Terms of Service
Last Updated Date: May 31, 2018
THE TERMS INCLUDE AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE THE SECTION TITLED “ARBITRATION AGREEMENT” BELOW FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE.
Welcome to MileUp! MileUp is a safe driving mobile phone application (the “Application”) operated Agero Customer Services, Inc. (“Agero”). The terms “we,” “our,” and “us” in these Terms of Service refer to Agero.
MileUp provides enrolled members (“Members”) with insight into their driving style through the driving statistics displayed in the driver dashboard, and an overall performance rating as compared with other MileUp Members.
Subject to these Terms of Service, and applicable for Android Devices only, Members who assist us with the review of an Eligible Motor Vehicle Accident (defined below), may be eligible to receive an offer for an Amazon.com Gift Card (“GC”) having a retail value of $250.00.
Subject to these Terms of Service, where applicable, and subject to availability and eligibility, Members may be invited to update the Application to include the Accident Alert features, which features are currently in beta testing, more particularly described below.
The Application is designed for use in the fifty (50) states of the United States and the District of Columbia (the “Territory”).
There is no cost to participate in MileUp. However, in order to have full benefit of the Application, including, without limitation, for purposes of earning Points (defined below) or enabling the Accident Alert (Beta) features (i) your mobile phone (“Device”) must be in your vehicle, powered on and properly functioning, at all times while driving; (ii) Location Services and Motion and Fitness activity must be activated with notifications allowed; and (iii) your driving location must be within the Territory in an area with active wireless service coverage.
Please note that the Application operates in the background, which may have an impact on the length of your Device’s battery charge. YOU ARE NOT REQUIRED AND AGERO STRONGLY DISCOURAGES YOU TO ACCESS OR INTERACT WITH THE APPLICATION WHILE DRIVING.
These Terms are between you and us only and not any third party mobile device manufacturer or application distributor (such as Apple or Google) (“Vendor”). We, not Vendor, are solely responsible for the Application and its content. Although Vendor is not a party to these Terms, Vendor is a third party beneficiary of these Terms, and, therefore, has the right (and shall be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary.
Representations and Warranties
By using the Application, you agree to comply with the terms and conditions of these Terms, including providing information that can be relied upon by Agero, such as your name, email address, and mobile phone number.
By using the Application, you agree that:
- You are at least 18 years old and are a resident of the continental United States.
- You will not use the Application for long haul driving for commercial purposes.
- You will not create more than one MileUp account by downloading the Application on multiple Devices that you own or control.
- You will not use the Application to cause nuisance, annoyance or inconvenience.
- You will only use the Application for lawful purposes; you will not use the Application for sending or storing any unlawful material or for fraudulent purposes.
- The information you provided during enrollment and throughout your interactions with Agero is and will be true and accurate. You agree to update your enrollment information as necessary to maintain its truth and accuracy. Agero may verify the information you have provided and refuse your use of the Application without providing reason to you.
- You will not impair the proper operation of the network, platform or Application.
- You will use the Application solely for your own personal use and not for commercial purposes, and will not resell any of the services accessed through the use of the Application to a third party.
- You will use the Application only on one Vendor Device that is currently running on an authorized version of the operating software for such Device; and as permitted by, and in accordance with, the usage rules set forth in the terms and conditions made available in the App Distribution Site.
- You will not post, publish, transmit, reproduce, distribute, reverse engineer or in any way exploit any information, software or other material obtained through the Application for commercial purposes.
- You will not upload, post, publish, transmit reproduce or distribute in any way, information, software or other material obtained through the Application which is protected by copyright or other proprietary right or derivative works with respect thereto, without obtaining permission of the respective owner thereof, or which otherwise violates or infringes the rights of others, including, without limitation, patent, trademark, copyright, or other proprietary rights.
- You will not misuse the Application in any way, including by attempting to simulate motor vehicle collisions, or deliberately trigger false alarms related to motor vehicle collisions.
- You will not provide the contact information for any person to be designated as an emergency contact and contacted by us in the event of an Accident Alert (“Emergency Contact”), without first obtaining the express consent of such Emergency Contact to receive a call from Agero.
- You will not provide any false or misleading information in the Application, including providing false information for any Emergency Contacts.
Agero reserves the right to immediately terminate this agreement and your use of the Application should you not comply with the Terms.
MileUp allows Members to earn points (“Points”) by driving. Points have no cash or monetary value. Points are not your property. Points exist at the sole discretion of Agero as part of the MileUp program. Points cannot be redeemed for cash or currency or for rewards, and cannot be used to pay any credit card or other credit device, or used for entry into any sweepstakes or other contests or promotions, or for any other purpose. Points may not be assigned, transferred or pledged to any third party. Points may not be transferred by operation of law, such as by inheritance, in bankruptcy or in connection with a divorce or other legal assignment.
All Points earned prior to and not redeemed as of May 30, 2018 (the “Points Expiration Date”) have expired, and are no longer available for redemption for rewards, or for use for entries in sweepstakes or other contests or promotions, or for any other purpose.
Reporting an Eligible Motor Vehicle Accident
For Android Devices Only: Members who have the Application installed on an Android Device may be eligible to earn a $250 Amazon.com Gift Card by successfully submitting an Eligible Motor Vehicle Accident through the Application by providing either a photo of an official police report or insurance claim (subject to the verification and approval of Agero in accordance with the terms below). Agero reserves the right, at any time, to change the definition of “Eligible Motor Vehicle Accident”, as well as the right to change the value or type of gift card earned in connection with an Eligible Motor Vehicle Accident. As used herein, “Eligible Motor Vehicle Accident” is defined as: (1) a collision involving your motor vehicle, which occurred while you are the driver and you are actively driving the vehicle at the time the collision occurs (by way of example, a parked vehicle involved in a collision does not qualify as an “Eligible Motor Vehicle Accident”), (2) the Application was preinstalled on your Android Device and you were signed into your MileUp account, (3) your Android Device was turned on and in the vehicle at the time of the accident, (4) location services and motion activity were allowed and enabled on your Android Device, (5) the severity of the accident required a tow or involved air bag deployment, and (6) Agero must be able to verify the truth and accuracy of your police or insurance claim report. The GC is earned only if all required information is reported as noted in the Application, and Agero has verified the truth and accuracy of the information reported, which may include through verification of an insurance claim or police report or other means. The verification process may take up to 12 weeks to process, depending in part on the documentation we receive from you and the extent of the research that Agero is required to do in order to complete the verification process. Agero reserves the right to deny reports that Agero determines do not satisfy the Eligible Motor Vehicle Accident requirements as set forth above, in its sole and absolute discretion.
Gift Card Terms and Conditions
You agree and acknowledge that each GC redeemed is subject to additional terms and conditions issued by Amazon.com. Except as required by law, Amazon.com Gift Cards cannot be transferred for value or redeemed for cash. GCs may be used only for purchases of eligible goods at Amazon.com or certain of its affiliated websites. For complete terms and conditions, see www.amazon.com/gc-legal. GCs are issued by ACI Gift Cards LLC, a Washington corporation. All Amazon ® ,™ & © are IP of Amazon.com, Inc. or its affiliates. No expiration date or service fees. Recipients of a GC should address any issue regarding Amazon.com Gift Cards directly with Amazon.com. If you have questions about redeeming your Amazon.com Gift Card, please visit www.amazon.com/gc-redeem. In the event of a conflict between these terms and the GC terms and conditions, the GC terms and conditions will prevail solely with respect to the purchase, issuance, redemption, and other use or exploitation of the GC. You are solely responsible for reviewing all applicable GC terms and conditions. Amazon.com is not a sponsor of this Application or any MileUp promotion.
Accident Alert (Beta)
When the Accident Alert (Beta) feature is made available to you through the Application and you elect to enable the Accident Alert (Beta) feature in the Application, the Application will periodically access and collect information about your driving activity, that can be detected through your Device, including your location, the use and movement of your Device, the speed of your motor vehicle (including acceleration and braking behaviors) and may detect if you are involved in a motor vehicle collision (a “Accident Alert”). If an Accident Alert is detected in the Application and the location of the event is within the Territory, the Application is designed to (i) initiate automated call(s) to your Device; and (ii) send push notification(s) or in-app message(s) through the Application for your response to confirm the Accident Alert and identify whether you require emergency assistance. Multiple attempts may be made to reach you by automated call and/or in-app messaging to confirm the Accident Alert. In the event you affirmatively confirm the Accident Alert and request for emergency assistance by phone call or in-app messaging, (i) an Agero call center agent will initiate on your behalf a 911 emergency call for assistance to your Device location; and (ii) with your express permission, an Agero call center agent will attempt to contact one of your designated Emergency Contacts. In the event the Application detects an Accident Alert and you do not respond to our attempts to reach you through automated phone call(s) and in-app messaging, an Agero call center agent may, without your confirmation, initiate a 911 call for emergency assistance to your Device location.
While the Accident Alert feature is designed to help you in the event of an Accident Alert, it may not detect any or all crashes, or be able to communicate with you, an Agero call center agent, or a 911 call center in the event of a crash.
The Accident Alert feature is a Beta product. You should not rely on this Beta feature in any manner during the Beta testing phase.
THE ACCIDENT ALERT FEATURE IS NOT A REPLACEMENT FOR 911 in the event of a serious crash or one that involves injury. YOU ARE ENCOURAGED TO ALWAYS DIAL 911 IMMEDIATELY IN THE EVENT OF A SERIOUS CRASH, OR A CRASH INVOLVING INJURY.
Intellectual Property Rights
Agero (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Application. The Agero corporate name and logo, and the product names associated with the Application are trademarks of an affiliate of Agero or third parties, and no right or license is granted to use, copy, modify, or distribute them.
Licenses Granted by Agero
Subject to your compliance with these Terms, Agero hereby grants you a limited, non-exclusive, non-transferable, revocable license to download, install and use the Application, solely for your personal and non-commercial purposes to participate in the MileUp program. You have no right to sublicense these license rights. This agreement is not a sale and does not convey to you any rights of ownership in or related to the Application, or any intellectual property rights owned by Agero. All rights not expressly granted to you are reserved by Agero, its affiliates and its licensors.
Except for the limited permission in the preceding paragraph, no express or implied rights or licenses under any patents, trademarks, copyrights, or other proprietary or intellectual property rights are granted by these Terms.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Application in any way; (ii) modify or make derivative works based upon the Application; (iii) create Internet “links” to the Application; (iv) reverse engineer or access the Application in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Application, or (c) copy any ideas, features, functions or graphics of the Application; or (v) launch an automated program or script, including, but not limited to, web spiders, web crawlers, web robots, web ants, web indexers, bots, viruses or worms, or any program which may make multiple server requests per second, or unduly burdens or hinders the operation and/or performance of the Application.
You shall not: (i) send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Application or the data contained therein; or (v) attempt to gain unauthorized access to the Application or its related systems or networks.
You are advised that Agero will enforce its intellectual property rights to the fullest extent of the law, including the seeking of criminal prosecution, injunctive relief or other equitable remedies.
License Granted by User
Materials that you submit to us, including any feedback, data, questions, comments, suggestions, in any form or media, which may be submitted via the Application, telephone, text messaging, email, regular mail, or otherwise (collectively, “Member Content”), may be treated by Agero as non-confidential and non-proprietary to you. By submitting the Member Content, you grant Agero a worldwide, irrevocable, perpetual, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast and otherwise exploit such Member Content.
Email communications, push notifications, in-app messages, phone calls and text messages sent from us or through us are designed to make your experience using the Application more efficient. By installing or accepting the Accident Alert feature in the Application, you expressly consent to allow Agero or an Agero call center agent to contact you or your Device by push notification, in-app message, text message or phone call, including through use of an automatic telephone dialing system, in connection with the detection of an Accident Alert. In addition, by providing your mobile phone number in your registration of the Application, you (i) expressly consent to Agero’s use of this number for sending communications to you via SMS text messaging and in-app messaging (including communications sent by automated equipment), including, without limitation, in-app messages and text messages to communicate with you (1) to provide you with information related to your use of the Application, how to earn Points, (2) to solicit feedback, or (3) to follow-up regarding your report of a motor vehicle accident for purposes of determining eligibility for earning Points; (ii) acknowledge that standard messaging and data charges will apply, (iii) represent that the mobile number is your own mobile telephone number; and (iv) acknowledge that your consent to the foregoing is not a condition to purchase any goods and/or services from Agero. You further acknowledge and agree that we may also communicate with you by email, telephone, in-app messaging or push notification for certain communications related to your use of the Application.
You may cancel (opt-out) of the SMS text messaging notification service by replying to a MileUp text message with a text message containing the word STOP.
If you change your mobile phone service provider, the notification service may be deactivated for your phone number and you may need to re-enroll in the notification service. We reserve the right to cancel the notification service at any time. You may at any time no longer allow the Application to send you push notifications by going to Settings and turning off this feature at the Device level. Turning off these features may cause the Application to not function properly, including, without limitation, the Application’s ability to track and collect Points in your MileUp account or detect an Accident Alert.
Third Party Services; Third Party Sites and Links
Use of the Application requires use of hardware, software, services, and applications that were not developed by Agero and that are not under the control of Agero, such as your Device, mobile network provided by your wireless service provider, your Device’s operating system, browser, email and SMS programs, GPS availability, as well as other factors that do not lie in the sphere or control of the Application. Agero cannot assure you that such third party hardware, software, services and applications will function correctly with the Application and expressly disclaims any liability related to the involvement and interaction with such third party hardware, software, services and applications. You must comply with all third party terms of agreement when using the Application. Further, Agero does not guaranty constant and continuous availability of the Application. Any damages and /or warranty claims due to a service interruption or a disaster are explicitly excluded.
Agero may provide tools through the Application that enable you to export information, including Member Content, to third party services, including through features that allow you to link your MileUp account with an account on a third party service, such as Facebook, Twitter or Instagram or through our implementation of third party buttons (such as “like”, “share” or “invite” buttons). By using these tools, you agree that we may transfer such information to the applicable third-party service. Such third party services are not under our control, and we are not responsible for their use of your exported information.
The Application may also contain links to third-party websites, applications, or advertisements (“Third Party Links”). When you click on a Third Party Link, we will not warn you that you have left the Application. Such Third Party Links are not under our control, and we are not responsible for their content. Agero does not review, approve, monitor, endorse, warrant or make any representations with respect to such Third Party Links. Your use of all Third Party Links is at your own risk.
Fees, Costs and Other Expenses
Use of the Application requires the use of a data network operated by your wireless service provider to send data from your Device to Agero, and to send information back to you. You are responsible for your own connectivity to the Application, at your own cost and expense. Depending on your method of access and/or data plan, you may incur charges from your wireless service provider for use of their network and/or for specific services such as making phone calls, sending or receiving text messages and/or emails or other services.
You are solely responsible for any and all costs you incur as a result of your usage of the Application. You expressly acknowledge that you, not Agero, is the contracting authority for any occurring emergency services through the use of the Accident Alert features in the Application, and as such you shall be liable for all costs, expenses and damages that are arising from or in connection with 911 emergency assistance received in connection with an Accident Alert.
Absence of Maintenance and Support
The Application is provided to you for free, and as such we do not provide any maintenance or support for the Application. To the extent that any maintenance or support is required by applicable law, we, not Vendor, shall be obligated to furnish any such maintenance or support.
Disclaimer of Warranties
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE APPLICATION IS AT YOUR SOLE RISK AND THAT THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE APPLICATION AND ALL MATERIALS, INFORMATION, PRODUCTS, SOFTWARE, PROGRAMS AND SERVICES ON THE APPLICATION ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND AGERO HEREBY DISCLAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APPLICATION AND ALL MATERIALS, INFORMATION, PRODUCTS, SOFTWARE, PROGRAMS AND SERVICES ON THE APPLICATION, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY AGERO OR AN AGERO AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY. SHOULD THE APPLICATION OR ANY MATERIALS, INFORMATION, PRODUCTS, SOFTWARE, PROGRAMS AND SERVICES ON THE APPLICATION PROVE DEFECTIVE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR OR CORRECTION. WITHOUT LIMITATION, AGERO MAKES NO WARRANTY OR GUARANTEE THAT THE APPLICATION OR ANY MATERIALS, INFORMATION, PRODUCTS, SOFTWARE, PROGRAMS AND SERVICES ON THE APPLICATION OR RESULTS THAT ARE OBTAINED FROM USE OF THE APPLICATION (E.G., LOCATION INFORMATION, CRASH DETECTION OR REPORTING, EMERGENCY ASSISTANCE, ETC.) WILL BE ACCURATE, RELIABLE, UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE. TO THE EXTENT ANY WARRANTY EXISTS UNDER LAW THAT CANNOT BE DISCLAIMED, WE, AND NOT VENDOR, SHALL BE SOLELY RESPONSIBLE FOR SUCH WARRANTY.
IF ACCIDENT ALERT (BETA) IS MADE AVAILABLE TO YOU AND YOU ELECT TO INSTALL THE ACCIDENT ALERT FEATURES IN THE APPLICATION, PLEASE BE AWARE THAT THIS IS A BETA PRODUCT AND SHOULD NOT BE RELIED UPON. ALTHOUGH THE APPLICATION IS INTENDED TO DETECT COLLISIONS, NONE OR ANY COLLISIONS MAY BE DETECTED AND SOME OR ALL NON-COLLISIONS MAY BE FALSELY REPORTED. THE APPLICATION USES AN ALGORITHM TO DETERMINE WHETHER YOU HAVE BEEN INVOLVED IN A MOTOR VEHICLE ACCIDENT. AGERO DOES NOT WARRANT OR GUARANTY THAT THE ALGORITHM OR CRASH DETECTION SERVICES WILL WORK IN ANY CIRCUMSTANCE, DETECT AND/OR REPORT ANY OR ALL COLLISIONS OR THAT IT WILL AVOID ANY FALSE POSITIVES, OR THAT EMERGENCY ASSISTANCE WOULD BE PROVIDED IN THE EVENT OF A COLLISION. WITHOUT LIMITATION, HARDWARE LIMITATIONS MAY PREVENT CRASH DETECTION, LIMITATIONS OR ERRORS IN THE ALGORITHM AND PROCESSES USED BY THE APPLICATION MAY NOT FUNCTION PROPERLY (INCLUDING, WITHOUT LIMITATION, IN CIRCUMSTANCES IN WHICH THE AUTOMOBILE IS STOPPED, IN PARK OR AT A COMPLETE STANDSTILL, HAS NOT BEEN MOVING FOR A LONG ENOUGH DURATION, HAS NOT TRAVELED A LONG ENOUGH DISTANCE, AND/OR HAS NOT TRAVELED AT A GREAT ENOUGH SPEED TO ALLOW THE APPLICATION TO RECOGNIZE THAT YOU ARE DRIVING), AND COLLISIONS MAY NOT BE DETECTED OUTSIDE OF THE UNITED STATES, IF YOU ARE LOCATED OUTSIDE OF YOUR WIRELESS SERVICE COVERAGE AREA FOR THE DEVICE, IF YOUR DEVICE IS OTHERWISE NOT CONNECTED TO YOUR WIRELESS SERVICE PROVIDER’S NETWORK, OR FOR OTHER REASONS BEYOND OUR CONTROL. YOU UNDERSTAND THAT WE CANNOT ASSURE YOU, OR MAKE ANY GUARANTEES, ABOUT THE MANNER OR TIMELINESS OF THIRD PARTY EMERGENCY RESPONSE OR EVEN WHETHER THIRD PARTY EMERGENCY RESPONDERS WILL IN FACT RESPOND TO YOUR EMERGENCY AT ALL.
Limitation on Liability
YOU MUST COMPLY WITH FEDERAL AND STATE AND LOCAL LAWS REGARDING THE USE OF DEVICES, INCLUDING SMARTPHONES AND OTHER MOBILE DEVICES, WHILE DRIVING OR PERFORMING ANY OTHER ACTIVITY THAT REQUIRES CAREFUL ATTENTION. YOU EXPRESSLY ASSUME ALL RISKS RELATING TO YOUR USE OF THE APPLICATION. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL AGERO BE LIABLE FOR ANY DAMAGES RESULTING FROM YOUR USE OF THE APPLICATION, INCLUDING PROPERTY DAMAGE, PERSONAL INJURY OR DEATH OF YOU OR OTHERS; CLAIMS BASED ON THE VIOLATION OF ANY APPLICABLE LAW, RULE, OR REGULATION; OR YOUR NEGLIGENCE OR OTHER TORT LIABILITY.
IN NO EVENT SHALL AGERO BE HELD LIABLE IN INSTANCES WHERE THE APPLICATION HAS BEEN HINDERED FROM BEING ABLE TO RUN THE ALGORITHM. THE APPLICATION RELIES ON THE PROPER FUNCTIONING OF MOBILE DEVICES, WIRELESS COMMUNICATIONS NETWORKS AND THE GLOBAL POSITIONING SYSTEM, AND THE ACCIDENT ALERT FEATURE MAY NOT BE AVAILABLE OR FUNCTIONING IN A GIVEN LOCATION OR AT A GIVEN TIME. AGERO IS NOT RESPONSIBLE OR LIABLE FOR ANY FAILURES OR DELAYS DUE TO ANY OF THE FOREGOING. AGERO IS NOT LIABLE FOR THE ACTIONS OR INACTIONS OF YOU OR OF ANY EMERGENCY RESPONDERS, EMERGENCY CONTACTS OR ANY OTHER THIRD PARTY IN ANY PARTICULAR SITUATION. AGERO IS NOT LIABLE FOR THE ACTIONS OR INACTIONS OF ANY SERVICE PROVIDER OR PERSONS WE MAY CONTACT ON YOUR BEHALF, OR FOR OUR INABILITY TO CONTACT ANY SERVICE PROVIDER, EMERGENCY CONTACT OR OTHER THIRD PARTY IN ANY PARTICULAR SITUATION.
TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL AGERO BE LIABLE FOR ANY INCIDENTAL, SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, CORRUPTION OR LOSS OF DATA, FAILURE TO TRANSMIT OR RECEIVE ANY DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APPLICATION OR ANY MATERIALS, INFORMATION, PRODUCTS, SOFTWARE, PROGRAMS AND SERVICES ON THE APPLICATION, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF AGERO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS LIMITATION MAY NOT APPLY TO YOU. IN NO EVENT SHALL AGERO’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES (OTHER THAN AS MAY BE REQUIRED BY APPLICABLE LAW) EXCEED THE AMOUNT OF FIVE DOLLARS ($5.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
Notwithstanding the foregoing disclaimers and limitations of liability, to the extent we are required to provide indemnification by applicable law, we, not Vendor, shall be responsible for the investigation, defense, settlement and discharge of any claim that the Application or your use of it infringes any third party intellectual property right. Additionally, we not Vendor are responsible for addressing any claims by you relating to the Application or use of it, including, but not limited to: (i) any product liability claim; (ii) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and (iii) any claim arising under consumer protection or similar legislation. Nothing in these Terms shall be deemed an admission that you may have any such claims.
Some local laws may prohibit a person from using a hand held mobile device while driving. You are not required to access or interact with the Application while operating a motor vehicle in order to receive Points. Once enabled, the Application operates in the background. Agero strongly discourages any interaction with the Application while operating a motor vehicle.
By entering into this agreement and using the Application, you agree that you shall defend, indemnify and hold Agero, its licensors and each such party’s parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) arising out of or in connection with: (a) your violation or breach of these Terms or any applicable law or regulation, whether or not referenced herein; or (b) your access, use or misuse of the Application.
Changes to these Terms
Please note that Agero will periodically make changes to these Terms and we reserve the right to change these Terms at any time. Agero will alert you that changes have been made by indicating at the top of these Terms the date they were last updated. It is your responsibility to review these Terms frequently and remain informed about any changes to them, so we encourage you to visit these Terms often. These Terms take precedence over any previous terms that we have issued related to the Application and your continued use of the Application constitutes your acceptance of any amendments to and the most recent version of these Terms.
Term and Termination
These Terms become effective immediately when you download or use the Application and shall remain in effect until the Application is uninstalled, disabled or your use of the Application is terminated. The Application may be disabled by Agero at any time without notice.
You may terminate your access to the Application at any time. Your failure to comply with these Terms will result in automatic termination of any rights granted to you, without prior notice, and you must immediately destroy all copies of downloaded materials in your possession or control. Agero reserves the right to terminate these Terms and your right to use the Application at any time and for any purpose upon notice. Upon termination, your right to use the Application shall cease.
These Terms regarding limits on liability, arbitration and voluntary submissions shall survive the termination of these Terms, and shall remain in effect indefinitely.
Use by U.S. Government
The Application and all materials, software and content on the Application are provided with “RESTRICTED RIGHTS.” Use, duplication, or disclosure by the U.S. Government is subject to restrictions as set forth in applicable laws and regulations. Use of the Application and all materials, software and content on the Application by the U.S. Government constitutes acknowledgment of Agero’s proprietary rights in them.
U.S. Legal Compliance
You represent and warrant that (i) you are not located in a country that is subject to a U.S. Governing embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
AGERO’S SERVICE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND WIRELESS COMMUNICATIONS THAT AGERO CANNOT CONTROL AND THAT MAY PREVENT AGERO FROM PROVIDING SERVICE TO YOU AT ANY PARTICULAR TIME OR PLACE OR THAT MAY IMPAIR THE QUALITY OF THE APPLICATION, INCLUDING, WITHOUT LIMITATION, HILLS, TALL BUILDINGS, TUNNELS, WEATHER, DAMAGE TO IMPORTANT PARTS OF YOUR DEVICE IN AN ACCIDENT, OR WIRELESS, OR OTHER PHONE NETWORK CONGESTION OR JAMMING. AGERO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Governing Law; Class Action
Except as expressly provided otherwise, the Agreement will be governed by, and will be construed under, the laws of the Commonwealth of Massachusetts, without regard to choice of law principals. You acknowledge and agree that you and Agero are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. In connection with the Arbitration Agreement (below), an arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding.
Please read the following arbitration agreement (“Arbitration Agreement”) carefully. It requires you to arbitrate most disputes with Agero and limits the manner in which you can seek relief from us.
You and Agero agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Application (collectively, “Disputes”) will be settled by binding, non-appealable, arbitration, except that each party retains the right to (i) bring an individual action for small claims in a small claims court, and (ii) seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights, or to compel arbitration. This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
Arbitration Rules. The arbitration will be administered by the American Arbitration Association (the “Association”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “Arbitration Rules”) then in effect, except as modified by this Arbitration Agreement. The Federal Arbitration Act will govern the interpretation and enforcement of this Arbitration Agreement.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the Arbitration Rules. Unless you and Agero otherwise agree, the arbitration will be conducted in the county where you reside by a single arbitrator, who is knowledgeable in consumer disputes, is either a retired judge or an attorney licensed to practice law and who will be selected by the mutual agreement of the parties from the Association’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the Association will appoint the arbitrator in accordance with the Arbitration Rules. The arbitration may be conducted via any audio-visual means permitted by the arbitrator.
Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the Arbitration Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. Any provision of applicable law notwithstanding, the arbitrator will not have authority to award damages, remedies or awards that conflict with the terms of this agreement.
Fees. Your responsibility to pay any filing, administrative and arbitrator fees will be solely as set forth in the Arbitration Rules. Each party shall bear its own costs and expenses, and only the prevailing party shall be entitled to an award of reasonable attorney’s fees.
Changes. Notwithstanding the provisions of the modification-related provisions above, if Agero changes the terms of this Arbitration Agreement after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of Agero’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Agero in accordance with the provisions of this Arbitration Agreement as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
Severability. If any portion of this Arbitration Agreement is found to be unenforceable or unlawful for any reason, (1) the unenforceable or unlawful provision shall be severed from these Terms; (2) severance of the unenforceable or unlawful provision shall have no impact whatsoever on the remainder of this Arbitration Agreement or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Arbitration Agreement; and (3) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction and not in arbitration, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Agero, One Cabot Road, Medford, MA 02155, Attn: General Counsel, within 30 days after first becoming subject this Arbitration Agreement. Your notice must include your name and address, the mobile phone number you used to register with MileUp, and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of the Terms will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
Survival. This Arbitration Agreement shall survive any termination of these Terms.
Questions or Comments
Should you have any questions, comments, complaints or claims relating to the Application or these Terms, please contact us at MileUp, One Cabot Road, Medford, MA 02155, Attention: General Counsel; or by email: email@example.com. Please be sure to provide sufficient detail so that we may appropriately respond to your question or concern.
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