American Business Management Systems, Inc. Terms of Service (dba Tire Guru) 

This ASP (Application Service Provider) software license agreement along with all materials referenced herein (“agreement”) is a legal agreement entered into this DATE, by and between you, the site licensee (“licensee”), and American Business Management Systems, Inc. (“ABMS”) permitting (“licensee”) to access and use, subject to the terms of this agreement.  

BY SIGNING THIS AGREEMENT, YOU ARE AGREEING TO BE BOUND BY ITS TERMS AND CONDITIONS. IF YOU DO NOT AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, LICENSEE WILL NOT BE PERMITTED TO ACCESS AND USE THE SOFTWARE AND SERVICES. RETURN ANY AND ALL ABMS SOFTWARE AND DOCUMENTATION IN YOUR POSSESSION (including all written materials and packaging)TO THE PLACE FROM WHICH THEY WERE OBTAINED.  

1. LICENSEE GRANT. Subject to the terms of this agreement, ABMS grants licensee a nonexclusive, non transferable license to access and use the software and services for internal business purposes only, without the right to sublicense such rights, provided licensee unconditionally agrees to access and use the software and services in accordance with this agreement. Under the agreement, licensee may print out, or otherwise make, printed copies (“copies’) of the reports, numeric results, and other information or materials generated from licensee’s access and use of the software and services for internal business purposes or for direct customer use only. Any updates, modifications, enhancements or new versions of the software and services provided or made available to licensee by ABMS, in accordance with Section 14 of this agreement, shall be considered software and services subject to this agreement. ABMS may at any time and for any reason elect to modify, discontinue, delete or restrict any aspect or feature of the software and services without notice to licensee or any liability to ABMS or any ABMS Party(as defined in Section 2); however, ABMS agrees to make commercially reasonable efforts to provide licensee with prior notice of any such changes.  

2. DISCLAIMERS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SOFTWARE AND SERVICES ARE PROVIDED “AS-IS” AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ABMS ANDITS DIRECTORS, OFFICERS, LICENSORS, SUBCONTRACTORS AND AGENTS (“ABMS PARTIES”) DISCLAIM ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SOFTWARE AND SERVICES OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, NONINFRINGEMENT AND ACCURACY; (B) NEITHER ABMS NOR ANY ABMS PARTY WARRANTS THAT THESOFTWARE AND SERVICES ARE OR WILL BE ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS; (C) LICENSEE ASSUMES THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH ERRORS OR VIRUSES ARE THE DIRECT RESULTOF ABMS’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) EACH OF ABMS AND THE ABMS PARTIES DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS, OR EFFECTIVENESS OF THE REPORTS, DATA, SCORES, RESULTS OR OTHER INFORMATION OBTAINED, GENERATED OR OTHERWISE RECEIVED BY LICENSEE FROM ACCESSING AND/OR USING THE SOFTWARE AND/OR SERVICES OR OTHERWISE RESULTING FROM THIS AGREEMENT, AND (E) USE OF THE SOFTWARE, SERVICES AND REPORTS IS ENTIRELY AT LICENSEE’S OWN RISK AND ABMS AND EACH OF ABMS PARTIES SHALL HAVENO LIABILITY OR RESPONSIBILITY THEREFORE.  

3. LIMITATIONS ON LIABILITY. THE TOTAL LIABILITY OF ABMS AND THE ABMS PARTIES IN THE AGGREGATE TO LICENSEE OR ANY THIRD PARTY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND SERVICES WILL BE LIMITED TO THE PAYMENTS RECEIVED FROM LICENSEE UNDER THIS AGREEMENT. ABMS AND THE ABMS PARTIES SHALL NOT BE LIABLE FOR DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY TYPE ARISING OUT OF ORIN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE AND/OR SERVICES, WHETHER OR NOT ABMS AND ITS LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND WHETHER BASED UPON BREACH OF CONTRACT OR TORT (INCLUDING NEGLIGENCE). ABMS AND THE ABMS PARTIES SHALL HAVE NO LIABILITY FOR ANY DAMAGES RESULTING FROM ALTERATION, DESTRUCTION OR LOSS OF ANY DATA OR INFORMATION INPUT, GENERATED OR OBTAINED FROM ACCESS AND/OR USE OF THE SOFTWARE AND SERVICES, INCLUDING ANY REPORTS OR NUMERIC RESULTS, WHETHER OR NOT ABMS AND THE ABMS PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE LIMITATIONS OF DAMAGES AND LIABILITIES SET FORTH IN THIS AGREEMENT ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN ABMS AND LICENSEE, AND THE PRICING FOR THE LICENSE REFLECTS SUCH LIMITATIONS. IF LICENSEE IS NOT SATISFIED WITH THE SOFTWARE AND SERVICES, THE ENTIRE LIABILITY OF ABMS AND THE ABMS PARTIES, AND LICENSEE’S EXCLUSIVE REMEDY, SHALL BE TO IMMEDIATELY STOP ACCESSING AND USING THE SOFTWARE AND SERVICES AND STOP PAYING FOR ANY FUTURE MONTHLY SUPPORT AND MAINTENANCE FEES. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR DAMAGES (SUCH AS CONSEQUENTIAL OR INCIDENTAL DAMAGES), OR THE EXCLUSION OF IMPLIED WARRANTIES AND LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY MAY LAST, THE ABOVE LIMITATIONS MAY NOT APPLY TO LICENSEE. NOTWITHSTANDING THE FOREGOING, ABMS WILL INDEMNIFY LICENSEE AND HOLD IT HARMLESS FROM AND AGAINST ANY LIABILITY, JUDGMENTS, CLAIMS, LOSSES AND EXPENSES (INCLUDING ATTORNEYS’ FEES) RESULTING FROM OR RELATED TO A CLAIM BY ANY PARTY CLAIMING DAMAGES FOR INFRINGEMENT OF COPYRIGHT, TRADEMARK OR OTHER INTELLECTUAL PROPERTY BASED ON MATERIAL SUPPLIED BY ABMS TO LICENSEE UNDER THIS AGREEMENT.  

4. REGISTERED AND LICENSED USERS. In order for licensees to access and use the software and services, licensees shall register with ABMS, provide ABMS with an email address, pay the license fee (“fee”) and obtain a unique password for accessing the software and services (“password”). The fee shall be determined at the time of registration based on the number of licensed store locations of the software and services. Upon receiving a password, licensee may issue unique passwords to its employees and agents (as described in Section 7 of this agreement). Licensee is responsible and wholly liable for all acts or omissions committed under user’s password and any and all passwords issued by licensee to licensed users. Any and all personal information obtained from licensee or a licensed user by ABMS relating to this agreement and the software and services is subject to ABMS’s privacy policy,and licensee agrees to the terms and conditions of such privacy policy.  

5. LICENSEE REPRESENTATIONS AND WARRANTIES. Licensee represents and warrants to ABMS that this agreement shall be binding on licensee, and, unless licensee is an individual, licensee represents and warrants that this agreement was executed by an authorized signatory of licensee with the authority to enter into binding agreements on behalf of licensee.  

6. PROPRIETARY RIGHTS. The software and services are protected by applicable United States and foreign laws and treaties, including copyright laws and treaty provisions. ABMS or its licensors own all rights, title and interests in the software and services, including trade secrets, patents, copyrights and database rights, and the software and services shall remain the sole and exclusive property of ABMS or its licensors. Except as provided inSection 1 of this agreement, licensee has no, and is not granted, any right, title, interest or license in the software or services.  

7. RESTRICTIONS ON USE. Except as otherwise expressly provided in this agreement, licensee agrees to (a) only use the software and services in the manner, and for the purposes, expressly specified in this agreement; (b) not decompile, disassemble, analyze or otherwise examine the software and services for the purpose of reverse engineering (except to the extent this restriction is expressly prohibited by applicable law); (c) not delete or in any manner alter any notices, disclaimers or other legends contained in the software and services or appearing on any screens, documents, reports, numeric results or other materials obtained by licensee through use of the software and services (“notices”); (d) reproduce and display all notices on copies licensee makes, in accordance with this agreement; (e) not provide service bureau facilities or commercial time-sharing services to any third party or supporting operations for any third party through the access and/or use of the software and/or services; (f) not attempt to access any systems, programs or data of ABMS or any ABMS party that are not licensed under thisagreement, or otherwise made available by ABMS or any ABMS party for public use; (g) not copy, reproduce, republish, upload, post, transmit, or distribute the software or services, or any portion thereof, or facilitate or permit a third party to do so; (h) not use any device or software to interfere or attempt to interfere with the proper operation of the software and services; (i) not ship, transmit, transfer, or export the software and services into any country or use the software and services in any manner prohibited by UnitedStates export laws, restrictions or regulations; and (j) abide by all applicablelocal, state, national and international laws and regulations.  

8. DATA. Licensee agrees that ABMS and the ABMS parties are permitted to access any information or data licensee inputs or provides while accessing or using the software and services (“data”) and any reports or numeric results, for the sole purpose of ensuring proper access and use of the software and services by licensee in accordance with this agreement and to maintain and troubleshoot software and services. In the event of any loss or damage to licensee’s data, reports or numeric results, licensee’s sole and exclusive remedy shall be for ABMS to use commercially reasonable efforts to replace or restore the lost or damaged data from the latest backup of such data, reports or numeric results which ABMS has maintained in accordance with its standard archival procedures.  

9. CONFIDENTIALITY. Licensee acknowledges that the software and services constitute and contain confidential, proprietary and copyrighted information and subject matter of ABMS and ABMS Parties (“confidential information”). Licensee agrees to not, directly or indirectly, without ABMS’s prior written consent, use the confidential information for any purpose other than as expressly permitted under this agreement; divulge, discuss, provide, transmit, copy, make available or otherwise communicate the confidential information to a third party; or permit any third party to use such confidential information. “Confidential information” shall not include information that is shown by competent evidence: (a) is in or enters the public domain without breach of this agreement; (b) was possessed by licensee prior to first receiving it from ABMS or an ABMS Party; (c) was developed by licensee independently and without use of or reference to the confidential information;or (d) was received by licensee from a third party without restriction on disclosure and without breach of a nondisclosure obligation. Notwithstanding the foregoing, (i) each party shall be permitted to disclose confidential information of the other party if such disclosure is required by law, provided that the party required to disclose confidential information of the other party shall (a) give prompt notice of such requirement to the other party so it will have the opportunity to seek a protective order or other appropriate remedy;and (b) cooperate in the other party’s attempts to obtain confidential treatment of such confidential information.  

10. TRADE NAMES AND TRADEMARKS. This Agreement does not grant to any party a license to use any trademark, trade name, or logo of the other party and each party recognizes that the trademarks, trade names, and logos of the other party represent valuable assets of that party and that substantial recognition and goodwill are associated with such trademarks, trade names, and logos. Each party hereby agrees that it shall not use or permit any third party to use, at any time, the other party’s trademarks, trade names, or logos.  

11. INJUNCTIVE RELIEF. Each party acknowledges that a violation of Sections 7, 9 or 10 of this agreement could cause irreparable harm to the other party for which no adequate remedy at law exists and each party therefore agrees that, in addition to any other remedies available, the aggrieved party shall be entitled to seek injunctive relief to enforce the terms of Sections 7, 9 or 10. The prevailing party shall be entitled to recover all costs and expenses, including reasonable attorney’s fees incurred because of any such legal action.  

12. HARDWARE AND SERVICE REQUIREMENTS. Licensee is solely responsible for acquiring, servicing, maintaining, and updating all equipment,computers, software and communications services (such as long distance phone charges or high-speed internet) not owned or operated by or on behalf of ABMS, that allow licensee to access and use the software and services, and for all expenses relating thereto (plus any applicable taxes). Licensee agrees to access and use the software and services in accordance with any and all operating instructions or procedures that may be issued by ABMS, and amended by ABMS from time to time. ABMS and the ABMS parties do not make any commitments with respect to use or performance of the software and services with browsers other than MS Internet Explorer 6.0 or higher. All computers must use an “Evergreen Compliant” Browser such as Google Chrome. (Although we currently support IE11 we will discontinue support for Internet Explorer 11 in the future) We recommend “broadband” internet connection of at least 25 Mbps for download speed and 3 Mbps for upload. Depending on the store’s internet usage and number of devices you may want to increase the download speed to accommodate high internet usage, VoIP phone systems, business TV service, video conferencing and multiple devices per person. 

13. PERFORMANCE. Licensee understands and agrees that the operation and availability of the systems used for accessing and interacting with the software and services, including, the public telephone, computer networks and the Internet or to transmit information, whether or not supplied by licensee or ABMS, can be unpredictable and may, from time to time, interfere with or prevent the access to and/or the use or operation of the software and services. ABMS and the ABMS parties are not in any way responsible for any such interference with or prevention of licensee’s access and/or use of the software and services.  

14. TRAINING AND SUPPORT. Unless licensee and ABMS enter into a separate agreement, ABMS will not provide any on-site training or on-site support to licensee relating to the software and services. ABMS will provide licensee with (a) commercially reasonable telephone and email support for the software and services during normal business hours; and (b) updates and enhancements for the software and services, to the extent that ABMS generally makes such updates and enhancements available to licensee’s without a separate charge. Monthly Maintenance/Support Maintenance/support fee is not included in the Purchase Price of this Agreement and is provided here as reference information only. 

15. 90-DAY POST-SALE BILLING. The licensee agrees to “go-live” with their instance of the software prior to, or on, the 90-day timeline, set from the execution of this agreement. Both parties agree, to the best of their effort, to set a realistic launch date within 90 days of the initial agreement. Monthly subscription billing will begin for licensees either at “go-live” date, or at 90 days; whichever comes first.  

16. PRICING. ABMS may change the price for the licensed software from time to time. The price change will take effect after the expiry of the then current paid for period (i.e. the term that ABMS has already received payment for). Any price change will be communicated to you at least 14 days in advance so that you have an opportunity to elect to not renew. If you do not wish to be bound by such changed price relating to your licensed software you may terminate your subscription in accordance with Section 17 (TERMINATION). Your continued use of the licensed software after the communication of such price change to you constitutes an acceptance of such new price. 

Initial Payment & Refund Criteria 

Customer agrees to pay all fees in accordance with the applicable Order Form(s). Customer is required to maintain a valid ACH account or credit card on file, and authorizes Company to automatically charge such payment method for all amounts when due. Company recommends Automated Clearing House (ACH) as the preferred payment method.  Company also accepts payment by credit card; however, Customer acknowledges and agrees that payments made via credit card may be subject to a surcharge designed to offset the cost of credit card acceptance. Any such surcharge will be applied in compliance with all applicable federal, state, and local laws and regulations and will be disclosed to Customer prior to processing the payment.  If Customer elects to pay using any method other than ACH or a credit card on file (including but not limited to paper checks or one-time manual transactions), such payment may be subject to a manual processing fee of up to twenty-five dollars ($25) per payment processed. As part of your subscription, you will be required to submit payment through the secure payment portal at the time of agreement execution. Payment is due upon receipt. This payment is applicable to your first full month of active subscription and can be paid via credit card. Once initial payment is submitted, the subscription license is active, and the payment is non-refundable. If you would like to cancel your subscription, please send an email to cancellations@tireguru.net. Cancellations submitted before the 25th day of the month will be accepted and billing will be discontinued. Cancellations submitted after the 25th day of the month will be charged for the month following. 

17. INDEMNITY. Licensee agrees to defend, indemnify and hold ABMS and each ABMS party, as well as the directors, officers, agents, and employees of ABMS and each ABMS party, harmless from any losses, liabilities, damages, actions, claims or expenses (including reasonable attorneys’ fees and court costs) arising or resulting from licensee’s breach of any term of this agreement or caused by acts or omissions performed by licensee or under licensee’s password or any password issued by licensee to licensed users.  

18. TERMINATION. Licensee’s right to use the software and services shall be effective from the date licensee signs this agreement, payment for software license is received by ABMS and products and/or services are delivered by ABMS and shall terminate when licensee ceases all access and use of the software and services OR for nonpayment of monthly maintenance and provides ABMS with notice of such termination or as otherwise provided in this agreement. ABMS may terminate this agreement immediately if the licensee fails to pay monthly maintenance fees OR breaches a material term of this agreement and fails to remedy that breach within five (5) business days after notice from ABMS. Upon termination of this agreement, all rights, including the license granted to licensee, under this agreement will cease and licensee’s access to the software and services may be disabled. Upon termination of this agreement, Sections 2, 3, 5, 6, 7, 9, 11, 17, 20A, 20C and 20D of the agreement, along with all payment obligations under this agreement, shall survive such termination.  

19. AGREEMENT/NOTICES. A. Notices – All questions, comments or notices concerning this agreement shall be submitted to ABMS by licensee via email at support@tireguru.net or via mail to: ABMS, Attention: Customer Support, 895 N. Main Street, Logan, UT, 84321. All notices to be given under this agreement to licensee shall be submitted by ABMS via email at the account licensee provided to ABMS pursuant to Section 4 or to licensee upon accessing the software and services. B. Acceptance – By signing below and providing ABMS with licensee’s email address under Section 4, licensee agrees and consents to (i) contract electronically with ABMS for the software and services in accordance with this agreement; (ii) receipt of electronic legal notices regarding this agreement to the email account licensee provided under Section 4 or upon accessing the software and services; and (iii) that by signing this agreement, licensee intends to be bound by this agreement. Please be aware that if the licensee withdraws its consent, such withdrawal of consent will not be effective until the date of receipt. The legal effect of this intervening time period is that the licensee is still bound by the terms of this agreement during such period. The legal consequence of withdrawing licensee’s consent shall not act to void or invalidate licensee’s actions prior to the effective date that shall remain subject to the terms of this agreement. Upon withdrawing licensee’s consent, licensee will be responsible for all incurred fees and charges payable under this agreement.  

20. MISCELLANEOUS. A. Modifications – This agreement is the complete and exclusive statement of the agreement between licensee and ABMS, and supersedes any proposal or prior agreement, oral or written, and any other communications between the parties relating to the subject matter of this agreement. This agreement may not be modified by licensee except upon mutual agreement by the parties in writing signed by an authorized officer of ABMS. ABMS reserves the right, at any time, to change the terms of this agreement, including its privacy policy, by providing licensee with notice of such changes. Any use of the software and services by licensee after ABMS’s publication or email of any such changes shall constitute licensee’s acceptance of the agreement as modified. B. Force Majeure – ABMS will not be responsible for any failure to perform due to causes beyond its reasonable control, including, acts of God, acts of terrorism, war, riot, embargoes, acts of civil or military authorities, national disasters, strikes and the like. C. Governing Law and General Provisions – This agreement will be governed by the laws of the State of Utah, excluding the application of its conflicts of law rules. This agreement will not be governed by the United Nations Convention on contracts for the international sale of goods, the application of which is expressly excluded. If any part of this agreement is found void and unenforceable, it will not affect the validity of the remainder of the agreement, which shall remain valid and enforceable according to its terms. The words “and” as well as “or” shall be interchangeable to provide the broadest interpretation, and the word “including” shall mean “including without limitation” and “including but not limited to” to provide the broadest interpretation. The headings contained in this agreement are for reference only and shall not affect the meaning or interpretation of this agreement. ABMS’s failure to exercise or enforce any right or power under this agreement shall not constitute a waiver of such right or power. D. Nothing contained in this agreement is intended to confer upon any person other than the parties hereto and their respective successors and permitted assigns, any benefit, right or remedy under or by reason of this agreement, except with respect ABMS parties who shall be deemed third party beneficiaries under this agreement but solely with respect to those terms that specifically reference an ABMS party or the ABMS parties.  

21. WEBSITE DEVELOPMENT  

Theme Selection Phase: During the website onboarding process with TireGuru, our team will help you choose a website theme to best suit your business. TireGuru will build your website using the selected, approved theme. Customizations will include your logo, brand coloring, stylized fonts, and images (including stock photography and any custom photos that you provide prior to the start of your design).  

Project Changes During the Theme Selection Process.  Upon approval of website theme, additional changes to the graphical layout or design of the website may incur additional charges to the Client or added time to the setup period. Such website design changes must be evidenced in writing and shall be included as a new attachment to this agreement. 

Build Phase: All TireGuru websites are built to meet industry best practices, including but not limited to device responsiveness, website and server security, coding standards, and user experience. Once the website has been built, all websites will have up to 2 rounds of revisions to the staging website prior to launch. Revisions can include changes to text, colors, and images. There may be additional cost and production time to make further changes in the setup period, subject to our hourly rate for custom development. By signing this agreement, you understand these terms regarding your website.  

Project Changes During Build Process. TireGuru will create one staging website for the Client and offer up to two rounds of revisions for approval. Client shall have the right to request a change in the scope of services, project parameters, etc. to be rendered under this agreement. More than two rounds of build revisions may result in a change of scope. Such change of scope must be evidenced in writing and shall be included as a new attachment to this agreement. TireGuru shall have the discretion to determine whether or not the requested change of scope is outside the original parameters of this agreement and, therefore, requires an adjustment in fees. The parties shall agree to a change in fees and timing resulting from such a change of scope, which shall be included in the new attachment.   

Client Responsibilities.  The estimated time to launch is from two to three weeks. The Client will be fully responsible for any delays caused by requests of any type, including any changes to the website, requests for additional design options, or a failure to provide in a timely manner any information requested by TireGuru. The Client will assume full financial responsibility for such delays, and TireGuru will not be asked to pause billing or refund any amount to the Client.