Terms & Conditions for Using the App
NEXTPASS MOBILE APPLICATION TERMS OF USE
Last Updated: May 16, 2023
These Mobile Application Terms of Use (“Terms“) are a binding agreement between you (“User” or “you“) and Cintra Digital Business Ventures LLC (“CDBV“, “we“, “us“, or “our“). These Terms, which incorporate our Privacy Policy (“Privacy Policy“), govern your use of the NextPass website and mobile application offered on iOS and Android mobile device platforms, including all related documentation (collectively, the “App“). The App is licensed, not sold, to you. The Privacy Policy contains the terms that apply to the collection, use, disclosure, storage, or other processing of personal information. These Terms apply to all other matters related to the App, including the collection, use, disclosure, or storage of information that is not personal information.
By clicking the “agree” button, you (a) acknowledge that you have read and understand these Terms; (b) represent that you are eighteen (18) years of age or older; and (c) accept these Terms and agree that you are legally bound by its provisions, including the warranty disclaimers, indemnity and limitation of liability provisions below.
PLEASE READ: These Terms also include a mandatory arbitration agreement. Please review the arbitration agreement in Section 22 carefully, as it will require you to resolve all disputes with us on an individual basis through final and binding arbitration, and require you to forego jury trials, class actions, and all other types of court proceedings of any kind, unless you opt-out by following the opt-out procedures in that section. By entering into these Terms, you expressly acknowledge that you understand and agree to this mandatory arbitration agreement.
If you do not agree to these Terms, do not download, install, or use the App and please delete it from your device if you have already downloaded it.
TABLE OF CONTENTS
1. License Grant
2. License Restrictions
3. Third Parties
4. Reservation of Rights
5. App Content
6. Collection and Use of Your Information
7. Your Account and Payment Terms
8. Sweepstakes, Contests and Promotions
9. Acceptable Use
10. Support
11. Updates
12. Feedback
13. Third-Party Materials
14. Term and Termination
15. Disclaimer of Warranties
16. Limitation of Liability
17. Indemnification
18. App Store Disclaimer
19. Jurisdictional Considerations; Export Regulation; and Anti-Corruption
20. Severability
21. Governing Law
22. Dispute Resolution
23. Time to File Claims; Single Recovery
24. Waiver
25. Modification
26. Interpretation
27. No Third Party Beneficiaries
28. Entire Agreement
29. Electronic Communication and Electronic Signatures; Notices
30. Use of Third Party Marks
1. License Grant.
Subject to these Terms, CDBV grants you a limited, non-exclusive, and nontransferable license to download, install, and use the App for your personal, non-commercial use on a mobile device owned or otherwise controlled by you (“Mobile Device“).
2. License Restrictions.
You shall not:
a. copy the App, except as expressly permitted by these Terms;
b. modify, translate, adapt, or otherwise create derivative works of the App;
c. reverse engineer, disassemble, decompile, decode, or otherwise attempt to derive or gain access to the source code or any part of the App;
d. remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the App, including any copies of documentation;
e. rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available the App, or any features or functionality of the App, to any third party for any reason, including by making the App available on a network where it is capable of being accessed by more than one device at any time;
f. remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the App;
g. to the extent applicable, breach or violate any third-party agreement for services which are needed or required to use the App, such as your agreement with your wireless data service provider for your Mobile Device; or
h. use the App in any in violation of Section 9 (Acceptable Use) of these Terms.
3. Third Parties.
CDBV may enter into agreements with departments of transportation and toll authorities, agencies or operators (collectively, “Transportation Authorities“); automotive manufacturers; sellers/distributors of gasoline; and other third parties (collectively, “Third Parties“) to provide services or offer promotions in connection with the App. Neither these Third Parties nor their officers, managers, employees, representatives or agents, are a party to or have any liability under these Terms. If the applicable Transportation Authorities suspend or terminate some or all services they provide for proper operation of the App, we may be forced to suspend or terminate certain features or access to the App.
4. Reservation of Rights.
You do not acquire any ownership interest in the App under these Terms. Except as expressly granted to you in these Terms, we and our licensors reserve and retain our entire right, title, and interest in and to the App, including all copyrights, trademarks, and other intellectual property rights in or related to the App.
5. App Content.
The App and its contents may only be used in accordance with these Terms. All materials displayed on the App, including text, graphics, articles, photographs, images, and illustrations (collectively the “Content“) may be protected by U.S. copyright laws, international conventions, and other applicable intellectual property laws. You shall abide by all copyright notices, trademark rules, information, and restrictions contained in any Content accessed through the App, and shall not use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purposes whatsoever any Content or third party submissions or other proprietary rights not owned by you: (a) without the express prior written consent of the respective owners, and (b) in any way that violates any rights of third parties. You may download or copy the Content for personal, non-commercial use only, provided that you maintain all copyright and other notices contained in such Content. Unauthorized copying or storing of any Content is expressly prohibited.p>
6. Collection and Use of Your Information.
a. You acknowledge that when you download, install, or use the App, we may use automatic means to collect information about your Mobile Device and about your use of the App.
b. You will also be required to provide certain information about yourself or your vehicle as a condition to using the App or certain of its features or functionality, and the App may provide you with opportunities to share information about yourself with others.
c. You agree that you will update and keep current all information that you provide to CDBV through the App, including payment and vehicle information
d. All personal information we collect through or in connection with this App is subject to our Privacy Policy. By downloading, installing, using, and providing information to or through this App, you consent to processing of your personal information in accordance with the Privacy Policy.
7. Your Account and Payment Terms.
a. Your user account for the App will be accessed through a username and password that you will create (your “Credentials“). You may also be required to provide a telephone number or email address for purposes of multi-factor authentication. You are responsible for maintaining the confidentiality of your Credentials, and you are fully and solely responsible for all activities that occur under your user account. We encourage you to use unique Credentials and not use a password that you use on another website, app, or other online service. Cybercriminals often obtain credentials by attacking one online service and then try to access other online services using those same credentials. It is up to you to take adequate precautions with your Credentials, and to immediately notify CDBV of any unauthorized use of your Credentials.
b. CDBV can refuse registration of, access to, or cancel a user account in its discretion, at any time, for reasons such as violation of applicable law, breach of these Terms, force majeure, or any other matter that in CDBV’s discretion warrants such refusal or cancellation. If your account has no transaction activity for two (2) years, consecutively, we may close your account and disable that account’s access to the App. In addition, to the extent that we owe you any credits or reimbursements for Fees (as defined below) after we close your account, we will endeavor to transfer any such credits or reimbursements to you in accordance with applicable law.
c. You are solely responsible for obtaining and maintaining all equipment and ancillary services needed for your access to and use of the App and for paying all charges related to that equipment and ancillary services, including any fees for data, roaming, or messaging services.
d. You agree to pay the amounts set forth in the App for any charges incurred by the vehicles registered to your account, in addition to any activation, prepayment, reactivation, or other fees associated with your account (“Fees“). Fees may include a toll charge amount from the relevant Transportation Authority (“Toll Charge“), plus a transaction fee and a fee for any processing and management or similar fees imposed on CDBV by any Transportation Authority to process or manage Tolls. Transportation Authorities set the price of Toll Charges. Fees will be applied based on the license plate number provided for each vehicle that uses the App and our services. Components of each toll, including Toll Charges imposed by the applicable Transportation Authorities, can be seen in the App. The toll rate shown in the App may be higher or lower than what may be posted on road signs at the time of your travel. You also may not be entitled to participate in certain promotions made available by Transportation Authorities if the Transportation Authorities have not made those promotions available to users of the App. The relevant Transportation Authority will apply payment priority rules in an effort to prevent duplicate charges if a vehicle registered to your account also has a transponder registered with such Transportation Authority. However, prior to using the App, you should deactivate any tolling transponder and any applicable tolling accounts with relevant Transportation Authorities in jurisdictions where the App operates in order to avoid being charged additional amounts by such Transportation Authorities. Please visit our website for a list of the current jurisdictions where the App operates. Please note that the App does not currently support discounts for High Occupancy Vehicles.
e. We will notify you of any inability to collect Fees due on your account as a result of invalid payment or vehicle information. After we notify you of such inability three (3) times, we may suspend or terminate your user account or we may remove the affected vehicle from your user account. Once your user account, or a vehicle on your user account, has been suspended or terminated, you may be required to register your vehicle again or open a new user account. You are responsible for paying all Fees associated with your use of the App, even after your user account is terminated. You agree that in the event that your user account is terminated, we may retain your payment information for up to sixty (60) days in order to process transactions that have been incurred but not paid by you. If your account is suspended or terminated, you are responsible for paying any fees or other costs charged by the applicable Transportation Authorities related to your use of toll roads during such suspension or after such termination.
f. We do not store the credit card information you provide through the App on systems owned by CDBV but we participate in the cardholder data environment and will comply with the applicable Payment Card Industry (“PCI“) standards. We use third party payment processors to complete transactions through the App. We require these processors to comply with applicable PCI standards, including PCI Data Security Standards. However, we cannot guarantee absolute security of your credit card information and will not be liable for any theft or unauthorized use of your credit card information by third parties.
8. Sweepstakes, Contests and Promotions.
Please see the specific rules for any sweepstakes or contests that are made available through the App. CDBV may also (but has no obligation to) create and make available promotions that may be redeemed for discounts, account credits or other benefits related to the services provided through the App (“Promotions“). Promotions typically have an expiration date after which they will no longer apply. Promotions may be adjusted if the total discount value is greater than the value of the applicable Fees. Promotions (including codes) are not valid for cash. You agree not to duplicate or sell codes or other Promotion information nor make them available to the general public (unless publication is expressly permitted by the terms of the Promotion). We reserve the right to withdraw or cancel any of our Promotions at any time, either as a whole, or for specific services. If this happens, then the Promotions may not be used after the date of withdrawal or cancellation. We reserve the right to reject or cancel the use of a Promotions where fraud or illegal misuse is suspected. You waive any claims against us regarding such rejection or cancellation of your attempt to apply a Promotion. We are not liable to any user or other person for any financial loss arising out of the cancellation or withdrawal of any Promotion or any failure or inability of a user to use a Promotion for any reason.
9. Acceptable Use.
By using the App, you expressly agree to the following:
a. You are at least eighteen (18) years old.
b. You will provide accurate, true and current information as prompted during the user account registration process and shall keep it current at all times; if you do not provide accurate information (e.g., an incorrect license plate number) you will be liable for fees associated with that inaccurate information (e.g., tolls incurred by the vehicle with that incorrect license plate number).
c. You will notify CDBV immediately of any breach of security or unauthorized use of your user account
d. Although CDBV will not be liable for your losses caused by unauthorized use of your user account, you may be liable for the losses incurred by CDBV due to such unauthorized use.
e. You will not attempt to hack, destabilize or adapt the App or its source code.
f. You will not abuse, harass, threaten, harm or impersonate personnel of CDBV or any of CDBV’s partners, at any time or for any reason.
g. You will not use the App for any illegal or unauthorized purpose. Any fraudulent, abusive, or otherwise illegal activity may be grounds for termination of your right to access or use the App.
h. You will not post or transmit, or cause to be posted or transmitted, any communication or solicitation designed or intended to obtain password, account, or private information from any other user of the App. And, you agree not to use the App to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material (including material that may be considered threatening or obscene), or engage in any kind of illegal activity.
i. You will not run Listserv, any form of auto-responder, or “spam” on the App, or any processes that run or are activated while you are not logged on to the App, or that otherwise interfere with the proper working of or place an unreasonable load on the App’s infrastructure. And, you will not use any high volume manual methods or automated software, devices, or other processes to “crawl,” “scrape,” or “spider” any page of the App.
j. You will not access the App for the purpose of directly or indirectly competing with CDBV or its affiliates, including performing any benchmarking or similar activities.
k. You will obey all traffic laws, traffic rules and regulations governing the operation of your vehicle registered in the App and you will not use the App in any manner that violates such laws or regulations.
l. You will not use any mobile device on which the App is installed while driving in a way that distracts your attention away from the road and could result in loss of vehicle control, crash and injury. Even if we send text messages or push notifications to your mobile device, you will not read these messages or notifications on mobile devices while driving.
m. You will not assist or encourage any other person to engage in any of the acts prohibited in this section.
10. Support.
For technical support or account assistance in connection with the App, please contact us via email at support@NextPass.io or by phone at +1 888 814 7766 on Monday through Friday from 9:00 AM to 5:00 PM (ET). We periodically schedule system downtime that will make the App unavailable for use. Unplanned outages may also occur. You agree that CDBV has no responsibility and is not liable for: (a) the unavailability of the App caused by such system outages; (b) any loss of data, information or materials caused by such system outages; (c) the resultant delay, mis-delivery or non-delivery of data, information or materials caused by such system outages; or (d) any outages caused by any third parties, including any companies or servers hosting the App, any Internet service providers, or otherwise.
11. Updates.
We may from time to time, in our sole discretion, develop and provide App updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates“). Updates may also modify or delete in their entirety certain features and functionality. You agree that we have no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your Mobile Device settings, when your Mobile Device is connected to the Internet either:
a. the App will automatically download and install all available Updates; or
b. you may receive notice of or be prompted to download and install available Updates.
The App or portions of the App may not operate properly if you do not promptly download and install all Updates. You further agree that all Updates will be deemed part of the App and be subject to all terms and conditions of these Terms. Moreover, the App or portions of the App may not work properly in the event that the operating system or firmware on your Mobile Device is updated or modified. However, pursuant to our arrangements with certain application store providers (e.g., Apple App Store and Google Play Store) of the App (“App Stores“), we will endeavor, but have no affirmative duty or obligation, to maintain compatibility with existing and future operating systems or firmware updates or modifications on your Mobile Device when commercially reasonable and in our sole discretion.
12. Feedback.
Your submission of any comments, suggestions, or feedback relating to the App (collectively, “Feedback“) is voluntary. By providing Feedback, you grant CDBV and its affiliates a perpetual, worldwide, non-exclusive, irrevocable, royalty-free license to exploit that Feedback for any purpose, including developing, manufacturing, promoting, selling and maintaining CDBV’s and its affiliate’s products and services. We have no obligation to treat any Feedback as your confidential information and will not incur any liability as a result of any similarities that may appear in our future services or operations.
13. Third-Party Materials.
The App may display, include, or make available third-party content (including data, information, applications, and other products, services, and/or materials) or provide links to third-party websites or services, including through third-party advertising (“Third-Party Materials“). Please also see our Privacy Policy for your options with respect to processing of personal information in connection with third-party advertising displayed through the App. You acknowledge and agree that we are not responsible for Third-Party Materials, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. CDBV does not assume and will not have any liability or responsibility to you or any other person or entity for any Third-Party Materials. Third-Party Materials and links to Third-Party Materials are provided solely as a convenience to you, and you access and use them entirely at your own risk and subject to the third parties’ terms and conditions.
14. Term and Termination.
a. The term of these Terms commences when you download or install the App (the “Effective Date“) and will continue in effect until terminated by you or CDBV as described in these Terms.
b. You may terminate these Terms by (i) selecting “Delete Account” in the App, (ii) confirming such selection, and (iii) deleting the App from your Mobile Device. Deleting the App alone will not terminate these Terms and you will still be liable for any fees incurred by your account prior to the moment you select and confirm deletion of your account.
c. We may suspend the App or terminate these Terms at any time without notice.
d. In addition to the termination rights included in other sections of these Terms, upon the occurrence of any of the events below, CDBV, in its sole discretion, has the right to suspend or terminate your user account and/or terminate these Terms:
i. Your failure to comply with any restriction in Section 2 (License Restrictions);
ii. Your violation of any provision in Section 7 (Your Account and Payment Terms);
iii. Your violation of any provision in Section 9 (Acceptable Use); or
iv. Your violation of any provision in Section 19 (Jurisdictional Considerations; Export Regulation; and Anti-Corruption).
e. Upon termination:
i. all rights granted to you under these Terms will also terminate; and
ii. you must cease all use of the App and delete all copies of the App from your Mobile Device and your user account with the App.
f. Termination will not limit any of our rights or remedies at law or in equity. The provisions of these Terms that must continue beyond the term in order to give them full force and effect, including Sections 4, 12, and 13 – 30, will survive any termination or cancellation of these Terms.
15. Disclaimer of Warranties.
EXCEPT AS EXPRESSLY SET FORTH IN THESE TERMS, THE APP IS PROVIDED TO YOU “AS IS” AND WITH ALL FAULTS AND DEFECTS WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, CDBV, ON ITS OWN BEHALF AND ON BEHALF OF ITS AFFILIATES AND LICENSORS, EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, WITH RESPECT TO THE APP, INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, AND WARRANTIES THAT MAY ARISE OUT OF COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE, OR TRADE PRACTICE. WITHOUT LIMITING THE FOREGOING, CDBV PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE APP WILL MEET YOUR REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, BE COMPATIBLE, OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS, OR SERVICES, OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS, OR BE ERROR-FREE, OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATIONS ON APPLICABLE STATUTORY RIGHTS OF A CONSUMER, SO THE ABOVE EXCLUSION AND LIMITATIONS MAY NOT APPLY TO YOU.
16. Limitation of Liability.
a. EXCEPT FOR ACTS OF WILLFUL MISONDUCT OR GROSS NEGLIGENCE, CDBV AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE OR SPECIAL DAMAGES, WHETHER BASED IN TORT, CONTRACT, OR OTHERWISE, INCLUDING LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM OR IN ANY WAY RELATED TO (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE APP; (ii) ANY CONDUCT OR CONTENT OF YOU, ANY OTHER USER, OR ANY THIRD PARTY IN CONNECTION WITH THE APP, INCLUDING ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM CDBV’S SERVICES; AND (iv) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR INFORMATION OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT CDBV HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
b. EXCEPT FOR ACTS OF WILLFUL MISONDUCT OR GROSS NEGLIGENCE,CDBV’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO YOUR USE OF OR INABILITY TO USE THE APP OR THE CONTENT IS LIMITED TO THE GREATER OF $100 OR THE AMOUNT YOU PAID US DURING THE TWELVE (12) MONTHS PRECEDING THE INCIDENT GIVING RISE TO THE LIABILITY.
c. THE FOREGOING LIMITATIONS WILL APPLY WHETHER SUCH DAMAGES ARISE OUT OF BREACH OF CONTRACT, TORT (INCLUDING SIMPLE NEGLIGENCE), OR OTHERWISE AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE OR CDBV WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN YOU AND CDBV. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS.
17. Indemnification.
You agree to indemnify, defend, and hold harmless CDBV, its affiliates and their respective officers, directors, employees, agents, successors, and assigns (collectively, “CDBV Indemnitees“) from and against any and all losses, damages, liabilities, deficiencies, claims, actions, judgments, settlements, interest, awards, penalties, fines, costs, or expenses of whatever kind, including attorneys’ fees, arising from or relating to (a) the Content you submit or make available through the App; (b) any misuse of the App under your user account; or (c) your breach of these Terms.
18.App Store Disclaimer.
The App Stores are not a party to these Terms and are not responsible for the App or the Content or any maintenance or support of the App or Content. In the event of any failure of the App to conform to any warranties we provide in these Terms, you may notify the applicable App Store and, if applicable, the App Store may refund the purchase price for the App to you. Other than this breach of warranty claim, the App Stores are not responsible for addressing any claims from you or any third party relating to the App or your possession and/or use of the App, including: (a) product liability claims; (b) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation. To the maximum extent permitted by applicable law, the App Store has no other warranty obligation with respect to the App, and will not be responsible for any other claims, losses, liabilities, damages, costs or expenses attributable to any failure of the App to conform to the warranties we make in these Terms.
19. Jurisdictional Considerations; Export Regulation; and Anti-Corruption.
a. The App is intended for users who reside in the United States of America. CDBV makes no representations or warranties that the App or any materials contained in them are valid, appropriate or available for use outside of the United States. If you access and use the App outside of the United States, you do so at your own risk and are responsible for compliance with applicable local laws.
b. Without limiting the terms in Section 19.a above, the App may be subject to export control laws of the United States, including the Export Control Reform Act and its associated regulations, and the United States Treasury Department’s Specially Designated Nationals List or the U.S. Department of Commerce Denied Persons List or Entity List. Accordingly, you shall not access or use the App or any Content in a U.S.-embargoed or sanctioned country (currently Cuba, Iran, Syria, Crimea – Region of Ukraine, Iraq, North Korea, and Russian industry sector) or in violation of any U.S. export law or regulation.
c. You represent and warrant that you have not received or been offered any illegal or improper bribe, kickback, payment, gift, or thing of value from any CDBV employees or agents in connection with these Terms. If any CDBV employee or agent has provided you with reasonable gifts and entertainment in the ordinary course of business, then this Section 19.c has not been violated. If any CDBV employee or agent offers you any illegal or improper bribe, kickback, payment, gift, or thing of value, you will use reasonable efforts to promptly notify us at legal@nextpass.zendesk.com.
20. Severability.
If any provision of these Terms is found to be illegal or unenforceable under applicable law, the remainder of the provision will be amended to achieve as closely as possible the effect of the original term and all other provisions of these Terms will continue in full force and effect.
21. Governing Law.
These Terms are governed by and should be construed in accordance with the laws of the State of Texas, without giving effect to any choice or conflict of law provision or rule that would apply the law of another jurisdiction.
22. Dispute Resolution.
If you have a dispute regarding a Fee charged to a vehicle registered in your account through the App, please contact us at: support@NextPass.io. The Transportation Authorities will not be a party to that dispute. You agree that any and all disputes or claims that have arisen or may arise between you and CDBV relating in any way to or arising out of these Terms, the Privacy Policy, or the App that have not been resolved after contacting us will be resolved exclusively through final and binding arbitration (“Arbitration Agreement“), rather than in court, except that you may assert claims in small claims court, if your claims qualify. You agree that the Federal Arbitration Act governs the interpretation and enforcement of this section.
a. You and CDBV agree that each party may bring claims against the other party only on an individual basis and not as a plaintiff or class member in any purported class or representative action or proceeding. Unless both you and CDBV agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s). Any relief awarded cannot affect other users.
b. A form for initiating arbitration proceedings is available on the American Arbitration Association (“AAA“) site: https://www.adr.org/sites/default/files/Consumer_Demand_for_Arbitration_Form_3.pdf. In addition to filing this form with the AAA in accordance with its rules and procedures, you must send a copy of the completed form to CDBV at 9600 Great Hills Trail, Austin, TX 78759, ATTN: Legal Department (the “Notice Address“).
c. The arbitration will be conducted by the AAA under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this section. The AAA’s rules are available at http://www.adr.org, by calling the AAA at 1-800-778-7879, or by sending a written request for the rules to the Notice Address.
d. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Texas, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator will not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving you to the extent required by applicable law or regulation.
e. Payment of all filing, administration and arbitrator fees will be governed by the applicable AAA rules, unless otherwise stated in this section. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, CDBV will pay the additional cost. We will also reimburse fees invoiced by AAA, including filing fees and arbitrator and hearing expenses, for claims totaling less than $10,000. For claims at or above $10,000, if the arbitrator finds the arbitration to be non-frivolous, CDBV will pay the fees invoiced by AAA, including filing fees and arbitrator and hearing expenses.
f. 30-Day Right to Opt-Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt out (“Opt-Out Notice“) (i) by email to legal@nextpass.zendesk.com with the subject line, “MANDATORY ARBITRATION AND CLASS ACTION WAIVER OPT-OUT” or (ii) by mail at the Notice Address. The Opt-Out Notice must be sent within thirty (30) days of (1) the Effective Date of these Terms; or (2) the first date that you used the App that contained any versions of the Terms that included this version of the mandatory arbitration and class action waiver, whichever is later. Otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. To be effective, all Opt-Out Notices must contain your full name, address, and signature. If you opt out of these arbitration and class action waiver provisions, CDBV also will not be bound by them, but all other provisions of these Terms will continue to apply. Opting out of the arbitration and class action waiver provisions has no effect on any previous, other, or future arbitration agreements that you may enter with us.
g. If we change this Arbitration Agreement or class action waiver provision of these Terms after the date you first agreed to the Terms or to any subsequent changes to the Terms, you may reject any such change by providing us with written notice of such rejection within thirty (30) days of the date such change becomes effective. Your written notice must be sent (i) by email to legal@nextpass.zendesk.com or (ii) by mail at the Notice Address.
23. Time to File Claims; Single Recovery
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OR THE APP MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES (OR WITHIN THIRTY (30) DAYS WITH RESPECT TO ANY DISPUTES OF FEES AFTER SUCH FEE IS PAID OR OTHERWISE DUE), OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED. IF YOU RECOVER ANY AMOUNTS FROM A TRANSPORTATIION AUHTORITY OR OTHER THRID PARTY FOR A CAUSE OF ACTION OR CLAIM ARISING OUT OF OR RELATING TO THSE TERMS OR THE APP, YOU AGREE NOT TO SEEK, AND HAVE NO RIGHT OF RECOVERY OF, THOSE AMOUNTS FROM CDBV.
24. Waiver
No failure to exercise, and no delay in exercising, on the part of either party, any right or power under these Terms operates as a waiver of that right or power, nor will any single or partial exercise of any right or power under these Terms prevent any further exercise of that or any other right or power under these Terms.
25. Modification.
CDBV reserves the right, in our sole discretion, to modify these Terms at any time upon notice to users. Any modified Terms are effective as soon as they are posted in the App or on the applicable page of the App Store. We also reserve the right to waive or modify any of these Terms as they apply to specific users without affecting the application of these Terms to all other users. Your continued use of the App, or any materials or services accessible through it, after the modified Terms are posted means you accept the modifications.
26. Interpretation.
The headings used in these Terms are for convenience only and have no legal meaning or effect. Unless the context clearly indicates to the contrary, in these Terms (a) the plural includes the singular and the singular includes the plural; (b) “and” and “or” are each used both conjunctively and disjunctively; (c) “any,” “all,” “each,” or “every” means “any and all,” and “each and every”; (d) “includes” and “including” are each “without limitation”; (e) “herein,” “hereof,” “hereunder” and other similar compounds of the word “here” refer to these Terms as a whole and not to any particular paragraph, subparagraph, section or subsection; and (f) all pronouns and any variations thereof will be deemed to refer to the masculine, feminine, neuter, singular or plural as the identity of the entities or persons referred to may require.
27. No Third Party Beneficiaries.
Other than the CDBV Indemnitees and the App Stores, no other person or entity will be third-party beneficiaries to the Terms; provided, however, our right to enter into, rescind or terminate any variation, waiver or settlement under these Terms is not subject to the consent of any third party.
28. Entire Agreement.
These Terms and our Privacy Policy constitute the entire agreement between you and CDBV with respect to the App and supersede all prior or contemporaneous understandings and agreements, whether written or oral, with respect to the App.
29. Electronic Communication and Electronic Signatures; Notices.
a. You agree to be bound by any affirmation, assent, or agreement you transmit through the App, including any consent you give to receive communications from CDBV solely through electronic transmission. You agree that when in the future you click on an “I agree,” “I consent,” or other similarly worded “button” or entry field with your mouse, keystroke, or other computer or mobile device, your agreement or consent will be legally binding and enforceable and the legal equivalent of your handwritten signature. If you have any questions about these Terms, please contact us by email at support@NextPass.io.
b. All notices required or otherwise provided for under these Terms will be sent by certified or registered mail (return receipt requested), reputable overnight courier with shipment tracking capabilities (postage prepaid), email (other than notices of termination or an indemnity claim) or hand delivery to the other party at the addresses below:
c. For CDBV: 9600 Great Hills Trail, Austin, TX 78759, ATTN: Legal Department, or legal@nextpass.zendesk.com.
d. For you: At the address you provided during registration or as updated by you by providing notice to support@NextPass.io.
e. Notices will be deemed to have been received (i) five (5) business days after mailing if given by mail, (ii) upon receipt if hand delivered, and (iii) one (1) business day after sending if given otherwise.
30. Use of Third Party Marks.
Product and company names used in these Terms may be protected as common law trademarks or registered trademarks of their respective holders. Our use of those names does not imply any affiliation with or endorsement by those holders.