MYQ-TESLA CONNECTED GARAGE TERMS OF SERVICE AND SUBSCRIPTION AGREEMENT

 

Welcome to MyQ-Tesla Connected Garage. These MyQ-Tesla Connected Garage Terms of Service and Subscription Agreement (“Terms of Service”) apply to your use and access to Services provided by The Chamberlain Group LLC (“Chamberlain” or “we” or “us”), through a Tesla vehicle (“Vehicle”) (the “Services, as further described herein). These Terms of Service shall apply to each Vehicle owner, lessee, or rentee, or other person accessing or using the Services through such person’s Vehicle MyQ account (generally defined herein as “you”, or “user”).

 

THESE TERMS OF SERVICE CONSTITUTE A LEGAL AGREEMENT BETWEEN YOU AND US. If you do not agree to these Terms of Service, DO NOT use the Services.

 

PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS PROVISIONS THAT GOVERN HOW DISPUTES BETWEEN YOU AND US ARE RESOLVED, WHICH INCLUDE AN AGREEMENT TO SUBMIT ANY DISPUTE RELATED TO THE SERVICES OR THESE TERMS OF SERVICE TO BINDING INVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. THESE TERMS ALSO INCLUDE A JURY TRIAL WAIVER AND A CLASS ACTION WAIVER, WHICH MEANS YOU AGREE NOT TO HAVE A TRIAL BY JURY AND NOT TO PROCEED WITH ANY DISPUTE AS PART OF A CLASS ACTION. PLEASE SEE SECTION [__] OF TERMS OF SERVICE FOR FURTHER INFORMATION.

 

You must be at least 18 years, or the age of majority in your state of residence, to accept these Terms of Service and enroll in the Services and the Primary Driver (defined in Section [__] below). If you are under age 18, or under the age of majority in your state of residence, your parent or guardian must accept these Terms of Service on your behalf and enroll as the Primary Driver. You are responsible for informing other who use your Vehicle that the Services are active and that data may be collected from your Vehicle in accordance with the MyQ Privacy Policy, available here, which may be updated from time to time.

 

USERS OF MYQ-TESLA CONNECTED GARAGE SHOULD NEVER OPERATE MY-TESLA CONNECTED GARAGE IN A MANNER THAT IS DISTRACTING TO THE DRIVER. ALWAYS PAY CAREFUL ATTENION TO THE ROAD AND DO NOT DRIVE WHILE DISTRACTED.

 

Understanding the Terms of Service

These Terms of Service, including any other Chamberlain terms, policies, and guidelines identified herein, constitute the complete agreement between you and us with respect to the Services and are legally binding upon the earlier of your agreement to these Terms of Service or your access, use, subscription to, purchase of, upload or transmission to, or download of any information, content, or other materials to or from the Services. You are responsible for your own compliance with these Terms of Service and for compliance by any other drivers or occupants of your Vehicle and anyone who uses your MyQ-Tesla Connected Garage account.

 

Setting Up Your MyQ-Tesla Connected Garage Account

In order to receive all available functionality or features of the Services under a service plan you select (“Service Plan” as further described in Section [__] below), you will be required to link your MyQ account to our Vehicle through your Vehicle’s infotainment system. You are responsible for maintaining the confidentiality and security of any user credentials you use to set up your account. You will be solely responsible for all activity in your account so it important that you notify us immediately if you become aware of any breach of security or unauthorized use of your account or the Services.

 

How the Services Work; Restrictions and Limitations

Equipment and Coverage Area

The Services are provided using hardware and software in your Vehicle (“Equipment”) that enables your Vehicle to receive MyQ services through the wireless communication networks of wireless services providers and the Global Position System (“GPS”) satellite network. The Equipment receives GPS signals and communicates with our response centers through the use of wireless communication networks. The location of your Vehicle, particularly in rural or enclosed areas, may affect the availability and quality of the Services. Some of all Services may not be available in all areas. Services may only be available if your Vehicle is in a geographic area covered by the service network footprint (and within operating range) of one of our wireless providers and is able to the Vehicle is able to receive GPS signals. Services are currently only available in the continental United States (including the District of Columbia), Alaska, and Hawaii.

 

Not all Services are available everywhere, particularly in rural or enclosed areas, at all times. You expressly release us and our third-party services providers, including, without limitation, Tesla, Inc. from all liabilities and losses (including, without limitation, physical injury and death) that you our others may suffer in a situation where some or all of the services are not available.

Our Privacy Practices with Respect to Your Vehicle and Data

The data collected from the Vehicle, if any, and the other information you provide to us in connection with the Services are used and shared in accordance with the Chamberlain Privacy Statement available here.

 

 

Tesla’s Interface and User Experience

The Services include the integration with Tesla’s front end systems (the “Tesla Front End Systems”) to enable your user interface and experience, as well as to facilitate the operation of certain features such as geofencing. We do not create or control the Tesla Front End Systems. Tesla is responsible for the function, availability, maintenance and upkeep of the Tesla Front End Systems. By facilitating the access to the Services through the Tesla Front End Systems, Chamberlain makes no representations or warranties about Tesla Front End Systems. Your relationship in connection with the Tesla Front End Systems is solely between you and Tesla.

 

Software

We use software in connection with the Services. We or Tesla own or have rights to all such software and you do not acquire any rights in such software other than the right to use such software as reasonably necessary for you to use the Services as permitted in your Service Plan and these Terms of Service. We or Tesla may update or modify the software contained in your Vehicle’s systems or the Equipment from time to time, and we may do this remotely, without notifying you or seeking your consent.

 

Events Beyond Our Control

Various conditions beyond our control may prevent or delay us from providing any or all of the Services to you, or affect the quality of the Services. The availability of the Services is not guaranteed. We are not responsible for failure or delay in providing the Services if caused by acts of nature or forces or conditions beyond our control including, but not limited, congestion, outages, or failure of public utilities, internet, computers, telecommunications, or wireless networks (such as interruption of cellular service); acts of war; act of God; government actions; terrorism; civil disturbances; labor shortages, strikes, or difficulties (regardless of cause); atmospheric, geographic, or topographic conditions (such as tell buildings, hills, or tunnels); inclement weather; natural disaster; damage to or failure to maintain your Vehicle of the Equipment in good working order; or government laws, rules, or regulations. In the event of nay of the foregoing or similar events beyond our control, we may, in our discretion, suspend or terminate the Services (in whole or in part) or terminate your Service Plan, without notice to you and without any refund, compensation, credit, or other liability to you. You are not entitled to a credit or refund as result of any delay or failure described herein.

In the event of any regulatory, governmental, or other legally compelled changes, or discontinuation or change of necessary telecommunications, systems, services, or technologies, it may be necessary to replace Equipment for you to continue to receive Services.  You are solely responsible for replacing, as well as the cost of replacing, any Equipment that is necessary to receive the Services as a result of such change or discontinuation.

 

Payment Provisions

Trial Period

Every Vehicle enrolled in MyQ-Tesla Connected Garage will be provided with a thirty (30) day free trial period (the “Trial Period”). No credit card is required to be on file with us to initiate the Trial Period.

Subscription Fee

Current information about the Subscription Fee and the Subscription Period can be found at the MyQ Services website (www.myqservices.com). We may change, add, or delete Services at any time without notice to you.

Third Party Charges.

You are responsible for paying directly to third parties, including Tesla, all charges for services furnished by them directly to you that are not expressly covered by the Services. These Terms of Service shall have no effect on the terms and conditions of any agreement that you have with a third party.

Taxes and Surcharges

The Subscription Fee does not include certain taxes and surcharges that may apply to your Service. To the extent applicable, as determined by us in our sole discretion, in addition to the Subscription Fees, we may charge state and local taxes. In addition to all applicable Subscription Fees, you agree to pay all taxes and surcharges charged to you by us, which will be added to your bill.

Your Agreement to Pay

You are responsible for paying all amounts due on time and in full and to keep an active credit card on file with us (except during the Trial Period. We will debit your Subscription Fee from this credit card upon expiration of the Trial Period and on the anniversary of the expiration of the Subscription Period. All charges (including the Subscription Fee, taxes and surcharges) will be charged in advance of the term to which they apply and are non-refundable. We may terminate or suspend your Service without notice to you, if your credit, charge or debit card provider refuses a charge from us or if such card has otherwise expired. Even if we terminate or suspend your Service, you will still be responsible for any charges due at the time of such suspension or termination.

You expressly consent and authorize us to: (1) verify, either ourselves or through third parties, your credit or debit card information; (2) receive updated account information from the financial institution issuing your credit, charge or debit card; (3) review your credit history and obtain credit reports to determine your creditworthiness; (4) charge all amounts for which you are responsible to the credit, charge or debit card account number you have provided. We will only use this information in connection with whether to provide you with or charging you the Service.

Disputed Charges

If you think that there has been an error in any charge billed by or through us, you must notify us by calling 1-800-528-5880 within 60 days, or such longer period as required by law, after the charge us posted to your account to request an adjustment. If you do not contact us about the disputed charge within this time period, you agree that you have waived your right to dispute the charge and must pay all amounts dur in full.

Termination, Suspension, Reactivation, Change and Transfer of Service

Suspension or Termination

We can decide to either suspend or terminate the Service without warning, or issue a warning, at any time for any reason in our discretion, including for network or system maintenance, improvement, congestion, or failure or if we suspect your Service is being used for any unauthorized or inappropriate purpose, as a result of your breach of these Terms of Service or for reasons unrelated to you or your account with us. If suspension or termination of the Service occurs from any reason, you acknowledge and agree that you may not be able to access the Service. If we elect to terminate your Service, you will not be entitled to any refunds or credits regardless of the reason for termination.

Cancellation by You

You may cancel the Service at any time through the MyQ Service website (www.myqservices.com)or by contacting our Technical Support Center and notifying us that you want to cancel the Service. In no event will you be entitled to a refund.

Reactivation of Service

You do not have any right to have your Service reactivated, even if you cure any of the issues that resulted in the termination or suspension of your Service. It is solely our decision as to whether to allow you to have Service again.

Transfer of Service, Sale of Vehicle, Termination of Lease

The Service is not transferable to other users, but may be transferred other Vehicles.

 

Your Responsibilities

Your Responsibility for the Proper Operation of Your Vehicle and Proper Use of the Service

You expressly acknowledge and agree that the use of or any reliance upon any information or content available through the service is solely and completely at your own risk and responsibility. It is your sole responsibility to ensure that you (and/or any other occupant of your vehicle) follow instructions for use of the service and exercise good judgment and obey traffic and all other applicable laws and regulation, when operating your vehicle; using the equipment and service; and/or evaluating whether the use of any of the services is safe and legal under the circumstances.

Your responsibility for Maintaining Your Vehicle

In order for us to provide the Service, your Vehicle must be in good working order and your Vehicle must have a working electrical system and adequate battery power. The Service may not work in you try to modify or add any equipment or software in or to your Vehicle that is not expressly authorized by us or is not compatible with the Service. You are solely responsible for the proper maintenance of your Vehicle and its systems.

No Commercial Use or Resale of the Service

The Service, in the messages, data, information, content, or other material provided as part of the Service, are provided only for your non-commercial use, and not for re-sale. Certain information you receive through the Service belongs to us (or other third parties) and may be subject to one or more copyrights, trademarks, service marks, patents, or other legal protections. You may not (and may not permit or cause any other party to) sell or otherwise use the Service or any information provided through the Service for commercial purposes, nor may you reproduce, copy, modify, attempt to reverse engineer, make derivative works from or otherwise display or distribute information provided through the Service.

Disclaimer of Warranties

Chamberlain does not warrant or guarantee that service will be available at any specific time or at all times or to any geographic location, or that the service will be provided without interruption, delay or error. Neither we nor any of our services partners make any warranties, express or implied about (1) the Equipment or any other hardware or software used with the service, (2) the service, (3) noninfringement, or (4) any data or information or other services provided through the service. This includes, without limitation, warranties of security, title, content, quality, accuracy, timeliness, completeness, correctness, reliability, merchantability, or fitness for a particular purpose or use. All such warranties are expressly excluded by these terms of service. We expressly disclaim any and all express and implied warranties.

Limitation of Liability

By entering into these Terms of Service or by using the Service, you are waiving important rights, and you are providing you express consent to various action to be taken by us, Chamberlain entities and our service partners or providers. The phrase “service partners or providers” as used in these Terms of Service includes, without limitation, Tesla, Inc.

Neither we, nor any Chamberlain entity not our service partners or providers or providers assume any risk or responsibility for your use of the Service, or any of the information or other content provided as part of the Service. You acknowledge and agree that neither we, any Chamberlain entity, nor any of our service partners or providers are liable for interrupted service, or for problems caused by or contributed to by you, by any third-party, by buildings, hills, tunnels, network congestion, atmospheric conditions, act of God or natural disaster or by any other conditions or circumstances out of our control (as further described in Section [_] of these Terms of Service).

In addition, neither we, any Chamberlain entity nor our service partners are liable (1) for our inability to contact any service partner or provider or other party in any particular situation, (2) for any act or omission of any other company furnishing part of our Service or any equipment provided for such Service, (3) for errors or omissions of any vendors, dealers or manufacturers participating in offers made through us, or (4) for any damages that result from or arise out of the use, installation, repair or maintenance by you (or person you authorize) of the Service, or any product or service provided by or manufactured by third parties.

If we, any Chamberlain entity and/or any of our service partners or providers are found to be liable to you for any reason, you agree that the maximum, aggregate liability of us, any Chamberlain entity and our service partners or providers to you, and your exclusive remedy under any theory or for any cause whatsoever (including but not limited to any failure or disruption or service provided under these terms of service, fraud, misrepresentation, breach of contract, personal injury, or products liability), shall be limited to an amount equal to the Subscription Fee charged to you for the Subscription Period in which the claims and any resulting damages occurred. You acknowledge and agree that neither we, nor any Chamberlain entity, not any service partner or providers or providers would have agreed to provide the service or Equipment to you without your agreement to this limitation. You further agree that the damages cap set forth in this paragraph shall be the sole and exclusive liability of us, any Chamberlain entity and our service partners or providers to you.

In no event shall we, any Chamberlain entity or our service partners or providers be liable to you or any other party for, and you cannot recover any, (a) punitive, exemplary, treble, consequential, indirect, or special damages of any kind, including, without limitation, lost profits or revenue (regardless of whether we, any Chamberlain entity or our service partners or providers has been notified that such loss may occur); or (b) attorney’s fees. You agree not to make, and to waive to the fullest extent allow by law, any claim for damages other than direct, compensatory damages as limited above. Some states do not allow the exclusion or limitation of incidental or consequential damages, so those particular limitation may not apply to you.

You understand and agree that the Chamberlain entities, shall have no legal, equitable, or other liability of any kind to you in any event, regardless of the form of the action, whether for breach of contract, warranty, negligence, strict liability in tort or otherwise relating to or arising from the Service and you waive any and all such claims or demands. If any Chamberlain entity or any of our other service partners or providers is involved in any problem, you also agree to any limitations of liability that such entity imposes on its customers.

Indemnification; Release

You agree to indemnify and hold harmless us, each Chamberlain entity and each of our service partners or providers, and each of our or their respective affiliates, officers, directors, agents, partners and employees, from and against any and all liabilities, settlements, penalties, claims, causes of action, and demands (including any costs, expenses, or attorneys’ fees on account thereof) (collectively, “Claims”) irrespective of the nature of the cause of such Claims, alleging loss, costs, expenses, damages or injuries (including without limitation Claims for libel, slander, or any property damage, personal injury or death), arising in any way, directly or indirectly, in connection with your (or any occupant of your Vehicle) alternation, use counter to instructions, misuse or failure to use the Service or its relevant equipment.

You agree that the limitations of liability and indemnities in these in these Terms of Service will survive even after your Service has terminated. These limitations of liability apply not only to you, but to anyone using your Vehicle, the Service, to anyone making a claim on your behalf, and to any claims made by your family, employees, customer, or others arising out of or relating to any Service we or our service partners or providers provide.

Without  limitation  of the generality of the foregoing, you further agree to release us, each Chamberlain entity and each service partner or provider from all claims, liabilities and losses in connection with the Service and/or Equipment, including, but not limited to claims for data compromise, personal injury or property damage arising from the total or partial failure of performance of the service, even if caused by the negligence of us, any Chamberlain entity or any other service partner or provider, or the malfunction of the related equipment. You agree that this release extends to any party claiming under you.

Dispute Resolution

Please carefully read this provision, which applies to any dispute between you and The Chamberlain Group LLC and its subsidiaries and affiliates (together, “Chamberlain” or “We”).

YOU AND WE AGREE THAT IN THE EVENT OF ANY DISPUTES BETWEEN US, WE WILL FIRST TRY TO RESOLVE IT BY TALKING WITH EACH OTHER. IF WE ARE UNSUCCESSFUL IN RESOLVING OUR DISPUTES IN THIS MANNER WITHIN A REASONABLE TIME PERIOD, YOU AND CHAMBERLAIN EACH AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW:

(1) ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THESE TERMS OF SERVICE, OR TO ANY PRODUCT OR SERVICE PROVIDED UNDER OR IN CONNECTION WITH THESE TERMS OF SERVICE, WILL BE SETTLED BY INDEPENDENT ARBITRATION INVOLVING A NEUTRAL ARBITRATOR AND ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION ("AAA") UNDER WIRELESS INDUSTRY ARBITRATION ("WIA") RULES, AS MODIFIED BY THESE TERMS OF SERVICE. WIA RULES AND FEE INFORMATION ARE AVAILABLE FROM US OR THE AAA. ARBITRATION IS NOT A COURT PROCEEDING. THE RULES OF ARBITARATION DIFFER FROM THE RULES OF COURT. THERE IS NO JUDGE OR JURY IN AN ARBITRATION PROCEEDING;

(2) EVEN IF APPLICABLE LAW PERMITS CLASS ACTIONS OR CLASS ARBITRATIONS, YOU EXPRESSLY WAIVE ANY RIGHT TO PURSUE ON A CLASS BASIS ANY SUCH CONTROVERSY OR CLAIM AGAINST CHAMBERLAIN OR ANY OF OUR SERVICE PARTNERS OR PROVIDERS, OR ANY OF OUR RESPECTIVE AFFILIATES, OFFICERS, DIRECTORS, AGENTS, PARTNERS, LICENSORS, EMPLOYEES OR PREDECESSORS IN INTEREST. IF MULTIPLE CLAIMS ARE JOINED IN ONE ACTION, SOME OF WHICH WOULD NOT BE SUBJECT TO ARBITRATION, THE LATTER CLAIMS MUST BE STAYED UNTIL ANY CLAIMS IN THAT ACTION THAT ARE SUBJECT TO ARBITRATION HAVE BEEN RESOLVED. IF CLAIMS ARE ASSERTED AGAINST MULTIPLE PARTIES, SOME OF WHOM ARE NOT REQUIRED TO ARBITRATE, THE CLAIMS SUBJECT TO ARBITRATION MUST BE SEVERED.  HOWEVER, YOU RETAIN YOUR RIGHT TO FILE A COMPLAINT WITH ANY REGULATORY AGENCY OR COMMISSION;

(3) NO ARBITRATOR HAS AUTHORITY TO AWARD RELIEF IN EXCESS OF WHAT THESE TERMS OF SERVICE PROVIDE, OR TO ORDER CONSOLIDATION OR CLASS ARBITRATION, EXCEPT THAT AN ARBITRATOR DECIDING A CLAIM ARISING OUT OF OR RELATING TO A PRIOR AGREEMENT MAY GRANT AS MUCH SUBSTANTIVE RELIEF ON A NON-CLASS BASIS AS SUCH PRIOR AGREEMENT WOULD PERMIT. IN ALL ARBITRATIONS, THE ARBITRATOR MUST GIVE EFFECT TO APPLICABLE STATUTES OF LIMITATIONS AND WILL DECIDE WHETHER AN ISSUE IS ARBITRABLE OR NOT. IN A LARGE/COMPLEX CASE ARBITRATION, THE ARBITRATORS MUST ALSO APPLY THE FEDERAL RULES OF EVIDENCE AND THE LOSING PARTY MAY HAVE THE AWARD REVIEWED BY A REVIEW PANEL CONSISTING OF THREE (3) ARBITRATORS; AND

(4) IN THE EVENT THE FOREGOING ARBITRATION REQUIREMENTS DO NOT APPLY, YOU AND CHAMBERLAIN EACH WAIVE, TO THE FULLEST EXTENT ALLOWED BY LAW, ANY TRIAL BY JURY AND A JUDGE WILL DECIDE ANY AND ALL DISPUTES.

 

Miscellaneous Terms

 

a) The Laws Governing Our Relationship

These Terms of Service and any disputes arising out of or relating to it or the Equipment or Service will be governed by the laws of the State of New York, wherever filed. Any complaint, arbitration or other legal action concerning these Terms of Service shall be interpreted under the laws of the State of New York and shall be subject to the jurisdiction of the courts of the State of New York. Complaints, arbitration or other legal actions involving California customers will be interpreted under the laws of the State of California, and will be subject to the jurisdiction of the courts of the California county in which the customer primarily uses the Service.

 

b) Entire Agreement

These Terms of Service is the entire agreement between you and us. It supersedes all other agreements, communications or representations, oral or written, between us, past or present. We are not responsible for any statements, agreements, representations, warranties or covenants, oral or written, including, without limitation, any statements from third parties, concerning or relating to the Equipment or the Service provided to you pursuant to these Terms of Service, unless such statements, agreements, representations warranties or covenants are expressly contained in these Terms of Service.

 

c) Effect of Termination or Non-Renewal of Terms of Service & Subscription Period.

Even after your Subscription Period has ended and unless it has been replaced by a new agreement expressly entered into by and between us, the provisions of these Terms of Service will continue to govern any disputes arising out of or relating to it. These Terms of Service will also be binding on your heirs and successors and on our successors. In addition to any other provisions identified herein as surviving termination or expiration of your Subscription Period, the following provisions of these Terms of Service shall survive the termination or expiration of your Service Plan: Sections [__].

 

d) Waiver; Severability.

No waiver of any part of these Terms of Service, or of any breach of it, in any one instance will require us to waive any other instance or breach. If any part of these Terms of Service is declared invalid or unenforceable, all other parts of these Terms of Service are still valid and enforceable.

 

e) Relationship Between Parties.

Notwithstanding anything else herein, these Terms of Service do not create any fiduciary relationships between you and us, or between you and any Chamberlain entity or any of our other service partners or providers. These Terms of Service also do not create any relationship of principal and agent, partnership, or employer and employee between you and us or between you and any Chamberlain entity or any of our service partners or providers.

 

f) Third-Party Beneficiaries.

Without limitation of anything else set forth herein, you have no contractual relationship whatsoever with any of our service partners or providers, and these Terms of Service do not give you any rights against any Chamberlain entity or any service partner or provider. You are not a third party beneficiary of any agreement between us and any of our service partners or providers. None of our service partners or providers has any legal, equitable, or other liability of any kind to you under these Terms of Service. You expressly waive any and all claims or demands for such liability.

 

g) Assignment.

We can assign these Terms of Service, in whole or in part, to any individual or entity we choose, at any time, without notice to you, in our sole discretion.

 

h) Export

You agree to comply with all applicable trade regulations and export control laws both domestic and foreign. The Equipment and the Service, and any underlying information accessed or transferred by you using the Service may be subject to U.S. export controls, including the Export Administration Act (50 U.S.C. § 2401, et seq.) and the Export Administration Regulations (50 C.F.R. § 730-774), as well as the import regulations of other countries. You agree not to export or re-export any such Equipment, software or information to any foreign country. Any information transferred by you using the Service or the Equipment to any foreign country, entity, or person must comply with the U.S. Export Administration Act and the Export Administration Regulations.