Site Terms of Service
Last modified: January 22, 2018
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 www.tekmetric.com, any Tekmetric products and services, and the Tekmetric software and mobile application (collectively the “Platform”) and you (“you”, “your” or “user(s)”), a user of 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. “Auto Shop Owner(s)” are any users that have a subscription payment agreement with Tekmetric. If you are an Auto Shop Owner you must agree to the Tekmetric Terms of Service for Auto Shop Owners.
2. Signing Up For the Platform
3. Platform Disclaimer
Please be aware that anything found on our Platform and any other services offered is “as-is.” Additionally any information or content found on our Platform, including any notifications or tools provided, are offered only for informational and educational purposes. Further, Tekmetric may verify the Auto Shop Owners found on its Platform but does not endorse, recommend, and is not otherwise affiliated with any Auto Shop Owner. Further, you agree that we are not responsible for any Auto Shop Owner Content (defined below) found on the Platform. Tekmetric has no liability to users for any Auto Shop Owner materials, including all Auto Shop Owner Content, copy, images, URL names, and anything else provided by Auto Shop Owners. You understand that any Auto Shop Owner Content or any other information may be inaccurate, unsubstantiated or possibly even incorrect. Additionally, we shall not be liable for any inconvenience, loss, liability, or damage resulting from any interruption of the Platform, directly or indirectly caused by, or proximately resulting from, any circumstances beyond our control, including, but not limited to, causes attributable to you; inability to access to the Platform; failure of a communications satellite; strike; labor dispute; riot or insurrection; war; explosion; malicious mischief; fire, flood, lightning, earthquake, wind, ice, extreme weather conditions, or other acts of God; failure or reduction of power; or any court order, law, act or order of government restricting or prohibiting the operation of or access to the Platform. By using the Platform, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other users, Auto Shop Owners, or other third parties will be limited to a claim against the particular users, Auto Shop Owners or other third parties who caused you harm and you agree not to attempt to impose liability on, or seek any legal remedy from Tekmetric with respect to such actions or omissions.
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. User Content
A user’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 “User Content” throughout this Agreement. Any content transmitted by an Auto Shop Owner shall be referred to as “Auto Shop Content.” All User Content you submit to the Platform will be owned by you, the user. Please be aware that we are not required to host, display, migrate, or distribute any of your User Content and we may refuse to accept or transmit any User Content. You agree that you are solely responsible for any User Content submitted and you release us from any liability associated with any User Content submitted. You understand that we cannot guarantee the absolute safety and security of any such User Content. Any User 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 of its users or any User Content submitted. You agree that any User Content or any other information may be inaccurate, unsubstantiated or possibly even incorrect.
When submitting any User Content to our Platform you represent and warrant that you own all rights to the User Content and you have paid for or otherwise have permission to use any User Content submitted.
When you submit any User 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 User Content. It is important for you to grant us this license so that we may transmit your User Content to other users through our Platform. Additionally, although you own all User Content submitted by you, we own all layouts, arrangement, metadata and images that are used to render your User Content through our Platform.
7. Auto Shop Content and Notifications
Auto Shop Owners may be able to post content including but not limited to notifications, texts, video, audio, messages, photos, images or any other information. Tekmetric is not responsible for any Auto Shop Content or any other errors in any Auto Shop Content displayed or delays in displaying any Auto Shop Content. All Auto Shop Content on the Platform is either transmitted to Tekmetric from Auto Shop Owners or is obtained through public data sources. Tekmetric does not endorse and may not verify any of the Auto Shop Content or mobile notifications found via the Platform. You agree that any information or notifications from the Platform may be inaccurate, unsubstantiated or possibly even incorrect. If you find any issues with any content please contact us.
8. Your Usage Information
9. Platform Availability
Although we will try to provide continuous availability to you, we do not guarantee that the Platform will always be available, work, or be accessible at any particular time. Specifically, we do not guarantee any uptime or specific availability of the Platform. You agree and acknowledge that the Platform uses remote access and may not always be either 100% reliable or available. Only users who are eligible to use our Platform may do so and we may refuse service or terminate your access at any time. We cannot guarantee that anything found on our Platform will work as stated, or that it will give you any desired results.
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. 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.
12. 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.
THE PLATFORM IS PROVIDED ON AN "AS IS", "AS AVAILABLE" AND "WITH ALL FAULTS" BASIS. TO THE FULLEST EXTENT PERMISSIBLE BY LAW, NEITHER TEKMETRIC, NOR ANY OF THEIR EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (1) THE PLATFORM; (2) ANY INFORMATION PROVIDED VIA THE PLATFORM; OR (3) SECURITY ASSOCIATED WITH THE TRANSMISSION OF INFORMATION TO TEKMETRIC OR VIA THE PLATFORM. IN ADDITION, WE DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, 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.
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. TEKMETRIC DOES NOT MAKE ANY REPRESENTATIONS OR WARRANTIES THAT THE INFORMATION (INCLUDING ANY INSTRUCTIONS) ON THE PLATFORM ARE ACCURATE, COMPLETE, OR USEFUL. TEKMETRIC DOES NOT WARRANT THAT YOUR USE OF THE PLATFORM IS LAWFUL IN ANY PARTICULAR JURISDICTION, AND TEKMETRIC SPECIFICALLY DISCLAIMS ANY SUCH WARRANTIES.
14. 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, OR (6) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS. 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.
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.
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:
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, email@example.com.
17. 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.
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.
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.
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.
21. 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 shall survive and remain in full force upon termination, including but not limited to the Limitation of Liabilities, Representation and Warranties, Licensing, Indemnification, and Arbitration sections.
You may cancel your account at any time via your Tekmetric dashboard or contacting us at firstname.lastname@example.org. Please be aware that upon termination of your account, access to portions of our Platform may be become immediately disabled. We may terminate this Agreement with you 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 Platform policies; (3) if your account has remained inactive for an extended period of time; or (4) if we believe that any of your actions may legally 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.
23. Entire Agreement
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.
25. Electonric 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.
26. Third Party App Store Requirements
This Agreement is entered solely into between you and Tekmetric, owner and operator of the Platform. Although our Platform may be available for download in the Google Play Store (“Google”) or the iTunes Store (“Apple”), neither Google nor Apple are a party to this Agreement and shall have no obligations with respect to the Platform. Tekmetric is solely responsible for the Platform and the content thereof as set forth hereunder. However, Google and Apple are third party beneficiaries of this Agreement. Upon your acceptance of this Agreement, Apple or Google shall have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third party beneficiary thereof. This Agreement incorporates by reference the Licensed Application End User License Agreement published by Apple and Google, for purposes of which, you are “the end-user.” In the event of a conflict in the Terms of the Licensed Application End User License Agreement and this Agreement, the Terms of this Agreement shall control.
27. 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.
28. 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.
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: email@example.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.