PLEASE READ THESE TERMS OF USE CAREFULLY, AS THEY CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND EVERDRIVEN AND MAY AFFECT YOUR LEGAL RIGHTS, INCLUDING HOW YOU MAY RESOLVE DISPUTES. PLEASE NOTE, THESE TERMS CONTAIN A MANDATORY BINDING ARBITRATION AGREEMENT THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.

These Terms of Use (“Terms”) govern your access to and use of each mobile application (each such mobile application, an “EverDriven Platform”) made available by EverDriven Technologies, LLC (formerly ALC Schools, and referred to throughout these Terms as “EverDriven”, “we”, “us”, or “our”), and any and all related content, products, and features (collectively, the “Services”). These Terms apply to all visitors, users, and others who access or use the Services (“Users” or “you”). In these Terms, the words “including” and “include” mean “including, but not limited to.”

BY CLICKING “ACCEPT,” OR BY ACCESSING OR USING THE SERVICES, YOU CONFIRM THAT YOU MEET THE ELIGIBILITY AND AGE REQUIREMENTS DESCRIBED HEREIN, AND THAT YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.

Use of the Services

a. EverDriven Mobile App Platform

The EverDriven Platform is an application-based service that enables you to access certain information about your students receiving transportation made available through EverDriven, including the location of vehicle(s) providing transportation for your student(s), estimated arrival times for transportation to school and home, and push notifications about departure and arrival of your student(s) to their destination (collectively, “Student Transportation Data”). The Services are meant to be used by authorized parents and caretakers of students receiving transportation from EverDriven. Permission to access and use the Services is authorized by your school district and not by EverDriven.

b. Eligibility; Age Requirements

The Services may only be used by individuals who can form legally binding contracts under applicable law. The Services are not available to anyone under the age of 18, or Users who have had their User account temporarily or permanently deactivated. By accessing and/or using the Services, you represent and warrant that (a) you are at least 18 years old and that you have the right, authority, and capacity to enter into and abide by the terms and conditions of these Terms; and (b) you have all necessary authorizations, consents, and permissions to access and use the Services, including but not limited to accessing Student Transportation Data. You may not allow other persons to use your User account, and you agree that you are the sole authorized user of your account.

c. License to Use the Services

Subject to your compliance with these Terms, EverDriven grants you a revocable, limited, non-transferable license to use the Services and corresponding intellectual property solely as allowed under these Terms.

d. Accounts

To access and use the Services, Users must have an account. You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower-case letters, numbers and symbols) with your account. You must notify us immediately of any breach of security or unauthorized use of your account. EverDriven will not be liable for any losses caused by any unauthorized use of your account. You may control your User profile and how you interact with the Service by changing settings that are made available to you.

e. Authorized Use of the Services

When accessing and/or using the Services, you must comply with all applicable statutes, orders, regulations, rules and other laws. You may not use the Services for any fraudulent or unlawful purpose, and you may not take any action to interfere with the Services or any other party’s use of the Services.

In addition, you may not engage in any of the following activities: (a) reproduce, duplicate, copy, publicly display, frame, mirror, sell, resell or otherwise exploit for any commercial purposes, any portion of, use of, or access to a Services; (b) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity in connection with the Services, or express or imply that we endorse any statement you make; (c) violate, or attempt to violate, the security of the Services; (d) interfere in any manner with the operation of the Services or monitor the availability, performance, or functionality of the Services; (e) disseminate any viruses, worms, spyware, adware, or other malicious computer code, file or program that is harmful or invasive or is intended to damage or hijack the operation of, or monitor the use of, any hardware, software or equipment; (f) reverse engineer, disassemble, decompile, or otherwise attempt to derive the method of operation of the Services; (g) use any data mining, bots, spiders, automated tools or similar data gathering and extraction methods, directly or indirectly, on the Services or to collect any information from the services or any other User; or (h) assist or permit any persons in violating these Terms or other applicable laws or rules governing the use of the Services.

EverDriven Communications

a. Email communications

By becoming a User and providing us with your email address, you agree to receive email communications from EverDriven, including but not limited to: operational communications concerning your User account or use of the EverDriven Platform or Services, updates or changes to features of the EverDriven Platform or Services or these Terms, offers and other promotional messages. If you do not want to receive promotional email messages from us, you may opt out at any time by following the “unsubscribe” instructions contained in any promotional email that you receive. If you decide not to receive promotional emails, we may still send you service-related emails.

b. SMS/Text Messaging

BY PARTICIPATING IN A MESSAGING SERVICE, YOU ARE AGREEING TO THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT, AND CLASS ACTION WAIVER CLAUSE OF THESE TERMS, AS WELL AS THE REST OF THE TERMS HEREIN, INCLUDING THE LIMITATION OF LIABILITY CLAUSE.

We may offer you the option to receive recurring SMS/text messages, such as messages, notification, or alerts related to certain feature of the EverDriven Platform or Service (the “Messaging Service”). If you opt in to a Messaging Service (including agreeing to, enrolling in, signing up for, or otherwise consenting to receive text messages from us), you authorize EverDriven to send recurring SMS/text messages using an automatic telephone dialing system to the mobile phone number provided or call you at the number provided. Standard text messaging and data rates may apply. If you wish to opt out of receiving texts or calls from EverDriven (including operational or transactional texts or calls), you can reply to any message received at any time by responding with the word “STOP” from the mobile device receiving the messages, however you acknowledge that opting out of receiving all texts or calls on your device will prevent your use of the EverDriven platform or the services.

c. Push Notifications

If you wish to modify or stop push notifications, you may do so using the settings of your mobile device.

Intellectual Property Rights

As between you and EverDriven, all intellectual property rights in and to the Services are owned by EverDriven or its licensors, absolutely and in their entirety. These rights include and are not limited to database rights, copyright, design rights (whether registered or unregistered), patent rights, trademark rights, and other similar proprietary rights wherever existing in the world together with the right to apply for protection of the same. The rights granted in these Terms are licensed (not sold) to you, and you have no rights in, or to, the Services or its content other than the right to use the Services in accordance with these Terms.

All trademarks, logos, service marks, company or product names associated with the Services, and related goodwill (“Content”), are the property of EverDriven or their respective owners. You do not acquire any right, title or interest in any of the Content by accessing or using the Services. Any rights not expressly granted herein are reserved. Except as set forth below, the use of any Content available on a Site is strictly prohibited.

In the event you choose to share information with EverDriven, you acknowledge and agree that any questions, comments, suggestions, ideas, feedback, or other information (“Submissions”) provided by you to us are non-confidential and shall become the sole property of EverDriven. EverDriven shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. EverDriven and other EverDriven logos, designs, graphics, icons, scripts and service names are registered trademarks, trademarks or trade dress of EverDriven in the United States.

Third-Party App Store Providers

You acknowledge and agree that this agreement is between you and EverDriven only, and not with Apple, Google or any other third-party service provider (“App Store Provider”). As between us and an App Store Provider, EverDriven is solely responsible for the EverDriven Platform. If anything in these Terms conflicts with any usage rules from an App Store Provider, such terms from the App Store Provider control (only so far as those terms conflict with these Terms, and then exclusively for your use of the EverDriven Platform). All rights you have to use the EverDriven Platform are for use only on appropriate products (which may require branding from the App Store Provider or other entities) that you own or control and are non-transferable. We are solely responsible for providing any maintenance and support services for the EverDriven Platform. No App Store Provider has any obligation whatsoever to furnish any maintenance and support services for the Mobile App, nor any warranties for the same.

WE DISCLAIM ALL WARRANTIES RELATED TO ANY MOBILE APP.

However, in the event that the EverDriven Platform fails to conform to any applicable warranty that we cannot disclaim according to applicable law, you may have the right to notify the App Store Provider, and the App Store Provider may refund the purchase price for the EverDriven Platform, if any. To the maximum extent permitted by applicable law, no App Store Provider will have any other warranty obligation whatsoever with respect to the EverDriven Platform, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will not be the App Store Provider’s responsibility.

We, not the App Store Provider, are responsible for addressing any claims relating to the EverDriven Platform, including, but not limited to: (i) product liability claims; (ii) any claim that the EverDriven Platform fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection, privacy, or similar legislation, (iv) claims that the EverDriven Platform infringes a third party’s intellectual property rights as well as the investigation, defense, settlement and discharge of any such intellectual property infringement claim. By using the EverDriven Platform, you represent and warrant that (a) 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 (b) you are not listed on any U.S. Government list of prohibited or restricted parties. You acknowledge and agree that the App Store Provider, and its subsidiaries, are third party beneficiaries of these Terms, and that, upon your acceptance of these Terms and your use of the EverDriven Platform, the App Store Provider 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.

Disclaimer of Warranties

The following disclaimers are made on behalf of EverDriven, our affiliates, subsidiaries, parents, successors and assigns, and each of our respective officers, directors, employees, agents, and representatives.

THE EVERDRIVEN PLATFORM AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND USE OF THE EVERDRIVEN PLATFORM AND SERVICES IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE EVERDRIVEN PLATFORM AND SERVICES ARE PROVIDED WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, PRIVACY, SECURITY, ACCURACY, TIMELINESS, QUALITY, OR NON-INFRINGEMENT.

Some states may not allow the disclaimer of implied warranties, so some of the above exclusions may not apply to you but shall apply to the maximum extent permitted by applicable laws.

WE DO NOT WARRANT THAT (A) THE EVERDRIVEN PLATFORM OR SERVICES OR RESULTS THAT ARE OBTAINED FROM YOUR USE OF THE EVERDRIVEN PLATFORM OR SERVICES WILL BE ACCURATE, COMPLETE, RELIABLE, CURRENT, SECURE, UNINTERRUPTED, ALWAYS AVAILABLE, OR ERROR-FREE, OR WILL MEET YOUR REQUIREMENTS; (B) THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR (C) THAT THE EVERDRIVEN PLATFORM OR SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DISCLAIM LIABILITY FOR, AND NO WARRANTY IS MADE WITH RESPECT TO, CONNECTIVITY AND AVAILABILITY OF THE EVERDRIVEN PLATFORM OR SERVICES.

EVERDRIVEN EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM THE UNAUTHORIZED USE OF YOUR USER ACCOUNT. WE ARE NOT RESPONSIBLE FOR THE USE OF ANY PERSONAL INFORMATION THAT YOU DISCLOSE TO OTHER USERS ON THE EVERDRIVEN PLATFORM OR THROUGH THE SERVICES. PLEASE CAREFULLY SELECT THE TYPE OF INFORMATION THAT YOU POST ON THE EVERDRIVEN PLATFORM OR THROUGH THE SERVICES OR RELEASE TO OTHERS. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF OTHER USERS (INCLUDING UNAUTHORIZED USERS, OR “HACKERS”). UNDER NO CIRCUMSTANCES WILL WE BE RESPONSIBLE FOR ANY LOSS OR DAMAGE RESULTING FROM YOUR RELIANCE ON INFORMATION OR OTHER CONTENT POSTED BY THIRD PARTIES, WHETHER ON THE EVERDRIVEN PLATFORM OR OTHERWISE. WE RESERVE THE RIGHT, BUT WE HAVE NO OBLIGATION, TO MONITOR THE MATERIALS POSTED ON THE EVERDRIVEN PLATFORM AND REMOVE ANY SUCH MATERIAL THAT IN OUR SOLE OPINION VIOLATES, OR IS ALLEGED TO VIOLATE, THE LAW OR THESE TERMS OR WHICH MIGHT BE OFFENSIVE, ILLEGAL, OR THAT MIGHT VIOLATE THE RIGHTS, HARM, OR THREATEN THE SAFETY OF USERS OR OTHERS.

LOCATION DATA PROVIDED BY THE EVERDRIVEN PLATFORM IS FOR BASIC LOCATION PURPOSES ONLY AND IS NOT INTENDED TO BE RELIED UPON IN SITUATIONS WHERE PRECISE LOCATION INFORMATION IS NEEDED OR WHERE ERRONEOUS, INACCURATE OR INCOMPLETE LOCATION DATA MAY LEAD TO DEATH, PERSONAL INJURY, PROPERTY OR ENVIRONMENTAL DAMAGE. NEITHER EVERDRIVEN, NOR ANY OF ITS CONTENT PROVIDERS, GUARANTEES THE AVAILABILITY, ACCURACY, COMPLETENESS, RELIABILITY, OR TIMELINESS OF LOCATION DATA TRACKED OR DISPLAYED BY THE EVERDRIVEN PLATFORM. ANY OF YOUR INFORMATION, INCLUDING GEO-LOCATIONAL DATA, YOU UPLOAD, PROVIDE, OR POST ON THE EVERDRIVEN PLATFORM MAY BE ACCESSIBLE TO EVERDRIVEN AND CERTAIN USERS OF THE EVERDRIVEN PLATFORM. EVERDRIVEN SHALL NOT BE RESPONSIBLE OR LIABLE FOR ANY FEES, COSTS, OR OVERAGE CHARGES ASSOCIATED WITH ANY DATA PLAN YOU USE TO ACCESS THE EVERDRIVEN PLATFORM.

Privacy and Security

Submission of your information through or in connection with your access and/or use of the EverDriven Platform and Services is governed by our Privacy Policy, which is located by clicking here: EverDriven Privacy Policy

EverDriven cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your information at your own risk.

Liability Limitations

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL EVERDRIVEN, INCLUDING OUR AFFILIATES, SUBSIDIARIES, PARENTS, SUCCESSORS AND ASSIGNS, AND EACH OF OUR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, OR REPRESENTATIVES (COLLECTIVELY “EVERDRIVEN” FOR PURPOSES OF THIS SECTION), BE LIABLE TO YOU FOR ANY DIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, CONSEQUENTIAL, OR INDIRECT DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR DELETION, CORRUPTION, LOSS OF DATA, LOSS OF PROGRAMS, FAILURE TO STORE ANY INFORMATION OR OTHER CONTENT MAINTAINED OR TRANSMITTED BY THE EVERDRIVEN PLATFORM, SERVICE INTERRUPTIONS, OR FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES) ARISING OUT OF OR IN CONNECTION WITH THE EVERDRIVEN PLATFORM, SERVICES, OR THESE TERMS. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS EVEN IF WE OR OUR AGENTS OR REPRESENTATIVES KNOW OR HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. CERTAIN JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU.

Availability and Termination

EverDriven may modify the Services with respect to you or to Users generally, or cease offering or deny access to the Services or any portion thereof, at any time for any reason.

In addition to any right or remedy that may be available to us under applicable law, we may modify, suspend, or terminate your access to or use of our Service or any portion thereof at any time, with or without prior notice or liability, for any reason whatsoever or no reason, including, without limitation, if we believe you have breached these Terms.

All provisions of the Terms shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability. Upon termination for any reason or no reason, your right to access and use the EverDriven Platform or Service will immediately cease.

If you wish to terminate your account anytime for any reason, you may simply discontinue using the Service.

Modifications to the Terms

EverDriven reserves the right to modify or update these Terms from time to time, and such modifications shall become effective immediately upon posting unless otherwise noted. Continued use of the Services after any such changes shall constitute your agreement to such changes. Unless material changes are made to the arbitration provisions herein, you agree that modification of these Terms does not create a renewed opportunity to opt out of arbitration (if applicable).

We will use reasonable efforts to notify you of material changes to these Terms. Such efforts might include posting notice on the EverDriven Platform, sending an email to the address we have on file, or a message through the Services. Please check the “Last Updated” legend at the bottom of this page to see when these Terms were last revised. If you do not agree to Terms as modified, then you must discontinue your use of the Services.

Indemnification

Except to the extent prohibited under applicable law, you agree to indemnify, defend and hold harmless EverDriven, its principals, officers, directors, representatives, employees, contractors, licensors, licensees, suppliers and agents, from and against any claims, losses, damages, liabilities, obligations, costs, expenses (including attorney’s and other professional services fees), actions or demands arising out of: (a) your access and/or use of the EverDriven Platform or Service; (b) your breach of any of these Terms; (c) anything you post on, upload to, or otherwise submit to the EverDriven Platform or Service; (d) any activity related to your account; and (e) your violation of any applicable law, rule or regulation. This includes any negligent or illegal conduct by you, any person or entity accessing the Service using your account whether such access is obtained via fraudulent or illegal means.

Dispute Resolution and Arbitration Agreement

PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.

YOU AND EVERDRIVEN MUTUALLY AGREE TO WAIVE OUR RESPECTIVE RIGHTS TO RESOLUTION OF DISPUTES IN A COURT OF LAW BY A JUDGE OR JURY AND AGREE TO RESOLVE ANY DISPUTE BY ARBITRATION. ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. YOU MAY CHOOSE TO BE REPRESENTED BY A LAWYER IN ARBITRATION OR PROCEED WITHOUT ONE. THIS ARBITRATION PROVISION SHALL SURVIVE TERMINATION OF THESE TERMS.

Both you and EverDriven agree to mandatory, binding arbitration for any claim, dispute, or controversy arising out of or relating to (1) any aspect of the relationship between you and EverDriven, whether based in contract, tort, statute, or any other legal theory; (2) this Terms or any other agreement concerning the subject matter hereof; (3) any breach, default, or termination of these Terms; and (4) the interpretation, validity, or enforceability of these Terms (each, a “Dispute”). Any questions about whether any Dispute is subject to arbitration shall be resolved by interpreting this arbitration provision in the broadest way the law will allow it to be enforced.

Arbitration should be held in Colorado before one arbitrator or submitted to small claims court in Colorado. If the arbitrator finds this location to be unreasonably burdensome to you, a new location may be selected or arbitration may be conducted over the phone, using video conferencing, or similar. You may be entitled to an in-person hearing near your place of residence. Judgment on the award may be entered in any court having appropriate jurisdiction. This clause shall not preclude parties from seeking provisional remedies in aid of arbitration from a court of appropriate jurisdiction. Any arbitration arising out of or related to these Terms shall be conducted in accordance with the expedited procedures set forth in the JAMS Comprehensive Arbitration Rules and Procedures as those Rules exist on the effective date of these Terms, including Rules 16.1 and 16.2 of those Rules.

No Class Actions

EXCEPT FOR COORDINATED CLAIMS (AS DEFINED BELOW), YOU AGREE THAT ANY CLAIMS OR ARBITRATION UNDER THESE TERMS WILL TAKE PLACE ON AN INDIVIDUAL BASIS; YOU AND WE AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED, AND YOU AND WE ARE AGREEING TO GIVE UP THE ABILITY TO PARTICIPATE IN A CLASS ARBITRATION OR CLASS ACTION. Further, except for Coordinated Claims (defined below), unless both you and we agree otherwise, the arbitrator may not consolidate more than one person’s claims with your or our claims respectively and may not otherwise preside over any form of aa representative or class proceeding.

If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void and shall be severed from the remainder of these Terms.

The arbitrator 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.

Hearing: If your claim is for USD $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, through a telephonic or video hearing, or by an in-person hearing as established by the JAMS Rules. If your claim exceeds USD $10,000, the right to a hearing will be determined by the JAMS Rules. In the event that the arbitration will be conducted solely on the basis of submitted documents, the arbitrator’s decision and award will be made and delivered within six (6) months of the selection of the arbitrator, unless extended by the arbitrator. Except as expressly set forth herein, the payment of all filing, administration and arbitrator fees will be governed by the JAMS Rules.

In the event arbitration awards you damages of an amount at least USD $100 greater than our last documented settlement offer, we will pay your awarded damages or USD $2,500, whichever is greater.

Coordinated Proceedings: If twenty-five (25) or more individuals initiate Notices of dispute with us raising similar claims, and counsel for the individuals bringing the claims are the same or are coordinated for these individuals (“Coordinated Claims “), the claims shall proceed in arbitration in a coordinated proceeding. Counsel for the individuals and counsel for EverDriven shall each select five (5) cases to proceed first in arbitration in a bellwether proceeding (“Test Cases”). The remaining cases shall not be filed in arbitration until the first ten (10) have been resolved. If the parties are unable to resolve the remaining cases after the conclusion of the Test Cases, each side may select another five (5) cases to proceed to arbitration for a second bellwether proceeding. This process may continue until the parties have determined an objective methodology to make an offer to resolve each and every outstanding claim. A court will have authority to enforce this clause and, if necessary, to enjoin the mass filing of arbitration demands against EverDriven. Individuals bringing Coordinated Claims shall be responsible for up to USD $250 of their filing fees or the maximum permissible under the applicable arbitration rules.

Injunctive Relief: Notwithstanding the foregoing, you and we both agree that you or we may sue in court to enjoin infringement or other misuse of intellectual property rights or in other scenarios where injunctive relief is appropriate. In the event a court or arbitrator having jurisdiction finds any portion of these Terms unenforceable, that portion shall not be effective, and the remainder of these Terms shall remain effective. No waiver, express or implied, by either party of any breach of or default under these Terms will constitute a continuing waiver of such breach or default or be deemed to be a waiver of any preceding or subsequent breach or default.

Confidentiality: The parties shall maintain the confidential nature of the arbitration proceeding and the Award, including the hearing, except as may be necessary to prepare for or conduct the arbitration hearing on the merits, or except as may be necessary in connection with a court application for a preliminary remedy, a judicial challenge to an award or its enforcement, or unless otherwise required by law or judicial decision.

Governing Rules: Notwithstanding anything to the contrary in these Terms (including in Section 19(a), any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C., Secs. 1-16). In any arbitration arising out of or related to these Terms, the arbitrator is not empowered to award punitive or exemplary damages, except where permitted by statute, and the parties waive any right to recover any such damages. In any arbitration arising out of or related to these Terms, the arbitrator may not award any incidental, indirect or consequential damages, including damages for lost profits. The parties adopt and agree to implement the JAMS Optional Arbitration Appeal Procedure (as it exists on the effective date of these Terms) with respect to any final award in an arbitration arising out of or related to these Terms.

Third-Party Terms

Your use of the Services may be subject to additional agreements with third parties, which may be provided via the Services or elsewhere (“Third-Party Terms”). You represent and warrant that you have agreed to and will comply with all Third-Party Terms. EverDriven is not responsible for any Third-Party Terms or the materials or functionality to which they apply.

General Terms

a. Governing Law

These Terms shall be governed by the laws of the State of California without regard to choice of law principles. This choice of law provision is only intended to specify the use of California law to interpret these Terms and is not intended to create any other substantive right to non-Californians to assert claims under California law whether by statute, common law, or otherwise.

b. Severability

If any provision of these Terms is held to be invalid or unenforceable, such provision shall be replaced with a provision that is valid and binding and that has, to the greatest extent possible, a similar effect as the invalid or non-binding provision, given the contents and purpose of these Terms. If that is not possible, the provision shall be removed, and the rest of these Terms will be enforceable.

c. Assignment

You agree that EverDriven may assign these Terms at any time with or without notice to you. You may not assign these Terms or any of your rights or obligations under these Terms without our prior written consent.

d. Notices

Except as explicitly stated otherwise, any notices to EverDriven shall be given by certified mail, postage prepaid and return receipt requested to EverDriven Technologies, LLC (5680 Greenwood Plaza Blvd, Suite 550, Greenwood Village, CO 80111). Any notices to you shall be provided to you through the EverDriven Platform or given to you via the email address or physical address you provide to EverDriven during the registration process.

e. No Waiver

No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and EverDriven’s failure to act with respect to a breach of these Terms shall not constitute a waiver of EverDriven’s right to act with respect to subsequent or similar breaches.

f. Entire Agreement

These Terms sets forth the entire understanding and agreement between you and EverDriven with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.

g. Contact

If you have any questions, complaints or claims with respect to the App or the Terms, you can contact EverDriven at (877) 225-7750, or mail 5680 Greenwood Plaza Blvd, Suite 550, Greenwood Village, CO 80111.

Additionally, under California Civil Code Section 1789.3, California users are entitled to the following consumer rights notice: California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

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