Effective Date: 08/15/2016
This website (as available at www.carserv.com or otherwise) and its associated services and content (collectively “Website”) and is owned and operated by CarServ, Inc. (“CarServ”). CarServ also owns all software programs, databases, and data files created by the software (collectively “Software”). CarServ has adopted this Terms and Conditions Agreement (“Agreement”) to inform you of your rights and duties when using the Website and the Software. By using the Website and the Software, you expressly accept the terms and conditions in this Agreement.
CARSERV MAY, FROM TIME TO TIME, AND RESERVES THE RIGHT, IN ITS SOLE AND ABSOLUTE DISCRETION, TO MODIFY, LIMIT, CHANGE, DISCONTINUE, OR REPLACE THE WEBSITE. IN THE EVENT CARSERV MODIFIES, LIMITS, CHANGES, OR REPLACES THE WEBSITE, YOUR USE OF THE WEBSITE AFTER SAID MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT CONSTITUTES YOUR MANIFESTATION OF ASSENT TO THE MODIFICATION, LIMITATION, CHANGE, OR REPLACEMENT.
You warrant and agree that you have the right and legal capacity to enter into this Agreement on behalf of yourself or the organization that you represent. You warrant that you are a human individual that is eighteen (18) years of age or older. If you are under eighteen (18) years of age but at least thirteen (13) years of age, you must present this Agreement to your parent or legal guardian for their review. You warrant that you are not prohibited from assenting to this Agreement by any preexisting Agreement. If you do not have the right or authority to assent to this Agreement, or if you do not agree with the terms and conditions of this Agreement, you may not use the Website or Software.
CarServ provides an interactive shop management and communication platform that transforms the communication and workflow in the automotive repair industry. Specifically, the Website and Software allow automotive repair shop users to easily communicate with their customers through one online location. Examples of these communications include repair updates, invoices, vehicle checklists, service/maintenance reminders, repair histories, and shop promotions.
It is not the intention of CarServ to provide automotive repair advice or services. All automotive repair advice and services are provided by automotive repair shops and CarServ has no obligation or liability regarding the automotive repair advice and services. Rather, the material contained on this Website and Software is for informational purposes only. The information should not be considered complete or up to date, nor should it be relied on to suggest a course of action for automotive repair. Your reliance upon any information provided by CarServ, CarServ’s contractors and employees, if any, others appearing on the Website at invitation by CarServ, or other visitors or users of this Website is solely at your own risk.
You understand and agree that the content of this Website and Software does not contain or constitute representations to be reasonably relied upon, and you agree to hold CarServ harmless for any errors, omissions, or misrepresentations contained within the Website’s or Software’s content.
Excluding your content, you acknowledge and agree that CarServ is the owner of, or has rights in and to, the Website and Software, including but not limited to all intellectual property rights inherent therein. The Website and Software protected by all applicable laws, intellectual property or otherwise, and you are expressly prohibited from using the Website or Software for any purposes not explicitly stated in this Agreement.
CarServ hereby grants you, during the Term of this Agreement, a non-exclusive, non-sublicenseable, non-assignable, non-transferable, worldwide license to use the Website and Software solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by CarServ. Specifically, and except where otherwise allowed under this Agreement or pursuant to a separate written agreement signed by CarServ, you shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Website, the Software, or the content provided by or on behalf of CarServ through the Website or the Software in any way; (ii) modify or make derivative works based upon the Website, the Software, or the associated content; (iii) frame, scrape, aggregate, hack, or crawl the Website or the Software; or (iv) reverse engineer or access the Website or Software in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Website or Software, or (c) copy any ideas, features, functions or graphics of the Website or Software, without the prior written consent of CarServ. Violation of the terms of this Agreement or use of the Website or Software for a use outside of your own internal business purposes, such as modifying the Website or Software or any portion of it, will result in the termination of this license. This license is revocable at any time, and any rights not expressly granted herein are reserved to CarServ.
If you upload, post, submit, transmit, or otherwise distribute content, including but not limited to shop data, customer data, images, videos, text, and files, to CarServ, the Website, or the Software, then you agree to:
You agree not to provide CarServ with any content unless you have all of the rights (including rights from the copyright owner) necessary to grant CarServ the foregoing use license, and to satisfy all of the warranty requirements described above.
The Website, Software, and all content, materials, data, and other information created by or for CarServ (or its affiliates, licensors, or business partners) are protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws, and CarServ (or its affiliates, licensors, or business partners) owns, or license, and retains all rights, title, and interests (including all intellectual property and proprietary rights) therein and thereto. Specifically, all CarServ marks are the property of CarServ, including, but not limited to CARSERV and all CarServ logos. The Website, including its look and feel, color selections, layout, and arrangement, is the trade dress of CarServ. You are prohibited from using CarServ’s trademarks, service marks, patents, trade secrets, trade dress, or other proprietary rights to indicate the source of, sponsorship of, approval of, affiliation with, connection with, or association with your goods or services without the prior written consent of CarServ.
This Agreement is not a sale and does not convey to you any rights of ownership in or related to the CarServ Website, Software, CarServ technology, CarServ content, or CarServ intellectual property except for the limited licenses granted to you under this Agreement. Any and all software, algorithms, applications, source codes, structures, sequences, routines, sub-routines and related programming, engineering or technological matter developed or created by CarServ or its licensors (and all copyrights, patents, trademarks and other proprietary rights related thereto) shall remain the sole, exclusive and perpetual property of CarServ or its licensors. CarServ works with third parties to offer its customers additional products and services from time to time. CarServ collects aggregate data in order to provide such additional product and services to you and you agree to permit us to use such aggregate data.
You are solely responsible for any and all activity occurring under your user accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Website, Software, and CarServ’s services, including those related to data privacy, international communications and the transmission of technical or personal data. You also will choose a password and a user name. You are entirely responsible for maintaining the confidentiality of your password and account. You agree to notify CarServ immediately of any unauthorized use of your account or any breach of security. CarServ will not be liable for any loss that you may incur as a result of someone else using your password or account, either with or without your knowledge. You warrant and represent that: (i) the content to be transmitted by or on your behalf does not constitute SPAM or otherwise unlawful communication under any law; (ii) the content to be transmitted by or on your behalf is not illegal, threatening, hateful, vulgar, obscene, libelous or defamatory and does not and will not infringe upon any trademark, patent, copyright, trade secret or other proprietary, publicity or privacy right of any third party; and (iii) you have complied and will comply with all applicable laws and regulations respecting your execution and performance of this Agreement. CarServ reserves the right to restrict access to, monitor, suspend, disable, or delete your account at any time, in its sole discretion, and without prior warning.
The CarServ Website and Software receive data from third-party software systems. You are responsible for communicating any changes in data structure, management system, or hardware upgrades that may impact CarServ’s ability to receive and process your content. In addition, you are responsible for providing CarServ with accurate instructions and information regarding the third party systems and databases with which the Website, Software, and CarServ’s databases will interface, and you bear all responsibility for incomplete, inaccurate or otherwise faulty information regarding third party systems and databases belonging to you as conveyed to CarServ in connection with set up or maintenance of CarServ’s Website and services.
CarServ does not own any content that you provide to CarServ, the Website, or the Software in the course of using the Website, the Software, and/or CarServ’s services. You, not CarServ, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all of your content, and, except as provided in this Agreement or as required by law, CarServ shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any of your content, or for the improper or erroneous upload or extraction of any of your content. CarServ reserves the right to withhold, remove and/or discard of your content without notice for any breach, including, without limitation, your non-payment as specified in this Agreement. Upon termination for cause, your right to access or use your content immediately ceases, and CarServ shall have no obligation to maintain or forward any of your content.
By registering and creating an account, you agree that CarServ may contact you by any available means, including, but not limited to, by email, telephone, fax, text messages, push notifications, or messages within the Website and Software. You further agree that by using CarServ’s Website and Software, CarServ has permission to contact Car Owners by any and all available means provided via the Software, such as email, telephone, fax, text messages, and push notifications.
CarServ charges and collects fees in advance for your use of the Website, the Software, and CarServ’s services. All costs and fees are quoted and payable in United States Dollars and are subject to change. Payment is processed through a third-party payment processor, such as PayPal. It is your sole responsibility to review and comply with all Terms and Policies of any third parties, including Shop Owners. You agree to pay all applicable taxes, duties, levies or charges imposed by any governmental entity anywhere in the world. You understand and agree that CarServ will not be held liable for any user’s failure to use the services provided through the Website or the Software.
No refunds will be available for fees you have paid unless you were billed in error. CarServ will automatically renew and bill your credit card or issue an invoice to you (a) every month for monthly licenses and fees, (b) every quarter for quarterly licenses and fees, (c) each year on the subsequent anniversary for annual licenses, or (d) in an otherwise mutually agreed upon manner. The renewal charge will be equal to the then-current license fee in effect at the time of renewal. The pricing during any automatic renewal term will renew at the then current rate and CarServ will give you notice of a pricing increase at least thirty (10) days before the end of that prior term, in which case the pricing increase will be effective upon renewal and thereafter in the new term. Fees for other services will be charged on an as-quoted basis.
By submitting your credit/debit card data to CarServ, you authorize CarServ in its complete discretion to submit a financial transaction(s) to your issuing bank for settlement. You agree that once CarServ has approved or declined your transaction, CarServ has fully performed under the terms of this Agreement. You agree to contact CarServ in the event that you desire to cancel any recurring charge, prior to the next billing cycle. Should you fail to contact CarServ, you agree to indemnify and hold CarServ harmless from any losses or damages that you suffer as a result of a recurring charge. CarServ may be contacted at: [email protected] If you think that there is an error on your account, including an incorrect amount or unauthorized transaction, you agree to contact CarServ prior to the next billing cycle. Upon proper notification, CarServ, in its sole discretion may issue a credit to your credit/debit card.
You agree that you will not use the Website or Software to violate any law, statute, ordinance, regulation, or treaty, to violate the rights of third parties, or for a use outside of the customary and intended purposes of the Website and Software.
Specifically, you are prohibited from, without limitation:
Your violation of any term or condition of this section may result in the immediate termination of your registration account and Profile and the disabling of your access to the Website and/or Software.
You acknowledge and agree that CarServ is an interactive computer service provider under Section 230 of the Communications Decency Act. Though CarServ may edit, remove, or control the content displayed through the Website and Software, you agree that CarServ will not be considered an information content provider and will not be held liable for the republication of defamatory or tortious content created by third parties, whether through the Website, the Software, or otherwise.
You understand that the Website may contain links to third party websites, applications, or services that CarServ does not own or control. You agree that CarServ will not be held responsible or liable for the content of third party websites, applications, or services and that CarServ’s inclusion of those websites, applications, or services within its Website does not constitute CarServ’s endorsement of, recommendation of, or affiliation with any of those websites, applications, or services.
CarServ does not endorse or recommend any commercial product, process, or service. The views and opinions of users, contributors, and others expressed on this Website do not necessarily state or reflect those of CarServ and are not limited to be used for advertising or product endorsement purposes.
Unless otherwise agreed by CarServ, this Agreement will be in force beginning on the Effective Date. This Agreement will AUTOMATICALLY RENEW on a month-to-month basis (“Renewal Term”). If you choose not to renew after any month is complete, you must notify CarServ at least fifteen (15) days prior to the end of said month. If you want to cancel, you must provide CarServ at least fifteen (15) days’ prior notice, during which time you will continue to have access to the CarServ Website. At the end of that notice period, you will cease to have access to the CarServ Website and you will be billed for final CarServ services through the end of that month, if such fees have not already been paid.
Any breach of your payment obligations or unauthorized use of CarServ’s technology, Website, content, or services will be deemed a material breach of this Agreement. CarServ, in its sole discretion, may terminate this Agreement without liability at any time, without notice, and for any reason, including but not limited to for your violation of a term or condition of this Agreement. You agree and acknowledge that CarServ has no obligation to retain your content, and may delete your content, if you have materially breached this Agreement, and such breach has not been cured within fifteen (15) days of notice of such breach. In addition, failure to timely make payments to CarServ will result in termination of services as deemed appropriate by CarServ. CarServ will have no liability for any suspension or termination of your account in accordance with this paragraph.
Each party represents and warrants that it has the power and authority to enter into this Agreement. CarServ represents and warrants that it will provide the Website and Software in a manner consistent with generally accepted industry standards. You represent and warrant that you have not falsely identified yourself or your corporate entity, or provided any false information to gain access to the Website or Software, and that all credit/debit card and other billing information that you have provided is correct.
CARSERV DISCLAIMS ANY RESPONSIBILITY FOR ANY HARM OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OF THE WEBSITE, THE SOFTWARE, OR PRODUCTS AND SERVICES ACCESSED OR PURCHASED, IF ANY, THROUGH THE WEBSITE AND SOFTWARE. CARSERV PROVIDES THE WEBSITE AND SOFTWARE AND THE PRODUCTS AND SERVICES THROUGH THE WEBSITE AND SOFTWARE ON AN “AS IS” AND “AS AVAILABLE” BASIS. EXCEPT AS EXPLICITLY SET FORTH ABOVE, CARSERV IS NOT PROVIDING ANY WARRANTIES AND REPRESENTATIONS REGARDING THE SERVICE, CONTENT OR TECHNOLOGY, AND CARSERV AND ITS PARENT, LICENSORS, DISTRIBUTORS, PARTNERS AND AFFILIATES (COLLECTIVELY, THE “AFFILIATES”) DISCLAIM ALL WARRANTIES AND REPRESENTATIONS OF ANY KIND WITH REGARD TO THE SERVICE, CONTENT AND TECHNOLOGY, INCLUDING ANY IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OF THIRD PARTY RIGHTS, FREEDOM FROM VIRUSES OR OTHER HARMFUL CODE, COURSE OF DEALING, OR FITNESS FOR ANY PARTICULAR PURPOSE. FURTHER, CARSERV, ITS PARENT, ANY THIRD PARTIES ACTING ON ITS BEHALF, AND ITS AFFILIATES WILL NOT BE LIABLE FOR ANY DELAY, DIFFICULTY IN USE, INACCURACY OF INFORMATION, COMPUTER VIRUSES, MALICIOUS CODE OR OTHER DEFECT IN THE SERVICE, OR FOR ANY OTHER PROBLEMS EXPERIENCED BY YOU DUE TO CAUSES BEYOND CARSERV’S OR ITS PARENT, ANY THIRD PARTIES ACTING ON ITS BEHALF, OR ITS AFFILIATES’ CONTROL. CARSERV RESERVES THE RIGHT TO DISCONTINUE THE WEBSITE AND SOFTWARE AT ANY TIME.
IN NO EVENT SHALL CARSERV, ITS PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS OR AFFILIATES BE LIABLE FOR: (I) ANY INDIRECT, INCIDENTAL, UNFORESEEABLE, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES; (II) ANY DAMAGES FOR LOSS OF PROFITS, LOSS OF EARNINGS OR LOSS OF BUSINESS OPPORTUNITIES, EVEN IF CARSERV HAS BEEN ADVISED OR WARNED BY YOU OF THE POSSIBILITY OF SUCH DAMAGES; (III) COSTS OF PROCUREMENT OR SUBSTITUTE GOODS OR SERVICES; (IV) LOSS OF DATA OR OTHER OF YOUR CONTENT RESULTING FROM DELAYS, NON-DELIVERIES, MISDELIVERIES, SECURITY BREACHES TO, SERVICE INTERRUPTIONS TO, OR ERRORS OR OMISSIONS RESPECTING THE SERVICE OR THE OPERATION OF CARSERV OR ITS LICENSORS’ NETWORKS; OR (V) LOSSES OR LIABILITIES DUE IN WHOLE OR IN PART TO INADVERTENT, PREMATURE OR UNAUTHORIZED RELEASE OR DISCLOSURE OF INFORMATION BY YOU VIA CARSERV OR ITS LICENSORS’ NETWORKS. THE TOTAL CUMULATIVE LIABILITY OF CarServ TOGETHER WITH ITS PARENT, SUBSIDIARIES, OFFICES, DIRECTORS, EMPLOYEES, LICENSORS, PARTNERS AND AFFILIATES TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE IS LIMITED TO THE AMOUNT OF FEES YOU PAY TO CARSERV IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF CARSERV HAS BEEN NOTIFIED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. NO ACTION OR CLAIM RELATING TO THIS AGREEMENT SHALL BE MADE AGAINST CARSERV OR ITS PARENT, LICENSORS, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, PARTNERS OR AFFILIATES BY YOU OR ON YOUR BEHALF MORE THAN TWELVE (12) MONTHS AFTER THE EVENT GIVING RISE TO SUCH ACTION OR CLAIM.
You agree to indemnify, defend and hold CarServ (including its parent, subsidiaries, affiliates, officers, directors, agents, and employees, contractors, sub-contractors, licensors, and partners) harmless from any claim or demand, including reasonable attorney’s fees, made by any third party due to or arising out of your breach or alleged breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party (including without limitation any negligent, willful, tortious or illegal conduct by you affecting a third party).
Your obligation to defend CarServ under the terms of this Agreement will not provide you with the right to control CarServ’s defense, and CarServ reserves the right to control its defense and choose its counsel regardless of your contractual requirement to defend CarServ.
CarServ has worked to achieve email compliance. You agree to comply with all elements of CAN-SPAM and safe sender email practices. This includes but is not limited to including unsubscribe links, your full contact information in all correspondence, and not releasing private and/or confidential information. You may only use email services for those customers with whom you have an existing business relationship and which have indicated that they accept correspondence from you. You may not attempt to spoof sender domains, send spam or other offending email practices. Because of carrier technologies, CarServ makes no expressed or implied warranty of individual message receipt. CarServ is not liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered.
CarServ automates communications notifications via phone, text message, push notification, and fax, but you are responsible for ensuring that the recipients of those communications have provided prior express written consent to receive them. The prior express written consent must identify that you may be sending notification communications related to your goods and services using automated technology and that your customer affirmatively agrees to receive such messages. The prior express consent must include your customers’ written or electronic acceptance. Specifically, by entering a cell phone number or fax number into the CarServ Website and/or Software and not opting such cell phone out, you are directing CarServ to automatically send notification message reminders and other communications to such cell phone and/or fax and certifying that the user of such cell phone and/or fax consents to the receipt of those messages. You are responsible for all liability for any failure to receive consent or failure to opt users out of the notification message feature. CarServ makes no expressed or implied warranty of individual message receipt. Standard text message rates apply for all text message services. CarServ shall not be liable for any issues that arise associated with the content that you provide or unforeseen liabilities of it being delivered. You shall be solely liable to comply with applicable laws and regulations within your jurisdiction in connection with telecommunication (e.g., email and text) messages that you send to your customers.
You acknowledge and agree that you are prohibited from assigning your rights and obligations under this Agreement. CarServ may assign its rights and obligations under this Agreement at any time, including but not limited to in a sale of the Website and/or the Software.
This Agreement will be interpreted, construed, and enforced in all respects in accordance with the laws of the State of Texas, without reference to its choice of law principles to the contrary. You will not commence or prosecute any action, suit, proceeding or claim arising under or by reason of this Agreement other than in the state or federal courts located in Austin, Texas. You irrevocably consent to the jurisdiction and venue of the courts identified in the preceding sentence in connection with any action, suit, proceeding, or claim arising under or by reason of this Agreement.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THE CARSERV WEBSITE, SOFTWARE, OR GOODS OR SERVICES PROVIDED THROUGH THE WEBSITE OR SOFTWARE OR THIS AGREEMENT WILL BE RESOLVED BY BINDING ARBITRATION, RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT IF YOUR CLAIMS QUALIFY. ARBITRATION UNDER THIS AGREEMENT WILL BE HELD IN AUSTIN, TEXAS AND IN ACCORDANCE WITH THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THE ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR AND THE ARBITRATOR WILL DECIDE THE ARBITRATION PROCEEDING BY APPLYING THE LAWS AND LEGAL PRINCIPLES OF THE STATE OF TEXAS AND THE FEDERAL LAWS OF THE UNITED STATES. NOTWITHSTANDING ANYTHING TO THE CONTRARY, ANY PARTY TO THE ARBITRATION MAY AT ANY TIME SEEK INJUNCTIONS OR OTHER FORMS OF EQUITABLE RELIEF FROM ANY COURT OF COMPETENT JURISDICTION. THE LOSING PARTY WILL BE REQUIRED TO PAY THE PREVAILING PARTY’S REASONABLE ATTORNEYS’ FEES.
WE EACH AGREE THAT ANY AND ALL DISPUTES MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. BY ENTERING INTO THIS AGREEMENT AND AGREEING TO ARBITRATION, YOU AGREE THAT YOU AND CARSERV ARE EACH WAIVING THE RIGHT TO FILE A LAWSUIT AND THE RIGHT TO A TRIAL BY JURY. IN ADDITION, YOU AGREE TO WAIVE THE RIGHT TO PARTICIPATE IN A CLASS ACTION OR LITIGATE ON A CLASS-WIDE BASIS. YOU AGREE THAT YOU HAVE EXPRESSLY AND KNOWINGLY WAIVED THESE RIGHTS.
The Website is not directed to persons under the age of thirteen (13) and CarServ will not knowingly collect personally identifiable information from children under the age of thirteen (13). If CarServ inadvertently collects personally identifiable information, CarServ will delete the personally identifiable information in accordance with its security protocols.
All rights not expressly granted herein are reserved to CarServ.
Any notice required by this Agreement must be in writing, and must be mailed by certified mail with return receipt requested to:
1615 East 7th St.
Austin, TX 78702
A copy of any such notice must be emailed to [email protected], but email notice alone shall not comply with the notice requirements of this Agreement.