1. Acceptance of Terms
1.1 FIXD Automotive, Inc. (“FIXD”) provides its Hardware and Service (each as defined below) to you through its mobile applications, its website located at https://www.fixdapp.com (the “Site”) and via other channels, subject to this Terms of Service agreement (“TOS”). By accepting this TOS or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by this TOS. If you do not agree with this TOS, you must not accept this TOS and may not use the Service.
1.2 We reserve the right, at our sole discretion, to change or modify portions of this TOS at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, whether through the Services user interface, in an email notification, or through other reasonable means. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Services or Hardware after the date any such changes become effective constitutes your acceptance of the new TOS.
2 Description of Service
The “Service” includes (a) the Site, (b) FIXD’s vehicle information and related services, and (c) all mobile applications and other software (including the Software, as defined below), data, reports, text, images, sounds, video, and content made available through any of the foregoing (collectively referred to as the “Content”). The “Hardware” means FIXD’s device that may be connected to your vehicle in connection with the Service. Any updates or new features added to or augmenting the Service or the Hardware are also subject to this TOS; to keep the Software up-to-date, you agree that we may automatically provide you with such updates without your further consent or notice to you. NOTE THAT IN ORDER FOR THE SERVICE TO FUNCTION, THE MOBILE DEVICE ONTO WHICH THE FIXD APPLICATION IS INSTALLED MUST BE LOCATED IN THE VEHICLE ASSOCIATED WITH YOUR SERVICE AND THE HARDWARE MUST BE PROPERLY INSTALLED IN YOUR VEHICLE. THE MOBILE DEVICE MUST ALSO HAVE ADEQUATE NETWORK AND DATA SERVICE IN THE LOCATION WHERE NEEDED.
3. General Conditions / Access and Use of the Service and Hardware
3.1 Subject to the terms and conditions of this TOS, you may access and use the Service and Hardware only for lawful purposes. You shall not use our Services or Hardware (and we will not be liable for your use of the Services and Hardware) in connection with (i) cars with modified engine or electronic control systems, or (ii) cars of any make, model or year that we do not support, as set forth on our website. All rights, title and interest in and to the Service, the Hardware and their components will remain with and belong exclusively to FIXD. You shall not: (a) sublicense, resell, rent, lease, transfer, assign, time-share or otherwise commercially exploit or make the Service available to any third party; (b) use the Service or the Hardware in any unlawful manner (including, without limitation, in violation of any data, privacy or export control laws) or in any manner that interferes with or disrupts the integrity or performance of the Service, the Hardware or their components, (c) modify, adapt or hack the Service or the Hardware to, or otherwise attempt to, gain unauthorized access to the Service, the Hardware or their related systems or networks, or (d) use the Service or Hardware to obtain or attempt to access any materials or information through any means not intentionally made available or provided for through the Service or Hardware. You shall comply with any codes of conduct, policies or other notices FIXD provides you or publishes in connection with the Service and the Hardware, and you shall promptly notify FIXD if you learn of a security breach related to the Service.
3.2 Any software that may be made available by FIXD in connection with the Service, such as FIXD’s mobile applications and any software embedded on the Hardware (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws. Subject to the terms and conditions of this TOS, FIXD hereby grants you a personal, non-transferable, non-sublicensable and non-exclusive right and license to use the object code of any Software solely in connection with the Service (and in the case of Software embedded on the Hardware, you may only use such Software on the Hardware), provided that you shall not (and shall not allow any third party to) copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, or sell, assign, sublicense or otherwise transfer any right in any Software. You agree not to access the Service by any means other than through the interface that is provided by FIXD for use in accessing the Service. The FIXD name and logos are trademarks and service marks of FIXD (collectively the “FIXD Trademarks”). Other company, product, and service names and logos used and displayed via the Services may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to us. Nothing in this TOS or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the FIXD Trademarks displayed on the Services, without our prior written permission in each instance. All goodwill generated from the use of FIXD Trademarks will inure to our exclusive benefit. Any rights not expressly granted herein by FIXD are reserved and no license or right to use any trademark of FIXD or any third party is granted to you in connection with the Service or Hardware. Software, Hardware and the transmission of applicable data, if any, is subject to United States export controls. No Hardware or Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service and Hardware.
3.4 FIXD uses reasonable security measures to protect the data we receive via the Services and Hardware. However, we cannot guarantee that third parties will never defeat our security measures. You acknowledge that you are using the Services and Hardware and sharing information at your own risk.
3.5 The Service includes certain services that are available via a mobile device, including (i) the ability to upload data to the Service via a mobile device, (ii) the ability to browse the Service and the Site from a mobile device and (iii) the ability to access certain features through an application downloaded and installed on a mobile device (collectively, the “Mobile Services”). To the extent you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates and other fees may apply. In addition, downloading, installing, or using certain Mobile Services may be prohibited or restricted by your carrier, and not all Mobile Services may work with all carriers or devices. By using the Mobile Services, you agree that we may communicate with you regarding FIXD and other entities by SMS, MMS, text message or other electronic means to your mobile device for the purpose of providing the applicable service and that certain information about your usage of the Mobile Services may be communicated to us. In the event you change or deactivate your mobile telephone number, you agree to promptly update your FIXD account information to ensure that your messages are not sent to the person that acquires your old number. In the event that you fail to comply with the obligation to promptly update your FIXD account information when changing or deactivating your mobile telephone number, you accept full responsibility for any of your messages which may not be delivered or may be sent to the person that acquires your old number.
3.6 Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
3.7 The failure of FIXD to exercise or enforce any right or provision of this TOS shall not be a waiver of that right. You acknowledge that this TOS is a contract between you and FIXD, even though it is electronic and is not physically signed by you and FIXD, and it governs your use of the Service and Hardware and takes the place of any prior agreements between you and FIXD related to the subject matter hereof.
To the extent the Service, Hardware or any portion thereof is made available for any fee, you will be required to select a payment plan or make a payment and provide FIXD information regarding your credit card or other payment instrument. You represent and warrant to FIXD that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay FIXD the amount that is specified in the payment plan in accordance with the terms of such plan and this TOS. If your payment plan involves subscription payments, you hereby authorize FIXD to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If you dispute any charges you must let FIXD know within sixty (60) days after the date that FIXD charges you. We reserve the right to change FIXD’s prices. If FIXD does change prices, FIXD will provide you with notice of the change on the Site or in email to you, at FIXD’s option, at least 30 days before the change is to take effect. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. Note that you (and not FIXD) are responsible for any charges or fees payable to third parties in connection with the Service, such as emergency responders.
5. Representations and Warranties
You represent and warrant to FIXD that: (i) you have full power and authority to enter into this TOS; (ii) you own all Your Content or have obtained all permissions, releases, rights or licenses required to engage in your data collection using the Hardware, posting and other activities (and allow FIXD to perform its obligations) in connection with the Service and Hardware without obtaining any further releases or consents; (iii) Your Content and other activities in connection with the Service, and FIXD’s exercise of all rights and license granted by you herein, do not and will not violate, infringe, or misappropriate any third party’s copyright, trademark, right of privacy or publicity, or other personal or proprietary right, nor does Your Content contain any matter that is defamatory, obscene, unlawful, threatening, abusive, tortious, offensive or harassing; and (iv) you are eighteen (18) years of age or older.
You have the right to terminate your account at any time in accordance with the procedures set forth on the Site. FIXD reserves the right to (i) modify or discontinue, temporarily or permanently, the Service or Hardware (or any part thereof) and (ii) refuse any and all current and future use of the Service, suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any of Your Content in the Service, for any reason, including if FIXD believes that you have violated this TOS. FIXD shall not be liable to you or any third party for any modification, suspension or discontinuation of the Service or Hardware. FIXD will use good faith efforts to contact you to warn you prior to suspension or termination of your account by FIXD. All of Your Content on the Service (if any) may be permanently deleted by FIXD upon any termination of your account in its sole discretion. If FIXD terminates your account without cause and you have signed up for a fee-bearing service, FIXD will refund the pro-rated, unearned portion of any amount that you have prepaid to FIXD for such Service. However, all accrued rights to payment and the terms of Section 5-14 shall survive termination of this TOS.
7. LIMITATION OF LIABILITY.
7.1 UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (WHETHER IN CONTRACT, TORT, OR OTHERWISE) SHALL FIXD BE LIABLE TO YOU OR ANY THIRD PARTY FOR (A) ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOST SALES OR BUSINESS, LOST DATA OR BUSINESS INTERRUPTION, (B) ANY INJURIES TO PERSONS OR DAMAGE TO PROPERTY RELATED TO YOUR USE OF THE SERVICE OR HARDWARE, INCLUDING BUT NOT LIMITED TO INJURIES TO PERSONS OR PROPERTY RELATED TO USE OF EMERGENCY NOTIFICATION SERVICES OR ANY DAMAGES RELATING TO THE INSTALLATION, REPAIR, OR MAINTENANCE OF THE HARDWARE, OR (C) ANY DIRECT DAMAGES, COSTS, LOSSES OR LIABILITIES IN EXCESS OF THE SERVICE FEES ACTUALLY PAID BY YOU IN THE SIX (6) MONTHS PRECEDING THE EVENT GIVING RISE TO YOUR CLAIM OR, IF NO SERVICE FEES APPLY, ONE HUNDRED ($100) U.S. DOLLARS. THE PROVISIONS OF THIS SECTION ALLOCATE THE RISKS UNDER THIS TOS BETWEEN THE PARTIES, AND THE PARTIES HAVE RELIED ON THESE LIMITATIONS IN DETERMINING WHETHER TO ENTER INTO THIS TOS.
7.2 SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, WHICH MEANS THAT SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN THESE STATES, FIXD’S LIABILITY WILL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY LAW.
You shall defend, indemnify, and hold harmless FIXD from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, arising or resulting from your breach of this TOS, any of Your Content, or your other access, contribution to, use or misuse of the Service or Hardware. FIXD shall provide notice to you of any such claim, suit or demand. FIXD reserves the right to assume the exclusive defense and control of any matter which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting FIXD’s defense of such matter.
You may not assign this TOS without the prior written consent of FIXD, but FIXD may assign or transfer this TOS, in whole or in part, without restriction.
10. Governing Law
This TOS shall be governed by the laws of the State of California without regard to the principles of conflicts of law. Unless otherwise elected by FIXD in a particular instance, you hereby expressly agree to submit to the exclusive personal jurisdiction of the federal and state courts of the State of California for the purpose of resolving any dispute relating to your access to or use of the Service or Hardware.
11. Dispute Resolution By Binding Arbitration
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS. Most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. In the unlikely event that our customer care team is unable to resolve a complaint you may have (or if FIXD has not been able to resolve a dispute it has with you after attempting to do so informally), we each agree to resolve those disputes through binding arbitration, mediation, or small claims court instead of in courts of general jurisdiction. Arbitration, which is often cheaper, faster and less formal than a lawsuit in court, uses a neutral arbitrator instead of a judge or jury. Arbitrators can award the same damages and relief that a court can award. Also, in any arbitration under this arbitration provision in which you seek less than $75,000 in damages, FIXD will pay reasonable attorneys’ fees should you prevail. FIXD will not seek attorneys’ fees from you. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of attorneys’ fees will be governed by the AAA Rules (as defined below). Any arbitration under this Agreement will take place on an individual basis; class arbitrations and class actions are not permitted.
11.1 Arbitration Agreement: FIXD and you agree to arbitrate all disputes and claims between us. This agreement to arbitrate is intended to be broadly interpreted. It includes, but is not limited to:
• claims arising out of or relating to any aspect of the relationship between us, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; • claims that arose before this or any prior agreement (including, but not limited to, claims relating to advertising); • claims that are currently the subject of purported class action litigation in which you are not a member of a certified class; and • claims that may arise after the termination of this TOS. References to "FIXD", "you", and "us" include our respective subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of services or devices under this or prior agreements between us. Notwithstanding the foregoing, either party may bring an individual action in small claims court. This arbitration agreement does not preclude you from bringing issues to the attention of federal, state or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this TOS, you and FIXD are each waiving the right to a trial by jury or to participate in a class action. This TOS evidences a transaction in interstate commerce, and thus the Federal Arbitration Act governs the interpretation and enforcement of this provision. This arbitration provision shall survive termination of this TOS.
A party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to FIXD should be sent to the address located in the “Contact Us” portion of our website ("Notice Address"). The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought ("Demand"). If FIXD and you do not reach an agreement to resolve the claim within sixty (60) calendar days after the Notice is received, you or FIXD may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by FIXD or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or FIXD is entitled.
The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (collectively, "AAA Rules") of the American Arbitration Association (“AAA”), as modified by this TOS, and will be administered by the AAA. The AAA Rules are available online at adr.org, by calling the AAA at 1-800-778-7879, or by writing to the Notice Address. The arbitrator is bound by the terms of this TOS. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of the arbitration provision. Unless FIXD and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, we agree that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. FIXD will pay all AAA filing, administration, and arbitrator fees for any arbitration initiated in accordance with the AAA Rules. However, if you initiate an arbitration in which you seek more than $75,000 in damages, the payment of these fees will be governed by the AAA rules.
The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees and expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
The arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. YOU AND FIXD AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. Further, unless both you and FIXD agree in writing otherwise, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this specific provision is found to be unenforceable, then the entirety of this arbitration provision shall be null and void.
11.2 Notwithstanding any provision in this TOS to the contrary, we agree that if FIXD makes any future change to this arbitration provision (other than a change to the Notice Address) while you are a user of the Service or Hardware, you may reject any such change by sending us written notice within thirty (30) calendar days of the change to the Arbitration Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this provision.
13. Notice for California Users
Under California Civil Code Section 1789.3, users of the Hardware from California are 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., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at FIXD Automotive, Inc., 311 Ferst Drive, Atlanta, GA 30332.
14. Questions? Concerns? Suggestions?
Please contact us at email@example.com to report any violations of this TOS or to pose any questions regarding this TOS, the Service, or the Hardware.
1. Acceptance of Terms