myTrailer Inc.
TERMS AND CONDITIONS
Last Updated March 2024
These Terms and Conditions are an agreement between myTrailer Inc. DBA myTrailer Rental, inc. (the “Company”, “We”, “Us”, “Our”), a Delaware corporation whose principal address is 800 Walnut Creek Drive, Austin, TX 78753, and you the user (“You”, “Your”). These Terms and Conditions, subject to amendment from time to time, as well as the End-User Agreement and Privacy Policy (the “Agreements”) represent the entire understanding and agreement between You and the Company with respect to the website www.myTrailer.com (the “Site”) and the IOS Apple App site and Google Android site named myTrailer ( the “Application” and with the Site referred to collectively as the “Applications”) with respect to the subject matter of the same (the “Agreements”), and supersedes all other negotiations, understandings and representations (if any) made by and between you and the Company. These Terms and Conditions shall not be construed more strongly against the Company despite its responsibility for its preparation. Any updates to these Terms and Conditions will be posted on the Applications. BY PARTICIPATING IN OUR SERVICES, YOU AGREE, ACCEPT AND UNDERSTAND THE TERMS AND CONDITIONS SET FORTH BELOW. WE HAVE THE RIGHT TO REFUSE SERVICE BASED ON LOCAL, STATE OR FEDERAL LAWS RELATING TO ANY JURISDICTION. YOU HAVE ANY QUESTIONS, CONTACT OUR CUSTOMER SERVICE TEAM AT [email protected]. The Terms and Conditions describe when and the conditions under which You are allowed to access or use the Applications. Please read these carefully before visiting the Applications. If You do not agree to these Terms and Conditions, You may not visit, use, or access the Applications and You may not click to accept the Terms and Conditions when prompted on the Applications.
ABOUT THE COMPANY AND THE APPLICATIONS
Additional Definitions:
“Due” date is the last date of the rental period.
“Listing” means any page on the Services which displays a trailer for rent.
“Minimum Rental Age” is 25 years old.
“Rental” means a Renter processing a transaction on the Services to pay for the use of the Owner’s non-motorized trailer for a specific time period.
“Rental Period” means the amount of time a trailer is booked for rental from the Services.
“Trailer” is any towable vehicle with wheels with the intended use of carrying a load that can be towed behind an adequate vehicle equipped to tow.
“Tow” or “Operate” means any trailer pulled behind any vehicle or to utilize, use, load, unload, tamper with or otherwise in any capacity.
“Tow Vehicle” means any vehicle with adequate load ratings and tow equipment, such as, but not limited to, a hitch, ball, light plug socket, brake controller, and safety chain hooks to tow a bumper pull or gooseneck trailer.
The Applications
The Applications are a technology platform and marketplace providing (i) owners of Trailers with the ability to list them for a Rental (“Owners”); and (ii) individuals or entities that desire to obtain a Trailer for a Rental (“Renters”) to access available Listings when You contract the Company in this regard in accordance with these Terms and Conditions (the “Services”). The Company and its Applications are Not in any way a provider of trailers. The Company expressly represents that it is in no way promoting, guaranteeing, or providing a warranty for any of the Owners or the trailers offered by such Owners. While the Company endeavors to vet the Owners that become affiliated with it, in no way shall the Company be responsible in ensuring that the trailers rented by Owners shall be fit for any particular purpose. The Company is not an employer of the Owners nor are any Owners agents of the Company. There is no joint venture, partnership, or any kind of shared ownership between the Company and the Owners, and the Company is not involved in the representation of the Owners. At no point can the Company be held liable for any conduct, action or omission of the Owners or the Renters. The Company does not select or endorse any individual Owner to provide trailers to a Renter. The Company does not recommend one Owner over another, nor does it vouch for any of its Owners or their trailers and does not endorse any Owner and does not sanction statements that Owners or Renters make on the platform. Communications made via the App may NOT be held as confidential. The Company is not liable for the actions or omissions of any Owner renting a trailer to You nor is the Company liable for actions or omissions of any Renter. You are advised to exercise the same level of care and caution in the use of the Applications and the Services as you would in making any vehicular rental decision.
USER RESPONSIBILITIES
You, and You alone, are responsible for Your account and anything that happens while You are signed in to or using Your account. Your security is your responsibility. If You sign up for the Applications, You will create a personalized account which includes a unique username and a password to access the Applications and to receive messages from the Applications. You are responsible for maintaining the security of Your account, and You are fully responsible for all activities that occur under the account and any other actions taken in connection with the account. You agree to notify the Company immediately of any unauthorized use of Your account, or any other breaches of security regarding Your account. The Company will not be responsible for any liabilities, losses, or damages arising out of the unauthorized use of Your computer, mobile device, or other computing device and/or account. You represent and warrant that: (i) You have the authority to, and are of legal age in your jurisdiction, to bind yourself to this Agreement; (ii) Your use of the Services will be solely for purposes that are permitted by this Agreement; (iii) Your use of the Services will not infringe or misappropriate the intellectual property rights of any third party; and (iv) Your use of the Services will comply with all local, state and federal laws, rules, and regulations, and with all other Company policies and procedures. You are allowed to use the Services as long as You follow the rules and restrictions as set forth in the Agreements and as per the applicable law in the state in which you reside.
Preauthorization
When a Rental has been accepted by an Owner, Our credit card processor will verify that the customer’s account is valid and that sufficient funds are available to cover the transaction’s cost for the Rental Period. In addition, Owner shall have the right to request that a “Hold” be placed on your card in an amount not to exceed twenty percent of the transaction value as a security reserve. If a Trailer is returned without incident, any Hold placed will be released. A Hold can take several days to appear on your account.
Verification
The Company has the right, but not the obligation, to perform screenings and checks to verify identities or backgrounds of the Owner and Renter, including validation of driver’s licenses, driving and insurance history and or vehicle details. The Company does not commit to any screening processes, and it is the sole responsibility of the Owner to verify a Renter’s driver’s license, Tow Vehicle registration and insurance. The Company has the right in its sole discretion to cancel any Rental in the event that it can not verify a renter’s driver’s license.
Fees, Costs, Expenses, Penalties
Renter is responsible to pay for all fees, including but not limited to tolls, parking tickets, towing, impound, damages, cleaning, late fees, loss, abandonment, non-returned accessories, etc. Unpaid fees will be subject to an additional $50 administration fee by the Company per incident or citation and deducted from the Hold. Renter acknowledges that Renter waives Renter’s no right to contest fees assessed for any of the items stated above. No rental grace period will be offered to Renter beyond the Due date. If the Trailer is not returned by the return Due date, an additional 24-hour Rental amount will be withheld from the Hold unless an extension request has been submitted and pre-paid in advance. While presently there is no fee to list a Trailer as a Rental on the Service, the Company in its sole discretion reserves the right to do so. The Company charges the Owner a commission from the Rental revenue equal to fifteen (15) percent and a booking fee to the Renter equal to ten (10) percent.
Rental Fees
Owner is responsible for setting his or her desired Rental fees, accessory rental fees, cleaning fees and delivery fees. The Rental Period begins and ends at the booking start and end date and time unless there is a mutual agreement between the Owner and Renter to change the rental start and end time. If Renter is unable to return the Trailer by the Due date, Renter must process a request for an extension in the Applications. If such request is denied, Renter must return the Trailer on the date set forth in the original agreement. In the event a Trailer is returned late for any reason, renter shall be required to pay the daily Rental rate plus a late fee of $25 per day. Any verbal or written agreement to extend a Rental outside of the Services will not be supported by the Company in the collection of any Rental fees or other fees or the withholding of any deposit for damages, citations, tolls, or any other incident that arises during the extended period of the Rental.
Renter Reviews
Services will not be supported by the Company in the collection of any Rental fees or other fees or the withholding of any deposit for damages, citations, tolls, or any other incident that arises during the extended period of the Rental.
Renters shall have 14 days after the Rental period to submit a review of the Rental experience.
Cancellations
When a booking is made, Your credit card will be charged the full amount. Cancellation is free up to 48 before the Rental Period begins. Platform fees will not be refunded if a cancellation is made when less than 48 hours remain before the booking, which is a late cancelation. Whoever makes a late cancellation is responsible for paying platform fees. The Company reserves the right to cancel any booking, regardless of status at any time, including for the failure of Owner to be responsive or the failure to verify Renter’s driver’s license. If Owner does not appear at the agreed-upon time and place, such incident will be deemed an Owner cancellation. If Renter does not show up, it will be deemed a Renter cancellation.
Rental Procedures
Owner is responsible for completing a full inspection of the Trailer at the time of pickup and return. Owner must take unaltered digital photos of the Trailer at the time of pickup and return. Owner agrees to share inspection information and photos with the Company within 24 hours of the start and end of the Rental period. Weight specifications, especially weight capacity, is required to be expressly noted to Renter at the time of rental. Owner may reserve the right to utilize its own Rental requirements.
Insurance
Renters are required to provide proof of insurance with liability coverage that extend to the Trailer in the minimum amount of $60,000. In the event of an insurance claim, Renter’s insurance carrier will be primary carrier with the Owner’s insurance carrier secondary. Owners are responsible for verifying proof of insurance at the start of the Rental Period.
Liability
Renter accepts liability for the Trailer while the Trailer is in Renter’s possession. The Company is not liable for any verbal or written agreement, statement, or other means of communication between Renter and Owner. Renter and Owner acknowledge and agree that the Company is not obligated to give advice, review communication or monitor the conduct of Renter or Owner. The Company is not responsible for conducting background checks or ensuring any level of trust, credibility, or qualification of any Renter or Owner. Owner and Renter may terminate the rental agreement immediately upon the failure of the other party to abide by the terms of the rental agreement.
Damages, Security, Financial Responsibility
Any damages to the Trailer during the Rental period are the sole responsibility of Renter. Renter shall be liable for all damages that cannot be proven to have existed prior to the Rental. Renter shall keep the Trailer secure and maintain the Trailer at Renter’s expense. Renter agrees to return the Trailer in the same condition it was received. Renter shall pay Owner full compensation for replacement and/or repair of the Trailer. Renter acknowledges and agrees to this responsibility and agrees that the Hold can be used for this purpose.
Repossession
If Renter fails to return the Trailer, does not cooperate in scheduling pickup of the Trailer and/or does not pre-pay for the Trailer to be picked up and returned, a minimum of $7.00 per mile round trip repossession fee, with a minimum $500 repossession fee will be charged to Renter. Owner shall be solely responsible for the organizing of any logistics with respect to the repossession and any and all costs related thereto. The repossession fee may be set higher at the discretion of Owner at the time of Rental.
Advertising Policy
The Company reserves the right to use any and all public Trailer listing content, descriptions, specifications, images, and public profile details in any means of advertising on social media, blog, or on any website the Company chooses to advertise on to promote or advertise any Trailer listed on the Services. The Company reserves the right to choose which Listings to promote through outside advertising sources based on relevance, quality of content, quality, popularity, and location. By publishing your Trailer for rent on the Applications, you accept and agree to this advertising policy.
Additional Agreements
You agree to:
(a) As a Renter, undertake to pay for any Trailer rented through the Services directly through the Application hereafter. You shall not pay for the rental procured via the Services directly to the Owner;
(b) As a Renter, promptly provide materials or information as the Company may request to carry out the Services in a timely manner and ensure that such materials or information are complete and accurate in all material respects;
(c) As a Renter and an Owner, fully and irrevocably authorize the Company to act on your behalf and to undertake the required actions related to your Rental hereunder;
(d) As a Renter and Owner, comply with all applicable state and federal laws, rules, and Agreements in relation to the Services;
(e) As a Renter and Owner, agree and acknowledge that in no event shall the Company be able to or will endeavor to process any refunds or returns;
(f) As a Renter, hereby fully and irrevocably and unequivocally agree to permit the Company full authority to use your personal information required in order to provide You with the Services, which shall include but not be limited to permitting the Company to share your information with the Owners;
(g) As a Renter, hereby acknowledge and agree that once You have made payment towards a particular order for a Rental, in no event shall the Company be able to nor be obligated to stop the use of the Rental as part of the Services provided hereunder. To be clear, once payment is made by You, the Trailer ordered shall be deemed to be subject to Your use; and
(h) As a Renter and Owner, undertake to only use the Services through the Applications, and in no event shall attempt to circumvent the Applications in contacting or contracting with either the Owners or the Renters. Communications between an Owner and Renter after an agreement is in place through the Applications will not constitute circumvention. You further understand that the Company shall in no event be responsible for any transaction that You as a Renter have with an Owner or vice versa outside of the purview and scope of the Applications.
(i) As a Renter and Owner, if the Company’s performance of its obligations under this Agreement is prevented or delayed by any act or omission of You or Your agents, subcontractors, consultants, or employees, the Company shall not be deemed in breach of its obligations under this Agreement or otherwise liable for any costs, charges, or losses sustained or incurred by You, in each case, to the extent arising directly or indirectly from such prevention or delay.
(j) As a Renter, You will be responsible for the expenses associated with renting a Trailer through the Services. Upon creating an account and providing Your credit card details, We will charge the cost of your Rental.
(k) As a Renter, you acknowledge and agree that the price You pay for a Rental through the Applications may differ from the cost at other rental outlets.
Additional Owner Responsibilities and Indemnity
Owner agrees the Trailer will be well maintained, roadworthy and mechanically safe, equipped with a current license plate associated with the Trailer, and equipped with a manufacturer VIN sticker listing weight specifications to include weight capacity. If the weight capacity is in excess of 4,000 pounds, the trailer must have a title. Owner represents that the Trailer is in good cosmetic and mechanical condition; including but not limited to: tires, spare tires, axles, bearings, hubs, drums, brakes, leaf springs, shackle links, hangers, electrical wires, coupler, coupler lock, safety chains, breakaway box, breakaway cable, frame, breakaway battery, bed, structure, walls, lights, hinges, doors and steps. Owner agrees to indemnify and hold the Company and Renter harmless from any and all liability as to the mechanical, structural or cosmetic failure of any rented trailer, for communication or miscommunication of any instruction or misrepresentation of any Trailer and its specifications listed on the Services, and from any incident that arises during the Rental period. Owner acknowledges and agrees that once a booking is accepted by a Renter, Owner is legally obligated to complete the rental. If, for some reason, the Trailer is not available at the scheduled date and time of the rental, Owner must notify the Renter in advance and reschedule the Rental for a date and time that is convenient for both parties. In the event that no mutually convenient time exists to do so, Owner shall refund the Rental amount to Renter less any Application fees. Owner acknowledges and agrees to take pictures of the trailer at the start and end of the rental period.
Additional Renter Responsibilities and Indemnity
Renters must be 25 years of age to rent a Trailer, have a Company account, and a personal insurance policy that will cover the Trailer. Renter consents to identity verification and background checks at the Company’s sole discretion. Renter agrees that during the course of using the Services and renting from an Owner, the Company will not be held responsible or liable for the condition or usability of any Trailer. Renter acknowledges and agrees that Renter is required to inspect the Trailer prior to taking possession. Once possession occurs, Renter is deemed to accept the condition and usability of the trailer. Renter acknowledges and agrees to take pictures of the Trailer at the start and end of the rental period. If Renter discovers a defect or any issue with any part of the Trailer, including but not limited to lights, brakes, tires suspension, electrical, durability or safety of the trailer, Renter must report such defect or issue to Owner and allow up to 24 hours for repairs. Repairs and downtime up to 24 hours are not a consideration for a partial or full refund of the Rental or Service fees. Costs incurred during downtime, such as, hotel fees, meals, or any other cost will not be reimbursed under any circumstance. Renter agrees to use the Trailer only in a lawful manner. Renter agrees that during the rental period, Renter will abide by the specified weight limitations and will not overload any Trailer. Renter agrees not to haul hazardous materials or illegal substances that are prohibited by state or federal laws. Renter agrees to operate the trailer in a safe manner at all times. Renter agrees to indemnify and hold the Company harmless from any and all liability as to the mechanical, structural or cosmetic failure of any rented trailer, for communication or miscommunication of any instruction or misrepresentation of any rented trailer and its specifications listed on the Services, and for any consequences or penalties associated with any activity or use while in the possession of the Renter. Renter agrees that by booking the Rental and taking possession of the Trailer, Renter is accepting the condition and usability of the Trailer and is entirely responsible for full payment of the rental and any additional fee. There will be no consideration of reimbursement for the inability to use the Trailer, regardless of the circumstance, by the Renter for any reason after Renter has taken possession of the Trailer.
PROHIBITED SITE USES
You may not use, or encourage, promote, facilitate, instruct, or induce others to use, the Services for any activities that violate any law, statute, ordinance or regulation; or for any other illegal or fraudulent purpose or any purpose that is harmful to others; or to transmit, store, display, distribute or otherwise make available content that is illegal, fraudulent or harmful to others. The following are some examples of uses that are prohibited on the Applications by users, Providers or anyone who accesses or uses the Applications, or when using the Services: a. Seeking, offering, promoting, or endorsing services, content, or activities that: (i) are defamatory, illegal, profane, vulgar, threatening, unlawfully discriminatory, illegal, pornographic, obscene, or sexually explicit in nature; (ii) would violate the intellectual property rights, such as and including copyrights, of another person, entity, service, product, or website; (iii) would violate (a) Terms and Conditions, (b) other policies and Agreements, or (c) the terms of service of another website or any similar contractual obligations; (iv) regard the creation, publication, or distribution of “fake news”, content or similar content, which is, in the Company’s sole discretion, determined to be intended to mislead recipients for personal, financial, political or other gain or advantage; (v) regard or promote in any way any escort services, prostitution, or sexual acts; or (vi) are harassing toward another person based on the person’s inclusion in a protected class as defined by applicable law; (vii) is pornographic, discriminatory, or otherwise victimizes or intimidates an individual or group on the basis of religion, gender, sexual orientation, race, ethnicity, age, or disability; (viii) defames, harasses, abuses, threatens, or incites violence towards any individual or group; b. fraudulent or misleading uses or content, including: (i) fraudulently billing or attempting to fraudulently bill any user; (ii) impersonating any person or entity; (iii) falsely attributing statements to any Company representative; (iv) falsely stating or implying a relationship with the Company or with another company with whom you do not have a relationship; (v) allowing another person to use Your account; (vi) Making or demanding bribes or other forms of payments without the intention of providing services in exchange for the payment; (vii) duplicating or sharing accounts; (viii) selling, trading, or giving an account to another person; (ix) directly or indirectly, advertising or promoting another website, product, or service or soliciting other Providers for other websites, products, or services, including advertising on the Applications to recruit Providers and/or users to another website or company; c. Interfering or attempting to interfere with the proper operation of the Applications or Services, including by: (i) bypassing any measures that the Company may use to prevent or restrict access to the Applications, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Applications or the content therein; (ii) attempting to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Applications; (iii) using any robot, spider, scraper, or other automated means to access the Applications for any purpose without our express written permission; (iv) attempting to or interfering with or compromising the system integrity or security or deciphering any transmissions to or from the servers running the Applications;(v) collecting or harvesting any personally identifiable information, including account names, from the Applications; (vi) attempting to or imposing an unreasonable or disproportionately large load (as determined in the Company’s sole discretion) on the Application’s infrastructure; Introducing any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Applications that is designed to or known to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow You or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Applications or any software, firmware, hardware, computer system, or network of the App or any third party; (vii) accessing or attempting to access the Applications or Services by any means or technology other than the interface provided; or (viii) framing or linking to the Applications or Services except as permitted in writing; d. Conduct or actions that could jeopardize the integrity of or circumvent the Applications, Services or proprietary information, including: (i) attempting to, or actually reverse engineering, modifying, adapting, translating, preparing derivative works from, decompiling, interfering with the operation of, or otherwise attempting to derive source code from any part of the Applications or Services unless expressly permitted by applicable law or the Company; or (ii) accessing or using the Applications or Services to build a similar service or application, identify or solicit Application users; (ii) contains or installs any viruses, worms, malware, Trojan horses, or other content that is designed or intended to disrupt, damage, or limit the functioning of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any third party.
USE OF APPLICATIONS.
Your use is non-transferable. You agree that only you may use the Applications. Participation is subject to the Agreements, as well as policies and procedures that the Company may adopt or modify from time to time. Any failure to abide by the Agreements or any policies or procedures implemented by the Company, any conduct detrimental to the Applications, or any misrepresentation or fraudulent activities in connection with the Services, may result in termination of Your use of the Service, as well as any other rights or remedies available to the Company.
MODIFICATION OR TERMINATION OF THE SERVICE.
The Company reserves the right to modify these terms and conditions, condition of participation, or any other aspect of the Services, in whole or in part, at any time, with or without notice to you (except as otherwise specified herein).
THIRD PARTY PROCESSOR. The Company will use Stripe as a third-party payment processor to process any payments. When you process payments via a third-party payment processor, You shall separately read and agree to their User Agreement and comply with this Agreement and the business rules of such partner. The Company shall assume no responsibility for any loss or damage. By using the Services, Owner and Renter understand and agree that the Company is not responsible or liable for terms and conditions or limitations set by or monetary action taken by Stripe. This includes, but is not limited to refunds, service fees, fraudulent charges or any other fees imposed by Stripe. A chargeback occurs when the Renter disputes a charge on their credit card. In the event a chargeback is initiated, the Company will review it to determine if the chargeback was warranted. If not, the Company will dispute the chargeback on behalf of Owner. We reserve the right to delay, cancel, reverse (to the extent possible) or refuse to process, any submitted transaction, if: (i) required by law or regulations or in response to a subpoena, court order, or other government order or to enforce transaction limits; (ii) We suspect the transaction involves (or has a high risk of involvement in) money laundering, terrorist financing, fraud, or any other type of financial crime or illegal activity; (iii) We reasonably suspect that the transaction is erroneous; (iv) if We suspect the transaction relates to prohibited use as set forth in this agreement; or (v) We suspect that you have breached any terms of this agreement. In such instances, we are under no obligation to allow you to reinstate a transaction.
INTELLECTUAL PROPERTY
If You believe that material located on or linked to the Applications violates your copyright, please notify us in accordance with our Digital Millennium Copyright Act Policy. The Company respects the intellectual property rights of others and requests that our users do the same. Pursuant to 17 U.S.C. 512(i) of the United States Copyright Act, we will terminate a user’s access to and use of the Applications if, under appropriate circumstances, the user is determined in the Company’s sole discretion, to be a repeat infringer of the copyrights or other intellectual property rights of the Company or others. We may terminate access for users who are found repeatedly to provide or post protected third-party content without necessary rights and permissions. If You are a copyright owner or an agent of a copyright owner and believe, in good faith, that any materials provided on the Applications infringe upon Your copyrights, You may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) (“DMCA”) by sending a properly formatted take-down notice in writing to the Company designated copyright agent at [email protected] . If the Company takes action in response to an infringement notice, it will make a good faith attempt to contact the party that made such content available by means of the most recent email address, if any, provided by that party. Any DMCA infringement notice may be forwarded to the party that made the content available or to third parties. If You believe that Your user generated content that has been removed from the Applications is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content You submitted to the Company, You may send a properly formatted counter-notice to the Company copyright agent using the contact information set forth above. If a counter-notice is received by the Company copyright agent, the Company may send a copy of the counter-notice to the original complaining party informing such person that it may reinstate the removed content in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content will be reinstated on the Applications in 10 to 14 business days after receipt of the counter-notice. The Company retains all ownership of Our intellectual property, including Uur copyrights, patents, and trademarks. This Agreement does not transfer from the Company to You any Company or third-party intellectual property, and all right, title, and interest in and to such property will remain (as between the parties) solely with the Company. We reserve all rights that are not expressly granted to you under the Agreements. Specifically, the Applications and all other trademarks that appear, are displayed, or are used on the Applications or as part of the Services are registered or common law trademarks or service marks of the Company. These trademarks may not be copied, downloaded, reproduced, used, modified, or distributed in any way without prior written permission from the Company, except as an integral part of any authorized copy of the content.
LIMITATION ON LIABILITY AND DISCLAIMER OF WARRANTIES.
You agree that the Applications are solely a technology platform connecting a Renter to an Owner and vice versa, and their owner, agents, representatives, and employees will have no liability whatsoever for any injuries, losses, claims, damages or any special, exemplary, punitive, indirect, incidental or consequential damages of any kind, whether based in contract, tort, strict liability or otherwise, resulting from any use of the Services, any failure or delay by the Applications in connection with the Service, or the performance or non-performance of the Service. The Company shall have the right to choose its service partners in its sole and absolute discretion. In the event of a disruption in service from a partner, the Company shall have the right in its sole and absolute discretion to substitute that partner with another partner. Notwithstanding this disclaimer, if the Company is found liable for any loss or damage which arises out of, or is in any way connected with, any of the occurrences described in this paragraph, then its liability will in no event exceed, in total, the sum of $100.00. You agree to indemnify and hold harmless the Company from and against any and all claims and expenses, including attorneys’ fees, arising out of your use of the Applications, including but not limited to your violation of the Agreements. If you have a dispute with one or more users, You release the Company from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a California resident, you waive California Civil Code §1542, which says: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
NO WARRANTY.
The Company makes no warranty of any kind regarding the Services which are provided on an “as-is” and “as-available” basis. The Company expressly disclaims all warranties, including implied warranties of merchantability, fitness for a particular purpose, title, non-infringement, and those arising by statute or otherwise in law or from a course of dealing or usage of trade. The Company is not responsible or liable for any warranty, representation, or guarantee, express or implied, in fact or in law, relative to the Services, including without limitation, that the Services will be error-free, or as to the accuracy, completeness and timeliness of any content or information distributed with respect to the services. SOME STATES DO NOT ALLOW THE LIMITATION OF LIABILITY AND DISCLAIMER OF IMPLIED WARRANTIES, SO THE DISCLAIMERS AND LIMITATIONS ABOVE MAY NOT APPLY TO YOU.
ENTIRE AGREEMENT; SEVERABILITY.
The Agreements contain all of the terms of the Services, and no representations, inducements, promises or agreements concerning the Services not included in these Agreements shall be effective or enforceable. If any of the terms of this Agreement shall become invalid or unenforceable, the remaining terms shall remain in full force and effect.
GOVERNING LAW.
THIS AGREEMENT AND THE TERMS OF THE TELEMED SERVICE SHALL BE GOVERNED AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF TEXAS WITHOUT GIVING EFFECT TO THE CHOICE OF LAW PROVISIONS THEREOF.
ARBITRATION.
In the event of a dispute between you and the Company, you and the Company agree that a prompt and fair resolution, without the time and expense of formal court proceedings, would be in both parties mutual interests. ANY CLAIM OR CONTROVERSY ARISING OUT OF OR RELATING TO YOUR USE OF THE APPLICATIONS OR TO ANY ACT OR OMISSION FOR WHICH YOU MAY CONTEND shall be submitted to final and binding arbitration to be conducted in Travis County, Texas. MANDATORY ARBITRATION REPLACES THE RIGHT OF EITHER PARTY TO GO TO COURT AND DEMAND A JURY TRIAL. The party filing the arbitration must choose one of the following arbitration firms and follow its rules and procedures for initiating and pursuing an arbitration: American Arbitration Association, (https://www.adr.org) or JAMS (https://www.jamsadr.com). In the event that the selected firm cannot administer the arbitration, the party filing the arbitration will select the other firm. Each party will bear its own expenses, except that the arbitrator will be entitled to award a different allocation of costs and fees where the arbitrator determines that a filed claim is frivolous. THE ARBITRATOR SHALL NOT HAVE THE POWER TO AWARD DAMAGES IN CONNECTION WITH ANY DISPUTE IN EXCESS OF ACTUAL COMPENSATORY DAMAGES AND SHALL NOT MULTIPLY ACTUAL DAMAGES OR AWARD CONSEQUENTIAL, PUNITIVE OR EXEMPLARY DAMAGES, AND EACH PARTY IRREVOCABLY WAIVES ANY CLAIM THERETO. Any award rendered by the arbitrator will be final and binding upon each of the parties, and judgment thereon may be entered in any court having jurisdiction thereof. The Federal Arbitration Act will govern the interpretation and enforcement of this section. During the dependency of such arbitration and until final judgment thereon has been entered, these Terms and Conditions will remain in full force and effect unless otherwise terminated as provided hereunder. JUDGMENT UPON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED BY ANY STATE OR FEDERAL COURT HAVING JURISDICTION NEAREST TO Travis COUNTY, TEXAS. YOU SHALL NOT BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS IN ARBITRATION BY OR AGAINST OTHER CONSUMERS OR ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR MEMBER OF A CLASS OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. BOTH YOU AND THE SITE VOLUNTARILY AND KNOWINGLY WAIVE ANY RIGHT THEY HAVE TO A JURY TRIAL. If a provision of this clause is held to be invalid, the remainder of the clause will remain in full force and effect, and, to this end, the provisions of this clause are severable. In the event that any State or Federal court rules that this arbitration provision is defective in whole or part or permits an action to be filed in a State or Federal court then the parties agree to have their dispute heard before a court located nearest to Travis County, Texas. The parties also agree to have any such dispute heard before a Judge and waive any rights to a trial by jury THAT THE COMPANY IS LIABLE, INCLUDING BUT NOT LIMITED TO ANY CLAIM OR CONTROVERSY AS TO ARBITRABILITY.
ASSIGNMENT.
The Company may assign its rights and obligations pursuant to these Terms and Conditions without prior notice. You may not assign your rights or obligations pursuant to these Terms and Conditions.
COMMUNICATION BETWEEN US.
You understand that the Company may monitor, tape and/or record any conversation that may occur between us. However, the Company is not obligated to do so and it may choose not to do so. You authorize the Company to contact you at its discretion by using pre recorded messaging, predictive dialing devices, and electronic messaging including but not limited to SMS, Text, MMS, Chat, IM, and Email. If you choose not to be contacted by this method, please contact support at [email protected].
ANY PERSON WHO USES THE APPLICATIONS ACKNOWLEDGES AND AGREES THAT THEY HAVE READ AND UNDERSTAND THESE TERMS AND CONDITIONS ALONG WITH THE DISPUTE RESOLUTION AND ARBITRATION AGREEMENT, AND THEREFORE WILL BE BOUND BY THESE AGREEMENTS.