Acceptance: Openbay, Inc. (Openbay) owns and operates the website www.openbay.com (Site). Openbay owns and operates an online marketplace platform for automotive service (Marketplace). Openbay develops, operates and distributes certain mobile software applications (Apps). Openbay also develops, operates and distributes certain software as a service platform (SaaS). The Site, Marketplace, Apps and SaaS, together with the referral, matching, service quoting and appointment services, and the data collection, storage, analysis and reporting tools, functions and services, that are provided by the Site, Marketplace, Apps, and/or SaaS are collectively referred to as the Service.

The Service is offered and provided subject to acceptance without modification of all of the terms and conditions contained herein (Terms of Service). The Terms of Service shall be deemed to include all other operating rules, conditions, policies and procedures that are referred to herein or that may otherwise be published by Openbay, from time to time, at the Site, Marketplace, via any App (collectively, Policies), or via any SaaS platform, including without limitation, the Privacy Policy and Copyright Policy.

IF YOU DO NOT AGREE TO ALL OF THESE TERMS OF SERVICE, OR IF YOU ARE NOT ELIGIBLE OR AUTHORIZED TO ENTER INTO THIS AGREEMENT, THEN DO NOT REGISTER FOR, DOWNLOAD, ACCESS OR USE THE SERVICE. DOWNLOADING ANY APP, COMPLETING OUR REGISTRATION PROCESS OR OTHERWISE ACCESSING OR USING ALL OR ANY PART OF THE SERVICE WILL CONSTITUTE ACCEPTANCE OF, AND CREATE A LEGALLY ENFORCEABLE CONTRACT UNDER WHICH YOU AGREE TO BE BOUND BY, ALL OF THESE TERMS OF SERVICE, WITHOUT MODIFICATION.

Updates: Openbay reserves the right, at its sole discretion, to update, modify or replace the Terms of Service (including any Policy), in whole or in part, at any time. Openbay will use reasonable efforts to notify you of any material change in advance of the effective date of any change. Change notices may be communicated by postings at the Site, on the Marketplace, via the Apps, via SaaS platform, e-mail or otherwise. In any case, you should periodically check the Policies and other Terms of Service for changes. Continued access or use of the Service following any change to the Terms of Service constitutes your acceptance of those changes. The Terms of Service may not otherwise be amended, as they apply to you, except by a written agreement executed by you and Openbay.

Openbay may modify, suspend or terminate the Service (including without limitation, the Site, marketplace, any App, or SaaS), in whole or in part, at any time.

Eligibility: The Service is intended by Openbay to be made available to individuals of all ages. However, if you are under the age of 18, you should review these terms of service with your parent or guardian to make sure that you or your parent or guardian understand the terms contained in these terms of service. The Service is intended by Openbay to be made available only to individuals who are at least 18 years old. If you do not qualify, then you are prohibited from downloading, accessing, using and registering for the Service. Openbay will not collect personally identifiable information from any person who is actually known to us to be under the age of 13. If we become aware that a person under 13 has provided personally identifiable information, Openbay will take steps to remove such information and terminate that individual’s account, access and use of the Service.

Openbay may refuse to offer or continue offering the Service to any person and may change its eligibility criteria from time to time.

Registration: The Service may be accessed several ways: by visiting the Site directly; or by using a web plug-in that is made available to you by Openbay; or by using an App that is downloaded from Openbay (or a Channel Partner), which then communicates with Openbay’s web servers; or by using a widget that is made available to you by a Channel Partner, which operates or otherwise connects to Openbay’s web servers (and which may operate within a frame or wrapper provided by the Channel Partner). The term Channel Partner means any Internet publisher, website operator, reseller, distributor or other third party who is authorized to drive user traffic, or facilitate access, to the Service pursuant to arrangements with Openbay.

Regardless of how you access the Service, to ensure the integrity of the Service, you must complete an account registration process and provide Openbay with current, complete and accurate information, as more specifically required by then current registration procedures and operational prompts.

By way of illustration and not limitation, you may be required to provide the following information in order to establish your account and register for and use the Service: name, address, telephone number, e-mail address, vehicle information (make, model, year, mileage and VIN), username, password and certain preferences and permissions (such as, for example, preferred contact method). You are required to maintain and update your registration data from time to time, to ensure that it is always current, complete and accurate.

Openbay may refuse to accept your application to register for the Service, in its sole discretion. Upon acceptance, Openbay will establish access credentials for your account. You are solely responsible for maintaining the confidentiality of your access credentials and other account information, and you will be solely liable for any and all activities under your account. You agree to notify Openbay immediately of any unauthorized use of your account or any other breach of security related to the Service.

Vehicle Services on Openbay: The Service includes the ability for users to investigate, compare service estimates, book appointments, purchase vehicle maintenance services, mechanical repair services, roadside assistance, vehicle transportation and related services (Vehicle Services) from certain dealerships, independent repair shops and independent contractors (Automotive Service Businesses, Towing Companies & Vehicle Transportation Companies). Based on your query, Openbay will solicit service estimates on your behalf from automotive service businesses, Towing Companies or Vehicle Transportation Companies that are willing to provide for your requested Vehicle Services. If you elect to accept any such an estimate for Vehicle Services and book an appointment with the applicable business, Towing Company or Vehicle Transportation Company then you will be required to provide valid Credit Card Information (cardholder name, card number, expiration date and security code), which will be verified by Openbay’s service provider (merchant bank) before your Vehicle Service is confirmed.

Vehicle Services on Openbay+: The Service includes the ability for users to investigate, compare service estimates, book appointments, purchase vehicle maintenance services, mechanical repair services, roadside assistance, vehicle transportation and related services (Vehicle Services) from certain dealerships, independent repair shops and independent contractors (Automotive Service Businesses, Towing Companies & Vehicle Transportation Companies). Based on your query, Openbay will solicit service estimates at a discount on your behalf from automotive service businesses, Towing Companies or Vehicle Transportation Companies that are willing to provide for your requested Vehicle Services.

For clarity, all Vehicle Services are provided by the applicable automotive service business, Towing Company or Vehicle Transportation Company, not Openbay. Accordingly, Vehicle Services are not deemed to be within the scope of the Service offered and provided by Openbay, and Openbay (and its Business Partners, other than the applicable automotive service business, Towing Company or Vehicle Transportation Company) have no obligation or liability regarding Vehicle Services.

As a result of its limited role as an intermediary between you and the Vehicle Service providers, Openbay has no control over the quality, timeliness, price, guarantees, risks or damages related to Vehicle Services. Therefore, you agree, in connection with any use of the Service resulting in the purchase and performance of Vehicle Services: (a) to release Openbay (and its Business Partners, other than the applicable automotive service business, Towing Company or Vehicle Transportation Company from any and all claims, demands, damages and liabilities, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such Vehicle Services (including any disputes arising therefrom); and (b) to attempt to settle any dispute directly with the applicable Vehicle Service provider.

Fees and Payments: Except as expressly provided otherwise in the Terms of Service, Openbay and each user is solely responsible for all of its costs and expenses related to the Service.

At this time, as a vehicle owner you may access and use the Service without charge. In the future, Openbay may decide to charge for certain Apps or other features of the Service (or to change the price charged for such Apps and features), in which case you will be notified of that change. Should you elect to obtain any such fee-bearing App or feature, you hereby agree to pay all applicable fees, in the amounts, at the times and subject to any other conditions established for that App or feature. Such fees may be specified on a recurring basis (e.g., subscription or usage fees) or non-recurring basis (e.g., one-time fees).

You are solely liable for the cost of Vehicle Services you receive. The price for Vehicle Services (including any applicable taxes) will be established by the applicable automotive service business, as set forth in the offer you accepted (or as increased or decreased as a result of changes in the scope of Vehicle Services to which you and the automotive service business have agreed). You hereby agree that Openbay may immediately charge the full and final price to your credit card after the automotive service business notifies Openbay that the Vehicle Services have been completed. After receipt of payment from your credit card, Openbay will retain a service fee and pay the remainder to the automotive service business, in accordance with the arrangement between them.

Unless specified otherwise, all amounts due hereunder shall be paid in US dollars, in immediately available funds by credit card, in full without set-off, counterclaim or deduction. Any amount not paid when due shall bear a late payment charge until paid at the rate of 1.5% per month or the maximum amount permitted by law, whichever is less. If any payment is past due, Openbay shall have the right to take whatever action it deems appropriate (including without limitation, suspending or terminating your access and use of the Service). You agree to reimburse Openbay for all reasonable costs and expenses (including attorneys’ fees) incurred in collecting payments.

---

Subscription Services (Service Advisor, Otis):

The Service includes an automated online service request and quoting platform (Openbay Service Advisor) and an AI (artificial intelligence) powered messaging platform (Openbay Otis).

Service Providers subscribing to Openbay Service Advisor and/or Openbay Otis Quoting Services can accept requests and issue quotes themselves or Openbay can accept and quote on the Service Provider’s behalf. The requests for service can originate from the Service Provider’s own website or from Openbay’s marketplace depending on the subscription plan chosen.

Openbay may modify the subscription service from time to time, including by adding and deleting functions in an effort to improve your experience. But we will not make changes to the subscription service that materially reduce the functionality of the subscription service provided to you during the subscription term.

Fees & Payments for Subscription Services: Unless otherwise indicated on a form referencing these Terms all charges associated with your access to and use of the Subscription Services “Subscription charges” are due monthly upon commencement of your subscription term or, with respect to a plugin, at the time that such plugin is made available to customer via email. Subscription charges are non-refundable. There will be no refunds or credits for partial service periods, upgrade/downgrade refunds, or refunds for service periods unused with an open account.

Subscription fees for Openbay Service Advisor and Openbay Otis will remain fixed during the subscription term unless you (i) upgrade products or (ii) subscribe to additional features. Where a price change applies to you we will charge you under the new price structure starting with the next billing period in the subscription term.

Payment by credit card or other forms of payment. You authorize us to charge your credit card for all fees payable during the subscription term. You further authorize us to use a third party to process payments.

Publicity: You grant us the right to add your name and company logo to our customer list and website.

Customer Data: Aggregate Data. We may monitor use of the subscription service by all of our customers and use the data gathered in an aggregate and anonymous manner provided that such information does not incorporate any customer data and/or identify you.

---

Privacy Policy:

The most current Privacy Policy will apply to any and all use of the Site, marketplace, Apps and other aspects of the Service. Openbay will not intentionally edit, modify, delete or disclose the contents of your registration data or other User Data in connection with the Service unless (a) reasonably necessary for Openbay (or its service providers) to operate the Service, including processing your requests and appointments for Vehicle Services, (b) to communicate with Business Partners, (c) otherwise permitted under the Privacy Policy or other Terms of Service, (d) Openbay reasonably believes that such action is necessary (i) to conform or comply with any legal, regulatory, law enforcement or similar requirement or investigation, (ii) to protect or defend the rights or property of Openbay or any third party or (iii) to enforce the Terms of Service or (e) otherwise authorized by you.

User Data and Analytics: The Service collects, stores, processes and analyzes User Data and produces Analytics. Accordingly, whenever you interact with the Service, a variety of technologies are employed to automatically or passively collect User Data.

The term User Data means all data and information that are provided by you during registration and subsequent use of the Service (including queries related to obtaining Vehicle Services), and all other data and information about you that are otherwise discerned or collected by Openbay based on your access and use of the Service. For clarity, User Data includes, but is not limited to: browser or device type; operating system; time of day; identification of the page served and preceding page views; use of particular Service features or applications (such as, for example, viewing or responding to advertisements); registration data; vehicle information; geographic location; Vehicle Service histories.

The term Analytics means user profiles and statistics, metrics, abstractions and other analyses that are based on or derived from your use of the Service and User Data, which are developed in the aggregate with other data or which are developed in a manner that does not disclose your identity or User Data (unless in aggregated or anonymized form).

You hereby authorize Openbay to use your User Data and to exploit Analytics in the manner and for the purposes described in these Terms of Service, including without limitation: to use User Data to communicate with you; to include, copy, disclose, distribute, transmit and display User Data in communications that you have initiated via the Service; to access, record, collect, copy, store, process, analyze and use User Data to provide the Service (including to solicit offers for Vehicle Services from Mechanics and to confirm appointments); to develop, improve, extend and test the Service (and underlying technology platform); to design, develop and produce Analytics; and to disclose, distribute and transmit User Data and/or Analytics to Channel Partners, Mechanics, advertisers, advertising networks, content distributors and other of Openbay’s customers, service providers and business partners (collectively, Business Partners).

Notwithstanding the foregoing, Openbay does not record or store your Credit Card Information. Credit Card Information is provided to and retained by Openbay’s merchant bank, where it is used solely for the purpose of verification and validation, and for charging payments for completed Vehicle Services.

User Generated Content: The Service may include discussion forums or other communications features, through which users may publicly post and/or exchange content and information they think may be of interest to other users based on their use of the Service (such as, for example, reviews and ratings regarding Vehicle Services) and other related subjects (collectively, User Content). You agree not to post or distribute any confidential User Content or other information that you desire (or are required) to keep secret.

Openbay does not undertake to pre-screen, authenticate, validate, monitor, moderate or edit any User Content. However, Openbay and its agents have the right, at their sole discretion, to remove in whole or in part, at any time, any User Content that, in Openbay’s judgment, does not comply with the Terms of Service or otherwise appears to be harmful, objectionable or inaccurate. Openbay is not responsible for any failure or delay in removing any such content.

Because Openbay does not review the substance of User Content, or other user-to-user communications via the Service, you must be careful in dealing with other users to avoid unintended consequences. You acknowledge that information provided by users may, despite the prohibitions set forth in the Terms of Service, be harmful, inaccurate or deceptive. Authentication of the true identity of remote (Internet or mobile) users is difficult, and so Openbay cannot and does not confirm that each user is the person who they claim to be.

Openbay is not involved in user-to-user dealings and, therefore, in connection with any use of the Service, you agree: (a) to release Openbay (and its affiliates, licensors, Channel Partners and other Business Partners) from any and all claims, demands, damages, liabilities, costs and expenses, of any type and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way related to your use of the Service (including any disputes with other users); and (b) to attempt to settle any dispute directly with such other user or other third party. However, this release is not intended to waive any legal claim you may have against any Mechanic for defective Vehicles Services.

User Rules and Conduct: The Site, Apps and all other aspects of the Service are provided only for your personal, noncommercial use. Any unauthorized use of the Service (including without limitation, accessing any aspect of the Service for which you are not authorized, or any commercial use by you, such as, for example, reselling any App, Content or Vehicle Services) is expressly prohibited. You are solely responsible for all acts or omissions that occur under your account, username or password, including applicable User Content posted to or transmitted via the Service.

As a condition of use, you hereby promise not to use the Service for any purpose that is unlawful, or that is commercial in nature (such as, for example, raising money, or advertising or promoting any product, service, pyramid scheme or other venture) or that is prohibited by the Terms of Service, or for any other purpose not reasonably intended by Openbay. You agree to abide by all applicable local, state, national and international laws, regulations and rules.

By way of example, and not limitation, you agree not to (a) take any action or (b) upload, post, submit or otherwise distribute or facilitate distribution of any User Content (including text, software, photographs, videos, audio, sound recordings, data or other information) using any communications service, discussion forum, survey, feedback, App or other aspect of the Service, in any manner, that:

• is unlawful, deceptive, misleading, fraudulent, threatening, abusive, harassing, libelous, invasive of another’s privacy, tortious, obscene, pornographic, profane or which otherwise violates the Terms of Service;
• infringes any patent, trademark, trade secret, copyright, right of publicity, privacy right or other right of any person or entity;
• reveals any confidential, proprietary or other information that you are required to keep secret, including without limitation, non-public information about any business;
• discovers or reveals any personal information about another individual, including another person’s name, address, phone number, e-mail address, credit card information or any other information that could be used to track, contact or impersonate that person, unless such information has been provided by that person in any public communication or forum;
• constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (“spamming”), chain letters or any form of lottery or gambling;
• imposes an unreasonable or disproportionately large load on Openbay’s computing, storage or communications systems and networks, or attempts to gain unauthorized access to the Site, any App or other aspect of the Service (including the underlying technology platform), someone else’s User Data, accounts, computer systems or networks connected to the Service, through password mining or otherwise;
• contains software viruses or any other computer codes, files or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware or network system or to damage or obtain unauthorized access to any system, data or other information of Openbay or any Business Partner or other third party;
• registers for or creates user accounts by any automated means or under false or misleading pretenses, including by the use of a false, misleading or disguised e-mail address;
• harvests, scrapes or collects any information from the Service;
• uses any script, bot or other automated means that only simulates compliance with the Terms of Service or other requirement applicable to the Service;
• disguises the source of User Content; or
• impersonates any person or entity, including any employee or representative of Openbay or any Business Partner.

Openbay may, at its sole discretion, immediately suspend or terminate your access to the Service should your conduct fail (or appear to fail) to strictly conform to any provision of this section.

Openbay has no obligation to monitor the Service or any user’s use thereof. However, Openbay reserves the right at any time and without notice to monitor, review, copy, retain or disclose any information as may reasonably be necessary to satisfy any applicable law, regulation, legal process or governmental request or investigation (including any inquiry from law enforcement).

Connections: You may be able to obtain an App, access the Service and/or communicate with the Service from, and you may be able to link or communicate from the Service to, applications, devices and websites owned and operated by automotive service businesses, Channel Partners, advertisers or other Business Partners. These other applications, devices and websites are not operated or controlled by Openbay, and you agree that Openbay is not responsible for the availability, accuracy, legality, appropriateness or any other aspect of the content or function of such applications, devices and websites. Any such connection to or from the Service does not constitute or imply any guarantee or endorsement by Openbay of that application, device or website or any association with its operators. Additional or different terms and conditions (including without limitation, privacy and security practices) apply when you access and use such other applications, devices and websites.

Advertising and Promotions: The Service may include advertisements and promotions for and offers from Openbay, Business Partners and other third parties. Advertisements may be displayed adjacent to or included with User Content, or may include User Content. You are not entitled to any compensation for any such advertisement or information.

Openbay reserves the right, for itself and on behalf of its Business Partners, to deliver advertisements, promotions and offers to you in conjunction with your use of the Service and to utilize your device’s processor and storage resources for this purpose. Advertisements, promotions and offers may be contextual, meaning they were selected for delivery to you based on criteria that are related to your use of the Service (such as, for example, User Data like your current location or type of vehicle, or Analytics derived from your usage). Any opt-out that you provide regarding direct marketing communications will not apply to the delivery of advertisements. In addition, you may receive advertising and promotional information or offers as a result of responding to prompts or advertisements rendered by the Service.

Except for Vehicle Services, any and all of your dealings with advertisers and other third parties via the Service, and your participation in promotions and offers, including the delivery of and the payment for goods and services, and any other terms, conditions, representations, warranties and remedies, associated with such dealings, promotions and offers, are solely between you and the applicable third party. Openbay is not responsible or liable for any such dealings, promotions or offers.

Proprietary Rights: The Service (including the Site and Apps), and all content, materials, data and other information created by or for Openbay (or its affiliates, licensors or Business Partners) and made available via the Service (collectively, Content), are protected by copyrights, trademarks, service marks, patents, trade secrets or other proprietary rights and laws, and Openbay (and its applicable affiliates, licensors and Business Partners) shall own and retain all rights, title and interests (including all intellectual property and proprietary rights) therein and thereto. Unless and only to the extent expressly authorized by Openbay, you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works of any part of the Service or Content. However, unless the Service states or implements a different restriction, you may download, reproduce or transmit a reasonable number of copies of Content for your personal, noncommercial purposes; provided that you retain all copyright and other proprietary notices contained therein. Your systematic retrieval of data or other Content from the Service to create or compile, directly or indirectly, a collection, database or directory is strictly prohibited without Openbay’s express prior written permission.

IMPORTANT: If you desire to access or use the Service or Content for any purpose other than personal, noncommercial reference, then you must first secure permission from Openbay or other owner of that Content.

Reproducing, copying or distributing any App, or any Content, or any design elements from the Site or any App, for any other purpose is strictly prohibited without Openbay’s express prior written permission. Attempting to access or use the Service or Content for any purpose not expressly permitted in the Terms of Service is prohibited.

License: Provided You comply with all terms and conditions of these Terms of Service, Openbay grants You a revocable, limited, non-transferrable license to use the service on any iPhone or Android phone that You own or control and as permitted by Usage Rules set forth in the App Store Terms and Conditions or the Google Play Terms of Service, whichever is relevant.

User Content License: If you upload, post, submit, transmit or otherwise distribute User Content of any kind using the Service, then you:

• agree to grant and do hereby grant to Openbay and its affiliates and licensees a non-exclusive, transferable, perpetual, irrevocable, royalty-free, worldwide right and license to: use, reproduce, publicly display, publicly perform, adapt, collect, modify, delete from, distribute, transmit, promote and make derivative works of the User Content, in any form and media, solely for the purposes of offering, providing, marketing, advertising and promoting the Site, Apps and other aspects of the Service (including without limitation, being exported under content sharing arrangements with Business Partners); and to permit third parties to use your User Content; and
• represent and warrant that all User Content includes appropriate attribution to the copyright owner; and
• represent and warrant to Openbay that you own or otherwise control all necessary rights to such User Content and that public disclosure, transmission and use of the User Content by Openbay (including without limitation, publishing content via the Service) will not infringe or violate the rights of any third party; and
• acknowledge and agree that User Content is intended to and will be made available to and used by other users, and by Openbay and its Business Partners.

IMPORTANT: You agree not to contribute any User Content unless you have all of the rights (including rights from the copyright owner) necessary to grant Openbay the foregoing use license, and to satisfy all of the warranty requirements described above.

The Service may (but is not obligated to) provide you with the ability to remove some or all of your User Content. Following any such removal, Openbay will use commercially reasonable efforts to discontinue its further display, performance and distribution of such User Content; provided, however, you acknowledge and agree that Openbay may continue using such User Content in the same manner and for the same purposes as it did prior to removal of such content (such as, for example, as used in any advertising created prior to removal) and that Openbay shall have no responsibility or liability in respect of any further use of User Content that was previously exported by Openbay or shared with other users via the Service or that was downloaded or copied by other users to other websites, systems and devices.

Cellular or Wireless Service: The Service transmits data via your wireless carrier or accessible Wi-Fi network. Openbay is not responsible or liable for any data charges associated with the use of any Service. The service may occasionally be restricted, interrupted or discontinued due to conditions such as, but not limited to: app design, network coverage, government regulation, or other situations beyond Openbay’s control. The Service transmits data regarding Your GPS location. You may turn off Location Services for the Service and no data will be collected during this time.

Feedback License: If you provide Openbay with any idea, recommendation or other suggestion regarding possible corrections, improvements or extensions related to the Service (collectively, Feedback), in any form or by any means (whether through the Service, or by direct communication (e.g., e-mail) with Openbay or any of its officers, directors, employees, representatives, agents or Business Partners), then you:

• represent and warrant that the Feedback does not include your own or any third party’s confidential or proprietary information; and
• acknowledge and agree that Openbay is under no obligation of confidentiality, express or implied, with respect to the Feedback; and
• agree to grant and do hereby grant to Openbay and its affiliates and licensees a non-exclusive, transferable, perpetual, irrevocable, royalty-free, worldwide right and license to use, modify and make derivative works of the Feedback, in any manner, in any media and for any purpose, and to permit third parties to do the same.

Termination: Openbay may immediately terminate your access to all or any part of the Service (including without limitation, any App) at any time, with or without cause, with or without notice. If you elect to terminate your registration and account, you may do so at any time by sending an email (that includes your email address) to <ahref=”mailto:[email protected]”>[email protected].</ahref=”mailto:[email protected]”>

Upon any termination, all rights and obligations of the parties under these Terms of Service shall cease, and you shall immediately stop accessing and using the Service, except that (a) all obligations that accrued prior to the effective date of termination (including payment obligations) and all remedies for breach of the Terms of Service shall survive, (b) Openbay will reasonably cooperate with completing any Vehicle Services booked prior to termination (including collecting and distributing payments), (c) Openbay may retain and use non-personally identifiable User Data and (d) the provisions of the section entitled Advertising and Promotions, and all following sections herein, shall survive. After termination, Openbay has no obligation to maintain any User Data or User Content or to forward any unread or unsent messages to you or to any other user or third party.

No Warranties: THE SITE, APPS, CONTENT AND ALL OTHER ASPECTS OF THE SERVICE ARE PROVIDED “AS IS” AND “AS AVAILABLE”. THE SITE, APPS, CONTENT AND ALL OTHER ASPECTS OF THE SERVICE ARE PROVIDED WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ALL IMPLIED WARRANTIES OF ACCURACY, INTEGRATION, TITLE, NON-INFRINGEMENT, QUIET ENJOYMENT, MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, AND ALL WARRANTIES IMPLIED BY ANY COURSE OF PERFORMANCE OR USAGE OF TRADE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. OPENBAY AND ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS DO NOT WARRANT THAT: (A) ANY INFORMATION WILL BE TIMELY, ACCURATE, RELIABLE OR CORRECT; (B) THE SERVICE WILL BE SECURE OR AVAILABLE AT ANY PARTICULAR TIME OR PLACE; (C) ANY SERVICE DEFECTS OR ERRORS WILL BE CORRECTED; (D) THE SERVICE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS; OR (E) ANY RESULT OR OUTCOME CAN BE ACHIEVED. USE OF THE SERVICE IS SOLELY AT YOUR OWN RISK.

ALL REPRESENTATIONS AND WARRANTIES REGARDING ANY VEHICLE SERVICES SHALL BE, IF AT ALL, ONLY AS EXPRESSLY AGREED BETWEEN YOU AND THE APPLICABLE MECHANIC.

Limitation of Liability: You agree that Openbay (and its affiliates, licensors and Business Partners) shall not be responsible or liable for any unauthorized access to, alteration or use of your account, transmissions or data, or for any material or data sent or received or not sent or received through the Service. You agree that Openbay (and its affiliates, licensors and Business Partners) shall not be responsible or liable for any threatening, defamatory, obscene, offensive, illegal or other content or conduct of any user or any user’s infringement of another’s rights, including intellectual property rights, rights of publicity or privacy rights.

IN NO EVENT SHALL OPENBAY (OR ITS AFFILIATES, LICENSORS AND BUSINESS PARTNERS) BE LIABLE CONCERNING ANY SUBJECT MATTER RELATED TO THE SITE, APPS, CONTENT OR OTHER ASPECTS OF THE SERVICE, REGARDLESS OF THE FORM OF ANY CLAIM OR ACTION (WHETHER IN CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE), FOR ANY (A) MATTER BEYOND ITS REASONABLE CONTROL, (B) LOSS OR INACCURACY OF DATA, LOSS OR INTERRUPTION OF USE, OR COST OF PROCURING SUBSTITUTE TECHNOLOGIES, GOODS OR SERVICES, (C) INDIRECT, PUNITIVE, INCIDENTAL, RELIANCE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES INCLUDING, BUT NOT LIMITED TO, LOSS OF BUSINESS, REVENUES, PROFITS OR GOODWILL, OR (D) DAMAGES, IN THE AGGREGATE, IN EXCESS OF AMOUNTS YOU PAID TO OPENBAY FOR THE SERVICE OR US$100.00, WHICHEVER IS GREATER, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OPENBAY’S MAXIMUM LIABILITY FOR ANY CLAIM OR ACTION RELATED TO ANY VEHICLE SERVICES SHALL NOT EXCEED THE SERVICE FEE RETAINED BY OPENBAY FOR THE VEHICLE SERVICES GIVING RISE TO YOUR DAMAGES. THESE LIMITATIONS ARE INDEPENDENT FROM ALL OTHER PROVISIONS OF THIS AGREEMENT AND SHALL APPLY NOTWITHSTANDING THE FAILURE OF ANY REMEDY PROVIDED HEREIN.

SOME STATES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.

Indemnification You agree to (a) defend Openbay, its affiliates, licensors and Business Partners, and their officers, directors, employees, contractors and representatives (Indemnitees) against any action or suit by a third party that arises out of any transaction or other dealings between you and any other user or Business Partner, your use or misuse of the Service, or your breach of any of your representations, warranties or covenants under the Terms of Service and (b) indemnify the Indemnitees for liabilities (resulting from settlements or judgment awards), costs and expenses (including without limitation, reasonable attorneys’ fees) related to such claims. In addition, Openbay reserves the right to assume the exclusive defense and control of any matter subject to the foregoing indemnity, in which event you will assist and cooperate with Openbay in asserting any available defenses.

Governing Law; Arbitration: A printed version of the Terms of Service and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to the Terms of Service (including any Policy) to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You and Openbay agree that any claim or cause of action arising out of or related to the Service must be commenced within 1 year after the claim or cause of action arose. Otherwise, such a claim or cause of action is permanently barred.

The Terms of Service shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, USA, excluding its conflicts of law rules. In the event of any conflict between US and foreign laws, regulations and rules, US laws, regulations and rules shall govern. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to the Terms of Service.

Except that either party may seek an injunction or other equitable relief from any court of competent jurisdiction, all disputes between the parties arising out of or in relation to or in connection with the Terms of Service shall be settled by binding arbitration in accordance with the JAMS streamlined arbitration rules and procedures then in force, by one neutral arbitrator appointed in accordance with the rules. The arbitration shall take place in Boston, Massachusetts, USA. The proceedings shall be in English, all evidence shall be in English (or translated into English) and the governing law shall be as set forth herein. The arbitrator’s decision shall be in writing and shall comply with all terms and conditions in the applicable version of the Terms of Service. The decision and award rendered shall be final and binding on both parties. The parties acknowledge and agree that the Terms of Service and any award rendered pursuant hereto shall be governed by the UN Convention on the Recognition and Enforcement of Foreign Arbitral Awards. Judgment on the award may be entered in any court of competent jurisdiction.

Use of the Service is not authorized in any jurisdiction that does not give effect to all provisions of the Terms of Service, including without limitation, this section.

Integration: These Terms of Service (including the then current Policies) are the entire agreement between you and Openbay with respect to access, use and operation of the Service, and supersede all prior or contemporaneous communications, proposals and agreements (whether oral, written or electronic) between you and Openbay with respect to the Service. If any provision of the Terms of Service is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that the Terms of Service will otherwise remain in full force and effect and enforceable.

General Provisions: Your rights and obligations under the Terms of Service are personal to you, and are not assignable, transferable or sublicensable by you except with Openbay’s prior written consent. Openbay may subcontract, delegate, assign or otherwise transfer any or all of its rights and obligations hereunder without your consent. All waivers, consents and modifications must be in a writing signed by both parties, except as otherwise provided herein. No agency, partnership, joint venture, or employment relationship is created as a result of the Service or Terms of Service, and neither party has any authority of any kind to bind the other in any respect. All notices under these Terms of Service will be in writing, in English and will be deemed to have been duly given when received, if personally delivered or sent by certified or registered mail or express courier, return receipt requested; when receipt is electronically confirmed, if transmitted by facsimile or e-mail.

---

Openbay Trust and Safety Policies:

Our policies are designed to create a trustworthy and safe environment for all Openbay constituents. If any member is found violating these policies they may be asked to leave Openbay effective immediately.

Automotive Service Providers

All Automotive Service Providers in the Openbay network are required to adhere to the following policies:

Basics

All service providers affirm they meet the following qualifications

• Must be insured
• Must be ASE, Manufacturer or Mechanical certified or otherwise qualified to perform the services
• Must have been in business for six months and carry insurance
• Must offer parts and/or service warranty

All service providers are held to certain industry standards when it comes to the repairing, upgrading, or adjustment of the operating motor parts of a vehicle. Service providers found violating of any of the following will be liable for additional charges and repairs that may occur:

• Failure to fully repair broken or worn parts
• Installing the wrong replacement part
• Performing the wrong procedure
• Failing to notice major repairs that need to be done (i.e improper inspection and diagnosis)
• Causing damage to the engine or other parts during the work
• Modifying the operating parts in a way that makes the car illegal to operate on public roads
• Failing to remove scraps, debris, dirty fluids, or other foreign objects during the repair procedure, to the extent relevant to and reasonable in connection with such procedure

Communication

Service providers in the Openbay network are required to respond to the following communications within the timeframe given during working hours. Any service provider who has not participated in any of the below activities or logged in within a 90-day period will be removed from the Openbay Network.

• Messages – Service providers are required to respond to Messages within 2 Hrs
• Appointments – Service providers are required to respond to Appointments within 2 Hrs

Hateful, offensive, profane, vulgar language, or other non-professional behavior directed at Openbay vehicle owner and staff will not be tolerated. Any service provider found violating this policy may suffer a range of actions including but not limited to removal of messaging capabilities, limiting quoting abilities and or account suspension.

Service providers are prohibited from communicating with vehicle owners concerning Openbay transactions outside the Openbay platform or encouraging vehicle owners to do so. For the avoidance of doubt, the foregoing prohibition on communications concerning Openbay transactions (1) does not limit service provider from making any communications that are required by applicable law; and (2) does not limit service providers in their other communications, including but not limited to marketing communications, with vehicle owners, including but not limited to existing customers of service provider.

Quote Accuracy

Quote misrepresentation will not be tolerated. Quotes for service provided to the vehicle owner must be accurate based on details provided by vehicle owner regarding vehicle make/repair requested.

The service provider must honor the price and services displayed upon the scheduling of a vehicle owner appointment. Any necessary changes to price or service must be edited, communicated and agreed upon prior to scheduling.

The service provider must review any and all pricing changes from the initial quote with the vehicle owner prior to initiating incremental work. If this does not occur, the service provider is liable for incremental charges.

All communication regarding quote accuracy and service is required to take place via the Openbay Messaging system. Openbay will not be held liable for any communication, contracts or services rendered without written agreement or approval via the Openbay Messaging system.

Should the service provider’s standard labor rates and/or parts pricing change, this must be updated in the Openbay Automated quotes entries within 21 days of the change. If not, the service provider will be held to their quoted price.

Taxation

All Service Providers are responsible for collecting and remitting sales tax based on the requirements of their jurisdiction. Mobile mechanics are responsible for complying with the taxation requirements where they provide service.

Stripe Connected Account Agreement

As a condition of Openbay enabling payment processing services through Stripe, you agree to provide Openbay accurate and complete information about you and your business, and you authorize Openbay to share it and transaction information related to your use of the payment processing services provided by Stripe solely for purposes of processing payments in connection with this Agreement.

Openbay Fees

To help operate the Openbay platform, including services like confirming a service appointment and credit card processing, Openbay charges a service fee to service providers when an automotive service is completed for a customer that Openbay delivered to the service provider. The fee is based on the final customer invoice and is automatically deducted from the customer’s payment on the Openbay platform for services rendered.

Account Suspensions and Cancellations

In the event that an individual service provider location is found to be violating any of the above policies, Openbay will consult a service provider representative to address violations. Openbay will not unilaterally suspend or cancel individual locations.

Automotive Vehicle Owners

All Vehicle Owners requesting service through the Openbay network are required to adhere to the following:

Basics

• The vehicle owner must provide valid and complete contact information including email address, phone number and vehicle make, model and trim. Incorrect vehicle information may result in inaccurate quotes
• All communication between service providers and vehicle owners must take place through the Openbay messaging system. Any communication including quotes, scheduling or repairs taking place outside of Openbay Quotes or Messaging will exempt the Service from the Openbay Guarantee and Policies.

Communication

• Hateful, offensive, profane, vulgar language or other non-professional behavior directed at service providers in the Openbay Network and Openbay staff will not be tolerated. Any vehicle owner found violating this policy may suffer a range of actions including but not limited to removal of messaging capabilities, limiting the ability to request service and/or account suspension.
• Vehicle owners are prohibited from sending direct contact information in the form of phone numbers, emails or addresses via the Openbay Messaging, Quote or Appointment systems to service providers.
• All messaging between the vehicle owner and service provider must occur through Openbay’s messaging system to allow the vehicle owner support team to quickly handle and resolve issues that may arise with the request.

Quote

• The vehicle owner will be provided a quote based on information provided in the request for service. Openbay and its network of service providers are only responsible to provide quotes based on the information the vehicle owners have submitted in the service request.
• The vehicle owner is obligated to pay for all service performed on their vehicle, including additional services quoted by the repair shop and accepted by the vehicle owner or added by the vehicle owner after the initial quote. The vehicle owner may decline services, prior to the initiation of the work.

Payment

• All payments must be updated and/or processed through Openbay prior to a vehicle owner leaving a service provider location after service. Openbay is not liable for any price disputes once a vehicle owner has left a service provider’s location.
• Openbay is not liable for any upcharges, cancellation fees, and any other payment dispute that could occur if service is booked or updated outside of Openbay.
• It is against Openbay policy for a service provider in the Openbay Network to take payment directly from the vehicle owner. If the service provider insists on taking payment directly, vehicle owners should email [email protected] or call 888-601-0399 as soon as possible.
• Cancellation fee: A $25 cancellation fee will be charged if the booked appointment is cancelled within 4 hours of the booked appointment date/time.

Account Suspensions and Cancellations

• Any vehicle owners found to be violating any of the above policies will be susceptible to Openbay’s Account Suspensions and/or Cancellation process. All Suspensions and/or Cancellations will be evaluated on a case by case basis

Openbay’s Commitment to You, the Vehicle Owner:

• All personal information is stored safely and securely in the Openbay platform and will never be shared with outside 3rd parties.
• All Credit Cards will be pre-authorized and a “hold” will be placed for the amount of service upon vehicle owner booking. Openbay will never process a payment prior to having a vehicle owner’s service completed unless due to Cancellation Policy violation.
• Openbay’s highest priority is our ability to have successful interactions. There are many events, from natural disasters to power outages that can disrupt quoting and messaging features on Openbay. If a lengthy outage occurs, an email will be sent to our members notifying them of the issue.
• Openbay appreciates any and all ideas for making the platform a better experience. Please submit your feedback and ideas to [email protected]
• Please note: Openbay diligently tracks all communications and transactions between parties. This is for both your protection and ours should any issues arise. Any communication including quotes, scheduling or repairs taking place outside of Openbay Quotes or Messaging will exempt the Service from the Openbay Guarantee and Policies.

Automotive Repair Shops

• During business hours, Openbay will respond to any and all questions and concerns from repair shops within four hours.
• Repair shops requesting payment via mailed check will receive payment within two weeks (typically four-five business days) following service completion.
• Repair shops requesting direct deposit will be issued payment upon completion of service (some banks may take up to 3 business days to show funds).
• Repair shops are the backbone of Openbay and they need to be able to use the platform with confidence. Because of this, Openbay has policies in place for how customers can and should use the platform, and consequences for when they don’t.
• If you believe a customer has violated one of the policies please email [email protected] or call 888-601-0399 as soon as possible.

Customers (Vehicle Owners)

• During business hours, Openbay will respond to any and all questions and concerns from customers, with active service requests, within four hours.
• Openbay is committed to finding vehicle owners the best repair shop for their auto repair and maintenance needs. All repair shops within the Openbay network go through a vetting process. Should your experience be anything less than positive with Openbay or one of our repair shops, please email [email protected]
• If you believe a repair shop has violated one of Openbay’s policies, please email [email protected] or call 888-601-0399 as soon as possible.
• As a Repair Shop or Customer you are responsible for reviewing and understanding Openbay’s policies, as well as all applicable laws and regulations outlined in the Openbay Terms and Conditions.

---

Terms Required by Apple:

In the event that you obtain any App through the Apple App Store, offered by Apple, Inc. (Apple), then the following shall apply:

1. Both you and Openbay acknowledge that the agreements in the Terms of Service are concluded between you and Openbay only, and not with Apple, and that Apple is not responsible for the App;
2. You will only use the App in connection with an Apple device that you own or control;
3. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App;
4. In the event of any failure of the App to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, paid for the App;
5. You acknowledge and agree that Openbay, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the App;
6. You acknowledge and agree that, in the event of any third party claim that the App or your possession and use of the App infringes that third party’s intellectual property rights, Openbay, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
7. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
8. Both you and Openbay acknowledge and agree that, in using the App, you will comply with any applicable third party terms of agreement which may affect or be affected by such use;
9. Both you and Openbay acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms of Service, and that upon your acceptance of the Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce the Terms of Service against you as the third party beneficiary hereof; and
10. In the event you use the App to provide you with real-time route guidance, YOUR USE OF THIS REAL TIME ROUTE GUIDANCE APPLICATION IS AT YOUR SOLE RISK. LOCATION DATA MAY NOT BE ACCURATE.

---

Copyright and Trademark Notices: 

The Terms of Service, all Apps and all Content provided by Openbay are copyright © 2013-2020 Openbay, Inc. and/or its licensors or suppliers.

OPENBAY is the trademark of Openbay. The names and logos of companies, products or services mentioned at the Site and in any App may be the trademarks or service marks of their respective owners, and shall not be deemed to create any endorsement or association between Openbay and such owners.

All rights not expressly granted herein are reserved.

Pursuant to Title 17, United States Code, Section 512(c)(2), notifications of claimed copyright infringement should be made according to the instructions provided at www.openbay.com/terms_of_service (the Copyright Policy).