TERMS OF SERVICE AGREEMENT
Last Modified on: May 11, 2020
This Terms of Service Agreement (this “Agreement”) is a binding contract between you (“Customer,” “you” or “your”) and Quick Quack Car Wash Holdings, LLC, a Delaware limited liability company, and its subsidiaries and affiliates (collectively, “Quick Quack,” “we,” or “us”). This Agreement governs your access to and use of the Services (as defined below).
THIS AGREEMENT TAKES EFFECT WHEN YOU CLICK THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES (the “Effective Date”). BY CLICKING ON THE ACCEPT BUTTON OR BY ACCESSING OR USING THE SERVICES YOU (A) ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT; (B) REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, POWER, AND AUTHORITY TO ENTER INTO THIS AGREEMENT; AND (C) ACCEPT THIS AGREEMENT AND AGREE THAT YOU ARE LEGALLY BOUND BY ITS TERMS.
YOU SHOULD CAREFULLY READ THIS AGREEMENT BEFORE PURCHASING ANY SERVICES. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK ON THE ACCEPT BUTTON OR USE THE SERVICES. IF YOU DO NOT ACCEPT THESE TERMS, YOU MAY NOT ACCESS OR USE THE SERVICES.
YOU AGREE TO THE ARBITRATION AGREEMENT AND CLASS ACTION WAIVER DESCRIBED IN SECTION 9.3 TO RESOLVE ANY DISPUTES WITH QUICK QUACK (EXCEPT FOR MATTERS THAT MAY BE TAKEN TO SMALL CLAIMS COURT).
1. GENERAL TERMS.
1.1 Quick Quack provides car washes to its customers (collectively, “Services”), which may include a membership granting access to the Services (each a “membership”). Quick Quack also provides Quick Quack accounts to its customers to allow them to manage Services that they receive (each an “account”), which can be accessed by phone at 888-772-2792, or as available through online services that Quick Quack may make available from time to time.
1.2 The types of car wash Services may vary at each Quick Quack location. In addition to the car wash Services, Quick Quack may provide certain additional products and services (“additional Services”), such as vacuums, hand towel drying services, towels, dashboard wipes, or other products and services Quick Quack makes available at a Quick Quack location from time to time; provided, however, Quick Quack does not guarantee that (a) any additional Services will be available, or continue to be available, as part of the car wash Services, (b) that the same additional Services will be available at each Quick Quack location, or (c) that any additional Services will be provided without additional charge.
1.3 We may offer a number of different membership plans, including the following:
(a) “Day Pass”: is a membership with a defined end date that does not automatically renew;
(b) “Autopay”: is a membership that automatically renews each month;
Furthermore, some membership plans may have differing conditions or limitations, which shall be disclosed at your sign-up or in other communications made available to you. If you choose Autopay, your membership will continue and automatically renew until termination.
Each membership is per vehicle; provided, however, multiple vehicle “Flock” discount plans are available (“Flock Pricing”). Flock Pricing is available for Autopay memberships only. Only one Flock Pricing plan is available per household and each Flock Pricing plan may only have five (5) active vehicles receiving Services at a time. You may remove vehicles from the Flock Pricing plan by following the procedures in Section 5.2 below; provided, however, that Quick Quack will evaluate on a case-by-case basis any requests to remove and add vehicles, or otherwise swap active vehicles, on a Flock Pricing plan.
1.4 This Agreement governs your use of the Services. By using the Services, you agree (a) that you have read and understood this Agreement, and that this Agreement creates a valid and binding agreement, enforceable against you in accordance herewith; (b) to be bound by this Agreement and any terms, conditions or other policies of Quick Quack, as each may be amended or supplemented from time to time as described in Section 4 below; and (c) that your use of the Services shall comply with all applicable federal, state and local laws or regulations, and that you are solely responsible for your compliance with, familiarity with, and understanding of any such laws applicable to your use.
1.5 Additionally, and without limiting the foregoing, by using the Services, you represent and warrant that you: (a) are eighteen (18) years of age or older; (b) are not currently restricted from using the Services, or not otherwise prohibited from having an account for the Services; (c) are not a competitor of the Services or are not using the Services for reasons that are in competition with the Services or any other product or service offered by Quick Quack; (d) have full power and authority to enter into and perform this Agreement, and doing so will not violate any other agreement to which you are a party; (e) will not violate any rights of Quick Quack, including intellectual property rights such as copyright or trademark rights; and (f) agree to provide at your cost anything necessary to use the Services.
1.6 Without limiting the generality of the foregoing or any other provision hereof, you acknowledge and agree as follows:
- Not to use the Services in any manner that is, or could reasonably be construed to be, unlawful, fraudulent, misleading, malicious, or discriminatory;
- Each membership applies to the vehicle identified at the initial purchase of such Services. Services are not transferrable between vehicles;
- The Services under this Agreement are for personal use only. The Services may not be used for Commercial Use (as defined below);
- The Services may not be used for Non-Compatible Vehicles (as defined below); and
- Except as set forth in this Agreement or communicated to you in writing by Quick Quack, no Services may be combined with any other Services, programs, or discounts.
As used herein: (a) “Commercial Use” means use of the Services for vehicles that are being used or maintained (i) for the transportation of persons or property for hire, compensation or profit, (ii) by a business, governmental entity or other organization, or (ii) for any other commercial purpose; and (b) “Non-Compatible Vehicles” means vehicles that are not compatible with the equipment at the Quick Quack location for any reason, including, without limitation, vehicles that (i) are incompatible by size, design or modification, or (ii) have accessories, trailers or other items attached to the vehicle that make the vehicle incompatible.
1.7 Access Credentials. You are responsible for keeping your Access Credentials (as defined below) associated with the Services confidential. You will not sell or transfer them to any other person or entity. You will promptly notify us upon learning about any unauthorized access to your Access Credentials. “Access Credentials” means any user name, email address, identification number, password, license plate or license plate number, access key or token, PIN or other method, technology or device used, alone or in combination, to verify a customer and/or access the Services.
2. VIOLATION; TERMINATION.
2.1 Quick Quack reserves the right to investigate violations of any of this Agreement or any other policies of Quick Quack or the Services, or any other violations of any state, federal or local law, rule or regulation, and to pursue any remedy available to Quick Quack whether at law, in equity or otherwise. You hereby acknowledge and agree that Quick Quack may notify, involve and cooperate with law enforcement authorities in investigating and prosecuting users who violate this Agreement or any other policies of Quick Quack or the Services, and any other violations of any state, federal or local laws, rules or regulations.
2.2 You further acknowledge and agree that Quick Quack may, in its sole discretion, suspend or cancel the membership of, and terminate this Agreement with, any user that breaches this Agreement. Breach includes, without limitation, your failure to make any and all payments when due.
2.3 Notwithstanding anything to the contrary, Quick Quack may refuse, in its sole discretion, to permit any use of the Services, and may refuse to permit any person to use the Services for any reason at any time.
3. PAYMENT AND REFUNDS.
3.1 In consideration of the provision of the Services and the rights granted to you under this Agreement, you shall pay the fees set out in Quick Quack’s then current fee schedule (available at: https://www.dontdrivedirty.com/locationsandpricing/). The fees will vary depending on the Services purchased and may be updated from time to time as described in Section 4 below.
3.2 Except when you purchase a Day Pass with cash at a Quick Quack location, when beginning the Services, a valid credit or debit card will be required for billing purposes. You hereby allow Quick Quack to store (or cause a third party to store on behalf of Quick Quack) such payment information and agree to the following policies and procedures for payment of fees related to the Services:
(a) Immediately upon signing up for the Services, the fees associated with your purchase will be billed to such credit or debit card (unless you are paying by cash for a Day Pass, which will be paid at the time of purchase of the Day Pass). If your Services include a monthly subscription (such as a membership), then within one business day before or after the calendar day on which you began such Services, the monthly fees associated with those Services for the following month shall be billed to such credit or debit card by Quick Quack in accordance with the then-current pricing schedule for those Services (e.g., if you began the services on the 5th of the month, the 5th of each following month or one business day before or after the 5th of each following month). You must cancel your monthly subscription before it renews in order to avoid billing of the membership fees for the next month of your monthly subscription. If the credit or debit card associated with your Services should expire, terminate, or any payment is otherwise rejected by the issuing company, Quick Quack may immediately suspend or cancel your membership. It is solely your responsibility to ensure (i) that valid credit or debit card information remains on file for your account, and (ii) that a valid email address remains on file for your account for any communications related to your account.
(b) All fees charged by Quick Quack in connection with the Services are exclusive of any taxes, levies, or duties imposed by any taxing authority, and you shall be, and hereby are, responsible for the payment of all such taxes, levies, or duties arising from your use of the Services.
(c) All payments made to Quick Quack in connection with the Services are non-refundable, and Quick Quack does not offer, and is not required to provide, any refunds or credits. There is no circumstance in which you will be entitled to, or Quick Quack is required to provide, a refund or credit. In its sole discretion, Quick Quack may provide a refund in a manner Quick Quack deems reasonable if (i) Quick Quack terminates your membership without cause before the end of a billing period for which you have paid in full, or (ii) you are seeking a refund otherwise specifically provided for by this Agreement or other written policies of the Services and/or Quick Quack then in effect and fully applicable.
4.1 You acknowledge and agree that we have the right, in our sole discretion, to modify the Services, fees, costs and pricing, and this Agreement from time to time, and that modified terms become effective on posting. You will be notified of modifications through posts on https://www.dontdrivedirty.com/terms-of-service/ and may be notified pursuant to the means described in Section 4.3 below. You are responsible for reviewing and becoming familiar with any such modifications. Quick Quack will endeavor to provide at least seven (7) days’ advance notice of changes to any service level that Quick Quack reasonably anticipates may result in a material reduction in quality or Services. Your continued use of the Services after the effective date of the modifications will be deemed acceptance of the modified terms.
4.2 Notwithstanding the foregoing or anything to the contrary, (a) Quick Quack reserves the right from time to time to modify or discontinue, temporarily or permanently, the Services (or any part thereof); and (b) Quick Quack shall not be liable to you, or to any third party, for any damages, costs, expenses or other liabilities related to any modification, price change, suspension or discontinuance of the Services.
4.3 Without limiting the foregoing, Quick Quack may use email to an email address associated with your account, even if we have other contact information, to alert you to any modifications. You also agree that Quick Quack may communicate with you through any available means including email, mobile number, telephone, or delivery services, including the postal service, about your account or the Services. You acknowledge and agree that we shall have no liability associated with or arising from your failure to maintain accurate contact or other information, including, but not limited to, your failure to receive information about the Services or pricing.
5. UPGRADING, DOWNGRADING OR CANCELLING MEMBERSHIP.
5.1 Your Services may be upgraded, downgraded or cancelled, subject to the terms hereof. When you upgrade, you will immediately be charged the difference between your upgraded Services and your prior Services. When you downgrade Services, you will be charged the applicable fee for the downgraded Services at the beginning of the next billing period after you downgrade.
5.2 You can cancel Services (including removing a vehicle from a Flock Pricing plan) at any time. When you cancel, you are solely responsible for properly canceling the Services. You may cancel the Services by giving notice at least ten (10) days prior to the renewal date of your Services by email at email@example.com or by phone at 888-772-2792. Cancellation of a membership within forty-five (45) days of the initial purchase will be subject to a five dollar ($5.00) cancellation fee applied in Quick Quack’s sole discretion. If you chose not to renew an Autopay membership, your Autopay membership will not renew and your access to the Services will terminate at the end of the applicable billing period. If you choose to cancel your membership immediately (whether an Autopay membership or other membership plan), then in addition to not renewing any Autopay membership, your membership and access to the Services will terminate immediately; provided, however, no refunds shall be given for such cancellation except as determined by Quick Quack in its sole discretion as described in Section 3.2(c).
6. DISCLAIMER OF WARRANTIES.
6.1 THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH NO WARRANTIES WHATSOEVER. QUICK QUACK AND EACH USER OF THE SERVICES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. Without limiting the generality of the foregoing or any other provision hereof, Quick Quack does not warrant that the Services will be available or that any particular Quick Quack location will be operational at all times.
6.2 YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES IS AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY LIABILITY, CLAIM, DAMAGES, LOSS, COST OR EXPENSE, INCLUDING, WITHOUT LIMITATION, LOSS OF DATA, THAT RESULTS FROM OR ARISES FROM YOUR USE OF THE SERVICES.
7. LIMITATIONS OF LIABILITY.
WHETHER OR NOT ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, QUICK QUACK, ITS AFFILIATES, AND ITS SUBSIDIARIES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, MANAGERS, SHAREHOLDERS, MEMBERS, EMPLOYEES, AND AGENTS, SHALL NOT BE LIABLE TO YOU, UNDER ANY LEGAL OR EQUITABLE THEORY, FOR (A) ANY CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR INDIRECT DAMAGES OF ANY KIND, INCLUDING WITHOUT LIMITATION LOST PROFITS, REVENUES OR BUSINESS, ARISING OUT OF, UNDER OR RELATING TO THIS AGREEMENT, OR (B) ANY DAMAGES OF ANY KIND ARISING OUT OF, UNDER OR RELATING TO THE SERVICES IN EXCESS OF THREE TIMES THE MOST RECENT PAYMENT IN CONNECTION WITH THE SERVICES, IF ANY, OR $100, WHICHEVER AMOUNT IS GREATER. THIS LIMITATION OF LIABILITY SHALL APPLY REGARDLESS OF WHETHER THE LIMITED REMEDIES PROVIDED HEREIN FAIL THEIR ESSENTIAL PURPOSE.
You agree to indemnify and hold harmless Quick Quack, its affiliates, and its subsidiaries, and their respective officers, directors, managers, shareholders, members, employees, and agents, from any and all claims, losses, damages, liabilities and any other costs and expenses (including attorneys’ fees), arising from or related to a claim (i) due to your failure to comply with this Agreement, or (ii) due to your negligence or willful misconduct or use of the Services in a manner not authorized by this Agreement.
9.2 Governing Law. Any claim under this Agreement or otherwise related to the Services or Quick Quack shall be governed by the laws of the State of California without regard to its conflict of law provisions.
9.3 Arbitration. IN THE EVENT OF ANY DISPUTE (OTHER THAN ONE FILED IN A COURT THAT IS LIMITED TO ADJUDICATING SMALL CLAIMS, OR AS SET FORTH IN SECTION 9.6) BETWEEN YOU AND QUICK QUACK (“QUICK QUACK” AS USED IN THIS PROVISION MEANS QUICK QUACK, ITS AFFILIATES, AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS), YOU AND QUICK QUACK CONSENT TO ARBITRATE THAT DISPUTE BEFORE A SINGLE ARBITRATOR UNDER THE THEN CURRENT RULES OF THE AMERICAN ARBITRATION ASSOCIATION RATHER THAN LITIGATE THE DISPUTE IN COURT. YOU AND QUICK QUACK ALSO AGREE THAT THE FEDERAL ARBITRATION ACT GOVERNS THE ARBITRABILITY OF ALL DISPUTES BETWEEN YOU AND QUICK QUACK. IF YOU DO NOT WANT TO BE BOUND BY THIS ARBITRATION PROVISION, YOU MUST NOTIFY QUICK QUACK IN WRITING, BY MAIL TO QUICK QUACK AT 1380 LEAD HILL BLVD #260 ROSEVILLE, CA 95661, WITHIN 30 DAYS OF THE EFFECTIVE DATE, STATING THAT YOU DO NOT WANT TO RESOLVE DISPUTES WITH QUICK QUACK BY ARBITRATION. IN ADDITION, YOU AGREE NOT TO PARTICIPATE IN A CLASS ACTION, A CLASS-WIDE ARBITRATION, CLAIMS BROUGHT IN A REPRESENTATIVE CAPACITY, OR CONSOLIDATED CLAIMS INVOLVING ANOTHER PERSON’S ACCOUNT, IF QUICK QUACK IS A PARTY TO THE PROCEEDING. THE ARBITRATOR SHALL INTERPRET AND DETERMINE THE VALIDITY OF THE ARBITRATION PROVISION, INCLUDING ANY ALLEGED UNCONSCIONABILITY.
9.4 Severability. If any provision of this Agreement is found by a court of competent jurisdiction or arbitrator to be illegal, void, or unenforceable, the unenforceable provision will be modified so as to render it enforceable and effective to the maximum extent possible in order to effect the intention of the provision; and if a court or arbitrator finds the modified provision invalid, illegal, void or unenforceable, the validity, legality and enforceability of the remaining provisions of this Agreement will not be affected in any way.
9.5 Entire Agreement. You agree that this Agreement and any terms, conditions or other policies of Quick Quack constitute the entire, complete, and exclusive agreement between you and us regarding the Services, 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.
9.6 Equitable Remedies. You agree that Quick Quack would be irreparably damaged if this Agreement were not specifically followed and enforced. In such an event, you agree that Quick Quack shall be entitled, without bond or other security, or proof of damages, to appropriate equitable relief in the event you breach this Agreement, and that the awarding of equitable relief to Quick Quack will not limit its ability to receive remedies that are otherwise available to Quick Quack under applicable laws. Notwithstanding Section 9.3, you agree that Quick Quack shall still be allowed to apply for equitable relief in any jurisdiction.
9.7 Assignment. Quick Quack may assign this Agreement, in whole or in part, to any person or entity at any time with or without your consent. You may not assign this Agreement without Quick Quack’s prior written consent. Your assignment of this Agreement without Quick Quack’s prior written consent shall be void.
9.8 Waivers. Our failure to act with respect to a breach of this Agreement by you or others does not waive our right to act with respect to that breach or subsequent similar or other breaches.
9.9 Headings. The division of this Agreement into sections and the insertion of captions and headings are for convenience of reference only and will not affect the construction or interpretation of this Agreement.
9.10Questions. Questions about this Agreement should be addressed to firstname.lastname@example.org or by phone at 888-772-2792.