This Agreement memorializes the terms of service between The 4Less Group, Inc. ("Parent"), Auto Parts 4 Less, Inc. ("Owner" and "AP4L"), (Parent and Owner, together, shall be referred to herein as "4Less Parties") and __________________________________ (designated herein as "User"). User seeks to utilize the software, goodwill, technology and advertising benefits of the websites and portals, and associated services, offered and maintained by AP4L (designated herein as "AP4L Services") for sales of User's goods, products and services. To this effect, the parties herein voluntarily enter into this Agreement, which sets forth the terms of service that govern User's access to, and use of, AP4L Services.
By registering for or using the AP4L Services, User (on behalf of itself and the business(es) it represents) agrees to be bound by the terms of this Agreement, including any and all Appendices and modifications to the same. AP4L will allow and enable User to list its goods, products and services on one or more of its websites or portals, which are maintained by AP4L as part of AP4L Services and will allow User to conduct merchandising and promote its goods, products and services in accordance with this Agreement.
The websites, portals and other affiliated products offered by AP4L Services are defined in Appendix "A".
3. Requirements To Enroll
To begin use of the AP4L Services, User must complete the registration process and be approved to use the AP4L Services (such registration is attached hereto as Appendix "B"). User must be a registered business, whether a corporation, partnership, joint venture, sole proprietorship, or other organization form recognized by User's state of domicile (the state where incorporated, or the state where it has its principal place of business, if different), and must be licensed, insured, and in compliance with any and all laws of such state of domicile. Use of the AP4L Services is limited to parties that can lawfully enter into and form contracts under the applicable laws of their state of domicile and United States law. User agrees that it will provide the current name as it appears on its formation or organization documents, as well as a current street address for its principal place of business, and that such address may not be a post office box, mailbox service, concierge office of office sharing complex. Further, User agrees to provide a current phone number and e-mail address used to conduct business, as well as any other information AP4L may reasonably request.
4. User's Duties
User affirms that both the organization of its business, as well as the conduct of its business, are legal in the User's state of domicile, the State of Nevada, and in the United States. User agrees that it will only sell goods on the AP4L website as described in the scope of this contract and as described in the User Disclosure Of Its Goods And Services, which is attached hereto as Appendix "C". Because the list of goods in Appendix "C" may not be complete, User commits that in its use of the AP4L Services, a) it will not offer for sale, or sell any goods, products or services listed in Appendix "D", or otherwise deal in prohibited illegal or immoral goods, b) it will not engage in any illegal or immoral business practices, c) it will not violate any state, federal or international intellectual property laws, and d) it will be in compliance with all local, state and federal and international laws with respect to its products, services, business practices and intellectual property.
4A. Business Practices
User will source, offer, sell and fulfill User's goods, products and services, in accordance with the terms of this Agreement, and all relevant terms regarding the sales transaction will be provided by User and displayed on the applicable AP4L Services website or portal at the time of the order. User is solely responsible for, and bears all risk for its transactions.
User agrees to package each of its goods, products or services in a commercially reasonable manner, complying with all applicable packaging and labeling requirements of the United States Postal Service, or the shipping service used, and ship each of User's Products on or before the shipping date it discloses on the applicable AP4L Services website or portal. Users agree to use industry standard packaging, both in method and in quality of packing materials. User will retrieve information on its orders at least once each business day.
User will only cancel transactions as permitted pursuant to this Agreement, or according to terms and conditions that appear on the applicable AP4L Services website or portal at the time of the applicable order. User will use commercially reasonable efforts to fulfill its orders promptly and will provide to AP4L information regarding fulfillment and order status and tracking (to the extent available). User will use commercially reasonable efforts to comply with all delivery date and delivery instructions.
User will ensure that User is the seller of each of User's goods, products and services.
Fulfillment of sales on AP4L Services by undisclosed parties is strictly forbidden, unless specific written approval has been requested of, and obtained from, AP4L. User will include an order-specific packing slip, and, if applicable, any tax invoices, within each shipment of User's products. User will identify itself as the seller of each of User's goods, products and services on all packing slips or other information included or provided in connection with User's goods, products and services and as the person or entity to which a customer may return the good, product or service.
User agrees to employ commercially reasonable efforts to correctly and accurately identify each good, product or service it offers through AP4L Services, including details related to size, quality, materials, and color, as well as all details of the services it provides. For each good, product or service it offers through AP4L Services, User agrees to use commercially reasonable efforts to accurately state whether such good, product or service is in stock or available, or is out of stock or unavailable.
User agrees to price its products, shipping costs and any other costs in a straightforward and clear manner, and User agrees that handling charges are strictly prohibited, as are any other undisclosed fees and costs. Any shipping cost for any good or service must quote the actual cost if ascertainable, and if not ascertainable, must explicitly state that such cost is an estimate, and must provide an accurate potential range of costs for such shipping. Any costs or fees related to returns, credits or chargebacks is delineated below in section 4C.
User agrees that it will provide accurate and complete product information for each product or service that it offers through any AP4L website and User agrees to promptly update that information as necessary to ensure it at all times remains accurate and complete. User agrees to employ best efforts to be accurate in any estimates it provides relative to handling/shipping preparation time and must provide its best and most accurate estimate of shipping times.
User acknowledges that this Agreement only grants it the ability to use the AP4L Services to sell goods that it owns. Insofar as User desires to sell goods that may be owned by a third party, or sell goods upon which there may be a lien, such goods may not be sold unless and until approval is granted by AP4L. AP4L reserves the right to 1) reject the sale of such goods, or 2) place conditions upon the use of AP4L Services to sell such goods. Such conditions may include any of the following: require indemnification for any losses AP4L may suffer, whether to the purchaser of the good, the owner or lienholder or to any third parties.
AP4L may, at any time, require User to provide any financial, business or personal information it may reasonably request to verify User's identity. User authorizes AP4L to obtain from time to time consumer credit reports to establish or update User's seller account or in the event of a dispute relating to this Agreement or the activity under User's seller account. User agrees to update all seller account information promptly upon any change to the same.
4B. Prohibited Products And Services
User acknowledges that AP4L Services may not be used to offer for sale any good, product or service that is prohibited by any local, state or federal law. Where a good, product or service is prohibited in some jurisdictions, but is not prohibited in other jurisdictions, prior to offering for sale such good or service, User must present a proposal to AP4L that demonstrates its ability to comply with all local, state and federal laws with regards to that good, product or service, and detail the precautions it will take to prevent accidental violations. Such proposal must be approved by AP4L prior to User offering for sale such good or service. While it is by no means exhaustive, AP4L offers a list of such prohibited products in Appendix "D". In addition to the above, AP4L reserves the right to forbid the sale of any good or service that is unrelated to the goods, products and services disclosed in Appendix "C", or that it deems controversial, or which is outside the scope of goods, products or services AP4L deems appropriate for AP4L Services.
Moreover, if User offers a good or product for sale on AP4L Services that requires a warning under California Health & Safety Code Section 25249.6 (a "Proposition 65 Warning"), User agrees to (a) provide AP4L with a copy of such warning that is compliant with that statute, and (b) agrees that the display of a Proposition 65 Warning by AP4L on a product page is confirmation of receipt of that warning, and (c) that such warning will only be revised or removed for a product when the prior warning is no longer legally required.
4C. Returns, Adjustments, Credits And/Or Chargebacks, Customer Service
User agrees that its use of AP4L Services is subject to the Returns, Adjustments, Credits And/Or Chargebacks Policy, attached hereto as Appendix "E".
User agrees that AP4L will have no customer service obligations other than to pass any inquiries from AP4L Services to the attention of User, according to the notice provisions herein, and that User will be responsible for all customer service issues relating to packaging, handling and shipment, and customer returns, refunds, and adjustments related to products sold through AP4L Services. Any payment issues arising from any return, adjustment, credit or chargeback will be handled in accordance with Section 7, below.
User will defend, indemnify, and hold harmless AP4L, and its officers, directors, employees, and agents, against any third-party claim, loss, damage, settlement, cost, expense, or other liability (including, without limitation, attorneys' fees) (each, a "Claim") arising from or related to (a) User's non-compliance with applicable laws; (b) User's goods, products and services, including the offer, sale, fulfillment, refund, cancellation, return, or adjustments thereof, (c) User's advertising and/or promotional materials, or any information from User conveyed to the general public, and any actual or alleged infringement of any intellectual property rights by any of the foregoing, (d) any personal injury, death (to the extent the injury or death is not caused by AP4L), or property damage related thereto; (e) User's taxes and duties or the collection, payment, or failure to collect or pay User's taxes or duties, or the failure to meet tax registration obligations or duties; (f) actual or alleged breach of any representations User has made to AP4L or to any user or consumer of the AP4L Services, and (g) any other tort, including, but not limited to, fraud, misrepresentation and defamation committed by User. If any indemnified claim might adversely affect User, User may, to the extent permitted by applicable law, voluntarily intervene in the proceedings at its own expense.
The 4Less Parties will jointly and severally defend, indemnify, and hold harmless User and User's officers, directors, employees, and agents against any third-party Claim arising from or related to: (a) AP4L's non-compliance with applicable Laws; (b) AP4L's or Parent's advertising and/or promotional materials, or any information from AP4L or Parent conveyed to the general public and any allegations that the operation of an AP4L Site, Parent Site, or AP4L Services infringes or misappropriates any third party's intellectual property rights, insofar as any such act or lack of action is not primarily attributable to any advertising and/or promotional materials generated by or posted by User; (c) any personal injury or death (to the extent the injury or death is not caused by User or User's products, or the actions or omissions of any of User's vendors, or property damage related thereto; (d) AP4L's or Parent's taxes and duties or the collection, payment, or failure to collect or pay AP4L's or Parent's taxes or duties, or the failure to meet tax registration obligations or duties; (e) actual or alleged breach of any representations of the 4Less Parties has made to User or to any user or consumer of the AP4L Services, and (f) any other tort committed by the AP4L Parties, including, but not limited to, fraud, misrepresentation and defamation. If any indemnified claim might adversely affect the 4Less Parties, it may, to the extent permitted by applicable law, voluntarily intervene in the proceedings at its own expense. No party may consent to the entry of any judgment or enter into any settlement of an indemnified claim without the prior written consent of the other party, which may not be unreasonably withheld; except that a party may settle any claim that is exclusively directed at and exclusively affects that party.
All notices, requests, demands and other communications under this Agreement shall be in writing and shall be deemed to have been duly given mailed by regular, certified or registered mail with postage prepaid, on the third (3rd) business day after the date on which it is so mailed. Any such notice must be directed to the following addresses:
Address: 106 Mayflower Avenue, North Las Vegas, NV 89030
Phone Number: (702) 267-6100
Notice, under this subsection, may not be given by electronic mail (email) or by telephonic communication unless permission to do so has been specifically granted by AP4L.
6. Fees To AP4L On User's Sales
User authorizes AP4L to act as User's agent for purposes of processing payments, refunds and adjustments for User's transactions, collecting any applicable taxes, receiving and holding Sales Proceeds on User's behalf, remitting Sales Proceeds to User's Bank Account, charging User's Credit Card, and paying AP4L and its Affiliates amounts User owes in accordance with this Agreement.
Upon the successful sale of a good, product or service, User authorizes AP4L to collect any and all fees associated with the sale of a good, product or service through the use of the AP4L Service, in accordance with the schedule of fees attached hereto as Appendix "F". In addition, AP4L retains the right to deduct any amounts owed to AP4L by User arising out of any charge, credit, adjustment or chargeback as determined in Section 4C of this Agreement, or that may be due as taxes to any jurisdiction (tax matters are more fully discussed in Section 16F).
7. Payments To User
Upon the completion of any transaction through any of the AP4L Services, monies for any good, product or service will be paid through PayPal. PayPal will deduct from the money paid for a) the AP4L fees (as described in Exhibit "F"), b) any applicable sales or other taxes, c) any fee or charge owed to PayPal, d) any deduction as required by this Agreement, or any other Agreement between AP4L and User, and e) any other fees as contemplated by the parties. The balance shall be paid to User in accordance with the PayPal terms of service. All payments contemplated by this Agreement will be made in U.S. Currency.
Payment and credit for returns will be handled in accordance with Appendix "E".
8. Term Of Agreement And Termination Of Agreement
The term of this Agreement will start on the date AP4L approves User's completed application for use of AP4L Services and continues until terminated by us or User as provided below. User may at any time terminate User's use of any AP4L Service immediately on notice to AP4L in conformance with this Agreement. AP4L may terminate User's use of any AP4L Services or terminate this Agreement for convenience with 30 days' advance notice. AP4L may suspend or terminate User's use of any AP4L Services immediately if we determine that (a) User has materially breached the Agreement and failed to cure within 7 days of its receipt of written notice of the breach, unless User's breach exposes AP4L to liability toward a third party, in which case AP4L is entitled to reduce, or waive, the aforementioned cure period at its reasonable discretion; (b) User's account has been used for deceptive, fraudulent, or illegal activity; or (c) User's use of the AP4L Services has harmed, or AP4L reasonably determines that it might harm, other sellers, customers, or AP4L's legitimate interests.
AP4L will promptly notify User of any such termination or suspension via the notice provisions in this Agreement, indicating the reason and any options to appeal, except where AP4L has reason to believe that providing this information will hinder the investigation or prevention of deceptive, fraudulent, or illegal activity, or will enable User to circumvent any safeguards. On termination of this Agreement, all related rights and obligations under this Agreement immediately terminate, except that User will remain responsible for performing all of User's obligations in connection with transactions entered into before termination and for any liabilities that accrued before or as a result of termination, and any and all obligations to maintain confidentiality, obligations for payments, obligations for arbitration, notice, business practices, returns and indemnity survive.
AP4L reserves the right to close dormant accounts. An account will be considered dormant if there is no activity (as determined by AP4L) in connection with User's account for the period of time set forth in applicable unclaimed property laws (as determined by the State of Domicile of the User), or within 180 days, whichever is less. Upon a determination that an account is dormant, AP4L will hold proceeds on User's behalf, and will notify User by means set forth in the notice provisions of this Agreement, or as required by state law, and provide User the option of keeping User's account open and maintaining the proceeds in User's account.
If User does not respond to AP4L's notice(s) within the time period specified above, AP4L will send the proceeds left in User's account to User's state of residency, as determined by us based on the information in User's Seller Account. If we are unable to determine User's state of residency or User's account is associated with a foreign country, User's funds may be sent to the State of Nevada.
9. License To Use Intellectual Property
User grants to AP4L a limited royalty-free, non-exclusive, worldwide right and license to use any advertising and promotional materials, including pictures, logos and copy that the User Provides to AP4L (the "User IP") during the term of this Agreement for the mutual benefit of User and AP4L Services. AP4L may sublicense the foregoing rights to any affiliates and/or agents of AP4L with User's prior written permission, which shall not be unreasonably withheld or delayed. User reserves the right to end or amend AP4L's license in the User IP at any time and for any reason immediately upon User providing written notice to AP4L that the license has ended or changed. Marketing materials that are created and approved by AutoPlus during the term of this Agreement and that make only incidental use of AutoPlus Marks may continue to be used for up to 12 months following the termination of this Agreement, provided that (a) the Agreement was not terminated for cause, and (b) the marketing materials are used in substantially the same manner after termination as prior to termination.
In any case, AP4L will not alter any of User's intellectual property from the form provided by User, without written permission, except to re-size trademarks to the extent necessary for presentation and will promptly comply with User's removal requests sent to AP4L in accordance with the notice provisions in this Agreement.
Nothing in this Agreement will prevent or impair AP4L's right to use User's intellectual property without User's consent to the extent that such use is allowable without a license from User or User's affiliates or agents under applicable law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party). Any objection to the use of User's intellectual property by AP4L must bemade in writing, without any undue delay.
User acknowledges that AP4L may use mechanisms that rate and/or give feedback on, or allow shoppers and customers to rate and/or give feedback on User's goods, products and services, as well as User's performance as a seller. Such ratings or feedback, when and if created, remain the property of AP4L, and AP4L may, at its discretion, make these ratings and feedback publicly available. While AP4L is under obligation to fairly and accurately represent any feedback or ratings received, nevertheless, AP4L will be under no obligation to remove or modify negative ratings, unless such ratings are demonstrated by User to be deceptive or fraudulent. User agrees that it will not, at any time, manipulate the ratings or feedback of itself, its goods, products or services, and will not, at any time, manipulate the ratings or feedback of any other seller, any user of AP4L Services, any customer or of AP4L itself. For purposes of this subsection, "manipulation" is described as any attempt to create, modify or delete a rating or feedback by any means other than an individual legitimate feedback or rating created by a purchaser of User's goods, products or services. Such manipulation, if it occurs, is grounds for immediate termination of this Agreement, and AP4L reserves the right to seek reimbursement for the cost to investigate any such manipulation, as well as recover reasonable attorney's fees and documented out of pocket costs should such arise.
User will use commercially reasonable efforts to provide accurate information to AP4L regarding the status of any and all orders placed through AP4L Services, and AP4L will convey such information regarding the status of any and all orders for goods, products or services placed on its websites and portals to the end consumer/purchaser.
User may not issue any press release or make any public statement related to the AP4L Services, or use the name of AP4L, AP4L Services or its affiliates, or the trademarks, logos or other identifying intellectual property of AP4L or its affiliates in any way (including in promotional material) without our advance written permission, or misrepresent or embellish the relationship between User and AP4L in any way. User may only use the "Available at AP4L" identification and logo, or any related identification or logo with permission, and in conformance with such permission.
10. Limitation Of Liability
AP4L Services, including all content, software, functions, materials, and information made available on or provided in connection with such services, are provided "as-is." User, as a consumer of AP4L Service, including its websites and portals, does so at User's own risk. AP4L disclaims: (i) any representations or warranties regarding this Agreement, the services or the transactions contemplated by this Agreement, including any implied warranties of merchantability, fitness for a particular purpose or non-infringement; (ii) implied warranties arising out of course of dealing, course of performance, or usage of trade; and (iii) any obligation, liability, right, claim, or remedy in tort, whether or not arising from our negligence. AP4L does not warrant that the functions contained in the AP4L Services, its websites and portals will meet User's requirements or be available, timely, secure, uninterrupted, or error free, and AP4L will not be liable for any service interruptions, software failures, system failures or other interruptions that may affect the receipt, processing, acceptance, completion, or settlement of any transactions, or that results in the interruption of User's regular business.
Further, AP4L will not be liable (whether in contract, warranty, tort (including negligence, product liability, or other theory), or otherwise) to User or any other person for cost of cover, recovery, or recoupment of any investment made by User or User's affiliates or agents in connection with this Agreement, or for any loss of profit, revenue, business, or data or punitive or consequential damages arising out of or relating to this Agreement, even if AP4L has been advised of the possibility of those costs or damages. Further, AP4L's aggregate liability arising out of or in connection with this Agreement or the transactions contemplated will not exceed the aggregate amounts paid by User to AP4L arising out of User's transactions under this Agreement.
11. Confidentiality Requirements Regarding AP4L's Trade Secrets, Code and Intellectual Property
AP4L's "Confidential Information" means nonpublic information about AP4L's business practices and/or technology it has developed. User agrees that for the term of the Agreement and for 10 years after termination (except as expressly provided below in this sentence): (a) all such confidential information will remain AP4L's exclusive property; (b) User will use Confidential Information only as is reasonably necessary for User's participation in the AP4L Services; (c) User will not otherwise disclose Confidential Information to any other person, entity, affiliate or agent, except as required to comply with the law, which shall be subject to 3 years of
survivability after the termination date; (d) User will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this
Agreement, which shall be subject to 3 years of survivability after the termination date; and (e) User will retain Confidential Information only for so long as its use is necessary for participation in the AP4L Services or to fulfill User's statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulfillment of statutory obligations. The foregoing obligation does not restrict User's right to share Confidential Information with a governmental entity that has legally and lawfully sought such information, and has jurisdiction over User, provided that User limit the disclosure to the minimum necessary and explicitly indicate the confidential nature of the shared information to the governmental entity. Confidential Information does not include any information that: (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by User; (b) at the time of disclosure is, or thereafter becomes, available to User on a non-confidential basis from a third-party source that is not under a legal obligation to AP4L that prohibited the disclosure of such information to User; (c) was known by or in the possession of User at the time of disclosure; or (d) is independently developed by User without using any of AP4L's Confidential Information.
12. Electronic Security
User will use commercially reasonable measures to protect the personal data of its customers, the customers of AP4L and the passwords it uses to access the AP4L Services.
12A. Confidentiality And Personal Data Of Customers
During the course of User's use of the AP4L Services, User may receive Confidential Information about the customers of AP4L. Confidential Information includes the identity, address, financial information of and other identifying factors of users of the AP4L Services, including details of the identity of the customer and the details of all financial transactions, whether or not such information has commercial value. User shall hold and maintain the Confidential Information in strictest confidence for the sole and exclusive benefit of AP4L. User shall carefully restrict access to Confidential Information to employees, contractors, and third parties as is reasonably required and shall require those persons to sign non-disclosure restrictions at least as protective as those in this Agreement. User shall not, without prior written approval of AP4L use, for its own benefit, publish, copy, or otherwise disclose to others, or permit the use by others for their benefit or to the detriment of AP4L, any Confidential Information.
User acknowledges the general prohibition against the use of any personal data garnered through the AP4L Services, and that User may not sell such information without prior express permission of AP4L. User further acknowledges that such Confidential Information is the intellectual property of AP4L. User agrees that for the term of the Agreement and for 10 years after termination: (a) all such Confidential Information will remain AP4L's exclusive property; (b) User will use Confidential Information only as is reasonably necessary for User's participation in the AP4L Services; (c) User will not otherwise disclose Confidential Information to any other person, entity, affiliate or agent, except as required to comply with the law, or as allowed by signed, binding nondisclosure restrictions; (d) User will take all reasonable measures to protect the Confidential Information against any use or disclosure that is not expressly permitted in this Agreement; and (e) User will retain Confidential Information only for so long as its use is necessary for participation in the AP4L Services or to fulfill User's statutory obligations (e.g. tax) and in all cases will delete such information upon termination or as soon as no longer required for the fulfillment of statutory obligations.
The foregoing obligation does not restrict User's right to share Confidential Information with a governmental entity that has legally and lawfully sought such information, and has jurisdiction over User, provided that User limit the disclosure to the minimum necessary and explicitly indicate the confidential nature of the shared information to the governmental entity. User may not use customer personal data in any way inconsistent with applicable local, state, national or international law. User must keep customer personal data confidential at all times, however, the 10-year term limit stated above does not apply to User's own internal, legal use of its customers' personal data.
The provisions of this section do not apply to any information that: (a) at the time of disclosure is, or thereafter becomes, generally available to and known by the public other than as a result of, directly or indirectly, any violation of this Agreement by User; (b) at the time of disclosure is, or thereafter becomes, available to User on a non-confidential basis from a third-party source that is not under a legal obligation to AP4L that prohibited the disclosure of such information to User; (c) was known by or in the possession of User at the time of disclosure; or (d) is independently developed by User without using any of AP4L's Confidential Information.
12B. Password Security
Any password provided by AP4L to User, for access to AP4L Services, may be used only during the term of this Agreement, and may only be used to access User's portal, to electronically accept User's Transactions, and review User's completed transactions. User is solely responsible for maintaining the security of User's password. User may not disclose User's password to any third-party (other than third parties authorized by User to use User's account in accordance with this Agreement) and User is solely responsible for any use of or action taken under User's password, whether authorized or not. If User's password is compromised, it must immediately change its password.
12C. Protection of User's Confidential Information.
Throughout the term and at all times in connection with its actual or required performance of the AP4L Services hereunder, 4Less Parties shall: (a) maintain and enforce an information security program including safety and physical, technical, and administrative security policies and procedures with respect to its processing of personal data ("Personal Data") that are at least equal to applicable best industry practices and standards; (b) provide physical, technical, and administrative safeguards against accidental, unlawful or unauthorized access to or use, destruction, loss, alteration, disclosure, transfer, commingling or processing of such information that ensure a level of security appropriate to the risks presented by the processing of personal identifiable information and confidential information and the nature of such confidential information, consistent with best industry practice and standards and (c) take all reasonable measures to secure and defend all locations, equipment, systems and other materials and facilities employed in connection with the AP4L Services against "hackers" and others who may seek, without authorization, to disrupt, damage, modify, access or otherwise use 4Less Parties' systems or the information they contain. The 4Less Parties may satisfy the obligations under this subsection by their own efforts or through affiliates, subcontractors or partners.
12D. Data Backup and Disaster Recovery.
The 4Less Parties shall maintain or cause to be maintained disaster avoidance procedures designed to safeguard personal data and other confidential information. The 4Less Parties' processing capability and the availability of the AP4L Services, in each case throughout the term and at all times in connection with its actual or required performance of the AP4L Services hereunder the 4Less Parties shall conduct or have conducted daily back-ups of personal data and perform or cause to be performed other periodic back-ups of personal data on a weekly basis and store such back-up personal data in a commercially reasonable location and manner. On written notice from User and, in any case, no less frequently than monthly, the 4Less Parties shall provide, at its sole cost and expense, a copy of the backed up personal data in machine readable format to User. The force majeure provisions of Section 16G shall not limit the 4Less Parties' obligations under this Section 12D. The 4Less Parties may satisfy the obligations under this subsection by their own efforts or through affiliates, subcontractors or partners.
12E. Nonexclusive Remedy for Breach of Security Breach Obligations.
Any failure of the AP4L Services to meet the requirements of this Agreement with respect to the security of any personal data or other confidential information of User, including any related backup, disaster recovery or other policies, practices or procedures, is a material breach of this Agreement for which User, at its option, may terminate this Agreement immediately on written notice to the 4Less Parties without any notice or cure period, and the 4Less Parties shall promptly reimburse to User any out of pocket fees prepaid by User prorated to the date of such termination.
The 4Less Parties will, promptly upon User's written request commencing one hundred eighty (180) days after the last signature date below, provide User with, as directed by User: (i) a full attestation, review and report under (A)(1)(a) SSAE 16 (Statement on Standards for Attestation Engagements No. 16) SOC (Service Organization Control) 1 Type II or SOC 2 Type II; (ii) all related bridge letters; and (iii) such other third party reviews and reports or other materials or information as are reasonably requested by User. The 4Less Parties may satisfy the obligations under this subsection by their own efforts or through affiliates, subcontractors or partners. Upon reasonable request, the 4Less Parties agree to provide documentation demonstrating the status of such certifications to User.
12G Security Questionnaire.
No more than once per calendar year, upon User's written request commencing one hundred eighty (180) days after the last signature date below, the 4Less Parties will respond to User's information security questionnaire ("Security Questionnaire") which is designed to allow User to assess the status of the 4Less Parties' information security policies and procedures and controls including handling of personally-identifiable information, electronic and physical security and business continuity planning, operational security and access controls. User may conduct follow-up inquiries in connection with the Security Questionnaire (a "Security Audit"). User's right to have the 4Less Parties answer User's Security Questionnaire and conduct follow-up interviews will not in any way diminish or affect the 4Less Parties' duties and liabilities under this Agreement. The 4Less Parties will promptly address any deficiencies, concerns or recommendations arising out of any Security Audit or Security Questionnaire. If, as a result of any Security Audit or Security Questionnaire, User still deems itself insecure relating to the 4Less Parties' security measures, then, within three business days after the date User raises its security concerns, a senior technology executive of the 4Less Parties will promptly meet with a representative of User to discuss the matter. If the Security Audit in its final and issued version contains a qualified opinion relating to security matters including risks to the 4Less Parties' computer systems and physical facilities which could result in the unauthorized destruction, loss, alteration of or access to personal data, or the AP4L Services being materially affected, then, within ten business days after the 4Less Parties' receipt of the audit report, the 4Less Parties will, at its own expense, promptly take actions to address the matters raised by the qualification so that the cause of the qualified opinion may be resolved and, after consultation with User, reduce any risk to personal data. The 4Less Parties may satisfy the obligations under this subsection by their own efforts or through affiliates, subcontractors or partners. Upon reasonable request, the 4Less Parties agree to provide documentation demonstrating the status of such certifications to User.
12H Security Incident.
If the 4Less Parties believe or have reason to believe that any unauthorized destruction, loss, alteration of or access to personal data or other confidential information has occurred (a
"Security Incident"), which involves data of User, User's subcontractors or affiliates, and/or User's customers (collectively, "User Data"), arising from actions, inactions or omissions by any of the 4Less Parties, the 4Less Parties will: (i) promptly notify User of such Security Incident; (ii) promptly, in consultation with User, start an investigation of the Security Incident and take all appropriate actions to remediate the effects of the Security Incident and mitigate any risk that may arise from the Security Incident; (iii) preserve all records and other evidence relating to the Security Incident; (iv) provide User with a written report on the outcome of its investigation, including any risk to User Data, the corrective action the 4Less Parties will take, or has taken, to respond to the Security Incident and such other information as User may reasonably request; and (v) provide User with assurance satisfactory to User that such Security Event will not recur, to the extent the 4Less Parties are able to do so. User may disclose the occurrence of a Security Incident in connection with notice to User's customers, potential customers, employees or governmental authorities. The 4Less Parties will cooperate in good faith regarding the timing and manner of: (vi) any notification to the individuals whose information has been breached in the Security Incident; (vii) credit monitoring services and identity theft insurance for such individuals; and (viii) disclosures to appropriate governmental authorities. The 4Less Parties shall reimburse User for Notification Costs and Claim Costs as described herein arising from a Security Incident or other breach in the security of any User Data which occurs as a result of an action, inaction or omission by any of the 4Less Parties. "Notification Costs" shall mean and include any and all verifiable costs (including, without limitation, attorneys' fees) incurred by User in investigating whether notification of individuals is required and the preparation and delivery of any appropriate notices to individuals and the provision of appropriate credit monitoring services. "Claim Costs" shall mean and include costs incurred by User in respect of claims that allege injury or damage by reason of a Security Incident. The 4Less Parties may satisfy the obligations under this subsection by their own efforts or through affiliates, subcontractors or partners.
13A. Required coverage.
AP4L shall maintain, at its expense and throughout the performance of its obligations under this Agreement, the following insurance set forth below. The limits set forth below shall be maintained to meet claims under this Agreement irrespective of any other claims and if necessary reinstated:
1. Workers' compensation insurance covering all 4Less Parties employees based in the U.S. as required by applicable statute.
2. Commercial general liability insurance written on an occurrence form and including coverage for bodily injury, property damage, products and completed operations, personal injury, advertising injury, for liabilities arising out of the services and/or products provided by the 4Less Parties under this Agreement, with limits of one million dollars ($1,000,000) per occurrence and annual aggregate of two million dollars ($2,000,000) (limits may be met using a combination of primary and umbrella/excess policies).
3. Technology errors and omissions insurance coverage with a limit of two million dollars ($2,000,000) for the first year of this Agreement, five million dollars ($5,000,000) for the second year of this Agreement, and thereafter, ten million dollars ($10,000,000) for each claim and annual aggregate for liabilities arising out the 4Less Parties' acts, errors, or omissions while performing or failing to perform its professional services provided under this Agreement, and including, if commercially and reasonably available, coverage for the following: (i) network security and privacy liability; (ii) multimedia liability; (iii) privacy regulatory defense and penalties; and (iv) customer notification costs and credit monitoring expenses.
4. Commercial crime insurance including coverage for loss resulting from theft committed by the 4Less Parties' employees, acting alone or in collusion with others, and coverage for computer fraud, with a per loss limit of five million dollars ($5,000,000) for the first year of this Agreement, ten million dollars ($10,000,000) for the second year of this Agreement, and thereafter, twenty-five million dollars ($25,000,000). The policy shall include User's property coverage for tangible property of User. User shall be included as a loss payee on the policy.
5. Cyber-Liability insurance coverage with a limit of five million dollars ($5,000,000) for the first year of this Agreement, ten million dollars ($10,000,000) for the second year of this Agreement, and thereafter, twenty-five million dollars ($25,000,000).
All insurance policies shall be issued by insurers rated A-, VII or better by A.M. Best, or the reasonable equivalent by another reputable rating agency. With the exception of the commercial crime insurance and technology errors and omissions insurance, all insurance policies shall include waivers of subrogation against User, its Affiliates, and their respective directors, officers, employees, agents and Affiliates unless waivers of subrogation are prohibited by law or commercially unavailable in an applicable jurisdiction. If any of the required policies are written on a claims-made basis, coverage with respect to this Agreement shall be maintained for a period of at least three (3) years after the expiration or termination of this Agreement. Upon request from User, Parent shall cause its insurers or their authorized agents to provide User with current certificates of insurance evidencing the required coverage.
The parties do not intend to shift all risk of loss to insurance. Parent's obligation to maintain insurance coverage in specified amounts will not act and shall not be deemed to act as a limitation on any other liability or obligation which Parent or Owner would otherwise have under this Agreement.
The 4Less Parties shall ensure each of its subcontractors that has access to User data or is otherwise materially involved with the 4Less Parties' data security compliance programs complies with all relevant terms of this Agreement and the 4Less Parties shall remain responsible and liable for any and all: (i) performance required hereunder, including the proper supervision, coordination and performance of the AP4L Services; and (ii) acts and omissions of each subcontractor to the same extent as if such acts or omissions were by the 4Less Parties.
15. Modification Of This Agreement
AP4L reserves the right to modify this Agreement, as it relates to User's duties and responsibilities, upon minimum of 30 days' advance written notice in accordance with the notice provisions as set forth in this Agreement. However, AP4L may change or modify the Agreement at any time with immediate effect (a) for legal, regulatory, fraud and abuse prevention, or security reasons; (b) to change existing features or add additional features to the Services (where this does not materially adversely affect User's use of the AP4L Services); or (c) to restrict products or activities that AP4L deems unsafe, inappropriate, or offensive. AP4L will notify User about any such change or modification in accordance with the notice provisions as set forth in this Agreement.
User's continued use of the AP4L Services after the effective date of any change to this Agreement in accordance with this section will constitute User's acceptance of that change. If any change is unacceptable to User, User agrees to notify AP4L of the same through the notice provisions of this Agreement and agrees to discontinue use of the AP4L Services and to end the Agreement as described herein. All other modifications to this Agreement shall be in writing, signed by the parties, and will take effect as directed by such writing.
16. Additional Terms
16A. No Agency, Partnership, Joint Venture Or Other Employment Or Franchise Relationship Exists Between The Parties
The parties agree that the terms of this Agreement were reached as a result of arms length negotiation, and that each retains its own status as a separate legal entity. The parties further agree that User and AP4L are independent contractors, and nothing in this Agreement, nor in the course of conduct contemplated by this Agreement, will create any partnership, joint venture, agency, franchise, sales representative, or employment relationship between User and AP4L. User will have no authority to make or accept any offers or representations on behalf of AP4L, nor bind it to any contract without specific, express permission of AP4L. This Agreement does not create an exclusive relationship between User and AP4L, and nothing expressed or mentioned in or implied from this Agreement is intended or will be construed to give to any person other than the parties to this Agreement any legal or equitable right, remedy, or claim under or in respect to this Agreement. This Agreement and all of the representations, warranties, covenants, conditions, and provisions in this Agreement are intended to be and are for the sole and exclusive benefit of AP4L, User, and their customers.
16B. Agreement Not Assignable
User may not assign this Agreement, by operation of law or otherwise, without our prior written consent of AP4L, which shall not be unreasonably withheld or delayed. Any attempt to assign or otherwise transfer in violation of this section is void; provided, however, that upon notice to AP4L, User may assign or transfer this Agreement, in whole or in part, to any of User's Affiliates as long as User remains liable for User's obligations that arose prior to the effective date of the assignment or transfer under this Agreement. User agrees that AP4L may assign or transfer its rights and obligations under this Agreement: (a) in connection with a merger, consolidation, acquisition or sale of all or substantially all of its assets or similar transaction; or (b) to any Affiliate or as part of a corporate reorganization; and effective upon such assignment, the assignee is deemed substituted for AP4L as the party to this Agreement. Subject to that restriction, this Agreement will be binding on, inure to, and be enforceable against the parties and their respective successors and assigns. AP4L may perform any of its obligations or exercise any of its rights under this Agreement through one or more of its Affiliates.
16C. Governing Law and Venue
The parties affirm that this Agreement is to be interpreted, construed and governed according to the laws of the State of Nevada, without regard to the conflict of laws provisions thereof to the extent such principles or rules would require or permit the application of the laws of any jurisdiction other than those of the State of Nevada. The parties also agree that Nevada shall govern any and all non-contractual claims or disputes between the parties. Any legal suit, action or proceeding arising out of or related to this Agreement or its claimed breach, or the licenses granted hereunder (each, a "Claim"), shall be instituted and resolved exclusively in a federal or state courts located in the State of Nevada, and each party irrevocably consents to the exercise of personal jurisdiction by and exclusive venue in such courts (as applicable) in connection with any such Claim. Service of process, summons, notice or other document by mail to such party's address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court.
16D. Entire Agreement
Except for documents specifically referenced herein, this Agreement constitutes the entire agreement between AP4L and User, and all prior communications, whether verbal or written, have been integrated and included into this Agreement, and shall have no independent effect or evidentiary value.
16E. Tax Matters
AP4L will automatically calculate, collect, or remit taxes on User's behalf if required by applicable law. AP4L expressly agrees to receive taxes or other transaction-based charges on User's behalf in connection with tax calculation services made available by AP4L and used by User. User and the 4Less Parties agree to, and will comply with, any and all taxation laws.
Consistent with Exhibit F, attached hereto, all fees and payments payable by User to AP4L under this Agreement are inclusive of any applicable taxes, deductions or withholding (including but not limited to cross-border withholding taxes), and AP4L will be responsible for paying any taxes imposed related to AP4L Services.
16F. Force Majeure
AP4L is not and will not be liable for any delay or failure to perform any of its obligations under this Agreement by reasons, events or other matters beyond its reasonable control.
16G. Void Clauses Do Not Invalidate Agreement
If any provision of this Agreement is deemed unlawful, void, or for any reason unenforceable, then that provision will be deemed severable from these terms and conditions and will not affect the validity and enforceability of any remaining provisions.
16H. English Version Of Agreement Is Definitive
This Agreement is drafted in English, and as between the English version and any versions that are translated into any other language, the English version will control in all respects. Any meaning attached to the words or context in such non-English versions of this Agreement, therefore, must give way to the words and context of the English version.
IN WITNESS WHEREOF, the Parties hereto have caused this Agreement to be executed by their duly authorized representatives effective as of the date that the last party signs this Agreement.
By: Auto Parts 4 Less, Inc.
________________________________________ Print name:
By: The 4Less Group, Inc.
________________________________________ Print name:
________________________________________ Print name:
APPENDIX A - Definition of AP4L Services
The AP4L Services is defined to include all of the services described pursuant to this Agreement or otherwise provided by AP4L to User.
APPENDIX B - User Registration Application
APPENDIX C - User Disclosure Of Its Goods And Services
APPENDIX D - Prohibited Products
1. Guns, knives, ammunition, shells, grenades, including any parts or goods or services used in the manufacture, repair or maintenance of any such products.
2. Explosives, fireworks, pyrophoric, flammable or combustible liquids, any other flammable materials or chemicals which can be used or combined to become an explosive, firework or flammable material, including matches and disposable lighters.
3. Corrosive materials, except that automotive batteries, as well as materials used to repair such batteries are not prohibited.
4. Compressed gases.
6. Any chemical element, compound or formulation on the following list:
- elemental chlorine
- elemental nitrogen liquid nitrogen
- solid carbon dioxide (dry ice)
7. Any medicine, pharmaceutical, vitamin, pill, health supplement, diet supplement or any other product intended to be used for the treatment of disease, pain or any other health related symptom, whether over the counter or by prescription, including steroids, caffeine, bath salts, whether or not such medicine or supplement is legal in any jurisdiction in the United States.
8. Any health equipment or diagnostic equipment, if and only if the sale is forbidden by local, state or federal law.
9. Marijuana, marijuana related products, CBD, hemp or any product related to the recreational use of, or consumption of marijuana or its derivatives.
10. Any drug or controlled substance that is illegal under federal statutes or state statutes, and any paraphernalia related to same.
11. Alcohol in any form.
12. Cigarettes, cigarillos, cigars and/or any tobacco related products, including e-cigarettes and any vaping products.
13. Any product that is sold through, or advertised through any multi-level marketing organization.
14. Any type of counterfeit or pirated article.
15. Any adult oriented products and/or services, pornography, prostitution, escort services or any product that visually incorporates nudity or explicit depictions of sex.
16. Any livestock, live animal, live insect, protozoa, bacteria or archaea, including pets, bait and live fish.
17. Any perishable groceries or food of any kind, any live plants.
18. Any human body parts or organs, including cremated remains.
19. Any pesticides of any kind, whether pre-mixed or unmixed, diluted or undiluted. 20. Any good or service that violates any state, national or international copyright, trademark, or other intellectual property right, of that might be grounds for a defamation action.
21. Any good related to gaming or any lottery.
22. Lock picking products or products that are created primarily to enable theft.
23. Refrigerants: Ozone-depleting substances and their substitutes.
24. Subscriptions and periodicals.
For purposes of this subsection, automotive fluids, including fuels, solvents, greases, cleaning fluids, cleaning solutions, oils, lubricants and any other material commonly employed for the use, maintenance, repair, service, diagnosis or cleaning of any automobile, motorcycle, truck, UHV or motorized equipment is not prohibited. This list is not comprehensive, but is meant to be illustrative, and is provided as guidance to User.
APPENDIX E - Returns, Adjustments, Credits And/Or Chargebacks Policy
User agrees that its policy or policies regarding returns, credits, refunds, price adjustments, and/or provision of a substitute goods must be clear, concise, accurate and clearly visible in AP4L Services websites or portals.
Questions regarding User's goods, products or services, whether it be a return, credit, refund, price adjustment, or provision of a substitute good, product of service will be forwarded to User through the AP4L Services, and it is anticipated that User's customer service and best business practices will resolve most, if not all such matters. To this end, User agrees to use commercially reasonable efforts to promptly accept, calculate, and process cancellations, returns, refunds, and adjustments in accordance with this Agreement. However, should such an issue remain unresolved, AP4L reserves the right to intervene to protect its business reputation and goodwill. AP4L's intervention may include, but is not limited to, independent investigation, discussion with the parties, verification of payment, verification of the quality of the goods, products and services, verification of the quality of the shipping, verification of the return of goods, and if necessary, a reasonable chargeback against the fees owed to the User or denial of the customer's claim.
APPENDIX F - SCHEDULE OF FEES
The fee for AP4L Services is 10% of the amount collected for each sale, which includes all monies collected and realized, excluding any amount for taxes. This fee is not reduced by the fees charged by PayPal.
The following definitions apply to words used frequently throughout this Agreement and which appear in bold-faced type.
Administrator – LOTSolutions, Inc., 10751 Deerwood Park Blvd., Suite 200, Jacksonville, FL 32256, 888-209-3406.
Cost – The replacement cost of Covered Part(s). Replacement of any covered part may be made with new, remanufactured, rebuilt, or like kind and quality at the time of repairs at the discretion of the Administrator/Provider. Parts will be reimbursed up to the manufacturer’s suggested list price for parts.
Covered Part(s) – The part(s) listed as PART(S) COVERED on the Registration Page.
Normal Wear and Tear – The natural and inherent wear characteristics of automobile parts. Reduction in operating performance of a Covered Part that exceeds the published tolerances allowed by the manufacturer will not be considered Normal Wear and Tear.
The provider (“We”, “Us”, “Our”) – Auto Parts4Less, Inc., 106 W. Mayflower Ave., North Las Vegas, NV 89030.
Registration Page – Page 1 of this Replacement Plan where information regarding You, Your Covered Parts, and coverage options is shown.
Repair Facility - A Repair Facility licensed to perform mechanical repairs.
Replacement Plan – This plan provides replacement coverage for Covered Part(s) listed on the Registration Page.
Term – The number of months the Replacement Plan is in force as indicated on the Registration Page.
You or Your - The customer identified under the Customer Information section on the Registration Page.
This Replacement Plan covers the replacement cost of Covered Part(s) subject to the exclusions listed within. We will replace only the Covered Part(s) listed as PART(S) COVERED on the Registration Page. A Covered Part has failed when it can no longer perform the function for which it was designed solely because of its condition and not because of the action or inaction of any non–covered parts. The benefits available under this Replacement Plan are strictly provided to You for the replacement of the Covered Part(s) that fail due to defect.
This Replacement Plan excludes the following parts and services:
FILING A CLAIM
AUTHORIZATION IS REQUIRED FROM THE ADMINISTRATOR PRIOR TO ANY REPLACEMENT OF THE COVERED PARTS. Call the administrator toll-free at 888-209-3406 to File a Claim.
PLEASE READ THIS DISPUTE RESOLUTION/ARBITRATION AGREEMENT AND CLASS ACTION WAIVER, INCLUDING THE OPT-OUT PROVISION, CAREFULLY TO UNDERSTAND YOUR RIGHTS. IT REQUIRES THAT CLAIMS (AS DEFINED BELOW) BE RESOLVED SOLELY THROUGH BINDING ARBITRATION ON AN INDIVIDUAL BASIS, RATHER THAN BY A JURY OR IN A CLASS ACTION.
Arbitration is a method of resolving any Claim without filing a lawsuit. In this Arbitration Agreement and Class Action Waiver (collectively including all of this section of this Replacement Plan), You, We, and the Administrator (the “Parties”) are agreeing to submit any and all Claims to binding arbitration on an individual basis for resolution. This Arbitration Agreement and Class Action Waiver sets forth the terms and conditions of our agreement to binding arbitration. The Parties agree that any and all claims, disputes, and controversies related in any way to this Replacement Plan, including but not limited to claims related to the underlying transaction giving rise to this Replacement Plan, or claims related to the sale, financing, or fulfillment of this Replacement Plan (collectively, “Claims”), shall be resolved by final and binding arbitration. “Claims” shall be given the broadest meaning possible and includes, without limitation, Claims arising under agreement, tort, statute, regulation, rule, ordinance, or other rule of law or equity, and Claims against any of Our or the Administrator’s owners, shareholders, members, affiliates, subsidiaries, divisions, directors, officers, employees, representatives, agents, successors, or assigns. “Claims” does not include a statutory claim for public injunctive relief brought under any California statute enacted for a public reason, provided that You are a California resident or that You purchased Your Replacement Plan in California. In arbitration, Claims are resolved by an arbitrator and not by a judge or jury. THE PARTIES, INCLUDING YOU, WAIVE ANY RIGHT TO HAVE CLAIMS DECIDED BY A JUDGE OR JURY. In addition, except as expressly stated in the Class Action Waiver or otherwise expressly stated herein, the arbitrator shall have exclusive authority to decide all issues related to the enforcement, applicability, scope, validity, and interpretation of this Arbitration Agreement, including but not limited to any unconscionability challenge or any other challenge that the Arbitration Agreement is void, voidable or otherwise invalid. Notwithstanding this agreement to arbitrate, each of the Parties retains the right to seek remedies in small claims court to resolve any Claim, on an individual basis, within the jurisdiction of small claims court. You acknowledge Your understanding that all Parties hereunder are waiving their rights to go to court, except for small claims court, to resolve any Claims arising under or related to this Replacement Plan.
The Parties agree and acknowledge that the transaction evidenced by this Replacement Plan affects interstate commerce. The Parties further agree that all issues relating to this Arbitration Agreement and Class Action Waiver, including its enforcement, scope, validity, interpretation, and implementation, will be determined pursuant to federal substantive law and the substantive and procedural provisions of the Federal Arbitration Act (“Act”), 9 U.S.C. §§ 1-16. If federal substantive law holds that state law should apply to any issue relating to this Arbitration Agreement and Class Action Waiver, then the law of the state where You purchased the Replacement Plan shall apply, without regard to conflicts of law.
CLASS ACTION WAIVER. All Claims must be brought solely in an individual capacity, and not as a plaintiff or class member in any purported class action, collective action, representative action, mass action, private attorney general action or action on behalf of the general public, or similar proceeding (any such action is referred to herein as a “Class Action”). NO CLAIM WILL BE ARBITRATED ON A CLASS ACTION BASIS. The Parties, including You, expressly waive any right or ability to bring, assert, maintain, or participate as a class member in any Class Action in court, arbitration, or any other forum, and the right for anyone to do so on Your behalf. The arbitrator may not consolidate more than one person or entity’s claims and may not otherwise preside over any Class Action. The arbitrator shall not have the authority to combine or aggregate multiple persons’ or entities’ Claims or discovery, to conduct a Class Action, or to make an award to any person or entity not a party to the arbitration. Notwithstanding anything to the contrary, the Parties agree that the enforcement, applicability, scope, validity, and/or interpretation of this Class Action Waiver shall be decided by a court of competent jurisdiction and not by an arbitrator. If this Class Action Waiver is ruled unenforceable or is interpreted to not prevent a Class Action, then the Arbitration Agreement shall be null and void, and any Claims shall proceed in a court of law and not in arbitration. The Parties agree that if an arbitrator renders a decision regarding the enforcement, applicability, scope, validity, and/or interpretation of this Class Action Waiver, or determines that a Class Action may proceed in arbitration, then: (1) the arbitrator has exceeded his powers, pursuant to §10(a)(4) of the FAA, by taking such action; (2) either party may seek immediate review of that decision by a court of competent jurisdiction; and (3) a court of competent jurisdiction shall apply a “de novo” standard of review of that decision if such standard of review is allowed by the common law or statutes of that state. The Parties, including You, agree that if for any reason a Claim proceeds to Court, rather than arbitration, (1) the Claim will proceed solely on an individual, non-class, non-representative basis, and (2) no Party may be a class representative or class member or otherwise participate in any Class Action.
The arbitration shall be administered by the American Arbitration Association (“AAA”). The arbitration shall be conducted pursuant to the AAA Consumer Arbitration Rules (the “Code”). Information on AAA and a copy of the Code may be found at the following URL: American Arbitration Association, www.adr.org. The arbitration will be governed by federal substantive law and the substantive and procedural provisions of the Federal Arbitration Act (“Act”), 9 U.S.C. §§ 1-16. If federal substantive law holds that state law should apply to any issue relating to the arbitration, then the law of the state where You purchased the Replacement Plan shall apply, without regard to conflicts of law. The arbitration will occur before a single, neutral arbitrator is selected in accordance with the Code in effect at the time the arbitration is commenced. If Your total damage claims (not including attorney’s fees) do not exceed $25,000, then all Claims shall be resolved by the Code’s Procedures for the Resolution of Disputes through Document Submission, except that a Party may ask for a hearing or the arbitrator may decide that a hearing is necessary. If a hearing is held, You have a right to attend the arbitration hearing in person, and You may choose to have any arbitration hearing held in the county in which You live, the closest AAA location to Your residence, or via telephone. In the event that the specified arbitration forum is unavailable, the Parties may agree on a substitute arbitration forum. If the Parties cannot agree, a court of competent jurisdiction may appoint a substitute arbitration forum. For information about how to initiate arbitration with the AAA, the Parties may refer to the AAA Code and forms at www.adr.org. If You initiate arbitration with AAA, You must pay the AAA filing fee in an amount no greater than the fee You would have to pay if You filed a complaint in federal court. We will pay any remaining Costs of arbitration required by the Code (“Arbitration Costs”); however, if the arbitrator determines that any of Your claims are frivolous, You shall bear all of the Arbitration Costs. If We initiate arbitration against You, We will pay the AAA filing fee and the Arbitration Costs. Each party will pay his/her/its own attorney’s fees, as well as costs relating to proof and witnesses, regardless of who prevails, unless applicable law and/or the Code gives a party the right to recover any of those fees from the other party. An arbitration award may not be set aside except upon the limited circumstances set forth in the Federal Arbitration Act. An award in arbitration will be enforceable under the Federal Arbitration Act by any court having jurisdiction. The time for commencing an arbitration asserting any Claim shall be determined by reference to the applicable statute(s) of limitations, including the applicable rules governing the commencement of the limitations period, and a Claim in arbitration is barred to the same extent it would be barred if it were asserted in court of law or equity rather than in arbitration.
If any portion of this Arbitration Agreement is deemed invalid or unenforceable, all the remaining portions of this Arbitration Agreement shall nevertheless remain valid and enforceable, provided, however, that if any portion of the Class Action Waiver is deemed invalid or unenforceable, then this Arbitration Agreement shall be invalidated and unenforceable in its entirety. In the event of a conflict or inconsistency between this Arbitration Agreement and Class Action Waiver and the other provisions of this Replacement Plan or any other agreement, this Arbitration Agreement and Class Action Waiver governs.
OPT-OUT PROVISION. YOU SHALL HAVE THE RIGHT TO OPT OUT OF THIS ARBITRATION AGREEMENT AND CLASS ACTION WAIVER BY PROVIDING WRITTEN NOTICE OF YOUR INTENTION TO DO SO TO US WITHIN THIRTY (30) DAYS OF THE PURCHASE OF THIS PARTS Replacement Plan (THE DATE OF PURCHASE BEING INDICATED ON YOUR PARTS Replacement Plan. To opt out, You must send a written notice to 106 W. Mayflower Ave., North Las Vegas, NV 89030, Attn: Legal, with the subject line, “Arbitration/Class Action Waiver Opt Out.” You must include in Your opt-out notice: (a) Your name and address; and (b) the date You purchased Your Replacement Plan. If You properly and timely opt-out, then all Claims will be resolved in court rather than arbitration.
AUTHORIZATION IS REQUIRED FROM THE ADMINISTRATOR PRIOR TO ANY REPLACEMENT OF COVERED PARTS. Call the administrator toll-free at 844-870-4881 to File a Claim.