PLEASE READ THE FOLLOWING TERMS CAREFULLY. BY CLICKING “I ACCEPT,” OR BY USING THE SERVICE, YOU ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, AND AGREE TO BE BOUND BY THE FOLLOWING TERMS AND CONDITIONS (THE “TERMS”). If you are not eligible, or do not agree to the Terms, then you do not have our permission to use the Service.
These Terms provide that all disputes between you and the Trusts and Trustee regarding the Service will be resolved by BINDING ARBITRATION, to the fullest extent permitted under applicable law. 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, to the fullest extent permitted under applicable law. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury, and your claims cannot be brought as a class action, to the fullest extent permitted under applicable law. Please review Section 27 (“Dispute Resolution and Arbitration”) for the details regarding your agreement to arbitrate any disputes with the Trusts and Trustee.
- The Service Overview. The Service is intended only to provide you with public information about how the State Mitigation Trust and the Indian Tribe Mitigation Trust work to timely and efficiently fund Eligible Mitigation Actions to be proposed and administered by the Beneficiaries subject to the requirements of the Consent Decrees and the terms of each of the respective State Mitigation Trust Agreement and Indian Tribe Mitigation Trust Agreement and to provide funds for the administration and operation in accordance with the terms of the State Mitigation Trust and the Indian Tribe Mitigation Trust, as set forth therein. The goal of each Eligible Mitigation Action shall be to achieve reductions of NOx emissions in the United States.. You may not access or use the Service for any other purpose. You are solely responsible for any information, images, videos, or other content or materials you upload to or transmit through the Service (“Communications Data”). The Trusts and Trustee are not responsible for the materials posted on the Service that they receive from others, such as the trust beneficiaries.
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 an individual who is at least 18 years old; (b) you have not previously been suspended or removed from the Service; and (c) your use of the Service is in compliance with all applicable laws and regulations.
- Limited License. Subject to your ongoing compliance with these Terms, the Trusts and Trustee grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to (i) install the mobile application(s), if any, associated with the Service, and use such mobile applications so installed, solely in object code format, and solely for your personal, non-commercial use for lawful purposes, on devices that you own or control, and (ii) access and use the Service for your personal, non-commercial use for lawful purposes.
- License Restrictions. Except and solely to the extent permitted by applicable law notwithstanding these restrictions, you may not: (i) reproduce, distribute, publicly display, or publicly perform the Service or any part thereof; (ii) reverse engineer, decompile, or make modifications to the Service or any part thereof; or (iii) interfere with or circumvent any feature of the Service or any part thereof, including any security or access control mechanism. If you are prohibited under applicable law from using the Service, you may not use it.
Prohibited Conduct. BY USING THE SERVICE YOU AGREE NOT TO:
- use or access the Service (a) from a jurisdiction where such use or access is not authorized, (b) for any illegal purpose, or (c) in violation of any local, state, national, or international law;
- conduct activities that may be harmful to others or that could damage the Trusts and Trustee’s reputation;
- violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right, or violating any third party privacy right;
- use scrapers, robots, or other data gathering devices not provided by the Trusts and Trustee on or through the Service;
- interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering, decompiling, or otherwise attempting to discover the source code of any portion of the Service, including the app(s), if any, except to the extent that such activity is expressly permitted by applicable law notwithstanding this restriction;
- interfere with the operation of the Service or any user’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another user of the Service; (c) attempting to collect personal information, Communications Data, or other information about another user or third party without their consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any such network, equipment, or server;
- modify, translate, or create derivative works, adaptations or compilations of, or based on, the Service or part thereof, or use, copy or reproduce the Service or any part thereof other than as expressly permitted in these Terms;
- assign, sublicense, lease, sell, grant a security interest in, or otherwise transfer the access granted under these Terms or any Materials (as defined in Section 18) or any right or ability to view, access, or use any Material; or
- attempt to do any of the acts described in this Section 13, or assist or permit any person in engaging in any of the acts described in this Section 13.
- Third-Party Services and Linked Websites. The Service may contain links to third-party websites. Linked websites are not under our control, and we are not responsible for their content.
- Termination of Use; Discontinuation and Modification of the Service. If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, the Trusts and Trustee may in their sole discretion suspend or terminate your access to the Service at any time if you violate any provision of these Terms, if we no longer provide any part of the Service, or for any reason or no reason, with or without notice. We also reserve 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. To the fullest extent permitted under applicable law, we will have no liability whatsoever on account of any change to the Service or any suspension or termination of your access to or use of the Service.
- Modification of these Terms. We reserve the right, at our discretion, to change these Terms on a going-forward basis at any time. Please check these Terms periodically for changes. If a change to these Terms materially modifies your rights or obligations, we will take steps to notify you of the modified Terms on the Service. Material modifications will be effective upon your acceptance of such modified Terms or upon your continued use of the Service after we send or post our notification of the changes, whichever is earlier. Immaterial modifications are effective upon publication. 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.
- Ownership; Proprietary Rights. The Service is owned and operated by the Trusts and Trustee. 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 the Trusts and Trustee are protected by intellectual property and other laws. All Materials included in the Service are the property of the Trusts and Trustee or our third-party licensors. Except as expressly authorized by the Trusts and Trustee, you may not make use of the Materials. The Trusts and Trustee reserve all rights to the Materials not granted expressly in these Terms.
- Subcontractors. You hereby consent to the Trusts and Trustee’s engagement of third parties (including the Trusts and Trustee’s affiliates) to perform, provide, or support the performance or provision of, all or any portion of the Service.
- Feedback. If you choose to provide input or suggestions regarding problems with your experience with the Services (“Feedback”), then you hereby grant the Trusts and Trustee an unrestricted, perpetual, irrevocable, non-exclusive, fully-paid, royalty-free right to exploit such Feedback in any manner and for any purpose, including to improve the Service and create other products and services.
- Indemnity. To the fullest extent permitted under applicable law, you are responsible for your use of the Service, and you will defend and indemnify the Trusts and Trustee and its officers, directors, employees, consultants, and agents (together, the “the Trusts and Trustee Entities”) from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (a) your access to, use of, or alleged use 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; (d) any dispute or issue between you and any third party; and (e) all claims arising from or alleging fraud, intentional misconduct, criminal acts, or gross negligence committed by you. To the fullest extent permitted under applicable law, 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 that claim.
Disclaimers; No Warranties
the Service AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH the Service ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE Trusts and Trustee ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, RELATING TO the Service AND ALL MATERIALS, PRODUCTS, AND CONTENT AVAILABLE THROUGH the Service, INCLUDING: (A) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; (B) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE; AND (C) ANY WARRANTY AS TO WHETHER THE COMMUNICATIONS DATA OR OTHER INFORMATION AVAILABLE THROUGH OR TRANSMITTED BY THE SERVICE OR THROUGH THE SERVICE IS TRUE, COMPLETE OR ACCURATE. THE Trusts and Trustee ENTITIES DO 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 DO 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 ANY MATERIALS OR CONTENT AVAILABLE THROUGH the Service WILL CREATE ANY WARRANTY REGARDING ANY OF THE Trusts and Trustee ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY HARM OR DAMAGE THAT MAY RESULT TO YOU FROM YOUR USE OF OR ACCESS TO the Service, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH the Service. YOU UNDERSTAND AND AGREE THAT YOU USE the Service, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH the Service AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH the Service), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF the Service OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
THE ABOVE PARAGRAPHS APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES, IN PARTICULAR A DISCLAIMER OF WARRANTIES PROVIDED OR IMPLIED BY LAW, AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability
IN NO EVENT WILL THE Trusts and Trustee 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 THIS AGREEMENT OR YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, the Service OR ANY MATERIALS, PRODUCTS, OR CONTENT AVAILABLE ON OR THROUGH the Service, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY Trusts and Trustee ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS PROVIDED IN SECTION 27.4(III), THE AGGREGATE LIABILITY OF THE Trusts and Trustee ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR 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 $100, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. FURTHERMORE, NOTHING IN THESE TERMS LIMITS OR EXCLUDES ANY LIABILITY THAT CANNOT BE LIMITED OR EXCLUDED BY LAW.
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 23 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Force Majeure. To the fullest extent permitted under applicable law, the Trusts and Trustee will be excused from performance under these Terms for any period that it is prevented from or delayed in performing any obligations pursuant to these Terms, in whole or in part, as a result of a Force Majeure Event. For purposes of this section, “Force Majeure Event” means an event or series of events caused by or resulting from any of the following: (1) weather conditions or other elements of nature or acts of God; (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion; (3) quarantines or embargoes, (4) labor strikes; (4) telecommunications, network, computer, server or Internet disruption or downtime; (5) unauthorized access to the Trusts and Trustee’s information technology systems by third parties; or (6) other causes beyond the reasonable control of the Trusts and Trustee.
- Governing Law and Venue. These Terms are governed by the laws of the State of Delaware without regard to conflict of laws principles. If a lawsuit or court proceeding is permitted under these Terms, then you and the Trusts and Trustee agree to submit to the exclusive jurisdiction of the state courts and federal courts located within New Castle County, Delaware for the purpose of litigating any dispute, and you hereby consent to the personal jurisdiction and venue thereof. We operate the Service from our offices in the United States, and we make no representation that Materials included in the Service are appropriate or available for use in other locations.
- General. These Terms, together with any other agreements expressly incorporated by reference into these Terms, are the entire and exclusive understanding and agreement between you and the Trusts and Trustee regarding your use of the Service. Except as expressly permitted above, these Terms may be amended only by a written agreement signed by authorized representatives of all parties to these Terms. 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. 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. Upon termination of these Terms, Sections 2, 5, and 8 through 21, along with any other accompanying agreements, will survive.
Dispute Resolution and Arbitration
- Generally. In the interest of resolving disputes between you and the Trusts and Trustee in the most expedient and cost effective manner, you and the Trusts and Trustee agree that every dispute arising in connection with these Terms will be resolved by binding arbitration, to the fullest extent permitted under applicable law. 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 the Trusts and Trustee ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW.
- Exceptions. Despite the provisions of Section 27.1, nothing in these Terms 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; or (d) to file suit in a court of law to address an intellectual property infringement claim.
- Arbitrator. To the fullest extent permitted under applicable law, any arbitration between you and the Trusts and Trustee will be settled under the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. 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 the Trusts and Trustee.
- Notice; 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 such other party has not provided a current physical address, then by electronic mail (“Notice”). The Trusts and Trustee’s address for Notice is: Volkswagen Diesel Emissions Environmental Mitigation Trust, c/o Wilmington Trust N.A., Attention: Corporate Trust Administration, 1100 North Market Street, 5th Floor, Wilmington, DE 19890. The Notice 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 is received, you or the Trusts or Trustee may commence an arbitration proceeding. In such arbitration, the arbitration will be heard by one neutral arbitrator mutually agreed upon by the parties. If no agreement can be reached within thirty (30) days after the a potential arbitrator has been proposed by either Party, then the AAA shall select one neutral arbitrator having significant experience with Delaware statutory trusts and reasonable experience with transactions of the type provided for in these Terms. During the arbitration, the amount of any settlement offer made by you or the Trusts and Trustee must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. The prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled.
- Fees. If you commence arbitration in accordance with these Terms, the Trusts and Trustee 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 New Castle County, Delaware, 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 the Trusts and Trustee 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. The prevailing party shall be entitled to reasonable attorney’s fees, costs, and necessary disbursements in addition to any other relief to which such party may be entitled.
- No Class Actions. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, YOU AND the Trusts and Trustee 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 the Trusts and Trustee 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.
- Modifications to this Arbitration Provision. If the Trusts and Trustee make any future change to this arbitration provision, other than a change to the Trusts and Trustee’s address for Notice, you may reject the change by sending us written notice within 30 days of the change to the Trusts and Trustee’s address for Notice.
- Enforceability. If Section 17.6 is found to be unenforceable or if the entirety of this Section 17 is found to be unenforceable, then the entirety of this Section 17 (except this Section 17.8) will be null and void and, in that case, the parties agree that the exclusive jurisdiction and venue described in Section 15 will govern any action arising out of or related to these Terms.
- Claims. To the fullest extent permitted under applicable law, no action arising out of, in connection with, or relating to these Terms shall be brought by you more than one (1) year after the accrual of the cause of action. This period shall not be extended for any reason, except by the written consent of both parties. All statutes or provisions of law which would toll or otherwise affect the running of the period of limitation are hereby waived, and no such statute or provision of law shall operate to extend the period limited in this paragraph, to the fullest extent permitted under applicable law.
Contact Information. The Service is offered by the Trusts and Trustee. You may contact us by emailing us at email@example.com, or writing to us at
Volkswagen Diesel Emissions Environmental Mitigation Trust
c/o Wilmington Trust, N.A.
Attn: Corporate Trust Administration
1100 North Market Street, 5th Floor
Wilmington, DE 19890.
Consumer Protection Notice. Please note that, if you are a consumer, the limitations in these Terms are intended to be only as broad and inclusive as is permitted by the laws of your state of residence.
- New Jersey. If you are a New Jersey consumer, the terms of Sections 2, 4, 6, 7, 11, 12, 13, 14, 15, 16, 18 do not limit or waive your rights under New Jersey law and the limitations in these Terms are intended to be only as broad and inclusive as is permitted by the laws of the State of New Jersey. Subject to the foregoing, we reserve all rights, defenses, and permissible limitations under the laws of the State of New Jersey and under the laws of your state of residence. Nothing in this Section shall modify Section 17 (“Dispute Resolution and Arbitration”).
- California. 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.