United States Terms and Conditions of Service
Last Updated: July, 2016
These EZCW for Business terms and conditions (the “Agreement”) are entered into by and between the company identified within this sign-up page (“Customer”) and Commerce Agents North America LLC, (“EZCW”). Capitalized terms used herein shall have the meaning ascribed to them in this Agreement.
This Agreement sets forth the terms under which a Customer may utilize Customer Billing in conjunction with the EZCW Service and the associated EZCW App. Customer’s use of Customer Billing is subject to this Agreement, as may be modified or updated by EZCW from time to time, effective upon posting of an updated version of the Agreement at /faqs. EZCW will provide Customer with a notice of any such modifications or updates via email and/or the Dashboard, and Customer is responsible for regularly reviewing the Agreement. Continued use of Customer Billing after any such modifications or updates shall constitute Customer’s consent to such changes.
“Active Account” shall have the meaning set forth in Section 2.3.
“Customer Billing” shall mean an enterprise billing and payment process for the EZCW Service provided by EZCW to the Customer hereunder for User Charges, with payment by Customer either (a) by direct charge to a Customer credit card, or (b) if EZCW has approved invoicing for Customer, subject to an invoice delivered by EZCW to Customer on a monthly basis.
“Customer Card” shall have the meaning set forth in Section 2.1.
“Customer User” shall mean an individual authorized to use Customer Billing in connection with use of the EZCW Services, and linked to Customer Billing via that individual’s Active Account, each as identified by Customer to EZCW as set forth in this Agreement.
“Dashboard” shall have the meaning set forth in Section 3.1.
“End User Terms” shall mean the terms and conditions applicable to all users of the EZCW Service, available at /faqs, as may be updated by EZCW from time to time. “Invoice” shall have the meaning set forth in Section 4.2.
“Monthly Billing” shall have the meaning set forth in Section 4.2.
“Proposed User” shall have the meaning set forth in Section 2.3.
“Service Fee” shall mean the service fees applicable to User Charges and/or Customer’s use of the EZCW Services, if any, as set forth on the Cover Sheet. “Term” shall have the meaning set forth in Section 5.1.
“EZCW App” shall mean EZCW’s mobile application or mobile website (www.ezcwash.com) required for use of the EZCW Service, as may be updated by EZCW from time to time.
“EZCW Service” shall mean EZCW’s technology platform that, when used in conjunction with the EZCW App, enables users to request on-demand carwash services.
“User Charges” shall mean charges incurred by Customer Users for carwash obtained through the use of the EZCW Service, including any applicable tolls, foreign transaction fees, taxes, and any other fees or charges that may be due for a particular use of the EZCW Service.
2. Provision of Services
2.1 Access to Services
Upon execution of this Agreement, EZCW will establish a Customer corporate account that will enable Customer to provide Customer Billing to authorized Customer Users with Active Accounts. As part of the corporate account, Customer agrees to provide and maintain during the Term a valid Customer credit card number (the “Customer Card”) that may be charged for Customer Billing as set forth herein. Using such corporate account, Customer, at its discretion, may permit Customer Users with an Active Account to employ Customer Billing when using the EZCW Service. Customer acknowledges a Customer User employing Customer Billing will be incurring User Charges to the account of Customer, and not to the Customer User’s personal account or credit card, and Customer agrees to pay all User Charges incurred under Customer Billing, as well as any applicable Services Fees, in accordance with the terms and conditions of this Agreement. Subject to Customer’s compliance with this Agreement, EZCW agrees to use commercially reasonable efforts to provide the EZCW Service and Customer Billing to Customer and the Customer Users as set forth herein.
2.2 EZCW Policies
EZCW’s current policies and practices regarding the safety of all users of the EZCW Service are available at /faqs.
CUSTOMER ACKNOWLEDGES AND AGREES THAT THE EZCW SERVICE IS A TECHNOLOGY PLATFORM THAT ENABLES ACCESS TO REQUEST ON-DEMAND CARWASH SERVICE PROVIDED BY INDEPENDENT CARWASH PERSON OR COMPANY. EZCW IS NOT A CARWASH SERVICE PROVIDER. EZCW DOES NOT GUARANTEE AVAILABILITY OF CARWASH SERVICE, ON-TIME SERVICE FINISHED, OR ANY OTHER SERVICES LEVELS RELATED TO INDEPENDENT CARWASH SERVICE PROVIDERS THAT MAY BE OBTAINED VIA THE EZCW SERVICE.
2.3 Active Account Required
(b) Customer acknowledges that certain Proposed Users may be suspended or banned from use of the EZCW Service due to future or past violations of the End User Terms (“Violations”), and that EZCW shall have no obligation or liability related to a Proposed User that is unable to obtain or maintain an Active Account for the purposes of Customer Billing hereunder due to Violations.
2.4 User Account Linking
(a) To enable Customer Billing for a Proposed User with an Active Account, Customer must provide EZCW with (i) such Active Account holder’s full name, (ii) the Active Account holder’s email address on the top level domain of Customer (e.g., firstname.lastname@example.org), and (iii) other identifying information about the Active Account holder as reasonably requested by EZCW (“Linking Data”). EZCW will use the Linking Data provided by Customer for the purpose of (x) authenticating the identified Active Account holder and linking such Active Account with the Customer Billing option to establish the Active Account holder as a Customer User, and (y) verifying the Customer Billing status of such Customer User from time to time during the Term. All Proposed Users invited to enable Customer Billing will receive an email to the email address in the Linking Data with instructions for linking their individual Active Account with Customer’s account for Customer Billing. Upon the linking of Customer Billing to an Active Account, such Customer User shall be provided the option, on a carwash by carwash basis, to apply User Charges to either (A) such Customer User’s personal credit card or (B) the Customer account via the Customer Billing option.
(b) Customer acknowledges that the verification and linking described in Section 2.4(a) will require EZCW to contact each such Proposed User using the Linking Data, and Customer agrees to inform, and get all necessary consents from, each Proposed User for EZCW to contact such Proposed User for the purpose of implementing the Customer Billing option in the applicable Active Account. Customer shall ensure that Linking Data provided to EZCW is accurate and complete, and EZCW shall not be liable to Customer, a Customer User, a Proposed User or any other party with respect to inaccurate or incomplete Linking Data supplied by Customer.
(c) A Customer User’s personal account may be unlinked from Customer’s account and the Customer Billing option at any time by (i) Customer unlinking such Customer User through the Dashboard, or (ii) the Customer User deleting the Customer Billing option from the Active Account.
2.5 Responsibility for User Activity
Customer agrees that (a) Customer is responsible for all User Charges incurred by Customer Users on a then-current authorized Customer User list via the Customer Billing option, regardless of whether such User Charge was authorized between Customer User and Customer and (b) User Charges may be subject to price changes at any time, including without limitation, occasional increases known as “surge pricing” during periods of high demand as further described in the End User Terms. Further, Customer agrees that EZCW shall not be responsible for User Charges incurred by a Customer User after Customer has attempted removal of such Customer User from the Customer Billing option to the extent Customer provides incomplete or inaccurate Customer User removal information via the Dashboard. Finally, as between Customer and EZCW, Customer shall be responsible for the User Charges incurred due to fraudulent or other unpermitted activity on the part of Customer User’s use of Customer Billing for the EZCW Service. Customer shall notify EZCW promptly upon discovery of fraudulent or unpermitted activity occurring under Customer’s account.
Customer agrees to, and to cause all Customer Users to, use the EZCW Service and EZCW App solely as set forth in this Agreement and the End User Terms; provided, however, that in the event of a conflict between this Agreement and the End User terms with respect to Customer or any authorized Customer User employing Customer Billing with the EZCW Service, the terms of this Agreement shall control. EZCW reserves the right to suspend participation in Customer Billing to Customer and/or any Customer Users for violations of this Agreement or the End User Terms. In the event that a Customer User’s Active Account is suspended or terminated pursuant to the End User Terms, such Customer User’s access to Customer Billing shall also be suspended. Customer shall not, and shall not authorize others to, (a) decompile, disassemble, reverse engineer or otherwise attempt to derive the source code or underlying technology, methodologies or algorithms of the EZCW Service or EZCW App, except to the extent allowed by applicable law, (b) sublicense, lease, rent, sell, give, or otherwise transfer or provide the EZCW Service or EZCW App to any unaffiliated third party, (c) upcharge, increase or otherwise modify the User Charges as calculated through the EZCW App for any usage of the EZCW Service or (d) impose any additional fees or charges on a Customer User related to use of the EZCW Service. EZCW reserves all rights not expressly granted to Customer or Customer Users under this Agreement.
3. Account Administration
3.1 Customer Dashboard
Customer shall be provided with access to EZCW’s browser-based online dashboard for “EZCW for Business” customers (“Dashboard”). EZCW’s primary contact with Customer shall be by way of Customer’s administrator set forth on the Cover Sheet (“Administrator”). EZCW will inform the Administrator of Dashboard login credentials. The Dashboard will enable Customer to (a) view a current list of all Proposed Users who have been invited to, and Customer Users who have linked to, Customer Billing, (b) provide additional Linking Data to invite additional Proposed Users, (c) revoke any Customer User’s access to Customer Billing, (d) prepare and review activity reports of Customer Users using Customer Billing, (e) disable all current Customer Users of Customer Billing, (f) manage and update the Customer Card on file, (g) review and manage payment invoices, as applicable, (h) settle outstanding balances on the Customer account, and (i) view current, appoint new, and remove Administrators. EZCW reserves the right to add, remove and update features and functionality of the Dashboard at any time.
Customer may appoint additional administrators at its discretion, and EZCW will cooperate with Customer to inform new administrators of Dashboard login credentials. Customer agrees to (a) maintain all Dashboard login credentials in confidence, (b) only permit the lead Administrator and Customer’s other authorized administrators to access the Dashboard, and (c) update all information of the lead Administrator and other authorized administrators to ensure that it is current, accurate, and complete. Customer shall be responsible for all activity that occurs under its Dashboard login credentials.
3.3 Customer User Updates
It is Customer’s sole responsibility to keep and maintain an accurate list of current authorized Customer Users entitled to access Customer Billing via the Dashboard. EZCW may review the current list of Customer Users from time to time via the Dashboard to maintain and support the EZCW App and EZCW Service and ensure compliance with this Agreement.
4. Fees and Payments
In consideration of EZCW’s provision of the EZCW Services and Customer Billing as set forth herein, Customer shall pay to EZCW all User Charges and any applicable Services Fees EZCW may charge for certain functionality and features (collectively, the “Fees”) as set forth below.
4.2 Payment Terms
Subject to terms and conditions determined by EZCW in its sole discretion, Customer may qualify to receive monthly invoices (each, an “Invoice”) for Fees incurred by Customer Users utilizing Customer Billing during the preceding month (“Monthly Billing”). If Customer qualifies for, and elects to participate in, Monthly Billing through the Dashboard, Fees shall be billed to Customer monthly as set forth in an applicable Invoice, and each such Invoice shall be payable in full by Customer within thirty (30) days of receipt of such Invoice. If Customer is not participating in Monthly Billing, EZCW shall charge the Customer Card for Fees at the end of each Customer User’s carwash service utilizing Customer Billing. Unless otherwise indicated on a Customer User receipt, all Fees are exclusive of applicable taxes, and Customer agrees to be responsible for the payment of any such taxes assessed on Fees, including, but not limited to, all sales, use, VAT or similar taxes, except for taxes based on EZCW’s income. All payments shall be processed in the local currency applicable to the geography of the Customer User’s applicable carwash except in certain instances when EZCW may process foreign transactions in United States dollars. All payments are nonrefundable except as may be expressly provided otherwise herein.
EZCW reserves the right to immediately charge the Customer Card in the event that any Invoice has not been paid as of the applicable due date. EZCW reserves the right to immediately suspend Customer’s account and suspend any or all Customer Billing by all Customer Users in the event of any unpaid Fees by Customer due to past due Invoices (as applicable), an invalid credit Customer Card on the Customer account, or a rejected Customer Card transaction. EZCW further reserves the right to pursue any and all remedies available to it under applicable law, including reporting Customer to applicable credit reporting agencies, in the event of any unpaid Fees hereunder. Reestablishing a Customer account after full payment of late Fees shall be at EZCW’s sole discretion. All late payments shall bear interest at the greater of 1.5% per month or the maximum allowed by applicable law.
5. Term and Termination
This Agreement shall commence on the Effective Date and shall remain in effect until terminated as set forth herein (the “Term”).**
Either party may terminate this Agreement with or without cause upon five (5) days’ advance written notice to the other party. All outstanding payment obligations and Sections 4, 6, 7, 8 and 9 of these Terms shall survive the termination of this Agreement.
6. Warranty and Disclaimer of Liability
6.1 Mutual Warranties
Each party represents and warrants that: (a) such party has the full right, power and authority to enter into this Agreement; and (b) such party’s acceptance of this Agreement, as well as such party’s performance of the obligations set forth in this Agreement, does not and will not violate any other agreement to which such party is a party.
6.2 Customer Warranties
Customer represents and warrants that: (a) Customer has all rights and permissions necessary to provide EZCW with the Linking Data and any other information provided to EZCW hereunder in connection with the EZCW Service and Customer Billing; and (b) Customer has obtained legally-adequate consent from Proposed Users and Customer Users as necessary to provide EZCW with any personally identifiable information in connection with the EZCW Service and Customer Billing.
6.3 Disclaimer of Warranties
EXCEPT AS EXPRESSLY PROVIDED HEREIN, EZCW PROVIDES THE EZCW SERVICE AND EZCW APP “AS IS” AND WITHOUT WARRANTY. EZCW DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE EZCW SERVICE AND EZCW APP WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE EZCW SERVICE OR EZCW APP WILL BE UNINTERRUPTED OR ERROR FREE. EZCW HEREBY DISCLAIMS ALL OTHER WARRANTIES WITH RESPECT TO THIS AGREEMENT, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, (A) ANY IMPLIED OR STATUTORY WARRANTIES COVERING THE EZCW SERVICE OR THE EZCW APP, AND (B) ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NONINFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
7. Limitations of Liability
IN NO EVENT SHALL EZCW OR CUSTOMER BE LIABLE FOR SPECIAL, INCIDENTAL, CONSEQUENTIAL, INDIRECT, PUNITIVE OR OTHER SIMILAR DAMAGES ARISING UNDER THIS AGREEMENT, WHETHER BY BREACH OF WARRANTY, BREACH OF CONTRACT, NEGLIGENCE, OR ANY OTHER LEGAL THEORY, EVEN IF EZCW OR CUSTOMER (OR THEIR AGENTS) HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8. Proprietary Rights
8.1 No Publicity
Neither party may use or reference the other party’s name, logo, trademarks or service marks in a press release or otherwise without the prior consent of such other party in each instance.
EZCW and its affiliates are and shall remain the owners of all right, title and interest in and to the EZCW Service and EZCW App, including any updates, enhancements and new versions thereof, and all related documentation and materials provided or available to Customer or any Proposed User or Customer User in connection with this Agreement.
9. General Conditions
9.1 Governing Law
This Agreement shall in all respects be interpreted, construed in accordance with, and governed by the internal laws of the State of Texas, without regard to its principles regarding conflict of laws. In the event of any litigation between the parties related to this Agreement, the parties agree to submit to personal and exclusive jurisdiction for such action in the State Courts for the County of Houston, Texas.
Any notice required or permitted to be delivered to Customer by this Agreement shall be posted to the Customer’s Dashboard. Any notice required or permitted to be delivered to EZCW by this Agreement shall be submitted via email@example.com
9.3 Force Majeure
Nonperformance of either party under this Agreement shall be excused to the extent and during the period that performance is rendered impossible by strike, fire, flood, earthquakes, governmental acts or orders or restrictions, failure of suppliers, or contractors, or any other reason where failure to perform is beyond the reasonable control and not caused by the negligence of the non-performing party.
If any provision or provisions of this Agreement shall be held to be invalid, illegal or unenforceable, the validity, legality and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.
This Agreement is not transferable and may not be assigned by Customer, in whole or in part, without the prior written consent of EZCW, provided that Customer may assign this Agreement without such consent, but with notice to EZCW, in connection with a merger or a sale of all of the equity or assets of Customer. Subject to the foregoing, this Agreement shall be binding upon all successors and assigns of a party.
9.6 Attorney’s Fees
In any litigation between the parties, the prevailing party shall be entitled to reasonable attorney fees and all costs of proceedings incurred in enforcing this Agreement.
Section headings are for convenience only and shall not be considered in the interpretation of this Agreement.
9.8 Independent Contractor
EZCW and Customer are and shall remain independent contractors. Neither party is the representative or agent of the other and neither party shall have any power to assume any obligations on behalf of the other.
Customer hereby represents that the individual clicking to accept this Agreement is authorized by Company to bind, and does hereby bind, Company to the terms hereof.