND YOU.
For any dispute not subject to arbitration or under the jurisdiction of a small claims court, you and AirGarage agree to submit to the personal and exclusive jurisdiction of any venue in the state and federal courts located in San Francisco County, California. You further agree to accept service of process by mail, and hereby waive any and all jurisdictional and venue defenses otherwise available. The Terms and the relationship between you and AirGarage shall be governed by the laws of the State of California without regard to conflict of law provisions.
PLEASE READ THIS SECTION CAREFULLY — IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
If you have a dispute with AirGarage or if AirGarage has a dispute with you and such dispute cannot be resolved informally, such dispute will be resolved on an individual basis in accordance with the provisions set forth below:
A. Initial Dispute Resolution
The parties shall use their best efforts to engage in informal dispute resolution to settle any dispute, claim, question, or disagreement and engage in good faith negotiations which shall be a condition to either party initiating a lawsuit or arbitration. Failure to engage in this process could result in the award of fees against you in arbitration. To adequately engage in this initial dispute resolution process, each party must notify the other party, in writing, of the facts of the dispute and all damages claimed. Such a writing must be sent to (a) the user's email address on file with AirGarage, or (b) contact@airgarage.com, whichever is applicable ("Dispute Notification"). The party receiving the Dispute Notification has thirty (30) days from receipt of the Dispute Notification to respond. The other party then has 15 days to reply to the response.
B. Binding Arbitration
If the parties do not reach an agreed upon solution within a period of 45 days from the time informal dispute resolution begins under the Initial Dispute Resolution provision, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. This agreement to arbitrate is a contract governed by the Federal Arbitration Act, 9 U.S.C. section 1, et seq., and evidences a transaction involving commerce. Except as explicitly set forth in this Section [16], the arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including, but not limited to, any claim that all or any part of these Terms are void or voidable, whether a claim is subject to arbitration, and any dispute regarding the payment arbitrator fees (including the timing of such payments and remedies for nonpayment). The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator shall also be empowered to consolidate claims raised between the same parties to a single arbitration proceeding. The parties agree that the arbitrator may allow the filing of dispositive motions if they are likely to efficiently resolve or narrow issues in dispute.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
C. Location
If you are a resident of the United States, arbitration will take place at any reasonable location within the United States convenient for you. You and AirGarage agree to submit to the personal jurisdiction of any federal or state court in San Francisco County, California in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
D. Class Action Waiver
The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND AIRGARAGE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Notwithstanding any other provision of these terms, disputes regarding the interpretation, applicability, or enforceability of the Class Action Waiver may be resolved only by a court and not by an arbitrator. If there is a final judicial determination that applicable law precludes enforcement of this paragraph's limitations as to a particular remedy, then that remedy (and only that remedy) must be severed from the arbitration and may be sought in court. The parties agree, however, that any adjudication of remedies not subject to arbitration shall be stayed pending the outcome of any arbitrable claims and remedies.
E. Exception - Litigation of Intellectual Property and Small Claims Court Claims
Notwithstanding the parties' decision to resolve all disputes through arbitration, either party may bring an action in state or federal court to protect its intellectual property rights ("intellectual property rights" means patents, copyrights, moral rights, trademarks, and trade secrets, but not privacy or publicity rights). Either party may also elect to have disputes or claims resolved in a small claims court that are within the scope of that court's jurisdiction. Either party may also seek a declaratory judgment or other equitable relief in a court of competent jurisdiction regarding whether a party's claims are time-barred or may be brought in small claims court in your state and county of residence. Seeking such relief shall not waive a party's right to arbitration under this agreement.
F. Changes to this Section.
AirGarage will provide 30 days' notice of any changes affecting the substance of this Section [16]. Changes will become effective on the 30th day. If you continue to use the Services after the 30th day, you agree that any unfiled claims of which AirGarage does not have actual notice are subject to the revised clause
A. Customer Support
To find more information about our Services, or if you need assistance with your Account, please visit the AirGarage Help Center. In the event of any conflict between these Terms and information provided by customer service or other portions of our website, these Terms will control.
B. Reservation of Rights
AirGarage and its licensors exclusively own all right, title, and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter, or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the explicit limited license granted in these Terms; or (ii) to use or reference in any manner company names, logos, product or service names, trademarks, or service marks of AirGarage or its licensors.
C. Entire Agreement
These Terms (and any additional terms, contracts, rules, and conditions that AirGarage may post through the Services), and, if applicable, other license agreements constitute the entire and exclusive understanding and agreement between AirGarage and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between AirGarage and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible, and the other provisions of these Terms will remain in full force and effect.
D. Assignment.
You may not assign or transfer these Terms, by operation of law or otherwise, without AirGarage's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. AirGarage may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
E. Notices.
AirGarage may give notice by any means of communication reasonably anticipated to notify you of the information provided. You agree that all notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing or be delivered in a particular manner. You agree that you have the ability to store such electronic communications such that they remain accessible to you in an unchanged form. By way of example only, such communication may be a general notice on the Services or via email to the email address listed on your Account. It is your obligation to update your Account information so that we may contact you as may be necessary. Such notice shall be deemed to have been given 48 hours after dispatch.
F. Waiver of Rights.
AirGarage's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of AirGarage. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
G. Section Titles.
The section titles in the Terms are solely used for the convenience of the parties and have no legal or contractual significance.
H. Statute of Limitations.
You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the use of the Services or the Terms must be filed within one (1) year after such claim or cause of action arose or be forever barred. This statute of limitations provision does not apply to residents of New Jersey.
I. No Third-Party Beneficiaries.
You agree that, except as otherwise expressly provided in these Terms, there shall be no third-party beneficiaries to these Terms.
If you have any questions about these Terms or the Services, please contact AirGarage at contact@airgarage.com.
