Turnkey Xchange, Inc.
Terms of Service
Last revised: Nov. 3, 2017
WAIVER OF CLASS ACTION, MANDATORY ARBITRATION: PLEASE READ THESE TERMS OF SERVICE CAREFULLY BEFORE ACCESSING OR USING THE TKX SERVICES. THESE TERMS OF SERVICE CONTAIN AN ARBITRATION PROVISION, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT DISPUTES YOU HAVE AGAINST TKX TO BINDING AND FINAL ARBITRATION UNLESS YOU OPT OUT OF THE ARBITRATION PROVISION AS SET FORTH BELOW. YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST TKX ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
For purposes of these Terms of Service, “you” and “your” means you as the user of the TKX Services. If you use the TKX Services on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms of Service, and that you agree to these Terms of Service on the entity’s behalf.
AGREEMENT TO E-SIGNATURES. WHEN YOU REGISTER AN ACCOUNT ON THE TKX SERVICES OR CLICK ON THE “RESERVE” or “REQUEST TO BOOK” BUTTON WHEN ORDERING A VEHICLE, YOU AGREE THAT YOU ARE INTENDING TO CREATE AN ELECTRONIC SIGNATURE AFFIRMING YOUR FULL UNDERSTANDING AND AGREEMENT TO BE LEGALLY BOUND BY ALL OF THESE TERMS OF SERVICE AND THAT YOU ARE LEGALLY PERMITTED TO USE AND ACCESS THE TKX SERVICES. WE ADVISE THAT YOU PRINT AND RETAIN A COPY OF THESE TERMS OF SERVICE BEFORE YOU CLICK ON THE “RESERVE” or “REQUEST TO BOOK” BUTTON. THE MOST CURRENT VERSION OF THESE TERMS OF SERVICE WILL ALWAYS BE AVAILABLE FOR YOUR REVIEW UNDER THE TERMS OF SERVICE LINK LOCATED AT HTTPS://TURNKEYX.COM.
TKX may amend the TKX Services or the Terms of Service from time to time. Amendments to the Terms of Service will be effective upon TKX posting such amended Terms of Service at this location. Amendments to any other TKX Service’s terms of service will be effective upon TKX posting such amended policies or supplemental terms on the applicable TKX Service. We will also update the “Last Revised” date at the top of these Terms of Service. By continuing to access or use the TKX Services after we have posted a modification or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms of Service. If the modified Terms of Service are not acceptable to you, your sole recourse is to stop using and accessing the TKX Services.
This agreement governs your use of our technology services, on the website or via our mobile application. Supplemental contractual terms and agreements will apply to certain TKX Services, such as a Rental Agreement (as defined below) if you wish to rent a vehicle through the TKX Services, an “Affiliate Program Agreement” if you wish to make your vehicle available for rental by others through the TKX Services, policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable TKX Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms of Service for the purposes of the applicable TKX Services. Supplemental terms, including the Rental Agreement Provider Agreement, if applicable, shall prevail over these Terms of Service in the event of a conflict with respect to the applicable TKX Services.
1. THE TKX SERVICES
Description of the TKX Services. The TKX Services constitute a technology platform, including but not limited to, mobile applications and websites (collectively, the “TKX Applications”), that connects users of the TKX Services who desire to rent vehicles (“Users”) with owners (including car rental agencies and individual owners) who have vehicles available for rent (“Providers”), facilitating the online search for potential vehicles to rent, and coordinating the associated pricing, contractual and delivery arrangements. TKX acts as an interactive computer service provider. TKX serves as a conduit or platform to connect Users desiring vehicle rental services and Providers desiring to provide such vehicle rental services. Any and all vehicle rental services provided by a Provider to a User shall be provided under and pursuant to the Rental Agreement (as defined below) entered into by such Provider and User.
By using the TKX Services, you understand and agree that TKX’s role is limited to services provider, and coordinator (e.g. arranging rentals, connecting Users with Providers, displaying vehicle rental prices and additional insurance prices provided by Providers).
YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT TKX OFFERS INFORMATION AND A METHOD FOR USERS AND PROVIDERS TO CONNECT AND COORDINATE VEHICLE RENTAL SERVICES, BUT DOES NOT INTEND TO PROVIDE VEHICLE RENTAL SERVICES OR ACT IN ANY MANNER AS A VEHICLE RENTAL PROVIDER OR TRANSPORTATION SERVICE, AND TKX SHALL HAVE NO RESPONSIBILITY OR LIABILITY FOR ANY VEHICLE RENTAL SERVICES VOLUNTARILY PROVIDED TO ANY USER BY A PROVIDER THROUGH USE OF THE TKX SERVICES.
OWNERSHIP; LICENSE. The TKX Service (including, but not limited to, the TKX Application) is owned by and contains the valuable proprietary content of, TKX and its licensors and is protected by copyright and other intellectual property laws and treaties. You may not use the TKX Services except in its intended manner in accordance with the terms and conditions of these Terms of Service. Subject to your compliance with these Terms of Service, TKX grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the TKX Applications on your personal device (e.g. smartphone, tablet, personal computer) solely in connection with your use of the TKX Services; and (ii) access and use any content, information and related materials that may be made available through the TKX Services. Any rights not expressly granted herein are reserved by TKX and TKX’s licensors.
RESTRICTIONS. You may not, and will not permit others to: (i) remove any copyright, trademark or other proprietary notices from any portion of the TKX Services; (ii) reproduce, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the TKX Services except as expressly permitted by TKX; (iii) link to, mirror or frame any portion of the TKX Services; (iv) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the TKX Services or unduly burdening or hindering the operation and/or functionality of any aspect of the TKX Services; or (v) copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify or create derivative works of the TKX Services, any updates or any part thereof (except as and only to the extent any of the foregoing restrictions are prohibited by applicable law).
2. USING THE TKX SERVICES; ELIGIBILITY.
USER ACCOUNTS. In order to use most aspects of the TKX Services, you must register for and maintain an active personal TKX Services account (“Account”). You must be at least 21 years of age, or the age of legal majority in your jurisdiction (if older than 21), to create an Account.
Account registration requires you to submit to TKX certain personal information, such as your name, address, e-mail address, mobile phone number and age, driver’s license state and number, as well as credit card information for payment for the vehicle rental services provided via the TKX Services. You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to date Account information, including having a valid credit card on file, may result in your inability to access and use the TKX Services, the termination of these Terms of Service with you, and the cancellation of any applicable insurance or loss damage waiver coverage for a vehicle, whether complimentary or purchased. TKX may, but is not obligated to, use third party services to verify the information you provide and to obtain additional related information and corrections where applicable (e.g., motor vehicle and driving records and other screening processes) and you hereby authorize TKX to request, receive, use, and store such information for a reasonable period of time. TKX may accept or reject your registration in its discretion for any reason or no reason at all.
You acknowledge and agree that TKX may change its eligibility policies at any time for any reason and that your eligibility to use the TKX Services may change as a result of these changes. You are responsible for all activity that occurs under your Account, and, as such, you agree to maintain the security and secrecy of your Account username and password at all times. Unless otherwise permitted by TKX in writing, you may only possess one Account.
ELIGIBILITY AND CONDUCT. The TKX Services are available only to Users with a valid driver’s license. To register as a User, you will be required to provide TKX with your driver’s license information. If your driver’s license is in a language other than English, you may be required to provide an English translation of your driver’s license. The TKX Services are not available for use by persons under the age of 21, regardless of whether a Provider may have a different age requirement for rental of certain vehicles. By using the TKX Services you agree to provide documentation to TKX at any time to confirm your eligibility. TKX may revoke your Account and eligibility at any time in its sole discretion. You will not be able to use the TKX Services if you do not meet the eligibility requirements and you will not be issued a refund for any vehicle you have reserved through the TKX Services.
You may not assign or otherwise transfer your Account to any other person or entity. You may not authorize third parties to use your Account, and you may not allow persons under the age of 21 to contract for vehicle rental services arranged via the TKX Services; although persons under the age of 21 may accompany a User who is over 21. If persons under the age of 21 will be accompanying you in a vehicle you rented through the TKX Services, you are solely responsible for ensuring compliance with all applicable rules, laws, regulations, and recommended practices concerning the transport of minors via vehicles. In certain instances TKX may require you to provide proof of identity to access or use the TKX Services, and you agree that you may be denied access or use of the TKX Services if you refuse to provide proof of identity.
TEXT MESSAGING; E-MAILS. By creating an Account, you agree that TKX may send you informational text (SMS) messages and e-mails as part of the normal business operation of your use of the TKX Services. You may not opt out of receiving e-mails related to the TKX Services and your use of any vehicle provided by a Provider.
USER PROVIDED CONTENT. TKX may, in TKX’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to TKX and other users of the TKX Services textual, audio, and/or visual content and information, including commentary and feedback related to the TKX Services, initiation of support requests, and submission of entries for competitions and promotions (“User Content”). Any User Content provided by you remains your property. However, by providing User Content to TKX, you grant TKX a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such User Content in all formats and distribution channels now known or hereafter devised (including in connection with the TKX Services and TKX’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all User Content or you have all rights, licenses, consents and releases necessary to grant TKX the license to the User Content as set forth above; and (ii) neither the User Content nor your submission, uploading, publishing or otherwise making available of such User Content nor TKX’s use of the User Content as permitted herein will infringe, misappropriate or violate a third party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the TKX Services, or provide any User Content, that (i) is defamatory, profane, libelous, hateful, violent, obscene, sexually explicit, lewd, vulgar, suggestive, harassing, bigoted, discriminatory, abusive, inflammatory, deceptive, pornographic, or otherwise offensive, as determined by TKX in its sole discretion; (ii) is illegal or unlawful, that would constitute, encourage or provide instructions for a criminal offense, or that would otherwise create liability or violate any local, state, provincial, national or international law; or (iii) may infringe or violate any patent, trademark, trade secret, copyright, right of privacy, right of publicity or other intellectual property right, or any other right, of any party. TKX may, but shall not be obligated to, review, monitor, or remove User Content, in TKX’s sole discretion and at any time and for any reason, without notice to you.
NETWORK ACCESS AND DEVICES. You are responsible for obtaining the data network access necessary to use the TKX Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the TKX Services from a wireless-enabled device. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the TKX Services and TKX Applications and any updates thereto. TKX does not guarantee that the TKX Services, or any portion thereof, will function on any particular hardware or devices. In addition, the TKX Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications. You agree to comply with the usage rules established by your mobile device platform or service provider when using the TKX Services, including, but not limited to, the TKX Application.
Apple Inc., Google, Inc., Microsoft Corporation or BlackBerry Limited will be a third-party beneficiary to these Terms of Service if you access the TKX Services using TKX Applications developed for Apple iOS, Android, Microsoft Windows, or Blackberry-powered mobile devices, respectively. These third-party beneficiaries are not parties to these Terms of Service and are not responsible for the provision or support of the TKX Services in any manner. Your access to the TKX Services using these devices is subject to terms set forth in the applicable third-party beneficiary’s terms of service.
INTERACTIONS WITH PROVIDERS AND OTHERS. You acknowledge and agree that TKX has no obligation to screen other users of the TKX Services, including Providers or third party service providers with whom you may interact while using the TKX Services, in any way, and has no obligation to intervene in or be involved in any disputes that may arise between Users, Providers, or other third party service providers. It is your responsibility to take reasonable precautions in all actions and interactions with any Provider, other Users, or third party service providers which whom you may interact. It is your decision whether to accept the services provided by TKX or any third party service provider, and you may decline the TKX Services or any other services from third party service providers in your sole discretion. You understand and accept that TKX has no control over the actions of Providers or third party service providers and you should exercise caution and good judgment when using the TKX Services. YOUR USE OF THE TKX SERVICES IS AT YOUR OWN RISK.
COMMUNICATIONS WITH PROVIDERS. You may not use the TKX Services (i) to find a Provider and then book vehicle rental services with such Provider independent of the TKX Services, or (ii) to book vehicle rental services with a Provider independent of the TKX Services if you previously booked vehicle rental services with such Provider via the TKX Services. You understand that violation of these policies may result in termination of your Account in TKX’s sole discretion.
RESTRICTIONS. You agree you will not, either directly or indirectly, engage in any of the following prohibited activities: (i) transmit spam, chain letters, mail not relating to the TKX Services or other unsolicited e-mail; (ii) attempt to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the TKX Services; (iii) copy, distribute, or disclose any part of the TKX Services including any rates, payments, and pricing offered on or through the TKX Services in any medium, or by any method whatsoever including without limitation by any automated or non-automated “scraping”; (iv) use any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the TKX Services in a manner that sends more request messages to the servers operated by TKX than a human can reasonably produce in the same period of time by using a conventional on-line web browser provided that operators of public search engines may use spiders to copy materials from the TKX Services for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials; (v) take any action that imposes, or may impose, as determined by TKX in its sole discretion, an unreasonable or disproportionately large load on TKX’s infrastructure; (vi) upload invalid data, viruses, worms, or other software agents through the TKX Services; (vii) collect or harvest any personally identifiable information, including account names, from the TKX Services; (viii) use the TKX Services for any commercial solicitation purposes; (ix) impersonate another person or otherwise misrepresent your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfere with the proper working of the TKX Services; (xi) access any content on the TKX Services through any technology or means other than those provided or authorized by the TKX Services; (xii) bypass the measures TKX uses to prevent or restrict access to the TKX Services, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the TKX Services or the content therein, or (xiii) attempt to get around or circumvent a suspension, termination, or closure of your account, including, but not limited to, creating a new account to get around such an account suspension or closure.
3. PROVISION OF THE TKX SERVICES.
ACCESSING VEHICLE RENTAL SERVICES BY USERS. As a User, the TKX Services may be used by you to reserve, schedule, coordinate, and pay for vehicle rental services provided by Providers (which may be individuals or rental car agencies) who make their vehicles available via the TKX Services. You may reserve a vehicle and pay for such reservation via the TKX Services; however, you understand that all vehicles made available through the TKX Services are actually owned, operated, and rented through Providers and before you may rent any such vehicle you will be required to enter into a rental car agreement (the “Rental Agreement”) with the Provider.
TKX offers only a service enabling Users and Providers to schedule, coordinate, and pay for the rental of vehicles via its technology platform, but does not endorse any Provider or any vehicle provided by a Provider and does not provide transportation services or operate as a rental vehicle agency.
ALL RENTAL AGREEMENTS ARE BETWEEN THE USER AND THE PROVIDER. YOU UNDERSTAND AND AGREE THAT TKX IS NOT A PARTY TO ANY AGREEMENTS, INCLUDING RENTAL AGREEMENTS, ENTERED INTO BETWEEN PROVIDERS AND USERS, NOR IS TKX A RENTAL CAR AGENCY OR COMPANY, TRANSPORTATION SERVICE, AGENT, OWNER OR PROVIDER OF VEHICLES, OR INSURER. WHEN YOU ARRIVE TO RENT A VEHICLE, THE NAME OF THE VEHICLE’S PROVIDER WILL BE CLEARLY IDENTIFIED ON THE FACE PAGE OF YOUR RENTAL AGREEMENT.
TKX HAS NO CONTROL OVER VEHICLES PROVIDED BY PROVIDERS AND DISCLAIMS ALL LIABILITY WITH RESPECT TO THE CONDITION, MAINTENANCE, SAFETY, AND ROADWORTHINESS OF SUCH VEHICLES. YOU ARE SOLELY RESPONSIBLE FOR REVIEWING THE TERMS AND CONDITIONS OF THE RENTAL AGREEMENT YOU ENTER INTO WITH THE PROVIDER AND FOR INSPECTING THE CONDITION, MAINTENANCE, SAFETY, AND ROADWORTHINESS OF SUCH VEHICLES.
VEHICLES. By using the TKX Services, you understand and acknowledge that TKX does not guarantee, and takes no responsibility for, the condition, suitability, roadworthiness, or safety, or ability of any vehicle provided by any Provider. When picking up your vehicle, it is solely your responsibility to determine whether the vehicle or the Rental Agreement will meet your needs and expectations. You must complete a visual inspection of any vehicle made available to you via the TKX Services and determine if such vehicle is suitable for your use as well as safe and roadworthy. If you find damage to the vehicle during your inspection, you must report it to TKX immediately to avoid any confusion that such damage was caused by you. If you fail to report any damage found on the vehicle at the time you pick up such vehicle, such damage may be attributed to you absent compelling evidence you did not cause such damage. You must return the vehicle on the day specified by you when you reserved the vehicle. Failure to do so will result in additional charges and fees.
While you are renting a vehicle made available to you via the TKX Services, TKX customer service is available to answer any questions you may have. However, your use of the vehicle, and any restrictions on such use, will be governed by the Rental Agreement you enter into with the Provider.
AVAILABILITY OF VEHICLES; AMENITIES. When you reserve a vehicle through the TKX Services, you may indicate your preference toward a specific type, category, or class of vehicle, and any additional features you would prefer the vehicle to have. TKX will endeavor, but does not guarantee, that the specific type, category, or class of vehicle with the features you have requested will be available to you on the day you arrive to pick up the vehicle.
You may be able to choose certain amenities or accessories, such as car seats, GPS units, or toll transponders; at the time you reserve a vehicle. While TKX will endeavor to connect you with a Provider that has vehicles with such amenities or accessories available to you, TKX does not guarantee that they will be available to you on the day you pick up the vehicle even if you have requested such vehicle, amenity or accessory in advance. TKX is not responsible for any damages you may suffer for a Provider’s failure to provide a certain amenity or accessory. No TKX employee is responsible for installing any amenity or accessory provided to you and TKX will charge you method of payment attached to your Account should you fail to return, misuse, or damage any amenity or accessory provided to you.
INSURANCE; DAMAGE TO VEHICLES. TKX expects Users to have their own vehicle insurance and such insurance must be in compliance with all applicable laws. In addition, you should review the terms and conditions of the Rental Agreement for any additional terms and conditions regarding insurance. If you have questions about your own personal insurance and your coverage, you should contact your insurance professional after reviewing these Terms of Service.
If the vehicle breaks down, or becomes inoperable, you must contact TKX customer support at email@example.com. You will be provided with an alternate vehicle unless TKX, or the Provider, determines in their sole discretion, that you violated the usage guidelines in the Rental Agreement for such vehicle in the Rental Agreement or otherwise misused the vehicle causing it to become inoperable. You may be liable for any mechanical failures to the vehicle if such failure is due to your misuse of the vehicle or caused by your actions. You should carefully review the terms of the Rental Agreement to determine your liability.
You must immediately report any damage to the vehicle you are using to TKX’s customer support at firstname.lastname@example.org and if there has been an accident, to the police as well. You must review the terms of your Rental Agreement for any other actions you must take in the event of an accident or damage to the vehicle, including, but not limited to, using reasonable efforts to secure evidence from any available witnesses, providing the Provider with a written description of the incident, and collecting the insurance information of the other parties involved. The Rental Agreement you enter may require that you cooperate in any loss investigation conducted by such Provider. You may not continue to use the vehicle unless you have the explicit permission of the Provider. Failure to timely report an accident or damage to the vehicle may reduce or invalidate any insurance provided by the Provider. You may be liable for any damage to the vehicle if such damage is due to your misuse of the vehicle or caused by your actions. You should carefully review the terms of the Rental Agreement to determine your liability.
4. PAYMENT AND CHARGES.
PAYMENT. When you reserve a vehicle via the TKX Services, TKX will facilitate the reservation with the Provider and payment of the applicable fees, taxes, and charges for such vehicle rental services to the Provider (“Charges”). TKX makes no guarantee that the Charges represent (i) the lowest price for a vehicle in the area in which it is reserved on any particular day, or (ii) the published price for a vehicle on another website or publication not affiliated with TKX on any particular day. All Charges are due and payable and will be collected at the time you reserve a vehicle via the TKX Services using the method of payment designated in your Account. If TKX is unable to collect payment of the Charges from you using the payment methods authorized on your Account, the reservation will be canceled. Charges will be inclusive of applicable taxes where required by law.
TAXES AND OTHER FEES. The Charges will include the estimated amount TKX pays the Provider or government agencies for taxes and fees owed by the Provider or TKX, including, without limitation, sales and use tax, airport surcharges, licensing fees, age penalties, and other taxes and fees (collectively, “Taxes”). In some cities, the Taxes may include government imposed service fees or other fees not paid directly to a taxing authority but still required by law. The amount paid to the Provider or government agencies for Taxes may vary from the amount we estimate. The balance of the amount in Taxes is a fee retained by TKX as part of the compensation for the TKX Services and to cover the costs of providing the TKX Services to you. The amounts for Taxes varies based on a number of factors including, without limitation, the amount we pay the Provider or government agency, the type of vehicle provided by a Provider, the location of the vehicle, and may include profit retained by TKX. Tax rates and the type of Taxes vary greatly by location.
PROMOTIONAL CODES. TKX may, in TKX’s sole discretion, create promotional codes that may be redeemed for credit and other features and benefits related to renting and providing vehicles through the TKX Services, subject to the terms that TKX establishes on a per promotional code basis (“Codes”). You agree that all Codes: (i) must be used for the intended audience and purpose and in a lawful manner; (ii) may not be duplicated, sold, or transferred in any manner; (iii) may not be made available to the general public, unless expressly authorized by TKX; (iv) may be disabled or discontinued by TKX at any time for any reason; (v) may only be used pursuant to the specific terms specific to such Code; (vi) are not valid for cash; and (vii) may expire prior to your use. TKX reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Codes by you or any other user in the event that TKX determines, in its sole discretion, that the use or redemption of a Code was in error, fraudulent, illegal, or in violation of the applicable Code terms or these Terms of Service.
STRIPE. Payment processing services for Affiliates on TKX are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this agreement or continuing to operate as an Affiliate on TKX, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of TKX enabling payment processing services through Stripe, you agree to provide TKX accurate and complete information about you and your business, and you authorize TKX to share it and transaction information related to your use of the payment processing services provided by Stripe.
5. DISCLAIMERS; LIMITATION OF LIABILITY; INDEMNITY.
DISCLAIMER. THE TKX SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE.” TKX DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, EXPRESS, IMPLIED, OR STATUTORY, NOT EXPRESSLY SET OUT IN THESE TERMS, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, TKX MAKES NO REPRESENTATION, WARRANTY, OR GUARANTEE REGARDING THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, OR AVAILABILITY OF THE TKX SERVICES OR ANY GOODS OR SERVICES, INCLUDING VEHICLES AND INSURANCE POLICIES OBTAINED THROUGH THE USE OF THE TKX SERVICES, OR THAT THE TKX SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE. YOU AGREE THAT THE ENTIRE RISK ARISING OUT OF YOUR USE OF THE TKX SERVICES, AND ANY THIRD PARTY GOODS OR SERVICES OBTAINED IN CONNECTION THEREWITH, REMAINS SOLELY WITH YOU, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
LIMITATION OF LIABILITY. TKX DOES NOT SCREEN PROVIDERS (OR THEIR VEHICLES) OR THIRD PARTY SERVICE PROVIDERS, INCLUDING, BUT NOT LIMITED TO THIRD PARTY TRANSPORTATION SERVICES BETWEEN ANY AIRPORT AND THE VEHICLE, IN ANY WAY AND AS A RESULT WILL NOT BE LIABLE FOR ANY DAMAGES, DIRECT OR INDIRECT, INCIDENTAL AND/OR CONSEQUENTIAL, ARISING OUT OF THE USE OF THE TKX SERVICES, INCLUDING, WITHOUT LIMITATION, DAMAGES ARISING OUT OF COMMUNICATING OR MEETING WITH OTHER USERS, PROVIDERS, THIRD PARTY SERVICE PROVIDERS OR PERSONS INTRODUCED TO YOU VIA THE TKX SERVICES. SUCH DAMAGES INCLUDE, WITHOUT LIMITATION, PHYSICAL DAMAGES, BODILY INJURY, DEATH, AND/OR EMOTIONAL DISTRESS.
TKX SHALL NOT BE LIABLE TO YOU FOR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOST DATA, PERSONAL INJURY, OR PROPERTY DAMAGE, EVEN IF TKX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TKX SHALL NOT BE LIABLE FOR ANY DAMAGES, LIABILITY OR LOSSES INCURRED BY YOU ARISING OUT OF: (i) YOUR USE OF OR RELIANCE ON THE TKX SERVICES OR YOUR INABILITY TO ACCESS OR USE THE TKX SERVICES; OR (ii) ANY TRANSACTION OR RELATIONSHIP BETWEEN YOU AND A PROVIDER, EVEN IF TKX HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TKX SHALL NOT BE LIABLE FOR DELAY OR FAILURE IN PERFORMANCE RESULTING FROM CAUSES BEYOND TKX’S REASONABLE CONTROL. IN NO EVENT SHALL TKX’S TOTAL LIABILITY TO YOU IN CONNECTION WITH THE TKX SERVICES FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION EXCEED FIVE HUNDRED U.S. DOLLARS (US $500.00). THESE LIMITATIONS DO NOT PURPORT TO LIMIT LIABILITY THAT CANNOT BE EXCLUDED UNDER THE LAW IN THE JURISDICTION OF YOUR PLACE OF RESIDENCE.
TKX HAS NO CONTROL OVER THE CONDUCT OF OTHER USERS OF THE TKX SERVICES, AND DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOUR USE OF THE TKX SERVICES AND YOUR CONTACT, INTERACTION OR DEALINGS WITH ANY THIRD PARTIES ARISING OUT OF YOUR USE OF THE TKX SERVICES IS SOLELY AT YOUR OWN RISK. THE VEHICLES, PROVIDERS, AND OTHER SUPPLIERS OF TKX ARE NOT AGENTS OR EMPLOYEES OF TKX. TKX IS NOT RESPONSIBLE FOR, AND WILL NOT BE HELD LIABLE FOR, THE ACTS, ERRORS, OMISSIONS, REPRESENTATIONS, WARRANTIES, BREACHES OR NEGLIGENCE OF ANY OF THESE PROVIDERS OR SUPPLIERS FOR ANY PERSONAL INJURIES, DEATH, PROPERTY DAMAGE, LOSS, THEFT OR OTHER DAMAGES OR EXPENSES RESULTING THEREFROM. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOU WAIVE ANY AND ALL RIGHTS YOU HAVE TO BRING ANY CLAIM OR LITIGATION AGAINST TKX FOR ANY DAMAGES OR LOSSES ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF A VEHICLE THAT YOU RENTED THROUGH THE TKX SERVICES INCLUDING, WITHOUT LIMITATION, A VEHICLE NOT BEING AVAILABLE, ANY BREAKDOWN, MALFUNCTION OF OR DEFICIENCY IN A VEHICLE, ANY BREACH OF WARRANTY OR OTHER OBLIGATION BY ANY PROVIDER, CAR MANUFACTURER OR OTHER THIRD PARTY, ANY PERSONAL INJURY OR PROPERTY DAMAGE SUFFERED BY YOU OR ANY OF YOUR PASSENGERS, OR ANY ACTIONS OR INACTION OF THE PROVIDER.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
INDEMNITY. You agree to indemnify and hold TKX and its officers, directors, employees and agents, harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your breach or violation of any of these Terms of Service; (ii) your access to or use of the TKX Services; (iii) TKX’s use of your User Content; or (iv) your violation of the rights of any third party; (v) your interaction with any user, booking of a vehicle, or creation of a listing for a vehicle; or (vi) the use, condition, or rental of a vehicle by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential, or otherwise) of any kind arising in connection with or as a result of a rental, booking, or use of a vehicle.
6. ARBITRATION AND CLASS ACTION WAIVER.
This Section includes an agreement to arbitrate and an agreement that all claims will be brought only in an individual capacity (and not as a class action or other representative proceeding). Please read it carefully. You may opt out of the agreement to arbitrate by following the opt-out procedure described below.
INFORMAL PROCESS FIRST. You agree that in the event of any dispute between you and TKX, You will first contact TKX and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation any court action.
AGREEMENT TO ARBITRATE. After the informal dispute resolution process any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of TKX’s product and services, including the TKX Services, or relating in any way to the communications between you and TKX or any other user of the TKX Services, will be finally resolved by binding arbitration.
If You wish to begin an arbitration proceeding, after following the informal dispute resolution procedure, You must send a digital letter requesting arbitration and describing your claim to Turnkey Xchange, Inc., Attn: Notices – Legal, to email@example.com. The arbitration will be administered by the American Arbitration Association (AAA) under its rules including, if You are an individual, the AAA’s Supplementary Procedures for Consumer-Related Disputes. If You are not an individual or have used the TKX Services on behalf of an entity, the AAA’s Supplementary Procedures for Consumer-Related Disputes will not be used. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879.
The arbitrator, and not any federal, state, or local court, will have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionability, arbitrability, enforceability, or formation of this agreement to arbitrate, including any claim that all or any part of this agreement to arbitrate is void or voidable. However, the preceding sentence will not apply to the “Class Action Waiver” section below.
OPT OUT OF ARBITRATION. If You do not want to arbitrate disputes with TKX and you are an individual, you may opt out of this agreement to arbitrate by sending an e-mail to firstname.lastname@example.org within thirty (30) days of the first date You access or use the TKX Service.
CLASS ACTION WAIVER
Any Claim must be brought in the respective party’s individual capacity, and not as a plaintiff or class member in any purported class, collective, representative, multiple plaintiff, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. If the Claim is subject to arbitration, the arbitrator will not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action Waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. The parties understand that any right to litigate in court, to have a judge or jury decide their case, or to be a party to a class or representative action, is waived, and that any claims must be decided individually, through arbitration.
If this Class Action waiver is found to be unenforceable, then the entirety of the agreement to arbitrate, if otherwise effective, will be null and void. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. If for any reason a claim proceeds in court rather than in arbitration, you and TKX each waive any right to a jury trial.
7. OTHER PROVISIONS.
CHOICE OF LAW. These Terms of Service are governed by and construed in accordance with the AAA Rules (with respect to any arbitration as contemplated above) and the laws of the State of California, U.S.A., without giving effect to any conflict of law principles.
NOTICE. TKX may give notice by means of a general notice on the TKX Services, electronic mail to your e-mail address in your Account, or by written communication sent by first class mail or pre-paid post to your address in your Account. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or prepaid post) or 12 hours after sending (if sent by e-mail).
DMCA AND COPYRIGHT COMPLAINTS. In accordance with the Digital Millennium Copyright Act and other applicable law, TKX has adopted a policy of terminating, in appropriate circumstances and in TKX’s sole discretion, the Accounts of Users who are deemed to be repeat infringers of the intellectual property rights of others. TKX may also in our sole discretion limit access to the TKX Services and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that any material made available via the TKX Services infringes upon any copyright which you own or control, or that any link made available via the TKX Services directs users to material that infringes upon any copyright which you own or control, you may file a notification of such infringement to email@example.com.
Such notification must include:
- identification of the copyrighted work that is claimed to be infringed;
- identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the TKX Service;
- information for our copyright agent to contact you, such as an address, telephone number, and, if available, e-mail address;
- a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
- a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
- a physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed.
TKX will respond expeditiously to claims of copyright infringement using the TKX Services that are reported to TKX’s copyright agent in the notification explained above. If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages including, but not limited to, costs and attorneys’ fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
TERMINATION. TKX reserves the right to suspend, terminate, or refuse to permit access to your Account or terminate these Terms of Service at any time for any reason with or without prior notice to you and without liability to you. All aspects of the TKX Services are subject to change or elimination at any time in TKX’s sole discretion.
GENERAL. You may not assign these Terms of Service without TKX’s prior written approval. TKX may assign these Terms of Service without your consent to: (i) a subsidiary or affiliate; (ii) an acquirer of TKX’ equity, business or assets; or (iii) a successor by merger. Any purported assignment in violation of this section shall be void. No joint venture, partnership, employment, or agency relationship exists between you or TKX as a result of these Terms of Service or use of the TKX Services. If any provision of these Terms of Service is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced to the fullest extent under law. TKX’s failure to enforce any right or provision in these Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by TKX in writing.
ADDITIONAL TERMS APPLICABLE TO USERS THAT RENT A VEHICLE THROUGH THE TKX SERVICES
These additional terms apply to Users that rent a Vehicle through the TKX Services. For purposes of these additional terms, (i) “You” or “Your” means the person identified as the “Renter” or an “Authorized Driver” on a Rental Agreement, (ii) “Vehicle” means the automobile or truck identified on the Rental Agreement and any vehicle Provider may substitute for it, and all its tires, tools, accessories, equipment, keys and vehicle documents; and (iii) “Rental” means Your renting of the Vehicle from Provider under the terms of the Rental Agreement. All persons referred to as “You” or “Your” are jointly and severally bound by these additional terms.
Vehicle Selection: Any vehicles that You select through the service offered through the TKX Services are representative only and do not indicate the type of vehicle You will receive. Even if You select a specific type of vehicle, You may be allocated a vehicle of a different type, which is not substantially smaller than and seats no fewer persons than the vehicle of Your original choosing. You will be issued a refund if You receive a vehicle priced lower than Your original booking at the time of the booking.
Optional Features: If You request optional features such as four wheel drive, the cost of these features will be refunded if they are not available on Your vehicle. Availability of these features is not guaranteed.
Rates and Quotes: Vehicle rental rates vary considerably from location to location and from time to time, and they change very frequently. Unless it is provided in connection with certain types of reservations, a rate quote You receive is merely indicative of the rates then being offered and creates neither legal rights nor practical expectations of vehicle availability or the continued applicability of the quoted rate.
Reasonable Care: You must drive and park with reasonable care, keep the Vehicle clean, and return it on time.
No Smoking: No smoking is allowed in or directly around any Vehicles available for use through TKX. You will be assessed a Cleaning Fee of $250 if You or any other individual violates this policy with Your Vehicle.
Pets and Cleaning: Unless You specifically request and Provider (or TKX on Provider’s behalf) approves in advance, transporting pets or other animals in a Vehicle is prohibited. You must leave the Vehicle in a clean condition and remove any trash from the Vehicle prior to returning it. You may be assessed a cleaning fee of $250 if You violate this policy.
Gas: You must return the Vehicle with the same amount of gas in the tank as there was at the start of the Rental. If the gas is not filled back to the level present at the beginning of the Rental, You will be subject to the local market refueling cost of the Vehicle, as estimated by TKX and an additional penalty fee of $10.
Payment Card Holds: You may be required to provide a hold of $99. The hold will be active for the entire duration of Your Rental plus up to one week beyond, upon which it will be released if Your account is up to date. It may take Your bank or card issuer several more days to return the funds to Your account.
Add-Ons: You are responsible to maintain all equipment in the Vehicle in good condition. If You return such equipment damaged or fail to return it, You will be charged fees for such damage or return, including the following fees: GPS: $200, Car seat: $100, and toll transponder: $75.
Authorized Drivers: Only You or a pre-approved Authorized Driver may drive or operate the Vehicle during the Rental Period. If an unauthorized individual operates the Vehicle during the Rental Period, all insurance coverage furnished to you through the TKX Services, including purchased coverage, will be void, and You may be charged an unauthorized driver fee of up to $250.
Documentation of Pre-existing Damage: Before driving the Vehicles, Provider or TKX may inspect the Vehicle and take photos of any pre-existing damage. Nevertheless, it is ultimately Your responsibility to confirm that all pre-existing damage is noted, including any non-functional features or components of the Vehicle. You may be liable for any damage that is not documented before driving the Vehicle.
Parking Tickets and Traffic Violations: You agree to be solely liable for parking tickets, traffic citations, and other violations that occur during the Rental, and all fees resulting from such violations, even if You are not driving. It is solely Your responsibility to pay these fees in a timely manner and to comply with all legal obligations that arise from such violations. If You do not pay the tickets or fees, TKX (on behalf of the Provider) will charge You for the amount of the ticket plus a $15 administrative fee and pay for the ticket.
Tolls: You are solely responsible for paying all tolls, and fines resulting from improperly paid tolls, incurred during the Rental. In some markets, a Provider (or TKX, on Provider’s behalf) will install its own toll-paying device in the Vehicle for the duration of the Rental, in which case You agree to reimburse the Provider for the full amount of the charges on the device during Your Rental. In markets where a Provider or TKX does not install a toll-paying device in the Vehicle, You will be held responsible for any toll invoices or tickets incurred during Your Rental and any penalties associated with them.
Towing and Breakdowns: TKX may provide roadside assistance for accidents and breakdowns that occur during a Rental. TKX will cover the cost of roadside assistance and towing if a Vehicle breaks down or otherwise becomes inoperable due to a pre-existing condition or problem with the Vehicle. If You request roadside assistance for issues TKX determines You have caused (for example, a flat tire or dead battery), the roadside assistance and towing charges will be Your sole responsibility.
Driving Safety: If You believe that a Vehicle is unsafe to drive due to an “easily” correctable problem (as determined solely by TKX), for example, a flat tire, TKX will work with You to remedy this issue quickly. If You remain uncomfortable with the Vehicle after a fix is performed by a certified, licensed mechanic, You may return the Vehicle to the original pickup location to exchange vehicles, based on availability. TKX and Provider, however, are under absolutely no obligation to arrange for a different vehicle to be provided to You and under no circumstances will TKX or Provider have an alternate vehicle brought to you.
Maintenance: You are responsible for reporting to TKX immediately any serious issues, including a Check Engine Light, as soon as they occur. You should discontinue driving immediately if You notice a serious issue and contact TKX, who will arrange an alternate vehicle for Your use.
Stickers and Car Modification: You may not place stickers, signs, symbols, or other devices, modifications, advertisements or publicity materials on the interior or exterior of the Vehicle, other than those provided by TKX.
Maintenance and Repairs: You are not responsible for routine maintenance and repairs of the Vehicle. You may be held liable for the repair cost of all other repairs or damage to the car during the Rental if it is not covered by the Provider’s insurance, and must follow the reporting, claims processing, and repair procedure set forth below for all such damage.
Extensions: You may call TKX to see if a vehicle is available from a Provider for an extended time period. If You wish to extend the Rental and it is available, You will be assessed any additional charges for the new Rental days based on current market pricing, with a minimum of one extra day worth of charges. Your original price is not the prevailing price if You wish to extend. The prevailing price is always the currently listed price on the app. If an extension is not available, the Vehicle must be returned at the original return time.
Cancellations and Changes: You may cancel Your trip by contacting us at firstname.lastname@example.org. The total amount refunded will depend on when You cancel Your trip, and varies by fee component (trip price, trip fee, protection fee, and if applicable, young driver fee). When You cancel a reservation, a Renter Cancellation Fee may be charged at TKX’s sole discretion. This fee is charged to compensate for the time the car was booked and unavailable for other potential renters.
There are no credits/refunds issued for early returns.
Trip price & trip fee:
- <1 hour from booking trip: Full refund
- >7 days before trip start: Full refund
- 1-7 days before trip start: 50% refund
- <1 day before trip start: No refund
After a Trip has started, it is not refundable and may not be canceled. You will receive a full refund if You cancel before the owner confirms the pending trip.
The trip fee is non-refundable once an hour has elapsed from the time the trip is booked (i.e. when the owner confirms the pending trip).
Returns: You are ultimately responsible for returning the Vehicle to the designated location and will be charged significant penalty fees if You do not comply. These charges often exceed $1,000.
One Way Rentals: One way Rentals (picking up at one location and returning at another) are not permitted.
No Shows: A No Show is defined as failing to arrive within thirty minutes of Your scheduled pickup time. A “No Show” will result in Your reservation being cancelled and does not entitle You to a refund. If You wish to rebook, there is no guarantee that Your originally quoted rate will be available.
Responsibility: You hereby agree that TKX, Provider and their respective affiliates, subcontractors and operating units are not responsible for consequential damages should any of them fail to meet their obligations in connection with a Rental transaction. Similarly, You are not responsible for consequential damages should You fail to meet Your obligations in connection with the transaction.
Impound: If the Vehicle is impounded during Your Rental, You will be fully responsible for any towing and storage fees that arise as a result of the impound, unless the impound was caused by an issue completely outside of Your control (such as the registration being expired). It will be Your responsibility to assist TKX and Provider in retrieving the Vehicle, or to do it yourself, if it is possible.
Payments for Damage and Accidents: If You cause damage to a Vehicle, TKX may charge Your credit card on file for the entire amount of the damage repair cost or, if you elected to accept CDW offered by the Provider, the amount of the service fee and deductible. TKX will also hold You responsible for, and You agree to be so held, any reasonable administrative fees, as well as rental car costs while the Vehicle is being repaired.
Cooperation with Loss Investigation: If the Vehicle is damaged in any way or involved in a collision or accident, you agree to fully cooperate in any loss investigation that Provider or TKX may choose to conduct.