This Platform Agreement ( “Agreement”) is entered into by and between you and Auto Monkey, LLC (“Auto Monkey”). This Agreement governs your access to and use of our platform available at www.TheAutoMonkey.com the Auto Monkey mobile application, social media groups, pages and platforms and any content contained therein (collectively “Platform”).
PLEASE READ THIS AGREEMENT CAREFULLY BEFORE USING THE PLATFORM. BY USING THE PLATFORM, YOU ACCEPT AND AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. IF YOU DO NOT WISH TO BE BOUND BY THE TERMS OF THIS AGREEMENT, PLEASE DO NOT USE THE PLATFORM.
AUTO MONKEY MAY, IN ITS SOLE DISCRETION, REVISE AND UPDATE THIS AGREEMENT AT ANY TIME. ALL CHANGES ARE EFFECTIVE IMMEDIATELY WHEN POSTED. YOUR CONTINUED USE OF THE PLATFORM FOLLOWING POSTING OF THE REVISED AGREEMENT MEANS YOU ACCEPT AND AGREE TO THE CHANGES. PLEASE CHECK THIS AGREEMENT FREQUENTLY SO YOU ARE AWARE OF ANY CHANGES.
THE RELATIONSHIP BETWEEN AUTO MONKEY AND YOU IS THAT OF INDEPENDENT CONTRACTORS. NOTHING CONTAINED IN THIS AGREEMENT CREATES ANY AGENCY, PARTNERSHIP, JOINT VENTURE, OR OTHER FORM OF JOINT ENTERPRISE, EMPLOYMENT, OR FIDUCIARY RELATIONSHIP BETWEEN THE PARTIES, AND NEITHER PARTY HAS AUTHORITY TO CONTRACT FOR OR BIND THE OTHER PARTY IN ANY MANNER WHATSOEVER.
AUTO MONKEY IS NOT YOUR EMPLOYER NOR DOES YOUR USE OF THE PLATFORM CREATE AN EMPLOYER-EMPLOYEE RELATIONSHIP BETWEEN YOU AND AUTO MONKEY. YOU ARE AN INDEPENDENT CONTRACTOR. AS AN INDEPENDENT CONTRACTOR, WHETHER OR NOT YOU CHOOSE TO PROVIDE AUTOMOTIVE REPAIR SERVICES TO CUSTOMERS IS WITHIN YOUR SOLE DISCRETION.
- Automotive Repair Services. The Platform allows users in need of automotive repair services to connect with mobile mechanics to perform automotive repair services. The Platform and all of its content, features, and functionality are owned by Auto Monkey, its licensors, or other providers of such material and are protected by United States and international copyright, trademark, patent, trade secret, and other intellectual property or proprietary rights laws. Except as otherwise set forth herein, Auto Monkey reserves all right, title, and interest in and to the Platform.
- Limited License. As a mobile mechanic authorized to use the Platform to provide automotive repair services to customers, Auto Monkey grants you a limited, revocable, non-exclusive, non-transferable, non-sublicensable license to access and use the Platform for the limited purpose of providing auto repair services to customers, and provide estimates, where essential, using guidelines precisely outlined by Auto Monkey.
You decide when, where and whether (a) you want to provide automotive repair services facilitated by our Platform and (b) you want to accept, decline, or cancel an Automotive Repair Services request; provided, in each case, that you agree not to discriminate against any potential Automotive Recipient or Merchant in violation of defined requirements. Subject to your compliance with this Agreement, you are not required to accept any minimum number of repair order requests in order to access our Platform and it is entirely your choice whether to provide Automotive Repair Services to Auto Monkey Recipients directly, using our Platform, or using any other method to connect with Auto Monkey Recipients, including, but not limited to other platforms and applications in addition to, or instead of, ours. You understand, however, that the experiences Auto Monkey Recipients and Merchants have with your Automotive Repair Services, as determined by Auto Monkey Recipient or Merchant input, may affect your ability to access our Platform to provide Automotive Repair Services. Automotive repair services provided to Auto Monkey Recipients outside the use of our platform automatically negates the Recipients from our warranties, and you agree you are responsible for any warranties, claims, adjustments or other legal actions and requirements required by the Automotive Repair Services Recipient, or their representatives, regardless if the services were provided before, during or after your last automotive repair services engagement with that Automotive Repair Services Recipient in question.
Compliance. You are responsible for identifying, understanding, and complying with (i) all laws (including, but not limited to, the Americans with Disabilities Act and applicable laws governing your collection, use, disclosure, security, processing and transfer of data), rules and regulations that apply to your provision of Automotive Repair Services (including whether you are permitted to provide automotive repair services at all) in the jurisdiction(s) in which you operate your region and (ii) this Agreement collectively, the Requirements. Subject to applicable law, you are responsible for identifying and obtaining any required license (including driver’s license), permit, or registration required to provide Automotive Repair Services. Notwithstanding anything to the contrary in this Agreement, for the avoidance of doubt, your ability to access and use our Platform is at all times subject to your compliance with the Requirements. You agree not to access or attempt to access our Platform if you are not in compliance with the Requirements.
- Payment Processing. Payments to authorized mobile mechanics for automotive repair services are processed by Stripe, a third party payment processor, and are governed by the terms and conditions for such processing services made available to you on Stripe.com through Stripe’s Connect program. Auto Monkey expressly disclaims any and all liabilities resulting from or related to payment processing done through the Platform.
- Disputes. As a mobile mechanic authorized to use the Platform, you are solely responsible for choosing to whom you provide automotive repair services. If you have a dispute with a customer about the automotive repair services you have provided, you must resolve the dispute with the customer directly. You may seek counsel from Auto Monkey Customer Support if desired. Auto Monkey does not control, nor does it have responsibility for, the quality of the automotive repair services provided by a mobile mechanic or the experience provided by a customer receiving those automotive repair services.
- Mechanic. As an authorized mobile mechanic on the Platform, you will not contract for automotive repair services outside of the Platform with any Auto Monkey customer during the term of this Agreement and for a period of one (1) year following its termination. For the avoidance of doubt, your acceptance of cash payments for automotive repair services provided to any Auto Monkey customer is expressly prohibited. Any violation of this section constitutes a material breach of this Agreement and shall immediately entitle Auto Monkey to damages of at least Five Thousand United States Dollars ($5,000.00) per occurrence.
- Parts Suppliers. The use of Auto Monkey’s account at any Parts Supplier is strictly for parts as related to the approved automotive repair order with corresponding purchase order number. Any items invoiced beyond the specified parts in the approved purchase order is strictly prohibited. Violation of this constitutes criminal behavior, which may be prosecuted to the fullest extent of the law. Authorized mechanics on the platform are responsible for their own tools, equipment, or shop supplies that might be used on a job that is beyond the parts and supplies outlined in the customer approved repair request's purchase order.
- Confidential Information. The term “Confidential Information” means any information disclosed by a party to the other party that is reasonably expected to be treated in a confidential manner under the circumstances of disclosure under this Agreement or by the nature of the information itself.
- Exclusions. Notwithstanding the definition of Confidential Information contained herein, neither party shall have any liability to the other party with respect to the disclosure and/or use of Confidential Information that it can establish: (i) has become public knowledge without breach of this Agreement by the receiving party; (ii) was known by the receiving party before receiving such information from the disclosing party; (iii) has become known or available from a source other than the disclosing party without breach of this Agreement by the receiving party; (iv) has been independently developed by the receiving party without use or reference to the disclosing party’s Confidential Information.
- Obligations. Neither party shall disclose the other party’s Confidential Information to any person other than its employees, officers, directors, affiliates, agents and representatives who are bound by obligations of confidentiality and who have a need to know such information in order to perform their obligations in connection with this Agreement.
- Remedies. The unauthorized use or disclosure of any Confidential Information would cause irreparable harm and significant damages, the degree of which may be difficult to ascertain. Accordingly, the parties have the right to obtain immediate equitable relief to enjoin any unauthorized use or disclosure of Confidential Information disclosed by the other party, in addition to any other rights or remedies as may otherwise be available.
- Auto Monkey Trademarks. Auto Monkey, and all related names, logos, product and service names, designs, and slogans are pending trademarks of Auto Monkey. You may not use such marks without the prior written permission of Auto Monkey.
- Third Party Trademarks. All other names, logos, product and service names, designs, and slogans on the Platform are the trademarks of their respective owners. You may not use such marks with the prior written permission of their respective owners.
DATA PRIVACY; FEEDBACK
- Feedback. If you elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with, or related to, Auto Monkey or the Platform, Auto Monkey will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner.
- Term. This Agreement shall continue in force and effect as of the date and time you accept this Agreement until it is terminated.
- Termination. Auto Monkey may terminate this Agreement at any time and for any reason by providing you with notice of Auto Monkey’s termination and termination of the Agreement shall be effective immediately upon Auto Monkey providing said notice.
- Deactivation. Auto Monkey may temporarily deactivate your account to the Platform at any time should Auto Monkey believe you have engaged in, or your account has been used in, activity that is deceptive, fraudulent, unsafe, illegal, harmful to Auto Monkey's brand, business or reputation, or that violates this Agreement.
- Survival. Upon termination of this Agreement, the following sections shall survive: 3 (CONFIDENTIALITY), 5 (DATA PRIVACY; FEEDBACK), 7 (WARRANTIES), 8 (DISCLAIMER), 9 (INDEMNIFICATION), 10 (LIMITATION OF LIABILITY), 11 (INDEPENDENT CONTRACTORS), 12 (NO THIRD-PARTY BENEFICIARIES); 13 (AMENDMENT; WAIVER), 14 (SEVERABILITY), 15, (NOTICES), 16 (GOVERNING LAW), AND 17 (ENTIRE AGREEMENT).
- Authority. You represent and warrant to Auto Monkey that you have the full right, power, and authority to enter into this Agreement.
- Expertise. You represent and warrant that you have all the necessary expertise, experience, tools, equipment, and supplies to provide Automotive Repair Services in compliance with the Requirements and standards applicable to this Platform and the automotive industry.
- Validity. You represent and warrant to Auto Monkey that this Agreement constitutes a legal, valid, and binding obligation on you, enforceable against you in accordance with its terms.
- Law. You represent and warrant to Auto Monkey that you will at all times during the term of this Agreement comply with all applicable laws, rules, and regulations.
- Vehicle. You represent and warrant to Auto Monkey that any vehicle you use to provide automotive repair services under this Agreement will be properly registered, licensed, and suitable for provision of the automotive repair services.
- Insurance. You represent and warrant to Auto Monkey that you process and maintain sufficient automotive repair liability insurance to satisfy the minimum liability coverages required under the law to provide automotive repairs on another person’s vehicle.
- Repair and Safety Protocols. You represent and warrant that you will adhere to all industry standards, state and federal guidelines regarding the service and repair procedures, including the use and wear of personal protective equipment.
- Negligence. Mechanics determined to be negligent while performing automotive repair services can be held financially responsible for any work performed, and any auxiliary repairs that could be considered directly related plus any subsequent work that may be required due to any warranty or negligence related claims. Negligence is defined as not foreseeing reasonable outcomes or circumstances that could have been avoided by providing thorough detail oriented work the first time around. Examples of negligence might be construed as, but not limited to, not properly tightening nuts, bolts, belts or other to manufacturer specifications; installing, repairing or replacing products improperly; not securing, misplacing, or fastening any items per manufacturer guidelines and specifications that would result in further damage to the vehicle or result in product or service warranty claims.
PLATFORM. THE PLATFORM IS PROVIDED “AS IS'' WITHOUT ANY WARRANTY OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, AUTO MONKEY EXPRESSLY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, IN CONNECTION WITH THE PLATFORM INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, AS WELL AS ANY OTHER IMPLIED WARRANTIES ARISING BY OPERATION OF LAW OR FROM COURSE OF DEALING OR USAGE OF TRADE.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU AGREE TO INDEMNIFY, DEFEND, AND HOLD HARMLESS AUTO MONKEY AND AUTO MONKEY’S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS AGAINST ANY AND ALL CLAIMS, ACTIONS, LIABILITIES AND LOSSES ARISING OUT OF OR IN CONNECTION WITH ANY THIRD-PARTY CLAIM, SUIT, LOSSES, ACTION OR PROCEEDING ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR ACCESS AND USE OF THE PLATFORM.
YOU UNDERSTAND AND AGREE THAT YOUR INDEMNIFICATION OBLIGATIONS APPLY EVEN IF SUCH THIRD PARTY-CLAIM CLAIM, ACTION, LIABILITY, OR LOSS ARISES FROM THE GROSS NEGLIGENCE, NEGLIGENCE, BREACH OF CONTRACT, BREACH OF WARRANTY, STRICT LIABILITY, NON-COMPLIANCE WITH APPLICABLE LAW, OR OTHER FAULT OR WRONGDOING OF AUTO MONKEY OR AUTO MONKEY’S AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, AND ASSIGNS.
NOTWITHSTANDING THE FOREGOING, NOTHING CONTAINED HEREIN SHALL BE CONSTRUED TO REQUIRE ANY INDEMNIFICATION THAT WOULD RENDER OR MAKE THIS SECTION, IN WHOLE OR IN PART, VOID OR UNENFORCEABLE UNDER APPLICABLE LAW.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL AUTO MONKEY BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL LOSS OR DAMAGE OF ANY KIND, ARISING OUT OF OR IN CONNECTION WITH THE PLATFORM WHETHER THE CLAIM IS BASED IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, WARRANTY, OR OTHERWISE, EVEN IF AUTO MONKEY HAS KNOWLEDGE OF THE POSSIBILITY OF THE LOSS OR DAMAGE.
WITHOUT LIMITING THE FOREGOING, IN NO WAY WILL AUTO MONKEY’S LIABILITY TO YOU EXCEED ONE HUNDRED UNITED STATES DOLLARS ($100.00) IN THE AGGREGATE, EVEN IF THIS REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OF THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.
The relationship between the parties is that of independent contractors. Nothing contained in this Agreement creates any agency, partnership, joint venture, or other form of joint enterprise, employment, or fiduciary relationship between the parties, and neither party has authority to contract for or bind the other party in any manner whatsoever.
NO THIRD-PARTY BENEFICIARIES
Except for the right of an indemnified party to enforce their indemnification rights hereunder, this Agreement solely benefits the parties and nothing in this Agreement, express or implied, confers on any other person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
No waiver by any party of any of the provisions hereof will be effective unless explicitly set forth in writing and signed by the waiving party. Except as otherwise set forth in this Agreement, no failure to exercise, or delay in exercising, any rights, remedy, power, or privilege arising from this Agreement will operate or be construed as a waiver thereof; nor will any single or partial exercise of any right, remedy, power, or privilege hereunder preclude any other or further exercise thereof or the exercise of any other right, remedy, power, or privilege.
If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality, or unenforceability will not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
Except as otherwise set forth herein, any notice you provide to Auto Monkey must be given in writing, postage prepaid and return receipt requested, to:
Auto Monkey, LLC
Attention: Legal Department
5329 Emmeryville Ln.
Fort Worth, TX 76244
Any notices provided by Auto Monkey to you will be provided electronically through the Platform or other means including, but not limited to email, text, or SMS.
This Agreement, and all matters arising out of or relating to this Agreement, will be governed by, and construed in accordance with, the laws of the State of Texas, United States of America and the parties irrevocably consent to the non-exclusive jurisdiction of, and venue in, any federal or state court of competent jurisdiction located in Fort Worth, Texas for the purposes of adjudicating any action or proceeding to enforce the terms of this Agreement.
This Agreement constitutes the sole and entire agreement of Auto Monkey and you with respect to the Platform and supersedes all prior and contemporaneous understandings, agreements, representations, and warranties, both written and oral, regarding such subject matter.