TIRE RACK TERMS OF USE

1. Introduction

  1. Welcome to Tire Rack. Through our tirerack.com website ("Site") we provide information, the ability to purchase product, set up installation of tires, and related services (collectively, the "Services"). The Site is owned and operated by Tire Rack, Inc. (collectively, with its affiliates and parents, "Tire Rack", "we", "us" or "our").
  2. Your use of our Site and our Services is governed by these Terms of Use and our privacy policy (which may be found at www.tirerack.com/about/privacy.jsp, as updated from time to time, and which is incorporated by reference herein ("Privacy Policy") (collectively, these "Terms" or the "Agreement"). References to "Users", "you" or "your" mean you as a visitor to our Site, user of our Services, member, account holder, or customer, as applicable.
  3. IMPORTANT - PLEASE READ CAREFULLY. By clicking the "I Accept" box or by using the Site or the Services, you acknowledge and agree that these Terms (including the Privacy Policy) form a binding agreement between us and you as a user of the Site and/or the Services.

    IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE THE SITE OR THE SERVICES. IMPORTANT: THESE TERMS CONTAIN AN ARBITRATION PROVISION REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION, AND ALSO CONTAIN A CLASS ACTION WAIVER. Please carefully review Section 18 of these Terms for more information.

2. Amendments

This Agreement may be updated from time to time. You should check this Site regularly for updates to this Agreement. Each time you order, access or use any of the Services or Websites, you signify your acceptance and agreement, without limitation or qualification, to be bound by the then current Agreement. Modifications take effect as soon as they are posted to this Website (or any of the Websites, to the extent applicable to you), delivered to you, or reasonably made available to you in writing by Tire Rack. However, no amendment will retroactively modify the parties' agreed-to dispute resolution provisions of this Agreement for then-pending disputes, unless the parties expressly agree otherwise in writing

3. Privacy

  1. We will maintain and use your "Personal Information" as defined in and according to our Privacy Policy. Your continued access or use of the Site or purchase or use of our products or Services indicates that you agree with such modifications.
  2. Use By Minors. Please note that we do not knowingly collect or solicit Personal Information from individuals under 18 years old. If you under 18, please do not attempt to register for the Services or send any Personal Information about yourself to us. If we learn we have collected Personal Information from an individual under 18, we will delete that information as quickly as possible. Please contact us if you believe that an individual under 18 may have provided us Personal Information.

4. Registration; Account Creation

  1. The Services are intended for access and use by individuals who are at least 18 years old, and by agreeing to the Terms you represent (i) that you are at least 18 years old and reside in a state, region, or country in which our Services may legally be provided, (ii) you are the person whose name and other information have been provided for the account that you have or are creating, (iii) that you have not previously been suspended or removed from the Service, and (iv) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. If you are using the Service on behalf of an entity, organization, or company, you represent and warrant that you have the authority to bind such organization to these Terms and you agree to be bound by these Terms on behalf of such organization.
  2. All of the information that you supply to us in creating your User account must be accurate. You are responsible for maintaining the confidentiality of your User account and password. We may reject any user name that violates these Terms, including any user name that uses another person's identity or that violates our community and Review Submission Guidelines which may be changed by us at any time in our sole discretion.
  3. We may use the email you provide to us in your User account profile to provide you with service messages and updates. By becoming a User you are consenting to the receipt of these communications.
  4. You are responsible for authorizing, deauthorizing and administering account access.
  5. You are responsible for maintaining confidentiality of all passwords.
  6. When you purchase product for which an installer can be chosen, if you choose an installer, you acknowledge and agree that we may transmit certain of your Personal Information (including, but not limited to, name, email address, phone number, vehicle information, product ordered, order number, etc.) to the installer (which may be an affiliate of ours or an independent contractor), and that the installer may contact you.

5. Grant of Access

We grant you a personal, limited, non-transferable, non-exclusive right to access and use the Site as set forth in these Terms, provided that (i) your use of the Site as permitted hereunder is solely for your personal, non-commercial use; (ii) you will use the Site only for purposes that are permitted by these Terms; (iii) you will not alter, adapt or otherwise modify any part of the Site other than as may be reasonably necessary to use that part of the Site for its intended purpose; (iv) you will use the Site in accordance with all applicable laws and regulations; (v) you will otherwise comply in full with these Terms; and, (vi) you will not distribute or transfer any portion of the Site on any media or electronically without our prior written approval.

6. Our Services; Availability

  1. We shall use commercially reasonable efforts to provide continuous access to the Site. We do not guarantee that the Site will be accessible at all times. The Site may be unavailable during maintenance periods or during an emergency. In addition to normal maintenance, there may be events that will make the Site inaccessible for a limited amount of time due to unforeseen circumstances. We will not be liable if for any reason all or any part of the Site is unavailable at any time or for any period. We may use service providers or subcontract services, such as, but not limited to, offsite data hosting and storage, to third parties, which may be inside or outside the United States.
  2. We reserve the right to withdraw or amend the Site, and any Services or material we provide on or via the Site, in our sole discretion without notice. From time to time, we may restrict Users access to some parts of the Site, or the entire Site.
  3. To access the Site or some of the resources it offers, you may be asked to provide certain registration details or other information. It is a condition of your use of the Site that all the information you provide on the Site is correct, current, and complete. You agree that all information you provide to register with the Site or otherwise, where applicable, including but not limited to through the use of any interactive features on the Site, is governed by our Privacy Policy, and you consent to all actions we take with respect to your information consistent with our Privacy Policy.
  4. When you choose a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you should not disclose it to any other person or entity. You also acknowledge that your account is personal to you and you should not provide any other person with access to this Site or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security. If you become aware that your password may be compromised, you should immediately change it on your User account page. You also agree to ensure that you exit/log off from your account at the end of each session of use. You should use particular caution when accessing your account from a public or shared computer so that others are not able to view or record your password or other Personal Information.
  5. If any information that you provide, or if we have reasonable grounds to suspect that any information that you provide, is false, inaccurate, outdated, incomplete, or violates the terms of these Terms or any applicable law, then we may suspend or terminate your account. We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of these Terms.
  6. Data uploaded to our Site is backed up periodically, but we are not responsible for storing or retaining data or content and we shall not be liable for any loss, deletion or alteration of any posted content or user data. Users should have a backup copy of their data before uploading. We reserve the right to deactivate any accounts which have not been active for at least six (6) months. We reserve the right to delete data in deactivated accounts.

7. Intellectual Property Rights

  1. The Site and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by us, our licensors or is used with permission, and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws.
  2. Other than as expressly provided herein, no right, title or interest in or to the Site or any content on the Site is granted to you, and all rights not expressly granted are reserved by us. Any use of the Site not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark and other laws.
  3. You may not reproduce, distribute, modify, create derivative works of, publicly display, publicly perform, republish, download, store or transmit any of the material on our Site, except as follows:
    1. Your computer may temporarily store copies of such materials in RAM incidental to your accessing and viewing those materials;
    2. You may store files that are automatically cached by your web browser for display enhancement purposes; and
    3. You may print or download a reasonable number of pages of the Site (or any downloadable content offered in any of the Site pages) for your own use and not for further reproduction, publication or distribution.
  4. You may not modify copies of any materials from the Site, or delete or alter any copyright, trademark or other proprietary rights notices from copies of materials from this Site.
  5. TIRE RACK and our other brands and all related trademarks and service marks, are our trademarks or are used with permission. You may not use such marks without our prior written permission. All other brands on this Site are the trademarks of their respective owners.
  6. We shall own any improvements or modifications you suggest to the Site, our products or Services, and you agree to and do hereby assign to us all your right, title and interest in and to any modifications and improvements automatically upon creation and without the need for further action, consideration, or notice to affect such assignment.

8. Restrictions on Use

You shall not (and shall not allow any third party to): (i) engage in commercial use of the Site or any content on the Site; (ii) reproduce, copy, display, store, perform, re-post, publish, transmit, distribute, sell, offer for sale, license, modify, create derivative works, or otherwise use any portion of the content offered on the Site for other than your own personal, non-commercial use; (iii) remove any copyright, trademark or other proprietary rights notices contained in or on the Site or Service or in or on any content or other material obtained via the Site or the Services; (iv) use any "deep-link", "page-scrape", "robot", "spider" or other automatic device robot, spider, site search/retrieval application, or other automated device, process or means to access, retrieve, scrape or index any portion of the Site or the Services, including, but not limited to, for purposes of constructing or populating a searchable database; (v) collect or harvest any information about other users or members (including usernames and/or email addresses) for any purpose; (vi) reformat or frame any portion of the web pages that are part of the Site or the Services; (vii) create user accounts by automated means or under false, misleading or fraudulent pretenses; (viii) create or transmit unwanted electronic communications such as "spam" to other users or members of the Site or the Services or otherwise interfere with other users' or members' enjoyment of the Site or the Services; (ix) transmit any viruses, worms, defects, Trojan horses or other items of a destructive nature; (x) use the Site or the Services to violate the security of any computer network, crack passwords or security encryption codes, transfer or store illegal material, including any material that may be deemed threatening or obscene; (xi) copy or modify the HTML code used to generate web pages on the Site; (xii) use any device, software or procedure that interferes with the proper working of the Site or the Services, or otherwise attempt to interfere with the proper working of the Site or the Services; (xiii) take any action that imposes, or may impose in our sole discretion, an unreasonable or disproportionately large load on our IT infrastructure (e.g., DDOS attack); (xiv) modify, adapt, translate, or reverse engineer any portion of the Site or the Services; or (xv) use the Site or the Services, intentionally or unintentionally, to violate any applicable international, national, federal, state, provincial, or local law or regulation.

9. User Content

  1. In certain areas of our Site you are able to submit for posting reviews, comments and/or other User Content. "User Content" means the text, and, where permitted, the files, images, photos, videos, sounds, works of authorship and/or other materials and content submitted by you to us via our Site or by other means. You retain copyright and any other rights you already hold in User Content which you submit. By submitting User Content you agree to and do hereby grant us, and our successors and assigns us a perpetual, irrevocable, worldwide, royalty-free, and non-exclusive license to use, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, distribute, sublicense, transmit, and broadcast any User Content which you submit and to provide such User Content to any other User of the Site or Service, or any portion thereof, in any manner or form and in any medium or forum, whether now known or hereafter devised, without notice, payment or attribution of any kind to you or any third party. You agree that this license includes a right for us to make such User Content available to other companies, organizations or individuals with whom us has relationships for the provision of services, and to use such User Content in connection with the provision of those services. You understand that we, in performing the required technical steps to provide the Services to our users, may (i) transmit or distribute your User Content over various public networks and in various media; and (ii) make such changes to your User Content as are necessary to conform and adapt that User Content to the technical requirements of connecting networks, devices, services or media. You agree that this license shall permit us to take these actions. You waive and agree not to assert any moral or similar rights you may have in such User Content. All of the foregoing in this paragraph is as limited by our Privacy Policy.
  2. You agree to abide by our Review Submission Guidelines (as set out at the end of these Terms).
  3. We reserve the right (but has no obligation) to remove, block, edit, move or disable User Content that is objectionable to us for any reason. The decision to remove User Content or other Content at any time is in our sole and final discretion. To the maximum extent permitted by applicable law, we do not assume any responsibility or liability for User Content or for any failure to or delay in removing User Content or other content. You are solely responsible for your User Content and may be held liable for User Content that you post.

10. DMCA Notice

We honor the intellectual property rights of others and asks the same of Users of the Site. We may, in our sole discretion, terminate the accounts or access rights of Users whose actions infringe or otherwise violate the intellectual property rights of others. If you believe that any content on the Site violates these Terms or your intellectual property rights, you can report such violation to us in accordance with the Digital Millennium Copyright Act (17 U.S.C. §512).

  1. It is our policy to respond expeditiously to legitimate claims of copyright and other intellectual property infringement. We will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws. Upon receipt of notices complying or substantially complying with the DMCA, we may act expeditiously to remove or disable access to any material claimed to be infringing or claimed to be the subject of infringing activity and may act expeditiously to remove or disable access to any reference or link to material or activity that is claimed to be infringing. We may terminate access for users of our services who are repeat infringers.
  2. To provide us with notice of an infringement, you must provide a written communication to the attention of "DMCA Notification Dept." at copyright@tirerack.com that sets forth the information specified by the DMCA. Please note that you may be liable for damages (including costs and attorneys'\'' fees) if you materially misrepresent that an activity is infringing your copyright. We will need the following information from you:
    1. A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
    2. Identification of the copyright work claimed to have been infringed or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site;
    3. Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to identify the material;
    4. Information that is reasonably sufficient to permit us to contact the complaining party, such as address, telephone number and, if available, e-mail address;
    5. A statement that the complaining party has a good faith belief that use of the material in a manner complained of is not authorized by the copyright owner, its agent, or the law; and
    6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  3. If we remove or disable access to material in response to an infringement notice, we may make reasonable attempts to contact the owner or administrator of the affected content. If your material has been removed and you feel that your material does not constitute infringement, you may provide us with a counter notification by written communication to the attention of "DMCA Counter Notification Dept." at copyright@tirerack.com that sets forth all of the necessary information required by the DMCA. Please note that you may be liable for damages (including costs and attorneys'' fees) if you materially misrepresent that an activity is not infringing the copyrights of others. If you are uncertain whether an activity constitutes infringement, we recommended seeking advice of an attorney.
  4. We have the right to terminate the User account of any User who repeatedly submits content that violates our policies. Specifically, a repeat offender is a User who has been notified of infringing or violating activity more than twice and/or has had User Content removed from the Site at least twice.

11. Suspension of Service

Suspension.

We may suspend your account and access to the Service, with or without notice, if you violate any provision of these Terms.

The Effects of Account Suspension.

Upon any suspension of your account, all Service associated with your account will be suspended or otherwise made inaccessible until and unless all issues are addressed and resolved by you, to our satisfaction, and within the time frame we specify. During any suspension of your account or any individual Service, you will not be permitted to: (i) add, upgrade, downgrade or modify any of the Service; (ii) request an emergency restoration; (iii) transfer any Service; (iv) access any of the websites, email accounts or Content associated with the suspended Service or account. You agree to hold us harmless from and against any and all claims, losses or damages arising from any suspension of your account or the individual Service.

12. Term; Termination

Term.

The terms of this Agreement shall commence upon your use of the Site or Service or creation of a User account, and shall continue until terminated.

Termination.

  1. We reserve the right to stop providing the Service to you or access to the Site at any time for any reason and without prior notice.
  2. We reserve the right, at our sole discretion, to close your User account, without prior notice, for any one or all of the following: (i) if you, whether intentionally or unintentionally, breach any section of these Terms; (ii) if we receive notice that you or your company will be or is subject to insolvency proceedings; (iii) if, in our judgment, your use of the Site has the potential to pose any harm to us, any of our affiliates, partners, service providers or customers; (iv) if you fail to cure any suspension of your User account to our satisfaction, and within the time frame we specify. In the event of any such closure of your User account, you will not be eligible for a refund of any fees and you may be prohibited from reopening an account, opening a new account or accessing any existing account. You agree that we shall not be liable, in any way, for any damages or loss caused by closure of your User account pursuant to this section of these Terms. You agree to hold us harmless from and against any and all claims, losses and damages arising from any closure or suspension of your User account.
  3. In the event of any closure of your account pursuant to (ii) above, you will not be eligible for a refund of any fees and you may be prohibited from reopening your User account, opening a new account or accessing any existing account. You agree that we shall not be liable, in any way, for any closure of your User account pursuant to this section of the Terms.
  4. Upon any closure of your User account: (i) this Agreement and all rights granted under this Agreement shall cease immediately (except those expressly surviving or which by their nature would survive); (ii) all access to the Service and your User account will cease immediately; (iii) and all of your data and User Content will (at our option) be deleted from our servers and backup systems and we may not have or keep backup of the data and User Content. You agree to hold us harmless from and against any and all claims, losses or damages arising from any closure of your User account. Any and all sections in this Agreement which impose obligations continuing in their nature shall survive closure or otherwise continue to remain in full force and effect even after account closure. You are not permitted to access your User account or any of the Service formerly associated with your account following any closure.

13. Disclaimers

THIS SITE AND THE MATERIALS, INFORMATION, SERVICES, AND PRODUCTS PRESENTED IN THE SITE, INCLUDING, WITHOUT LIMITATION, TEXT, GRAPHICS, AND LINKS, ARE PROVIDED "AS IS" AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OTHER THAN AS EXPRESSLY STATED HEREIN. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, FREEDOM FROM COMPUTER VIRUS, AND WARRANTIES ARISING FROM COURSE OF DEALING, OR COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT REPRESENT OR WARRANT THAT THE FUNCTIONS CONTAINED IN THE SITE, SOFTWARE, OR RELATED TO THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SOFTWARE, OR RELATED TO THE SERVICES OR THE SERVER THAT ENABLES THE SERVICES TO BE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. WE DO NOT MAKE ANY WARRANTIES OR REPRESENTATIONS REGARDING THE USE OF THE MATERIALS IN THIS SITE IN TERMS OF THEIR COMPLETENESS, CORRECTNESS, ACCURACY, ADEQUACY, USEFULNESS, TIMELINESS, RELIABILITY OR OTHERWISE. DEPENDING ON THE STATE IN WHICH YOU RESIDED, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. WE ARE NOT RESPONSIBLE FOR THE ACTIONS OR INFORMATION OF THIRD PARTIES, AND YOU RELEASE US FROM ANY CLAIMS AND DAMAGES, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ANY CLAIM YOU HAVE AGAINST ANY SUCH THIRD PARTIES.

14. Limitation of Liability

  1. THE SITE AND SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE SHALL NOT BE LIABLE FOR ANY DAMAGES YOU OR ANY OTHER PERSON MAY SUFFER. NOTWITHSTANDING THE FOREGOING, YOU AGREE THAT IN NO EVENT WILL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE OR OTHER CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, LOST PROFITS AND DAMAGES RELATED TO CORRUPTION OR DELETION OF THE SERVICES) ARISING OUT OF OR IN RELATION TO THIS AGREEMENT OR YOUR USE OR INABILITY TO USE THE SITE OR THE SERVICE (INCLUDING, BUT NOT LIMITED TO, INOPERABILITY OF OUR OR OUR CONTRACTORS' SERVERS), REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF, KNEW, OR SHOULD HAVE KNOW OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. THIS INCLUDES, BUT IS NOT LIMITED TO, ANY LOSS THAT MAY OCCUR DUE TO ANY LOSS OF THE USE OF THE SITE OR THE SERVICE, ACCESS DELAYS OR ACCESS INTERRUPTIONS TO THE SERVICES, THE NON-DELIVERY OR MIS-DELIVERY OF DATA BETWEEN YOU AND US, EVENTS BEYOND OUR REASONABLE CONTROL, THE NON-RECOGNITION OF OUR HOSTING SERVERS, THE PROTECTION OR PRIVACY OF ELECTRONIC MAIL OR OTHER INFORMATION TRANSFERRED THROUGH THE INTERNET OR ANY OTHER NETWORK PROVIDER OR SERVICE ITS CUSTOMERS MAY UTILIZE, OR THE APPLICATION OF ANY POLICY SET FORTH HEREIN.
  2. YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE WITH US, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS ARISING OUT OF OR RELATING TO THE SITE, THE SERVICE, OR ANY USER CONTENT IS TO STOP USING THE SITE AND SERVICES, AND TO CANCEL YOUR USER ACCOUNT. YOU ACKNOWLEDGE AND AGREE THAT WE, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS ARE NOT LIABLE FOR ANY ACT OR FAILURE TO ACT BY THEM OR ANY OTHER PERSON REGARDING CONDUCT, COMMUNICATION OR CONTENT ON THE SERVICES. IN NO CASE SHALL THE LIABILITY OF US, ITS OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS TO YOU EXCEED THE GREATER OF THE AMOUNT THAT YOU PAID TO US FOR THE SERVICE OR ONE HUNDRED DOLLARS (US$100).

Exceptions by Some States on Non-Allowance of Exclusion.

BECAUSE SOME STATES, COUNTRIES, OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY FOR CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, PUNITIVE OR INCIDENTAL DAMAGES, IN SUCH STATES OR JURISDICTIONS, OUR LIABILITY, OUR OWNERS, SUBSIDIARIES, DIRECTORS, EMPLOYEES, ATTORNEYS, AFFILIATES, AGENTS, REPRESENTATIVES, AND LICENSORS SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.

IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: 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.

IF YOU ARE A VISITOR TO THE SITE FROM NEW JERSEY, CERTAIN WARRANTIES AND/OR LIMITATIONS OF LIABILITY, INCLUDING THE LIMITATION OF LIABILITY BASED ON OUR NEGLIGENCE, GROSS NEGLIGENCE, OR INTENTIONAL CONDUCT MAY NOT APPLY TO YOU OR MAY BE UNENFORCEABLE UNDER NEW JERSEY LAW. SUCH PROVISIONS ARE ENFORCEABLE ONLY TO THE FULL EXTENT PERMITTED BY NEW JERSEY LAW.

15. Indemnification

By utilizing the Site or the Services you agree to indemnify, defend and hold us and our officers, directors, employees, agents, and affiliates harmless from and against any and all liability, losses, costs, and expenses (including attorneys' fees) incurred by us through your use of the Site or the Services or your posting or transmission of User Content in violation of these Terms (including, but not limited to, negligent or wrongful conduct, infringement of any third party's intellectual property, confidentiality, privacy or publicity rights). You also agree to take sole responsibility for any royalties, fees or other monies owed to any person or entity by reason of any content you post or transmit through the Site or the Service we provide. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in such case, you agree to cooperate with our defense of such claim. This Section shall survive any expiration or termination of the Terms.

16. Cooperation with Law Enforcement and Government Agencies; Required Disclosures

  1. You acknowledge that we have the right to investigate and prosecute violations of these Terms, including intellectual property, publicity and privacy rights infringement and Site security issues, to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Site or the Services, but we have the right to do so for the purpose of operating the Site, to ensure your compliance with these Terms or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental or regulatory body.
  2. You understand and agree that we may disclose your Personal Information if required to do so by law, court order, legal process, or subpoena, including to respond to any government or regulatory request (after, if permitted, giving reasonable notice to you and using commercially reasonable efforts to provide you with the opportunity to seek a protective order or the equivalent (at your expense), or if we believe that such action is necessary to (a) conform to the law, comply with legal process served on us or our affiliates or partners, or investigate, prevent, or take action regarding suspected or actual illegal activities; (b) to enforce these Terms (including for billing and collection purposes), take precautions against liability, to investigate and defend ourselves against any third-party claims or allegations, to assist government enforcement agencies, or to protect the security or integrity of our Site; or, (c) to exercise or protect the rights, property, or the safety of us, our users or others.

17. Disputes; Resolution By Binding Arbitration

DISPUTE RESOLUTION BY BINDING ARBITRATION

PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.

WE AGREE THAT ANY DISPUTE THAT IS NOT RESOLVED BY AN INFORMAL DISPUTE RESOLUTION CONFERENCE (AS DEFINED AND DESCRIBED BELOW) SHALL BE RESOLVED IN CONFIDENTIAL BINDING ARBITRATION CONDUCTED BEFORE ONE ARBITRATOR FROM THE AMERICAN ARBITRATION ASSOCIATION ("AAA") PURSUANT TO THE AAA ARBITRATION RULES, RATHER THAN IN A COURT, AS DESCRIBED HEREIN.

YOU ACKNOWLEDGE THAT YOU ARE VOLUNTARILY AND KNOWINGLY FORFEITING YOUR RIGHT TO A TRIAL BY JURY AND TO OTHERWISE PROCEED IN A LAWSUIT IN STATE OR FEDERAL COURT, EXCEPT AS EXPRESSLY PROVIDED HEREIN.

  1. Definitions

    2. For purposes of this Arbitration Agreement, the following terms mean:

    1. "You" and "your" mean a Customer.
    2. "Customer" means an individual that that browsed or accessed the Website, created an account with Tire Rack, purchased goods or services from Tire Rack, enrolled or registered with the Website, and/or are accessing or using a Service.
    3. "Tire Rack" means Tire Rack, Inc., its predecessors in interest, successors and assigns, affiliates, agents, employees, and any of its third party service providers who Tire Rack uses in connection with the provision of the Services to you.
    4. "We" "us," "our," and the "parties" mean Customer and Tire Rack.
    5. "Website" means and refers to www.tirerack.com
    6. "Services" means any product or service provided under this Agreement or through the Website.
    7. "Dispute" means any legal claim or controversy arising out of, or relating to, this Agreement or the use of our Services or Website including, but not limited to, claims related to auto renewal, billing, or service, as well as any claim or controversy regarding the applicability, enforceability or validity of any provision of this Agreement. For purposes of this Arbitration Agreement, the term "Dispute" includes claims or controversies that arose or involve facts occurring before the existence of this or any prior versions of this Agreement, claims that are currently the subject of purported class action litigation in which you are not a member of a certified class, as well as claims and controversies that may arise after the termination of this Agreement.
    8. "Mass Arbitration" means 25 or more arbitration demands that: (i) are filed within 180 days of each other, (ii) allege similar or identical claims or causes of action, and (iii) either (a) the parties to those arbitration demands seek to simultaneously or collectively administer and/or arbitrate together, or (b) are filed by the same counsel or in coordination with each other.
  2. Notice of Dispute

    3. Before the parties may commence arbitration of a dispute, we must provide a written a notice of dispute ("Notice of Dispute") as follows:

    1. Customer Disputes.

      2. For a dispute initiated by you, the Notice of Dispute must include the following information: Your name, residence address, username (if applicable) and email address associated with your account (if applicable), a detailed description of the dispute, the specific relief you seek, and the grounds therefor. The Notice of Dispute must be mailed to Tire Rack by certified mail return receipt requested to General Counsel, Tire Tack, 7101 Vorden Pkwy, South Bend, IN 46628, ATTN: Dispute Notice. A Notice of Dispute shall be individualized such that it may only pertain to you and you alone, and may not be combined with a Notice of Dispute by any other Customer.

    2. Tire Rack Disputes.

      3. For a dispute initiated by Tire Rack, the Notice of Dispute must include the following information: Your name, a detailed description of the dispute, the specific relief sought, and the grounds therefor. The Notice of Dispute must be mailed to you by certified mail return receipt requested to the mailing address on file and, if available, also emailed to your e-mail address associated with your account. A Notice of Dispute shall be individualized such that it may only pertain to you and you alone, and may not be combined with a Notice of Dispute regarding any other Customer.

  3. Pre-Arbitration Informal Dispute Resolution Conference Requirements

    4. Before we may commence arbitration of a dispute, we agree to meet and confer by telephone or by videoconference in a good faith effort to resolve informally the dispute (the "Informal Dispute Resolution Conference"). If you are represented by counsel, your counsel may participate in the Informal Dispute Resolution Conference, but you must also personally participate in the Informal Dispute Resolution Conference.

    The party initiating the dispute agrees to provide a notice of intent to initiate the Informal Dispute Resolution Conference ("Notice of Conference") as follows:

    1. Customer Disputes.

      2. For a dispute initiated by you, the Notice of Conference must include the following information: Your name, telephone number, mailing address, e-mail address associated with your account (if you have one), the name, telephone number, mailing address, and e-mail address of your counsel (if any), and whether you intend to have the conference by telephone or by videoconference. The Notice of Conference must be mailed to Tire Rack by certified mail return receipt requested to General Counsel, Tire Tack, 7101 Vorden Pkwy, South Bend, IN 46628, ATTN: Notice of Conference. A Notice of Conference shall be individualized such that it may only pertain to you and you alone, and may not be combined with a Notice of Conference by any other Customer. A Customer may, but is not required to, combine in one mailing a Notice of Dispute and a Notice of Conference.

    2. Tire Rack Disputes.

      3. For a dispute initiated by Tire Rack, the Notice of Conference must include the following information: Your name, a detailed description of the dispute, the specific relief sought, and whether the conference shall proceed by telephone or by videoconference. The Notice of Conference must be mailed to you by certified mail return receipt requested to the mailing address on file and, if available, also emailed to your e-mail address associated with your account. A Notice of Conference shall be individualized such that it may only pertain to you and you alone, and may not be combined with a Notice of Conference regarding any other Customer. Tire Rack may, but is not required to, combine in one mailing and, if available, e-mail, a Notice of Dispute and a Notice of Conference.

    Whether initiated by you or Tire Rack, the Informal Dispute Resolution Conference shall occur within 45 days after the other party receives the Notice of Conference, unless an extension is mutually agreed upon by the parties. Unless all parties agree in writing, the Informal Dispute Resolution Conference shall be individualized such that it may only pertain to you and you alone, and may not be combined with an Informal Dispute Resolution Conference regarding any other Customer. This is so, even if the same law firm or group of law firms represents multiple Customers with similar disputes.

  4. Arbitration
    1. Customer Disputes

      2. The sending of a Notice of Dispute and the completion of an Informal Dispute Resolution Conference are conditions precedent to our respective right to commence arbitration. Accordingly, if, but only if, we are unable to resolve a dispute within 30 days after the Informal Dispute Resolution Conference is completed, we may commence arbitration pursuant to the procedures in this Agreement. No arbitration may commence or proceed until the requirements set forth in Sections B and C (above) are fully satisfied.

    2. Fees

      3. After Tire Rack receives notice that you have commenced arbitration, Tire Rack will promptly reimburse you for your payment of the filing fee. If you are unable to pay this fee, Tire Rack will pay it directly upon receiving a written request from you. Except as otherwise provided for herein, Tire Rack will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the terms of this Agreement.

    3. Rules of Arbitration
      1. The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association, as modified by this Agreement, and will be administered by the AAA. If the AAA is unavailable or refuses to arbitrate the parties' dispute for any reason, the arbitration shall be administered and conducted by a widelyrecognized arbitration organization that is mutually agreeable to the parties, but neither party shall unreasonably withhold their consent. If the parties cannot agree to a mutually agreeable arbitration organization, one shall be appointed pursuant to Section 5 of the Federal Arbitration Act. In all events, the AAA Rules shall govern the parties' dispute. The AAA Rules are available online at www.adr.org, or by calling the AAA at 1-800-778-7879. The AAA Rules may change from time to time, and you should review them periodically.
      2. The arbitrator shall be bound by the terms of this Agreement and shall follow the applicable law. In this regard, the arbitrator shall not have the power to commit errors of law or legal reasoning, and any award rendered by the arbitrator that employs an error of law or legal reasoning may be vacated or corrected by a court of competent jurisdiction for any such error.
      3. Unless the parties agree in writing, any arbitration hearings will take place in the county (or parish) of your billing address.
      4. At either party's election, arbitration of any dispute shall proceed pursuant to the Desk Arbitration rules of the AAA, unless both parties are represented by counsel.
      5. Prior to the appointment of a merits arbitrator, either party may request the appointment of a process arbitrator to determine: (i) whether the conditions precedent set forth in Section D(1) hereof have been satisfied; (ii) whether AAA's filing requirements have been satisfied; (iii) the applicable arbitration agreement; (iv) the applicable AAA rules that apply; (v) the allocation of payment advances on administrative fees, arbitrator compensation, and/or expenses; (vi) any other issue agreed to be addressed by the process arbitrator; and (vii) any other issue regarding the administration of the arbitration.
      6. If the process arbitrator makes an initial determination that the dispute is frivolous or brought in bad faith, it shall allocate all AAA and arbitrator fees and expenses to the party who initiated the arbitration. If the merits arbitrator subsequently determines that the claims were not frivolous, Tire Rack will reimburse any AAA filing, administration and arbitrator fees that were paid by you.
      7. If the merits arbitrator finds that a dispute is frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the prevailing party shall recover all fees paid to AAA and, at the arbitrator's discretion, an award of reasonable attorney's fees and costs.
    4. Class Action Waiver:

      5. WE AGREE THAT EACH MAY BRING DISPUTES AGAINST THE OTHER ONLY IN OUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both all parties agree in writing otherwise (including, but not limited to, as set forth in the procedures below regarding Mass Arbitration), the arbitrator may not consolidate more than one Customer's dispute, and may not otherwise preside over any form of a representative or class proceeding.

    5. Injunctive Relief:

      6. The arbitrator may award 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 dispute.

    6. Stay of Non-Arbitrable Claims:

      7. Any claims not subject to individual arbitration under applicable law shall be stayed in a court of competent jurisdiction pending completion of the individual arbitration.

  5. Mass Arbitration

    6. WE AGREE THAT IN THE EVENT THAT MASS ARBITRATION IS ATTEMPTED OR SOUGHT, SUCH ARBITRATION SHALL BE ADMINISTERED PURSUANT TO THE FOLLOWING RULES.

    1. In the event that Mass Arbitration is attempted or sought involving 250 arbitration demands or less, we agree the arbitration provider shall: (i) group the arbitration demands into batches of no less than 25 arbitration demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of filing and administrative fees and a single arbitrator assigned per group or batch.
    2. In the event that Mass Arbitration is attempted or sought involving over 250 arbitration demands, we agree that the arbitration provider shall: (i) group the arbitration demands into batches of no less than 250 arbitration demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of filing and administrative fees and a single arbitrator assigned per group or batch.
    3. All Mass Arbitration shall be subject to all other substantive and procedural terms contained within this Agreement.
    4. We agree to cooperate in good faith with the arbitration provider to implement the aforementioned protocol for Mass Arbitration with regard to resolution, fees, and administration.
    5. If any part of this Paragraph E related to Mass Arbitration is found to be unenforceable, the unenforceable portion shall be stricken, and the remainder of this Paragraph E and this Agreement shall be enforced to the maximum extent permitted by law.
    6. If the arbitration provider is unwilling or unable to follow the procedures set forth in this Paragraph E with regard to Mass Arbitration, the parties may attempt to retain a different, mutually agreeable and widely-recognized arbitration organization that will agree to follow the procedures set forth in this Paragraph E. In the event that the parties are unable to retain or agree to such an alternative arbitration provider, the alternative dispute resolution provisions set forth in this Agreement shall not apply to those disputes within the Mass Arbitration.
  6. Delegation Clause

    7. All issues are for the arbitrator to decide including, but not limited to, (i) all issues regarding arbitrability, (ii) the scope and enforceability of this arbitration provision as well as the Agreement's other terms and conditions, (iii) whether you or Tire Rack, through litigation conduct or otherwise, waived the right to arbitrate, (iv) whether all or any part of the arbitration provision or Agreement is unenforceable, void or voidable including, but not limited to, on grounds of unconscionability, (v) any dispute regarding the payment of arbitration-related fees, (vi) any dispute related to the Notice of Dispute, Notice of Conference and/or Informal Dispute Resolution Conference, and (vii) any dispute related to Mass Arbitration (defined below).

    Pursuant to this agreement, the arbitrator has been delegated with, and possesses, exclusive authority to resolve all of the above-enumerated types of disputes. However if putative class or representative claims are initially brought by either party in a court of law, and a motion to compel arbitration is brought by any party, the court shall have the power to decide whether this agreement permits class or representative proceedings.

  7. Right To Elect To Proceed In Small Claims Court

    8. In lieu of arbitration, either party may elect to proceed in Small Claims Court for any dispute that falls within the jurisdictional limits of that court. In the event such election is made, the party that seeks to initiate arbitration shall commence their action in Small Claims Court and shall be responsible for the payment of any applicable filing fees.

  8. Other Provisions
    1. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of this Agreement.
    2. We agree that, by entering into this Agreement, we are each waiving the right to a trial by jury or to participate in a class action to the maximum extent permitted by law.

SUMMARY:

  1. MOST CUSTOMER CONCERNS CAN BE RESOLVED QUICKLY AND TO THE CUSTOMER'S SATISFACTION BY CALLING TIRE RACK'S CUSTOMER CARE DEPARTMENT AT 1-888-981-3953. IN THE UNLIKELY EVENT THAT TIRE RACK'S CUSTOMER CARE DEPARTMENT IS UNABLE TO RESOLVE A COMPLAINT YOU MAY HAVE REGARDING A SERVICE OR SITE TO YOUR SATISFACTION (OR IF TIRE RACK HAS NOT BEEN ABLE TO RESOLVE A DISPUTE IT HAS WITH YOU AFTER ATTEMPTING TO DO SO INFORMALLY), WE EACH AGREE TO RESOLVE THOSE DISPUTES THROUGH BINDING ARBITRATION OR SMALL CLAIMS COURT INSTEAD OF IN COURTS OF GENERAL JURISDICTION TO THE FULLEST EXTENT PERMITTED BY LAW. ARBITRATION IS MORE INFORMAL THAN A LAWSUIT IN COURT. ARBITRATION USES A NEUTRAL ARBITRATOR INSTEAD OF A JUDGE OR JURY, ALLOWS FOR MORE LIMITED DISCOVERY THAN IN COURT, AND IS SUBJECT TO VERY LIMITED REVIEW BY COURTS. ARBITRATORS CAN AWARD THE SAME DAMAGES AND RELIEF THAT A COURT CAN AWARD. ANY ARBITRATION UNDER THIS AGREEMENT WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED. TIRE RACK WILL PAY ALL COSTS OF ARBITRATION, NO MATTER WHO WINS, SO LONG AS YOUR CLAIM IS NOT FRIVOLOUS. HOWEVER, IN ARBITRATION, BOTH YOU AND TIRE RACK WILL BE ENTITLED TO RECOVER ATTORNEYS' FEES FROM THE OTHER PARTY TO THE SAME EXTENT AS YOU WOULD BE ALLOWED IN COURT.(tel:+1-888-981- 3953)

Arbitration Agreement

  1. The terms "you," "your," "we," "us," "Tire Rack," "Services," and "Site" have the same meaning as those terms are defined in the Overview and Acceptance of Terms section above, and those definitions are hereby incorporated into this Arbitration Agreement.

    Tire Rack and you agree to arbitrate all disputes and claims between us that arise out of or relate to this Agreement, which includes any Information you obtain through the Site or Services, to the maximum extent permitted by law, except any disputes or claims which under governing law are not subject to arbitration. For purposes of this Arbitration Agreement, the term "Information" means any personal, financial or other information delivered to you as part of, or in conjunction with, the Services or Site.

    This agreement to arbitrate is intended to be broadly interpreted and to make all disputes and claims between us relating to, or arising out of, this Agreement, any Service and/or Site, including any Information you obtained through the Services or Site, subject to arbitration to the fullest extent permitted by law. The agreement to arbitrate includes, but is not limited to, claims brought by you against Tire Rack, whether based in contract, tort, statute, for fraud, misrepresentation or any other legal theory; claims arising out of or relating to any aspect of the relationship between us arising out of any Service or Site, claims that arose before this or any prior Agreement (including, but not limited to, claims relating to advertising); claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and claims that may arise after the termination of this Agreement.

    Notwithstanding the foregoing, either party may bring an individual action in small claims court. You agree that, by entering into this Agreement, you and Tire Rack are each waiving the right to a trial by jury or to participate in a class action to the maximum extent permitted by law. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this arbitration provision. This arbitration provision shall survive termination of this Agreement.

  2. A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Tire Rack should be addressed to: General Counsel, Tire Tack, 7101 Vorden Pkwy, South Bend, IN 46628 ("Notice Address"). The Notice must describe the nature and basis of the claim or dispute and set forth the specific relief you seek from Tire Rack ("Demand"). If Tire Rack and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or Tire Rack may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Tire Rack or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Tire Rack is entitled. You may obtain more information about arbitration from www.adr.org.

  3. After Tire Rack receives notice at the Notice Address that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee. (The filing fee currently is $200 for claims under $10,000, but is subject to change by the arbitration provider. If you are unable to pay this fee, Tire Rack will pay it directly upon receiving a written request at the Notice Address.) The arbitration will be governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association ("AAA"), as modified by this Agreement, and will be administered by the AAA. If the AAA is unavailable or refuses to arbitrate the parties' dispute for any reason, the arbitration shall be administered and conducted by a widely-recognized arbitration organization that is mutually agreeable to the parties, but neither party shall unreasonably withhold their consent. If the parties cannot agree to a mutually agreeable arbitration organization, one shall be appointed pursuant to Section 5 of the Federal Arbitration Act. In all events, the AAA Rules shall govern the parties' dispute. The AAA Rules are available online at www.adr.org, by calling the AAA at 1-800-778-7879 (tel:+1-800-778-7879), or by writing to the Notice Address. The AAA Rules may change from time to time, and you should review them periodically.

    All issues are for the arbitrator to decide including, but not limited to, (i) all issues regarding arbitrability, (ii) the scope and enforceability of this arbitration provision as well as the Agreement's other terms and conditions, (iii) whether you or Tire Rack, through litigation conduct or otherwise, waived the right to arbitrate, (iv) whether all or any part of this arbitration provision or Agreement is unenforceable, void or voidable including, but not limited to, on grounds of unconscionability, (v) any dispute regarding the payment of arbitration-related fees, (vi) any dispute related to the dispute Notice provisions in subparagraph (b) (above), and (vii) any dispute related to Mass Arbitration (defined below). Pursuant to this agreement, the arbitrator has been delegated with, and possesses, exclusive authority to resolve all of the above-enumerated types of disputes. However if putative class or representative claims are initially brought by either party in a court of law, and a motion to compel arbitration is brought by any party, then the court shall have the power to decide whether this agreement permits class or representative proceedings. The arbitrator shall be bound by the terms of this Agreement and shall follow the applicable law. In this regard, the arbitrator shall not have the power to commit errors of law or legal reasoning, and any award rendered by the arbitrator that employs an error of law or legal reasoning may be vacated or corrected by a court of competent jurisdiction for any such error. Unless Tire Rack and you agree otherwise, any arbitration hearings will take place in the county (or parish) of your billing address. If your claim is for $10,000 or less, we agree that you may choose whether the final arbitration hearing will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Except as otherwise provided for herein, Tire Rack will pay all AAA filing, administration and arbitrator fees for any arbitration initiated in accordance with the notice requirements above. If, however, the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all such fees will be governed by the AAA Rules. In such case, you agree to reimburse Tire Rack for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules.

  4. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding or in the final award, pursuant to applicable law and the AAA Rules.
  5. Discovery and/or the exchange of non-privileged information relevant to the dispute will be governed by the AAA Rules.
  6. YOU AND TIRE RACK AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and Tire Rack agree otherwise (including, but not limited to, as set forth in the procedures in subsection (g) below), the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitrator may award 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 this specific subparagraph (f) is found to be unenforceable in its entirety, then the entirety of this arbitration provision shall be null and void. However, if only a portion of this subparagraph (f) is found to be unenforceable, then the unenforceable portion of the provision shall be stricken, and the remainder of subparagraph (f) enforced. Any claims not subject to individual arbitration under applicable law shall be stayed in a court of competent jurisdiction pending completion of the individual arbitration.
  7. You and Tire Rack agree that in the event mass arbitration is attempted or sought, such arbitration shall be administered pursuant to the following rules
    1. For purposes of this Agreement, "Mass Arbitration" means 25 or more arbitration demands that: (i) are filed within 180 days of each other, (ii) allege similar or identical claims or causes of action, and (iii) either (a) the parties to those arbitration demands seek to simultaneously or collectively administer and/or arbitrate together, or (b) are filed by the same counsel or in coordination with each other.
    2. In the event that Mass Arbitration is attempted or sought involving 250 arbitration demands or less, you and Tire Rack agree the arbitration provider shall: (i) group the arbitration demands into batches of no less than 25 arbitration demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of fi ling and administrative fees and a single arbitrator assigned per group or batch. In the event that Mass Arbitration is attempted or sought involving over 250 arbitration demands, you and Tire Rack agree that the arbitration provider shall: (i) group the arbitration demands into batches of no less than 250 arbitration demands per group; and (ii) provide for resolution of each group or batch as a single arbitration with one set of filing and administrative fees and a single arbitrator assigned per group or batch. All Mass Arbitration shall be subject to all other substantive and procedural terms contained within this Agreement.
    3. You and Tire Rack agree to cooperate in good faith with the arbitration provider to implement the aforementioned protocol for Mass Arbitration with regard to resolution, fees, and administration.
    4. If any part of this paragraph (g) is found to be unenforceable, the unenforceable portion shall be stricken, and the remainder of this paragraph (g) and this agreement shall be enforced to the maximum extent permitted by law.
    5. If the arbitration provider is unwilling or unable to follow the procedures set forth in this paragraph (g) with regard to Mass Arbitration, the parties may attempt to retain a different, mutually agreeable and widely-recognized arbitration organization that will agree to follow the procedures set forth in this paragraph (g). In the event that the parties are unable to retain or agree to such an alternative arbitration provider, the alternative dispute resolution provisions set forth in this Agreement shall not apply to those demands within the Mass Arbitration.

18. Governing Law, Jurisdiction, Venue

These Terms will be governed by the laws of the State of Indiana without regard to its conflict of laws provisions. We and you agree to submit to the exclusive jurisdiction and venue of the courts located within St. Joseph County, Indiana for entering any arbitrator's decision or award. Notwithstanding the foregoing sentence, we and you will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

19. Location of Operation

Our Site is operated in the United States of America, and we make no representation that content provided is applicable or appropriate for use in other locations. We make no claims that the Site or any of its content is accessible or appropriate outside of the United States. Access to the Site may not be legal by certain persons or in certain countries. If you access the Site from outside the United States, you do so on your own initiative and are responsible for compliance with local laws. Your use of the Site does not subject us to judicial process in or to the jurisdiction of courts or other tribunals in your jurisdiction or location

20. Communications

  1. You consent to receiving and hereby request to receive communications, which may include phone calls or SMS text messages, from or on behalf of Tire Rack, including but not limited to recurring communications relating to the Services, as well as recurring advertising and marketing communications. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or prerecorded messages sent by or on behalf of Tire Rack. Standard message and data rates may apply. You certify, warrant, and represent that you are the subscriber or non-subscriber customary user of the telephone number you provide Tire Rack, and further certify, warrant, and represent that any other subscribers or customary users of that telephone number have authorized you to consent on their behalf to receive messages, including but not limited autodialed and/or prerecorded messages. Your agreement to receive these messages is not a condition of purchase or required to receive the Services.
  2. If you do not wish to receive phone calls or SMS text messages, you may opt out of such messages by updating your communication preferences in your membership profile, or by replying "STOP" from the mobile device receiving the messages, or to 60484 in the United States or text STOP to 84732 in Canada. You understand and agree that, in response to any such "STOP" message, you will receive a single SMS text message indicating that you will no longer receive any SMS text messages from or on behalf of Tire Rack.
  3. If you prefer not to receive emails from us about offers and promotions, please unsubscribe via the unsubscribe link in an email, or Contact Us (ontact@tirerack.com). Alternatively, you may opt-out of commercial email by updating your communication preferences in your membership profile. We will endeavor to comply with your request as soon as reasonably practicable. Please note that if you opt-out as described above, we will not be able to remove personal information about you from the databases of third parties with which we have already disclosed personal information as of the date that we implement your optout request. If you wish to cease receiving marketing-related e-mails from third parties, please contact such third parties directly or utilize any opt-out mechanisms set forth in their respective privacy policies or marketing-related emails.
  4. For additional information, text HELP to 60484 in the United States or text HELP to 84732 in Canada, or email customer care or call (888) 981-3953.

Communications Specific to Order-Related Updates:

  1. If you agree to receive order-related updates from Tire Rack, you will receive text messages when, for example, your order is received, if there are any order-related concerns regarding your payment method, when your order is shipped, delivered, or if an exception or delay is experienced. If you chose to ship your order to one of our independent Recommended Installers, you will receive information about your installer, as well. You certify, warrant, and represent that you are the subscriber or non-subscriber customary user of the telephone number you provide Tire Rack, and further certify, warrant, and represent that any other subscribers or customary users of that telephone number have authorized you to consent on their behalf to receive messages, including but not limited autodialed and/or prerecorded messages. Your agreement to receive these messages is not a condition of purchase or required to receive the Services.
  2. You will also need to confirm your subscription by replying YES to the subscription confirmation message that Tire Rack will send you upon signing up for these alerts.
  3. If you did not agree to receive order-related updates at the time of purchase, you may opt to receive order-related alerts by updating your communication preferences in your membership profile. Message frequency may vary.
  4. You understand and agree that you may receive communications generated by automatic telephone dialing systems and/or prerecorded messages sent by or on behalf of Tire Rack.

  5. To stop receiving order-related alerts, you may opt out of such messages by updating your communication preferences in your membership profile, or by replying "STOP" from the mobile device receiving the messages, or to 60484 in the United States or text STOP to 84732 in Canada, or:

    You have successfully unsubscribed. We had trouble updating, please try again later.

    You understand and agree that, in response to any such "STOP" message, you will receive a single SMS text message indicating that you will no longer receive any SMS text messages from or on behalf of Tire Rack.

  6. Supported Carriers: The following carriers support communications, which may include phone calls or SMS text messages, from or on behalf of Tire Rack—AT&T, Sprint, *T-Mobile®, Verizon Wireless, Boost, Cricket, MetroPCS, U.S. Cellular, Virgin Mobile, ACS Wireless, Appalachian Wireless, Bluegrass Cellular, Breakaway Wireless, Cabelvision (Optimum Mobile), Carolina West Wireless, Cellcom, Cellular One of East Central Illinois, Centennial Wireless, Chariton Valley Cellular, Chat Mobility (Hawkeye), Cincinnati Bell Wireless, Coral Wireless, Cox Mobility, Cross/ Sprocket, C-Spire Wireless (formerly Cellsouth), CTC Telecom, DTC Wireless (Advantage Cellular), Duet IP (AKA Max/Benton/Albany), Element Mobile, Epic Touch, GCI Communications, Golden State, Illinois Valley Cellular, Immix (Keystone Wireless/ PC Management), Inland Cellular, iWireless, Leaco, Mobi PCS, Mosaic, MTPCS/ Cellular One (Cellone Nation), Nemont, Nex-Tech Wireless, nTelos, NW Missouri Cellular (Hawkeye), Panhandle Telecommunications, Peoples Wireless, Pioneer, Pine Cellular, Plateau, Revol, Rina - Custer, Rina - All West, Rina - Cambridge Telecom Coop, Rina - Eagle Valley Comm, Rina - Farmers Mutual Telephone Co, Rina - Nucla Nutria Telephone Co, Rina - Silver Star, Rina - Syringa, Rina - UBET, Rina - Manti, Rural Cellular Corporation, SI Wireless, Simmetry, SouthernLINC, SRT, Strata Networks, Thumb Cellular, Union Wireless, United, Viaero Wireless, West Central Wireless.
    1. *T-Mobile is not liable for delayed or undelivered messages.

21. General

These Terms will be governed by the laws of the State of Indiana without regard to its conflict of laws provisions. We and you agree to submit to the exclusive jurisdiction and venue of the courts located within St. Joseph County, Indiana for entering any arbitrator's decision or award. Notwithstanding the foregoing sentence, we and you will still be allowed to apply for injunctive remedies (or an equivalent type of urgent legal relief) in any jurisdiction.

Entire Agreement.

These Terms, including, but not limited to, the Privacy Policy (and updates to the foregoing) and any other terms agreed to in writing by the parties or by way of your use of the Site or the Services shall constitute the entire and exclusive understanding and agreement between you and us regarding this subject matter, and shall supersede any and all prior or contemporaneous representations or understandings relating to this subject matter. In the event that any part of these Terms is held to be invalid or unenforceable, the unenforceable part shall be given effect to the greatest extent possible and the remaining parts will remain in full force and effect. Upon termination of these Terms, any provision which, by its nature or express terms should survive, will survive such termination or expiration. The failure of us to exercise or enforce any right or provision of these Terms, including any failure to act with respect to a breach, will not constitute a waiver of such right or our right to act with respect to subsequent or similar breaches.

Headings.

The headings of sections and paragraphs in these Terms are for convenience only and shall not affect its interpretation.

Assignment.

You may not assign, convey, or transfer (whether by contract, merger or operation of law) (collectively, "assign" or variants) these Terms, in whole or in part, without our prior written consent, which may be granted or withheld by us in our sole discretion. Any attempted assignment in violation of these Terms will be of no power or effect. We may assign these Terms freely at any time without notice. Subject to the foregoing, these Terms will bind and inure to the benefit of each party's permitted successors and assigns. We reserve the right to, and you hereby consent to, our right to disclose, transfer, and/or assign your Personal Information in connection with a merger, consolidation, restructuring, financing, sale, or other transaction. In addition, when a potential buyer is interested in pursuing a merger, acquisition or another type of business combination with us, you agree that we may provide the potential buyer with your Personal Information, subject to the restrictions in these Terms.

Waiver.

The failure to exercise or enforce any right or provision shall not affect our right to exercise or enforce such right or provision at any time thereafter, nor shall a waiver of any breach or default of these Terms constitute a waiver of any subsequent breach or default or a waiver of the provision itself.

Severability

If any portion of these Terms is found by a court of competent jurisdiction to be invalid or unenforceable, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in such provision, and, notwithstanding such finding, the remaining provisions of these Terms shall remain in full force and effect.

Independent Contractor.

The parties intend that an independent contractor relationship will be created by these Terms, and that no additional partnership, joint venture, employee, employer or other relationship is intended. You agree not to hold yourself out as in any way sponsored by, affiliated with, endorsed by, in partnership or venture with, nor as an employee or employer of us, any of our affiliates or respective service providers. There are no third-party beneficiaries to these Terms.

Contact Us.

Our contact information is: Email: contact@tirerack.com; Phone: 888-541-1777; Address: Tire Rack, Inc., 7101 Vorden Parkway, South Bend, Indiana 46628.

22. Review Submission Guidelines for Posting of Content

Tire Rack wants your comments to be heard.

What to Include

  1. Your review should focus on specific characteristics of the product and your experience with it in different conditions.
  2. The best reviews include not only whether you liked or disliked a product, but also why. Comparisons to other products you have used on the same vehicle are helpful, although the review should focus on your current product.
  3. You are solely responsible for any User Content that you create, transmit, or display while using the Site or the Service.

What Not to Include

You may not post content that:

  1. Is not your own original creation or that you do not have permission to use (keep in mind that just because something on the internet does not have a copyright notice on it does not mean you can use it without permission);
  2. Infringes the copyright, trademark, patent right, or other proprietary right of any person or that is used without the permission of the owner;
  3. You know to be inaccurate;
  4. Is pornographic, sexually explicit, or obscene;
  5. Exploits children or minors;
  6. Violates the rights of privacy or publicity of any person;
  7. Is harassing, libelous, slanderous, or defamatory;
  8. Contains any personally identifying information about any person without their consent or about any person who is a minor;
  9. May be deemed generally offensive to the Site community, including blatant expressions of bigotry, prejudice, racism, hatred, profanity or religious or political radicalism;
  10. Includes advertisements, promotions, solicitations, spam, or offers to sell any goods or services for any commercial purpose;
  11. Is off topic;
  12. Is intended to provide professional advice, including but not limited to, the provision of medical treatment, or legal, financial or investment advice;
  13. Is intended to solicit, recommend, endorse, or offer to buy or sell any securities or other financial instruments, tout stocks, or recommend that any particular security, portfolio of securities, transaction, or investment strategy is suitable for you or any specific person;
  14. Violates any local, state, federal, and/or international laws or regulations;
  15. Promotes or provides instructional information about illegal or illicit activities;
  16. Contains software viruses or any other computer code, files, or programs designed to destroy, interrupt, or otherwise limit the functionality of any computer software, computer hardware, or other equipment;
  17. Is intended to overwhelm, cause technical disruptions of or denial of service to the Site;
  18. Reviews products not offered by Tire Rack;
  19. Contains personal comments about specific reviewers;
  20. Includes phone numbers, mail addresses, or URLs; or
  21. Contains availability, price, or alternative ordering/shipping information.

You agree to not upload or post any User Content to the Site that infringes or may infringe the copyright, trademark or other intellectual property rights of a third party nor may you upload User Content that violates any third party's right of privacy or right of publicity. You may upload only User Content that you are permitted to upload by the owner or by law.

All User Content you upload to the Site is deemed nonconfidential.

Any review or comments in violation of these guidelines will not be posted.

Non-Product Related Comments

Comments that are not product-related such as content errors, order process issues, or follow-up service issues are best sent directly to customer care for prompt attention at 888-981-3953 or via email.

For questions about products please contact one of our sales specialists at 888-541-1777 or via email.

SERVICE WITH A SMILE

Need help choosing the right products for your vehicle? Our team of highly trained experts has the knowledge and passion to help. Just pick up the phone and give us a ring. Or let's chat via email. We love solving problems and lending a hand (or an ear).

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