Qmerit Terms of Use

USE OF THE QMERIT WEBSITE CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS
PLEASE READ THESE TERMS CAREFULLY

Updated: January 22, 2024

Please read the following Terms of Use carefully before using Qmerit’s or any Program Sponsor’s “Find an Installer” Website (the “Website”) and the services available through the Website (the “Services”). By accessing or using this Website or any of the Services, you agree to all of the terms and conditions set forth below. You should review these terms and conditions regularly as they may change at any time at our sole discretion. If you do not agree to any term or condition, you should not access or otherwise use this Website. Your continued use of the Website and any Services means you accept and agree to be bound by the modified Terms of Use.

1. This Website is Intended to Help You Identify a Third-Party Licensed Installer

This Website is provided to you by Qmerit Electrification LLC, without charge, as a convenience and for your information only. The purpose of this Website is to help you find an installer for electrification products who has demonstrated certain competencies for the installation of specified products in your home or business (an “Installer”). Our services are available as a matter of convenience to assist you in contacting local Installers and receiving bids for installation of electrification products. While you may access our services by means of a link from the manufacturer of your vehicle, your electrification product manufacturer, or a fleet management company (a “Program Sponsor”), neither we nor the Program Sponsor guarantee the qualifications or quality of any Installer and, in all cases, it remains your responsibility to negotiate, select and contract with any of the Installers featured on this Website.

2. We are Not Licensed Contractors, and You Are Solely Responsible for the Installer You Hire

We are not a general contractor or a licensed contractor of any type, and neither we nor the Program Sponsors are performing the installation services and are not managing or overseeing any Installer who performs services. While certain service providers are visible as Installers on our Website, once those service providers submit evidence of having met specific criteria set by us or our Program Sponsor, neither we nor the Program Sponsors endorse nor are responsible or liable for any Installer, nor any of their related claims, data, advertising, products, goods or services available or unavailable from, or through, an Installer or any other third party. Although we may in many cases collect payment from you, or from a Program Sponsor or from a vehicle finance company, and then process payments being paid to the Installer for the work the Installer is doing at your home, we are not the Installer, and we are not responsible for any of the work performed by the Installer. Notwithstanding any steps that we may take, your determination of which Installer to select, as well as your dealings with, or participation in promotions with, any other Installers and any other terms, conditions, representations or warranties associated with such dealings, are between you and the Installer exclusively. You should make whatever investigation or use whatever other resources that you deem necessary or appropriate before hiring or engaging any Installer. Please carefully read our Disclaimers and Limits of Liability in Section 3.

3. We Provide Our Website “As Is,” Disclaim All Warranties and Liability Regarding the Installers’ Services, and Limit Our Liability

OUR WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. WE DISCLAIM ALL WARRANTIES AND CONDITIONS, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. NEITHER WE NOR THE PROGRAM SPONSORS ASSUME ANY LIABILITY OF ANY KIND RELATED TO YOUR USE OF THE WEBSITE OR THE SERVICES OF ANY INSTALLER. IN OTHER WORDS, YOU USE OUR WEBSITE AT YOUR OWN RISK. UNDER NO CIRCUMSTANCES, INCLUDING BUT NOT LIMITED TO NEGLIGENCE OR BREACH OF ANY CONDITIONS OR WARRANTIES, SHALL WE OR OUR OFFICERS, DIRECTORS, SHAREHOLDERS, OR PROGRAM SPONSORS (“RELEASED PARTIES”) BE LIABLE FOR ANY CLAIMS, DEMANDS, LOSSES, LIABILITY, LAWSUITS, LIENS, JUDGMENTS, TAXES, FEES, COSTS AND/OR EXPENSES (INCLUDING REASONABLE ATTORNEYS’ FEES, COSTS AND EXPENSES) (COLLECTIVELY “DAMAGES”) WHETHER DIRECT OR INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. THIS INCLUDES, WITHOUT LIMITATION, DAMAGES CAUSED BY OR RELATED TO (A) ANY INSTALLATION OR DELAY OR FAILURE IN INSTALLATION; (B) FAILURE OF ANY PARTY TO APPEAR; (C) SERVICES THAT NEED TO BE RESCHEDULED, OR WHICH EXTEND FOR LONGER THAN ORIGINALLY QUOTED OR FOR A HIGHER AMOUNT THAN ORIGINALLY QUOTED OR CONTRACTED; (D) CLAIMS FOR INJURY OR DEATH, LOSS OR DAMAGE TO PROPERTY, LOSS OF USE, LOSS OF DATA OR LOSS OF PROFIT ARISING OUT OF THE USE OF YOUR PROPERTY, OR ANY SYSTEM, OR THE INABILITY TO USE THIS WEBSITE OR THE SERVICES; (E) COSTS OF ANY EQUIPMENT DAMAGED BY AN INSTALLER; (F) THE CONDUCT OR STATEMENTS MADE BY ANY INSTALLER, WHETHER INTENTIONAL, NEGLIGENT OR OTHERWISE; OR (G) ADHERANCE OR LACK OF ADHERANCE WITH ANY BUILDING CODES OR OTHER LAWS GOVERNING THE SERVICES, EVEN IF ONE OF OUR REPRESENTATIVES HAS BEEN ADVISED OF THE POSSIBILITY OF YOUR DAMAGES. NEITHER WE NOR THE PROGRAM SPNSORS ARE LIABLE FOR CRIMINAL, TORTIOUS, OR NEGLIGENT ACTIONS OR OMISSIONS OF ANY WEBSITE USER, INCLUDING INSTALLERS. IN NO EVENT WILL ANY RELEASED PARTY BE HELD LIABLE FOR ANY NEGLIGENT, TORTIOUS OR ILLEGAL CONDUCT OF INSTALLERS OR OTHER WEBSITE USERS. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. IN SUCH JURISDICTIONS, OUR LIABILITY IS LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW. WITH RESPECT TO DIRECT DAMAGES RELATED TO THESE TERMS OF USE, THE LIABILITY FOR SUCH DAMAGES SHALL NOT EXCEED $100 IN THE AGGREGATE. IN ALL EVENTS, YOU WAIVE THE RIGHT TO BRING OR ASSERT ANY CLAIM AGAINST ANY RELEASED PARTY RELATING TO ANY INTERACTIONS OR DEALINGS WITH ANY INSTALLER, AND YOU HEREBY RELEASE ALL RELEASED PARTIES FROM ANY AND ALL LIABILITY FOR OR RELATING TO ANY OF YOUR INTERACTIONS OR DEALINGS WITH INSTALLERS.

4. How You Can Access the Website

As a condition of your use of the Website, you agree to (a) provide us with true, accurate, current and complete information when registering for or using the Website and any available Services and (b) update and maintain the truthfulness, accuracy and completeness of such information.

Provided you comply with these Terms of Use, you are hereby granted a non-exclusive, non-transferable, non-sublicensable right to access and use the Website and any available Services for your personal or internal company use. You agree not to reproduce, duplicate, copy, sell, re-sell, modify, distribute, transmit, or otherwise exploit the Website or Services or any of the information contained therein for any purpose except for your personal or internal company use and as described in these Terms of Use.

5. About the Information You Provide

We do not want to receive confidential or proprietary information from you through our Website. You should only transmit information necessary for you to make contact with any Installer from whom you wish to receive a quotation, or whom you would like to have contact you directly. If you transmit to or post on our Website any material, data, information or idea by any means, it will be shared with Installers with whom you are interacting. This includes any Personally Identifiable Information (“PII”) you provide to us. For more information on how we handle PII, please see our Privacy Policy. With regard to any content you submit to us which is not your PII (“User Content”), you agree that:

you grant to us a royalty free, perpetual, irrevocable, worldwide, non-exclusive, transferable, and sublicensable license to use, reproduce, transmit, copy, adapt, modify, merge, publicly display, create derivative works from, and incorporate into other works any User Content, and further acknowledge that this license cannot be terminated by you once such User Content is submitted to the Website;

you own or have secured all legal rights and consents necessary for you to submit the User Content to us and grant us the foregoing license to the User Content;

all of your survey responses, reviews and ratings of the Installer or Qmerit will be accurate, honest, truthful, and complete in all respects;

you will not post to, or transmit from or through, our Website any unlawful, threatening, libelous, defamatory, obscene, scandalous, inflammatory, pornographic, or profane material, or any other content that could give rise to any civil or criminal liability under the law;

we may, in our sole discretion, determine whether any User Content complies with the Code of Conduct set forth below, and determine whether to remove or not to remove reviews and ratings once published in accordance with such Code of Conduct.

6. Code of Conduct While Using the Website

With regard to your use of the Website, you agree not to:

intentionally or unintentionally violate: these Terms of Use; any applicable local, state, national or international law; or any applicable rules and regulations having the force of law;

use the Website in any manner that violates any applicable law or that infringes, misappropriates or violates any third party’s rights, including, but not limited to, transmitting any User Content that may infringe, misappropriate or violate a third party’s rights of publicity, contractual rights, fiduciary rights or intellectual property rights;

use the Website or its content for any purposes not authorized by these Terms of Use, including the submission or transmission of any User Content that contains advertisements, promotional materials, junk mail, or any other form of solicitation;

harass, threaten, intimidate, impersonate, or attempt to impersonate, any other person, falsify your contact or other information, misrepresent a relationship with any person or entity, or otherwise attempt to mislead others as to the identity of the sender or the origin of a review or rating;

knowingly provide or submit false or misleading information on or through the Website;

attempt to gain unauthorized access to the Website, other user accounts, or other computer systems or networks connected to the Website, or any other systems or networks connected to hacking, password ‘mining’ or any other illegitimate or unauthorized means, including attempting to obtain password, account, or any other personal or private information from any other user;

transmit or submit any transmission or other materials that are encrypted or that contain viruses, Trojan horses, worms, time bombs, spiders, cancelbots or other computer programming routines; or

probe, scan or test the vulnerability of the Website, nor breach the security or authentication measures on the Website. You may not reverse look-up, trace or seek to trace any information on any other user, or exploit the Website in any way where the purpose is to reveal any information, including but not limited to personal identification or information other than your own information, except as expressly authorized by these Terms of Use.

7. We Do Not Have Responsibility for Links to Third Party Content

We may provide hyperlinks or pointers to other sites maintained by third parties or may provide third party content on our website by framing or other methods. The links to third party sites are provided for your convenience and information only. The content in any linked sites is not under our control so we are not responsible for the content, including any further links in a third party site. If you decide to access any of the third party sites linked to our website, you do this entirely at your own risk. It is up to you to take precautions to ensure that the third party you link to for your use is free of computer viruses, worms, Trojan horses and other items of a destructive nature.

8. If We Provide a Link, We Do Not Necessarily Endorse Any Third Party

We reserve the right to terminate a link to a third party site at any time. The fact that we provide a link to a third party site does not mean that we endorse, authorize or sponsor that site. It also does not mean that we are affiliated with the third party site’s owners or sponsors.

9. If a Third Party Links to Our Website, It is Not an Endorsement

If a third party links to our site, it is not necessarily an indication of an endorsement, authorization, sponsorship, affiliation, joint venture or partnership by or with us. In most cases, we are not aware that a third party has linked to our site.

Except for links which we have initiated, including those from a Program Sponsor, a site that links to our Website:

• May link to, but not replicate, our content, all of which, is subject to copyright protection;
• Should not create a browser, border environment or frame our content;
• Should not imply that we are endorsing it or its products;
• Should not misrepresent its relationship with us;
• Should not present false information about our products or services;
• Should not contain content that could be construed as distasteful, offensive or controversial, and should contain only content that is appropriate for all age groups.

10. Your Use of Our Website is Restricted

Our Website and its content are owned and operated by us. The content is copyrighted and protected by U.S. and worldwide copyright laws and treaty provisions. In addition, the content is protected by trademark laws, the laws of privacy and publicity, and communications regulations and statutes. All right, title and interest to these intellectual properties, including the software and services platform which is used to operate the Website, unless used by Qmerit under license, are exclusively owned by Qmerit.

No content from www.qmerit.com, www.qmeritcharging.com or any other website owned, operated, licensed or controlled by us or by our Program Sponsor may be copied, reproduced, republished, modified, uploaded, posted, transmitted, or distributed in any way. You also may not, without our permission, “mirror” any material contained on our Website on any other server.

The following is a non-exclusive list of registered and non-registered trademarks or service marks of QMERIT or its subsidiaries, in the United States and/or other countries or jurisdictions: QMERIT and the Qmerit Logo. To the extent a name, logo or design does not appear on the above list, such lack of appearance does not constitute a waiver of any intellectual property rights that Qmerit has established in its product or service names or logos, or in product configurations or designs, all of which rights are expressly reserved.

11. By Providing Content, We Do Not Allow You to Use Our Trademarks or Servicemarks

The trademarks and service marks and logos of Qmerit, along with those of our affiliates and Program Sponsors, which are used and displayed on our Website are our registered and unregistered trademarks, or those of our affiliates and Program Sponsors. Nothing on this Website should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of these trademarks without our written permission. Requests to use trademarks owned by other companies which may be mentioned on this Website should be directed to such other companies. We aggressively enforce our intellectual property rights. The name of Qmerit, our logo or any of the trademarks or service marks of our affiliates and Program Sponsors may not be used in any way, including in advertising or publicity pertaining to distribution of materials on our Website, without our prior written permission. You are not authorized to use our logo as a hyperlink to our Website unless you obtain our written permission in advance.

12. You Must Obey Local Laws in Accessing Our Website

The Website is controlled by us from our offices within the United States of America. We make no representation that content or materials on the Website are appropriate or available for use in other jurisdictions. If you choose to access this site from other jurisdictions, you do so on your own initiative and are responsible for compliance with applicable local laws, including but not limited to the export and import regulations. We are not responsible for any law violations. You may not use or export the materials in this Website in violation of U.S. export laws and regulations.

The materials on the Website are subject to the United States Export Administration Laws and Regulations. Diversion of such materials contrary to United States law is prohibited. Neither the materials, nor any information acquired through the use of the Website, may be acquired for, shipped, transferred, or re- exported, directly or indirectly, to proscribed or embargoed countries or their nationals, nor may it be used for nuclear activities, chemical biological weapons, or missile projects, unless specifically authorized by the United States Government for such purposes. You shall comply strictly with all United States export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.

13. Handling of Copyright Claims

In accordance with Section 5, you are responsible for ensuring that User Content you post on our Website does not infringe on the rights of any copyright owned by any other person or entity. We will promptly remove materials in accordance with the Digital Millennium Copyright Act (“DMCA”) if we are properly notified that the User Content infringes the copyright of any other person or entity in accordance with the procedures set forth in this section. If you were the one who posted the User Content, you will be notified and we shall take the other steps set forth in these Terms of Use, which can include termination of your account and/or a demand that you indemnify us for any claims that may arise from your infringing post.

The procedure for handling DMCA claims is found here.

14. You Agree to Indemnify Us for Using Our Website

By accessing this Website and/or using the Services, you agree to indemnify, defend and hold harmless Qmerit, its officers, directors, employees, agents, licensors, suppliers, Program Sponsors and any third party information providers (“Indemnified Parties”) from and against all losses, expenses, damages and costs, including reasonable attorneys’ fees (“Claims”), resulting from or related to (a) any violation of these Terms of Use by you; (b) User Content submitted by you; and (c) the services you received from any Installer. Qmerit shall have sole control of the defense of any such Claim.

15. Third Parties May Have Rights Under This Agreement

Some of the provisions of these Terms of Use are for the benefit of Qmerit and its officers, directors, employees, agents, licensors, and suppliers, as well as Program Sponsors. You acknowledge that each of these individuals or entities, including any party designated as a Released Party or Indemnified Party, shall have the right to assert and enforce those provisions directly against you on its own behalf, and such parties shall be intended third party beneficiaries of these Terms of Use.

16. How This Agreement May Be Terminated

These Terms of Use may be terminated by either party without notice at any time for any reason provided that you may no longer use our Website after you have terminated these Terms of Use. Provisions 3, 4, 7, 8, 9 and 12-19 of these Terms of Use shall survive any termination.

17. Notices May Be Provided Electronically

By use of the Website, you consent to receive electronic communications from us via email or directly to your account, and you agree that any such communications satisfy any legal requirement to make such communications in writing. You also agree that we may communicate any notices to you under these Terms of Use, through electronic mail, regular mail or posting the notices on the Website. All notices to us will be provided by either sending: (i) an email to customerservice@qmerit.com or (ii) a letter, first class certified mail, to Qmerit Electrification, LLC, 2 Venture, Suite 550, Irvine, California 92618; Attn: User Services. Notices sent by mail will be deemed delivered upon the earlier of the verification of delivery or two (2) business days after being sent.

18. Applicable Law; Limited Time to Make a Claim

Any claims relating to our Website, the Services you receive, shall be governed by the laws of the State of California without giving effect to any principles of conflicts of laws. You agree that any legal action or proceeding between us for any purpose concerning these Terms of Use or the parties’ obligations shall be brought exclusively in arbitration in accordance with Section 19 below. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE OR THESE TERMS OF USE SHALL BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR WILL FOREVER BE BARRED. If any provision of the Terms of Use is found to be unenforceable or invalid, that provision shall be limited or eliminated to the minimum extent necessary so that the Terms of Use shall otherwise remain in full force and effect and enforceable.

19. Mandatory Arbitration and Class Action Waiver

We both agree that any dispute, claim, or controversy between you and Qmerit arising in connection with or relating in any way to the Website, the Services or these Terms of Use, or to your relationship with Qmerit or any of our Program Sponsors as a user of the Service (whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and whether the claims arise during or after the termination of the Services or these Terms of Use) will be determined by mandatory binding individual (not class) arbitration before a single arbitrator. We both agree that the arbitrator shall have the exclusive power to rule on his or her own jurisdiction, including any objections with respect to the existence, scope or validity of the Mandatory Arbitration provisions in these Terms of Use or to the arbitrability of any claim or counterclaim. Arbitration is more informal than a lawsuit in court. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. There may be more limited discovery than in court. The arbitrator must follow this agreement and can award the same damages and relief as a court, except that the arbitrator may not award any relief, including declaratory or injunctive relief, benefiting anyone but the parties to the arbitration.

BOTH YOU AND QMERIT 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 ACTION. Unless both of us agree, no arbitrator or judge may consolidate more than one person’s claims or 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 a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court.

20. Efforts to Resolve a Claim Before Commencing Arbitration

A party who intends to seek arbitration must first send a written notice of the dispute to the other, by certified mail, Federal Express, UPS, or Express Mail (signature required), or in the event that we do not have a physical address on file for you, by electronic mail (“Notice”). Our address for Notice is: Qmerit Electrification, LLC, ATTN: General Counsel, 2 Venture, Suite 550, Irvine, California 92618. The Notice must (1) describe the nature and basis of the claim or dispute; and (2) set forth the specific relief sought (“Demand”). We agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, either one of us may commence an arbitration proceeding.

21. How Arbitration is Commenced and Administered

Once the procedure in Section 20 has been satisfied or the time has expired, either you or we may start arbitration proceedings. Any arbitration between us will take place under the Consumer Arbitration Rules of the American Arbitration Association (“AAA”) then in force (the “AAA Rules”), as modified by this Arbitration Agreement. You and we both agree that the Federal Arbitration Act applies and governs the interpretation and enforcement of this provision (despite the choice of law provision above). The AAA Rules, as well as instructions on how to file an arbitration proceeding with the AAA, appear at adr.org, or you may call the AAA at 1-800-778-7879. We can also help put you in touch with the AAA. All documents and information disclosed in the course of the arbitration shall be kept strictly confidential by the recipient and shall not be used by the recipient for any purpose other than for purposes of the arbitration or the enforcement of the arbitrator’s decision and award and shall not be disclosed except in confidence to persons who have a need to know for such purposes or as required by applicable law.

22. Where the Arbitration Would Take Place

Subject to Section 24 below, any arbitration hearings will take place in the county (or parish) of your billing address, or the closest location in which the AAA is able to administer the arbitration. If the claim is for $25,000 or less, you may choose whether the arbitration will be conducted (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance based telephonic hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address.

23. Who Pays for the Arbitration?

If you choose to file an arbitration proceeding and you are required to pay a filing fee, we will reimburse you for that filing fee, unless your claim is for greater than US $25,000, in which case you will be responsible for the filing fee. We will pay any other arbitration fees, including your share of arbitrator compensation, unless otherwise required by AAA rules or court order. 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 decision and award, if any, are based. If we are the prevailing party, you will reimburse us for any arbitration costs or fees we paid on your behalf. Except as part of an indemnity obligation which expressly recites the recovery of attorneys’ fees set forth in these Terms of Use, each party shall bear its own attorneys’ fees.

24. Enforceability

A motion to compel arbitration may be brought by either party in any court in any jurisdiction or venue in which an action has been filed. If the arbitration provisions set forth in Section 19 – 23 are invalidated in whole or in part, the parties agree to the following provisions in lieu of arbitration: The exclusive jurisdiction and venue shall be the federal or state court in Orange County, California, and we both hereby agree and consent to such exclusive jurisdiction to resolve any dispute, claim or controversy related to these Terms of Use in such jurisdiction and venue. You waive any defense of lack of personal jurisdiction or improper venue or forum non conveniens to a claim brought in such court; provided, however, that we may elect, in our sole discretion, to litigate the action in the county or state where any breach by you occurred or where you can be found. No action may consolidate more than your individual claims and you waive the right to have any court preside over any form of a representative or class proceeding. You agree to limit any relief sought with the court to only your claims as the individual party seeking relief and only to the extent necessary to provide relief warranted by your individual claim.

25. Miscellaneous

These Terms of Use and other agreements, rules, and policies incorporated by reference to these Terms of Use, including, without limitation, the Privacy Policy, constitutes the entire agreement between us and supersedes any prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between you and Qmerit regarding the subject matter contained in these Terms of Use. Additional terms and conditions may exist between you and third parties, including but not limited to, Installers. These Terms of Use are not assignable, transferable or sublicensable by you except with our prior written consent. We may transfer, assign or delegate this agreement and all rights and obligations hereunder without consent. No joint venture, partnership, employment or agency relationship exists between us as a result of these Terms of Use or use of the Website. Our failure to insist upon or enforce strict performance of any provision of these Terms of Use shall not be construed as a waiver of any provision or right. Neither the course of conduct between the parties nor trade practice shall act to modify any provision of these Terms of Use.