This Motorist Terms of Use Agreement (this “Agreement” or “Terms”) is a legal agreement between you and FlashParking, Inc., its subsidiaries and each of their respective successors and assigns (collectively, “We” or “Us”) governing your use of www.FlashParking.com or any other website, IP address, social media account, iOS app, Android app, web app, email message, SMS message or other product and Services offered by Us whether online or offline, including physical locations where We collect your information, and including any Services, transactions, or engagement you might have with us (collectively, the “Services”) .
BY CLICKING ON “I AGREE”, AND/OR DOWNLOADING, INSTALLING, ACTIVATING OR OTHERWISE USING THE SERVICES, YOU ARE AGREEING THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION, AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT AND TO FOLLOW ALL APPLICABLE LAWS, YOU ARE NOT PERMITTED TO AND SHALL NOT ACCESS OR USE THE SERVICES. YOU FURTHER ADKNOWLEDGE AND AGREE THAT YOUR USE OF THE SERVICES IS SUBJECT TO OUR PRIVACY POLICY.
License to Services. Subject to your compliance with these Terms, for the duration of your use of the Services, and subject to the restrictions set forth herein, We hereby grant to you a revocable, limited, non-sublicensable, non-exclusive license to access and use the Services. Except as expressly set forth in these Terms, you receive no other right, title, or interest in and to the Services. You may not circumvent any technological measures or features of the Services that are intended to or effectively control access to the Services, or any other protected content or information included on the Services. Users agree to not use any robot, spider, crawler, scraper or other automated means to access the Services for any purpose without our express prior written consent. You further agree to not (i) take any action that imposes or may impose, in our sole discretion, an unreasonable or disproportionately large load on our infrastructure; (ii) interfere or attempt to interfere with the proper working of the Services or any activities conducted on the Services; or (iii) bypass any measures the Services may use to prevent or restrict access to the Services.
License to User Content. Content such as video, audio, images, information, text (in posts or communications with Us or others), and other materials that you post or otherwise make available through the Services, including content you make available for initiation of support requests or as submissions to enter contests or promotions, is referred to as “User Content”. By making any User Content available through the Services, you hereby grant to Us a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in all formats and distribution channels now known or hereafter devised (including in connection with operating, providing, improving, updating, analyzing, marketing and promoting the Services). This license shall survive termination of the Services. We do not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit your User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant Us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your provision of User Content to be made available through the Services, nor any use of your User Content by Us on or through the Services will infringe, misappropriate, or violate a third party’s intellectual property rights or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Eligibility. You may use the Site or the Services only if you are at least 16 years of age, and not otherwise barred from using the Site or the Services under applicable law. Specific features or aspects of the Services may have a different age limit. By using the Services, you represent and warrant that you (or your parent or legal guardian, as required by applicable law if you are unable to form a binding contract) have reviewed and agreed to these Terms. Parents and guardians are responsible for the acts of their children when using our Services. In certain instances you may be asked to provide proof of identity to access or use the Services. You agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
Authorized User Accounts.
Support For support questions, please visit https://help.parkwhiz.com/ or email help@parkwhiz.com. For legal questions, you may write to the legal department at FlashParking, Inc., Attn: Legal Department 2500 Bee Caves Road Building 3, Suite 400 Austin, TX 78746 or email legal@flashos.com.
Payment: When you make a payment to use the Services (a “Transaction”), you expressly authorize Us (or our third-party payment processor) to charge you for such Transaction and future Transactions via the payment features of the Services. We may ask you to supply additional information relevant to your Transaction, including your credit card number(s), the expiration date of your credit card(s) and your email and postal addresses for billing and notification (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize Us to provide your Payment Information to third parties so We can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars. For certain Payment Information, the issuer of the payment method may charge you certain additional fees (e.g., foreign transaction fees or processing fees). You will be solely responsible for such fees. You remain responsible for any amounts We are unable to collect for your use of the Services.
Cancellations and Refunds for Reservations. If your use of the Services includes making parking reservations, such reservations are fully refundable up to the start of that reservation unless specifically noted otherwise. You can cancel your reservation at any time up to the start of your reservation. After the start time of your reservation, all bookings become non-refundable, even if you are unable to park or have yet to park. It is within our sole discretion, provided the circumstances, to offer you an account credit if you attempt to cancel a reservation after the start time. If you are unable to park due to the lack of parking spaces for false information provided by a parking location, it will be the responsibility of the parking location operator to refund you for your reservation. Unfortunately, the circumstances surrounding postponed events are unpredictable. Although We will try to help you resolve your parking situation, We are not responsible for postponed events, partial performances, or venue, date, or time changes.
Coupon Use: You are required to abide by all Terms associated with our coupons and discounts. Accordingly, you may not post codes or distribute them in any other manner as all such codes are non-transferable and are generally intended only for one-time use. We, in sole discretion, may suspend your account for violation of this term. Furthermore, any continued violations may result in the immediate termination of any and all of your accounts, without notice. We reserve the right to seek any and all legal remedies available to Us, both at law and in equity; including, but not limited to, monetary damages or injunctive relief. If you have a coupon that automatically applies to any booking on your account, it can only be used when you are signed in to that account and will not be applied to any bookings made under a guest account. Additionally, any credits you may receive, for any reason, can only be used when you are logged into your account and will not be transferred to another user’s account or booking made from a different account.
Resale: Resale of Services purchased by you (including parking reservations) is not permitted.
Booked Parking Usage: Users who book parking through the Site must present the parking pass in accordance with the instructions included with the booking to receive their reserved parking space on the day of reservation. You are solely responsible for ensuring that all information regarding your booking is correct including, if required, your license plate number, car make and model, and reservation time. We will not be liable to you if you enter any information incorrectly and you receive a ticket, a boot is placed on your vehicle, or your car is towed from the parking location as a result. If you do not present the parking pass to the Seller or the parking location, you will not get credit for the online payment and the online payment will not be refunded at a later date. If you arrive early or stay past your parking time you will be charged the posted rates at the parking location, and not the booked rate, and you may not receive credit for your online payment (that is within the discretion of the parking location). The parking booked is valid only for the times listed on the parking pass. You are responsible for ensuring that you arrive at the correct booked parking location. We are not liable for road closures or changing traffic conditions.
Drive Up Mobile Payments: Drive Up Mobile Payments is an in-app feature that will allow you to pay for off-street parking at a gated parking location by simply using your smart mobile device and the ParkWhiz App. In order to use this feature, you must have an account with Us. This feature is used when you do not reserve parking at a specific location before arriving at the parking location and you pull a ticket at the entrance; therefore only use this feature if you have not pre-booked parking using the ParkWhiz App. Drive Up Mobile Payments allows you to estimate your total for parking after you scan your ticket. All estimates are simply that, an estimate and are not guaranteed to the be the final cost of your parking transaction and are based on your estimated time of exit. The final cost of parking is charged to your selected method of payment upon your exit of the parking location and is calculated based upon your entrance and exit times and the rates charged by the parking location. By using this feature, you agree to your selected method of payment being charged upon your exit from the parking location. All parking prices are set directly by the parking location owner or operator, not Us; therefore Drive Up Mobile Payments rates may differ from the drive-up rates posted at a location, if applicable. If you pre-book parking before arriving at a parking location and then pull a ticket upon arrival and scan your ticket into the app you may be charged twice for your parking transaction and you may not qualify for a refund if you do not cancel your pre-booked reservation before the start time. Drive Up Mobile Payments transactions cannot be canceled by you or us. Once you scan your ticket into the ParkWhiz App the only way to complete a Drive Up Mobile Payments transaction is to successfully exit the parking location and pay for the time your vehicle was parked.
Bulk Reservation Purchase Requests: By completing and submitting the Bulk Purchases Request you acknowledge and agree to be bound to these additional Terms:
Services Ownership. All right, title and interest in the Services, including technology and trade secrets embodied therein and any content or developments created or provided in connection with or related to the Services, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to Us or our licensors, and you shall have no rights whatsoever in any of the foregoing. You acknowledge that the Services constitute a valuable trade secret and/or is the confidential information of Us or our licensors. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Services, in whole or in part. All content and materials included as part of the Services, such as text, graphics, logos, button icons, images, audio clips, information, data, forms, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Works”) are the property of Us or our content suppliers and are protected by copyrights, trademarks, trade secrets, or other proprietary rights and these rights are asserted and protected in all forms, media and technologies existing now or hereinafter developed. Works are or may be copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and We own a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Works, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptation, translation, republication, display, or performance, of the Works, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the Works, proprietary products, and/or Services provided pursuant to this Agreement may cause Us and our licensors irreparable injury, which may not be adequately remedied at law, and you agree that Our and our licensors’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
Confidentiality. You acknowledge that the Services, the terms of this Agreement or other agreements between the parties, and any other proprietary or confidential information provided to you by Us (“Confidential Information”) constitutes valuable proprietary information and trade secrets of Us. You agree to preserve the confidential nature of the Confidential Information by retaining and using the Confidential Information in trust and confidence, solely for your internal use in accordance with the licenses granted hereby, and by using the same degree of protection that you use to protect similar proprietary and confidential information, but in no event less than reasonable care. You shall not disclose any Confidential Information to any third party without our prior written approval, except in the event of Compelled Disclosure. In the event of Compelled Disclosure, you shall provide Us with prompt prior notice of the disclosure requirement if permitted to do so, shall cooperate with Us (at our expense and request) to limit or quash such disclosure, and shall in all cases disclose only the minimum amount of information necessary to comply with the Compelled Disclosure. “Compelled Disclosure” means disclosure that is required by applicable law or by the demand (e.g., a warrant or subpoena) of a government body having jurisdiction in the matter. We shall have the right to obtain an injunction (without having to post a bond) to prevent any breach or continued breach of this section. You agree to promptly report any breaches of this section to Us.
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SERVICES ARE PROVIDED “AS-IS” AND “WITH ALL FAULTS”, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE, INCLUDING OUR AFFILIATES, SUBSIDIARIES, LICENSORS, SUBCONTRACTORS, DISTRIBUTORS, SERVICES PARTNERS, AGENTS AND MARKETING PARTNERS AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE “FLASHPARKING PARTY(IES)”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICES, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND ACCURACY AND NON-INTERFERENCE; (B) NEITHER WE NOR ANY FLASHPARKING PARTY WARRANTS THAT (i) THE SERVICES ARE OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS, (ii) THE SERVICES WILL MEET YOUR REQUIREMENTS, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE, (iv) ANY ERRORS IN THE SERVICES WILL BE CORRECTED; (C) YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) WE AND THE FLASHPARKING PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, USEFULNESS, OR EFFECTIVENESS OF THE FORMS, DATA, REPORTS, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY YOU FROM ACCESSING AND/OR USING THE SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT; AND (E) USE OF THE SERVICES ARE ENTIRELY AT YOUR OWN DISRETION AND RISK AND NEITHER WE NOR ANY OF THE FLASHPARKING PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY THEREFOR.
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICES AND/OR TO TRANSMIT INFORMATION TO AND FROM THE SERVICES, INCLUDING BUT NOT LIMITED TO THE PUBLIC TELEPHONE NETWORK, COMPUTER NETWORKS, WI-FI, BLUETOOTH, AND THE INTERNET, WHETHER OR NOT SUPPLIED BY YOU OR US, CAN BE UNPREDICTABLE OR SUFFER FROM FAILURES AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT THE ACCESS TO AND/OR THE USE OR OPERATION OF THE SERVICES. NEITHER WE NOR ANY OF THE FLASHPARKING PARTIES SHALL BE LIABLE FOR ANY INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO AND/OR USE OF THE SERVICES.
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL WE BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. WE SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY THIRD PARTIES. IN NO EVENT SHALL OUR MAXIMUM CUMULATIVE LIABILITY IN CONNECTION WITH THE SERVICES AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE PAYMENTS MADE TO US FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM IN THE SIX (6) MONTHS PRIOR TO SUCH CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICES MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE REMEDIES FAIL THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, YOU WOULD HAVE PAID A HIGHER FEE FOR THE SERVICES PROVIDED HEREUNDER. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
You shall indemnify, defend, and hold harmless Us and our directors, employees, agents, and distributors from and against all damages and liabilities (including reasonable attorneys’ fees) that arise from a third party’s claim resulting from (a) unauthorized use of the Services by an Unauthorized User, you or any Authorized User; (b) any act or omission of you or any Unauthorized User or Authorized User that violates this Agreement and/or that constitutes negligence, willful misconduct or a violation of applicable law; or (c) damage caused to any real or tangible personal property, including without limitation any motor vehicle, and damage related to any injury or death.
The term of this Agreement commences on your first use of the Services and continues through any subsequent use of the Services thereafter. Any unauthorized use of the Services will be deemed a material breach of this Agreement. We, in our sole discretion, may terminate your password, account or use of the Services if you breach or otherwise fail to comply with this Agreement or our then-current payment or refund policies. In addition, We may terminate a free account at any time in its sole discretion. If Services are suspended, whether for non-payment or any other reason, in order to reinstate Services, We, in our sole discretion may require you to re-subscribe to the Services, including the payment of any fees required to be paid by a new subscriber and/or to pay any applicable reinstatement fees.
By registering for the Services, you consent to receive communications from Us, which may include calls and text messages to the cellular telephone number you provide to Us. Depending on your relationship with Us and consents received, We or our Services providers send text messages to: (a) provide you with information you requested from Us; (b) update you regarding your orders and other transactions with Us; (c) respond to your customer Services requests and other inquiries regarding your use of our Services; and/or (d) send you marketing or promotional text messages.
Any text messages We send to you are subject to the SMS Terms set forth in this section.
Consent to Receipt of Text Messages. You may provide Us with consent to send you text messages through our website or mobile application (e.g. by providing Us with your phone number) or through communications or transactions with Us (e.g. by initiating or agreeing to receive text message communications with customer Services). By providing your consent, you agree to these SMS Terms, this Agreement, and our Privacy Policy.
By consenting to receive our text messages, you agree that We and/or our Services providers may use any automated or non-automated technology to send you transactional and/or marketing text messages. You are not required to consent to marketing text messages as a condition of purchase.
We may terminate any text messaging Services or your participation in our text message program at any time with or without notice, including, for example, before you have received any or all messages that you otherwise would have received, but these SMS terms will still apply.
Costs of Text Messages. We do not charge you for our text message program. But message and data rates may apply, so depending on your plan with your wireless or other applicable provider, you may be charged by your carrier or other applicable provider.
Frequency of Text Messages. We may send you one or more welcome messages or administrative messages, such as (in some cases), a request to confirm your opt-in. After that, you will receive recurring text messages, and the specific amount may vary depending on how you use our Services (e.g. if you communicate with Us through SMS, or if you send a HELP request).
Participating Carriers. Our text messages are supported on all U.S. carriers. Please note, however, that the supporting mobile carriers may change without notice, and the particular text message program you join may be limited to specific carriers. Neither Us or the mobile carriers (for example, Verizon, AT&T and T-Mobile) are not liable for delayed or undelivered messages.
Eligibility. By consenting to receive text messages from Us, you represent that you are 16 years of age or older and understand the obligations and agree to the terms set forth in these SMS Terms. You further represent that you are the subscriber of the cellular Services at the mobile number provided or that you are authorized by the subscriber to sign up for texts.
Opting Out of Text Messages. To opt out of text messages, you must text STOP to that number. Text HELP to that number for help. After doing so, We may send you confirmation of your opt-out via text message. You further agree that texting STOP in response to our text message is the only reasonable method of opting out of our text messages. You also understand and agree that any other method of opting out, including, but not limited to, texting words other than “STOP” or verbally requesting one of our employees to remove you from our list, is not a reasonable means of opting out.
If you have revoked consent and want to re-enroll in our text message program, you can re-enroll by texting START.
Modifications to these SMS Terms. We reserve the right to modify these SMS Terms, or any part thereof, or add or remove terms at any time, and such modifications, additions or deletions will be effective immediately upon posting. Your continued enrollment in our text messaging program shall be deemed to constitute acceptance by you of such modifications, additions, or deletions.
Compliance with Laws, Rules and Regulations: It is your responsibility to comply with all laws, rules and regulations applicable to you in connection with your use of the Services, including any and all rules or regulations posted by parking location operators.
Independent Contractor. In performing under this Agreement, each party is acting as an independent contractor to the other, and in no way are the parties to be construed as partners, joint venturers, or agents of one another in any respect. Neither party has the right to bind the other party to any contract or agreement without that party’s prior written consent.
Force Majeure. Neither party shall be in default for failing to perform any obligation hereunder, other than the payment of monies, if such failure is caused solely by supervening conditions beyond the parties’ respective control, including without limitation acts of God, lightning or wind, civil commotion, strikes, terrorism, war (declared or undeclared), failure of third-party networking equipment, failure of the public Internet, power outages, labor disputes or governmental demands or restrictions.
Assignment. We may assign this Agreement in connection with a merger, acquisition or sale of all or substantially all of its assets related hereto. Except as expressly stated in this section, neither party may assign its rights or obligations under this Agreement without obtaining the other party’s prior written consent. Any assignment in contravention of this subsection shall be void.
Governing Law and Venue. This Agreement shall be governed by the Federal Arbitration Act, and to the extent not inconsistent therewith the laws of the State of Texas, U.S.A. (excluding any rule or principle that would refer to and apply the substantive law of another state or jurisdiction). Further, the parties agree that any claim or cause of action under or relating to this Agreement shall be brought in the state or federal courts located in Austin, Texas, United States and the parties agree to submit to the exclusive personal jurisdiction of such courts, except to the extent that arbitration is required hereunder.
Arbitration. Except for any claims for temporary or permanent injunctive relief or actions enforcing the results of arbitration, any and all disputes, controversies or claims arising out of or relating to this Agreement, or the breach, termination or invalidity thereof, shall be finally settled by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association (“Rules”) in effect on the date of this Agreement by a single arbitrator appointed in accordance with said Rules. The appointing authority shall be the American Arbitration Association. The place of arbitration shall be Austin, Texas, U.S.A. The arbitration shall be conducted in the English language. The determination of the arbitrator shall be final and binding upon the parties to the arbitration. Discovery shall be permitted, but only to the extent that the documents are directly relevant to and needed for fair resolution of one or more of the issues of importance and can be located and produced at a cost that is reasonable in the context of all surrounding facts and circumstances. When the cost and burden of discovery are disproportionate to the likely importance of the requested materials, the arbitrator may deny the requests or require that the requesting party advance the reasonable cost of production to the other side. The arbitrator may not award non-monetary or equitable relief of any sort, nor award damages inconsistent with this Agreement. All aspects of the arbitration shall be treated as confidential. Judgment upon any award rendered by the arbitrator may be entered in any court of competent jurisdiction. THE PARTIES SURRENDER AND WAIVE THE RIGHT TO SUBMIT ANY DISPUTE TO A COURT OR JURY, OR TO APPEAL TO A HIGHER COURT. THE PARTIES AGREE TO ARBITRATION ON AN INDIVIDUAL BASIS. If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration). Notwithstanding the foregoing, nothing in these Terms shall prohibit either party from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm for which monetary damage would be insufficient. The proceedings shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws and the arbitrator shall otherwise follow the law and judicial precedents that a United States District Judge sitting in the Western District of Texas would apply to the dispute.
Miscellaneous. This Agreement, including the exhibits attached hereto constitutes the entire agreement between the parties regarding the subject matter stated herein, and supersedes all previous communications, representations, understandings, and agreements, either oral, electronic, or written. We reserve the right to update this Agreement from time to time without providing separate notice to you. Any such update will be posted to our website and prominently noted as updated. Your continued use of the Services after any update is deemed your agreement to such changes. Headings herein are for convenience of reference only and shall in no way affect interpretation of this Agreement. Nothing contained in any purchase order or other preprinted or unilateral document supplied by you shall in any way modify this Agreement or add any additional terms or conditions. If any provision of this Agreement, or the application thereof, shall for any reason and to any extent be determined by a court of competent jurisdiction to be invalid or unenforceable under applicable law, a valid provision that most closely matches the intent of the original shall be substituted and the remaining provisions of this Agreement shall be interpreted so as best to reasonably effect its original intent, or if that is impossible while preserving the intent of the parties, the invalid provision shall be deemed stricken and in any case the other provisions hereof shall continue in full force and effect. This Agreement is in the English language only, and the English language version shall control in all respects. In the event that this Agreement is translated into another language, such translation is provided only as a courtesy and shall not be binding upon the parties. No delay or omission by a party to exercise any right or power occurring upon any breach or default by the other party with respect to any of the terms of this Agreement shall impair any such right or power or be construed to be a waiver thereof.