No HIPAA Compliance. You may not use the Software or Services if you are subject to HIPAA or for any information that is subject to HIPAA. See Section 9 for more details.
Individual Subscribers. If you are an individual accessing the Site and/or Software and/or using the Services, regardless of whether you are paying for the Services or are utilizing a free plan or Trial (as defined below) of the Services or Software, or are otherwise browsing the Site you are an “Individual Subscriber” and this Agreement is between you, individually, and Clean Drive.
Enterprise Subscriber. If you are an employee, faculty member or student of a university, school or other entity or organization that has subscribed to the Services and Software (an “Enterprise Subscriber”), you are an “Authorized User” of your Enterprise Subscriber and (i) you represent that you have your Enterprise Subscriber’s permission and authority to use the Site, Services, Software and your Enterprise Subscriber’s “User Content” (as defined below) subject to this Agreement, (ii) this Agreement is an agreement between you, individually, and Clean Drive, and (iii) your Enterprise Subscriber is jointly responsible for your use of the Site, Services and Software.
If you are entering into this Agreement on behalf of an Enterprise Subscriber, you represent that you have the authority to bind the Enterprise Subscriber to this Agreement, in which case references to “you” in this Agreement shall mean the Enterprise Subscriber. If you do not have such authority, you must not accept this Agreement and may not use the Site, Software or Services.
Agreement contains arbitration provision. THIS AGREEMENT CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST CLEAN DRIVE AND ITS LICENSORS TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST CLEAN DRIVE AND ITS LICENSORS ON YOUR OWN BEHALF, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON YOUR OWN BEHALF, AND (3) YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL AND YOUR RIGHT TO HAVE YOUR CLAIMS DECIDED BY A JUDGE OR JURY.
a. License Grant
If you are an Individual Subscriber: In consideration for your acceptance of this Agreement (and, if you are using a fee based Service, your payment of all applicable Fees (as defined below)), Clean Drive grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and use the Site, the Services and the Software solely for your own personal purposes.
If you are an Enterprise Subscriber: In consideration for your agreement to this Agreement (and, if you are using a fee based Service, your payment of all applicable Fees (as defined below)), Clean Drive grants you a limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make use of the Site, the Services and the Software solely for your internal business purposes. In addition, you may permit such number of Authorized Users as has been agreed between you and Clean Drive to access and make use of the Site, Services and Software.
If you are an Authorized User: In consideration for your agreement to this Agreement (and, if you are using a fee based Service, your Enterprise Subscriber’s payment of all applicable Fees (as defined below)), Clean Drive grants you a personal, limited, non-exclusive, non-sublicensable, non-transferable, revocable license to access and make use of the Site, the Services and the Software solely for the internal business purposes of your Enterprise Subscriber.
b. License Restrictions
You may access and use the Site, Services and Software only in accordance with any instruction manuals, user guides and other documentation as made available by Clean Drive from time to time (“Documentation”). If you are an Enterprise Subscriber, this restriction applies to each of your Authorized Users individually.
In addition, you may not:
(1) copy, modify or create derivative works based on the Site, Services, Software or Documentation, or any portion(s) of any of the foregoing (individually and collectively, “Clean Drive IP”);
(2) distribute, transmit, publish or otherwise disseminate any Clean Drive IP;
(3) download or store any Clean Drive IP except to the extent explicitly permitted by the Site, Software or Services;
(4) transfer to any third party any of your rights under this Agreement (except to the extent that an Enterprise Subscriber may permit such number of Authorized Users as has been agreed between the Enterprise Subscriber and Clean Drive to access and make use of the Site, Services and Software);
(5) access or use the Services, Software or Clean Drive IP for the benefit of any third party (except to the extent that Authorized Users may access and make use of the Site, the Services and the Software solely for the internal business purposes of their Enterprise Subscriber);
(6) access content or data not intended for you, log onto a server or account that you are not authorized to access, or otherwise violate or attempt to violate any security or authentication feature or measures of the Site, Software or Services;
(7) attempt to access or derive the source code or architecture of any Software;
(8) attempt to probe, scan or test the vulnerability of the Site, Services and/or Software, or any associated system or network, or to breach any security or authentication feature or measures of the Site, Software or Services (except with Clean Drive’s express permission in connection with your participation in one of Clean Drive’s security testing programs), and if you are blocked by Clean Drive from accessing the Site, Software or Services (including by blocking your IP address), you will not implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address);
(9) interfere or attempt to interfere with service to any user, host or network, including, without limitation, by means of submitting malicious software or computer code (“Malicious Code”) to the Site, Software or Services, load testing, overloading, “flooding,” “spamming,” “mail bombing,” “crashing,”;
(10) email or otherwise transmit any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains any Malicious Code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person or entity; (v) constitutes unsolicited or unauthorized materials; or (vi) is otherwise objectionable;
(11) automate access to the Site or the Services, including, without limitation, through the use of APIs, bots, scrapers or other similar devices;
(12) export or re-export any Clean Drive IP;
(13) use or access any Services, Software or Clean Drive IP in order to build a competitive product, service or solution;
(14) violate any applicable law or regulations in connection with your use of the Site, Services or Software;
(15) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity, including, without limitation, an Enterprise Subscriber;
(16) use the Site, Software, or Services in any way that would impose obligations upon Clean Drive to comply with HIPAA (defined in Section 9 below); or
(17) permit any third party to do any of the foregoing.
c. Ancillary Software
Clean Drive may offer certain Software, including certain interfaces, for download from the Site (“Ancillary Software”). Subject to the other terms and conditions of this Agreement, you may install and use Ancillary Software on computers owned, leased or otherwise controlled by you, solely in conjunction with your authorized use of the Services. Upon expiration or termination of this Agreement for any reason, you shall cease any further use of the Ancillary Software and shall promptly destroy all copies thereof in your possession.
d. Specific Terms
Certain Services or Software (including Ancillary Software) may be subject to additional limitations, restrictions, terms and/or conditions specific to such Services or Software (“Specific Terms”). In such cases, the applicable Specific Terms will be made available to you and your access to and use of the relevant Services or Software will be contingent upon your acceptance of and compliance with such Specific Terms.
e. Third Party Components
Certain Services or Software (including Ancillary Software) may contain or otherwise make use of software, code or related materials from third parties, including “open source” or “freeware” software (“Third Party Components”). Certain Third Party Components may be subject to separate license terms that accompany such Third Party Components that, to the extent they conflict with the terms of this Agreement, supersede the terms of this Agreement. If required by any license for a particular Third Party Component, Clean Drive makes the source code of such Third Party Component, and any of Clean Drive’s modifications to such Third Party Component, as required, available upon written request to Clean Drive.
2. Registration and security
By completing the registration process for any given Services, you are agreeing to subscribe to the selected Services, subject to the terms and conditions of this Agreement. You agree to provide Clean Drive with accurate and complete registration information and to promptly notify Clean Drive in the event of any changes to any such information.
You shall be solely responsible for the security and proper use of all user IDs, passwords or other security devices used in connection with the Site and/or the Services, and shall take all reasonable steps to ensure that they are kept confidential and secure, are used properly and are not disclosed to or used by any other person or entity. You shall immediately inform Clean Drive if there is any reason to believe that a user ID, password or any other security device issued by Clean Drive has or is likely to become known to someone not authorized to use it, or is being or is likely to be used in an unauthorized way. Clean Drive reserves the right (at its sole discretion) to request that you change your password(s) in connection with the Services, and you shall promptly comply with any such request.
You are solely responsible for all activity in connection with access to the Site, Software and/or Services through your account or using your password, and for the security of your computer systems, and in no event shall Clean Drive be liable for any loss or damages relating to such activity.
3. Enterprise Subscriber responsibility for Authorized Users
Enterprise Subscribers shall ensure that the total number of Authorized Users does not exceed the maximum number of seats authorized by and, in regard to fee based Services, purchased from Clean Drive (each of which seats represents a unique (named) Authorized User). Enterprise Subscribers may assign different Authorized Users to the seats authorized by and, in regard to fee based Services, purchased from Clean Drive, so long as the total number of Authorized Users at any time does not exceed the maximum number of seats authorized by and, in regard to fee based Services, purchased from Clean Drive, but Authorized Users may not transfer (including by way of sublicense, lease, assignment or other transfer, including by operation of law) their seat, user name or right to use the Site, Services or Software to any third party. You, the Enterprise Subscriber, and your Authorized Users are jointly responsible for your Authorized Users’ use of the Site, Services and Software. You are also responsible for ensuring that all of your Authorized Users comply with all of the terms and conditions of this Agreement. Any violation of the terms and/or conditions of this Agreement by any of your Authorized Users shall be deemed to be a violation thereof by you.
4. Fees, payment, free plan and trials
Clean Drive may offer fee based Services as well as free plan and trial Services. Clean Drive reserves the right to modify or change its offerings or the fees for such offerings.
If you have registered for a fee based Service, your access to or use of the fee based Services and/or Software shall be contingent upon your payment of all applicable fees as described on the Site or Software at the time (“Fees”); unless you are an Authorized User, in which case your access to or use of the Services and/or Software shall be contingent upon your Enterprise Subscriber’s payment of the Fees.
Upon registering for fee based Services, unless you are an Authorized User, you will be required to designate a valid payment method. You hereby authorize Clean Drive to charge to your designated account all Fees relating to the fee based Services you select, and you agree to pay all such Fees in accordance with the applicable payment method terms and conditions.
Clean Drive reserves the right to revise its Fees, including by increasing or adding new Fees, at any time on ten (10) days’ notice. If you are registered for a fee based Service subject to increased or additional fees, such notice may be sent to you by email to your most recently provided email address or posted on the Site or by any other manner chosen by Clean Drive in its commercially reasonable discretion. You will be deemed to have received any such notice that is posted on the Site on the day it was posted. Your use of the Services after the ten (10) day notice period constitutes your acceptance of the new or revised Fees. If you do not agree to the revised Fees, you may cancel your subscription by following the Cancellation Instructions.
If you have registered to use free plan Services, you may use such Services and Software in accordance with this Agreement.
If you have registered to use certain Services and/or Software on a trial basis, then you may use such Services and Software only for noncommercial evaluation purposes during the applicable trial period.
5. Continuous membership
To ensure uninterrupted service, all subscriptions to the Site, Software and Services are renewed automatically. You hereby authorize Clean Drive to charge subscription Fees for the renewal period to the payment method on file. All subscriptions are renewed at the subscription level(s) and Fees in effect at the time the then-current subscription term ends. You may cancel the subscription at any time by following the Cancellation Instructions.
6. Termination and refund policy
The provisions of this Agreement applicable to your subscription shall continue until you cancel your subscription or until terminated by Clean Drive. You may cancel your subscription at any time, although only an authorized representative of an Enterprise Subscriber may cancel the Enterprise Subscriber’s account. If you cancel after your subscription renewal date, you will not receive a refund for any amounts that have been charged. Your cancellation will be effective at the end of your then-current subscription period, subject to applicable law, and you may use the Services until your cancellation is effective (unless your access is suspended or terminated as set forth below). The provisions of this Agreement applicable to your use of the Site, Software or Services other than for a subscription shall remain in force for as long as you are using or accessing the Site or Software or Services.
Clean Drive may deny you access to all or any part of the Services or terminate your account or any Authorized User account with or without prior notice for Cause. “Cause” means your engagement in any conduct or activities that Clean Drive determines, in its sole discretion, violates this Agreement or the rights of Clean Drive or any third party, is otherwise inappropriate, or exceeds limitations set forth under the Section titled “License” or you become insolvent, have a receiver appointed for you, or file for bankruptcy or have a bankruptcy proceeding instituted against you, or if you are an entity, your entity dissolves.
Clean Drive may terminate any subscription without Cause upon 60 days’ notice. If Clean Drive terminates without Cause, Clean Drive will refund you the pro-rata subscription fee you have prepaid for the amount remaining in the subscription term after termination.
If you cancel a fee based Service, Clean Drive may move you to a free plan if free plans are offered at the time of cancellation. If you want to cancel the free plan, you will need to follow the Cancellation Instructions again to cancel the free plan.
If you are an Authorized User of an Enterprise Subscriber, and this Agreement or the applicable agreement for Services and Software is terminated in relation to such Enterprise Subscriber, or if you otherwise lose access to the Services and Software via your Enterprise Subscriber (e.g., if you graduate from that Enterprise Subscriber or are no longer employed by that Enterprise Subscriber), Clean Drive may elect in its discretion to (a) terminate your account or (b) downgrade your account to an Individual Subscriber account, at which point you agree that your use of the Services and Software will be as an Individual Subscriber in accordance with the terms of this Agreement (which Agreement at that point will be solely between you and Clean Drive).
If you are an Authorized User of an Enterprise Subscriber, your Enterprise Subscriber may elect in its discretion and at any time to revoke your Authorized User status and (a) terminate your account or (b) downgrade your account to an Individual Subscriber account, at which point you agree that your use of the Services and Software will be as an Individual Subscriber in accordance with the terms of this Agreement (which Agreement at that point will be solely between you and Clean Drive).
Except as may be expressly set forth herein, all Fees paid or accrued in connection with any Services are non-refundable, and Clean Drive will not prorate any Fees paid for a subscription that is terminated before the end of its term.
7. Access to Services
You are responsible for obtaining and maintaining any equipment and ancillary services needed to connect to or access the Site or otherwise use the Software or Services, including, without limitation, modems, hardware, software, internet service and telecommunications capacity. You shall be solely responsible for ensuring that such equipment and ancillary services are compatible with the Services and Software.
8. Mobile Services
The Site, Software and Services may include products and services that are available via a mobile device, including (i) the ability to upload content to the Services via a mobile device, (ii) the ability to browse the Services and the Site from a mobile device, and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that Clean Drive may communicate with you regarding Clean Drive and other entities by electronic means to your mobile device and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your account information to ensure that your messages are not sent to the person that acquires your mobile telephone number.
9. User Content and User Contributions
a. User Content
You are solely responsible for all text, documents or other content or information that (as between you and Clean Drive) originates with you in using the Site, Software, or Services, such as information uploaded, entered, made available for programmatic retrieval by the Site, Software, or Services, or otherwise transmitted by you in connection with your use of the Services and/or Software (“User Content”). User Content includes, among other things, any mistakes contained in the content or information transmitted by you. Clean Drive has no obligation to monitor any User Content and shall have no liability to you or any other person or entity with respect thereto, including, without limitation, liability with respect to any information (including your confidential information) contained in or apparent from any User Content.
You warrant, represent and covenant that you own or have a valid and enforceable license to use all User Content, and that no User Content infringes, misappropriates or violates the rights (including, without limitation, any copyrights or other intellectual property rights) of any person or entity or any applicable law, rule or regulation of any government authority of competent jurisdiction.
You warrant, represent and covenant that you are not a “covered entity” or “business associate” as those terms are defined in the Health Insurance Portability and Accountability Act of 1996, and any accompanying regulations, including those codified at 45 C.F.R. §§ 160 and 164 (“HIPAA”), that you are not otherwise required by applicable law to comply with HIPAA and that your use of the Site, Software, or Services will not create obligations for Clean Drive to comply with HIPAA. Clean Drive is not compliant with HIPAA. You will be required to indemnify Clean Drive for any violation of this paragraph in accordance with Section 15 of this Agreement.
Clean Drive is not responsible for the loss, corruption or other changes to User Content. Without limiting the foregoing, any feature(s) of the Services and/or Software that may permit you to temporarily save or otherwise store User Content is offered for your convenience only and Clean Drive does not guarantee that the User Content will be retrievable. You are solely responsible for saving, storing and otherwise maintaining User Content including by maintaining backup copies of your User Content on appropriate independent systems that do not rely on the Services and/or Software.
You retain all right, title, and interest in and to your User Content. By uploading or entering any User Content, you give Clean Drive (and those it works with) a nonexclusive, worldwide, royalty-free and fully-paid, transferable and sublicensable, perpetual, and irrevocable license to copy, store and use your User Content (and, if you are an Authorized User, your Enterprise Subscriber’s User Content) in connection with the provision of the Software and the Services and to improve the algorithms underlying the Software and the Services.
b. User Contributions
The Site, Software, and/or Services may contain message boards, chat rooms, personal profiles, comment sections, blogs, forums, and other interactive features that allow users to post, submit, publish, display or transmit to other users or other persons content or materials (collectively, “User Contributions”) on or through the Site, Software, and/or Services.
All User Contributions must comply with the following content standards. User Contributions must not: contain any material that is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable; infringe any patent, trademark, trade secret, copyright, or other intellectual property rights or violate any other rights of any person; or involve any commercial activities or sales, such as contests, sweepstakes, and other sales promotions, barter or advertising.
Any User Contribution you post to the Site, Software or Services will be considered non-confidential and non-proprietary. By providing any User Contribution on the Site, Software, or Services, you grant Clean Drive and Clean Drive’s affiliates and service providers, and each of their and Clean Drive’s respective licensees, successors, and assigns the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.
You represent and warrant that:
- You own or control all rights in and to User Contributions and have the right to grant the license granted above.
- All of your User Contributions do and will comply with this Agreement.
You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not the Clean Drive, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.
Clean Drive is not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site, Software or Services. Clean Drive has the right to remove any User Contribution for any reason in Clean Drive’s sole discretion. Clean Drive may disclose your identity or other information about you to a third party who claims that material posted by our violates their rights, including their intellectual property rights or their right to privacy.
If you believe that any User Contributions violate your copyright, please send Clean Drive a notice of copyright infringement in accordance with Section 20 of this Agreement.
10. Changes to Services or Terms
Clean Drive reserves the right at any time to (i) change any information, specifications, features or functions of the Site, Services or Software, including any fee based, free plan, Trial, or other offering, (ii) suspend or discontinue, temporarily or permanently, any or all of the Services or any fee based, free, plan, Trial, or other offering, including the availability of any feature, database or content, or (iii) impose limits on certain features and Services or restrict access to parts or all of the Services, including any fee based, free plan, Trial, or other offering, in each case with or without prior notice and without any liability to you or any third party.
Clean Drive may from time to time update or revise this Agreement. If Clean Drive updates or revises this Agreement, Clean Drive will notify you either by email to your most recently provided email address, by posting the updated or revised Terms of Service and License Agreement on the Site or by any other manner chosen by Clean Drive in its commercially reasonable discretion. Your use of the Site, Services or Software following any such update or revision constitutes your agreement to be bound by and comply with this Agreement as updated or revised. It is your responsibility to review this Agreement periodically.
If you cancel your subscription within ten (10) days following such notice by Clean Drive in accordance with the two preceding paragraphs, then Clean Drive will refund you a pro-rated portion of any pre-paid Fees for the affected Services applicable to the cancelled portion of the pre-paid subscription term, if any.
11. Links to third party sites
Any links on the Site to third party websites are provided for your convenience only. If you choose to access third party websites or obtain products or services from third parties, you do so entirely at your own risk and such access is between you and such third party. Clean Drive does not warrant or make any representation regarding the legality, accuracy or authenticity of content presented by such websites or any products or services offered by third parties and shall have no liability for any loss or damages arising from the access or use of such websites, products or services.
12. Consent to receive email
Your registration to use the Site, Software and/or Services constitutes your consent to receive email communications from Clean Drive, including messages regarding customer service issues and other matters. You may opt not to receive email correspondence, other than technical notifications and email regarding issues related to your account and your use of the Site, Software and Services, at any time by following the link included in the email messages.
13. Linking to the Site
You may link to our homepage, provided you do so in a way that is fair and legal and does not damage our reputation or take advantage of it, but you must not establish a link in such a way to suggest any form of association, approval or endorsement on our part without our express written consent. You agree to cooperate with us in causing any unauthorized framing or linking to stop immediately. We reserve the right to withdraw linking permission without notice.
All intellectual property rights in and to the User Content are and shall remain your property, and Clean Drive shall acquire no right of ownership with respect to your User Content.
All intellectual property rights in and to the Software, Site and Services and other Clean Drive IP are and shall remain the sole property of Clean Drive and its affiliates and licensors, as applicable, and you shall acquire no right of ownership with respect to the Site, Software or Services or other Clean Drive IP, and no right to use the same, except as specified in this Agreement.
Without limiting the foregoing, you acknowledge that the Software and the Service and the inventions, know-how and methodology embodied therein are proprietary to, and contain valuable trade secrets of, Clean Drive and its affiliates and licensors, as applicable, and that the Software constitutes confidential information of Clean Drive and you agree to safeguard Clean Drives confidential information by complying with the terms of this Agreement.
You may from time to time provide Clean Drive with suggestions, comments, recommendations, improvements, solutions, bug fixes, features, concepts, techniques, ideas, know-how and/or any feedback regarding the Services, the Software, the Site and/or any of Clean Drive’s related technologies or Clean Drive IP (“Feedback”). Any and all Feedback is and shall be given entirely voluntarily. As between you, Clean Drive and, if applicable, your Enterprise Subscriber, all Feedback shall be exclusively owned by Clean Drive, and you hereby make all assignments necessary to accomplish the foregoing ownership, and as a result Clean Drive shall be freely entitled to reproduce, prepare derivative works, disclose to third parties, display and perform (publicly or otherwise), sell, lease, license, distribute and otherwise use and exploit any and all such Feedback as it deems appropriate, at its sole discretion, without obligation or liability of any kind to you, your Enterprise Subscriber (if applicable) or any other person or entity.
You shall indemnify, release and hold harmless Clean Drive and its parents, subsidiaries, affiliates, licensors and suppliers, and each of their respective officers, directors, employees and agents, from and against any loss, liability (including settlements, judgments, fines and penalties) and costs (including reasonable attorney fees, court costs and other litigation expenses) relating to any claim or demand made by any third party due to or arising out of your access to the Site, use of the Services or Software, violation of this Agreement, or infringement of any intellectual property or other right of any person or entity.
If you are a California resident, you waive California Civil Code Section 1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.” If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
16. Warranty disclaimers
You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or the Site will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data.
TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SITE, SOFTWARE OR SERVICES OR ITEMS OBTAINED THROUGH THE SITE OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON IT, OR ON ANY WEBSITE LINKED TO IT.
YOUR USE OF THE SITE, ITS CONTENT, AND ANY SERVICES, SOFTWARE OR ITEMS OBTAINED THROUGH THE SITE IS AT YOUR OWN RISK. THE SITE, ITS CONTENT, THE SERVICES, SOFTWARE, AND OTHER ITEMS OBTAINED THROUGH THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SITE, SERVICES OR SOFTWARE. WITHOUT LIMITING THE FOREGOING, NEITHER CLEAN DRIVE NOR ANYONE ASSOCIATED WITH CLEAN DRIVE REPRESENTS OR WARRANTS THAT THE SITE, ITS CONTENT, OR ANY SERVICES, SOFTWARE, OR ITEMS OBTAINED THROUGH THE SITE WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SITE, THE SERVICES, SOFTWARE, OR ITEMS OBTAINED THROUGH THE SITE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, CLEAN DRIVE HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR PARTICULAR PURPOSE.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
17. Limitation of liability
IN NO EVENT SHALL CLEAN DRIVE BE LIABLE WITH RESPECT TO THE SITE, SERVICES AND/ OR SOFTWARE FOR (I) ANY AMOUNT IN THE AGGREGATE IN EXCESS OF THE FEES YOU HAVE ACTUALLY PAID TO CLEAN DRIVE DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT(S) GIVING RISE TO SUCH LIABILITY; (II) ANY LOST PROFITS, LOST OR DAMAGED USER CONTENT OR OTHER DATA, OR FAILURE TO MEET ANY DUTY, INCLUDING WITHOUT LIMITATION GOOD FAITH AND REASONABLE CARE; OR (III) ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OF ANY KIND WHATSOEVER.
YOU AGREE THAT THIS LIMITATION OF LIABILITY REPRESENTS A REASONABLE ALLOCATION OF RISK AND IS A FUNDAMENTAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN CLEAN DRIVE AND YOU. YOU UNDERSTAND THAT THE SITE, SERVICES AND SOFTWARE WOULD NOT BE PROVIDED WITHOUT SUCH LIMITATIONS.
CERTAIN STATES DO NOT ALLOW THE LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THIS LIMITATION OF LIABILITY MAY NOT APPLY TO YOU AND YOU MAY HAVE ADDITIONAL RIGHTS.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “WARRANTY DISCLAIMERS” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
18. Dispute resolution by binding arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Section titled “Dispute resolution by binding arbitration” is referred to in this Agreement as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and Clean Drive, whether arising out of or relating to this Agreement (including any alleged breach thereof), the Site, Software or Services, any advertising or any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Agreement, you and Clean Drive are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND CLEAN DRIVE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND CLEAN DRIVE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
c. Pre-Arbitration Dispute Resolution
Clean Drive is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Clean Drive should be sent to 1037 NE 65th St #80192, Seattle, WA 98115, Attn: Operations Department (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Clean Drive and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Clean Drive may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Clean Drive or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Clean Drive is entitled.
d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, https://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, https://www.adr.org/consumer. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under this Agreement and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Clean Drive and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Clean Drive agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Clean Drive will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Clean Drive will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Clean Drive will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Notwithstanding the rest of this Section, if the arbitrator finds that either the substance of your claim or the relief sought in your claim is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b), then the payment of arbitration fees will be governed by the AAA Rules. In such case, you agree to reimburse us for all monies we previously paid that are otherwise your obligation to pay under the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Without limiting the severability provision in the Section titled “General Provisions” of this Agreement, if a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than clause (b) of this Arbitration Agreement is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of clause (b) of this Arbitration Agreement is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of this Agreement will continue to apply.
h. Future Changes to Arbitration Agreement
Notwithstanding any provision in this Agreement to the contrary, Clean Drive agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Clean Drive written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement.
19. General provisions
This Agreement shall be governed by, and construed in accordance with, the laws of the State of Delaware, without regard to any choice of law, conflicts of law or other principles that would result in the application of the laws or regulations of any other jurisdiction. Subject to the Section titled “Arbitration”, any legal action or proceeding relating to this Agreement shall be instituted in a state or federal court in New Castle County, Delaware. You and Clean Drive agree to submit to the jurisdiction of, and agree that venue is proper in, these courts in any such legal action or proceeding.
This Agreement and the rights and obligations herein are personal to you, and you may not assign or otherwise transfer this Agreement or any of your rights or obligations hereunder, by operation of law or otherwise, without the prior written consent of Clean Drive. Clean Drive may freely assign this Agreement, including, without limitation, in connection with a merger, acquisition, bankruptcy, reorganization, or sale of some or all of our assets or stock.
If any one or more of the provisions of this Agreement are for any reason held to be invalid, illegal or unenforceable by a court of competent jurisdiction, the remaining provisions of this Agreement shall be unimpaired and shall remain in full force and effect, and the invalid, illegal or unenforceable provision(s) shall be replaced by a valid, legal and enforceable provision or provisions that comes closest to the intent of the parties underlying the invalid, illegal or unenforceable provision(s).
The failure of either party to exercise in any respect any right provided for herein shall not be deemed a waiver of any further rights hereunder. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.
If Clean Drive is unable to perform any obligation under this Agreement because of any matter beyond its reasonable control, such as lightning, flood, exceptionally severe weather, fire, explosion, war, civil disorder, industrial disputes (whether or not involving employees of Clean Drive), acts of local or central government or other competent authorities, problems with telecommunications providers, hostile network attacks or other events beyond Clean Drive’s reasonable control (each, a “Force Majeure Event”), Clean Drive will have no liability to you for such failure to perform; provided, however, that Clean Drive shall resume performance promptly upon removal of the circumstances constituting the Force Majeure Event. If any Force Majeure Event continues for more than sixty (60) days, either Clean Drive or you may terminate the provisions of this Agreement related to fee based Services, free plan, or Trial, by delivery of written notice to the other party. You will remain responsible for all Fees incurred through the last day the Services were available.
If you and Clean Drive have executed a separate Subscription Agreement applicable to your access to and use of the Site, Services and/or Software, then the terms and conditions of such Subscription Agreement shall prevail to the extent of any conflict with the terms and conditions of this Agreement. In all other cases, this Agreement constitutes the entire agreement between Clean Drive and you with respect to its subject matter, and supersedes all prior communications and proposals, whether electronic, oral or written, between Clean Drive and you.
20. Your Comments and Concerns
This Site is operated by Clean Drive, LLC. 1037 NE 65th Street, #80192, Seattle, WA 98115.
All feedback, comments, requests for technical support, notices of copyright infringement claims, and other communication relating to the Site should be sent to firstname.lastname@example.org.