Member terms and conditions
PLEASE READ THESE MEMBER TERMS AND CONDITIONS CAREFULLY BEFORE COMPLETING YOUR REGISTRATION AS A MEMBER ON OUR SITE
These Terms and Conditions (together with the documents referred to in them) (together, the "Member Terms and Conditions") tell you the terms on which you may advertise your services as a towing and/or roadside assistance provider ("Member"), receive requests for quotes from potential customers who have registered to make such requests ("Customers") and send quotes ("Quotes") to them through our website www.towgator.com ("the site").
We recommend that you print a copy of these terms for future reference.
These Member Terms and Conditions refer to the following additional terms, which will apply to any use of the site including your activities as a Member on the site, and, in the event of a conflict between those additional terms and these Member Terms and Conditions, these Member Terms and Conditions will prevail:
If and when we refer, in these Member Terms and Conditions, to 'in writing', this will include e-mail.
Registering as a Member
- A Member’s registration and continued participation is deemed to be confirmation that the Member accepts these Member Terms and Conditions and that the Member agrees to comply with them. If the Member does not agree to these Member Terms and Conditions, it must not proceed with any such activity as a Member on the site.
- From the date on which we ("towgator.com") notify you of our acceptance of your application to list your services on the site, you may proceed to set up a profile page on the site and to upload content about your business and the services that you provide. You may also receive requests for quotes from users of the site and may provide quotes for us to forward to them. More details about these are provided below.
- For the avoidance of doubt, the Member accepts that:
- the contract for the supply of services shall be formed between the Member and Customer separately from their use of the site and upon terms to be agreed by the Member and such Customer; and
- at no time shall a contract for the supply of services exist between towgator.com and any such Customer in relation to services ordered by that Customer as a result of visiting the site and/ or receiving a Quote through the site.
Our Services to Members
- towgator.com shall provide the following services (the "Services") to validly registered Members on the site under these Member Terms and Conditions:
- provide the Member with a password with which the Member may access a dedicated area of the site to which it may upload content for the purposes of promoting its services and where it may receive Customer’s requests for Quotes and any other information that the customer provides in the comments section of the quote form and, subject to such Quote being received by us within 5 days of the date of such Quote request, we will forward such Quotes to such Customer’s.
- The parties agree that towgator.com’s provision of the Services is subject to and dependant on:
- the Member’s acceptance that, except for bespoke graphics or product images of the Member’s which towgator.com agrees to include, the quality, functionality and look and feel of the site (including the area dedicated to the Member) are determined by towgator.com and, whilst towgator.com will take all reasonable steps to ensure that the area dedicated to the Member shall be of a quality and functionality that is consistent with areas of the site dedicated to other Members, no guarantees or warranties regarding this are given by towgator.com. The Member also accepts that towgator.com may edit the content of the Member’s profile page, at its sole discretion;
- the Member being and remaining incorporated and/or established (whether as a company, partnership, unincorporated association, or sole trader).
- the Member’s acceptance that requests for Quotes may be deleted by us from the Member’s dashboard in the event that the Member has not responded to such request within 5 days of the date of such request;
- the Member’s acceptance that, if the Member has sent a Quote in response to a request for Quotes, such Quote cannot be deleted by the Member.
- the Member having and maintaining, at its own cost, internet access and up-to-date computer hardware and software (including virus protection) suitable for accessing and interoperating with the site; and
Duration of our services to Members
- The services of the site under these Member Terms and Conditions shall (subject to earlier termination pursuant to the Termination with Cause provisions below) continue indefinitely unless and until terminated by either party providing the other with thirty (30) days’ notice of termination.
- Each of the parties warrants to the other that it has full power and authority to enter into and perform its obligations under these Members Terms and Conditions.
- The Member warrants that its activities concerning the site shall be carried out with reasonable care and skill, in accordance with generally recognised commercial practices and standards and those reasonably required by towgator.com, in particular the following which, upon reasonable request, towgator.com may require you to evidence:
- the Member shall comply with all applicable laws;
- the terms under which the Member supplies its services to consumer Customers of the site shall comply with applicable consumer protection laws and guidance and shall contain the information demanded or recommended by such consumer protection laws and guidance (for example, the Member accepts that it is responsible for notifying the Customer of its legal rights concerning cancellation and refunds);
- the terms under which the Member supplies its services to Customers of the site shall be consistent with the terms (if any) that it describes in its listing on the site and/ or in Quotes; and
- the Member holds and shall continue to hold appropriate insurance cover in relation to its potential liability for the supply of its services and its obligations under these Member Terms and Conditions.
- towgator.com shall perform the Services of the site with reasonable care and skill and in accordance with generally recognised commercial practices and standards.
- towgator.com does not warrant that the operation of the site will be uninterrupted or free of errors and material defects and the parties also agree that other warranties, conditions or terms implied by law or custom shall not apply to the Services of the site.
Limitation of remedies and liability
- Nothing in these Member Terms and Conditions shall operate to exclude or limit either party’s liability for:
- death or personal injury caused by its negligence;
- fraud; or
- any other liability which cannot be excluded or limited under applicable law.
- towgator.com shall not be liable to the Member for any loss of profit, anticipated profits, revenues, anticipated savings, goodwill or business opportunity, or for any indirect or consequential loss or damage.
- Save for the matters for which liability is not excluded or limited and which are listed above in paragraphs (a), (b) and (c) above, towgator.com’s aggregate liability in respect of claims based on events in any calendar year arising out of or in connection with its provision of the Services under these Member Terms and Conditions, or any collateral contract, whether in contract or tort (including negligence) or otherwise, shall in no circumstances exceed the sum of $200.
- The Member shall indemnify towgator.com against all damages, losses and expenses arising as a result of (i) any action or claim of infringement of a third party’s Intellectual Property Rights (defined below), (ii) any breach of the Member’s warranties or other obligations under these Member Terms and Conditions and/ or (iii) any action or claim of infringement of a third party’s rights under applicable data protection laws arising as a result of the Member’s storage or processing of Customer’s data of any kind.
- As already described above and for the avoidance of doubt, the parties agree that no contract for the provision of services shall exist between towgator.com and the Customers of the Member’s services. Furthermore, no documents will be held, stored, delivered or handled in any manner for such Customers by towgator.com. Therefore towgator.com is not liable in any way for the Member’s delivery of service or documents to Customers. Nevertheless, the Member shall notify towgator.com immediately in the event of the Member receiving a complaint or notice of any potential legal action against it or towgator.com concerning services that are or were listed on the site or set out in any Quote sent through the site.
Intellectual property rights
- The Member retains all Intellectual Property Rights (defined below) in the photographs and text (if any) that it provides to towgator.com, and grants towgator.com a licence to such Intellectual Property Rights to the extent required by towgator.com to perform the Services and to perform any other obligations arising pursuant to these Member Terms and Conditions. If required, the parties shall execute any additional documents necessary to give effect to this clause.
- All other Intellectual Property Rights in the site and related materials, (including towgator.com’s logo) is and shall remain the property of towgator.com. For the avoidance of doubt, the Member is not granted any licence in such property except that the Member may reproduce towgator.com’s logo in the Member’s marketing materials subject to such use being in accordance with towgator.com’s guidance on such use of its logo (which is available upon request from towgator.com) and subject to the Member’s compliance with all other applicable terms.
- Intellectual Property Rights means patents, utility models, rights to inventions, copyright and neighbouring and related rights, trade-marks and service marks, business names and domain names, rights in get-up and trade dress, goodwill and the right to sue for passing off or unfair competition, rights in designs, database rights, rights to use, and protect the confidentiality of, confidential information (including know-how and trade secrets), and all other intellectual property rights, in each case whether registered or unregistered and including all applications and rights to apply for and be granted, renewals or extensions of, and rights to claim priority from, such rights and all similar or equivalent rights or forms of protection which subsist or will subsist now or in the future in any part of the world.
Termination with cause
- Without affecting any other right or remedy available to it, towgator.com may terminate these Member Terms and Conditions with immediate effect by giving written notice to the Member if:
- the Member commits a material breach of any term of these Member Terms and Conditions which breach is irremediable or (if such breach is remediable) fails to remedy that breach within a period of 14 days after being notified in writing to do so;
- the Member repeatedly breaches any of the terms of these Member Terms and Conditions in such a manner as to reasonably justify the opinion that its conduct is inconsistent with it having the intention or ability to give effect to the terms of these Member Terms and Conditions;
- the Member suspends, or threatens to suspend, payment of its debts or is unable to pay its debts as they fall due or admits inability to pay its debts or is deemed unable to pay its debts within the meaning of section 123 of the Insolvency Act 1986;
- the Member commences negotiations with all or any class of its creditors with a view to rescheduling any of its debts, or makes a proposal for or enters into any compromise or arrangement with its creditors;
- a petition is filed, a notice is given, a resolution is passed, or an order is made, for or in connection with the winding up of the Member;
- the Member suspends or ceases, or threatens to suspend or cease, carrying on all or a substantial part of its business;
- any warranty given by the Member under these Member Terms and Conditions is found to be untrue or misleading.
- an Event Outside Our Control has continued for a period of more than 90 days.
- On termination (with or without cause) of these Member Terms and Conditions:
- the licence granted above by towgator.com in relation to the Member’s use of the towgator.com’s logo under these Member Terms and Conditions shall terminate immediately and the Member’s materials, containing such logo, must be updated or destroyed accordingly;
- towgator.com shall promptly suspend public access to the Member’s area of the site and shall proceed to delete its content accordingly. For the avoidance of doubt, the Member shall no longer receive requests for quotes and must refrain from sending or attempting to send Quotes; and
- any provision of these Member Terms and Conditions that expressly or by implication is intended to come into or continue in force on or after termination or expiry of these Member Terms and Conditions shall remain in full force and effect.
- Termination or expiry of these Member Terms and Conditions shall not affect any rights, remedies, obligations or liabilities of the parties that have accrued up to the date of termination or expiry, including the right to claim damages in respect of any breach of the agreement which existed at or before the date of termination or expiry.
Confidentiality and Data Protection
- The parties agree that they shall keep in confidence the other party’s Confidential Information (defined below) that it receives and, except in accordance with these Member Terms and Conditions and for the purposes of providing the services described under these Member Terms and Conditions, will not disclose that Confidential Information to any person (other than their employees, professional advisers or suppliers who need to know the information) without the written consent of the other party.
- Confidential Information means information concerning a party’s business affairs, plans, operations, processes, customers, clients, suppliers, product information, know how, designs, trade secrets, software or any other information that would reasonably be considered to be the confidential information of that business.
- It shall not be a breach of these confidentiality obligations if Confidential Information is disclosed by the party that receives it and it is or was (i) already in that party’s lawful possession without any obligation of confidentiality; (ii) already in, or subsequently comes into, the public domain other than through a breach of this contract; or (iii) obliged to be disclosed by law or to meet the order of any regulatory authority or government agency.
- These obligations of confidentiality shall remain in effect for two years after the termination or expiry of these Member Terms and Conditions.
- The Member shall use its best endeavours to ensure that the reputation and commercial interests of towgator.com are not jeopardised by media releases and public announcements by the Member relating to its activities as a Member on the site, including promotional or marketing material.
Events outside our control
- Neither party will be liable or responsible for any failure to perform, or delay in performance of, any of our obligations under these Member Terms and Conditions that is caused by an Event Outside Our Control which causes that party’s failure or delays it. An Event Outside Our Control is defined below.
- An Event Outside Our Control means any act or event beyond that party’s reasonable control, including without limitation acts of God, strikes, lock-outs or other industrial action by third parties (whether or not relating to Member’s workforce), civil commotion, riot, invasion, terrorist attack or threat of terrorist attack, war (whether declared or not) or threat or preparation for war, national emergency, fire, explosion, storm, flood, earthquake, any other inclement weather, subsidence, epidemic or other natural disaster, or failure of public or private telecommunications networks, an inability or delay in obtaining supplies of adequate or suitable materials, restraints or delays affecting carriers or any other impossibility of the use of railways, shipping, aircraft, motor transport or other means of public or private transport.
- The Member may not assign or transfer any of its rights or obligations to the other under these Member Terms and Conditions, unless it has the prior written consent of towgator.com.
- These Member Terms and Conditions (which includes the additional documents referred to in it) constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations and understandings between them, whether written or oral, relating to its subject matter.
- Each party acknowledges that in entering into these Member Terms and Conditions it does not rely on any statement, representation, assurance or warranty (whether made innocently or negligently) that is not set out in these Member Terms and Conditions.
- Each party agrees that it shall have no claim for innocent or negligent misrepresentation based on any statement in these Member Terms and Conditions.
Third party rights
- No one other than a party to these Member Terms and Conditions, their successors and permitted assignees, shall have any right to enforce any of its terms.
- No failure or delay by a party to exercise any right or remedy provided under these Member Terms and Conditions or by law shall constitute a waiver of that or any other right or remedy, nor shall it prevent or restrict the further exercise of that or any other right or remedy. No single or partial exercise of such right or remedy shall prevent or restrict the further exercise of that or any other right or remedy.
Rights and Remedies
- Except as expressly provided in these Member Terms and Conditions, the rights and remedies provided under these Member Terms and Conditions are in addition to, and not exclusive of, any rights or remedies provided by law.
- If any provision or part-provision of these Member Terms and Conditions is or becomes invalid, illegal or unenforceable, it shall be deemed modified to the minimum extent necessary to make it valid, legal and enforceable. If such modification is not possible, the relevant provision or part-provision shall be deemed deleted. Any modification to or deletion of a provision or part-provision under this clause shall not affect the validity and enforceability of the rest of these Member Terms and Conditions.
- If any provision or part-provision of these Member Terms and Conditions is invalid, illegal or unenforceable, the parties shall negotiate in good faith to amend such provision so that, as amended, it is legal, valid and enforceable, and, to the greatest extent possible, achieves the intended commercial result of the original provision.
- These Member Terms and Conditions and any dispute or claim arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the law of England and Wales.
- Each party irrevocably agrees that the courts of England and Wales shall have exclusive jurisdiction to settle any dispute or claim arising out of or in connection with these Member Terms and Conditions or its subject matter or formation (including non-contractual disputes or claims).