MOBILE AIR CONDITIONING SOCIETY (MACS) WORLDWIDE™
MACS' TERMS OF SERVICE AND USE
Last updated: June 2, 2017
These Terms of Service and Use, together with MACS' privacy policy at www.macsw.org (the "Privacy Policy"), and the rules, policies, terms and conditions set forth in, referred to and/or linked herein, all of which are incorporated herein by reference, are, collectively, the “Agreement” between you and Mobile Air Conditioning Society, a Pennsylvania corporation ("MACS"). This Agreement sets forth the terms of service (“Terms”) that govern the access or use by you of all applications including mobile device application(s), websites, content, products, programs and services made available by MACS (collectively, the “Site").
MACS' MEMBERS ONLY. The Services offered by MACS on the MACS' Platform described in these Terms are limited to only Members in good standing of MACS who subscribe to the Services as provided for in, and in compliance with, these Terms. In order to access the Site, a Member of MACS may not be delinquent (being past due in his membership fees or in any other monies owing to MACS by more than thirty (30) days beyond the payment due date). Membership in good standing with MACS gives the Member one free download from the Site to a mobile device designated by the Member. MACS' Members in good standing can thereafter download from the Site at an annual subscription cost of $60.00. Any use of a Service through a mobile device is also subject to these Terms. Only eligible Members of MACS may access the Site and may not use the Site or any User Content thereon to promote or represent a for-profit business or brand other than the Member and its brand(s). All subscription fees are non-refundable. BY downloading, browsing or VISITING THE SITE, OR ANY PAGE OF THE SITE, AND/OR BY USING ANY SERVICE (AS DEFINED BELOW), you represent and warrant that: (i) you are at least eighteen (18) years of age and are a legal adult in the jurisdiction in which you reside; (ii) you have the right, authority and capacity to enter into this Agreement and to abide by the Terms, and that you will so abide; and (III) all information provided by you to MACS through the Site is truthful, accurate and complete. If you enter into this Agreement on behalf of a company or other organization, you represent and warrant that you have authority to act on behalf of that entity and to bind that entity to this Agreement. The Services are not available to anyone under eighteen (18) years old, or to any individual whose account has been terminated. Your account may not be used for Services to be performed for another person.
BY VISITING THE SITE, OR ANY PAGE OF THE SITE, AND/OR BY USING ANY SERVICE (AS DEFINED BELOW), YOU FURTHER ACKNOWLEDGE THAT (I) YOU HAVE READ THESE TERMS AND CONDITIONS, (II) YOU UNDERSTAND THEM AND (III) YOU AGREE AND ACKNOWLEDGE THAT THESE TERMS AND CONDITIONS CONSTITUTE A BINDING AGREEMENT BETWEEN YOU AND MACS AND YOU WILL COMPLY WITH AND BE BOUND BY THESE TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO ALL OF THESE TERMS AND CONDITIONS, YOU MAY NOT CREATE A MACS' ACCOUNT OR ACCESS OR USE ANY SITE OR ANY PART OF THE MACS' SERVICE(S). If you do not agree to the Terms, you ARE not TO access or use the Services.
MACS may amend the Terms from time to time. Amendments will be effective upon MACS' posting of such updated or amended Terms. You should therefore check these terms and conditions and the Privacy Policy periodically for revisions, amendments and updates. Your continued access or use of the Site or Services after the posting of changes constitutes your consent to be bound by the Terms, as amended or otherwise changed.
1. Services. The Services offered by MACS is a technology platform including its website and mobile application (the "MACS' Platform") that enables users to access technical training, and compliance programs for the mobile air conditioning and heat transfer industry, to have a forum for the exchange of trade information on a regional, national and international basis, to facilitate business between all segments of the industry, who are MACS' members, to have access to product marketing, promotion and money-‐saving affinity programs, for users to receive legislative, regulatory and trade information (including data, current developments and training materials), and to receive information on legislative and regulatory initiatives that affect the industry and to advocate for the industry to legislative bodies. The foregoing Services may also include alerts about safety recalls and warranty information. MACS has the right at any time to change or discontinue any aspect or feature of any of these or other Services, including, without limitation, the content and availability of a Service or the equipment required to access or use any Service. MACS may also provide information to you relating to third party products or services, such as coupons, discounts and special offers (“Third Party Offers”). You can unsubscribe from Third Party Offer Emails at any time by clicking unsubscribe in our email communications or by contacting us. You may not, in whole or in part, resell the Services, offer to rent or lease the Services, offer to third parties a service of your own which uses the Services, or offer the Services to the public by any form of communication or integrate the Service within a service of your own.
2. Your Account. In order to create a MACS' account (the "Account"), you must use a valid email address registered to you. You may not impersonate any person or entity, or otherwise mislead as to the origin of the content you share with MACS when you register. However, MACS allows you to adopt a screenname, which may be an assumed name, under which your posts will appear on the Site; provided, that you may not use the terms MACS, MACS Worldwide or any derivatives or such terms as part of your screenname or username. Except as specifically set forth in Section 16, communications between MACS and you will be sent and received electronically. You therefore expressly consent and agree to receive communications from us, including via e-mail, text message, calls, and push notifications, to the cellular telephone number you provide to us. You agree that all agreements, notices, disclosures and other communications exchanged between you and MACS electronically shall satisfy any legal requirements that such communications be in writing. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account username and password at all times. MACS is not liable for any loss that you may suffer through the use of your password by others. You must notify us immediately of any unauthorized use of your Account or of any other breach of security known to you with respect to the Site or the Services.
3. License. Subject to your compliance with these Terms, we grant you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to access and use the Services in the United States subject to the Terms of this Agreement. Any rights not expressly granted herein are reserved by us.
4. Restrictions. You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by us; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; (vi) sell, assign, rent, transfer, distribute, act as a service bureau, sublicense or otherwise grant rights in any Service to any other person or entity; (vii) use meta tags or any other "hidden text" utilizing MACS' name or trademarks without the express written consent of MACS; (viii) allow unauthorized access or use, attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks; or (ix) introduce into any Service any virus or other code or routine intended to disrupt, delete, damage or alter the Service. Except as otherwise expressly permitted under these Terms and Conditions or copyright law, no copying, redistribution, retransmission, publication or commercial exploitation of downloaded material will be permitted without the express written permission of MACS or the copyright owner. In the event of any permitted copying, redistribution, or publication of copyrighted material, no changes in or deletion of author attribution, trademark legend, or copyright notice shall be made. You acknowledge that you do not acquire any ownership rights by downloading or printing the copyrighted material, or by using the Site and/or any Service.
5. Ownership. You acknowledge that the Site and all Services contain copyrighted material, trademarks, and other proprietary information. The Services, including the content and the organization, layout, arrangement and design elements of the Site and each individual page of the Site, and all intellectual property relating either directly or indirectly to the Services, including but not limited to patents, design rights, copyrights, trademarks, service marks, database rights (including, but not limited to information provided by you), trade secrets, know-how and all derivative works thereof (collectively, “Intellectual Property”), are and will remain the property of MACS and its affiliates and are protected by United States and international copyright, trademark and other applicable intellectual property laws. Except for the limited license granted by this Agreement, you shall not use or reference in any manner MACS' name(s), logos, product and service names, trademarks or services marks. Further, you shall not in any manner attempt to obtain any right, title, or interest, by registration, patent, copyright or otherwise in or to such Intellectual Property or any derivative thereto. You shall not take any action that jeopardizes, limits or interferes with MACS or its affiliates’ ownership of and/or right to use the Intellectual Property, including without limitation, using any Intellectual Property with any product or service that is not provided by MACS, or in any manner that is likely to cause confusion among customers, or that might disparage or discredit MACS and its affiliates. All other trademarks appearing in the Services are the property of their respective owners, including third-party providers of products and services with links to and from the Services. Chilton and the Chilton logo are trademarks of Chilton, used with permission.
6. Information Posted by You. We may permit you from time to time to submit, upload, publish or otherwise make available textual, audio, and/or visual content and information, including commentary and feedback related to the Services, or initiation of support requests ("User Content"). You may so post User Content on the Site so long as the content is not illegal or in violation of any applicable laws or regulations, is not characterized by, or that encourages racism or unlawfully discriminates on the basis of race, origin, ethnicity, nationality, religion, gender, occupation, sexual orientation, illness, physical or mental disability, faith, political view, or socio-economical class, obscene, threatening, defamatory, invasive of privacy, infringing of intellectual property rights, or otherwise injurious to third parties or objectionable and does not consist of or contain software viruses, political campaigning, commercial solicitation, chain letters, mass mailings, or any form of "spam." You are responsible for any content or materials that you post on the Site. You may not use a false email address, impersonate any person or entity, or otherwise mislead as to the origin of the content. Any User Content provided by you remains your property. However, by providing User Content to us, (a) you grant MACS a nonexclusive, royalty-free, perpetual, irrevocable, transferable, and fully sublicensable right to use, transmit, reproduce, modify, adapt, publish, translate, create derivative works from, exhibit, distribute, disclose, display, or otherwise exploit such User Content throughout the world in all formats and in any media, now known or hereafter devised without further notice to or consent from you, and without the requirement of payment to you or any other person or entity; (b) grant MACS and sublicensees the right to use the name that you submit in connection with your post, if they choose; and (c) represent and warrant that (i) you own and control all of the rights to the information that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute such information to or through the Site or any Service; (ii) such information is accurate and not misleading; and (iii) use and posting or other transmission of such information does not violate these Terms and Conditions and will not violate any rights of or cause injury to any person or entity. Further, we shall be free to use any ideas, concepts, know-how or techniques contained in such User Content for any purpose whatsoever, including developing, manufacturing and marketing products and/or services incorporating any User Content. You further grant MACS the right to pursue at law any person or entity that violates your or MACS' rights in the information by a breach of these Terms and Conditions. MACS has the right but not the obligation to monitor and edit or remove any activity or content. MACS takes no responsibility and assumes no liability for any content posted by you or any third party.
MACS also takes no responsibility and assumes no liability for any information posted, stored or uploaded by you or any third party, or for any loss or damage thereto or caused thereby, nor is MACS liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. The Site and/or the Services are provided “AS IS” and “AS AVAILABLE”. MACS DOES NOT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SITE, OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT, INFORMATION, SERVICE, OR MATERIALS PROVIDED THROUGH THE SITE. As a provider of interactive services, MACS is not liable for any statements, representations or information provided by its users in any public forum, personal home page or the Site. While MACS has no obligation to screen, edit or monitor any of the information posted to or distributed through the Site, MACS reserves the right, and has absolute discretion, to remove, screen or edit without notice any information posted or stored on the Site at any time and for any reason.
7. Network Access and Devices. You are responsible for obtaining any compatible hardware or devices and data network access necessary to use the Services. The Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications and MACS shall not be held liable for any such malfunction or delay.
8. No Modifications. You shall not modify any Service (including, without limitation, the Site). In the event any modification or improvement to any Service or the Site is developed by you or on your behalf, contrary to these Terms and Conditions, you agree to and hereby do assign to MACS all Intellectual Property rights relating to any such modification or improvement and you further agree to execute all documents and undertake all reasonable actions as MACS requests in order to procure, perfect, maintain or otherwise vest ownership of such Intellectual Property in MACS without the requirement of payment to you or any other person or entity.
9. Third Party Offers and Content. MACS does not endorse, warrant or guarantee any of the products or services available through the Third Party Offers (or any other third-party products or services advertised on or linked from any Services). Any information or content expressed or made available by third parties, including information providers and users, are those of the respective author(s) or distributor(s) and not of MACS. The Services may include links to third party web sites with which MACS has linking arrangements but for which it does not maintain control or assume responsibility. MACS does not endorse, and the inclusion of such a link does not imply MACS' endorsement of such sites. Any concerns regarding any such third party service or resource, or any link thereto, should be directed to the particular service or resource. Moreover, you should review these sites' terms of use and privacy policies. You assume full responsibility with respect to your decisions and transactions using the Services, including without limitation, all Third Party Offers.
10. Termination or Cancellation. MACS may terminate this Agreement or terminate or suspend your Account immediately without notice should your membership in MACS become delinquent (by being past due in your membership fees or in any other monies owing to MACS by more than thirty (30) days beyond the payment due date). MACS may also terminate this Agreement or terminate or suspend your Account immediately at any time for any reason or for no reason upon notice to you. If we terminate or suspend your Account, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your Account, we reserve the right to pursue any available legal action. When terminating your Account, we may delete the Account and any information in it. You have no ownership rights to your Account.
You may terminate this Agreement by completely and permanently ceasing to use the Services (provided that there are no outstanding Services ordered under your Account). If you attempt to terminate this Agreement while there are still outstanding Services ordered under your Account, this Agreement shall not terminate until such Services have been performed or otherwise canceled as permitted by this Agreement.
11. Information Publicly Available and Information Collected by MACS. MACS reserves the right to make available any and all review, comments, content or other information that you post or upload to the Site and/or any Service, as well as any and all Usage Information. MACS will collect all information that you post to the Site or otherwise provide to MACS, including without limitation, the registration information, user profile information and/or any other comments, reviews, content or other information that you post or otherwise upload to the Site and/or any Service. MACS may collect usage information, such as information regarding the number times you have visited the Site, date last visited, number of posts by you, number of tags, “likes” received, name and location, a listing of all of your posts, total messages posted, your “friends” on the Site, other “Groups” on the Site that you belong to, your online status, date registered or any other information that you choose to share about yourself (collectively, “Usage Information”).
12. DISCLAIMERS. You expressly agree that use of the Services is at your sole risk. MACS does not warrant that the Services will be uninterrupted or error free; nor do they make any warranty as to the results that may be obtained from use of the Services, or as to the accuracy or reliability of any information, service, or materials provided through the Services. You understand and agree that any alerts provided to you through any Services may be delayed or prevented by a variety of factors. MACS does not guarantee the delivery or accuracy of the content of any alert. You also agree that MACS shall not be liable for any delays, failure to deliver or misdirected delivery of any alert, for any errors in the content of an alert or for any actions taken or not taken by you or any third party in reliance on an alert. You acknowledge that MACS collects data from public records and other sources for use in the Services and that this data may contain errors and omissions. MACS does not guarantee the correctness or completeness of the Services and MACS will not be liable for any loss or injury caused, in whole or part, either by its negligence or circumstances beyond its control in procuring, compiling, collecting, interpreting or making available the Services. You understand that not all information is available for all states and that MACS does not have access to some information that may be available to other parties. You also understand there may be a delay of a period of time between receipt of certain information by MACS and its inclusion of such information into the Services. The Services are not intended to provide any conclusions regarding the condition of any vehicles and you should use independent research and your own good judgment in making the best decisions about all vehicles. You recognize that MACS' sole obligation in the case of erroneous data, when notified in writing by you of such erroneous data, is correction of the record in question. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE MACS' PLATFORM AND YOU HEREBY RELEASE MACS FROM ANY LIABILITY RELATED THERETO. WE WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE MACS' PLATFORM.
13. NO WARRANTIES. THE SERVICES are PROVIDED TO YOU “AS IS.” MACS DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY WARRANTIES IN REGARD TO QUALITY, AVAILABILITY, PERFORMANCE, NONINFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW. ADDITIONALLY, THERE ARE NO WARRANTIES RELATING TO ANY OF THE INFORMATION POSTED ON THE SITE. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INACCURACY, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE SITE, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR (INCLUDING STRICT LIABILITY), NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION. YOU SPECIFICALLY ACKNOWLEDGE THAT MACS IS NOT LIABLE FOR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD-PARTIES AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. You shall exercise your own independent judgment in determining the applicability, accuracy, reliability and suitability of the Service for your purposes. MACS MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE SERVICES OR ANY SERVICES OR GOODS REQUESTED THROUGH THE USE OF THE SERVICES, OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
14. lIMITATION OF LIABILITY. YOU AGREE NOT TO HOLD MACS (OR, ITS LICENSORS, MEMBERS, DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SUCCESSORS, ASSIGNS AND CONTENT PROVIDERS (COLLECTIVELY, "MEMBERS")) LIABLE FOR ANY DAMAGES, EXPENSES, LOSSES, SUITS, CLAIMS, AND/OR CONTROVERSIES THAT HAVE ARISEN OR MAY ARISE, WHETHER KNOWN OR UNKNOWN, RELATING TO YOUR USE OF OR INABILITY TO USE THE MACS' PLATFORM OR ANY SERVICES, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT, DELAY OF PERFORMANCE OR OMISSION OF ANY USER OR THIRD PARTY PROVIDER (OR ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND ANY THIRD PARTY PROVIDER), ANY DISPUTE WITH ANY USER OR THIRD PARTY PROVIDER, ANY INSTRUCTION, ADVICE, ACT, OR SERVICE PROVIDED BY MACS OR MEMBERS, AND ANY DESTRUCTION OF YOUR INFORMATION.
UNDER NO CIRCUMSTANCES WILL MACS OR MEMBERS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, INCLUDING WITHOUT LIMITATION LOST PROFITS, LOST EARNINGS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE, WHETHER OR NOT WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MACS AND MEMBERS DO NOT ACCEPT ANY LIABILITY WITH RESPECT TO THE QUALITY OR FITNESS OF ANY WORK PERFORMED IN CONNECTION WITH THE MACS' PLATFORM.
THE MACS' PLATFORM IS ONLY A VENUE FOR CONNECTING USERS. WE ARE NOT RESPONSIBLE FOR ASSESSING THE SUITABILITY, LEGALITY OR ABILITY OF ANY THIRD PARTY PROVIDER AND YOU EXPRESSLY WAIVE AND RELEASE MACS FROM ANY AND ALL LIABILITY, CLAIMS OR DAMAGES (ACTUAL, DIRECT OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING FROM OR IN ANY WAY RELATED TO ANY THIRD PARTY PROVIDER. WE EXPRESSLY DISCLAIM ANY LIABILITY THAT MAY ARISE BETWEEN YOU AND ANY THIRD PARTY PROVIDER. THE QUALITY OF THE SERVICES SCHEDULED OR REQUESTED THROUGH THE USE OF THE MACS' PLATFORM IS ENTIRELY THE RESPONSIBILITY OF THE THIRD PARTY PROVIDER WHO ULTIMATELY PROVIDES SUCH SERVICES TO YOU. YOU UNDERSTAND, THEREFORE, THAT BY USING THE MACS' PLATFORM, YOU MAY BE EXPOSED TO SERVICES THAT ARE POTENTIALLY DANGEROUS, OFFENSIVE, HARMFUL, UNSAFE OR OTHERWISE OBJECTIONABLE, AND THAT YOU USE THE MACS' PLATFORM, AND THIRD PARTY PROVIDER, AT YOUR OWN RISK. NOTHING IN THIS AGREEMENT OR THE MACS' PLATFORM CONSTITUTES, OR IS MEANT TO CONSTITUTE, ADVICE OF ANY KIND. IF YOU REQUIRE ADVICE IN RELATION TO ANY LEGAL, FINANCIAL OR MEDICAL MATTER YOU SHOULD CONSULT AN APPROPRIATE PROFESSIONAL.
By USING THE MACS' PLATFORM, YOU AGREE THAT THE EXCLUSIONS AND LIMITATIONS OF LIABILITY SET OUT IN THIS AGREEMENT ARE REASONABLE. IF YOU DO NOT BELIEVE THEY ARE REASONABLE, YOU MUST NOT USE THE MACS' PLATFORM.
California Waiver. If you are a California resident, to the extent permitted by California law, all rights under California Civil Code Section 1542 are expressly waived. Section 1542 of the California Civil Code reads as follows: "§1542. A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor." as well as any other unknown claims under California Civil Code Section 1542 or any statute or common law principle of similar effect.
15. Indemnification. You agree to defend, indemnify, and hold harmless MACS and Members from and against any and all claims, actions, demands, damages, costs, liabilities, losses, and expenses (including reasonable attorneys' fees) arising out of (i) your use of the Site and/or any Service or any content therein, (ii) any distribution, publication, refusal to publish, deletion, editing or other use of the content you provide, (iii) your violation of these Terms and Conditions, (iv) your violation or infringement of any third party’s rights, or (v) any actual, prospective or terminated sale or other transaction between you and a third party. You will not, in any event, settle any such claim or matter without the prior written consent of MACS.
16. Dispute Resolution. (a) You and MACS both agree that any and all disputes or claims arising out of or relating in any way to any MACS' Services, or from any advertising for any such Services, including any question regarding the existence, validity, or termination of these Terms and Conditions, as well as any issue regarding the interpretation of this Section 16, will be resolved by binding arbitration before a sole arbitrator, rather than in court, except that you may assert claims in small claims court if your claims qualify and MACS may pursue a collection action against you in court. This also includes any claims that arose before you accepted these Terms and Conditions, regardless of whether prior versions of the Terms and Conditions required arbitration. The Federal Arbitration Act (9 U.S.C. § 1 et seq.) and federal arbitration law apply to this arbitration agreement. Arbitration uses a neutral arbitrator instead of a judge and jury. An arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages) and must follow the terms of these Terms and Conditions as a court would. Arbitration procedures allow for more limited discovery, and court review of an arbitration award is limited.
(b) If you have a dispute and elect to seek arbitration or file a claim in small claims court, you must first send to MACS, by certified mail, a written notice of your claim that (a) describes the nature and basis of the claim or dispute; (b) sets forth the specific relief sought and (c) includes a physical address and email address where you may be reached ("Notice"). The Notice must be addressed to: President, Mobile Air Conditioning Society, 225 S. Broad Street, Lansdale, PA 19466 (“Notice Address”). If MACS and you do not reach an agreement to resolve the claim within sixty (60) days after the Notice is received, you or MACS may commence an arbitration proceeding or file a claim in small claims court. You may download or copy a form to initiate arbitration at www.adr.org.
(c) The arbitration will be governed by the AAA’s then current Consumer Arbitration Rules, as modified by these Terms and Conditions, and will be administered by the AAA. The AAA Rules and Forms are available online at www.adr.org or by calling the AAA at 1-800-778-7879. In the event of any conflict between these Terms and Conditions and the AAA Consumer Arbitration Rules, the Terms and Conditions will apply. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules.
(d) You and MACS agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, representative, consolidated or mass action. You shall not join or consolidate claims or arbitrate or otherwise participate in any claim as a class representative, class member or in a private attorney general capacity. If this provision is found to be unenforceable, then the entirety of this Section 16 shall be null and void.
(e) Any arbitration will be confidential. Neither you, MACS, the AAA nor the arbitrator may disclose the existence, content (including any oral or written submissions), or results of any arbitration, except as may be required by law or for purposes of enforcing or challenging of the arbitration award.
(f) Notwithstanding the foregoing agreement to use arbitration, we also both agree that you or MACS may bring suit in court to enjoin infringement or other misuse of intellectual property rights.
17. Governing Law. By accessing or using the MACS' Platform or any Services, you agree that the Federal Arbitration Act, applicable federal law, and the laws of the Commonwealth of Pennsylvania, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state, will govern these Terms of Use and any dispute of any sort that might arise between you and MACS and any enforcement of this Agreement.
18. Jurisdiction and Venue. If for any reason a claim proceeds in court rather than in arbitration or small claims court, including if you opt out under Section 16, we each waive any right to a jury trial and agree that any such proceeding shall be conducted only on an individual basis and not in a class, representative, consolidated or mass action. Under such circumstances, except for a collection action by MACS, you and MACS agree that jurisdiction and venue for all matters relating to these Terms and Conditions shall be vested exclusively in the state courts in Montgomery County, Pennsylvania, or the United States District Court for the Eastern District of Pennsylvania. If any part of this Section 18 is found to be unenforceable, the remainder of Section 16 and this Section 18 shall still be given full force and effect.
19. Survival. Sections 1, 4, 5, 6, 8, 9, 11, 12, 13, 14, 15, 16, and 19 of these Terms and Conditions shall survive expiration or termination of the agreement between you and MACS.
20. Viruses, etc. You will not upload, send, receive, or otherwise introduce any material which is technically harmful (including computer viruses, logic bombs, Trojan horses, worms, harmful components, corrupted data, spyware, or other malicious software or harmful data) that jeopardizes the security or integrity of any Service or the Site or any other MACS' website and/or mobile device application or otherwise interferes with any Service and/or Site functioning as intended by MACS. MACS assumes no responsibility, and shall not be liable for, any damages to, or viruses that may infect, your computer equipment or other property on account of your access to, use of, or browsing in the Service or your downloading of any materials, data, text, images, video, or audio from the Service.
21. Export Controls. Software and other materials from or in connection with any Service may be subject to United States Export Control. The United States Export Control laws prohibit the export of certain technical data and software to certain territories. No software from or in connection with any Service may be downloaded or exported (i) into (or to a national or resident of) Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country to which the United States has embargoed goods; or (ii) anyone on the Unites States Treasury Department's list of Specially Designated Nationals or the US Commerce Department's Table of Deny Orders. MACS does not authorize the downloading or exportation of any software or technical data from or in connection with the Service to any jurisdiction prohibited by the United States Export Laws.
22. Digital Millennium Copyright Act Notice. It is the policy of MACS to respect the intellectual property of others. If you are alleging that material available on or through a MACS' website infringes upon your copyright, please submit a written notification pursuant to the Digital Millennium Copyright Act ('DMCA'). The notice must include the following to be effective:
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed,
(b) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site,
(c) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit MACS to locate the material,
(d) Information reasonably sufficient to permit MACS to contact you, such as an address, telephone number, and, if available, an email address,
(e) A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law,
(f) A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
In the event that MACS removes material from a MACS' website (or access to the material is disabled) and you believe that such material is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to law, please submit a written counter notification pursuant to the DMCA. The counter notification must include the following to be effective:
(a) Your physical or electronic signature,
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled,
(c) A statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification,
(d) Your name, address, telephone number, and, if available, an email address, and a statement that you consent to the jurisdiction of the United States District Court for the Eastern District of Pennsylvania, and that you will accept service of process from the person who provided notification of the alleged infringement.
MACS may give notice by means of a general notice through the MACS' Platform, electronic mail to your email address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of forty-eight (48) hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email).
You may give notice to MACS, with such notice deemed given when received by MACS. All written notices to MACS should be sent to the following:
Mobile Air Conditioning Society
225 S. Broad Street
Lansdale, PA 19466
Attn: Elvis Hoffpauir, President
Fax: (215) 631-7017
Email: [email protected]
23. Third Party Content. Certain content provided through the MACS' Service is provided under license from third parties and is subject to copyright, trademark and other intellectual property rights. The MACS' Platform may contain logos and/or brand names of third parties, and/or links (such as hyperlinks) to third-party websites. Such brands, logos, and links do not constitute our endorsement of those parties, sites or their content. They are provided as an information service, for reference and convenience only. We do not control any such sites, and are not responsible for their availability or accuracy, or content, advertising, or products or services. The existence of links on the MACS' Platform to such websites (including without limitation external websites that are framed by the MACS' Platform as well as any advertisements displayed in connection therewith) does not mean that we endorse any of the material on such websites, or have any association with their operators. It is your responsibility to evaluate the content and usefulness of the information obtained from other sites. We expressly disclaim any liability arising in connection with your use and/or viewing of any websites, others’ brands or logos, or other material associated with links, logos or brand names that may appear on the MACS' Platform. You hereby agree to hold us harmless from any liability that may result from the use of links that may appear on the MACS' Platform.
24. Assignment. You may not assign these Terms without MACS' prior written approval. MACS may assign these Terms without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of MACS' equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you and MACS as a result of this Agreement or use of the Services.
25. Invalidity and Waiver. If any provision of these Terms or of the Agreement is held to be invalid or unenforceable under applicable law, the remaining provisions shall continue in full force and effect. MACS' failure to enforce any right or provision in these Terms shall not constitute a waiver of such right or provision unless acknowledged and agreed to by MACS in writing.
26. Apple or Android Enabled Software Applications. MACS offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”) at AppStore or Android at Google Play, among other platforms. With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”, “Android-Enabled Software), in addition to the other terms and conditions set forth in this Agreement, the following terms and conditions apply:
(a) MACS and you acknowledge that this Agreement are concluded between MACS and you only, and not with Apple, and that as between MACS and Apple, MACS, not Apple or Google, is solely responsible for the Apple-Enabled Software and the content thereof.
(b) You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software or Android-Enabled Software in, or otherwise be in conflict with, the App Store or Google Play Terms of Service.
(c) Your license to use the Apple-Enabled Software or Android-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iOS Product or Android-Enabled Software on an Android Product, that you own or control, as permitted by the Usage Rules set forth in the App Store or Google Play Terms of Service.
(d) Apple or Google has no obligation whatsoever to provide any maintenance or support services with respect to the Apple or Android Enabled Software.
(e) Apple or Google is not responsible for any product warranties, whether express or implied by law. Apple or Google will have no warranty obligation whatsoever with respect to the Apple or Android Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be MACS' sole responsibility, to the extent it cannot be disclaimed under applicable law.
(f) MACS and you acknowledge that MACS, not Apple or Google, is responsible for addressing any claims of you or any third party relating to the Apple or Android Enabled Software or your possession and/or use of that Apple or Android Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple or Android Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(g) In the event of any third party claim that the Apple or Android Enabled Software or the end-user’s possession and use of that Apple or Android Enabled Software infringes that third party’s intellectual property rights, as between MACS and Apple or Google, MACS, not Apple or Google, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
If you have any questions, complaints or claims with respect to the Apple or Android Enabled Software, they should be directed to MACS as follows: Mobile Air Conditioning Society, 225 S. Broad Street, Lansdale, PA 19466, Attn: Elvis Hoffpauir, President, Fax: (215) 631-7017 Email: [email protected].
MACS and you acknowledge and agree that Apple, Google and their subsidiaries, are third party beneficiaries of this Agreement with respect to the Apple and Android Enabled Software, and that, upon your acceptance of the terms and conditions of this Agreement, Apple or Google will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you with respect to the Apple or Android Enabled Software as a third party beneficiary thereof.
27. No Legal Relationship. These Terms of Use and your use of the Service, including the submission of User Content onto the Service, do not, and shall not be construed as creating any relationship, partnership, joint venture, employer-employee, agency, or franchisor-franchisee relationship in any way and of any kind between the parties hereto. Your use of the Service is intended for your enjoyment and benefit and the provision of the Service to you (subject to your compliance with these Terms) constitutes the sole and sufficient consideration that you are entitled to receive for any Content or other contributions you have made to the MACS' Service, its contents, maps and any other data.
28. Entire Agreement. These Terms and Conditions constitute the entire agreement of the parties with respect to the subject matter hereof and supersede all previous written or oral agreements between the parties with respect to such subject matter.
Questions. Please contact us with any questions regarding this Agreement by emailing us at [email protected]