By using the web-based software program Easy Truck Shop (“Software”) and website services at easytruck.shop and easytruckshop.com (collectively “Websites”), you (“User”) accept the terms and conditions of this Software and Websites User Agreement (“Agreement”) with Easy Truck Shop, LLC, (“Easy Truck Shop”).
The Software and Websites (collectively, the “Services”) are designed to help truck repair shops operate smoothly, track their business and grow. The Services allow for five different permissions within the User’s business: Owner/Administrator, Office Worker, Technician, Parts Manager, and Trainee. The Services are mobile friendly for phones and tablets, as well as desktop compatible. The Services allow User to keep track of customers and their fleets, adding customers and vehicles as needed, and track repairs, including labor hours clocked and billed, parts and complaints for each repair. All the work is visible in one clear view, and customers see detailed and live progress on their repair. The Services include an inventory management system, that allows User to automatically order and return parts, interact with vendors on delivery dates and availability, and provide reports and financial statistics like profitability and trends, even on parts. The Services provide calendar-based planning to give User a clear overview of the availability of the shop and keep customers updated on progress or potential delays. The Services integrate with QuickBooks, the Department of Transportation and Trucker Path (the most commonly used app for truck drivers for locating shops, fuel-stations and weigh stations).
From time to time, Easy Truck Shop may change, discontinue or limit any of the Services or may change or remove features or functionality of the Services. Easy Truck Shop shall notify User of any material change to or discontinuation of the Services at least thirty (30) days prior to the effectiveness of such change or discontinuation. Easy Truck Shop shall use commercially reasonable efforts to continue support for previous version(s) of any Software changed, discontinued, or otherwise modified for such period of time as Easy Truck Shop shall determine to be reasonable following such change, discontinuation or other modification.
3.1 Easy Truck Shop Property. Easy Truck Shop owns and reserves all right, title, and interest in and to: (a) the Software (including any object code, source code, underlying processes, algorithms, text, sound, images and design contained therein); any hardware, files, processes, systems, databases and tools used or provided to User by Easy Truck Shop, or third parties engaged by Easy Truck Shop, to provide the Services; (c) other tangible and intangible personal property relating to the Services, and (d) the trade names, trademarks, service marks, copyrights, patents, inventions, trade secrets, know-how and other intellectual property rights relating to the foregoing (collectively, the “Easy Truck Shop Property”). Easy Truck Shop does not create, operate, control or endorse any data, information, or third-party products processed by or used in conjunction with the Services.
3.2 User owns all right, title, and interest in and to all content of User that User: (i) runs on the Services, (ii) cause to interface with the Services, or (iii) uploads to the Services using User’s means of access the Services authorized by Easy Truck Shop (collectively, “User’s Content”). Except as provided in this section 3.2, Easy Truck Shop obtains no rights under this Agreement from User to User’s Content, including any related intellectual property rights. User consents to Easy Truck Shop’s use of User’s Content to provide the Services to User. Easy Truck Shop may disclose User’s Content to provide the Services to User or to comply with a request of a governmental agency or court. User represents and warrants to Easy Truck Shop that: (i) User or its licensors own all right, title, and interest in and to User’s Content; (ii) User possesses all rights in User Content necessary to grant the rights contemplated by this Agreement; and (iii) User Content will not violate any applicable law, including software infringement and intellectual property laws, or the terms of this Agreement.
3.3 The technical processing and transmission of data provided by User and other data is necessary to User’s use of the Services and User’s use of certain third-party services that are integrated with or otherwise available through or in connection with User’s use of the Services. Except as otherwise provided herein, User owns all right, title, and interest, including all intellectual property rights, in and to all information, data, and other content, that is submitted, posted, or otherwise transmitted by or on behalf of User or an authorized user through the Services.
3.4 Easy Truck Shop owns all right, title, and interest in the data and information related to USER’s use of the Services that is used by Easy Truck Shop in an aggregate and anonymized manner, including to compile statistical and performance information related to the provision and operation of the Services (collectively, “Resultant Data”), and all intellectual property rights therein belong to and are retained solely by Easy Truck Shop. Easy Truck Shop may compile Resultant Data based on USER’S data input into the Services.
3.5 Suggestions. If User provides any suggestions, comments or advice to Easy Truck Shop, Easy Truck Shop shall own all right, title, and interest in and to the suggestions, even if User has designated the suggestions as confidential or proprietary. Easy Truck Shop may use the suggestions without restriction. User irrevocably assigns to Easy Truck Shop all right, title, and interest in and to the suggestions. User agrees to render to Easy Truck Shop any assistance Easy Truck Shop may require to document, perfect, and maintain Easy Truck Shop’s rights in the suggestions.
4.1 Easy Truck Shop grants User a limited, revocable, non-exclusive, non-sub licensable, non-transferrable license, solely in connection with this Agreement to access and use the Services. Except as provided in this Section, User obtains no other rights under this Agreement from Easy Truck Shop, including any related intellectual property rights. The license granted to User in this Agreement is conditional on User’s compliance with this Agreement, and will immediately and automatically terminate if User does not comply with any term or condition of this Agreement. User may use that portion, and only that portion, of Easy Truck Shop Property that is contemplated in this Agreement.
4.2 User grants Easy Truck Shop a non-exclusive, royalty-free, worldwide license to reproduce, distribute, and otherwise use, review and display Resultant Data and perform all acts with respect to User’s Content as may be necessary for Easy Truck Shop to (a) provide the Services or (b) analyze USER’s use of third-party services that are integrated with or otherwise available through or in connection with USER’s use of the Services.
The Services may be used only by User. User may not use the Services in any manner or for any purpose other than as expressly permitted by this Agreement. User may not, may not attempt to, and may not knowingly allow any person to: (a) Copy, modify, repair, assemble, translate or otherwise create derivate works of any software or other technology included in, or used in connection with, the Services, (b) Reverse engineer, disassemble, or decompile the Services or apply any other process or procedure to derive the source code of any software included in the Services; (c) Access or use the Services in a way intended to avoid incurring fees or compliance with applicable laws, exceed usage limits or quotas, or engage in unlawful activity; or (d) Transfer, publish, distribute (other than Services provided expressly for distribution), or sublicense or encumber the Services, or its rights in this Agreement or its use of the Services. Any violation of these restrictions is a serious threat to Easy Truck Shop’s business and ability to exist.
The fees for the Services (“Fees”) are set forth in the Schedule of Services (monthly or yearly). Fees are exclusive of any taxes which, if applicable, shall be paid by User. Fees are subject to change at any time by Easy Truck Shop with at least thirty (30) days prior notice. Easy Truck Shop shall invoice User for Fees monthly.
7.1 Method and Timing. All Fees are due via credit card or automated clearinghouse (“ACH”) and are not refundable. Any initial setup fee for the Services fee set forth on the Schedule of Services or in any written communication between Easy Truck Shop and User will be due and payable upon execution of this Agreement and must be paid by User before Easy Truck Shop must perform such setup. Acceptance of this Agreement by User authorizes Easy Truck Shop to charge the credit card of User on a monthly basis for the Services rendered. User is responsible for all taxes. If a credit card charge is attempted and does not go through, User will have ten (10) days to complete payment. If payment is not made in ten (10) days, User’s account and the Services may be terminated. The Services may be re- activated by User within thirty (30) days of termination with a payment of all funds due to Easy Truck Shop. User is responsible for all periodic charges through the term of this Agreement, and the term will not be extended for any time the Services were terminated for non-payment. In addition to any rights and remedies available to Easy Truck Shop, if User fails to pay any Fee within fifteen (15) days from the date due, Easy Truck Shop may impose a late charge equal to the lesser of one and one-half percent (1.5%) per month or the maximum allowable under applicable law. User shall be liable for any costs and expenses (including reasonable attorneys’ fees) incurred by Easy Truck Shop in collecting any amounts due and payable hereunder.
7.2 Disputes. Disputes regarding Fees must be submitted to Easy Truck Shop in writing within fifteen (15) days of the date such payment is due, accompanied by a reasonably detailed explanation for the basis of such dispute. If Easy Truck Shop determines that the disputed Fee was erroneously charged or that other credits or adjustments are appropriate pursuant to this Agreement, Easy Truck Shop will notify User of such determination and will credit User’s invoice for such amount in the next appropriate invoice. If Easy Truck Shop disagrees with User’s dispute, the dispute shall be resolved as provided elsewhere in this Agreement.
8.1 Generally. The Schedule of Services, attached hereto, shall apply to the provision, use of, and access by User to, the Services. User shall abide by the terms and conditions included in the Schedule of Services and abide by all amendments thereof, and use policies set forth from time to time by Easy Truck Shop, following thirty (30) days written notice of such amendments and policies to User from Easy Truck Shop. Subject to the terms and conditions of this Agreement, Easy Truck Shop will use commercially reasonable efforts to provide User with the Services. Easy Truck Shop may establish and change from time to time general practices and limits on the use of the Services, the amount of central processing unit (CPU) processing, bandwidth and disk usage, and levels of activity. Easy Truck Shop will use commercially reasonable efforts to provide User with advance notice of these practices and limits. 8.2 Additional Services. The procurement, provision, installation and configuration of User’s equipment, development and programming of applications and other third-party software, including database and macro design, components thereof, and other programming services (“Additional Services”) are outside the scope of the Services and subject to additional fees. Prior to performing such Additional Services, Easy Truck Shop will obtain User’s prior written approval.
8.2 User’s Accounts. To access the Services, Easy Truck Shop will make accounts available to User based on User ID’s authorized by Easy Truck Shop. Each User account will correspond to a valid email address to be provided to Easy Truck Shop by User. Unless explicitly permitted by the Schedule of Services, User is limited to one account per email address. User may terminate an account at any time; provided that the reduction of User Accounts shall not result in a reduction of monthly service fees below the Minimum Monthly Service Fee set forth in the Schedule of Services. The number of User Accounts available for use by User shall be set forth in the Schedule of Services. Each authorized user of the User Accounts shall be an End User as defined in this Agreement.
8.3 Account Activities.
User is responsible for all activities carried out under its User Accounts, regardless of whether such activities are undertaken by User, its employees, or third parties, including contractors or agents. User shall contact Easy Truck Shop immediately if User believes that an unauthorized person may be using any of its User Accounts or User Account information, including login credentials. Neither Easy Truck Shop nor its third-party vendors shall be responsible for unauthorized access to any User Accounts, or to any of User’s data or systems wherever located due to the loss or theft of User Account login credentials, user names or passwords, unless caused by Easy Truck Shop’s breach of the this Agreement, or is the result of the gross negligence or intentional misconduct of Easy Truck Shop or its third-party vendor.
8.4 Activation. The transfer of User Content as set forth in the Schedule of Services (“Activation”) will be completed by Easy Truck Shop using commercially reasonable efforts. User shall ensure that User’s equipment is made available to Easy Truck Shop at User’s sole cost and expense during the period of the migration until completion of Activation as necessary for the proper and timely integration of User’s Content. User shall supply Easy Truck Shop detailed information for each authorized User including but not limited to username, password, email addresses, application assignments and security rights. Access to User’s equipment, User Content and User’s reasonable cooperation and assistance is essential for proper and timely Activation.
8.5 Other Activities. Easy Truck Shop does not in the ordinary course pre-screen or monitor content of the database, User’s website and User’s Content, or any other communications. However, Easy Truck Shop may determine in its sole discretion what is and is not acceptable content in connection with the Services, to limit placement of any content in a database or on any other area provided in connection with the Services, to use commercially reasonable efforts to remove, alter or block access to any offensive, objectionable, or unacceptable content immediately and without prior notice, to determine in its sole discretion what is and is not an appropriate conduct and use of any of the Services, and to cease providing or bar access to any or all of the Services to any user at any time, for any reason or for no reason, without prior notice. Easy Truck Shop may monitor and investigate complaints regarding any of the foregoing, and User agrees to grant Easy Truck Shop access to User’s account at any time without notice, and to cooperate fully with Easy Truck Shop in providing access and information as may be requested at any time and from time to time. User agrees that any reservation of rights by Easy Truck Shop imposes no obligation of any kind on Easy Truck Shop to take any of the foregoing actions.
9.1. User’s Equipment. User shall be responsible for obtaining and maintaining throughout the Term, all User’s equipment necessary for each authorized User to access and use the Services at User’s facilities. Easy Truck Shop will assist User in identifying needs or upgrades to User’s equipment as part of the Activation, and thereafter as Additional Services. User shall be responsible for costs and expenses, if any, associated with the procurement, on-site installation, configuration or modification of User’s equipment or any component thereof, including any on-site consulting services provided by Easy Truck Shop or a third party engaged by User. User shall provide adequate access to User’s facilities, personnel and equipment as is reasonably required for performance of the Services. Easy Truck Shop personnel shall comply with User’s reasonable requirements applicable to all third-party contractors that are communicated to Easy Truck Shop while at User’s facilities.
9.2 User’s Content. User is solely responsible for the proper configuration, development, content, operation, maintenance and use of all content that User (a) runs on the Services, (b) causes to interface with the Services, or (c) uploads to the Services (collectively, “User’s Content”), including: (y) the technical operation of User’s Content, including ensuring that applications installed by User and used within the Services are compatible with the then-current application programing interfaces for the Services; and (z) compliance with use policies as provided herein, and all laws and regulations related to User’s Content. User owns, or has (and will continue to have) the full power, title, licenses, consents and authority, in and to User’s Content, including all designs, images, audio, fonts, logos and any othermaterials contained therein. User is responsible for any data that is collected on its website, including any website provided as part of the Services, and how such data is used.
9.3 Third Party Content. User’s use of third party content is at User’s sole risk.
9.4 Log-in Credentials. User is solely responsible for maintaining the security of its usernames and passwords. Any use of User’s user names or passwords shall be deemed authorized by User and User shall remain liable for all actions thereunder, unless User provides advance written notice to Easy Truck Shop that its user names or passwords have been compromised. Log-in credentials and private keys generated by the Services are for User’s internal use only. User may not transfer or sublicense log-in credentials or private keys provided or generated by Easy Truck Shop to any other entity or person, but User may disclose its private key to its agents and to subcontractors performing work on its behalf, provided such agents and contractors agree to comply with the terms of this Agreement.
9.5 User Changes. User shall notify Easy Truck Shop in writing prior to any changes to User’s equipment, User’s Content, or third-party content, including but not limited to changes to any network configuration, hardware, or User-side software and any upgrades or modifications (“User Changes”). User Changes may limit or disable access, use, performance and functionality of theServices and disruption may occur as a result of User Changes. Easy Truck Shop shall be under no obligation to modify the Services or its systems as a result of User Changes nor shall Easy Truck Shop be liable for any disruption or impairment of the Services caused by User Changes.
9.6 Compliance. User shall comply with all laws applicable to User’s Content and the Services. User will maintain a privacy policy that complies with applicable law and accurately reflects the data collection and use practices on its website. User will not phish, collect, upload, or otherwise make available credit card information or other forms of financial data used for collecting payments, unless done in accordance with any applicable law, including, with the PCI DSS standard when applicable. User shall comply with the Telephone Consumer Protection Act, the Controlling the Assault of Non-Solicited Pornography and Marketing (CAN-SPAM) Act of 2003, the Federal Trade Commission’s Telemarketing Sales Rule, and all other laws and regulations concerning privacy, telemarketing, and Internet marketing when using the Services.
9.7 Defamatory or Abusive Material. User shall not use the Services to upload, or upload to the Services, defamatory, obscene, profane, vulgar, threatening, offensive, abusive, inaccurate or illegal material. User shall not engage in any activity that Easy Truck Shop determines in its sole discretion may be harmful to other users of the Services.
9.8 Unauthorized Access. User shall not access, or attempt to access, another person’s or entity’s accounts without proper authorization to do so, or attempt to disrupt or interfere with the Services in any manner. Each person with authorized access for User must register and maintain a valid email address with Easy Truck Shop in order to receive system notifications.
Easy Truck Shop shall be diligent and professional in the performance of its obligations herein.
10.1 Data Security. Easy Truck Shop shall perform commercially reasonable measures designed to ensure the security, confidentiality, and integrity of User Content transmitted through the equipment or software owned, licensed or operated by Easy Truck Shop to provide Services (collectively, the “Services Equipment”). User shall not have any right or access to any data center or other facility where the Services Equipment is located nor to use the Services Equipment except in connection with the Services. Easy Truck Shop does not warrant or guarantee the integrity or the security of the Services or of the content, information or data transmitted through or contained within any portion of the Services.
10.2 Disaster Preparedness and Recovery. Easy Truck Shop will provide and maintain a Disaster Preparedness and Recovery Plan (‘”Recovery Plan”), which will be limited to the activities necessary to restore the Services and recover the User’s Content to the last back up. Easy Truck Shop will maintain and improve the Recovery Plan as necessary to keep the plan current with applicable industry standards and best practices, or as otherwise necessary to satisfy Easy Truck Shop’s obligations under this Agreement. Upon Easy Truck Shop’s determination of a disaster or the possibility of the occurrence of a disaster situation, Easy Truck Shop will promptly notify User and implement the Recovery Plan. During any disaster, Easy Truck Shop will notify User daily of the status of the disaster. During a disaster, Easy Truck Shop will not give greater priority to any of its other users in its recovery efforts than it gives to User. Upon completion of a disaster, Easy Truck Shop will, as soon as reasonably practical, provide User with an incident report detailing the reason for the disaster and all actions taken by Easy Truck Shop to resolve the disaster.
10.3 Easy Truck Shop Is Not A Publisher. Easy Truck Shop is not a publisher of any User’s Content, does not in any way endorse User’s Content, and assumes no liability for any User’s Content or other content uploaded, posted, published and/or made available by User.
11.1 “Confidential Information” means all information and other materials received by either party pursuant to this Agreement or designated in writing as “Confidential”, including but not limited to information related to businesses and products, including, without limitation, business practices, techniques and strategies, plans, agenda, sales and marketing information, patents, trade secrets, copyrights, creations, and inventions, customer and supplier information, models, formulas, ideas, concepts, designs, diagrams, flow charts, pricing policies and models, market materials, research and development data, reports, studies, contacts, communications, records, proprietary computer software programs and the like, such as, in the case of Easy Truck Shop, the Services, and its related documentation and manuals, and in the case of User, User’s Content.
11.2 Easy Truck Shop will not examine User Content stored or transmitted to the Services Equipment, except at User’s request and only for the purposes of providing User with technical support services and the services outlined in this Agreement. Easy Truck Shop will not use for its own benefit or for the benefit of a third party any User Content stored on the Services Equipment or transmitted through the Services.
11.3 Each party shall use the other’s Confidential Information only to perform its obligations under, and for the purposes of, this Agreement. Neither party shall use the other’s Confidential Information in a manner that could be detrimental to the disclosing party or for the benefit of a third party; provided, that the foregoing shall not prevent a party form exercising or defending its rights hereunder. Each party shall maintain the confidentiality of all Confidential Information in the same manner in which it protects its own information of like kind, but in no event shall either party take less than reasonable precautions to prevent the unauthorized disclosure of the Confidential Information. Each party may disclose Confidential Information to its employees and attorneys on a need to know basis, as required by law, and to defend against claims of a third party that the Services infringe upon a third party’s intellectual property or proprietary rights (an “Infringement Claim”). Each Party shall be responsible for ensuring its employees maintain the confidentiality of the other Party’s Confidential Information on the terms and conditions herein. Each party will promptly notify the other party if it receives a request for the other party’s Confidential Information (unless notice is prohibited by law), will reasonably cooperate with the other party’s efforts to seek protection from disclosure and disclose only that portion of Confidential Information required under applicable law.
11.4. The confidentiality provisions of this Agreement do not apply to information that is entirely in the public domain; was known to the Party receiving the Confidential Information prior to receiving the information from the disclosing Party; received lawfully from a third party through no breach of any obligation of confidentiality owed to the other Party; or is created by a Party’s employees without the use of the other Party’s Confidential Information. Notwithstanding the restrictions on disclosing Confidential Information herein, a Party may disclose the other Party’s Confidential Information to the extent required by law or judicial process.
11.5. Upon termination of this Agreement, or upon a Party’s request, each Party shall return to the other, or destroy, all Confidential Information of the other in its possession.
11.6. The Parties’ rights for breach of confidentiality shall survive termination of this Agreement. In the event of a breach of this Section 11, the non-breaching party will be entitled to injunctive relief in addition to all other remedies provided under the Agreement or available by law.
User will indemnify and hold Easy Truck Shop harmless from all claims, liability and expenses (including reasonable attorneys’ fees) arising out of or related to User’s use of the Services (unless the claim directly relates to Easy Truck Shop’s willful misconduct), User’s breach of any provision of this Agreement, or any claim arising out of User’s Content or other content posted or transmitted by any person or entity associated with or authorized by User (other than Easy Truck Shop) through the use of the Services. User will cooperate as fully as is reasonably required in the defense of any such claims, liability and expenses. Easy Truck Shop may select counsel of its own choosing for, and otherwise control, its own defense, at User’s expense, of any matter subject to indemnification by User, which shall not excuse User’s indemnity obligations. User will be liable to Easy Truck Shop for any costs and attorneys’ fees that Easy Truck Shop incurs to successfully establish or enforce its right to indemnification under this paragraph.
13.1 Easy Truck Shop warrants to User that Easy Truck Shop owns or has obtained a license to the Services here hereunder and that Easy Truck Shop has not received an Infringement Claim. User shall promptly advise Easy Truck Shop in writing after learning of any Infringement Claim. In the event of an Infringement Claim, Easy Truck Shop’s sole obligation, and User’s sole and exclusive remedy, shall be for Easy Truck Shop to, at Easy Truck Shop’s sole option and expense, to either:
Claim so that it is functionally equivalent and no longer infringing; (c) Provide a functionally equivalent non-infringing work-around; or (d) Refund to User the fees actually paid to Easy Truck Shop in the immediately preceding three (3) month period for User’s use of the Services.
13.2 Easy Truck Shop may suspend or discontinue access and use of any part of, and performance of, the Services at any time upon an Infringement Claim being made or suspected by Easy Truck Shop.
13.3 THE FOREGOING WARRANTY SHALL NOT APPLY TO PERFORMANCE ISSUES OR DEFECTS IN THE SERVICES THAT RESULTED FROM FACTORS OUTSIDE OF EASY TRUCK SHOP’S REASONABLE CONTROL; THAT RESULTED FROM ANY ACTIONS OR INACTIONS OF USER; OR THAT RESULTED FROM USER’S EQUIPMENT OR ANY THIRD PARTIES’ EQUIPMENT NOT WITHIN THE CONTROL OF EASY TRUCK SHOP.
13.4 EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, EASY TRUCK SHOP MAKES NO WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY AND FITNESS FOR ANY PARTICULAR PURPOSE, INCLUDING BUT NOT LIMITED TO THE SERVICES OR SERVICES EQUIPMENT.
13.5 EASY TRUCK SHOP’S WARRANTIES SPECIFICALLY SET FORTH IN THIS AGREEMENT SHALL EXTEND SOLELY TO USER. ANY OBLIGATION OF EASY TRUCK SHOP HEREUNDER TO USER SHALL EXTEND ONLY TO USER AND NOT TO ANY THIRD PARTY.
13.6 EASY TRUCK SHOP HAS SET ITS PRICES AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMERS OF WARRANTIES AND DAMAGES SET FORTH HEREIN. THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. THE LIMITATION AND EXCLUSIONS OF LIABILITY AND DISCLAIMERS SPECIFIED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED THEIR ESSENTIAL PURPOSE.
14.1 NOTWITHSTANDING ANYTHING CONTAINED HEREIN TO THE CONTRARY, EASY TRUCK SHOP’S MAXIMUM LIABILITY TO USER IS LIMITED TO THE FEES PAID BY USER TO EASY TRUCK SHOP IN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE FOR WHICH ANY CLAIM OF LIABILITY IS MADE.
14.2 NOTWITHSTANDING THE FOREGOING, EASY TRUCK SHOP SHALL NOT BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES UNDER THIS AGREEMENT, INCLUDING, BUT NOT LIMITED TO, DAMAGES ARISING OUT OF LOSS OF USE, LOSS OF DATA, LOSS OF PROFITS, LOSS OF BUSINESS, LOSS OF ENTERPRISE OR LOSS OF OPPORTUNITY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, CONSEQUENCES OF ERRORS, DOWNTIME, WHETHER SCHEDULED OR UNSCHEDULED, OR FAULTY TRANSMISSION.
14.3 EASY TRUCK SHOP SHALL NOT BE LIABLE OR RESPONSIBLE IN ANY WAY FOR ANY INACCURACY, ILLEGALITY, AND/OR INAPPROPRIATENESS OF ANY USER’S CONTENT OR OTHER CONTENT PROVIDED THROUGH THE SERVICES, ANY DAMAGE, DESTRUCTION OR CORRUPTION OF ANY CONTENT OR OTHER DATA BY THE SERVICES, OR ANY USE OR MISUSE OF, OR INABILITY TO USE, THE SERVICES BY ANY PERSON OR ENTITY.
14.4 Any claim or cause of action which User may have arising out of or related to this Agreement or the Services must be filed within one (1) year after such claim or cause of action arises, or the claim or cause of action will forever be barred.
14.5 Each party must provide written notice to the other party prior to initiating any action against the other. The written notice must describe the factual basis for the action and provide at least thirty (30) days for the receiving party to remedy, cure or otherwise resolve the matters stated in the notice.
14.6 USER or Easy Truck Shop may be transmitting data over the Internet, and over various networks, only part of which may be owned and/or operated by Easy Truck Shop. Easy Truck Shop is not responsible for any portions of data that are lost, altered, intercepted or stored without authorization during the transmission of data across networks not owned and/or operated by Easy Truck Shop.
15.1 Unless otherwise terminated in accordance with the terms hereof, the initial term of this Agreement is either one (1) month or one (1) year from User’s first use of the Services and will automatically renew similar length terms. The actual length of term shall be chosen by User upon agreeing to use the Services. Termination of this Agreement shall terminate any obligations, rights, or other interests contained within any Schedule of Services, or other accompanying documents.
15.2 User may terminate this Agreement at any time concurrent with the end of a term by providing to Easy Truck Shop a written notice of termination at least thirty (30) days prior to the end of the term.
15.3 Either party may terminate this Agreement if the other party fails to cure a breach of this Agreement within five (5) days of receipt by the breaching party of written notice from the non-breaching party of such breach; provided, however, that if the breach cannot reasonably be cured within said five (5) days, the breaching party proposes a course of action to cure the breach (other than a breach for non- payment), and the breaching party acts in good faith to cure same, such five (5) day cure period shall be extended for up to thirty (30) days to permit the breach to be cured, as reasonably determined by Easy Truck Shop, which determination will not be unreasonably denied, conditioned or delayed.
15.4 All amounts due and outstanding and all other amounts that are due and payable through the date of termination shall become immediately due and payable upon termination or non-renewal of this Agreement. Termination of this Agreement by either party shall not relieve User of User’s obligation to pay any fees or other charges incurred through the date of termination.
15.5 Upon termination of the Agreement or close of business operations by either party, Easy Truck Shop shall deliver to User a digital copy of all User Content and information stored on the Services Equipment on a standard digital backup tape (or other mutually acceptable media or transfer method) to User’s physical address, unless termination is due to breach or default of payment. At User’s request, User and Easy Truck Shop shall cooperate in good faith in order to provide for the orderly transition of the User Content store on the Services Equipment to User’s designated computer services. Termination assistance constitutes Additional Services and additional fees and charges will apply. If additional services for termination assistance are requested, Easy Truck Shop and User will express their mutual agreement by completing and signing an authorization form, which shall set forth the service charges and rates for performance. Easy Truck Shop may require all or part of such Additional Services to be paid in advance prior to providing any termination assistance.
15.6 After termination of this Agreement and delivery or transfer of all User Content to User, Easy Truck Shop will destroy any Confidential Information in its possession, unless User requests in writing that such Confidential Information be returned. Easy Truck Shop will remove all User Content and information stored on the Services Equipment; provided, however, that notwithstanding the foregoing, Easy Truck Shop may maintain an encrypted digital backup tape in a secure location for a reasonable period of time solely for legal purposes.
User shall not, directly or indirectly (in association with any person, partnership, organization or entity) in any manner, represent, provide services or engage in any aspects of business that would be deemed similar in nature to the business of Easy Truck Shop as described in this Agreement without written consent of Easy Truck Shop. This section 15 shall survive expiration or termination of this Agreement for three (3) years and shall apply to any location within one hundred (100) miles of any location operated by User.
17.1 Except as provided herein, User may assign this Agreement and any rights and obligations hereunder only if: (a) User obtains the prior written consent of Easy Truck Shop, which consent shall not be unreasonably withheld, conditioned or delayed. It shall not be unreasonable for Easy Truck Shop to require User to pay Easy Truck Shop additional fees shown by Easy Truck Shop to be reasonable under the circumstance to address increased usage related to the assignment.
17.2 Easy Truck Shop may assign this Agreement and all rights and obligations hereunder to any parent, affiliate, subsidiary, or successor entity of Easy Truck Shop. Easy Truck Shop must notify User of any such assignment thirty (30) days prior to any such assignment, and deliver to User the assignee’s acceptance in writing of the terms and conditions of this Agreement.
This Agreement, and the documents referenced herein, contain the complete, full and exclusive understanding of Easy Truck Shop and User with respect to the provision of the Services by Easy Truck Shop to User. This Agreement supersedes all prior or contemporaneous representations, understandings, agreements, or communications between Easy Truck Shop and User, whether written or verbal, regarding the subject matter of this Agreement. The parties have not relied on any statement, representation, warranty, or agreement of the other party or of any other person on such party’s behalf, including any representations, warranties, or agreements arising from statute or otherwise in law, except for the representations, warranties, or agreements expressly contained in this Agreement.
Failure by Easy Truck Shop to enforce any provision of this Agreement will not constitute a present or future waiver of such provision, nor limit Easy Truck Shop’s right to enforce such provision at a later time. All waivers by Easy Truck Shop must be in writing to be effective.
If any portion of this Agreement is held to be invalid or unenforceable, the remaining portions of this Agreement will remain in full force and effect. Any invalid or unenforceable portions will be interpreted without derogation to the effect and original intent of the parties. If such construction is not possible, the invalid or unenforceable portion will be severed from this Agreement. At the option of Easy Truck Shop, the rest of the Agreement will remain in full force and effect, or may be terminated and be of no further force and effect as of the date of termination by Easy Truck Shop.
This Agreement shall be binding upon the heirs, executors, administrators, successors and assigns of Easy Truck Shop and User. No person or entity is intended to be a third-party beneficiary of any provision of this Agreement.
Except as otherwise specifically provided in this Agreement, all notices and statements may be sent by electronic mail, facsimile or overnight delivery to the electronic mail address, fax number or delivery address most recently provided in writing or via online submission to the other party. For overnight deliveries, notices and statements will be deemed to be received upon personal delivery. For facsimile and electronic mail deliveries, notices and statements will be deemed to be received upon transmission.
Neither party shall be liable for failure to fulfill its obligation under this Agreement for delays in delivery due to causes beyond its reasonable control, including, but not limited to, acts of God, acts of any governmental body, acts of terrorism, war, insurrection, sabotage, embargo, fire, flood, pandemic, epidemic, acts or omissions of the other party, man-made or natural disasters, material shortages, strikes, interruption of or delay in transportation, unavailability of, interruption or delay in telecommunication or third party services (including DNS propagation), failure of third party software or hardware, or inability to obtain raw materials, supplies, or power used in equipment needed for the provision of the Services. The time for performance of any such obligation shall be extended to account for the time period lost by reason of the delay.
The laws of the State of Washington, without reference to conflict of law rules, govern this Agreement and any dispute of any sort that might arise between Easy Truck Shop and User. Any dispute relating in any way to the Services or this Agreement will be adjudicated in any state or federal court in King County, Washington. User irrevocably consents to the exclusive jurisdiction and venue in those courts. Easy Truck Shop may seek injunctive or other relief in any court of competent jurisdiction for any actual or alleged infringement of intellectual property or other proprietary rights belonging to Easy Truck Shop, its affiliates, or any third party. Subject to the express exclusions and limitations set forth in this Agreement, all remedies set forth in this Agreement are cumulative and in addition to and not in lieu of any other remedies of any party at law or in equity.
The headings in this Agreement are solely for convenience or reference and shall not be given effect in the construction or interpretation of the Agreement.
Any amendment of this Agreement will require the consent of both parties, however, User’s consent may be provided by User’s continued use of the Services after notice from Easy Truck Shop of an amendment of this Agreement.
The parties represent and warrant that they have full authority on behalf of the party whom they represent to execute and deliver this Agreement and to perform their obligations under this Agreement.