Pioneer rDrive End-User License Agreement
Pioneer® rDrive™ Terms of Use
TERMS AND CONDITIONS
Effective Date: 11/15/2016
These Terms of Use (the “Agreement”) are made between Pioneer Corporation (“Pioneer”) and the purchaser (“You” or “Your”) of online data services and related software (“Services”) as further described below. You acknowledge and agree that by signing or otherwise electronically accepting this agreement, You are bound to the terms of this Agreement.
Summary of Important Information and Limitations:
• The Services are available only in the United States; Pioneer is not liable for the failure of the Services or any features of Software outside of the United States.
• You and anyone who uses your account or vehicle will only use the services when it is safe to do so and in compliance with law and this Agreement.
• Pioneer will have no liability for failure to provide, or delays in providing the Services of Software features due to limitations set forth in SECTION 15 including, but not limited to limitations of technology, such as limited or failed cellular or wireless network coverage and service; unavailability or loss of GPS signal; improper installation of or damage to the Unit; failures of Your mobile device; failures of hardware and/or software compatibility; and/or unavailability of third party services, such as mapping services.
• You agree that, in order to perform its obligations under this Agreement, Pioneer may collect personal information about You and about Your assets. Refer to SECTION 11 contained herein for more information about privacy matters.
• For information about your service and hardware related warranties refer to SECTION 13 contained herein.
• You must contact Pioneer to transfer Unit and Service to new vehicle. A transfer fee required.
1. ACCEPTANCE: This Agreement constitutes the entire agreement and understanding between You and Pioneer and supersedes all previous proposals, oral or written, and all other communications between the parties relating to the purchase of Services from Pioneer for the Pioneer mobile location unit (the “Unit“) identified by You by serial number in connection Your request for activation of the Services. YOUR SIGNATURE (THROUGH ELECTRONIC ACCEPTANCE) OF THIS AGREEMENT CONSTITUTES ACCEPTANCE OF ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT. This Agreement applies to any Unit, Software and Services You purchase from Pioneer or Pioneer’s agents in connection with the Unit and Software and Services You are activating through this Agreement. Pioneer may modify this Agreement at any time by providing You notice or by asking You to read and accept a new version of the Agreement. Notice may be provided in connection with a Software update or by posting new version of the Agreement to the Pioneer website. If you do not agree with the modification, then you may not use the Services or Software; your continued access or use of the Services and/or Software after notice indicates your acceptance of the modified terms.
2. INSTALLATION: Improper Unit mounting location or procedure may result in complete or partial loss of functionality of the Unit and the inability to utilize Software or Services purchased under this Agreement. It is solely Your responsibility to ensure that the Unit is properly installed at all times. Pioneer will not be liable to You or to any person for any loss or damage caused by improper installation of the Unit, including any loss of Services or Software functionality due to improper installation. You agree to indemnify and hold Pioneer harmless from any and all claims or damages You or any person may have for any loss or damage caused by improper installation of the Unit. IF A SUBSCRIBER IDENTITY MODULE (“SIM”) CARD IS SUPPLIED WITH THE UNIT, THEN SUCH SIM CARD MAY ONLY BE USED IN SUCH UNIT AND IN NO OTHER WIRELESS DEVICE. IN NO EVENT SHALL THE SERVICE PLAN BE USED WITH ANY WIRELESS DEVICE OTHER THAN THE UNIT.
3. LOCATION AND DATA COMMUNICATION SERVICES:
A. Voice and Data. Specific airtime services, service rates, and service terms and conditions (each a “Service Plan“) may be included with the purchase of the Units. All Software and Services are subject to the Limitations of Technology set out in paragraph 15 of this Agreement, proper installation, use, and maintenance of the Unit, and the terms and conditions of the applicable Pioneer Service Plan. Pioneer is constantly innovating in order to provide the best possible experience for its customers. You acknowledge and agree that the Service Plans do not include any voice services. You acknowledge and agree that the form and nature of the Software, Services and Service Plans that Pioneer provides may change from time to time without prior notice to You. The Service Plans are for vehicle location and communication with the Unit. Full use of the Software and Services require Your own mobile device, with its own airtime, voice services and data plan.
B. Call Center Services. The Software and Services have no direct connection to any law enforcement agency or emergency services personnel. Use of the Software and Services is limited to use within the United States of America.
1. Stolen Vehicle Location Assist. In the event of certain conditions indicating possible theft of the vehicle in which a Unit is installed and Services are enabled, the Unit will attempt to send a notice to Pioneer. If needed, You are solely responsible for contacting the appropriate law enforcement agency or emergency services personnel to report your vehicle stolen. You are solely responsible for filing a stolen vehicle report with the relevant law enforcement agency in the event the vehicle with the Unit has been stolen. You will need to provide satisfactory identification to Pioneer, and the police must be treating the vehicle in which the Unit is installed as stolen, before any vehicle location data will be shared with any law enforcement agency or third party on your behalf.
2. Crash Notification. In the event of certain conditions indicating that the vehicle in which a Unit is installed and Services are enabled has been involved in a crash, the Unit will attempt to send a Crash Notification to Pioneer. Pioneer will attempt to contact You asking if you need assistance at the number you provide to Pioneer at the time your Services you provided when you registered; if there is a response indicating there is no need for assistance, no further action will be taken; if You do not respond within 90 seconds, or You ask for assistance, Pioneer will call You at the number you provide to Pioneer at the time your Services are activated; if there is no response to the call (i) Pioneer will use location data from the Unit and/or your device on which the rDrive software is installed to identify local law enforcement agency and report to such agency available information on location, severity and vehicle make/model and (ii) Pioneer will provide the Emergency Contact, if one has been provided; to law enforcement. If You respond to the call, Pioneer will ask you if need assistance and attempt to call local enforcement agencies in accordance with the protocol above for missed calls while on the phone with you. Pioneer will not provide any medical assistance or advice.
C. Vehicle Repossession. You agree that in event you vehicle is repossessed, Your access to the Unit and to the Software and Services may be subject to the terms of your financing agreement, and you are not entitled to a fund or transfer of Software or Services from Pioneer as a result thereof.
4. PRICING OF SERVICES:
A. Service Plan. The Unit is assigned to the Service Plan and other Services selected by You at time of purchase. The usage limitations on the Service Plan and pricing will be as described at the time of purchase. System usage beyond the limits under Your selected Service Plan will require You to purchase an additional Service Plan. Pioneer may invoice You for system usage beyond that included under Your selected Service Plan at Pioneer’s standard rates in accordance with the terms of Your specific Service Plan. No credit will be given for actual but unintended system usage. At the conclusion of the Service Plan term, any unused airtime will expire and You will not receive any credit, refund, or roll-over. You may not roam or use the Service Plan or any Services outside of the United States. Pioneer may, at any time, revise (a) the rates for Service Plans, (b) limits on use of such data communication service, and (c) the cost and features of the Service Plans, Services and Software. Though Pioneer may revise the rates of Service Plans at any time, the rate You will pay for any Service Plan You purchase will not change for the initial term of Your subscription.
B. Service Renewal. You may renew Services or purchase additional Services at the prevailing rates for those Services at the time of renewal or purchase. Prior to the conclusion of your current service term, Pioneer will provide you an opportunity to renew your Service term. Sales and/or use tax may apply.
C. Transfer of Service. You will notify Pioneer when you plan to sell or dispose of the vehicle containing the Unit. For transfer fee, you may transfer the Unit and Service to a new Vehicle. Otherwise, sale or transfer of the vehicle containing the Unit will result in termination of this Agreement, and Your rights to use the Services and Software, and You will not be entitled to a refund from Pioneer or to transfer the remaining term of this Agreement to another Unit.
5. PIONEER’S TEST OF SERVICES. You acknowledge that Pioneer may, for its internal test and control purposes, without charge to You, locate or communicate with vehicles equipped with a Unit.
6. COMPLIANCE WITH LAW: You are responsible for the use of the Software and Services, including any optional services selected. You agree to comply with all applicable laws, ordinances, rules and regulations, including without limitation traffic rules and regulations, of each applicable federal, state, local or foreign government and any agency or public authority thereof, and to indemnify and hold Pioneer harmless from liability or loss by reason of any asserted or established violation of said laws, ordinances, rules, or regulations by You or anyone You authorize to use a vehicle equipped with a Unit.
7. PAYMENT, TAXES, INDEMNITY: You will bear full responsibility for, and will pay Pioneer or its reseller all fees and charges (together with all applicable taxes thereon) in advance of receiving the Software or Services on a prepaid basis. All charges, including airtime charges, for Software and Services commence immediately upon activation and are billed on a one-time, prepaid basis. All prepaid amounts are non-refundable. Prices relating to the Services purchased pursuant to this Agreement are exclusive of taxes including, without limitation, any federal, state, local or foreign excise, VAT, sales, use, property, retailer’s occupation or similar taxes, or any duties, customs or similar charges. YOU AGREE THAT TIME IS OF THE ESSENCE AND YOU AGREE THAT PREPAID FEES ARE NON-REFUNDABLE REGARDLESS OF ANY PROBLEMS YOU MAY HAVE WITH THE UNITS OR SERVICES INCLUDING THE OPERATION, CAPABILITY, INSTALLATION, OR REPAIR THEREOF, AND REGARDLESS OF ANY CLAIM, SETOFF, COUNTERCLAIM, OR DEFENSE YOU MAY HAVE AGAINST PIONEER, THE MANUFACTURER, SALESPERSON, OR ANY OTHER PARTY.
8. DISCLOSURE OF RELATIONSHIP WITH SERVICE PROVIDERS:
A. Third-Party Providers. You understand that the Software and Services furnished by Pioneer depend upon services provided by third parties (“Service Providers“) pursuant to agreements between such Service Providers and Pioneer and are subject to certain terms, conditions and limitations set out in such agreements. You expressly understand and agree that You have no contractual relationship whatsoever with the Service Providers and that You are not a third party beneficiary of any agreement between Pioneer and such Service Providers. In addition, You expressly agree that the agreements and terms in this paragraph 8 will survive the termination of this Agreement. You hereby acknowledge that Pioneer is acting as agent to the Service Provider for the limited purpose of securing performance of the provisions of this paragraph 8.
B. Services Offered by Third-Parties
The rDrive application may offer you services provided by third-parties. Third-party applications, websites or services that are not owned or controlled by Pioneer. Such third-parties may ask You to provide credit card and other payment information from You to purchase their services. Pioneer will not collect, store or use credit card or other payment information. You understand that Pioneer has no control over, and assumes no responsibility for, the content, privacy policies, or practices of any third party web sites or services. You further acknowledge and agree that Pioneer shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such applications, web sites or services.
C. Data Transmissions. You understand that Pioneer and Service Providers cannot guaranty the security of data transmissions, and will not be liable for any lack of security relating to the use of the Software or Services or the transmission of data. You further acknowledge that the Service Providers disclaim all liability of any nature to You, whether direct, indirect, incidental or consequential, arising out of use of the Software or Services, and You agree that You will have no claims against the Service Providers of any kind with respect thereto. You agree to indemnify Pioneer the Service Providers, and hold Pioneer and the Service Providers harmless, for any claims made against Pioneer or the Service Providers arising out of use of the Software and Services, including without limitation, claims for libel, slander, infringement of copyright, or personal injury or death, to the fullest extent under the law.
9. PROPRIETARY RIGHTS: You acknowledge and agree that Pioneer or Pioneer’s Service Providers own all legal right, title, and interest in and to the Software and Services, including any intellectual property rights which exist in the Software and Services (whether those rights happen to be registered or not, and wherever in the world those rights may exist). You further acknowledge (a) that the Software and Services may contain information which is designated confidential by Pioneer and that You will not disclose such information without Pioneer’s prior written consent; (b) unless You have agreed otherwise in writing with Pioneer, You have no right to use any of Pioneer’s trade names, trademarks, service marks, logos, domain names, and other distinctive brand features; and (c) You will not remove, obscure, or alter any proprietary rights notices (including copyright and trademark notices) which may be affixed to or contained within the Software or Services.
10. SOFTWARE LICENSE:
A. Limited License. Pioneer grants You a limited personal, worldwide, non-assignable and non-exclusive license to use the software provided to You by Pioneer as part of the Services (referred to as the “Software” below). This license is for the sole purpose of enabling You to use and enjoy the benefit of the Services as provided by Pioneer, in the manner permitted by this Agreement and your Service Plan. You agree not to access (or attempt to access) any of the Services by any means other than through the interfaces that are provided by Pioneer. You agree that You will not engage in activity that interferes with or disrupts the Services (or the servers and networks which are connected to the Services). You may not (and You may not cause or permit anyone else to) copy, reproduce, modify, create any derivative work of, reverse engineer, disassemble, decompile, or otherwise attempt to gain access to or extract the source code of the Software or any part thereof. Or otherwise transfer any part of Your rights to use the Software.
B. Updates. The Software which You use may automatically download and install updates from time to time from Pioneer. These updates are designed to improve, enhance and further develop the Services and may take the form of bug fixes, enhanced functions, new software modules, and complete new versions. You agree to receive such updates (and permit Pioneer to deliver these to You) as part of Your use of the Services.
C. Data Use. The Software and Services may result in You receiving or sending phone calls or SMS (text) messages, and may access the data network, from the mobile device on which the Software is installed and You are solely responsible for any charges that result.
11. SECURITY; PERSONAL INFORMATION AND PRIVACY:
A. Passwords. You agree and understand that You are responsible for maintaining the confidentiality of passwords associated with any account You use to access the Software or Services. Accordingly, You agree that You will be solely responsible to Pioneer for all activities that occur under Your account. If You become aware of any unauthorized use of Your password or of Your account, You agree to notify Pioneer immediately at rdrive@pioneer-usa.com. You agree that, in order to perform its obligations under this Agreement, Pioneer may collect personal information about You and about Your assets.
B. Data Access. The Software and Services may access and, phone status and identity, determine your precise or approximate location using GPS and or network-based location, use full network access, You agree to allow this access. Failure to allow any or all of these permissions may result in your inability to use all of some of the features of the Services and Software and Pioneer shall no liability for such failures. Location services must be on for service functionality.
C. Data Collection. Examples of the information collected and analyzed by the Services and the Software applications include the Internet protocol (IP) address or any other identifying information for the Unit and your mobile device on which Software is installed; login; e-mail address; password; vehicle and mobile device GPS coordinates, vehicle data bus information captured by the Unit, such as vehicle data bus information captured via a standardized (OBD) connector, computer and connection information such as browser type, version, and time zone setting, browser plug-in types and versions, operating system, and platform; purchase history; the full Uniform Resource Locator (URL) clickstream to, through, and from our site, including date and time; cookie number; products you viewed or searched for; the phone number you used to call our phone number; device ID and call information; cellular data settings; and identity. We may also use data on certain parts of our Services and Software applications for fraud prevention and other purposes.
D. Data Uses. We may use software tools to measure and collect session information, including page response times, download errors, length of visits to certain pages, page interaction information (such as scrolling, clicks, and mouse-overs), and methods used to browse away from the page. You understand and agree that in conjunction with employee training, quality control and the provision of the Software and Services, Pioneer and/or its agents or Service Providers may monitor the activities and location of You and Your assets and the usage of the rDrive application.
E. Unauthorized Access. Further, You understand that privacy cannot be guaranteed on the Pioneer system or other systems such as those used in order to provide the Software and Services, and Pioneer will not be liable to You or any other third party for any claims, loss, damages or costs which may result from a lack of privacy. You assume full responsibility for the establishment of appropriate security measures to control access to Your respective equipment and information.
F. Your Consent. You consent to Pioneer using information about You and Your assets to (i) administer the Software and Services, (ii) electronically locate You or Your assets equipped with a Unit in conjunction with providing the Software and Services, (iii) provide information to law enforcement agencies, emergency services, third-party Service Providers, wireless carriers or other persons for the purpose of providing the Software and Services, or in response to a subpoena or other legal process, and (iv) use and share Your information and statistics that do not include information that identifies You personally. In addition, You consent to Pioneer using information about You and Your assets including contact information and the types of Software and Services that You purchase and use to (i) enforce the terms of this Agreement, (ii) prevent fraud and respond to regulatory and legal requirements, or in conjunction with a government inquiry, or in litigation or dispute resolution, iii) for other reasons not described herein for which Pioneer will obtain your express consent, and (iv) share information with Pioneer affiliates in conjunction with the Software and Services and for the purpose of providing You with any promotional offers and marketing materials. You may manage your marketing preferences by following the options made available to you in any marketing communications you may receive or by contacting rdrive@pioneer-usa.com. You also consent and agree to the use of Your personal information to (i) administer Your account, including for credit and collections purposes, and (ii) disclose such information to Your bank or to a third party collection agency. You may obtain a copy of the full text of the rDrive Privacy Policy Statement by contacting Pioneer at rdrive@pioneer-usa.com. YOU ACKNOWLEDGE THAT IT IS YOUR RESPONSIBILITY TO ADVISE ALL OCCUPANTS OR USERS OF YOUR ASSETS, INCLUDING BUT NOT LIMITED TO VEHICLES AND MOBILE DEVICES, EQUIPPED WITH A UNIT OR PIONEER SOFTWARE ABOUT HOW INFORMATION ABOUT THEM MAY BE COLLECTED, USED AND DISCLOSED BY PIONEER.
12. USE OF APPLICATIONS, SOFTWARE AND WEBSITES: Pioneer maintains the applications, software and websites “Software” that You may access in connection with Services You purchase or license from Pioneer or Pioneer’s authorized agents.
A. Unauthorized Access and Uses. You agree that You, and others You authorize to use the Services and Software will not use or attempt to use the Services or Software for any purpose: 1) that is any way unlawful or prohibited; 2) that transmits any unauthorized or unsolicited advertisements, solicitations, schemes, spam, flooding, or other unsolicited e-mail or unsolicited commercial communications, 3) that transmits any viruses’ 4) that interferes with Pioneer’s network services; 5) that attempts to gain unauthorized access to Pioneer’s network services; and/or 6) that impairs or limits Pioneer’s ability to operate the Software or Services or any other person’s ability to access or use the Software or Services. You agree that You will only access or use information related to You in accordance with the Software and Services You purchase, and not for any illegal purposes.
B. Assumption of Risk. You agree that you will access the Software and Services at your own risk. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR THE USE OF THE SOFTWARE, SERVER, AND THE INTERNET GENERALLY. You understand that Pioneer cannot and does not ensure continuous access to the Software or Services. Access may be interrupted due to technical limitations, such as heavy use and server malfunctions, or other circumstances such as maintenance. Your access to and use of the Software and Services may be interrupted if Your rights in and to the Unit are lost for any reason. You will notify Pioneer when you plan to sell or dispose of the vehicle containing the Unit. Pioneer reserves the right to modify the Software at any time without Your consent. YOU UNDERSTAND AND AGREE THAT PIONEER WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES RESULTING FROM, OR IN ANY WAY CONNECTED TO, YOUR ACCESS TO, USE OF, INABILITY TO USE, OR RELIANCE ON THE SOFTWARE OR SERVICES OR ANY MATERIALS, INFORMATION, PRODUCTS OR SERVICES OBTAINED OR ACCESSED THROUGH THE SOFTWARE. FOR THOSE JURISDICTIONS THAT EITHER DO NOT ALLOW OR PLACE RESTRICTIONS UPON THE EXCLUSION OR LIMITATION OF DAMAGES IN CERTAIN TYPES OF AGREEMENTS, THIS LIMITATION WILL BE CONSTRUED TO PERMIT THE MAXIMUM EXCLUSION OR LIMITATION PERMITTED BY APPLICABLE LAW.
13. LIMITED WARRANTY AND LIMITATION OF LIABILITY:
A. Limited Warranty (Unit). Pioneer warrants to You, as the original purchaser, that the Unit will be free from defects in workmanship, excluding installations performed by non-Pioneer third-parties, and materials under normal use (“Defects”) for a period of one (1) year from the date the Service is activated by the selling party (“Warranty Period”). During the Warranty Period the Unit will be repaired or replaced at Pioneer’s choice (“Limited Warranty”) without charge to you for either parts and/or labor. Exclusions: This Limited Warranty does not cover damage caused by normal wear and tear or as a result of the Unit being opened or repaired by someone not authorized by Pioneer, and does not cover damage caused by: misuse, moisture, liquids, proximity or exposure to heat and accident, abuse, non-compliance with the instructions supplied with the Unit, neglect or misapplication. The Limited Warranty does not cover physical damage to the surface of the Unit. Further this warranty will be deemed null and void if You did not call Pioneer prior to transferring Unit to different vehicle. Claims Process: In order to make a claim under the Limited Warranty and the Extended Limited Warranty of a Defect, you must contact Pioneer at rdrive@pioneer-usa.com during the Warranty Period to explain the Defect. Pioneer will troubleshoot the matter in the event Pioneer is unable to resolve the issue, Pioneer shall issue a Return Materials Authorization (“RMA”) number, if necessary. Upon receipt of the RMA, You shall arrange to have the Defective Unit returned to Pioneer. Pioneer shall be responsible for replacement and installation of the replacement Unit. Within thirty (30) days of Pioneer’s issuance of an RMA, Pioneer shall suspend or cancel the Service for the Defective Unit and will activate the Service for the replacement Unit. Miscellaneous: If any part of this Limited Warranty is held to be invalid or unenforceable, the remainder of the Limited Warranty shall nonetheless remain in full force and effect. If applicable law requires any implied warranties with respect to the Unit, all such warranties are limited in duration of 90 ninety days. Some states and/or jurisdictions do not allow limitations on how long an implied warranty lasts, so the above may not apply to you.
B. Software Warranty. For a period of ninety (90) days following the activation of Your rDrive account by the selling party, Pioneer warrants that the Software shall perform in all material respects according to the specifications. This warranty shall not apply to the Software if modified by anyone or if used improperly or on an operating environment not approved by Pioneer or in event performance issues or interruptions are a result of limitations set forth in Section 15 or otherwise contained herein. Should the Software no so perform, Your exclusive remedy, and Pioneer’s sole obligation under this warranty shall be correction of this defect. Any warranty offered by third parties, such as resellers, to You is offered solely by the third party and Pioneer shall have no responsibility for any such warranty.
C. Service Interruptions. Pioneer may in its sole discretion give a credit (the amount of which is determined by Pioneer in its sole discretion) for continuous Service interruption of more than 24 hours on a case-by-case basis, as long as such interruptions did not result from any of the limitations set forth in Section 15 or otherwise contained herein, and if You notify Pioneer within 7 days of the continuous interruption. Any such credit shall constitute Your sole and exclusive remedy for such failures, and You waive and release us, our affiliates, and our Service Partners from any further liability to you in connection with the Service interruption.
D. Limitation of Liability. EXCEPT AS PROVIDED EXPRESSLY HEREIN, PIONEER WILL NOT BE LIABLE TO YOUOR TO ANY OTHER PERSON FOR ANY LOSS OR DAMAGE CAUSED BY THE USE OF THE SERVICES OR THE SOFTWARE OR FOR ANY ERRORS IN OR INTERRUPTION OF THE SERVICES OR THE SOFTWARE, REGARDLESS OF CAUSE. IN NO EVENT WILL PIONEER’S LIABILITY TO YOU EXCEED THE AMOUNT PAID BY YOU FOR THE SERVICES OR THE SOFTWARE IN QUESTION. Pioneer will not be liable to You or any third party for consequential, incidental, general, special or exemplary damages, including, without limitation, loss of or damage to Your vehicles or assets or loss of profits, revenues or data, even if Pioneer has been advised of the possibility of such damages. You agree to indemnify and hold Pioneer harmless from and against any and all losses or damages caused by the use of the Services and the Software, for delay in response by law enforcement agencies or other emergency personnel and/or or for any interruption of the Services and the Software. No action will be brought for any breach of this Agreement more than one (1) year after accrual of such cause of action except by Pioneer for money due on an open account. Certain of the above limitations may not apply in some states. To the extent that any such limitations are precluded in a given state, such preclusion will not affect any other limitations not so prohibited or precluded. NOTWITHSTANDING ANYTHING ELSE SET FORTH IN THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES AND SOFTWARE IS AT YOUR SOLE RISK. EXCEPT AS EXPRESSLY SET FORTH HEREIN, THE SERVICES AND SOFTWARE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS; AND PIONEER EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, REPRESENTATIONS AND CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICES AND SOFTWARE. TO THE MAXIMUM EXTENT ALLOWED BY LAW, PIONEER DOES NOT WARRANT SUITABILITY, AVAILABILITY, ACCURACY, RELIABILITY, COMPLETENESS, OR TIMELINESS OF ANY DATA OR MATERIAL OF ANY KIND CONTAINED WITHIN THE SERVICES OR SOFTWARE FOR ANY PURPOSE. PIONEER MAKES NO REPRESENTATIONS THAT THE SERVICES WILL BE FREE FROM LOSS, INTERRUPTION, CORRUPTION, ATTACK, VIRUSES, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND PIONEER DISCLAIMS ANY LIABILITY RELATING THERETO. PIONEER DOES NOT PROVIDE ANY WARRANTY AS TO THE AVAILABILITY OF THE SERVICES OR THAT THE SERVICES WILL OPERATE WITHOUT INTERRUPTION OR BE ERROR FREE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, PIONEER IS NOT RESPONSIBLE FOR ANY FAILURES CAUSED BY SERVER ERRORS, MISDIRECTED OR REDIRECTED TRANSMISSIONS, FAILED INTERNET CONNECTIONS, INTERRUPTIONS OR FAILURES IN THE TRANSMISSION OF DATA, ANY COMPUTER VIRUS, ACTS OR OMISSIONS OF THIRD PARTIES THAT DAMAGE THE NETWORK OR IMPAIR WIRELESS SERVICE, DAMAGE OR INJURY CAUSED BY A FAILURE OR DELAY IN CONNECTING A CALL TO ANY ENTITY, INCLUDING 911, OR ANY OTHER EMERGENCY SERVICE, OR OTHER TECHNICAL DEFECT, WHETHER HUMAN OR TECHNICAL IN NATURE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF IMPLIED WARRANTIES OR HOW LONG AN IMPLIED WARRANTY MAY LAST, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
14. INTERRUPTION OF SERVICES; FORCE MAJEURE: Pioneer will have no liability for a failure to provide, or for delay in providing the Services or the Software due directly or indirectly to the Limitations of Technology described in paragraph 15 or other causes beyond the control of Pioneer or its subcontractors. If Pioneer is unable to wholly or partially perform the Services or the Software because of any cause beyond its control, Pioneer may terminate this Agreement without any liability to You, other than the refund of any amounts paid for unused Services.
15. LIMITATIONS OF TECHNOLOGY: You have read, understand, and acknowledge the following inherent technical limitations relating to the use of the Services: (a) Wireless Network Coverage and Service: complete coverage of the service area at all times is improbable. The existence of adverse conditions, such as short-term unpredictable meteorological effects and sky wave interference from distant stations, can interrupt the Services and Software at times. Certain circumstances such as weather, tunnels, underground structures, terrain, high-rise buildings, enclosed or underground parking or driving areas, faulty installation, motor ignition and other electrical noises and radio signals from external sources may interfere with the Services and the Software. Pioneer utilizes wireless networks with broad coverage areas to access moving vehicles and assets. There are still areas within the Service area that have not yet been included in the wireless coverage areas. Therefore, if a vehicle travels out of the available Service area, communication with that vehicle is unavailable until it returns to the available Service area. Also, from time to time, poor coverage areas (“holes“) occur even in fully developed areas, thereby limiting system performance. Other wireless network environmental issues may affect the communications link between the Units and the Pioneer Online System. Environmental issues may include; service interruptions, network congestion, roaming and similar access issues. (b) Global Positioning System (GPS) Drift and Urban Canyon: GPS is a satellite based positioning system providing expansive coverage throughout the world. The GPS antenna must have a direct line of sight to the satellites. If that path is impaired (e.g. underground parking lots or the shadow of tall buildings), it can affect the ability of the Software and Services to recognize an accurate location. (c) Tampering with the Unit: If the Unit is tampered with, disconnected, or the Unit completely removed, the functionality of the Units, Services, and Software will be jeopardized. (d) Damage to the Unit: If the Unit is damaged or disconnected the functionality of the Units, Services and Software will be jeopardized. (e) Rights and Access to the Unit: If You lose your rights to use the Unit or access to the Unit for any reason, including without limitation as a result of the Unit or the vehicle in which it installed being repossessed, sold, transferred or otherwise taken from your custody or control, Services and Software will be unavailable and this Agreement is subject to immediate termination (f) Privacy: The Units, Services, and Software have many complex elements and are not guaranteed against eavesdroppers, hackers, denial of service attacks, viruses or interceptors. You acknowledge and agree, and undertake to inform any users of the Units, Services, and Software, that Pioneer and any of its Service Providers will not be liable for any lack of privacy or security resulting from use of Pioneer products, Services, or Software. In addition, to the extent You have a privacy right in the location, characteristics, performance or operation of a vehicle equipped with a Unit, or in Your own location, You agree to voluntarily waive such right. (g) Availability of Cellular Technology/Mapping: Services are based on cellular technology which may become obsolete in the future as a result of changes in wireless technology or actions by telecom regulators with respect to cellular technology in mapping applications. In such event, Pioneer will have no obligation to issue a refund or furnish substitute services. In addition, Pioneer assumes no responsibility for the accuracy or inaccuracy of any maps upon which the Services are based. Maps and routing information provided by the Software and Services are based on map information available to Pioneer through third party Service Providers, which information may be out of date, inaccurate or incomplete. Information may not reflect road hazards, weather, construction, new roads or temporary restrictions or signs. You are solely responsible for exercising judgment, obeying traffic rules, laws and instructions and evaluating for Yourself whether it is safe and legal to follow and maps or routing information. (h) Capacity Limitation: You recognize that unusual concentrations of usage may occur in certain locations. Pioneer will incur no liability for its inability to provide adequate Services hereunder arising from or related to a lack of network capacity on the equipment which results from the aforesaid usage concentration, and nothing herein will require Pioneer to expend any capital to insure capacity for Your use of the Services and the Software; (i) Data Collection Limitation: You recognize that not all Units may be able to collect all data from every vehicle. Pioneer assumes no responsibility for Services and Software features that are unavailable for a particular vehicle or due to limitations introduced by improper installation of the Unit, (j) Mobile Device and Operating System Compatibility: You recognize that the rDrive software may not be compatible will all mobile devices or all operating systems, or versions of operating systems. It is Your sole responsibility to provide compatible hardware and software, and Pioneer assumes no responsibility for Services and Software features that are incompatible with Your mobile device; (k) Vehicle Make and Model Compatibility: You recognize that some or all features of the Software and Services may be unavailable based on the particular Unit installed in the vehicle and the particular make, model, and model year of the vehicle; and (l) Vehicle must be on in order for an incident (i.e. crash or accident) to be detected.
16. TERM AND TERMINATION: This Agreement will remain in full force and effect for the term of the Service Plan You purchase for the Pioneer mobile location unit (the “Unit“) identified by You by serial number in connection Your request for activation of the Services.
A. Pioneer’s Right to Terminate. Pioneer may terminate this Agreement immediately, including the Services, at any time following the expiration of Your initial Service Plan without notice to You.
B. Change in Vehicle Ownership. Pioneer reserves the right to terminate this Agreement immediately upon receiving notice that the vehicle in which the Unit is installed has been repossessed, sold, transferred or otherwise taken from your custody or control. Your failure to advise Pioneer of any loss of rights in and to the Unit for any reason will result in immediate termination of this Agreement.
C. Post termination. Upon termination or expiration for any reason: Your license to the Software and Services will cease immediately; Your access to the call center in the event of a vehicle accident or any other event will cease immediately; your access to vehicle location information will cease immediately. You are not entitled to a refund or transfer of Services from Pioneer in the event of termination or expiration of this Agreement for any reason.
17. ARBITRATION: This Arbitration Provision describes when and how a claim may be arbitrated. A “claim” is any claim, dispute or controversy between You and Pioneer that in any way arises from or relates to this Agreement and includes: initial claims, counterclaims, cross-claims and third-party claims; disputes based on contract, tort, fraud and other intentional torts (at law or in equity, including any claim for injunctive or declaratory relief); disputes based on constitutional grounds or on laws, regulations, ordinances or similar provisions; and disputes about the validity, enforceability, arbitrability, or scope of this Arbitration Provision or this Agreement. IF YOU OR WE CHOOSE ARBITRATION,
• ANY CLAIM WILL BE DECIDED BY ARBITRATION AND NOT IN COURT OR BY A JURY TRIAL.
• DISCOVERY AND RIGHTS TO APPEAL ARE LIMITED BY THE ARBITRATION RULES OF THE ARBITRATION ADMINISTRATOR.
• YOU GIVE UP YOUR RIGHT TO PARTICIPATE AS A REPRESENTATIVE OR MEMBER OF A CLASS IN A CLASS ACTION (“CLASS ACTION WAIVER”).
• CLAIMS BROUGHT BY OR AGAINST ONE BUYER MAY NOT BE JOINED WITH CLAIMS BY A CO-BUYER OR CO-SIGNER.
• OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT MAY NOT BE AVAILABLE IN ARBITRATION.
Either You or Pioneer may require any claim to be arbitrated, except neither party is obligated to arbitrate a claim that is brought and maintained as an individual (as opposed to a class) claim and that involves an amount in dispute or claim for damages of less than $25,000. Arbitration begins when a party gives written notice to the other party of the intent to require arbitration. This notice may be given before or after a lawsuit has been started over the claim or with respect to other claims brought later in the lawsuit. Arbitration of a claim must comply with this Arbitration Provision and the applicable rules of the arbitration Administrator. We will not choose to arbitrate an individual claim that You bring against us in small claims court or Your state’s equivalent court, if any. If that claim is transferred, removed or appealed to a different court, or if You modify the claim to seek class relief, we then may choose arbitration.
The arbitration Administrator will be the American Arbitration Association (“AAA”), www.adr.org, (800) 778-7879. If the AAA is unwilling to serve as the Administrator, the parties will attempt to agree upon a substitute Administrator. If the parties are unable to so agree, each will select one representative, and the two (2) representatives will select a third party, and the two (2) representatives and the third party will select the Administrator. Any arbitration hearing that You attend must take place at a location reasonably convenient to Your primary location.
You give up Your right to participate in a class action. This means that You may not be a representative or member of any class of claimants or act as a private attorney general in court or in arbitration with respect to any claim. Notwithstanding any other part of this Arbitration Provision, the validity and effect of the Class Action Waiver must be determined only by a court and not by an arbitrator. If a court limits or voids the Class Action Waiver, then this entire Arbitration Provision (except for this paragraph) will be null and void.
An Administrator charges fees to administer an arbitration proceeding. This may include fees not charged by a court. When You choose an Administrator, You should carefully review the fees charged by the Administrator. Pioneer will pay these fees if required by applicable law or if otherwise necessary to ensure that this Arbitration Provision is enforceable. Pioneer will not ask You to pay or reimburse Pioneer for any fees Pioneer pays the Administrator. If Pioneer requires a claim to be arbitrated, Pioneer will pay or reimburse You for up to $1,000 in fees that would otherwise be charged to You by the Administrator. However, if either Pioneer or You require a Claim to be arbitrated, You may tell Pioneer in writing that You are unable to pay the fees charged by the Administrator or that You believe those fees to be excessively high. If You do so, Pioneer will pay or reimburse You for up to all of the fees that would otherwise be charged to You by the Administrator if your request is reasonable and in good faith. Each party must pay the expense of that party’s attorneys, experts, and witnesses, regardless of which party prevails in the arbitration, unless applicable law and/or this Arbitration Provision provide otherwise.
In addition to the parties’ rights to obtain discovery under the arbitration rules of the Administrator, either party may submit a written request to the arbitrator to expand the scope for discovery normally allowable under the arbitration rules of the Administrator. The Arbitrator will have discretion to grant or deny that request. Judgment upon the arbitration award may be entered in any court having jurisdiction. In response to a timely request from either party, the arbitrator must provide a brief written explanation of the basis for any award. The arbitrator’s decision is final and binding, except for any right of appeal provided by the Federal Arbitration Act. However, if the amount of the award exceeds $100,000 or is a “take nothing” award, a party can appeal the award to a three-arbitrator panel administered by the Administrator, which must reconsider any aspect of the initial award requested by the appealing party. Reference in this Arbitration Provision to the “arbitrator” means the panel of arbitrators if an appeal of the arbitrator’s decision has been taken. Subject to applicable law, costs of any appeal will be borne by the appealing party regardless of the outcome of the appeal. This Arbitration Provision is governed by the Federal Arbitration Act and not by any state arbitration law. The arbitrator must apply applicable statutes of limitations and claims of privilege recognized at law, and applicable substantive law consistent with the Federal Arbitration Act. The arbitrator is authorized to award all remedies permitted by substantive law that would apply if the action were pending in court. This Arbitration Provision survives the repayment of all amounts You owe Pioneer, the transfer of this Agreement, and any bankruptcy by You, to the extent not inconsistent with applicable bankruptcy law. Except as provided above, if any part of this Arbitration Provision is determined to be invalid or unenforceable, this Arbitration Provision and the Agreement will remain enforceable. In the event of a conflict or inconsistency between this Arbitration Provision and the applicable arbitration rules or the other provisions of this Agreement or any other contract between You and Pioneer, this Arbitration Provision will govern. You may opt out of this arbitration provision by sending Pioneer written notice of your intent to do so by registered mail, provided You send the notice within ten (10) days of the date of this Agreement. If You are a corporation, partnership, association or other business or commercial entity, You agree that notwithstanding anything to the contrary in this paragraph 17: (1) Pioneer will not pay any part of Your costs and expenses of arbitration unless ordered to do so by the arbitrator; (2) any arbitration under this Agreement will be held in Orange County, California; and (3) You will not have the right to opt out of this arbitration provision.
18. GENERAL:
A. Governing Law. You agree that this Agreement will be governed by and construed in accordance with the laws of the State of California. Jurisdiction and venue with respect to any claim (including any claim in arbitration pursuant to paragraph 17) or litigation in connection with this Agreement will reside in the County of Orange, California. Your signature (through electronic acceptance) of this Agreement constitutes Your acknowledgment that You will submit Yourself to the personal jurisdiction of the courts with jurisdiction within the County of Orange, California.
B. Severability. If any term hereof is contrary to, prohibited by or deemed invalid under applicable laws or regulations, such term will be deemed omitted to the extent prohibited or invalid but the remainder of the terms and this Agreement will not be invalidated and will be given effect so far as possible.
C. Waiver. Any waiver of any right in, or breach of, this Agreement will not be a continuing waiver and will not prevent any claim of breach of the same term or any other term of this Agreement.
D. Assignment. This Agreement is fully assignable by Pioneer to any person or entity and will inure to the benefit of such assignee or successor. You may not assign this Agreement without the prior written consent of Pioneer.
E. Eligibility and Age Restrictions. The Services and Software are for use only by those who have reached the legal age of majority in Your jurisdiction and have full legal capacity to enter into binding contracts or are at least 18 years of age or older, have reached legal driving age and possess legal parental or guardian consent and are fully able and competent to enter into and abide by this Agreement. If You do not meet these requirements, You must decline these terms and You are not permitted to use the Services or Software.
BY SIGNING (THROUGH ELECTRONIC ACCEPTANCE), YOU AGREE TO ALL TERMS OF THIS AGREEMENT, INCLUDING THE ARBITRATION PROVISION UNDER SECTION 17.