AGREEMENT AND ACCEPTANCE
This RushCare User Agreement (this “Agreement”) is between you, the registrant, and any company or organization represented by the registrant ("Customer," "you" or "your," as applicable) and Rush Administrative Services, Inc. on behalf of itself and its affiliates (“Rush,” “we” or “our,” as applicable) and governs your use of products and services offered by Rush through the RushCare Program, which includes Rush websites, portals and Rush Online Services (as defined in Section 1), (collectively, the "Program") as well as your purchase of any products or services offered on or through the Program (including Parts, Rush Repair Services and Third Party Offerings (as defined in Section 1)).
Rush may revise or update this Agreement and/or post revised or updated Third Party Agreements from time to time in its sole discretion without notice to you. All changes are effective immediately when we post them, and the most current version of this Agreement and any applicable Third Party Agreements will supersede all previous versions. Your continued use of or participation in the Program and the applicable Third Party Offerings means that you accept and agree to the changes. We encourage you to check this page regularly to ensure you are familiar with the most current version of this Agreement and applicable Third Party Agreements.
1. Offerings; Registration. Rush makes available on or through the RushCare Program (the Program) certain online services provided and licensed herein directly by Rush, including without limitation, tools that help you schedule, track and manage your fleet’s maintenance or repair needs (the “Rush Online Services”). Rush may also make available on or through the Program certain new and/or used parts, components, equipment, accessories or materials (“Parts”), vehicle maintenance and repair services provided by Rush (“Rush Repair Services”) and third party products and services licensed and/or provided to you directly by the applicable Third Party Licensor (as defined in Section 19) (“Third Party Offerings” and, together with the Rush Online Services, Parts, and Rush Repair Services, the “Offerings”). The terms and conditions of this Agreement apply to all orders of Offerings on or through the Program. To access various portions of the Program and some Third Party Offerings, you may be asked to provide certain registration details or other information. If you have not registered to use a subscription service and executed or otherwise indicated your acceptance of all necessary documentation as described below, you may not access or use that subscription service. Notwithstanding the foregoing, Customer acknowledges that Rush Repair Services are performed subject to, and Customer agrees to be bound by, the Rush’s Terms of Service set forth in and accessed through the following link: https://www.rushtruckcenters.com/rush-maintenance-and-repair-terms-of-service
2. Username and Password. If you choose or are provided with a username, password or any other piece of information as part of our security procedures, you acknowledge that your account is personal to you and agree not to disclose your username, password or other security information to any other person or entity or provide any other person or entity with access to the Program or any portion of it using your username, password or other security information. Rush shall have no liability or responsibility to monitor the use of usernames and passwords or the activities that are conducted under such usernames and passwords. YOU ARE ENTIRELY RESPONSIBLE FOR MAINTAINING THE CONFIDENTIALITY OF YOUR USERNAME AND PASSWORD AND FOR ANY AND ALL USE OF THE PROGRAM THAT IS ACCESSED, AND ACTIVITIES THAT ARE CONDUCTED AND FEES THAT ARE INCURRED, UNDER SUCH USERNAMES AND PASSWORDS. You agree to notify us immediately of any unauthorized access to or use of your username or password or any other breach of security. We have the right to disable any username, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion if we are of the opinion that you have violated any provision of this Agreement.
3. License, Ownership and Proprietary Rights. Rush grants to you a revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the online and/or software based components of the Program during the term of this Agreement in accordance with the terms and conditions of this Agreement solely for you and your internal business purposes and only as the Program functionally permits. Except to the extent set forth in this Section, no other right or license of any kind is granted by Rush or its affiliates to you under this Agreement. All rights or privileges not expressly granted to you in this Agreement are reserved by Rush, its affiliates, licensors or other relevant third parties, as applicable. The online and/or software based components of the Program are licensed, not sold, and you acknowledge that you do not acquire any rights of ownership in the Program or its content (including without limitation any Source Data, as defined in Section 8). The Program and its contents, features and functionality are owned by Rush, its affiliates, licensors or other third party providers of the material contained therein, and are protected by United States and international copyright, trademark, patent, trade secret and/or other intellectual property or proprietary rights laws. You acknowledge that these rights are valid and enforceable and agree that you will not, and you will not permit any third party to, take any actions inconsistent with these rights. Without limiting the foregoing, you agree you will not, and you will not permit any third party to, directly or indirectly access or use any portion of the Program to build a competitive commercial product or service. You must retain all copyright and other proprietary notices and all security mechanisms and devices on any content (including any Source Data) downloaded or copied from or through the Program. You must not modify, adapt, sub-license, translate, republish, sell, rent, create derivative works of, reverse engineer, decompile or disassemble any portion of the Program, its content (including any Source Data) or any products or services offered on or through the Program ("Program Products"). Any breach or suspected breach of any term or condition set forth in this Section will result in the immediate termination of the license granted hereunder.
4. Trademarks. The trademarks, logos, service marks, product and service names, designs and slogans displayed in conjunction with the Program and the products and services that may be obtained on or through the Program (collectively, the “Trademarks”) are the registered and unregistered trademarks of Rush or its affiliates, suppliers or licensors, as applicable. Nothing contained in the Program should be construed as granting to you, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of Rush or the third party owner of such Trademark.
5. Unauthorized Use; Prohibited Activities; Employee Use. You warrant that you will use the Program and any Program Products you obtain on or through the Program in accordance with all applicable local, state, federal and international laws, including those related to data privacy, telecommunications and the transmission of technical or personal data. You warrant that no individual within your organization that will be permitted to access the Program or any Program Products you obtain or through the Program is a “minor” as defined by applicable law. You further warrant that you will not, and will not permit any third party to, make or permit any Unauthorized Use of the Program, its contents (including without limitation any Source Data), or any Program Products offered on or through the Program. “Unauthorized Use” means use (a) by a minor, (b) by any person or entity other than the individuals within your organization who are expressly authorized and who are aware of the terms of this Agreement and comply with them or (c) by you for, or on behalf of, any other person or entity. You further agree not to do, or permit any third party to do, any of the following (“Prohibited Activities”) while using the Program Products, including without limitation while using any content offered on or through the Program:
- Copy or embed elements of the Program or any portion thereof into other applications;
- Publicly display or communicate the results of internal performance testing of, or other benchmarking or performance evaluation of, any portion of the Program or Program Products, including without limitation any Rush Service;
- Transmit (a) any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, obscene or otherwise objectionable, or infringes our or any third party’s intellectual property or other rights; (b) any material, non-public information about companies without the authorization to do so; (c) any trade secret of any third party; or (d) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities or other unsolicited commercial communication (except as otherwise expressly permitted by us).
For any of your employees who are permitted to access the Program and/or any Program Products: (a) you must ensure that the number of users accessing and using any Program Products does not exceed the number of Licensed Users for which the necessary fees, if any, have been paid under any applicable Offering Documents or Third Party Agreements; (b) you acknowledge that you remain responsible and liable for all acts and omissions of your users in connection with the Program and any Program Products, including without limitation all transactions and fees incurred in connection therewith and any breaches by any such employee(s) of this Agreement or any Offering Documents or Third Party Agreements; and (c) if any such employee ceases to be your employee, you shall immediately terminate such employee’s access to the Program and any applicable Program Products. “Licensed User” as used herein means your employees that are authorized under an Offering Document to access and use a Rush Service under the license granted in Section 3 above.
6. Third-Party Websites. The online and/or software based components of the Program and Program Products may contain links to other Internet websites, including without limitation websites that are owned or operated by third party manufacturers, suppliers and licensors, and links contained in advertisements, including banner advertisements and sponsored links. When Rush makes these links available through the Program, it has no control over such websites and or any statements or opinions expressed therein, which do not necessarily reflect the opinion of Rush. Rush is not responsible for the content of such third party websites, including without limitation any links contained in such websites, any updates or changes to such websites or the privacy or other practices of such websites, and Rush provides these links to you only as a convenience. Rush shall not be liable, directly or indirectly, for any damage or loss caused, or alleged to be caused, by or in connection with the use of or the reliance upon any information, content, goods or services available on or through any third party websites, and your use of such websites is without warranty of any kind by Rush, whether express or implied.
7. Customer Data; Vehicle Repair Data.
a. As part of your participation in the Program and/or use of Program Products, you may be able to post and upload data and information (including Personal Information as defined below), about your company or organization and its employees, vehicles and operations (“Customer Data“). You are solely responsible for the accuracy, integrity, quality, reliability and right to use the Customer Data. You represent and warrant that you have sufficient rights to post and upload the Customer Data you provide and that none of the Customer Data or its use will: (i) violate any foreign, federal, state or local law or regulation; (ii) infringe any copyright, trademark or other proprietary right of any third party; (iii) violate or infringe upon any party’s privacy right, data protection right, right of publicity or any other right of any person or entity; or (iv) contain any material which is unlawful, hateful, obscene, libelous, threatening or defamatory. In the event that Rush becomes aware that any Customer Data does or may violate the warranties and representations set forth in this Section, Rush may immediately remove or suspend access to such data pending resolution. As used herein, “Personal Information” means any names, addresses or phone numbers in combination with other identifying information relating to an individual, such as dates of birth or social security numbers, and any health or medical information relating to an identified or identifiable individual. You acknowledge that Rush and third parties with which Rush contracts may use the Customer Data to contact Customer for marketing and sales purposes and in support of services provided by Rush and the third parties to their customers. You also authorize Rush and its affiliates to use and disclose Customer Data to third parties for any purpose in an anonymous or aggregated form that does not identify Customer.
b. Notwithstanding anything in this Agreement to the contrary, vehicle maintenance service and repair information arising from or created as a result of maintenance and repair services provided by Rush to Customer, including vehicle owner information, vehicle identification numbers and vehicle specifications (“Vehicle Repair Data”), may be provided to vehicle/component manufacturer(s) and the vehicle/component manufacturer(s) dealers, and their respective service management platform providers (“Maintenance Third Parties”) and used by Rush and such Maintenance Third Parties to support and enhance vehicle repair services provided to Rush and the Maintenance Third Parties’ customers. You also authorize Rush and the Maintenance Third Parties to use and disclose Vehicle Repair Data to third parties for any purpose in an anonymous or aggregated form that does not identify Customer.
8. Source Data. As part of one or more of the Rush Online Services, we may provide you access to a database of information regarding replacement parts and repair operations, which may include pricing data, vehicle information and other similar information (“Source Data”). This Source Data belongs to Rush, its affiliates, licensors or other third party providers of the material contained therein, as applicable, and title to and ownership of such Source Data shall remain with Rush or its applicable affiliate, licensor or other third party provider. Neither Rush nor its affiliates, licensors or other third party providers makes any representations, warranties, guarantees or promises as to the accuracy or completeness of the Source Data. You may use the Source Data only as part of the applicable Rush Service. You acknowledge that the Source Data contains proprietary and confidential information of Rush and/or its affiliates, licensors or other third party providers, that only you are permitted to access the Source Data, and that no ownership rights in the Source Data are granted to you under this Agreement. You agree that you will not copy, reproduce, download, disclose or otherwise make available to any third party the Source Data. You further agree not to use the Source Data except as authorized by this Agreement. You agree to take all commercially reasonable actions to protect the confidentiality of the Source Data.
10. Geographic Restrictions. The owner of the Program is based in the state of Texas in the United States. We make no claims or representations that the Program or the Program Products are appropriate or available for use in locations outside the United States. We reserve the right to limit the availability of the Program or the provision of the Program Products to any person, geographic area or jurisdiction, at any time and in our sole discretion.
11. Electronic Communications. Visiting websites offered through the Program or sending and receiving emails constitutes electronic communications. You consent to receive electronic communications and you agree that all agreements, notices, disclosures and other communications that we provide to you electronically, via email and/or through the Program, satisfy any legal requirement that such communications be in writing.
12. Changes to the Program, Products and Services and Availability. We reserve the right at any time to: (a) change the Program or any portion thereof, including modifying, suspending, eliminating or discontinuing any websites, portals, content or features of the foregoing or any Program Products; and/or (b) change any fees or charges for use of or participation in the Program or any Program Products, or any portions thereof. Any changes we make will be effective upon posting such changes on or through the Program. We are under no obligation to update the content (including without limitation any Source Data) contained in the Program or in any Program Products, and such content may not always be complete or up-to-date. Rush will not be liable if for any reason all or any part of the Program or any Program Products is unavailable at any time or for any period.
PURCHASES OF PRODUCTS AND SERVICES ON OR THROUGH THE PROGRAM
13. Transactions and Documents. You understand and agree that the terms and conditions of the Offering Documents and any applicable Third Party Agreements automatically apply (in addition to the terms and conditions of this Agreement) to your use of the relevant Offerings and that by ordering any such Offering(s) you are entering into, and you agree to be bound by the terms of, all applicable Offering Documents and any applicable Third Party Agreements. The applicable Offering Documents and applicable Third Party Agreements for each Offering will be provided electronically and/or in hard copy form by Rush. On our request, you agree to separately execute and/or indicate your acceptance of any applicable Offering Documents in electronic or other form. In the event of any dispute between you and one of our partners, you will and do hereby release Rush and its employees, affiliates and agents from all claims, demands, damages of every kind and nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way connected with such dispute. “Professional Services,” as used herein, means any subscription services, delivery, installation, configuration, implementation, integration, consultation, maintenance, technical support or other professional services offered in connection with an Offering.
14. Pricing and Taxes. Pricing and payment terms for Offerings shall be as provided in the Offering Documents and subject to any qualifications set forth herein and therein. Prices set forth in Offering Documents are subject to periodic increases on notice unless otherwise agreed in writing by Rush. Fees for Professional Services (including subscription services) are not always fixed and may be subject to volume or usage of the Professional Services. You commit to accept the billing model and pay the fees in accordance with the deadline specified in the Offering Documents. All prices are exclusive of applicable federal, state, provincial, municipal and other governmental taxes, fees, duties and levies, however designated or imposed, including but not limited to sales, use, value added, excise and similar taxes (except taxes based on Rush’s net income), as well as import or customs duties, license fees and any other similar charges that are levied or based upon the sale or delivery of the Offerings (collectively, "Taxes"). You are solely responsible for paying all Taxes and remitting the same to the applicable taxing authorities (other than Taxes invoiced by Rush, which shall be remitted to Rush). If Rush is required to collect any such Taxes, you shall pay and remit such Taxes to Rush on demand.
15. Payment. You agree to pay Rush the amounts specified in the Offering Documents for the applicable Offerings in the timeframe and in accordance with the terms set forth therein. If payment terms are not indicated in an Offering Document, all payments are due on your receipt of the applicable invoice. All payments shall be made in U.S. dollars. All delinquent amounts shall accrue interest at the rate of one and one-half percent (1.5%) per month or the maximum rate allowed by law, whichever is less.
16. Security. To secure payment for any product Offerings that constitute goods under the Uniform Commercial Code ("UCC") ordered under an Offering Document (“Products”), you grant to Rush a security interest in, and lien on, such Products, wherever located and whether now existing or hereafter arising or acquired from time to time, and in all accessions thereto and replacements or modifications thereof, as well as proceeds (including insurance proceeds) of the foregoing. The security interest granted under this Section constitutes a purchase money security interest under the UCC. You hereby designate Rush as your attorney-in-fact to execute any financing statements on your behalf and agree to execute any additional documents necessary to perfect such security interest. You agree that Rush shall have the rights and remedies of a secured party under the UCC. In addition to all other remedies available to Rush, Rush may commence proceedings for collection, revoke credit, stop shipment, delay or stop future deliveries, repossess unpaid delivered goods and/or terminate one or more Offering Documents. In the event your account or any part thereof is placed in the hands of an attorney or collection agency for collection, with or without litigation, or for the purpose of enforcing our security interest in an Offering, you agree to pay any and all costs associated with such placement, including without limitation attorneys’ fees and costs incurred in connection therewith. You may not withhold payment of any amounts due and payable as a set-off of any claim or dispute with Rush or its affiliates, licensor or suppliers.
17. Shipment, Title, Risk of Loss and Inspection of Products. Except as otherwise agreed to in writing by Rush, any Products (as defined in Section 16) that you purchase will be shipped FCA (Incoterms 2010) from Rush’s or the third party provider’s facility using the applicable Rush or provider’s carrier of choice in accordance with its standard shipping policies at the time of shipment. Title and risk of loss with respect to Products will transfer to you upon the tender of the Product to the carrier for delivery. Rush is not responsible for loss or damage to Products in the shipment process. Any damage or loss claims must be made to the applicable carrier. You shall be responsible for examining all Products upon receipt and shall note any discrepancy on the bill of lading at the time of delivery and promptly notify Rush (in no event later than five (5) business days after delivery or on the date of pick up) of any claimed discrepancies. Such notice shall be in writing and contain reasonable detail stating the discrepancies. If no notation is made on the bill of lading and such notice is not timely given by you, you hereby agree that such Products will be deemed accepted and you acknowledge that you shall have no claim in respect thereof. It is your responsibility to retain a copy of the bill of lading documenting any discrepancies.
18. Orders, Delivery and Returns. All orders are subject to availability by the applicable supplier. Offerings may be delivered by electronic transmission, electronic access, download or as otherwise provided in the applicable Offering Documents and any applicable Third Party Agreements (or as provided in Section 17 for Products that are shipped). Any delivery dates provided are estimates and are not guaranteed. Returns and refunds with respect to any Offerings shall be subject to the applicable supplier’s policies and shall not be permitted unless and to the extent such policies expressly provide for the same.
19. Third Party Offerings and Warranties. You understand and agree that Rush may take your order for (and handle billing and collection in connection with) Third Party Offerings. Such Third Party Offerings are made available to you by Rush subject to the applicable end user license agreement and/or other agreement(s) provided by the Third Party Licensor (“Third Party Agreements”). All of your rights and remedies with respect to your use of the Third Party Offerings, including all warranty and liability rights, remedies and limitations, are governed by the applicable Third Party Agreements and Rush does not license, operate, control or provide any delivery, installation, configuration, implementation, integration, consultation, maintenance, technical support or other professional services in connection with Third Party Offerings. A “Third Party Licensor” as used herein, means the legal entity that is the owner and licensor of the intellectual property rights in the specific product and/or service offered by that third party. You may place your order with Rush, but Rush is not a party to any Third Party Agreement and Rush does not license any of these Third Party Offerings directly to you. You acknowledge that the applicable Third Party Agreement(s) will outline all usage rights offered by the Third Party Licensor with respect to the applicable Third Party Offering. You further acknowledge and agree that the applicable Third Party Licensors are responsible in all respects for their respective Third Party Offerings, including without limitation any Professional Services (as defined in Section 13) provided by the Third Party Licensor, and you agree to look solely to such Third Party Licensors for any damages arising from or incurred in connection therewith. Under no circumstances shall Rush be liable for any damages arising from or incurred in connection with any Third Party Offerings. Warranty terms and periods, if any, vary by Third Party Licensor and Third Party Offering. Your rights and remedies with respect to your use of the Third Party Offerings, including maintenance, update, warranty, liability and any other services and obligations related to the Third Party Offerings will be governed by the applicable policies and procedures of the Third Party Licensor as stated in the applicable Third Party Agreement(s). The Third Party Agreements outline all warranties and representations, if any, offered to you with respect to Third Party Offerings purchased on or through the Program. Rush makes no representations or warranties relating to, and shall have no liability in connection with, any Third Party Offerings, including without limitation any Professional Services provided by the Third Party Licensor. Third Party Agreements governing your use of Third Party Offerings may be found here: www.rushtruckcenters.com/third-party-offerings. Third Party Licensors may change and update their respective Third Party Agreements from time to time. Your continued use of the applicable Third Party Offering means that you accept and agree to such updates and changes.
20. Ownership and Intellectual Property Rights. You understand and agree that nothing in this Agreement or any Offering Document provides you with any right, title or interest in and to any intellectual property (including without limitation copyright, trademark, patent, trade secret and/or other intellectual property or proprietary rights) comprised in the Offerings, which will at all times remain the property of Rush or the applicable Third Party Licensor, as applicable. You acknowledge that these intellectual property rights are valid and enforceable and agree that you will not, and you will not permit any third party to, take any actions inconsistent with these rights. You may access and use the Offerings only as permitted by the applicable documentation, including any applicable terms and conditions contained in this Agreement and any Offering Documents and applicable Third Party Agreements. In the event of a conflict between this Agreement and any Offering Documents or any applicable Third Party Agreements regarding the scope of the intellectual property rights, warranties and representations conferred to you, the terms of the Offering Documents and any applicable Third Party Agreements applicable to the relevant Offering will prevail.
ADDITIONAL LIMITATIONS OF RIGHTS AND REMEDIES; MISCELLANEOUS
You understand and agree that we cannot and do not guarantee or warrant that files available for downloading through the Program or any Offering will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our Program for any reconstruction of any lost data.
YOU ASSUME ALL RESPONSIBILITY AND RISK FOR YOUR USE OF THE PROGRAM, ITS CONTENTS, ANY WEBSITE WITH WHICH IT IS LINKED AND ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE PROGRAM. THE PROGRAM, ITS CONTENTS (INCLUDING WITHOUT LIMITATION ANY SOURCE DATA), ANY WEBSITE WITH WHICH IT IS LINKED AND ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE PROGRAM, ARE PROVIDED BY RUSH ON AN “AS IS,” “AS AVAILABLE” AND “WITH ALL FAULTS” BASIS AND WITHOUT RUSH WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, NON-MISAPPROPRIATION, ACCURACY, USE, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES THAT MAY ARISE FROM COURSE OF DEALING, USAGE OR TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW BY RUSH AND ITS AFFILIATES AND AGENTS. Because some states do not allow the exclusion of implied warranties, the above exclusions may not apply to you.
YOU ACKNOWLEDGE THAT CERTAIN OFFERINGS MAY BE COMPUTER NETWORK-BASED SERVICES, WHICH MAY BE SUBJECT TO UNAVAILABILITY, OUTAGES, INTERRUPTIONS, ATTACKS BY THIRD PARTIES AND DELAY OCCURRENCES. RUSH IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. YOU ACKNOWLEDGE THAT YOU ARE RESPONSIBLE FOR OBTAINING AND MAINTAINING ALL TELEPHONE, CABLE, INTERNET, COMPUTER HARDWARE, SOFTWARE, BROWSERS, COMMUNICATION CONNECTIVITY, BANDWIDTH AND OTHER EQUIPMENT NEEDED TO ACCESS AND USE THE PROGRAM AND THE OFFERINGS, AND ALL CHARGES RELATED THERETO.
Any warranties on Parts are limited only to those written warranties provided by the applicable Part’s manufacturer. EXCEPT FOR ANY SUCH WARRANTIES MADE BY MANUFACTURERS, PARTS ARE SOLD WITHOUT ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED.
22. Limitations of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL RUSH, OR ITS PARENT, OR ANY OF THEIR RESPECTIVE DIRECTORS, PARTNERS, OFFICERS, EMPLOYEES, LICENSORS, SERVICE PROVIDERS, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “RUSH PARTIES”), BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OF USE, INTERRUPTION OR LOSS OF BUSINESS, OR LOST REVENUES, DATA, GOODWILL, PROFITS OF ANY NATURE, OR INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND, UNDER ANY THEORY OF LIABILITY (WHETHER CASUED BY TORT, BREACH OF CONTRACT OR OTHERWISE), ARISING OUT OF OR RELATING IN ANY WAY TO THE PROGRAM, ANY PROGRAM CONTENT (INCLUDING WITHOUT LIMITATION ANY SOURCE DATA), ANY WEBSITES WITH WHICH ANY PORTION OF THE PROGRAM IS LINKED, ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE PROGRAM OR LINKED WEBSITES (INCLUDING WITHOUT LIMITATION ANY RUSH ONLINE SERVICES, PARTS OR RUSH REPAIR SERVICE) OR THE PERFORMANCE OR NON-PERFORMANCE BY RUSH UNDER THIS AGREEMENT OR ANY OFFERING DOCUMENT, EVEN IF THE APPLICABLE RUSH PARTY(IES) HAS BEEN ADVISED OF OR IS AWARE OF THE POSSIBILITY OF SUCH DAMAGES. Because some states do not allow the exclusion or limitation of liability for incidental or consequential damages, the above exclusions and limitations may not apply to you.
THE RUSH PARTIES’ ENTIRE AND EXCLUSIVE AGGREGATE LIABILITY HEREUNDER, INCLUDING WITHOUT LIMITATION IN CONNECTION WITH ANY OFFERING DOCUMENTS, REGARDLESS OF THE FORM OF ACTION, SHALL NOT EXCEED THE TOTAL AMOUNT PAID TO RUSH BY YOU DURING THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. This limitation of liability is cumulative with all Rush Party expenditures being aggregated to determine satisfaction of the limit. You hereby release the Rush Parties from all obligations, liability, claims or demands in excess of this limitation.
THE DAMAGES LIMITATIONS SET FORTH ABOVE AND THE DISCLAIMERS IN SECTION 22 ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN RUSH AND YOU AND YOU ACKNOWLEDGE THAT SUCH LIMITATIONS AND DISCLAIMERS ARE REASONABLE AND ESSENTIAL.
23. Indemnification. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD HARMLESS THE RUSH PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, JUDGMENTS, AWARDS, LOSSES, COSTS, FEES (INCLUDING REASONABLE ATTORNEYS’ AND EXPERTS’ FEES) AND OTHER EXPENSES THAT ARISE DIRECTLY OR INDIRECTLY OUT OF OR FROM (A) YOUR BREACH OF THIS AGREEMENT OR ANY OFFERING DOCUMENT; (B) YOUR USE OF THE PROGRAM, ITS CONTENTS (INCLUDING WITHOUT LIMITATION ANY SOURCE DATA) AND/OR ANY PRODUCTS OR SERVICES OBTAINED ON OR THROUGH THE PROGRAM OTHER THAN AS EXPRESSLY AUTHORIZED HEREIN, INCLUDING WITHOUT LIMITATION ANY ALLEGATION THAT THE MATERIALS YOU SUBMIT OR TRANSMIT TO US THROUGH THE PROGRAM, INCLUDING CUSTOMER DATA, INFRINGE OR OTHERWISE VIOLATE THE COPYRIGHT, TRADEMARK, TRADE SECRET OR OTHER INTELLECTUAL PROPERTY OR OTHER RIGHTS OF ANY THIRD PARTY; OR (C) ANY OF YOUR OTHER ACTIVITIES IN CONNECTION WITH THE PROGRAM. YOU AGREE NOT TO SETTLE ANY CLAIM, ACTION, SUIT OR PROCEEDING FOR WHICH YOU ARE INDEMNIFYING THE RUSH PARTIES IN A MANNER THAT WOULD IMPOSE ANY OBLIGATION ON ANY RUSH PARTY WITHOUT FIRST OBTAINING SUCH RUSH PARTY’S PRIOR WRITTEN CONSENT THERETO.
24. Customer Representations and Warranties. You represent and warrant to Rush that (a) your company is duly organized, validly existing and in good standing under the laws of the jurisdiction in which it was organized; (b) you possess the necessary power and authority and have secured the requisite approvals to enter into this Agreement and any Offering Documents, and to carry out your obligations hereunder and thereunder; (c) this Agreement and any Offering Documents between you and Rush are legal, valid and binding agreements enforceable against you in accordance with their respective terms; (d) all information you provide to Rush during the term of this Agreement and any Offering Documents is and will be truthful, complete and accurate; (e) your access to, participation in and use of the Program and any Program Products will at all times be in accordance with the terms and conditions set forth in this Agreement and the applicable Offering Documents (s) and all applicable laws, rules and regulations; (f) neither you nor any of your officers, directors or employees is located in a United States embargoed country, or is, or has been, named on the United States Treasury Department’s listing of specially designated nationals and blocked persons or is, or has been, otherwise blacklisted by any instrumentality of the United States; and (g) your performance under this Agreement and any Offering Documents between you and Rush will not violate any obligation or duty owed to a third party.
25. Remedies for Breach. If you breach this Agreement or any Offering Document in any way, Rush may pursue all remedies available at law or in equity, including without limitation suspending or prohibiting your access to or participation in the Program, blocking computers using your IP address from accessing Online Services, contacting your Internet service provider to request that they block your access to any Online Services, suspending or terminating any Offering Document and your use of any Offerings covered thereby, and/or bringing a legal action against you to recover damages.
26. Termination; Effect of Termination. This Agreement will remain in effect until terminated in accordance with its terms. We may terminate this Agreement and/or any Offering Documents and any applicable Third Party Agreements on five (5) days’ notice to you. We may immediately terminate this Agreement and/or any Offering Documents and any applicable Third Party Agreements: (a) upon the discovery of any breach on your part or if you do not agree to any revisions to this Agreement or any applicable Offering Document(s); (b) if you cease to do business in the normal course or are the subject of any proceeding relating to bankruptcy, liquidation or insolvency; (c) upon the dissolution, termination or cessation of your business; (d) if you sell or dispose of all or substantially all of the assets of your business. Termination of this Agreement shall terminate all outstanding Offering Documents, if any, you have entered into with Rush. Termination of any individual Offering Document will not automatically terminate or otherwise affect this Agreement or any other outstanding Offering Documents or applicable Third Party Agreements. Notwithstanding the reason for or manner of termination of this Agreement and/or any Offering Document, you shall pay all fees due, and make payment for all services rendered and Offerings delivered up to the effective date of such termination, within ten (10) days of such termination date. Your obligation to pay any amounts due at the time of termination shall survive any such termination. Upon any termination of this Agreement and/or any Offering Document, any and all licenses granted under the terminated agreement(s) shall immediately terminate, we may immediately terminate your access to and use of the Program and/or applicable Offerings, and you agree to immediately stop using the applicable Offerings and stop using and destroy all content (including without limitation any Source Data) obtained from or through the Program and/or in connection with any Rush Service and all copies thereof, whether made under the terms of this Agreement or otherwise. Upon termination (other than by reason of your breach) of any Offering Document for Rush Online Services, and at your written request, Rush will make available to you within thirty (30) days of the date of termination a file of your Customer Data, any estimates generated using applicable services and other operations processed by you through the applicable service. Rush will have no obligation to retain such information and may delete such information at any time thirty (30) days after termination. If Rush terminates an Offering Document for Rush Online Services due to your breach, your right to use and access such information will immediately terminate and Rush will have no obligation to maintain or forward any such information to you.
27. Survival of Provisions. All disclaimers of warranties, limitations of liability, representations, warranties, indemnification obligations, intellectual property and proprietary rights provisions, governing law provisions, dispute resolution and remedies provisions, termination provisions, miscellaneous provisions and all other provisions that by their nature could be construed to extend beyond the term of this Agreement or any Offering Documents or applicable Third Party Agreements, shall survive any termination of this Agreement and/or any Offering Documents or applicable Third Party Agreements.
28. Notice for California Users. Under California Civil Code Section 1789.3, California website users are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
29. Governing Law; Jurisdiction and Venue. All matters relating to this Agreement or any Offering Document and any dispute or claim arising therefrom or related thereto, including without limitation non-contractual disputes or claims, shall be governed by and construed in accordance with the laws of the state of Texas, without giving effect to any choice or conflict of law provision or rule (whether of the state of Texas or any other jurisdiction). The United Nations Convention on Contracts for the International Sale of Goods shall not apply. Any dispute arising out of or in connection with this Agreement or any Offering Document shall be instituted exclusively in the applicable federal or state courts located in San Antonio, Bexar County, Texas. You waive any and all objections to the exercise of jurisdiction over you by such courts and to venue in such courts.
30. Limitation on Time to File Claim. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE AGAINST RUSH OR ITS AFFILIATES ARISING OUT OF, RELATING TO OR IN CONNECTION WITH THIS AGREEMENT OR ANY OFFERING DOCUMENT MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES OR SUCH CAUSE OF ACTION OR CLAIM SHALL BE PERMANENTLY BARRED. You understand and agree that the foregoing provision is both a condition precedent to the right to take such action, and a contractual modification to the statute of limitations for all actions, whether in contract, tort or otherwise, and failure to comply with this condition precedent and contractual statute of limitations shall be an absolute bar to recovery for any problems, issues, rights, claims or causes of action not specifically pled within the one (1) year period.
31. Expenses and Costs. In any claim, litigation, civil action or any other legal or administrative proceeding (“Action”), whether initiated by Rush or you, where you have a right, pursuant to statute, common law or otherwise, to recover reasonable attorneys’ fees and costs in the event you prevail, you agree that Rush shall have the same right to recover reasonable attorneys’ fees and costs incurred in connection with the Action in the event that Rush prevails.
32. Force Majeure. Rush shall not be liable for any failures, delays or other non-performance caused by circumstances beyond its reasonable control (each a "Force Majeure Event"), including without limitation strikes, labor disputes, fires, floods, accidents, actions of any governmental authorities, acts of God, war, insurrection or riots, failure of vendors or subcontractors, your acts or omissions or failure to give timely information or approval when required, or shortages of or delays in labor, energy, fuel, materials, production facilities or transportation.
33. Conflicts with Offering Documents. In the event of a conflict between this Agreement and an Offering Document, this Agreement will control unless all of the following apply: (i) the Offering Document clearly identifies the applicable section of this Agreement that is to be modified; and (ii) the Offering Document clearly states that such provision supersedes the conflicting or inconsistent provision in this Agreement. Any other attempt to alter or amend this Agreement will be deemed void and have no effect. Any modifications to this Agreement contained within an Offering Document are effective as to that Offering Document only and will not modify this Agreement for any other purpose whatsoever.
34. Notices. Rush may send you any notices required or permitted under this Agreement by (a) email to the email address listed in your account contact information, (b) facsimile or certified mail (return receipt requested) to the facsimile number or contact address listed in your account contact information or (c) posting on or through the Program. You may send Rush any notices required or permitted under this Agreement by certified mail (return receipt requested) addressed as follows: Rush Administrative Services, Inc., ATTN: Legal Department, 555 I.H. 35 South, New Braunfels, TX 78130.
35. Miscellaneous. This Agreement and any Offering Documents you enter into by ordering and/or using Offerings (including any amendments hereto or thereto and any documents or policies incorporated herein or therein by reference) constitute the entire agreement between you and Rush concerning the subject matter covered thereby and supersede all prior or contemporaneous agreements, proposals and communications, whether oral or written, between you and Rush relating to such subject matter. There are no promises, covenants, agreements, representations, or undertakings other than those expressly set forth herein and in the Offering Documents with respect to such subject matter. Any additional or different terms proposed by you in any documents are expressly objected to without need of further notice of objection and are of no effect and will not be binding on Rush. No terms on any pre-printed purchase order, invoice or other document you generate shall modify this Agreement even if signed by Rush. You agree to comply with all relevant export laws and regulations of the United States to ensure that no software, information or technical data provided pursuant to or in connection with this Agreement or any Offering Document or applicable Third Party Agreements is exported or re-exported directly or indirectly in violation of law. You may not assign or otherwise transfer this Agreement, any Offering Document, or any right or obligation set forth herein or therein without Rush’s prior written consent. Any purported assignment in violation of the preceding will be void and of no effect. Rush may assign this Agreement and any Offering Document to another person or entity at any time upon written notice to you. Subject to the foregoing, this Agreement and any Offering Documents will be binding upon and will inure to the benefit of the parties and their respective successors and permitted assigns. If a provision of this Agreement or any Offering Document is held to be invalid or unenforceable, such provision shall be modified to the extent necessary to render it enforceable without losing its intent, or shall be severed from the applicable agreement if no such modification is possible and the remaining terms will remain in full force and effect. No failure or delay by a party in exercising any right, power or remedy will operate as a waiver of such right, power or remedy, and no waiver will be effective unless it is in writing and signed by the waiving party. If either party waives any right, power or remedy, such waiver will not waive any successive or other right, power or remedy the party may have under this Agreement or any Offering Document.
Your acceptance of this Agreement confirms that you have received and were provided an opportunity to review the entire Agreement.
IF YOU DO NOT AGREE TO THIS AGREEMENT, DO NOT ACCESS OR USE THE PROGRAM OR ANY PRODUCTS OR SERVICES OFFERED ON OR THROUGH THE PROGRAM.
Last Modified November 2019