Last Updated: 15 August 2019 (Version 2)
Tirescanner.com, Inc. (“Tirescanner”) welcomes customers looking to purchase Tires (“Buyers” or “Buyer”), and tire manufacturers and retailers looking to sell Tires (“Sellers” or “Registered Users”), to https://tirescanner.com (each such user referred to as “you” or “User” and the website as “Site”).
In certain instances Tirescanner will sell Tires directly to Buyers (such sales known as “Drop Ship Sales”) and Buyers will have them fitted by an installer (“Installer”). Unless stated otherwise, reference to Sellers or Seller will include a reference to Tirescanner in relation to a Drop Ship Sale (but not in any other circumstance).
The Site offers a range of services associated with the sale of tires and arrangement of a tire installation appointment, and sometimes additional terms to the Agreement (“Additional Terms”) may apply to your use thereof. For example, tire retailers (other than Tirescanner) and tire manufacturers are subject to Additional Terms (called “Retailer Terms”) governing the sale of tires on the Site and/or the provision of data and marketing insights.
1. Tirescanner’s Site
1.1 The Site is providing Buyers with a platform to purchase and arrange installation or delivery of vehicle tires (“Tires”) from the Sellers, with the transaction either:
1.1.1 to be concluded in the Tirescanner checkout on the Site (where Tirescanner and its authorised payments processing partner collect the funds for the Seller (whether the Seller is Tirescanner on a Drop Ship Sale or a third party Seller)) (a “TS Site Sale”); or
1.1.2 to be concluded on the Seller’s own external site which the Buyer will be redirected to (an “External Site Sale”).
1.2 You are responsible for obtaining access to the Site, and that access may involve third-party fees (such as internet service provider or airtime charges on mobiles). In addition, you must provide and are responsible for all equipment necessary to access the Site.
1.4.1 Prohibited Conduct & Restricted Product Rules (Section 4 below).
1.4.2 DMCA Rules (Section 7 below).
1.4.3 Electronic Communications Rules (Section 9 below).
1.5 The following rules apply to sales through the Site that are not Drop Ship Sales:
1.5.1 Tirescanner does not sell, resell, provide, control, manage, offer, deliver, install or supply any Tires. Sellers alone are responsible for their Tires (including any warranty imposed beyond that offered by a manufacturer). When a Buyer makes a purchase from a Seller, whether through a TS Site Sale or an External Site Sale, the Buyer and Seller are entering into a contract directly with each other. Tirescanner is not and does not become a party to or other participant in any contractual relationship between a Buyer and a Seller.
1.5.2 Tirescanner is not and shall not be involved in disputes between Users except to the limited extent set out in Section 19.
2. License and Site Access
2.1 Tirescanner grants you a revocable, royalty free, non-transferable and personal license to access the Site. This license does not include any downloading or copying of account information for the benefit of any other third party; caching, unauthorized hypertext links to the Site and the framing of any Content (defined below) available through the Site, uploading, posting, or transmitting any content that you do not have a right to make available (such as the intellectual property of another party); uploading, posting, or transmitting any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; any action that imposes or may impose (in Tirescanner’s sole discretion) an unreasonable or disproportionately large load on Tirescanner’s infrastructure; or any use of data mining, robots, or similar data gathering and extraction tools.
2.2 You may not bypass any measures used by Tirescanner to prevent or restrict access to the Site. Any unauthorized use by you shall terminate the permission or license granted to you by Tirescanner.
2.3 Accessing the Site may include usage of open source software or third party software. Any such software is made available to Users under the terms of the applicable licenses.
3. Eligibility and Representations; Terms specific to Sellers (excluding Tirescanner) and Buyers
3.1 You are not permitted to access the Site if you are under the age of 18 or if your account has been suspended or removed by Tirescanner for any reason. By accessing and using the Site, you represent and warrant that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction.
3.2 Sellers and Installers will access the Site as a Registered User. They will be given an account (“Account”) with a unique email address and password (your “Credentials”), as may Buyers at Tirescanner’s discretion. You may not have more than one active account. Additionally, you are prohibited from selling, trading, or otherwise transferring your Credentials or account to another party.
3.4 If you use the Site, you are responsible for maintaining the confidentiality of your Credentials, and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your Account or with your Credentials. Because of this, Tirescanner strongly recommends that you exit from your Account at the end of each session. You agree to notify Tirescanner immediately of any unauthorized use of your Account or any other breach of security. Tirescanner reserves the right to refuse service, terminate Accounts, change Credentials, or remove or edit content in its sole discretion for any reason or no reason.
3.5 We may verify your User Information with a third-party service provider. We also may request you to send us additional documents or information to help us verify your identity. It is prohibited to use false information or impersonate another person through your account.
3.6 Buyers will be asked to provide information about your payment instrument(s), as may Sellers in certain circumstances, and such payment instrument(s) may include a credit card, debit card or another payment method permitted by us (each a “Payment Instrument”). Details of each Payment Instrument may be stored with us and/or our payment services provider for future use. We may validate that your Payment Instrument is in good standing with the Payment Instrument issuer. You agree that the User Information and Payment Instrument information you provide to us is accurate and that you will keep the information regarding it updated.
3.7 Terms Specific for Sellers (excluding Tirescanner):
3.7.1 By listing Tires for sale on the Site, each Seller agrees to pay the service fees due to Tirescanner (“Service Fees”) in consideration for the use of the Site. If a Seller and Tirescanner have entered into an agreement in writing (“Retailer Terms”) setting out the agreed Service Fees then such Service Fees shall be applicable. If a Seller has been permitted to use the Site without separately agreed Retailer Terms having been executed then Tirescanner shall apply its then standard service fees (“Default Service Fees”) as the Service Fees. More information about the Default Service Fees, when they are due and how they are calculated is set out in Tirescanner’s Operational Policies.
3.7.2 Tirescanner reserves the right to change the Default Service Fees at any time. If you do not agree with any changes to the Default Service Fees that would apply to you, your sole remedy will be to terminate this Agreement by removing your Tires from the Site. If you do not terminate your Agreement before the date the revised Default Service Fees become effective, your continued access to or use of the Site will constitute acceptance of the revised Default Service Fees.
3.7.3 Service Fees (including Default Service Fees) due and payable to Tirescanner will be collected and retained by Tirescanner from the sale price of each Tire. Except as otherwise agreed, Service Fees are non-refundable (for the avoidance of doubt including where a Buyer has a valid right to terminate their purchase and receive a full or partial refund).
Quality & Ownership of Tires
3.7.4 Each Seller agrees to provide Tires that are manufacturer approved products and no Tires provided for sale through the Site will be second hand, used, outside the manufacturer’s warranty, or counterfeit goods.
3.7.5 Each Seller represents that he, she or it is the owner of the Tires listed for sale by the Seller or otherwise authorized by the owner of such Tires to sell them, and that by doing so he, she or it does not invalidate any manufacturer warranty.
3.7.6 LIABILITY FOR THIRD PARTY CLAIMS OR BREACH OF TERMS. EACH SELLER AGREES TO INDEMNIFY, DEFEND AND HOLD HARMLESS TIRESCANNER AND ITS EMPLOYEES, AGENTS, SHAREHOLDERS, CONSULTANTS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO:
(a) ANY THIRD PARTY CLAIMS RELATED TO ANY TIRES LISTED ON THE SITE BY THE SELLER; OR
3.7.7 Relationship of Tirescanner & Seller. If you choose to use the Site as a Seller, your relationship with Tirescanner is limited to being an independent, third-party contractor, and not an employee, agent, joint venturer or partner of Tirescanner for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Tirescanner.
Treatment of Funds
3.7.8 If you complete a TS Site Sale, Tirescanner will remit the funds due to you (minus our Service Fees or Default Service Fees and any deductions such as sales tax for which we have to account or other deductions as required by law) in accordance with our Retailer Terms with you (subject to the remaining terms of this Agreement) to your bank account using direct deposit. It is your responsibility to ensure the accuracy of your bank account information held by us and Tirescanner will not be liable for any funds lost as a result of transfer to the wrong account where the information provided by a Seller is incorrect.
3.7.9 You are responsible for all fees, chargebacks, payment reversals or refunds received by Tirescanner, even after you close your Account. Amounts owed may be removed from any balance that we hold on your behalf.
3.7.10 Notwithstanding Section 3.7.9, Funds belonging to a Seller may (subject to any agreed Retailer Terms) be held for up to 90 days where Tirescanner has identified a credit risk in respect of the Seller. A Seller may be required to provide additional information regarding its account, identity, listings or transactions in order to release the holds on these funds. Funds for illegal activity or items will not be released.
3.7.11 We may obtain reimbursement of any amounts owed by a Seller to Tirescanner by deducting from future payments owed to the Seller, reducing any credits from the Seller’s Tirescanner Account Balance, charging any Payment Instrument of the Seller on file, or seeking reimbursement from the Seller by any other lawful means, including by using third-party collections services. You authorize us to use any or all of these methods to seek reimbursement.
4. Prohibited Conduct & Restricted Product Rules
4.1 By accessing and/or using the Site, you hereby agree to comply with these community rules on prohibited conduct:
4.1.1 You will not send Tirescanner any hazardous materials.
4.1.2 You will not use the Site for any unlawful purpose, including money laundering.
4.1.3 You will not post or send Tirescanner false or misleading information.
4.1.5 You will not access or use the Site to collect any market research for a competing business.
4.1.6 You will not upload to, distribute or otherwise publish through the Site any User Content (as defined below) that:
(a) is confidential, proprietary, invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, harmful, threatening, false, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful, racially, ethnically or otherwise objectionable, including, but not limited to any content that encourages conduct that would constitute a criminal offense, violates the rights of any party or otherwise gives rise to civil liability or otherwise violates any applicable U.S. or foreign laws;
(b) may contain software viruses or malware;
(c) contains advertisements or solicitations of any kind, or other commercial content;
(d) contains personal information (such as messages that include phone numbers, Social Security numbers, payment card numbers, account numbers, addresses or employer references), except where Tirescanner expressly asks you to provide such information;
4.1.7 You will not impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.
4.1.8 You will not cover, obscure, block, or in any way interfere with any advertisements on the Site.
4.1.9 You will not take any action that imposes or may impose (in Tirescanner’s sole opinion) an unreasonable or disproportionately large load on Tirescanner’s technical infrastructure.
4.1.10 You will not use automated means, including spiders, robots, crawlers, data mining tools or the like to download or scrape data from the Site.
4.1.11 You will not interfere with or attempt to interrupt the proper operation of the Site through the use of any virus, device, information collection or transmission mechanism, software or routine, or access or attempt to gain access to any data, files, or passwords related to the Site through hacking, password or data mining, or any other means.
4.2 The following products are restricted from advertisement or sale upon the Site (and each User agrees to abide by this restriction):
4.2.1 any product that is not Tires or items or services related to Tires that Tirescanner have specifically authorised a Seller to advertise (such as valves, wheel alignment, servicing etc);
4.2.2 without prejudice to the foregoing generality, any of the following: anything illegal; drugs including products, tools, or services specifically offered or intended to be used to create drugs; FDA restricted items; stolen goods; counterfeit goods or goods infringing on a third party’s intellectual property rights such as listings of non-brand, non-genuine, imitation, fake, or replica Tires; items in violation of a copyright, including items with copyrighted characters, brand logos, etc.; weapons; alcohol; tobacco products; items used for identity theft; items that are a safety hazard; products designed to circumvent copyright protection techniques or otherwise facilitate the unlicensed use of copyright materials; age restricted products or products that require a legal approval or licenses to be sold; financial products and services; live animals; any item that contains a computer virus, malware, or spyware; digital items; or explicit items such as sexual or offensive items.
4.3 Please let Tirescanner know about inappropriate content. If you find something that violates these Prohibited Conduct & Restricted Product Rules, let Tirescanner know, and Tirescanner will review it. Tirescanner reserves the right, in Tirescanner’s sole and absolute discretion, to deny you access to the Site, or any portion of the Site, without notice and remove any User Content that does not adhere to these Rules.
5. The Products; Install & Shipping; Contract of Sale; Cancellation & Refund Policy
Product Availability and Pricing.
5.1 Tires and other products that are sold through the Site (the “Products”) are not manufactured, stored or inspected by Tirescanner. We provide the venue; but the items in our marketplaces are either:
5.1.1 produced, listed and sold directly by independent Sellers, so Tirescanner cannot and does not make any warranties about items’ quality, safety or legality. Any legal claim related to an item you purchase must be brought directly against the Seller of the item. You release Tirescanner from any claims related to items sold through our Site, including for defective items, misrepresentations by Sellers or items that caused physical injury (like product liability claims); or
5.1.2 in the case of any Drop Ship Sale, are listed and sold by Tirescanner but supplied by our distributor directly to an Installer with our obligations as a Seller, and your rights as a Buyer, determined by the Terms of Sale between us at https://tirescanner.com/saleterms.
5.2 Sometimes with the volume of orders Tirescanner receives and/or the speed of our stock feed updates from Sellers, a Product may go out of stock before Tirescanner is able to remove a listing or post a notification on the Site. If this happens after you purchased that Product, Tirescanner or the Seller will contact you directly to discuss possible options.
5.3 Product prices may be inaccurately displayed on the Site due to system or typographical errors. While Tirescanner makes every attempt to avoid these errors, they may occur. Tirescanner reserves the right to correct any and all errors when they do occur, and Tirescanner does not honor inaccurate or erroneous prices. If you purchase a Product with a listed price that is lower than its actual price, Tirescanner will, at Tirescanner’s discretion, either contact you to notify you of the correct price before installation of the Product or cancel the order and notify you of such cancellation. A Seller or Installer may also alert you of a price error prior to commencing fitting or shipping (as applicable) of the Product and thereby cancel the order. If the order is a Tire that has been installed, prior to you being notified of the price error, then you shall be charged the price advertised. Tirescanner’s prices are also subject to change without notice prior to an order being placed. Tirescanner apologizes for any inconvenience that this may cause.
5.4 Tirescanner does not negotiate prices on Products, all prices listed on the Site for a Product are final. Tirescanner does not prohibit a Seller or Installer from offering further discounts or additional services at the time of fitting the Products but the Service Fee or Default Service Fee payable by a Seller is always based on the price at which the sale was concluded on the Site.
Product Descriptions & Images.
5.5 Tirescanner makes every attempt to ensure that Tirescanner’s online catalogue is as accurate and complete as possible. Some Products may appear larger or smaller than their actual size in Tirescanner’s photographs or images; and since every computer monitor is set differently, color and size may vary slightly.
5.6 Tirescanner’s objective is to provide Buyers with as much information and detail about a prospective purchase as possible. The Products will however be shown by way of stock imaging and in some cases on a particular wheel; the actual Product for sale is not pictured and installation will be to the wheels actually fitted to your vehicle and does not include the provision and fitment of any wheels shown in images of Products on the Site.
Terms of Sale.
5.7 The contract of sale and purchase of a Tire is between the Seller and the Buyer (the “Sale Contract”). In the case of a TS Site Sale, unless through the checkout process alternative terms of sale are notified to the Buyer in respect of that Seller, the terms of sale between the Buyer and the Seller (including a Drop Ship Sale where Tirescanner is the retailer of the Tire) are found at https://tirescanner.com/saleterms. In the case of an External Site Sale, the terms of sale between the Buyer and Seller are as set out on that External Site.
Fitting & Supply.
5.8 Products purchased by a Buyer will either (as chosen by the Buyer) be fitted by the Seller, by an Installer (in the case of a Drop Ship Sale) or, where the option is offered at checkout, delivered by the Seller (either at the Seller’s premises or to premises stipulated by the Buyer) in accordance with an agreement made directly between the Buyer and the Seller.
5.9 Please note that the installation fee quoted on the Site is additional and separate from the price of the Tire, and is payable in store at the time of fitting.
5.10 Tirescanner has no responsibility for the installation services provided by a Seller or (on a Drop Ship Sale) the Installer. The rights and obligations of the Buyer in respect of any installation services are the terms of business operated by the Seller or Installer for installation services (the “Installer Terms”). A Buyer with any concerns regarding such terms should request that the Seller or Installer provides them to Buyer before installation commences. Tirescanner requires that both Sellers and Installers carry out installation services to a professional standard using properly trained technicians who are capable of safely performing a damage free installation. If a Buyer has any concerns that a Seller or Installer does not meet this standard then they should contact Tirescanner immediately. .
Cancellation & Refund Policy.
5.11 You may cancel an order and return a Product in accordance with the Cancellation & Refund Policy at https://tirescanner.com/cancellation.
6. Intellectual Property
6.1 The Site contains material, such as software, text, graphics, images, sound recordings, audiovisual works, and other material provided by or on behalf of Tirescanner (collectively referred to as the “Content”). The Content includes Product Descriptions. The Content is owned by Tirescanner or by Tirescanner’s third party licensors. The Content is protected under both United States and foreign laws. Unauthorized use of the Content may violate copyright, trademark, and other laws. You have no rights in or to the Content, and you will not use the Content except as permitted under this Agreement. No other use is permitted without prior written consent from Tirescanner. You must retain all copyright and other proprietary notices contained in the original Content on any copy you make of the Content. You may not sell, transfer, assign, license, sublicense, or modify the Content or reproduce, display, publicly perform, make a derivative version of, distribute, or otherwise use the Content in any way for any public or commercial purpose. The use or posting of the Content on any other website or in a networked computer environment for any purpose is expressly prohibited.
6.2 If you violate any part of this Agreement, your permission to access and/or use the Content and the Site automatically terminates and you must immediately destroy any copies you have made of the Content.
6.3 The trademarks, service marks, and logos of Tirescanner (“Tirescanner Trademarks”) used and displayed on the Site are registered and unregistered trademarks or service marks of Tirescanner. Other company, product, and service names used and displayed on the Site may be trademarks or service marks owned by others (the “Third-Party Trademarks,” and, collectively with the Tirescanner Trademarks, the “Trademarks”). Nothing in this Agreement should be construed as granting, by implication, estoppel, or otherwise, any license or right to use the Trademarks, without Tirescanner’s prior written permission specific for each such use. Use of the Trademarks as part of a link to or from any site is prohibited unless establishment of such a link is approved in advance by Tirescanner in writing (including under a Retailer Agreement). All goodwill generated from the use of the Tirescanner Trademarks inures to Tirescanner’s benefit.
6.4 Elements of the Site are protected by trade dress, trademark, unfair competition, and other state and federal laws and may not be copied or imitated, in whole or in part, by any means, including but not limited to the use of framing or mirrors. None of the Content may be retransmitted without Tirescanner’s express, written consent for each and every instance.
7. Digital Millennium Copyright Act Rules
7.1 Tirescanner respects the intellectual property rights of others and attempts to comply with all relevant laws, and it expects its users to do the same. Tirescanner will review all claims of copyright infringement received and remove any Content or user submissions deemed to have been posted or distributed in violation of any such laws. Tirescanner may, in appropriate circumstances and at its discretion, disable and/or terminate the Accounts of users who may be infringing the intellectual property of a third party.
7.2 Tirescanner’s designated agent under the Digital Millennium Copyright Act (the “DMCA Act”) for the receipt of any notification of claimed infringement, which may be given under that Act is as follows:
c/o Tirescanner.com, Inc.
78 SW 7th St
7.3 If you believe that your work has been copied on the Site in a way that constitutes copyright infringement, please provide Tirescanner’s agent with notice in accordance with the requirements of the DMCA Act, including:
7.3.1 A description of the copyrighted work that has been infringed and the specific location on the Site where such work is located.
7.3.2 A description of the location of the original or an authorized copy of the copyrighted work.
7.3.3 Your address, telephone number and e-mail address.
7.3.4 A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law.
7.3.5 A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
7.3.6 An electronic or physical signature of the owner of the copyright or the person authorized to act on behalf of the owner of the copyright interest.
8. Communication to Tirescanner; User Submissions; and Publicity
8.1 The Site may provide you and other users with the ability to send messages or post content (together, “User Content”) to or for other users and non-users. Tirescanner is under no obligation to review any User Content and assumes no responsibility or liability relating to any such User Content. Notwithstanding the above, Tirescanner may from time to time monitor the User Content and may decline to accept and/or remove any User Content. You acknowledge that you are responsible for any User Content you submit through the Site, including the legality, reliability, appropriateness, originality and copyright of any such User Content.
8.2 You retain all copyrights and other intellectual property rights in and to your User Content. With respect to any User Content you submit or make available through the Site, you grant Tirescanner a perpetual, irrevocable, non-terminable, worldwide, royalty-free, transferable and non-exclusive license, with the right to sublicense through multiple tiers, to use, copy, distribute, publicly display, modify, adapt, publish, create derivative works, and sublicense such User Content or any part of such User Content, in any format or medium now known or hereafter developed. You hereby represent, warrant and covenant that any User Content you provide (i) does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant such a license to Tirescanner, and (ii) Tirescanner’s authorized use thereof, does not and will not infringe the rights of any third party (including, without limitation, intellectual property rights, rights of privacy or publicity, or any other legal or moral rights). Without limiting the foregoing, you acknowledge and agree that uses of your User Content permitted by the foregoing rights and licenses may include the display of such User Content adjacent to advertising and other material or content, including for profit. Please take care with the User Content that you provide.
9. Electronic Communication Rules
9.1 When you use the Site or send emails to Tirescanner, you are communicating with Tirescanner electronically. You consent to receive communications electronically from Tirescanner and its affiliates. Tirescanner will communicate with you by email or by posting notices on the Site. You agree that all agreements, notices, disclosures and other communications that are provided to you electronically satisfy any legal requirement that such communications be in writing.
9.2 Although Tirescanner encourages you to e-mail Tirescanner, Tirescanner does not want you to, and you should not, e-mail Tirescanner any content that contains confidential information. With respect to all e-mails you send to Tirescanner, including but not limited to, feedback, questions, comments, suggestions, and the like, Tirescanner shall be free to use any ideas, concepts, know-how, or techniques contained in your communications for any purpose whatsoever, including, but not limited to, the development, production and marketing of products and services that incorporate such information, without compensation to you.
10. No Warranties/Limitation of Liability
10.1 TIRESCANNER MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE SITE, ANY PRODUCTS OR THE SKILL, CARE AND OUTCOME OF ANY INSTALLATION SERVICES. TIRESCANNER SHALL NOT BE SUBJECT TO LIABILITY FOR ANY DELAYS OR INTERRUPTIONS OF THE SITE FROM WHATEVER CAUSE. YOU AGREE THAT YOU USE THE SITE AND ALL CONTENT MADE AVAILABLE TO YOU THROUGH THE SITE (THE “CONTENT”), AS WELL AS ALL PRODUCTS AND INSTALLATION SERVICES, AT YOUR OWN RISK.
10.2 TIRESCANNER DOES NOT WARRANT THAT THE SITE WILL OPERATE ERROR-FREE OR THAT THE SITE, ITS SERVERS, OR ANY CONTENT ARE FREE OF COMPUTER VIRUSES OR SIMILAR CONTAMINATION OR DESTRUCTIVE FEATURES. IF YOUR USE OF THE SITE OR ANY CONTENT RESULTS IN THE NEED FOR SERVICING OR REPLACING EQUIPMENT OR DATA, TIRESCANNER SHALL NOT BE RESPONSIBLE FOR THOSE COSTS.
10.3 THE SITE, THE CONTENT, ALL PRODUCTS AND ANY INSTALLATION SERVICES PROVIDED ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND FROM TIRESCANNER. TIRESCANNER DISCLAIM ALL WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE WARRANTY OF TITLE, MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTIES’ RIGHTS, AND FITNESS FOR PARTICULAR PURPOSE SAVE TO THE EXTENT THEY ARE THE SELLER UNDER A DROP SHIP SALE AND ARE PROHIBITED BY LAW FROM MAKING SUCH A DISCLAIMER, IN WHICH CASE SUCH WARRANTY IS MADE ONLY TO THE MINIMUM EXTENT REQUIRED BY LAW.
10.4 TIRESCANNER SHALL NOT BE LIABLE TO YOU (OR TO ANY PERSON CLAIMING RIGHTS DERIVED FROM YOUR RIGHTS) FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE, OR EXEMPLARY DAMAGES OF ANY KIND (INCLUDING WITHOUT LIMITATION LOST REVENUES OR PROFITS, OR LOSS OF GOODWILL OR REPUTATION) WITH RESPECT TO ANY CLAIMS BASED ON CONTRACT, TORT OR OTHERWISE (INCLUDING NEGLIGENCE AND STRICT LIABILITY) ARISING OUT OF OR RELATING TO THIS AGREEMENT. TIRESCANNER’S MAXIMUM LIABILITY ARISING OUT OF OR RELATING TO THIS AGREEMENT, REGARDLESS OF THE CAUSE OF ACTION (WHETHER IN CONTRACT, TORT, BREACH OF WARRANTY, OR OTHERWISE), WILL NOT EXCEED THE LESSER OF THE FEES PAID BY YOU FOR THE PRODUCT OR SERVICE GIVING RISE TO THE CLAIM, OR $100.
10.5 THE SITE AND/OR THE CONTENT MAY CONTAIN TECHNICAL INACCURACIES OR TYPOGRAPHICAL ERRORS OR OMISSIONS. TIRESCANNER IS NOT RESPONSIBLE FOR ANY SUCH TYPOGRAPHICAL OR TECHNICAL ERRORS. THE SITE AND/OR THE CONTENT MAY CONTAIN INFORMATION ON PRODUCTS WHICH ARE NOT AVAILABLE IN EVERY LOCATION OR WHICH ARE NO LONGER AVAILABLE. A REFERENCE TO A PRODUCT ON THE SITE DOES NOT IMPLY THAT SUCH PRODUCT IS OR WILL BE AVAILABLE TO YOU. TIRESCANNER RESERVES THE RIGHT TO MAKE CHANGES, CORRECTIONS, AND/OR IMPROVEMENTS TO THE SITE AND/OR ANY PRODUCT LISTING AT ANY TIME WITHOUT NOTICE.
10.6 YOU AND TIRESCANNER AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND TIRESCANNER AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
10.7 TIRESCANNER IS NOT RESPONSIBLE FOR THE ACCURACY OF ANY PAYMENT INSTRUMENT INFORMATION, INCLUDING, BUT NOT LIMITED TO, WHETHER SUCH INFORMATION IS UP-TO-DATE. TIRESCANNER HAS NO RESPONSIBILITY TO DETERMINE IF YOUR OR ANOTHER USER’S PAYMENT INSTRUMENT IS IN GOOD STANDING OR IF YOU OR ANOTHER USER HAVE AN AVAILABLE BALANCE WITH WHICH TO MAKE A TRANSACTION THROUGH THE SERVICE. YOU MAY INCUR FEES, SUCH AS OVERDRAFT FEES OR OTHER CHARGES AS A RESULT OF SUCH TRANSACTIONS, PER YOUR AGREEMENT WITH YOUR PAYMENT INSTRUMENT ISSUER, OR YOUR REQUESTED TRANSACTION THROUGH THE SERVICE MAY BE UNSUCCESSFUL.
10.8 FOR ALL CLAIMS ARISING OUT OF OR RELATING TO TRANSFERS OF FUNDS FROM A SELLER’S TIRESCANNER ACCOUNT BALANCE, THE SOLE REMEDY AGAINST TIRESCANNER SHALL BE LIMITED TO THE AMOUNT OF THE MONEY TO BE TRANSMITTED PLUS FEES AND CHARGES. IN NO EVENT SHALL TIRESCANNER BE LIABLE FOR DAMAGES FOR DELAY, NON DELIVERY, NONPAYMENT OR UNDERPAYMENT OF A PAYMENT TRANSACTION, WHETHER CAUSED BY AN ACT OR OMISSION OF TIRESCANNER OR OTHERWISE, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW OR REGULATION.
11. External Sites. The Site may contain links to third-party websites (“External Sites”), including in some instances to the website of a Seller where a sale transaction may be concluded (an External Site Sale). These links are provided solely as a convenience to you and not as an endorsement by Tirescanner of the content on such External Sites. The content of such External Sites is developed and provided by others. You should contact the site administrator or webmaster for those External Sites if you have any concerns regarding such links or any content located on such External Sites. Tirescanner is not responsible for the content of any linked External Sites and do not make any representations regarding the content or accuracy of materials on such External Sites. You should take precautions when downloading files from all websites to protect your computer from viruses and other destructive programs. If you decide to access linked External Sites, you do so at your own risk.
12. INDEMNIFICATION. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD TIRESCANNER AND TIRESCANNER’S OFFICERS, DIRECTORS, EMPLOYEES, SHAREHOLDERS, SUCCESSORS, LICENSEES, AND ASSIGNS HARMLESS FROM AND AGAINST ANY CLAIMS, ACTIONS, OR DEMANDS, INCLUDING, WITHOUT LIMITATION, REASONABLE LEGAL AND ACCOUNTING FEES, ARISING OR RESULTING FROM YOUR BREACH OF THIS AGREEMENT, ANY OF YOUR TRANSACTIONS MADE THROUGH THE SITE, OR YOUR ACCESS TO, USE, OR MISUSE OF THE SITE, THE CONTENT OR ANY PRODUCT. TIRESCANNER RESERVES THE RIGHT, AT YOUR EXPENSE, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER THAT IS SUBJECT TO INDEMNIFICATION UNDER THIS SECTION. IN SUCH CASE, YOU AGREE TO COOPERATE WITH ANY REASONABLE REQUESTS ASSISTING TIRESCANNER’S DEFENSE OF SUCH MATTER.
13. Compliance with Applicable Laws. The Site is based in the United States. Tirescanner makes no claims concerning whether the Site or any Content may be downloaded, viewed, or be appropriate for use outside of the United States. Tirescanner also make no claims concerning whether any Product is appropriate for sale outside of the United States. If you access the Site or the Content from outside of the United States, you do so at your own risk. Whether inside or outside of the United States, you are solely responsible for ensuring compliance with the laws of your specific jurisdiction.
14. Modification and Notification Changes
14.1.1 sending an email to the address associated with your account (Tirescanner is not responsible for your failure to receive an email due to the actions of your ISP or any email filtering service; therefore, you should add Tirescanner.com to the list of domains approved to send you email (commonly known as your “whitelist”)); or
with (i) or (ii) being deemed sufficient notification of such changes. If notification is made by email then at Tirescanner’s option it may take effect immediately.
15. Force Majeure
15.1.1 Weather conditions or other elements of nature or acts of God.
15.1.2 Acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion.
15.1.3 Quarantines or embargoes.
15.1.4 Labor strikes.
15.1.5 Other causes beyond the reasonable control of Tirescanner.
15.2 In the event that Tirescanner or any Seller or Installer is temporarily unable to install or ship a Product purchased by you because of such an event, Tirescanner will give you the option of deferring installation/shipment or receiving a refund of your charges (and Sellers agree that they accept that, on request, they will refund a customer in such circumstances).
16. Termination of Agreement
16.1 Tirescanner reserves the right, in Tirescanner’s sole discretion and subject to any contrary Retailer Terms agreed with a Seller, to restrict, suspend, or terminate this Agreement and your access to the Site or any part thereof, at any time and for any reason without prior notice or liability. Tirescanner reserves the right to change, suspend, or discontinue all or any part of the Site at any time without prior notice or liability.
16.2 If we validly terminate or suspend your Account or access to our service under Section 16.1:
16.2.1 You don’t have a contractual or legal right to continue to use our service, for example, to sell or buy on our Site. We will not be liable to you for the effect that any changes to the service may have on you, including your income or your ability to generate revenue through the service.
16.2.2 You remain responsible for fees, shipping fees, chargebacks/funds reversals, returns or refunds requested and remain obligated to resolve any disputes with other Users that are a result of purchases or sales of goods occurring prior to termination/suspension.
16.2.3 In relation to the Sellers, funds may be held for up to 90 days to seek reimbursement from a Seller when:
(a) we provide a refund to a Buyer because a Seller did not provide the goods or we otherwise determine that a refund is warranted in a particular circumstance;
(b) we discover erroneous or duplicate transactions related to a Seller; or
(c) we receive a chargeback or payment reversal from a Buyer’s Payment Instrument issuer for the amount of a Buyer’s purchase from a Seller.
17. Seller Additional Terms
18.1 Jurisdiction and Choice of Law. This Agreement is governed by the internal substantive laws of the State of Florida, without respect to its conflict of laws provisions. You expressly agree:
18.1.1 To submit to the exclusive personal jurisdiction of the state and federal courts sitting in the State of Florida.
18.1.2 That the Site shall be deemed passive and does not give rise to personal jurisdiction over Tirescanner, either specific or general, in jurisdictions other than Florida.
18.2 TIME BAR. YOU AGREE THAT ANY CAUSE OF ACTION ARISING OUT OF OR RELATED TO THE SITE, THE CONTENT, ANY PRODUCT, FITMENT SERVICE OR OTHERWISE ARISING OUT OF RELATED TO THIS AGREEMENT, OR TIRESCANNER’S SERVICES, MUST COMMENCED BY YOU WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
18.3 Survivorship. If any provision of this Agreement is found to be invalid by any court having competent jurisdiction or terminated in accordance with the Termination provision above, the invalidity or termination of such provision shall not affect the validity of the following provisions of this Agreement, which shall remain in full force and effect: “Intellectual Property,” “Communications to Tirescanner; User Submissions; and Publicity,” “No Warranties/Limitation of Liability,” “Indemnification,” “Termination of the Agreement,” and “Miscellaneous.”
18.4 Waiver. Tirescanner’s failure to act on or enforce any provision of the Agreement shall not be construed as a waiver of that provision or any other provision in this Agreement. No waiver shall be effective against Tirescanner unless made in writing, and no such waiver shall be construed as a waiver in any other or subsequent instance.
18.5 Entire Agreement. Except as expressly agreed by Tirescanner and you in writing (for example in a Retailer Agreement), this Agreement constitutes the entire Agreement between you and Tirescanner with respect to the subject matter, and supersedes all previous or contemporaneous agreements, whether written or oral, between the parties with respect to the subject matter. The section headings are provided merely for convenience and shall not be given any legal import. This Agreement will inure to the benefit of Tirescanner’s successors, assigns, licensees, and sublicensees.
18.6 No Assignment. A sales contract for a product will be formed with the Seller when the Buyer completes the steps for purchasing a product as set out on the Site, but potentially before payment is remitted. The Seller (other than on a Drop Ship) and the Buyer shall not assign to a third party, provide as security, or otherwise dispose of their rights and obligations arising under such sales contract.
18.7 Impact of payments. Seller agrees that Tirescanner and its designated payment processor act as agents for the Seller in processing payments for purchases. A Buyer’s obligation to a Seller for the purchase price shall be deemed extinguished upon receipt by Tirescanner of the purchase price (except for Buyer’s obligations in the event of a chargeback or other payment reversal).
18.8 Transaction Records and Receipts. Tirescanner is not obliged to issue receipts to Users for payments made or received on the Site or through its payment processor, except as required by applicable law or regulation. Records of your payment transactions through the Site and Tirescanner Account balance transactions will be reflected in your transaction history in your Tirescanner Account. You are responsible for reviewing your payment transaction history to determine if there are any errors or unauthorized transactions, and for alerting Tirescanner of such events through the Contact details at Section 21. It is your obligation to print or save a copy of your transaction history if desired.
18.9 No Interest. Tirescanner, its bank and its payments processor do not pay interest to you on earnings or any other funds which may be maintained in an account or otherwise with Tirescanner. You assign to Tirescanner the right to earn interest on earnings or other funds maintained with Tirescanner and its bank, in consideration of your use of the Site.
18.10 Complaints from Californian Residents. If you are a California resident, California Civil Code Section 1789.3 allows you to contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210, in order to resolve a complaint regarding the service or to receive further information regarding use of the service.
19. Disputes and Customer Service Issues between Sellers and Buyers
19.1 If you are a Buyer who purchased Tires through a third party website linked to from the Tirescanner Site (what we call an External Site Sale) then any disputes, refunds or customer service issues should be referred to the operator of that third party website. In all other cases, customer service issues (including disputes or problems) are dealt with in accordance with this section 19.
19.2 If a dispute or problem arises with regard to any Product or installation service purchased through a TS Site Sale, we advise Buyers that:
19.2.1 if the matter relates to scheduling of an installation appointment, they should contact the installer directly using the contact details provided in the email that confirmed the order; or
19.2.2 in relation to any other issue, they should notify Tirescanner at email@example.com who shall endeavour to respond to the Buyer within 5 business days of such notification to confirm whether the matter can be addressed by Tirescanner or should be referred to the relevant Seller or Installer.
19.3 On a non-Drop Ship Sale, the matter would usually be resolved directly by the Seller (and not Tirescanner). In the event that a dispute is escalated to Tirescanner, we have the right (but not the obligation) to issue a refund to a Buyer on behalf of the Seller if we believe in good faith that a refund is appropriate based on both the circumstances and the Sale Contract.
19.4 Unless an order is cancelled in accordance with the Cancellation & Refund Policy prior to installation, or it voluntarily agrees to do so under section 19.3, Tirescanner will not (save to the extent required by law) be responsible for processing refunds.
19.5 In the event that a Buyer submits a chargeback or other form of payment reversal, Tirescanner will respond to the payment network as the merchant of record either for itself (in the case of a Drop Ship Sale) or on behalf of the Seller involved in the transaction (in the case of a non-Drop Ship Sale). In a non-Drop Ship Sale, the Seller agrees to provide any requested information to Tirescanner within five (5) calendar days of the request. Tirescanner reserves the right to recoup funds associated with Buyer chargebacks/payment reversals or refunds from the Buyer or the Seller (as applicable) through any permissible legal means.
19.6 Returns of prohibited items to Sellers are not allowed. Buyers may be eligible for a refund after the goods have been confirmed destroyed. Sellers will not be reimbursed for prohibited items.
19.7 If there is a dispute between Users, or between a User and a third party with regard to anything associated with the Site, Tirescanner shall not have any responsibility for the costs incurred by any User in resolving such matter
19.8 If you have a dispute with one or more Users, you release Tirescanner (and its officers, directors, shareholders, employees, consultants, affiliates, subsidiaries and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
20.1 Each User hereby agrees to comply with any and all applicable tax laws and regulations in connection with your use of the Site and purchase or sale of any Products or services, including complying with any obligation upon you for reporting and payment of any taxes arising from a payment transaction or income received through sales made through the Site (whether TS Site Sales or External Site Sales)
20.2 All Sellers will fully cooperate with Tirescanner in ascertaining the level of sales tax due on each sale and will use all reasonable endeavours to accurately and timeously pay and report any sales tax liability on such sale. Where required by law or deemed necessary by Tirescanner, Tirescanner may withhold from any amount due to a Seller the amount of any sales tax liability of Tirescanner or the Seller on a sale and apply that amount in discharging the sales tax payment liability.
21. Contact Details
21.1 If you wish to contact Tirescanner, you may do any of the following:
Email: You can contact us at firstname.lastname@example.org or click here to go to the Contact Us page.
Post: You can write to us at: Tirescanner.com, Inc, 78 SW 7th St, Miami, FL 33130, USA.
21.2 If you need to contact the Tire Shop regarding installation of a Tire that you have purchased, the name, address and contact details are set out in the email sent to you confirming the order. If you no longer have the email, please contact us with your name and order number and we will endeavour to answer your query.
21.3 If Tirescanner determines that there is a need to notify or contact a User, it will do so by sending a text message, email, or letter to the phone number, email address or mailing address provided by the User. Alternatively, the notice may be displayed on the Site, or by other reasonable means. Tirescanner shall not be liable for any damages incurred due to the fact that Tirescanner’s notice or communication was not received or was delayed.