TERMS OF SERVICE
These Terms of Service (the “Terms”) constitute a legally binding agreement (“Agreement”) between you (“you”, “your” or “User”) and Sparkplug Studios LLC (d/b/a “Tekmetric" “our” “we” “us”) and governs the use of the www.tekmetric.com website (“Site”), software, mobile application, and all technology-enabled services (“Services”) (such Services and Site are collectively referred to as the “Platform”).
By accessing or using the Platform, You represent that:
IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICE.
PLEASE BE ADVISED: THESE TERMS CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND TEKMETRIC MAY HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING AN AGREEMENT TO ARBITRATE, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. YOU WILL BE PERMITTED TO PURSUE CLAIMS AGAINST US (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING.
Signing Up For the Platform
Users of the Platform may be required to register before accessing certain portions of the Platform. User information will be collected and disclosed in accordance with our Privacy Policy. All Users are required to provide truthful and accurate information when registering for our Platform and may only register for one account. We reserve the right to verify all User credentials and to reject any User in our sole and absolute discretion.
When you register for an account on the Platform, Tekmetric will provide you with login credentials (such as a username and password or access codes (“Access Codes”) to access the appropriate non-public portions of the Platform, as determined by Tekmetric in its sole discretion. Access Codes are the property of Tekmetric. If your access to the Platform is terminated, the Access Codes provided to you will be rescinded, you will no longer be permitted to use the Platform, and all rights, licenses, and sublicenses granted with respect to such service, whether real or implied, will be immediately and automatically terminated. You are solely responsible for maintaining all necessary security and control of the Access Codes.
Tekmetric will be entitled to rely on all information it receives from your account and may assume that all such information was transmitted by you or on your behalf with your authorization. You acknowledge and agree that: (a) you are responsible for implementing and maintaining systems designed to ensure that Access Codes are distributed only to your designated officers, employees, and agents who are authorized by you to utilize the Platform; (b) your officers, employees, and agents will protect the confidentiality of the Access Codes and of information obtained through use of the Access Codes; (c) your officers, employees, and agents will use their respective Access Codes and the applicable Tekmetric systems only for their intended purposes; and (d) you will immediately notify Tekmetric in writing of the termination of any of your officers’, employees’, or agents’ authority to use an Access Code. You shall, and shall instruct each of your officers, employees, and agents to, utilize the degree of care in protecting the secrecy of the Access Codes that you use to protect your own confidential information, but in no event less than a commercially reasonable degree of care. You agree Tekmetric may terminate access at any time if it suspects use by unauthorized persons or use in an unauthorized manner. You will be solely liable for any unauthorized access or misuse of the Platform or the Access Codes, and you shall indemnify, defend and hold Tekmetric harmless from any losses or damages caused by such unauthorized access or misuse.
In some instances, as determined in Tekmetric’s sole discretion, Users may be required to provide certain documentation, such as (by way of example) a photo ID or proof of professional licenses or state-required insurance policies (for example, regulatory licenses). To the extent you provide such documents, you represent and warrant that they are authentic and current. If you hold yourself out on the Platform in a particular professional role, you represent and warrant that you hold all valid licenses and permits for such role and that you satisfy all professional and regulatory requirements to conduct your business in the manner you represent.
Certain Users that have a subscription payment agreement with Tekmetric (including, for example, auto shop owners) (“Commercial Entities”) may be subject to additional sign-up requirements, including agreeing to other specific Tekmetric terms of service, such as the Payment Processing Terms of Service. Although Tekmetric may verify the Commercial Entities found on its Platform, it does not endorse, recommend, and is not otherwise affiliated with any Commercial Entity. All Users agree that we are not responsible for any User or Commercial Entity content found on the Platform, or for any materials, including all content, copy, images, URL names, and anything else provided by any User or Commercial Entity.
THE SERVICES AND PLATFORM ARE NOT AVAILABLE TO MINORS (PERSONS UNDER THE AGE OF MAJORITY IN THE APPLICABLE JURISDICTION) OR USERS WHO HAVE HAD THEIR USER ACCOUNT TEMPORARILY OR PERMANENTLY DEACTIVATED. BY BECOMING A USER, YOU REPRESENT AND WARRANT THAT YOU ARE (OR IF YOU ARE AN ENTITY, THAT ANY INDIVIDUAL ACCEPTING THE TERMS OR SERVICE ON YOUR BEHALF, IS) AT LEAST 18 YEARS OLD (OR OTHER AGE OF MAJORITY IN YOUR JURISDICTION) AND THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO AND ABIDE BY THE TERMS AND CONDITIONS OF THE TERMS OF SERVICE.
Subscription Service and Fees
In some instances the Services may be purchased via a service order form which shall be completed and placed either online, in-product, emailed to you, or in any other form designated by us (“Service Order Form”). Unless a separate Service Order Form has been executed by you and Tekmetric, these Terms are the complete agreement between you and Tekmetric concerning the Services and supersedes any prior agreements and understanding between you and Tekmetric applicable to the Services delivered by or on behalf of Tekmetric. For clarity, where you and Tekmetric have entered into a separate, signed Service Order Form, then such terms shall prevail and override these terms, in all other circumstances these terms shall apply. Except to the extent expressly precluded by applicable law, Tekmetric reserves the right, at Tekmetric’s sole discretion, to modify or replace these Terms at any time. If a revision is material we will try to provide at least 30 days' notice prior to any new terms taking effect. What constitutes a material change will be determined at our sole discretion. Notwithstanding any notice requirements herein, Tekmetric may notify you of the change by a reasonable means of notice, including email to your User account(s) or if no valid email is available, by posting the revised Terms to the Tekmetric website. You agree that continued access or use of the Services after the written notice and changes become effective shall constitute your acceptance of the revised Terms. Unless otherwise specifically set out in the relevant document, in the event of a conflict between these Terms and a Service Order Form, these Terms shall prevail.
Many areas and features of the Platform are freely accessible. However, certain portions of the Services require a payment of fees for access and use (“Subscription Services”). You are required to pay a monthly or annual fee for the Subscription Services (“Subscription Fees”) as published on our Site from time to time or as otherwise communicated to you at the time you register for Subscription Services. Tekmetric may in its sole and absolute discretion change its Subscription Fees at any time. Your continued use of the Subscription Service after such fee change constitutes your acceptance to such fee change. Tekmetric may charge or retain Subscription Fees if you do not fulfill your contractual obligations under the Terms of Service. All payments must be timely made via a payment method accepted by Tekmetric.
Unless otherwise communicated to you at the time you register for Services or as listed in the Service Order Form, the Services include an automatic renewal option by default. Unless you cancel your Services prior to its expiration, which in the case of an annual Service, such cancellation notice shall be no less than 30 days prior to its expiration, the subscription to the underlying Services will automatically renew upon the end of the then applicable Subscription Term, for a renewal period of one year (each such one-year term, a “Renewal Term”) and, unless otherwise notified to the User, at the same price (subject to applicable tax changes and excluding any discount or other promotional offer provided for the first Subscription Term).
If you are subject to the Payment Processing Services Terms, you authorize us or any third party provider to off set the amount due to Tekmetric pursuant to these Terms of Service from amounts otherwise due to you in connection with your receipt of the Payment Services (as defined in the Payment Processing Services Terms). All amounts not paid when due may incur an interest charge of 1.5% per month or the highest rate permitted by law, whichever is less. You may be subject to additional fees and/or penalties for late payments, returned checks, dispute fees, declined payments due to insufficient funds, and any fees that Tekmetric may incur in connection with fraudulent activities originating from your account. Except as otherwise expressly provided, all payments are non-refundable and non-cancellable.
Depending on the laws of your jurisdiction you may be taxed for any payments or purchases. Tekmetric may collect all applicable taxes related to your use of the Platform at the time of payment. In the event that the applicable taxes are not collected by Tekmetric, you agree that you are still responsible for paying any applicable taxes owed to the tax agencies having jurisdiction over you. In order for Tekmetric to comply with US tax laws, you may be required to submit W-9 forms or other tax documents. You agree to comply with Tekmetric’s requests to submit any tax documentation. You agree that Tekmetric cannot and will not provide tax advice; any tax questions should be directed to your tax attorney or other tax professional.
Payments will be processed by Tekmetric’s designated payment processor. You hereby expressly authorize Tekmetric and its payment processor to charge or debit your designated payment method (e.g., credit card, debit card, bank account via ACH, as the case may be) for all fees and other amounts owed to Tekmetric or its affiliates. Such authorization shall remain in place for as long as you owe money to Tekmetric or until you cancel such authorization through a written request sent to support@tekmetric.com. With regard to your payment of fees and other amounts owed to Tekmetric via ACH, you agree to comply with the applicable, then-current rules, regulations, requirements, and procedural guidelines published by the National Automated Clearing House Association (“NACHA”), and/or all regional payment alliances associated with NACHA. You authorize Tekmetric to store your payment credentials and process transactions in the manner and at the times agreed to by the parties. You understand and agree that we share your payment information and other relevant information with our payment processor and other third-party service providers as necessary to provide the Services and process your payments for amounts due. For as long as you pay your Subscription Fees and your use of the Subscription Services has not been suspended or terminated by Tekmetric, Tekmetric grants you, during the term of this Agreement, a limited, revocable, non-transferrable, non-sublicensable, non-exclusive license to use the Subscription Services, solely for your internal business use and solely in accordance with the usage policies, specifications, and/or other documentation made available by Tekmetric from time to time.
Term and Termination
The term of this Agreement begins on the date listed on the applicable Service Order Form or upon any use of the Tekmetric Services and shall be in full force and effect until the end of all Subscription Services underlying the Account, either paid or unpaid, unless terminated otherwise in accordance with these Terms.
Termination for Breach. This Agreement may be terminated by either party for cause, upon receipt of a written notice from the aggrieved party, if the other party: (a) breaches any material obligations under this Agreement; (b) in its performance hereunder, recklessly or willfully violates applicable law; (c) ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 45 days. The party terminating this Agreement for cause shall give the other party prior written notice specifying the nature of all such alleged breaches. Termination for breach of a material obligation under this section shall take effect on the thirtieth (30th) day following receipt of a written notice from the other party, unless the other party fully corrects the breaches set forth in the written notice within the thirty-day (30-day) period.
Termination by User. You may cancel your account at any time via your Tekmetric dashboard or by contacting us at support@tekmetric.com. However such termination shall not release you from your obligation to pay all applicable Subscription Fees as listed at the time you registered for Subscription Services or as listed in the applicable Service Order Form. Please be aware that upon termination of your account, access to portions of our Platform may be immediately disabled.
In addition to our rights to terminate this Agreement or your access to the Platform as otherwise indicated herein, we may immediately terminate this Agreement with you and terminate your access to the Platform if: (a) we believe or suspect you have violated any applicable laws while using our Platform; (b) in our sole determination, you have violated this Agreement or any other of our Platform policies; (c) your account has remained inactive for an extended period of time; or (d) we believe or suspect 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.
Access to Platform and Limited Right of Use
You are responsible for your use of the Platform. After registering and making payment for our Platform, we grant you a personal, non-exclusive, non-transferrable, non-sublicensable, revocable, commercial, limited license to download our mobile application or other downloadable software. The viewing, printing, or downloading of any content, graphic, web-based form, or document from the Platform is not for republication, distribution, assignment, sublicense, sale, preparation of derivative works, or other use and you agree not to engage in any such conduct. No part of any content, web-based form, or document may be reproduced in any form or incorporated into any information retrieval system, electronic or mechanical, other than for your internal business use. The password-protected portions of the Platform are available only to those entities who have been provided with an Access Code, and the employees and authorized representatives of such entities on behalf of such entities.
All use of the Platform, including any application programming interfaces (“APIs”), are subject to the applicable documentation and specifications which may be posted and/or updated on the Platform from time to time in Tekmetric’s sole discretion. Tekmetric reserves the right to terminate or suspend any User’s use of the Platform for any reason, at any time, in its sole discretion. Tekmetric is not required to provide any explanation for its termination or suspension of any User of the Platform. With respect to your use of any part of the Platform as a User, you specifically agree not to:
This is not an all-encompassing list of restrictions. Tekmetric may revoke your license or restrict your access to our Platform if it believes in its sole discretion that your actions may cause it or any User harm. Failure by Tekmetric to revoke your license or restrict access does not act as a waiver of your conduct.
If you are discovered to be undertaking any of the aforementioned prohibited actions your privileges to use our Platform may, at our sole discretion, be terminated or suspended immediately and without notice. 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.
SMS/Text Messages and Customer Opt In/Opt Out Rules
You acknowledge and agree that you will comply with all applicable privacy laws and regulations. In furtherance thereof, you will be responsible to ensure that all SMS/text messages sent through the Platform are sent with the recipients’ valid consent and include prescribed information and an effective “Unsubscribe” mechanism, to the extent required. Additionally, you shall not use the Platform in violation of any advertising and marketing laws such as CAN-SPAM, the Telephone Consumer Protection Act, the FTC’s Telemarketing Sales Rule, Canada’s Anti-Spam Legislation (CASL) and the CRTC Unsolicited Telecommunications Rules, including those that relate to (i) permitted calling times; (ii) customers’ consent to be contacted by telephone and/or text messages (including opt in/opt out consent where applicable and do not call lists); (iii) the required content of text messages and requirements for promptly implementing “Unsubscribe” requests; (iv) any registration requirements relating to do not call lists; and (v) any notices that need to be given to potential customers during telephone calls.
User Content
In order to operate the Platform, Tekmetric needs to make certain use of your content. Therefore, by posting, uploading, or submitting any information through the Platform, including but not limited to text, audio messages, videos, photos, images, or any other information (“User Content”), you represent and warrant that you own all rights to the User Content and you have paid for or otherwise have authorization to use any User Content submitted. You also hereby grant Tekmetric a non-exclusive, transferable, sub-licensable, royalty-free, worldwide license to use, distribute, reproduce, modify, adapt, publicly perform, publicly display, store, broadcast, reproduce, modify, make derivative works of, and otherwise use such User Content in connection with the Platform and any services or products affiliated with the Platform, regardless of the form of media used or of whether such services or products now exist or are developed in the future. This license exists only for as long as you elect to continue to include such User Content on the Platform and will terminate at the time such User Content is removed from the Platform by you or by Tekmetric. Please be aware that Tekmetric is 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. When you delete User Content, you understand that such removed User Content may persist in backup copies in accordance with our data retention policies. Additionally, you acknowledge and agree that Tekmetric owns all layouts, arrangement, metadata, and images that are used to render your User Content through our Platform.
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 by you. You understand that we cannot guarantee the absolute safety and security of any User Content, and that when you publish User Content, it means that everyone, including people outside of the Tekmetric community, will have access to that information, and we may not have control over what they do with it. 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 in our sole discretion. Tekmetric does not endorse and is not required to verify, monitor, or restrict any of its Users or any User Content submitted. You acknowledge and agree that any User Content or any other information may be inaccurate, unsubstantiated, or incorrect; provided however, you represent and warrant that you have made every available means to verify that such User Content is accurate, substantiated, and correct.
Other User Content and Notifications
Other Users may be able to post or transmit content including but not limited to notifications, texts, video, audio, messages, photos, images, or any other information (“Other User Content”). Tekmetric is not responsible for any Other User Content or any errors in any Other User Content displayed or delays in displaying any Other User Content. All Other User Content on the Platform is either transmitted to Tekmetric from Other User owners or is obtained through public data sources. Tekmetric does not endorse and may not verify any of the Other User Content found via the Platform. You acknowledge and agree that any information or notifications from the Platform may be inaccurate, unsubstantiated, or incorrect. If you find any issues with any Other User Content, please contact us at support@tekmetric.com, 840 Gessner Road, Suite 740, Houston, TX 77024 or (832) 787-0900.
Your Usage Information
Our Privacy Policy, located at: https://www.tekmetric.com/legal/privacy-policy-website, explains how we may collect your usage data through the Platform. This usage data 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 in accordance with our Privacy Policy. We have implemented technical and organizational measures designed to secure your personal data and payment information from accidental loss and from unauthorized access, use, alteration, or disclosure, and we have used reasonable efforts to ensure that payments will be processed in compliance with the PCI-DSS data security standard and other applicable industry standards. However, we cannot guarantee that unauthorized third parties will never be able to defeat those measures or use your personal information for improper purposes. You acknowledge that you provide your personal data and payment information at your own risk.
Platform Availability and Modification of Platform
Although we will try to provide continuous availability to you, we do not guarantee that the Platform will always be available, accessible, or functional at any particular time, or that there will not be an outright discontinuance of the Platform. Specifically, we do not guarantee any uptime or specific availability of the Platform. We reserve the right to alter, modify, update, or remove our Platform at any time, with or without reason. We may conduct such modifications to our Platform for security, intellectual property, legal, or various other reasons at our discretion, and we are not required to explain such modifications.
Only Users who are eligible to use our Platform may do so, and we may refuse service or terminate your access at any time.
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 United States law, foreign law, and international conventions. Title and ownership of all patent, copyright, trademark, trade secret and other intellectual property rights in and to the Website, Services, and Platform shall be owned exclusively by Tekmetric. Tekmetric reserves all rights not otherwise expressly granted in and to the Website, Services, and Platform.
You agree to not engage in the use, copying, or distribution of anything contained within the Website, Services and Platform unless we have given express written permission. Notwithstanding any other provision of this Agreement, you acknowledge and agree that: (a) Tekmetric may generate, use, and share anonymous, de-identified, aggregated, or statistical data based on your use of the Subscription Services or Platform for development purposes, to improve the Subscription Services or Platform, and for other analytic and business purposes, so long as no individual is identified, and that such anonymous, de-identified, aggregated, or statistical data shall be the exclusive property of Tekmetric and shall be Tekmetric’s confidential information; and (b) Tekmetric shall be free to use any comments, suggestions, ideas, feature requests, or other feedback provided to Tekmetric related to any of Tekmetric’s products and services, in any manner and for any reason, including to improve such products and services or incorporate such feedback into future versions of such products and services or Tekmetric’s materials, with no obligation of confidentiality or compensation and without restriction of any kind.
Idea Submission
Tekmetric does 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 you do send us Submissions, you agree to the following: (a) your Submissions and their contents will automatically become the property of Tekmetric, without any compensation to you; (b) Tekmetric may use or redistribute the Submissions and their contents for any purpose and in any way; (c) there is no obligation for Tekmetric to review the Submissions; and (d) there is no obligation to keep any Submissions confidential.
Disclaimer
YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK. TEKMETRIC IS NOT RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM. TEKMETRIC IS UNDER NO OBLIGATION TO, AND DOES NOT ROUTINELY, SCREEN ITS USERS, INQUIRE INTO THE BACKGROUND OF ITS USERS, OR ATTEMPT TO VERIFY INFORMATION PROVIDED BY ANY USER. WE RESERVE THE RIGHT, BUT HAVE NO OBLIGATION, TO MONITOR DISPUTES BETWEEN YOU AND OTHER USERS. PLEASE CAREFULLY SELECT THE TYPE OF INFORMATION THAT YOU POST ON THE PLATFORM OR RELEASE TO OTHERS. WE DISCLAIM ALL LIABILITY, REGARDLESS OF THE FORM OF ACTION, FOR THE ACTS OR OMISSIONS OF ANY USER OR OTHER PARTIES.
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 ITS EMPLOYEES, MANAGERS, OFFICERS, ASSIGNS OR AGENTS MAKE ANY REPRESENTATIONS OR WARRANTIES OR ENDORSEMENTS OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, AS TO: (A) THE PLATFORM; (B) ANY INFORMATION PROVIDED VIA THE PLATFORM; OR (C) 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 WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, SECURE, FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND TEKMETRIC DOES NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. 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. YOU UNDERSTAND AND AGREE THAT YOU USE ANY PORTION OF THE SERVICE AT YOUR OWN DISCRETION AND RISK AND THAT WE ARE NOT RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE) OR ANY LOSS OF DATA, INCLUDING USER CONTENT. THE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS IN THIS SECTION APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.
Additionally, Tekmetric will 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; pandemic, 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, or other third parties will be limited to a claim against the particular users, 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.
Limitation of Liability
TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TEKMETRIC, ITS OFFICERS, DIRECTORS, EMPLOYEES, AFFILIATES, OR AGENTS, BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, OR CONSEQUENTIAL OR EXEMPLARY DAMAGES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT TEKMETRIC IS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL TEKMETRIC HAVE ANY LIABILITY RESULTING FROM (A) YOUR USE OR INABILITY TO USE THE PLATFORM OR ANY ERRORS, MISTAKES, OR INACCURACIES FOUND WITHIN THE PLATFORM; (B) ANY PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO AND USE OF OUR PLATFORM; (C) ANY SERVICES FACILITATED BY THE PLATFORM; (D) ANY INTERACTIONS BETWEEN USERS, INCLUDING WITHOUT LIMITATION ANY LIABILITIES ARISING IN CONNECTION WITH THE CONDUCT, ACT OR OMISSION OF ANY USER (INCLUDING WITHOUT LIMITATION STALKING, HARASSMENT, ACTS OF PHYSICAL VIOLENCE, AND DESTRUCTION OF PERSONAL PROPERTY) OR ANY DISPUTE WITH ANY USER; (E) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE PLATFORM; (F) ANY UNAUTHORIZED ACCESS TO OR ALTERATION OF THE PLATFORM OR YOUR DATA OR TRANSMISSIONS; (G) ANY INTERRUPTION, MISINFORMATION, INCOMPLETE INFORMATION, OR CESSATION OF TRANSMISSION TO OR FROM OUR PLATFORM TO YOU; (H) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE, WHICH MAY BE TRANSMITTED TO OR THROUGH OUR PLATFORM VIA A THIRD PARTY; (I) ANY FAILURES OR DISRUPTIONS WHETHER INTENTIONAL OR UNINTENTIONAL;(J) ANY ACTION TAKEN IN CONNECTION WITH COPYRIGHT OR OTHER INTELLECTUAL PROPERTY OWNERS; OR (K) ANY OTHER MATTER RELATING TO THE PLATFORM. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
IN NO EVENT WILL TEKMETRIC’S TOTAL CUMULATIVE LIABILITY ARISING OUT OF OR RELATED TO THE TERMS OF SERVICE WITH RESPECT TO ANY OTHER MATTER EXCEED ONE HUNDRED DOLLARS ($100.00). THE EXISTENCE OF MULTIPLE CLAIMS WILL NOT ENLARGE THIS LIMIT.
SOME STATES DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. 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. THIS LIMITATION OF LIABILITY WILL SURVIVE THE TERMINATION OF THIS AGREEMENT AND YOUR USE OF THE PLATFORM.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS WITH RESPECT TO CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.”
Indemnity
You agree to defend, indemnify, and hold harmless Tekmetric, its officers, directors, employees, affiliates, agents and representatives, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to reasonable attorney's fees) arising from: (a) your use of and access to the Platform; (b) your violation of any term of this Agreement; (c) your violation of any third party right, including without limitation any copyright, intellectual property, trade secret, or privacy right; (d) any services facilitated by the Platform; (e) any third-party claims or damages relating to death, personal injury, or emotional distress arising from or related to use of the Platform; and (f) any damage or loss caused by your negligence, fraud, dishonesty, or willful misconduct. These defense and indemnification obligations will survive the termination of this Agreement and your use of the Platform. These defense and indemnification obligations will survive this Agreement and your use of the Platform. You agree that this indemnity extends to requiring you to pay for our reasonable attorneys’ fees (of the attorney of our choosing), court costs, and disbursements. In the event of a claim such as one described in this Section, we may elect to settle with the party/parties making the claim, and you will remain liable for the damages as though we had proceeded with a trial.
Copyrights
If you believe that any content owned by you has been infringed upon, please send us a message which contains:
You must sign this notification and send it to our Copyright Agent: Copyright Agent of Tekmetric, support@tekmetric.com.
Choice of Law
This Agreement shall be governed by and construed in accordance with the laws in force in the State of Texas, without regard to the rules or principles regarding conflicts of laws. The offer and acceptance of this contract is deemed to have occurred in the State of Texas. Except as set forth in the Arbitration provision below, any action or proceeding arising out of or relating to the Terms of Service must be brought exclusively in the state or federal courts located in the State of Texas, Harris County. EACH PARTY IRREVOCABLY CONSENTS AND WAIVES OBJECTION TO PERSONAL JURISDICTION AND VENUE IN, AND AGREES TO SERVICE OF PROCESS ISSUED BY, ANY SUCH COURT IN ANY SUCH ACTION OR PROCEEDING.
Dispute Resolution; Arbitration
We want to address your concerns without needing a formal legal case. Before filing a claim against Tekmetric, you agree to try to resolve the dispute informally by contacting us at support@tekmetric.com. We will try to resolve the dispute by contacting you via email, but if we are unable to resolve the dispute within thirty (30) days of submission, you and/or Tekmetric agree to resolve any claims related to this Agreement through final and binding arbitration, in Houston, Texas, except as expressly set forth below. Except in the event the claim meets the requirements for an exception as expressly stated below, any dispute between you and Tekmetric including any dispute relating in any way to your visit to the Site or use of the Platform shall be submitted to confidential arbitration.
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 barred. In the event that the law does not permit the aforementioned 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, Texas. Notwithstanding the foregoing, this arbitration provision does not prevent either party from filing a claim in small claims court in the State of Texas, if it qualifies. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, breach of Tekmetric’s confidential information, or intellectual property infringement (for example, trademark, trade secret, copyright, and/or patent rights) without first engaging in arbitration and the informal dispute-resolution process described herein.
Severability
In the event that a provision of this Agreement is found to be unlawful, conflicting with another provision of This Agreement, or otherwise unenforceable, This 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.
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 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.
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 at any time and 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 Dispute Resolution sections.
Entire Agreement
The Terms of Service and any incorporated terms or agreements 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.
Amendments
Tekmetric reserves the right, at any time and in its sole and absolute discretion, to change, modify, add to, supplement or delete any of the Terms of Service and all referenced exhibits or policies, including the Privacy Policy. Tekmetric will notify you of the updated terms by posting them to the Site. Tekmetric may elect to provide specific notice to you of any material changes, but will not be required to do so. If any future changes to the Terms of Service are unacceptable to you or cause you to no longer be in compliance with the Terms of Service, you must immediately stop using the Platform, Site and Services. Your continued use of Platform, Site or Services following any revision to the Terms of Service constitutes your complete and irrevocable acceptance of any and all such changes.
Electronic Communications
The communications between you and Tekmetric use electronic means, whether you visit the Platform or send Tekmetric emails, or whether Tekmetric posts notices on the Platform or communicates with you via mobile notifications or e-mail. By agreeing to the Terms of Service, you (a) consent to receive communications from Tekmetric in an electronic form; and (b) agree that all terms, conditions, agreements, notices, disclosures, and other communications that Tekmetric provides to you electronically has the same force and effect as written hardcopy documents. The foregoing does not affect your statutory rights.
Export Controls
The Platform and the underlying information and technology may not be downloaded or otherwise exported or re-exported (a) into (or to a national or resident of) any country to which the U.S. has currently embargoed goods; or (b) 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.
Third Party Websites
The Platform may include access to content created, owned, or controlled by third parties (including you or other users) and 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. Content, services, and/or websites provided or controlled by third parties (as described above) may be subject to additional terms and conditions established by the applicable third-party provider.
You may be required to agree to such third parties’ terms and conditions in order to use or access their content, services, and/or websites, and such terms and conditions may be subject to change from time to time by the respective third-party providers. Tekmetric has no control over such terms. Additionally, the privacy policies of such third parties may dictate how they may use information they receive from or about you, including personal information. Accordingly, we encourage you to review the terms of use and privacy policies, if any, associated with third-party content, services, and websites. Location data provided by the 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.
California Users
In accordance with California Civil Code Section 1789.3, if you have any questions about pricing, Tekmetric, or your use of the Services, or if you would like to file or resolve a complaint about Tekmetric or the Services, you may contact (a) Tekmetric directly at 840 Gessner Rd, Suite 740, Houston, TX 77024 or support@tekmetric.com; or (b) the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs located at 1625 North Market Blvd., Sacramento, CA 95834, or by telephone at (800) 952-5210.
Force Majeure
Tekmetric is not responsible for any delay or failure in performance of the Site, Services, or Platform, in whole or in part, for any cause or circumstance outside Tekmetric’s reasonable control, including, without limitation: fires, floods, storms, earthquakes, civil disturbances, disruption of telecommunications, pandemics, epidemics, transportation, utilities, services or supplies, governmental action, computer viruses, corruption of data, failures of a third party provider, DDoS or other computer attacks, incompatible or defective equipment, software, or services, or otherwise.
Notices
Unless otherwise indicated, all notices required to be made of you to us must be in writing and sent to us at the following address:
Sparkplug Studios LLC d/b/a Tekmetric
840 Gessner Rd Suite 740,
Houston, TX 77024
Attn: Legal Department
with a copy to: legal@tekmetric.com
Notices shall be deemed given: (a) upon personal delivery; or (b) when received by Tekmetric if sent by a nationally recognized overnight courier or certified mail via the United States Postal Service (in both instances, receipt requested).
Last update: May 18, 2024
