Terms and Conditions

CUSTOMER TERMS AND CONDITIONS

These Customer Terms and Conditions comprise the agreement (“Agreement”) between you and Service Marketplace Inc. (“SAM SMITH PERFORMANCE LLC”), a Delaware corporation, governing your use of our auto mechanic requesting service (the “Service”) available via SAM SMITH PERFORMANCE LLC.com (the “Site”) and/or any of our mobile apps (each, an “App”). Your checking of the “I Accept” box for this Agreement and/or your use of the Service indicate that you have agreed to this Agreement. If you do not agree to all of the terms and conditions of this Agreement, please do not check the “I Accept” box or use the Service.

The Service

SAM SMITH PERFORMANCE LLC (MobileMechanicATL.com) provides you with access to auto mechanics through which you can schedule an appointment for one of these mechanics near you to travel to your home or place of work to diagnose a problem with your car or to repair or perform maintenance on your car.

The mechanics in are independent contractors. SAM SMITH PERFORMANCE LLC is a registered automotive repair dealer. SAM SMITH PERFORMANCE LLC stands behind the work performed by any mechanic from that you request through the Service, subject to certain conditions, under our Limited Warranty (available here).

Registering with SAM SMITH PERFORMANCE LLC

You may create an account with SAM SMITH PERFORMANCE LLC at any time by registering on the Site or through one of our Apps. If you have not yet registered with SAM SMITH PERFORMANCE LLC when you submit your first Job Request (defined below), an account will be automatically created for you.

When you register, you will be asked to confirm your contact information, including your name, email address and phone number, and to select a password, all of which is subject to our privacy policy You represent and warrant that all of your account information is true and accurate, and you agree to update such information promptly to keep it current.

You may also use your account with SAM SMITH PERFORMANCE LLC to store the repair and maintenance history of your car. When one of the mechanics from completes a Job on your car, he or she will be able to provide SAM SMITH PERFORMANCE LLC with the details of the Job, which may be uploaded into your account with SAM SMITH PERFORMANCE LLC. Only mechanics in with whom you have scheduled a Job will be able to view the repair and maintenance history of your car stored in your account with SAM SMITH PERFORMANCE LLC.

Scheduling a Job

To request an appointment with one of our mechanics. submit a request through your account on the Site. in which you will be asked to specify the following information: (i) the type of service that you think is required on your car, (ii) the location where you would like for the Job to be performed, (iii) the date and time that you would like for the Job to take place, and (iv) certain information about yourself, including your name, email address and phone number, all of which is subject to our privacy policy

If you would like to receive the replaced parts from your car upon completion of the Job, check the “Return Replaced Parts” box in the Job Request. If you select this option, you will be charged the core price for the replacement part (if applicable), and you will be responsible for proper disposition of such parts in accordance with all applicable laws, regulations and rules. Notwithstanding the foregoing, note that any defective parts removed from your car in connection with the servicing of a claim under our Limited Warranty must be returned to SAM SMITH PERFORMANCE LLC.

Once you submit your Job Request, we will provide you with a list of nearby mechanics from our network, along with (i) each such mechanic’s expertise “grade” (as determined by SAM SMITH PERFORMANCE LLC) and “approval rating” (based on previous users’ reviews), and (ii) the price calculation for the requested Job, including the mechanic’s labor and travel fees and the cost of the part(s) required (if any) to complete the Job. There is no charge to receive this information.

If you select a mechanic from the Service, you will be required to provide SAM SMITH PERFORMANCE LLC with a valid major credit card and billing information, after which we will schedule the Job and validate your method of payment as described in more detail below.

Payment Terms

At the time you select a mechanic from the Service, SAM SMITH PERFORMANCE LLC will record your credit card number and billing information and validate your credit card. You will be asked to authorize a charge to your credit card upon completion of the Job up to the total amount specified in the estimate associated with the selected mechanic (or for the cancellation fee, if applicable, as set forth in greater detail below). If the mechanic performs the work contemplated by the estimate, upon completion of the Job SAM SMITH PERFORMANCE LLC will charge your credit card for the amount specified in the estimate, as well as for all applicable federal, state and local taxes.

If in the process of performing a Job the mechanic identifies additional repair work for your car, or determines that your car requires services that are different from the ones you specified, the mechanic will provide you with a revised written estimate of the cost of the work. If you accept the mechanic’s estimate for such additional or different work, you will either be asked to sign a form provided by the mechanic indicating your authorization to be charged for such work or SAM SMITH PERFORMANCE LLC will send you an email with the updated estimate for your verbal authorization. Upon completion of the Job, SAM SMITH PERFORMANCE LLC will charge your credit card for the amount specified in the updated estimate, as well as for all applicable federal, state and local taxes.

If in the process of performing a Job the mechanic determines that your car requires services that are different from the ones you specified in your original Job Request, but is not able to perform such work, you may be charged a separate diagnostic fee.

For each Job, a detailed invoice will be made available for download from your account upon completion of the Job, specifying the work done and parts supplied.

Cancellations

You may cancel a Job scheduled through the Service for no charge at any time more than 24 hours prior to the scheduled start time for the Job. If you cancel within 24 hours of the scheduled start time for the Job, SAM SMITH PERFORMANCE LLC will charge your credit card a $25 cancellation fee.

Gift cards

SAM SMITH PERFORMANCE LLC.com Gift Cards may be used only for the purchase of eligible goods and/or services on SAM SMITH PERFORMANCE LLC.com. Except as required by law, Gift Cards cannot be transferred for value or redeemed for cash. Purchases are deducted from the Gift Card balance. To redeem or view a Gift Card balance, visit “Gifts and Rewards" on the user account page. SAM SMITH PERFORMANCE LLC.com is not responsible if a Gift Card is lost, stolen, destroyed or used without permission. No expiration date or service fees.

Diagnosis Work

If you schedule an inspection Job with one of the mechanics in our network, the mechanic will first seek to diagnose the problem with your car. Please keep in mind that in performing an auto repair diagnosis, the mechanic will go through a step-by-step process to rule out or confirm part failures through visual inspection and/or appropriate tests. Although our mechanics utilize their auto repair experience in performing diagnoses in accordance with industry standards, we cannot guarantee that any particular diagnosis performed on your car will identify all of the problems with your car (and/or solutions) during the first inspection. Sometimes, the only way to get to the root cause of a problem is to go through a process of elimination – that is, to replace a part suspected to be defective with a known good part, and then to recheck the car to see whether or not the problem still exists.

If, after receiving a diagnosis, you decide to authorize the repair work recommended by the mechanic, the mechanic will perform the work in accordance with industry standards, backed by our Limited Warranty (available here). Note that the Limited Warranty applies only to such repair work, not to the completeness of the diagnosis or to any problems that you may be experiencing with your car (other than a problem with the replaced part itself).

For example, if your car has an oil leak, the leak may be coming from two or three different places in your engine. The mechanic will recommend replacing the part responsible for the most obvious source of the leak, and then recheck the car to see if there are other components that are leaking too. If there are other leaking components, replacing those other components would be separate work subject to an additional charge.

Prohibited Actions; Termination

As a condition for your access to the Service, you agree not to make any separate payment or other arrangements with the mechanic who performs the Job. SAM SMITH PERFORMANCE LLC reserves the right to terminate your account for any failure by you to comply with the foregoing or any other terms of this Agreement.

Eligibility to Use the Service

The Service is not available to anyone under 18 years of age, or to any individual whose account has been terminated. Your account may not be used for auto repair work to be performed for another person. If you submit a Job Request on behalf of a business entity, you hereby represent that you have the authority to bind such entity to this Agreement.

Intellectual Property

Subject to the terms and conditions of this Agreement, SAM SMITH PERFORMANCE LLC hereby grants to you a limited, non-exclusive, nontransferable right to access and use the Service, subject to the terms of this Agreement.

You acknowledge that all of the intellectual property rights in the Service are owned by SAM SMITH PERFORMANCE LLC or its licensors. You shall not (i) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Service; or (ii) rent, lease, loan, or sell access to the Service. We reserve the right to modify, enhance, or discontinue the Service at any time.

Limited Warranty

The terms and conditions of our Limited Warranty (available here) are incorporated into this Agreement by reference. We may change the Limited Warranty from time to time, with any changes effective for Jobs scheduled after such changes are posted to the Site.

Liability Insurance

SAM SMITH PERFORMANCE LLC carries commercial general liability insurance for Jobs performed through the mechanics in our network.

Disclaimers

EXCEPT AS PROVIDED IN THE LIMITED WARRANTY, THE SERVICE AND PARTS ARE MADE AVAILABLE ON AN “AS IS” AND “WITH ALL FAULTS” BASIS, WITHOUT ANY WARRANTIES OR CONDITIONS, EXPRESS, IMPLIED OR STATUTORY. SAM SMITH PERFORMANCE LLC SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT OF INTELLECTUAL PROPERTY. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you.

Limitations of Liability

YOU ACKNOWLEDGE THAT ALL REPAIR AND MAINTENANCE WORK IS PROVIDED BY INDEPENDENT MECHANICS, NOT BY SAM SMITH PERFORMANCE LLC. ACCORDINGLY, EXCEPT AS PROVIDED IN THE LIMITED WARRANTY, SAM SMITH PERFORMANCE LLC HAS NO RESPONSIBILITY OR LIABILITY FOR ANY SERVICES OR PARTS PROVIDED TO YOU BY SUCH MECHANICS.

UNDER NO CIRCUMSTANCES WILL SAM SMITH PERFORMANCE LLC’S LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT AND ANY JOB EXCEED THE AMOUNT INVOICED FOR SUCH JOB. IN ADDITION, IN NO EVENT WILL SAM SMITH PERFORMANCE LLC BE LIABLE FOR SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND, HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN AN ACTION FOR CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, WHETHER OR NOT SAM SMITH PERFORMANCE LLC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY. The foregoing limitations shall apply to the maximum extent permitted by law and shall survive indefinitely.

Miscellaneous

Governing Law. The Agreement and the relationship between you and SAM SMITH PERFORMANCE LLC will be governed by the laws of the State of Delaware, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state.

Dispute Resolution. Any claim or controversy between you and SAM SMITH PERFORMANCE LLC arising out of, or relating to, this Agreement shall be finally decided by arbitration in accordance with the Commercial Arbitration Rules of the American Arbitration Association by a single arbitrator appointed in accordance with such rules. Subject to any valid requirements of any applicable statute, any such arbitration shall be held in San Francisco, California. During the course of any arbitration hereunder, each party will bear its own costs and attorneys’ fees, and share equally the arbitrator’s fees and expenses, except that the arbitrator shall award to the prevailing party all reasonable attorneys’ fees resulting directly or indirectly from such arbitration. The award rendered by the arbitrator shall be final, and judgment may be entered upon it at any court having jurisdiction. The arbitrator shall have the authority to award temporary, preliminary and permanent injunctive and equitable relief in the arbitration. Any arbitration hereunder will be confidential.

No Assignment. You may not assign your rights under this Agreement without our prior written consent, and any attempted assignment will be null and void.

Force Majeure. Any delay in the availability of the Service or the performance of any Job will not be considered a breach of this Agreement if such delay is caused by a fire, earthquake, flood, war, terrorist act, governmental act, failure of common carriers (including Internet service providers), act of God, or any other event beyond the control of SAM SMITH PERFORMANCE LLC or the mechanic, provided that performance is resumed as soon as possible.

Severability. If any provision of this Agreement is held or determined to be invalid, unenforceable, or void, the remainder of this Agreement shall remain in full force and effect.

Entire Agreement; No Waiver. This Agreement constitutes the entire agreement between you and SAM SMITH PERFORMANCE LLC regarding the use of the Service. Our failure to exercise or enforce any right or provision of the Agreement will not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect.

Notices. We may give notice to you by email or other reasonable means. You must give notice to SAM SMITH PERFORMANCE LLC by certified mail (postage pre-paid and return receipt requested) to: SAM SMITH PERFORMANCE LLC, Attn: Legal Department, 520 San Antonio Road, Suite 110, Mountain View, California 94040.

Questions. Please contact us with any questions regarding this Agreement by emailing us at _________________