Last edited: 10 Sep 2022
This Terms of Service agreement (“TOS” or “Agreement”) is made between SPARQ, Inc., a Delaware Corporation, and SPARQ LABS (collectively, “SPARQ”/“we”/“us”/“our”), and you, the member of our service and a user (“you”/“user”/”member”) of the mobile software application (“App”) and/or website (“Site”). We collectively refer to both the App and Site together as “Software.” Use of our Software and all services we provide to our members are governed by this Agreement, which may be updated and modified from time-to-time as set forth in Section 34. You hereby agree as follows:
SPARQ is an independent annual subscription-based membership car maintenance and repair service designed for you, the car owner (“membership”/“subscription”/ “service”). We currently offer a single tier of membership for one passenger vehicle regardless of its make or model that is registered with us, as set forth in Section 2(a) (collectively, “Your Vehicle”), and subject to the requirements and exclusions set forth in this Agreement.
Other than the Annual Fee and the cost of Vehicle Parts, as set forth in Section 3, you will not incur any additional charges, unless expressly set forth in this Agreement. Onsite services and repairs are provided at a SPARQ service center location (“SPARQ LAB”) using manufacturer-certified technicians, depending upon the service or repair to be provided. Our services are as follows:
(a) Free Labor. We will provide you with complimentary labor on certain services and repairs to Your Vehicle as set forth in this Agreement at any SPARQ LAB for the entire year (twelve (12) months) of your subscription. You are only responsible for paying the cost of replacement Vehicle Parts, when needed.
(b) Comprehensive Car Servicing. We will provide comprehensive car servicing on Your Vehicle. Comprehensive car servicing includes, but is not limited to preventative, corrective, risk-based, or conditional maintenance such as replacement of various system fluids, lubrication of car parts, wheel alignment, and tire rotation (for example);
(c) Light Repairs. We will make light repairs to Your Vehicle. Light repairs include any mechanical or operational repair to Your Vehicle that would we determine, in our sole discretion, takes us less than three (3) labor hours to complete.
(d) Cosmetic Repairs. We will make cosmetic repairs to Your Vehicle. Cosmetic repairs are defects which are visual in nature and affect its appearance only, but do not interfere with the function or operation of the damaged area; they include minor auto body repairs such as paint scratches, dings and chips to the body, and a scraped bumper (for example);
(e) OEM Vehicle Parts. We will provide you with genuine and warrantied OEM parts when a part on Your Vehicle (collectively, “Vehicle Parts”) must be replaced and cannot be repaired or refurbished. Vehicle Parts are obtained from the original manufacturer or from certified sellers or suppliers. There is no mark-up charged by us above the Manufacturer’s Suggested Retail Price (“MSRP”). We will disclose the price for any Vehicle Parts prior to servicing Your Vehicle, as set forth in Section 5(b);
(f) State Inspection. We will perform a free annual state inspection of Your Vehicle, if applicable. If your car does not pass inspection, we will notify you of the issues which must be addressed and remedied. We will re-inspect Your Vehicle until it passes inspection, provided that we can complete the services or repairs needed to satisfy your state’s inspection requirements.
(g) SPARQ LAB Network. We will provide you with our services for Your Vehicle at all SPARQ LAB locations in our network;
(h) Member Benefits. From time-to-time, we may offer certain member benefits to you in addition to our services. The availability of such benefits is subject to change based upon availability and as determined by us, in our sole discretion. We currently offer the following member benefits:
SPARQ Device. We will provide you with a free SPARQ diagnostic device which assesses the status of Your Vehicle’s operation and certain systems (“SPARQ Device”) and allows you to use our service as set forth in Section 2(c).
Metropolitan Area Roadside Assistance. We offer on-demand roadside assistance service to members and their vehicles located within forty-five (45) minutes of a SPARQ LAB at the time of their request. If necessary, we will deliver Your Vehicle to the nearest SPARQ LAB for service and repair, as set forth in this Agreement. Please contact us at email@example.com for more information about whether this service is available in your area;
Car Wash. Your vehicle will receive a complimentary car wash every time you visit a SPARQ LAB;
Tire Storage. We will provide you with complimentary storage for one additional spare set of tires for Your Vehicle;
On-Site Diagnostics. We will provide you with free, unlimited, and comprehensive on-site diagnostics of Your Vehicle at your request when visiting a SPARQ LAB.
(i) Changes in Services and Benefits. We reserve the right to add, modify, remove, or revoke (collectively, “change”) services and member benefits at any time, in our sole discretion. You will be notified of any material changes via the Software or through your SPARQ account. You will not be entitled to a refund if our services and member benefits change during the term of your membership; however, you can terminate your subscription at any time as set forth in Section 8(a).
In order to use our service and the Software, Your Vehicle must satisfy the requirements of this Section:
(a) Passenger Vehicles Only. Your vehicle must be deemed a passenger vehicle to be eligible for our service. We define a passenger vehicle as a motor vehicle with at least four (4) wheels intended and constructed solely for the carriage of passengers and their personal effects, designed to seat no more than nine (9) persons at one time including the driver, and requiring a Class D driver’s license to operate. We do not offer our services to any other types of motor vehicles at this time, including but not limited to commercial vehicles of any size or capacity. Your vehicle must also pass our Vehicle Pre-Evaluation, as set forth in Section 4(b), prior to membership.
(b) Inclusion of OBD-II Port. Your vehicle must be equipped with a properly functioning on-board diagnostics II port (“OBD-II Port”) in order to be eligible for our service. This is a standardized 16-pin port which allows access to the electronic Diagnostic Data collected by Your Vehicle about the operation and performance of its various subsystems. Any car sold in the United States after January 1, 1996 is required to be equipped with an operational OBD-II Port.
Pre-1996 Manufacture. If Your Vehicle was manufactured prior to 1996 or otherwise lacks a functioning or compatible OBD-II Port, you will be ineligible for our service. You will be refunded the Annual Fee, as set forth in Section 8(a)(1), if you enrolled Your Vehicle without an OBD-II Port.
Diagnostic Data. “Diagnostic Data” refers to all data that is automatically recorded and stored by Your Vehicle for diagnostic purposes during its operation.
(c) SPARQ OBD-II Diagnostic Device.
Provision of SPARQ Device. Upon subscribing to our service, you will be provided with a SPARQ OBD-II diagnostic device as a member benefit at no charge (“SPARQ Device”) to be used by you and manually inserted into Your Vehicle’s OBD-II Port. This will allow you and us to access certain Diagnostic Data about Your Vehicle, and can also serve to unlock Your Vehicle as well. If you lose or damage the SPARQ Device during the term of your subscription, you may be charged a fee for replacement. If your SPARQ Device malfunctions, we will replace it without charge upon your return of the faulty device to us. We reserve the right to revoke your use of the SPARQ Device at any time.
Operation of SPARQ Device. You will be required to insert and use the SPARQ device as needed and as requested by us during the term of your subscription so that we can provide our services. You can operate the SPARQ Device yourself after downloading the App, or we can operate the device remotely at your request or as required by this Agreement and our services. You expressly consent to the remote operation of the SPARQ device by us during the term of this Agreement.
Our annual subscription fee (“Annual Fee”) is for one (1) eligible vehicle only, which you register with us when you subscribe. You may purchase additional and separate annual subscriptions for any other eligible vehicles that you would like to enroll in our service. Our Annual Fee is based on a twelve (12) month cycle from the time you subscribe and is disclosed on the App and Site prior to your payment and acceptance of this Agreement.
(a) Payment. You agree to use a payment method for the Annual Fee that we accept. We currently accept all major credit and debit cards (collectively, “Payment Method”). You may change your Payment Method any time before or after your Annual Fee is processed. You agree to provide us with accurate and complete billing and payment information and will update it as necessary. We may process all payments using a separate and independent third-party payment processor.
(b) Entire Fee. You agree to pay the entire Annual Fee and allow us to charge your Payment Method.
(c) Charges for Vehicle Parts. You agree to fully pay for all Vehicle Parts that we replace in Your Vehicle during the membership. The cost of Vehicle Parts is excluded from the Annual Fee and is charged on an as-needed basis to your Payment Method upon your consent to the Vehicle Part price. If Your Vehicle is being serviced at a SPARQ LAB, you must pay for all Vehicle Parts or we will not release Your Vehicle to you until the unpaid or outstanding balance is paid in full.
(d) Payment Refusal. If for any reason you, your credit or debit card company, or other payment provider refuses to pay or honor any amount billed by us for the Annual Fee or for other charges, we may, in our sole discretion, suspend your subscription or terminate it, as set forth in Section 8(b), and require you to pay any unpaid or outstanding amount by other means which are acceptable to us.
(e) Unpaid Balance. If you have an unpaid or outstanding balance, regardless of amount or type, we will not service Your Vehicle at a SPARQ LAB or otherwise until your balance is paid in full.
(f) Automatic Renewals. The Annual Fee will automatically renew for a successive twelve (12) month period at the end of your current term (“Renewal Date”). We will continue to bill your Payment Method on your Renewal Date until you expressly terminate your membership and notify us, or unless we terminate as set forth in Section 8. You will be bound by the terms and conditions of this Agreement that are then in effect at the time of renewal.
(g) Fee Change. The Annual Fee is subject to change at the end of your term, which will be disclosed to you prior to your Renewal Date. The Annual Fee will not change during your current membership. The MSRP for Vehicle Parts may change at any time during your subscription.
(h) Vehicle Transfer. You may transfer your membership to another eligible vehicle owned or leased by you in the event of any sale, trade-in, exchange, or lease transfer of Your Vehicle during the term of your membership (collectively, Vehicle Transfer”), without additional cost to you. You are limited to one (1) Vehicle Transfer during each calendar year; any additional Vehicle Transfers within a calendar year are subject to our express approval, which we may withhold in our sole discretion. You may not transfer your membership to another person, party, or entity; any such transfer by you will be void and your membership will be terminated as set forth in Section 8.
We exclude certain services and repairs from your membership and do not perform them at any time. We also prohibit or exclude certain vehicles from subscribing to our service initially or if they become ineligible during the term of the subscription:
(a) Major Repairs. Major repairs to Your Vehicle are excluded from our service at all times and are defined as follows:
Major Parts and Systems. Major Parts and Systems includes but is not limited to the rebuilding, reconditioning, or replacement, in whole or in part, of Your Vehicle’s: (A) engine; (B) transmission; (C) cylinder heads; (D) driving mechanism (E) steering mechanism; (F) differential assembly;
Structural Damage. Structural Damage includes but is not limited to the rebuilding, reconditioning, or replacement in whole or in part of Your Vehicle’s: (A) chassis; (B) frame; (C) body; (D) or underlying structure.
Other Major Repair. Other Major Repair means the repair, reconditioning, restoration, or replacement of other major or key automotive parts or systems of Your Vehicle.
Significant Time Expenditure. A Significant Time Expenditure is any repair that we determine, in our sole discretion, requires more than fifteen (15) hours of labor to complete.
(b) Totaled Vehicles or Salvage/Branded Title. If Your Vehicle has been designated as “totaled” or receives a salvage or branded title designation either prior to or during the term of your subscription, it is ineligible for membership and is excluded from our service.
Ineligibility Before Membership. Prior to being accepted as a member, you agree to provide us with Your Vehicle’s full and complete Vehicle Identification Number (“VIN”) and any other identifying information so that we may conduct a pre-evaluation eligibility investigation of Your Vehicle’s history (“Vehicle Pre-Evaluation”). Your vehicle will be ineligible for membership if our Vehicle Pre-Evaluation establishes that Your Vehicle has: (A) been designated as totaled; (B) received a salvage or branded title designation; (C) sustained other substantial damage or has a significant accident history; or (D) any other issues that we deem, in our sole discretion, would make it ineligible for membership.
Ineligibility During Membership
i. Totaled, Salvage, or Branded Vehicles. If the vehicle you originally enrolled in our service becomes totaled or receives a salvage or branded title designation (collectively, “Ineligible Title Designation”) during the term of your membership, at your request we will transfer the remaining term of your membership to a new eligible vehicle (“Replacement Vehicle”), if applicable. If you do not obtain a Replacement Vehicle prior to the end of your term, your annual fee will not be refunded.
ii. Vehicle Pre-Evaluation Inaccuracy. If we learn during the term of your membership that our Vehicle Pre-Evaluation was incomplete or inaccurate (collectively, “Inaccurate Pre-Evaluation”) such that Your Vehicle would have been deemed ineligible at the outset of your subscription, we reserve the right in our sole discretion to terminate your membership as set forth in Section 8(b). Upon termination you will receive a full refund of your Annual Fee minus the costs of Vehicle Parts, if any, so long as the Inaccurate Pre-Evaluation was not due in whole or in part to any fraud, misrepresentation, deceit, or other misconduct by you.
(c) Non-Passenger or Ineligible Vehicles. As set forth in Section 2(a), only passenger vehicles are eligible for our service. We reserve the right to reject any vehicles deemed by us, in our sole discretion, to be non-passenger vehicles or otherwise ineligible.
(d) Other Exclusions. We reserve the right to add, modify, or remove exclusions at any time, in our sole discretion. You will be notified of any material changes in our services via the Software or through your SPARQ account.
(a) Appointments and Completion Time. Service or repairs at a SPARQ LAB require a service appointment (“Service Appointment”). You may either schedule an appointment in advance (“Advance Appointment”) or bring Your Vehicle to a SPARQ LAB on an unscheduled or spontaneous “walk-in” basis (“Walk-In Appointment”). All Service Appointments require use of the SPARQ Device in advance, which is either operated directly by you, remotely by us, and/or on location at a SPARQ LAB.
Advance Appointments. Availability at a SPARQ LAB is guaranteed if you schedule an Advance Appointment. You may use the Software for scheduling, which will provide you with available days and times for the requested service or repair. Upon using the SPARQ Device, we will provide you with a price estimate for any Vehicle Part(s) that may be needed, as set forth in this Section, and an estimated completion time (“Completion Time”).
Appointment Changes. Advance Appointments may be changed or canceled by you at any time without a fee or penalty. In certain instances, we may need to cancel or reschedule your appointment due to, among other things, delays obtaining needed parts, labor issues, communications outages, and weather-related events (for example). When this occurs, we will notify you to reschedule your Service Appointment.
Walk-In Appointments. We will attempt to accommodate Walk-In Appointments that same day during normal business hours but cannot guarantee availability. If no appointments are available, we will give you alternate Service Appointment days and times. Upon using the SPARQ Device, we will provide you with a price estimate for any Vehicle Part(s) that may be needed, as set forth in this Section, and a Completion Time.
(b) Vehicle Part Pricing Disclosure and Replaced Parts.
Vehicle Part Pricing Disclosure and Consent. When you make your Service Appointment and use the SPARQ Device, we will process your Diagnostic Data to determine if a Vehicle Part(s) must be replaced and purchased by you. We will disclose the price of the replacement Vehicle Part and will not charge you without your consent. If you do not consent, we will be unable to provide some or all of our services for that Service Appointment.
Return or Inspection of Parts. At your request, any replaced Vehicle Parts will be given to you at the completion of the Service Appointment, unless we are required to return them to the manufacturer or other supplier pursuant to a warranty or rebuilding agreement. If so, at your request we will alternatively provide the replaced Vehicle Parts to you for inspection only.
(c) Completion Time and Same Day Completion. We will provide you with an estimated completion time (“Completion Time”) when you make a Service Appointment. This will ordinarily be on the same day that you bring Your Vehicle to a SPARQ LAB, provided it is during normal business hours and there is sufficient time to service Your Vehicle (collectively, “Same Day Completion”). You will be notified promptly if we cannot provide Same Day Completion and you will be given the option to either: (1) reschedule your Service Appointment; or (2) you may consent to a longer Completion Time.
(d) Unforeseen Repairs. If we discover any unforeseen repair or service issue in Your Vehicle during the Service Appointment that was unknown when making the appointment (collectively, “Unforeseen Repair”), we will notify you of the Unforeseen Repair and any additional services and Vehicle Parts needed to address it, if necessary. We will only correct the Unforeseen Repair with your express consent. In some instances, this may delay or otherwise affect your Completion Time and/or Same Day Completion, or may require another Service Appointment.
(e) Delays. While we seek to timely fulfill your Service Appointment or Completion Time, delays are still possible for any number of reasons. We will notify you when such delays occur and provide updated information and options to you.
By bringing Your Vehicle to a SPARQ LAB for a Service Appointment, you expressly authorize us to: (a) access and enter Your Vehicle; (b) move and drive Your Vehicle as needed in order to perform our service; (c) drive Your Vehicle for on-road testing and evaluation, when necessary; and (d) relocate Your Vehicle to a nearby alternate location for pickup by you.
It is your sole and complete responsibility to: (a) determine if Your Vehicle is already covered by any other warranty or service contract before or during your membership; or (b) decide whether to obtain another warranty or service contract after becoming a member (collectively, “Other Warranty” or “Another Warranty”); and (c) determine whether Another Warranty will be affected, impaired, or voided by our services or repairs.
You assume all risks and waive and release any claims, suits, demands, liabilities, losses, expenses, damages, or causes-of-action that you may have against us for any repairs or services that we perform on Your Vehicle which voids, nullifies, or otherwise affects Another Warranty in any way, in whole or in part. We do not evaluate or assess the existence, applicability, coverage, consequences, or penalties of Other Warranties, or whether any conflicts exist between providing our services or repairs and Another Warranty. We only work directly with you and do not contact, engage, or interact with the provider of any Other Warranty or their agents or representatives.
(a) By You. You may terminate your membership at any time for any reason. You must inform us in writing through the Software of your termination, which will start on your Renewal Date and not before then.
Refunds. Vehicle Parts purchased by you are not refundable at any time, but may still remain under warranty by the manufacturer and not by us. You will only be refunded all or part of the Annual Fee in the following circumstances:
Your termination occurs prior to receiving any services or repairs at a SPARQ LAB;
Your vehicle is not equipped with an OBD-II Port or the SPARQ Device does not function properly at the beginning of your membership enrollment; or
We performed an Inaccurate Pre-Evaluation of Your Vehicle, as set forth in Section 4(b).
No Refund. In all other circumstances, we will not refund any portion of the Annual Fee when you terminate your membership. At your option, you will have the right to continue using our services and purchasing Vehicle Parts as set forth in this Agreement until your Renewal Date, when termination occurs and your membership will end.
(b) By Us. We may terminate your membership for the following reasons:
You do not pay your Annual Fee or for Vehicle Parts, or improperly stop or reverse such payments through your Payment Method provider;
Your Vehicle is not a passenger vehicle or is otherwise ineligible for membership;
You change, remove, fabricate, replace, or otherwise alter Your Vehicle’s VIN or other information which accurately identifies Your Vehicle and its history;
You tamper with, manipulate, or alter the SPARQ Device in any way that causes it to: (A) provide or transmit inaccurate, false, flawed, or erroneous Diagnostic Data; or (B) function improperly or for a purpose inconsistent with its sole use as a diagnostic device for passenger vehicles or our service;
You engage in any acts of fraud, misrepresentation, deceit, willful misconduct, or gross negligence;
You engage in any illegal or unlawful acts while at a SPARQ LAB location;
You engage in any improper behavior or conduct while at a SPARQ LAB location that is directed at SPARQ members, employees, contractors, representatives, or agents. This includes but is not limited to violence or threats of violence, aggressive or disruptive behavior, harassment, intimidation, property damage, or theft.
You allegedly or actually breach or violate our Unacceptable Use policy, as set forth in Section 25.
You allegedly or actually breach or violate other provisions of this Agreement. We may in our sole discretion give you an opportunity to satisfactorily cure any breach or violation in lieu of termination, but are not obligated to do so.
(c) No Post-Termination Service. We do not provide any post-termination assistance, support, or benefits on any service or repair that we performed on Your Vehicle during your membership.
Our Software and all services that we provide are only for those users and their vehicles which are physically located within the United States and its territories (collectively, “United States”). By using our Software and services, you represent and warrant that you and Your Vehicle are located within the United States.
Subject to the terms and conditions set forth in this Agreement, we agree to provide you with access to and use of our App and Site. This Software is being licensed only and is not sold or transferred to you. Your use of the Software is provided pursuant to a revocable, domestic, limited, non-transferable, non-sublicensable, and non-exclusive license from us to you. This license will be revoked by us if your membership expires or is terminated. You have no other rights in or to the Software other than your right to use it as set forth in this Agreement. Any rights not expressly granted to you under this Agreement are reserved by us.
The Software and certain features of it may at times be inaccessible or inoperable for any number of reasons, including but not limited to: (a) Equipment, software, or communications malfunctions; (b) personnel or third party issues; (c) maintenance, repairs, or updates; (d) administrative, technical, or other reviews which we may undertake as we deem in our sole discretion to be necessary or appropriate; or (e) causes beyond our control.
The Software is only accessible and fully functional after you create an account with a password and provide certain information about you and Your Vehicle. It is your responsibility to provide complete and accurate contact, vehicle, and other information and to timely update it when necessary.
You will: (a) be solely responsible to choose a unique and strong password and to keep it secure and confidential; (b) not allow any other person to use your password to gain access to the Software and your account; (c) be solely liable and responsible for all actions taken by the user of your password and account; and (d) promptly notify us if your password has been compromised and you are unable to change or reset it through the Software.
You are solely responsible for providing, maintaining, and ensuring compatibility of the Software with the device(s) on which you use it, including but not limited to hardware, any software and applicable updates, and internet access connections. While we attempt to enable the Software’s features to operate across different platforms, we do not warrant or guarantee that all features will be accessible, operable, or functional at all times.
All or portions of the Software and our content, with the exception of any Member Content that you submit to us as set forth in Section 24, are solely and exclusively proprietary to and owned by us, and are protected by intellectual property laws and/or treaties, including, but not limited to, copyright, trademark, service mark, and patent laws. Your Member Content will continue to be owned by you or whatever party owned it prior to its submission and your use of the Software.
You agree to use our Software for your own individual personal and non-commercial use only. You shall not copy, duplicate, display, transmit, distribute, modify, or prepare derivative works for any other non-personal purpose, whether commercial or otherwise, unless we give you prior express written consent by a properly authorized SPARQ representative.
You agree not to copy, duplicate, mirror, sell, resell, lease, rent, distribute, redistribute, retransmit, republish, or exploit for any commercial or for-profit purposes, or any other purpose that is not your own personal purpose, any portion of the Software, its use, access to it, or the services that we provide through it.
You agree not to: (a) bypass or circumvent the home page of our Site and “deep-link” to any other websites, applications, or software; (b) frame our content within another website, application, or software, or in any other media; (c) display any page from our Site within a separate window or screen that is not the actual SPARQ website; or (d) otherwise simulate the appearance or function of our Site.
(a) Distribution Platforms. You understand and acknowledge that our App is made available to you and obtained on third-party digital software distribution platforms (collectively, “Platforms”) including but not limited to Apple’s App Store, the Samsung Galaxy Store, Google Play, etc. This Agreement is between you and SPARQ only, and not with a Platform or any of its subsidiaries, affiliates, or partners. We and not a Platform are solely responsible for the App, its operation, functionality, and content.
(b) Platform Agreements. Platforms may require you to enter into and comply with applicable third-party Platform agreements and licenses (collectively, “Platform Agreements”) when obtaining and using the App. You and SPARQ acknowledge and agree that the Platforms and their subsidiaries are third-party beneficiaries of our Agreement. Upon your acceptance of our Agreement a Platform will have the right, and will be deemed to have accepted the right, to enforce this Agreement against you as a third party beneficiary, as well as any other rights that it has pursuant to its own separate Platform Agreements with you and your independent duties and obligations to the Platform.
(c) Third-Party Beneficiaries. Unless expressly stated or authorized by us, only a Platform and no other third party shall have the right to enforce any provision of this Agreement or otherwise be deemed a third party beneficiary of this Agreement.
(d) Claims Against Third Parties
Platforms. You acknowledge and agree that it is SPARQ and not a Platform which is responsible for addressing any of your legal or other claims relating to the App or your possession and/or use of it, including but not limited to: (i) Product liability claims; (ii) any claim that the App fails to conform or comply with applicable legal or regulatory requirements; (iii) claims arising under consumer protection or similar laws; or (iv) claims arising out of intellectual property infringement or misappropriation, including but not limited to patent, copyright, trademark, and other proprietary rights, as well as rights of privacy or publicity.
Contact. Any questions, complaints, or claims pertaining to the App (or Site) should be directed to firstname.lastname@example.org
(e) Outside Website Links. Our Software may at times provide links to other websites maintained and/or owned by third parties. We do not operate or control said websites or any content, products, or services found on them. Providing a link does not imply any endorsement, sponsorship, affiliation, or relationship with SPARQ. We make no express or implied warranties of any kind, including but not limited to the quality, fitness, or merchantability of said content, products, or services, or as to the accuracy, completeness, intellectual property status, or whether such third party sites are free from viruses or other malicious code. We are not responsible or liable for any content of whatever nature that is found on third party sites.
(a) Updates. Unless required by applicable law, we are not obligated to provide any maintenance, support, and/or software updates for the Software; however, from time-to-time we may make available a new version of the App or provide updates, patches, upgrades, modifications, functional improvements, enhancements, revisions, error fixes, or changes to the App (collectively, “Updates”). Depending upon your device’s settings, features, or the Platform from which you obtained the App, these Updates may be installed on your device automatically and in the background at any time without express notification to you. Said Updates may also result in you or the device owner incurring additional data charges from your telecommunications or access provider when connecting to the internet to receive the data. You acknowledge that the Platform from which you obtained the App also has no obligation to maintain and provide maintenance or support for it. We are solely responsible for providing said maintenance and support, as may be necessary or desirable in our sole discretion, or as may be provided under applicable law.
(b) Consent. You understand and acknowledge that Updates may be necessary to maintain compatibility with the Software and may be required for security, legal, intellectual property, Platform compliance, or other reasons. You consent to receive such Updates as often as we deem necessary to provide them if they are downloaded and installed automatically, and agree that if the process does not occur automatically, such as on the App in particular, you will routinely check for updates from the Platform and download and install them manually.
(c) Features and Functionality. Our Updates may add, remove, change, or modify features or functionality at our sole discretion. If you decline to install an Update, you may be unable to continue accessing or using the App, some of its features, or certain aspects of our services.
You will not use, implement, or employ, or directly or indirectly aid, encourage, or solicit anyone else to use, implement, or employ any automated or manual device, process, code, or program (e.g., robot, spider, scraper, spyware, malware, etc.) designed to monitor, observe, track, gather, aggregate, copy, alter, modify, disrupt, expropriate, or transmit any of the content or data uploaded to or used by the Software. You further agree that you shall not use, implement, or employ, or directly or indirectly aid, encourage, or solicit anyone else to use, implement, or employ any automated or manual device, process, or program that interferes or attempts to interfere with the operation of the Software in any manner.
You will not bypass, circumvent, impair, or render inoperable any aspect, function, or feature of our Software or hire, retain, or direct any third party for the express or implied purpose of doing so.
Unless proscribed by applicable law, you are prohibited from actually or attempting to reverse engineer, decompile, defeat license encryption or other security or digital management features (if any), or disassemble the Software or otherwise derive its source code (collectively, “reverse engineer”), or allow any third party which you hire, retain, control, or direct to do so (including but not limited to making the Software accessible or available to such a party for reverse engineering). If applicable law grants you the right to reverse engineer the Softwarenotwithstanding this express prohibition, and to the extent that the following qualifications are permitted by applicable law, either in whole or in part, you must provide us with:
(a) Express written notice of your intention to reverse engineer;
(b) Reasonably detailed information regarding your intended method of reverse engineering, your purpose for doing so, and the specific legal authority which allows you to do so; and you must give us a reasonable period of time prior to engaging in any reverse engineering so that we may properly and fully evaluate your method, the activity you plan to undertake, and if necessary, to take steps to preclude your need to reverse engineer the Software, or otherwise legally challenge said proposed reverse engineering and initiate action with the proper legal authorities (collectively, “legal challenge”). Steps that we may take, in our sole discretion, include but are not limited to providing you with certain information needed to achieve interoperability of the App with another software program for a reasonable fee, which will not exceed the actual costs incurred for such reverse engineering activities, and on reasonable terms and conditions. You must refrain from any reverse engineering until such time as any legal challenge is actually and permanently resolved in your favor. If we provide you with interoperability Information:
(i) You must use said information only for the purpose of achieving interoperability of the App with another software program;
(ii) You must not disclose or disseminate said information to any third party to whom it is unnecessary to disclose without our prior express written consent; and
(iii) You must not use said information to create any software, application, or device which is substantially similar to, contains primary features of, mirrors, or functions like the Software.
We allow you to submit information, data, and content about Your Vehicle to us through the Software, including but not limited to images and text (collectively, “Member Content”). By so doing, and in accordance with applicable law, you must:
(a) Currently possess or have obtained all necessary intellectual property rights and/or licenses of whatever nature, including but not limited to copyright and any other proprietary rights, to the Member Content and its use by you;
(b) Not violate any rights of privacy, publicity, confidentiality, or privilege, or other rights which may prohibit release or disclosure of the Member Content to us; and
(c) Grant us a non-exclusive, royalty-free, fee-free, irrevocable, sublicensable, perpetual, and transferable license to copy, modify, create derivative works, distribute, transmit, store, retain, and otherwise use the Member Content for our services, including after expiration or termination of this Agreement.
You are solely responsible for any and all acts and omissions that occur while you use the Software, as well as when using our service. You agree not to engage in any unacceptable use, which includes but is not limited to use of the Software or our service to:
(a) post, disseminate, store, or transmit unsolicited messages, chain letters, pyramid schemes, or unsolicited commercial e-mail (also known as “spam”);
(b) post, disseminate, or transmit material that, to a reasonable person, may be abusive, obscene, pornographic, defamatory, harassing, discriminatory, grossly offensive, vulgar, threatening, or malicious;
(c) post, disseminate, or transmit material that encourages, incites, or glorifies violence, bloodshed, suicide, or self-harm;
(d) post, disseminate, store, or transmit files, graphics, software, code, material, or other content that violates or allegedly violates the legal rights of others, such as actually or potentially infringing the copyright, trademark, patent, trade secret, intellectual property rights, or rights of privacy or publicity of any person, or instruct any person how to do so;
(e) post, disseminate, or transmit any false, fraudulent, untrue, or deceptive information to us or anyone else;
(f) create a false or misleading identity or to otherwise attempt to mislead any person as to the identity or origin of any content, communication, data, or post;
(g) impersonate any person or entity, including, but not limited to, a SPARQ employee, agent, or contractor;
(h) imply or state that you are affiliated with or endorsed by SPARQ without our prior express written consent;
(i) export, re-export or permit downloading of any content in violation of any export or import law, regulation or restriction of the United States and its agencies or authorities, or without all required approvals, licenses, or exemptions;
(j) interfere, disrupt, or attempt to gain unauthorized access to other passwords, user authentications, accounts, or personal information of the Software or to any other computer network;
(k) restrict, impair, or inhibit any other user in its use of the Software, its features, or services;
(l) establish or execute any form of network monitoring that will intercept, monitor, or gather data;
(m) probe, scan, or test the vulnerability of the Software or network, or breach security or authentication measures without prior express written authorization from us;
(n) post, disseminate, store, or transmit viruses, trojan horses, worms, or any other malicious code or program;
(o) harm or attempt to harm minors in any way;
(p) solicit personal information from anyone under eighteen (18) years of age;
(q) solicit, post disseminate, or transmit any confidential or allegedly confidential information or trade secrets;
(r) interfere with, cause congestion or generate traffic on, or disrupt the Software or the servers or network connected to provide service to the Software;
(s) provide or post instructional information about illegal or unlawful activities;
(t) stalk, bully, intimidate, or harass another person;
(u) intentionally or unintentionally violate any applicable local, state, national or international law;
(v) engage in commercial activities involving the Software or our services without our prior express written permission;
(w) Access the Software using any automated and non-manual means (such as robots, botnets, scrapers, etc.);
(x) engage in or attempt to engage in any other activity deemed by us, in our sole discretion, to be unacceptable when using the Software or our services.
No failure or delay by us in enforcing this policy on one or more occasions constitutes a waiver of it or of any right or remedy available to us. If any provision, or any part thereof, of this policy is deemed to be invalid, illegal, or unenforceable, it shall be disregarded and the remaining portions of the policy or provision shall be enforceable to the fullest extent permitted by law. If any part of this Section shall for any reason be found to be excessively broad as to scope, activity, or subject matter, it shall be interpreted to extend over the maximum scope, activity, or subject matter as allowed by law to the fullest extent possible.
In addition to any other representations and warranties contained in this Agreement, you represent and warrant the following: (a) You are over eighteen (18) years of age; (b) you have the right, power, and authority to enter into and perform your obligations under this Agreement; (c) you have the legal right to authorize service and repairs for Your Vehicle through legal ownership, leasing rights, or express authorization from the vehicle owner; (d) You will not use our Software for any unacceptable uses, as set forth in Section 25; and (e) You will not use our Software or services to violate any federal, state, or local law.
THE SOFTWARE, YOUR MEMBERSHIP, AND OUR SERVICES ARE PROVIDED “AS IS,” “AS AVAILABLE,” WITH ALL FAULTS, AND WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. USE OF THE SERVICE IS AT YOUR SOLE RISK. WE DISCLAIM AND MAKE NO WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO:
(a) ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE;
(b) THAT THE SOFTWARE OR SERVICES PROVIDED BY US WILL MEET YOUR REQUIREMENTS OR NEEDS;
(c) THAT THE SOFTWARE AND ANY TRANSMISSIONS SENT OR RECEIVED BY YOU TO OR FROM US WILL BE TRANSMITTED SECURELY, UNINTERRUPTED, ACCESSIBLE, OR ERROR-FREE;
(d) THAT THE SOFTWARE OR CERTAIN FUNCTIONS WILL ALWAYS BE OPERATIONAL WHEN YOU USE OR ATTEMPT TO USE IT; AND
(e) THAT ANY INFORMATION, DATA, OR OTHER CONTENT OBTAINED FROM THE SOFTWARE OR FROM US OR FROM ANY THIRD PARTY WILL BE ACCURATE, RELIABLE, COMPLETE, FREE FROM VIRUSES OR OTHER MALICIOUS CODE, OR FREE FROM ANY CLAIMS OF INFRINGEMENT OF ANOTHER PARTY'S INTELLECTUAL PROPERTY RIGHTS, OR RIGHTS OF PRIVACY OR PUBLICITY.
NO ADVICE OR INFORMATION OBTAINED BY YOU FROM US, WHETHER IN ORAL, WRITTEN, OR ELECTRONIC FORM, RELATING TO THIS AGREEMENT OR YOUR USE OF THE SOFTWARE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THIS AGREEMENT.
NOTHING CONTAINED IN THIS SECTION SHALL ALTER, IMPACT, OR OTHERWISE AFFECT A MANUFACTURER’S ORIGINAL WARRANTY ON ANY VEHICLE PARTS THAT WE REPLACED IN YOUR VEHICLE.
UNDER NO CIRCUMSTANCES SHALL WE BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, OR PUNITIVE DAMAGES FOR ANY MATTER ARISING FROM OR RELATING TO THIS AGREEMENT, THE SOFTWARE, YOUR MEMBERSHIP, OUR SERVICES, OR THE INTERNET GENERALLY, INCLUDING BUT NOT LIMITED TO:
(a) YOUR USE OR INABILITY TO USE THE SOFTWARE OR OUR SERVICES;
(b) ANY CHANGES TO THE SOFTWARE OR ITS INACCESSIBILITY;
(c) ANY DELAY, FAILURE, UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY TRANSMISSION, CONTENT, OR DATA;
(d) ANY CONTENT OR DATA TRANSMITTED OR RECEIVED, OR NOT;
(e) ANY CONTENT OR DATA ACCESSED ON, THROUGH, OR DUE TO THE SOFTWARE; AND
(f) ANY ACTIONS, MEASURES, OR OMISSIONS TAKEN OR NOT TAKEN BY YOU IN RELIANCE UPON SUCH CONTENT OR DATA;
THIS LIMITATION OF LIABILITY APPLIES WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT, OR OTHERWISE. SOME STATES PROHIBIT THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THIS MAY NOT APPLY TO YOU.
YOUR SOLE AND EXCLUSIVE REMEDY SHALL BE TO TERMINATE YOUR USE OF THE SOFTWARE AND SERVICE. NOTWITHSTANDING THE PRECEDING LANGUAGE, IF WE ARE FOUND TO BE LIABLE FOR ANY REASON, OUR TOTAL LIABILITY TO YOU IS EXPRESSLY AND SOLELY LIMITED TO THE AMOUNT OF YOUR MOST RECENTLY PAID ANNUAL FEE FOR A SINGLE VEHICLE AND THE COST OF ALL YOUR PAID VEHICLE PARTS, IF ANY, FOR YOUR MOST RECENT MEMBERSHIP YEAR, AND SHALL NOT EXCEED THAT AMOUNT.
WE HAVE UNDERTAKEN OUR OBLIGATIONS AND ENTERED INTO THIS AGREEMENT IN RELIANCE UPON THE LIMITATIONS OF LIABILITY AND THE DISCLAIMER OF WARRANTIES AS SET FORTH HEREIN, AND THAT THE SAME FORM AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. YOU AGREE THAT THE LIMITATION OF LIABILITY AND DISCLAIMERS CONTAINED IN THIS AGREEMENT WILL SURVIVE AND APPLY EVEN IF FOUND TO HAVE FAILED OF THEIR ESSENTIAL PURPOSE.
You agree to indemnify, hold harmless, and defend us, our directors, employees, attorneys, and agents from and against any action, cause, claim, damage, debt, demand or liability, including reasonable costs and attorney's fees, asserted by any person, arising out of or relating to: (a) this Agreement and/or any breach or alleged breach by you thereof; (b) Your use of the Software, including any Member Content or other content transmitted, posted, obtained, relied upon, or received by you; (c) any unacceptable or objectionable use of the Software or our services, as we determine in our sole discretion; (d) any negligent, willful, or intentional misconduct by you; and (e) as otherwise provided in this Agreement.
(a) Our Changes. We may modify, amend, or change (collectively, “change”) this Agreement at any time and in our sole discretion. We will notify you of such changes by announcing and posting the amended Agreement within the Software or provide a link to it if you are already a user. By continuing to use the Software and our services after we notify you of changes to this Agreement, you will be deemed to have expressly accepted and agreed to those changes. If you do not accept them, you will not be able to use the Software and our services and will be deemed to have terminated the Agreement, pursuant to Section 8(a).
(b) Your Attempted Changes. No attempted change made by you shall be binding upon us unless it is made in writing, expressly stated by us to be a change to this Agreement, and signed by an authorized representative of SPARQ with express authority. The receipt of any information from us regarding a question or comment from you about this Agreement, its terms and conditions, or the Software itself does not change or modify the Agreement.
If the performance of any part of this Agreement by either party is prevented, hindered, delayed, or otherwise made impracticable by reason of any flood, earthquake, significant adverse weather conditions, riot, insurrection, rebellion, mass violent acts, fire, contamination, blackout, discontinuation of electricity supply, judicial or governmental action, domestic or foreign hostilities, labor disputes, inability to obtain goods or services, embargo, pandemic, epidemic, plague, act of God, or any other causes beyond the control of either party, that party shall be excused to the extent that it is prevented, hindered, or delayed by such causes.
If any one or more of the provisions contained in this Agreement, or part of any provision, shall for any reason be found to be invalid, illegal, or unenforceable in any respect, said finding shall not affect the remaining provisions or parts thereof, which shall be enforceable to the fullest extent permitted by law. If any provision of this Agreement shall for any reason be found to be unlawfully broad as to duration, scope, activity, or subject matter, it shall be interpreted to extend over the maximum period of time, range, scope, activity, or subject matter as allowed by law to the fullest extent possible.
Any failure or delay by us to insist on strict compliance with any of the terms, covenants, or conditions in this Agreement, or the partial exercise thereof, or any course of dealing or actions with respect thereto, shall not at any time be deemed a waiver. Nor shall any waiver or relinquishment of any right or power by us one or more times be deemed such at any other time(s). Any and all such rights are expressly reserved by us.
(a) Mediation and Arbitration. All actions, claims, or disputes (collectively, “disputes”) of any nature between you and us arising out of, in connection with, or relating to: this Agreement, our services, your installation and use of the Software, or any course of dealing between you and us relating to the Software or our services, shall be submitted to binding arbitration in Boston, Massachusetts pursuant to the Commercial Arbitration Rules (“Rules”) of the American Arbitration Association (“AAA”); however, both parties agree that prior to engaging in arbitration, they shall first submit the dispute to mediation in Boston, Massachusetts administered by the AAA pursuant to its Commercial Mediation Procedures in a good faith attempt to resolve the dispute. The cost of the mediation shall be borne equally by you and us, but each party shall otherwise solely bear its own costs and attorney’s fees associated therewith.
(b) Selection of Arbitrator. A single arbitrator shall be selected as set forth in the Rules. The arbitrator shall be duly and currently admitted and licensed to practice law in Massachusetts (e.g., attorney, judge, or magistrate, whether active or retired) and shall be in good standing. The arbitrator shall provide an oath or undertaking of impartiality to the parties prior to the commencement of any arbitration.
(c) Arbitration Award. The arbitration award shall: (1) Be accompanied by a reasoned opinion of appropriate length and detail; (2) include findings of fact and conclusions of law; (3) cite all legal authority relied upon by the arbitrator; and (4) include a detailed and particularized breakdown as to specific claims.
(d) Appeal. Within thirty (30) days of receipt of any arbitration award and/or decision (collectively “award”) by either party, which shall not be binding if an appeal is taken, any party may notify the AAA of an intention to appeal to a second arbitrator, chosen in the same manner as set forth in Subsection (b) herein. The second arbitrator shall be entitled to adopt the initial award as its own, modify it, nullify it, or substitute its own award, but shall only do so if there are clear errors of law or clear factual errors committed by the first arbitrator. Said award shall be in the same form as set forth in Subsection (c) herein, to the extent applicable. The award of the appeal tribunal shall then be final and binding, and judgment may be entered by any court having jurisdiction thereof, as set forth in Section 39.
(e) Arbitration Cost. The parties shall equally share the first arbitration fee but shall otherwise each solely bear its own costs and attorney’s fees associated therewith. If a party appeals pursuant to Subsection (d), the second arbitration fee shall be borne solely by the party initiating the appeal, but each party shall otherwise solely bear its own costs and attorney’s fees associated therewith. If, however, each party appeals separate aspects or claims of the award, then the second arbitration fee shall be borne equally by the parties.
(f) Equitable Relief. Notwithstanding anything contained in this Section, and without waiving any right or remedy under it, we may seek injunctive and/or other equitable relief that we believe, in our sole discretion, is necessary to protect or preserve our rights or property pending the selection and establishment of the arbitral tribunal, solely and exclusively in a court of competent jurisdiction located in Suffolk County, Massachusetts.
(g) Other Legal Action. If you initiate a lawsuit against us in court despite agreeing to arbitrate as set forth in this Agreement, and if we successfully compel arbitration as a result thereof, then you must pay us all of our attorney’s fees and costs incurred in enforcing this Section. You further agree that you must make such non-refundable payment to us before arbitration is initiated by you, or before you initiate or bring any claims, crossclaims, or counterclaims against us or against any third party should we initiate arbitration first, as the case may be.
(h) Class Actions. You specifically and expressly waive any rights to participate in, and will not participate in, any class or collective action of any nature against us, our affiliates, or agents, whether such action or claim is filed in arbitration or court. You may only bring an individual arbitration action against us and will not join any other party, group, or class.
This Agreement is governed by the laws of the Commonwealth of Massachusetts, excluding its conflicts-of-law provisions. The parties are required to mediate and arbitrate any disputes pursuant to Section 38, but any disputes shall be brought solely and exclusively in a court located in Suffolk County, Massachusetts. You irrevocably submit and consent to the exercise of personal jurisdiction over you by a court in Massachusetts. You also irrevocably waive all objections which you may now or hereafter have to the exercise of said jurisdiction by a Massachusetts court and to the venue of any such suit or proceeding, even if this results in a waiver or relinquishment by you of certain remedies, claims, or causes-of-action which you could have obtained or asserted in a different jurisdiction. Nothing contained in this Section shall be deemed to waive mediation or arbitration. This Section shall not limit or impair either party’s ability to enforce an arbitration award in any jurisdiction where said award can be domesticated, recognized, or enforced.
In order to avoid irreparable injury to us, in the event of any breach or threatened breach by you of certain provisions of this Agreement, we shall be entitled to the broadest possible injunctive and/or other equitable relief in court restraining such breach or threatened breach. We shall not be required to prove actual damages or post any bond or other security or collateral, which you shall stipulate to, waive, and not otherwise contest. This Section shall not diminish, affect, or impair any other remedies that are available to us.
You may not assign or delegate this Agreement or any of your rights or obligations hereunder. Said attempted assignment or delegation shall be null, void, and of no legal force or effect.
Notice will be deemed to be delivered to you when sent to the e-mail address that you provided to us when creating an account to use the Software, or as otherwise updated by you through the Software. We also reserve the right to provide notice to you via mail, courier, or through social media or other electronic means, as deemed appropriate in our sole discretion. When you use our Software and send e-mails and other electronic communications to us, you consent to receive communications from us electronically, such as e-mails and other notices. You agree that all agreements, notices, and other communications we provide to you electronically satisfy any legal requirement that such communications be in writing, unless expressly prohibited by law.
The respective rights and obligations of the parties under Sections 2(d), 7, 15 through 19, 21 through 31, 36 through 40, and 43 through 44, all of which are inclusive, and as otherwise provided or reasonably construed in this Agreement, shall survive any termination, breach, or expiration of this Agreement.
The headings and sequential order of the sections contained in this Agreement are for convenience and reference only and shall have no substantive or procedural effects in construing the provisions of this Agreement.