:Effective April 23, 2021
PLEASE READ THESE TERMS CAREFULLY. THESE TERMS REQUIRE UNITED STATES USERS TO ARBITRATE DISPUTES (SECTION 15) ON AN INDIVIDUAL BASIS, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE. IF YOU DO NOT AGREE TO ARBITRATION, OR WITH ANY OTHER TERM IN THESE TERMS, OR ARE UNDER EIGHTEEN (18) YEARS OR AGE OR A MINOR IN YOUR STATE OF RESIDENCE, YOU ARE PROHIBITED FROM USING OR ACCESSING THE FISKER PROPERTIES.
THE FISKER PRODUCTS AND SERVICES DESCRIBED ON THE FISKER PROPERTIES CONTAIN UNIQUELY AMERICAN SPECIFICATIONS AND EQUIPMENT AND MAY BE OFFERED ONLY IN THE CONTINENTAL U.S.A. PROMOTIONAL PROGRAMS, IF ANY, OFFERED ON THE FISKER PROPERTIES MAY ONLY BE AVAILABLE IN THE CONTINENTAL U.S.A. AND MAY BE LIMITED TO PARTICULAR STATES AS DESCRIBED BY THE TERMS OF SUCH PROGRAMS.
1. Your Right to Use the Fisker Properties and Fisker Content
The graphics, photographs, video, images, text, digitally downloadable files, trademarks, logos, slogans, and any other materials presented by Fisker on the Fisker Properties, and the compilation of the foregoing on the Fisker Properties (collectively, the “Fisker Content”), are the property of Fisker or its licensors and are protected in the U.S. and internationally under trademark, copyright, and other intellectual property laws. Fisker grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and use the Fisker Properties, including a compiled code copy of the Fisker Mobile Application on one mobile device owned or leased solely by you, solely for legitimate non-commercial purposes, and to temporarily download one copy of the Fisker Content for personal, non-commercial transitory viewing only. Fisker reserves all rights not expressly granted under these Terms. This license will automatically terminate if you violate any term of the Agreement and may otherwise be terminated by Fisker at any time. Upon terminating your viewing of the Fisker Content or upon the termination of this license, you must destroy any downloaded Fisker Content in your possession, whether in electronic or printed format.
2. Updates to the Terms, Fisker Properties, or Fisker Content
Fisker may update the Agreement at any time without notice and reserves the right to update the Fisker Properties and Fisker Content, including but not limited to vehicle specifications and pricing, at any time without incurring obligations. You agree to review your Agreement periodically to ensure that you are familiar with the most recent version. When we change the Terms or Additional Terms in a material manner, we will update the ‘last modified’ date at the top of the Terms or Additional Terms, as applicable, and notify you that material changes have been made to these Terms or the Additional Terms, as applicable. Your continued access or use of any Fisker Property following the posting and/or distribution of a revised, updated, or changed version of the Terms or Additional Terms will mean that you agree to the revised, updated, and/or changed Terms or Additional Terms.
To access certain features of the Fisker Properties, you may need to register for an account on the Fisker Properties (an “Account”). You agree to: (a) not share your Account or transfer any part of it to anyone else; (b) provide accurate, current and complete information during the registration process and keep your Account up-to-date; and (c) keep your password secure and confidential. We reserve the right to refuse registration of, or cancel passwords that we deem inappropriate. You agree to notify us immediately of any unauthorized use of your Account. You are responsible for anything that happens through your Account prior to closing it or reporting misuse to us.
4. Third-Parties Links and Technology
Fisker has not reviewed all of the sites linked to or from the Fisker Properties and is not responsible for the contents of any linked sites or for any third-party technology, services, software, or applications included on the Fisker Properties. Such products, services, and applications must be purchased and/or obtained directly from such third parties pursuant to the applicable third-party terms. The inclusion of any third-party links or third-party technology, services, software, or applications on the Fisker Properties does not imply endorsement by Fisker of the linked site(s) or third-party offerings. If you decide to use any such third-party website or offerings, you do so at your own risk.
5. User Content
A Your Responsibility for Your Content
By using the Fisker Properties, including any features that facilitate the sharing of content on the Fisker Properties or to or from third-party sites, you understand that you are solely responsible for any graphics, photographs, video, images, text, and other information and content, or hyperlinks to any of the foregoing, that you provide, post, upload, publish, transmit or distribute on or through the Fisker Properties for access or use by other Users of the Fisker Properties (“Your Content”). Fisker does not own Your Content, and you, not Fisker, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of Your Content. You represent and warrant that (a) Your Content and Fisker’s use thereof will not violate any federal, state or local law, regulation ordinance, court order, or other legal process (“Applicable Law”), or infringe any rights of any third party, including but not limited to any intellectual property rights and/or privacy rights; and (b) Your Content is accurate and truthful. You acknowledge and agree that Fisker has no obligation to post or store Your Content. As such, we recommend that you take measures to preserve copies of any content you post through the Fisker Properties.
B Our Right to Use Your Content
C Our Right to Remove Your Content
We have the absolute right to remove or disable access to any content on the Fisker Properties as needed to (a) operate, secure and improve the Fisker Properties (including without limitation for fraud prevention, risk assessment, investigation, and customer support purposes); (b) ensure Users’ compliance with the Agreement (or any Fisker policy), Applicable Law, or an order or requirement of a court, law enforcement, or other administrative agency or governmental body; or (c) as otherwise set forth in this Agreement. If we become aware of any content posted on the Fisker Properties that allegedly violates this Agreement, we may investigate the allegation and determine in our sole discretion whether to act, but have no liability or responsibility to you to do so. You agree to cooperate with us in good faith, as we may reasonably request, in any investigation we choose to undertake with respect to Your Content.
D No Endorsement by Fisker
Fisker acts as a passive conduit for the content provided by Users of the Fisker Properties and has no obligation to screen or monitor such content. Content is provided at Users’ discretion and does not in any way constitute our endorsement. We use commercially reasonable efforts to monitor and remove Users who violate this Agreement, but have no obligation to monitor Users and disclaim any representation, warranty or undertaking in relation to the truthfulness, accuracy or reliability of the content provided by Users.
E Infringing Content
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe in good faith that materials available through the Fisker Properties infringe your copyright, you (or your Influencer) may send us a written notice by mail or e-mail, requesting that we remove such material or block access to it. If you believe in good faith that someone has wrongly filed a notice of copyright infringement against you, the DMCA permits you to send Fisker a counter-notice. Notices and counter-notices must meet the then-current statutory requirements imposed by the DMCA. See http://www.copyright.gov/ for details. Notices and counter-notices must be sent in writing to Fisker’s DMCA agent as follows: By mail to Legal Department, 1888 Rosecrans Avenue, Manhattan Beach, CA 90266; or by e-mail to email@example.com. Once this procedure has been followed, we will respond to valid and properly substantiated complaints by making all reasonable efforts to remove manifestly illegal content within a reasonable time. We may also at its sole discretion limit access to the Fisker Properties and/or terminate the accounts of Users who infringe any intellectual property rights of others.
6. Acceptable Use of the Fisker Properties
Your permission to use the Fisker Properties is contingent on your compliance with all Applicable Law, in addition to the following rules:
A Prohibited Activities
You shall not use, encourage, promote, facilitate or instruct others to use the Fisker Properties for any illegal, harmful, or offensive use, including:
B Prohibited Content
You shall not transmit, store, display, distribute or otherwise make available any content through the Fisker Properties that:
7. DISCLAIMERS AND LIMITATIONS OF LIABILITY
PLEASE READ THIS SECTION CAREFULLY, AS IT LIMITS FISKER’S LIABILITY TO YOU FOR ISSUES THAT MAY ARISE IN CONNECTION WITH YOUR USE OF THE FISKER PROPERTIES. IF YOU DO NOT UNDERSTAND THE TERMS IN THIS SECTION OR ELSEWHERE IN THESE TERMS, PLEASE CONSULT A LAWYER FOR CLARIFICATION BEFORE ACCESSING OR USING THE FISKER PROPERTIES. EACH OF THE SUBSECTIONS BELOW ONLY APPLIES UP TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW. NOTHING HEREIN IS INTENDED TO LIMIT ANY RIGHTS YOU MAY HAVE, WHICH MAY NOT BE LAWFULLY LIMITED.
THE FISKER PROPERTIES ARE PROVIDED ON AN ‘AS IS’ BASIS AND COULD INCLUDE TECHNICAL, TYPOGRAPHICAL, PHOTOGRAPHIC, OR OTHER ERRORS. FISKER MAKES NO WARRANTIES, EXPRESSED OR IMPLIED, REGARDING THE FISKER PROPERTIES, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY OR OTHER VIOLATION OF RIGHTS, OR WITH RESPECT TO THE ACCURACY, CURRENCY, OR COMPLETENESS OF THE FISKER PROPERTIES.
SPECIFICALLY, FISKER MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES REGARDING:
You will indemnify, defend and hold Fisker, its parents, affiliates, subsidiaries, officers, employees, and website contractors, and each of their officers, employees, and agents harmless from and against all the liabilities, claims, damages, and expenses (including reasonable attorneys' fees and costs), arising out of your use of the Fisker Properties, your breach or alleged breach of any of the Agreement, or your breach or alleged violation of the patent, copyright, trademark, proprietary or other rights of third parties with respect to Your Content.
9. Privacy and Security
A User Data
B De-Identified or Anonymized Data
Fisker may collect, analyze and use De-Identified Data and/or aggregate data to (a) analyze, improve, market or develop the products and services or new products and services; (b) train predictive models; (c) conduct research, and; (d) inform our marketing and advertising campaigns. “De-Identified Data” means any data, including but not limited to User Data, usage data or other data generated from Users’ use of the Fisker Properties, from which all personal information, including direct and indirect identifiers, has been removed or obscured so that the remaining information does not reasonably identify an individual, and for which Fisker has implemented technical safeguards and business processes to prohibit the reidentification of such data. For clarity and without limitation, De-Identified Data will not be deemed “User Data,” and nothing in your Agreement will limit Fisker’s right, both during and after the term of the Agreement, to use, store, transmit, modify, copy, display, sublicense and create derivative works from De-Identified Data.
Fisker cares about the integrity and security of User Data. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use User Data for improper purposes. You acknowledge that you provide User Data at your own risk.
A General Notifications
You consent to our using the e-mail address you provide in your Account to send you notices related to the applicable feature (e.g., a vehicle reservation), including any notices required by law, in lieu of communication by other means such as postal mail. We may also use your e-mail address to send you other messages, such as special offers or newsletters related to our vehicles or services. If you do not want to receive such e-mail messages, you may unsubscribe as directed in the applicable communication. Opting out may prevent you from receiving e-mail messages regarding updates, improvements, or offers.
B Text Messaging Program
Additionally, we may offer you the chance to enroll to receive recurring SMS/text messages, such as messages asking what you need help with or updates about Fisker (the “Text Messaging Program”). By consenting to the Text Messaging Program, you agree to receive SMS/text messages to your mobile phone number provided. You certify that your mobile number provided is true and accurate and that you are authorized to enroll the designated mobile number to receive such text messages. You acknowledge and agree that messages may be sent using an automatic telephone dialing system and that standard message and data rates apply. The Text Messaging Program may not be available on all carriers or compatible with all mobile phone models. We are not responsible for any delays upon sending or receiving text messages and can change the Text Messaging Program at any time. To unsubscribe from text messages at any time, text STOP, END, CANCEL, UNSUBSCRIBE or QUIT to any text message you receive through the Text Messaging Program. You consent that following such a request to unsubscribe, you may receive one final text message confirming your request. You can also unsubscribe (or, after unsubscribing, resubscribe), or obtain help by contacting us here. Please keep in mind that if you opt-out of receiving text message alerts, we may not be able to contact you with important messages regarding the Fisker Properties. However, if there is an emergency or Account question, we will make every attempt to contact you in other ways, such as by e-mail.
11. Suggestions and Feedback
We welcome and encourage suggestions for improvements and other feedback related to the Fisker Properties (including but not limited to any Fisker products or services) (“Feedback”). You may submit Feedback through the “Contact” section of the Fisker Properties or by other means of communication. Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us an irrevocable, non-exclusive, royalty-free, perpetual, worldwide, assignable, sublicensable, transferable license to use, modify, prepare derivative works of, publish, distribute and sublicense the Feedback. You irrevocably waive and cause to be waived, against us or our Users, any claims and assertions of any moral rights contained in such Feedback.
12. Additional Terms for the Fisker Mobile Application
To use the Fisker Mobile Application, you must have a mobile device compatible with the Fisker Mobile Application. Fisker does not warrant that the Fisker Mobile Application will be compatible with your mobile device. You may use mobile data in connection with the Fisker Mobile Application and may incur additional charges from your wireless provider for these services. You agree that you are solely responsible for any such charges.
You acknowledge that we may, from time to time, issue upgraded versions of the Fisker Mobile Application, and may automatically electronically upgrade the version of the Fisker Mobile Application that you are using on your mobile device. You consent to such automatic upgrading on your mobile device and agree that these Terms will apply to all such upgrades. Any third-party code that may be incorporated in the Fisker Mobile Application is covered by the applicable open source or third-party license EULA, if any, authorizing the use of such code.
If the Fisker Mobile Application is being acquired on behalf of the United States Government, then the following provision applies: The Fisker Mobile Application will be deemed to be “commercial computer software” and “commercial computer software documentation,” respectively, pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, reproduction, release, performance, display, or disclosure of the Fisker Mobile Application and Fisker Content by the U.S. Government will be governed solely by these Terms and is prohibited except to the extent expressly permitted by these Terms. The Fisker Mobile Application originates in the United States and is subject to United States export laws and regulations. The Fisker Mobile Application may not be exported or re-exported to certain countries or those persons or entities prohibited from receiving exports from the United States. In addition, the Fisker Mobile Application may be subject to the import and export laws of other countries. You agree to comply with all United States and foreign laws related to the use of the Fisker Mobile Application, Fisker Properties, and Fisker Content.
Fisker Mobile Applications from Apple App Store
The following applies to any Fisker Mobile Applications you acquire from the Apple App Store (“Apple-Sourced Software”): You acknowledge and agree that these Terms are solely between you and Fisker, not Apple, Inc. (“Apple”) and that Apple has no responsibility for the Apple-Sourced Software or content thereof. Your use of the Apple-Sourced Software must comply with the App Store Terms of Service. You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple-Sourced Software. In the event of any failure of the Apple-Sourced Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Sourced Software to you; to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Sourced Software, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be solely governed by these Terms and any law applicable to Fisker as provider of the software.
You acknowledge that Apple is not responsible for addressing any claims of you or any third party relating to the Apple-Sourced Software or your possession and/or use of the Apple-Sourced Software, including, but not limited to: (a) product liability claims; (b) any claim that the Apple-Sourced Software fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; and all such claims are governed solely by these Terms and any law applicable to Fisker as provider of the software. You acknowledge that, in the event of any third-party claim that the Apple-Sourced Software or your possession and use of that Apple-Sourced Software infringes that third party’s intellectual property rights, Fisker, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms. You and Fisker acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms as relates to your license of the Apple-Sourced Software, and that, upon your acceptance of the terms and conditions of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms as relates to your license of the Apple-Sourced Software against you as a third-party beneficiary thereof.
Fisker Mobile Applications from Google Play Store.
The following applies to any Fisker Mobile Applications you acquire from the Google Play Store (“Google-Sourced Software”): (a) you acknowledge that the Agreement is between you and Fisker only, and not with Google, Inc. (“Google”); (b) your use of Google-Sourced Software must comply with Google’s then-current Google Play Store Terms of Service; (c) Google is only a provider of the Google Play Store where you obtained the Google-Sourced Software; (d) Fisker, and not Google, is solely responsible for its Google-Sourced Software; (e) Google has no obligation or liability to you with respect to Google-Sourced Software or the Agreement; and (f) you acknowledge and agree that Google is a third-party beneficiary to the Agreement as it relates to Fisker’s Google-Sourced Software.
13. Information and Complaints
If you have a question or complaint regarding the Fisker Properties or Fisker Content, please send an e-mail to firstname.lastname@example.org. You may also contact Fisker by phone or mail at the contact information provided on the Fisker Properties. Please note that e-mail communications will not necessarily be secure; accordingly, you should not include credit card information or other sensitive information in your e-mail correspondence with Fisker. California residents may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by mail at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
14. Governing Law
These Terms are governed by the laws of the State of California, U.S.A., without regard to its conflict of laws provisions. The state courts of California and federal courts sitting in the Central District of California have exclusive jurisdiction to determine any dispute arising under or relating to these Terms.
15. Dispute Resolution
PLEASE READ THIS PROVISION CAREFULLY. IT INCLUDES AN AGREEMENT TO MANDATORY ARBITRATION FOR USERS IN THE UNITED STATES, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY DISPUTE RELATED TO YOUR USE OF ANY OF THE SITES TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEED IN COURT. THIS PROVISION ALSO INCLUDES A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION. THIS AGREEMENT ALSO INCLUDES A JURY WAIVER.
A Initial Dispute Resolution
We are available by e-mail at email@example.com to address any concerns you may have regarding your use of the Fisker Properties. Most concerns may be quickly resolved in this manner. You agree to use best efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
B Agreement to Binding Arbitration
If we do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated, then either you or we may initiate binding arbitration. All claims arising out of or relating to the Agreement (including its formation, performance and breach), the scope of this arbitration clause, the parties’ relationship with each other and/or your use of the Fisker Properties shall be finally settled by binding arbitration administered on a confidential basis by the American Arbitration Association ("AAA"), in accordance with the AAA Arbitration Rules and Procedures, as modified herein, and excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the AAA Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Agreement, including, but not limited to, any claim that all or any part of the Agreement is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of this Agreement shall be subject to the Federal Arbitration Act. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250), and the claim is found to be non-frivolous, we will pay the additional cost. You will not be required to pay fees and costs incurred by us if you do not prevail in arbitration.
You understand that, absent this mandatory provision, you would have the right to sue in court and have a jury trial. You further understand that the right to discovery and appeal, among others, may be more limited in arbitration than in court.
C Class Action and Class Arbitration Waiver
You and we each further agree that any arbitration shall be conducted in our respective individual capacities only and not as a class action, and you and we each expressly waive our respective right to file a class action or seek relief on a class basis.
D Dispute Resolution for United Kingdom and European Union Residents
Sections 15.B and 15.C do not apply to Users who are residents of the United Kingdom or European Union. Such Users agree that all claims arising out of or relating to the Agreement (including its formation, performance and breach), the parties’ relationship with each other and/or your use of the Fisker Properties shall be conducted under and subject to local requirements, and if available, any alternative dispute resolution process the parties may agree to participate in.
The Agreement operates to the fullest extent permissible by law. If Fisker fails to act with respect to your breach or anyone else's breach on any occasion, Fisker is not waiving its right to act with respect to future or similar breaches. If any provision of the Agreement is unlawful, void, or for any reason unenforceable, then that provision is deemed severable from the Agreement and will not affect the validity and enforceability of any remaining provisions of the Agreement. This Agreement contains the entire understanding between Fisker and you relating to the subject matter herein and supersedes all prior oral or written agreements between us. You may not assign or transfer your rights and benefits under this Agreement without our prior written consent, but we may assign or transfer this Agreement without restriction. Nothing in this Agreement will be deemed to confer any third-party rights or benefits, save that our corporate affiliates are deemed express third-party beneficiaries of this Agreement.