Terms and Conditions of Use
Effective Date: March 18, 2019
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY BEFORE USING THE TOWZING PLATFORM (AS DEFINED BELOW) TO REQUEST OR TO RESPOND TO REQUESTS FOR ROADSIDE ASSISTANCE SERVICES (AS DEFINED BELOW), WHETHER BY PHONE, ANY MOBILE OR WEB APPLICATION, OR ANY OTHER ACCEPTED METHOD FOR REQUESTING OR RESPONDING TO REQUESTS FOR ROADSIDE ASSISTANCE SERVICES, AS APPLICABLE, OR OTHERWISE USING THIS WEBSITE OR APPLICATION OR ANY OTHER PART OF THE TOWZING PLATFORM.
TOWZING IS NOT A TOWING OPERATOR. NO ROADSIDE ASSISTANCE SERVICES ARE OR WILL BE PROVIDED BY TOWZING. ALL ROADSIDE ASSISTANCE SERVICES ARE PROVIDED SOLELY BY TOWZING ALLIANCE MEMBERS AND THEIR DRIVERS. BY USING THE TOWZING PLATFORM, YOU ACKNOWLEDGE AND AGREE THAT TOWZING IS A NOT A TOWING OPERATOR AND DOES NOT PROVIDE ROADSIDE ASSISTANCE SERVICES.
THESE TERMS INCLUDE A MANDATORY ARBITRATION AGREEMENT, WHICH MEANS THAT YOU AGREE TO SUBMIT ANY CLAIM (AS DEFINED BELOW) TO BINDING INDIVIDUAL ARBITRATION RATHER THAN PROCEEDING IN COURT. IF YOU WANT TO OPT OUT OF THE MANDATORY ARBITRATION AGREEMENT, YOU MUST FOLLOW THE OPT-OUT PROCEDURES DESCRIBED IN SECTION 18, BELOW.
THESE TERMS ALSO INCLUDE A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY CLAIM INDIVIDUALLY AND NOT AS A MEMBER OF A CLASS ACTION.
The terms “TowZing,” “Customers,” “Drivers,” “TowZing Alliance Members,” and “TowZing Platform” are defined below. Customers, Drivers, TowZing Alliance Members, visitors to the TowZing website (www.TowZing.com) (the “TowZing Website”), and other third-party individuals or entities who use, access, or otherwise interact with (collectively, “use”) the TowZing Platform are collectively referred to in these Terms as “users;” each user may also be addressed as “you.”
TowZing, Inc. (“TowZing” or “we”) provides a platform (the “TowZing Platform”) through which individuals and other customers (collectively, “Customers”) can request towing, fuel delivery, vehicle lockout, tire changes, battery replacements, jump starts, other automobile roadside assistance services and other related products and services (collectively, “Roadside Assistance Services”) in various locations in the United States of America (the “United States”), and through which independent providers (the “TowZing Alliance Members”) can offer, and TowZing Alliance Members and their drivers (“Drivers”) can agree to provide and otherwise respond to Customers’ requests for, Roadside Assistance Services.
- Who is Eligible to Use the TowZing Platform?
The TowZing Platform is generally intended for adults (age 18 or older), subject only to the limited exception for legal underage drivers described in this Section 1.
If you are a Customer, you must be 18 years or older and have the legal capacity to enter into a binding contract with us. If you are between the ages of 13 and 18 years, you may also use the TowZing Platform if (a) you are a legal underage driver (meaning you are old enough to be allowed to legally drive without adult supervision in the jurisdiction in which you are requesting Roadside Assistance Services) and (b) your parent or legal guardian (i) consents to these Terms, (ii) has the legal capacity to enter into a binding contract with TowZing, and (iii) has given you permission to use the TowZing Platform and to request Roadside Assistance Services. No one under the age of 13 is permitted to use the TowZing Platform. Any Customer must have a valid, unexpired driver’s license for driving in that jurisdiction.
If you are a TowZing Alliance Member, a Driver, or other user, you must (a) be 18 years or older or a legal entity in good standing (meaning that you are duly organized, validly existing and in good standing under the laws and regulations of the jurisdiction of your incorporation, organization or formation) and (b) have the legal capacity to enter into a binding contract with TowZing. If you are a TowZing Alliance Member, you must, in addition to the above eligibility criteria, also have all necessary licenses or permits for providing Roadside Assistance Services in all jurisdictions in which you perform any Roadside Assistance Services. If you are a Driver, you must, in addition to the above eligibility criteria, also have a valid, unexpired driver’s license and all other necessary licenses or permits for driving and operating a tow-truck and other equipment for providing Roadside Assistance Services in all jurisdictions in which you perform any Roadside Assistance Services.
- Use of the TowZing Platform.
TowZing grants you a personal, revocable, non-exclusive, nontransferable and limited license (without the right to sublicense) to access and use the TowZing Platform (the “License”). You acknowledge that the trade secrets embodied in the TowZing Platform have not been and will not be licensed or otherwise disclosed to you. All rights not expressly granted herein are reserved by TowZing.
If you are a Customer, you are required to create an account, which may be an individual or a business account (each, a “Customer Account”), to use the TowZing Platform to request Roadside Assistance Services. If you are a TowZing Alliance Member, TowZing may create an account for you and provide you with access credentials (“TowZing Alliance Member Account”). If you are a Driver, TowZing or your applicable TowZing Alliance Member may create an account for you and provide you with access credentials (“Driver Account”). You agree that you will maintain the information in your Customer Account, TowZing Alliance Member Account, or Driver Account (each, an “Account”) to ensure that it is always current, complete, and accurate. If you provide untrue, incomplete, or inaccurate information, TowZing may terminate your Account and your License and access to the TowZing Platform at any time without notice. You agree to protect the security of your Account (including by (i) carefully controlling who has access to the access credentials for your Account and (ii) if your Account is created for you by TowZing or a TowZing Alliance Member, promptly changing your password). You are solely responsible for all use of your Account, including all charges incurred through your Account and any failure to properly protect the security of your Account.
You are solely responsible for the software, hardware, and Internet service needed to access and use the TowZing Platform. If you access and use the TowZing Platform on your smartphone, tablet, or another mobile device (“Mobile Device”), you are solely responsible for any and all data and other fees related to using of the TowZing Platform through your Mobile Device (including any roaming fees for data or telephone usage, if applicable).
- Restrictions on Use of TowZing Platform
You may use the TowZing Platform for lawful purposes only. You may not use the TowZing Platform for any commercial purpose, unless you are a TowZing Alliance Member or Driver, in which case you may use the TowZing Platform solely for the commercial purpose of performing Roadside Assistance Services for Customers.
You agree that you will not (and you agree not to encourage or allow any third party to):
- Breach, test, circumvent (or attempt to breach, test or circumvent) any security, copy protection, or rights management feature in the TowZing Platform or otherwise attempt to gain unauthorized access to the TowZing Platform, other users’ Accounts, or TowZing’s computer systems or networks;
- copy, modify, translate, adapt, or otherwise create derivative works or improvements (whether or not patentable) of any part of the TowZing Platform;
- decompile, reverse engineer, disassemble, or decode the TowZing Platform or otherwise attempt to derive or gain access to the source code of any part of the TowZing Platform (unless applicable laws specifically prohibit such restriction);
- remove, alter, or obscure any copyright, trademark, or other intellectual property or proprietary notices contained in the TowZing Platform or TowZing Content (as defined below);
- use any robot, spider, site search/retrieval application, or another automated device, process, or means to access, retrieve, scrape, or index any portion of the TowZing Platform;
- rent, lease, lend, sell, sublicense, assign, distribute, publish, transfer, or otherwise make available any features or functionality of the TowZing Platform to any third party for any reason;
- distribute, rent, sublicense, lease, lend, sell, resell, assign, transfer, transmit, stream, broadcast, or otherwise make available or exploit any features or functionality of the TowZing Platform including through time-sharing, through any service bureau, or by otherwise making the TowZing Platform available on a network on which it is accessible by more than one device at any time;
- reformat or frame any portion of the web pages that are part of the TowZing Platform without TowZing’s prior written consent (which consent TowZing may grant, condition, or deny in its sole and absolute discretion);
- cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the TowZing Platform (including any data of or relating to its users) or unduly burdening or hindering the operation and/or functionality of any aspect of the TowZing Platform;
- use the TowZing Platform to advertise, buy, or sell any products or service except as expressly authorized by TowZing in writing;
- create more than one Account under false pretenses; or
- collect or store information about any other user without such user’s consent.
- Text Messaging
In connection with your use of the TowZing Platform, you may be offered the option to receive text messages (which may be sent as SMS, MMS, iMessages, or another commonly used type of text messages), whether from TowZing, from a Customer (if you are a TowZing Alliance Member or Driver), or from a TowZing Alliance Member or Driver (if you are a Customer). If you opt in to receiving text messages, message and data rates may apply. All such message and data charges are billed by and payable to your wireless service provider. Please contact your wireless service provider for pricing plans and details. Once you opt in to receive such text messages, the frequency of text messages that you will be sent will depend on your transactions with TowZing. Text message services are provided on an “as is” basis and may not be available in all areas at all times.
BY AGREEING TO RECEIVE TEXT MESSAGES, YOU UNDERSTAND AND AGREE THAT TOWZING MAY USE AN AUTOMATIC DIALING SYSTEM TO DELIVER TEXT MESSAGES TO YOU AND THAT YOUR CONSENT TO RECEIVE TEXT MESSAGES IS NOT REQUIRED AS A CONDITION OF PURCHASE OR PROVISION FOR ANY ROADSIDE ASSISTANCE SERVICES. YOU MAY OPT-OUT OF RECEIVING AUTOMATIC TEXT MESSAGES AT ANY TIME.
- Roadside Assistance Services Available on or through the TowZing Platform.
TowZing reserves the right, without notice, to discontinue any or all Roadside Assistance Services or modify the specifications of any or all of the Roadside Assistance Services (including the locations, areas, or regions where Roadside Assistance Services are made available) or the prices on any or all Roadside Assistance Services that are available on or through the TowZing Platform without incurring any obligation to you. TowZing makes commercially reasonable efforts to ensure that the prices provided through the TowZing Platform (which may include prices communicated to you over the telephone) are correct, and to accurately describe and display the Roadside Assistance Services available on the TowZing Platform. However, when ordering any Roadside Assistance Services, please note that TowZing does not warrant that Roadside Assistance Services descriptions are accurate, complete, current, or error-free. If any Roadside Assistance Service that you request via the TowZing Platform (which may be via telephone), when actually received, is not as it was described when you requested it, your sole remedy is to call TowZing customer support at the telephone number provided on the TowZing Website or elsewhere on the TowZing Platform to request a refund. Not all Roadside Assistance Services may be available in your market or region; please check the TowZing Platform for the most up-to-date list of available Roadside Assistance Services in your market or region.
- Order Placement and Acceptance
If you order Roadside Assistance Services, payment must be received by TowZing before your order is accepted or at the completion of Roadside Assistance Services rendered. TowZing may require additional information regarding your order if any required information was missing or inaccurate and may cancel or limit an order any time after it has been placed with no liability to you.
Your order, whether by phone, online, or by another ordering method accepted by TowZing via its TowZing Platform, is conditioned on your accepting these Terms. Once we receive your authorized order and your payment, we will promptly process your order for Roadside Assistance Services for dispatch. All Roadside Assistance Services are subject to availability and may be subject to increased pricing in the event of a high demand. We will notify you if any Roadside Assistance Service ordered is not available or is subject to increased pricing. To the extent your conduct may be fraudulent, such as purchasing Roadside Assistance Services through the use of fake or stolen cards, TowZing will report you to federal, state, and/or local enforcement authorities and reserves the right to pursue any remedies it may have against you under any applicable law in any applicable forum or jurisdiction.
- Fees, Cancelations, Refunds.
If you are a Customer, all fees associated with any Roadside Assistance Services available through the TowZing Platform are displayed or otherwise communicated to you before you place an order. If you are a Customer who requested Roadside Assistance Services via a phone request, the fees will be detailed to you by an agent before your order is placed. All fees are subject to change due to availability, demand, and market or region. During times of high demand and limited availability, Roadside Assistance Services available through the TowZing Platform may experience a period of increased pricing. TowZing reserves the right to initiate increased pricing at any time without notice before your order is placed.
If you are a Customer who has ordered Roadside Assistance Services, you may cancel your order at any time by contacting the TowZing customer support number or via the Customer app (if available). A $25 cancelation fee will be charged to your Account if you cancel your order after a Driver has been dispatched. To dispute a cancellation fee, contact the TowZing customer care number provided on the TowZing Website or elsewhere on the TowZing Platform.
If you are a Customer, to request a refund of any amounts paid for any Roadside Assistance Services, you must contact TowZing customer support before leaving the scene or location where you received such Roadside Assistance Services. Any Customer who leaves the scene before contacting TowZing will not be eligible for any refund (and will be subject to the “gone on arrival” fee described in Section 8, below).
- Gone on Arrival
If you are a Customer who has ordered Roadside Assistance Services and you leave the scene or location specified in your order without first contacting TowZing, you will be subject to a $25 “gone on arrival” fee that will be charged to your Account. To dispute a “gone on arrival” fee, contact the TowZing customer care number provided on the TowZing Website or elsewhere on the TowZing Platform.
- Pricing Errors or Unavailability of Roadside Assistance Services
Prices, availability, and other purchase terms are subject to change at any time and generally without notice. We make commercially reasonable efforts to ensure that the TowZing Platform contains accurate pricing information and to ensure availability of Roadside Assistance Services; however, TowZing reserves the right to revoke any offer to correct errors, inaccuracies, or omissions, including after an order has been received, submitted, or confirmed or after your credit card has been charged. If your order is canceled because of an error by TowZing or a TowZing Alliance Member, your credit card will be refunded the full amount of your order. Please allow for one full billing cycle to complete the refund process.
- Payment Information
When ordering Roadside Assistance Services through the TowZing Platform (whether through the Customer app, by telephone, or otherwise), you agree to provide only truthful, accurate, current and complete payment information. By placing an order, you represent and warrant that you will only provide payment information which is yours or information you are authorized to use and provide to TowZing for purposes of placing an order. TowZing reserves the right to cancel any order or to suspend or terminate your Account if we have grounds to believe that you have provided inaccurate, not current, fraudulent, or incomplete payment information to TowZing or for any other reason that TowZing, in its sole and absolute discretion, believes appropriate. You agree that your placement of an order on or through the TowZing Platforms (whether through the Customer app, by telephone, or otherwise) is sufficient to satisfy any applicable statute of frauds and no further writing is required.
- Electronic Documents and Signatures
All information communicated via the TowZing Platform is considered an electronic communication. When you communicate with TowZing through or on the TowZing Platform (which may include communications via telephone or via other forms of electronic media, such as e‑mail), you are communicating with the company electronically. You agree that we may communicate electronically with you and that such communications, as well as notices, disclosures, agreement, and other communications that we provide to you electronically, are equivalent to communications in writing and shall have the same force and effect as if they were in writing and signed by the party sending the communication.
You further acknowledge and agree that by clicking on a button labeled “SUBMIT”, “BUY NOW”, “PURCHASE”, “ORDER NOW”, “REQUEST”, “I ACCEPT”, “I AGREE” or similar links or buttons, you are submitting a legally binding electronic signature and are entering into a legally binding contract. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by these Terms. Pursuant to any applicable statutes, regulations, rules, ordinances, or other laws, including the United States Electronic Signatures in Global and National Commerce Act, P.L. 106-229 or other similar statutes (and any revisions or amendments thereto). YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH THE TOWZING PLATFORM. Furthermore, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature, delivery or retention of non-electronic records or to payments or the granting of credits by other than electronic means.
- Warranty Disclaimer
Although we use commercially reasonable efforts to make sure that the TowZing Platform is accurate and reliable, TowZing does not warrant that the TowZing Platform is accurate, complete, reliable, or error-free.
We do not guarantee the availability of the TowZing Platform or Roadside Assistance Services at all times of the day or on every day of the year. TowZing may at any time and from time to time perform upgrades, updates, or otherwise make the TowZing Platform unavailable. To the maximum extent authorized under applicable law, we reserve the right to change, remove, delete, restrict, block access to, or stop providing any or all of the TowZing Platform or Roadside Assistance Service at any time and without notice.
THE TOWZING PLATFORM AND ROADSIDE ASSISTANCE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW, TOWZING EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER ORAL, WRITTEN, EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
YOU UNDERSTAND THAT TOWZING MAKES NO GUARANTEES, EITHER EXPRESS OR IMPLIED, REGARDING THE TOWZING PLATFORM OR ROADSIDE ASSISTANCE SERVICES. YOUR USE OF THE TOWZING PLATFORM AND ROADSIDE ASSISTANCE SERVICES IS AT YOUR OWN RISK.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE TOWZING PLATFORM IS USED AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM / MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
Any oral or written advice provided by TowZing or its agents does not and will not create any warranty.
- LIMITATIONS OF LIABILITY
THE TOWZING PLATFORM MAY BE USED BY YOU TO REQUEST (IF YOU ARE A CUSTOMER) OR TO ACCEPT TO PROVIDE (IF YOU ARE A TOWZING ALLIANCE MEMBER OR DRIVER) ROADSIDE ASSISTANCE SERVICES, BUT YOU AGREE THAT TOWZING HAS NO RESPONSIBILITY OR LIABILITY TO YOU RELATED TO ROADSIDE ASSISTANCE SERVICES PROVIDED TO YOU OR BY YOU (AS APPLICABLE) OTHER THAN AS EXPRESSLY SET FORTH IN THESE TERMS.
TO THE EXTENT PERMITTED BY APPLICABLE LAW, TOWZING IS NOT LIABLE FOR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA, OR LOSS OF USE OF OR DAMAGE TO REAL, TANGIBLE, OR INTANGIBLE PROPERTY ARISING FROM OR RELATED TO YOUR USE OF THE TOWZING PLATFORM OR YOUR REQUESTING OR PROVIDING THE ROADSIDE ASSISTANCE SERVICES (AS APPLICABLE).
YOU AGREE THAT TOWZING’S MAXIMUM LIABILITY UNDER THESE TERMS IS LIMITED TO THE GREATER OF THE TOTAL FEES PAID BY YOU TO TOWZING (IF ANY) DURING THE TWELVE (12) MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY AND $1,000.
YOU FURTHER AGREE THAT THE LIMITATIONS OF LIABILITY SET FORTH IN THIS SECTION 13 WILL SURVIVE ANY TERMINATION OR EXPIRATION OF THESE TERMS AND WILL APPLY EVEN IF ANY LIMITED REMEDY SPECIFIED IN THESE TERMS FAILS OF ITS ESSENTIAL PURPOSE.
APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR DAMAGES. ACCORDINGLY, THE EXCLUSIONS AND LIMITATIONS SET FORTH IN THIS SECTION 13 MAY NOT APPLY IN THEIR ENTIRETY TO YOU. YOU UNDERSTAND AND AGREE, HOWEVER, THAT TOWZING’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
YOU ACKNOWLEDGE AND AGREE THAT THE ABOVE LIMITATIONS OF LIABILITY, TOGETHER WITH THE OTHER PROVISIONS IN THESE TERMS THAT LIMIT LIABILITY, ARE ESSENTIAL TERMS AND THAT TOWZING WOULD NOT BE WILLING TO GRANT YOU THE RIGHTS SET FORTH IN THESE TERMS BUT FOR YOUR AGREEMENT TO THE ABOVE LIMITATIONS OF LIABILITY.
CALIFORNIA RESIDENTS: BY AGREEING TO THESE TERMS, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 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.”
- TowZing Intellectual Property Rights
TowZing and its affiliated companies reserve and retain all right, title and interest in and to the TowZing Platform, including TowZing’s business names, logos, product and service names, trademarks, or services marks (“TowZing Marks”) and any information, graphic, artwork, text, and other content provided on, in, or through the TowZing Platform (collectively with the TowZing Marks, the “TowZing Content”). Any open source or third-party code incorporated in the TowZing Platform is covered by the applicable open source or third-party license authorizing its use. The inclusion of a link to any third-party website or service does not imply any association with the third-party website or service. Except as expressly provided in these Terms, nothing contained in these Terms or on the TowZing Platform shall be construed as conferring any other license or right, expressly, by implication, by estoppel, or otherwise under any of TowZing’s, any of its affiliated companies’, or any third party’s intellectual property rights. Any rights not expressly granted herein are reserved.
- Links to Third Party Websites
At any time and from time to time, TowZing may offer you the opportunity to participate in discounts, offers, or other promotions (collectively, “Promotions”). We reserve the right to modify, terminate, or suspend the availability of Promotions and to correct errors or inconsistencies in Promotion-related materials at any time and without prior notice. You agree to be bound by TowZing’s decisions, which are final and binding in all matters, relating to Promotions. Promotions are subject to all applicable federal, state, and local laws, rules, and regulations. Promotions are void where they are prohibited, restricted, or taxed. You may not transfer, assign, sell, lease, trade, or barter any prize, premium, or other benefit you may receive through a Promotion. Unless required by applicable law, you may not combine any Promotion-related prize, premium, or other benefit with a benefit received in connection with any other Promotion.
ANY PRIZE, PREMIUM, OR OTHER BENEFIT IS AWARDED “AS IS” WITHOUT ANY EXPRESS OR IMPLIED WARRANTY OR GUARANTEE FROM TOWZING, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. BY PARTICIPATING IN A PROMOTION, YOU AGREE TO RELEASE TOWZING AND ITS AGENTS FROM ANY AND ALL LIABILITY, LOSS, OR DAMAGE ARISING FROM OR IN CONNECTION WITH PARTICIPATION IN A PROMOTION OR THE RECEIPT, USE, OR MISUSE OF ANY PRIZE, PREMIUM, OR OTHER BENEFIT THAT YOU MAY RECEIVE.
You are solely responsible for your actions. You agree to indemnify and defend TowZing, its affiliates, and TowZing’s and its affiliates’ directors, officers, shareholders, managers, members, employees, agents, and other representatives (collectively, “TowZing Indemnified Parties”), as applicable, from and against any and all losses, liabilities, actual or pending claims, actions and causes of actions, damages, expenses, costs of defense, and reasonable attorneys’ fees brought against any of the TowZing Indemnified Parties by any third party arising from your use of the TowZing Platform in violation of these Terms or applicable law. TowZing reserves the right to assume, at its own expense, the exclusive defense and control of any matter subject to indemnification hereunder; provided, however, that any exercise by TowZing of such right shall not limit or otherwise any indemnification obligations you have hereunder. No settlement that affects the rights or obligations of any of the TowZing Parties may be made without TowZing’s prior written consent, which consent TowZing may grant, condition, or deny in its sole and absolute discretion.
- Pre-Dispute, Mandatory Binding Arbitration and Class Action Waiver
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. YOU AGREE THAT ANY CLAIM (AS DEFINED BELOW) THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO A TRIAL BY JURY. THE RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST IN ARBITRATION.
YOU AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF (LEAD OR OTHERWISE) OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. YOU FURTHER AGREE THAT THE ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS OR CLAIMS OR OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
Arbitration is a manner of resolving a Claim without filing a lawsuit. “Claim” means any dispute between you and TowZing (including its affiliates and its and their agents and representatives), whether or not any third party is involved in any such dispute, in each case relating in any way whatsoever to your Account, your use of the TowZing Platform, any Roadside Assistance Services that you may receive or request (if you are a Customer) or provide or offer to provide (if you are a TowZing Alliance Member of Driver), your relationship with TowZing, or these Terms. This includes any and all Claims that arise from or relate in any way to your use of the TowZing Platform, your attempted use of the TowZing Platform, and any act or omission by TowZing or any third party related to your use or attempted use of the TowZing Platform. You, TowZing, or any involved third party may pursue a Claim. TowZing agrees to binding arbitration should it have any Claims against you. Likewise, you agree to binding arbitration should you have any Claims against TowZing. By agreeing to arbitrate, you waive the right to go to court and instead agree to submit any Claims to binding arbitration. This includes Claims based on contract, tort, equity, statute, or otherwise, as well as Claims regarding the scope and enforceability of this agreement to arbitrate as set forth in this Section 18 (the “Mandatory Arbitration Agreement”). It includes all Claims by or against you and TowZing (including its affiliates and its and their agents and representatives), whether or not any third party is included in any such Claims (either as co-claimant or co-defendant). This arbitration provision sets forth the terms and conditions of your and TowZing’s mutual agreement to binding arbitration and is governed by and enforceable under the Federal Arbitration Act (the “FAA”), 9 U.S.C. §§ 1-16, as amended.
These Terms are governed by and construed and enforced in accordance with the internal laws of the State of Florida without giving effect to the principles of conflicts of laws rules of the State of Florida or any other jurisdiction.
As an exception to binding arbitration, you and TowZing both retain the right to pursue, in a small claims court, any Claim that is within that court’s jurisdiction and proceeds on an individual (non-class) basis, including regarding overdue account matters within the small claims court’s jurisdiction. TowZing will not demand arbitration in connection with any individual Claim that you properly file and pursue in a small claims court, so long as the Claim is pending only in that court. Binding arbitration also does not apply to disputes concerning trade secret misappropriation, patent infringement, copyright infringement or misuse, or trademark infringement or dilution.
Required Pre-Dispute Procedures
You acknowledge and agree that before initiating any Claim against TowZing, you will first give TowZing an opportunity to resolve your Claim (subject to the exceptions above). You are required to send a written description of your Claim to TowZing, including information or representations related to each of the specific Roadside Assistance Services to which your Claim relates, and including all facts underlying your Claim. You may send the written description by U.S. Mail to TowZing, Inc., 4150 SW 28th Way, Fort Lauderdale, FL 33312, Attn: Legal Department. You agree to negotiate with TowZing or its designated representative in good faith towards a mutually agreeable resolution regarding your Claim. If for some reason your Claim is not resolved to your satisfaction within sixty (60) days after TowZing’s receipt of your written description, you agree to proceed with your Claim only in accordance with the dispute resolution provisions set forth below in this Section 18.
You and TowZing agree (a) to commence any arbitration proceeding with respect to any Claim within one (1) year after the Claim arises (which one (1) year period includes the required pre-dispute procedures set forth above) and (b) that any arbitration proceeding commenced after such one (1) year period shall be barred.
For your convenience, the arbitration may be conducted in the federal district where you reside. If both you and TowZing agree, the arbitration may be held by telephone or through written submissions.
Organization, Rules, and the Arbitrator
You agree that any Claim shall be resolved by submitting the dispute to final and binding confidential arbitration before a single arbitrator who is a retired judge or an experienced attorney with experience in the subject(s) of the Claim. The arbitrator shall be chosen from JAMS Comprehensive Arbitration Rules and Procedures (see www.jamsadr.com), and the arbitration rules of the selected tribunal shall apply, which can be obtained by calling the selected tribunal or visiting its website.
The arbitrator shall have the exclusive and sole authority to resolve any dispute relating to the interpretation, construction, validity, applicability, or enforceability of these Terms and this Mandatory Arbitration Agreement, including any dispute whether this Mandatory Arbitration Agreement can be enforced against a non-signatory to this Mandatory Arbitration Agreement and whether a non-signatory to this Mandatory Arbitration Agreement can enforce this provision against you or TowZing.
The parties shall share equally the arbitrator fees for an arbitration initiated by either party. The parties shall each pay their own fees, costs, and expenses, including those for any attorneys, experts, documents, and witnesses.
The arbitrator shall follow Florida substantive law and any ordered relief shall be binding. The arbitrator may award any form of individual relief, including injunctions and punitive damages. The arbitrator may award costs or fees to a prevailing party. Nothing herein shall be construed to limit the arbitrator’s ability to award remedies provided by applicable law. Any award rendered shall include a written opinion and shall be final, subject only to appeal under the FAA.
This Mandatory Arbitration Agreement and the other provisions of this Section 18 survive termination of your Account or relationship with TowZing and any bankruptcy, assignment, or transfer. If the class action waiver is deemed unenforceable (which would allow arbitration to proceed as a class or representative action), then this entire Mandatory Arbitration Agreement and the other provisions of this Section 18 shall be rendered null and void and shall not apply. If a portion of this Mandatory Arbitration Agreement and the other provisions of this Section 18 (other than the class action waiver) is deemed unenforceable, then the remaining portions of this Mandatory Arbitration Agreement and the other provisions of this Section 18 shall remain in full force and effect.
Failure or any delay in enforcing this Mandatory Arbitration Agreement and the other provisions of this Section 18 in connection with any particular Claim will not constitute a waiver of any rights to require arbitration at a later time or in connection with any other Claim (except that all Claims must be brought within the one (1) year limitation period set forth above). This Section 18 contains the entire Mandatory Arbitration Agreement between you and TowZing and shall not be modified except in writing by TowZing.
If any provision of the Mandatory Arbitration Agreement contained in this Section 18 is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced (but in no case will there be a class, representative or private attorney general arbitration). Regardless of any statute or law to the contrary, notice on any claim arising from or related to these Terms must be made within one (1) year after such claim arose or be forever barred. For purposes of this Section 18, these Terms and related transactions will be subject to and governed by the Federal Arbitration Act, 9 U.S.C. sec. 1-16.
TowZing reserves the right to amend this Mandatory Arbitration Agreement and the other provisions of this Section 18 at any time and from time to time. Your continued use of the TowZing Platform, purchase of any Roadside Assistance Services on or through the TowZing Platform, or use or attempted use of the TowZing Platform, is an affirmation of your consent to such changes. Should such changes be material, TowZing will provide you notice and an opportunity to opt out. Your use or attempted use of the TowZing Platform, or your purchase or provision of any Roadside Assistance Service through the TowZing Platform, following any such changes is an affirmation of your consent to such material changes.
YOU HAVE THE RIGHT TO OPT OUT OF THIS MANDATORY ARBITRATION AGREEMENT AND THE OTHER PROVISIONS OF THIS SECTION 18 WITHIN THIRTY (30) DAYS FROM THE DATE OF YOUR USE, OR ATTEMPTED USE OF THE TOWZING PLATFORM OR ANY REQUEST FOR OR AGREEMENT TO PERFORM ANY ROADSIDE ASSISTANCE SERVICES VIA THE TOWZING PLATFORM (INCLUDING VIA THE CUSTOMER APP, BY PHONE, OR OTHERWISE), WHICHEVER COMES FIRST, BY WRITING TO TOWZING, INC., 4150 SW 28TH WAY, FORT LAUDERDALE, FL 33312 ATTN: LEGAL DEPARTMENT.
FOR YOUR OPT-OUT TO BE EFFECTIVE, YOU MUST SUBMIT A SIGNED WRITTEN NOTICE IDENTIFYING (A) ALL ROADSIDE ASSISTANCE SERVICE YOU PURCHASED OR AGREED TO PERFORM OR ANY OTHER USE OR ATTEMPTED USE OF THE TOWZING PLATFORM WITHIN SUCH FIRST THIRTY (30) DAYS AND (B) THE DATE YOU FIRST PURCHASED OR AGREED TO PERFORM ANY ROADSIDE ASSISTANCE SERVICE OR USED OR ATTEMPTED TO USE THE TOWZING PLATFORM. IF YOU FAIL TO OPT-OUT WITHIN SUCH THIRTY (30) DAY TIMEFRAME, YOUR OPT-WILL NOT BE VALID AND YOU MUST PURSUE YOUR CLAIM THROUGH ARBITRATION AS SET FORTH IN THIS MANDATORY ARBITRATION AGREEMENT.
Please note: By agreeing to these Terms, you explicitly agree that any claims or actions that you may otherwise have against TowZing under the laws of any jurisdiction outside the United States are hereby waived, including any claim or action under the laws of your own country, and that your sole location and applicable law for any disputes is in the United States according to the terms of this Mandatory Arbitration Agreement. THIS PROVISION DOES NOT APPLY IF YOU ARE A CONSUMER RESIDING IN A JURISDICTION THAT REQUIRES TOWZING TO USE A LEGALLY COMPETENT COURT OF THE JURISDICTION WHERE YOU RESIDE.
You may stop using the TowZing Platform at any time. TowZing reserves the right to terminate any user’s account or block any user’s access to the TowZing Platform at any time for any reason, including a breach of these Terms or any other posted policy. These Terms automatically terminate when you fail to comply, or if we reasonably believe that you have not complied with, any term or condition contained herein. Termination will not limit any of TowZing’s other rights or remedies, which shall survive any such termination. Any other provisions that must survive termination in order to give proper effect to the intent and purpose of these Terms (including Section 13 and Section 18) shall so survive any such termination.
- NOTICE TO CALIFORNIA RESIDENTS
With respect to any electronic commercial service (as defined under California Civil Code Section 1789.3) offered on or through the TowZing Platform or otherwise by TowZing, California residents are entitled to the following specific consumer rights information:
The provider of the TowZing Platform is TowZing, Inc., 4150 SW 28th Way, Fort Lauderdale, Florida 33312.
To file a complaint regarding the TowZing Platform or to receive further information regarding the use of the TowZing Platform, send a letter to the attention of “Legal Department” at the above address or contact TowZing via e-mail at info@TowZing.com with “California Resident Request” as the Subject Line. You may also contact the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at 916.445.1254 or 800.952.5210.
- Updates to the TowZing Platform or Roadside Assistance Services
TowZing may at any time and from time to time develop and provide updates for the TowZing Platform, which may include upgrades, bug fixes, patches, other error corrections, or new features (collectively, “Updates”). Updates also may modify or delete certain features and functionality currently present in the TowZing Platform. You agree that TowZing has no obligation to provide Updates or to continue to provide or enable any particular features or functionality, and you agree that TowZing has no obligation to notify you of any such Updates.
Based on your Mobile Device settings, when your Mobile Device is connected to the Internet, then Updates will automatically download and install or 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 TowZing Platform (including certain of its features and functionalities) may not properly operate for you and certain Roadside Assistance Services may not be available to you. All Updates are part of the TowZing Platform and subject to these Terms.
- Terms applicable to the use of Third-Party Mobile Application Platforms
If you download any of TowZing’s applications (including the Customer app or Driver app) from a third-party app platform or store in or through which TowZing has made such applications available (the “App Platform”), you acknowledge and agree that:
- These Terms are an agreement between you and TowZing and not between you and the App Platform or TowZing and the App Platform;
- as between TowZing and the App Platform, TowZing is solely responsible for its compliance with any and all terms and conditions of use or services relating to such App Platform (the “App Platform Terms”) that apply to TowZing;
- as between you and the App Platform, you are solely responsible for your compliance with any and all App Platform Terms that apply to you;
- the App Platform has no obligation to provide any maintenance and support services with respect to the applications;
- in the event of any failure of the applications to conform to any applicable warranty, (i) you may notify the App Platform and the App Platform may refund the purchase price for the applications to you (if applicable), (ii) to the maximum extent permitted by applicable law, the App Platform will have no other warranty obligation whatsoever with respect to the applications, and (iii) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty is, as between TowZing and the App Platform, TowZing’s responsibility;
- the App Platform is not responsible for addressing any claims you have relating to the applications or your possession and use of the applications;
- if a third party claims that an application infringes another party’s intellectual property rights, as between the App Platform and TowZing, TowZing is responsible for the investigation, defense, settlement, and discharge of any such intellectual property infringement claim to the extent required by the applicable App Platform Terms;
- the App Platform and its subsidiaries are third-party beneficiaries of these Terms as relates to your License to the applications; upon your acceptance of the terms and conditions of these Terms, the App Platform will have the right (and will be deemed to have accepted the right) to enforce these Terms as related to your License of the applications against you as a third-party beneficiary thereof; and
- you must also comply with all applicable third-party terms of service when using the applications.
- Feedback and Suggestions
If you provide any feedback or suggestions to TowZing regarding the Customer app, Driver app, TowZing Website, or any other part of the TowZing Platform (“Feedback”), you hereby grant TowZing a non-exclusive, fully paid, royalty-free, irrevocable, transferable, sub-licensable, worldwide and perpetual license to use, copy, modify, adapt, prepare derivative works based on, publicly perform, distribute, publicly display, make, have made, use, sell offer to sell, import, and otherwise exploit that Feedback for any purpose, for all current and future methods and forms of exploitation and in any country anywhere in the world, including by incorporating such Feedback in all or any part of the TowZing Platform. If any such rights may not be licensed under applicable law, you hereby waive and agree not to assert all such rights and not to object to any use by TowZing of such Feedback. You understand and agree that TowZing is not required to make any use of any Feedback you provide. You agree that if TowZing makes use of your Feedback, TowZing is not required to credit or compensate you for your contribution, nor is TowZing required to notify you of its use of the Feedback. You represent and warrant that you have sufficient rights in any Feedback that you provide to TowZing and to grant TowZing and other affected parties the rights described above. This includes all related intellectual property rights and other proprietary or personal rights.
- S. Government Rights
The TowZing Platform is a commercial computer software, as such term is defined in 48 C.F.R. §2.101. Accordingly, if you are an agency of the U.S. Government or any contractor thereof, you receive only those rights with respect to the TowZing Platform as are granted to all other end users under license, in accordance with (a) 48 C.F.R. §227.7201 through 48 C.F.R. §227.7204, with respect to the Department of Defense and their contractors, or (b) 48 C.F.R. §12.212, with respect to all other U.S. Government licensees and their contractors.
- Jurisdictional Restrictions; Choice of Law and Exclusive Venue for all other Controversies
The TowZing Platform is based in the State of Florida in the United States. You acknowledge that you may not be able to access the TowZing Platform outside of the United States and that access thereto may not be legal by certain persons or in certain countries. If you access the TowZing Platform from outside the United States, you are solely responsible for compliance with local laws.
You agree that any controversy excluded from the Mandatory Arbitration Agreement and other provisions of Section 18, including the dispute resolution procedure and class action waiver provisions set forth in Section 18 (other than an individual action filed in small claims court with jurisdiction), shall be filed only in a court of competent jurisdiction located in Broward County, Florida, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
You agree that you will not, directly or indirectly, export, re-export, or release the TowZing Platform to, or make the TowZing Platform accessible from (or to a national or resident of), Cuba, Iraq, Libya, North Korea, Iran, Syria, or any other country designated by the United States Treasury’s Office of Foreign Assets Control (“OFAC”), including any country designated by OFAC as a State Sponsor of Terrorism. You also agree that you will not, directly or indirectly, export, re-export, or release the TowZing Platform, or make the TowZing Platform accessible, (a) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Commerce Department’s Table of Deny Orders, or (b) in any other jurisdiction or country to which export, re-export, or release is prohibited by law, rule, or regulation. TowZing reserves the right to limit the availability of the TowZing Platform to any person or geographic area at any time.
- TowZing Remedies
In order to prevent or limit irreparable injury to TowZing, in the event of any breach or threatened breach by you of any provisions of these Terms, TowZing shall be entitled to seek an injunction or other equitable relief restraining such breach. Nothing in these Terms shall be construed as prohibiting TowZing from pursuing any other remedies available to it for such breach or threatened breach, including the recovery of monetary damages from you.
- Construction; Interpretation
The headings of these Terms are for purposes of reference only and shall not affect the interpretation hereof. For purposes of these Terms, unless the context otherwise requires, (i) the words “include,” “includes,” and “including” shall be deemed to be followed by the words “without limitation”; (ii) the word “or” is not exclusive; and (iii) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to these Terms as a whole. These Terms shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument.
TowZing may make changes to these Terms at any time and from time to time, in its sole and absolute discretion, by updating and posting the revised terms on the TowZing Platform without notice to you. Your continued use of the TowZing Platform following the posting of a new version of the Terms constitutes your acceptance of any such changes. Accordingly, whenever you use the TowZing Platform in any way, you should check to see if a new version of the Terms has been posted.
TOWZING CONTACT INFORMATION
Please address any questions about TowZing and the TowZing Platform to:
Attn: Customer Support
4150 SW 28th Way,
Fort Lauderdale, Florida 33312
CLAIMS OF COPYRIGHT INFRINGEMENT
We respond to notices of alleged infringement as required by the U.S. Digital Millennium Copyright Act (the “DMCA”), including by removing or disabling access to material claimed to be the subject of infringing activity. TowZing’s copyright agent (the “Copyright Agent”) only responds to notices that comply with the requirements of the DMCA. Please see www.copyright.gov or www.chillingeffects.org/copyright for more information. Please do not send any other correspondence or inquiries to TowZing’s Copyright Agent.
If you have a good-faith belief that your work has been copied in a way that constitutes copyright infringement or that your intellectual property rights otherwise have been violated on or through the TowZing Platform, please send your claim or notice of infringement (“DMCA Notice”) to TowZing’s Copyright Agent at the address below.
Your DMCA Notice must be in writing and must include the following: a description of the copyrighted work you believe has been infringed (or, if you believe multiple copyrighted works have been infringed, a representative list); a description of the material you believe is infringing or the subject of infringing activity, together with enough information to permit TowZing to locate the material; enough information to permit TowZing to contact you, such as, your name, address, telephone number, and, if available, e-mail address; a statement that you have a good-faith belief that the allegedly infringing use of the material was not authorized by the owner of the exclusive right that is allegedly infringed (the “copyright owner”), an agent for the copyright owner, or by law; a statement that all of the information you have provided is accurate; and a statement, made under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the copyright owner. You must sign (physically or electronically) your DMCA Notice.
After we receive your DMCA Notice, we will promptly remove or disable access to the allegedly infringing materials.
TowZing may forward a copy of a DMCA Notice (including name and email address) to the alleged infringer or may forward a copy of a DMCA Notice to www.chillingeffects.org for publication. Any user may ask for a copy of any DMCA Notice, although TowZing may make certain redactions to eliminate irrelevant or personal information. TowZing will terminate, under appropriate circumstances, the Accounts of users who are repeat copyright infringers, and reserves the right, which it may exercise in its sole and absolute discretion, to terminate any user for actual or apparent copyright infringement or other violations of intellectual property rights.
If we receive a counter-notification from you and TowZing does not receive notice that a court action was filed, we will no longer accept notices from the same copyright holder regarding the content in question on the reported pages.
Under the DMCA, a counter-notification must be in writing and include following:
- Identification of the material that has been removed or to which access has been disabled, including the location at which the material appeared before it was removed or access to it was disabled;
- a statement under penalty of perjury that you have a good-faith belief that the material was removed or disabled as a result of mistake or misidentification;
- your name, address, telephone number, and, if available, e-mail address;
- a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which the address provided by you is located (or if the address provided by you is outside the United States, you consent to the jurisdiction of the Federal District Court for any judicial district in which TowZing may be found) and that you will accept service of process from the person who provided the notice or an agent of such person; and
- your physical or electronic signature on the counter-notification.
Copyright Agent Contact Information:
Attn: Copyright Agent
4150 SW 28th Way,
Fort Lauderdale, Florida 33312
Email: copyright.agent@TowZing.com the subject line “Copyright Agent.”