|
D. Modification and Termination of the Preferred Owner Program
1. Ron Smith Buick GMC may modify any of the terms and conditions governing the Preferred Owner Program – including, but not limited to, the methods through which points can be earned, how the Preferred Owner Program can be used, the value of the earned points, at any time, without notice, even though these changes may affect the Preferred Owner’s ability to use the points that have all ready been earned.
2. The Preferred Owner Program has no pre-determined termination date and may continue until such time that Ron Smith Buick GMC may terminate the Preferred Owner Program at any time, with no notice given.
3. The Preferred Owners continued participation in the Preferred Owner Program constitutes the Preferred Owners acceptance of any changes made to these
Terms and Conditions. The Preferred Owners are responsible for remaining knowledgeable as to any changes that Ron Smith Buick GMC may make to these Terms and Conditions. The most current version will be available on the Preferred Owner’s Website and will supersede all previous versions of the Terms and Conditions.
E. General Terms and Conditions
1. Accrued Preferred Owner Points do not constitute property of a Preferred Owner and have no value outside of the Preferred Owner Program. Preferred Owner points are credits that Ron Smith Buick GMC may revoke at any time as set forth herein. Preferred Owner Program points may not be exchanged for cash, assigned, bartered, or transferred, except as set forth herein, and are not transferable upon death, as part of a domestic relations matter, or otherwise by operation of law.
2. Each Preferred Owner member is responsible for ensuring that the information in his/her account is accurate and kept current.
F. Limitation of Liability
1. By participating in the Preferred Owner Program, each Preferred Owner accepts all responsibility for, and hereby indemnifies and holds harmless Ron Smith Buick GMC, and each of the their related companies, General Motors, Maritz, FMR and each such company’s respective officers, directors, employees, shareholders, agents, and successors, and assigns (the “Released Parties”), from and against any claims that may arise from actions taken by such Member or for any unauthorized access to Preferred Owner’s account from a third party.
2. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE RELEASED PARTIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE PREFERRED OWNER PROGRAM. EVEN IF ANY OR ALL OF THE RELEASED PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES. THEREFORE SUCH EXCLUSIONS MAY NOT APPLY TO YOU. IF A PREFERRED OWNER PROVES THAT RON SMITH BUICK GMC HAS IMPROPERLY DENIED THAT PREFERRED OWNER EARNED POINTS, LIABILITY WILL BE LIMITED TO THE EQUIVALENT AMOUNT OF EARNED POINTS. BY PARTICIPATING IN THE PREFERRED OWNER PROGRAM, A PREFERRED OWNER WAIVES ANY AND ALL RIGHTS TO BRING ANY CLAIM OR ACTION RELATED TO SUCH MATTERS IN ANY FORUM BEYOND ONE (1) YEAR AFTER THE FIRST OCCURRENCE OF THE KIND OF ACT, EVENT, CONDITION, OMISSION UPON WHICH THE CLAIM OR ACTION IS BASED. “
G. Legal Disputes
1. Preferred Owners agree that any controversy or claim at law or equity that arises out of or relates to the Preferred Owner Program (“Claims”) shall be resolved in accordance with one of the subsections below, or as otherwise mutually agreed upon in writing by the parties.
a. Arbitration. For any Claim (excluding Claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000. Preferred Owners or Ron Smith Buick GMC may elect to resolve the dispute through binding arbitration conducted by telephone, online, and/or based solely upon written submissions where no-in person appearance is required. Any judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
b. Court. Alternatively, any Claim may be adjudicated by a court of competent jurisdiction located in Merced, California, or where the defendant’s is located. Preferred Owners and Ron Smith Buick GMC agree to submit to the personal jurisdiction of the courts located within the county of Merced, California.
c. Violations of Section G (“Legal Disputes”) All Claims (excluding requests for injunctive or equitable relief) between the parties must be resolved using the dispute resolution mechanism that is selected in accordance with this Section by the party first to assert a Claim, either through a court filing or a commencement of arbitration. Should either party file an action contrary to this Section G, the other party may recover attorneys’ fees and costs up to $1000.00, provided that the party seeking the award has notified the other party in writing of the improperly filed Claim, and the other party has failed to withdraw the Claim.
2. These Terms and Conditions are governed by and interpreted under the laws of the state of California, U.S.; as such laws are applied to agreements entered into and to be performed entirely within California by California residents. Notwithstanding the foregoing sentence, the Federal Arbitration Act (“FAA”), and all of its rules and procedures, shall govern Section G hereof, to the extent that the FAA is inconsistent with California law. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or the extent of such section. (Ron Smith Buick GMC) failure to act with respect to a breach by Ron Smith Buick GMC Preferred Owner Program does not waive its right to act with respect to subsequent or similar breaches. These Terms and Conditions and any documents it incorporates set forth the entire understanding between the parties with respect to the subject matter hereof. Sections F and G shall survive any termination or expiration of this agreement. It is the express wish of the parties that this document and any related documents be drawn up in English.
3. If any provision of these Terms and Conditions is found to be invalid or unenforceable by a court of competent jurisdiction, such provision shall be severed from the remainder of these Terms and Conditions, which will otherwise remain in force.
|
