These terms of service constitute a binding agreement between Customer and Dent Ops LLC, a Virginia limited liability company (the “Company”). The following terms and conditions, together with any documents expressly incorporated herein by reference (collectively, the “Terms of Service”) govern (i) Customer’s access to and use of www.dentops.com, including any content, functionality, and services offered on or through such website, whether as a guest or a registered user (collectively, the “Website”); and (ii) any services, products, or solutions provided by the Company to Customer (collectively, the “Services”).
PLEASE READ THE TERMS OF SERVICE CAREFULLY BEFORE YOU START TO USE THE WEBSITE OR THE SERVICES. BY USING THE WEBSITE OR THE SERVICES, OR BY CLICKING TO ACCEPT OR AGREE TO THE TERMS OF SERVICE WHEN THIS OPTION IS MADE AVAILABLE TO YOU, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND AND ABIDE BY THE TERMS OF SERVICE. IF YOU DO NOT AGREE TO THE TERMS OF SERVICE, YOU MUST NOT ACCESS OR USE THE WEBSITE OR THE SERVICES.
IF YOU ARE ENTERING INTO THE TERMS OF SERVICE ON BEHALF OF A COMPANY, INSTITUTION, ORGANIZATION, OR OTHER ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE REQUISITE AUTHORITY TO USE THE WEBSITE AND THE SERVICES ON SAID ENTITY’S BEHALF AND BIND SAID ENTITY TO THE TERMS OF SERVICE.
THE WEBSITE AND THE SERVICES ARE EXCLUSIVELY OFFERED AND AVAILABLE TO USERS WHO ARE AT LEAST EIGHTEEN (18) YEARS OF AGE AND RESIDE IN THE UNITED STATES OR ANY OF ITS TERRITORIES OR POSSESSIONS. BY USING THE WEBSITE OR THE SERVICES, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH THE COMPANY, POSSESS THE REQUISITE AUTHORITY TO ENTER INTO SUCH A CONTRACT, AND MEET ALL OF THE FOREGOING ELIGIBILITY REQUIREMENTS. TO THE EXTENT ANY OF THE FOREGOING REPRESENTATIONS ARE UNTRUE, YOU MUST NOT ACCESS OR USE THE WEBSITE OR THE SERVICES.
Definitions
Certain capitalized terms not otherwise defined in the Terms of Service have the meanings set forth below:
“Account” means an online account created on or through the Website by or on behalf of Customer through which Customer accesses and uses the Services.
“Authorized Users” means, collectively, any employees, contractors, agents, or other individuals invited by Customer to access and use the Services under its Account. An Authorized User is a natural person.
“Claim” means an insurance claim related to automotive hail damage repair or other paintless dent repair work submitted by Customer to the Company for audit, supplement, or other processing services.
“Confidential Information” means all proprietary and confidential information and materials of either party, whether in written, oral, or electronic form and whether labeled or otherwise designated as “confidential,” and will include, without limitation, information relating to a party’s business and marketing plans and processes; rates, fees, and other terms of pricing; customers or contractors; software and technology; or the type or quality of services performed. Confidential Information will not include information already known or independently developed by the recipient, in the public domain through no wrongful act of the recipient, or received by the recipient from a third party who was authorized to disclose it.
“Customer” means you individually or the entity on whose behalf you have accepted these Terms of Service and access or use the Website and/or the Services.
“Customer Data” means Customer’s (or its Authorized Users’) data received, collected, used, processed, stored, or generated through or as a result of Customer’s use of the Services, including but not limited to Account information, repair estimates, vehicle photographs, insurance documentation, and Claim-related information.
“Intellectual Property Rights” means all intellectual property rights, howsoever arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, domain names, design rights, database rights, and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
“Company IP” means all technologies (including the Website or any other software) and all Intellectual Property Rights incorporated in or reading on any Service and any documentation provided to Customer or its Authorized Users regarding the Services, including any update or upgrade to the foregoing.
“Privacy Policy” means the Company’s Privacy Policy in effect from time to time, available at https://dentops.com/privacy, and incorporated by reference into the Terms of Service.
“Services Agreement” means any separate written agreement executed between Customer and the Company for governing specific Services.
“Third-Party Claims” means any claims, demands, actions, or proceedings brought by third parties, including but not limited to vehicle owners, insurance companies, or other parties related to Claims processed by the Company.
“User Credentials” means, collectively, login IDs, passwords, and other Account details used to access the Services.
Account Access and Security
Customer is responsible for making all arrangements necessary for Customer to have access to the Website and the Services and ensuring that all persons who access the Website or the Services through Customer’s internet connection or Account are aware of the Terms of Service and comply with them.
The Company reserves the right to withdraw or amend the Website and any service or material it provides on the Website in the Company’s sole discretion without notice. The Company will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, the Company may restrict user access, including registered user access, to some parts of the Website or the entire Website.
To access the Website or the Services, Customer may be asked to provide certain registration details or other information. It is a condition of Customer’s use of the Website and the Services that all the information Customer provides be correct, current, and complete. Customer agrees that all information Customer provides to the Company, including but not limited to through the use of any interactive features on the Website, is governed by the Privacy Policy, and Customer consents to all actions the Company takes with respect to such information consistent with the Privacy Policy.
If Customer elects, or is provided with, a username, password, or any other piece of information as part of User Credentials or other security procedures for the Website or the Services, Customer must protect and treat such information as confidential, and Customer must not disclose it to any other person or entity. Customer also acknowledges that Customer’s Account is unique and exclusive to Customer and agrees not to provide any other person except for Authorized Users with access to the Website, the Services, or portions thereof using Customer’s User Credentials. Customer agrees to notify the Company immediately of any unauthorized access to or use of Customer’s or any Authorized User’s User Credentials or any other breach of security.
The Company has the right to disable any username, password, or other identifier, whether chosen by or provided to Customer, at any time for any reason, including if, in the Company’s opinion, Customer has violated any provision of the Terms of Service. The Company cannot and will not be liable for any loss or damage arising from any unauthorized access or use of User Credentials.
As a condition of each Authorized User’s use of and access to the Website or the Services, each Authorized User shall be required to comply with the Terms of Service and any applicable Services Agreement(s). The access and use of the Website and the Services by any Authorized User is subject to the Company’s sole discretion, and the Company shall have the right at any time to terminate the use and access of the Website or the Services by any Authorized User. Any act or omission by an Authorized User that, if done by Customer, would constitute a breach of the Terms of Service or any Services Agreement, shall be deemed a breach thereof by Customer. Customer and its Authorized Users shall keep their respective User Credentials confidential and shall not share them with anyone else. Customer shall promptly notify the Company if it, or any of its Authorized Users, learns of or believes that any loss, theft, or unauthorized use of User Credentials has occurred.
Services
Subject to the terms and conditions of the Terms of Services and any applicable Services Agreement(s), Customer may access and use the Services as specifically selected by Customer through its Account, and the Company agrees to provide to Customer such Services. The Company, from time to time, may modify, upgrade, or otherwise change the manner in which any Services are provided (including but not limited to features, content, or operating environment), so long as such Services are substantially comparable or superior to the prior Services. The Company may use automated systems, analytics tools, machine learning technologies, artificial intelligence systems, and other emerging technologies in the provision, enhancement, support, and improvement of the Services. Customer may invite Authorized Users to participate in the Services through its Account.
The Company is not required to provide any Services until Customer has duly accepted the Terms of Service and any applicable Services Agreement as may be required by the Company.
Notwithstanding anything to the contrary in the Terms of Service, the Company may temporarily suspend Customer’s and any Authorized User’s access to any portion or all of the Website, the Services, and any other Company IP if: (a) the Company determines that (i) there is a threat or attack on any Service or any of the Company IP; (ii) Customer’s or any Authorized User’s use of the Services or Company IP disrupts or poses a security risk to the Company IP or any other customer of the Company; (iii) Customer or any Authorized User is using the Services or any Company IP for fraudulent or illegal activities; or (iv) the Company’s provision of the Services to Customer or any Authorized User is prohibited by applicable law; (b) any vendor of the Company has suspended or terminated the Company’s access to or use of any third-party services, products, or Intellectual Property Rights required to enable Customer to access the Website or the Services; or (c) Customer is past due on any payment obligations under the Terms of Service or any applicable Services Agreement(s). The Company will use commercially reasonable efforts to resume providing access as soon as reasonably possible after the event giving rise to the suspension is cured, but the Company will have no liability for any damage, liabilities, losses (including any loss of data or profits), or any other consequences that Customer or any Authorized User may incur as a result of a suspension under this paragraph.
Intellectual Property Rights
The Company IP is owned by the Company, its licensors, or other providers of such material and is protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Customer acknowledges that the Company and its licensors own all Intellectual Property Rights in and to the Company IP. No right, title, or interest in or to any Company IP is transferred to Customer, and all rights not expressly granted herein are reserved by the Company. Customer will not engage in any act or omission that would impair the Company’s and/or its licensors’ Intellectual Property Rights in the Company IP.
Subject to the terms and conditions of the Terms of Service (including but not limited to payment of all Fees and compliance with all use restrictions herein) and any applicable Services Agreement(s), the Company hereby grants Customer a limited, non-exclusive, non-transferable, non-sublicensable right to: (a) access and use the Website for purposes of accessing and managing Customer’s Account and the Services; and (b) access and use the features and functions of the Services selected by Customer. The foregoing license is granted solely for use by Customer and its Authorized Users in accordance with the terms and conditions of the Terms of Service and any applicable Services Agreement(s) and in any event solely for use in the operation of Customer’s internal business. This license does not include any right to sublicense, resell, distribute, or make the Website or the Services available to any third party other than Authorized Users.
All estimate audits, supplement documents, and other work product created by the Company in the performance of the Services (“Work Product”) shall remain the property of the Company. Upon full payment of all fees due for the applicable Services, the Company grants Customer a non-exclusive, perpetual, royalty-free license to use such Work Product solely for Customer’s internal business purposes related to the applicable Claims. For the avoidance of doubt, Customer’s license to use the Work Product does not include the right to use, and Customer shall not use, the Work Product (or any data, documentation, or output generated by or through the Services) to train, fine-tune, develop, test, evaluate, or improve any machine learning model, artificial intelligence system, algorithmic model, or similar technology, whether for Customer’s internal purposes or for any third party. Customer may not resell, distribute, or make the Work Product available to third parties, except as necessary to submit supplements to insurance companies or as otherwise required in connection with the applicable Claims.
The Company may retain and use copies of all Work Product and Customer Data for its internal business purposes, including quality assurance, analytics, service improvement, product development, and the development, training, testing, and improvement of machine learning models, artificial intelligence systems, automation tools, and other technologies, provided that such use complies with the Privacy Policy.
Customer will not, and will not permit any of its Authorized Users or any third party to:
(a) Copy, duplicate, reproduce, distribute, publish, display, or transmit any of the Company IP, except as expressly permitted under this Agreement;
(b) Decompile, disassemble, reverse engineer, or otherwise attempt to obtain or perceive the source code from which any software component of any of the Company IP is compiled or interpreted, or apply any other process or procedure to derive the source code of any software included in the Company IP, and Customer acknowledges that nothing in the Terms of Service will be construed to grant Customer any right to obtain or use such source code;
(c) Modify, alter, tamper with, adapt, translate, or repair any of the Company IP, or create any derivative work based on any of the Company IP;
(d) Interfere or attempt to interfere in any manner with the functionality or proper working of any of the Company IP;
(e) Remove, obscure, or alter any notice of any Intellectual Property Rights or proprietary rights appearing on or contained within any of the Company IP, including any copyright, trademark, or patent notices;
(f) Assign, sublicense, sell, resell, lease, rent, loan, or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s limited license rights to use the Website, the Services, or any other Company IP;
(g) Access or use the Website, the Services, or any other Company IP to build a competitive product or service, or copy any ideas, features, functions, graphics, or other aspects of the Company IP;
(h) Use the Website, the Services, or any Company IP for any purpose other than as expressly permitted under this Agreement;
(i) Use any robot, spider, crawler, scraper, or other automated means or interface to access the Website or the Services or to extract or export data from the Website or the Services;
(j) Use any device, software, or routine that interferes with the proper working of the Website or the Services;
(k) Introduce any viruses, Trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful;
(l) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Website or the Services, the servers on which they are hosted, or any server, computer, or database connected to the Website or the Services;
(m) Attack the Website or the Services via a denial-of-service attack or a distributed denial-of-service attack;
(n) Submit false, misleading, or fraudulent Claims or documentation;
(o) Use the Services for any Claims or matters for which Customer does not have proper authorization from the vehicle owner and/or insurance company;
(p) Use the Website or the Services in any way that violates any applicable federal, state, local, or international law or regulation; or
(q) Use the Website, the Services, the Company IP, or any Work Product, data, documentation, or output generated by or derived from the Services to train, fine-tune, develop, test, evaluate, or improve any machine learning model, artificial intelligence system, algorithmic model, or automated decision-making system, whether competitive or non-competitive, without the Company’s prior written consent.
The Company name, logo, and all related names, logos, product and service names, designs, and slogans are trademarks of the Company or its affiliates or licensors. Customer must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs, and slogans appearing on the Website or in connection with the Services are the trademarks of their respective owners.
The Company reserves all rights not expressly granted to Customer in the Terms of Service. Any use of the Website or the Services not expressly permitted by the Terms of Service or any applicable Services Agreement(s) is a breach hereof and thereof and may further violate copyright, trademark, patent, trade secret, and other laws. The licenses granted herein are conditioned on Customer’s continued compliance with the Terms of Service and any applicable Services Agreement(s).
Customer Data
Customer (on its own behalf and on behalf of its Authorized Users) grants the Company the right to use the Customer Data as necessary to perform its obligations under the Terms of Service and any applicable Services Agreement(s). The Company’s use of Customer Data is governed by the Privacy Policy. The Company agrees that Customer Data is and shall remain the sole and exclusive property of Customer, and all right, title, and interest in the same is reserved by Customer, subject to the limited license granted in this paragraph.
Customer represents, warrants, and covenants that all Customer Data is and shall be true, accurate, complete, and current in all material respects, and that Customer has obtained all necessary rights, consents, authorizations, and permissions required to provide the Customer Data to the Company and to grant the Company the rights to use such information as contemplated by the Terms of Service, including without limitation any consents required from vehicle owners, insurance companies, or other third parties. Customer acknowledges that the Company performs its Services in reliance upon the accuracy and completeness of the Customer Data, and that the Company has no obligation to independently verify or investigate the accuracy of any Customer Data. The Company shall not be liable for any errors, omissions, delays, failures, or inaccuracies in the Services or any Work Product arising from or related to any Customer Data that is inaccurate, incomplete, misleading, or for which Customer lacked proper authorization to provide. Customer agrees to promptly notify the Company of any material changes to Customer Data and to promptly correct any inaccuracies upon discovery by Customer or any Authorized User.
Fees and Payment Terms
Customer will pay all fees specified in Customer’s Account or any applicable Services Agreement(s) based on the Services for which Customer has selected from time to time (the “Fees”). As a condition to the Company’s provision of the Services, Customer will provide the Company with valid and updated credit card information or ACH information and hereby authorizes the Company to charge such credit card or authorize such ACH for all Services provided by the Company to Customer. Customer is responsible for providing complete and accurate billing and contact information to the Company and notifying the Company of any changes to such information. If Customer’s payment method on file expires, is cancelled, or is otherwise invalid, the Company may suspend the Services until a valid payment method is provided.
The Company may change the Fees at its election by providing advance notice of such change (which may be delivered electronically). Notwithstanding the foregoing, where Customer has executed a Services Agreement with specific Fee provisions, the Fees set forth in such Services Agreement shall control and may only be modified in accordance with the terms of that Services Agreement.
Customer will be responsible for all sales, use, value-added, import duties, and similar taxes on the Services that may be assessed by any applicable jurisdiction. The Company will be responsible for all taxes based on its net income.
Any portion of any amount payable by Customer to the Company that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from due date until paid. If Customer has not paid any amount payable by the due date, the Company may automatically charge the payment method on file. In the event the Company must undertake collection efforts to recover any amounts owed by Customer, Customer shall reimburse the Company for all reasonable collection costs, including reasonable attorneys’ fees, incurred by the Company in connection with such collection efforts.
Reliance on Website Information
The information presented on or through the Website is made available solely for general information purposes. The Company does not warrant the accuracy, completeness, or usefulness of this information. Any reliance Customer places on such information is strictly at Customer’s own risk. The Company disclaims all liability and responsibility arising from any reliance placed on such materials by Customer or any other visitor to the Website, or by anyone who may be informed of any of its contents.
The Website may include content provided by third parties. All statements and/or opinions expressed in these materials are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. The Company is not responsible or liable to Customer or any third party for the content or accuracy of any materials provided by any third parties.
The Company may update the content on the Website from time to time, but its content is not necessarily complete or up-to-date. Any of the material on the Website may be out of date at any given time, and the Company is under no obligation to update such material.
Geographic Restrictions
The Company is based in the Commonwealth of Virginia in the United States. The Company provides the Website and the Services for use only by persons located in the United States. The Company makes no claims that the Website, the Services, or any other content provided by the Company is accessible or appropriate outside of the United States. Access to the Website or the Services may not be legal by certain persons or in certain countries. If Customer or any of its Authorized Users access or use the Website or the Services from outside the United States, they do so on their own initiative and Customer is responsible for compliance with all local laws applicable to such access or use.
Confidentiality
All Confidential Information of either party will be held in confidence by the other party. Neither party will use (for itself or for any third party) or disclose, nor permit any other person or entity under its control to use or disclose, any Confidential Information, except: (a) to employees, agents, third-party contractors, or representatives of the recipient who have a “need to know” the information and are subject to an obligation of confidentiality at least as restrictive as the restrictions contained in this paragraph; (b) if required by law, regulation, or legal process, provided that the disclosing party provides prompt notice to the other party (unless notice is prohibited by law) and reasonably cooperates with the other party’s efforts to seek protection from disclosure; (c) to provide the Services or otherwise enforce a party’s rights or obligations under the Terms of Service or any applicable Services Agreement(s); (d) to respond to claims that any content violates the rights of third parties; or (e) to protect the rights, property, or personal safety of the parties or Authorized Users.
Disclaimer of Warranties
CUSTOMER’S USE OF THE WEBSITE, THE SERVICES, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR THE SERVICES IS AT CUSTOMER’S OWN RISK. THE WEBSITE, THE SERVICES, THEIR CONTENT, AND ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE WEBSITE OR THE SERVICES.
WITHOUT LIMITING THE FOREGOING, NEITHER THE COMPANY NOR ANY PERSON ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE WEBSITE, THE SERVICES, THEIR CONTENT, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE WEBSITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE WEBSITE, THE SERVICES, OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR THE SERVICES WILL OTHERWISE MEET CUSTOMER’S NEEDS OR EXPECTATIONS.
TO THE FULLEST EXTENT PROVIDED BY LAW, THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE.
THE COMPANY DOES NOT WARRANT OR GUARANTEE ANY PARTICULAR RESULTS FROM THE SERVICES IN THE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION ANY SPECIFIC DOLLAR AMOUNT OF RECOVERY, APPROVAL OF ANY PARTICULAR CLAIM OR SUPPLEMENT, OR ANY SPECIFIC OUTCOME WITH ANY INSURANCE COMPANY. HOWEVER, ANY RETURN-ON-INVESTMENT GUARANTEES OR SIMILAR COMMITMENTS SHALL BE SUBJECT TO THE TERMS AND CONDITIONS SET FORTH IN ANY APPLICABLE SERVICES AGREEMENT.
THE FOREGOING DOES NOT AFFECT ANY WARRANTIES THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Limitation of Liability
EXCEPT IN THE EVENT OF A BREACH OF A PARTY’S CONFIDENTIALITY OBLIGATIONS, GROSS NEGLIGENCE, OR WILLFUL MISCONDUCT, IN NO EVENT WILL EITHER PARTY BE LIABLE TO THE OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION UPON DAMAGES IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE TERMS OF SERVICE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
TO THE MAXIMUM EXTENT PERMITTED BY LAW AND EXCEPT FOR EITHER PARTY’S INDEMNIFICATION OBLIGATIONS, CUSTOMER’S PAYMENT OBLIGATIONS, OR AS OTHERWISE EXPANDED OR LIMITED BY ANY APPLICABLE SERVICES AGREEMENT, THE CUMULATIVE LIABILITY OF THE COMPANY TO CUSTOMER FOR ALL LIABILITIES ARISING FROM OR RELATING TO THE TERMS OF SERVICE, INCLUDING ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE TOTAL FEES PAID BY CUSTOMER IN THE TWELVE (12) MONTHS PRECEDING THE DATE ON WHICH THE APPLICABLE LIABILITY AROSE. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THE TERMS OF SERVICE HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
Customer acknowledges and understands that the disclaimers, exclusions, and limitations of liability set forth in the Terms of Service form an essential basis of the agreement between the parties, that the parties have relied upon such disclaimers, exclusions, and limitations of liability in negotiating the terms and conditions in the Terms of Service, and that absent such disclaimers, exclusions, and limitations of liability, the terms and conditions of the Terms of Service would be substantially different.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
Indemnification
Customer agrees to defend, indemnify, and hold harmless the Company and its affiliates, and its and their respective officers, directors, managers, shareholders, members, employees, contractors, agents, representatives, successors, and assigns from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses, or fees (including reasonable attorneys’ fees) (collectively, “Losses”) arising out of or relating to: (a) Customer’s violation of the Terms of Service or any applicable Services Agreement(s); (b) Customer’s use of the Website or the Services; (c) any Third-Party Claims arising from or related to Claims processed under the Terms of Service or any applicable Services Agreement(s); (d) any inaccurate, incomplete, or misleading documentation or information provided by Customer; or (e) Customer’s failure to obtain necessary authorizations or consents from vehicle owners or other third parties.
The Company agrees to indemnify and hold harmless Customer and its officers, directors, managers, shareholders, members, employees, contractors, agents, representatives, successors, and assigns from any and all Losses arising out of or related to the alleged infringement of a third party’s patent, trademark, copyright, or trade secret rights under applicable laws within the United States of America, provided that Customer promptly notifies the Company in writing of such Third-Party Claim, cooperates with the Company, and allows the Company sole authority to control the defense and settlement of such Third-Party Claim. In the event of such Third-Party Claim, the Company will, in its sole discretion, either procure for Customer the right to continue using such infringing item or replace or modify the infringing item so that it becomes non-infringing. This paragraph shall not apply to the extent such alleged infringement arises from any unauthorized modification of the Company IP by Customer or Customer Data. THIS PARAGRAPH STATES THE COMPANY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO SUCH INFRINGEMENT.
Governing Law and Jurisdiction
All matters or disputes arising from or relating to the Website, the Services, and the Terms of Service shall be governed by and construed in accordance with the internal laws of the Commonwealth of Virginia without giving effect to any choice or conflict of law provision or rule (whether of the Commonwealth of Virginia or any other jurisdiction).
Any legal suit, action, or proceeding arising out of or related to the Website, the Services, or the Terms of Service shall be instituted exclusively in the state courts of the Commonwealth of Virginia. Customer waives any and all objections to the exercise of jurisdiction over Customer by such courts and to venue in such courts. Notwithstanding anything to the contrary in this paragraph, the Company may institute such a legal suit, action, or proceeding in any other court that has personal jurisdiction over Customer.
Arbitration
At the Company’s sole discretion, it may require Customer to submit any disputes arising from or relating to the Website, the Services, and the Terms of Service including disputes arising from or concerning interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration under the Rules of Arbitration of the American Arbitration Association applying Commonwealth of Virginia law.
Class Action and Jury Waiver
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NO LEGAL SUIT, ACTION, OR PROCEEDING UNDER THE TERMS OF SERVICE SHALL BE JOINED TO ANY OTHER LEGAL SUIT, ACTION, OR PROCEEDING, INCLUDING ANY INVOLVING ANY OTHER CURRENT OR FORMER USER OF THE WEBSITE OR THE SERVICES, AND NO CLASS ACTION PROCEEDINGS SHALL BE PERMITTED. THIS WAIVER APPLIES TO CLASS ARBITRATION, UNLESS THE COMPANY OTHERWISE AGREES. CUSTOMER AGREES THAT, BY ENTERING INTO THE TERMS OF SERVICE, CUSTOMER AND THE COMPANY ARE WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND RELATING TO THE WEBSITE, THE SERVICES, OR THE TERMS OF SERVICE.
Limitation on Time to File Legal Suit, Action, or Proceeding
ANY CAUSE OF ACTION CUSTOMER MAY HAVE ARISING OUT OF OR RELATING TO THE WEBSITE, THE SERVICES, OR THE TERMS OF SERVICE MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER SUCH CAUSE OF ACTION ACCRUES; OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
Inapplicability of UCITA
THE PARTIES AGREE THAT NO PROVISION OF THE UNIFORM COMPUTER INFORMATION TRANSACTIONS ACT (UCITA) IS INTENDED TO APPLY TO THE INTERPRETATIONS OF THIS AGREEMENT, WHETHER OR NOT UCITA IS ENACTED BY APPLICABLE LAW.
Waiver and Severability
No waiver by the Company of any term or condition set out in the Terms of Service shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under the Terms of Service shall not constitute a waiver of such right or provision.
If any provision of the Terms of Service is held by a court or other tribunal of competent jurisdiction to be invalid, illegal, or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Service will continue in full force and effect.
Entire Agreement
The Terms of Service (including any documents expressly incorporated herein by reference) constitute the sole and entire agreement between Customer and the Company regarding the Website and the Services and supersede all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding the Website and the Services. Without limiting the foregoing, the Terms of Service supersede and take precedence over any prior or contemporaneous sales calls, promotional offers, online marketing materials, or other communications that may have been made by the Company or its representatives. In the event of any conflict between the Terms of Service and a Services Agreement, the Services Agreement shall control with respect to the specific Services covered by that Services Agreement.
Amendment
The Company has the right to amend the Terms of Service at any time by posting a revised version on the Website. Customer’s continued use of the Website or the Services after any such amendment constitutes Customer’s acceptance of the amended Terms of Service.
Independent Contractors
In entering into and performing under the Terms of Service, Customer and the Company act and will act at all times as independent contractors, and nothing contained herein will be construed or implied to create an agency, partnership, or employer and employee relationship between them.
Force Majeure
If the Company is prevented or delayed in performance of its obligations under the Terms of Service or any Services Agreement as a result of circumstances beyond the Company’s reasonable control, including acts of God, governmental acts or orders, failure of public utilities or public transportation systems, failures of the internet or any public telecommunications network, failures of hosting providers, hacker attacks, denial of service attacks, virus or other malicious software attacks or infections, power failures, accidents, wars, terrorism, riots or civil unrest, fires, storms, earthquakes, floods, pandemics or epidemics, labor disputes or disruptions, or any other similar cause, such failure or delay will not be deemed to constitute a material breach of the Terms of Service, but such obligation will remain in full force and effect and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances.
Assignment
Customer may not assign its rights or delegate its obligations under the Terms of Service without the Company’s prior written consent, and, absent such consent, any purported assignment or delegation will be null, void, and of no effect. The Company may, without the written consent of Customer, assign its rights and obligations under the Terms of Service or any applicable Services Agreement(s), in whole or in part, to any affiliate or third party, without the prior consent of or notice to Customer. The Terms of Service will be binding upon and inure to the benefit of Customer and the Company and their respective successors and permitted assigns.
No Third-Party Beneficiaries
The Terms of Service are for the sole benefit of Customer and the Company and their respective successors and permitted assigns, and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of the Terms of Service, including but not limited to vehicle owners, insurance companies, or other parties related to Claims processed by the Company.
Notices
All communications required or permitted to be given by the Terms of Service shall be made in writing and will be delivered as follows (with notice deemed given as indicated): (a) by personal delivery when delivered personally; (b) by established overnight courier upon written verification of receipt; (c) when sent by confirmed electronic mail if sent during normal business hours of the recipient, and if not so confirmed, then on the next business day; or (d) by certified or registered mail, return receipt requested, upon verification of receipt. All notices must be sent: (i) if to the Company, to the Company’s registered agent at its registered office address as on record with the Virginia State Corporation Commission, or to the email address posted on the Website for notices; or (ii) if to Customer, at Customer’s address or email address listed on its Account. Either party may change its contact information for notices by means of notice to the other party given in accordance with this paragraph.
Attorneys’ Fees
In the event that the Company commences and substantially prevails in any action, suit, or other legal proceeding against Customer arising out of or related to the Terms of Service or any Services Agreement, the Company will be entitled to recover its reasonable attorneys’ fees and court costs from Customer.
Publicity
Customer agrees that the Company may identify Customer as a customer and use Customer’s logo and trademark in the Company’s promotional materials, provided the Company does not modify or alter in any way any element of Customer’s logo and/or trademark.
Interpretation
For purposes of the Terms of Service: (a) the words “include,” “includes,” and “including” are deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; (c) the words “herein,” “hereof,” “hereby,” “hereto,” and “hereunder” refer to the Terms of Service as a whole; (d) words denoting the singular have a comparable meaning when used in the plural, and vice-versa; and (e) words denoting any gender include all genders. The parties intend the Terms of Service to be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. Headings used in the Terms of Service are provided for convenience only and shall not be used to construe meaning or intent.