PLEASE REVIEW THIS TOU CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOU, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOU, YOU MAY NOT ACCESS OR USE THE SERVICES.
THIS TOU REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THE TOU, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOU (EACH, A “Claim”), AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 19 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you: (a) are over eighteen (18) years of age or of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOU; (c) are not a person barred from using the Services under the laws of any applicable jurisdiction; and (d) the name you use to register for the Services is your full, actual and legal name.
1. Provider Services. The Services enable you and other users to schedule and receive goods and services from motor vehicle sellers and service providers, and other third party providers ("Providers"), subject to acceptance by such Providers. TORQUE AFFAIR IS NOT THE PROVIDER AND IS NOT IN ANY WAY WHATSOEVER RESPONSIBLE OR LIABLE FOR THE GOODS AND SERVICES PROVIDED BY THE PROVIDERS (“Provider Services”).
3. Restrictions. You may not: (a) use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOU; (b) reverse engineer, disassemble, decompile or translate, or otherwise attempt to derive the source code, architectural framework or data records of, the Services; (c) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device; (d) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services or any product or service offered by Torque Affair; (e) rent, lease, lend, sell or sublicense the Services or otherwise provide access to the Services as part of a service bureau or similar fee-for-service purpose; (f) interfere with or disrupt the integrity or performance of the Services, or the content contained therein, including by disrupting the ability of any other person to use or enjoy the Services, or attempt to gain unauthorized access to the Services; or (g) remove, scrape, or obscure any content, including proprietary notice, that appears within the Services.
4. Ownership. Except for content you upload, Torque Affair, or its licensors or suppliers, own all rights, title and interest (including all intellectual property rights) in the Services, including to all content, information, data, data records, databases, text, software, music, sounds, photographs, images, graphics, videos, messages, scripts, tags and other materials accessible through the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. The Services are performed or licensed, not sold, to you for use only under the terms and conditions of this TOU. Torque Affair reserves all rights not expressly granted to you.
6. Feedback. You may provide Torque Affair with content and comments, including those concerning the Services, Providers, Provider Services or your evaluation and use thereof (collectively, “Feedback”). You hereby grant Torque Affair an exclusive, perpetual, irrevocable, royalty-free, fully paid-up, worldwide right and license to copy, modify, create derivative works from, publicly display, perform, disclose, distribute, license and sublicense, incorporate and otherwise use the Feedback (including all intellectual property rights therein), for any and all commercial and non-commercial purposes with no further notice or obligation of any kind to you.
7. Third Party Dealings. Your dealings with Providers, advertisers, and other third parties who market, sell, buy, or offer to sell or buy any goods or services on or through the Services, including payment for and delivery of such goods or services and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and the Provider, advertiser or other third party. You agree that Torque Affair shall not be liable for any damage or loss of any kind incurred as a result of any such dealings.
9. Fees and Subscriptions. You are solely responsible for any data, usage and other charges assessed by mobile, cable, internet or other communications services providers for your access to and use of the Services. Some features of the Services are free to use, but fees may apply for subscriptions to premium features and functionality. If there is a fee listed for the Services, or any version of the Services that enables the premium features, by accessing or using the Services, or any such premium features, you agree to pay the applicable fee. If you make such a purchase or any other in-app purchase in the Services, the applicable fee may be denominated in your local currency by the applicable app store (the “App Store”). The App Store collects the applicable fee from you on your device. You should consult the App Store to understand its sales terms and determine whether the fee includes all applicable taxes, currency exchange settlements and other charges. You are solely responsible for paying all such taxes, fees and other charges. Torque Affair relies on the App Store to collect fees and to report on the status of accounts. Your access to the Services or to premium features of the Services may be suspended or terminated if you do not make payment on time or in full. In-app purchases are managed by the App Store directly. Torque Affair does not have the ability to manage any aspect of your in-app purchases on your behalf, including initiating, canceling or refunding purchases. If you sign up for a subscription to premium features, your subscription will automatically renew at the conclusion of the term for the same period of time as the prior term, unless you turn off auto-renewal in the settings of the Services at least twenty-four (24) hours before the conclusion of the then-current term. Uninstalling the Services will not automatically cancel your subscription or turn off auto-renewal. You must cancel your subscription by turning off auto-renewal to end recurring charges within the Services settings. If you uninstall the Services without canceling your subscription or turning off auto-renewal, the recurring charges for your subscription will continue. Canceling a subscription or turning off auto-renewal will not entitle you to a refund of any fees already paid, and previously charged fees will not be pro-rated based upon cancellation. If you purchase your subscription as an in-app purchase within the Services, please consult the App Store for instructions on turning off auto-renewal. Cancellation is effective at the conclusion of the then-current term.
10. Indemnification. You shall indemnify and hold Torque Affair and its affiliates, and each of their officers, directors, employees, agents, partners and licensors (collectively, the “Torque Affair Parties”) harmless from and against any claim, demand, loss, damage, cost, liability and expense, including reasonable attorneys' fees, resulting from or arising out of: a) content that you provide on the Services; (b) your violation of this TOU, any law or regulation, or any rights (including intellectual property rights) of another party; or (c) your use of the Services.
11. DISCLAIMER OF WARRANTIES. YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TORQUE AFFAIR PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, MERCHANTABLE QUALITY, QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. THE TORQUE AFFAIR PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT: (a) THE SERVICES WILL MEET YOUR REQUIREMENTS; (b) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, VIRUES-FREE, SECURE OR ERROR-FREE; OR (c) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE. ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE TAKING OR OMITTING ANY ACTION.
12. LIMITATION OF LIABILITY. (a) THE TORQUE AFFAIR PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES; FOR LOST REVENUE, LOST PROFITS, COST OF REPLACEMENT OF GOODS OR SERVICES, LOSS OF TECHNOLOGY, GOODWILL, RIGHTS OR SERVICES, LOSS OF DATA OR INTERRUPTION OR LOSS OF USE OF SERVICES; OR FOR DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE TORQUE AFFAIR PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THE THIS AGREEMENT OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO TORQUE AFFAIR FOR ACCESS TO THE SERVICES WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE APPLICABLE CLAIM(S) AROSE.
(b) YOU EXPRESSLY ACKNOWLEDGE THAT THE TORQUE AFFAIR PARTIES DO NOT CONTROL OR MANAGE PROVIDERS AND ARE INDEPENDENT FROM THE TORQUE AFFAIR PARTIES. YOU AGREE THAT THE TORQUE AFFAIR PARTIES HAVE NO RESPONSBILITY OR LIABILITY WHATSOEVER FOR THE PROVIDER OR THE PROVIDER SERVICES, INCLUDING FOR ACTS OR OMISSIONS COMMITTED BY PROVIDER OR THEIR EMPLOYEES, AGENTS OR OTHER PERSONNEL PERFORMING PROVIDER SERVICES.
(c) CERTAIN LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY OR DISCLAIMER HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION OR DISCLAIMER WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION OR DISCLAIMER COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. Termination. Torque Affair may immediately terminate this TOU and any Services provided to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason (or no reason). In the event that you violate this TOU: (a) all rights granted to you under this TOU shall terminate immediately, with or without notice; (b) you must immediately uninstall and cease using the Services; and (c) Torque Affair, in its sole discretion, may remove and discard any content you submitted through the Services. Upon termination of this TOU, all rights granted to you under this TOU shall immediately terminate, but all other provisions shall survive termination.
14. Third-Party Components. The Services may include software or other components, including open source software, made available by third parties under license terms promulgated by the licensors of such components (“Third-Party Components”). Torque Affair is not the author or owner of Third-Party Components, and this TOU does not govern access to or use of Third-Party Components. Your use of such Third-Party Components are subject to the terms that come with such components.
15. Changes to Services. Torque Affair reserves the right to modify, suspend or discontinue the Services or any product or service to which it connects, with or without notice, and Torque Affair shall not be liable to you or to any third party for any such modification, suspension or discontinuance. Torque Affair may at its sole discretion from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services or related services (“Updates”). Torque Affair may develop Updates that require installation by you before you continue to access or use the Services or related services. Updates may also be automatically installed without providing any additional notice to you or receiving any additional consent from you. The manner in which Updates may be automatically downloaded and installed is determined by settings on your device and its operating system. Your use of any Updates is your agreement to any additional terms that come with such Updates.
16. Legal Compliance. You represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
17. U.S. Government Entities. This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services consists of “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. The Services is provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOU with respect to the Services, and any access to or use of the Services by the United States Government constitutes: (a) agreement by the United States Government that that the Services is “commercial computer software” and “commercial computer software documentation” as defined in this section; and (b) acceptance of the rights and obligations herein.
18. Governing Law. This TOU shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transaction Act (UCITA) are specifically excluded from application to this TOU.
19. BINDING ARBITRATION AND CLASS ACTION WAIVER. ALL CLAIMS (AS DEFINED IN THE PREAMBLE) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS AGREEMENT AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT’S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA’s rules are available at http://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA’s rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator on all matters relating to the Claim shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
WE EACH AGREE THAT ALL CLAIMS (AS DEFINED IN THE PREAMBLE) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
Notwithstanding anything to the contrary, Torque Affair may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect our confidential information or intellectual property rights, whether in aid of, pending or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 16.
If Torque Affair implements any material change to this Section 16, such change shall not apply to any claim for which you provided written notice to Torque Affair before the implementation of the change
20. GENERAL. This TOU constitutes the entire agreement between you and Torque Affair concerning your access to and use of the Services. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and Torque Affair with respect to such subject matter. For the purposes of this TOU, the words “such as,” “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation.” You may not assign or delegate any right or obligation under this TOU without the prior written consent of Torque Affair. The failure of Torque Affair to exercise or enforce any right or provision of this TOU shall not constitute a waiver of such right or provision. If any provision of this TOU is held to be invalid or unenforceable under applicable law, then such provision shall be construed, limited, modified or, if necessary, severed to the extent necessary to eliminate its invalidity or unenforceability, without in any way affecting the remaining parts of this TOU. Any prevention of or delay in performance by Torque Affair hereunder due to labor disputes, acts of god, governmental restrictions, failure of the Internet, enemy or hostile governmental action, fire or other casualty or other causes beyond its reasonable control shall excuse the performance of its obligations for a period equal to the duration of any such prevention or delay. The parties acknowledge that this TOU is concluded between you and Torque Affair only, and not with any Provider or App Store provider, and Provider and App Store provider is not responsible for the Services and the contents thereof. Provider and App Store provider has no obligation whatsoever to furnish any maintenance and support services with respect to the Services. Torque Affair, not Provider or App Store provider, is responsible for addressing any claims from you or any third party relating to the Services or your possession and/or use of the Services, including product liability claims, any claim that the Services fails to conform to any applicable legal or regulatory requirement and claims arising under consumer protection or similar legislation. If the applicable Services were provided through the Apple App Store, Apple and Apple’s subsidiaries are third-party beneficiaries of this TOU, and Apple shall have the right (and will be deemed to have accepted the right) to enforce this TOU against you as a third-party beneficiary hereof. Torque Affair, not Apple, shall be solely responsible for the investigation, defense, settlement and discharge of any intellectual property infringement claim attributable to the Services.
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