GEARLY PTY (Ltd) t/a eazigear
Registered in terms of the Companies Act 71 of 2008
and Companies Amendment Bill 40 of 2010 on 24/01/2019
Previously updated: 22 January 2019
Last updated 24 April 2020
PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING THE SERVICES.
Your access and use of the Services constitute your agreement to be bound by these Terms, which establishes a contractual relationship between you and EAZIGEAR. If you do not agree to these Terms, you may not access or use the Services. These Terms expressly supersede prior agreements or arrangements with you. EAZIGEAR may immediately terminate these Terms or any Services with respect to you, or generally cease offering or deny access to the Services or any portion thereof, at any time for any reason.
Supplemental terms may apply to certain Services, such as policies for a particular event, activity or promotion, and such supplemental terms will be disclosed to you in connection with the applicable Services. Supplemental terms are in addition to, and shall be deemed a part of, the Terms for the purposes of the applicable Services. Supplemental terms shall prevail over these Terms in the event of a conflict with respect to the applicable Services.
EAZIGEAR may amend the Terms related to the Services from time to time. Amendments will be effective upon EAZIGEAR’s posting of such updated Terms at this location or the amended policies or supplemental terms on the online application. Amendments to terms will be broadcast to all “Producer’s”” of the service by way of notification and prompt to continue. Your continued access or use of the Services after such posting constitutes your consent to be bound by the Terms, as amended.
Our collection and use of personal information in connection with the Services is as provided in EAZIGEAR. EAZIGEAR may provide to an insurer any necessary information (including your contact information) if a “Producer” or “Vendor” elects to take insurance cover out via the portal. This would cover any dispute or conflict, which may include an accident, involving you and a “Vendor” or a ”Producer” (including an equipment network company driver) and such information or data is necessary to resolve the complaint, dispute or conflict. EAZIGEAR will not facilitate claims as a third-party.
All online transactions are facilitated by way of secure online billing protocols. No full financial, personal or business data associated with financial accounts is made available to any person within EAZIGEAR. The service does not store the aforementioned data in any capacity outside of what is allowed by the “Producer’s”” own banking platform.
- The Services
The Services constitute a technology platform that enables “Producer’s” of EAZIGEAR’s mobile applications or websites provided as part of the Services (each, an “Application”) to arrange and schedule equipment and/or logistics services with independent “Vendor’s” of such services, including independent third-party equipment providers and independent third-party logistics providers under agreement with EAZIGEAR or certain of EAZIGEAR’s affiliates (“Vendor’s”). You acknowledge that EAZIGEAR does not, unless requested at additional cost, provide equipment or logistics services or function as an equipment carrier and that all such equipment or logistics services are provided by independent third–party contractors who are not employed by EAZIGEAR.
Restrictions and Intellectual Property Ownership.
You may not: (i) remove any copyright, trademark or other proprietary notices from any portion of the Services; (ii) reproduce, modify, prepare derivative works based upon, distribute, license, lease, sell, resell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Services except as expressly permitted by EAZIGEAR; (iii) decompile, reverse engineer or disassemble the Services except as may be permitted by applicable law; (iv) link to, mirror or frame any portion of the Services; (v) cause or launch any programs or scripts for the purpose of scraping, indexing, surveying, or otherwise data mining any portion of the Services or unduly burdening or hindering the operation and/or functionality of any aspect of the Services; or (vi) attempt to gain unauthorized access to or impair any aspect of the Services or its related systems or networks.
The Services and all rights therein are and shall remain EAZIGEAR’s property or the property of EAZIGEAR’s licensors. Neither these Terms nor your use of the Services convey or grant to you any rights: (i) in or related to the Services except for the limited license granted above; or (ii) to use or reference in any manner EAZIGEAR’s company names, logos, product and service names, trademarks or services marks or those of EAZIGEAR’s licensors.
Subject to your compliance with these Terms, EAZIGEAR grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferrable license to: (i) access and use the Applications on your personal device solely in connection with your use of the Services; and (ii) access and use any content, information and related materials that may be made available through the Services, in each case solely for your personal, noncommercial use. Any rights not expressly granted herein are reserved by EAZIGEAR and EAZIGEAR’s licensors.
Provision of the Services.
You acknowledge that the Services may be made available under such brands or request options by or in connection with: (i) certain of EAZIGEAR’s subsidiaries and affiliates; or (ii) independent “Vendor’s”, including equipment network company drivers, equipment charter permit holders or holders of similar equipment permits, authorizations or licenses.
Third-party Services and Content.
- Your Use of the Services
In order to use most aspects of the Services, you must register for and maintain an active personal “Producer” Services account (“Account”). You must be at least 18 years of age, or the age of legal majority in your jurisdiction (if different than 18), to obtain an Account. Account registration requires you to submit to EAZIGEAR certain personal information, such as your name, address, mobile phone number, references, a scan of your original South African identity document and age, as well as at least one valid payment method (either a credit card or accepted payment partner). You agree to maintain accurate, complete, and up-to-date information in your Account. Your failure to maintain accurate, complete, and up-to-date Account information, including having an invalid or expired payment method on file, may result in your inability to access and use the Services or EAZIGEAR’s termination of these Terms with you. You are responsible for all activity that occurs under your Account, and you agree to maintain the security and secrecy of your Account “Producer” name and password at all times. Unless otherwise permitted by EAZIGEAR in writing, you may only possess one Account.
Upon “Producer” registration a holding amount of R150 will be placed via the elected payment method to determine that it is in good stead. Upon confirmation of any forthwith hire: EAZIGEAR will hold the full amount of the transaction via the payment method elected by the “Producer”. Upon completion of the hire period, EAZIGEAR will claim the hire fee less the initial registration holding amount to complete the transaction. Upon finalization of the payment to EAZIGEAR the service will initiate a 7–day payment deadline.
“Producer” Requirements and Conduct.
“Vendor’s” upload and specify details of their own equipment to have represented via EAZIGEAR.
“Producer’s”” create an account by way of personal / company information including a fixed address, South African ID or International passport and a functional payment method.
No “Producer” profile is active without credit card or other payment method authorization complete via the login portal.
“Vendor’s” select a day fee as well as a weekly fee to charge for direct hire: with a nominal discount to “Producer” included. This discount necessitates the immediate payment structure. The free market concept will naturally drive ongoing discounted rates over time.
EAZIGEAR advises that all items advertised as available are discounted. This choice remains that of the owner, and lower prices will enhance the trade market.
Set fees on the platform are not negotiable. “Vendor’s” can adjust their fees at will via their access medium within the service: unless there is an open booking (“pencil”) on the equipment. Once a “pencil” is issued, the price will remain locked until either confirmed or released via the EAZIGEAR dashboard.
“Vendor’s” are responsible for ensuring that any gear items listed are in full working order. A gear-check conducted by the “Producer” must determine the functionality of the equipment. If the equipment is found to be unusable the “Vendor” will be responsible for collection and repair. The item will be removed from the platform until such time as the “Vendor” re-uploads it in full working order.
If at a gear–check the equipment is found to be unusable EAZIGEAR functionality allows for an immediate swop out for a new item at the same agreed cost, from a different “Vendor” on the platform.
Once confirmed on a job, “Vendor’s” are responsible for transporting their gear timeously, and in full and working order to the gear-check for handover. “Vendor’s” can elect in registration that they require EAZIGEAR to store and transport gear. The “Vendor” acknowledges that this is at a cost which will be deducted from the hire fee.
EAZIGEAR works on a commission basis of 30% of the hire cost, excluding Value Added Tax.
“Vendors“ must specify if it is required that they operate the gear that has been listed. Operator fees are reflected as separate to the gear fee and paid as gross to the “Vendor”. In such a case “Vendor’s” are responsible for their own PAYE and SARS commitments.
“Vendor’s” keep first-option on their gear and can elect to confirm or decline the “Producer” request within 24hrs of said request to confirm.
If for any reason gear should become inoperable during production, by no fault of the production, the “Producer” has the opportunity to request an immediate replacement. The contract between the “Producer” and the “Vendor” will terminate at the point of previous day of days, and the residual funds will be payable to the second “Vendor”. E.g. – if your equipment becomes unusable on shoot day 2 of 5 because of a maintenance issue, you will be paid only for day 1. The second “Vendor” will be paid for days 2 to day 5.
If the equipment becomes inoperable during production by fault of the production, the standard insurance clause by either the “Vendor’s” own or the productions insurance as identified in the gear listing will initiate.
You may not authorize third parties to use your Account, and you may not allow persons under the age of 18 to receive equipment or logistics services from ““Vendor’s”” unless they are accompanied by you. You may not assign or otherwise transfer your Account to any other person or entity. You agree to comply with all applicable laws when using the Services, and you may only use the Services for lawful purposes (e.g., no hire of unlawful or hazardous materials). You will not, in your use of the Services, cause nuisance, annoyance, inconvenience, or property damage, whether to the “Vendor” or any other party. In certain instances, you may be asked to provide proof of identity to access or use the Services, and you agree that you may be denied access to or use of the Services if you refuse to provide proof of identity.
By creating an Account, you agree that the Services may send you notification messages as part of the normal business operation of your use of the Services. By law, you may unsubscribe from receiving text (SMS) messages from EAZIGEAR at any time. You acknowledge that opting out of receiving notifications or messages may impact your use of the Services.
EAZIGEAR may, in EAZIGEAR’s sole discretion, create promotional codes that may be redeemed for Account credit, or other features or benefits related to the Services and/or a “Vendor” services, subject to any additional terms that EAZIGEAR establishes on a per promotional code basis (“Promo Codes”). You agree that Promo Codes: (i) must be used for the intended audience and purpose, and in a lawful manner; (ii) may not be duplicated, sold or transferred in any manner, or made available to the general public (whether posted to a public form or otherwise), unless expressly permitted by EAZIGEAR; (iii) may be disabled by EAZIGEAR at any time for any reason without liability to EAZIGEAR; (iv) may only be used pursuant to the specific terms that EAZIGEAR establishes for such Promo Code; (v) are not valid for cash; and (vi) may expire prior to your use. EAZIGEAR reserves the right to withhold or deduct credits or other features or benefits obtained through the use of Promo Codes by you or any other “Producer” in the event that EAZIGEAR determines or believes that the use or redemption of the Promo Code was in error, fraudulent, illegal, or in violation of the applicable Promo Code terms or these Terms.
“Producer” Provided Content.
EAZIGEAR may, in EAZIGEAR’s sole discretion, permit you from time to time to submit, upload, publish or otherwise make available to EAZIGEAR through the Services textual, audio, and/or visual content and information, including commentary and feedback related to the Services, initiation of support requests, and submission of entries for competitions and promotions (“Producer” Content”). Any “Producer” Content provided by you remains your property. However, by providing “Producer” Content to EAZIGEAR, you grant EAZIGEAR a worldwide, perpetual, irrevocable, transferrable, royalty-free license, with the right to sublicense, to use, copy, modify, create derivative works of, distribute, publicly display, publicly perform, and otherwise exploit in any manner such “Producer” Content in all formats and distribution channels now known or hereafter devised (including in connection with the Services and EAZIGEAR’s business and on third-party sites and services), without further notice to or consent from you, and without the requirement of payment to you or any other person or entity.
You represent and warrant that: (i) you either are the sole and exclusive owner of all “Producer” Content or you have all rights, licenses, consents and releases necessary to grant EAZIGEAR the license to the “Producer” Content as set forth above; and (ii) neither the “Producer” Content nor your submission, uploading, publishing or otherwise making available of such “Producer” Content nor EAZIGEAR’s use of the “Producer” Content as permitted herein will infringe, misappropriate or violate a third-party’s intellectual property or proprietary rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
You agree to not provide “Producer” Content that is defamatory, libelous, hateful, violent, obscene, pornographic, unlawful, or otherwise offensive, as determined by EAZIGEAR in its sole discretion, whether or not such material may be protected by law. EAZIGEAR may, but shall not be obligated to, review, monitor, or remove “Producer” Content, at EAZIGEAR’s sole discretion and at any time and for any reason, without notice to you.
Network Access and Devices.
You are responsible for obtaining the data network access necessary to use the Services. Your mobile network’s data and messaging rates and fees may apply if you access or use the Services from a wireless-enabled device and you shall be responsible for such rates and fees. You are responsible for acquiring and updating compatible hardware or devices necessary to access and use the Services and Applications and any updates thereto. EAZIGEAR does not guarantee that the Services, or any portion thereof, will function on any particular hardware or devices. In addition, the Services may be subject to malfunctions and delays inherent in the use of the Internet and electronic communications.
You understand that use of the Services may result in charges to you for the services or goods you receive from a “Vendor” (“Charges”). After you have received services or goods obtained through your use of the Service, EAZIGEAR will facilitate your payment of the applicable Charges on behalf of the “Vendor” as such “Vendor’s limited payment collection agent. Payment of the Charges in such manner shall be considered the same as payment made directly by you to the “Vendor”. Charges may include other applicable fees, tolls, and/or surcharges including a booking fee, national, provincial and municipal tolls, airport surcharges and processing fees for split payments, and will be inclusive of applicable taxes where required by law. Charges paid by you are final and non-refundable, unless otherwise determined by EAZIGEAR. You may not request lower Charges from a “Vendor” for services or goods received by you from such “Vendor” at the time you receive such services or goods. EAZIGEAR will respond immediately with any change of rates via the “Vendor” dashboard. The Onus is on a “Vendor” to modify the Charges for a particular service or good to be more competitive on the platform.
All Charges are due immediately and payment will be facilitated by EAZIGEAR using the preferred payment method designated in your Account, after which EAZIGEAR will send you a receipt by email. If your primary Account payment method is determined to be expired, invalid or otherwise not able to be charged, you agree that EAZIGEAR may, as the “Vendor” limited payment collection agent, use a secondary payment method in your Account, if available.
As between you and EAZIGEAR, EAZIGEAR reserves the right to establish, remove and/or revise Charges for any or all services or goods obtained through the use of the Services at any time in EAZIGEAR’s and “Vendor” discretion. Further, you acknowledge and agree that Charges applicable in certain geographical areas may increase substantially during times of high demand. EAZIGEAR will use reasonable efforts to inform you of Charges that may apply, provided that you will be responsible for Charges incurred under your Account regardless of your awareness of such Charges or the amounts thereof. EAZIGEAR may from time to time provide a “Producer” with promotional offers and discounts that may result in different amounts charged for the same or similar services or goods obtained through the use of the Services, and you agree that such promotional offers and discounts, unless also made available to you, shall have no bearing on your use of the Services or the Charges applied to you. You may elect to cancel your request for services or goods from a “Vendor” at any time greater than 24hrs prior to such “Vendor’s” delivery, in the case that cancellation occurs within 24hrs of the gear-check date you will be charged a cancellation fee of the full amount.
Repair or Cleaning Fees.
You shall be responsible for the cost of repair for damage to, or necessary cleaning of, “Vendor” property and equipment resulting from use of the Services under your Account in excess of normal “wear and tear” damages and necessary cleaning (“Repair or Cleaning”). In the event that a “Vendor” reports the need for Repair or Cleaning, and such Repair or Cleaning request is verified by EAZIGEAR in EAZIGEAR’s reasonable discretion, EAZIGEAR reserves the right to facilitate payment for the reasonable cost of such Repair or Cleaning on behalf of the “Vendor” using your payment method designated in your Account. Such amounts will be transferred by EAZIGEAR to the applicable “Vendor” and are non-refundable.
- 2 Disclaimers; Limitation of Liability; Indemnity.
The services are provided “as is” and “as available.” EAZIGEAR disclaims all representations and warranties, express, implied or statutory, not expressly set out in these terms, including the implied warranties of merchantability, fitness for a particular purpose and non-infringement. In addition, EAZIGEAR makes no representation, warranty, or guarantee regarding the reliability, timeliness, quality, suitability or availability of the services or any services or goods requested through the use of the services, or that the services will be uninterrupted or error-free. EAZIGEAR does not guarantee the quality, suitability, safety or ability of “Vendor’s” equipment or as operators. The platform design naturally eliminates unsatisfactory or ill maintained equipment via the feedback loop of the “Producer” gear-check. You agree that the entire risk arising out of your use of the services, and any service or good requested in connection therewith, remains solely with you, to the maximum extent permitted under applicable law.
Limitation of liability.
EAZIGEAR shall facilitate, if requested so, to introduce a Vendor” or “Producer” to an insurance broker for short term cover. This will allow for the loss or damage to equipment whilst it is in storage or in transit or being used for work purposes. Excesses will be liable to the “Producer” if it is found that any damage incurred by way of incorrect use or theft from set.
EAZIGEAR facilitates that “Vendors” and or “Producers” are quoted for insurance via the platform but does not facilitate claims or contracts.
EAZIGEAR shall not be liable for indirect, incidental, special, exemplary, punitive or consequential damages, including lost profits, lost data, personal injury or property damage related to, in connection with, or otherwise resulting from any use of the services, even if EAZIGEAR has been advised of the possibility of such damages. EAZIGEAR shall not be liable for any damages, liability or losses arising out of: (i) your use of or reliance on the services or your inability to access or use the services; or (ii) any transaction or relationship between you and any “Vendor”, even if EAZIGEAR has been advised of the possibility of such damages. EAZIGEAR shall not be liable for delay or failure in performance resulting from causes beyond EAZIGEAR’s reasonable control. You acknowledge that third-party equipment providers providing equipment services requested through some request brands may offer additional equipment services and may not be professionally licensed or permitted to do so. In no event shall EAZIGEAR’s total liability to you in connection with the services for all damages, losses and causes of action exceed five thousand (5000) Rands.
EAZIGEAR services may be used by you to request and schedule equipment, goods or logistics services with “Vendor’s”, but you agree that EAZIGEAR has no responsibility or liability to you related to any equipment, goods or logistics services provided to you by “Vendor’s” other than as expressly set forth in these terms.
The limitations and disclaimer in this section 5 do not purport to limit liability or alter your rights as a consumer that cannot be excluded under applicable law.
You agree to indemnify and hold EAZIGEAR and its officers, directors, employees and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees) arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) EAZIGEAR’s use of your “Producer” Content; or (iv) your violation of the rights of any third-party, including ““Vendor’s””.
- Lost Property
You understand and agree that it is your responsibility to ensure that you remove your property from the kits and bags of a “Vendor” when offloading. Should you leave your property in the bag of a “Vendor”, the “Vendor” may hand over your property to you, EAZIGEAR or to the EAZIGEAR local service entity.
Whilst you may expect “Vendor’s” to hand over your property to you, the offices of EAZIGEAR or the EAZIGEAR local service entity, EAZIGEAR or the EAZIGEAR local service entity shall not be held liable in the event of the “Vendor” not handing over your property as expected.
Whilst EAZIGEAR or the EAZIGEAR local service entity will take reasonable steps to establish the owner of property left in a “Vendor’s” kit if returned to the offices of EAZIGEAR or the EAZIGEAR local service entity, when your property is in EAZIGEAR’s or the EAZIGEAR local service entity’s possession, you understand and agree that: (i) EAZIGEAR or the EAZIGEAR local service entity will only keep your property in its possession for a maximum period of three months from the date on which the “Vendor” handed your property to EAZIGEAR or the EAZIGEAR local service entity; and (ii) should you fail to collect your property from EAZIGEAR or the EAZIGEAR local service entity before the expiry of the three month period stipulated, EAZIGEAR or the EAZIGEAR local service entity will be entitled to deal with your property as it deems fit and you shall have no claim whatsoever against EAZIGEAR or the EAZIGEAR local service entity in respect of your unclaimed property.
- Governing Law; Arbitration.
“If any dispute arises out of or in connection with this Agreement, or related thereto, whether directly or indirectly, the Parties must refer the dispute for resolution firstly by way of negotiation and in the event of that failing, by way of mediation and in the event of that failing, by way of Arbitration. The reference to negotiation and mediation is a precondition to the Parties having the dispute resolved by arbitration.
A dispute within the meaning of this clause exists once one Party notifies the other in writing of the nature of the dispute and requires the resolution of the dispute in terms of this clause.
Within 10 (ten) business days following such notification, the Parties shall seek an amicable resolution to such dispute by referring such dispute to designated representatives of each of the Parties for their negotiation and resolution of the dispute.
The representatives shall be authorized to resolve the dispute. In the event of the negotiation between the designated representatives not resulting in an agreement signed by the Parties resolving the dispute within 15 business days, the parties must refer the dispute for resolution by way of mediation in accordance with the rules of the Arbitration Foundation of Southern Africa (“AFSA”).
In the event of the mediation envisaged in 1.4 failing in terms of the rules of AFSA, the matter must, within 15 business days, be referred to arbitration as envisaged in the clauses below.
The periods for negotiation or mediation may be shortened or lengthened by written agreement between the parties.
Each Party agrees that the Arbitration will be held as an expedited arbitration in Sandton in accordance with the then current rules for expedited arbitration of AFSA by 1 (one) arbitrator appointed by agreement between the Parties, including any appeal against the arbitrator’s decision. If the Parties cannot agree on the arbitrator or appeal arbitrators within a period of 10 (ten) Business Days after the referral of the dispute to arbitration, the arbitrator and appeal arbitrators shall be appointed by the Secretariat of AFSA.
The provisions of this clause 1 shall not preclude any Party from access to an appropriate court of law for interim relief in respect of urgent matters by way of an interdict, or mandamus pending finalization of this dispute resolution process for which purpose the Parties irrevocably submit to the jurisdiction of a division of the High Court of the Republic of South Africa.
The references to AFSA shall include its successor or body nominated in writing by it in its stead.∗
This clause is a separate, divisible agreement from the rest of this Agreement and shall remain in effect even if the Agreement terminates, is nullified or cancelled for whatsoever reason or cause.
∗ AFSA is a non-profit organisation of longstanding and high integrity which provides independent and comprehensive administrative services in support of mediation and arbitration. The iod recommends the choice of AFSA as a service provider to provide the parties with the maximum benefit from use of the dispute resolution clause. Should the Parties acting on the basis of informed consent wish to dispense with service providers or substitute others, then this clause will need to be redrafted. AFSA has joined with the University of Pretoria in issuing a diploma in Mediation and Arbitration. In doing so, numerous individuals have been trained as mediators and arbitrators. AFSA also has the most experienced panel of experts for effective alternative dispute resolution.”
The language of the mediation and/or arbitration shall be English, unless you do not speak English, in which case the mediation and/or arbitration shall be conducted in both English and your native language. The existence and content of the mediation and arbitration proceedings, including documents and briefs submitted by the parties, correspondence from and to the International Chamber of Commerce, correspondence from the mediator, and correspondence, orders and awards issued by the sole arbitrator, shall remain strictly confidential and shall not be disclosed to any third-party without the express written consent from the other party unless: (i) the disclosure to the third-party is reasonably required in the context of conducting the mediation or arbitration proceedings; and (ii) the third-party agrees unconditionally in writing to be bound by the confidentiality obligation stipulated herein.
- Other Provisions
Claims of Copyright Infringement.
Claims of copyright infringement should be sent to EAZIGEAR designated agent. Please visit EAZIGEAR web page www.EAZIGEAR.co.za for contact information.
EAZIGEAR may give notice by means of a general notice on the Services, electronic mail to your email address in your Account, or by written communication sent to your address as set forth in your Account. You may give notice to EAZIGEAR by written communication to EAZIGEAR address at 14 Exeter Avenue, Cape Town, 7975.
You may not assign or transfer these Terms in whole or in part without EAZIGEAR prior written approval. You give your approval to EAZIGEAR for it to assign or transfer these Terms in whole or in part, including to: (i) a subsidiary or affiliate; (ii) an acquirer of EAZIGEAR’s equity, business or assets; or (iii) a successor by merger. No joint venture, partnership, employment or agency relationship exists between you, EAZIGEAR or any “Vendor” as a result of the contract between you and EAZIGEAR or use of the Services.
If any provision of these Terms is held to be illegal, invalid or unenforceable, in whole or in part, under any law, such provision or part thereof shall to that extent be deemed not to form part of these Terms but the legality, validity and enforceability of the other provisions in these Terms shall not be affected. In that event, the parties shall replace the illegal, invalid or unenforceable provision or part thereof with a provision or part thereof that is legal, valid and enforceable and that has, to the greatest extent possible, a similar effect as the illegal, invalid or unenforceable provision or part thereof, given the contents and purpose of these Terms. These Terms constitute the entire agreement and understanding of the parties with respect to its subject matter and replaces and supersedes all prior or contemporaneous agreements or undertakings regarding such subject matter. In these Terms, the words “including” and “include” mean “including, but not limited to.”