Assignment. Customer may not assign this EULA or any of its rights or obligations hereunder to any third party without Faastrak’s prior written consent. Any assignment in violation of this section shall be void. Faastrak may assign this EULA without restriction and without any notice to Customer. The terms of this EULA shall be binding upon permitted successors and assigns.

Arbitration. This Section 14(b) only applies to residents of the United States or any other jurisdiction outside of Canada. Except as expressly provided in this EULA, all controversies, disputes, demands, counts, claims, or causes of action between Customer and Faastrak arising out of, under, or related to this EULA or Faastrak’s privacy practices (including any action Faastrak takes or authorizes with respect to information about or provided by Customer) shall be settled exclusively through binding arbitration.

Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by this EULA, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This EULA to arbitrate disputes includes all claims arising out of or relating to any aspect of this EULA, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of this EULA. CUSTOMER UNDERSTANDS AND AGREES THAT, BY ENTERING INTO THIS EULA, CUSTOMER AND FAASTRAK ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

Customer and Faastrak must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by Customer and Faastrak, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY CUSTOMER OR FAASTRAK MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that Customer is able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Faastrak will pay as much of Customer’s filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) Faastrak also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either Customer or Faastrak shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/Faastrak customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.

Notwithstanding the foregoing, either Customer or Faastrak may bring an individual action in small claims court. In addition, if Customer is a user outside of the United States, the dispute resolution provision in our Privacy Policy (if any), and not this arbitration provision, shall apply to any disputes related to privacy. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration provision. Such claims shall be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in Washington State. Additionally, notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts. A request for interim measures shall not be deemed a waiver of the right to arbitrate.

With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither Customer nor Faastrak shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between Customer and Faastrak shall be exclusively brought in the state or federal courts specified in subsection “(d)” above. For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, Customer may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.

Choice of Law. If Customer is a resident of Canada, this EULA is governed by the laws of British Columbia, Canada, and Customer agrees to submit to the personal and exclusive jurisdiction of the courts located within Vancouver, British Columbia for the purpose of litigating any dispute relating in any way to this EULA or the Services. Faastrak operates the Services from its offices in British Columbia and Washington State and Faastrak makes no representation that the Services are appropriate or available for use in other locations. If Customer is a resident of the United States, or any other jurisdiction outside of Canada, this EULA is governed by and construed in accordance with the substantive laws of Washington State, without regard to conflicts of law principles, and Customer and Faastrak are subject to the arbitration provisions in Section 14(b). If Customer is a resident of the United States or any other jurisdiction outside of Canada, and if a lawsuit or court proceeding is permitted under this EULA, then Customer and Faastrak agree to submit to the personal and exclusive jurisdiction of the state courts and federal courts located within King County, Washington for the purpose of litigating any dispute. The U.N. Convention on Contracts for the International Sale of Goods and the Unfair Contracts Act in the United Kingdom shall not apply to this EULA. Any claim against Faastrak must be brought within six months after it arose, or be barred.

Right to List As A Customer. Customer agrees that Faastrak may utilize Customer’s entity name in listings of current customers. Use of Customer’s name in any other marketing materials or press announcements will be submitted to Customer in advance for approval, and such approval will not be unreasonably withheld.

Compliance with Export Regulations. Customer has or shall obtain in a timely manner all necessary or appropriate licenses, permits or other governmental authorizations or approvals; shall indemnify and hold Faastrak harmless from, and bear all expense of, complying with all foreign or domestic laws, regulations or requirements pertaining to the importation, exportation, or use of the technology to be developed or provided herein. Customer shall not directly or indirectly export or re-export (including by transmission) any regulated technology to any country to which such activity is restricted by regulation or statute, without the prior written consent, if required, of the administrator of export laws.

European Union Residents. If Customer resides in the European Union (EU) or if any transfer of information between Customer and the Service is governed by the European Union Data Protection Directive or national laws implementing that Directive, then Customer consents to the transfer of such information outside of the European Union to its country and to such other countries as may be contemplated by the features and activities provided by the Service.

Construction. Except as otherwise provided herein, the Parties rights and remedies under this EULA are cumulative. The term “including” means “including without limitation.” The headings of sections of this EULA are for reference purposes only and have no substantive effect.

Force Majeure. Customer acknowledges and understands that if Faastrak is unable to provide Services as a result of a force majeure event Faastrak will not be in breach of this EULA and will not be liable for delays caused by such event. A force majeure event means any event beyond the control of Faastrak.

Severable. NOTHING IN THIS EULA WILL AFFECT ANY NON-WAIVABLE STATUTORY RIGHTS THAT APPLY TO CUSTOMER. Any provision hereof found by a tribunal of competent jurisdiction to be illegal or unenforceable shall be automatically conformed to the minimum requirements of law and the validity, legality, and enforceability of all other provisions shall remain in full force and effect.

Waiver. The failure to exercise, or delay in exercising, a right, power or remedy provided in this EULA or by law in one instance shall not preclude enforcement thereof on future occasions.

Independent Contractors. Customer’s relationship to Faastrak is that of an independent contractor, and neither Party is an agent or partner of the other. Customer will not have, and will not represent to any third party that it has, any authority to act on behalf of Faastrak.

Entire Agreement. This EULA constitutes the entire agreement between the Parties with respect to the subject matter hereof and supersedes any and all prior agreements, negotiations, or other communications, whether written or oral. This EULA may be executed in one or more counterparts, each of which shall be deemed an original and all of which shall be taken together and deemed to be one instrument. A printed version of this EULA and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this EULA to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
Amendments. Faastrak reserves the right to change this EULA at any time and from time to time upon notice by posting revisions to this EULA (including the description of the Services) on Faastrak’s website. Continued use of the Services after Customer become aware of any such changes shall constitute Customer’s consent to such changes. Customer is responsible for regularly reviewing the most current version of this EULA which is available on Faastrak’s website.

English Language. It is the express wish of the parties that this EULA and all related documents be drawn up in English. C’est la volonté expresse des parties que la présente convention ainsi que les documents qui s’y rattachent soient rédigés en anglais.

NOTICE REGARDING APPLE. Customer acknowledges that this EULA is between Customer and Faastrak only, not with Apple, and Apple is not responsible for the Services and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. In the event of any failure of the Services to conform to any applicable warranty, then Customer may notify Apple and Apple will refund any applicable purchase price for the App to Customer; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Services. Apple is not responsible for addressing any claims by Customer or any third party relating to the Services or Customer’s possession and/or use of the Services, including, but not limited to: (i) product liability claims; (ii) any claim that the Services 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 the Services and/or Customer’s possession and use of the App infringe that third party’s intellectual property rights. Customer agrees to comply with any applicable third party terms, when using the Services. Apple, and Apple’s subsidiaries, are third party beneficiaries of this EULA, and upon Customer’s acceptance of this EULA, Apple will have the right (and will be deemed to have accepted the right) to enforce this EULA against Customer as a third party beneficiary of this EULA. Customer hereby represent and warrant that (i) Customer is 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) Customer is not listed on any U.S. Government list of prohibited or restricted parties.