TERMS AND CONDITIONS OF USE

Last updated: October 7, 2020

These Terms and Conditions of Use (hereinafter “Terms of Use”) apply to your access to and/or use of the websites, microsites, mobile applications, and other online services of APS Investors, LLC d/b/a Advanced Parking Systems.(hereinafter, “we,” “us,” “our,” “ourselves,” “APS”) and our brands and lines of business that expressly adopt, and display or link to, these Terms of Use (collectively, the “Sites”). These Sites include, without limitation, our website located at www.apsparking.net.  Please read these Terms of Use carefully before using any of our Sites and/or Services.

Your access to and use of the Sites and Services (defined below) is conditioned upon your acceptance of and compliance with these Terms of Use. These Terms of Use apply to all visitors, users and others who wish to access or use the Sites and/or Services.

Through the Sites, you may be provided access to a variety of resources and content. These may include: (a) access to our software incorporated into and/or through our Sites (“Software”); (b) any content uploaded to, on or through the Sites, including, but not limited to, data, messages, text, images, photographs, graphics, audio and video (collectively, “Content”); (c) any systems used in connection with the Sites to upload, download, share, email, post, publish, transmit or otherwise access or make available Content, including, without limitation, discussion groups, chat areas, bulletin boards, blogs, etc. (“Systems”); and (d) any other services that we provide and that are used in connection with the Sites (“Site Services”).  Collectively, Software, Content, Systems, and Site Services shall be referred to hereinafter as “Services”.

The following Terms of Use constitute a legal agreement between you and APS concerning your access to and/or use of the Sites and/or Services, or any part thereof.  We may revise the Terms of Use at any time without notice to you. The revised Terms of Use will be effective when posted at this location. Your continued access of the Sites and/or Services after such posting constitutes your consent to be bound by the Terms of Use, as amended.

PLEASE READ THESE TERMS OF USE CAREFULLY.  BY ACCESSING, USING OR VISITING THE SITES AND/OR SERVICES, OR ANY PART THEREOF, YOU AGREE TO FOLLOW AND BE BOUND BY THESE TERMS OF USE AND OUR PRIVACY POLICY. IF YOU DO NOT AGREE TO THESE TERMS OF USE, DO NOT ACCESS, USE OR VISIT THE SITES AND/OR SERVICES, OR ANY PART THEREOF. NOTE: THESE TERMS OF USE CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING A CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS OF USE AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH APS. YOU MAY OPT OUT OF THE BINDING INDIVIDUAL ARBITRATION AND CLASS ACTION WAIVER AS PROVIDED BELOW. ALSO, THESE TERMS OF USE SET FORTH SPECIFIC REMEDIES AVAILABLE TO YOU. PLEASE SEE SECTIONS 18, 19, 20, 22 AND 24, BELOW, TO LEARN MORE.

 

1) User Responsibilities

You are responsible for your use of the Sites and Services, and for any information you provide to, on or through the Sites and/or Services, or any part thereof. You are also responsible for any consequences resulting indirectly or directly from your use of the Sites and/or Services, or any part thereof. In connection with your use of the Sites and/or Services, or any part thereof, you acknowledge and agree that you shall not:

1. copy, reverse engineer, reverse assemble, otherwise attempt to discover the source code, distribute, transmit, display, perform, reproduce, publish, license, create derivative works from, transfer or sell any information obtained through the Sites and/or Services, or any part thereof;
2. access the Sites and/or Services, or any part thereof, by any means other than through the standard industry-accepted or the provided interfaces;
3. transmit any Content and/or make any Posts (as defined in Section 9 below) or otherwise use the Sites and/or Services in any way that: is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, or otherwise objectionable; may invade another’s right of privacy or publicity; is sexually explicit (e.g., pornography) or proposes a transaction of a sexual nature; exploits minors; depicts animal cruelty or extreme violence towards animals; is hateful, or discriminatory or incites hatred against any individual or group; promotes or supports terror or hate groups;
4. impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with such a person or entity;
5. create an Account for someone else unless you have their express permission;
6. attempt to create Account or access or collect information in unauthorized ways;
7. do anything unlawful, misleading, or fraudulent or for an illegal or unauthorized purpose, including, without limitation, providing false or misleading claims about vaccination safety; promoting fraudulent or dubious business schemes or proposes an unlawful transaction; or providing instructions on how to assemble explosive/incendiary devices or homemade/improvised firearms;
8. attempt to buy, sell, or transfer any aspect of your Account (including your username) or solicit, collect, or use login credentials or badges of other users;
9. post or transmit any Content that contains a virus or corrupted data, use the Sites and/or Services, or any part thereof, in any manner that could damage, disable, overburden or impair our servers or networks, or interfere with any other user’s use and enjoyment of the Sites and/or Services, or any part thereof;
10. delete any author attributions, legal notices or proprietary designations or labels associated with any Content that you upload to, on or through the Sites and/or Services, or any part thereof;
11. violate any applicable local, state, national or international law, including, but not limited to, uploading or transmitting any Content, Posts (as defined below) or other materials that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party;
12. manipulate or otherwise display the Sites and/or Services, or any part thereof by using framing or similar navigational technology; or use the Sites and/or Services, of any part thereof, for any purpose that is unlawful or prohibited by these Terms of Use;
13. violate the rights of others, including patent, trademark, trade secret, copyright, privacy, publicity, or other proprietary rights;
14. use technology or other means to access, index, frame or link to the Sites and/or Services (including the Content) that is not authorized by APS (including by removing, disabling, bypassing, or circumventing any content protection or access control mechanisms intended to prevent the unauthorized download, stream capture, linking, framing, reproduction, access to, or distribution of the Services);
15. access the Sites and/or Services (including the Content) through any automated means, including “robots,” “spiders,” or “offline readers” (other than by individually performed searches on publicly accessible search engines for the sole purpose of, and solely to the extent necessary for, creating publicly available search indices – but not caches or archives – of the Sites and/or Services and excluding those search engines or indices that host, promote, or link primarily to infringing or unauthorized content);
16. introduce viruses or any other computer code, files, or programs that interrupt, destroy, or limit the functionality of any computer software or hardware or telecommunications equipment;
17. damage, disable, overburden, impair, or gain unauthorized access to the Sites and/or Services, including APS’s servers, computer network, or user accounts;
18. remove, modify, disable, block, obscure or otherwise impair any advertising in connection with the Sites and/or Services (including the Content);
19. use the Sites and/or Services to advertise or promote services that are not expressly approved in advance in writing by APS;
20. collect information in violation of our Privacy Policy;
21. encourage conduct that would constitute a criminal offense or give rise to civil liability;
22. interfere with any other party’s use and enjoyment of the Sites and/or Services;
23. violate these Terms of Use, the terms of any applicable SaaS Agreement, Subscription Services Agreement and/or Purchase Terms (as those terms are defined below), and/or any other guidelines or policies posted by APS; and/or
24. attempt to do any of the foregoing.

If APS determines in its sole discretion that you are violating any of these Terms of Use, we may (i) notify you, and (ii) use technical measures to block, restrict or terminate your access or use of the Sites and/or Services. In either case, you agree to immediately stop accessing or using in any way (or attempting to access or use) the Sites and Services, and you agree not to circumvent, avoid, or bypass such restrictions, or otherwise restore or attempt to restore such access or use.

2) Access to Services; Accounts

You may be required to create an account (an “Account”) and become a registered user in order to fully access all of the features of the Sites and/or Services.  In such cases, users of our Sites and/or Services may be required to obtain a unique login and password and may be required to agree to the terms of a Software-As-A-Service Agreement or similar policy that we provide as it relates to the Software (a “SaaS Agreement”) and/or a Subscription Services Agreement or similar policy that we provide as it relates to our Site Services (a “Subscription Services Agreement”).  Prior to using the Software and/or Site Services, you must first agree to the terms and conditions governing such use by clicking on the “I AGREE” (or similar prompt) to evidence your acceptance of these Terms of Use as well as any applicable SaaS Agreement and/or Subscription Services Agreement, as the case may be.

Users may also be required to agree to the terms of use for other third-party software, if any, incorporated into the Sites and/or Services (“Third-Party Software”). APS is not responsible in any manner for any Third-Party Software provided on or through the Sites and/or Services or for any changes or updates to such Third-Party Software. APS has no control over, and assumes no responsibility for the content, privacy policies, or practices of any such Third-Party Software. We do not warrant the offerings of any of such Third-Party Software or the entities/individuals that own or operate them.  YOU BEAR ALL RISK ASSOCIATED WITH YOUR ACCESS TO, AND USE OF, SUCH THIRD-PARTY SOFTWARE.

If, to the extent permitted by APS from time to time, you grant express permission to a third party to access or connect to your Account, either through the third party’s product or service or through the Sites and/or Services, you acknowledge that granting permission to a third party to take specific actions on your behalf does not relieve you of any of your responsibilities under these Terms of Use.  You are fully responsible for all acts or omissions of any third party with access to your Account.  Further, you acknowledge and agree that you will not hold APS responsible for, and will indemnify APS from, any liability arising out of or related to any act or omission of any third party with access to your Account.  You may change or remove permissions granted by you to third parties with respect to your Account at any time through the Account settings page on the Site.

3) Age Restriction – Children’s Privacy

We are committed to protecting the privacy of children.  You should be aware that the Sites and Services are not intended or designed to attract children under the age of 13. We do not collect personally identifiable information from any person we actually know is a child under the age of 13.

You must be at least 18 years old to create an Account and/or use the Sites and/or Services. The Sites and Services, and every part thereof, is intended for adults only and is not intended for any children under the age of 18. We do not knowingly allow anyone under the age of 18 to create Accounts that allow access to the secured features of the Sites and/or Services.

4) Privacy

Any information that you provide to us is subject to our Privacy Policy, which governs our collection and use of your information and is incorporated herein by reference. You understand that through your use of the Sites and/or Services you consent to the collection and use of this information, as set forth in the Privacy Policy.

5) Availability, Errors and Inaccuracies

We are constantly updating product and service offerings on the Sites and Services. We may experience delays in updating information on the Sites and/or Services and in our advertising on other web sites. The information found on the Sites and/or Services may contain errors or inaccuracies and may not be complete or current. Products or services may be mispriced, described inaccurately, or unavailable on the Sites and/or Services and we cannot guarantee the accuracy or completeness of any information found on the Sites and/or Services.

We therefore reserve the right to change or update information and to correct errors, inaccuracies, or omissions at any time without prior notice.

6) Contests, Sweepstakes and Promotions

Any contests, sweepstakes, surveys, or other promotions (collectively, “Promotions”) made available through the Sites and/or Service may be governed by rules that are separate from these Terms of Use. If you participate in any Promotions, please review the applicable rules as well as our Privacy Policy. If the rules for a Promotion conflict with these Terms of Use, the Promotion rules will apply.

We may rely on the expertise of third-party service providers to run sweepstakes, contests, surveys, and/or other promotions. Navigation to sites operated by such third-party service providers may be seamless so that it appears you are still using our Sites and/or Services. In these cases, the third-party’s privacy policy may apply to any personal information you elect to provide in connection with any such sweepstake, contest, survey, or other promotion. Therefore, please take note of who is running the sweepstake, contest, survey, or other promotion in question; and the terms, conditions, and policies that apply.

7) Social Networking and Other Third-Party Sites and Services

We may at times facilitate easy access to third-party sites and online services, like social networks and other services that host user-generated content (“Social Networks”). This may include easy click-through access, the ability for you to share content on third-party services, or even “single sign-on” to these services. The third-party’s privacy policy applies to any information or content you provide through these services related to arising out of Social Networks.

APS has no control over, and assumes no responsibility for the content, privacy policies, or practices of any such Social Networks. We do not warrant the offerings of any of such Social Networks or the entities/individuals that own or operate them.  YOU BEAR ALL RISK ASSOCIATED WITH YOUR ACCESS TO, AND USE OF, SUCH SOCIAL NETWORKS.

8) Company Content; User Material and Posts

Users of the Sites and/or Services may be able to access and/or utilize certain features that we offer as part of our Sites and/or Services, including, but not limited to, providing online Content which gives users the opportunity to select from various offerings of articles, periodicals and other informational materials (collectively, the “Company Content”).

Use of the Company Content is subject to you: (i) registering an Account; (ii) complying with these Terms of Use and our Privacy Policy as well as any applicable SaaS Agreement and/or Subscription Services Agreement; and (iii) having Internet access and a computer, mobile device, streaming media player, or other device that meets the system and compatibility requirements that we establish from time to time (each, a “Compatible Device”). Features and functionalities that we make available through the Sites and/or Services may differ by Compatible Device. For a current list of Compatible Devices, please contact us – please see Section 32 (“Contact Us”) below.

Usage Rules and Limitations.  In addition to the foregoing rules and limitations set forth in this Section 9, use of the Company Content must be personal and for a non-commercial purpose. You may not either directly or through the use of any device, software, internet site, web-based service, or other means remove, alter, bypass, avoid, interfere with, or circumvent any copyright, trademark, or other proprietary notices marked on the Company Content or any digital rights management mechanism, device, or other content protection or access control measure associated with the Company Content including geo-filtering mechanisms. You may not either directly or through the use of any device, software, internet site, web-based service, or other means copy, record, download, stream capture, reproduce, duplicate, archive, distribute, upload, publish, modify, translate, broadcast, perform, display, sell, or transmit or retransmit the Company Content unless expressly permitted by APS in writing. You may not incorporate the Company Content into, or stream or retransmit the Company Content via, any hardware or software application or make it available via frames or in-line links unless expressly permitted by APS in writing. Furthermore, you may not create, recreate, distribute or advertise an index of any significant portion of the Company Content unless authorized by APS. You may not build a business utilizing the Company Content, whether or not for profit. The Company Content covered by these restrictions includes without limitation any text, graphics, layout, interface, logos, photographs, audio and video materials, and stills. In addition, you are strictly prohibited from creating derivative works or materials that otherwise are derived from or based on in any way the Company Content, including montages, mash-ups and similar videos, wallpaper, desktop themes, greeting cards, and merchandise, unless expressly permitted by APS in writing. This prohibition applies even if you intend to give away the derivative materials free of charge.

Content Subjectivity.  The Company Content tends to elicit varying reactions among different people. You may come across Content that you find offensive, indecent, explicit or objectionable. Also, Company Content types, genres, categories, and descriptions are provided as suggestions to help with navigation, and APS does not guarantee that you will agree with them. You acknowledge these risks.

Ownership. You agree that APS owns and retains all rights to the Company Content. You further agree that the Company Content you access and view is owned or controlled by APS and/or APS’s affiliates, partners and/or content programmers. The Company Content are protected by copyright, trademark, and other intellectual property laws.

Third Party Products. We may offer special promotional plans, products, services or memberships offered by third parties in conjunction with the provision of their own products and services. We are not responsible for the products and services provided by such third parties.

Your Posts. As part of the Services, users may have an opportunity to publish, transmit, submit, or otherwise post (collectively, “Post”) reviews, comments, or other materials (collectively, “User Material”). In order to keep the Services enjoyable for all of our users, you must adhere to the rules below, as well as additional rules applicable to any APS-hosted site.

Please choose carefully the User Material that you Post. Please limit yourself to User Material directly relevant to the Services. Moreover, you must not Post User Material that: (i) contains Unsuitable Material (as defined below in this Section 9); (ii) improperly claims the identity of another person; and/or (iii) otherwise violates these Terms of Use and/or any applicable SaaS Agreement or Subscription Services Agreement. Please note that if you Post User Material on APS using a third-party service, such as a social network or email provider, your first and last name or other user ID may appear to the public each time you Post. We advise that you do not, and you should also be careful if you decide to, Post additional personal information, such as your email address, telephone number, or street address.

You must be, or have first obtained permission from, the rightful owner of any User Material you Post. By submitting User Material, you represent and warrant that you own the User Material or otherwise have the right to grant APS the license provided below. You also represent and warrant that the Posting of your User Material does not violate any right of any party, including privacy rights, publicity rights, and intellectual property rights. In addition, you agree to pay for all royalties, fees, and other payments owed to any party by reason of your Posting User Material. APS will remove all User Material if we are properly notified that such User Material infringes on another person’s rights. You acknowledge that APS does not guarantee any confidentiality with respect to any User Material.

By Posting User Material, you are not forfeiting any ownership rights in such material to APS. After Posting your User Material, you continue to retain all of the same ownership rights you had prior to Posting. By Posting your User Material, you grant APS a limited license to use, display, reproduce, distribute, modify, delete from, add to, prepare derivative works of, publicly perform, and publish such User Material through the Sites and Services and on other platforms and services worldwide, including on or through any Access Point, in perpetuity, in any media formats and any media channels now known or hereinafter created. Unless otherwise expressly agreed by you and APS in writing, the license you grant to APS is non-exclusive (meaning you are not prohibited by us from licensing your User Material to anyone else in addition to APS), fully-paid, royalty-free (meaning that APS is not required to pay you for the use of your User Material), and sublicensable (so that APS is able to use its affiliates, subcontractors, and other partners, such as internet content delivery networks, to provide the Services). By Posting your User Material, you also hereby grant each user of the Sites and Services a non-exclusive, limited license to access your User Material, and to use, display, reproduce, distribute, and perform such User Material as permitted through the functionality of the Services and under these Terms of Use.

Third Party Posts. Despite these restrictions, please be aware that some material provided by users may be objectionable, unlawful, inaccurate, or inappropriate. APS does not endorse any User Material, and User Material that is Posted does not reflect the opinions or policies of APS. We reserve the right, but have no obligation, to monitor User Material and to restrict or remove User Material that we determine, in our sole discretion, is inappropriate or for any other business reason, as permitted by law. In no event does APS assume any responsibility or liability whatsoever for any User Material, and you agree to waive any legal or equitable rights or remedies you may have against APS with respect to such User Material. You can help us tremendously by notifying us of any inappropriate User Material you find by emailing aps@apsparking.net (subject line: “Inappropriate User Material”).

Unsolicited Submissions. It is APS’s policy not to accept unsolicited submissions, including scripts, story lines, articles, fan fiction, characters, drawings, information, suggestions, ideas, or concepts. APS’s policy is to delete any such submission without reading it. Therefore, any similarity between an unsolicited submission and any elements in any APS creative work, including a film, series, story, title, or concept, would be purely coincidental.

Unsuitable Material.  For the purposes of these Terms of Use, the term “Unsuitable Material” includes Content that: (i) is unlawful, infringing, pornographic, obscene, defamatory, libelous, threatening, harassing, vulgar, indecent, profane, hateful, racially or ethnically offensive, encourages criminal conduct, gives rise to civil liability, violates any law, rule, or regulation, infringes any right of any third party including intellectual property rights, or is otherwise inappropriate or objectionable to APS (in APS’s sole discretion), or (ii) links to infringing or unauthorized content (collectively, “Unsuitable Material”).

9) Accounts and Password Security

When you create an Account with us, you guarantee, represent and warrant that you are above the age of 18, and that the information you provide us is accurate, complete, and current at all times.  You further agree to maintain and promptly update your registration information to keep it true, accurate, current and complete.  Inaccurate, incomplete, or obsolete information may result in the immediate termination of your Account on the Sites.

As a registered user, you must choose a unique username and password. You may not use as a username the name of another person or entity or that is not lawfully available for use, a name or trademark that is subject to any rights of another person or entity other than you, without appropriate authorization. You may not use as a username any name that is offensive, vulgar or obscene.

You are responsible for maintaining the confidentiality of your Account and password, including, but not limited to, the restriction of access to your computer and/or Account, and maintaining adequate security and control of any and all IDs, passwords, hints, personal identification numbers (PINs), API keys or any other codes that you use to access the Sites and/or Services.  Any loss or compromise of the foregoing information and/or your personal information may result in unauthorized access to your Account by third-parties and the loss or theft of any associated accounts, including your linked bank account(s) and credit card(s).  You are responsible for keeping your email address and telephone number up to date in your account profile in order to receive any notices or alerts that we may send you.  We assume no responsibility for any loss that you may sustain due to compromise of account login credentials due to no fault of APS and/or failure to follow or act on any notices or alerts that we may send to you.  In the event you believe your Account information has been compromised, contact us immediately – please see Section 32 (“Contact Us”) below.

You are solely responsible for the activities of anyone accessing the Sites and/or Services using your password and/or Account, even if the activities were not authorized by you. You agree to accept responsibility for any and all activities or actions that occur under your Account and/or password, whether your password is with our Sites and/or Service or a third-party service. You must notify us immediately upon becoming aware of any breach of security or unauthorized use of your Account and/or password. In addition, if you believe or suspect your Account and/or password have been compromised, you must promptly change your password using the functionality provided on the Sites.

We reserve the right to refuse service, terminate Accounts, remove or edit content, or cancel orders in our sole discretion.

10) Security

We have no way of knowing of, and will not be responsible or liable for, any access to the Sites and/or Services, or any part thereof, that is achieved through improper means. In addition, individuals using our Sites and/or Services, or any part thereof, must understand that the Internet is inherently insecure and no website operator can guarantee that a website is secure. We do not warrant that the Sites or Services, or any part thereof, are “hackerproof.”  You are solely responsible for maintaining the confidentiality of any user name and password you use to access the Sites and/or Services and are fully responsible for all activities that occur under your password or Account. You agree (i) to notify us immediately of any unauthorized use of your password or any other breach of security and (ii) to ensure that you log out of your Account at the end of each session. We cannot and will not be liable for any loss or damage arising from your failure to comply with this provision.

11) Mobile Website; Mobile Application

Some of our Sites and/or Services may be made available in a mobile-friendly format, as well (our “Mobile Site”). APS may also make available one or more mobile applications (the “Mobile Application”) to access the Sites and/or Services via a mobile device.  All mobile phones that have Internet access can make use of the Mobile Site and/or Mobile Application, if any. Users with mobile phones that have this access also have the option to view the full html website that is available on your computer. Prices for all products and services, including any special pricing and/or promotions, exclude all applicable taxes and telecommunication charges, unless otherwise indicated. To the extent permissible by law, you agree to be responsible for any such applicable taxes and telecommunication charges.

To use the Mobile Site and/or a Mobile Application, you must have a mobile device that is compatible with the mobile service.  APS does not warrant that the Mobile Site or any Mobile Application will be compatible with your mobile device.  APS hereby grants to you a non-exclusive, non-transferable, revocable license to use an object code copy of the Mobile Application for one registered account on one mobile device owned or leased solely by you, for your personal use.  You may not:  (i) modify, disassemble, decompile or reverse engineer the Mobile Site or Mobile Application, except to the extent that such restriction is expressly prohibited by law; (ii) rent, lease, loan, resell, sublicense, distribute or otherwise transfer the Mobile Site or Mobile Application to any third-party or use the Mobile Site or Mobile Application to provide time sharing or similar services for any third-party; (iii) make any copies of the Mobile Site or Mobile Application; (iv) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Mobile Site or Mobile Application, features that prevent or restrict use or copying of any content accessible through the Mobile Site or Mobile Application, or features that enforce limitations on use of the Mobile Site or Mobile Application; or (v) delete the copyright and other proprietary rights notices on the Mobile Site and/or Mobile Application.  You acknowledge that APS may from time to time issue upgraded versions of the Mobile Site and/or Mobile Application, and may automatically electronically upgrade the version of the Mobile Site and/or Mobile Application that you are using on your mobile device.  You consent to such automatic upgrading on your mobile device, and agree that these Terms of Use will apply to all such upgrades.  The foregoing license grant is not a sale of the Mobile Site or Mobile Application or any copy thereof, and APS and its third-party licensors or suppliers retain all right, title, and interest in and to the Mobile Site and Mobile Application (and any copies of the Mobile Site and Mobile Application).  Standard carrier data charges may apply to your use of the Mobile Site and/or Mobile Application.

The following additional terms and conditions apply with respect to any Mobile Application that APS provides to you designed for use on an Apple iOS-powered mobile device (an “iOS App”):

• You acknowledge that these Terms of Use are between you and APS only, and not with Apple, Inc. (“Apple”).
• Your use of our iOS App, if any, must comply with Apple’s then-current App Store Terms of Service.
• APS, and not Apple, is solely responsible for our iOS App, if any, and the services and content available thereon.  Apple has no obligation or liability to you with respect to our iOS App, if any, or these Terms of Use.
• You agree to comply with all applicable third-party terms of agreement when using our iOS App, if any (e.g., you must not be in violation of your wireless data service terms of agreement when using our iOS App, if any).
• You acknowledge and agree that Apple is a third-party beneficiary to these Terms of Use as they relate to your license of our iOS App, if any. Upon your acceptance of these Terms of Use, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as they relate to your license of our iOS App, if any, as a third-party beneficiary thereof.

The following additional terms and conditions apply with respect to any Mobile Application that APS provides to you designed for use on an Android-powered mobile device (an “Android App”):

• You acknowledge that these Terms of Use are between you and APS only, and not with Google, Inc. (“Google”).
• Your use of our Android App, if any, must comply with Google’s then-current Google Play Terms of Service.
• Google is only a provider of the Google Play where you obtained the Android App, if any. APS, and not Google, is solely responsible for our Android App, if any, and the services and content available thereon.  Google has no obligation or liability to you with respect to our Android App, if any, or these Terms of Use.
• You agree to comply with all applicable third-party terms of agreement when using our Android App, if any (e.g., you must not be in violation of your wireless data service terms of agreement when using our Android App, if any).
• You acknowledge and agree that Google is a third-party beneficiary to these Terms of Use as they relate to your license of our Android App, if any. Upon your acceptance of these Terms of Use, Google will have the right (and will be deemed to have accepted the right) to enforce these Terms of Use against you as they relate to your license of our Android App, if any, as a third-party beneficiary thereof.

In addition to the foregoing, you further represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) You are not listed on any U.S. Government list of prohibited or restricted parties.

IN NO EVENT WILL APS BE RESPONSIBLE FOR ANY TELECOMMUNICATION CHARGES ASSOCIATED WITH USE OF ANY OF THE SITE AND/OR SERVICES, INCLUDING, WITHOUT LIMITATION, A MOBILE SITE AND/OR A MOBILE APPLICATION.

12) Intellectual Property

The Sites, Software, Systems, Site Services and Content provided by APS (including, without limitation, the Company Content), including all of the software and code comprising or used to operate the Sites, Software, Systems, Site Services and all Content provided by APS (including, without limitation, the Company Content) are and shall remain the exclusive property of APS or third parties who have licensed their rights to APS. No right, title or interest in the Sites, Software, Systems, Site Services or any Content provided by APS (including, without limitation, the Company Content) is transferred to you under these Terms of Use or any applicable SaaS Agreement or Subscription Services Agreement. APS does not claim ownership of the copyrights in any other content that is not included in the Content we provide.

The Sites, Software, Systems, Site Services and all Content provided by APS (including, without limitation, the Company Content) are each protected by copyright, trademark, and other laws of both the United States and foreign countries. Our trademarks and trade dress may not be used in connection with any product or service without the prior written consent of APS. All trade names, trademarks and service marks displayed on the Sites, Software, Systems, Site Services and/or Content provided by APS (including, without limitation, the Company Content) are the registered or unregistered trademarks of APS, or its licensors, or other third parties (collectively, the “Trademarks”) and are protected by U.S. and international trademark laws and treaties. You may not use any Trademarks or other APS intellectual property displayed on the Sites or in the Services without the prior express written permission of APS.  All rights, title and interest not expressly granted with respect to the Sites and/or Services are reserved by APS. All such Content (including, without limitation, the Company Content) is provided on an “As Is” and “As Available” basis, and APS reserves the right to terminate the permissions granted to you by these Terms of Use and your use of the Sites and/or Services at any time. The Content posted on or through the Website by any person, regardless of that person’s affiliation or non-affiliation with APS, reflect only the opinions of the person posting the Content and not the opinions or views of APS or their affiliates, agents, employees, managers, officers, owners or sponsors.

13) Third-Party Sites

Our Sites and/or Services may contain or provide links to third party websites or resources and/or access to advertisements, contact, materials, products or services of third parties, including, without limitation, users, advertisers, affiliates and sponsors of the Sites and/or Services as well as third-party service providers running Promotions and Social Networks (collectively, “Third-Party Sites”).  Such Third-Party Sites are not owned, endorsed or controlled by APS.  The inclusion of any link or access does not imply an endorsement by us of the Third-Party Sites.

If we provide links or pointers to other websites or destinations, you should not infer or assume that APS operates, controls, or is otherwise connected with these other websites or destinations.  When you click on a link within the Sites and/or Services, we will not warn you that you have left the Sites and/or Services and are subject to the terms and conditions (including privacy policy) of another website or destination.   In some cases, it may be less obvious than others that you have left the Sites and/or Services and reached another website or destination.  Please be careful to read the terms of use and privacy policy of any other website or destination before you provide any information or engage in any transactions.  These Terms of Use do not govern your use of another website or destination.

APS is not responsible in any manner for any Third-Party Sites provided on or through the Sites and/or Services or for any changes or updates to such Third-Party Sites. APS has no control over, and assumes no responsibility for the content, privacy policies, or practices of any such Third-Party Sites, even if such Third-Party Site(s) is operated by a company affiliated or otherwise connected with APS. We do not endorse or warrant the offerings of any of these Third-Party Sites or the entities/individuals that own or operate them. By using the Sites and/or Services, you acknowledge and agree that APS is not responsible or liable to you for any content or other materials hosted and served from any website or destination other than the Sites.

Furthermore, APS takes no responsibility for and does not endorse any third-party advertisements or any third-party material available on the Sites and/or Services, nor do we take any responsibility for the products or services provided by advertisers.  Any dealings you have with advertisers while using the Sites and/or Services, including through engaging with interactive advertisements, are between you and the advertiser, and you agree that APS is not liable for any loss or claim that you may have against an advertiser.  If you provide any confidential or personal information or engage in any transaction through an advertisement, APS is not responsible for such information or transaction and we encourage you to read the terms of use and privacy policy of the advertiser or other party collecting such information or engaging in such transaction.

You acknowledge and agree that APS 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 Third-Party Sites.  YOU BEAR ALL RISK ASSOCIATED WITH YOUR ACCESS TO, AND USE OF, SUCH THIRD-PARTY SITES.

We strongly advise you to read the terms and conditions and privacy policies of any Third-Party Sites or services that you visit.

14) Copyright Policy; Digital Millennium Copyright Act (“DMCA”)

DMCA Claim

APS respects the intellectual property rights of others and expects users of the Sites and/or Services to do the same. We will respond to notices of alleged copyright infringement that comply with applicable law and are properly provided to us. If you believe that your Content has been copied in a way that constitutes copyright infringement, you must contact us with the following information:

1. a physical or electronic signature of the copyright owner or a person authorized to act on their behalf;
2. identification of the copyrighted work claimed to have been infringed;
3. identification of the Content that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the Content;
4. your contact information, including your address, telephone number, and an email address;
5. a statement by you that you have a good faith belief that use of the Content in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
6. a statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.

For notice of claims of copyright or trademark infringement on the Sites and/or Services, please contact us – please see Section 32 (“Contact Us”) below.

Please also note that for copyright infringements under Section 512(f) of the Copyright Act, any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.

Submitting a DMCA Counter-Notification

We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a valid DMCA take-down notice that we have received.  If you receive such notice from us, you may provide us with a counter-notification in writing to APS designated agent that includes all of the following information:

1. Your physical or electronic signature;
2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
3. A statement from you under the penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which APS may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.

Termination of Repeat Infringers

We reserve the right, in our sole discretion, to terminate the Account or access of any user of our Sites and/or Service who is the subject or repeated DMCA or other infringement notifications.

15) Monitoring

Notwithstanding the foregoing or anything herein to the contrary, APS reserves the right to review the Sites and/or Services and to monitor all use of and activity on the Sites and/or Services, and to remove, alter, edit or choose not to make available on or through the Sites and/or Services any Content, in whole or in part, in its sole discretion. We may remove Content that is confidential or proprietary to a third party without that third party’s permission; provided, however, that in no event shall APS be considered a “publisher” or a “speaker,” as defined in Section 230(c) of the Communications Decency Act, codified at 47 U.S.C. §230 et. seq., of any such Content.

16) Termination

We may terminate or suspend your Account and/or terminate or otherwise bar your access to the Sites and/or Services, or any part thereof, immediately, without prior notice or liability, under our sole discretion, for any reason whatsoever and without limitation, including but not limited to a breach of these Terms of Use.

If you wish to terminate your Account, you may simply discontinue using the Services.

All provisions of these Terms of Use which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

17) LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES, SHALL APS, OR ITS SPONSORS, AFFILIATES, LICENSORS, OR SERVICE PROVIDERS, OR ANY OF ITS OR THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, MANAGERS, OFFICERS, OWNERS OR SPONSORS (COLLECTIVELY, THE “RELEASED PARTIES”), BE LIABLE TO YOU OR ANY THIRD PARTY CLAIMING THROUGH YOU FOR ANY LOSSES OR DAMAGES (WHETHER ACTUAL OR CONSEQUENTIAL) ARISING OUT OF OR IN CONNECTION WITH THE SITES AND/OR SERVICES, ITS CONTENT, OR ANY PRODUCTS OR OTHER SERVICES MADE AVAILABLE THROUGH THE  SITES AND/OR SERVICES, OR YOUR USE OF OR INABILITY TO USE THE SITES AND/OR SERVICES, INCLUDING ANY LOSS OR DAMAGE DUE TO VIRUSES THAT MAY AFFECT YOUR COMPUTER EQUIPMENT, SOFTWARE, DATA OR OTHER PROPERTY ON ACCOUNT OF YOUR USE OF THE SITES AND/OR SERVICES, OR ANY PART THEREOF. THIS IS A COMPREHENSIVE LIMITATION OF LIABILITY THAT APPLIES TO ALL LOSSES AND DAMAGES OF ANY KIND (WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, INCOME OR PROFITS), WHETHER THE CLAIM IS BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR ANY OTHER LEGAL THEORY, EVEN IF AN AUTHORIZED REPRESENTATIVE OF APS OR ANOTHER RELEASED PARTY HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND WITHOUT REGARD TO THE SUCCESS OR EFFECTIVENESS OF OTHER REMEDIES. IF ANY PART OF THIS LIMITATION OF LIABILITY IS FOUND TO BE INVALID, ILLEGAL OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF APS, ITS SPONSORS, AFFILIATES, LICENSORS, AND SERVICE PROVIDERS, AND ITS AND THEIR RESPECTIVE AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, MANAGERS, OFFICERS, OWNERS AND SPONSORS, UNDER SUCH CIRCUMSTANCES TO YOU OR ANY PERSON OR ENTITY CLAIMING THROUGH YOU FOR LIABILITIES THAT OTHERWISE WOULD HAVE BEEN LIMITED SHALL NOT EXCEED ONE HUNDRED DOLLARS ($100.00).

18) EXPRESS DISCLAIMER OF WARRANTIES

YOUR USE OF THE SITES AND/OR SERVICES, OR ANY PART THEREOF, IS AT YOUR SOLE RISK. APS MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER WITH RESPECT TO THE SITES AND/OR SERVICES, ANY CONTENT ON THE SITES AND/OR SERVICES, OR ANY PRODUCT OR SERVICE PROMOTED THROUGH THE SITES AND/OR SERVICES. THE SITES AND SERVICES AND ALL OF ITS CONTENT ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, APS DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, ARISING BY STATUTE, CUSTOM OR COURSE OF DEALING, COURSE OF PERFORMANCE OR IN ANY OTHER WAY, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY, AND FITNESS FOR A PARTICULAR PURPOSE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, APS DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES AS TO THE ACCURACY, CORRECTNESS, RELIABILITY, COMPLETENESS OR USEFULNESS OF ANY CONTENT APPEARING ON OR THROUGH THE SITES AND/OR SERVICES.

APS, ITS SUBSIDIARIES, AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT A) THE SITES AND/OR SERVICES, OR ANY PART THEREOF, WILL FUNCTION UNINTERRUPTED, SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; B) ANY ERRORS OR DEFECTS ASSOCIATED WITH THE SITES AND/OR SERVICES, OR ANY PART THEREOF, WILL BE CORRECTED; C) THE SITES AND/OR SERVICES, OR ANY PART THEREOF, IS/ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR D) THE RESULTS OF USING THE SITES AND/OR SERVICES, OR ANY PART THEREOF, WILL MEET YOUR REQUIREMENTS.

19) EXCLUSIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. ACCORDINGLY, SOME OF THE THESE LIMITATIONS OF LIABILITY MAY NOT APPLY TO YOU. NOTHING IN THESE TERMS OF USE SHALL LIMIT OR EXCLUDE LIABILITY FOR LOSSES OR DAMAGES WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED BY APPLICABLE LAW.

20) INDEMNIFICATION

YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS APS AND THE RELEASED PARTIES FROM ANY AND ALL CLAIMS, DEMANDS, LOSSES AND/OR DAMAGES (WHETHER ACTUAL OR CONSEQUENTIAL), OF EVERY KIND AND NATURE, WHETHER NOW KNOWN OR UNKNOWN, SUSPECTED OR UNSUSPECTED, DISCLOSED OR UNDISCLOSED (COLLECTIVELY REFERRED TO HEREIN AS “CLAIMS”) ARISING OUT OF OR RELATED TO: (A) YOUR ACCESS AND/OR USE OF OR RELIANCE ON THE SITES AND/OR SERVICES, OR ANY PART THEREOF, OR ANY INFORMATION MADE AVAILABLE ON OR THROUGH THE SITES AND/OR SERVICES; (B) YOUR VIOLATION OF THESE TERMS OF USE OR ANY ADDITIONAL RULES, GUIDELINES OR TERMS OF USE POSTED FOR A SPECIFIC AREA OF THE SITES AND/OR SERVICES OR CONTENT PROVIDED ON OR THROUGH THE SITES AND/OR SERVICES; OR (C) YOUR VIOLATION OR INFRINGEMENT OF ANY THIRD PARTY RIGHTS, INCLUDING INTELLECTUAL PROPERTY RIGHTS AND PRIVACY RIGHTS.

21) STATUTE OF LIMITATIONS

YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE SITES AND/OR SERVICES, OR ANY PART THEREOF, INCLUDING ANY SERVICE PROVIDED BY, ON OR THROUGH THE SITES AND/OR SERVICES, OR THE TERMS OF USE, MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

22) Governing Law and Venue

These Terms of Use shall be governed and construed in accordance with the laws of the State of California, United States, without regard to its conflict of law provisions.

23) Dispute Resolution; Arbitration of Claims

Most user concerns can be resolved quickly and to a user satisfaction by contacting us – please see Section 32 (“Contact Us”) below. This Section 24 (this “Arbitration Provision”) facilitates the prompt and efficient resolution of any Disputes (as defined below) that may arise between you and APS.  Arbitration is a form of private dispute resolution in which persons with a dispute waive their rights to file a lawsuit, to proceed in court and to a jury trial, and instead submit their disputes to a neutral third person (or arbitrator) for a binding decision.  You have the right to opt-out of this Arbitration Provision (as explained below), which means you would retain your right to litigate your disputes in a court, either before a judge or jury.

PLEASE READ THIS ARBITRATION PROVISION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. WE WANT YOU TO KNOW HOW IT AFFECTS YOUR RIGHTS.   

This Arbitration Provision provides that all Disputes (as defined below) between you and APS shall be resolved by binding arbitration. Arbitration replaces the right to go to court.  In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions).  Except as otherwise provided, entering into these Terms of Use constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury.  There is no judge or jury in arbitration, and court review of an arbitration award is limited.  The arbitrator must follow these Terms of Use and can award the same damages and relief as a court (including attorney’s fees). For the purposes of this Arbitration Provision and these Terms of Use, the term “Dispute” means any claim, controversy, dispute, lawsuit, action or proceeding arising out of or relating to (i) these Terms of Use (including formation, performance, interpretation or breach of them, and including the scope and enforceability of this Arbitration Provision), or any other legal or equitable cause of action or claim for relief, and includes the validity, enforceability or scope of this Arbitration Provision (with the exception of the enforceability of the Class Action Waiver clause below); (ii) the Privacy Policy, which is incorporated in these Terms of Use; (iii) any aspect of our relationship with each other, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence); (iv) any use of and/or access to the Sites and/or Services, or any part thereof; and (v) any products or services sold or distributed on or through the Sites and/or Services.  “Disputes” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as our licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.

WE AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS ARBITRATION PROVISION.

Pre-Arbitration Claim Resolution

For all Disputes, whether pursued in court or arbitration, you must first give APS an opportunity to resolve the Dispute.  You must commence this process by mailing written notification to APS, 28494 Westinghouse Place, Suite 114, Santa Clarita, CA 91355.  That written notification must include (1) your name, (2) your address, (3) a written description of your claim, and (4) a description of the specific relief you seek.  If APS does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration.  You may pursue your Dispute in a court only under the circumstances described below.

Exclusions from Arbitration/Right to Opt-Out

Notwithstanding the above, you or APS may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THESE TERMS OF USE (the “Opt-Out Deadline”).  You may opt out of this Arbitration Provision by mailing written notification to APS, 28494 Westinghouse Place, Suite 114, Santa Clarita, CA 91355. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with APS through arbitration.  Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with APS.  Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court. 

Arbitration Procedures

If this Arbitration Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or APS may initiate arbitration proceedings.  The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator.  The arbitration shall be commenced as an individual arbitration only, and shall in no event be commenced as a class arbitration or a consolidated or representative action or arbitration.  All issues shall be for the arbitrator to decide, including the scope of this Arbitration Provision.

For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply.  In either instance, the AAA’s Optional Rules For Emergency Measures Of Protection shall apply.  The AAA rules are available at www.adr.org or by calling 1-800-778-7879.  For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols For Domestic, Commercial Cases will apply.  The JAMS rules are available at www.jamsadr.com or by calling 1-800-352-5267.  This Arbitration Provision governs in the event it conflicts with the applicable arbitration rules.  Under no circumstances will class action or representative action procedures or rules apply to the arbitration.

Because the Sites, Services and/or these Terms of Use concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes.  However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.

Subject to the Pre-Arbitration Claim Resolution section, above, the demand for arbitration shall be made by any party hereto within a reasonable time after the Dispute or other matter in question has arisen, and in any event shall not be made after the date when institution of legal proceeding, based on such Dispute or other matter in question, would be barred by the applicable statute of limitations. Discovery issues shall be decided by the arbitrator. Post-hearing briefs shall be permitted. The arbitrator shall render a decision within twenty (20) days after the conclusion of the hearing(s). In reaching a decision, the arbitrator shall have no authority to grant an award or remedy any greater than that which would be available from a court under the statutory or common law theory asserted. The arbitrator shall issue a written opinion that includes the factual and legal basis for any decision and award. The arbitrator shall apply the substantive law (and the law of remedies, if applicable) of California or federal law, or any of them, as applicable to the claim(s) asserted. Judgment on the award may be entered in any court of competent jurisdiction.

The parties may seek, from a court of competent jurisdiction, provisional remedies or injunctive relief in support of their respective rights and remedies hereunder without waiving any right to arbitration. However, the merits of any action that involves such provisional remedies or injunctive relief, including, without limitation, the terms of any permanent injunction, shall be determined by arbitration under this Arbitration Provision. Judgment upon the award rendered by the arbitrator may be entered in any court having jurisdiction thereof. The arbitrator shall allocate all costs and expenses of the arbitration (including legal and accounting fees and expenses of the respective parties) to the parties in the proportions that reflect their relative success on the merits (including the successful assertion of any defenses).

Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding.  The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party or if required by applicable law.  Such award will be final and binding on the parties, except for any right of appeal provided by the FAA or other applicable law and may be entered in any court having jurisdiction over the parties for purposes of enforcement.

Location of Arbitration – The arbitration hearings will be held in Los Angeles County, California.

Payment of Arbitration Fees and Costs – You and APS agree to split the costs of arbitration equally.  You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys and/or expert witnesses.  Fees and costs may be awarded as provided pursuant to applicable law.  In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with APS as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.

EACH PARTY HERETO IRREVOCABLY WAIVES, TO THE FURTHEST EXTENT ALLOWED BY APPLICABLE LAW, ANY OBJECTION TO THE LAYING OF VENUE OF ANY SUCH ARBITRATION PROCEEDING AND IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH ARBITRATION PROCEEDING HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.

Jury Waiver

TO THE FURTHEST EXTENT ALLOWED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED IN THIS ARBITRATION PROVISION, YOU AND APS HEREBY IRREVOCABLY WAIVE ANY RIGHT EITHER OF US MAY HAVE TO A TRIAL BY JURY IN ANY LEGAL PROCEEDING DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THESE TERMS OF USE AND/OR ANY DISPUTE (WHETHER BASED ON CONTRACT, TORT OR ANY OTHER THEORY).

 

Class Action Waiver

TO THE FURTHEST EXTENT ALLOWED BY APPLICABLE LAW, AND EXCEPT AS PROVIDED IN THIS ARBITRATION PROVISION, YOU AND APS FURTHER AGREE TO ARBITRATE IN EACH OF OUR INDIVIDUAL CAPACITIES ONLY, NOT AS A REPRESENTATIVE OR MEMBER OF A CLASS, AND EACH OF US EXPRESSLY WAIVES ANY RIGHT TO FILE A CLASS ACTION OR SEEK RELIEF ON A CLASS BASIS.  Further, unless both you and APS agree otherwise, the arbitrator may not consolidate more than one person’s claims with your claims, and may not otherwise preside over any form of a representative or class proceeding (such as a class action, consolidated action, representative action, or private attorney general action) unless both you and APS specifically agree to do so in writing following initiation of the arbitration.  If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you.  Neither you, nor any other user of the Sites and/or Services can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.

Severability

If any clause within this Arbitration Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Arbitration Provision, and the remainder of this Arbitration Provision will be given full force and effect.  If the Class Action Waiver clause is found to be illegal or unenforceable, the remaining terms and conditions of this Arbitration Provision will remain enforceable.

Continuation

This Arbitration Provision shall survive the termination of your service with APS or its affiliates, including, without limitation, cancellation of your Account and/or membership, if any, with the Sites and/or Services and/or your use of and/or access to the Sites and/or Services.  Notwithstanding any provision in these Terms of Use to the contrary, we agree that if APS makes any change to this Arbitration Provision (other than a change to the notice address), you may reject any such change and require APS to adhere to the present language in this Arbitration Provision if a Dispute between us arises.

If you’re not sure what all of this means, of course please feel free to ask an attorney.

24) Compliance with Laws

You shall comply with all applicable law when you use the Sites and/or Services.

25) Amendment and Waiver

Any amendment or modification to these Terms of Use, or waiver of the rights and obligations under these Terms of Use, must be a writing signed by APS or an authorized APS officer. The failure of APS to exercise or enforce any rights or provisions in these Terms of Use shall not constitute a waiver of such right or provision unless acknowledged and agreed to by APS in writing.

26) Assignment

You may not assign these Terms of Use without APS’s prior written approval. APS may assign these Terms of Use without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of APS’s equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this Section shall be void. No joint venture, partnership, employment, or agency relationship exists between you, APS or any third-party service provider as a result of these Terms of Use or use of the Sites and/or Services. These Terms of Use shall be binding upon and inure to the benefit of the parties’ successors and permitted assigns.

27) Severability

If any provision of these Terms of Use is held to be invalid or unenforceable by a court of competent jurisdiction, that provision shall be eliminated to the minimum extent necessary so that these Terms of Use will otherwise remain in full force and effect, and the remaining provisions of these Terms of Use will remain in effect.

28) Entire Agreement

These Terms of Use, together with our Privacy Policy and any applicable SaaS Agreement, Subscription Services Agreement and Purchase Terms, set forth the entire understanding and agreement between you and APS and supersede all prior understandings and agreements between you and APS with respect to the subject matter hereof. To the extent there is an inconsistency between these Terms of Use and the Privacy Policy, as it relates to the use of personal information, the Privacy Policy shall govern on such matters.

29) Force Majeure

APS shall not be liable for delays in performing or failure to perform any obligations herein, for any reason beyond APS’s control, including but not limited to, acts of God, fires, terrorism, strikes, civil tumult, labor disputes, war, acts or intervention by any governmental authority, failure of a common carrier, supplier, hardware, software, browser, or communications equipment, or network failure, congestion, or malfunction, or any other reason.

30) Changes

We reserve the right, in our sole discretion, to modify, update and/or replace these Terms of Use at any time, without prior notice, by posting the revised version of these Terms of Use behind the link marked “Terms of Use” at the bottom of each page of our Sites and/or Services. When we change the Terms of Use, we will update the Effective Date at the top of this page. Your continued use of our Sites and/or Services after we have posted the revised Terms of Use constitutes your agreement to be bound by the revised Terms of Use. If you do not agree to the new terms, you are no longer authorized to use the Service

31) Contact Us

If you have any questions about these Terms of Use, please contact us at aps@apsparking.net or call (213) 628-9500 or via traditional mail methods:  Advanced Parking Systems, 544 Mateo Street, Third Floor, Los Angeles, California 90013.