Effective Date: 12/19/19
PLEASE READ THIS CONSUMER TERMS OF USE AGREEMENT (“AGREEMENT”) CAREFULLY. THIS AGREEMENT IS A LEGAL CONTRACT BETWEEN YOU (“USER” OR “YOU”) AND CARFIXA, INC. (“CARFIXA,” “WE,” OR “US”).
SECTION 19 OF THIS AGREEMENT IS AN ARBITRATION CLAUSE THAT REQUIRES MOST DISPUTES BETWEEN US TO BE RESOLVED THROUGH BINDING AND FINAL ARBITRATION INSTEAD OF IN COURT. SEE SECTION 19 FOR MORE INFORMATION REGARDING THIS ARBITRATION CLAUSE, AND HOW TO OPT OUT.
By accessing or using any website with an authorized link to this Agreement or accessing or using any content, information, services, features or resources available or enabled via such website (collectively, the “Website”), clicking on a button or taking another action to signify your acceptance of this Agreement, you: (1) agree to be bound by this Agreement and any future amendments and additions to this Agreement as published through the Website; (2) represent you are of legal age in your jurisdiction of residence to form a binding contract; and (3) represent that you have the authority to enter into this Agreement personally and, if applicable, on behalf of any company, organization or other legal entity on whose behalf you use the Website. Except as otherwise provided herein, if you do not agree to be bound by this Agreement, you may not access or use the Website.
Subject to Section 19.9 of this Agreement, Carfixa reserves the right to modify this Agreement or its policies relating to the Website at any time, effective upon posting of an updated version of this Agreement on the applicable Website. You should regularly review this Agreement, as your continued use of the Website after any such changes constitutes your agreement to such changes.
1. Service Overview.
The Website provides a platform for users to obtain vehicle services, including materials used in vehicle services (e.g. vehicle parts, fluids, etc.) (“Vehicle Services”) from independent third party providers (“Third-Party Vehicle Service Providers”) and/or to arrange for vehicle inspection, diagnosis, maintenance, repair, towing or related Vehicle Services by Carfixa as a mobile Service Provider (“Carfixa Vehicle Service Providers”) (collectively, the Third-Party Vehicle Service Providers and Carfixa Vehicle Service Providers, the “Vehicle Service Providers”). The Carfixa Delivery option provides access to our Vehicle Services performed by highly qualified automotive mechanics, equipped with company vehicles using the latest diagnostic tools available in the industry at your home, place of work, or other location you select (any such Carfixa Delivery work, a “Job”). All mechanics performing a Job are employees of Carfixa. If a Job cannot be fulfilled on-site Carfixa reserves the right to sublet the Job to a Third-Party Vehicle Service Provider within our network. While RepairSmith may provide market pricing and other vehicle service guidance on our Website, such information is solely informational.
You acknowledge that Carfixa does not supervise, direct, or control a Third-Party Vehicle Service Provider’s work or Vehicle Services performed in any manner. While we confirm background information on Third-Party Vehicle Service Provider businesses using each business’s Bureau of Automotive Repair number, we do not perform criminal or other background checks on individual employees or perform any other checks on the Third-Party Vehicle Service Providers. When interacting with Third-Party Vehicle Service Providers, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. Carfixa does not directly take part in any interaction between users and Vehicle Service Providers. WE ARE NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE WEBSITE, INCLUDING WITHOUT LIMITATION, ANY CUSTOMER OR VEHICLE SERVICE PROVIDER, AND YOU HEREBY RELEASE CARFIXA FROM ANY LIABILITY RELATED THERETO. WE WILL NOT BE LIABLE FOR ANY CLAIM, INJURY, OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE WEBSITE. YOU ACKNOWLEDGE THAT VEHICLE SERVICE PROVIDERS MAY NOT HAVE ALL REQUIRED PROFESSIONALLY LICENSES OR PERMITS. YOU AGREE THAT WE HAVE NO RESPONSIBILITY OR LIABILITY TO YOU RELATING TO VEHICLE SERVICES PROVIDED TO YOU BY VEHICLE SERVICE PROVIDERS.
As a result of Carfixas limited role as an intermediary between you and the Third-Party Vehicle Service Providers, Carfixa has no control over the quality, timeliness, price, guarantees, risks, or damages related to Vehicle Services or failure of any Third-Party Vehicle Service Provider to provide Vehicle Services. Therefore, you agree, in connection with any use of the Website resulting in the purchase and performance of Vehicle Services to: (a) release Carfixa from any claims, demands, damages, and liabilities of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such Vehicle Services (including any disputes arising therefrom) and (b) attempt to settle any dispute directly with the applicable Third-Party Vehicle Service Provider.
We do not control the availability of Vehicle Service Providers. You acknowledge that your selected Vehicle Service Provider may be unavailable from time to time (e.g. due to illness or vacation).
2. Registration.
When registering an account for the Website (“Account”), you agree to provide only true, accurate, current and complete information requested by the registration form (the “Registration Data”) and to promptly update the Registration Data thereafter as necessary. Your failure to maintain accurate, complete, and up-to-date Account information may result in your inability to access and use the Website functionalities as intended. You represent that you are not barred from using the Services under any applicable law and that you will be responsible for all activities that occur under your Account. You agree to monitor your Account to restrict its use by minors and other unauthorized users and agree not to share your Account or password with anyone. You further agree to notify Carfixa immediately of any unauthorized use of your password or any other breach of the security of your Account and to exit from your Account at the end of each session. You agree not to create an Account using a false identity or alias or if you previously have been banned from using any of the Services. You further agree that you will not maintain more than one Account for the same Carfixa service at any given time. Carfixa reserves the right to remove or reclaim any Accounts at any time and for any reason.
3. Payment.
You are solely liable for the cost of Vehicle Services you receive. The standard price for a particular Vehicle Service will be posted by the applicable Vehicle Service Provider on our Website (that price may be increased or decreased as a result of change in the scope of Vehicle Services to which you and the Vehicle Service Provider agree in writing). Prices quoted on our Website exclude taxes and government fees.
If you have any discounts, coupons, or other promotions (“Promotions”) that are provided by the Vehicle Service Provider, please present such Promotion to the Vehicle Service Provider directly. The Vehicle Service Provider will update your fees with Carfixa. All Promotions are solely provided by the applicable Vehicle Service Provider and are subject to such Vehicle Service Provider’s discretion to honor such Promotions. You agree not to hold Carfixa liable for any Vehicle Service Provider’s failure to honor any such Promotions.
You hereby agree that Carfixa may immediately charge the full and final price to your credit card after the Vehicle Service Provider notifies Carfixa that the Vehicle Services have been completed. Unless otherwise specified, all amounts due hereunder shall be paid in U.S. dollars, in immediately available funds by credit card, in full without set-off, counterclaim or deduction. All charges paid by you are final and nonrefundable, unless otherwise determined by Carfixa. Any amount not paid when due shall bear a late payment charge until paid at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. If any payment is past due, Carfixa shall have the right to take whatever action it deems appropriate (including without limitation, suspending or terminating your Account). You agree to reimburse Carfixa for all reasonable costs and expenses (including attorneys’ fees) incurred in collecting payments. You agree not to make any alternative payment arrangement with any Vehicle Service Provider. If you and Vehicle Service Provider agree to perform additional or different services and/or use additional or different vehicle parts than the amount originally displayed on the Website upon your initial request, you authorize the payment of such updated or modified charges.
Carfixa uses Stripe Inc. (“Stripe”) and Square, Inc. (“Square”) as third party service providers for payment services (e.g., credit card transaction processing, merchant settlement, and related services). By using the Website, you agree to be bound by Stripe’s US Terms of Service available at https://stripe.com/us/terms and Privacy Policy available at https://stripe.com/us/privacy and/or Square’s US Terms of Service available at https://squareup.com/us/en/legal/general/ua and Privacy Policy available at https://squareup.com/us/en/legal/general/privacy.
You hereby consent to provide and authorize Carfixa, Stripe and Square to share any information and payment instructions you provide to the extent required to complete payment transactions in accordance with this Agreement, including personal, financial, credit card payment, and transaction information. Upon initial registration of your credit card, you may see a pending charge as part of the authorization confirmation process. This is not a charge and is used to confirm account authenticity. The pending charge should automatically clear on its own. If you have any issues, please contact Info@carfixa.com
To offer you further unprecedented freedom Carfixa provides a financing option through third party service providers. By using the financing option, you agree to be bound by Snap Finance’s US Terms of Service available at https://snapfinance.com/terms-of-use and Privacy Policy available at https://snapfinance.com/privacy or Affirm’s US Terms of Service available at https://www.affirm.com/terms and Privacy Policy available at https://www.affirm.com/privacy.
4. Vehicle Service Denial.
Carfixa expressly reserves the right to deny any Vehicle Service requests for any reason, including if: (i) we discover an error in pricing and/or other information about any products or services or receive insufficient or erroneous billing, payment information, (ii) we suspect the use of stolen payment card information or other information that appears to be connected to fraud, (iii) the ordered service is unavailable due to discontinuance, part unavailability, or otherwise, or (iv) we believe the request is connected with a previous payment dispute.
5. Communications.
5.1. Consent to be Contacted by Carfixa and Vehicle Service Providers. By submitting a service request, you consent to Carfixa’s use and disclosure of your contact and all other related information in accordance with our Privacy Policy available at www.carfixa.com/privacy/ and expressly authorize Carfixa, the Vehicle Service Providers you select and their respective representatives to use automatic telephone dialing systems or other technology and processes to contact you via phone (including live and prerecorded calls), e-mail, postal mail, text messaging, or other reasonable means, at any of the contact numbers or addresses you provide, even if your number(s) are listed on any federal, state, or other applicable “Do Not Call” list. Message frequency will vary according to how you interact with our platform. Standard carrier Message and Data Rates May Apply to any text messages you send or receive through our platform. Check your mobile plan for details. To stop receiving text messages through our platform, reply STOP to any such message you receive. You agree that we may send you a message to confirm receipt of your STOP request. You acknowledge and agree that our platform may not recognize and respond to text unsubscribe requests that do not include the STOP keyword and agree that Carfixa and the Vehicle Service Providers who send text messages through our platform will have no liability for failing to honor such requests. For assistance with any text message issues, reply HELP to any text message you receive through our platform. You can also contact our customer assistance team by emailing us at info@carfixa.com. Not all mobile devices may be supported and text messaging may not be available in all areas. Carfixa, the Vehicle Service Providers that use our platform and the mobile carriers supported on our platform are not liable for delayed or undelivered text messages. You promise that all information you provide through the Website (including but not limited to your telephone number(s) and other contact information) will be accurate, current and truthful to the best of your knowledge.
5.2. Consent to Call Recordings. You acknowledge and agree that Carfixa may monitor and/or record any communications, including e-mails, text messages, and telephone calls between you and either of (i) RepairSmith and (ii) the Vehicle Service Providers you select.
6. Inspections; Test Drives; Diagnosis Limitations.
Unless otherwise agreed by you and the Vehicle Service Provider in writing, there are certain standing limitations on the scope and efficacy of certain commonly requested Vehicle Services, as follows:
Each inspection is limited to the items expressly stated in the inspection report. If you request inspection of an item that is not included in the inspection report, the Vehicle Service Provider, at its sole discretion, may make a reasonable effort to inspect that additional item; however, there is no guarantee that the additional item will be inspected. If reference to the additional item is not expressly included in the inspection report, you should assume that the item was not inspected.
Vehicle Service Providers may test drive vehicles. Unless the inspection report specifically states that a test drive was conducted, no such test drive was conducted.
Inspections are not warranted or guaranteed to be equivalent to state inspections or SMOG inspections. Obtaining an inspection from a Vehicle Service Provider through our Website does not indicate that your vehicle would pass a state inspection or a SMOG inspection.
When a Vehicle Service Provider performs a diagnosis inspection on your vehicle, the Vehicle Service Provider cannot guarantee or warrant that all the problems with your car (and/or solutions) will be identified during the first inspection. Sometimes, the only way to get to the root cause of a problem is to go through a process of elimination by replacing a part suspected to be defective and then seeing whether the problem still exists. After receiving a diagnosis inspection, you may request subsequent service work recommended based on the results, which would be subject to additional fees.
If a Vehicle Service Provider provides a vehicle pre-purchase inspection on your vehicle for the purposes of determining whether you should purchase the vehicle, you acknowledge and agree that neither Carfixa nor any Vehicle Service Provider advises on the value of any vehicle, whether or not to purchase a vehicle, or authenticates a vehicle’s origin. Regardless of any comments made by a Vehicle Service Provider, your purchase or decision not to purchase a vehicle is at your own risk. Vehicle Service Providers do not determine if a vehicle is emission compliant or whether a vehicle will perform properly. Pre-purchase inspections are not diagnosis inspections. Diagnostic equipment is not typically used in a pre-purchase inspection. Pre-purchase inspections are based on what is seen and heard through the eyes and ears of the Vehicle Service Provider. Weather and light conditions, as well as the cleanliness of the vehicle both inside and out, can reduce the accuracy of the inspection, making things such as prior re-painting and body work difficult to detect. For the most accurate inspection report, the vehicle must be clean, dry, and well-lit at the time of the pre-purchase inspection. Vehicle Service Providers do not clean or dissemble vehicles prior to or during pre-purchase inspections. Vehicle Service Providers may identify the VIN (vehicle identification number), but not check the authenticity of the VIN, history, or title of the vehicle. Since many aspects of the inspection are subjective, if you were to perform the inspection yourself, you may come to different conclusions from the Vehicle Service Provider’s opinion. Pre-purchase inspection reports are not guaranteed or warranted because changes in the vehicle can occur and/or manifest themselves between the time of inspection and the time of purchase, and because during a pre-purchase inspection the Vehicle Service Provider cannot see inside an engine or transmission and does not take the whole car apart to check every component in the car. Thus, impending failures may not be evident at the time of inspection.
7. Vehicle Service Cancellation.
7.1. Cancellation of Vehicle Service by You. You may cancel a Vehicle Service at any time prior to commencement of the Vehicle Service. We reserve the right to establish, remove, and/or revise our cancellation policy or implement cancellation fees at any time in our discretion.
7.2. Cancellation of Vehicle Service by Vehicle Service Provider. When a Vehicle Service Provider cancels a scheduled Vehicle Service, we will notify you so that you can select another Vehicle Service Provider. You agree to hold Carfixa harmless from any liability that may result from the cancellation of a Vehicle Service or refusal of a Vehicle Service Provider to complete a Vehicle Service.
8. User Content.
8.1. Responsible Party for Content. You acknowledge that all content is the sole responsibility of the party from whom such content originated. This means that each user is entirely responsible for all content that that user makes available through the Website, including without limitation, all ratings, information, data, photos, videos, messages, and other content (“User Content”). Carfixa has no obligation to pre-screen any content. You use all User Content and interact with Vehicle Service Providers at your own risk. Without limiting the foregoing, Carfixa reserves the right in its sole discretion to pre-screen, refuse, or remove any content. Carfixa shall have the right to remove any content that violates this Agreement or is otherwise objectionable.
8.2. Ownership of Your Content. Carfixa does not claim ownership of any User Content you make available on the Services (“Your Content”). However, when you as a user send Your Content using the Website, you represent that you have all of the necessary rights to grant Carfixa the license set forth in Section 8.3. Except with respect to Your Content, you agree that you have no right or title in or to any content that appears on or in the Website.
8.3. License to Your Content. You grant Carfixa an irrevocable, perpetual, worldwide, transferable, sub-licensable, right to (i) use and display Your Content (in whole or in part) and aggregate Your Content with other user content for the purposes of operating, providing, and improving our services, (ii) share Your Content with Vehicle Service Providers to provide services to you, and (iii) share anonymized content with third parties for any business purpose. Note that other users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services.
8.4. Ratings and Reviews. Ratings and reviews posted by users on our Website are User Content that is not endorsed by Carfixa and does not represent the views of Carfixa. Carfixa does not assume liability for ratings and reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Website, you agree that: (i) any rating or review you post will be based only on your first-hand experience with the applicable business, product, or service; (ii) you will not provide a rating or review for any business, product, or service with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
8.5. Other Restrictions on User Conduct. You agree to treat Vehicle Service Providers courteously and lawfully and to provide reasonable cooperation to enable Vehicle Service Providers to complete the Vehicle Service. You agree not to use the Website for any purpose prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third-party to) (a) take any action or (b) make available any content on or through the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales without Carfixa's prior written consent, such as contests, sweepstakes, barter, advertising, or pyramid schemes; or (v) impersonates any person or entity, including any employee or representative of Carfixa.
9. Ownership of and License to Use the Website.
9.1. Use of the Website. Carfixa and its licensors own all rights, title and interest in the Website. The Website is protected by copyright and other intellectual property laws throughout the world. Subject to this Agreement, Carfixa grants you a limited license to use the Website solely for your personal non-commercial purposes. Any future release, update or other addition to the Website shall be subject to this Agreement. Carfixa and its licensors reserve all rights not granted in this Agreement.
9.2. Trademarks. Carfixa’s stylized name and other related graphics, logos, service marks and trade names used on or in connection with the Website are the trademarks of Carfixa and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in the Website are the property of their respective owners. You will not remove, alter or obscure any copyright notice, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website.
9.3. Feedback. You agree that your submission of any ideas, suggestions, documents, and/or proposals to Carfixa (“Feedback”) is at your own risk and that Carfixa has no obligations with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Carfixa the right to use any Feedback in any way at any time without any additional approval or compensation.
10. Restrictions on Use of Website.
The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit the Website or any portion of the Website; (b) you shall not frame or use framing techniques to enclose any trademark, or logo (including images, text, page layout or form); (c) you shall not use any metatags or other “hidden text” using Carfixa’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Website except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you shall not access the Website to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of the Website may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Website; (i) you shall not interfere with or attempt to interfere with the proper functioning of the Website or use the Website in any way not expressly permitted by this Agreement; and (j) you shall not attempt to harm the Website, including but not limited to, by violating or attempting to violate any related security features, introducing viruses, worms, or similar harmful code into the Website, or interfering or attempting to interfere with use of the Website by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing”, or “crashing” the Website. Any unauthorized use of the Website terminates the licenses granted by Carfixa pursuant to this Agreement.
11. Third-Party Links.
The Website may contain links to third-party services such as third party websites, applications, or ads (“Third-Party Links”). When you click on such a link, we will not warn you that you have left the Website. Carfixa does not control and is not responsible for Third-Party Links. Carfixa provides these Third-Party Links only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to them, or any content, products or services accessible through such links. Your use of all Third-Party Links is at your own risk.
12. Indemnification.
You agree to indemnify and hold RepairSmith, its corporate parents, subsidiaries, and affiliates, and the officers, directors, employees, agents, representatives, partners and licensors of each (collectively, the “Carfixa Parties”) harmless from any damages, losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any claims concerning: (a) your misuse of the Website; (b) your violation of this Agreement; (c) your violation of any rights of any third party, including any Vehicle Service Providers; or (d) your violation of any applicable laws, rules or regulations. Carfixa reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Carfixa in asserting any available defenses. You agree that the provisions in this Section will survive any termination of this Agreement or your access to the Website.
13. Disclaimer of Warranties and Conditions.
EXCEPT AS PROVIDED IN THE LIMITED WARRANTY, THE SERVICE AND PARTS ARE MADE AVAILABLE ON AN “AS IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK, AND THE WEBSITE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE CARFIXA PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT ARISING FROM USE OF THE WEBSITE. CARFIXA PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE WEBSITE WILL MEET YOUR REQUIREMENTS OR (2) YOUR USE OF THE WEBSITE WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
OUR WEBSITE IS NO SUBSTITUTE FOR PROFESSIONAL SERVICES OR ADVICE. IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH OUR WEBSITE, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION. WITHOUT LIMITING THE FOREGOING, CARFIXA DOES NOT GUARANTEE THAT THE SERVICE QUOTED ON OUR WEBSITE IS THE SERVICE YOUR VEHICLE REQUIRES.
YOU ACKNOWLEDGE AND AGREE THAT ANY PRODUCTS OR SERVICES OFFERED THROUGH OUR WEBSITE CARRIES NO WARRANTY OTHER THAN THAT OFFERED BY THE VEHICLE SERVICE PROVIDER OR PART MANUFACTURER. CARFIXA HAS NEITHER MADE NOR IS RESPONSIBLE OR LIABLE FOR ANY WARRANTY, REPRESENTATION, OR GUARANTEE, EXPRESS OR IMPLIED, IN FACT OR IN LAW, RELATIVE TO ANY PRODUCT OR SERVICE OFFERED THROUGH THE WEBSITE, INCLUDING BUT NOT LIMITED TO, ITS QUALITY, MECHANICAL CONDITIONS, OR FITNESS FOR A PARTICULAR PURPOSE. YOU AGREE TO LOOK SOLELY TO THE VEHICLE SERVICE PROVIDER OR PRODUCT MANUFACTURER, AS APPLICABLE, FOR ANY SUCH WARRANTY, REPRESENTATION, OR GUARANTEE. PLASTIC, COMPOSITE, AND RUBBER ENGINE AND COOLING SYSTEM COMPONENTS ARE OFTEN AFFECTED BY AGE AND TEMPERATURE FLUCTUATIONS AND BECOME FRAGILE OVER TIME. BECAUSE OF THIS, SUCH PARTS CAN BREAK OR EVEN DISINTEGRATE DURING PROCEDURES THAT INVOLVE THEIR DISASSEMBLY OR HANDLING. YOU UNDERSTAND THAT CARFIXA WILL NOT BE HELD LIABLE FOR COMPONENT FAILURES, INCLUDING BUT NOT LIMITED TO, THOSE DESCRIBED IN THE FOREGOING SENTENCE.
CARFIXA IS NOT RESPONSIBLE FOR ANY ACTS OR OMISSIONS OF ANY THIRD-PARTY VEHICLE SERVICE PROVIDERS. CARFIXA DOES NOT ENDORSE ANY THIRD-PARTY VEHICLE SERVICE PROVIDERS OR ANY PRODUCTS WHICH MAY BE PROVIDED BY SUCH THIRD-PARTY VEHICLE SERVICE PROVIDERS. CARFIXA WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND ANY THIRD-PARTY VEHICLE SERVICE PROVIDERS.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
§ 3376. Disclosure of Guarantee.
All guarantees shall be in writing and a legible copy thereof shall be delivered to the customer with the invoice itemizing the parts, components, and labor represented to be covered by such guarantee. A guarantee shall be deemed false and misleading unless it conspicuously and clearly discloses in writing the following:
(a) The nature and extent of the guarantee including a description of all parts, characteristics or properties covered by or excluded from the guarantee, the duration of the guarantee and what must be done by a claimant before the guarantor will fulfill his obligation (such as returning the product and paying service or labor charges).
(b) The manner in which the guarantor will perform. The guarantor shall state all conditions and limitations and exactly what the guarantor will do under the guarantee, such as repair, replacement or refund. If the guarantor or recipient of the guarantee has an option as to what may satisfy the guarantee, this must be clearly stated.
(c) The guarantor's identity and address shall be clearly revealed in any documents evidencing the guarantee.Note: Authority cited: Sections 9882 and 9884.19, Business and Professions Code. Reference: Sections 9884.19 and 17500
14. Limitation of Liability.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, THE CARFIXA PARTIES SHALL NOT BE LIABLE FOR ANY LOSS OF PROFITS OR REVENUE OR FOR INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF DATA, PRODUCTION, OR USE, BUSINESS INTERRUPTION OR PROCUREMENT OF SUBSTITUTE SERVICES.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, CARFIXA ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT, (II) PERSONAL INJURY, PROPERTY DAMAGE, OR DEATH RESULTING FROM YOUR ACCESS AND USE OF OUR WEBSITE, INCLUDING WITHOUT LIMITATION, ANY INJURY, DAMAGE, OR DEATH CAUSED BY THE ACTIONS OR OMISSIONS OF A VEHICLE SERVICE PROVIDER OR ANY VEHICLE SERVICES PROVIDED BY A VEHICLE SERVICE PROVIDER, (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN, (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM OUR WEBSITE, (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR WEBSITE BY ANY THIRD PARTY, (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, MESSAGED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE WEBSITE, (VII) CONTENT UPLOADED TO THE WEBSITE BY ANY THIRD PARTY, INCLUDING WITHOUT LIMITATION, ANY USER OR VEHICLE SERVICE PROVIDER, (VIII) THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY AND/OR (IV) ANY PARTS PROVIDED BY YOU.
THIS SECTION 14 APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF CARFIXA HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN TYPES OF DAMAGES, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISIDICTION. IF, NOT WITHSTANDING THE FOREGOING EXCLUSIONS, IT IS DETERMINED THAT CARFIXA IS LIABLE FOR DAMAGES, IN NO EVENT WILL THE AGGREGATE AND TOTAL LIABILITY EXCEED THE AMOUNT INVOICED FOR THE ASSOCIATED VEHICLE SERVICE.
THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN CARFIXA AND YOU.
15. California Waiver.
If you are a California resident, to the extent permitted by California law, you hereby waive California Civil Code Section 1542, which states “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor” as well as any other unknown claims under California Civil Code Section 1542 or any statute or common law principle of similar effect.
16. Procedure for Making Claims of Copyright Infringement.
If you believe content posted on the Website infringes your copyright rights, please provide our Copyright Agent with the following information: (1) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (2) a description of the copyrighted work that you claim has been infringed; (3) a description of the location on the Services of the material that you claim is infringing; (4) your address, telephone number and e-mail address; (5) a written statement that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (6) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf. Correspondence to our Copyright Agent regarding notice of claims of copyright infringement should be addressed to: CARFIXA, Inc.: CARFIXA General Counsel.
17. Termination.
At its sole discretion, Carfixa may modify or discontinue the Website, or may modify, suspend or terminate your access to the Website, for any reason, with or without notice to you and without liability to you or any third party. In addition to suspending or terminating your access to the Website, Carfixa reserves the right to take appropriate legal action, including without limitation pursuing civil, criminal or injunctive redress. All terms which by their nature should survive the termination of this Agreement shall survive.
18. International Users.
The Website is controlled and offered by Carfixa from its facilities in the United States of America. Carfixa makes no representations that the Website is appropriate or available for use in other locations. Those who access or use the Website from other countries do so at their own volition and are responsible for compliance with local law.
19. Dispute Resolution.
Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with Carfixa and limits the manner in which you can seek relief from us.
19.1. Applicability of Arbitration Agreement. You agree that any dispute between you and us relating in any way to the Website or this Agreement, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify; and (2) you or Carfixa may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
19.2. Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Carfixa, Inc.,: Carfixa General Counsel. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims with an amount in controversy under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’ most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and you cannot obtain a waiver from JAMS, Carfixa will pay them for you. In addition, Carfixa will reimburse all such JAMS’ filing, administrative, hearing and/or other fees for claims with an amount in controversy totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
19.3. Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Carfixa. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and this Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
19.4. Waiver of Jury Trial. YOU AND CARFIXA HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT (OTHER THAN SMALL CLAIMS COURT AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Carfixa are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 19.1 above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
19.5. Waiver of Class or Other Non-Individualized Relief. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE FOR CLAIMS COVERED BY THIS ARBITRATION AGREEMENT, AND CLAIMS OF MORE THAN ONE USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER USER. If a decision is issued stating that applicable law precludes enforcement of any of this Section 19.5’s limitations as to a given claim for relief, then the claim must be severed from the arbitration and brought into the State or Federal Courts serving Riverside County, California. All other claims shall be arbitrated.
19.6. 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending a timely written notice of your decision to opt out to the following address: Carfixa, Inc., General Counsel or email to info@carfixa.com, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address and a clear statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
19.7. Severability. Except as provided in Section 19.5, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
19.8. Survival of Agreement. This Arbitration Agreement will survive the termination or expiration of the Agreement or your relationship with Carfixa.
19.9. Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Carfixa makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Carfixa at the following address: Carfixa, Inc., General Counsel.
20. General Provisions.
20.1. Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Carfixa’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
20.2. Force Majeure. Carfixa shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
20.3. Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Carfixa agree that all claims and disputes arising out of or relating to this Agreement will be litigated exclusively in the state courts in Santa Clara County, California or federal courts located in the Central District of California.
20.4. Governing Law. THIS AGREEMENT AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY CONFLICT OF LAW OR OTHER PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION.
20.5. Electronic Communications. The communications between you and Carfixa use electronic means, whether you visit Website or send Carfixa e-mails, or whether Carfixa posts notices on the Website or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from Carfixa in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Carfixa provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
20.6. Notice. Where Carfixa requires that you provide an e-mail address, you are responsible for providing Carfixa with your most current e-mail address. In the event that the last e-mail address you provided to Carfixa is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, Carfixa’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Carfixa at the following address: Carfixa, Inc., General Counsel. Such notice shall be deemed given when received by Carfixa by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
20.7. Contact Information. If you would like to contact us with respect to the Website, please e-mail info@carefixa.com.
20.8. Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Service of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
20.9. Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
20.10. Severability. Subject to Sections 19.5 and 19.7, if any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
20.11. Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
