By clicking "Submit." I expressly agree that contracted Rollick insurance partners can contact me at the number and email I provided regarding insurance or other related products or services they offer, which may include use of pre-recorded messages and/or an automated telephone dialing system.
Sam’s Club is not affiliated with Rollick and is not responsible for the information or services provided by Rollick. Sam’s Club makes no endorsement of, nor makes any warranty, express or implied, regarding Rollick’s information or activities.
“Average Savings” represents average savings off MSRP in quotes by Rollick Certified Dealers through the GoRollick Platform as of 5/25/23 on RVs, boats, or powersports (Motorcycles, ATVs, UTVs, Snowmobiles) vehicles as specified. Your actual savings may vary based on multiple factors including the vehicle you select, region, dealer, and applicable vehicle specific manufacturer incentives which are subject to change. Based on analysis performed on 5/25/23 considering MSRP and Dealer Special Price on GoRollick and its Affinity sites, Average RV savings is 19.1% off MSRP; average Boat savings is 5.1% off MSRP; average Powersports savings is 4.5% off MSRP.
Questions? Email us at email@example.com **Bonus Savings on Parts, Service and Accessories subject to dealer participation. Please check with your Certified Dealer for final details. The following brands are ineligible for the Bonus Savings Offer: Tracker Boats, Ranger Boats, Nitro, Triton, Mako, SunTracker, Regency, Tahoe, Ascend and Tracker Off Road. If you do not connect with a dealer for a price certificate, you are not eligible for Bonus Savings.
***$50 gift card offer only valid for vehicles purchased from a Standard Rollick Certified Dealer. $100 gift card offer only valid for vehicles purchased from a Premium Rollick Certified Dealer.
✝Vehicle deductible reimbursement (VDR) benefits not available in New Hampshire and New York.
TERMS OF SERVICE
February 11, 2019
service is owned and operated by Rollick , Inc. and its affiliates (“Rollick”).
Rollick permits access to and use of its online powersports vehicles, watercraft and RV (collectively, “Vehicles”)
information and communications platform, as well as related services that can be accessed from or through the
websites and associate domains of Rollick, including https://www.gorollick.com/
and www.AvalaMarketing.com, the websites and
services of our Vehicles partners and dealer network, and any related mobile applications (collectively, the
“Service”), subject to the terms and conditions in this Terms of Service (“TOS”).
Rollick may, at its discretion, update this TOS at any time. You can access and review the most current version
of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Service
or as otherwise made available by Rollick. By continuing to use the Service after an updated version of
this TOS has been posted, you agree that the new TOS will apply to your use. It is the express wish of the
parties that this Agreement and all related documents, including notices and other communications, be written in
English only. Il est la volonté expresse des parties que cette convention et tous les documents
s’y rattachant, y compris les avis et les autres communications, soient rédigés en anglais
REVIEW THIS TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT, PROVIDING INQUIRY DATA (defined below) OR OTHERWISE
ACCESSING OR USING THE SERVICE, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE
OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE TO BE BOUND BY THIS TOS, DO NOT ACCESS OR USE THE SERVICE.
TOS REQUIRES BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS
TOS OR YOUR ACCESS TO OR USE OF THE SERVICE, INCLUDING, BUT NOT LIMITED TO, THE VALIDITY, APPLICABILITY OR
INTERPRETATION OF THIS TOS (EACH, a “CLAIM”), AND YOU AGREE THAT ANY SUCH CLAIM SHALL BE RESOLVED
ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER
SIMILAR PROCESS. PLEASE REVIEW SECTION 17 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE
RESOLUTION OF ANY CLAIM.You represent and warrant that you are: (a) over eighteen years of age or the
age of majority in your jurisdiction, whichever is greater; (b) of legal age to form a binding contract; and (c)
not a person barred from using the Service under the laws of your country of residence or any other applicable
grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and view
materials within the Service.
the extent that the Service provides access to any online software, applications or other similar components,
Rollick grants you a limited, non-exclusive, non-transferable, non-sublicensable, revocable license to access and
use such components only for your internal business purposes in the form within the online platform provided by
Rollick and solely to access the materials within the Services.
may make available mobile apps for access to and use of certain components of the Service (collectively, “Mobile
Apps”). Your access to and use of Mobile Apps is subject to this TOS and any applicable end user
license agreement provided with each app.
rights granted to you under this TOS are subject to your compliance with this TOS in all material respects and
may only be exercised for your non-commercial personal or educational use. Your access to and use of the Service
must further comply in all material respects with any usage guidelines posted by Rollick.
may browse the Service without submitting information to Rollick, but some features may not be accessible unless
you provide information about yourself as prompted by the Service’s inquiry form (the “Inquiry
Data”). You agree to (i) provide true, accurate, current and complete Inquiry Data, and (ii)
maintain and promptly update the Inquiry Data to keep it true, accurate, current and complete. If you provide any
information that is untrue, inaccurate, not current or incomplete, or Rollick reasonably suspects that you have
information regarding our use of your personal information provided as part of Inquiry Data.
access certain features of the Service you may be required to create an account with Rollick. You are fully
responsible for all activities that occur under your account. You may not share your account or password with
anyone. You agree to notify Rollick immediately of any unauthorized use of your account or password or any other
similar breach of security.
acknowledge and agree that all information, data, data records, databases, text, software, photographs, images,
graphics, videos, messages, scripts, tags and other materials accessible through the Service, whether publicly
posted or privately transmitted, including, without limitation, Vehicle- costs, prices, estimates, taxes,
condition, reviews and specifications (“Content”), are the sole responsibility of
the person from whom such Content originated. This means that you, and not Rollick, are entirely responsible for
all Content that you upload, post, email, transmit or otherwise make available through the Service (“Your
Content”), and other users of the Service, and not Rollick, are similarly responsible for all
Content they upload, post, email, transmit or otherwise make available through the Service (“User
acknowledge and agree that Rollick has no obligation to pre-screen Content (including, but not limited to, Your
Content and User Content), although Rollick reserves the right in its sole discretion to pre-screen, refuse or
remove any Content. Without limiting the generality of the foregoing sentence, Rollick shall have the right to
remove any Content that violates this TOS or that it deems objectionable.
the extent that you submit any Content, you represent and warrant that: (i) you have all necessary right and
authority to grant the rights set forth in this TOS with respect to Your Content; and (ii) Your Content does not
violate any duty of confidentiality owed to another party, or infringe, dilute, misappropriate or otherwise
violate the proprietary or intellectual property rights (including, without limitation, rights in copyrights,
trademarks, privacy and publicity) or any other right of any other party.
does not claim ownership of Your Content; however, you grant Rollick and its service providers a perpetual,
irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use,
reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and
have made Your Content (in any form and any medium, whether now known or later developed) as necessary to provide
the Service. You acknowledge and agree that the technical processing and transmission of data associated with the
Service, including Your Content, may require: (i) transmissions over various networks; and (ii) changes to
conform and adapt to technical requirements of connecting networks or devices.
with respect to Your Content, you acknowledge and agree that, as between you and Rollick, Rollick owns all
rights, title and interest (including, but not limited to, all intellectual property rights) in the Service and
all Content and other materials within the Service. The Service and Content, including Marks (as defined below),
are protected by U.S. and international copyright and other intellectual property laws and treaties and may not
be used for any purpose other than as expressly permitted herein without the prior written permission of Rollick.
Rollick reserves all rights not expressly granted to you.
claims trademark protection over all names, brands, trademarks, service marks and logos that we make available to
you, including the Rollick,
AVALA and Aimbase.com marks
(“Marks”) and you will not use the Marks except as expressly authorized
herein. You will not remove or alter the Marks or any proprietary notices on the Content. The Marks may not be
included in or as part of any registered corporate name, any other logo, or service or product name. You
may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies
an inaccurate sense of endorsement, sponsorship, or association with Rollick. You will not otherwise use
business names and/or logos in a manner that can mislead, confuse, or deceive any third party. All use of the
Marks and all goodwill arising out of such use, will inure to Rollick’s benefit.
with respect to Your Content, you may not: (i) use, capture, reproduce, modify, adapt, create derivative works
from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise
grant rights to the Service, except as expressly permitted under this TOS; (ii) reverse engineer, disassemble,
decompile or translate, or otherwise attempt to derive the source code, architectural framework or data
records within or associated with the Service; (iii) interfere with or disrupt the integrity or
performance of the Services; (iv) access the Service for the purpose of developing, marketing, selling or
distributing any product or service that competes with or includes features substantially similar to the Service
or any products or services offered by Rollick; (v) rent, lease, lend, sell or sublicense the Service or
otherwise provide access to the Service or Content as part of a service bureau or similar fee-for-service
or permit other individuals or entities to create Internet "links" to the Services or Content or "frame" or
"mirror" the Services or Content on any other server, or wireless or Internet-based device; or (vi) remove or
obscure any proprietary notice that appears within the Service.
TO CONTACT BY AUTOMATED MEANS
providing your contact information, including your phone number, you agree that Rollick and its Vehicles partners
and dealer network may contact you, including via telephone calls and texts relating to your Vehicle
interests. You agree that such calls and texts, including sales calls, may be placed through the use
of an automated dialer system. Your consent to receive such calls/texts is not a condition of vehicle
purchase or any other transaction you may complete with Rollick or its Vehicles partners and dealer
connection with your access to or use of the Service, you shall not:
post, email, transmit or otherwise make available any Content that: (i) is illegal, harmful, threatening,
abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful or
otherwise objectionable; (ii) may not be made available under any law or under contractual or fiduciary
relationships (such as confidential or proprietary information learned as part of an employment relationship or
under a non-disclosure agreement); (iii) infringes any patent, trademark, trade secret, copyright or other
proprietary right of any party; (iv) consists of unsolicited or unauthorized advertising, promotional materials,
junk mail, spam, chain letters, pyramid schemes, commercial electronic messages or any other form of
solicitation; (v) contains software viruses or any other code, files or programs designed to interrupt, destroy
or limit the functionality of any software or hardware; or (vi) consists of information that you know or have
reason to know is false or inaccurate.
any person or entity, including, but not limited to, Rollick personnel, or falsely state or otherwise
misrepresent your affiliation with any person or entity;
headers or otherwise manipulate identifiers in order to disguise the origin of any Content transmitted through
in a manner that negatively affects the ability of other users to access or use the Service;
any action that imposes an unreasonable or disproportionately heavy load on the Service or its infrastructure;
with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements,
procedures, policies or regulations of networks connected to the Service;
spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Service or
substantially download, reproduce or archive any portion of the Service or Content;
share, transfer, trade, loan or exploit for any commercial purpose any portion of the Service or Content,
including, but not limited to, your user account and password; or
(i)violate any applicable local,
state, provincial, federal or international law or regulation.
you elect to provide or make available to Rollick any suggestions, comments, ideas, improvements or other
feedback relating to the Service (“Suggestions”), Rollick shall own and be free to
use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute,
make, have made, assign, pledge, transfer or otherwise grant rights in your Suggestions in any form and any
medium (whether now known or later developed), without accounting, credit or compensation to you.
WITH ADVERTISERS AND OTHER THIRD PARTIES
dealings with advertisers and other third parties who market, sell, buy or offer to sell or buy any goods or
services on the Service, including payment for or delivery of such goods or services and any other terms,
conditions, warranties or representations associated with such dealings, are solely between you and the
advertiser or other third-party. You agree that Rollick shall not be liable for any damage or loss of any kind
incurred as a result of any such dealings.
AND EXTERNAL MATERIALS
Service or users of the Service may provide links to other websites or resources. You acknowledge and agree that
Rollick does not endorse and is not responsible for any content, advertising, products, services or other
materials on or available through such sites or resources (“External Materials”).
reviewing. You further acknowledge and agree that Rollick shall not be liable for any damage or loss resulting
from or arising out of use of or reliance on any External Materials.
TO THE SERVICE
reserves the right at any time to modify or discontinue the Service (or any portion thereof) with or without
notice, and Rollick shall not be liable to you for any such modification or discontinuance.
shall indemnify and hold Rollick and its affiliates, and each of their officers, directors, employees, agents,
partners and licensors (collectively, “Rollick Parties”) harmless from and against
all, losses, damages, costs, liabilities and expenses, including, but not limited to, reasonable attorneys' fees,
to the extent resulting from or arising out of any third party claim, demand, or action due to: (a) your
violation of this TOS or any law or regulation; (b) Your Content; (c) your use of the Service or Content, except
as expressly permitted in this TOS; or (d) your violation of any rights of another party. At the discretion of
Rollick, you shall also defend Rollick from such claims, demands and actions.
USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL
FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE ROLLICK PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES
OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE,
INCLUDING, BUT, NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, AND NON-INFRINGEMENT. (b)THE ROLLICK PARTIES MAKE NO REPRESENTATION OR WARRANTY THAT:
(i) THE SERVICE WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE,
VIRUS-FREE OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF
THE SERVICE, INCLUDING, WITHOUT LIMITATION, THE CONTENT, WILL BE ACCURATE, RELIABLE, CURRENT OR COMPLETE. (c)
WITHOUT LIMITING THE FOREGOING, ALL CONTENT MADE AVAILABLE THROUGH THE SERVICE IS MADE AVAILABLE FOR
INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL INFORMATION BEFORE
TAKING OR OMITTING ANY ACTION.
ACKNOWLEDGE AND AGREE THAT THE ROLLICK PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, GOODWILL OR DATA, OR
COST OF COVER, OR INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT
LIMITED TO, DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS OR FINANCIAL LOSS, EVEN IF THE
ROLLICK PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER
SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL THE ROLLICK PARTIES’ TOTAL LIABILITY TO YOU FOR ANY AND ALL
CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE
SERVICE OR CONTENT EXCEED THE GREATER OF FIFTY DOLLARS ($50) OR THE AMOUNT PAID BY YOU TO ROLLICK FOR ACCESS TO
THE PORTION OF THE SERVICE AT ISSUE WITHIN THE TWELVE (12) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE
APPLICABLE CLAIM(S) AROSE. (b)THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS
OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE),
STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR
DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH
LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH
APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF
RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
party may terminate this TOS at any time. In the event that you violate this TOS, all rights granted to you under
this TOS shall terminate immediately, with or without notice to you. To the extent that your access to the
Service arises from a separate agreement, such access shall terminate upon termination of the applicable
agreement or as otherwise set forth in such agreement.
termination of this TOS for any reason: (i) Rollick, in its sole discretion, may remove and discard Your Content;
(ii) you will immediate cease your use of the Services and Content, other than Your Content; and (ii) any
provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such
expiration or termination.
TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act,
other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles.
The United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from
application to this TOS.
ARBITRATION AND CLASS ACTION WAIVER
CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED BY BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU
MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION
THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IN AUSTIN, TEXAS, IF YOUR CLAIMS ARE WITHIN THE COURT’S
JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED. (b)
The arbitration shall be conducted by the american arbitration association (aaa) under its then-applicable
commercial arbitration rules or, as appropriate, its consumer arbitration rules. The aaa’s rules are
available at http://www.Adr.Org/. Payment of all filing, administration and arbitrator fees shall be governed by
the aaa’s rules. The arbitration shall be conducted in the english language by a single independent and
neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing
shall be conducted in austin, texas or, if the consumer arbitration rules apply, another location reasonably
convenient to both parties with due consideration of their ability to travel and other pertinent circumstances,
as determined by the arbitrator. The decision of the arbitrator on all matters relating to the claim shall be
final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction. (c)
WE EACH AGREE THAT ALL CLAIMS (AS DEFINED IN SECTION 1) SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN
A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. IF FOR ANY REASON A CLAIM
PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM
SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL
JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR
ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM. (d) Notwithstanding anything to the contrary, you and
rollick may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to
protect our intellectual property rights, whether in aid of, pending or independently of the resolution of any
dispute pursuant to the arbitration procedures set forth in this section 17.
represent and warrant that you are not: (a) located in a country that is subject to a U.S. Government embargo, or
designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S.
Government list of prohibited or restricted parties, including, but not limited to, the Specially Designated
section applies to access to or use of the Service by a branch or agency of the United States Government. The
Service includes “commercial computer software” and “commercial computer software
documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items”
as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or
on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition
by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R.
227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS
with respect to the such items, and any access to or use of the Service by the United States Government
constitutes: (i) agreement by the United States Government that such items are “commercial computer
software” and “commercial computer software documentation” as defined in this section; and (ii)
acceptance of the rights and obligations herein.
agree that, except as otherwise expressly provided in this TOS, there shall be no third-party beneficiaries to
FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
you believe that your work has been made available through the Service in a way that constitutes copyright
infringement, please provide Rollick’s Agent for Notice of Copyright Claims the following information: (a)
a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right
that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if
multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a
description of the material that you claim is infringing and where that material may be accessed within the
Service; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith
belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent
or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty
of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly
infringed. Rollick’s Agent for Notice of Copyright Claims can be reached as follows:
for Notice of Copyright Claims 13215 Bee Cave Parkway
Cave, Texas 78738
TOS constitutes the entire agreement between you and Rollick concerning your access to and use of the Service and
Content. It supersedes all prior or contemporaneous oral or written negotiations and agreements between you and
Rollick with respect to such subject matter. This TOS may not be amended by you except in a writing executed by
you and an authorized representative of Rollick. You may not assign or delegate any right or obligation under
this TOS without the prior written consent of Rollick. Rollick may assign this TOS, in whole or in part, at any
time in its sole discretion. The failure of Rollick to exercise or enforce any right or provision of this TOS
shall not constitu