Terms of Use
Before using this website, please read the Terms of Use set forth below.
These Terms of Use apply to the www.tgp-solutions.com website (“TGP Site”), the www.tiresync.com website (“TireSYNC Site”), and the www.tgpwidget.com website (“tgpWidget Site”). The TGP Site, the TireSYNC Site, and the tgpWidget Site may also each individually be referred to as a “Site” and together as the “Sites” in these Terms of Use. Each of the Sites includes related websites and current and future mobile applications of each such Site.
By accessing and using our Sites and related Services and Site Content (as both are defined below), you agree to be bound by these Terms of Use. If you find the Terms of Use to be unacceptable, you must immediately terminate your use of our Sites, the Site Content (including the Software, as defined below), and the Services.
TGP Solutions LLC and its representatives, members, affiliates and subsidiaries (“we,” “us,” “our,” or similar terms) may modify these Terms of Use at any time by posting revised Terms of Use on our Sites and your continuing use of such Sites, the Site Content (except as provided otherwise in Section 10, below), and the Services constitutes your agreement to be bound by such modified Terms of Use. See Section 23, below.
We may also make certain Software (as defined in Section 10, below) available for you to download from our Sites as a part of the Site Content. If your use of the Software is not governed by a separate written agreement between us and you for use of the Software (a “Separate Agreement”), your use of the Software is governed by these Terms of Use. If a Separate Agreement is in place, the Separate Agreement governs your use of the Software covered by the Separate Agreement. See Section 10, below.
Use of our Sites, the Site Content, and the Services is only available to persons who are 18 years of age or older. If you are under this age, please use our Sites, the Site Content, and the Services only in conjunction with your parents or guardians, who must agree to these Terms of Use and will be responsible for all such use.
1. NO REPRESENTATIONS OR WARRANTIES
All information, data, documents, agreements, text, graphics, videos, images, pictures, designs, applications, graphics, software (including Software), audio, sound, files, and other content on our Sites and available through the Services, including their selection and arrangement, are sometimes referred to collectively as the “Site Content” in these Terms of Use.
We may make certain services and products available through our Sites, including information regarding products and services, facilitating the sending of emails and other communications, the downloading of Software (including Samples) and other Site Content, and other services and products, provided that you agree to abide by the terms and conditions contained in these Terms of Use. These services and products, as well as all other services and products we provide in connection with our Sites, are referred to collectively in these Terms of Use as the “Services.”
With reference to any Services we provide, you acknowledge that we may, from time to time, without notice to you and at our sole discretion, modify the Services or any portion thereof and/or establish various practices, limitations and restrictions for administering such Services, and you agree to be bound by such modifications and practices.
Our Sites, the Site Content (including the Software), and the Services could include inaccuracies, typographical errors or other errors. We are not responsible or liable for any such inaccuracies or errors in our Sites, the Services, or the Site Content (including the Software). We also make no commitment to update what is contained in our Sites, the Services, or the Site Content (including the Software). Furthermore, we reserve the right to temporarily or permanently modify, alter, discontinue or delete the same or any portion of the same without prior notice.
You should not rely upon opinions expressed on or information or data contained in our Sites or the Site Content (including the Software) when making automotive, business, financial, personal or other decisions. Furthermore, we do not endorse, nor are we responsible or liable for, the opinions of third parties expressed on our Sites, in the Site Content, or on linked websites.
We may take, but we are not required to take, any action we deem appropriate, in our sole discretion, to maintain the high quality of our Sites, the Site Content (including the Software), and the Services and to protect ourselves and others. We also reserve the right to temporarily or permanently modify, alter, discontinue or delete any of our Sites or any of the Site Content (including the Software) or Services without prior notice.
Consequently, and without limiting the foregoing,
WE MAKE NO REPRESENTATIONS ABOUT THE SUITABILITY OF OUR SITES OR THE SERVICES OR THE SITE CONTENT (INCLUDING ANY SOFTWARE) FOR ANY PURPOSE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE SERVICES, OUR SITES, AND THE SITE CONTENT (INCLUDING THE SOFTWARE) ARE PROVIDED “AS IS,” “AS AVAILABLE,” AND WITHOUT WARRANTY OR CONDITION, AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, ARE HEREBY DISCLAIMED, AND YOU HEREBY WAIVE ALL SUCH WARRANTIES. WE DO NOT WARRANT THAT OUR SITES OR THE SERVICES OR THE SITE CONTENT (INCLUDING THE SOFTWARE) WILL MEET YOUR REQUIREMENTS OR THAT THE OPERATION OF OUR SITES OR THE SERVICES OR THE SITE CONTENT (INCLUDING THE SOFTWARE) WILL BE UNINTERRUPTED OR ERROR-FREE. Some states do not allow the disclaimer of implied warranties, so portions of the foregoing disclaimer may not apply to you.
2. MOBILE SERVICES
The Services may include certain services that are available via your mobile phone, including the ability to browse our Sites from your mobile phone (the "Mobile Services"). We do not charge for these Mobile Services. However, your carrier's normal messaging, data and other rates and fees will still apply to your use of the Mobile Services. You should check with your carrier to find out what plans are available and how much they cost. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. Therefore, you should check with your carrier to find out if the Mobile Services are available for your mobile devices, and what restrictions, if any, may be applicable to your use of such Mobile Services.
3. USER WARNINGS / USER CONDUCT
In consideration for our providing our Sites, the Services, and the Site Content (including the Software), when using our Sites, the Services, or the Site Content (including the Software) you also agree not to:
a. violate any applicable law, regulation or rule, or these Terms of Use;
b. harass, offend, threaten, embarrass, stalk, distress or invade the privacy of any individual or entity;
c. post, publish, upload, distribute, or transmit any commercial, advertising or promotional materials, including without limitation, “spam,” chain letters, pyramid schemes, surveys, contests, or mass distributions;
d. at any time: (i) provide false information on any webpage, form or other document on our Sites that requests information from or about you; (ii) fail to promptly notify us of any inaccuracy in any of your information on any webpage, form or other document on our Sites that presents information related to you; (iii) create a false identity; or (iv) impersonate another person;
e. post, publish, upload, distribute, or transmit defamatory, false, inappropriate, improper, disorderly or excessive messages or information;
f. post, publish, upload, distribute, or transmit any material that infringes upon any third party's copyright, trademark, patent or other intellectual property right;
g. attempt to gain unauthorized access to any Services, Site Content (including the Software), other accounts, or related computer systems or networks through hacking, password mining, or any other means;
h. restrict or inhibit any other person or entity from using our Sites, the Services, or the Site Content (including the Software), or use our Sites, the Services, or the Site Content (including the Software) in a manner that overburdens or impairs our server or network;
i. use, download or otherwise copy, or provide (whether or not for a fee) to a person or entity any directory of users of the Services or the Site Content (including the Software) or other user or usage information or any portion thereof;
j. upload files that contain any viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or any other similar software or programs that may damage the operation of another’s computer or other property, or damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
k. create liability for us or cause us to lose (in whole or in part) the services of our ISP’s or other suppliers;
l. link directly or indirectly to or include any website or other item that you do not have a right to link to or include; or
m. perform meta-searches of our Sites or send automated queries to our Sites or use any robot, spider, scraper, or other automated means to access our Sites, the Services, the Site Content (including the Software), or any part of any of them.
In addition, you are prohibited from violating or attempting to violate any security features of our Sites, the Services, or the Site Content (including the Software), including, without limitation, (1) accessing content or data (including Site Content and Software) or any portion of our Sites not intended for you, or logging onto a server or account that you are not authorized to access; (2) attempting to probe, scan, or test the vulnerability of the Services, our Sites, the Site Content (including the Software), or any associated system or network, or to breach security or authentication measures without proper authorization; (3) interfering or attempting to interfere with service to any user, host, or network, including, without limitation, by means of submitting a virus to our Sites, overloading, “flooding,” “spamming,” “mail bombing,” or “crashing;” (4) using our Sites or the Services to send unsolicited e-mail, including, without limitation, promotions, or advertisements for products or services; (5) forging any TCP/IP packet header or any part of the header information in any e-mail or in any posting using the Services or the Site Content; or (6) attempting to modify, reverse-engineer, decompile, disassemble, or otherwise reduce or attempt to reduce to a human-perceivable form any of the source code used by us in providing our Sites, the Services, or the Site Content (including the Software). Any violation of system or network security may subject you to civil and/or criminal liability.
If you violate such terms, we may, without prior notice and without liability to us, ban you from our Sites, the Site Content (including the Software), and any and all Services and take any other action we deem appropriate in our sole discretion. We reserve the right to terminate your access to our Sites, the Services, and/or the Site Content (including the Software) at any time, without notice, for any reason.
With reference to any Services and Site Content (including Software) we provide, you acknowledge that we may, from time to time, without notice to you and at our sole discretion, establish various practices, limitations and restrictions for administering such Services and Site Content (including Software), and you agree to be bound by such practices. You agree that we are not responsible or liable for loss of emails, communications, postings, data or information as a result of, or arising out of, our administration of our Sites, the Services, or the Site Content (including Software).
4. WEBSITE LINKS AND THIRD-PARTY SITES
Our Sites may contain links to other websites that are independent of our Sites. We provide these links solely as a convenience. By clicking on a link to an independent website, you are leaving our Sites and going to another website that is not under our control. We make no representation or warranty as to the accuracy, value, integrity, completeness, appropriateness or authenticity of the information or opinions contained in any such linked website, and any link to another independent website shall not in any manner be construed as an endorsement by us of that website, or of the products or services described or offered therein.
YOU HEREBY AGREE TO RELEASE US, OUR MEMBERS, MANAGERS, AGENTS, EMPLOYEES, CONSULTANTS, OFFICERS AND DIRECTORS FROM ALL CLAIMS, DEMANDS AND DAMAGES, WHETHER ACTUAL OR CONSEQUENTIAL, OF EVERY KIND, WHETHER KNOWN OR UNKNOWN, DISCLOSED OR UNDISCLOSED, ARISING OUT OF OR RELATING TO ANY AND ALL ADVERTISEMENTS, OFFERS, TRANSACTIONS, OR ANY OTHER USE OF OTHER WEBSITES AND RELATED SERVICES LINKED TO OUR SITES.
5. CONFIDENTIALITY
We cannot guarantee your confidential use of our Sites, the Site Content (including Software), or the Services. We shall not be responsible for any harm that you or any person may suffer as a result of a breach of confidentiality in respect to your use of our Sites, the Site Content (including Software), or the Services, except as may be provided otherwise by applicable law. We reserve the right at all times to disclose any information as we deem necessary to satisfy any applicable law, regulation, legal process or governmental request, or to edit, refuse to post or to remove any information or materials, in whole or in part, in our sole discretion. See our Privacy Policy for additional information regarding our use and handling of personally identifiable information. The Privacy Policy is incorporated by reference as a part of these Terms of Use. If there is any conflict between the Privacy Policy and the other provisions of these Terms of Use, the other provisions of these Terms of Use govern and control collection, use and disclosure of your personally identifiable information.
You agree that you will hold all parts and contents of any Software that you have accessed in confidence for us. You will take all reasonable steps necessary to protect the Software and all data and other information related thereto. Such steps will include protection at least equivalent to that you afford your own confidential and proprietary information.
6. CLIENT ACCOUNTS
In order to access certain Services and Site Content (including the Software), you need to become a “Client” by opening an account with us. To become a Client, you need to contact us. You can do this through the Contact Us page of the TGP Site. If you request information about our Software through the Contact Us page, the information may be forwarded to Pearl Communications Inc., which acts as our representative in licensing of our Software.
If you elect to become a Client by opening a Client account, you agree to provide us with current, complete and accurate information for this purpose, as requested by our representative. You agree to promptly notify us of any changes to any such information you have provided. Your account will be activated and you will become a Client only upon your receipt of an email notification from us or our representative that your Client account has been activated.
You may be provided with a user name and password in order to access your Client account. You are responsible for maintaining the confidentiality of your password and Client account and Client information and are fully responsible for all conduct carried out under your password and Client account, whether such conduct is carried out with or without your knowledge or consent. We are not responsible or liable for any loss of confidentiality or for any damages arising from your failure to comply with these terms. However, you could be held liable for losses incurred by us or another party due to someone else using your Client account or password.
In addition, you may be provided with an API Key in order to access the TireSYNC™ system through the TireSYNC Site. You are responsible for maintaining the confidentiality of your API Key and are fully responsible for all conduct carried out under your API Key, whether such conduct is carried out with or without your knowledge or consent. We are not responsible or liable for any loss of confidentiality or for any damages arising from your failure to comply with these terms. However, you could be held liable for losses incurred by us or another party due to someone else using your API Key.
Further, you may be provided with source code or object code (typically referred to as “tgpWidget Code”) used to access the tgpWidget™ system through the tgpWidget Site or otherwise. You are responsible for maintaining the confidentiality of your tgpWidget Code and are fully responsible for all conduct carried out using your tgpWidget Code, whether such conduct is carried out with or without your knowledge or consent. We are not responsible or liable for any loss of confidentiality or for any damages arising from your failure to comply with these terms. However, you could be held liable for losses incurred by us or another party due to someone else using your tgpWidget Code.
You will promptly report any unauthorized use of your Client account, password, API Key, or tgpWidget Code to us. You may not use anyone else's Client account at any time without our permission.
When accessing your Client account on our Sites, You may be asked to provide additional information. For example, if you are approving a Separate Agreement in order to access our Software, you will be required to enter information about yourself on the webpage of the TGP Site that allows you to approve the Separate Agreement. You represent and warrant that all such information provided by you is true, complete and accurate.
Unless expressly provided otherwise in a Separate Agreement to which you are a party, we may cancel or terminate your account and status as a Client at any time for any reason, with or without cause, without your consent, and without notice to you. You may cancel or terminate your Client account at any time (subject to the provisions of any Separate Agreement) by contacting us. See the Contact Us page on the TGP Site.
With respect to information you provide to us, additional information regarding security of personally identifiable information is available in our Privacy Policy.
7. OWNERSHIP
Except as otherwise stated in these Terms of Use, all right, title and interest (including all patent, copyright, trademark and other intellectual property rights) to all Site Content (including the Software) and the Services belong to us or our licensors or other sources. In addition, the names, images and other indicia identifying our products and services (including the Services) are our proprietary marks.
8. LICENSE
Nothing contained in our Sites, the Services, or the Site Content (including the Software) shall be construed as conferring any license or right, expressly, by implication, by estoppel or otherwise, under any of our intellectual property rights, or under any third party's intellectual property rights, except as expressly provided otherwise in Section 10, below, or in a Separate Agreement. No part of our Sites, the Services, or the Site Content (including the Software) may be used, reproduced, republished, copied, transmitted, modified, altered, performed, displayed, or distributed in any form or by any means, or be used to create any derivative works, except as expressly provided otherwise in Section 10, below, or in a Separate Agreement.
9. PRODUCT SAMPLES AND DESCRIPTIONS; SAMPLE DOCUMENTATION
We may make certain samples and demonstrations of our products and applications (collectively, the “Samples”) available on our Sites. The Samples are intended to be examples and/or descriptions of the content of our products and how they operate. Samples may be made available by downloading through our Sites, or we may provide you with Samples by other means (such as email) as a result of your contacting us through our Sites. All Samples that are downloaded from our Sites or otherwise provided to you as a result of your contacting us through our Sites are “Software” under these Terms of Use.
Although the Samples are intended to be representative of our actual products and applications, the actual features of our products and applications may vary and will be specified in a Separate Agreement for use of the products and applications. The Samples may also present sample automotive data, but such data is not to be relied upon for any purpose.
YOU AGREE THAT THE DATA PRESENTED IN THE SAMPLES IS REPRESENTATIVE ONLY AND SHOULD NOT BE RELIED UPON FOR ANY PURPOSE. YOU ALSO AGREE THAT YOU WILL NOT USE THE SAMPLES FOR ANY PURPOSE OTHER THAN TO EVALUATE OUR PRODUCTS AND APPLICATIONS TO DETERMINE IF YOU WANT TO LICENSE THEM FROM US.
We may also make descriptions and sample documentation related to our products and applications available on our Sites, which are also “Site Content” under these Terms of Use. These descriptions and documentation provide an indication as to how our products and applications operate, as well as other information regarding our products and applications. Although these descriptions and sample documentation are intended to be representative of our actual products and applications and the documentation that accompanies them, the actual products, applications and documentation may vary. For example, we may update our products and applications from time to time and the descriptions and documentation may not always immediately reflect such updates. Thus, the descriptions and sample documentation provided through our Sites are not to be used for any purpose other than evaluating whether to license a product or application from us. If you elect to license our products or applications, the actual product details and accompanying documentation will be in accordance with the Separate Agreement governing use of such products and applications.
YOU AGREE THAT YOU WILL NOT USE THE PRODUCT AND APPLICATION DESCRIPTIONS AND SAMPLE DOCUMENTATION AVAILABLE ON OUR SITES FOR ANY PURPOSE OTHER THAN TO EVALUATE OUR PRODUCTS AND APPLICATIONS TO DETERMINE IF YOU WANT TO LICENSE THEM FROM US.
10. SOFTWARE
We may make certain software, data and databases (collectively, the “Software”) available to you through our Sites or for downloading from our Sites. The Software includes: (i) all data, files, programs, source code, object code, images and other information contained in or generated by such software, data and databases (ii) all systems (including application programming interfaces) and other means for delivery of the items listed in clause 10(i), above (such as our TireSYNC™ and tgpWidget™ applications); and (iii) all accompanying instructions, methods, guidelines and documentation. The “Software” also includes Samples.
Please note that we typically license our tire fitment databases and electronic tire catalogs (including Software) only for use in the tire industry, such as by tire manufacturers, distributors, resellers, and retailers, their support service companies, and other tire industry professionals.
If you download Software from our Sites, the Software and your use of the Software are typically governed by a Separate Agreement entered into between us and you. If a Separate Agreement is in place, your use of the Software is governed by the terms and conditions contained in such Separate Agreement, and not by these Terms of Use. At any time that a Separate Agreement is not in place with respect to your use of the Software, the provisions of these Terms of Use govern your use of the Software.
If a Separate Agreement is not in place with respect to your use of any Software, the following provisions govern your use of such Software:
a. You will not access or download any Software through or from our Sites or otherwise unless we have granted you with express permission for such access or downloading;
b. Subject to Your compliance with all provisions of these Terms of Use, we grant you a personal, nontransferable, royalty-free, and nonexclusive license to use the Software solely on or in conjunction with computers that are accessible by and operated by your authorized employees located within the United States of America (excluding its territories and possessions) and Canada, and solely for the internal business purpose of evaluating our products and applications to determine if you will license them from us under a Separate Agreement (which purpose prohibits you from using the Software or any portion thereof as a part of your point-of-sale system or website);
c. We may terminate your right to use the Software (or any portion thereof) granted under paragraph 10.b, above, at any time for any reason, with or without cause, by providing you with at least one (1) day prior written notice of such termination. Nevertheless, if not earlier terminated, as provided in the prior sentence in this paragraph 10.c, your rights granted under paragraph 10.b, above, will terminate ninety (90) calendar days after the date on which you first gained access to the Software. Upon any termination or expiration of your right to use the Software, you shall immediately discontinue your use of such Software, and, at our option, return to us or destroy all copies of such Software, as well as all portions of any derivative works that are based upon or incorporate any portion of such Software. Any such notice of termination or expiration of your rights under paragraph 10.b, above, shall not prejudice either your or our rights to any use fees or other sums due and shall not prejudice any cause of action or claim of such party accrued or to accrue on account of any breach or default by the other party. If you continue to use the Software after your right to use it has terminated or expired, and in addition to any other remedies we may have, we may charge you and you agree to pay our customary fees for use of the Software, as reasonably determined by us;
d. You shall not use the Software in a time-sharing service or a service-bureau operation or in or with any internal network or the Internet without our express prior written consent;
e. You shall not, nor shall You suffer or permit any other person or entity, directly or indirectly, to use, sell, lease, disclose, perform, display, use, grant access to, assign, distribute, license, sublicense, transfer, dispose of, or otherwise exploit the Software, or any portion thereof, in any manner or to any person or entity, except as expressly authorized in these Terms of Use;
f. You shall not make, have made, or permit or suffer to be made any copy, duplication or reproduction of or derivative works from the Software, except for your internal use for the purpose specified in paragraph 10.b, above;
g. You shall not, nor shall you suffer or permit any other person or entity, directly or indirectly, to reverse compile, reverse engineer, or disassemble the Software or any portion thereof.
h. You shall not, and you shall not permit or suffer any other person or entity, without our prior written consent, to access or use the Software or any portion thereof in any manner that infringes or otherwise violates any intellectual property right or other right of ours or any of our affiliates or sources: (i) for production purposes; or (ii) for any other benchmarking or competitive purposes, including building a competitive product or service;
i. We are not required to furnish you or any other party with any assistance or support of any kind whatsoever related to the Software, and all expenses incurred in your use of the Software will be borne solely by you.
j. We may exercise all rights incident and related to ownership of the Software. We have the sole right to make, hold, use, sell, lease, disclose, manufacture, reproduce, duplicate, copy, display, perform, distribute, import, export, transfer, license, sublicense, assign, make derivative works from, and otherwise exploit the Software, any related products and services, and any portion of any of them, throughout the world for any and all purposes and with respect to us, our affiliates, and any and all other persons and entities.
Notwithstanding any provision of these Terms of Use to the contrary, if these Terms of Use are amended by us, as provided in these Terms of Use, after you have downloaded the Software, such amendment will not apply to your use of the Software (the Terms of Use without such amendment will continue to govern your use of the Software), but the Terms of Use, as amended, will govern your use of our Sites and all other aspects of the Site Content and the Services. If you have downloaded Software from our Sites prior to these Terms of Use first being posted on such Site, the first version of the Terms of Use posted on such Site shall govern your use of such Software.
To the extent that the provisions of any Separate Agreement are in conflict with any of the provisions of these Terms of Use, the provisions of the Separate Agreement shall govern and control your use and termination of use of such Software.
Notwithstanding the above, please note that any payments you are required to make under a Separate Agreement may only be made by check, cashiers check, money order, or electronic funds transfer, and may not be made by credit card or debit card.
11. INDEMNIFICATION
TO THE MAXIMUM EXTENT PROVIDED BY LAW, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US, OUR MEMBERS, MANAGERS, DIRECTORS, OFFICERS, EMPLOYEES, PARTNERS, CONTRACTORS, SUBCONTRACTORS, SUPPLIERS, AGENTS, REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, SUCCESSORS OR ASSIGNS (COLLECTIVELY, THE “INDEMNITEES”) HARMLESS AGAINST ALL LIABILITIES, DEMANDS, CLAIMS, RECOVERIES, SETTLEMENTS, ACTIONS, PENALTIES, COSTS, LOSSES, AND DAMAGES (AS DEFINED BELOW IN THIS SECTION 11) INCURRED BY THE INDEMNITEES, KNOWN OR UNKNOWN, CONTINGENT OR OTHERWISE, PAID OR UNPAID BY THE INDEMNITEES, DIRECTLY OR INDIRECTLY ARISING FROM OR RELATED TO: (A) YOUR USE OR MISUSE OF ANY OF OUR SITES OR ANY OF THE SERVICES OR ANY OF THE SITE CONTENT (INCLUDING THE SOFTWARE); OR (B) YOUR INFRINGEMENT OF THE INTELLECTUAL PROPERTY RIGHTS OF THE INDEMNITEES OR ANY THIRD PARTY; OR (C) YOUR VIOLATION OF ANY OF THESE TERMS OF USE; OR (D) YOUR NEGLIGENT OR INTENTIONAL ACTS OR OMISSIONS; IN EACH CASE, REGARDLESS OF ANY NEGLIGENCE ON THE PART OF ANY OF THE INDEMNITEES. FOR PURPOSES OF THIS SECTION 11, THE TERM “DAMAGES” INCLUDES DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR OTHER DAMAGES RELATED TO INJURY TO (INCLUDING DEATH OF) YOU OR ANY OTHER PERSON, DAMAGE TO OR LOSS OF ANY PROPERTY, LOSS OF CONSORTIUM, LOSS OF OPPORTUNITY OR BUSINESS OR CONTRACTUAL RELATIONSHIP, VIOLATION OF ANY RIGHT TO PRIVACY, DEFAMATION OF CHARACTER OR REPUTATION AGAINST ANY PERSON, PRODUCT OR OTHER OBJECT, MENTAL DISTRESS OR ANGUISH, LOSS OF USE OR PROFITS, ATTORNEYS AND EXPERT FEES AND OTHER COSTS THROUGH ANY APPEAL, LOST PROFITS, BUSINESS INTERRUPTION AND LOSS OF COMPUTER PROGRAMS OR OTHER DATA, COST OF COVER, AND ANY AND ALL OTHER TYPES OF CLAIMS AND DAMAGES OF EVERY KIND, NATURE, AND DESCRIPTION. WE WILL NOTIFY YOU PROMPTLY OF ANY SUCH LIABILITY, DEMAND, CLAIM, RECOVERY, SETTLEMENT, ACTION, PENALTY, COST, LOSS, OR DAMAGES, AND WILL PROVIDE YOU WITH REASONABLE ASSISTANCE, AT YOUR EXPENSE, IN DEFENDING THE SAME. WE MAY ASSUME EXCLUSIVE CONTROL OF ANY DEFENSE OR ANY MATTER SUBJECT TO INDEMNIFICATION BY YOU AT YOUR EXPENSE IF WE DETERMINE THAT YOUR DEFENSE IS NOT ADEQUATE, AND YOU AGREE TO COOPERATE WITH US IN SUCH EVENT.
12. LIMITATION OF DAMAGES
IN NO EVENT WILL ANY OF THE INDEMNITEES BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, INCIDENTIAL, SPECIAL OR OTHER INDIRECT DAMAGES (INCLUDING WITHOUT LIMITATION, COST OF COVER) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF USE, OUR SITES, THE SITE CONTENT (INCLUDING THE SOFTWARE), OR THE SERVICES, OR USE, MISUSE OR PERFORMANCE OF ANY OF OUR SITES, ANY SERVICES, ANY SITE CONTENT (INCLUDING ANY SOFTWARE), OR OTHER MATERIALS PROVIDED OR AVAILABLE IN ASSOCIATION WITH ANY OF OUR SITES OR ANY OTHER LINKS OR LINKED WEBSITE, EVEN IF WE ARE EXPRESSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, EVEN IF SUCH DAMAGES WERE FORESEEABLE, EVEN IF YOUR REMEDIES FAIL OF THEIR ESSENTIAL PURPOSE, AND REGARDLESS OF WHETHER SUCH DAMAGES AROSE IN CONTRACT, TORT (INCLUDING NEGLIGENCE ON OUR PART OR ON THE PART OF ANY OTHER PARTY), STRICT LIABILITY OR OTHER LEGAL BASIS. FOR PURPOSES OF THIS SECTION 12, THE TERM “DAMAGES” INCLUDES, WITHOUT LIMITATION, ATTORNEY FEES THROUGH ANY APPEAL, ANY LOST PROFITS, AND ANY DAMAGES RELATED TO BUSINESS INTERRUPTION AND LOSS OF PROGRAMS OR OTHER DATA. YOU ACKNOWLEDGE THAT THE ECONOMIC TERMS OF OUR AGREEMENT REFLECT THE FOREGOING ALLOCATION OF RISK AND SUCH ALLOCATION OF RISK IS A SIGNIFICANT INDUCEMENT FOR US TO PROVIDE THE SERVICES, OUR SITES, THE SITE CONTENT (INCLUDING THE SOFTWARE), AND OTHER MATERIALS.
13. GOVERNING LAWS IN CASE OF DISPUTE
THESE TERMS OF USE SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF FLORIDA, USA, AS THEY APPLY TO AGREEMENTS MADE AND SOLELY PERFORMED THEREIN BY RESIDENTS THEREOF. TO THE EXTENT THAT WE HAVE THE RIGHT TO BRING ANY ACTION IN COURT UNDER SECTION 17, BELOW, YOU IRREVOCABLY CONSENT AND WAIVE ALL OBJECTION TO PERSONAL JURISDICTION AND VENUE IN THE STATE AND FEDERAL COURTS LOCATED IN PALM BEACH, BROWARD OR MIAMI-DADE COUNTY, FLORIDA, USA, AND ALL OTHER COURTS, WHEREVER LOCATED, WHERE WE DETERMINE AN ACTION IS NECESSARY TO ENFORCE OUR RIGHTS UNDER THESE TERMS OF USE.
14. INTEGRATION; SEVERABILITY; GENERAL
These Terms of Use incorporate by reference our Privacy Policy and any notices contained on our Sites and constitute the entire agreement with respect to your access to and use of our Sites, the Site Content (including the Software), and the Services. Any provision of these Terms of Use which is determined by a court of competent jurisdiction to be unenforceable in any jurisdiction shall be severable from these Terms of Use in that jurisdiction without in any way invalidating the remaining provisions of these Terms of Use. The unenforceability of any provision in a given jurisdiction shall not make that provision unenforceable in any other jurisdiction.
These Terms of Use will be binding upon and inure to the benefit of the parties and each of their respective assigns and successors-in-interest. We may assign our rights or delegate our duties under these Terms of Use, but you may not assign your rights or delegate your duties under these Terms of Use without our prior written consent. Except as expressly provided otherwise in these Terms of Use, no third party will have any rights as a third party beneficiary under these Terms of Use. Time is of the essence in the performance of each and every obligation under these Terms of Use. References to “days,” “months,” “quarters,” or “years” mean calendar days, months, quarters or years, respectively. The captions and headings in this Agreement will not be used in interpreting these Terms of Use. No delay or omission in the exercise of any right or remedy will impair such right or remedy or be construed as a waiver. A consent to or approval of any act shall not be deemed to waive or render unnecessary consent to or approval of any other or subsequent act. Use of the terms “including” or “includes” does not imply any limitation.
15. TRADEMARKS
Graphics, logos, page headers, button icons, scripts, and product and service names included in or made available through our Sites are our trademarks or trade dress in the U.S. and other countries. Our trademarks and trade dress may not be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits us or our products or services. Any rights that we have not expressly granted herein are reserved.
All other trademarks, service marks, and trade names not owned by us that appear in our Sites are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
16. SURVIVAL
Except for the rights granted under paragraph 10.b, above, the terms, conditions, covenants, indemnifications, releases, waivers, and all other provisions of these Terms of Use shall survive the termination or expiration of these Terms or Use, our Sites, the Site Content, and/or the Services.
17. ARBITRATION
Excluding legal action taken by us at our option to obtain an injunction or other equitable relief to prevent the improper appropriation, disclosure, or other misuse of our intellectual property rights, the Services, the Site Content (including the Software), and/or our Sites, the exclusive method for resolving any controversy, dispute or claim arising from or related to these Terms of Use, our Sites, the Services, and/or the Site Content (including the Software), including the construction and scope of these Terms of Use, shall be by arbitration before a single arbitrator (the “Arbitrator”) in accordance with the Commercial Arbitration rules and regulations of the American Arbitration Association (“Association”) then in effect. Any such controversy, dispute or claim shall be arbitrated on an individual basis, and shall not be consolidated with any arbitration regarding any claim, dispute or controversy of any other party. Within ten (10) days after the filing of any request to arbitrate, the parties will each select an arbitrator, and the selected arbitrators will select the Arbitrator within thirty (30) days after the date of such filing. If either party refuses or fails to select an arbitrator within the designated time period, the Association will select the arbitrator on behalf of such party. If the arbitrators selected by the parties refuse or fail to select the Arbitrator within the designated time period, then on the request of any party, the Association will select the Arbitrator. Each of the selected arbitrators and the finally appointed Arbitrator will be recognized by the Association as a legal expert in the field of business software practices in the automotive industry. The parties hereby irrevocably agree that the arbitration will be held within the County of Palm Beach, Broward, or Miami-Dade, State of Florida, USA, and will apply the laws of the State of Florida (without regard to their conflicts of law principles). The Arbitrator may award any and all remedies and relief deemed appropriate under the circumstances, including money damages and injunctive relief. If any party fails to provide any response or to appear at any arbitration proceeding, the Arbitrator will proceed with the arbitration without such response or appearance. At the conclusion of the arbitration, the Arbitrator will issue a written award containing essential findings of fact and reasoned opinions and conclusions on which the award is based. The final award rendered by the Arbitrator will be binding, final and non-appealable. Judgment upon any arbitration may be entered in any court having competent jurisdiction thereof. The costs of arbitration and the Arbitrator's fees in connection with any such arbitration will be shared equally by the parties unless the Arbitrator determines that the party or parties prevailing in the arbitration shall bear a lesser portion thereof. This arbitration provision will be deemed to be self-executing and will remain in full force and effect after the expiration or termination of these Terms of Use, our Sites, the Site Content, and/or the Services. Except as may be required by applicable law, no party, arbitrator, Arbitrator, or the Association will disclose the existence, content, or results of any arbitration hereunder without the express prior written consent of both you and us. Notwithstanding the above, any party may bring an action in any court of proper jurisdiction with respect to any claim having a reasonable value of U.S. $5,000.00 or less, without considering attorneys fees and other costs.
18. NOTICES
All notices or other communications required or permitted to be given to us under these Terms of Use shall be in writing and shall be sent by registered or certified mail, postage prepaid, return receipt requested, or sent by an overnight express courier service that provides written confirmation of delivery, to us at TGP Solutions LLC, 1101-7 S. Rogers Circle, Boca Raton, FL 33487, U.S.A., Attention: General Manager. All notices or other communications required or permitted to be given to you under these Terms of Use shall be to the email address that you provide to us. Notice shall be deemed given when the email is sent to such email address. Alternatively, we may provide you with notice or communication by registered or certified mail, postage prepaid, return receipt requested, or sent by an overnight express courier service that provides written confirmation of delivery. In the case of any communication by mail or courier, delivery shall be deemed to have occurred upon receipt of such communication by the recipient thereof.
19. ATTORNEYS FEES
In the event any action, claim, litigation, arbitration, mediation, or other proceeding (collectively, “Proceeding”) is initiated by any party against any other party to enforce, interpret or otherwise obtain arbitral, judicial or quasi judicial relief in connection with these Terms of Use, the prevailing party in such Proceeding shall be entitled to recover from the unsuccessful party all reasonably incurred costs, expenses, and attorney's fees relating to or arising out of (a) such Proceeding (whether or not such Proceeding proceeds to award or judgment), and (b) any post judgment or post award Proceeding, including, without limitation, one to enforce any judgment or award resulting from any such Proceeding. Nothing in this Section 19 shall be construed to negate or limit the obligation to arbitrate claims and disputes under Section 17, above.
20. COPYRIGHT NOTICE
Copyright © 2014 - 2019 TGP Solutions LLC, 1101-7 S. Rogers Circle, Boca Raton, FL 33487, U.S.A.
21. ACKNOWLEDGEMENT
BY USING THE SERVICES OR THE SOFTWARE, OR ACCESSING OUR SITES OR THE SOFTWARE, YOU ACKNOWLEDGE THAT YOU HAVE READ THESE TERMS OF USE AND AGREE TO BE BOUND BY THEM.
22. ACES STANDARDS
Our products (including the Software) may contain identifiers, standards and other information derived from the Aftermarket Catalog Enhanced Standard or any successor product (the “ACES Standards”) published by the Auto Care Association (“ACA”). If you license a product (including any Software) from us, you may only use the ACES Standards contained therein to the extent that the ACA has granted you the legal right to use such ACES Standards.
23. MODIFICATION AND AMENDMENTS
We may modify these Terms of Use at any time by posting revised Terms of Use on our Site and your continuing use of such Site, the Site Content (except as provided otherwise in Section 10, above), and the Services constitutes your agreement to be bound by such modified Terms of Use. These Terms of Use may only be amended as provided above, or by a writing signed by you and us. Any amended Terms of Use shall become effective immediately after posting on our Sites. It is your responsibility to review these Terms of Use periodically, and if at any time you find these Terms of Use unacceptable, you must immediately leave our Sites and cease all use of our Sites, the Site Content (including the Software), and the Services.
24. EFFECTIVE DATE
These Terms of Use are effective as of January 1, 2019, and supersede all prior versions of these Terms of Use.
