Terms of Use
Effective Date: October 8, 2020
International Research Corporation, doing business as National AutoBody Research (“NABR”, “We”, “our”, or “us”) owns and operates NationalAutoBodyResearch.com, LaborRateSurvey.com, LaborRateHero.com, BillableGenie.com, VRSsystem.com, and Certified1Stop.com (collectively, the "Site" or "Sites") for the benefit of users of our services (“You”, “Your”, or “User”). On our Sites we provide hosted tools and processes, such as LaborRateHero or the Variable Rate System ("VRS"), to enable You to create individualized surveys, obtain survey results, obtain beneficial information, and use related services, (collectively “Services”).
Use of the Services and the Site are provided to You subject to the terms and conditions set forth in these Terms of Use (“Terms of Use” or “Agreement”) and our Privacy Policy, which is incorporated herein by reference, and any other rules and policies set forth on this Site. The terms and conditions below and any other rules or policies set forth on this Site comprise the entire agreement between You and NABR and supersede all prior agreements between You and NABR. Please note that we may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when posted and apply to all access to and use of the Services and the Site thereafter. Your continued use of the Services or the Site following the posting of changes means that You accept and agree to the changes. It is Your responsibility to check these Terms of Use periodically for changes, as these changes are binding on You.
1. ACKNOWLEDGMENT AND ACCEPTANCE.
PLEASE READ THE FOLLOWING TERMS OF THIS AGREEMENT CAREFULLY. BY COMPLETING THE SUBSCRIPTION PROCESS, YOU ACCEPT AND AGREE TO ALL OF THE TERMS OF USE SET FORTH IN THIS AGREEMENT AND IN OUR PRIVACY POLICY. THE SERVICES AND THE SITE ARE OFFERED AND AVAILABLE TO USERS WHO ARE OF THE LEGAL AGE TO FORM A BINDING CONTRACT WITH NABR. BY USING THE SERVICES OR THE SITE, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NABR.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR, BY SUBSCRIBING IN THE ONLINE SIGNUP PROCESS THAT REFERENCES THIS AGREEMENT, OR BY YOUR ONGOING USE OF THE SERVICE OR WEBSITE AFTER THE EFFECTIVE DATE OF THESE NEW TERMS, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE LANGUAGE "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT OR PRIVACY POLICY, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES OR THE SITE.
This Agreement was last updated as of the effective date above. It is effective between You and NABR as of the date that You accept this Agreement.
2. USER RESPONSIBILITIES.
These Terms of Use give You important obligations. You agree to the following responsibilities:
We strongly prefer that you do not send us any third party personal information or data, including without limitation that of your consumers or others (collectively, “Personal Data”). If any Personal Data is sent to us, we will use commercially reasonable efforts to promptly remove, redact, de-identify, or destroy such Personal Data from our system after we discover it.
You further acknowledge Your obligation to obtain and document the affirmative consent of any individuals whose Personal Data You share with us. Under no circumstances should any of the following information be sent to us: (1) financial data subject to Payment Card Industry (“PCI”) data security standards such as unredacted credit card or debit card numbers, or other unredacted financial account numbers; (2) any information protected by the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, including Protected Health Information (“PHI”); and (3) certain data such driver’s license number or other unique identifying number including but not limited to social security number.
We reserve the right to deactivate Your account(s) as we deem appropriate or necessary, without notice. You enter and use the Services and the Site at Your own risk. NABR is not responsible for Your activities, surveys, content, results or questions from respondents, other data, or any other information concerning Your use of the Services or the Site. We recommend that You keep track of Your survey results and other data in Your own personal records, as We reserve the right to discontinue Your account(s) or terminate Your access to the Services or the Site at any time. We are not responsible for the deletion of any data that is in or has been added to Your account(s). If a User account remains inactive for a period of 12 months, We may deactivate the account.
3. MODIFICATION TO THE SERVICES OR THE SITE PROVIDED; TERMS OF USE.
You acknowledge and agree that We may, with or without notice, modify or terminate the Services and/or the Site. Modifications of the Services or the Site may include, without limitation, changes to surveys, survey questions, search functionality, data that is displayed, User experience, or any product functionality or other part of the Services or the Site.
Further, NABR may change these Terms of Use from time to time without prior notice, including the fees charged for the Services. You can review the most current version of the Terms of Use at any time at https://www.nationalautobodyresearch.com/terms-of-use/. The revised Terms of Use will become effective upon posting, and if You use the Services or the Site after that date, We will treat Your use as acceptance of the revised Terms of Use. If any change to these Terms of Use is not acceptable to You, Your only remedy is to stop accessing and using the Services and the Site.
4. PRIVACY POLICY.
We value Your privacy and understand Your privacy concerns. Please review our Privacy Policy, which also governs Your access to and use of the Services and the Site, so that You may understand our privacy practices. All information we collect is subject to our Privacy Policy, and by using the Services and the Site, You consent to all actions taken by us with respect to Your information in compliance with the Privacy Policy. You further understand that certain information collected by us may be transferred to the United States and/or other countries for storage, processing and use by NABR and its affiliates. Our Privacy Policy is herein incorporated by reference.
5. PAYMENT TERMS; AUTOMATIC RENEWAL; CANCELLATION.
You agree to pay all charges to Your account, including any applicable taxes, at the rates in effect when the charges are incurred. We may change the fees and charges then in effect, or add new fees or charges, by giving Users advance written notice. You must provide valid credit card information and keep that information current in Your account. NABR does not store credit card numbers or maintain them on file but instead uses secure credit card payment service providers to maintain card numbers and process payments.
We will automatically renew and charge Your account upon every expiration date of Your subscription (either monthly or annually), until You cancel Your subscription. The renewal charge will be equal to the original subscription price, unless We notify You otherwise in advance. You may cancel Your subscription at any time by providing written notice of cancellation at least thirty (30) days before Your subscription renewal date. Any subscription renewals that fall within that thirty (30) day period will be charged as usual, then any further automatic renewals and credit card charges will stop. Thirty (30) days after Your written cancellation notice, Your access to the Site will terminate. NO REFUNDS OF SUBSCRIPTION FEES WILL BE GIVEN.
You agree not to perform any charge-backs with Your credit card company without first providing NABR an opportunity to address any billing issue, customer service issue, or other concern You have related to Your account.
If payment cannot be charged to the credit card You have on file with us, We reserve the right to suspend or terminate Your account and access to the Services. We reserve the right to terminate Your subscription and/or discontinue Services and/or the Site at any time for any reason or for no reason.
If You are accessing pursuant to a subscription, this Agreement remains in effect until Your subscription expires or is terminated, or Your access to the Services and/or the Site has been terminated by us. You may contact us if You at any time wish to terminate Your use of the Services, including due to any disagreement with this Agreement, by a written email to: Support at NationalAutoBodyResearch.com
6. LICENSING.
On the condition that You comply with all Your obligations under this Agreement, we grant You a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access and use the Services, through a generally available web browser, in accordance with this Agreement. Any other use of the Services and the Site is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Services and the Site, and all related items. The VRS is licensed for one auto body shop in a single physical location and is a single User service. Multiple-shop Operators (“MSO”) require a separate license for each separate physical location. EACH SEPARATE STORE REQUIRES THE PURCHASE OF ITS OWN LICENSE; LICENSING FOR ONE OR ONLY SELECT STORES BY A MSO IS NOT ALLOWED AND IS A MATERIAL BREACH OF THIS AGREEMENT. Each license requires a monthly or annual fee. All data, information, and tools in the Site are for the sole use of Your single, licensed location only and may not be shared with anyone outside of Your location. For each license, additional logins are available for additional Users at that same shop location. All Users must be current, full-time employees and must spend at least 31 hours per week working at that location. You may not share logins and passwords with others. You may not share with others any data or information contained in the VRS. Sharing login information or any other VRS data is a violation of this Agreement and may result in immediate account termination and pursuit of damages.
7. CONFIDENTIALITY.
We agree not to use any of Your Confidential Information (defined below) for any purpose except to operate the Services and the Site in accordance with this Agreement. We agree not to disclose any of Your Confidential Information to any third party other than to our employees and consultants who are bound by confidentiality obligations and other applicable law and are required to have access to certain Confidential Information in order to operate the Services and/or the Site. Nothing in this Agreement limits our right to independently develop, acquire or market products, ideas, or businesses, without use of Your Confidential Information.
“Confidential Information” may include solely to the extent entered into the Services or the Site by You, (a) technical information, know-how and other intellectual property, to the fullest extent that such information is maintained as a trade secret by You; (b) confidential marketing strategies; (c) confidential future product plans; (d) confidential financial information (including pricing); and (e) other confidential business information. Confidential Information will not include any information that (i) was publicly known and generally available in the public domain prior to the time of disclosure by You; (ii) becomes publicly known and generally available after disclosure by You through no action or inaction of ours; (iii) is already in our possession at the time of disclosure by You; (iv) is obtained by us from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by us without use of or reference to Your Confidential Information; or (vi) is required by law to be disclosed by us, provided that we give You prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
8. OTHER PROHIBITED USES.
You acknowledge, warrant and agree that:
9. DISCLAIMER OF WARRANTIES.
NABR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICES OR THE SITE AND ALL RELATED COMPONENTS AND INFORMATION, ALL OF WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES AND THE SITE IS AT YOUR SOLE RISK. YOU EXPRESSLY ACKNOWLEDGE THAT THE SERVICES AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT ALLOWED BY LAW, NABR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE CONTENTS OF THE SERVICES OR THE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. NABR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN CONTENT. YOU ACKNOWLEDGE THAT NABR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
NABR IS NOT RESPONSIBLE FOR THE RESPONSES SUBMITTED TO ANY VRS SURVEY OR FOR RESULTS GENERATED BY THE VRS WEBSITE. NABR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RELIABILITY OR ACCURACY OF THE DATA SUPPLIED TO NABR NOR THE RESPONSES OR INFORMATION SUPPLIED BY SURVEY RESPONDENTS IN RESPONSE TO SURVEYS.
NABR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE CONSEQUENCES OF THE USE OF ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS NOR DOES NABR WARRANT THE CORRECTNESS, USEFULNESS, RELIABILITY, ACCURACY OR OTHERWISE OF ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS. NABR IS NOT RESPONSIBLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION OR ANY OTHER LOSS RESULTING FROM USE OF OR RELIANCE IN ANY WAY ON ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS CREATED ON OR THROUGH THE SERVICES OR THE SITE. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY SURVEYS, SURVEY RESPONSES, SURVEY RESULTS OR OTHER INFORMATION RECEIVED WHILE USING THE SERVICES OR THE SITE.
NABR MAKES NO WARRANTY THAT THE SERVICES OR THE SITE WILL MEET YOUR REQUIREMENTS, NOR THAT THE SERVICES OR THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE, ACCURATE OR RELIABLE; NOR DOES NABR MAKE ANY WARRANTY AS TO ANY INFORMATION THAT MAY BE OBTAINED THROUGH THE SERVICES OR THE SITE; NOR THAT DEFECTS IN THE SOFTWARE FOR THE SERVICES OR THE SITE WILL BE CORRECTED; NOR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICES OR THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
NABR MAKES NO WARRANTY REGARDNG ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH OR BASED UPON THE SERVICES OR THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR THE SITE OR THROUGH THE SERVICES OR THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE TO:
(A) INFORM AUTHORIZED USERS (INCLUDING YOURSELF) OF ANY RELEVANT POLICIES AND PRACTICES AND ANY SERVICE SETTINGS THAT MAY IMPACT OUR HANDLING OF PERSONAL DATA, PERSONAL INFORMATION, AND PERSONALLY IDENTIFIABLE INFORMATION;
(B) OBTAIN ANY RIGHTS, PERMISSIONS, OR CONSENTS FROM CONSUMERS, HOUSEHOLDS, INDIVIDUALS, BUSINESSES THAT ARE NECESSARY FOR THE LAWFUL USE OF PERSONAL DATA, PERSONAL INFORMATION, AND PERSONALLY IDENTIFIABLE INFORMATION, AND THAT ARE NECESSARY FOR THE OPERATION OF THE SERVICES AND THE SITE; AND
(C) RESPOND TO AND RESOLVE ANY DISPUTE WITH CONSUMERS, HOUSEHOLDS, INDIVIDUALS, BUSINESSES BASED ON PERSONAL DATA, PERSONAL INFORMATION, AND PERSONALLY IDENTIFIABLE INFORMATION AND/OR COLLABORATE WITH US TO RESPOND TO AND RESOLVE THE SAME AS APPLICABLE LAW MAY REQUIRE.
10. LIMITATION OF LIABILITY.
TO THE MAXIUM EXTENT PERMITTED BY LAW, neither NABR nor any AND ALL of our affiliated companies, OFFICERS, employees, agents, consultants, contractors, members, MANAGERS or AFFILIATES shall be cumulatively liable for: (a) any damages in excess of the greater of either $10 USD or the total amount paid by you to NABR during the six-month period preceding the event giving rise to the alleged liability; or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the ServiceS OR THE SITE, or any of the content or other materials on OR CONNECTED TO THE SERVICES OR THE SITE, OR accessed through or downloaded from NABR. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
A. Apply regardless of whether (1) you base your claim on contract, tort (INCLUDING NEGLIGENCE), statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
B. Not apply to any damage that WE may cause you intentionally in violation of this User Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed in this User Agreement.
11. PROPRIETARY RIGHTS.
NABR owns the content including the graphics, names, text, software, music, videos, sound, pictures, compilations, survey templates, surveys, page layout, design, processes, procedures, magnetic translation, digital conversion or other material contained in the Services and the Site to the extent such content is provided and/or designed by NABR. This content is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. No one may copy, reproduce, distribute in any way, or decompile, reverse engineer or disassemble this content. You are permitted a limited license to use the content of the Services and the Site as authorized herein including to view survey responses and survey results for Your personal use as an end product only, and You must at all times maintain a visible copyright symbol and disclaimer or statement indicating the proprietary rights of NABR on the product, in any form or medium of the product. The copyright symbol and disclaimer should read as follows: © 2020 National AutoBody Research.
You agree to include on NABR proprietary materials, defined as all materials provided to You by NABR, a statement that the materials are proprietary and confidential materials (as the case may be) of NABR to the effect of the following:
THIS DOCUMENT CONTAINS PROPRIETARY AND/OR CONFIDENTIAL MATERIALS OF NATIONAL AUTOBODY RESEARCH (NABR). AND SHALL NOT BE USED, DISCLOSED OR REPRODUCED, IN WHOLE OR IN PART, FOR ANY PURPOSE OTHER THAN TO ASSIST IN THE FAIR AND EQUITABLE SETTLEMENT OF AN AUTOMOBILE COLLISION REPAIR CLAIM, WITHOUT THE PRIOR WRITTEN CONSENT OF NABR. TITLE IN AND TO THESE MATERIALS REMAINS AT ALL TIMES IN NABR.
If space is limited, the disclaimer or statement must be substantially similar in form and content to the language provided for You above.
If You have any questions as to the sufficiency of Your language or our policy on Your use of our proprietary and/or confidential materials, or our proprietary rights, please contact us at [email protected]
While Your account is active, You will have the right to access survey results, related survey data and tools, and You assume the entire risk of disclosing content that You provide us to third parties. Modification or use of our content in any prohibited way is a violation of copyright and other proprietary laws. No one may copy, reproduce, transmit, post, distribute or create derivative works from this Site without our prior express authorization.
12. NO MISAPPROPRIATION OR MISUSE OF NAMES, MARKS, OTHER PROPRIETARY MATERIAL.
You agree not to use, misuse or misappropriate any brand names, trademarks, service marks, patents, images, text or other proprietary material or content that You do not have a legal right to use on or through the Services or the Site. If You use any such proprietary material or content, by doing so, You warrant that You have the legal right and appropriate authority to use the proprietary material or content.
13. LINKS AND ADVERTISERS.
NABR may provide advertising space and/or links and pointers to Internet sites maintained by third parties. NABR has not reviewed all of these third-party sites nor has reviewed the products or services they may provide. NABR is not responsible for nor does it endorse the contents or any products or services of such third parties or their sites. NABR DOES NOT CONTROL ANY INFORMATION, PRODUCTS OR SERVICES OFFERED OR SUGGESTED BY THIRD PARTIES ON THE SITE IN ANY RESPECT. NABR DOES NOT ENDORSE OR OTHERWISE WARRANT OR GUARANTEE THE PRODUCTS OR SERVICES THAT ARE EITHER ADVERTISED ON THE SITE OR CONNECTED BY LINK ON THE SITE. YOU ACKNOWLEDGE THAT YOU USE ALL THIRD-PARTY SITES, CONTENT, AND PRODUCTS AT YOUR OWN RISK.
14. TERMINATION.
These Terms of Use, the license, the Services or the Site may be terminated by NABR for any reason at any time. NABR shall not be liable to You or any third party in any manner for termination of the Services or the Site for any reason at any time to the maximum extent permissible by law. In the event You should become dissatisfied with these Terms of Use or any modifications thereof, or with the Services or the Site, Your only recourse is to discontinue use of the Services and/or the Site, terminate Your subscription, and give notice to us of these actions. Upon termination, Your right to use the Services and the Site ceases immediately and NABR shall have no obligation whatsoever to retain, forward or make available to You any survey results, unless required by law to do so.
These Terms of Use remain in effect until Your subscription expires or is terminated, or Your access to the Site has been terminated. If You are not accessing pursuant to a subscription, these Terms of Use remain in effect until Your access to the Services or the Site has been terminated. Please contact us at any time if You wish to terminate Your use of the Services, including due to any disagreement with this Agreement, in writing via email to: Suuport at NationalAutoBodyResearch.com
Your obligation to make a payment of any outstanding, unpaid fees and reimbursable expenses shall survive termination of this Agreement. Both we and You shall adhere to the online conduct, data privacy and security and other cyber-related requirements described in this Agreement with respect to use of the Services and/or the Site regardless of termination or subscription. You are also obligated to adhere to the requirements regarding our intellectual property rights as described in this Agreement. This includes the obligations described in Section 11, Proprietary Rights. After these Terms of Use terminate, the terms of these Terms of Use and the other agreements incorporated by reference that expressly or by their nature contemplate performance after these Terms of Use terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after these Terms of Use terminates. Without limiting any other provisions of the Terms of Use, the termination of these Terms of Use for any reason will not release You from any obligations incurred prior to termination of these Terms of Use or that thereafter may accrue in respect of any act or omission prior to such termination.
Without limiting our other rights or remedies contained in this Agreement, we may, but are not obligated to, temporarily or indefinitely revoke access to the Services of the Site, deny Your subscription registration, or permanently revoke Your access to the Site and refuse to provide any or all Services to You if: (i) You breach the letter or spirit of any terms and conditions of these Terms of Use; (ii) we suspect or become aware that You have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that Your actions may cause legal liability for You, our Users, or NABR or our affiliates; may be contrary to the interests of the Site, the Services, or the User community; or may involve illicit or illegal activity. If Your account is temporarily or permanently closed, You may not use the Site or the Services under the same account or a different account or reregister under a new account without our prior written consent. If You attempt to use the Site under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment method to pay for any amounts owed by You to the extent permitted by applicable law.
15. NOTICES.
Notices regarding this Agreement to NABR shall be in writing and sent to our email address at [email protected] AND/OR by first class mail or overnight courier (if from within the United States), or international courier, addressed to NABR at the headquarters address shown on our Website, Attn: Legal Dept.
NABR may give notice applicable to NABR’s general customer base by means of a general notice, and notices specific to You by electronic mail to Your designated contact’s email address on record with NABR, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to Your address on record in NABR’s account information.
16. INDEMNIFICATION.
You will indemnify, defend, and hold harmless NABR, its parent entities, subsidiaries, affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Services by You or Your agents, including any payment obligations or default incurred through use of the Services or the Site; (b) failure to comply with this Agreement by You or Your agents; (c) failure to comply with applicable law by You or Your agents; (d) negligence, willful misconduct, or fraud by You or Your agents; (e) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by You or Your agents. For purposes of this Section, Your agents includes any person who has apparent authority to access or use Your account demonstrated by using Your username and password; and (f) due to or arising from Your use of the Services or the Site, surveys, survey responses, survey results and any other conduct related in any way to the Services or the Site, including but not limited to breaching any warranty or provision contained in these Terms of Use.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by You or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against You or a third party or other User.
17. GOVERNING LAW; JURISDICTION.
We operate and control the Service from our location in the State of Arizona, USA. We make no representation that any information, materials or functions included on or through our Site are appropriate for use in any other jurisdiction. If You choose to access the Services or the Site from locations other than within the State of Arizona, You do so on Your own initiative and are responsible for compliance with applicable laws and regulations. You agree that this Agreement, and the rights and obligations hereunder, shall be governed by, and construed in accordance with, the laws of the State of Arizona without giving effect to conflict of laws principles.
18. DISPUTE RESOLUTION.
A. MEDIATION.
If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, You agree to first to try in good faith to settle the dispute by mediation according to the rules of the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure, using a mediator mutually agreed to by the parties. The mediation shall take place in Maricopa County, Arizona unless mutually agreed otherwise by the parties.
B. BINDING ARBITRATION.
Subject to Section 18(A) except as set forth below, ANY DISPUTE OR CLAIM ARISING UNDER THESE TERMS OF USE, INCLUDING THE PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE, OR RELATING IN ANY WAY TO YOUR USE OF THE SERVICES AND THE SITE WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT; provided, however, that the following are exceptions to our agreement to arbitrate our disputes:
(a) Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and
(b) Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse.
All disputes subject to arbitration hereunder shall be settled and determined by arbitration before a panel of one (1) arbitrator in Maricopa County, Arizona, pursuant to the Commercial Rules of the American Arbitration Association then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to the prevailing party. Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.
You may opt out of this agreement to arbitrate by providing written notice of Your intention to do so to NABR within 60 days of the earlier of Your first use of the Services or Your registration with the Site.
Any cause of action or claim You may have arising out of or relating to this Agreement or the Services must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
19. NATURE OF AGREEMENT.
You agree that Your voluntary use of the Services or the Site and Your completion of the subscription procedure constitutes Your affirmative agreement to these Terms of Use. Further, these Terms of Use are the entire and only agreement between You and NABR and supersede any prior or other understandings, representations or warranties including, but not limited to, any nondisclosure agreements, purchase orders, license agreements, service agreements, invoices or other terms and conditions in respect of the Services or the Site. You agree that each use of the Services and the Site reaffirms Your acknowledgment and agreement to the most current version of these Terms of Use.
20. INVALIDITY; WAIVERS.
If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
21. SEVERABILITY.
If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
22. ASSIGNMENT AND DELEGATION.
You may not assign or delegate any rights or obligations under this Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under this Agreement, fully or partially with or without notice to You. We may also substitute, effective upon notice to You, NABR for any third party that assumes our rights and obligations under this Agreement.
23. ENTIRE AGREEMENT.
You agree that this Agreement, including the documents incorporated herein by reference such as the Privacy Policy, constitutes the entire, complete and exclusive agreement between You and us regarding the Services and the Site and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.
International Research Corporation, doing business as National AutoBody Research (“NABR”, “We”, “our”, or “us”) owns and operates NationalAutoBodyResearch.com, LaborRateSurvey.com, LaborRateHero.com, BillableGenie.com, VRSsystem.com, and Certified1Stop.com (collectively, the "Site" or "Sites") for the benefit of users of our services (“You”, “Your”, or “User”). On our Sites we provide hosted tools and processes, such as LaborRateHero or the Variable Rate System ("VRS"), to enable You to create individualized surveys, obtain survey results, obtain beneficial information, and use related services, (collectively “Services”).
Use of the Services and the Site are provided to You subject to the terms and conditions set forth in these Terms of Use (“Terms of Use” or “Agreement”) and our Privacy Policy, which is incorporated herein by reference, and any other rules and policies set forth on this Site. The terms and conditions below and any other rules or policies set forth on this Site comprise the entire agreement between You and NABR and supersede all prior agreements between You and NABR. Please note that we may revise and update these Terms of Use from time to time in our sole discretion. All changes are effective immediately when posted and apply to all access to and use of the Services and the Site thereafter. Your continued use of the Services or the Site following the posting of changes means that You accept and agree to the changes. It is Your responsibility to check these Terms of Use periodically for changes, as these changes are binding on You.
1. ACKNOWLEDGMENT AND ACCEPTANCE.
PLEASE READ THE FOLLOWING TERMS OF THIS AGREEMENT CAREFULLY. BY COMPLETING THE SUBSCRIPTION PROCESS, YOU ACCEPT AND AGREE TO ALL OF THE TERMS OF USE SET FORTH IN THIS AGREEMENT AND IN OUR PRIVACY POLICY. THE SERVICES AND THE SITE ARE OFFERED AND AVAILABLE TO USERS WHO ARE OF THE LEGAL AGE TO FORM A BINDING CONTRACT WITH NABR. BY USING THE SERVICES OR THE SITE, YOU REPRESENT AND WARRANT THAT YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH NABR.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR, BY SUBSCRIBING IN THE ONLINE SIGNUP PROCESS THAT REFERENCES THIS AGREEMENT, OR BY YOUR ONGOING USE OF THE SERVICE OR WEBSITE AFTER THE EFFECTIVE DATE OF THESE NEW TERMS, YOU AGREE TO THE TERMS OF THIS AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THE TERMS OF THIS AGREEMENT, IN WHICH CASE THE LANGUAGE "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THE TERMS OF THIS AGREEMENT OR PRIVACY POLICY, YOU MUST NOT ACCEPT THIS AGREEMENT AND YOU MAY NOT USE THE SERVICES OR THE SITE.
This Agreement was last updated as of the effective date above. It is effective between You and NABR as of the date that You accept this Agreement.
2. USER RESPONSIBILITIES.
These Terms of Use give You important obligations. You agree to the following responsibilities:
- Lawful use of the Services and the Site only.
- Lawful sharing of documents only.
- Removing any and all personal information, personally identifiable information, or Personal Data (defined below) contained in or on any documents that You share with us.
- Creation and maintenance of all content in Your account including but not limited to survey content, and current billing and contact information.
- On-time and full payment of all agreed-upon subscription fees.
- Full responsibility for all activity associated with Your use of the Services and the Site.
- Compliance with all other obligations set forth in these Terms of Use.
We strongly prefer that you do not send us any third party personal information or data, including without limitation that of your consumers or others (collectively, “Personal Data”). If any Personal Data is sent to us, we will use commercially reasonable efforts to promptly remove, redact, de-identify, or destroy such Personal Data from our system after we discover it.
You further acknowledge Your obligation to obtain and document the affirmative consent of any individuals whose Personal Data You share with us. Under no circumstances should any of the following information be sent to us: (1) financial data subject to Payment Card Industry (“PCI”) data security standards such as unredacted credit card or debit card numbers, or other unredacted financial account numbers; (2) any information protected by the Health Insurance Portability and Accountability Act of 1996 and the regulations promulgated thereunder, including Protected Health Information (“PHI”); and (3) certain data such driver’s license number or other unique identifying number including but not limited to social security number.
We reserve the right to deactivate Your account(s) as we deem appropriate or necessary, without notice. You enter and use the Services and the Site at Your own risk. NABR is not responsible for Your activities, surveys, content, results or questions from respondents, other data, or any other information concerning Your use of the Services or the Site. We recommend that You keep track of Your survey results and other data in Your own personal records, as We reserve the right to discontinue Your account(s) or terminate Your access to the Services or the Site at any time. We are not responsible for the deletion of any data that is in or has been added to Your account(s). If a User account remains inactive for a period of 12 months, We may deactivate the account.
3. MODIFICATION TO THE SERVICES OR THE SITE PROVIDED; TERMS OF USE.
You acknowledge and agree that We may, with or without notice, modify or terminate the Services and/or the Site. Modifications of the Services or the Site may include, without limitation, changes to surveys, survey questions, search functionality, data that is displayed, User experience, or any product functionality or other part of the Services or the Site.
Further, NABR may change these Terms of Use from time to time without prior notice, including the fees charged for the Services. You can review the most current version of the Terms of Use at any time at https://www.nationalautobodyresearch.com/terms-of-use/. The revised Terms of Use will become effective upon posting, and if You use the Services or the Site after that date, We will treat Your use as acceptance of the revised Terms of Use. If any change to these Terms of Use is not acceptable to You, Your only remedy is to stop accessing and using the Services and the Site.
4. PRIVACY POLICY.
We value Your privacy and understand Your privacy concerns. Please review our Privacy Policy, which also governs Your access to and use of the Services and the Site, so that You may understand our privacy practices. All information we collect is subject to our Privacy Policy, and by using the Services and the Site, You consent to all actions taken by us with respect to Your information in compliance with the Privacy Policy. You further understand that certain information collected by us may be transferred to the United States and/or other countries for storage, processing and use by NABR and its affiliates. Our Privacy Policy is herein incorporated by reference.
5. PAYMENT TERMS; AUTOMATIC RENEWAL; CANCELLATION.
You agree to pay all charges to Your account, including any applicable taxes, at the rates in effect when the charges are incurred. We may change the fees and charges then in effect, or add new fees or charges, by giving Users advance written notice. You must provide valid credit card information and keep that information current in Your account. NABR does not store credit card numbers or maintain them on file but instead uses secure credit card payment service providers to maintain card numbers and process payments.
We will automatically renew and charge Your account upon every expiration date of Your subscription (either monthly or annually), until You cancel Your subscription. The renewal charge will be equal to the original subscription price, unless We notify You otherwise in advance. You may cancel Your subscription at any time by providing written notice of cancellation at least thirty (30) days before Your subscription renewal date. Any subscription renewals that fall within that thirty (30) day period will be charged as usual, then any further automatic renewals and credit card charges will stop. Thirty (30) days after Your written cancellation notice, Your access to the Site will terminate. NO REFUNDS OF SUBSCRIPTION FEES WILL BE GIVEN.
You agree not to perform any charge-backs with Your credit card company without first providing NABR an opportunity to address any billing issue, customer service issue, or other concern You have related to Your account.
If payment cannot be charged to the credit card You have on file with us, We reserve the right to suspend or terminate Your account and access to the Services. We reserve the right to terminate Your subscription and/or discontinue Services and/or the Site at any time for any reason or for no reason.
If You are accessing pursuant to a subscription, this Agreement remains in effect until Your subscription expires or is terminated, or Your access to the Services and/or the Site has been terminated by us. You may contact us if You at any time wish to terminate Your use of the Services, including due to any disagreement with this Agreement, by a written email to: Support at NationalAutoBodyResearch.com
6. LICENSING.
On the condition that You comply with all Your obligations under this Agreement, we grant You a limited, revocable, nonexclusive, nonassignable, nonsublicenseable license and right to access and use the Services, through a generally available web browser, in accordance with this Agreement. Any other use of the Services and the Site is strictly prohibited and a violation of this Agreement. We reserve all rights not expressly granted in this Agreement, including, without limitation, title, ownership, intellectual property rights, and all other rights and interest in the Services and the Site, and all related items. The VRS is licensed for one auto body shop in a single physical location and is a single User service. Multiple-shop Operators (“MSO”) require a separate license for each separate physical location. EACH SEPARATE STORE REQUIRES THE PURCHASE OF ITS OWN LICENSE; LICENSING FOR ONE OR ONLY SELECT STORES BY A MSO IS NOT ALLOWED AND IS A MATERIAL BREACH OF THIS AGREEMENT. Each license requires a monthly or annual fee. All data, information, and tools in the Site are for the sole use of Your single, licensed location only and may not be shared with anyone outside of Your location. For each license, additional logins are available for additional Users at that same shop location. All Users must be current, full-time employees and must spend at least 31 hours per week working at that location. You may not share logins and passwords with others. You may not share with others any data or information contained in the VRS. Sharing login information or any other VRS data is a violation of this Agreement and may result in immediate account termination and pursuit of damages.
7. CONFIDENTIALITY.
We agree not to use any of Your Confidential Information (defined below) for any purpose except to operate the Services and the Site in accordance with this Agreement. We agree not to disclose any of Your Confidential Information to any third party other than to our employees and consultants who are bound by confidentiality obligations and other applicable law and are required to have access to certain Confidential Information in order to operate the Services and/or the Site. Nothing in this Agreement limits our right to independently develop, acquire or market products, ideas, or businesses, without use of Your Confidential Information.
“Confidential Information” may include solely to the extent entered into the Services or the Site by You, (a) technical information, know-how and other intellectual property, to the fullest extent that such information is maintained as a trade secret by You; (b) confidential marketing strategies; (c) confidential future product plans; (d) confidential financial information (including pricing); and (e) other confidential business information. Confidential Information will not include any information that (i) was publicly known and generally available in the public domain prior to the time of disclosure by You; (ii) becomes publicly known and generally available after disclosure by You through no action or inaction of ours; (iii) is already in our possession at the time of disclosure by You; (iv) is obtained by us from a third party without a breach of such third party’s obligations of confidentiality; (v) is independently developed by us without use of or reference to Your Confidential Information; or (vi) is required by law to be disclosed by us, provided that we give You prompt written notice of such requirement prior to such disclosure and assistance in obtaining an order protecting the information from public disclosure.
8. OTHER PROHIBITED USES.
You acknowledge, warrant and agree that:
- You will not interfere or disrupt networks connected to the Services.
- You will not interfere or disrupt networks connected to the Site.
- You will not attempt to gain unauthorized access to any computer system, account, data, information, or any other electronic asset associated with the VRS and NABR.
- You will comply with all applicable laws, rules and regulations including the Sherman Antitrust Act and the Clayton Act.
- Publish or input inaccurate information on the Services or the Site, or in connection with the Services or the Site.
- Use or attempt to use another’s account or create a false identity on the Services or the Site.
- Upload, post, transmit or otherwise make available any content that:
- (a) is unlawful, libelous, abusive, obscene, discriminatory or otherwise objectionable;
- (b) includes information that You do not have the right to disclose or make available under any law or under contractual or fiduciary relationships;
- (c) infringes upon patents, trademarks, trade secrets, copyrights or other proprietary rights; or
- (d) contains software viruses, worms, or any other computer code, files or programs that interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment of NABR or any User.
- Reverse engineer, decompile, disassemble, decipher or otherwise attempt to derive the source code for any underlying intellectual property used to provide the Services or the Site, or any part thereof.
- Utilize or copy information, content or data You view and/or obtain from the Services or the Site to provide any service that is competitive with the Services or the Site;
- Except as expressly authorized otherwise in this Agreement, adapt, modify or create certain derivative works based on proprietary content and underlying technology contained in or on the Services or the Site;
- Rent, lease, loan, trade, sell/re-sell access to the Services or the Site or any information therein, or the equivalent, in whole or part;
- Remove any copyright, trademark or other proprietary rights notices contained in or on the Services or the Site;
- Infringe or use any of our brands, logos and/or trademarks in any business name, email, or URL, except as expressly permitted by us;
- Access the Services or the Site for purposes of monitoring our availability, performance or functionality for any competitive purpose, including for purposes of building a similar or competitive product or service or to copy any ideas, features, functions or components of the Services or the Site;
- Engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of the Services or the Site;
- Attempt to or actually access the Services by any means other than through the interfaces provided by us;
- Attempt to or actually override any security component included in or underlying the Services or the Site;
- Use the Services or the Site in a manner that may harm minors or that interacts with or targets children;
- Engage in any action that directly or indirectly interferes with the proper working of or places an unreasonable load on our infrastructure, including, but not limited to, attempting to gain unauthorized access to the Services or the Site, or transmitting or activating computer viruses through or on the Services or the Site;
- Interfere with or disrupt the Services or the Site, including, but not limited to, any servers or networks connected to the Services or the Site.
9. DISCLAIMER OF WARRANTIES.
NABR MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO YOU RELATING TO THE SERVICES OR THE SITE AND ALL RELATED COMPONENTS AND INFORMATION, ALL OF WHICH ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT USE OF THE SERVICES AND THE SITE IS AT YOUR SOLE RISK. YOU EXPRESSLY ACKNOWLEDGE THAT THE SERVICES AND THE SITE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE FULLEST EXTENT ALLOWED BY LAW, NABR EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF TITLE, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. THE CONTENTS OF THE SERVICES OR THE SITE MAY CONTAIN BUGS, ERRORS, PROBLEMS OR OTHER LIMITATIONS. NABR ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN CONTENT. YOU ACKNOWLEDGE THAT NABR DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE.
NABR IS NOT RESPONSIBLE FOR THE RESPONSES SUBMITTED TO ANY VRS SURVEY OR FOR RESULTS GENERATED BY THE VRS WEBSITE. NABR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE RELIABILITY OR ACCURACY OF THE DATA SUPPLIED TO NABR NOR THE RESPONSES OR INFORMATION SUPPLIED BY SURVEY RESPONDENTS IN RESPONSE TO SURVEYS.
NABR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE CONSEQUENCES OF THE USE OF ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS NOR DOES NABR WARRANT THE CORRECTNESS, USEFULNESS, RELIABILITY, ACCURACY OR OTHERWISE OF ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS. NABR IS NOT RESPONSIBLE FOR ANY DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BUSINESS INTERRUPTION OR ANY OTHER LOSS RESULTING FROM USE OF OR RELIANCE IN ANY WAY ON ANY SURVEY, SURVEY RESPONSES OR SURVEY RESULTS CREATED ON OR THROUGH THE SERVICES OR THE SITE. IT IS SOLELY YOUR RESPONSIBILITY TO EVALUATE THE ACCURACY, RELIABILITY, COMPLETENESS AND USEFULNESS OF ANY SURVEYS, SURVEY RESPONSES, SURVEY RESULTS OR OTHER INFORMATION RECEIVED WHILE USING THE SERVICES OR THE SITE.
NABR MAKES NO WARRANTY THAT THE SERVICES OR THE SITE WILL MEET YOUR REQUIREMENTS, NOR THAT THE SERVICES OR THE SITE WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, ERROR-FREE, ACCURATE OR RELIABLE; NOR DOES NABR MAKE ANY WARRANTY AS TO ANY INFORMATION THAT MAY BE OBTAINED THROUGH THE SERVICES OR THE SITE; NOR THAT DEFECTS IN THE SOFTWARE FOR THE SERVICES OR THE SITE WILL BE CORRECTED; NOR THAT THE SITE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
YOU UNDERSTAND AND AGREE THAT ANY MATERIAL AND/OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH USE OF THE SERVICES OR THE SITE IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL OR DATA.
NABR MAKES NO WARRANTY REGARDNG ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH OR BASED UPON THE SERVICES OR THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICES OR THE SITE OR THROUGH THE SERVICES OR THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU AGREE THAT YOU ARE SOLELY RESPONSIBLE TO:
(A) INFORM AUTHORIZED USERS (INCLUDING YOURSELF) OF ANY RELEVANT POLICIES AND PRACTICES AND ANY SERVICE SETTINGS THAT MAY IMPACT OUR HANDLING OF PERSONAL DATA, PERSONAL INFORMATION, AND PERSONALLY IDENTIFIABLE INFORMATION;
(B) OBTAIN ANY RIGHTS, PERMISSIONS, OR CONSENTS FROM CONSUMERS, HOUSEHOLDS, INDIVIDUALS, BUSINESSES THAT ARE NECESSARY FOR THE LAWFUL USE OF PERSONAL DATA, PERSONAL INFORMATION, AND PERSONALLY IDENTIFIABLE INFORMATION, AND THAT ARE NECESSARY FOR THE OPERATION OF THE SERVICES AND THE SITE; AND
(C) RESPOND TO AND RESOLVE ANY DISPUTE WITH CONSUMERS, HOUSEHOLDS, INDIVIDUALS, BUSINESSES BASED ON PERSONAL DATA, PERSONAL INFORMATION, AND PERSONALLY IDENTIFIABLE INFORMATION AND/OR COLLABORATE WITH US TO RESPOND TO AND RESOLVE THE SAME AS APPLICABLE LAW MAY REQUIRE.
10. LIMITATION OF LIABILITY.
TO THE MAXIUM EXTENT PERMITTED BY LAW, neither NABR nor any AND ALL of our affiliated companies, OFFICERS, employees, agents, consultants, contractors, members, MANAGERS or AFFILIATES shall be cumulatively liable for: (a) any damages in excess of the greater of either $10 USD or the total amount paid by you to NABR during the six-month period preceding the event giving rise to the alleged liability; or (b) any special, incidental, indirect, punitive or consequential damages or loss of use, profit, revenue or data to you or any third person arising from your use of the ServiceS OR THE SITE, or any of the content or other materials on OR CONNECTED TO THE SERVICES OR THE SITE, OR accessed through or downloaded from NABR. This limitation of liability is part of the basis of the bargain between the parties and without it the terms and prices charged would be different. This limitation of liability shall:
A. Apply regardless of whether (1) you base your claim on contract, tort (INCLUDING NEGLIGENCE), statute or any other legal theory, (2) we knew or should have known about the possibility of such damages, or (3) the limited remedies provided in this section fail of their essential purpose; and
B. Not apply to any damage that WE may cause you intentionally in violation of this User Agreement or applicable law, or as otherwise mandated by applicable law that cannot be disclaimed in this User Agreement.
11. PROPRIETARY RIGHTS.
NABR owns the content including the graphics, names, text, software, music, videos, sound, pictures, compilations, survey templates, surveys, page layout, design, processes, procedures, magnetic translation, digital conversion or other material contained in the Services and the Site to the extent such content is provided and/or designed by NABR. This content is protected by copyrights, trademarks, service marks, patents, trade secrets, or other proprietary rights and laws. No one may copy, reproduce, distribute in any way, or decompile, reverse engineer or disassemble this content. You are permitted a limited license to use the content of the Services and the Site as authorized herein including to view survey responses and survey results for Your personal use as an end product only, and You must at all times maintain a visible copyright symbol and disclaimer or statement indicating the proprietary rights of NABR on the product, in any form or medium of the product. The copyright symbol and disclaimer should read as follows: © 2020 National AutoBody Research.
You agree to include on NABR proprietary materials, defined as all materials provided to You by NABR, a statement that the materials are proprietary and confidential materials (as the case may be) of NABR to the effect of the following:
THIS DOCUMENT CONTAINS PROPRIETARY AND/OR CONFIDENTIAL MATERIALS OF NATIONAL AUTOBODY RESEARCH (NABR). AND SHALL NOT BE USED, DISCLOSED OR REPRODUCED, IN WHOLE OR IN PART, FOR ANY PURPOSE OTHER THAN TO ASSIST IN THE FAIR AND EQUITABLE SETTLEMENT OF AN AUTOMOBILE COLLISION REPAIR CLAIM, WITHOUT THE PRIOR WRITTEN CONSENT OF NABR. TITLE IN AND TO THESE MATERIALS REMAINS AT ALL TIMES IN NABR.
If space is limited, the disclaimer or statement must be substantially similar in form and content to the language provided for You above.
If You have any questions as to the sufficiency of Your language or our policy on Your use of our proprietary and/or confidential materials, or our proprietary rights, please contact us at [email protected]
While Your account is active, You will have the right to access survey results, related survey data and tools, and You assume the entire risk of disclosing content that You provide us to third parties. Modification or use of our content in any prohibited way is a violation of copyright and other proprietary laws. No one may copy, reproduce, transmit, post, distribute or create derivative works from this Site without our prior express authorization.
12. NO MISAPPROPRIATION OR MISUSE OF NAMES, MARKS, OTHER PROPRIETARY MATERIAL.
You agree not to use, misuse or misappropriate any brand names, trademarks, service marks, patents, images, text or other proprietary material or content that You do not have a legal right to use on or through the Services or the Site. If You use any such proprietary material or content, by doing so, You warrant that You have the legal right and appropriate authority to use the proprietary material or content.
13. LINKS AND ADVERTISERS.
NABR may provide advertising space and/or links and pointers to Internet sites maintained by third parties. NABR has not reviewed all of these third-party sites nor has reviewed the products or services they may provide. NABR is not responsible for nor does it endorse the contents or any products or services of such third parties or their sites. NABR DOES NOT CONTROL ANY INFORMATION, PRODUCTS OR SERVICES OFFERED OR SUGGESTED BY THIRD PARTIES ON THE SITE IN ANY RESPECT. NABR DOES NOT ENDORSE OR OTHERWISE WARRANT OR GUARANTEE THE PRODUCTS OR SERVICES THAT ARE EITHER ADVERTISED ON THE SITE OR CONNECTED BY LINK ON THE SITE. YOU ACKNOWLEDGE THAT YOU USE ALL THIRD-PARTY SITES, CONTENT, AND PRODUCTS AT YOUR OWN RISK.
14. TERMINATION.
These Terms of Use, the license, the Services or the Site may be terminated by NABR for any reason at any time. NABR shall not be liable to You or any third party in any manner for termination of the Services or the Site for any reason at any time to the maximum extent permissible by law. In the event You should become dissatisfied with these Terms of Use or any modifications thereof, or with the Services or the Site, Your only recourse is to discontinue use of the Services and/or the Site, terminate Your subscription, and give notice to us of these actions. Upon termination, Your right to use the Services and the Site ceases immediately and NABR shall have no obligation whatsoever to retain, forward or make available to You any survey results, unless required by law to do so.
These Terms of Use remain in effect until Your subscription expires or is terminated, or Your access to the Site has been terminated. If You are not accessing pursuant to a subscription, these Terms of Use remain in effect until Your access to the Services or the Site has been terminated. Please contact us at any time if You wish to terminate Your use of the Services, including due to any disagreement with this Agreement, in writing via email to: Suuport at NationalAutoBodyResearch.com
Your obligation to make a payment of any outstanding, unpaid fees and reimbursable expenses shall survive termination of this Agreement. Both we and You shall adhere to the online conduct, data privacy and security and other cyber-related requirements described in this Agreement with respect to use of the Services and/or the Site regardless of termination or subscription. You are also obligated to adhere to the requirements regarding our intellectual property rights as described in this Agreement. This includes the obligations described in Section 11, Proprietary Rights. After these Terms of Use terminate, the terms of these Terms of Use and the other agreements incorporated by reference that expressly or by their nature contemplate performance after these Terms of Use terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, permitting audits, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after these Terms of Use terminates. Without limiting any other provisions of the Terms of Use, the termination of these Terms of Use for any reason will not release You from any obligations incurred prior to termination of these Terms of Use or that thereafter may accrue in respect of any act or omission prior to such termination.
Without limiting our other rights or remedies contained in this Agreement, we may, but are not obligated to, temporarily or indefinitely revoke access to the Services of the Site, deny Your subscription registration, or permanently revoke Your access to the Site and refuse to provide any or all Services to You if: (i) You breach the letter or spirit of any terms and conditions of these Terms of Use; (ii) we suspect or become aware that You have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that Your actions may cause legal liability for You, our Users, or NABR or our affiliates; may be contrary to the interests of the Site, the Services, or the User community; or may involve illicit or illegal activity. If Your account is temporarily or permanently closed, You may not use the Site or the Services under the same account or a different account or reregister under a new account without our prior written consent. If You attempt to use the Site under a different account, we reserve the right to reclaim available funds in that account and/or use an available payment method to pay for any amounts owed by You to the extent permitted by applicable law.
15. NOTICES.
Notices regarding this Agreement to NABR shall be in writing and sent to our email address at [email protected] AND/OR by first class mail or overnight courier (if from within the United States), or international courier, addressed to NABR at the headquarters address shown on our Website, Attn: Legal Dept.
NABR may give notice applicable to NABR’s general customer base by means of a general notice, and notices specific to You by electronic mail to Your designated contact’s email address on record with NABR, or by written communication sent by first class mail or overnight courier (if to an address within the United States), or international courier, to Your address on record in NABR’s account information.
16. INDEMNIFICATION.
You will indemnify, defend, and hold harmless NABR, its parent entities, subsidiaries, affiliates, and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) for all Indemnified Claims (defined below) and Indemnified Liabilities (defined below) relating to or arising out of: (a) the use of the Site and the Services by You or Your agents, including any payment obligations or default incurred through use of the Services or the Site; (b) failure to comply with this Agreement by You or Your agents; (c) failure to comply with applicable law by You or Your agents; (d) negligence, willful misconduct, or fraud by You or Your agents; (e) defamation, libel, violation of privacy rights, unfair competition, or infringement of intellectual property rights or allegations thereof to the extent caused by You or Your agents. For purposes of this Section, Your agents includes any person who has apparent authority to access or use Your account demonstrated by using Your username and password; and (f) due to or arising from Your use of the Services or the Site, surveys, survey responses, survey results and any other conduct related in any way to the Services or the Site, including but not limited to breaching any warranty or provision contained in these Terms of Use.
“Indemnified Claim” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by You or a third party or other User against an Indemnified Party.
“Indemnified Liability” means any and all claims, damages, liabilities, costs, losses, and expenses (including reasonable attorneys’ fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by an Indemnified Party against You or a third party or other User.
17. GOVERNING LAW; JURISDICTION.
We operate and control the Service from our location in the State of Arizona, USA. We make no representation that any information, materials or functions included on or through our Site are appropriate for use in any other jurisdiction. If You choose to access the Services or the Site from locations other than within the State of Arizona, You do so on Your own initiative and are responsible for compliance with applicable laws and regulations. You agree that this Agreement, and the rights and obligations hereunder, shall be governed by, and construed in accordance with, the laws of the State of Arizona without giving effect to conflict of laws principles.
18. DISPUTE RESOLUTION.
A. MEDIATION.
If a dispute arises out of or relates to this Agreement, or the breach thereof, and if the dispute cannot be settled through negotiation, You agree to first to try in good faith to settle the dispute by mediation according to the rules of the American Arbitration Association under its Commercial Mediation Procedures before resorting to arbitration, litigation, or some other dispute resolution procedure, using a mediator mutually agreed to by the parties. The mediation shall take place in Maricopa County, Arizona unless mutually agreed otherwise by the parties.
B. BINDING ARBITRATION.
Subject to Section 18(A) except as set forth below, ANY DISPUTE OR CLAIM ARISING UNDER THESE TERMS OF USE, INCLUDING THE PRIVACY POLICY INCORPORATED HEREIN BY REFERENCE, OR RELATING IN ANY WAY TO YOUR USE OF THE SERVICES AND THE SITE WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION, RATHER THAN IN COURT; provided, however, that the following are exceptions to our agreement to arbitrate our disputes:
(a) Any claim that qualifies as a small claim in a court of limited subject matter jurisdiction must be brought in such court; and
(b) Any claim for injunctive relief may be brought in a court of competent jurisdiction to enjoin intellectual property infringement or misuse.
All disputes subject to arbitration hereunder shall be settled and determined by arbitration before a panel of one (1) arbitrator in Maricopa County, Arizona, pursuant to the Commercial Rules of the American Arbitration Association then in effect. Judgment upon the award rendered may be entered in any court having jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. The parties agree that the arbitrator shall have the power to award damages, injunctive relief and reasonable attorneys’ fees and expenses to the prevailing party. Notwithstanding any of the foregoing, THE ARBITRATOR WILL NOT BE EMPOWERED AND DOES NOT HAVE THE AUTHORITY TO HEAR OR DECIDE ANY CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, TO AWARD PUNITIVE OR EXEMPLARY DAMAGES OR TO AWARD ATTORNEYS’ FEES TO THE PREVAILING PARTY.
You may opt out of this agreement to arbitrate by providing written notice of Your intention to do so to NABR within 60 days of the earlier of Your first use of the Services or Your registration with the Site.
Any cause of action or claim You may have arising out of or relating to this Agreement or the Services must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
19. NATURE OF AGREEMENT.
You agree that Your voluntary use of the Services or the Site and Your completion of the subscription procedure constitutes Your affirmative agreement to these Terms of Use. Further, these Terms of Use are the entire and only agreement between You and NABR and supersede any prior or other understandings, representations or warranties including, but not limited to, any nondisclosure agreements, purchase orders, license agreements, service agreements, invoices or other terms and conditions in respect of the Services or the Site. You agree that each use of the Services and the Site reaffirms Your acknowledgment and agreement to the most current version of these Terms of Use.
20. INVALIDITY; WAIVERS.
If any provision or portion of this Agreement is held invalid, illegal, void or unenforceable as it appears in this Agreement by reason of any rule of law, administrative or judicial provision or public policy, then such provision shall be construed as being enforceable to the extent such rule of law, administrative or judicial provision or public policy allows. All other provisions of this Agreement shall nevertheless remain in full force and effect. Neither of the parties shall be deemed to have waived any of its rights, powers or remedies hereunder unless the waiving party expresses such a waiver in writing.
21. SEVERABILITY.
If any provision of this Agreement is determined to be illegal or unenforceable, that provision will be limited to the minimum extent necessary so that this Agreement shall otherwise remain in full force and effect.
22. ASSIGNMENT AND DELEGATION.
You may not assign or delegate any rights or obligations under this Agreement. Any purported assignment and delegation shall be ineffective. We may freely assign or delegate all rights and obligations under this Agreement, fully or partially with or without notice to You. We may also substitute, effective upon notice to You, NABR for any third party that assumes our rights and obligations under this Agreement.
23. ENTIRE AGREEMENT.
You agree that this Agreement, including the documents incorporated herein by reference such as the Privacy Policy, constitutes the entire, complete and exclusive agreement between You and us regarding the Services and the Site and supersedes all prior agreements and understandings, whether written or oral, or whether established by custom, practice, policy or precedent, with respect to the subject matter of this Agreement.