Agreement to Terms. By using our Services, whether as a digital user accessing the online aspects of the Services or a visitor to a Metropolis Location (a "Visitor"), you agree to be bound by these Terms. If you don't agree to be bound by these Terms, do not use the Services.
IMPORTANT NOTICE REGARDING ARBITRATION: WHEN YOU AGREE TO THESE TERMS YOU ARE AGREEING (WITH LIMITED EXCEPTION) TO RESOLVE ANY DISPUTE BETWEEN YOU AND METROPOLIS THROUGH BINDING, INDIVIDUAL ARBITRATION RATHER THAN IN COURT. PLEASE REVIEW CAREFULLY SECTION 17 "DISPUTE RESOLUTION" BELOW FOR DETAILS REGARDING ARBITRATION.
Changes to these Terms or the Services. We may update the Terms from time to time in our sole discretion. If we do, we'll let you know by posting the updated Terms on the Site or App, and may also send other communications. It's important that you review the Terms whenever we update them or you use the Services. If you continue to use the Services after we have posted updated Terms it means that you accept and agree to the changes. If you don't agree to be bound by the changes, you may not use the Services anymore. The only exception is for changes to the "Dispute Resolution" section, for which you have followed the process in Section 17(f). Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Who May Use the Services?
a. Eligibility. You may use the Services only if you are at least 16 years of age (or such other minimum age at which you can provide consent to data processing under the laws of your territory), and not otherwise barred from using the Services under applicable law. Specific Services may have a different age limit. By using the Services, you represent and warrant that you (or your parent or legal guardian, as required by applicable law if you are unable to form a binding contract) have reviewed and agreed to these Terms. Parents and guardians are responsible for the acts of their children when using our Services.
b. Types of Accounts. For certain features of the Services you'll need an account ("Account"). When you create an Account, your account status will depend on the information you provide to us. For example, a "Standard Account" allows users to access and use certain features of the Services, such as certain parking related services, mobility-related Services, and ancillary Services (e.g. vehicle recall and deployment, vehicle cleaning or package delivery). By providing Payment Information (as defined below) to us via the functionality of the Services, your Standard Account will automatically upgrade to a "Member Account," and you may access certain additional Services, such as subscription-based parking and seamless access and payment. Available Services may vary from location to location.
c. Registration and Your Information. In connection with creating an Account, you may be required to submit certain personal information, including without limitation, your name, e-mail address, mobile phone number, vehicle information, and/or valid Payment Information (as defined below). It's important that you provide us with accurate, complete, valid and current Account information, including Payment Information, and keep this information up to date. If you don't, we might have to suspend or terminate your Account and/or the Services. To protect your Account, keep your Account details confidential and notify us right away of any unauthorized use. You're responsible for all activities that occur under your Account and you agree to maintain the security and secrecy of your Account credentials at all times. Unless otherwise explicitly permitted by Metropolis, you may only possess one Account. You may not authorize third parties to use your Account. You may not assign or otherwise transfer your Account to any other person or entity.
d. Verification of Identity. In certain instances, such as at a Metropolis Location, you may be asked to provide proof of identity to access or use the Services. You agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
Feedback. We appreciate feedback, comments, ideas, proposals and suggestions for improvements to the Services ("Feedback"). If you choose to submit Feedback, you agree that we are free to use it without any restriction or compensation to you.
One-Time Payments and Subscription. Metropolis requires payment of a fee for use of the Services (or certain portions thereof). You have the option of making a one-time payment ("One-Time Payment") or purchasing a subscription ("Subscription") for such use. Special pricing and/or eligibility terms may apply to certain offers and Subscriptions.
a. General. Whether you make a One-Time Payment or purchase a Subscription (each, a "Transaction"), you expressly authorize us (or our third-party payment processor) to charge you for such Transaction and future One-Time Payment Transactions via the payment features of the Services. We may ask you to supply additional information relevant to your Transaction, including your credit card number(s), the expiration date of your credit card(s) and your email and postal addresses for billing and notification (such information, "Payment Information"). We (or our third-party payment processor) may authorize charges using your Payment Information in anticipation of Subscription or other Service-related payments in advance. In some instances, your available balance or credit limit may be reduced to reflect the authorization. You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. When you initiate a Transaction, you authorize us to provide your Payment Information to third parties so we can complete your Transaction and to charge your payment method for the type of Transaction you have selected (plus any applicable taxes and other charges). You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). By initiating a Transaction, you agree to the pricing, payment and billing policies applicable to such fees and charges, as posted or otherwise communicated to you. All payments for Transactions are non-refundable and non-transferable except as expressly provided in these Terms. All fees and applicable taxes, if any, are payable in United States dollars. For certain Payment Information, the issuer of the payment method may charge you certain additional fees (e.g. foreign transaction fees or processing fees). You will be solely responsible for such fees. You remain responsible for any uncollected amounts for the Services.
b. Subscriptions. For certain features of the Services, you'll need a Subscription. If you purchase a Subscription, you will be charged the Subscription fee for the applicable Subscription period, plus any applicable taxes, and other charges ("Subscription Fee"), at the beginning of your Subscription and at the beginning of each subsequent Subscription period commencing thereafter, at the then-current Subscription Fee. BY PURCHASING A SUBSCRIPTION, YOU AUTHORIZE METROPOLIS TO INITIATE RECURRING NON-REFUNDABLE PAYMENTS AS SET FORTH BELOW. If you purchase a Subscription, we (or our third-party payment processor) will automatically charge at the beginning of each new Subscription period commencing after the initial Subscription period for your Subscription, using the Payment Information you have provided until you cancel your Subscription. By agreeing to these Terms and electing to purchase a Subscription, you acknowledge that your Subscription has recurring payment features and you accept responsibility for all recurring payment obligations prior to cancellation of your Subscription by you or Metropolis. Your Subscription continues until cancelled by you or we terminate your access to or use of the Services or Subscription in accordance with these Terms. We reserve the right to change Subscription plans and adjust their pricing in any manner and at any time, in our sole discretion. Subscriptions may include additional terms and conditions as may be described at the time of purchase or in other communications we send to you.
c. Cancelling a Subscription. All sales are final. Metropolis may consider refund requests on a case-by-case basis, and decisions on whether to grant a refund request are in the sole discretion of Metropolis. EXCEPT AS EXPRESSLY PROVIDED HEREIN, YOUR PURCHASE IS FINAL AND YOU WILL NOT BE ABLE TO CANCEL THE PURCHASE AND/OR RECEIVE A REFUND OF YOUR SUBSCRIPTION FEE AT ANY TIME. But if something unexpected happens in the course of completing a Transaction, we reserve the right to cancel your Transaction for any reason; if we cancel your Transaction we'll refund any payment you have already remitted to us for such Transaction. Without limiting the foregoing, you may cancel your Subscription at any time, but please note that such cancellation will be effective at the end of the then-current Subscription period. YOU WILL NOT RECEIVE A REFUND OF ANY PORTION OF THE SUBSCRIPTION FEE PAID FOR THE THEN CURRENT SUBSCRIPTION PERIOD AT THE TIME OF CANCELLATION. To cancel, you can send an email to firstname.lastname@example.org or use the functionality provided in the Services, for example by accessing the relevant active plan in your Account and confirming cancellation of your Subscription. You will be responsible for all Subscription Fees (plus any applicable taxes and other charges) incurred for the then-current Subscription period. If you cancel, your right to use the Services will continue until the end of your then-current Subscription period and will then terminate without further charges. If you signed up for your Subscription or provided Payment Information through a third party, you may need to cancel your Subscription through that third party.
a. User Content. Content such as video, audio, images, information, text (in posts or communications with us or others), and other materials that you post or otherwise make available (including via entry into a Metropolis-controlled or operated location) through the Services, including content you make available for initiation of support requests or as submissions to enter contests or promotions, is referred to as "User Content". Metropolis does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to your User Content.
b. Permissions to Your User Content. By making any User Content available through the Services you hereby grant to Metropolis a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works based upon, distribute, publicly display, and publicly perform your User Content in all formats and distribution channels now known or hereafter devised (including in connection with operating, providing, improving, updating, analyzing, marketing and promoting the Services and in connection with Operators and other third party partners). You further grant to Metropolis a non-exclusive, transferable, worldwide, royalty-free license, with the right to sublicense, to use and share your personal information in connection with operating, providing, improving, marketing and promoting the Services.
c. Your Responsibility for User Content. You are solely responsible for all your User Content. You represent and warrant that you have (and will have) all rights that are necessary to grant us the license rights in your User Content under these Terms. You represent and warrant that neither your User Content, nor your use and provision of your User Content to be made available through the Services, nor any use of your User Content by Metropolis on or through the Services will infringe, misappropriate or violate a third party's intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
d. Removal of User Content. The functionality of the Services may give you the ability to remove your User Content by specifically deleting it. You should know that in certain instances, some of your User Content may not be completely removed and copies of your User Content may continue to exist on the Services. To the maximum extent permitted by law, we are not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your User Content.
Rights and Terms for Apps.
a. App License. If you comply with these Terms, Metropolis grants to you a limited non-exclusive, non-transferable license, with no right to sublicense, to download and install a copy of the App on a mobile device or computer that you own or control and to run such copy of the App solely for your own personal non-commercial purposes. Except as expressly permitted in these Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the App (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.
b. Additional Information: Apple App Store. This Section 8(b) applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple will refund the App purchase price to you (if applicable) and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party's intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You 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. You must also comply with any applicable third-party terms of service when using the App.
General Prohibitions and Metropolis's Enforcement Rights. You agree not to do any of the following:
a. Post, upload, publish, submit or transmit any content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
b. Cause a nuisance, annoyance, inconvenience, or take actions that result in property damage in connection with your access to or use of the Services, whether to a Metropolis Location, an Operator, a Visitor, a Mobility Resource or any third party;
c. Use, display, copy, modify, distribute, license, lease, sell, resell, transfer, perform, transmit, stream, broadcast, mirror or frame or otherwise exploit the Services or any individual element within the Services, Metropolis's name, any Metropolis trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Metropolis's express written consent;
d. Access, tamper with, or use non-public areas of the Services, Metropolis's computer systems, Metropolis Locations, or the technical delivery systems of Metropolis's providers;
e. Attempt to probe, scan or test the vulnerability of any Metropolis system or network or breach any security or authentication measures;
f. Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Metropolis or any of Metropolis's providers or any other third party (including another user) to protect the Services;
g. Attempt to access or search the Services or download content from the Services using any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Metropolis or other generally available third-party web browsers;
h. Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
i. Use any meta tags or other hidden text or metadata utilizing a Metropolis trademark, logo URL or product name without Metropolis's express written consent;
j. Use the Services, or any portion thereof, for any commercial purpose or for the benefit of any third party or in any manner not permitted by these Terms;
k. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
l. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
m. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
n. Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
o. Impersonate or misrepresent your affiliation with any person or entity;
p. Violate any applicable law or regulation; or
q. Encourage or enable any other individual to do any of the foregoing.
Metropolis is not obligated to monitor access to or use of the Services or to review or edit any content. However, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider it objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Messaging and System Requirements.
b. Internet Access. You are responsible for obtaining the data network access necessary to use the Services. Your mobile network's data and messaging rates and fees may apply if you access or use the Services from your device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services (including without limitation the App) and any updates thereto. Metropolis does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
a. Links to Third Party Websites or Resources. The Services (including the App) may allow you to access third-party websites or other resources. We provide access only as a convenience and are not responsible for the content, products or services on or available from those resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party resources.
b. Operators. The Services may allow you to access a number of mobility and hospitality facilities and tools at Metropolis Locations, including, without limitation, garages, parking lots, valet operations, hospitality lounges, car cleaning or repair services, refueling and/or vehicle charging services, ride-share platforms, carpool programs, restrooms, vending machines, convenience stores, rentals for bikes, scooters and/or other vehicles (collectively "Mobility Resources"). Mobility Resources may be operated by us or by third party operators, including without limitation, any valet service providers; event or other venues organizers and partners; distributors of the Services; other entities with whom we have a co-branding relationship; companies or entities for whom we provide our software or Services; entities for whom we provide parking management services; educational institutions; governmental agencies; municipalities; our affiliates; and any other entities or companies for whom we provide our Services as a service provider ("Operators"). Third parties may promote Mobility Resources and Services in conjunction with their own products and services. There may be additional terms governing your use of the Mobility Resources and such third party products and services, whether or not the Operator is a third party or Metropolis. You acknowledge sole responsibility for and assume all risk arising from your use of any Mobility Resources and acknowledge and agree that any Mobility Resources accessible in connection with the Services are, as between Metropolis and you, provided solely on an "AS IS" basis without warranty of any kind. Specifically, you agree that the Terms are not an agreement between you and any third party, but is an agreement between you and us, even if the Services or the Mobility Resources are accessed through a third-party website or app.
c. If you access our Services through a third-party platform, that third-party platform, and not us, shall be responsible for your use of the Services and your rights are limited solely to those provided under your agreement with such third party.
Termination. We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending us an email at email@example.com. Upon any termination, discontinuation or cancellation of the Services or your Account, the following Sections will survive: 6(a), 6(b), 6(c), 7,12, 14, 15, 16, and 17.
a. THE SERVICES, MOBILITY RESOURCES, AND METROPOLIS LOCATIONS ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WITHOUT LIMITING THE FOREGOING, WE EXPLICITLY DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. WE MAKE NO WARRANTY THAT THE SERVICES, MOBILITY RESOURCES, OR METROPOLIS LOCATIONS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE MAKE NO WARRANTY REGARDING THE QUALITY, ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OR CONTENT ON OR AVAILABLE IN CONNECTION WITH THE SERVICES, MOBILITY RESOURCES, OR METROPOLIS LOCATIONS. THE PERFORMANCE OF THE SERVICES CAN VARY DUE TO SEVERAL FACTORS, INCLUDING WITHOUT LIMITATION: SPECIFIC MOBILE DEVICE LIMITATIONS AND CAPABILITIES; MOBILE DEVICE SERVICE PROVIDER, NETWORK LIMITATIONS, AND CAPABILITIES; MOBILE DEVICE MULTI-TASKING; MOBILE DEVICE MEMORY; GPS "LOCK" TIME, AVAILABILITY, AND ACCURACY; MOBILE DEVICE SETTINGS; INTERNET AVAILABILITY; MESSAGING OPT OUTS; AND SERVICES AVAILABILITY, OPERABILITY, OR ERRORS. METROPOLIS MAKES NO REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PERFORMANCE, OPERABILITY, OR AVAILABILITY OF THE SERVICES OR MOBILITY RESOURCES.
b. You explicitly agree that your use of the Services, Mobility Resources, and Metropolis Locations is at your own and sole risk. You park at your own risk and are solely responsible for all aspects of your parking at and access to the Metropolis Locations and Mobility Resources. You are responsible for determining your own safety and the safety of your vehicle and any articles left in your vehicle at any Metropolis Location. We are not responsible for damage to your vehicle, loss of your vehicle, or loss of articles left in your vehicle or for any personal injury in any circumstances, including, without limitation: fire, weather, or other act of god; theft or other criminal activity of any kind; mechanical defects; accidents; or your use of the Services, whether in-motion or at rest. We are not responsible for any Penalties you incur or receive, even if the Services were used in connection with a Transaction. "Penalty" means any parking fine, ticket, summon, and citation; penalty; your vehicle being wheel booted, towed, or impounded; and/or other methods of enforcing any notices, signs, rules, or directions provided by relevant government authorities; traffic attendants; Operators or other authorized people or entities, including without limitation enforcement of rules relating to spaces or zones designated as "no parking," "emergency," "tow-away," "handicapped," "reserved" and the like, time or day limitations and vehicle size limitations. You are solely responsible for resolving with the relevant authorities any issues that you may have regarding Penalties.
c. The content made available on or through any Services should not be relied upon when making financial decisions about any Mobility Resource. Metropolis is not responsible for price inaccuracies relating to any Mobility Resource.
d. Your sole and exclusive remedy for any breach by us of any term or condition set forth in these Terms is to cease to use the Services, un-install the App, and terminate your Account.
Representations; Release and Indemnity.
a. You represent and warrant that you are authorized, and possess all applicable permits, licenses and approvals required, under applicable laws, rules and regulations to operate the vehicle(s) with which you are accessing any Services, Mobility Resources, or Metropolis Location during such access.
b. To the extent permitted by law and in consideration of being allowed to use the Services, you hereby waive any and all claims, disputes, actions, demands, damages, losses, costs or expenses (including, without limitation, reasonable legal and accounting fees), and liabilities (collectively, "Claims") which you or your heirs and next of kin may now or hereafter have or claim against Metropolis and/or its affiliates and its and their respective officers, directors, shareholders, agents, partners and employees (collectively, "Releasees"), for any and all loss, theft or damage to property and for injuries, illness, disease or death to your person occurring in, upon or about, or connected with or arising out of any use of or other activity at the Services, Mobility Resources, or Metropolis Location, including without limitation any activity relating to services and/or advice of any Operator, independent contractor or employee, whether caused by active or passive negligence of Releasees or otherwise ("Release"). You hereby assume the risk of all mistakes of fact or law with regard to entering into this Release. You understand, acknowledge and agree that if any fact now or at the time of the Claim believed to be true is found hereafter to be other than, or different from, that which is now believed, you expressly assume the risk of such difference in fact and agree that this Release shall and will remain effective notwithstanding any such difference in fact. You further represent and warrant that you understand that (a) you may have sustained damages, expenses and losses based upon, attributable to, arising out of, in connection with or in any way related to the subject matter of the Claims which are presently unknown or not suspected and that such damages, expenses and losses, if any, may give rise to additional damages, expenses and losses in the future which are not now or at the time of the Claim anticipated by you and (b) that this Release has been agreed upon despite this realization. Being fully advised regarding the foregoing, you voluntarily and with full knowledge of its significance, expressly waive and relinquishes any and all rights you may have under any state or federal statute, rule or common law principle, in law or equity, relating to limitations on releases, including, but not limited to, § 1542 of the California Civil Code (or any other similar law in any jurisdiction) which would limit the effect of the foregoing release to those Claims actually known or suspected to exist at the time of the effectiveness of the foregoing release. California Civil Code § 1542 provides:
A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that if known by him or her must have materially affected his or her settlement with the debtor or released party.
It is your intention, for yourself and for your past, present and future spouses, heirs, next of kin, guardians, beneficiaries, legal representatives, executors, administrators, successors and assigns (as well as their respective spouses, heirs, next of kin, guardians, beneficiaries, legal representatives, executors, administrators, successors and assigns) that, notwithstanding the possibility that they or their counsel could discover or gain a more complete understanding of the facts, events or law which, if presently or at the time of the Claim known or fully understood, would have affected the foregoing release, this Release shall be deemed to have fully, finally and forever settled any and all Claims, without regard to the subsequent discovery or existence of different or additional facts, events or law and that this Release shall be effective as a full and final accord and satisfaction and mutual general release of and from all released matters. You will indemnify and hold harmless Releasees from and against any Claims out of or in any way connected with (a) your access to or use of the Services, Mobility Resources, or Metropolis Locations; (b) your User Content, (c) your violation of these Terms; or (d) negligent act or omission or willful misconduct occurring at or in connection with Services, Mobility Resources, or Metropolis Locations. You understand and acknowledge that Metropolis is not obliged to carry insurance on you, and the existence of insurance shall not change, alter, or increase any liability of Metropolis or affect the terms of this release, waiver of liability and indemnification under this Section 14(b).
Limitation of Liability.
a. TO THE MAXIMUM EXTENT PERMITTED BY LAW, NEITHER METROPOLIS NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICES WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, OR DAMAGES FOR LOST PROFITS, LOST REVENUES, LOST SAVINGS, LOST BUSINESS OPPORTUNITY, LOSS OF DATA OR GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE SERVICES OF ANY KIND ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT METROPOLIS OR ANY OTHER PARTY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
b. TO THE MAXIMUM EXTENT PERMITTED BY THE LAW OF THE APPLICABLE JURISDICTION, IN NO EVENT WILL METROPOLIS'S TOTAL LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICES EXCEED THE AMOUNTS YOU HAVE PAID TO METROPOLIS FOR USE OF THE SERVICES OR ONE HUNDRED DOLLARS ($100), IF YOU HAVE NOT HAD ANY PAYMENT OBLIGATIONS TO METROPOLIS, AS APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR CERTAIN TYPES OF DAMAGES. THEREFORE, SOME OF THE ABOVE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
c. THE EXCLUSIONS AND LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN METROPOLIS AND YOU.
Governing Law and Forum Choice. These Terms and any action related thereto will be governed by the Federal Arbitration Act, federal arbitration law, and the laws of the State of California, without regard to its conflict of laws provisions. Except as otherwise expressly set forth in Section 17 "Dispute Resolution," the exclusive jurisdiction for all Disputes (defined below) that you and Metropolis are not required to arbitrate will be the state and federal courts located in Los Angeles County, California, and you and Metropolis each waive any objection to jurisdiction and venue in such courts.
a. Mandatory Arbitration of Disputes. We each agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services (collectively, "Disputes") will be resolved solely by binding, individual arbitration and not in a class, representative or consolidated action or proceeding. You and Metropolis agree that the U.S. Federal Arbitration Act governs the interpretation and enforcement of these Terms, and that you and Metropolis are each waiving the right to a trial by jury or to participate in a class action. This arbitration provision shall survive termination of these Terms.
b. Exceptions and Opt-out. As limited exceptions to Section 17(a) above: (i) we both may seek to resolve a Dispute in small claims court if it qualifies; and (ii) we each retain the right to seek injunctive or other equitable relief from a court to prevent (or enjoin) the infringement or misappropriation of our intellectual property rights.
c. Conducting Arbitration and Arbitration Rules. The arbitration will be conducted by the American Arbitration Association ("AAA") under its Consumer Arbitration Rules (the "AAA Rules") then in effect, except as modified by these Terms. The AAA Rules are available at www.adr.org or by calling 1-800-778-7879. A party who wishes to start arbitration must submit a written Demand for Arbitration to AAA and give notice to the other party as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org.
Any arbitration hearings will take place in the county (or parish) where you live, unless we both agree to a different location. The parties agree that the arbitrator shall have exclusive authority to decide all issues relating to the interpretation, applicability, enforceability and scope of this arbitration agreement.
d. Arbitration Costs. Payment of all filing, administration and arbitrator fees will be governed by the AAA Rules, and we won't seek to recover the administration and arbitrator fees we are responsible for paying, unless the arbitrator finds your Dispute frivolous. If we prevail in arbitration we'll pay all of our attorneys' fees and costs and won't seek to recover them from you. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses to the extent provided under applicable law.
e. Injunctive and Declaratory Relief. Except as provided in Section 17(b) above, the arbitrator shall determine all issues of liability on the merits of any claim asserted by either party and may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party's individual claim. To the extent that you or we prevail on a claim and seek public injunctive relief (that is, injunctive relief that has the primary purpose and effect of prohibiting unlawful acts that threaten future injury to the public), the entitlement to and extent of such relief must be litigated in a civil court of competent jurisdiction and not in arbitration. The parties agree that litigation of any issues of public injunctive relief shall be stayed pending the outcome of the merits of any individual claims in arbitration.
f. Class Action Waiver. YOU AND METROPOLIS AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, if the parties' dispute is resolved through arbitration, the arbitrator may not consolidate another person's claims with your claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this Dispute Resolution section shall be null and void.
g. Severability. With the exception of any of the provisions in Section 17(e) of these Terms ("Class Action Waiver"), if an arbitrator or court of competent jurisdiction decides that any part of these Terms is invalid or unenforceable, the other parts of these Terms will still apply.
a. Customer Support. To find more information about our service and its features, or if you need assistance with your Account, please visit the Metropolis Help Center, located at https://app.metropolis.io/help. In certain instances, Customer Service may best be able to assist you by using a remote access support tool through which we have full access to your computer. If you do not want us to have this access, you should not consent to support through the remote access tool, and we will assist you through other means. In the event of any conflict between these Terms of Service and information provided by customer service or other portions of our website, these Terms of Service will control.
b. Reservation of Rights. Metropolis and its licensors exclusively own all right, title and interest in and to the Services, including all associated intellectual property rights. You acknowledge that the Services are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the explicit limited license granted in these Terms; or (ii) to use or reference in any manner company names, logos, product or service names, trademarks or service marks of Metropolis or its licensors.
c. Entire Agreement. These Terms constitute the entire and exclusive understanding and agreement between Metropolis and you regarding the Services, and these Terms supersede and replace all prior oral or written understandings or agreements between Metropolis and you regarding the Services. If any provision of these Terms is held invalid or unenforceable by an arbitrator or a court of competent jurisdiction, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect. You may not assign or transfer these Terms, by operation of law or otherwise, without Metropolis's prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null. Metropolis may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
d. Notices. Any notices or other communications provided by Metropolis under these Terms will be given: (i) via email; or (ii) by posting to the Services. For notices made by email, the date of receipt will be deemed the date on which such notice is transmitted.
e. Waiver of Rights. Metropolis's failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Metropolis. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
Contact Information. If you have any questions about these Terms or the Services, please contact Metropolis at firstname.lastname@example.org.