Terms and Conditions of Use, and Rental Purchase Agreement
THESE TERMS AND CONDITIONS (1) APPLY TO TRANSACTIONS WITH SMART TIRES USA (“COMPANY”) THROUGH COMPANY’S WEBSITE, AND (2) SUPERSEDE AND REPLACE ANY INCONSISTENT STATEMENT IN ANY MATERIALS OR ADVERTISEMENT OF OURS OR ANY OF OTHERS.
THESE TERMS AND CONDITIONS ARE LEGALLY BINDING ON YOU AS A USER OF OUR WEBSITE AND SERVICE. IF YOU DO NOT ACCEPT AND AGREE TO THESE TERMS AND CONDITIONS, DO NOT FILL OUT THE APPLICATION, DO NOT SIGN THE RENTAL PURCHASE AGREEMENT, AND DO NOT ACCEPT INSTALLATION OF THE SET OF RENTAL TIRES WE OFFER. THE AGREEMENT IS SUBJECT SOLELY TO THE LAWS AND JURISDICTION OF THE STATE OF NEVADA.
We are providing you with access to our offering of replacement sets of four all new, brand-name passenger car and truck tires (“Tire Sets”) and our included services (mounting, balancing and installation) available hereunder (collectively, the “Website”), subject to the within terms and conditions of our Rental Purchase Agreement (the “Agreement”). Our service affords you, the consumer, the opportunity to rent our Tire Sets and included services from us over a period of time, after which you will own the Tire Sets. This Agreement is between you, the user of this Website, and us. Please read this Agreement carefully before accessing this Website. By accessing this Website, filling out the Application, signing the Rental Purchase Agreement, and accepting installation of a Tire Set, you agree to be legally bound by all terms and conditions of such and consent to the collection of all information you submit.
The terms “you” and “your” refer to the person or persons renting our Tire Sets, and making rental payments to us (hereinafter referred to as the “Transaction”). “We”, “our”, and “us” refers to Company, its successors and permitted assigns. You agree to fill out the Application on this Website, provide accurate information, and if approved, to electronically sign the Rental Purchase Agreement to rent the Tire Sets.
You agree and warrant that: (1) you are at least eighteen (18) years of age; (2) you are acting on your own behalf, and not as another’s agent or representative; (3) any Transaction initiated by you will not cause or result in us to be in violation of any criminal, anti-money laundering (“AML”), anti-terrorism, or other applicable law of the U.S., any state or any foreign country; and (4) you will provide any documentation and/or information reasonably requested by us in connection with you, the foregoing, the Tire Sets or the Transaction.
You agree to and will indemnify us and our vendors and hold us and our vendors harmless from and against any and all claims, suits, liens, investigations, judgments, liabilities, obligations and damages relating to or arising out of any noncompliance with any of the foregoing or the title to, ownership of or lien on any Tire Sets arranged to be rented by us to you.
Compliance with Law:
We will ask for a copy of your Driver’s License (or other government issued identification number); your Vehicle’s VIN number on which the Tire Sets will be installed; and an electronically signed Rental Purchase Agreement from you in order to process your rental payments. In addition, we have instituted an AML compliance program under the USA PATRIOT Act. You may be asked for information to help us comply with our program and applicable laws.
Privacy, Use, Collection, Retention of Information, Opt-Out:
We reserve the right to provide our consumer database vendors the personally identifiable information in your Application, Rental Purchase Agreement and otherwise obtained that you provide to us that can identify you, such as your name, e-mail address, Social Security Number, your bank information, your financial information, your Internet service provider and IP address, and information you provide us about other people, for as long as required by applicable law, for disclosure to authorized subscribers in accordance with applicable law, and upon request by law enforcement, as required by law or when it is believed that disclosure is necessary to protect rights and/or to comply with a judicial proceeding, court order or legal process.
You consent and agree that we may share with our vendors your submitted information to: offer and review your credit, verify your identity and background information to protect against or identify possible fraud via internal and/or third party databases; provide you with customer support; match you with financial institutions or other entities that may wish to offer products or services to you; communicate with you via e-mail, postal mail, phone, text and/or mobile devices about products or services that may be of interest to you; develop and display content, services or targeted advertisements tailored to your interests on our Website; permit credit reporting vendors to store and process your information in the United States or any other country in which facilities are maintained, and by using the Website, you consent to any such transfer of information outside of your country; incorporate your information into our vendor’s credit reporting system for use in accordance with applicable law and pursuant to your consent provided in this Agreement; and make your information accessible through such credit reporting system pursuant to applicable law by both authorized subscribers and by you. We shall have no obligation or responsibility to return any submitted information to you or act upon any instructions from you regarding your information except as expressly set forth hereunder or required by applicable law. If we learn of inaccurately submitted information, we reserve the right to update or instruct our vendors to remove such from their credit reporting system.
If you do not want us or our vendors to use, retain and/or disclose your information as set forth herein, you may opt out by not accessing this Website or providing us with information. If you do not wish to receive promotional and similar communications from Company Host, or our vendors to which Company may disclose your information, and which Company believes may interest you, you may opt out by sending an email to the email address listed on the Website.
Determining Your Approval:
Once we receive your Application and all required information, you may then be approved, at our sole discretion, to rent a Tire Set from us. If you are accepted, and we have received your electronically signed Rental Purchase Agreement, and verified all of your submitted information, identity, background, and ownership of the vehicle on which the Tire Set will be installed, you will receive an electronically signed copy of your signed Rental Purchase Agreement, and the initial rental payment for the initial rental period will be charged. After verification that the payment has been received, you will be contacted for an appointment at one of our authorized installation and service facilities to have your Tire Set installed on your vehicle. If you decide after receiving approval that you do not wish to proceed with the Transaction, you may decline to do so without any obligation. Your submitted information, however, will be retained as set forth herein.
Conversations and negotiations may, at our discretion, be monitored and/or recorded. We have the sole and absolute discretion to approve or decline your Application. Further, standard telephone carrier data, phone and text message usage and fees may apply and you are solely responsible for your relationship with and fees due to your provider.
You may rescind your Rental Purchase Agreement at any time prior the scheduled date of installation of the Tire Set on your vehicle by either by logging into your customer account at the Website or by contacting us by telephone, and we will refund your initial rental period payment. Once you have accepted installation of the Tire Set on our vehicle, you are responsible for the initial rental payment for the initial rental period which you have already paid to us. You may terminate the Rental Purchase Agreement at any time thereafter during the one-year term of the Agreement by returning the rented Tire Set to us prior to or at the end of any paid-up rental period in accordance with the terms of the Agreement.
Method of Payment:
You agree that you fully understand the terms of payment set forth herein and on our Website. Once you are accepted and sign your Rental Purchase Agreement, you may select online one of the following methods of payment to pay your periodic rental payments under the terms of the Agreement:
- Automatic Clearing House (“ACH”) from your bank account in accordance with the instructions you provided to us for no additional fee. You will be charged a fee of $25.00 for all ACH returns/bounce backs, and in addition may incur a late fee per the terms of the Agreement.
- Debit card account in accordance with the instructions you provided to us for no additional fee. You will not be charged a fee if the payment is dishonored by your card issuer by us; however, you may incur a late fee per the terms of the Agreement. This is our preferred method of payment, and will incur the least costs for you.
- We do accept rental payments by credit card.
- You may make a rental payment to us in cash or with a money order (in the exact amount of your rental payment) at the location on your Agreement during normal business hours Monday through Saturday.
Please note that your bank may charge you a fee to send the ACH to us. We have no control over the fees your bank may charge you, and it is your responsibility to determine and accept these fees before requesting such payment methods. Once an ACH has been initiated, the transaction is final, and any fees charged by your bank are for your account.
Returned Tire Set:
In the event that you return your Tire Set in accordance with these Terms and Conditions, you must return the Tire Set to us at the address of the installation and service facility on your Agreement.
Disclaimer of Warranties:
THE WEBSITE, AND THE TIRE SETS AND SERVICES OFFERED THEREIN, ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS AND ALL WARRANTIES, EXPRESS AND IMPLIED, WITH THE EXCEPTION OF MANUFACUTRER’S WARRANTIES, IF ANY, ARE DISCLAIMED TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW (INCLUDING, BUT NOT LIMITED TO, THE DISCLAIMER OF ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF INTELLECTUAL PROPERTY AND/OR FITNESS FOR A PARTICULAR PURPOSE). IN PARTICULAR, BUT NOT AS A LIMITATION THEREOF, COMPANY AND HOST MAKE NO WARRANTY THAT: (A) THE TIRE SETS ON THE WEBSITE WILL MEET YOUR REQUIREMENTS: (B) THE WEBSITE, AND THE TIRE SETS AND SERVICES OFFERED THEREIN, WILL BE UNINTERRUPTED, CONTINUOUS, TIMELY, SECURE OR ERROR-FREE; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE WEBSITE OR SERVICES WILL BE ACCURATE OR RELIABLE. THE WEBSITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. COMPANY AND HOST WILL NOT BE LIABLE FOR THE AVAILABILITY OF THE UNDERLYING INTERNET CONNECTION ASSOCIATED WITH THE WEBSITE, PRODUCTS. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY, HOST OR THROUGH OR FROM THE WEBSITE, SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
Limitation of Liability:
IN ALL EVENTS THROUGHOUT THESE TERMS AND CONDITIONS, YOU AGREE THAT THE LEGAL LIMIT OF OUR LIABILITY TO YOU FOR ANY CLAIMS OR ACTIONS ASSERTED BY YOU SHALL NOT EXCEED $100.00 PER TRANSACTION. YOU AGREE THAT WE WILL NOT BE LIABLE FOR (A) INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, OR PUNITIVE DAMAGES, OR LOSS OF PROFIT OR OPPORTUNITY; OR (B) CLAIMS, DEMANDS, OR ACTIONS FOR ANY SUBROGATION CLAIM BROUGHT BY YOUR INSURANCE CARRIER, AND YOU EXPRESSLY AND SPECIFICALLY WAIVE ANY SUBROGATION CLAIM ON YOUR BEHALF AS WELL AS ON BEHALF OF YOUR INSURANCE CARRIER.
Updates to this Agreement & Termination:
We reserve the right to modify this Agreement at any time, with or without notice. Any modifications will become effective immediately upon posting to this Website. You agree that it is your responsibility to visit the Website and review the Agreement periodically to be aware of such modifications, as your continued access or use of this Website shall be deemed your conclusive acceptance of the modified Agreement.
We shall have the right to terminate, discontinue, suspend or modify this Website, the Tire Sets or services at any time, in whole or in part, with or without notice, at our sole discretion and you agree that we shall have no liability for doing so. In addition, we may, in our sole discretion, refuse or restrict our Tire Sets or services to anyone at any time. Further, we reserve the right to investigate, involve and cooperate with appropriate investigatory departments or authorities regarding any suspected or actual fraudulent or other illegal or unauthorized activities involving this Website, the Tires Sets or services, and to disclose any information necessary for such purpose.
Ownership and Trademarks
This Website, domain name, Tire Sets and services, including all content, HTML, source, object or other code, pages, wording, marks, names graphics, software and all other materials associated with or within this Website (collectively, the “Content”), and the compilation of the Content and the “look and feel” of this Website, products and services are the property of us, our licensors and service providers, and protected by U. S. and international copyright and intellectual property rights laws and treaties. No portion of the Content may be copied, used or exploited for any purpose and in any form without our express prior written permission and as applicable, our licensors and service providers.
Our names, logos, marks, Tire Sets and service names used in our documents and Website are trademarks, (whether or not registered) of us and our property which may not be used for any purpose without the express prior written permission of us. Other names and marks used on this Website are the property of their respective owners. All rights not expressly granted are reserved.
Any attempt by any individual, whether or not a User of this Website, the Tire Sets or services, to damage, destroy, tamper with, vandalize and/or otherwise interfere with the operation of the Website, Tire Sets or services, is a violation of criminal and civil law and Company and/or Host will diligently pursue any and all remedies in this regard against any offending individual or entity to the fullest extent permissible by law and in equity. You agree not to use this Website to engage in any prohibited conduct or for any unlawful purpose. Broadly stated, this includes any conduct that is unlawful, untruthful, tortious or that is harmful to (or puts at risk) us or any other party or property; that violates another party’s privacy or other rights; or that otherwise interferes with the operation, use or enjoyment of this Website or any Tire Set, service, system or other property. Further, you agree to submit only true, valid and accurate information to this Website (including through any registration or application process). You also agree to promptly update or correct any errors. You may not use this Website to seek to discover or obtain information about, or to provide information about, any other person or entity unless you have the explicit legal right to do so.
No part of the Website may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical. You may not use, copy, emulate, clone, rent, lease, sell, modify, decompile, disassemble, reverse engineer or transfer the Website, Tire Sets, services, the content herein or any portion thereof. Systematic retrieval of content or matter associated with the Website by automated means or any other form of scraping or data extraction in order to create or compile, directly or indirectly, a collection, compilation, database or directory without written permission from us is strictly prohibited. You may not use any device, software or routine to interfere or attempt to interfere with the proper functionality of the Website. You may not take any action that imposes an unreasonable or disproportionately large load on our infrastructure.
PLEASE READ THIS PROVISION OF THE AGREEMENT CAREFULLY:
Unless you exercise your right to opt-out of arbitration in the manner described herein, any “Dispute” (defined below) you have with anyone under this Agreement will be resolved by binding arbitration. Arbitration replaces the right to go to court, including the right to have a jury, to engage in discovery (except as may be provided in the arbitration rules), and to participate in a class action or similar proceeding. In arbitration, a Dispute is resolved by an arbitrator instead of a judge or jury. Arbitration procedures are simpler and more limited than court procedures. Any arbitration will be limited to addressing your dispute individually and will not be part of a class-wide or consolidated arbitration proceeding.
Agreement to Arbitrate. You agree that any Dispute will be resolved by arbitration in accordance with the laws of the State of Nevada.
Arbitration Defined. Arbitration is a means of having an independent third party resolve a Dispute. A “Dispute” is any controversy or claim between you, the Company and our vendors, marketing agent, or any of their respective agents, affiliates, assigns, employees, officers, managers, members or shareholders (each considered a “Holder” for purposes of this Agreement). The term Dispute is to be given its broadest possible meaning and includes, without limitation, all claims or demands (whether past, present, or future, including events that occurred prior to the opening of this Account), based on any legal or equitable theory (tort, contract, or otherwise), and regardless of the type of relief sought (i.e. money, injunctive relief, or declaratory relief). A Dispute includes, by way of example and without limitation, any claim arising from, related to or based upon the rental of a Tire Set, or marketing or solicitations and the handling or servicing of your account whether such Dispute is based on a federal or state constitution, statute, ordinance, regulation, or common law, and including any issue concerning the validity, enforceability, or scope of the Rental Purchase, Tire Set, this Agreement or agreement to arbitrate.
Choice of Arbitrator. Any party to a Dispute, including a Holder or its related third parties, may send the other party written notice by certified mail return receipt requested at their address of record of their intent to arbitrate and setting forth the subject of the dispute along with the relief requested, even if a lawsuit has been filed. Regardless of who demands arbitration, you shall have the right to select any of the following arbitration organizations to administer the arbitration: the American Arbitration Association (1-800-778-7879) http://www.adr.org; JAMS (1-800-353-5367) http://www.jamsadr.com; or an arbitration organization agreed upon by all parties to the Dispute. The arbitration will be governed by the chosen arbitration organization’s rules and procedures applicable to consumer disputes, to the extent that those rules and procedures do not contradict either the law of the State of Nevada or the express terms of this agreement to arbitrate, including the limitations on the arbitrator below. The party receiving notice of arbitration will respond in writing by certified mail return receipt requested within thirty (30) days. You understand that if you demand arbitration, you must inform us of your demand and of the arbitration organization you have selected. You also understand that if you fail to notify us, then we have the right to select the arbitration organization. Any arbitration under this Agreement must be conducted in Nevada, or as otherwise agreed upon by the approval of all parties to the Dispute.
Cost of Arbitration. Except where otherwise provided by the laws of the State of Nevada, each party will be responsible for its own attorneys’ fees, filing fees, costs and other expenses. Unless prohibited by law, the arbitrator may award fees, costs, and reasonable attorneys’ fees to the party who substantially prevails in the arbitration.
Waiver of Jury Trial and Waiver of Ability to Participate in a Class Action. YOU HEREBY AGREE THAT YOU ARE WAIVING YOUR RIGHT TO A JURY TRIAL, TO HAVE A COURT DECIDE YOUR DISPUTE, AND YOU ARE WAIVING YOUR ABILITY TO SERVE AS A REPRESENTATIVE, AS A PRIVATE ATTORNEY GENERAL, OR TO PARTICIPATE IN A CLASS ACTION LAWSUIT, OR IN ANY OTHER REPRESENTATIVE CAPACITY FOR OTHERS IN THE ARBITRATION, AND TO CERTAIN DISCOVERY AND OTHER PROCEDURES THAT WOULD BE AVAILABLE IN A LAWSUIT.
The arbitrator has the ability to award all remedies available under the laws of the State of Nevada, whether at law or in equity, to the prevailing party, except that the parties agree that the arbitrator has no authority to conduct class-wide proceedings and will be restricted to resolving the individual Disputes between the parties. The validity, effect, and enforceability of this waiver of class action lawsuit and class-wide arbitration is to be determined solely by a court of competent jurisdiction located within the State of Nevada, and not by the arbitrator. If the court refuses to enforce the class-wide arbitration waiver, or if the arbitrator fails or refuses to enforce the waiver of class-wide arbitration, the parties agree that the Dispute will proceed in and will be decided by a Nevada court judge, sitting without a jury, under applicable court rules and procedures and may be enforced by such court through any measures or reciprocity provisions available.
Applicable Law and Judicial Review. THIS AGREEMENT SHALL BE GOVERNED BY THE LAWS OF STATE OF NEVADA. The arbitrator will apply the laws of the State of Nevada and the terms of this Agreement, including the Agreement to Arbitrate. The arbitrator must apply the terms of this agreement to arbitrate, including without limitation the waiver of class-wide arbitration. The arbitrator may decide, with or without a hearing, any motion that is substantially similar to a motion to dismiss for failure to state a claim or a motion for summary judgment. The arbitrator will make written findings and the arbitrator’s award may be filed with the Nevada court. The arbitration award will be supported by substantial evidence and must be consistent with this Agreement and applicable law or may be set aside by the court upon judicial review.
You agree that you provided to us true and correct information, including your email address, physical address, and telephone numbers, and it is your responsibility to provide us with any current or updated contact information. You further agree that: (a) any text or email message that we send to you is deemed to have been effectively received by you and constitutes due notice to you; and (b) any text or phone message we leave with you, anyone answering your phone, or on your answering machine or service is effectively received by you and constitutes due notice to you. In the event of any strike, disruption of service, or any other problems that we might encounter with a vendor, we reserve the right in our discretion to replace such vendor with another. This Agreement with you is subject solely to the laws of the State of Nevada. YOU EXPRESSLY AGREE THAT ANY CLAIMS, LAWSUITS, ACTIONS, DISPUTES, CONTROVERSIES OR OTHER MATTERS AGAINST US OR OUR VENDORS ARISING OUT OF, OR RELATING TO, THIS AGREEMENT OR BREACH THEREOF SHALL TAKE PLACE IN THE STATE OF NEVADA. You expressly agree that Company has personal jurisdiction over you. We shall have, in addition to any other relief at law or in equity, the right to injunctive relief to redress any breach of this Agreement. Should any part of this Agreement be held invalid or unenforceable, that portion shall be replaced by an enforceable provision consistent with applicable law that most closely matches the intent of the original provision and the remaining portions of this Agreement shall continue in full force and effect. Section headings used in this Agreement are for convenience purposes only. This Agreement represents the entire understanding between you and us regarding the subject matter contained herein and supersedes any and all prior and/or contemporaneous agreements between you and us regarding same, whether oral or written. Our failure to enforce any provision of this Agreement shall not be deemed a waiver of such provision nor of the right to enforce such provision. This Agreement is intended for the benefit of, is binding upon and may be enforced solely by you and us, their successors and permitted assigns. We may assign or transfer this Agreement, or any rights, duties or obligations hereunder at any time and for any reason. This Agreement does not create, and you and we expressly disclaim, any third-party beneficiary relationships, except as set forth herein. All references to days shall refer to business days. Saturdays, Sundays, and federal legal holidays are not included as business days, and if the expiration of any time frame set forth above falls on such a day, performance will be due on the next business day. Orders for a Tire Set received after 5:00 p.m., or on any such day will be considered to have been received on the next business day. Notwithstanding any other provision herein to the contrary, we reserve the right to suspend or enlarge any time frame specified herein, and/or request additional documents or information from you, in order to comply with any applicable local, state, or federal law, ordinance, or regulation. Furthermore, any time frame set forth herein may be suspended or extended at our discretion with or without notice to you in the event that we encounter technical or communication difficulties concerning our Website or otherwise, or encounter any other interruptions or delays in performance attributable to acts of God, government, wars, riots, fires, pandemics, weather, telecommunications failure, inability to obtain supplies, breakdown of equipment, or interruption in third party services or communications, for which no liability shall be incurred.
Acknowledgement and Acceptance:
BY CHECKING THE “AGREE” BOX ON YOUR RENTAL PURCHASE AGREEMENT AND PROVIDING INFORMATION VIA THIS WEBSITE, YOU AGREE, ACKNOWLEDGE AND CONSENT THAT THE ALL PAGES OF THIS AGREEMENT HAVE BEEN THOROUGHLY READ, UNDERSTOOD AND AGREED TO. YOU FURTHER AGREE, ACKNOWLEDGE AND CONSENT THAT YOU HAVE INDEPENDENTLY EVALUATED AND WEIGHED THE RISKS AND BENEFITS OF ACCESSING THIS WEBSITE AND THE TIRE SETS AND SERVICES HEREIN AND YOU HAVE AGREED TO ALL THE TERMS OF THIS AGREEMENT WITHOUT RELIANCE ON ANY REPRESENTATION, GUARANTEE OR STATEMENT EXISTING OUTSIDE OF THIS AGREEMENT. YOUR ELECTRONIC SUBMISSION, WHICH SHALL CONSTITUTE YOUR LEGAL, VALID AND BINDING SIGNATURE, WITH THE SAME FORCE AND EFFECT AS A PHYSICALLY SIGNED ORIGINAL, REPRESENTS YOUR AGREEMENT, ACKNOWLEDGEMENT AND CONSENT TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, THE RENTAL PURCHASE AGREEMENT AND TO THE ELECTRONIC DELIVERY AND ACCEPTANCE THEREOF AND ALL EXHIBITS, DOCUMENTS, NOTICES, UPDATES, ADDENDA AND AMENDMENTS RELATED THERETO, AS WELL AS ANY OTHER COMMUNICATIONS OR DOCUMENTS DELIVERED TO YOU ELECTRONICALLY AS A RESULT OF YOUR ACCESS TO AND USE OF THE WEBSITE, PRODUCTS AND SERVICES.
It is acknowledged that this Agreement may exist in multiple counterparts, each of which shall be deemed an original and all of which together shall constitute one and the same instrument. You understand that you will need access to the Internet, as well as the appropriate software and/or programs, which may include, but may not be limited to, Adobe Acrobat, in order to access this Agreement electronically. You also understand that you may update your information, obtain a full description of systems requirements, revoke your consent for future electronic deliveries, or request one or more paper documents at any time by contacting us in writing.
Information subject to change without notice.
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