BY ACTIVATING OR OTHERWISE USING THE SERVICE, YOU ARE AGREEING THAT YOU HAVE READ, AND AGREE TO COMPLY WITH AND BE BOUND BY, THE TERMS OF THIS AGREEMENT IN THEIR ENTIRETY WITHOUT LIMITATION OR QUALIFICATION AS WELL AS ALL APPLICABLE LAWS AND REGULATIONS. YOU ALSO AGREE TO RESOLVE ANY DISPUTES THROUGH BINDING ARBITRATION. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT AND TO FOLLOW ALL APPLICABLE LAWS, DO NOT ACCESS OR USE THE SERVICE.
1. Use of Service
In order to activate the Service, you must first register with BancPass and provide all required information including your name, mailing address, phone number, debit account information, and vehicle information. Upon acceptance of your registration, BancPass will notify you of Service activation. You may then use the Service as a method of payment only in toll lanes that are open and designated use with BancPass\’ PToll Service. Each time your license plate is identified at a toll lane, BancPass will notify you that a confirmation is required. In order to use the Service as a method of payment in these toll lanes, you must, within 48 hours of the time you receive a text message or other communication from BancPass, provide BancPass confirmation of your acceptance of related toll charges. By providing such confirmation, you agree that BancPass can charge your designated debit account for your use of the designated BancPass toll lane and for any related charges otherwise agreed to by you and BancPass. If you fail to provide confirmation with that 48-hour period, you agree that BancPass can charge your designated debit account for your use of the designated BancPass toll lane and for any related charges otherwise agreed to by you and BancPass. Such payments are non-refundable. If your license plate is not read, if the license plate information on your account is not accurate or if you dispute the charge within the specified 48-hour period, the Service will not pay your toll or other charges and you may be subject to penalties, fines, and fees, as provided by law. You acknowledge that you cannot pay toll fees, or otherwise use the Service, on toll roads that are not conspicuously marked for use with BancPass\’ PToll Service. BancPass shall have no liability or obligation to you with respect to tolls or any other charges on any such roads.
2. Warning Notice
Always operate your vehicle in a safe manner. Do not become distracted by your cell phone while driving, and always be fully aware of all driving conditions. Pull over in a safe and legal manner before attempting to use your cell phone to provide BancPass confirmation of your acceptance of toll charges. You must obey all posted speed limits in, on approaches to, and exiting from toll lanes and comply with all other state traffic laws. Failure to comply with this Agreement may result in the suspension, revocation, and/or termination of your ability to use the Service. BANCPASS PROVIDES 48 HOURS FOR YOU TO RESPOND TO THE TOLL CHARGE SO THAT YOU CAN WAIT UNTIL YOU HAVE ARRIVED AT YOUR DESTINATION TO CONFIRM OR DENY THE CHARGE. BANCPASS SHALL NOT BE LIABLE FOR ANY DAMAGES OR LIABILITIES TO ANY PERSON OR PROPERTY RELATING TO YOUR USE OF YOUR CELLPHONE OR OTHER MOBILE COMMUNICATION DEVICE WHILE DRIVING.
3. Duty to Update Your Service Account
If your cell phone is lost, if you sell a vehicle that you have registered with the Service, or if your vehicle is stolen, you must notify BancPass immediately so that your cell phone and/or vehicle can be deactivated from the Service. Until BancPass receives such notice, you will be liable for any incurred tolls, fees, and/or charges that may be charged to you.
4. License Grant and Restrictions
Subject to the terms and conditions of this Agreement, BancPass hereby grants you a limited, non-exclusive, non-transferable, license to access and use the Service solely for the purpose of facilitating payments in connection with your use of designated BancPass toll lanes. Your use of the Service is limited to the scope of the license granted in this Agreement and this Agreement does not permit you to use the Service other than as provided herein. You acknowledge that the Service constitutes valuable trade secrets and/or the confidential information of BancPass or its licensors. You acknowledge and agree that except as otherwise authorized under this Agreement or otherwise specified in writing between the parties:
a. You shall not license, sublicense, sell, resell, rent, lease, transfer, assign, distribute, grant a security interest in, or otherwise transfer any rights to, or commercially exploit, the Service or any information, documents, software, products and services contained or made available to you in the course of using the Service (the “Content”) or use the Service to run or as part of a service bureau, outsourced, or managed services arrangement;
b. You shall not copy, reproduce, republish, upload, post, transmit or distribute the Service or the Content in any way;
c. You shall not modify, translate, alter, adapt, decompile, disassemble (except to the extent applicable laws specifically prohibit such restriction), reproduce, distribute or display, or create derivative works, compilations or collective works based on the Service or the Content;
d. You shall not knowingly or negligently permit other individuals or entities to use or copy the Service, or create Internet “links” to the Service or “frame” or “mirror” the Service on any other server or wireless or Internet-based device;
e. You shall not access the Service for any reason, including without limitation, in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, (c) copy any ideas, features, functions or graphics of the Service, (d) monitor its availability, performance or functionality, or (e) for any other benchmarking or competitive purposes;
f. You shall not access the Service if you sell or provide any service, software, or product that may compete with BancPass\’ services, software, or products;
g. You shall not attempt to use or gain unauthorized access to data, accounts, hosts, systems or networks of BancPass or any of its customers or suppliers, or those of any other party; breach the security of another user or system, or attempt to circumvent the user authentication or security of any host, network, or account, including, without limitation, accessing data not intended for you or logging into or making use of a server or account you are not expressly authorized to access;
h. You shall not attempt to probe, scan or test the vulnerability of a system, account or network of BancPass or any of its customers or suppliers, any BancPass product or service, or those of any other party;
i. You shall not interfere, or any attempt to interfere, with service to any user, host or network including, without limitation, mail-bombing, flooding, and attempting to deliberately overload the system or distribute programs that “crack,” or make unauthorized changes to, the software;
j. You shall not forge any TCP-IP packet header or any part of any header information, falsify, alter or remove address information or other modification of e-mail headers; collect responses from unsolicited bulk messages, falsify references to BancPass or the Service, by name or other identifier, in messages; impersonate any person or entity, engage in sender address falsification, forge anyone else\’s digital or manual signature, or perform any other similar fraudulent activity;
k. You shall not restrict, inhibit, or otherwise interfere with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Service (except for tools for safety and security functions), including, without limitation, posting or transmitting any information or software which contains a worm, virus, or other harmful feature, or generating levels of traffic sufficient to impede others\’ ability to use, send, or retrieve information;
l. You shall not restrict, inhibit, interfere with, or otherwise disrupt or cause a performance degradation, regardless of intent, purpose or knowledge, to the Service or any BancPass (or BancPass supplier) host, server, backbone network, node or service, or otherwise cause a performance degradation to any BancPass (or BancPass supplier) facilities used to deliver the Service; and
m. You shall not create or use any program, tags, markers, bots, mousetraps, highjackers or other similar computer routines or sub-routines to automatically access or manipulate the Service.
Because of the difficulty associated with quantifying damages, in addition to any other damages to which BancPass may be entitled, if actual damages cannot be reasonably calculated then you agree to pay BancPass liquidated damages of $250 for each violation of this Section 2 or the maximum liquidated damages permitted under law, whichever is greater; otherwise you agree to pay BancPass\’s actual damages, to the extent such actual damages can be reasonably calculated.
5. Customer Communications; Disclosure
From time-to-time BancPass may ask whether or not you wish to receive marketing and other non-critical Service-related communications. You may elect not to receive such communications at that time or opt-out of receiving such communications at any subsequent time by notifying BancPass. Because the Service is a hosted, online application, BancPass may need to notify all users of the Service (whether or not they have opted out as described above) of important announcements regarding the operation of the Service. BancPass reserves the right to disclose that you are a user of the Service.
6. Additional Service Account Obligations
Where use of the Service is contingent on you and your users accessing an “account” and/or inserting a “user-identification” and/or “password”, you agree that you will be solely responsible for the user-ids and passwords that are provided to you (as such passwords may be changed from time to time in accordance with features of the Service) to log-in to the password protected Service. If non-authorized individuals have access to your systems or to your users\’ user-id and password, they may be able to use the Service. You and your users shall keep any correspondence you receive relating to or through the use of the Service (including, but not limited to, your user-id, passwords, and other registration or sign-in information) confidential and in a safe place and not disclose it to any third party. You will be responsible and liable for all communications and actions that take place through the use of your user-ids, including without limitation, any actions that occur without your authorization. Accordingly, it is your responsibility to take appropriate actions immediately if any password has been stolen, leaked, compromised or otherwise used without proper consent. You shall: (i) notify BancPass immediately of any unauthorized use of any password or account or any other known or suspected breach of security; (ii) report to BancPass immediately and use reasonable efforts to stop immediately any copying or distribution of Content that is known or suspected by you; (iii) notify BancPass when you no longer require access to the Service; and (iv) keep all of your profile information current.
7. Intellectual Property Ownership
All right, title and interest in the Service, including technology and trade secrets embodied therein and any custom developments created or provided in connection with or related to this Agreement, including all copyrights, patents, trade secrets, trade dress and other proprietary rights, and any derivative works thereof, shall belong solely and exclusively to BancPass or its licensors, and you shall have no rights whatsoever in any of the foregoing. You acknowledge that the Service constitutes a valuable trade secret and/or is the confidential information of BancPass or its licensors. Nothing in this Agreement or otherwise will be deemed to grant to you an ownership interest in the Service, in whole or in part. All content and materials included as part of the Service, such as text, graphics, logos, button icons, images, audio clips, information, data, photographs, graphs, videos, typefaces, graphics, music, sounds, and other material, and software (the “Materials”) are the property of BancPass or its content suppliers and is protected by copyrights, trademarks, trade secrets, or other proprietary rights and these rights are valid and protected in all forms, media and technologies existing now or hereinafter developed. All Materials are copyrighted as individual works and as a collective work under the U.S. copyright laws (17 U.S.C. Section 101, et. seq.) and international treaty provisions, and BancPass owns a copyright in the selection, coordination, arrangement and enhancement thereof. You may not modify, remove, delete, augment, add to, publish, transmit, adapt, translate, participate in the transfer or sale of, create derivative works from, or in any way exploit any of the Materials, in whole or in part. Any use other than as contemplated herein, including the reproduction, modification, distribution, transmission, adaptations, translation, republication, display, or performance, of the Materials, except as specifically permitted herein, is strictly prohibited. You understand and acknowledge that unauthorized disclosure, use or copying of the proprietary products and services provided pursuant to this Agreement may cause BancPass and its licensors irreparable injury, which may not be remedied at law, and you agree that BancPass and its licensors\’ remedies for breach of this Agreement may be in equity by way of injunctive or other equitable relief.
The BancPass and PToll name, logo, other related names, design marks, product names, feature names and related logos are trademarks of BancPass and may not be used, copied or imitated, in whole or in part, without the express prior written permission of BancPass. In addition, the look and feel of the Service (including all page headers, custom graphics, button icons, and scripts) constitutes the service mark, trademark and/or trade dress of BancPass and may not be copied imitated or used, in whole or in part, without the express prior written permission of BancPass.
9. Term; Termination; Suspension of Service
The term of this Agreement commences on your first use of the Service and continues through any subsequent use of the Service thereafter. Any unauthorized use of the Service will be deemed a material breach of this Agreement. BancPass, in its sole discretion, may terminate your password, account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, BancPass may terminate a free account at any time in its sole discretion.
10. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service. If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms “you” or “your” shall refer to such entity. If you do not have such authority, you must immediately stop using the Service.
You shall defend, indemnify and hold BancPass harmless from and against any and all losses, damages, liabilities, costs, judgments, charges and expenses, including reasonable attorneys\’ fees, arising out of or relating to any act or omission by you with respect to (i) your use of the Service or (ii) your breach or violations of this Agreement.
12. Disclaimer of Warranties
EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THIS AGREEMENT, (A) THE SERVICE IS PROVIDED “AS-IS” AND “WITH ALL FAULTS”, AND, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BANCPASS, INCLUDING ITS AFFILIATES, SUBSIDIARIES, LICENSORS, SUBCONTRACTORS, DISTRIBUTORS, SERVICES PARTNERS, AGENTS AND MARKETING PARTNERS) AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS AND OFFICERS (COLLECTIVELY, THE “BANCPASS PARTY(IES)”) DISCLAIM ALL REPRESENTATIONS, WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, REGARDING THE SERVICE, OR OTHERWISE RELATING TO THIS AGREEMENT, INCLUDING WARRANTIES AND CONDITIONS OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, MERCHANTABLE QUALITY, NON-INFRINGEMENT AND ACCURACY AND NON-INTERFERENCE; (B) NEITHER BANCPASS NOR ANY BANCPASS PARTY WARRANTS THAT (i) THE SERVICE IS OR WILL BE SECURE, ACCURATE, COMPLETE, UNINTERRUPTED, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS, OTHER HARMFUL COMPONENTS, OR OTHER PROGRAM LIMITATIONS, (ii) THE SERVICE WILL MEET YOUR REQUIREMENTS, (iii) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, (iv) ANY ERRORS IN THE SERVICE WILL BE CORRECTED; (C) YOU ASSUME 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 RESULT OF BANCPASS\’S GROSS NEGLIGENCE OR WILLFUL MISCONDUCT; (D) BANCPASS AND THE BANCPASS PARTIES, JOINTLY AND SEVERALLY, DISCLAIM AND MAKE NO WARRANTIES OR REPRESENTATIONS AS TO THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, USEFULNESS, OR EFFECTIVENESS OF THE SERVICE, AND (E) USE OF THE SERVICE IS ENTIRELY AT YOUR OWN RISK AND NEITHER BANCPASS NOR ANY OF THE BANCPASS PARTIES SHALL HAVE ANY LIABILITY OR RESPONSIBILITY THEREFOR.
13. Interruption of Service
YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SERVICE, INCLUDING, THE PUBLIC TELEPHONE, WIRELESS PHONE, TOLL FACILITIES, COMPUTER NETWORKS AND THE INTERNET OR TO TRANSMIT INFORMATION, WHETHER OR NOT SUPPLIED BY YOU OR BANCPASS, CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT THE ACCESS TO AND/OR THE USE OR OPERATION OF THE SERVICE. NEITHER BANCPASS NOR ANY OF THE BANCPASS PARTIES SHALL BE LIABILE FOR ANY INTERFERENCE WITH OR PREVENTION OF YOUR ACCESS TO AND/OR USE OF THE SERVICE.
14. Limitation of Liability
NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT WHATSOEVER SHALL BANCPASS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO LOSS OF PROFITS, LOST TIME OR GOOD WILL, EVEN IF BANCPASS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE. BANCPASS SHALL NOT BE LIABLE FOR ANY CLAIMS AGAINST YOU BY THIRD PARTIES. IN NO EVENT SHALL THE MAXIMUM CUMULATIVE LIABILITY OF BANCPASS IN CONNECTION WITH THE SERVICE AND/OR THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, EXCEED THE AMOUNT OF THE PAYMENTS MADE TO BANCPASS FOR THE SPECIFIC SERVICE(S) GIVING RISE TO SUCH CLAIM IN THE SIX (6) MONTHS PRIOR TO SUCH CLAIM. NO ACTION, REGARDLESS OF FORM, ARISING FROM OR PERTAINING TO THE SERVICE MAY BE BROUGHT BY YOU MORE THAN ONE (1) YEAR AFTER SUCH ACTION HAS ACCRUED. YOU ACKNOWLEDGE THAT THESE LIMITATIONS OF LIABILITY SHALL APPLY EVEN IF THE REMEDIES FAIL THEIR ESSENTIAL PURPOSE AND THAT, WITHOUT THESE LIMITATIONS, YOU WOULD HAVE PAID A HIGHER FEE FOR THE SERVICE PROVIDED HEREUNDER. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
a. BancPass and you agree to arbitrate all disputes and claims between us except for claims seeking injunctive relief in connection with the intellectual property of BancPass. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory;
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.
You agree that, by entering into this Agreement, you and BancPass are each waiving the right to a trial by jury or to participate in a class
action. This Agreement evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this Agreement.
b. A party who intends to seek arbitration must first send to the other a written Notice of Dispute (“Notice”). The Notice must (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). If BancPass and you do not reach an agreement to resolve the claim within 30 days after the Notice is received, you or BancPass may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by BancPass or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or BancPass is entitled.
c. The arbitration will be governed by the Commercial Arbitration Rules 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. The AAA Rules are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitrator is bound by the terms of this Agreement. All issues are for the arbitrator to decide, except that issues relating to the scope and enforceability of the arbitration provision are for the court to decide. Unless BancPass and you agree otherwise, any arbitration hearings will take place in Austin, Texas. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration 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. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The payment of arbitration fees will be governed by the AAA rules.
d. The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party\’s individual claim. YOU AND BANCPASS 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 BancPass agree otherwise, 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. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
BancPass may give notice by means of a general notice on the Service, electronic mail to your e-mail address on record in BancPass\’s account information, or by written communication sent by first class mail or pre-paid post to your address on record in BancPass\’s account information. Such notice shall be deemed to have been given upon the expiration of 48 hours after mailing or posting (if sent by first class mail or pre-paid post) or 12 hours after sending (if sent by email). You may give notice to BancPass (such notice shall be deemed given when received by BancPass) at any time by any of the following: letter sent by confirmed facsimile to BancPass at the following fax number:
(512) 233-2439; letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail to 912 West MLK, Austin, TX 78701, addressed to the attention of: Shannon Swank.
17. Modification to Terms
BancPass reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
18. Assignment; Change in Control
This Agreement may not be assigned by you without the prior written approval of BancPass but may be assigned without your consent by BancPass to (i) a parent or subsidiary, (ii) an acquirer of assets, or (iii) a successor by merger. Any purported assignment in violation of this section shall be void.
a. This Agreement shall be governed by Texas law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction.
b. Any cause of action you may have with respect to your use of the Service must be commenced within one (1) year after the claim or cause of action arises.
c. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provisions shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provisions, with all other provisions remaining in full force and effect.
d. It may be necessary for BancPass to perform scheduled or unscheduled repairs, maintenance, or upgrades and such activities may temporarily degrade the quality of the Service or result in a partial or complete outage of the Service. BancPass provides no assurance that you will receive advance notification of such activities or that the Service will be uninterrupted or error-free. Any degradation or interruption in the Service shall not give rise to a refund or credit of any fees or other amounts paid by you.
e. No joint venture, partnership, employment, or agency relationship exists between you and BancPass as a result of this agreement or use of the Service. The failure of BancPass to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by BancPass in writing.
f. Neither party shall be liable to the other party for any failure to perform any of its obligations (except payment obligations) under this Agreement during any period in which such performance is delayed by circumstances beyond its reasonable control including, but not limited to, fire, flood, war, embargo, strike, riot or the intervention of any governmental authority.
g. If you have not entered into another agreement with BancPass regarding the subject matter contained herein, then this Agreement comprises the entire agreement between you and BancPass and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding such subject matter. However, if you and BancPass have entered into another agreement regarding the subject matter set forth herein, then this Agreement should be read and interpreted in conjunction with such agreement and, in the event of a conflict between this Agreement and a written, signed agreement between the parties, the written, signed agreement shall govern and control.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to
email@example.com or call BancPass at (512)828-6258.