ROADWAREZ TERMS OF SERVICE
Effective Date: July 01, 2018
Welcome to the RoadwareZ Platform.
BY ACCESSING OR USING THE PLATFORM YOU ARE INDICATING THAT YOU HAVE READ AND UNDERSTAND THE TERMS, AND THAT YOU AGREE TO COMPLY WITH AND BE LEGALLY BOUND BY THE TERMS.
IF YOU DO NOT AGREE TO THE TERMS, YOU MAY NOT ACCESS OR USE THE PLATFORM OR SERVICES.
1. ABOUT THE TERMS
2. IMPORTANT INFORMATION ABOUT THE Platform
4. FEES AND PAYMENT TERMS
5. USER CONDUCT GUIDELINES
6. INTELLECTUAL PROPERTY OWNERSHIP
7. LINKS TO THIRD PARTY SITES
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
9. GOVERNING LAW & DISPUTE RESOLUTION
1. ABOUT THE TERMS
1.1 Key Terms
• “App” means any and all downloadable applications (including, any mobile or tablet applications) owned or operated by RoadwareZ through which access to RoadwareZ’s Services are available. References to the “App” include any and all related features, functionality, tools, and content.
• “Contacts” means the individuals you designate in order to allow the App to share your location and other information.
• “Platform” means, individually and collectively, the App, Products, Services, and Websites including any related services and promotions, and any software and technology used to provide any of the foregoing.
• “Products” means the RoadwareZ branded wearable IoT technology that can be synced with the App, including without limitation the SmartVest.
• “Services” means any and all traffic signaling and geolocation mapping and tracking services, and related services and promotions, provided by RoadwareZ, including support services.
• “User” means any person who accesses or uses the Platform in any manner. References to “access” and/or “use” of the Platform (and any variations thereof) include the acts of accessing or browsing the Platform, and accessing or using the Services.
• “Website” means any and all websites owned or operated by RoadwareZ (including the website currently located at www.roadwarez.com), through which access to RoadwareZ’s Services are available. References to the “Website” include any and all related features, functionality, tools, and content.
• “Your Content” refers to any content or information that is provided or made available or caused to be made available by you.
1.2 Platform Rules and Supplemental Terms
• IMPORTANT INFORMATION ABOUT THE FUNCTIONAL LIMITATIONS OF THE PLATFORM AND/OR THE SERVICES;
• YOUR OBLIGATION TO COMPLY WITH ALL APPLICABLE LAWS AND REGULATIONS;
• LIMITATIONS OF OUR LIABILITY TO YOU; AND
• A REQUIREMENT THAT YOU PURSUE CLAIMS OR SEEK RELIEF AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, RATHER THAN AS A PARTICIPANT IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
YOUR ACCESS TO AND USE OF THE PLATFORM AND SERVICES IS CONDITIONED ON YOUR ACCEPTANCE OF AND COMPLIANCE WITH THESE TERMS.
1.3 Amendment of Terms
RoadwareZ reserves the right, in its sole discretion, to amend the Terms, at any time and without prior notice, including to change, modify, add to, update or remove terms and conditions (collectively “amend” or “update”). If we choose to amend the Terms, we will update the Effective Date at the top of the Terms and post the updated version. We may also, at our option, choose to notify you by e-mail or another means. By continuing to use the Platform after we have posted an updated version of the Terms or otherwise notified you of an update, you are affirming that you agree to be bound by the amended Terms. This provision is subject to a few limitations in the “Dispute Resolution” section below. If the amended Terms are not acceptable to you, your only recourse is to stop using the Platform.
No other modification, amendment, supplement of or to the Terms will be binding on RoadwareZ unless it is in writing and signed by an authorized representative of RoadwareZ.
1.4 Consequences of Non-Compliance
Your failure to comply with the Terms may result in the suspension or termination of your account and/or access to the Platform, and may subject you to civil and criminal penalties.
2. IMPORTANT INFORMATION ABOUT THE PLATFORM
2.1 License to Use
Subject to your compliance with the Terms, RoadwareZ grants you a limited non-exclusive, non-transferable, non-assignable and non-sublicensable license to access and use the Platform and Services, including the right to download and install a copy of the App on each mobile device that you own or control, for your own personal use only, and not for use for any business purpose or commercial activity. This license is granted for the sole purpose of enabling you to use and enjoy the benefit of the Platform as provided by RoadwareZ, in the manner permitted by the Terms.
2.2 Not an Emergency Service. The Platform and the Services provided therein are not a substitute for 911 and do not constitute an emergency response service. RoadwareZ encourages you to reach out to any and all appropriate emergency services, including but not limited to your local police department, fire department, animal control, and/or poison control center as the situation may warrant. The App is intended to contact personally-known third parties only, and RoadwareZ is not liable for any damages caused by the insufficiency or lack of response by any official emergency service.
2.3 Set-Up and Operating Requirements
After you have downloaded the App, you may enter the contact information of the Contacts that you would like to receive GPS tracking information and emergency notifications sent on your behalf by the App. Such contact information includes name, telephone number and mail address, you also might connect with your Google or Facebook account.
In order to use the Services, you must:
• have internet access (e.g., WiFi or 3G /4G with a data plan);
• download the App on your smartphone or tablet;
• register for a RoadwareZ account (as set forth in more detail below in the “Accounts” section below);
provide and maintain complete, accurate and up-to-date account information, including contact information for your Contacts.
A Contact’s phone number will not be called or texted if:
• calls to the Contact’s country are not supported by RoadwareZ; or
• the Contact has blocked App alerts or otherwise declined consent to be contacted.
If any of the above requirements are not met, you will not be able to use some or all of the Services.
2.4 Service Limitations
In addition to the set-up and operating requirements, there are certain other circumstances that may limit the availability or effectiveness of the Services.
• Service Area – The Platform is currently configured for use in the United States only, and is not intended for use outside of the United States.
• Service Interruptions – The Services can be interrupted for any reason that disrupts internet access or GPS capabilities, including in the event of:
o electrical power outages
o natural disasters
o electronic interference
o an outage affecting the data transport service
o failure of originating or terminating access lines
o network congestion and/or reduced routing speed RoadwareZ’s network or another network (for example, due to spikes in call volume in the wake of local or national disasters), causing failed calls, busy signals or unexpected answering wait times (which may be longer than emergency calls placed via traditional telephone networks)
o compatibility issues
o equipment failures relating to your equipment (e.g., your mobile phone) or RoadwareZ’s equipment, including, hardware or software failures or misconfiguration affecting RoadwareZ, its offices, data centers, and/or any of its service providers.
YOU AFFIRM THAT YOU HAVE READ THE FOREGOING AND ACKNOWLEDGE THAT:
• ROADWAREZ DOES NOT AND CANNOT GUARANTEE THAT THE PLATFORM WILL BE CONTINUOUS OR ERROR-FREE. FOR EXAMPLE, THE PLATFORM MAY NOT BE AVAILABLE OUTSIDE OF THE SERVICE AREA OR UNDER CIRCUMSTANCES SET FORTH ABOVE.
• IF YOUR MOBILE OR DATA PLAN SERVICES OR ACCESS TO THE INTERNET OR OUR PLATFORM IS/ARE SUSPENDED, CANCELLED OR TERMINATED (E.G., AS A RESULT OF BILLING ISSUES OR OTHER BREACH), YOU MAY NOT BE ABLE TO USE SOME OR ALL OF THE PLATFORM.
• YOU ARE EXCLUSIVELY RESPONSIBLE FOR YOUR USE OF THE PLATFORM. ABUSE OF THE SERVICES MAY SUBJECT YOU TO CIVIL AND CRIMINAL FINES AND PENALTIES.
2.6 Modifications and Updates to the Platform and Services
RoadwareZ reserves the right, in its sole discretion, to modify or discontinue offering the Platform and/or Services, in whole or in part, including any Product, or any features, functionality, tools or content thereof, at any time, for any reason or no reason, with or without notice to you.
We may from time to time develop and provide updates for the App, which may include upgrades, bug fixes, patches and other error corrections and/or new features, functionality, tools or content (collectively, “Updates”). Updates may also modify or delete features, functionality, tools or content in their entirety. Based on your mobile device settings, when your mobile device is connected to the internet either: (a) the Updates will automatically download and install; or (b) you may receive notice of or be prompted to download and install available Updates. Please promptly download and install all Updates. If you do not, portions of the App may not properly operate. All Updates will be deemed part of the App and be subject to all terms and conditions of the Terms.
You agree that RoadwareZ has no obligation to provide any Updates or to continue to provide or enable any particular features, functionality, tools or content, and will not be liable with respect to any such modifications, discontinuance or deletions.
2.7 International Users
The Platform is controlled and operated within the United States and is not intended for use outside of the United States. You are hereby prohibited from accessing or using the Platform from any territory where the Platform or any of the features, functionality, tools, content thereof, is illegal. If you choose to access the Platform from a location outside the United States, you do so at your own risk and you are solely responsible for compliance with applicable laws, rules and regulations, including export laws and any regulations and local laws regarding online conduct and content.
3.1 Account Registration
While certain areas of the Platform are publicly available, you must register for a user account before you are able to use any of the Services. You may register to create an account directly via the App[, or through certain third-party social networking websites, as further described in this section.]
3.2 Account Set-Up
Your account and account profile page will be created based upon the information you provide to us [or that we obtain via a third-party professional or social networking website (a “social media site”), as described below.]
You agree to provide complete, accurate and up-to-date information during the registration process and to update such information as necessary to ensure that it remains complete, accurate and up-to-date.
When you create your account, you will be asked to create a username and password, which you will be solely responsible for safeguarding. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your RoadwareZ account or any other account that you may connect to your RoadwareZ account. You agree not to disclose your username or password to any third party, and you agree to immediately notify RoadwareZ of any unauthorized use of your account. You further acknowledge and agree that you will be solely responsible for any activities or actions on or through your account, whether or not you have authorized such activities or actions. RoadwareZ cannot and will not be liable for any loss or damage arising from your failure to comply with the above requirements.
[In addition to registering directly through our Website or App, you may also be able to register for an account through certain social media sites by linking your account with the social media site account (or, “social media account”). You can do this by either (i) providing your social media account login information to RoadwareZ or (ii) allowing RoadwareZ to access your social media account, as permitted under the applicable terms and conditions that govern your use of the social media account. You represent that you are entitled to disclose your social media account login information to RoadwareZ and/or grant RoadwareZ access to your social media account for the purposes described herein, without breach by you of the terms and conditions that govern your use of the applicable social media site and without obligating RoadwareZ to pay any fees or making RoadwareZ subject to any usage limitations imposed by such social media site providers.
By granting RoadwareZ access to any social media accounts, you authorize RoadwareZ to access, make available and store any information and content, including profile photos, stored in your social media account, to be made available on your account profile page on the Platform. Depending on the social media account you choose and subject to the privacy settings that you have set in such social media account, personally identifiable information that you post to your social media account may become available on and through your account with RoadwareZ. All such information and content, if any, will be considered to be Your Content for purposes of the Terms. RoadwareZ makes no effort to review any of your information or content accessed from such social media sites for any purpose, including for accuracy, legality or non-infringement and RoadwareZ is not responsible for any such information or content.
Please note that if a social media account or associated service becomes unavailable or RoadwareZ’s access to such social media account is terminated by the social media site provider, the information and content accessed from your social media account may no longer be available on or through your account with us.
You have the ability to disable the connection between your account with us and your social media accounts, at any time, by accessing the “Settings” section of the App. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SOCIAL MEDIA SITE PROVIDER ASSOCIATED WITH YOUR SOCIAL MEDIA ACCOUNT IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SOCIAL MEDIA SITE PROVIDER.]
3.3 Account Suspension and Cancellation
You may cancel your account at any time.
If RoadwareZ has suspended your account due to your actual or suspected breach of the Terms, such suspension will continue until the suspected breach is cured or otherwise resolved to RoadwareZ’s reasonable satisfaction.
We may, in our discretion, without liability to you and without limiting our other remedies, with or without prior notice and at any time, decide to (i) limit, suspend, deactivate or cancel your account and take technical and legal steps to prevent you from using our Platform and Services at any time for any reason.
If your account is deactivated or cancelled, RoadwareZ will have the right, but not the obligation to delete your information.
4. FEES AND PAYMENT TERMS
You agree to pay the fee for the monthly subscription fee for your subscription at the rates in effect when the charges are incurred, including any applicable taxes. Any change in the subscription fee will go into effect for the next billing period after we provide notice of the change.
4.2 Renewal; Cancellation. Your subscription will automatically renew each month, unless you cancel your subscription through your subscription page before the end of the current month. The cancellation will take effect the day after the last day of the current subscription period, and you will thereafter be unable to access the Services. Your account will be charged for renewal within twenty-four (24) hours prior to the end of the current month unless cancelled beforehand. You may manage your subscription under your account settings after purchase.
4.3 Fee Changes. RoadwareZ may change the price for the subscriptions from time to time, and will communicate any price changes to you in advance and, if applicable, how to accept those changes. Price changes for subscriptions will take effect at the start of the next month following the date of the price change. As permitted by local law, you accept the new price by continuing to use the App after the price change takes effect. If you do not agree with the price changes, you have the right to reject the change by unsubscribing from the App prior to the price change going into effect. Therefore, please read any such notification of price changes carefully.
4.4 Payment/ Credit Cards
4.5 [Free Trial Offers
If you receive a free trial offer for a specific time period, you will not be charged during the period of the free trial, but the subscription fee will be automatically charged to the credit card associated with your account for the subsequent period the day after your free trial period has ended, in advance, in accordance with the terms stated above. Thereafter, you will be charged at monthly intervals until you decide to cancel. Please make a note of when your free trial will expire as you may not receive additional notice prior to the automatic charge if you do not cancel before the free trial period expires. Free trials are limited to one per person. If you attempt to register for a second free trial offer, RoadwareZ will automatically charge your credit card in accordance with the “Subscriptions” terms stated above. If you do not wish to pay the applicable fees for a subscription, you should cancel your account before the free trial period ends and not complete any subsequent registration for a subscription.]
4.6 [No Refunds
Unless RoadwareZ agrees or states otherwise in writing, all fees and charges are nonrefundable.]
4.7 Third Party Charges and Mobile Alerts
You are solely responsible for any fees or charges incurred to access the Platform through an internet access provider or other third party, including without limitation data charges incurred if you are not connected to WiFi access, charges to receive SMS messages or other mobile access, which may be billed to you or deducted from your prepaid balance by your mobile provider. You agree that RoadwareZ is not liable in any way for any third party charges.
5. USER CONDUCT GUIDELINES
Any time you access or use the Platform, you are required to comply with our User conduct guidelines, as set forth below.
You agree that you will access and use the Platform and Services for your personal use only.
You are not authorized to access or use the Platform:
• to impersonate any person or entity, or falsify or otherwise misrepresent your identity, credentials, affiliations or intentions;
• to collect, store or use any information from or about another User, other than to provide aid to such User or as otherwise authorized and intended by such User;
• to “stalk” or harass any other User;
• to distribute unsolicited commercial or bulk electronic communications (or, “spam”), chain letters or “pyramid” schemes;
• for political campaigning, recruiting votes or soliciting donations or other support for legislative or other initiatives;
• to systematically retrieve information or content to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
• if you are not able to form legally binding contracts (for example, if you are under 18, and do not have the consent of your parent or guardian);
• if you are a person barred from receiving services under the laws of the United States or other applicable jurisdiction; or
• for any other purposes that are not expressly permitted by the Terms.
Further, you may not:
• access, copy, distribute, share, publish, use or store, or prepare derivative works from any Platform content that belongs to RoadwareZ, another User or to a third party, including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of the person or entity party holding the rights to license such use;
• circumvent our systems, policies, determinations as to your account status, including by attempting to access or use the Platform if your account has been suspended or cancelled or you have otherwise been temporarily or permanently prohibited or blocked from using the Platform;
• access, search, collect information from, or otherwise interact with the Platform by “scraping,” “crawling” or “spidering” the Platform, by the use of any software, device, script or robot, or by any other means (automated or otherwise) other than through the currently available, published interfaces that are provided by RoadwareZ, unless you have been specifically authorized to do so in a separate agreement with RoadwareZ;
• use, display, mirror or frame the Platform, or any feature, functionality, tool or content of the Platform, RoadwareZ’s name, any RoadwareZ trademark, logo or other proprietary information, without RoadwareZ’s express written consent;
• interfere with, disrupt, damage or compromise the Platform or our systems or the access of any User, host or network in any way, including through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology or by overloading, flooding, spamming, mail-bombing the Platform or otherwise imposing an unreasonable or disproportionately large load on the Platform;
• access, tamper with or use non-public areas of any of the Platform, RoadwareZ’s computer systems, or the technical delivery systems of RoadwareZ’s providers;
• probe, scan, or test the vulnerability of any system or network of RoadwareZ or its providers, or breach or circumvent any security or authentication measures of such system or network;
• avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by RoadwareZ or any of RoadwareZ’s providers or any other third party to protect the Platform;
• forge any TCP/IP packet header or any part of the header information in any e-mail or posting, or in any way use the Platform to send altered, deceptive or false source-identifying information;
• attempt to decipher, decompile, disassemble or reverse engineer any of the code or software used to provide the Platform;
• export or re-export the Platform, except in compliance with the export control laws and regulations of any relevant jurisdictions;
• otherwise abuse the Platform or breach the Terms; or
• attempt to do any of the foregoing, or advocate, encourage or assist any third party in doing any of the foregoing.
5.1 Misconduct; Investigations
RoadwareZ reserves the right, but assumes no obligation, to investigate and take appropriate action in response to reports of misconduct. Regardless of its action or inaction, in no event will RoadwareZ be liable for the acts or omissions of any User or any third party.
Without limiting the foregoing, you acknowledge that RoadwareZ has the right, but not the obligation, at any time and without prior notice, to monitor access to or use of the Platform or Services by any User if we believe in good faith that it is reasonably necessary (i) to comply with any law or regulation or satisfy any legal process or governmental request (for example, a subpoena, warrant, order or other requirement of a court, administrative agency or other governmental body), (ii) to respond to claims asserted against RoadwareZ, (iii) to enforce and to ensure a User’s compliance with the Terms, including the investigation of potential violations, (iv) to conduct risk assessments, and prevent, detect and investigate incidents of fraud, security and technical issues, (v) to protect the rights, property or safety of RoadwareZ, its Users or members of the public, and (vi) for the purpose of operating and improving the Platform and Services [(including for customer support purposes)].
You agree to cooperate with and assist RoadwareZ or its representative in good faith, in any such investigations, including by providing us with such information as we may reasonably request.
If you are a California resident, you may also report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. See the “California Residents” subsection below for the full information required under California Civil Code §1789.3.
6. INTELLECTUAL PROPERTY OWNERSHIP
6.1 The Platform
The Platform, including the Products and App, and all features, functionality, tools and content thereof, is protected by copyright, trademark, patent and other laws of the United States and foreign countries. You acknowledge and agree that the Platform and Services, and all intellectual property rights therein are the exclusive property of RoadwareZ and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark, patent marking, or other proprietary rights notices incorporated in or accompanying the Platform or Services.
Without limiting the foregoing, you acknowledge and agree that the trade names, logos, and other trademarks and service marks associated with RoadwareZ (the “RoadwareZ Marks”) are the property of RoadwareZ, and that you are not permitted to use the RoadwareZ Marks without our prior written consent.
You may not use, copy, reproduce, distribute, license, sell, transfer, publish, post, publicly display, publicly perform, transmit, broadcast, adapt, modify, prepare derivative works based upon, or otherwise exploit any features, functionality, tools or content of the Platform in any form or by any means, or sublicense the rights granted in the Terms, except as expressly permitted herein, without the prior written permission of RoadwareZ or the intellectual property owner, as applicable.
This foregoing license is subject to modification or revocation at any time at RoadwareZ’s sole discretion.
No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by RoadwareZ or its licensors, except for the licenses and rights expressly granted in the Terms. All rights not expressly granted to you by the Terms are hereby reserved.
6.2 Your Content
By recording, uploading, streaming, sharing or storing Your Content, you hereby grant RoadwareZ a worldwide, non-exclusive, transferable, sublicensable, royalty-free right and license to use, copy, reproduce, process, adapt, modify, distribute, post, broadcast, publicly perform, publish and display Your Content in any and all media as necessary to provide the Services to you, including, [customer support services], and otherwise operate the Platform, including for product development and de-bugging purposes.
RoadwareZ does not claim any ownership rights in Your Content and nothing in the Terms will be deemed to restrict any rights that you may have to use and exploit any such content, subject only to the licenses granted to RoadwareZ under these Terms.
You acknowledge and agree that you are solely responsible for Your Content, and for any consequences thereof, including the use of Your Content by your Contacts.
You represent and warrant that you have all the rights, power and authority necessary to grant the rights granted herein to Your Content, and that neither Your Content, nor RoadwareZ’s use of Your Content (or any portion thereof) on or through the Platform or in connection with the Services will infringe, misappropriate or violate the rights of any person or entity, including proprietary or intellectual property rights, rights of publicity or privacy or data protection or contractual rights, or result in the violation of any applicable law or regulation.
We welcome and encourage you to provide feedback, comments, ideas and suggestions for improvements, enhancements and modifications to the Platform (“Feedback”). You may submit Feedback by e-mailing us, at [email@example.com]. You acknowledge and agree that all Feedback you give us (i) will be treated as non-confidential, and (ii) will be the sole and exclusive property of RoadwareZ. Without limiting the foregoing, you acknowledge that your Feedback may be disseminated or used by RoadwareZ or its affiliates for any purpose whatsoever, including developing, improving and marketing products. You hereby irrevocably transfer and assign to RoadwareZ all of your right, title, and interest in and to all Feedback, including all worldwide patent, copyright, trade secret, moral and other proprietary or intellectual property rights therein, and waive any moral rights you may have in such Feedback.
You agree to sign and deliver such documents, and otherwise provide such assistance, as may reasonably be required from time to time to perfect RoadwareZ’s rights in such improvements, enhancements and modifications.
7. LINKS TO THIRD PARTY WEBSITES AND SERVICES
The Platform may also provide links to third-party websites, resources or services. You acknowledge and agree that RoadwareZ is not responsible or liable for (i) the availability, terms or practices of such websites, resources or services, or (ii) the content, products or services available on or through such websites, resources or services, including that any information provided is complete, accurate or up-to-date. Links to such websites, resources or services do not imply any endorsement by RoadwareZ of such websites, resources or services or the content, products or services available on or through such websites, resources or services. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites, resources or services or the content, products or services available on or through such websites or services.
We will not be responsible or liable for any damage or harm resulting from your interactions with such websites or services, or the content, products or services available on or through such websites or services.
8. WARRANTIES, DISCLAIMERS, LIMITATION OF LIABILITY & INDEMNIFICATION
8.1 Warranties by Users
You represent and warrant to RoadwareZ that:
(i) you have the power and authority to accept and agree to the Terms;
(ii) you own or control all of the rights necessary to grant the rights and licenses granted herein;
(iii) that you have requested and received the consent of all individuals for whom you have submitted Contact information to: (a) share their telephone number and/or email address with RoadwareZ; and (b) receive emergency notifications from the App.
(iv) you will not violate any federal, state or local laws, rules or regulations or infringe the rights of any third party, including, any intellectual property, privacy or publicity-related rights, in connection with Your Content or otherwise in connection with your access to or use of the Platform and Services;
(v) the exercise by RoadwareZ of the rights granted by you hereunder will not cause RoadwareZ to violate any applicable laws, rules or regulations, to infringe the rights of any third party; and
(vi) all account information provided by you will be complete, accurate and up-to-date when provided, and updated as necessary to ensure that it remains complete, accurate and up-to-date.
EXCEPT AS EXPRESSLY PROVIDED HEREIN, THE PLATFORM AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OF ANY KIND, EXPRESS OR IMPLIED. TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW, ROADWAREZ EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT OR TITLE OR RIGHTFUL CLAIM, WARRANTIES AS TO THE RELIABILITY OR AVAILABILITY OF THE PLATFORM OR SERVICES, OR THAT USE OF THE PLATFORM OR SERVICES WILL BE UNINTERRUPTED OR ERROR FREE, WARRANTIES AS TO THE COMPLETENESS, ACCURACY OR TIMELINESS OF ANY PLATFORM CONTENT.
Location data provided by the Services is for informational purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage. Neither RoadwareZ, nor any of its content providers, guarantees the availability, accuracy, completeness, reliability, or timeliness of information or location data displayed by any Services.
8.3 Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW:
• THE ENTIRE RISK ARISING OUT OF OR RELATING TO YOUR USE OF THE PLATFORM IS AND REMAINS WITH YOU. YOU ARE RESPONSIBLE FOR MAINTAINING THE FUNCTIONALITY OF ANY PRODUCTS AND ROADWAREZ IS NOT RESPONSIBLE FOR THE MAINTENANCE THEREOF OR ANY CONSEQUENCES RESULTING FROM A MALFUNCTIONING PRODUCT OR LACK OF INTERNET CONNECTION. WITHOUT LIMITING THE FOREGOING, ROADWAREZ DISCLAIMS ANY AND ALL LIABILITY RELATED TO YOUR USE OF OR INABILITY TO USE THE PLATFORM.
• YOU ACKNOWLEDGE AND AGREE THAT THE ACCESSING AND USING THE PLATFORM IS DONE AT YOUR OWN DISCRETION AND RISK, AND YOU AND HEREBY RELEASE ROADWAREZ AND WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGES CAUSED BY ANY OF THE FOREGOING.
• IN NO EVENT WILL ROADWAREZ BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, OR DAMAGES FOR LOST REVENUES OR PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, WHETHER BASED IN WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ROADWAREZ HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
• CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES AS SET FORTH IN THIS SECTION, SO THESE LIMITATIONS AND EXCLUSIONS APPLY TO YOU ONLY TO THE EXTENT PERMITTED BY APPLICABLE LAW. IN THE EVENT THAT THE FOREGOING LIMITATION OF LIABILITY IS DETERMINED BY A COURT OF COMPETENT JURISDICTION TO BE UNENFORCEABLE, ROADWAREZ’S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT SHALL BE LIMITED TO ONE HUNDRED U.S. DOLLARS (US$100).
8.4 Basis of the Bargain
YOU ACKNOWLEDGE AND AGREE THAT THE WARRANTY DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH ABOVE ARE ESSENTIAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ROADWAREZ AND YOU, AND WILL SURVIVE AND APPLY EVEN IF YOUR REMEDIES ARE FOUND OR ALLEGED TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
NOTHING IN THE TERMS IS FURTHER INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR CONDITIONS OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE CAUSED BY NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF IMPLIED TERMS, OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR EXCLUSION OF LIABILITY FOR LOSS OR DAMAGE FROM DEATH OR PERSONAL INJURY. ACCORDINGLY, ONLY THE ABOVE LIMITATIONS IN THIS SECTION THAT ARE LAWFUL IN YOUR JURISDICTION WILL APPLY TO YOU, AND OUR LIABILITY WILL BE LIMITED TO THE MAXIMUM EXTENT REQUIRED BY LAW.
To the maximum extent not prohibited by applicable law, you agree to release, defend, indemnify, and hold RoadwareZ its parent, subsidiaries, affiliates, licensors and service providers, and its and their officers, directors, shareholders, agents, employees and representatives, harmless (collectively “indemnify” or any variation thereof) from and against any claims, liabilities, damages, losses, costs and expenses, including, any bodily injury, illness, death or damage to any real or personal property, or any other injuries, losses, or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind, and including reasonable legal fees and litigation expenses and costs, arising out of or relating to or in any way connected with (i) your access to or use of the Platform, including any and all features, functionality, tools, content and promotions available on and through the App, (ii) Your Content, (iii) your breach of the Terms, including any violation of national, federal, state or local or other applicable laws, rules or regulations or any infringement or misappropriation of the rights of any third party, and (iv) your gross negligence or willful misconduct.
8.7 Obligation to Defend.
You agree that, at RoadwareZ’s option, you will conduct the defense of any such claim or action; provided that, notwithstanding our election that you to conduct the defense, (i) RoadwareZ may nevertheless participate in such defense or settlement negotiations and pay its own costs associated therewith, and (ii) you will not enter into any settlement or other compromise without the prior written approval of RoadwareZ (which approval shall not be unreasonably withheld), unless such settlement or other compromise includes a full and unconditional release of the relevant parties from all liabilities and other obligations in respect of such claim or action.
8.8 No Implied Indemnity.
No person or entity shall be entitled to any form of equitable or implied indemnification at any time, except as provided by the Terms.
9. GOVERNING LAW & DISPUTE RESOLUTION
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND ROADWAREZ HAVE AGAINST EACH OTHER ARE RESOLVED.
9.1 Governing Law
The Terms shall be governed by and interpreted in accordance with the laws of New Jersey without regard to conflict of law principles.
Notwithstanding any contrary provision of these Terms, all disputes, claims, controversies and matters relating to or in connection with these Terms (or the breach thereof) or any transactions hereunder shall be settled by binding arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules (“AAA Rules”), and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof. The arbitration shall take place in the State of New Jersey before a single neutral arbitrator appointed in accordance with the AAA Rules and shall be conducted in the English language. All arbitrations shall be conducted and resolved on an individual basis and not a class-wide, multiple plaintiff or similar basis. No arbitration shall be consolidated with any other arbitration proceeding involving any other person or entity.
9.3 Jurisdiction and Venue
Subject to the above arbitration provisions, you and RoadwareZ agree that any and all disputes, claims and actions, at law or in equity, arising out of or relating to or in connection with the Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Platform, including the App or any Products (collectively, “Disputes”) in the federal or state courts located in the State of New Jersey and each us agrees that such courts shall have exclusive jurisdiction and venue for any such actions, except that RoadwareZ retains the right to submit a Dispute to any court of competent jurisdiction. RoadwareZ also may seek injunctive or other equitable relief for breach of these Terms in any court of competent jurisdiction wherever located. You consent to the jurisdiction of and venue in such courts and waive any objection as to inconvenient forum. The prevailing party in any suit, action or proceeding, including any arbitration proceeding, will be entitled to recover its reasonable legal fees and costs and expenses from the other party.
9.4 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AGREE THAT YOU MAY BRING CLAIMS AGAINST ROADWAREZ ONLY ON AN INDIVIDUAL BASIS AND HEREBY WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION OR REPRESENTATIVE PROCEEDING, TO THE MAXIMUM EXTENT NOT PROHIBITED BY APPLICABLE LAW. FURTHER, UNLESS BOTH YOU AND ROADWAREZ OTHERWISE AGREE IN WRITING, THE COURT MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
9.5 Future Amendments to this Section
Both of us agree that if we make any amendment to this Dispute Resolution section (other than an amendment to any notice address or site link provided herein) in the future, that amendment will not apply to any claim that was filed in a legal proceeding against us prior to the effective date of the amendment. However, the amendment will apply to all other disputes or claims governed by this section that have arisen or may arise between you and RoadwareZ. We will notify you of amendments to this section by posting the amended Terms on www.roadwarez.com. If you do not agree to the amended terms, you may close your account within 30 days and you will not be bound by the amended dispute resolution terms. If you do not have an account (or once you have closed your account, if applicable), you must cease using the Platform immediately. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and RoadwareZ in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted the Terms (or accepted any subsequent changes to the Terms).
10.2 Entire Agreement
You may not assign, transfer, delegate or sublicense any of your rights or obligations under the Terms, including by operation of law or merger or consolidation, without our express prior written consent, which may be granted or withheld in our sole discretion. Any attempted assignment, transfer, delegation or sublicense without the foregoing consent will be null and void. RoadwareZ may assign, transfer, delegate and/or sublicense our rights and obligations under the Terms, in whole or in part, in its sole discretion, without restriction.
Subject to the foregoing, the Terms will bind and inure to the benefit of the parties, their successors and assigns.
10.4 No Agency
Except as otherwise expressly set forth herein, no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by the Terms.
10.5 Survival of Terms
Any provisions of the Terms that contemplate performance or observance subsequent to the expiration or termination of these Terms of Service shall survive such expiration or termination.
Any notices or other communications permitted or required hereunder, including those regarding modifications to the Terms, will be in writing and given by RoadwareZ (i) via e-mail (in each case to the address that you provide), or (ii) by posting to the Website or via the App. For notices made by e-mail, the date on which such notice is transmitted will be deemed the date of receipt.
Except as expressly set forth in the Terms, the exercise by either party of any of its remedies under the Terms will be without prejudice to its other remedies available under contract, at law, in equity or otherwise.
Except as otherwise provided in the Terms, if an arbitrator or a court of competent jurisdiction finds any provision of the Terms to be invalid, void or unenforceable, in whole or in part, for any reason, the offending provision will be enforced to the maximum extent permissible and will not affect the validity or enforceability of the remaining provisions, which will remain in full force and effect.
The headings in the Terms are for reference purposes only and do not limit or otherwise affect the meaning or interpretation of any of the provisions hereof.
10.11 Third Party Beneficiaries
Except as otherwise expressly set forth herein, the Terms do not and are not intended to confer any rights or remedies upon any person other than the parties hereto.
10.12 Contact Us
If you have any questions or concerns, please contact RoadwareZ at firstname.lastname@example.org or 888-625-3885.
You can also write to us at:
13 Clayton Court
Lakewood, N J 08701
10.13 California Residents
Pursuant to California Civil Code §1789.3, California residents are also entitled to the following specific consumer rights notice:
Complaints regarding the Platform or Services or requests to receive further information regarding use of the Platform or Services may be sent to the above address or to [email@example.com].
The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Boulevard, Suite N112, Sacramento, CA 95834 or by telephone at (916) 445-1245 or (800) 952-5210. Hearing impaired persons may call TDD (800)-326-2297 or TDD (916)-928-1227, see www.dca.ca.gov for additional information.
Copyright ©2018 RoadwareZ, Inc. All rights reserved.