Last Updated: Dec 15, 2022
Innowi User Terms of Service
Innowi provides technology and software development services to restaurants (the “Merchant” or “Merchants”) which enable their customers (“Customers”) to place orders for products and services through cashier-free solutions including Innowi’s self-service kiosk, Quick Response (QR) scan-and-pay system, mobile applications, and online solutions including website and mobile application-based ordering (the “Services”).
These terms of service (“Terms”) are a legal agreement between Innowi, Inc. (“Innowi”, “we”, “us”, or “our”) and you (“you” or “your”), as a Customer of a Merchant to which Innowi provides the Services. The Terms cover your access to and use of our Services, our website, including https://www.innowi.com, any website or mobile application developed or maintained by Innowi on behalf of a Merchant (“Website” and “Mobile Application”), and any other software or hardware-based product or service made available by Innowi in connection with the Services.
Through your access and use of our Services, you agree to these Terms, any terms, policies, guidelines, or rules referenced in any of our Services, which are hereby expressly incorporated in these Terms. You also acknowledge that you have read our Privacy Statement.
These terms include an agreement to resolve disputes by arbitration, which means that you and Innowi waive the right to a trial by jury and agree to resolve all disputes through binding arbitration on an individual basis.
2. Eligibility for Access to our Services.
You must be at least eighteen (18) years of age, a resident of the United States, and legally capable of entering contracts. At present, we do not offer our services beyond the United States.
3. Your Representations and Warranties to Innowi.
You represent and warrant that:
• You will not use the Services in any way that violates any applicable law, rule, regulation, these terms, or any other policy or guideline.
• These Services may only be used to purchase a legitimate and bona fide product or service from a Merchant. You shall not use the Services to transfer
money or conduct a transaction that is unrelated to the purchase of a product or service from a Merchant.
• You will not use the Services in any manner that violates or infringes upon the intellectual property or proprietary rights of a Merchant or other third party.
• You will not upload, post or otherwise transmit through the Services any content that contains any malware, viruses, trojan horses, logic bombs, or any other harmful programs or elements.
• You will not provide false information about yourself to us, impersonate any other person, collect information about other users, or otherwise attempt to mislead others about your identity or the truthfulness or accuracy of the data you transmit through the Services.
• You will not damage, disable, disrupt, overburden, interfere with, or attempt to gain unauthorized access to any portion of our Services, computer systems, servers or networks. You will not interfere with any other person’s use and enjoyment of the Services.
4. Your User Account.
Whilst using our Services, you may be required to provide your personal information to set up your account (the “Account”). To understand how we use your personal information, please read our Privacy Statement.
You agree that any information you provide will be accurate, truthful, and correct. You agree not to misrepresent your identity or use another person’s information to set up your user account. If there are any changes, modifications, or updates to your information, you agree to provide us prompt notice of such changes.
Innowi may, in its sole discretion, refuse to set up your Account. Innowi has the authority to suspend or terminate your account without providing any prior notice to you if such action is necessary to comply with any applicable law, regulation, or rule.
5. Protecting your Account.
Only you have the right to access and use your account. You are responsible for ensuring that your login information and payment information remain confidential at all times. Innowi will assume that if your login or payment information are used to access the Services, the user has the legal authority to use such login or payment information. If you become aware of unauthorized use of your login or payment information, you agree to notify Innowi immediately by email at email@example.com. You remain liable for any activity on your account until such time as Innowi has been notified and has had reasonable time and opportunity to take appropriate action.
6. Payment Information.
You agree that you will provide accurate, truthful, and correct payment information and a valid payment method that can be used to pay for goods and services purchased through our Services (“Payment Method”). You agree not to use any other person’s payment information or any payment method that you are not legally authorized to use. You authorize Innowi to confirm your Payment Method is in good standing with the issuing financial institution. In order to do so, Innowi may obtain an authorization to charge your Payment Method with a test payment transaction. If you choose to store Payment Method information with Innowi via any of the Services for your convenience and use in future transactions, you agree that Innowi may receive up-to-date information on your Payment Method information (such as card number or expiration date) through services available from the card networks and may update your Payment Method credentials stored with Innowi (if you choose to store your Payment Method credentials) from time to time.
When you make a purchase, you authorize the Merchant to submit the charge of the purchase amount (including any gratuities, fees, and taxes) or any chargebacks, reversals, refunds, or adjustments to our payments provider (“Payment Transaction”), namely North American Bancard (the “Payments Provider”). Innowi’s Services will enable the Merchant to submit the Payment Transaction to the Payments Provider. Upon the Payments Provider receiving the proceeds of the transaction, your payment obligation to the Merchant will be deemed completed (except in the case of a later chargeback or reversal).
You agree that Innowi, on behalf of the Merchant, may resubmit a Payment Transaction for processing to a payment network in the event a prior Payment Transaction failed, was declined, or returned.
We may establish limitations concerning use of the Services, including without limitation individual or aggregate transaction limits on the dollar amount or number of Payment Transactions you may make within certain time periods. We may decline to process any Payment Transaction without any notice to you. We may delay processing of or hold or cancel processing of any Payment Transaction upon the direction of the Merchant or if we believe, in our sole discretion, that the transaction is invalid, suspicious, involves misconduct or fraud, or otherwise violates applicable law and rules, these Terms, or any other policies.
You agree that Innowi shall not have any liability to you arising directly or indirectly from or otherwise concerning: (a) any termination, suspension, delay or disruption of the Service (including billing for the Service) by the Internet, any common carrier or any third party service provider; (b) any failure, disruption or malfunction of the Service, the Internet, or any communications network, facility or equipment beyond Innowi’s or a third party’s reasonable control; (c) your failed attempts to access the Service or to complete transactions via the Service; or (d) any failure to transmit, obtain or collect data or for human, machine or software errors or faulty or erroneous input by you.
You will be charged and agree to pay the applicable fee to use the Service, as displayed in Innowi’s Services, and all applicable taxes (other than taxes based on Innowi’s income), duties or other governmental assessments based on your use of the Service. If you dispute any amounts you are charged, you must notify Innowi within ten (10) days of incurring the charge you dispute. If you notify Innowi after ten (10) days, you agree that Innowi has no obligation to affect any adjustments or refunds.
9. Order Cancellation and Refunds.
Once you place an order or make a purchase through Innowi’s Services, all cancellations and refunds are determined by the Merchant’s policies. If you want to cancel an order or request a refund, you will have to contact the Merchant directly. Innowi bears no responsibility and shall not incur any liability in case of a cancellation or request for refund.
10.Disclaimer of Warranties.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.
NEITHER INNOWI NOR ITS THIRD-PARTY PROVIDERS WILL BE LIABLE OR RESPONSIBLE FOR ANY PRODUCTS OR SERVICES PROVIDED BY
MERCHANTS THAT ARE A CAUSE OF INJURY OR THAT ARE UNACCEPTABLE OR DO NOT MEET YOUR REQUIREMENTS OR EXPECTATIONS.
EXCEPT FOR THE EXPRESS WARRANTIES SET FORTH HEREIN, INNOWI AND ITS THIRD-PARTY PROVIDERS HEREBY EXPRESSLY DISCLAIM ALL EXPRESS OR IMPLIED WARRANTIES WITH REGARD TO THE SERVICES AND ALL INFORMATION, PRODUCTS AND OTHER CONTENT (INCLUDING THAT OF THIRD PARTIES) INCLUDED IN OR ACCESSIBLE FROM THE SERVICES, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT AND QUALITY. INNOWI RELIES UPON MERCHANTS TO PROVIDE ACCURATE ALLERGEN AND DIETARY INFORMATION AND GENERAL PRODUCT SAFETY. INNOWI DOES NOT REPRESENT OR WARRANT THAT THE INFORMATION ACCESSIBLE THROUGH THE SERVICES IS ACCURATE, COMPLETE, RELIABLE, CURRENT, OR ERROR-FREE, INCLUDING, WITHOUT LIMITATION, MENUS, NUTRITIONAL AND ALLERGEN INFORMATION, PHOTOS, FOOD QUALITY OR DESCRIPTIONS, PRICING, HOURS OF OPERATION, OR REVIEWS. ALL CONTENT IS PROVIDED FOR INFORMATIONAL PURPOSES ONLY. THE RELIANCE ON ANY INFORMATION PROVIDED THROUGH THE SERVICE IS SOLELY AT YOUR OWN RISK, INCLUDING, WITHOUT LIMITATION, NUTRITIONAL AND ALLERGEN INFORMATION.
INNOWI AND ITS THIRD-PARTY PROVIDERS MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING (I) WHETHER THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE RELIABILITY, AVAILABILITY, TIMELINESS, SUITABILITY, ACCURACY OR COMPLETENESS OF THE SERVICES; (III) THE RESULTS YOU MAY OBTAIN BY USING THE SERVICES; (IV) WHETHER THE OPERATION OR USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE; OR (V) WHETHER THE QUALITY OF THE SERVICE, OR PRODUCTS OR SERVICE, INFORMATION OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM INNOWI OR A THIRD PARTY THROUGH OR FROM THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
YOU ACKNOWLEDGE THAT NEITHER INNOWI NOR ITS THIRD-PARTY PROVIDERS CONTROLS THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT NEITHER INNOWI NOR ITS
THIRD-PARTY PROVIDERS ARE RESPONSIBLE FOR ANY LIMITATIONS, DELAYS, OR OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. WITHOUT LIMITING THE FOREGOING, NEITHER INNOWI NOR ITS THIRD-PARTY PROVIDERS WARRANTS OR GUARANTEES THAT ANY OR ALL SECURITY BREACHES OR ATTACKS WILL BE DISCOVERED, REPORTED OR REMEDIED, OR THAT THERE WILL NOT BE ANY SECURITY BREACHES BY THIRD PARTIES.
11.Waiver of Liability.
You acknowledge and agree that the Merchant is the seller of the food, beverages and related products and services which you may order and pay for through Innowi’s Services. The Merchant is solely responsible for any and all damages, claims, liabilities, costs, injuries or illness caused in whole or in part by the Merchant. Merchant is also solely responsible for any unclaimed property liability which may arise from Purchases, including gift cards, paid for but not received by you.
12.LIMITATION OF LIABILITY.
IN NO EVENT WILL INNOWI BE LIABLE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY, FOR ANY DIRECT, INDIRECT, SPECIAL, PUNITIVE, INDIRECT, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOST PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, EVEN IF INNOWI HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY SET FORTH HEREIN HAS FAILED ITS ESSENTIAL PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW INNOWI’S AGGREGATE LIABILITY TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO ONE HUNDRED DOLLARS ($100).
Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. IN SUCH STATES, INNOWI’S LIABILITY OF WILL BE LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
14.Reliance on Limitations.
Each party acknowledges that the other party has entered these Terms relying on the limitations of liability stated herein and that those limitations are an essential basis of the bargain between the parties.
Innowi will not be liable for any failure or delay resulting from any condition beyond its reasonable control, including but not limited to governmental action or acts of terrorism, earthquake, fire, pandemic, flood or other acts of God, labor conditions, power failures, and internet disturbances.
You agree to defend, indemnify and hold harmless Innowi and its directors, officers, employees, affiliates and agents from and against all third-party claims, liability, damages, expenses and costs actions or demands, including, without limitation, reasonable legal and accounting fees, arising or resulting from:
• Your breach of these Terms or any other policy;
• Your access to, use, or misuse of the Services;
• Your infringement or infringement by any other user of your account, of any intellectual property or other right of any other person;
• Any failed transaction or purchase submitted by you through the Service or dispute arising therefrom;
• The activities under your Account, or any other party’s access and/or use of the Service, any third-party services, or your device, password, or other appropriate security code;
• Your failure to maintain reasonable security in connection with the use of the Service, any third-party services, or the device from which you access the Services.
17.1. Innowi’s Content.
Through your use of the Services, you may be presented with material owned and controlled by Innowi, including but not limited to websites or other materials, software,
text, graphics, videos, images, or advertising content (collectively referred to as “Innowi’s Content”). The entirety of Innowi’s Content is protected by United States and foreign intellectual property laws. You have no rights in or to Innowi’s Content, and you will not use, copy, or display Innowi’s Content except when expressly permitted by Innowi. You may not sell, transfer, assign, license, sublicense, or modify Innowi’s Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use Innowi’s Content in any way for any public or commercial purpose other than as permitted by Innowi. The use or posting of any of Innowi’s Content on any other platform, or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of these Terms of Service, your right to access and/or use the Services will automatically terminate.
17.2. Innowi’s Trademarks.
The trademarks, service marks, and logos of Innowi (the “Innowi Trademarks”) used and displayed on the Services are registered and unregistered trademarks or service marks of Innowi. Other Innowi product and service names located in the Services may be trademarks or service marks owned by a Merchant or other third parties (the “Third-Party Trademarks”, and, collectively with the Innowi Trademarks, the “Trademarks”). Nothing in these Terms of Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in the Services without the prior written consent of Innowi specific for each such use. The Trademarks may not be used to disparage Innowi or the applicable third-party, Innowi’s or third-party’s products or services, or in any manner that may damage any goodwill in the Trademarks. Except as described herein, the use of any Trademarks is prohibited without Innowi’s prior written consent. All goodwill generated from the use of any Innowi Trademark or Third-Party Trademark will inure to Innowi, or the applicable Third Party’s benefit, as applicable.
17.3. Other Intellectual Property.
Innowi owns or has license to all rights, title, interest, copyright and other worldwide intellectual property and trade secret rights in and to the Services (including all derivatives or improvements thereof). You may voluntarily submit suggestions, enhancement requests, ideas, feedback, recommendations or other input about the Services (“Feedback”) at any time. You irrevocably assign all right, title, interest and other worldwide intellectual property rights in and to the Feedback to Innowi, Inc., and acknowledge that we are free to use, disclose, reproduce and otherwise exploit all Feedback provided by you relating to the Services in our sole discretion, entirely without obligation or restriction of any kind. Any rights not expressly granted herein are reserved by Innowi.
17.4. User Content.
You retain all rights, title and interest in and to any text, graphics, videos, images or other data that you upload to the Services (“User Content”). You grant to Innowi a non-exclusive, royalty-free, fully paid-up, worldwide license to access, use, copy, modify (including the right to create derivative works of), display and transmit User Content for the purpose of our providing the Services and in accordance with our Privacy Statement. You are solely responsible for the accuracy, quality, content, and legality of User Content, the means by which User Content is acquired, and any transfer of User Content outside of the Services by you or any third-party authorized by you. You represent, warrant and covenant that you have all rights necessary to upload the User Content to the Services and to otherwise have such User Content used or shared, as applicable, in relation to the Services.
17.5. Third-Party Content.
Through your use of the Services, you may be presented with material provided by third parties, not owned or controlled by us, from our partners, and/or from other users of the Services, including but not limited to links to websites or other materials, software, text, graphics, videos, images, or advertising content (collectively referred to as “Third-Party Content”). All Third-Party Content and the Services are protected by United States and foreign intellectual property laws. Unauthorized use of the Services and/or Third-Party Content may result in violation of copyright, trademark, and other laws. Except as expressly provided herein, you have no rights in or to the Services or Third-Party Content, and you will not use, copy or display the Services or Third-Party Content except as permitted under these Terms. No other use of the Services or Third-Party Content is permitted without our prior written consent. You must retain all copyright and other proprietary notices contained in the Services and Third-Party Content. You may not sell, transfer, assign, license, sublicense, or modify the Third-Party Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Third-Party Content in any way for any public or commercial purpose other than as permitted hereunder. The use or posting of any of the Third-Party Content on any other platform, or in a networked computer environment for any purpose is expressly prohibited. If you violate any part of these Terms of Service, your right to access and/or use the Third-Party Content and Services will automatically terminate.
17.6. Third-Party Content Precautions.
We do not guarantee the accuracy, integrity or quality of any Third-Party Content, regardless of whether such products or services are designated as “certified,” “validated” or the like. Any interaction or exchange of information or data between you and any third-party is solely between you and such third-party. You should take precautions when downloading files from any platform to protect your computer from viruses and other destructive programs. If you decide to access any Third-Party Content, you fully assume the risk of doing so. Under no circumstances will Innowi be liable in any way for any Third-Party Content, including liability for any errors or ommissions in any Third-Party Content or for any loss or damage of any kind incurred as a result of the use of or reliance on any Third-Party Content posted, emailed, linked or otherwise transmitted via the Services.
18. Termination of the Terms of Service.
These Terms of Service continue to govern your use of the Services unless and until such time as you or we terminate your use of any applicable Service(s). Upon termination, you will lose access to the relevant Services, and we may delete any information stored regarding you or your transactions through the Services. Termination of your use of any of the Services does not relieve you of the obligation to pay for any Purchases made as well as related fees and charges already incurred. In the event of termination of your use of the Services by you or us, we will not provide any refunds for amounts previously paid through the Services. Innowi reserves the right, in its sole discretion, to limit, suspend, or terminate your Innowi account and/or access to all or any part of the Services at any time and for any reason without notice to you and without liability to you or to any third party. Additionally, any of the Services, or any feature of portion thereof, may be modified, replaced, suspended, or terminated, without or notice at any time, in Innowi’s sole discretion, without liability.
From time to time, we may update or modify these terms of service, as per our sole discretion, and upload the updated terms to https://innowi.com/terms. Such updates may reflect enhancement to our Services or our Website. The updated terms of service become effective as of the effective date indicated in the terms of service (“the effective date”). Any use of the services after the effective date means you have accepted the updated terms. Your sole and exclusive remedy in the event you do not accept the updated terms is to cease your access to and use of the services and our website.
20. Electronic Communications.
These terms describe how Innowi delivers communications to you electronically. You agree that Innowi, its affiliates and its third party subcontractors and/or agents, may use, in addition to any live agent calls, an automatic telephone dialling system, an artificial or pre-recorded voice, or both, to contact you at the telephone number(s) you have provided, and/or may leave a detailed voice message if you are unable to be reached, even if the number provided is a cellular or wireless number or if you have previously registered on a Do Not Call list or requested not to be contacted for solicitation purposes. You consent to receiving commercial electronic messages, including e-mail messages, SMS and text messages, and telephone calls, from Innowi,
its affiliates and its third-party sales contractors and/or agents. By voluntarily providing your mobile phone number to Innowi, you confirm you are authorized to provide that number to Innowi and agree that Innowi may contact you at that number. If you provide a mobile number, you expressly agree that Innowi may contact you using automated telephone call, and SMS or MMS messages at that phone number, and you hereby consent to receiving such communications for transactional, informational, and operational purposes.
21. Revocation of Consent for Electronic Communications.
Your consent to receive electronic Communications is valid until and unless you revoke it. You may revoke your consent at any time, however, consent to electronic Communications is a condition of some of our Services, and if you revoke it you will no longer be permitted to use the Services. If you wish to revoke your consent for electronic Communications, please contact firstname.lastname@example.org.
22. Methods of Indicating Agreement to these Terms.
You acknowledge and agree that by clicking on the “I Agree”, “Submit”, “Create Account” or similar button on the website or other feature offered under our Services and associated with these Terms or with any other electronic document authorising us to provide the Services to you, you are indicating your intent to sign these Terms and/or other applicable agreement(s). You also agree that clicking on these buttons on the website or other Services shall constitute your electronic signature to these Terms or other such document displayed with the button(s) and relating to the Services. You further agree that your electronic signature on these Terms and any other document shall have the same legal effect under state and federal law as if you signed the documents in ink on paper.
23.1. Agreement to Arbitrate.
You agree that any and all disputes or claims that have arisen or may arise between you and Innowi, whether arising out of or relating to these Terms of Service or in connection with your use of the Services, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. You agree that, by agreeing to these Terms, you and Innowi are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. Notwithstanding the foregoing, this Arbitration Agreement shall not preclude either party from pursuing a court action for the sole purpose of obtaining a temporary restraining order or preliminary injunction in circumstances in which such relief is appropriate, provided that any other relief shall be pursued through an arbitration proceeding pursuant to this Arbitration Agreement.
23.2. Prohibition of Class and Representative Actions and Non-Individualised Relief.
You and Innowi agree that each may bring claims against the other only on an individual basis and not as plaintiff or class member in any purported class or representative action or proceeding. Unless both you and Innowi agree otherwise, the arbitrator may not consolidate or join more than one person’s or party’s claims and may not otherwise preside over any form of a consolidated, representative, or class proceeding. Also, the arbitrator may award relief (including monetary, injunctive, and declaratory relief) only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by that party’s individual claim(s).
23.3. Pre-Arbitration Dispute Resolution.
Most concerns can be resolved quickly and to all parties’ satisfaction by emailing Innowi’s Customer Care team at [*]. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Innowi should be sent to 3240 Scott Blvd, Santa Clara, CA 95054, United States. The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If you and Innowi do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Innowi may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Innowi or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Innowi is entitled.
23.4. Arbitration Procedures.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Commercial Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. All issues are for the arbitrator to decide, including, but not limited to issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. The arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under these Terms of Service and Applicable Law and Rules. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. Unless you and Innowi agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by the AAA. If your claim is for $10,000 or less, Innowi agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
23.5. Costs of Arbitration.
Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties. 22.7. Severability.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement other than Sub-Section 22.1 above is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of Sub-Section 22.1 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of these Terms will continue to apply.
Upon termination of your use of the Service or these Terms for any reason, in addition to this section, the following sections shall survive termination: 3 (Representations and Warranties); 10 (Disclaimer of Warranties); 11 (Waiver of Liability); 13 (State Exemptions); 15 (Force Majeure); 16 (Indemnification); 17 (Intellectual Property); 18
(Termination); 22 (Arbitration); 25 (Governing Law); and 26 (Miscellaneous).
You may not assign these Terms or any rights or obligations hereunder, by operation of law or otherwise, without our prior written consent and any attempted assignment may be void. We reserve the right to freely assign these Terms and the rights and obligations hereunder, to any third party without notice and consent. Subject to the foregoing, these Terms shall be binding upon and inure to the benefit of the parties hereto, their successors and permitted assigns.
26. Governing Law.
Any action, claim, or dispute related to these Terms of Service will be governed by the laws of California, excluding its conflicts of law provisions, and controlling U.S. federal law. The United Nations Convention on Contracts for the International Sale of Goods and Uniform Computer Information Transactions Act will not apply to these Terms of Service.
If any provision of these Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of these Terms, which will remain in full force and effect. Failure of Innowi to act on or enforce any provision of these Terms will not be construed as a waiver of that provision or any other provision herein. No waiver will be effective against Innowi unless made in writing, and no such waiver will be construed as a waiver in any other or subsequent instance. Except as expressly agreed by Innowi and you, these Terms, including any Innowi policies governing the Services referenced herein, constitute the entire agreement between you and Innowi with respect to the subject matter hereof, and supersedes all previous or contemporaneous agreements, whether written or oral, between you and Innowi with respect to the subject matter. The section headings are provided merely for convenience and will not be given any legal import.