Last Updated: Jan 31, 2024
These Terms of Service (“Terms”) apply to your, or the business entity which you represent (“you” or “your”), access to and use of:
(a) the website located at https://www.edrv.io (or any successor links) and all associated web pages, websites, and social media pages (the “Site”) provided by eDRV, Inc., a Delaware corporation (“eDRV”, “we”, “our” or “us”),
(b) our mobile application that you may make available as a mobile browser-based application component of your services in its altered or unaltered form (the “Driver Web Application”) for use by individual drivers of electric vehicles who interact with the same (referred to as “Drivers”), or
(c) online services to manage networked EV charging stations including our administration dashboard and console available at https://admin.edrv.io (or any successor links), all associated, white-labeled, and automatically generated domains, application programming interfaces (“API”), simulators, and associated software, guides, documentation, and supporting resources (including the Site and the Driver Web Application, together the “Services”).
BY CLICKING [“I ACCEPT”] OR BY USING THE SERVICES, YOU AGREE TO THESE TERMS. EXCEPT FOR (A) CERTAIN TYPES OF DISPUTES DESCRIBED IN SECTION 17, (B) WHERE YOU EXERCISE YOUR RIGHT TO OPT OUT OF ARBITRATION AS DESCRIBED IN SECTION 17, OR (C) TO THE EXTENT PROHIBITED BY LAW, DISPUTES BETWEEN YOU AND EDRV WILL BE RESOLVED SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR BY JURY TRIAL. If you do not agree to these Terms, do not use our Services.
We may indicate that different or additional terms, conditions, guidelines, policies, or rules apply in relation to some of our Services (“Supplemental Terms”). Any Supplemental Terms become part of your agreement with us if you use the applicable Services, and if there is a conflict between these Terms and the Supplemental Terms, the Supplemental Terms will control for that conflict.
We may make changes to these Terms. The “Last Updated” date above indicates when these Terms were last changed. If we make future changes, we may provide you with notice of such changes, such as by sending an email, providing a notice through our Services, or updating the date at the top of these Terms. Unless we say otherwise in our notice, the amended Terms will be effective immediately, and your continued use of our Services after we provide such notice will confirm your acceptance of the changes. If you do not agree to the amended Terms, you must immediately stop using our Services.
1. Eligibility and Use Restrictions
(a) Authorization. If you use our Services on behalf of another person or entity, (a) all references to “you” throughout these Terms (other than in this Section 1(a)) will include that person or entity, (b) you represent that you are authorized to accept these Terms on that person’s or entity’s behalf, and (c) in the event you or that person or entity violates these Terms, that person or entity also agrees to be responsible to us.
(b) Jurisdiction. You may only use our Services in jurisdictions authorized by eDRV. Use of our Services is currently authorized only in the United States or as otherwise set forth in any Supplemental Terms.
(c) Use and Sharing. Our Services are provided to you only for your internal business use and not for the benefit or use of any third party. eDRV will enable you to designate authorized individuals (“Authorized Users”) to use our Services, and only Authorized Users may use our Services. You will be solely responsible for your Authorized Users and their activity in connection with the Services.
2. Information We May Collect
You or your Drivers may provide certain information to eDRV in connection with your access or use of our Services, or we may otherwise collect certain information about you or your Drivers when you or your Drivers access or use our Services. You and your Drivers agree to receive emails, SMS or text messages, and other types of communication from eDRV via the Services using the email address or other contact information you or your Drivers provide in connection with the Services. You and your Drivers represent and warrant that, (a) any information that you provide to eDRV in connection with the Services is accurate and (b) you have all applicable right and license to provide us with any Driver data needed to administer the Services.
Authorized Users must create accounts in order to use some or all of our Services. You will ensure that your Authorized Users (a) do not share their account credentials, API keys, or API credentials, (b) provide accurate account information and promptly update this information if it changes, and (c) use a strong password for their account that is unique to our Services and not used by that Authorized User in any other website or online service. You will maintain the security of any accounts created by your Authorized Users. If you discover or suspect that someone has accessed the account of one of your Authorized Users without permission, you will promptly notify eDRV. We reserve the right to reclaim usernames, including on behalf of businesses or individuals that hold legal title, including trademark rights, in those usernames.
4. User Content
(a) Our Services may allow you and other users to create, post, store, and share content, including reviews, messages, text, photos, videos, software, and other materials (collectively, “User Content”). Depending on your account settings, when you post or otherwise share User Content on or through our Services, you understand that your User Content and any associated information (such as your username or profile photo) may be visible to others. If you choose to make any of your information publicly available through the Services, you do so at your own risk.
(b) Except for the license you grant below, as between you and eDRV, you retain all rights in and to your User Content, excluding any portion of the Services included in or associated with your User Content. You grant eDRV a perpetual, irrevocable, nonexclusive, royalty-free, worldwide, fully paid, and sublicensable (through multiple tiers) license to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, publicly or otherwise perform and display, and exploit your User Content and any name, username, or likeness provided in connection with your User Content in all media formats and channels now known or later developed without compensation of any kind to you or any third party. You hereby irrevocably waive any “moral rights” or other rights with respect to attribution of authorship or integrity of materials regarding User Content that you may have under any applicable law or under any legal theory.
(c) You may not create, post, store, or share any User Content for which you do not have all the rights necessary to grant us the license described above, and you represent and warrant that your User Content, and our use of such User Content as permitted by these Terms, will not violate any rights of any person or entity, including any rights of publicity or privacy, intellectual property rights, or other proprietary rights, or cause injury to any person or entity. You may not create, post, store, or share any User Content that:
- Is unlawful, libelous, defamatory, obscene, pornographic, indecent, lewd, suggestive, harassing, threatening, invasive of privacy or publicity rights, abusive, inflammatory, or fraudulent;
- Would constitute, encourage, or provide instructions for a criminal offense, violate the rights of any party or otherwise create liability, or violate any local, state, national, or international law;
- May infringe any patent, trademark, trade secret, copyright, or other intellectual or proprietary right of any party;
- Contains or depicts any statements, remarks, or claims that do not reflect your honest views and experiences;
- Impersonates, or misrepresents your affiliation with, any person or entity;
- Contains any unsolicited promotions, political campaigning, advertising, or solicitations;
- Contains any private or personal information of a third party without such third party’s consent;
- Contains any viruses, corrupted data or other harmful, disruptive, or destructive files or content; or
- In our sole judgment, is objectionable, restricts or inhibits any other person from using or enjoying our Services, or may expose eDRV or others to any harm or liability of any type.
(d) Enforcement of this Section 4 is solely at eDRV’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances. This Section 4 does not create any right or private right of action on the part of any third party or any reasonable expectation that the Services will not contain any content that is prohibited by these Terms or that objectionable material will be promptly removed after it has been posted.
(e) We do not undertake to review all User Content, and we expressly disclaim any duty or obligation to undertake any monitoring or review of any User Content. Although we have no obligation to screen, edit, or monitor User Content, we may:
- Delete or remove User Content or refuse to post any User Content at any time and for any reason with or without notice, including without limitation for any violations of applicable law or these Terms;
- Terminate or suspend your access to all or part of the Services, temporarily or permanently, if your User Content is reasonably likely, in our sole determination, to violate applicable law or these Terms;
- Take any action with respect to your User Content that is necessary or appropriate, in eDRV’s sole discretion, to ensure compliance with applicable law and these Terms, or to protect Company’s rights, or to protect any third-party rights, including third-party intellectual property and privacy rights (e.g., providing information to copyright owners in furtherance of Digital Millennium Copyright Act takedown requests); and
- As permitted by law, cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any User Content on or through the Services.
5. Prohibited Conduct
(a) You will not use our Services if you are not eligible to use our Services in accordance with Section 1 and will not use our Services other than for their intended purpose. Further, you will not, nor will you enable or encourage third parties (including Drivers) to, in connection with our Services:
- Violate any applicable law, contract, intellectual property right, or other third-party right or commit a tort;
- Engage in any harassing, threatening, intimidating, predatory, or stalking conduct;
- Use or attempt to use another user’s account or information without authorization from that user and eDRV;
- Impersonate or post on behalf of any person or entity or otherwise misrepresent your affiliation with a person or entity;
- Sell or resell our Services except as expressly permitted herein;
- Copy, reproduce, distribute, publicly perform, or publicly display all or portions of our Services, except as expressly permitted by us or our licensors;
- Modify our Services, remove any proprietary rights notices or markings, or otherwise make any derivative works based upon our Services, except as expressly permitted herein;
- Use our Services in any manner that could interfere with, disrupt, negatively affect, or inhibit other users from fully enjoying our Services or that could damage, disable, overburden, or impair the functioning of our Services in any manner;
- Reverse engineer any aspect of our Services or do anything that might discover or reveal source code, or bypass or circumvent measures employed to prevent or limit access to any part of our Services;
- Use any data mining, robots, or similar data gathering or extraction methods designed to scrape or extract data from our Services except in accordance with instructions contained in our robot.txt file and only to compile for search results, provided that eDRV grants to the operators of public search engines permission to use spiders to copy materials from any portion of the Services for the sole purpose of (and solely to the extent necessary for) creating publicly available, searchable indices of such materials, but not caches or archives of such materials. EDRV reserves the right to revoke such permission either generally or in specific cases, at any time and without notice;
- Develop or use any applications or software that interact with our Services without our prior written consent;
- Send, distribute, or post spam, unsolicited or bulk commercial electronic communications, chain letters, or pyramid schemes;
- Link to any online portion of the Services in a manner that damages or exploits, in our sole discretion, our reputation or suggests any form or association, approval, or endorsement by eDRV, without our prior approval; or
- Use our Services for any illegal or unauthorized purpose, or engage in, encourage, or promote any activity that violates these Terms.
(b) Enforcement of this Section 5 is solely at eDRV’s discretion, and failure to enforce this section in some instances does not constitute a waiver of our right to enforce it in other instances.
7. Payment and Taxes
The pricing plans for the Services, and any additional billing terms, are set forth and described on https://www.edrv.io/pricing (or any successor links) and you agree to abide by the terms applicable to your selected plan. Unless otherwise noted, all prices are shown in U.S. dollars and due as indicated in the applicable pricing plan, and any applicable taxes, shipping, and handling charges are added to the total amount due. All Services are subject to availability, and we reserve the right to impose limits on any order, to reject all or any part of an order and to discontinue Services at any time without notice, even if you have already placed your order. All prices and plans of offerings, are subject to change without notice and you agree that any applicable taxes may be adjusted from the amount shown on the payment checkout screens. Several factors may cause this adjustment, such as variances between processor programs and changes in tax rates.
You will be responsible for any applicable sales or use taxes, duties or other governmental taxes or fees payable in connection with your purchase. If you do not pay such taxes or fees in connection with a transaction, you will be responsible for such taxes or fees in the event that they are later determined to be payable. eDRV reserves the right to collect such taxes or other fees from you at any time.
We attempt to be as accurate as possible and to eliminate errors on the Site; however, we do not represent or warrant that any product, service, description, photograph, pricing, or other information is accurate, complete, reliable, current, or error-free. In the event of an error, whether on the Site, in an order confirmation, in processing an order, when delivering our Services or otherwise, we reserve the right to correct such error and revise your order accordingly (including charging the correct price) or to cancel the order at any time without prior notice (including after you have submitted your order and/or your payment method has been charged). Your sole remedy in the event of an error is to cancel your order and obtain an account credit or other remedy as we deem appropriate in our sole discretion.
We reserve the right to determine the acceptable methods of payment for purchases on the Site. Only valid credit cards and other payment methods acceptable to us may be used to purchase products through the Site. By submitting an order through the Site, you represent and warrant that you are authorized to use the designated credit card or other payment method and authorize us, or a third party service provider working on our behalf, to charge that card or other payment method for the purchase amount of your order (including taxes, shipping, handling and any other amounts described on the Site).
You agree to provide current, complete, and accurate payment information for all purchases on the Site. You agree to promptly update your payment information, including your email address and credit card numbers and expiration dates for billing, so that we can complete your transactions and contact you as needed. When you provide your payment information, you authorize us (or a third party service provider working on our behalf) to process and store your payment and other related information. In the event that the credit card or other payment method you designate cannot be verified, is invalid or is not otherwise acceptable, we may suspend or cancel your use of the Services automatically without prior notice. You are responsible for resolving any problem we encounter in order to continue using the Services.
8. Ownership; Limited Access & License
Ownership. The Services, including the text, graphics, images, photographs, videos, illustrations, and other content contained therein, and all intellectual property rights therein and thereto, are owned by eDRV or our licensors and are protected under both United States and foreign laws. You have no right or license with respect to the Services except as expressly licensed under this Section 8 or the applicable third-party license, in each case subject to your compliance with these Terms and your payment of all applicable fees. All other rights in and to the Services, including all intellectual property rights therein and thereto, are reserved by us or our licensors.
Access to Services. Subject to your compliance with these Terms (including Sections 4 and 5), your payment of all applicable fees, and except with respect to the APIs and Driver Web Application, eDRV hereby grants you a limited, nonexclusive, nontransferable, non-sublicensable (other than to your Drivers in connection with a license to the APIs or Driver Web Application), revocable right to access and use our Services solely for your benefit in the ordinary course of your business operations. Any use of the Services other than as specifically authorized herein, without our prior written permission, is strictly prohibited and will terminate the license granted herein.
License grant to APIs. Subject to your compliance with these Terms (including Sections 4 and 5) and your payment of all applicable fees, eDRV hereby grants you a limited, nonexclusive, nontransferable, non-sublicensable (except as set forth below), revocable license to copy, display, and create derivative works of our APIs solely to the extent necessary to develop, test, use, incorporate, and support your use of the Services (including the Driver Web Application). Further, you will not: (a) access our APIs in violation of any law or regulation; (b) access our APIs in any manner that (i) compromises, breaks or circumvents any of our technical processes or security measures associated with the Services, (ii) poses a security vulnerability to customers or users of the Services, or (iii) tests the vulnerability of our systems or networks; (c) access our APIs in order to replicate or compete with the Services; (d) attempt to reverse engineer or otherwise derive source code, trade secrets, or know-how of our APIs or Services; or (e) attempt to use our APIs in a manner that exceeds rate limits, or constitutes excessive or abusive usage.
License grant to Driver Web Application.
You may grant a limited sublicense to access and use the Driver Web Application and APIs solely to your Drivers; subject to the following: (a) your license grant to Drivers for the Driver Web Application and APIs will be limited to access and use rights only, and no other rights in; (b) upon accessing and using the Driver Web Application and prior to registering for access to the same, your Drivers agree to terms at least as protective of eDRV as those set forth in these Terms, including Schedule A to these Terms; and (c) in the event of expiration or termination of these Terms, all license rights to Drivers in and to the Driver Web Application and APIs will terminate automatically effective as of the expiration or termination date of these Terms. You will not, and will not permit anyone else to, access or use the Driver Web Application except as expressly permitted by these Terms. For purposes of clarity and without limiting the generality of the foregoing, except as expressly permitted by these Terms, you will not (and will not allow or enable any third party to) at any time, directly or indirectly: (i) rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the Driver Web Application; (ii) reverse engineer, disassemble, decompile, decode, adapt, or otherwise attempt to derive or gain access to the source code of the Driver Web Application, in whole or in part; (iii) remove any proprietary notices from the Driver Web Application; (iv) use the Driver Web Application in any manner or for any purpose that infringes, misappropriates, or otherwise violates any intellectual property right or other right of any person, or that violates any applicable law; or (v) use the Driver Web Application for purposes of competitive analysis of the Driver Web Application, the development of a competing software product or service, or any other purpose that is to eDRV’s commercial disadvantage.
9. Platform Service Limits (“PSL”)
You agree that your use of the Platform will be subject to limits as outlined in the Platform Service Limits document.
eDRV and our logos, product or service names, slogans, and the look and feel of the Services are trademarks of eDRV and may not be copied, imitated, or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names, and company names or logos mentioned on or in connection with the Services are the property of their respective owners. Reference to any products, services, processes, or other information by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation by us.
You may voluntarily post, submit, or otherwise communicate to us any questions, comments, suggestions, ideas, original or creative materials, or other information about eDRV or our Services (collectively, “Feedback”). You understand that we may use such Feedback for any purpose, commercial or otherwise, without acknowledgment or compensation to you, including to develop, copy, publish, or improve the Feedback or Services, or to improve or develop new products, services, or the Services in eDRV’s sole discretion. EDRV will exclusively own all improvements to, or new, eDRV products, services, or Services based on any Feedback. You understand that eDRV may treat Feedback as nonconfidential.
12. Repeat Infringer Policy; Copyright Complaints
(a) Our Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of users who repeatedly infringe the intellectual property rights of others (our "DMCA Policy").
(b) Reporting Claims of Copyright Infringement. If you believe that any content on our Services infringes any copyright that you own or control, you may notify eDRV’s designated agent (your notification, a “DMCA Notice”) as follows:
Designated Agent: Bhaskar Deol
Address: 315 Montgomery St. 10th Floor, San Francisco 94104
Telephone Number: +1 415 513 0125
Email Address: firstname.lastname@example.org
Please see Section 512(c)(3) of the DMCA for the requirements of a proper notification. If you fail to comply with all of the requirements of Section 512(c)(3) of the DMCA, your notice may not be effective. If you knowingly materially misrepresent that any activity or material on our Services is infringing, you may be liable to eDRV for certain costs and damages.
13. Third-Party Content
(a) Our Services rely on or interoperate with third-party products and services, including, without limitation, data storage services, communications technologies, IoT platforms, third-party app stores, and internet and mobile operators (collectively, “Third-Party Materials”). These Third-Party Materials are beyond our control, but their operation may impact, or be impacted by, the use and reliability of our Services. You acknowledge that, (a) the use and availability of the Services is dependent on third-party product vendors and service providers and (b) these Third-Party Materials may not operate reliably 100% of the time, which may impact the way that our Services operate.
(b) Specifically, certain items of independent, third-party code may be utilized in connection with the Services that may be subject to open-source licenses (“Open-Source Software”). The Open-Source Software is licensed to us under the terms of the license that accompanies such Open-Source Software and may be licensed to you under the terms of the same license or through other terms. Nothing in the Terms limits your rights under, or grants you rights that supersede, the terms and conditions of any applicable license for such Open-Source Software.
(c) We may further provide information about or links to third-party products, services, activities, or events, or we may allow third parties to make their content and information available on or through the Services (collectively, “Third-Party Content”). We provide Third-Party Content as a service to those interested in such content. Your dealings or correspondence with third parties and your use of or interaction with any Third-Party Content are solely between you and the third party.
(d) We have no obligation to monitor Third-Party Materials or Third-Party Content, and we may block or disable access to any Third-Party Materials or Third-Party Content (in whole or part) through our Services at any time. Your access to and use of such Third-Party Content or Third-Party Materials may be subject to additional terms, conditions, and policies applicable to such Third-Party Content (including terms of service or privacy policies of the providers of such Third-Party Materials). You are responsible for obtaining and maintaining any computer hardware, equipment, network services and connectivity, telecommunications services, and other products and services necessary to access and use the Services.
To the fullest extent permitted by applicable law, you will indemnify, defend, and hold harmless eDRV and our officers, directors, agents, partners, and employees (individually and collectively, the “eDRV Parties”) from and against any losses, liabilities, claims, demands, damages, expenses or costs (“Indemnification Claims”) arising out of or related to: (a) your or your Drivers’ access to or use of the Services; (b) your User Content or Feedback; (c) your violation of these Terms; (d) your violation, misappropriation, or infringement of any rights of another (including intellectual property rights or privacy rights); or (f) your or your Drivers’ conduct in connection with the Services. You will promptly notify eDRV Parties of any third-party Indemnification Claims, cooperate with eDRV Parties in defending such Indemnification Claims, and pay all fees, costs, and expenses associated with defending such Indemnification Claims (including attorneys' fees). The eDRV Parties will have control of the defense or settlement, at eDRV's sole option, of any third-party Indemnification Claims. This indemnity is in addition to, and not in lieu of, any other indemnities set forth in a written agreement between you and eDRV or the other eDRV Parties.
Your use of our Services and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) is at your sole risk. Except as otherwise provided in a writing by us and to the fullest extent permitted under applicable law, our Services, and any content or materials provided therein or therewith (including the Third-Party Content and Third-Party Materials) are provided “as is” and “as available” without warranties of any kind, either express or implied. eDRV disclaims all warranties with respect to the foregoing, including implied warranties of merchantability, fitness for a particular purpose, title, and non-infringement. In addition, eDRV does not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) are accurate, complete, reliable, current, or error-free or that access to our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) will be uninterrupted. While eDRV attempts to make your use of our Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials) safe, we cannot and do not represent or warrant that our Services or any content provided therein or therewith (including the Third-Party Content and Third-Party Materials), or our servers are free of viruses or other harmful components or content or materials. You assume the entire risk as to the quality and performance of the Services and any content provided therein or therewith (including the Third-Party Content and Third-Party Materials). All disclaimers of any kind (including in this section and elsewhere in these Terms) are made for the benefit of eDRV, eDRV Parties, and eDRV’s respective shareholders, agents, representatives, licensors, suppliers, and service providers, as well as their respective successors and assigns.
16. Limitation of Liability
(a) To the fullest extent permitted by applicable law, eDRV and the other eDRV Parties will not be liable to you under any theory of liability—whether based in contract, tort, negligence, warranty, or otherwise—for any indirect, consequential, incidental, or special damages, or lost profits, even if eDRV or the other eDRV Parties have been advised of the possibility of such damages.
(b) The total liability of eDRV and the other eDRV Parties for any claim arising out of or relating to these Terms or our Services, regardless of the form of the action, is limited to the greater of $100 or the amount paid by you to use our Services giving rise to the claim in the twelve (12) months prior to the event that gave rise to the claim.
(c) The limitations set forth in this Section 15 will not limit or exclude liability for the gross negligence, fraud, or intentional misconduct of eDRV or the other eDRV Parties or for any other matters in which liability cannot be excluded or limited under applicable law. Additionally, some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above limitations or exclusions may not apply to you.
To the fullest extent permitted by applicable law, you release eDRV and the other eDRV Parties from responsibility, liability, claims, demands, and/or damages (actual and consequential) of every kind and nature, known and unknown (including claims of negligence), arising out of or related to disputes between users and the acts or omissions of third parties. If you are a consumer who resides in California, you hereby waive your rights under California Civil Code § 1542, which provides: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
18. Dispute Resolution; Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND eDRV TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND eDRV FROM SUING IN COURT OR HAVING A JURY TRIAL. YOU AND eDRV AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. eDRV AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
FOLLOW THE INSTRUCTIONS BELOW IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
(a) Informal Dispute Resolution Prior to Arbitration. For any dispute or claim that you have against eDRV, that eDRV has against you, or that you have or eDRV has arising from or relating to these Terms, our Services, or any aspect of the relationship between you and eDRV as relates to these Terms, our Services, including any privacy or data security claims, (collectively, “Claims”, and each a “Claim”), you and eDRV agree to attempt to first resolve the Claim informally via the following process:
- If you assert a Claim against eDRV, you will first contact eDRV by sending a written notice of your Claim (“Claimant Notice”) to eDRV by certified mail addressed to to 315 Montgomery St. 10th Floor, San Francisco, CA 94104 or by email to email@example.com. The Claimant Notice must (i) include your name, residence address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
- If eDRV asserts a Claim against you, eDRV will first contact you by sending a written notice of eDRV’s Claim (“eDRV Notice”), and each of a Claimant Notice and eDRV Notice, (a “Notice”) to you via email to the primary email address associated with your account. The eDRV Notice must (i) include the name of an eDRV contact and the contact’s email address and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
- If you and eDRV cannot reach an agreement to resolve the Claim within thirty (30) days after you or eDRV receives such a Notice, then either party may submit the Claim to binding arbitration as set forth below. The statute of limitations and any filing fee deadlines shall be tolled for thirty (30) days from the date that either you or eDRV first send the applicable Notice so that the parties can engage in this informal dispute-resolution process.
(b) Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court and any disputes exclusively related to the intellectual property or intellectual property rights of you or eDRV, including any disputes in which you or eDRV seek injunctive or other equitable relief for the alleged unlawful use of your or eDRV’s intellectual property or other infringement of your or eDRV’s intellectual property rights (“IP Claims”), all Claims, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 17(a) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
(c) Federal Arbitration Act. These Terms affect interstate commerce, and the enforceability of this Section 17 will be substantively and procedurally governed by the Federal Arbitration Act, 9 U.S.C. § 1, et seq., to the extent permitted by law. As limited by the FAA, these Terms, and the AAA Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any dispute and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability.
(d) Arbitration Procedure. All Claims must be submitted to the American Arbitration Association (the “AAA”) and will be resolved through binding arbitration before one arbitrator. The AAA administers arbitration pursuant to the due process standards set forth by the AAA and rules set forth by the AAA.
- The then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures, which are available on the AAA’s website (adr.org), as amended by these Terms as follows, will apply to any arbitration between you and eDRV:
- YOU AND EDRV AGREE THAT ANY ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND EDRV ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ACTION. The arbitrator may conduct only an individual arbitration and, except as described below for the additional procedures to govern if twenty-five (25) or more similar or coordinated claims are asserted against eDRV or you by the same or coordinated counsel, may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding, or preside over any proceeding involving more than one individual.
- Any in-person appearances will be held in County of San Francisco, California.
- You and eDRV agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and/or other materials that might be exchanged or the subject of discovery in the arbitration. You and eDRV agree to seek such protection before any such information, documents, testimony, and/or materials are exchanged or otherwise become the subject of discovery in the arbitration.
- The arbitrator’s decision will follow these Terms and will be final and binding. The arbitrator will have authority to award temporary, interim or permanent injunctive relief or relief providing for specific performance of these Terms, but only to the extent necessary to provide relief warranted by the individual claim before the arbitrator. The award rendered by the arbitrator may be confirmed and enforced in any court having jurisdiction thereof. Notwithstanding any of the foregoing, nothing in these Terms will preclude you from bringing issues to the attention of federal, state or local agencies and, if the law allows, they can seek relief against us for you.
- The AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule will apply if twenty-five (25) or more similar claims are asserted against eDRV or against you by the same or coordinated counsel or are otherwise coordinated.
- In addition to the application of the AAA Supplementary Rules for Multiple Case Filings and the AAA Multiple Consumer Case Filing Fee Schedule, you and eDRV understand and agree that when twenty-five (25) or more similar claims are asserted against eDRV or you by the same or coordinated counsel or are otherwise coordinated resolution of your or eDRV’s Claim might be delayed.
- For such coordinated actions, you and eDRV also agree to the following coordinated bellwether process. Counsel for claimants and counsel for eDRV shall each select ten (10) cases (per side) to proceed first in individual arbitration proceedings. The remaining cases shall be deemed filed for purposes of the statute of limitations but not for the purpose of assessing AAA fees. No AAA fees shall be assessed in connection with those cases until they are selected to proceed to individual arbitration proceedings as part of a bellwether process. If the parties are unable to resolve the remaining cases after the conclusion of the initial twenty (20) proceedings, each side shall select another ten (10) cases (per side) to proceed to individual arbitration proceedings as part of a second bellwether process.
- A single arbitrator shall preside over each case. Only one case may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
- This bellwether process shall continue, consistent with the parameters identified above, until all the claims included in these coordinated filings, including your case, are adjudicated or otherwise resolved.
- The statute of limitations and any filing fee deadlines shall be tolled for claims subject to this bellwether process from the time the first cases are selected for a bellwether process until the time your or eDRV’s case is selected for a bellwether process, withdrawn, or otherwise resolved.
- A court shall have authority to enforce this paragraph and, if necessary, to enjoin the mass filing or prosecution of arbitration demands against eDRV or you.
(e) One Year to Assert Claims. To the extent permitted by law, any Claim by you or eDRV relating in any way to these Terms, our Services, or any aspect of the relationship between you and eDRV as relates to these Terms or our Services, must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you and eDRV will not have the right to assert the Claim.
(f) Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted these Terms by providing us with notice of your decision to opt-out via email at firstname.lastname@example.org or by certified mail addressed to eDRV Inc, 315 Montgomery St., 10th Floor, San Francisco, CA 94104. In order to be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 18.
(g) Rejection of Future Arbitration Changes. You may reject any change we make to Section 17 (except address changes) by personally signing and sending us notice within 30 days of the change via email at email@example.com or by certified mail addressed to eDRV Inc, 315 Montgomery St., 10th Floor, San Francisco, CA 94104. If you do, the most recent version of Section 17 before the change you rejected will apply.
(h) Severability. If any portion of this Section 17 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from these Terms; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 17 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 17; and (iii) 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. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 17 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 17 will be enforceable.
(i) Notwithstanding anything to the contrary in the Terms, if you reside in any country outside of the United States, you may bring legal proceedings regarding the Terms either by following the arbitration procedure detailed above in this Section 17 of the Terms or, if given the right by applicable law, by submitting the dispute to an arbitration administrator in the jurisdiction in which you reside. To the extent any proceeding is not subject to arbitration under applicable law, you may submit the dispute to the courts of the jurisdiction in which you reside.
19. Governing Law
Any Claims will be governed by and construed and enforced in accordance with the laws of the State of Delaware, except to the extent preempted by U.S. Federal Law, without regard to conflict of law rules or principles (whether of the State of Delaware or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. If any Claim is not subject to arbitration pursuant to Section 17, then the state and federal courts located in Delaware, will have exclusive jurisdiction. You and eDRV waive any objection to venue in any such courts. If your local law requires that consumer contracts be interpreted subject to local law and enforced in the courts of that jurisdiction, this section may not apply to you only to the extent that local law conflicts with this section.
20. Modifying and Terminating Our Services
We reserve the right to modify our Services or to suspend or terminate providing all or part of our Services at any time; charge, modify, or waive any fees required to use the Services; or offer opportunities to some or all end users of the Services. We may provide you with notice in advance of the suspension or discontinuation of all or part of our Services, such as by sending an email or providing a notice through our Services. All modifications and additions to the Services will be governed by the Terms or Supplemental Terms, unless otherwise expressly stated by eDRV in writing. You also have the right to stop using our Services at any time, and you may terminate these Terms by ceasing use of our Services. We are not responsible for any loss or harm related to your inability to access or use our Services. You will pay in full for your use of the Services up to and including the last day on which we provide the Services to you.
21. Term and Termination
Agreement Term. This Agreement will commence on the date of Signup via the Site, or Start Date as defined in the Order Form and continue until terminated in accordance with Section 20 below
(a) For Convenience. Either You or eDRV may terminate this Agreement for convenience by providing the other party with at least thirty (30) days prior written notice. Notwithstanding the preceding sentence, if there are any Order Form(s) in effect, this Agreement will not terminate until all such Order Form(s) have expired or have been terminated in accordance with the terms therein.
(b) Material Breach. Either party may terminate this Agreement (including all Order Form(s) and Services that are in effect) in the event the other party commits any material breach of this Agreement and fails to remedy such breach within fifteen (15) days of the date of written notice of the breach. If eDRV terminates this Agreement because of a material breach, then eDRV will also close your accounts.
(c) Insolvency. Subject to applicable law, either party may terminate this Agreement immediately by providing written notice in the event of the other party’s liquidation, commencement of dissolution proceedings, or any other proceeding relating to a receivership, failure to continue business, assignment for the benefit of creditors, or becoming the subject of bankruptcy.
If any portion of these Terms other than Section 17 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable: (a) the unenforceable or unlawful provision will be severed from these Terms; (b) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of these Terms; and (c) the unenforceable or unlawful provision may be revised to the extent required to render the Terms enforceable or valid, and the rights and responsibilities of the parties will be interpreted and enforced accordingly, so as to preserve the Terms and the intent of the Terms to the fullest possible extent.
23. Export Control
You are responsible for compliance with United States export controls and for any violation of such controls, including any United States embargoes or other federal rules and regulations restricting exports. You represent, warrant and covenant that you are not: (a) located in, or a resident or a national of, any country subject to a U.S. government embargo or other restriction, or that has been designated by the U.S. government as a “terrorist supporting” country; or (b) on any of the U.S. government lists of restricted end users.
(a) EDRV’s failure to exercise or enforce any right or provision of these Terms will not operate as a waiver of such right or provision. These Terms reflect the entire agreement between the parties relating to the subject matter hereof and supersede all prior agreements, representations, statements, and understandings of the parties. The section titles in these Terms are for convenience only and have no legal or contractual effect. Use of the word “including” will be interpreted to mean “including without limitation.” Except as otherwise provided herein, these Terms are intended solely for the benefit of the parties and are not intended to confer third-party beneficiary rights upon any other person or entity. Communications and transactions between us may be conducted electronically.
(b) If you have a question or complaint regarding the Services, please send us an email. You may also contact us by writing to eDRV Inc. 315 Montgomery St. 10th Floor, San Francisco 94104. Please note that email communications will not necessarily be secure; accordingly, you should not include payment card information or other sensitive information in your email correspondence with us. Further, under California Civil Code Section 1789.3, California consumers are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N-112, Sacramento, California 95834, or by telephone at 1 (800) 952-5210.
(c) We will have the right to reference your name and logo in our marketing materials. You will cooperate as commercially reasonable to assist us in the creation of a case study describing your use of the eDRV’s services.