This End User License Agreement (this “Agreement”) is between you and Predictive Logistics, Inc. d/b/a RigPark (the “Company”, “us” or “our”) and governs the license and use of the wireless phone applications written or marketed by the Company and made available through directly by the Company or by or through the Apple App Store, Google Playstore, or any other on-line app store, to you (collectively, the “Company Apps” and each individually, a “Company App”), including, but not limited to, RigPark App. By installing a Company App, you agree to be bound by this Agreement. This End User License Agreement includes limitation of liability, arbitration, a waiver of class actions and right to jury provisions. If you do not agree with the terms and conditions of this Agreement, do not install or use any of the Company Apps and you are not licensed to download nor entitled to use the Company Apps.
This Agreement is between you and the Company only, and not Apple, Inc. (“Apple”), Google, Inc. (“Google”), or the owners or operators of any other app platform (“Other App Provider”). Notwithstanding the foregoing, you acknowledge that Apple, Google, and any Other App Provider and their subsidiaries are third party beneficiaries of this Agreement and Apple, Google, and any Other App Provider have the right to enforce this Agreement against you. The Company, not Apple, Google, or Other App Provider is solely responsible for the Company Apps and their content.
Using mobile devices while driving entail a substantial risk of property and personal injury and you acknowledge and agree that using the Company Apps while driving involve a substantial risk of causing injury or death and the Company Apps are not intended to be used while the user is driving. Accordingly, you agree that the Company Apps cannot be used, and you agree that you shall not use the Company Apps, while the vehicle you are in is in motion and you assume all liability which might result from using the Company Apps while a vehicle you are in is in motion. You agree to waive any claims to the contrary and you shall indemnify, defend and hold the Company harmless from any claims, liability, damages, or suits related to your use of the Company Apps.
If you do not wish to be bound by this arbitration agreement, you must notify us via electronic mail at email@example.com within 30 days of downloading the first Company App. Your written notification to us must include your full name and must clearly state that you do not wish to be bound by this arbitration agreement. Your decision to opt out of this arbitration agreement will not adversely affect your license of or your ability to use the Company Apps.
For all disputes, whether pursued in court or arbitration, you must first give us an opportunity to resolve your claim by sending a written description of your claim via electronic mail to firstname.lastname@example.org . We each agree to negotiate your claim in good faith. If we are unable to resolve the claim within 60 days after we receive your claim description, you may pursue your claim in arbitration.
Notwithstanding any provision in this Agreement to the contrary, if we change this arbitration agreement, you may reject the change without terminating or adversely affecting your ability to use the Company Apps by notifying us via electronic mail to email@example.com within 30 days of the date of the change notice. If you do, you shall arbitrate any Dispute in accordance with the terms of this arbitration agreement. If you do not, you will be bound by the changes.
Because this Agreement and your use of the Company Apps concern interstate commerce, this arbitration agreement shall be governed by the Federal Arbitration Act (“FAA”).
The party initiating arbitration must use:
American Arbitration Association (“AAA”)
335 Madison Avenue,
New York, NY 10017
Copies of their respective rules for consumer disputes and forms and instructions for initiating arbitration may be obtained by contacting them or visiting their websites. Any arbitration shall be conducted pursuant to the arbitration administrator’s rules for consumer disputes in effect when the arbitration is initiated except to the extent they are inconsistent with this arbitration agreement. If the arbitration administrator will not enforce this arbitration agreement as written, the parties shall agree on or mutually petition a court of competent jurisdiction to appoint a substitute arbitration administrator who will do so. The arbitrator shall enforce contractual, statutory and other limitation periods and shall honor claims of privilege recognized at law. Judgment upon any arbitration award may be entered in any court having jurisdiction.
If we initiate the arbitration, we will notify you at any electronic e-mail address we may have for you. If you initiate the arbitration, you must notify us via electronic mail at firstname.lastname@example.org .
If your Dispute does not exceed $10,000, we will promptly reimburse your filing fee and will pay the arbitrator’s other fees, costs and expenses. (If you cannot pay the filing fee, you may request that we pay the filing fee directly.) If, however, the arbitrator finds that your Dispute is frivolous or brought for an improper purpose, you shall reimburse the filing fee to us and the payment of the arbitrator’s others fees, costs and expenses shall be governed by the arbitration administrator’s rules.
You may hire an attorney to represent you in the arbitration proceeding and may recover your reasonable attorneys’ fees and costs in arbitration to the same extent as you could in court if the arbitration proceeding is decided in your favor. We may hire an attorney to represent us in the arbitration proceeding but waive any right to recover our attorneys’ fees and costs if the arbitration proceeding is decided in our favor.
Unless you and we agree otherwise in writing, any arbitration hearings will be held in the county of your then-current account address or (if your account is closed) the last address at which we contacted you.
If the arbitration provision applies or you choose arbitration to resolve your disputes, then either you or the Company may start arbitration proceedings. You must send a letter requesting arbitration and describing your claim to our electronic mail address of email@example.com to begin arbitration. For claims less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for claims over $75,000, the AAA’s Commercial Arbitration Rules will apply. The AAA rules are available at www.adr.org or by calling 1-800-778-7879. Upon filing of the arbitration demand, we will pay all filing, administration and arbitrator fees for claims that total less than $75,000. For claims that total more than $75,000, the payment of filing, administration and arbitrator fees will be governed by the AAA Commercial Arbitration Rules. An arbitrator may award on an individual basis any relief that would be available in a court, including injunctive or declaratory relief and attorneys’ fees. In addition, for claims under $75,000 as to which you provided notice and negotiated in good faith as required above before initiating arbitration, if the arbitrator finds that you are the prevailing party in the arbitration, you will be entitled to a recovery of reasonable attorneys’ fees and costs. Except for claims determined to be frivolous, we agree not to seek an award of attorneys’ fees in arbitration even if an award is otherwise available under applicable law.
CLASS ACTION WAIVER. WE EACH AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS, WHETHER IN ARBITRATION OR COURT, WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS OR REPRESENTATIVE ACTION OR AS A MEMBER OF A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. If a court or arbitrator determines in an action between you and us that this Class Action Waiver is unenforceable, the arbitration agreement will be void as to you. If you choose to pursue your claim in court by opting out of the arbitration provision as specified above, this Class Action Waiver provision will not apply to you. Neither you, nor any other customer, can be a class representative, class member, or otherwise participate in a class, consolidated or representative proceeding without having complied with the opt out requirements above.
JURY TRIAL WAIVER. If a claim proceeds in court rather than in arbitration, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
ARBITRATION INVOLVES A FAIR HEARING BEFORE A NEUTRAL ARBITRATOR RATHER THAN A JUDGE OR JURY. THE ARBITRATOR MAY AWARD DECLARATORY OR INJUNCTIVE RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY NAMED IN THE ARBITRATION PROCEEDING AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
Unless otherwise provided by applicable law, or otherwise in this Agreement, neither party has the right to bring a Dispute or other legal action under this Agreement more than one (1) year after the Dispute arose.
In exchange for your agreement to use the Company App, and your agreement to the limitation of liability, arbitration, and waiver of class action and jury trial provisions, the Company grants you a limited, non-exclusive, non-transferable, revocable license to use such Company App for your personal, non-commercial purposes on your Apple and Android devices in the United States, but not while driving. You may only use a Company App on Apple and Android devices that you own or control and as permitted by the App Store, Google Playstore, or Other App Provider Terms of Service.
By using a Company App, you represent and warrant that (a) you are 17 years of age or older and you agree to be bound by this Agreement; (b) if you are under 17 years of age, you have obtained verifiable consent from a parent or legal guardian; and (c) your use of such Company App does not violate any applicable law or regulation. Your access to a Company App may be terminated without warning if the Company believes, in its sole discretion, that you are under the age of 17 years and have not obtained verifiable consent from a parent or legal guardian. If you are a parent or legal guardian and you provide your consent to your child’s use of a Company App, you agree to be bound by this Agreement in respect to your child’s use of such Company App.
THE COMPANY APPS ARE PROVIDED “AS-IS” WITHOUT ANY WARRANTIES OF ANY KIND, INCLUDING ANY IMPLIED WARRANTIES, AND THE COMPANY DISCLAIMS ALL WARRANTIES ABOUT THE COMPANY APPS, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO YOU IN CONNECTION WITH, ARISING OUT OF, OR RELATING TO YOUR USE OF THE COMPANY APPS TO THE FULLEST EXTENT PERMITTED BY LAW. YOU ACKNOWLEDGE THAT INTERRUPTIONS IN OPERATION OF THE COMPANY APPS MAY OCCUR FROM TIME TO TIME AND AGREE TO HOLD THE COMPANY HARMLESS FOR ALL SUCH INTERRUPTIONS. IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ECONOMIC LOSS, PERSONAL INJURIES, OR PROPERTY DAMAGE SUSTAINED BY YOU OR ANY THIRD PARTY ARISING FROM USE OF THE COMPANY APPS. To the extent any warranty exists under law that cannot be disclaimed, the Company, not Apple or Google, shall be solely responsible for such warranty; provided, however, that the Company’s sole obligations, and your exclusive remedy, under such warranty, if any, and your sole remedy for any breach of such warranty, shall be to repair to replace any defective application. You agree to provide the Company with any information that you may have regarding the performance of the Company Apps.
The Company may, but is not obligated to, provide minimal maintenance or support for the Company Apps and, to the extent that any maintenance or support is required by applicable law, the Company, not Apple, shall be obligated to furnish any such maintenance or support.
YOU AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR A FAILURE OF ANY COMPANY APP, ANY SERVICE PROVIDED TO YOU, OR OUR FAILURE TO PERFORM HEREUNDER, SHALL BE YOUR RIGHT TO HAVE THE COMPANY REPROVIDE SUCH COMPANY APP OR RE-PERFORM SUCH SERVICE. UNLESS THE EXCLUSIVE REMEDY SET FORTH IN THE PREVIOUS SENTENCE IS PROHIBITED UNDER APPLICABLE LAW, YOU AGREE TO LIMIT CLAIMS FOR DAMAGES OR OTHER MONETARY RELIEF AGAINST THE COMPANY, TO THE LESSER OF: (A) YOUR DIRECT DAMAGES; OR (B) THE AMOUNTS YOU HAVE PAID THE COMPANY FOR SERVICES. AS A MATERIAL PART OF THE CONSIDERATION PAID BY YOU FOR THE LICENSE AND USE OF A COMPANY APP AND ANY SERVICES PROVIDED BY THE COMPANY UNDER THIS AGREEMENT USING THE COMPANY APPS, AND NOTWITHSTANDING ANY OTHER PROVISION HEREOF, THE COMPANY AND YOU AGREE THAT UNDER NO CIRCUMSTANCE IS EITHER PARTY, NOR SHALL EITHER PARTY BE, LIABLE FOR ANY INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, TREBLE, PUNITIVE OR SPECIAL DAMAGES OF ANY NATURE WHATSOEVER ARISING OUT OF, RELATED TO, OR IN CONNECTION WITH, THE COMPANY APPS OR THE SERVICES INCLUDING, BUT NOT LIMITED TO, LOST PROFITS, LOSS OF BUSINESS, OR COST OF REPLACEMENT PRODUCTS AND SERVICES, TO THE FULLEST EXTENT THE SAME MAY BE DISCLAIMED BY LAW. THIS MEANS THAT NEITHER OF US WILL SEEK ANY INDIRECT, SPECIAL, CONSEQUENTIAL, TREBLE, OR PUNITIVE DAMAGES FROM THE OTHER. THIS EXCLUSIVE REMEDY, LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS EITHER PARTY MAY BRING AGAINST THE OTHER PARTY TO THE EXTENT THAT IT WOULD BE REQUIRED TO INDEMNIFY THAT PARTY FOR SUCH CLAIM. THIS LIMITATION AND WAIVER WILL APPLY REGARDLESS OF THE THEORY OF LIABILITY, WHETHER FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL INJURY, NEGLIGENCE, PRODUCT LIABILITY, OR ANY OTHER THEORY. YOU AGREE THAT THE FOREGOING ALLOCATION OF RISK SHALL, IN THE EVENT OF THE COMPANY’S INABILITY, DESPITE GOOD FAITH EFFORTS, TO PROVIDE A WORKING APPLICATION OR ANY SERVICE, REMAIN IN EFFECT REGARDLESS OF WHETHER THE EXCLUSIVE REMEDIES PROVIDED FOR UNDER THIS SECTION THEN SATISFY THE ESSENTIAL PURPOSES FOR WHICH THEY WERE INTENDED, OR OTHERWISE PROVIDE YOU WITH A FAIR QUANTUM OF RELIEF.
You also agree that the Company is not responsible for any damages resulting from: (a) any action or omission by a third party; (b) providing or failing to provide a working app any services; (c) traffic or other accidents, or any health-related claims relating to the use of the Company Apps; (d) data content or information accessed while using the Company Apps; (e) interrupted, failed, or inaccurate location information services; or (f) damage to your wireless device or any computer or equipment connected to your wireless device, or damage to or loss of any information stored on your wireless device, computer, or equipment, from your download and use of a Company App or your use of the services or from viruses, worms, or downloads of malicious content, materials, data, text, images, video or audio. You agree the Company is not responsible for problems caused by you or others, or by any act of God or other events beyond our control, including acts of God (for example, weather-related phenomena, fire, earthquake, hurricane, etc.), riot, strike, war, terrorism or government orders or acts. You should implement appropriate safeguards to secure your wireless device, computer or equipment and to back-up your information stored on each.
The Company, not Apple, Google, nor Other App Provider, is responsible for addressing any claims by you relating to the Company Apps or your use of them, including, but not limited to: (i) any product liability claim; (ii) any claim that the Company Apps fail to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in this Agreement shall be deemed an admission that you may have such claims. You shall not have any claims unless you have notified the Company in advance of such claims and give the Company the opportunity to repair or replace the subject Company App.
The Company Apps are provided without any warranty of any kind regarding claims by third parties regarding infringement of their intellectual property. The Company shall not be obligated to indemnify or defend you with respect to any third party claim arising out, in connection with, or relating to, the Company Apps. To the extent the Company is required to provide indemnification to you by applicable law, such liability shall be limited to the purchase price paid by you for the use of the subject Company App, and the Company, not Apple, Google, nor Other App Provider, shall be solely responsible for the investigation, defense, settlement and discharge of any claim that any Company App or your use of it infringes any third party intellectual property right.