Effective April 2, 2010
This Wireless Internet Access Service Agreement is between you and DataJack, Inc. (“DataJack
”) and is referred to as the “Terms of Service
” or the “Agreement
.” By purchasing or using DataJack’s wireless Internet access service (“Service
”) provided through use of a wireless USB data modem or similar device provided by DataJack (“Equipment
”) and any firmware or software used by DataJack to provide the Service, whether embedded in any Equipment, or used in connection with the Service (collectively "Software") you agree to be bound by and comply with the following Terms of Service:
Agreement Governing Use of Service.
The current version of this Agreement can be found at www.DataJack.com/terms. DataJack reserves the right to revise, amend, or modify this Agreement or any other policy at any time by sending you an email notification to the email address associated with your account, or by posting any amendments or modifications at www.DataJack.com/terms. Amendments or modifications to this Agreement will become effective on the date we send them to you by email, or immediately upon posting to our website, whichever is earlier. Your continued use of the Service or Equipment will constitute your acceptance of any such amendments or modifications. This Agreement may not be otherwise amended except in a writing signed by you and the Company. If you do not wish to continue service after a change that is materially disadvantageous to you, you may terminate this Agreement by providing written notice to DataJack within fourteen (14) days of the effective date of the modification.
Service(s) may require third party software to be installed in order to function. DataJack shall not be liable for any use or installation of such software. Any third party software installed shall be governed by that third party end user license agreement. By accepting this Agreement, you agree to accept the terms of those third party end user license agreements.
Your service is prepaid and provided to you on a month-to-month basis. If you purchased your service at a retail location, your service will expire thirty (30) days after activation. You can purchase another thirty (30) days of service at a retail location or by making a payment at http://datajack.com. If you subscribed to the Service and registered for AutoPay via a web purchase, you will be automatically billed thirty (30) days from the date your equipment is activated and every thirty (30) days thereafter, using the credit card associated with your online account. If you purchased your DataJack at a retail location and registered for AutoPay, your account will automatically be billed every thirty (30) days using the credit card associated with your online account. If you wish to suspend automatic billing, you must notify DataJack in writing at email@example.com
at least four (4) days prior to your automatic bill date. If you are enrolled in Automatic Service Continuation, your service period will automatically renew and charge your account for the data plan every time your data plan reaches or exceeds 80% of its data limit. DataJack is not responsible for lost or stolen equipment or fraudulent use of services by any party.
Subject to applicable law, you expressly agree that all applicable monthly service fees and charges will accrue until this Agreement has terminated and the Services have been disconnected. Monthly Service fees will not be pro-rated. Upon termination of this Agreement for any reason, DataJack and its suppliers reserve the right, to the extent permitted by applicable law, to delete any data or files, including documents, photographs, electronic messages and/or voicemails, or other information stored on DataJack's or its suppliers' servers or systems (collectively, the “Data”). DataJack, its officers, directors, employees, affiliates and their agents and suppliers will have no liability whatsoever as the result of the loss of any such Data. DataJack may suspend or discontinue providing the Service generally, or terminate your Service, either in whole or in part, at any time in its sole discretion. If DataJack discontinues providing the Service generally or terminates your Service for a reason other than your breach of this Agreement, you will be responsible only for charges accrued through the date of such discontinuation or termination.
Payments and Invoices.
You will make payments to DataJack for the Service and Equipment using your credit, debit, or other acceptable bank card (the "Card"). You will ensure that the Card information you have provided to DataJack is valid at all times. Failure to provide valid Card information or Card status may result in Service suspension or termination. Fees and charges for Service are contained in the Order Confirmation and your invoice on "My Account" (My Account is DataJack's web-based online account management system that allows you to view your account status, view and pay invoices, make changes to your account profile at any time and purchase additional services at any time). Whenever you update your Card information on file with us, DataJack may pre-authorize a $1.00 charge to validate your Card. DataJack will bill you, on a monthly basis. Monthly charges will be automatically charged to your Card on record, as specified in any applicable recurring payment plan you enter with DataJack. You expressly agree that DataJack may charge your Card all amounts associated with your DataJack account. You will pay DataJack all outstanding balances when due. Accounts not paid in full by the due date are subject to suspension or termination by DataJack. To avoid service suspension or termination you must maintain valid Card information on your account. If your Card expires or the account is closed or suspended and you have not provided DataJack with valid replacement Card information, your account will be suspended or terminated. Before Service can be reactivated, you must pay DataJack all amounts due. You may also be required to pay a reasonable re-activation fee per account to cover DataJack's administrative costs associated with the termination.
You must notify DataJack in writing no later than thirty (30) days after receiving your Credit Card or bank account statement. If you fail to notify DataJack in writing of any disputes on any charges, such disputes will be deemed invalid. DataJack reserves the right to charge up to a $250
per charge back for process and handling of the disputed charges.
You acknowledge that DataJack Service may not be available in all areas and even within coverage areas service availability, signal strength, quality and network speeds may vary and may be lower than advertised or be insufficient for use of the Service.
We reserve the right to safeguard our network from abuse, excessive bandwidth consumption or any activity that compromises the performance of our network. We may limit throughput speeds, control the amount of data transferred, and suspend, modify or terminate service, without notice, if your usage adversely impacts our network or exceeds the monthly allowance of your data plan. We may monitor your compliance with the above but will not monitor the content of your transmissions except as otherwise expressly permitted or required by law.
The service may not be used in a manner that violates any law (including without limitation, copyright and intellectual property laws); or the Service Usage clause.
From time to time, DataJack (or its applicable suppliers or network providers) may perform maintenance on its network, at such times as DataJack or such suppliers or network providers may determine in their sole discretion. This may require DataJack to conduct either a planned or unplanned interruption of the Service. All such maintenance or service interruptions may occur without notice to you. DataJack will use commercially reasonable efforts to schedule maintenance outages so as to minimize the impact on its customers, but cannot guarantee that your Service will not be interrupted. You acknowledge and agree that DataJack shall not be responsible for any losses or damages suffered by you as a result of any Service interruptions due to maintenance outages. Except as otherwise provided in this Agreement, no refunds or credits will be made for any Service outages.
Limited Warranty Equipment.
DataJack warrants to you that the Equipment, when properly used with any Software or firmware supplied by DataJack, will be substantially free from material defects in material or workmanship, under normal use in compliance with DataJack's instructions, for a period of ninety (90) days from the date of purchase ("Limited Warranty")
. DataJack does not warrant that the Equipment or any associated Software will meet your requirements, or that the operation of the Equipment or Software will be uninterrupted or error-free. This Limited Warranty excludes any defects resulting from (a) normal wear and tear; (b) any defect that is (i) discovered by you during the warranty period but you do not notify or request a return merchandize authorization ("RMA")
number from DataJack, as required below, until after the end of the warranty period, (ii) caused by any accident, misuse, abuse, neglect, theft, vandalism, improper installation, handling or testing, or actual or attempted unauthorized repair or modification of the Equipment other than that which is expressly granted in writing by DataJack, (iii) caused by use of any software other than any Software supplied by DataJack, or by use of the Equipment other than in accordance with its documentation, or (iv) the result of electrostatic discharge, extremes in temperature, unusual physical stress, electrical surge, fire, water, flood, act of God or similar causes; (c) your failure to comply with DataJack's policies, Equipment documentation or other instructions provided by DataJack, or (d) any other cause beyond the reasonable control of DataJack, all as determined by DataJack in its sole discretion. DataJack may ship refurbished equipment.
Repair or Replacement.
Under the ninety (90) day Limited Warranty period applicable to any product purchased by you, DataJack, at its expense, will repair or (at its option) replace the Equipment, and will ship the repaired or replacement Equipment to you, if DataJack determines, in the exercise of its reasonable judgment, that the Equipment has a covered defect, provided that you first notify DataJack of any such defect, furnish DataJack with a proof of purchase, request an RMA number from DataJack, and return the Equipment, shipping charges prepaid, to DataJack under that RMA. If the defective device is not shipped within 15 days of receiving an RMA, you will be charged the current retail rate for the replacement equipment. If, upon reasonable examination of the returned Equipment, DataJack does not substantiate the defect claimed by you, or determines that the defect is not covered under this limited warranty, DataJack will not be required to repair or replace the Equipment, but may instead reship the Equipment to you, in which case you shall be responsible for paying DataJack’s usual charges for unpacking, testing, and repacking the Equipment for reshipment to you. You shall bear the risk of loss or damage in transit to any Equipment returned by you to DataJack, or any returned Equipment not found to be defective or covered under the Limited Warranty and reshipped by DataJack to you. Replaced Equipment shall be covered by the Limited Warranty for sixty (60) days after the date of shipment of such replacement Equipment. DataJack will replace Equipment pursuant to the foregoing warranty within thirty (30) days of being so notified. Any returned and replaced Equipment becomes the property of DataJack. Repair or replacement, in DataJack's discretion, of the Equipment is DataJack's only responsibility, and your exclusive remedy, for breach of any warranty regarding the Equipment, as applicable. This Limited Warranty is personal to you, and will terminate immediately upon the sale or transfer of the Equipment or expiration or termination of this Agreement.
No credit or adjustment will be made for interruptions or degradations of the Service. Equipment returns will be governed by the DataJack return policy which can be found at www.datajack.com/return-policy
and describes how DataJack may collect and use your personally identifiable and other information.
Ownership; No Licenses.
(i) The Service and Equipment, and any Software used to provide the Service; (ii) all Service information, documents and materials delivered to you by DataJack or located on DataJack's website (collectively "Information"); (iii) all names, service marks, trademarks, trade names, logos and domain names (collectively "Marks") of DataJack; and (iv) all other intellectual property rights in the data, schematics, layout, designs, specifications, firmware and software related to the Equipment, Service and/or the Software are and will remain the sole property of DataJack and nothing in this Agreement grants you the right or license to use any of such Software, Information, or Marks except for your nonexclusive use of the Software and Information in connection with your personal use of the Service and Equipment in accordance with this Agreement. You may not decompile, disassemble, reverse engineer or modify the Equipment or Service or any other product or service purchased from DataJack, or combine it with, or incorporate it in, other products without prior written authorization from DataJack.
DISCLAIMER OF REPRESENTATIONS AND WARRANTIES.
THE ONLY WARRANTIES BEING MADE BY DATAJACK WITH REGARD TO THE SERVICE AND EQUIPMENT ARE THE EXPRESS LIMITED WARRANTIES SET FORTH IN THIS AGREEMENT. DATAJACK AND ITS AFFILIATES, THE AGENTS AND SUPPLIERS OF EACH, AND ANY OF THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, SHAREHOLDERS, SERVICE PROVIDERS AND SUPPLIERS (COLLECTIVELY, THE "DATAJACK PARTIES") DISCLAIM ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, SATISFACTORY PERFORMANCE AND FITNESS FOR A PARTICULAR PURPOSE OR USE, AVAILABILITY, NON-INTERFERENCE WITH YOUR ENJOYMENT OF THE SERVICE OR EQUIPMENT, OR NON-INFRINGEMENT. ANY STATEMENTS MADE IN ANY PACKAGING, MANUALS OR OTHER DOCUMENTS NOT EXPRESSLY INCORPORATED HEREIN, OR BY ANY DATAJACK EMPLOYEES OR REPRESENTATIVES, ARE PROVIDED FOR INFORMATIONAL PURPOSES ONLY AND NOT AS REPRESENTATIONS OR WARRANTIES OF ANY KIND BY ANY DATAJACK PARTIES. DATAJACK DOES NOT AUTHORIZE ANYONE TO MAKE A WARRANTY OF ANY KIND ON DATAJACK'S BEHALF AND YOU SHOULD NOT RELY ON ANY SUCH STATEMENT. YOU ASSUME ALL RESPONSIBILITY AND RISK FOR USE OF THE SERVICE AND THE EQUIPMENT. THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY REASON. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE EXCLUSIONS IN THIS SECTION MAY NOT APPLY TO YOU IN WHOLE OR IN PART.
LIMITATION OF LIABILITY.
(A) IN NO EVENT SHALL ANY OF THE DATAJACK PARTIES BE LIABLE OR OBLIGATED IN CONNECTION WITH THIS AGREEMENT, UNDER ANY THEORY, WHETHER IN CONTRACT, TORT, NEGLIGENCE, PRIVACY, SECURITY, STRICT OR PRODUCT LIABILITY, BREACH OF WARRANTY, OR OTHER LEGAL OR EQUITABLE THEORY: (I) FOR ANY AMOUNTS (WHETHER SEPARATE OR CUMULATIVE) IN EXCESS OF THE AGGREGATE OF THE FEES PAID TO DATAJACK FOR THE APPLICABLE SERVICE AND EQUIPMENT HEREUNDER DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE OCCURRENCE GIVING RISE TO LIABILITY; (II) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICE, PRODUCTS, OR RIGHTS; (III) FOR ANY LOSS OR CORRUPTION OF DATA, DELAYED, DEGRADED OR INTERRUPTED USE OF THE SERVICE OR ACCESS TO THE INTERNET, INABILITY TO MAKE OR COMPLETE CALLS USING THE INTERNET PHONE SERVICE, OR DAMAGE TO ANY HARDWARE, SOFTWARE, OR THE SERVICE LOCATION; (IV) FOR ANY INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES AND/OR LOST PROFITS (INCLUDING WITHOUT LIMITATION LOSS OR INTERRUPTION OF USE, DATA, BUSINESS, REVENUES OR PROFITS), HOWEVER CAUSED, ARISING UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OF THE EQUIPMENT, SERVICE OR OTHER PRODUCTS OR SERVICES PROVIDED BY DATAJACK HEREUNDER, EVEN IF DATAJACK HAS BEEN ADVISED OF THE POSSIBILITY OR LIKELIHOOD OF SUCH DAMAGES; (V) FOR ANY LACK OR BREACHES OF SECURITY OF THE SERVICE OR IN THE STORAGE OR INTEGRITY OF YOUR DATA OR ANY USER'S DATA; OR (VI) FOR ANY DAMAGES ARISING FROM ANY DELAY OR FAILURE IN PERFORMANCE DUE TO EVENTS OR CAUSES OUTSIDE DATAJACK'S REASONABLE CONTROL.
(B) THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION SHALL APPLY WHETHER OR NOT DATAJACK WAS INFORMED OF THE LIKELIHOOD OF ANY PARTICULAR TYPE OF DAMAGES, AND EVEN IF ANY REMEDY FAILS OF ITS ESSENTIAL PURPOSE. IF YOU ARE DISSATISFIED WITH THE SERVICE OR EQUIPMENT OR IF YOU HAVE ANY OTHER DISPUTE WITH DATAJACK, OR CLAIM AGAINST DATAJACK, THEN YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICE AND ANY LIABILITY WILL BE LIMITED TO THE RECOVERY OF YOUR DIRECT DAMAGES, LIMITED BY THE LIMITATIONS OF LIABILITY CONTAINED HEREIN AND BY THE EXCLUSIONS SET FORTH IN THIS SECTION. THE LIMITATIONS AND EXCLUSIONS IN THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR OTHER MODIFICATIONS OF OR LIMITATIONS TO CERTAIN REMEDIES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU, IN WHOLE OR IN PART.
(C) YOU ACKNOWLEDGE AND AGREE THAT THE FOREGOING LIMITATIONS ARE AN ESSENTIAL ELEMENT OF THIS AGREEMENT BETWEEN YOU AND DATAJACK AND THAT, IN THE ABSENCE OF SUCH LIMITATIONS, DATAJACK WOULD NOT ENTER THIS AGREEMENT WITH YOU AND ANY ALTERNATIVE AGREEMENT BETWEEN YOU AND DATAJACK FOR THE PROVISION OF THE EQUIPMENT AND THE SERVICE WOULD CONTAIN TERMS SUBSTANTIALLY DIFFERENT THAN THOSE CONTAINED IN THIS AGREEMENT.
Complaint Resolution and Notices.
All complaints must be sent to DataJack Customer Care at firstname.lastname@example.org
or by calling 1.888.693.4522. DataJack may require you to describe the complaint in writing. Written notices to you from DataJack will be deemed given when sent to the email address specified on your most recent Order or Payment Confirmation. You are responsible for notifying DataJack of any changes in your email and/or mailing address. Written notice to DataJack will be effective when directed to DataJack's Customer Care Department and received at email@example.com. Except as provided in this Agreement, notices must be in writing to be effective. You also agree that all correspondence and notice sent to you by DataJack, including account statements, account status, payment and billing information, and changes to terms of service may be sent by DataJack electronically to the last email address provided by you.
You will defend, indemnify, and hold harmless the DataJack Parties against any and all claims, losses, damages, and liabilities arising from the use or misuse of the Service or Equipment or any breach of this Agreement by you or by any person you allow to use the Service or Equipment. You also agree to reimburse the DataJack Parties and pay each DataJack Party's reasonable attorneys' fees and costs related to defending such claims and related to enforcing this Agreement, including any such fees incurred in connection with any appeal. This section will survive termination or expiration of this Agreement for any reason.
Assignment and Successors in Interest.
All of the provisions of this Agreement will be binding upon, inure to the benefit of, and be enforceable against your respective successors and permitted assigns. Except as specifically stated herein, you may not assign or delegate this Agreement or any of your rights, interests, or obligations without the prior written consent of DataJack, which consent may be withheld in its sole discretion. Any such assignment without consent will be null, void and of no effect.
This Agreement may be amended from time to time and represents the entire agreement and understanding of you and DataJack regarding the subject matter of this Agreement and supersedes all other representations, whether electronic written, or verbal, regarding the subject matter contained herein. In the event this Agreement is inconsistent with any document incorporated herein by reference or any other agreement between you and DataJack, this Agreement will control unless DataJack has expressly stated or agreed otherwise. In the event that a court of competent jurisdiction determines, in a final non-appealable judgment, that any provision of this Agreement is invalid, illegal, or otherwise unenforceable, such provision will be deleted and the remainder of this Agreement will remain in full force and effect and shall be enforced as nearly as possible in accordance with the stated intention of the parties.
ARBITRATION; CHOICE OF LAW; STATUTE OF LIMITATIONS; JURY AND CLASS ACTION WAIVER. THIS AGREEMENT WILL BE GOVERNED BY THE LAWS OF THE STATE OF TEXAS WITHOUT REGARD TO CHOICE OF LAW PRINCIPLES. ALL DISPUTES ARISING UNDER THIS AGREEMENT (OTHER THAN YOUR FAILURE TO MAKE PAYMENTS IN ACCORDANCE WITH THIS AGREEMENT, ANY ACTION TO COLLECT AMOUNTS DUE TO DATAJACK UNDER THIS AGREEMENT, AND/OR ANY ACTIONS CONCERNING DATAJACK’S INTELLECTUAL PROPERTY RIGHTS, EACH OF WHICH MAY BE BROUGHT BY DATAJACK IN ANY COURT OF COMPETENT JURISDICTION) WILL BE SETTLED EXCLUSIVELY BY BINDING ARBITRATION USING THE COMMERCIAL RULES OF THE AMERICAN ARBITRATION ASSOCIATION ("AAA") THEN IN EFFECT. THE PLACE FOR ARBITRATION WILL BE IN DALLAS COUNTY, TEXAS. ONE (1) ARBITRATOR SELECTED IN ACCORDANCE WITH THE AAA RULES WHO HAS EXPERTISE IN TELECOMMUNICATIONS, E-COMMERCE AND LICENSING MATTERS WILL CONDUCT THE ARBITRATION. THE DECISIONS OF THE ARBITRATOR WILL BE BINDING AND CONCLUSIVE UPON ALL PARTIES INVOLVED AND JUDGMENT UPON ANY AWARD OF THE ARBITRATOR MAY BE ENTERED BY ANY COURT HAVING COMPETENT JURISDICTION. THIS PROVISION WILL BE SPECIFICALLY ENFORCEABLE IN ANY COURT OF COMPETENT JURISDICTION. THIS DUTY TO ARBITRATE AND THE PROVISIONS IN THIS SECTION WILL SURVIVE THE TERMINATION OR EXPIRATION OF THIS AGREEMENT FOR ANY REASON. THE ARBITRATOR WILL NOT HAVE ANY AUTHORITY TO AWARD ANY SPECIAL OR PUNITIVE DAMAGES OR ANY OTHER DAMAGES EXCEPT AS PERMITTED BY THIS AGREEMENT. YOU AND DATAJACK WAIVE ANY RIGHT TO TRIAL BY JURY OF ANY CLAIMS OR DISPUTES RELATING TO THIS AGREEMENT OR THE SERVICE OR EQUIPMENT. NEITHER PARTY SHALL, AND EACH PARTY WAIVES ANY RIGHT TO, PARTICIPATE IN A CLASS ACTION (INCLUDING ANY CLASS ARBITRATION), EITHER AS A CLASS REPRESENTATIVE OR A CLASS MEMBER, ACT AS A PRIVATE ATTORNEY GENERAL, OR JOIN OR CONSOLIDATE CLAIMS WITH CLAIMS OF ANY OTHER PERSON, UNLESS IN THE SOLE JUDGMENT OF DATAJACK, DATAJACK WISHES TO CONSOLIDATE THE LEGAL CONTROVERSY OF TWO OR MORE PARTIES IN ANY ARBITRATION PROCEEDING OR OTHER LEGAL ACTION. YOU AND DATAJACK AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO THE SERVICE OR THIS AGREEMENT MUST BE COMMENCED WITHIN TWO (2) YEARS AFTER THE CLAIM ARISES, OR THE CLAIM WILL BE PERMANENTLY BARRED. NOTHING IN THIS AGREEMENT WILL PREVENT DATAJACK FROM SEEKING CONSERVATORY, PROTECTIVE OR INJUNCTIVE RELIEF WITH RESPECT TO A VIOLATION OF ITS INTELLECTUAL PROPERTY RIGHTS IN ANY COURT OF COMPETENT JURISDICTION PENDING THE OUTCOME OF THE ARBITRATION, OR ENFORCEMENT OR RECOGNITION OF ANY AWARD OR ORDER IN ANY COURT OF COMPETENT JURISDICTION. SHOULD YOU FILE AN ACTION CONTRARY TO THIS PROVISION, DATAJACK MAY RECOVER FROM YOU ITS REASONABLE ATTORNEY FEES AND COSTS. YOU AND DATAJACK INITIALLY SHALL SHARE EQUALLY THE FEES AND EXPENSES OF THE ARBITRATION. HOWEVER, THE PREVAILING PARTY (IF APPLICABLE AND AS DETERMINED BY THE ARBITRATOR) SHALL BE ENTITLED TO RECOVER FROM THE NON-PREVAILING PARTY ALL SUCH FEES AND EXPENSES (INCLUDING WITHOUT LIMITATION REASONABLE ATTORNEYS’ FEES). THE FOREGOING TERMS NOTWITHSTANDING, DATAJACK MAY SEEK ANY INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION IN DALLAS, TEXAS NECESSARY TO PROTECT ITS RIGHTS PENDING THE COMPLETION OF ANY ARBITRATION PROCEEDING AND SHALL ALWAYS HAVE AND RETAIN THE RIGHT TO PURSUE LEGAL ACTION OF ANY KIND OR NATURE WHATSOEVER IN ANY APPROPRIATE JURISDICTION IN ORDER TO PROTECT ITS INTERESTS.
IN THE EVENT THAT ANY OF THE TERMS IN THIS SECTION (ARBITRATION) IS HELD TO BE IN CONFLICT WITH A MANDATORY PROVISION OF APPLICABLE LAW, THE CONFLICTING TERM OF THIS SECTION SHALL BE MODIFIED AUTOMATICALLY TO COMPLY WITH SUCH PROVISION AND THE REMAINDER OF THIS SECTION SHALL NOT BE AFFECTED.