AlltimePower®

Terms of Service

Last Updated: October 12, 2018

Welcome, and thank you for your interest in Morpheus One LLC doing business as AlltimePower®R (“AlltimePower®,” “we,” “our,” or “us”) and our website at www.alltimepower.com, along with our related websites, and other services provided by us (collectively, the “Service”). These Terms of Service are a legally binding contract between you and AlltimePower® regarding your use of the Service.

PLEASE READ THE FOLLOWING TERMS CAREFULLY.

BY CHECKING THE BOX AND AGREEING TO THE TERMS OF SERVICE OR OTHERWISE ACCESSING OR USING THE SERVICE, YOU AGREE THAT YOU HAVE READ AND UNDERSTOOD, AND, AS A CONDITION TO YOUR USE OF THE SERVICE, YOU AGREE TO BE BOUND BY, THE FOLLOWING TERMS AND CONDITIONS, INCLUDING ALLTIMEPOWER’S PRIVACY POLICY (TOGETHER, THESE “TERMS”). IF YOU ARE NOT ELIGIBLE, OR DO NOT AGREE TO THE TERMS, THEN YOU DO NOT HAVE OUR PERMISSION TO USE THE SERVICE. YOUR USE OF THE SERVICE, AND ALLTIMEPOWER’S PROVISION OF THE SERVICE TO YOU, CONSTITUTES AN AGREEMENT BY ALLTIMEPOWER® AND BY YOU TO BE BOUND BY THESE TERMS.

SERVICE PROVIDERS’ NOTICE. If you are a generator dealer and installation professional or other authorized service provider (“Service Provider”), you may create a personalized professional profile and receive Leads detailing potential customers’ interest in the purchase and installation of generator products and services, subject to these Terms in addition to the Service Provider Terms and Conditions available here: [www.alltimepower.com/service-provider-terms/].

ARBITRATION NOTICE. EXCEPT FOR CERTAIN KINDS OF DISPUTES DESCRIBED IN SECTION 17, YOU AGREE THAT DISPUTES ARISING UNDER THESE TERMS WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND BY ACCEPTING THESE TERMS, YOU AND ALLTIMEPOWER® ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING. YOU AGREE TO GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS UNDER THIS CONTRACT (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT). YOUR RIGHTS WILL BE DETERMINED BY A NEUTRAL ARBITRATOR AND NOT A JUDGE OR JURY. (Please see Section 17.)

  1. Service Overview. AlltimePower® is a platform designed to help consumers find generators that suit their needs and fit their budgets, and for connecting consumers to Service Providers who can sell and install those generators. A “Lead” is a consumer who has requested to be contacted by a Service Provider to quote the purchase and installation of a generator. Visitors to the Service, Service Providers and Leads are all referred to as “users” of the Service in these Terms.

  2. Eligibility. You must be at least 18 years old to use the Service. By agreeing to these Terms, you represent and warrant to us that: (a) you are at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are an entity, organization, or company, the individual accepting these Terms on your behalf represents and warrants that they have authority to bind you to these Terms and you agree to be bound by these Terms.

  3. Prices on the Service. Any prices for products or services provided by the Service are not contractually binding offers, are for informational purposes only, and cannot be accepted on the Service. No contractual arrangement is created based upon any price provided to you by the Service, or by scheduling an appointment with a Service Provider. Prices for Service Provider products and services are solely between you and the Service Provider you select.

  4. Choosing a Service Provider. You should always exercise due care and diligence when hiring any Service Provider. It is entirely up to you to evaluate Service Providers and their products and qualifications. You assume all risks when using the Service, including but not limited to all of the risks associated with any online or offline interactions with users including Service Providers listed on the Service. We disclaim any and all representations or warranties with regard to any Service Provider’s performance on the job or the outcome or quality of the services performed.

    1. Communication with Service Providers. When using the Service you may be prompted to disclose certain information about yourself and your service requirements. Some of the information you provide may be sent to Service Providers so they can respond to your request. By providing this information to us, or by submitting a quote request, you are expressly consenting to being contacted by either us or any Service Provider via phone, email, mail, text (SMS) messaging, or other reasonable means, at any of your contact number or addresses, even if you are listed on any federal, state, local or other applicable “Do Not Call” list. We may also contact you to solicit feedback on Service Providers. Standard text message rates may apply to any text messages we or any Service Provider send you. Please read our Privacy Policy to learn more about our communications practices.
    2. Qualifications. Service Providers post profiles about themselves and their business on the Service. We do not review or verify the information or representations set forth in those profiles, as they are self-reported by the Service Provider. If a Service Provider is listed as a certified dealer, or their profile indicates that they are licensed, insured or carry any other accreditation, all such representations are made solely by the Service Provider; we do not guarantee or warrant the truthfulness, timeliness or accuracy of any such representations. We disclaim any and all representations or warranties regarding any information posted by Service Providers and assume no liability for such information.
    3. Contracts with Service Providers. No agency, partnership, joint venture, or employment is created as a result of these Terms or any use of the Service, including but not limited to scheduling appointments with Service Providers. Your rights under contracts into which you enter with Service Providers are governed by the terms of those contracts and by the applicable federal, state, and local laws. AlltimePower® is not a party to any agreements you enter into with Service Providers.
    4. Disputes; Release from Damages and Claims. All disputes between users, including disputes between Leads and Service Providers, are solely between and must be addressed between those users. Should you have a dispute with respect to any product or service provided by any Service Provider or the fees charged by any Service Provider, you must address the dispute directly with that Service Provider. YOU HEREBY RELEASE ALLTIMEPOWER® (AND OUR OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, PARENT, SUBSIDIARIES, OTHER AFFILIATES, SUCCESSORS, ASSIGNEES, AGENTS, REPRESENTATIVES, ADVERTISERS, MARKETING PARTNERS, LICENSORS, INDEPENDENT CONTRACTORS, RECRUITERS, OR CORPORATE PARTNERS, HEREINAFTER “ALLTIMEPOWER® ENTITIES”) FROM ANY AND ALL DISPUTE ARISING OUT OF OR IN ANY WAY CONNECTED WITH INTERACTIONS BETWEEN USERS INCLUDING SERVICE PROVIDERS. ALLTIMEPOWER® IS NOT RESPONSIBLE FOR ANY DAMAGE OR HARM RESULTING FROM YOUR INTERACTIONS WITH ANY SERVICE PROVIDER.
  5. User Responsibilities; No Endorsement. AlltimePower® does not conduct any product testing, background checks, or otherwise screen the generators or Service Providers listed on the Service. Participation by a Service Provider or availability of a generator on the Service is neither an endorsement nor verification by us; products listed on the Service are recommendations based on inputs reported by the Lead, and availability in their geographic area. AlltimePower® enables access to third-party content, products, and services over which we have no control. We assume no responsibility for, nor do we endorse or verify the content, offerings or conduct of third-parties, including the generator or services offered by Service Providers or descriptions of those products or services. Service Providers are not employees or agents of AlltimePower®. We do not assume responsibility or liability for any claims, damages, or losses resulting from any use of the Service or the materials available on the Service.

    1. Ratings and Reviews. All ratings and reviews of generators and Serice Providers displayed to you reflect the opinions of other consumers, and do not reflect or represent our opinions or representations. We make no representations or warranties with respect to the accuracy, completeness or timeliness of any content posted on the Service by anyone. We disclaim any and all representations or warranties with regard to the ratings and reviews.
    2. Generator Sales. We do not represent, warrant, or guarantee that the generator descriptions are accurate, complete, reliable, current, or error-free. Service Providers may offer generators for sale directly to Leads. The price of a generators sold by Service Providers to a Leads are set by the Service Providers. AlltimePower® does not transfer legal ownership of any generator from any Service Provider to you. The obligation to satisfy any warranty for a generator is between you and the Service Provider or the manufacturer or supplier, and not with AlltimePower®. We disclaim any and all representations or warranties with regard to generator warranties.
  6. License

    1. Limited License. Subject to your complete and ongoing compliance with these Terms, AlltimePower® grants you, solely for your personal, non-commercial use, a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Service.

    2. License Restrictions. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service; (ii) make modifications to the Service; or (iii) interfere with or circumvent any feature of the Service, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
    3. Feedback. If you choose to provide ratings and reviews about generators or Service Providers, or input and suggestions regarding problems with, or proposed modifications or improvements to the Service (“Feedback”), then you hereby grant AlltimePower® an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit the Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
    4. Job Photos. If you hire a Service Provider and permit that Service Provider to take photographs of the generator they have installed for you (“Job Photos”), you hereby: (i) agree that your property may appear in those Job Photos and consent for those Job Photos to appear in any and all media now known or later devised, worldwide, in perpetuity, including in related advertisements and promotions, without any compensation to you; and (ii) release Service Provider and the AlltimePower® Entities from all claims, damages, costs, and causes of action of every kind and nature, including personal injury and damage, in connection with any Job Photos.
  7. Ownership; Proprietary Rights. The Service is owned and operated by AlltimePower®. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by AlltimePower® are protected by intellectual property and other laws. All Materials included in the Service are the property of AlltimePower® or its third party licensors. Except as expressly authorized by AlltimePower®, you may not make use of the Materials. AlltimePower® reserves all rights to the Materials not granted expressly in these Terms.

  8. User Content
    1. User Content Generally. Certain features of the Service may permit users including Service Providers to upload content to the Service, including messages, ratings, reviews, photos, Job Photos, video, images, and other types of works (“User Content”) and to publish User Content on the Service. You retain any copyright and other proprietary rights that you may hold in the User Content that you post to the Service. You agree that all information you provide including Service Provider reviews will be accurate and truthful. If you provide any information that is untrue or incomplete, we retain the right to refuse any current or future use of the Service by you.
    2. Limited License Grant to AlltimePower®. By providing User Content to or via the Service, you grant AlltimePower® a worldwide, non-exclusive, irrevocable (except for content you request to be removed in accordance with our policy), royalty-free, fully paid right and license (with the right to sublicense) to host, store, transfer, display, perform, reproduce, modify for the purpose of formatting for display, and distribute your User Content, in whole or in part, in any media formats and through any media channels existing now or in the future.
    3. User Content Representation and Warranties. AlltimePower® disclaims any and all liability in connection with User Content. You are solely responsible for your User Content and the consequences of providing User Content via the Service. By providing User Content via the Service, you affirm, represent, and warrant that:
      1. you are the creator and owner of the User Content, or have the necessary licenses, rights, consents, and permissions to authorize AlltimePower® and users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Section 8, in the manner contemplated by AlltimePower®, the Service, and these Terms;
      2. your User Content, and the use of your User Content as contemplated by these Terms, does not and will not: (i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person; or (iii) cause AlltimePower® to violate any law or regulation; and
      3. your User Content could not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate.
    4. User Content Disclaimer. We are under no obligation to edit or control User Content that you or other users post or publish, and will not be in any way responsible or liable for User Content. AlltimePower® may, however, at any time and without prior notice, screen, remove, edit, or block any User Content that in our sole judgment violates these Terms or is otherwise objectionable. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You agree to waive, and do waive, any legal or equitable right or remedy you have or may have against AlltimePower® with respect to User Content. If notified by a user or content owner that User Content allegedly does not conform to these Terms, we may investigate the allegation and determine in our sole discretion whether to remove the User Content, which we reserve the right to do at any time and without notice. For clarity, AlltimePower® does not permit copyright-infringing activities on the Service.
  9. Monitoring Content. AlltimePower® does not control and does not have any obligation to monitor: (a) User Content; (b) any content made available by third parties; or (c) the use of the Service by its users including Service Providers. You acknowledge and agree that AlltimePower® reserves the right to, and may from time to time, monitor any and all information transmitted or received through the Service for operational and other purposes. If at any time AlltimePower® chooses to monitor the content, AlltimePower® still assumes no responsibility or liability for content or any loss or damage incurred as a result of the use of content. During monitoring, information may be examined, recorded, copied, and used in accordance with our Privacy Policy.

  10. Prohibited Conduct.

    BY USING THE SERVICE YOU AGREE NOT TO:

    1. use the Service for any illegal purpose or in violation of any local, state, national, or international law;
    2. harass, threaten, demean, embarrass, or otherwise harm any other user of the Service including Service Providers;
    3. use the Services, or any information contained therein in any way that is abusive, threatening, obscene, defamatory, libelous, or racially, sexually, religiously, or otherwise objectionable and offensive;
    4. circumvent the Service to gain the identity and contact information of another user including Service Providers;
    5. violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
    6. interfere with security-related features of the Service, including by: (i) disabling or circumventing features that prevent or limit use or copying of any content; or (ii) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law;
    7. interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (i) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (ii) making any unsolicited offer or advertisement to another user of the Service; (iii) collecting personal information about another user or third party without consent; or (iv) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service;
    8. perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service account without permission, or falsifying your age;
    9. sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 7) or any right or ability to view, access, or use any Materials; or
    10. attempt to do any of the acts described in this Section 10 or assist or permit any person in engaging in any of the acts described in this Section 10.
  11. Digital Millennium Copyright Act

    1. DMCA Notification. We comply with the provisions of the Digital Millennium Copyright Act applicable to Internet service providers (17 U.S.C. §512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address:

      Morpheus One LLC ATTN: Legal Department (Copyright Notification)

      2001 Timberloch Place, 2nd Floor North The Woodlands, Texas 77380 Email: copyright@alltimepower.com

      Any notice alleging that materials hosted by or distributed through the Service infringe intellectual property rights must include the following information:

      1. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
      2. a description of the copyrighted work or other intellectual property that you claim has been infringed;
      3. a description of the material that you claim is infringing and where it is located on the Service;
      4. your address, telephone number, and email address;
      5. a statement by you that you have a good faith belief that the use of the materials on the Service of which you are complaining is not authorized by the copyright owner, its agent, or the law; and
      6. a statement by you that the above information in your notice is accurate and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
    2. Repeat Infringers. AlltimePower® will promptly terminate the accounts of users that are determined by AlltimePower® to be repeat infringers.
  12. Modifications

    1. Modification of these Terms. We reserve the right to change these Terms on an on-going basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we may require that you accept the modified Terms in order to continue to use the Service. Material modifications are effective upon your acceptance of the modified Terms. Immaterial modifications are effective upon publication. Except as expressly permitted in this Section 12, these Terms may be amended only by a written agreement signed by authorized representatives of the parties to these Terms. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.

    2. Modification of the Service. AlltimePower® reserves the right to modify or discontinue the Service at any time (including by limiting or discontinuing certain features of the Service), temporarily, or permanently, without notice to you. AlltimePower® will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.

  13. Term and Termination

    1. Term. These Terms are effective beginning when you accept the Terms or first access or use the Service, and ending when terminated as described in Section 13.b.

    2. Termination. If you violate any provision of these Terms, your authorization to access the Service and these Terms automatically terminate. In addition, AlltimePower® may, at its sole discretion, terminate these Terms or your account on the Service, or suspend or terminate your access to the Service, at any time for any reason or no reason, with or without notice. You may terminate your account and these Terms at any time by contacting customer service at customersupport@alltimepower.com.

    3. Effect of Termination. Upon termination of these Terms: (i) your license rights will terminate and you must immediately cease all use of the Service; (ii) you will no longer be authorized to access your account or the Service; (iii) you must pay AlltimePower® any unpaid amount that was due prior to termination; and (iv) all payment obligations accrued prior to termination and Sections 6.c, 7, 8, 13.c, 14, 15, 16, 17, 18 will survive.

  14. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify AlltimePower® and AlltimePower® Entities from and against every claim brought by a third party, and any related liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or connected with: (a) your unauthorized use of, or misuse of, the Service; (b) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (c) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (d) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of those claims.

  15. Disclaimers; No Warranties

    THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. ALLTIMEPOWER® DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. ALLTIMEPOWER® DOES NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND ALLTIMEPOWER® DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED.

    NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ALLTIMEPOWER® ENTITIES OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE ALLTIMEPOWER® ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE AND YOUR DEALING WITH ANY OTHER SERVICE USER INCLUDING SERVICE PROVIDERS. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK, AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT.

    THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION 15 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. ALLTIMEPOWER® DOES NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT ALLTIMEPOWER® IS PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAW.

  16. Limitation of Liability

    ALLTIMEPOWER® EXPRESSLY DISCLAIM ALL LIABILITY, TO THE FULLEST EXTENT PERMITTED BY LAW, FOR: (A) CONTENT POSTED ON THE SERVICE BY ANY THIRD-PARTIES, AND USERS INCLUDING SERVICE PROVIDERS, (B) THE PRODUCT DESCRIPTIONS OR PRODUCTS, (C) THIRD-PARTY SITES AND ANY THIRD-PARTY PRODUCT OR SERVICE LISTED ON OR ACCESSIBLE TO YOU THROUGH THE SERVICE, AND (D) THE QUALITY OR CONDUCT OF ANY SERVICE PROVIDER YOU ENCOUNTER IN CONNECTION WITH YOUR USE OF THE SERVICE.

    TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE ALLTIMEPOWER® ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT ON THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY ALLTIMEPOWER® ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.

    EXCEPT AS PROVIDED IN SECTION 17 AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF THE ALLTIMEPOWER® ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) THE AMOUNT YOU HAVE PAID TO ALLTIMEPOWER® FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.

    EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS INTENDED TO AND DOES ALLOCATE THE RISKS BETWEEN THE PARTIES UNDER THESE TERMS. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION 16 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.

  17. Dispute Resolution and Arbitration

    1. Generally. In the interest of resolving disputes between you and AlltimePower® in the most expedient and cost effective manner, and except as described in Section 17.b, you and AlltimePower® agree that every dispute arising in connection with these Terms will be resolved by binding arbitration. Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND ALLTIMEPOWER® ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.

    2. Exceptions. Despite the provisions of Section 17.a, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (i) bring an individual action in small claims court; (ii) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (iii) seek injunctive relief in a court of law in aid of arbitration; or (iv) to file suit in a court of law to address an intellectual property infringement claim.

    3. Arbitrator. Any arbitration between you and AlltimePower® will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by these Terms. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting AlltimePower®. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

    4. Notice of Arbitration; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice of Arbitration”). alltimePOWER’s address for Notice is: Morpheus One LLC 2001 Timberloch Place, 2nd Floor North The Woodlands, Texas 77380]. The Notice of Arbitration must: (i) describe the nature and basis of the claim or dispute; and (ii) set forth the specific relief sought (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within 30 days after the Notice of Arbitration is received, you or AlltimePower® may commence an arbitration proceeding. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or AlltimePower® must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by AlltimePower® in settlement of the dispute prior to the award, AlltimePower® will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.

    5. Fees. If you commence arbitration in accordance with these Terms, AlltimePower® will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Montgomery County, Texas but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (i) solely on the basis of documents submitted to the arbitrator; (i) through a non-appearance based telephone hearing; or (iii) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse AlltimePower® for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.

    6. No Class Actions. YOU AND ALLTIMEPOWER® AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. FURTHER, UNLESS BOTH YOU AND ALLTIMEPOWER® AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.

    7. Modifications to this Arbitration Provision. If AlltimePower® makes any future change to this arbitration provision, other than a change to alltimePOWER’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to alltimePOWER’s address for Notice of Arbitration, in which case your account with AlltimePower® will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.

    8. Enforceability. If Section 17.f is found to be unenforceable or if the entirety of Section 17 is found to be unenforceable, then the entirety of Section 17 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 18.b will govern any action arising out of or related to these Terms.

  18. Miscellaneous

    1. General Terms. These Terms, together with the Privacy Policy and any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and AlltimePower® regarding your use of the Service. You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms at any time without notice or consent. The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of section headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. Throughout these Terms the use of the word “including” means “including but not limited to”. If any part of these Terms is held to be invalid or unenforceable, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.

    2. Governing Law. These Terms are governed by the laws of the State of Texas without regard to conflict of law principles. You and AlltimePower® submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Montgomery County, Texas for resolution of any lawsuit or court proceeding permitted under these Terms. We operate the Service from our offices in Texas, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.

    3. Privacy Policy. Please read the AlltimePower® Privacy Policy carefully for information relating to our collection, use, storage, disclosure, and destruction of your personal information. The AlltimePower® Privacy Policy is incorporated by this reference into, and made a part of, these Terms.

    4. Consent to Communication. You agree that any notices, agreements, disclosures, or other communications that we send to you electronically will satisfy any legal communication requirements, including that those communications be in writing.

    5. Additional Terms. Your use of the Service is subject to all additional terms, policies, rules, or guidelines applicable to the Service or certain features of the Service that we may post on or link to from the Service (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, these Terms.

    6. Third Party Services and Linked Websites. The Service may contain links to third party websites. Linked websites are not under alltimePOWER’s control, and AlltimePower® is not responsible for their content.

    7. Contact Information. The Service is offered by Morpheus One LLC located at 2001 Timberloch Place, 2nd Floor NorthThe Woodlands, Texas 77380You may contact us by sending correspondence to that address or by emailing us at customersupport@alltimepower.com. You can access a downloadable copy of these Terms by clicking here: allltimepower.com/termsofservice

    8. No Support. We are under no obligation to provide support for the Service. In instances where we may offer support, the support will be subject to published policies.

    9. Notice to California Residents. If you are a California resident, under California Civil Code Section 1789.3, you may contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210 in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.

    10. International Use. The Service is intended for visitors located within the United States. We make no representation that the Service is appropriate or available for use outside of the United States. Access to the Service from countries or territories or by individuals where such access is illegal is prohibited.