Tekmetric App Terms of Service

1. Your Acceptance

Welcome to the Terms of Service for Tekmetric. This is an agreement (“Agreement”) between Sparkplug Studios, LLC (“Tekmetric"), the owner and operator of the www.tekmetric.com website, any Tekmetric products and services, and the Tekmetric software and mobile application (collectively the “Platform”) and you (“you”, “your” or “Auto Shop Owner”), the auto shop owner who has decided to subscribe to the Platform.

Throughout this Agreement, the words “Tekmetric,” “us,” “we,” and “our,” refer to our company, Tekmetric and our Platform, as is appropriate in the context of the use of the words.

By clicking “I agree”, accessing, or using the Platform you agree to be bound by this Agreement and the Privacy Policy. We may amend our Terms of Service or the Privacy Policy and may notify you when we do so. PLEASE BE AWARE THAT THERE ARE ARBITRATION AND CLASS ACTION PROVISIONS THAT MAY AFFECT YOUR RIGHTS.

If you do not agree to the Terms of Service or the Privacy Policy please cease using our Platform immediately. Auto Shop Owners must be above the age of 18 years of age or older to use the Platform.

2. Signing Up For the Platform

Auto Shop Owners must register before accessing the Platform. You must fully complete the registration process by providing us with your current, complete, truthful, and accurate information as prompted by the applicable registration form. After sign up, Tekmetric at its sole discretion may review Auto Shop Owner’s application. Where required, Tekmetric may also assign you a username and password. You are entirely responsible for maintaining the confidentiality of your password and account and for any and all activities that occur under your account. You agree to notify Tekmetric immediately of any unauthorized use of your account or any other breach of security. Tekmetric will not be liable for any losses you incur as a result of someone else using your password or account, either with or without your knowledge. Auto Shop Owners may share their login information with their employees but please be aware that you could be held liable for losses incurred by Tekmetric or another party due to someone else using your account or password. Auto Shop Owners may only register for one account per business and may not register on behalf of others businesses or as a group collaboration. The person registering an Auto Shop Owner account represents and warrants that he/she has the proper authority to execute and bind the company to this Agreement. Tekmetric has the sole discretion in granting or denying any accounts.

3. Auto Shop Owner Representations and Warranties

As an Auto Shop Owner providing any services to any end users via the Platform, you represent and warrant the following: (1) Auto Shop Owner owns or has properly licensed all intellectual property used on the Platform; (2) the Auto Shop Owner Content (defined below) will not infringe on any copyright, moral right, trademark or other intellectual property right and will not violate any right of privacy or right of publicity; (3) the Auto Shop Owner Content does not violate any US state or federal laws or any third party agreements; (4) Auto Shop Owner has not entered into any previous agreements which would limit its ability to undertake or perform this Agreement; (5) Auto Shop Owner has the ability and the right to grant the permissions required to effectuate this Agreement; and (6) Auto Shop Owner will in good faith abide by this Agreement and all other restrictions and rules as stated in this Agreement or any other additional agreements.

4. Use of the Platform

When using our Platform, you are responsible for your and for any use of Tekmetric made using your account. You agree to abide by the following:

You will not copy, distribute or disclose any part of the Platform in any medium, including without limitation by any automated or non-automated “scraping”;
You will not attempt to interfere with, compromise the system integrity or security, or decipher any transmissions to or from the servers running the Platform;
You will not use any robot, spider, crawler, scraper or other automated means or interface not provided by us to access the Platform or to extract data;
You will not use automated bots or other software to send more messages through our Platform than humanly possible;
You will not take any action that imposes, or may impose at our sole discretion, an unreasonable or disproportionately large load on our infrastructure;
You will not collect or harvest any personally identifiable information, including account names, from the Platform;
You agree not to libel, defame, stalk, harass, bully or harm another individual who uses our Platform;
You agree not to impersonate any person or entity or misrepresent your affiliation with a person or entity;
You agree that you will not hold Tekmetric responsible for your use of our Platform;
You agree not to violate any requirements, procedures, policies or regulations of networks connected to Tekmetric;
You agree not to interfere with or disrupt the Platform;
You agree not to hack, spam or phish us or other users;
You agree to provide truthful and accurate content;
You agree to not violate any law or regulation and you solely are responsible for such violations;
You will not use our Platform to post any false, misleading, unlawful, defamatory, obscene, invasive, threatening, harassing, inflammatory, fraudulent content;
You agree not to use our Platform for any illegal or other unlawful activity; and
You agree not to cause, or aid in, the disruption, destruction, manipulation, removal, disabling, or impairment of any portion of our Platform, including the de-indexing or de-caching of any portion of our Platform from a thirty party’s website, such as by requesting its removal from a search engine.

If you are discovered to be undertaking any of the aforementioned actions your privileges to use our Platform may at our discretion be terminated or suspended. Generally, we will provide an explanation for any suspension or termination of your use of any of our Platform, but Tekmetric reserves the right to suspend or terminate any account at any time without notice or explanation.

5. Access and License Grant to You

After registering and properly paying for our Platform, we grant you a personal, non-exclusive, revocable, commercial, limited license to download our mobile application or other downloadable software. If you are accessing our Platform via the internet we grant you access to the Platform with the same restrictions as our license grant. As an Auto Shop Owner, you do not receive any ownership interest in any portion of the Platform; you merely receive the revocable rights listed above all rights not explicitly granted are reserved for Tekmetric.

Please be aware that you are responsible for your use of our Platform. Additionally, you agree to abide by the following restrictions listed below:

You may not decompile, reverse engineer, disassemble, modify, distribute, or create derivative works or improvements to the Platform or any portion of it.
You may not share your license or access with any other parties, except as provided for in this Agreement.
You may not violate or infringe other people's intellectual property, privacy, or other rights while using our Platform.
You may not violate any laws, rules or procedures of the United States.
You may not violate any of our additional policies.
You may not use our Platform except through specific channels provided by us.
You may not use the Platform on a computer that is used to operate nuclear facilities, life support, or other mission critical applications where life or property may be at stake.
You may not sell, lease, loan, distribute, transfer, or sublicense the Platform or access to it or derive income from the use or provision of the Platform unless enabled through the functionality of our Platform.

Please be aware that this is not an all-encompassing list of restrictions, if you breach any of these restrictions, we may revoke your license or your access to use our Platform at our discretion. Additionally, we may revoke your license or restrict your access to our Platform if we believe that your actions may harm us or any of our users. Failure by us to revoke your license or restrict access does not act as a waiver of your conduct.

6. Auto Shop Content

Auto Shop Owner’s ability to submit or transmit any information through the Platform, including but not limited to text, audio messages, videos, photos, images or any other information will be referred to as “Auto Shop Content” throughout this Agreement. Any content transmitted by an Auto Shop Owner shall be referred to as “Auto Shop Content.” All Auto Shop Content you submit to the Platform will be owned by you, the Auto Shop Owner. Please be aware that we are not required to host, display, migrate, or distribute any of your Auto Shop Content and we may refuse to accept or transmit any Auto Shop Content. You agree that you are solely responsible for any Auto Shop Content submitted and you release us from any liability associated with any Auto Shop Content submitted. You understand that we cannot guarantee the absolute safety and security of any such Auto Shop Content. Any Auto Shop Content found to be in violation of this Agreement or that we determine to be harmful to the Platform may be modified, edited, or removed at our discretion. Tekmetric does not endorse and may not verify, monitor, or restrict any Auto Shop Content submitted. You agree that any third party content or any other information may be inaccurate, unsubstantiated or possibly even incorrect.

When submitting any Auto Shop Content to our Platform you represent and warrant that you own all rights to the Auto Shop Content and you have paid for or otherwise have permission to use any Auto Shop Content submitted.

When you submit any Auto Shop Content to us, you grant Tekmetric, its partners, affiliates, users, representatives and assigns a non-exclusive, fully-paid, royalty-free, irrevocable, world-wide, universal, transferable, assignable license to display, publicly perform, distribute, store, broadcast, transmit, reproduce, modify, prepare derivative works and otherwise use and reuse all or part of your Auto Shop Content. It is important for you to grant us this license so that we may transmit your Auto Shop Content to other users through our Platform. Additionally, although you own all Auto Shop Content submitted by you, we own all layouts, arrangement, metadata and images that are used to render your Auto Shop Content through our Platform.

7. Auto Shop Content Guidelines

We reserve the right to remove, delete, modify, screen, edit, or reinstate Auto Shop Content from time to time at our sole discretion for any reason or no reason, and with or without notice to you. For example, we may remove Auto Shop Content if we believe it violates our community standards. We have no obligation to retain or provide you with copies of Auto Shop Content after your subscription has ended. Please be aware that all Auto Shop Content may be viewed by third parties, thus we cannot guarantee the confidentiality of any Auto Shop Content.

When submitting any Auto Shop Content you agree to the following:

You agree not to post any Auto Shop Content contains hate speech or promotes or condones violence against individuals or groups based on race or ethnic origin, religion, disability, gender, age, nationality, veteran status, or sexual orientation/gender identity;
You agree not to post any Auto Shop Content that is considered spam;
You agree to provide truthful and accurate Auto Shop Owner Content;
You agree to only post Auto Shop Content that you own or have licensed and you shall not post any Auto Shop Content that is in violation of a third parties’ intellectual property rights; and
You agree not to post any Auto Shop Content that may be considered: misleading, unlawful, defamatory, obscene, invasive, threatening, or harassing.

If you have violated any of our Auto Shop Content Guidelines or if you we believe that any Auto Shop Content may harm the Platform, your access to the Platform may be suspended or terminated.

8. Transmission Issues with the Platform

You will immediately notify Tekmetric of any problems or issues with the Platform. You understand that we cannot guarantee that our Platform is error-free and that Tekmetric cannot be responsible for any interruption to the Platform due to faulty equipment, faulty transmission systems, power outages, other interruptions in transmission services, transmission systems that have been tampered with or any damage or destruction to our equipment or facilities.

9. Platform Availability

10. Modification of Platform

We reserve the right to alter, modify, update, or remove our Platform at any time. We may conduct such modifications to our Platform for security reasons, intellectual property, legal reasons, or various other reasons at our discretion, and we are not required to explain such modifications. For example, we may provide updates to fix security flaws, or to respond to legal demands. Please note that this is a non-binding illustration of how we might exercise our rights under this section, and nothing in this section obligates us to take measures to update the Platform for security, legal or other purposes.

11. System Requirements

Please be aware that the Platform may not be available without the following: (1) a functional Wi-Fi network that can communicate with our products; (2) a copy of our Platform downloaded on a mobile device; (3) continuous internet service and a computer capable of connecting to the internet; and (4) other system requirements as specified by us. Please be aware that you are fully responsible for these requirements. Failure to obtain these requirements may result in unavailability or errors in the Platform.

While we aim to provide you high quality service through our Platform, all services may not be available 100% of the time. The Platform may be subject to interruptions for a variety of reasons, including Wi-Fi connectivity, mobile issues, cellphone service, and service provider uptime.

12. Payments and Recurring Subscription

In order to use and access portions of the Platform, you may be required to pay a monthly subscription fee or other fee as listed on the Platform. You agree to pay the fee listed on the Platform upon sign-up or upon the expiration of your free trial. If you have subscribed for monthly automatic billing, YOU HEREBY AGREE AND AUTHORIZE US TO BILL YOU ON A RECURRING BASIS AND AGREE THAT NO ADDITIONAL CONSENT IS REQUIRED BY YOU TO CHARGE YOUR PREFERRED PAYMENT METHOD AUTOMATICALLY AND ON A MONTHLY BASIS. Your credit card information will be shared with our third party payment processor. By submitting your payment information you also agree to the terms and conditions of our third party payment processor. Please be aware that all payment information will be stored and secured by the payment processor and not us, and you must agree with our payment processor’s policies.

13. Price Increases

Auto Shop Owners agree that Tekmetric may increase the price of their services after any monthly subscription cycle and Tekmetric reserves the right to do so. In the event of a price increase, Tekmetric shall notify Auto Shop Owner. Auto Shop Owner agrees that Tekmetric has no obligation to offer any services for a price that was offered to Auto Shop Owner in the past.

14. Termination

You may cancel and terminate your subscription by stopping payment or notifying us via your account dashboard or contacting us at support@tekmetric.com. Please be aware that upon termination, access to portions of our Platform may be become immediately disabled. Upon termination you will not be entitled to any refunds or proration of any subscription fees paid except as stated in this Agreement. We may terminate your subscription if we determine that: (1) you have violated any applicable laws while using our Platform; (2) If you have violated this Agreement or any other of our agreements pertaining to your use of our Platform; or (3) if we believe that any of your actions may harm Tekmetric, at our sole decision or discretion. In the event of termination, we will strive to provide you with a timely explanation; however, we are not required to do so.

15. Refunds

At Tekmetric we want you to be satisfied with our Platform and any services offered. If you are unsatisfied with our Platform during the first month of your paid subscription we will offer you a full refund. You must contact us before your first month’s subscription period elapses to be eligible for a refund. After your first month of usage, you will no longer be eligible for any refunds. For any questions regarding our refund policy and to apply for a refund within the first month, please contact us at support@tekmetric.com. Please be aware that we have the final and sole discretion in issuing any refunds to you.

16. Chargebacks

We attempt to protect ourselves from chargebacks by employing different fraud detection methods. In the event of a chargeback we will notify you immediately. If we believe that you have participated in a fraudulent chargeback we will pursue our claims against you to the fullest extent allowed by law. In the event that we believe that you have submitted a fraudulent chargeback, we will forward your information to the applicable law enforcement agency and your fraudulent chargeback may result in either a civil fine or jail time.

17. Taxes

Depending on the laws of your jurisdiction you may be taxed for any payments or purchases. Therefore, at the time of payment we may collect all applicable taxes related to your use of the Platform. In the event that we do not collect the applicable taxes, you agree that you are still responsible for any applicable taxes. Although no taxes may be collected by us you agree that you will pay any applicable taxes or fees to the tax agencies having jurisdiction over you. In order for Tekmetric to comply with US tax laws, Auto Shop Owner may be required to submit W-9 forms or other tax documents. Auto Shop Owner agrees to comply with any requests to submit any tax documentation, as requested by Tekmetric. Auto Shop Owner agrees that Tekmetric cannot and will not provide Auto Shop Owner with any tax advice; any tax questions should be directed to Auto Shop Owner’s tax attorney or other tax professional.

18. Data Storage

Upon payment, Tekmetric shall provide reasonable storage space for any Auto Shop Content submitted by you. However, in the event that storage capacities provided by Tekmetric is abused due to misuse or incorrect usage, we reserve the right to review, audit, and/or charge for excessive data storage. Illegal, stolen or unauthorized data, pornography, or otherwise unethical content is strictly prohibited from being stored in the Platform.

19. Data Migration

Your data belongs to you and we will export data back to you if requested after termination of your subscription. Upon termination of your subscription to the Platform by either the Auto Shop Owner or Tekmetric, the Platform and any Auto Shop Content stored on the Platform may become inaccessible until the subscription is restored to active and paid status. The Auto Shop Content data inside the Platform belongs to you, the Auto Shop Owner. Upon or after termination of your Platform subscription, you or an authorized party may request access to your past data within 1 year after termination. After 1 year, we reserve the right to delete your data from the Platform. In the event Auto Shop Content is deleted, destroyed, or inaccessible, you agree that you will not hold Tekmetric liable for any loss of Auto Shop Content.

20. Your Usage Information

Through the Platform we may collect your usage data. This usage date will be used by Tekmetric to determine how you use our Platform and how we can improve or modify our Platform. The information collected may be used and disseminated per our Privacy Policy.

21. Parts Exchange

Tekmetric may allow Auto Shop Owners the ability to connect with third parties to buy or sell auto parts, goods, and equipment. Auto Shop Owners are asked to exercise caution and good judgment when interacting with third parties via the Platform. Tekmetric cannot be liable for any contracts created between an Auto Shop Owner and any third party. Tekmetric does not endorse, recommend, and is not otherwise affiliated with any Auto Shop Owner. PLEASE BE AWARE THAT TEKMETRIC IS NOT A PARTY TO ANY CONTRACTS CREATED BETWEEN ANY AUTO SHOP OWNER AND A THIRD PARTY. YOU AGREE THAT WE ARE NOT LIABLE FOR AND CANNOT ACCEPT ANY LIABILITY IN CONJUNCTION WITH ANY CONTRACT CREATED. WE DO NOT TRANSFER LEGAL OWNERSHIP, TRANSACT PAYMENTS, OR FACILITATE THE TRANSFER OF ANY PARTS, GOODS, OR EQUIPMENT THROUGH OUR PLATFORM.

22. Intellectual Property

The name “Tekmetric”, the design of the Tekmetric Platform along with the Tekmetric created text, writings, images, templates, scripts, graphics, interactive features and any trademarks or logos contained therein ("Marks"), are owned by or licensed to Tekmetric, subject to copyright and other intellectual property rights under US and foreign laws and international conventions. Tekmetric reserves all rights not expressly granted in and to the Platform. You agree to not engage in the use, copying, or distribution anything contained within the Platform unless we have given express written permission.

23. Idea Submission

Tekmetric or any of its employees do not accept or consider unsolicited ideas, including but not limited to ideas relating to processes, technologies, product enhancements, or product names. Please do not submit any unsolicited ideas, content, artwork, suggestions, or other works (“Submissions”) in any form to Tekmetric. The sole purpose of this policy is to avoid potential misunderstandings or disputes when Tekmetric’s products might seem similar to ideas you submitted to Tekmetric. If, despite our request that you not send us your ideas, you agree to the following: (1) your Submissions and their contents will automatically become the property of Tekmetric, without any compensation to you; (2) Tekmetric may use or redistribute the Submissions and their contents for any purpose and in any way; (3) there is no obligation for Tekmetric to review the Submission; and (4) there is no obligation to keep any Submissions confidential.

24. Disclaimer

DUE TO THE NATURE OF INTERNET AVAILABILITY AND ACCESSIBILITY, TEKMETRIC CANNOT GUARANTEE THAT THERE WILL BE NO DOWNTIME OR OTHER INTERRUPTIONS IN SERVICE REGARDING THE PLATFORM OR ANY TEKMETRIC SOFTWARE. TEKMETRIC DOES NOT REPRESENT OR WARRANT THAT THE PLATFORM WILL BE ERROR-FREE OR UNINTERRUPTED; THAT DEFECTS WILL BE CORRECTED; OR THAT THE PLATFORM OR THE SERVER THAT MAKES THE PLATFORM AVAILABLE IS FREE FROM ANY HARMFUL COMPONENTS. WITHOUT LIMITING THE ABOVE, THE PLATFORM, TEKEMTRIC SOFTWARE AND ANY OTHER MATERIALS PROVIDED TO AUTO SHOP OWNER ARE PROVIDED "AS IS," WITHOUT ANY WARRANTY OF ANY KIND, AND TEKMETRIC MAKES NO WARRANTIES, EXPRESS OR IMPLIED, BY OPERATION OF LAW OR OTHERWISE, AND EXPRESSLY DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED OR STATUTORY, INCLUDING BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE, CUSTOM, TRADE, QUIET ENJOYMENT, SYSTEM INTEGRATION AND FREEDOM FROM COMPUTER VIRUS. ADDITIONALLY, TEKMETRIC DOES NOT REPRESENT OR WARRANT (1) THAT THERE ARE NO VIRUSES OR OTHER HARMFUL COMPONENTS ON THE PLATFORM OR ANY DOWNLOADABLE SOFTWARE, (2) THAT A PARTY'S SECURITY METHODS EMPLOYED WILL BE SUFFICIENT IN ALL CIRCUMSTANCES OR IN THE FACE OF ALL ATTACKS, OR (3) ANY INFORMATION WILL BE CORRECT, COMPLETE, OR ACCURATE. SOME JURISDICTIONS LIMIT THE ABILITY TO DISCLAIM ALL WARRANTIES, SO THIS CLAUSE OR SOME PORTIONS OF THIS CLAUSE MAY NOT APPLY TO YOU.

25. Limitation of Liability

IN NO EVENT SHALL Tekmetric, ITS OFFICERS, DIRECTORS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, RESULTING FROM (1) YOUR USE OR INABILITY TO USE THE PLATFORM OR ANY ERRORS, MISTAKES, OR INACCURACIES FOUND WITHIN THE PLATFORM, (2) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM, (3) ANY INTERRUPTION, MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM TO YOU, (4) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR PLATFORM VIA A THIRD PARTY, (5) ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL, (6) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS OR (7) Lost profits. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.

SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE. Specifically, in those jurisdictions not allowed, we do not disclaim liability for: (1) death or personal injury caused by Tekmetric’s negligence or that of any of its officers, employees or agents; (2) fraudulent misrepresentation; or (3) any liability which it is not lawful to exclude either now or IN THE FUTURE. WHERE A TOTAL DISCLAIMER OF LIABILITY IS DISALLOWED YOU AGREE THAT OUR TOTAL LIABILITY TO YOU SHALL NOT EXCEED THE AMOUNTS YOU HAVE PAID TO USE OUR PLATFORM.

26. Indemnity

You agree to defend, indemnify and hold harmless Tekmetric , its officers, directors, employees and agents, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney's fees) arising from:

your use of and access to the Tekmetric Platform;
your violation of any term of this Agreement; or
your violation of any third party right, including without limitation any copyright, property, or privacy right.

This defense and indemnification obligation will survive this Agreement and your use of the Tekmetric Platform. You also agree that you have a duty to defend us against such claims and we may require you to pay for an attorney(s) of our choice in such cases. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees, court costs, and disbursements. In the event of a claim such as one described in this paragraph, we may elect to settle with the party/parties making the claim and you shall be liable for the damages as though we had proceeded with a trial.

27. Copyrights

We take copyright infringement very seriously. If you believe that any content owned by you has been infringed upon please send us a message which contains:

Your name.
The name of the party whose copyright has been infringed, if different from your name.
The name and description of the work that is being infringed.
The location on our Platform of the infringing copy.
A statement that you have a good faith belief that use of the copyrighted work described above is not authorized by the copyright owner (or by a third party who is legally entitled to do so on behalf of the copyright owner) and is not otherwise permitted by law.
A statement that you swear, under penalty of perjury, that the information contained in this notification is accurate and that you are the copyright owner or have an exclusive right in law to bring infringement proceedings with respect to its use.

You must sign this notification and send it to our Copyright Agent: Copyright Agent of Tekmetric, support@tekmetric.com.

28. Choice of Law

This Agreement shall be governed by the laws in force in the state of Texas. The offer and acceptance of this contract is deemed to have occurred in the state of Texas.

29. Disputes

Any dispute relating in any way to your visit to the Platform or our Platform shall be submitted to confidential arbitration in Houston, TX. Arbitration under this Agreement shall be conducted pursuant to the applicable rules (“Rules”) then prevailing at the American Arbitration Association. Arbitration shall be conducted by one (1) arbitrator as selected pursuant to the Rules; the arbitrator's award shall be final and binding and may be entered as a judgment in any court of competent jurisdiction. Each party shall be responsible for their own arbitration fees and costs. To the fullest extent permitted by applicable law, no arbitration under this Agreement shall be joined to an arbitration involving any other party subject to this Agreement, whether through class action proceedings or otherwise. Where allowed by the Rules, Tekmetric may make any and all appearances telephonically. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of, related to or connected with the use of the Platform or this Agreement must be filed within one (1) year after such claim or cause of action arose or be forever banned. In the event that the law does not permit the abovementioned dispute to be resolved through arbitration or if this arbitration agreement is unenforceable, you agree that any actions and disputes shall be brought solely in a court of competent jurisdiction located within Harris County, TX.

30. Severability

In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of the Agreement, or otherwise unenforceable, the Agreement will remain in force as though it had been entered into without that unenforceable provision being included in it.

If two or more provisions of this Agreement or any other agreement you may have with Tekmetric are deemed to conflict with each other’s operation, Tekmetric shall have the sole right to elect which provision remains in force.

31. Non-Waiver

We reserve all rights permitted to us under this Agreement as well as under the provisions of any applicable law. Our non-enforcement of any particular provision or provisions of this Agreement or the any applicable law should not be construed as our waiver of the right to enforce that same provision under the same or different circumstances at any time in the future.

32. Assignment and Survival

You may not assign your rights and/or obligations under this Agreement to any other party without our prior written consent. We may assign our rights and/or obligations under this Agreement to any other party at our discretion. All portions of this Agreement that would reasonably be believed to survive termination of this Agreement shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Disclaimers, Licensing, Indemnification, and Arbitration sections.

33. Entire Agreement

This Agreement along with the Privacy Policy and any other supporting agreements provided by Tekmetric constitute the complete and exclusive understanding and agreement between the parties regarding the subject matter herein and supersede all prior or contemporaneous agreements or understandings written or oral, relating to its subject matter. Any waiver, modification or amendment of any provision of this Agreement will be effective only if in writing and signed by a duly authorized representative of each party.

34. Amendments

We may amend this Agreement from time to time. When we amend this Agreement, we will update this page and indicate the date that it was last modified or we may email you. You may refuse to agree to the amendments, but if you do, you must immediately cease using our Platform and our Platform.

35. Electronic Communications

The communications between you and Tekmetric use electronic means, whether you visit the Platform or send Tekmetric e-mails, or whether Tekmetric posts notices on the Platform or communications with you via mobile notifications or e-mail. For contractual purposes, you (1) consent to receive communications from Tekmetric in an electronic form; and (2) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Tekmetric 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.

36. Third Party App Store Requirements

37. Export Controls

The Platform and the underlying information and technology may not be downloaded or otherwise exported or re-exported (1) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (2) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Platform, you agree to the foregoing and you represent and warrant that you are not located in, under the control of, or a national or resident of any such country or on any such list, and that you will otherwise comply with all applicable export control laws.

38. Third Party Websites

You may be able to visit third party websites from our Platform. Tekmetric does not endorse or otherwise represent that such third party sites will be error free or harmless. Location data provided by the Tekmetric Platform is for basic location purposes only and is not intended to be relied upon in situations where precise location information is needed or where erroneous, inaccurate or incomplete location data may lead to death, personal injury, property or environmental damage.

39. Relationship of Parties

The Auto Shop Owner agrees that Tekmetric is acting as an independent contractor in performing any services contemplated under this Agreement and that the relationship between the Tekmetric and Auto Shop Owner shall not constitute a partnership, joint venture or agency. Neither Tekmetric nor any of Tekmetric's employees or agents (1) is an employee, agent or legal representative of Auto Shop Owner, or (2) shall have any authority to represent Auto Shop Owner or to enter into any contracts or assume any liabilities on behalf of Auto Shop Owner. Neither Auto Shop Owner nor Auto Shop Owner’s employees or agents (1) is an employee, agent or legal representative of Tekmetric, or (2) shall have any authority to represent Tekmetric or to enter into any contracts or assume any liabilities on behalf of Tekmetric.

40. California Users

Pursuant to California Civil Code Section 1789.3, any questions about pricing, complaints, or inquiries about Tekmetric must be sent to our agent for notice to: support@tekmetric.com

Lastly, California users are also entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.

Last modified: December 10, 2020

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