TERMS AND CONDITIONS
December 3rd, 2019
These terms and conditions (“User Terms”) apply to your visit to and your use of our websites for online ground transportation booking (the “Websites”), the Service (as defined below), as well as to all information, recommendations and/or services provided to you on or through the Websites and the Service.
The Websites are collection of all websites in direct ownership of company ENERGIUS GmbH given at web addresses:
www.limos4.com and www.limos8.com, including all local websites for individual cities mentioned below.
PLEASE READ THESE USER TERMS CAREFULLY BEFORE USING OUR SERVICE THROUGH THE WEBSITES.
Limos4, Limos8 and Limos4Germany are brand names of ENERGIUS GmbH
Your contracting partner is ENERGIUS GmbH (Bahnhofstrasse 7, 9470 Buchs, Switzerland), a privately owned company established and registered at the Swiss Chamber of Commerce under number CH-320.4.084.339-7. In further text ENERGIUS GmbH.
Limos4 and Limos8 are sub-brands of ENERGIUS GmbH and as such cover all major cities in Europe, Middle East and USA with ground transportation service including: Abu Dhabi, Amsterdam, Athens, Bahrain, Barcelona, Belgrade, Berlin, Bratislava, Brussels, Bucharest, Budapest, Cape Town, Copenhagen, Doha, Dubai, Dublin, Düsseldorf, Edinburgh, Frankfurt, Geneva, Gothenburg, Hamburg, Helsinki, Istanbul, Jerusalem, Johannesburg, Krakow, Kuwait City, Lisbon, Ljubljana, London, Luxembourg, Madrid, Malmö, Milan, Minsk, Monaco, Moscow, Munich, Muscat, Nice, Oslo, Palma de Mallorca, Paris, Prague, Pretoria, Riga, Riyadh, Rome, Salzburg, Sofia, St. Petersburg, Stockholm, Tel Aviv, Vienna, Vilnius, Warsaw, Zagreb, Zug, Zurich for which ENERGIUS GmbH has established dedicated local websites to customize the offer according to the geographical area.
Limos4Germany is sub-brand of ENERGIUS GmbH and as such cover all cities in Germany.
What services does ENERGIUS GmbH provide?
ENERGIUS GmbH offers information and means to obtain transportation services offered by third party transportation providers, chauffeurs or vehicle operators (the "Transportation Provider"), which may be requested through the use of a website supplied by ENERGIUS GmbH. All services provided by ENERGIUS GmbH to you by means of your use of the Websites are hereafter referred to as the "Service".
How is a contract concluded between ENERGIUS GmbH and you?
By using the Service, you enter into a contract with ENERGIUS GmbH (the "Contract"). In order to be able to use the Websites or Service, you first need to agree to the terms and conditions of ENERGIUS GmbH. When requesting an offer from ENERGIUS GmbH or making a reservation for ground transportation, you are obligated to provide ENERGIUS GmbH with your personal information, mobile telephone number and credit card data.
You have to be 18 years of age or older to use the Service of ENERGIUS GmbH. If you reside in a jurisdiction that restricts the use of the Service or the Websites because of age, or restricts the ability to enter into contracts such as this one due to age, you must abide by such age limits and you must not use the Service. You represent that if you are an individual, you are of legal age to enter into a binding contract, or that if you are registering on behalf of a legal entity, that you are authorized to enter into, and bind the entity to, these User Terms and register for the Service.
The Websites allow you to send a request for transportation service to a Transportation Provider through ENERGIUS GmbH infrastructure and call center.
For the avoidance of doubt: ENERGIUS GmbH itself does not provide transportation services, and ENERGIUS GmbH is not a transportation carrier. It is up to the Transportation Provider to offer transportation services, which may be requested through the use of the Service. ENERGIUS GmbH only acts as intermediary between you and the Transportation Provider. The provision of the transportation services by the Transportation Provider to you is therefore subject to the agreement (to be) entered into between you and the Transportation Provider. ENERGIUS GmbH shall never be a party to such agreement.
Your use of the Service
You warrant that the information you provide to ENERGIUS GmbH is accurate and complete. ENERGIUS GmbH is entitled at all times to verify the information that you have provided and to refuse the Service or use of the Websites without providing reasons.
You may only access the Service using authorized means. It is your responsibility to check to ensure you accessed the correct ENERGIUS GmbH website. ENERGIUS GmbH is not liable if you do not have a compatible device or if you access the wrong website for ground transportation. ENERGIUS GmbH reserves the right to terminate the Service should you be using the Service with an incompatible or unauthorized device.
By using the Websites or the Service, you further agree that:
- You will not assign or otherwise transfer your account information to any other person or legal entity;
- You will not use an account that is subject to any rights of a person other than you without appropriate authorization;
- You will not use the Service or the Websites for unlawful purposes, including but not limited to sending or storing any unlawful material or for fraudulent purposes;
- You will not use the Service or the Websites to cause nuisance, annoyance or inconvenience;
- You will not impair the proper operation of the network;
- You will not try to harm the Service or the Websites in any way whatsoever;
- You will not copy, or distribute the Websites or other ENERGIUS GmbH Content without written permission from ENERGIUS GmbH;
- You will keep secure and confidential your account password or any identification we provide you which allows access to the Service;
- You will provide us with whatever proof of identity we may reasonably request;
- You are aware that when requesting transportation services by telephone, standard charges will apply;
- You will not use the Service or the Websites with an incompatible or unauthorized device;
- You will comply with all applicable law from your home nation, the country, state and/or city in which you are present while using the Websites or Service.
- ENERGIUS GmbH reserves the right to immediately terminate the Service and the use of the Websites should you not comply with any of the above rules.
The use of the Websites and the Service is free of charge. ENERGIUS GmbH reserves the right to introduce a fee for the use of the Websites and/or the Service. If ENERGIUS GmbH decides to introduce such a fee, ENERGIUS GmbH shall inform you accordingly and allow you to either continue or terminate the Contract.
The rates that apply for the transportation services by the Transportation Provider can be either found on the Websites or will be communicated to you upon request through the contact forms on the Websites. All rates may be modified or updated by ENERGIUS GmbH at any time. It is your own responsibility to remain informed about the current rates for the transportation services.
There are two main ways to pay for all transportation services:
- ENERGIUS GmbH shall charge you for the transportation services provided to you by the Transportation Provider on behalf of the Transportation Provider.
- The Transportation Provider charge you for the transportation services.
You agree that you will pay for all transportation services you purchase from the Transportation Provider, and that ENERGIUS GmbH or the Transportation Provider may charge your credit card account as provided by you when registering for the Service for the transportation services (including any taxes and late fees, as applicable) that may be accrued by or in connection with your account. You are responsible for the timely payment of all fees and for providing ENERGIUS GmbH with a valid credit card account for payment of all fees at all times. All payment made are refundable with compliance to cancellation and late fees.
ENERGIUS GmbH and the Transportation Provider use a third-party payment processor (the “Payment Processor”) to link your credit card account to the Websites and Service. The processing of payments or credits, as applicable, in connection with your use of the Websites and Service will be subject to the terms, conditions and privacy policies of the Payment Processor and your credit card issuer in addition to these User Terms. ENERGIUS GmbH is not responsible for any errors by the Payment Processor.
In connection with your use of the Services, ENERGIUS GmbH will obtain certain transaction details, which ENERGIUS GmbH will use solely in accordance with its Privacy and Cookie Notice.
In case the service price is presented in local currency, please note the payment will be executed in Euros (€) according to the current European Central Bank reference exchange rates. It is also possible to pay for the transportation services by invoice.
Bank transfer payments are to be executed at least 10 work days prior to the service. This option is only available for known and trustable Users of ENERGIUS GmbH. ENERGIUS GmbH is not obliged to provide this payment option to you at any time.
By accepting these User Terms and using the Websites or Service, you agree that you shall defend, indemnify and hold ENERGIUS GmbH, its affiliates, its licensors, and each of their officers, directors, other users, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (a) your violation or breach of any term of these User Terms or any applicable law or regulation, whether or not referenced herein; (b) your violation of any rights of any third party, including Transportation Providers arranged via the Websites, or (c) your use or misuse of the Websites or Service.
The information, recommendations and/or services provided to you on or through the Website, the Service is for general information purposes only and does not constitute advice. ENERGIUS GmbH will reasonably keep the Websites and its contents correct and up to date but does not guarantee that (the contents of) the Websites are free of errors, defects, malware and viruses or that the Websites are correct, up to date and accurate.
ENERGIUS GmbH shall not be liable for any damages resulting from the use of (or inability to use) the Websites (but to the exclusion of death or personal injury), including damages caused by malware, viruses or any incorrectness or incompleteness of the Information or the Websites, unless such damage is the result of any willful misconduct or from gross negligence on the part of ENERGIUS GmbH.
ENERGIUS GmbH shall further not be liable for damages resulting from the use of (or the inability to use) electronic means of communication with the Websites, including – but not limited to – damages resulting from failure or delay in delivery of electronic communications, interception or manipulation of electronic communications by third parties or by computer programs used for electronic communications and transmission of viruses.
Without prejudice to the foregoing, and insofar as allowed under mandatory applicable law, ENERGIUS GmbH’s aggregate liability shall in no event exceed an amount of EUR 500 or, where applicable, the equivalent of that amount in the currency used by you for the payment of the transportation services to the Transportation Provider.
The quality of the transportation services requested through the use of the Websites or the Service is entirely the responsibility of the Transportation Provider who ultimately provides such transportation services to you. ENERGIUS GmbH under no circumstance accepts liability in connection with and/or arising from the transportation services provided by the Transportation Provider or any acts, actions, behavior, conduct, and/or negligence on the part of the Transportation Provider. Any complaints about the transportation services provided by the Transportation Provider should therefore be submitted to the Transportation Provider.
Restrictions and Copyright Policy
For the purpose of these User Terms, the following definitions apply:
“Content” means all content featured or displayed, including, but not limited to, logos, icons, trademarks, text, graphics text, graphics, photographs, images, moving images, sound, illustrations, music, software, opinions, remarks, comments, artwork, links, questions, suggestions, information or other materials.
“ENERGIUS GmbH Content” means Content owned or used by ENERGIUS GmbH, its affiliates or licensors and made available through the Websites, Service, including any Content licensed from a third party, but excluding User Content.
“User” means a person who accesses or uses the Service or the Websites.
“User Content” means Content that a User posts, uploads, publishes, submits or transmits to be made available on the Website or through the Service.
“Collective Content” means, collectively, ENERGIUS GmbH Content and User Content.
Subject to your compliance with these User Terms, ENERGIUS GmbH grants you a limited, non-exclusive, non-transferable license:
- to view, download and print any ENERGIUS GmbH Content solely for your personal and noncommercial purposes; and
- to view any User Content to which you are permitted access solely for your personal and noncommercial purposes.
- You have no right to sublicense the license rights granted in this section.
License Granted by User
We may, in our sole discretion, permit Users to post, upload, publish, submit or transmit User Content on the Website or through the Service or the Websites. User Content will be deemed non-confidential and non-proprietary. Accordingly, ENERGIUS GmbH shall have the non-exclusive, royalty-free, right to use, copy, distribute and disclose to third parties any User Content for any purpose, in any medium and throughout the world (“License Grant").
You acknowledge that ENERGIUS GmbH only acts as a passive conduit for the distribution of the User Content and is not responsible or liable to you or to any third party for the content or accuracy of the User Content. ENERGIUS GmbH shall not be continuously monitoring User Content published by you or moderating between Users, nor shall ENERGIUS GmbH be under an obligation to do so. Without limiting the foregoing, you acknowledge and agree that any remarks, opinions, comments, suggestions and other information expressed or included in the User Content do not necessarily represent those of ENERGIUS GmbH.
Any use by you of the User Content is entirely at your own risk. You represent and warrant that any User Content posted or transmitted by you is original to you and does not copy the work of any third party or otherwise infringe any third party intellectual property rights, rights of privacy or personality rights and do not contain any defamatory or disparaging statements. Furthermore, you represent and warrant that you have the capacity to grant the license as stipulated in this paragraph.
You agree to indemnify and keep ENERGIUS GmbH, its affiliates and licensors indemnified against all costs, expenses, damages, losses and liabilities incurred or suffered by ENERGIUS GmbH or its affiliated companies related to any User Content posted or transmitted by you or your other use of the Website, the Service.
ENERGIUS GmbH reserves the right at its sole discretion to block or remove (in whole or in part) any User Content posted or transmitted by you and which ENERGIUS GmbH believes is not in accordance with these User Terms (including materials which infringe or may infringe third party intellectual property rights, rights of privacy or personality rights), or is otherwise unacceptable to ENERGIUS GmbH.
You agree to promptly notify ENERGIUS GmbH in writing of any User Content which breaches these User Terms. You agree to provide to ENERGIUS GmbH sufficient information to enable ENERGIUS GmbH to investigate whether such User Content breaches these User Terms. ENERGIUS GmbH agrees to make good faith efforts to investigate such complaint and shall take such action as ENERGIUS GmbH in its sole discretion decides. However, ENERGIUS GmbH does not warrant or represent that it will block or remove (in whole or in part) such user Content.
ENERGIUS GmbH respects copyright law and expects its users to do the same. It is ENERGIUS GmbH’s policy to terminate in appropriate circumstances Users or other account holders who (repeatedly) infringe or are believed to be (repeatedly) infringing the rights of copyright holders.
Intellectual Property Ownership
ENERGIUS GmbH alone (and its licensors, where applicable) shall own all right, title and interest, including all related intellectual property rights, in and to the Website and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Website or the Service.
These User Terms do not constitute a sale and do not convey to you any rights of ownership in or related to the Website or the Service, or any intellectual property rights owned by ENERGIUS GmbH. ENERGIUS GmbH’s name, logo, and the product names associated with the Websites and Service are trademarks of ENERGIUS GmbH, its affiliated companies or third parties, and no right or license is granted to use them.
Third Party Interactions
During the use of the Website and the Service, links to websites that are owned and controlled by third parties may be provided from time to time in order to enter into correspondence with, purchase goods or services from, participate in promotions of third parties. These links take you off the Website and the Service and are beyond ENERGIUS GmbH’s control.
Term and termination of the contract
The Contract between ENERGIUS GmbH and you is concluded for an indefinite period.
You are entitled to terminate the Contract at all times. ENERGIUS GmbH is entitled to terminate the Contract at all times and with immediate effect (by disabling your use of the Websites and the Service) if you: (a) violate or breach any term of these User Terms, or (b) in the opinion of ENERGIUS GmbH, misuse the Websites or the Service. ENERGIUS GmbH is not obliged to give notice of the termination of the Contract in advance. After termination ENERGIUS GmbH will give notice thereof in accordance with these User Terms.
Should the customer cancel the contract or should he not resign without taking the performance of our company claim, Transportation Provider or ENERGIUS GmbH shall be entitled to demand a reasonable compensation for arrangements and planning. This is true even if the customer is not at fault. ENERGIUS GmbH is entitled to estimate sum compensation. Decisive for the cancellation is a cancellation receipt by email or telephone. Cancellations are only on weekdays between 08:00 – 20:00 accepted. If the agreed service, without the written cancellation, is not claimed, the user has to pay the agreed price without deductions.
For sedan, business van/SUV vehicles:
If the service is cancelled up to 48 hours prior to the pickup time there is no cancellation fee.
If the service is cancelled between 48 and 24 hours prior to the pickup time, the cancellation fee is 50% of the agreed amount for the booked service.
If the service is cancelled within less than 24 hours to the pickup time, the cancellation fee is 100% of the agreed amount for the booked service.
For minibus and coach vehicles:
If the service is cancelled up to 5 days prior to the pickup time there is no cancellation fee.
If the service is cancelled between 5 and 3 days prior to the pickup time, the cancellation fee is 50% of the agreed amount for the booked service.
If the service is cancelled within less than 3 days prior to the pickup time, the cancellation fee is 100% of the agreed amount for the booked service.
For all vehicles:
In case of cancellation or rebooking while the chauffeur is already on the way to the pickup location and/or there is less than an hour remains until the start of the journey the full fare is to be charged.
If the distance or number of hours is less than originally booked, the price remains unaffected. Short-term changes cannot be guaranteed by ENERGIUS GmbH.
ENERGIUS GmbH shall not be responsible and cannot be held liable if, due to shortened availability, the vehicle sent to pickup venue differs in color and model from the vehicle selected by the customer.
Airport pickup procedure - Our chauffeur would meet and greet the passenger(s) at the airport arrival terminal holding a name board sign and ready to assist with the luggage.
If unable to locate the chauffeur, please call us on: +41 43 508 65 40; +1 855 727 4835; +44 2030 516 803; +49 89 38 03 78 26; +34 931 816 364 or +45 89 88 14 24.
All other collections - Our chauffeur would meet the passenger(s) at the given pickup address.
At cruise ports, bus terminals and other public transportation ports, the chauffeur would wait with a name board sign in the nearest designated passenger pickup area.
If unable to locate your chauffeur, please call us on: +41 43 508 65 40; +1 855 727 4835; +44 2030 516 803; +49 89 38 03 78 26; +34 931 816 364 or +45 89 88 14 24.
In order to avoid a no-show fee, passengers should not leave designated meeting locations without notifying ENERGIUS GmbH, at: +41 43 508 65 40; +1 855 727 4835; +44 2030 516 803; +49 89 38 03 78 26; +34 931 816 364 or +45 89 88 14 24.
At airports: At most airports, price inclusive waiting time is 45 - 60 minutes after flight arrival time, except in Basel, Belgrade, Bern, Bonn, Dresden, Edinburgh, Gstaad, Hamburg, Ljubljana, Luxembourg, Marseille, Monaco, Nice, and Salzburg where 30 minutes of waiting after flight arrival time is free of charge. Thereafter, every started hour of additional waiting time will be charged at the rate of hourly service for the assigned vehicle.
Other locations: Price-inclusive waiting time at other locations is 10 - 15 minutes after booked pickup time. Thereafter, every started hour of additional waiting time will be charged at the rate of hourly service for the assigned vehicle.
Terms and conditions of transportation of passengers and luggage
When requesting an offer from ENERGIUS GmbH or making a reservation for ground transportation, you are obligated to provide ENERGIUS GmbH with precise and accurate information regarding the number of passengers and the number and size of luggage.
ENERGIUS GmbH reserves the right to provide an appropriate Service and vehicle according to the customer´s description of volume of luggage and passengers. By accepting an offer from ENERGIUS GmbH, you agree to use the Service and vehicle as quoted by ENERGIUS GmbH.
Should the customer amend the number of passengers and/or luggage without timely notice to ENERGIUS GmbH and official confirmation of amended Service from ENERGIUS GmbH was not provided afterwards, ENERGIUS GmbH shall not be responsible and cannot be held liable for the inconveniences or additional expenses the customer would be exposed to.
ENERGIUS GmbH shall not be responsible and cannot be held liable if the number of passengers and/or luggage exceeds the number of passengers and/or luggage originally booked by customer and confirmed by ENERGIUS GmbH.
In case of cancellation or rebooking due to larger amount of passengers and/or luggage, the full fare for already booked vehicle is to be charged.
ENERGIUS GmbH is not responsible for lost or damaged items left in the vehicles. ENERGIUS GmbH reserves the right to charge a delivery fee for returning lost items if found. Per customer’s request, the additional service would be provided by ENERGIUS GmbH followed by additional service costs report and payment link not later than 24 hours after the service is completed. If the customer fails to execute the payment via payment link, ENERGIUS GmbH reserves the right to charge the submitted credit card for additional service costs. The customer agrees, at ENERGIUS GmbH’s request, to provide reasonable assistance and information in relation to any disputed payment transactions. ENERGIUS GmbH may also request and use necessary information from the customer in order to dispute the chargeback case. Any modification, cancellation, additional stops or service that is different than originally booked service can and must be arranged and authorized by ENERGIUS GmbH Customer Care Team only. Any modification, cancellation, additional stops or service that is different than originally booked service should not be discussed or arranged with the assigned driver. If the customer amends the originally booked service without notifying ENERGIUS GmbH Customer Care Team first, ENERGIUS GmbH shall not be responsible and cannot be held liable for the inconveniences or additional expenses the customer would be exposed to.
Behavior in the vehicle
During the entirety of the transportation service, all customers must follow the regulations which apply to the relevant Road Traffic Act, especially the seatbelt regulations. Any instructions given by ENERGIUS GmbH must be followed.
It is the responsibility of ENERGIUS GmbH to ensure a safe transportation service.It is therefore [prohibited for the customers to open the doors while driving, throw any objects from the vehicle, and/or stick body parts out or shout from the vehicle.
If the customer wishes to use any of the devices or facilities in the vehicle, a brief instruction is required from ENERGIUS GmbH or the chauffeur.
The customer must pay for any damage caused to the interior or exterior of any vehicle by said customer. Any loss of earning if the vehicle is out of
service for the rest of the day will also be billed to the customer.
ENERGIUS GmbH operates a non-smoking policy in all vehicles. If the customer ignores this, the customer is liable to pay not only the cost
for the cleaning of the vehicle but also compensate the loss of business due to the downtime of the vehicle.
The consumption of food is discouraged. Alcoholic drinks are only allowed to be consumed in the vehicle with prior consent.
ENERGIUS GmbH reserves the right to refuse the carriage of luggage and/or animals which was/were not agreed to. This also applies to
animals which are not contained in a closed and suitable transport box.
All vehicles are insured in full for customer or third party claims should an accident or incident occur.
The need for safety seats for children should be requested by the customer as an additional comment or in price inquiry form by specifying the
number, type of the seat and the age of children to be transported.
In larger seating-capacity vehicles (minibuses and coaches) and stretch limousines, the safety seats are not mandatory due to safety and practical
In case the service price is presented in local currency, please note the payment will be executed in Euros (€) according to the current European
Central Bank reference exchange rates.
It is also possible to pay for the transportation services by invoice. Bank transfer payments are to be executed at least 10 working days prior to the
service. This option is only available for known and trustable users of ENERGIUS GmbH.
ENERGIUS GmbH is not obliged to provide this payment option to you at any time.
ENERGIUS GmbH practices flight tracking in real time to ensure on-time service regardless if the flight is coming in earlier or is delayed.
The chauffeur is instantly notified about the flight arrival changes and appropriate adjustments will be made to avoid waiting charges at the airport,
which could save huge on your expenses. It is the responsibility of the customer to notify ENERGIUS GmbH of any changes in the itinerary,
changes in flight information, or if the flight is missed.
Regarding the connecting flights, our Customer Care Team monitors only the last, incoming flight which brings the customers to the airport where
our service begins.
Rates and terms are different for private FBOs, service involving international arrivals and service in commercial airports inside the U.S and Canada.
ENERGIUS GmbH may need to change the chauffeur or vehicle at any point of booking, without affecting the quality of service or vehicle
Invalidity of one or more provisions
The invalidity of any term of these User Terms shall not affect the validity of the other provisions of these User Terms. If and to the extent that any provision of these User Terms is invalid, or is unacceptable in the given circumstances according to the criteria of reasonableness and fairness, a provision shall apply between the parties instead that is acceptable considering all the circumstances and which corresponds with the provisions of the void part as much as possible, taking into account the content and the purpose of these User Terms.
Modification of the Service and User Terms
ENERGIUS GmbH reserves the right, at its sole discretion, to modify or replace any of these User Terms, or change, suspend, or discontinue the Service or Websites (including without limitation, the availability of any feature, database, or content) at any time by posting a notice on the Website or by sending you notice through the Service or via email. ENERGIUS GmbH may also impose limits on certain features and services or restrict your access to parts or all of the Service without notice or liability.
ENERGIUS GmbH may give notice by means of a general notice on the Service or the Websites, or by electronic mail to your email address on record in ENERGIUS GmbH's account information, or by written communication sent by regular mail to your address on record in ENERGIUS GmbH's account information.
You may not assign your rights under these User Terms without prior written approval of ENERGIUS GmbH.
Privacy and Cookie Notice
ENERGIUS GmbH collects and processes the personal data of the visitors of the Websites.
Applicable law and Dispute Resolution
These User Terms are subject to the laws of Switzerland. Any dispute, claim or controversy arising out of or relating to these User Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Website, the Service (collectively, “Disputes”) will be settled exclusively by the competent court in St. Gallen, Switzerland, unless you notify ENERGIUS GmbH within one month after ENERGIUS GmbH invoking its right pursuant to this provision to commence court proceedings in St. Gallen, Switzerland, that you demand settlement of the dispute, claim or controversy at hand before the relevant court competent by law.
The English text of these User Terms constitutes the sole authentic text. In the event of any discrepancy between the English text and a translation into a foreign language, the English text shall prevail.