Service Contract Terms & Conditions Part 2
11. Contract Limitations
a. Indirect Damages - IN NO EVENT WILL WE BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES RELATING DIRECTLY OR INDIRECTLY TO THIS CONTRACT.
b. Renewals - We are not obligated to renew Your Contract.
c. Non-Original Manufacturer and Re-Manufactured Parts - Genuine factory parts will be used whenever possible; however the use of non-original manufacturer and re-manufactured parts is allowed under this Contract.
d. Lemon Policy - Administrator will replace a covered product or part should the same major failure occur to the product or part and require a service call on 3 separate occasions within a 12 month period after the Contract effective date.
e. Limitation of Liability - To the extent permitted by applicable law, Our liability, if any, for any allegedly defective covered product or part shall be limited to repair or replacement of the product or part at Our option, and Our liability, if any, for damages relating to any defective covered product or part shall not exceed Your purchase price for the product or part in question. THIS CONTRACT IS YOUR SOLE EXPRESS WARRANTY WITH RESPECT TO THE COVERED PRODUCT(S). ALL IMPLIED WARRANTIES WITH RESPECT TO THE PRODUCT(S) INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ARE HEREBY EXPRESSLY EXCLUDED.
IF YOUR CONTRACT BEGINS AT DATE OF PRODUCT PURCHASE, THIS CONTRACT IS INCLUSIVE OF THE MANUFACTURER'S WARRANTY; IT DOES NOT REPLACE THE MANUFACTURER'S WARRANTY, BUT PROVIDES CERTAIN ADDITIONAL BENEFITS DURING THE TERM OF THE MANUFACTURER'S WARRANTY.
12. Consumer's Promises and Assurances
In order to keep this Contract in force during its term, You promise and assure: (1) full cooperation with Our technicians and authorized servicers during diagnosis and repair of the covered product; (2) accessibility of the covered product; (3) a non-threatening and safe environment for in-home service; (4) the presence of an adult at the time of scheduled service; (5) that the covered product is not used for business or commercial purposes; and (6) that You will provide written notice of any defect or deficiency in service within 90 days of discovery.
13. What is Not Covered - Your Contract does not cover:
a. repair of product(s) upon noncompliance of any part of Section 12 by You; b. coverage, components, products or items not specifically listed herein; c. consumer replaceable items such as batteries, tapes, ribbons, bulbs, hoses, water membranes, air filters, water filters, fuses, belts, knobs, vacuum cleaner belts, bags, projection TV screen protectors, film, accessory cables, removable data storage media; d. any repair covered by a MFR's original warranty or initiated by the MFR, or recall program whether the MFR is in business or not and all new products with less than an original 90 day MFR's parts & labor warranty and costs associated with MFR's recommended normal maintenance; e. unauthorized repairs performed by third parties, inaccessible products, theft; f. failures of components such as cabinets, frames, masks, finish defects, glass, scratched lenses; g. damage or failures caused by conditions beyond Our control such as inadequate plumbing, wiring, power supply, rust, corrosion, infestation, negligence, abuse, misuse, acts of God, failure to follow MFR's recommended maintenance, improper installation, leaking batteries, video game and other display markings, problems with phone lines; h. repair or replacement caused by defects that existed prior to this Contract purchase; i. service outside the continental USA, Alaska, and Hawaii; j. water filtration systems where water is microbiologically unsafe or of unknown quality when there has not been adequate disinfection before or after the system, such as single-user wells, or other non-public water systems not regulated by federal or state health and safety requirements; k. products used for commercial purposes; l. loss or damage to recording media, software or data; computer viruses, software defects or software generated problems; m. shipping damage to products resulting from inadequate packaging by You; n. Products not having a full functional MFR's warranty; o. upgrades to comply with regulatory laws; p. TV image burn-in, plasma or LCD panels for minor pixel illumination issues that do not affect the overall viewing of the panel such as, but not limited to, missing pixels, intermittent pixels, or wrong color pixels.
14. Arbitration
READ THE FOLLOWING ARBITRATION PROVISION ("PROVISION") CAREFULLY. IT LIMITS CERTAIN OF YOUR RIGHTS, INCLUDING YOUR RIGHT TO OBTAIN RELIEF OR DAMAGES THROUGH COURT ACTION.
MANDATORY ARBITRATION: Please read carefully. Either party may elect to resolve any legal dispute by binding Arbitration. If You or We elect to arbitrate a Claim (defined below), neither party will have the right: (1) for a court or a jury to decide the Claim; (2) to engage in discovery to the same extent a court would allow; (3) to participate in a class action in court or in Arbitration, either as a class representative or a class member; (4) to act as a private attorney general in court or in Arbitration; or (5) to join or consolidate Your Claim(s) with claims of another person(s). Other rights, such as the right to appeal, are more limited in Arbitration than in court.
RIGHT TO REJECT ARBITRATION: YOU MAY REJECT ARBITRATION. IF YOU DO, NEITHER YOU NOR WE CAN REQUIRE ARBITRATION OF ANY CLAIM. REJECTION OF ARBITRATION WILL NOT AFFECT ANY OTHER PART OF YOUR CONTRACT. TO REJECT ARBITRATION, YOU MUST SEND US A REJECTION NOTICE THAT WE RECEIVE WITHIN SIXTY (60) DAYS AFTER THE DATE YOU BOUGHT YOUR CONTRACT. ANY REJECTION NOTICE MUST INCLUDE YOUR NAME, ADDRESS, AND CONTRACT NUMBER, AND MUST BE SENT BY CERTIFIED MAIL TO P.O. Box 100, Rapid City, SD 57709. IF WE DISPUTE WHETHER YOU SENT A TIMELY REJECTION NOTICE, YOU MUST SHOW A SIGNED DELIVERY RECEIPT. THIS PROCESS IS THE ONLY WAY TO REJECT ARBITRATION.
Definitions: "We," "Us," "Our," for purposes of this Section, includes the Obligor, the Administrator, the Insurer and the retail dealer from whom You purchased Your Contract, and all of their parents, subsidiaries, affiliates, predecessors, successors, assigns, employees, officers and directors.
"Claim" means any dispute under any law or legal cause of action between You and Us that arises from or relates to Your Contract, the relationships which result from it, or any prior Contract, including the enforceability or scope of this Section. It includes disputes that seek relief of any type, including injunctive, declaratory or damages. It includes disputes that arose before the Section's effective date.
"Arbitrator" means the National Arbitration Forum, P.O. Box 50191, Minneapolis, MN 55405, www.arb-forum.com, (800) 474-2371, American Arbitration Association, 335 Madison Avenue, New York, NY 10017, www.adr.org, (800) 778-7879, or JAMS, 45 Broadway, 28th Floor, New York, NY 10006, www.jamsadr.com, (800) 352-5267.
Scope: This Section covers all Claims, except that We will not arbitrate an individual small claims court Claim, unless it is transferred, removed, or appealed to a different court.
Starting an Arbitration: To start Arbitration, a party must give written notice of their election to arbitrate. Notice can be given after a lawsuit has been filed (including in papers in the lawsuit). Upon Notice, the Claim shall be resolved by Arbitration under this Section and the rules of the Arbitrator. You can choose the Arbitrator in Your written notice electing to arbitrate, or by giving Us written notice of Your selection within 20 days after Our Arbitration notice. Arbitrators shall be selected as per the Arbitrator's rules and shall be retired judges or lawyers with at least 10 years experience.
Location and Costs: Any Arbitration hearing will occur in a location reasonably convenient for You. On Your written request, We will pay all filing, administrative, hearing and/or other fees charged by the Arbitrator to You for Claim(s) asserted by You up to $2,500 after You have paid an amount equivalent to the fee, if any, for filing such Claim(s) in state or federal court in the judicial district where You live. (If You have already paid a court filing fee, You will not be required to pay that amount again.) If You must pay any fees over $2,500 to the Arbitrator--and cannot get a hardship waiver for such fees--We will consider in good faith Your reasonable written request to pay all or part of such additional fees. Each party must pay for its own attorneys, experts and witnesses, regardless of who wins the Arbitration, unless applicable law and/or the Arbitrator's rules provide otherwise. We will under all circumstances pay any fees or expenses We are required to pay by law.
Governing Law: This Section is governed by the Federal Arbitration Act, 9 U.S.C. SS1 et seq. ("FAA"), and not by any state Arbitration law. The Arbitrator shall follow applicable law related to any Claim, statutes of limitation, and claims of privilege. Upon either party's timely request, the Arbitrator shall explain his decision in writing. The Arbitrator will set rules of procedure and evidence consistent with the FAA, this Section and the Arbitrator's rules.
Getting Information: Either party may ask the Arbitrator to allow it to obtain more information from the other party beyond the limits set by the Arbitrator's rules.
Effect of Arbitration Award: Any court may enter judgment upon an Arbitrator's award. The Arbitrator's decision will be final and binding except for (1) any appeal right under the FAA, and (2) any party may appeal awards of more than $100,000 to a three-Arbitrator panel appointed by the Arbitrator, which will reconsider any aspect of the appealed award from the beginning as if it had not been previously arbitrated. The panel's decision will be final and binding, except for any FAA appeal rights. Unless applicable law provides otherwise, the appealing party will pay the appeal's costs, regardless of its outcome. However, We will consider any reasonable written request for Us to bear the cost.
Continued Effect of Arbitration Section: This Section will survive the termination of Our relationship and remain in force no matter what happens to You or Your Contract. If any portion of this Section cannot be enforced, the rest of the Section will continue to apply. In case of a conflict or inconsistency between this Section, the Arbitrator's rules, or other Contract Sections, this Section will govern. Only a court may adjudicate the validity of this Section or any part of it.