TAPNPAY LICENSE AND USE AGREEMENT
Last Updated: April 30, 2019
PLEASE CAREFULLY READ THIS TAPNPAY LICENSE AND USE AGREEMENT. THIS AGREEMENT IS A LEGALLY BINDING CONTRACT BETWEEN YOU AND AETOLLS, LLC (“AET”) REGARDING YOUR USE OF THE TAPNPAY SERVICE (THE “SERVICE”).
ARBITRATION NOTICE. Except for certain kinds of disputes described in Section 12.2, you agree that disputes arising under this Agreement will be resolved by binding, individual arbitration, and BY ACCEPTING THIS AGREEMENT, YOU AND AET 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.
1. Overview. The Service allows you to add toll charges (collectively, “Tolls”; each, a “Toll”) owed to operators of associated toll facilities (such operators being called “ATFOs” and each, individually, being an “ATFO”) directly to your mobile phone carrier (“Carrier”) bill. The Service links your vehicle’s license plate number(s) (each, an “LPN”) to your mobile phone number from an eligible Carrier (“Mobile Phone Number”) as an alternative payment method for Pay-by-Mail invoices sent by ATFOs. Tolls incurred for a vehicle whose LPN is linked to your mobile phone number will be paid directly to the ATFO by AET, and AET will be reimbursed for those payments from your payment of your Carrier’s bill that includes those Tolls.
2. This is Not an Agreement with an ATFO. You expressly acknowledge and agree that: (a) this Agreement is strictly between you and AET; (b) it is not an agreement between you and any ATFO; and (c) it does not give you any rights or remedies against or with respect to an ATFO. You further expressly acknowledge and agree that nothing in this Agreement modifies any rights or responsibilities you may have with respect to the payment of Tolls, administrative fees, or any other charges for which you are liable to an ATFO under applicable law. Under applicable law, the registered owner of a vehicle that uses an ATFO’s toll facility is liable for payment to the AFTO of a Toll. Subject to the terms and conditions of this Agreement, AET agrees to pay the Toll on your behalf to the applicable ATFO, but if AET fails or is not obligated under this Agreement to pay the Toll, the registered owner of the vehicle that incurs the Toll will remain liable to the ATFO to pay the Toll and any administrative fees or other charges resulting from a failure to pay the Toll within the payment period provided by law. You irrevocably agree not to pursue against an ATFO any claim, cause of action, or other remedy available to you for or arising out of or in connection with AET’s failure to comply with this Agreement, and you hereby acknowledge and agree that no ATFO shall be liable for any failure or default by AET under this Agreement. Nothing in this Section 2 impairs any claims or other rights you may have against AET for its failure to comply with its obligations under this Agreement.
3. Beta Service. If you are granted access to a beta (pre-release or limited release) version of the Services (the “Beta Service”), then your use of the Beta Service is subject to the following additional terms and conditions in this Section 3 (the “Beta Terms”). For clarity, use of the Beta Service remains subject to all other terms and conditions of this Agreement except that, to the extent there is a conflict between the Beta Terms and other terms in this Agreement, these Beta Terms will prevail with respect to the Beta Service.
3.1. Beta Disclaimer. The Beta Service is offered by AET as a pre-release version for limited use on an as-is basis, solely for testing, evaluation, and feedback purposes. The Beta Service may not operate correctly and may be substantially modified prior to commercial release, or at AET’s option, may not be released commercially in the future. If AET chooses to offer subsequent beta or other versions of the Service, such subsequent versions or services may be subject to additional terms and conditions. AET reserves the right to terminate the Beta Service at any time.
3.2. Beta License. Subject to the terms and conditions of this Agreement, AET grants you a limited, nonexclusive, nontransferable license to use the Beta Service for a period designated by AET for the purpose of testing and evaluating the Beta Service. You must not modify, copy, or make derivative works based on the Beta Service; disassemble, reverse engineer, or decompile the Beta Service; create “links” to or from the Beta Service; “frame” or “mirror” any of AET’s content; or access the Beta Service to build a competitive service, reproduce features of the Beta Service, or resell, or enable any other person to access or use any portion of, the Beta Service. You may not make, have made, use, or sell for any purpose any product or other item using, incorporating, or derived from the Beta Service.
3.3. Incentives. During the Beta Service period, we may offer you promotional incentives by which we assume the obligation to pay without reimbursement a portion of the Tolls invoiced to you via the Beta Service, as further described on the Beta Service. Incentives may be capped at specified dollar values. After reaching the incentive cap or limit, you will remain a customer with payment obligations for the full amount of Tolls invoiced to your Carrier unless you elect to deregister from the Beta Service.
3.4. Feedback. During the term the Beta Service is made available to you and in consideration for AET’s provision of the Beta Service to you, you agree to participate in structured feedback mechanisms (including without limitation surveys, chat, text polling, or focus groups) to provide insights to AET. You understand that all feedback, suggestions for modifications and enhancements, and other comments summarizing the overall result of your use of the Beta Service (“Feedback”) is provided to AET on a non-confidential basis, notwithstanding any indication to the contrary in any accompanying communication. You hereby grant AET an unrestricted, unlimited, worldwide, nonexclusive, transferable, sublicensable, fully paid up, royalty free, sublicensable (through multiple tiers) right and license to use or act upon any such Feedback, including to reproduce, distribute, publicly perform, publicly display, and prepare derivatives of the Feedback, and to improve the Service or develop new products and services.
3.5. Confidentiality. All non-public materials and information provided or made available to you by AET, including products and services, information regarding technology, know-how, processes, software programs, research, development, information AET provides regarding third parties and operational and financial performance information including specific events that occurred during the term of the Beta Service is AET’s confidential information (“Confidential Information”). You agree that you will at all times hold in strict confidence and not disclose Confidential Information to any third party except as approved in writing by AET and will use the Confidential Information for no purpose other than evaluating the Beta Service. Upon AET’s request, you agree to promptly return to AET any documents, notes or other tangible materials that include Confidential Information. You agree that, except as expressly set forth herein, nothing contained in this Agreement will be construed as granting any license or ownership rights to any Confidential Information.
4. License. Subject to your complete and ongoing compliance with the terms and conditions of this Agreement, AET grants you a license to access and use the Service. Failure to comply with this Agreement may result in the suspension, revocation, and/or termination of that license. Except and solely to the extent such a restriction is impermissible under applicable law, you may not: (a) reproduce, distribute, publicly display, or publicly perform the Service; (b) make modifications to the Service; or (c) 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.
5. Account; Registration
5.1. Eligibility. You must be at least 18 years old to use the Service. By accepting this Agreement, 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; (c) your registration and your use of the Service is in compliance with any and all applicable laws and regulations, (d) all information you submit to us through the Service, including in connection with registration of your Account, is accurate and up-to-date, and (e) you have the right and authority to grant to AET all rights and permissions granted under this Agreement. If you perform any fraudulent activity in connection with your use of the Service, including without limitation (i) impersonating another person, (ii) charging Tolls to the Carrier account of another person or entity without authorization or (iii) disputing Tolls in bad faith, you will be subject to prosecution, including by the applicable ATFO, under all appropriate laws of the state(s) and municipalities in which the ATFO operates.
5.2. Registration. You must establish a tapNpay account (“Account”) with AET in order to use the Service. To register, you must link your LPN to your Mobile Phone Number. You can register multiple vehicles to the same Mobile Phone Number, to a maximum of twelve (12) LPNs per Account, but one LPN cannot be linked to more than one Mobile Phone Number. Upon successful account verification with your Carrier, the set-up and registration process with the ATFO can take up to 1 business day to be completed. You may still receive pay-by-mail invoices from the ATFO for Tolls incurred during the period prior to your registration being fully processed, and you will be solely responsible for paying all such invoices directly to the ATFO. Once your Account is established, you will be electronically notified and invoiced for all Tolls incurred at all participating ATFO facilities and for all the vehicles registered and linked to your Mobile Phone Number account with your Carrier. The Service may not be available for non-ATFO facilities, such as airport parking and certain toll roads not within the participating ATFO’s service area, such as Managed Lanes, Express Lanes, and TEXpress lanes. You may receive an invoice from an ATFO for travel on a facility not participating in the Service, which you are obligated to pay to the ATFO who issued the invoice.
5.3. Carrier Eligibility. Registration may not be allowed based on your Carrier or your selected plan with your Carrier. If your Carrier participates in the Service, your Mobile Phone Number account must be in good standing at the time of your registration in order to use the Service and must remain in good standing to participate in the Service. During the system registration process, your phone number will be verified to ensure that: (a) the LPN that you are trying to register is not already linked to another Mobile Phone Number, and (b) that your Carrier account status is in good standing. Your acceptance of this agreement constitutes your permission for AET to obtain limited information from your Carrier and the ATFOs necessary to establish and maintain your Account. If your LPN is already registered to a different Mobile Phone Number, AET will attempt to contact the previous user of that Mobile Phone Number to request permission to de-link or un-register the LPN. AET will promptly notify you if the LPN is cleared to allow the registration process to be re-started. Once registered, please note that if you change Carriers or plans it may affect your registration status and ability to use the Service. Your Carrier may impose transaction or dollar amount limits on your use of the Service. If a charge is rejected by your Carrier, we will notify you of such rejection, but you are solely responsible for resolving the issue with your Carrier, or, in the alternative, paying the Toll directly to the applicable ATFO.
5.4. Changes to Your Account. By registering for an Account, you are accepting responsibility for all Tolls incurred by each LPN you register to your Account, regardless of whether or not you are the registered owner of the vehicle with those LPNs and even if someone other than you uses the vehicle. You are responsible for ensuring that your Account information is accurate and up-to-date. You agree that if you fail to keep your Account information up-to-date, AET may use other services or resources to verify and update your Account information, including, without limitation, your Carrier and vehicle information. You may use the tapNpay website available at https://tapnpay.biz (the “TapNpay Site”) to change or update your Account information, add LPNs to your Account, remove LPNs from your Account, view your Account balance, view transactions posted to your Account, or terminate your Account.
5.5. Stolen or Sold Vehicle. If the vehicle associated with your LPN is sold or stolen, you are responsible for promptly updating your Account. Except as provided in this Section, you will be liable for all Tolls incurred by the vehicle assigned to the LPN associated with your Account . However, if a vehicle assigned to the LPN associated with your Account passes through a tolling point when the vehicle was either (i) stolen and you have reported the theft to the appropriate law enforcement authority within the time required under applicable law, including without limitation Section 366.178(h) of the Texas Transportation Code, as amended, or (ii) leased to a third party and you have provided the ATFO the information required under applicable law, including without limitation Section 366.178(i) of the Texas Transportation Code, as amended, within the time required under that section, then you will not be liable for Tolls assessed to such transaction.
5.6. Removal of a Particular LPN from Account. You may remove an LPN from your Account at any time by, (i) texting, “HELP” to AET and then following the instructions provided, or (ii) by following the process to voluntarily deregister the vehicle through the tapNpay Site. Removal of your LPN from your Account will result in the ATFOs sending a pay-by-mail invoice for all unpaid Tolls to the vehicle’s registered owner, according to state motor vehicle records, in accordance with the ATFO’s business rules.
5.7. Account Termination. You may terminate your Account at any time for any reason through the tapNpay site or by texting, “HELP” to AET and then following the instructions provided. If your Account is closed, you will remain liable for all Tolls approved by you that are still unpaid to the Carrier and/or the ATFO and are responsible for any related fees and costs, including attorneys’ fees, incurred by the ATFO to collect all amounts due. In addition, you may be subject to civil and criminal penalties, including those described in Section 13 and the ATFO may exercise statutory remedies against you, including, without limitation, publishing your name and the amount of your unpaid tolls, placing a block on your vehicle’s registration, prohibiting you from further use of the ATFO’s toll facilities, and impounding your vehicle as permitted by state and federal law.
7. Rates, Fees and Charges
7.1. Rates. Tolls are assessed according to the applicable ATFO’s toll rate schedule in effect at the time of the transaction, which is available on the ATFO’s website or at the ATFO’s Customer Service Centers. ATFOs reserve the right to change their toll rates, fees, and charges at any time, and you agree that your continued use of the Service constitutes your agreement to pay the revised rates, fees, and charges as reimbursement to AET. AET, at its sole discretion, may make promotional offers with incentives to any of AET’s customers. These promotional offers, unless made to you, will not apply to your use of the Service. Additionally, new promotional offers may not be available to you unless and until you have fully used any discounts available to you under promotional offers you have already elected to use.
7.2. Invoicing; Approval. All Tolls processed, assessed, and transmitted by the ATFO to AET for an LPN in a given day will be charged to your Account on the following business day. AET will group all Tolls processed by the ATFOs for all LPNs linked to a single Mobile Phone Number account into a single daily invoice. You will receive an SMS with a link where you will be able to review the invoice, including individual transactions, and agree to pay or dispute the charges. Once you receive the electronic invoice notification you will have 23 hours to reject or approve the invoice. Approved charges will be charged to your Carrier account. All payments are final and non-refundable. Failure to resolve the invoice by approval and or dispute of any and all charges for any LPN associated with your mobile number within 23 hours may result in termination or suspension of this Agreement with respect to all LPN’s associated with your Account.
7.3. Disputes. If you dispute some or all of the Tolls, you will be prompted to indicate the reason for your rejection(s) by selecting the reason that best describes your rejection(s) reason. For certain dispute types, you may be asked to provide documentation such as a Vehicle Transfer Notice (VTN) or Bill of Sale when the vehicle has been sold, court papers for declared bankruptcy, or police report for a stolen vehicle. The foregoing list is illustrative only, and does not limit the information and documentation an ATFO may require with respect to a disputed Toll. You hereby represent and warrant that all information you submit in connection with an invoice dispute is true and correct. Information you submit in connection with your dispute will be sent to the appropriate ATFO(s) for review. Subject to the ATFO’s business rules, you may still receive an invoice from the ATFO for Tolls you dispute. If the ATFO determines, in its sole discretion, that your dispute is invalid or cannot be accepted, you will remain obligated to pay the Toll.
7.4. Mobile Carrier Fees. Certain Carriers may charge you fees to use the Service. In the event that your Carrier has such fees, you shall be notified in advance of such fees and given the opportunity to opt-out of, or decline to sign up for, the Service to avoid paying the fee(s). AET may pass-through fees imposed by Carriers that have been appropriately disclosed and agreed to by you before such fees are charged.
8. Term, Termination and Modification
8.1. Term. This Agreement are effective beginning when you accept the Agreement or first download, install, access, or use the Service, and ending when terminated as described in Section 8.2.
8.2. Termination. If you violate any provision of this Agreement, your authorization to access the Service and this Agreement automatically terminate. In addition, AET may, at its sole discretion, terminate this Agreement or your Account, 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 this Agreement at any time by following the process set forth on the tapNpay Site or by contacting customer service at email@example.com.
8.3. Effect of Termination. Upon termination of this Agreement: (a) your license rights will terminate and you must immediately cease all use of the Service; (b) you will no longer be authorized to access your account or the Service; (c) you remain obligated to pay Carrier and/or the ATFO any unpaid amount that was due prior to termination; and (d) and Sections 2, 3.4, 3.5, 5.6, 6, 7.3, 8.3, 9, 10, 11, 12, 13, and 14 will survive.
8.4. Modification of the Service. AET 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. AET will have no liability for any change to the Service or any suspension or termination of your access to or use of the Service.
8.5. Modification of this Agreement. AET reserves the right to amend this Agreement on a going-forward basis at any time by posting notice of the amendment on the tapNpay Site or by any other reasonable means. If a change to this Agreement materially modifies your rights or obligations, we may require that you accept the amended Agreement in order to continue to use the Service or give you at least 7 days’ notice of the modifications. Material modifications are effective upon your acceptance of the amended Agreement or expiration of the notice period. Immaterial modifications are effective upon publication. You must maintain current account information and other contact information with AET, and you must keep yourself apprised of any notices posted as provided above. Continued use of the Service will constitute your acceptance of each such amendment. If you do not accept any such amendment, you must cease using the Service and terminate this Agreement as provided above.
9. Disclaimer of Warranties. THE SERVICE AND ALL CONTENT AVAILABLE THROUGH THE SERVICE IS PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. AET DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO 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. AET 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 AET 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 AET ENTITIES OR ANY CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE AET ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THIS AGREEMENT. WE ARE NOT RESPONSIBLE FOR ANY DAMAGE THAT MAY RESULT FROM THE SERVICE. 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 APPLY TO THE FULLEST EXTENT PERMITTED BY LAW. AET does not disclaim any warranty or other right that AET is prohibited from disclaiming under applicable law.
10. Indemnity. To the fullest extent permitted by law, you are responsible for your use of the Service, and you will defend and indemnify AET and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents (together, the “AET 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 this Agreement, any representation, warranty, or agreement referenced in this Agreement, 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. AET reserves 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.
11. Limitations of Liability
11.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE AET ENTITIES BE LIABLE TO YOU FOR ANY LOST PROFITS, INCOME, OR GOODWILL OR FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND IN CONNECTION WITH ANY MATTER ARISING UNDER OR RELATING TO THIS AGREEMENT OR TO YOUR ACCESS AND USE OF, OR INABILITY TO ACCESS OR USE, THE SERVICE, REGARDLESS OF WHETHER SUCH LIABILITY IS BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, BREACH OF WARRANTY, OR ANY OTHER THEORY, EVEN IF AET OR YOU HAVE BEEN ADVISED OF OR CONSIDERED THE POSSIBILITY OF SUCH DAMAGES.
11.2. EXCEPT AS PROVIDED IN SECTION 12 BELOW AND TO THE FULLEST EXTENT PERMITTED BY LAW, THE AGGREGATE LIABILITY OF AET AND ITS SUPPLIERS AND LICENSORS 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 THIS AGREEMENT, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (A) TOLLS PAID BY YOU IN THE 6 MONTHS PRIOR TO THE EVENT OR CIRCUMSTANCE GIVING RISE TO CLAIM; OR (B) $100.
11.3. EACH PROVISION OF THIS AGREEMENT 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 THIS AGREEMENT. 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 THIS AGREEMENT. THE LIMITATIONS IN THIS SECTION 10.3 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
11.4. No arbitration, action, suit, proceeding, claim, counterclaim, or crossclaim arising under or relating to this Agreement may be brought more than two years after the later of the first event giving rise thereto or the date when AET or you with reasonable diligence could have discovered the pertinent facts. If any applicable law does not allow the claims limitation period to be two years, then the period for the filing of any claim shall be the shortest period or periods allowed by such law.
12. Dispute Resolution and Arbitration
12.1. Generally. In the interest of resolving disputes between you and AET in the most expedient and cost effective manner, and except as described in Section 12.2, you and AET agree that every dispute arising between you and AET in connection with this Agreement 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 between you and AET arising out of or relating to any aspect of this Agreement, 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 this Agreement. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THIS AGREEMENT, YOU AND AET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION.
12.2. Exceptions. Despite the provisions of Section 12.1, nothing in this Agreement will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; (c) seek injunctive relief in a court of law in aid of arbitration; or (d) to file suit in a court of law to address an intellectual property infringement claim. Also, as provided in Section 2, nothing in this Agreement, including, but not limited to, this Section 12, is binding on or creates obligations or limitations with respect to an ATFO.
12.3. Arbitrator. Any arbitration between you and AET 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 this Agreement. 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 AET. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
12.4. 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”). AET’s address for Notice is: AETolls, LLC, 1011 W. Monroe St., Austin, Texas 78704. The Notice of Arbitration must: (a) describe the nature and basis of the claim or dispute; and (b) 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 AET 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 AET 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 AET in settlement of the dispute prior to the award, AET will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $10,000.
12.5. Fees. If you commence arbitration in accordance with this Agreement, AET 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 Travis County, Texas, but if the claim is for $10,000 or less, you may choose whether the arbitration will be conducted: (a) solely on the basis of documents submitted to the arbitrator; (b) through a non-appearance based telephone hearing; or (c) 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 AET 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.
12.6. No Class Actions. YOU AND AET 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 AET 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.
12.7. Modifications to this Arbitration Provision. If AET makes any future change to this arbitration provision, other than a change to AET’s address for Notice of Arbitration, you may reject the change by sending us written notice within 30 days of the change to AET’s address for Notice of Arbitration, in which case your account with AET will be immediately terminated and this arbitration provision, as in effect immediately prior to the changes you rejected will survive.
12.8. Enforceability. If Section 12.6 is found to be unenforceable or if the entirety of this Section 11 is found to be unenforceable, then the entirety of this Section 12 will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 13.2 will govern any action arising out of or related to this Agreement.
13. ATFO Enforcement Rights. NOTHING IN THIS AGREEMENT, INCLUDING SECTIONS 7.3, 11 and 12, SHALL BIND THE ATFO TO THE DISPUTE RESOLUTION PROVISIONS SET FORTH HEREIN NOR LIMIT THE ATFO’S RIGHT AND ABILITY TO AVAIL ITSELF OF ALL APPLICABLE RIGHTS AND REMEDIES, INCLUDING THOSE PROVIDED BY CHAPTER 366 AND CHAPTER 372 OF THE TEXAS TRANSPORTATION CODE, AS AMENDED, AND ANY OTHER APPLICABLE STATUTES CONFERRING RIGHTS AND REMEDIES FOR AN ATFO AND, IN SUCH INSTANCES, YOU WILL HAVE ALL OF THE RIGHTS PROVIDED THEREUNDER AND YOU UNDERSTAND AND AGREE THAT THE COURTS EMPOWERED TO HEAR SUCH MATTERS SHALL ADJUDICATE SUCH MATTERS AND SUCH MATTERS WILL NOT BE ARBITRATED. If an ATFO exercises its rights and remedies under Chapter 366 and Chapter 372 of the Texas Transportation Code, as amended, and under any other applicable statutes conferring rights and remedies for any ATFO, each of AET and you hereby agree to waive any right to participate in, be a member of, or to serve as a representative for a class action with regard to any claim(s) they may have or assert against one another, and further agree that each of AET and you waive any right to have AET or your claims consolidated with, joined with, or combined with any claims of any other party or parties.
14.2. Governing Law. This Agreement shall be governed by and construed in accordance with the laws of the State of Texas. You and AET submit to the personal and exclusive jurisdiction of the state courts and federal courts located within Travis County, Texas for resolution of any lawsuit or court proceeding permitted under this Agreement, and you hereby waive the right to sue or be sued elsewhere.
14.3. Ownership; Proprietary Rights. The Service is owned and operated by AET. 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 AET are protected by intellectual property and other laws, and are the property of AET or its third party licensors. Except as expressly authorized by AET, you may not make use of the Materials. AET reserves all rights to the Materials not granted expressly in this Agreement.
14.4. 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 or tapNpay Site (the “Additional Terms”). All Additional Terms are incorporated by this reference into, and made a part of, this Agreement.
14.5. Contact Information. The Service is offered by AETolls, LLC located at 1011 W Monroe St, Austin, Texas 78704. If you have any questions about this Agreement, the Service, or your Account, please visit the tapNpay Site and use the “Contact Us” feature or email us at firstname.lastname@example.org.