LOTWING TERMS OF SERVICE (last updated December 10, 2019)

This website www.lotwing.com (the “Website”) and LotWing mobile application ("App") are owned and operated by LotWing, LLC, a California limited liability company (“LotWing”, “we”, or “us”) and provides software services and products for vehicle dealerships to electronically manage and locate the vehicle inventory at their dealership facility and to update vehicle inventory location ("Services").

By using the Services, you agree to this Terms of Service ("Terms"). These Terms constitute a legally binding agreement made between you, dealership, users (“you”, “your”, “user”) and us concerning your access to and use of, the Website, the App and Services. If you do not agree to these Terms, please do not access or use the Website or the App or use our Services.

Supplemental terms and conditions or documents that may be posted on the Website or through the App from time to time are hereby expressly incorporated herein by reference. We reserve the right, in our sole discretion, to make changes or modifications to these Terms at any time and for any reason. We will alert you about any changes by updating the “Last updated” date of these Terms, and you waive any right to receive specific notice of each such change. It is your responsibility to periodically review these Terms to stay informed of updates to these Terms, our privacy and other policies. You will be subject to and will be deemed to have been made aware of and to have accepted, the changes in any revised Terms by your continued use of the Website after the date such revised Terms are posted.

The information provided on the Website, the App and our Services are not intended for distribution to or use by any person or entity in any jurisdiction or country where such distribution or use would be contrary to law or regulation or which would subject us to any registration requirement within such jurisdiction or country. Accordingly, individuals who choose to access and use the Website and/or App from other locations do so on their own initiative and are solely responsible for compliance with local laws, if and to the extent local laws are applicable.

The Website, the App and our Services are intended for users who are at least 18 years of age.

LICENSE

We hereby grant to you a limited, non-exclusive, non-transferable and revocable license to access and use the Website, the App and our Services (upon subscribing to our product/ services) solely for your internal use as permitted under these Terms. We reserve the right, in our sole discretion, to deny access and/or use of the Website or the App or our Services to anyone for any reason. You acknowledge and agree that we, in our sole discretion, at any time and with or without notice, may block or terminate your or any other party’s access to all or part of the Website or the App or Services, or change or discontinue any aspect or feature of the Website or the App, or Services; and that, without limitation of any other provisions of these Terms, we reserve the right to take any actions at law or in equity that we deem appropriate in connection with the Website, Services and these Terms.

SUBSCRIBING TO OUR SERVICES

In order to access and use our Services, you (a vehicle dealership) will be required to subscribe to our Services by creating an account on the Website and paying the monthly subscription fee ("Subscription Account"). After the initial registration, you may be charged monthly subscription fee, until you cancel your account. For vehicle dealers ("Dealer(s)") registration, Dealers will be required to provide Dealer's full name, address, phone number, dealership email address and credit card number, expiration date and security code. Once the account is created, Dealers can simply appoint its vehicle dealership facility(s) ("Dealership(s)") admin who will set up Dealership users and approve an electronic map of the Dealership facility. The Dealership can start using LotWing Services once the Dealership map is available on the Dealership's web portal. Dealership employee(s) can register and use the free App and provide their user name, password and email address via Dealership's wi-fi network on their phone to confirm/update/move/find the exact location of vehicles in the inventory. Dealership employees can upload information about the dealership vehicles and also add comments and/or information about the status of the dealership vehicle in the notes section (for e.g. where a particular vehicle is sold, service status, or any other comments related thereto). Your personal information will be governed by our Privacy Policy. We reserve the right to remove, reclaim, or change a username you select if we determine, in our sole discretion, that such username is inappropriate, obscene, or otherwise objectionable. You must ensure that you exit from your account at the end of each session. You agree to immediately notify us of any unauthorized use of your account information or any other breach of security. We strongly recommend that you change your password on a periodic basis and whenever you suspect that knowledge of the password has been compromised. It is your responsibility to protect the confidentiality of your account information. We assume no liability for any access to information that is accessed with your account information. You are solely responsible for protecting the privacy of your account and password, and you agree to accept all responsibility for activities that occur under your account or password.

By accessing the Website, App and creating a Subscription Account, you represent and warrant that:

all information you have submitted is be true, accurate, current, and complete; you have the legal capacity and you agree to comply with these Terms; you are not under the age of 18 and you are not a minor in the jurisdiction in which you reside; you will not access the Website and/or the App or use our Services through automated or non-human means, whether through a bot, script or otherwise; you will not use the Website and/or the App for any illegal or unauthorized purpose; your use of the Website and/or the App will not violate any applicable law or regulation; and you have the right to use any payment card or payment service that you submit in connection with the Subscription Account. By submitting such information, you grant to us the right to provide such information to third parties for purposes of facilitating the transactions. Verification of information may be required prior to the acknowledgment or completion of any transaction.

If you provide any information that is untrue, inaccurate, not current, or incomplete, we have the right to suspend or terminate your Subscription Account and refuse any and all current or future use of our Services (or any portion thereof).

PROHIBITED ACTIVITIES

You may not access or use the Website and/or App for any purpose other than that for which we make the Website and/or App available. The Website and/or App may not be used in connection with any commercial endeavors except those that are specifically endorsed or approved by us.

As a user of the Website and/or App, you agree not to:

make any unauthorized use of the Website and/or App, including collecting usernames and/or email addresses of users by electronic or other means for the purpose of sending unsolicited email, or creating user accounts by automated means or under false pretenses; circumvent, disable, or otherwise interfere with security-related features of the Website and/or App, including features that prevent or restrict the use or copying of any Services or enforce limitations on the use of the Website and/or the App contained therein; engage in unauthorized framing of or linking to the Website and/or App; trick, defraud, or mislead us and other users, especially in any attempt to learn sensitive account information such as user passwords; make improper use of our support services or submit false reports of abuse or misconduct; engage in any automated use of the system, such as using scripts to send comments or messages, or using any data mining, robots, or similar data gathering and extraction tools; interfere with, disrupt, or create an undue burden on the Website and/or App or the networks or services connected to the Website and/or App; attempt to impersonate another user or person or use the username of another user; sell or otherwise transfer your profile; use any information obtained from the Website and/or App in order to harass, abuse, or harm another person; use the Website and/or App as part of any effort to compete with us or otherwise use the Website and/or App for any revenue-generating endeavor or commercial enterprise; decipher, decompile, disassemble, or reverse engineer any of the software comprising or in any way making up a part of the Website and/or App that is not already made public by us; attempt to bypass any measures of the Website and/or App designed to prevent or restrict access to the Website and/or App, or any portion of the Website and/or App; harass, annoy, intimidate, or threaten any of our employees or agents engaged in providing any portion of the Services to you; delete the copyright or other proprietary rights notice from Website and/or App; copy or adapt the Website’s and/or App software, including but not limited to Flash, PHP, HTML, JavaScript, or other code; upload or transmit (or attempt to upload or to transmit) viruses, Trojan horses, or other material, including excessive use of capital letters and spamming (continuous posting of repetitive text), that interferes with any party’s uninterrupted use and enjoyment of the Website and/or App or modifies, impairs, disrupts, alters, or interferes with the use, features, functions, operation, or maintenance of the Website and/or App; upload or transmit (or attempt to upload or to transmit) any material that acts as a passive or active information collection or transmission mechanism, including without limitation, clear graphics interchange formats (“gifs”), 1×1 pixels, web bugs, cookies, or other similar devices (sometimes referred to as “spyware” or “passive collection mechanisms” or “pcms”); except as may be the result of standard search engine or Internet browser usage, use, launch, develop, or distribute any automated system, including without limitation, any spider, robot, cheat utility, scraper, or offline reader that accesses the Website and/or App, or using or launching any unauthorized script or other software; disparage, tarnish, or otherwise harm, in our opinion, us and/or the Website and/or App; and use the Website and/or App in a manner inconsistent with any applicable laws or regulations.

INTELLECTUAL PROPERTY RIGHTS AND COPYRIGHT

The intent of LotWing is to make Services available to its subscribed members for use, while protecting the remainder of the Website and App with copyright and trademarks to ensure users can be confident that they are visiting LotWing’s Website and App and not a third-party website.

The Website and/or the App includes text, images, video, audio, functionality, software, website designs, photographs, icons and graphics (the “Material”), and LotWing trademarks, service marks, and logos contained therein (the “Marks”), which are owned or controlled by us or licensed to us, and are protected by copyright and trademark laws and various other intellectual property rights and unfair competition laws of the United States, foreign jurisdictions, and international conventions. The Material and the Marks are provided on the Website “AS IS” for your information only. Except as expressly provided in these Terms and with the written consent of LotWing, no part of the Website and no Material or Marks may be copied, reproduced, aggregated, republished, uploaded, posted, publicly displayed, encoded, translated, transmitted, distributed, sold, licensed, or otherwise exploited for any commercial purpose whatsoever, without our express prior written permission.

Provided that you are eligible to use the Website and the App, you are granted a limited license to access and use the Website and the App to which you have properly gained access solely for your non-commercial use. We reserve all rights not expressly granted to you in and to the Website, the App, the Material and the Marks.

PRIVACY

We take your privacy very seriously and collects as little information as is needed to maintain the Service. Please review the Privacy Policy in detail to understand our data and privacy practices. By using the Website and the App, you agree to be bound by our Privacy Policy, which is incorporated into these Terms. Please be advised the Website is hosted in the United States.

If you access the Website from the European Union, Asia, or any other region of the world with laws or other requirements governing personal data collection, use, or disclosure that differ from applicable laws in the United States, then through your continued use of the Website, you are transferring your data to the United States, and you expressly consent to have your data transferred to and processed in the United States.

Further, we do not knowingly accept, request, or solicit information from children. Therefore, in accordance with the Children’s Online Privacy Protection Act (COPPA), if we receive actual knowledge that any minor individual has provided personal information to us, we will delete that information from the Website as quickly as is reasonably practical.

MOBILE APPLICATION (App) LICENSE

Use License

We grant you a revocable, non-exclusive, non-transferable, limited right to install and use the App on wireless electronic devices owned or controlled by you, and to access and use the mobile application on such devices strictly in accordance with the terms and conditions of this mobile application license contained in these Terms.

You shall not:

decompile, reverse engineer, disassemble, attempt to derive the source code of, or decrypt the application; make any modification, adaptation, improvement, enhancement, translation, or derivative work from the App; violate any applicable laws, rules, or regulations in connection with your access or use of the application; remove, alter, or obscure any proprietary notice (including any notice of copyright or trademark) posted by us or the licensors of the App; use the App for any revenue generating endeavor, commercial enterprise, or other purpose for which it is not designed or intended; make the App available over a network or other environment permitting access or use by multiple devices or users at the same time; use the App for creating a product, service, or software that is, directly or indirectly, competitive with or in any way a substitute for the application; use the App to send automated queries to any website or to send any unsolicited commercial e-mail; or use any proprietary information or any of our interfaces or our other intellectual property in the design, development, manufacture, licensing, or distribution of any applications, accessories, or devices for use with the App.

Apple and Android Devices

The following terms apply when you use the App obtained from either the Apple Store or Google Play to access the Services: the license granted to you for the App is limited to a non-transferable license to use the App on a device that utilizes the Apple iOS or Android operating systems; in the event of any failure of the App, you may notify us and we may endeavor to correct such failure, but will have no warranty obligation whatsoever with respect to the App; you represent and warrant that (i) you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a “terrorist supporting” country and (ii) you are not listed on any U.S. government list of prohibited or restricted parties; you must comply with applicable third-party terms of agreement when using the App, e.g., if you have a VoIP application, then you must not be in violation of their wireless data service agreement when using the mobile application; or you acknowledge and agree that our App partners are third-party beneficiaries of the terms and conditions in this mobile application license contained in these Terms, and that each such App partners will have the right (and will be deemed to have accepted the right) to enforce the terms and conditions in this mobile application license contained in these Terms against you as a third-party beneficiary thereof.

TERMINATION

You can terminate the Subscription Account anytime by giving thirty (30) business days written notice to LotWing. If you terminate the Subscription Account in the middle of any given month, LotWing is not liable to pay you any partial refund for Services used during part of that given month. LotWing may suspend the Services with immediate effect after delivering a written seven (7) Business Day notice of suspension for your failure to pay the monthly Subscription fee. Suspension of the Services shall not release you of your payment obligations to LotWing.

WE RESERVES THE RIGHT TO STOP OR REFUSE SERVICE, TERMINATE SUBSCRIPTION ACCOUNTS, AND REMOVE OR EDIT FEATURES, IN OUR SOLE DISCRETION. WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS, WE RESERVE THE RIGHT TO, IN OUR SOLE DISCRETION AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF THE WEBSITE AND/OR APP (INCLUDING BLOCKING CERTAIN IP ADDRESSES), TO ANY PERSON FOR ANY REASON OR FOR NO REASON, INCLUDING WITHOUT LIMITATION FOR BREACH OF ANY REPRESENTATION, WARRANTY, OR COVENANT CONTAINED IN THESE TERMS OR ANY WRITTEN AGREEMENT BETWEEN YOU AND US OR OF ANY APPLICABLE LAW OR REGULATION.

If we terminate or suspend your account for any reason, you are prohibited from registering and creating a new account under your name, a fake or borrowed name, or the name of any third party, even if you may be acting on behalf of the third party. In addition to terminating or suspending your account, we reserve the right to take appropriate legal action, including without limitation pursuing civil, criminal, and injunctive redress.

MODIFICATIONS AND INTERRUPTIONS

We reserve the right to change, modify, or remove the contents of the Website and/or the App at any time or for any reason at our sole discretion without notice. However, we have no obligation to update any information on our Website and/or the App.

We will not be liable to you or any third party for any modification, price change, suspension, or discontinuance of the Website and/or the App.

We cannot guarantee the Website and/or the App will be available at all times. We may experience hardware, software, or other problems or need to perform maintenance related to the Website and/or the App, resulting in interruptions, delays, or errors. We reserve the right to change, revise, update, suspend, discontinue, or otherwise modify the Website and/or the App at any time or for any reason without notice to you.

For managing security of data, LotWing uses HTTPS communication protocol via Transport Layer Security (TLS) encryption. You agree that we have no liability whatsoever for any loss, damage, or inconvenience caused by your inability to access or use the Website and/or the App during any downtime or discontinuance of the Website and/or the App. Nothing in these Terms will be construed to obligate us to maintain and support the Website and/or the App or to supply any corrections, updates, or releases in connection therewith.

WEBSITE AND APP MANAGEMENT

We reserve the right, but not the obligation, to:

monitor the Website and/or the App for violations of these Terms; take appropriate legal action against anyone who, in our sole discretion, violates the law or these Terms, including without limitation, reporting such user to law enforcement authorities; in our sole discretion and without limitation, refuse, restrict access to, limit the availability of, or disable (to the extent technologically feasible) any of the feature of the Website and/or the App or any portion thereof; in our sole discretion and without limitation, notice, or liability, to remove from the Website and/or App or otherwise disable all files and content that are excessive in size or are in any way burdensome to our systems; and otherwise manage the Website and/or the App in a manner designed to protect our rights and property and to facilitate the proper functioning of the Website and the App.

DISCLAIMERS

WHILE WE DO OUR BEST, LOTWING GIVES NO WARRANTY THAT THE WEBSITE AND APP IS ACCURATE AND ITS SERVICES WILL PERFORM AND WILL BE TO YOUR SATISFACTION. THE WEBSITE AND APP IS PROVIDED ON AN "AS IS", AND AN "AS AVAILABLE" BASIS. YOU AGREE THAT YOUR USE OF THE SERVICES WILL BE AT YOUR SOLE RISK. TO THE FULLEST EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, IN CONNECTION WITH THE WEBSITE AND THE APP AND YOUR USE THEREOF, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY AND NON-INFRINGEMENT. WE MAKE NO WARRANTIES OR REPRESENTATIONS ABOUT THE ACCURACY OR COMPLETENESS OF THE CONTENTS OF ANY WEBSITES LINKED TO THIS WEBSITE AND WE WILL ASSUME NO LIABILITY OR RESPONSIBILITY FOR ANY (1) ERRORS, MISTAKES, OR INACCURACIES OF THE WEBSITE AND/ OR THE APP, (2) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF THE WEBSITE AND/OR THE APP, (3) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR AND ALL PERSONAL INFORMATION AND/OR FINANCIAL INFORMATION STORED THEREIN, (4) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE WEBSITE AND THE APP, (5) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH THE WEBSITE AND THE APP BY ANY THIRD PARTY, AND/OR (6) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF INFORMATION POSTED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE VIA THE WEBSITE OR THE APP.

LIMITATION OF LIABILITY

IN NO EVENT WILL WE, OUR AFFILIATES OR OUR PROMOTERS, DIRECTORS, EMPLOYEES, CONTRIBUTORS, REPRESENTATIVES OR AGENTS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL, OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT, LOST REVENUE, LOSS OF DATA, COMPUTER SYSTEM OR OTHER DAMAGES ARISING FROM YOUR USE OF THE WEBSITE AND THE APP, EVEN IF YOU HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR AGGREGATE LIABILITY TO YOU FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO ONE HUNDRED DOLLARS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS AS LIMITED BY APPLICABLE LAW. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH USE OF OUR WEBSITE AND/OR THE APP IS TO STOP USING OUR SERVICES.

INDEMNIFICATION

You agree to defend, indemnify, and hold us harmless, including our subsidiaries, affiliates, and all of our respective officers, agents, partners, contributors, and employees, from and against any loss, damage, liability, claim, or demand, including reasonable attorneys’ fees and expenses, made by any third party due to or arising out of: (1) your use of the Website and the App; (3) breach of these Terms; (4) any breach of your representations and warranties set forth in these Terms; (5) your violation of the rights of a third party, including but not limited to intellectual property rights.

Notwithstanding the foregoing, we reserve the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us, and you agree to cooperate, at your expense, with our defense of such claims. We will use reasonable efforts to notify you of any such claim, action, or proceeding which is subject to this indemnification upon becoming aware of it.

ELECTRONIC COMMUNICATIONS, TRANSACTIONS, AND SIGNATURES

Visiting the Website, sending us emails, signing up to our newsletter, and completing online forms constitute electronic communications. You consent to receive electronic communications, and you agree that all agreements, notices, disclosures, and other communications we provide to you electronically, via email and on the Website, satisfy any legal requirement that such communication be in writing. YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, ORDERS, AND OTHER RECORDS, AND TO ELECTRONIC DELIVERY OF NOTICES, POLICIES, AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED BY US OR VIA THE WEBSITE.

You hereby waive any rights or requirements under any statutes, regulations, rules, ordinances, or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by any means other than electronic means.

JURISDICTION

These Terms and your use of the Website and the App are governed by and construed in accordance with the laws of the State of California applicable to agreements made and to be entirely performed within the State of California, without regard to its conflict of law principles.

MISCELLANEOUS

These Terms operate to the fullest extent permissible by law. We may assign any or all of our rights and obligations to others at any time. We shall not be responsible or liable for any loss, damage, delay, or failure to act caused by any cause beyond our reasonable control. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.

If any provision or part of a provision of these Terms is determined to be unlawful, void, or unenforceable, that provision or part of the provision is deemed severable from these Terms and does not affect the validity and enforceability of any remaining provisions. There is no joint venture, partnership, employment or agency relationship created between you and us as a result of these Terms or use of the Services.

You agree that these Terms will not be construed against us by virtue of having drafted them. You hereby waive any and all defenses you may have based on the electronic form of these Terms and the lack of signing by the parties hereto to execute these Terms.

CHANGES TO THIS TERMS OF SERVICE

We keep these Terms of Service under regular review and places any updates on this web page. Every time you visit this Website, you agree to the version of the Terms of Service that is posted here. This Terms of Service was Last Updated on December 10, 2019.

CONTACT INFORMATION

In order to resolve a complaint regarding the Website or to receive further information regarding use of the Website or the App, please contact dietmar@lotwing.com