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ELSE OR FOR WARRANTIES WHICH MAY BE PROVIDED BY THE MANUFACTURER OF YOUR DEVICE.
2. Waivers and Limitations of Liability: UNLESS THE LAW FORBIDS IT IN ANY PARTICULAR CASE, THIS LIMITATION AND WAIVER WILL APPLY
REGARDLESS OF THE THEORY OF LIABILITY, WHETHER STATUTORY, FRAUD, MISREPRESENTATION, BREACH OF CONTRACT, PERSONAL
INJURY, PRODUCTS LIABILITY OR ANY OTHER THEORY, WHICH MEANS THAT NEITHER OF US WILL SEEK ANY INDIRECT, SPECIAL,
CONSEQUENTIAL OR PUNITIVE DAMAGES FROM THE OTHER. THIS LIMITATION AND WAIVER ALSO APPLIES TO ANY CLAIMS YOU MAY
BRING AGAINST ONE OF OUR DISTRIBUTORS, ORIGINAL EQUIPMENT MANUFACTURERS, SUPPLIERS AND PARTNERS, TO THE EXTENT
THAT WE WOULD BE REQUIRED TO INDEMNIFY OR HOLD HARMLESS SUCH PERSON FOR SUCH CLAIM. YOU AGREE THAT WE ARE NOT
LIABLE FOR PROBLEMS CAUSED BY YOU OR A THIRD PARTY; BY BUILDINGS, ACCIDENTS, HILLS, NETWORK CONGESTION, TUNNELS,
TOWERS, WEATHER OR OTHER THINGS WE DON'T CONTROL; OR BY ANY ACT OF GOD. YOU ALSO AGREE WE AREN'T LIABLE FOR MISSED
DATA OR INFORMATION OR DELETIONS OF DATA OR INFORMATION FROM YOUR DEVICE, EVEN IF YOU'VE SAVED THEM, OR FOR OTHER
INFORMATION THAT MAY BE LOST OR DELETED IF YOU GET YOUR DEVICE SERVICED BY US. PANDIGITAL AND ITS AFFILIATES AND
PARTNERS ARE NOT RESPONSIBLE AND ASSUME NO LIABILITY FOR CONTENT OR ADVERTISEMENTS ON YOUR DEVICE OR THE
PANDIGITAL SERVICE, INCLUDING, WITHOUT LIMITATION, ANY LIBEL, DEFAMATION, OBSCENITY OR PROFANITY YOU MAY ENCOUNTER
USING THE SERVICE. IF ANOTHER SERVICE PROVIDER IS INVOLVED IN ANY PROBLEM, YOU ALSO AGREE TO ANY LIMITATIONS OF
LIABILITY THAT THAT SERVICE PROVIDER ALSO IMPOSES.
J.
DISPUTES AND MANDATORY ARBITRATION CLAUSE.
IT IS IMPORTANT THAT YOU READ THIS ARBITRATION CLAUSE. IT PROVIDES THAT YOU
MAY BE REQUIRED TO SETTLE ANY CLAIM OR DISPUTE THROUGH ARBITRATION, EVEN IF YOU WOULD PREFER TO LITIGATE SUCH CLAIMS
BEFORE A JURY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL THE
DECISION, MAY NOT BE AVAILABLE IN ARBITRATION OR MAY BE MORE LIMITED.
You may opt out of Mandatory Arbitration within the first sixty (60) days of receiving a copy of this Contract. Please contact our Customer Care department if
you would like to opt out of Mandatory Arbitration. If you do not opt out within sixty (60) days of receipt of this Contract, you accept Mandatory Arbitration. If
you opt out, you will not be required to arbitrate any claims. There is no penalty or other negative consequence if you do opt out.
1. GENERAL ARBITRATION PROVISION: The Federal Arbitration Act applies to this Contract. Any dispute, controversy or claim between us, regardless of
whether the legal theory is based on this Contract, another common law theory, a statute or another ground, will be settled by neutral arbitrators before the
American Arbitration Association (“AAA”). You can also bring any issues you may have to the attention of federal, state, or local government agencies and
they can, if the law allows, seek relief against us on your behalf. This arbitration provision is not mandatory in the event of claims below the applicable
small claims limit in your jurisdiction. You or PANDIGITAL may bring any such small claims matters outside of the arbitration setting, provided they are not
brought in a court of general jurisdiction.
2. FORUM SELECTION AND APPLICABLE PROCEDURE: Unless you and PANDIGITAL agree otherwise, the arbitration will take place in the county of
your billing address. For claims over $10,000 the AAA’s Wireless Industry Arbitration (“WIA”) rules will apply. In large/complex cases under the WIA rules,
the arbitrators must apply the Federal Rules of Evidence and a party may have the award reviewed by a panel of three new arbitrators. For claims of
$10,000 or less, the complaining party can choose either the AAA’s Supplementary Procedures for Consumer-Related Disputes or individual action in
small claims court. You can obtain procedures, rules and fee information from the AAA (www.ADR.org) or from us. Each of us may be required to
exchange relevant evidence in advance. For claims of $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on
the basis of documents submitted to the arbitrator, by telephonic hearing, or by an in-person hearing. To initiate arbitration under this Contract, contact the
AAA, which will provide the necessary forms for you to submit. In the case of a conflict between any arbitration rules and this Contract, this Contract
governs.
3. NO CLASS ARBITRATION: THIS CONTRACT DOES NOT PERMIT CLASS ARBITRATIONS EVEN IF AAA OR WIA PROCEDURES OR RULES
WOULD. The arbitrator may award monetary 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. IF THIS PROHIBITION ON CLASS ARBITRATIONS IS DEEMED UNENFORCEABLE UNDER
APPLICABLE STATE LAW, THEN THE ENTIRE ARBITRATION CLAUSE SHALL BE DEEMED UNENFORCEABLE AND ANY CLASS CLAIMS SHALL
BE BROUGHT AND ADJUDICATED IN A COURT OF COMPETENT JURISDICTION. IN NO CIRCUMSTANCE SHALL CLASS CLAIMS BE BROUGHT
OR ADJUDICATED IN ARBITRATION.
4. CLAIM NOTICES: If you or we have a claim that arises from or relates to your PANDIGITAL subscription, the balance on your account, your Device, any
prior account you had with us, your application, or the enforceability of this Contract or any prior agreement, before initiating, joining, or participating in any
lawsuit, arbitration, or other legal proceeding, the complaining party shall give the other party: (1) a written notice of the claim (referred to below as a “Claim
Notice”), at least 30 days before initiating any such proceeding, explaining in reasonable detail the nature of the claim and any supporting facts; and (2) a
reasonable good faith opportunity to resolve the claim without the necessity of a lawsuit, arbitration, or other legal proceeding. Any Claim Notice directed to
PANDIGITAL shall be sent to us at PANDIGITAL Incorporated, Attn: General Counsel, 5775 Morehouse Drive, San Diego, California 92121. Any Claim
Notice directed to you shall be sent to your address appearing in our records or, if you are represented by counsel, to your attorney at your attorney’s office.
5. USE OF ARBITRATION AWARD OR JUDGMENTS IN SUBSEQUENT CASES: An arbitration award and any judgment confirming it only applies to the
arbitration in which it was awarded and can’t be used in any other case except to enforce the award itself.
K. Miscellaneous:
1. Your Privacy: IMPORTANT INFORMATION – PLEASE READ CAREFULLY BEFORE MAKING YOUR PURCHASE DECISIONS. Please visit the
PANDIGITAL Privacy Statement located at www.pandigital.net/legal/privacy-statement. By using the PANDIGITAL service, you agree to the terms of our
Privacy Statement and that we may collect and transmit information about you and your use of the service in accordance therewith.
2. Credit Cards: You authorize us to investigate your credit history at any time and to share credit information about you with credit reporting agencies and
other PANDIGITAL companies, affiliates, agents or representatives. If you ask, we'll tell you the name and address of any credit agency that gives us a
credit report about you.
3. Special Discounts: You may be eligible for a discount on your monthly access or subscription fee based on your affiliation with an organization that has an
agreement with us, or if you qualify under any government employee discount program. To make sure that you meet the eligibility requirements for such a
discount, we may require you to provide proof of your affiliation with your organization upon activation of the service or when you make changes to your
account or (other than for a government employee discount program) we may share certain information relating to your service (including, without
limitation, your name and total monthly charge) with your organization to verify your affiliation. We may adjust your discount in accordance with your
organization's agreement with us and remove your discount after your minimum term expires or if you end or change your affiliation with the organization.
You agree that any change or removal of your discount, based on your affiliation with the organization or your organization's agreement with us, shall not
be considered to have a material adverse effect on you.
4. About You: This Service is available for individuals aged 13 years or older. If you are 13 or older but under the age of 18, you should review these terms
and conditions with your parent or guardian to make sure that you and your parent or guardian understand these terms and conditions. If you're ordering
for an organization, you're representing that you're authorized to bind it, and where the context requires, "you" means the organization.
5. Intellectual Property Rights: You may not, and you agree that you shall not, copy, decompile, disassemble, reverse engineer or manipulate any technology
in, or otherwise modify or tamper with, any Devices and equipment used to receive the PANDIGITAL service. Nothing under this Contract or the fact that
you have access to and use of the PANDIGITAL service gives you any right, title or interest or license in or to any programming and content available on
the PANDIGITAL service. Nothing under this Contract or the fact that you have access to and use of the PANDIGITAL service gives you any right, title or
interest or license to reproduce or otherwise use our or any third party trademarks, service marks, graphics, or logos. You may not, and you agree that you
