TERMS OF SERVICE / END USER LICENSE AGREEMENT
Welcome to Towbook! This Terms of Service and End User License Agreement ("Agreement") constitutes a valid and binding agreement between Extric LLC, DBA Towbook (together with its affiliates, successors and assigns "Company," "we," or "us") and you ("Client," "you," or "your"). This Agreement explains the terms by which you may use our online and/or mobile services, website, and software provided by or in connection with the service (collectively the "Services").
By accessing or using the Services, you signify that you have read, understood, and agree to be bound by this terms herein. If you do not agree, you may not use the Services. You may only access and use the Services in accordance with this Agreement. You will adhere to all laws, rules, and regulations applicable to your use of the Services.
You represent to us that you are lawfully able to enter into contracts. You must be at least 18 years of age (or the age of legal majority in your jurisdiction if different than 18) to be eligible to use the Services. Any use or access to the Services by anyone under 13 is strictly prohibited and in violation of this Agreement. In certain instances, Company may require you to provide proof of identity to create your account, or to access or use the Services, and you acknowledge and agree that you may be denied access or use of the Services if you refuse to provide such proof. This Agreement applies to all visitors, users, and others who access the Services ("Users").
a. This Agreement governs your access and use of the Services, and any information that is displayed or provided therein. Company provides a wide range of administrative and management Services for the towing industry. By accessing and/or using the Services, you are indicating your acceptance of this Agreement, which thereby becomes a binding contract between you and Towbook, and you agree to be bound by all terms and conditions herein. Towbook’s acceptance is expressly conditioned upon your assent to all the terms and conditions of this Agreement, to the exclusion of all other terms.
i. Subject to the terms and conditions of this Agreement, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Services as permitted by the features of the Services. Company reserves all rights not expressly granted herein in the Services and the Company Content (as defined below). Company may terminate this license at any time for any reason or no reason.
ii. You acknowledge and agree that the Services are licensed solely for your own business or personal use and you may not use the Services for any other purposes, without prior written authorization from Company. You agree to not grant access to any third party for any purpose whatsoever without the prior written consent of Company; (b) make the Services, in whole or in part, available to any other person, entity or business; (c) sell, sublicense, lease, permit, transfer, copy, reverse engineer, decompile or disassemble the Services, in whole or in part, or otherwise attempt to discover the source code to the software used in the Services; (d) remove, circumvent, disable, damage or otherwise interfere with security-related features of the Services, features that prevent or restrict use or copying of any content accessible through the Services, or features that enforce limitations on use of the Services; (e) remove any proprietary notices from the software of elsewhere on the Services; or (d) modify, alter, integrate, combine the Services or associated software with any other software or services not provided or approved by us. You have and will obtain no rights to the Services except for the limited rights to use the Services expressly granted by this Agreement. Any attempt by you to transfer any of the rights, duties or obligations hereunder, except as expressly provided for in this Agreement, is void. Company reserves all rights not expressly granted under this Agreement
iii. You acknowledge that Company may from time to time issue upgraded versions of the Services, and may automatically electronically upgrade the version of the Services that you are using. You consent to such automatic upgrading, and agree that the terms and conditions of this Agreement will apply to all such upgrades.
i. In order to use the Services, you will be required to create an account and provide accurate, current and complete information in connection with your use of the Services ("Account"). You agree to maintain and promptly update your Account information as necessary to maintain its accuracy. Company reserves the right to suspend or terminate access to and use of the Services, or any portion thereof, on the basis of inaccurate or incomplete Account information.
ii. Your Account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Company Account on behalf of a company, organization, or other entity, then (a) "you" includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to this Agreement, and that you agree to this Agreement on the entity’s behalf.
iii. You are solely responsible for all activity that occurs when the Services are accessed through your Account, and you must keep your account password secure. You must notify Company immediately of any breach of security or unauthorized use of your account. Company will not be liable for any losses or damages arising from your failure to protect your password or Account information and/or caused by any unauthorized use of your Account.
iv. You may control your Account and how you interact with the Services by changing the settings in your Account. By setting up an Account, you consent to our using your email address to send you Services-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Services and special offers. If you do not want to receive such email messages, you may opt out or change your preferences in your Account settings page. Opting out may prevent you from receiving email messages regarding updates, improvements, or offers.
d. Services Rules
i. You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Services in any medium, including without limitation by any automated or non-automated "scraping"; (ii) using any automated system, including without limitation "robots," "spiders," "offline readers," etc., to access the Services; (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Services; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Services; (vii) collecting or harvesting any personally identifiable information, including account names, from the Services; (viii) using the Services for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, stealing or assuming and person’s identity (whether a real identity or nickname or alias), conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Services; (xi) accessing any content on the Services through any technology or means other than those provided or authorized by the Services; or (xii) bypassing the measures we may use to prevent or restrict access to the Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content therein. Furthermore, you may not use the Services to develop, generate, transmit or store information that: (A) infringes any third party’s intellectual property or other proprietary right; (B) is defamatory, harmful, abusive, obscene or hateful; (C) in any way obstructs or otherwise interferes with the normal performance of another person’s use of the Services, (D) performs any unsolicited commercial communication not permitted by applicable law; and (E) is harassment or a violation of privacy or threatens other people or groups of people.
ii. The Services contain confidential and trade secret information owned or licensed by Company, and you agree to take reasonable steps at all times to protect and maintain the confidentiality of such information.
iii. We may, without prior notice, change the Services; stop providing the Services or features of the Services, to you or to Users generally; or create usage limits for the Services. We may permanently or temporarily terminate or suspend your access to the Services without notice and liability for any reason, including if in our sole determination you violate any provision of this Agreement, or for no reason. Upon termination for any reason or no reason, you continue to be bound by this Agreement.
e. Availability of Services. Company will use commercially reasonable efforts to make the Services available pursuant to this Agreement except for (a) planned downtime; (b) emergency downtime; and (c) any unavailability caused by circumstances beyond our reasonable control. Company reserves the right to modify the Services from time to time and makes no guarantees as to the continuous availability of the Services or of any specific feature(s) or functionality(ies) of the Services.
a. The Services and all materials therein or transferred thereby, including, without limitation, software, images, text, graphics, illustrations, logos, patents, trademarks, service marks, copyrights, photographs, audio, videos, and music (the "Company Content"), and all intellectual property rights related thereto, are the exclusive property of Company and its licensors. Except as explicitly provided herein, nothing in this Agreement shall be deemed to create a license in or under any such intellectual property rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by this Agreement is strictly prohibited. This Agreement does not provide you with title or ownership of any Services or Company Content, but only a limited right to use the same solely upon the terms expressly set forth in this Agreement. For the purpose of clarity, nothing provided under this Agreement is to be considered a "work for hire" and Company does not convey, transfer or assign to you any right, title and interest it may have now or in the future acquire, including but not limited to all intellectual property rights.
b. Client materials. You will own and maintain ownership of all of your materials and data ("Client Materials"). We do not claim any ownership of the Client Materials that you submit, post, or display through the Services.
i. Subject to the terms and conditions of this Agreement, You grant Company a worldwide, non-exclusive, limited term license to access, use, process, copy, distribute, perform, export and display Client Materials, only as reasonably necessary (a) to provide, maintain and improve the Services; (b) to prevent or address service, security, support or technical issues; (c) as required by law; and (d) as expressly permitted in writing by You.
ii. Client represents and warrants that it has secured all rights in and to Client Materials from its customers, users, etc. as may be necessary to grant this license.
iii. The Client Materials that you submit may be modified or adapted for purposes of transmission, display, or distribution over computer networks or any media formats, in order to conform to any requirements or limitations in working with such networks, services, devices or media. You retain any and all ownership rights to the Client Materials that you submit and are responsible for protecting those rights. We reserve the right at all times to remove or refuse distribution of any Client Materials on or through our Services.
b. Please note that any payment terms presented to you in the process of using or signing up for Services are deemed part of this Agreement. Company uses a third-party payment processor (the "Payment Processor") to bill you through a payment account linked to your Account. The processing of payments will be subject to the terms, conditions and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for errors by the Payment Processor. By utilizing the Services, you agree to pay us, through the Payment Processor, in accordance with the applicable payment terms. Company reserves the right to change its prices and to offer discounts and temporary promotions. You agree that it is your responsibility to maintain a valid, non-expired credit card on file with us while engaging in fee-based activities on our Services. You agree that if you do not maintain a valid, non-expired card on file with us during any billing attempt, you may be subject to interest and penalties. You irrevocably and expressly authorize Company to withhold any monies and/or debit any monies from any account that you have identified to Company for any chargebacks, fees, costs, deductions, adjustments and any other amounts owed to Company.
c. Fees are stated exclusive of any taxes, levies, duties, or similar governmental assessments of any nature, including, for example, value-added, sales, use or withholding taxes, assessable by any jurisdiction (collectively, "Taxes"). You will be responsible for paying all Taxes associated with Your purchases, except for those taxes based on Company’s net income.
7. Representations and Warranties
a. You represent and warrant that: (i) You have the power, right and authority to enter into this Agreement, and are capable of forming a binding contract: (ii) you will use the Services for lawful purposes only and in accordance with this Agreement and all applicable laws, regulations and policies, (iii)you own or have sufficient rights in and to the Client Materials you submit through the Services to grant the licenses set forth in this Agreement with respect to such content to Company, that any use by Company of such Client Materials as contemplated in this Agreement will not infringe on the rights of any third party or violate any applicable laws or regulations, and that such content shall not (a) violate any laws or regulations or any rights of any third parties, including but not limited to, such violations as infringement or misappropriation of any copyright, patent, trademark, trade dress, trade secret, music, image or other proprietary or property right, false advertising, unfair competition, defamation, invasion of privacy or publicity rights, moral or otherwise, or rights of celebrity, or any other right of any person or entity; (b) contain any material that is unlawful, fraudulent, threatening, defamatory, obscene, profane or hateful or (c) contain any disabling codes or instructions, or any viruses, worms, Trojan horses or other contaminants.
b. Company represents and warrants that: (i) the Services shall materially perform as set forth in any descriptions or specifications provided by Company to you, and (ii) the Services will not infringe the intellectual property rights of third parties.
a. IF YOU ARE DISSATISFIED WITH THE SERVICES, OR ANY MATERIALS, OR PRODUCTS THEREIN, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING THE SERVICES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS OR EMPLOYEES, BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, whether a claim for any such liability or damages is premised upon breach of contract, breach of warranty, negligence, strict liability, or any other theory of liability, even if Company has been apprised of the possibility or likelihood of such damages occurring.
b. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. You acknowledge and agree that the fees and other charges which Company is charging under this Agreement do not include any consideration for assumption by Company of the risk of your indirect, consequential or incidental damages or of unlimited direct damages. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER OR $100.00, WHICHEVER IS GREATER.
c. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
d. The Services are controlled and operated from facilities in the United States. Company makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Services are solely directed to individuals, companies, or other entities located in the United States.
d. Expenses and Attorneys’ Fees. In the event any action is brought to enforce any provision of the Agreement or to declare a breach of the Agreement, the prevailing party shall be entitled to recover, in addition to any other amounts awarded, reasonable legal and other related costs and expenses, including attorney’s fees, incurred thereby.
a. Either party may terminate the Agreement upon written notice to the other party if the other party materially breaches the Agreement and such breach is not cured within thirty (30) days after the non-breaching party provides notice of the breach.
b. We have the right to deny access to, and to suspend or terminate your access to, the Services, or to any features or portions of such, and to remove and discard any Client Materials you have submitted, at any time and for any reason, including for any violation by you of this Agreement. In the event that we suspend or terminate your access to and/or use of the Services, you will continue to be bound by the Terms that were in effect as of the date of your suspension or termination.
13. Confidential Information
a. Each party ("Disclosing Party") may disclose "Confidential Information" to the other party ("Receiving Party") in connection with this Agreement, which is anything that reasonably should be understood to be confidential given the nature of the information and the circumstances of disclosure. Notwithstanding the above, Confidential Information does not include information that (a) is or becomes generally available to the public without breach of any obligation owed to the Disclosing Party; (b) was known to the Receiving Party prior to its disclosure by the Disclosing Party without breach of any obligation owed to the Disclosing Party; (c) is received from a third party without breach of any obligation owed to the Disclosing Party; or (d) was independently developed by the Receiving Party.
b. The Receiving Party will (a) take at least reasonable measures to prevent the unauthorized disclosure or use of Confidential Information, and limit access to those employees, affiliates and contractors who need to know such information in connection with this Agreement; and (b) not use or disclose any Confidential Information of the Disclosing Party for any purpose outside the scope of this Agreement.
c. The Receiving Party may access or disclose Confidential Information of the Disclosing Party if it is required by law; provided, however, that the Receiving Party gives the Disclosing Party prior notice of the compelled access or disclosure (to the extent legally permitted) and reasonable assistance, at the Disclosing Party's cost, if the Disclosing Party wishes to contest the access or disclosure.
14. DMCA Notice
a. We respect the intellectual property rights of others, and we prohibit the uploading, posting, transmitting, sharing, or otherwise making available any material that violates another party's intellectual property rights. When we receive proper notification of alleged copyright infringement, we may promptly remove or disable access to any allegedly infringing material and may terminate any Account of any repeat infringer, in accordance with the Digital Millennium Copyright Act ("DMCA"). If you believe that your own copyrighted work is accessible on the Services or any service in violation of your copyright, then
b. You may provide our designated agent with a written communication as set forth in the DMCA, 17 U.S.C. Sec. 512(c)(3) that contains substantially the following information:
● Identify in sufficient detail the copyrighted work or intellectual property that you claim has been infringed, so that we can locate the material.
● Provide the electronic or physical signature of the owner of the copyright or a person authorized to act on the owner's behalf.
● Include a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law.
● Include a statement by you that the information contained in your notice is accurate and that you attest under the penalty of perjury that you are the copyright owner or that you are authorized to act on the copyright owner's behalf.
c. Include your name, mailing address, telephone number, and email address. You may submit your notification of Alleged Copyright Infringement by sending a letter to our designated agent by mail to:
a. Independent Contractor. The parties to the Agreement are independent contractors and nothing in the Agreement shall be deemed to make either party an agent, employee, or partner of the other party. Neither party shall have any authority to bind, commit, or otherwise obligate the other party in any manner whatsoever.
i. Interpretation. Section headings are for reference only, and shall not be construed as substantive parts of this Agreement. Each capitalized term used in this Agreement (including any schedule or exhibit of this Agreement) shall have the meaning attributed to it in any part of this Agreement (including any such schedules or exhibits).
j. Survival. You acknowledge and agree that all indemnification, confidentiality, intellectual property, governing law, dispute resolution, enforceability/injunctive relief, limitation of liability and other clauses including those provisions which by their terms contemplate survival shall survive the termination or expiration of this Agreement regardless of the cause of such termination.
k. Force Majeure. Neither party shall be liable to the other party for any delay or failure of said party to perform its obligations hereunder (except for payment obligations) if such delay or failure arises from any cause or causes beyond the reasonable control of such party. Such causes shall include, but are not limited to, acts of God, floods, fires, loss of electricity or other utilities, or delays by either party in providing required resources or support or performing any other requirements hereunder.
This Agreement was last updated on April 30, 2018.