TERMS AND CONDITIONS OF SERVICE
1. Parties to this Agreement; Definitions. As used in this Agreement, the terms: (a) “Rush” shall mean the Rush repair facility identified in the Service Authorization, estimate, work order, online request or other ordering document; (b) “Customer” shall mean the Customer identified in the Service Authorization, estimate, work order, online request or other ordering document; (c) “Manufacturer(s)” shall mean the entity or entities that manufactured the Parts used in the Services; (d) “Part(s)” shall mean the new and/or used parts, components, accessories or materials used in the Services; and (e) “Services” means the repair and/or maintenance services performed by Rush for Customer, together with the Parts.
2. WARRANTY DISCLAIMERS AND LIMITATIONS
LIMITED WARRANTY ON SERVICES: Rush warrants that the Services will be performed in a good and workmanlike manner (“Services Warranty”). The Services Warranty is valid for a period of 90 days from the date the Services are performed. Customer’s sole and exclusive remedy, and Rush’s entire liability under the Services Warranty, is the repair of any nonconforming portion of the Services. The Services Warranty is valid only if the vehicle is returned, at Customer’s expense, to one of Rush’s repair facilities. Any claim for repairs to be performed by other than a Rush facility must be approved in writing by Rush prior to commencement of any work. The Services Warranty extends only to the Customer for whom the Services were provided and not any subsequent purchaser. RUSH PROVIDES NO OTHER WARRANTIES CONCERNING ITS SERVICES AND DISCLAIMS ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.
PARTS – MANUFACTURER WARRANTIES ONLY: Any warranties on any Parts are limited only to those written warranties provided by the applicable Part’s manufacturer. EXCEPT FOR ANY SUCH WARRANTIES MADE BY MANUFACTURERS, THE PARTS ARE SOLD WITHOUT ANY OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED.
NO OTHER WARRANTIES: EXCEPT AS SET FORTH ABOVE, RUSH EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. Rush neither assumes nor authorizes any other person to assume for it any liability in connection with the services or any parts provided to customer in conjunction with the services.
3. Rates; Authorization; Additional Repairs. Rush’s charges for labor are not based on actual mechanic’s time, but are established by multiplying Rush’s labor rate by industry time allowances or Rush’s own judgment of the time to be charged. If an estimate is provided, Customer will not be charged more than the estimated price approved by Customer. However, if Rush discovers that different or additional repairs are indicated, Customer will be contacted for authorization to make such additional repairs. Authorization may be given by Customer orally or in written form, including email. In the event that Customer authorizes commencement but does not authorize completion of a repair or service, a charge will be imposed for disassembly, reassembly, or partially completed work. Such charge will be directly related to the actual amount of mechanic’s time and/or parts involved in the inspection, repair, or service performed. Rush will submit warranty claims on behalf of Customer for manufacturers for whom it is authorized to perform warranty service; however Customer understands and agrees that it is responsible for full payment for any Services provided that are not covered by warranty. Rush is not responsible for any loss, damage, or other liability caused by, arising from, or related to repair or maintenance work recommended by Rush that is declined by Customer. Customer agrees that Rush employees may operate Customer’s vehicle for purposes of facilitating the repairs, including but not limited to diagnosing, road testing, and sublet services.
4. OEM Parts. Customer acknowledges that estimates for non-warranty repairs may include parts not made by the original manufacturer. Parts used in the non-warranty repair of customer’s vehicle by other than the original manufacturer are required to be at least equal in like kind and quality in terms of fit, quality and performance to the original manufacturer parts they are replacing.
5. Sublet Repairs. Customer acknowledges that portions of the repairs may be provided by a subcontractor hired by Rush and Customer hereby authorizes all sublet repairs that Rush, in its sole discretion, may deem necessary.
6. Damage; Theft. Rush is not responsible for loss of or damage to the vehicle due to or arising from fire, weather, theft or any other cause except the sole negligence of Rush. Rush is not responsible for any loss or damage to articles of personal property that have been left in the vehicle or for loss or damage to bodies, trailers or special equipment, including any cargo, materials or supplies carried on or in such bodies, trailers or special equipment, whatever the cause.
7. Payment; Storage Fees. All charges for repairs including labor and materials furnished are due and payable simultaneously with the delivery of the within described vehicle or prior to delivery upon the expiration of three (3) days after notice to Customer that the repairs have been completed. If the vehicle described herein is not picked up within three (3) days after such notice is given, Rush may charge daily storage fees at rates that are ordinary and customary for the area, but not to exceed $50.00 per day or the maximum rate allowable by applicable law.
8. Mechanic’s Lien; Lien Sale; Collection. In addition to any and all other legal remedies available to Rush, Customer authorizes and acknowledges an express mechanic’s lien in favor of Rush on the vehicle described herein for all charges for repairs, including labor and parts, storage and/or towing. Customer authorizes and acknowledges that if payment in full is not received within ten (10) days after Rush has notified the Customer that the repairs are completed: (i) Rush may, in accordance with applicable state law, begin lien sale proceedings and sell the vehicle at public auction; and/or (ii) Rush may refer such account to its attorneys or a collection agency for collection.
9. Governing Law; Venue; Time to Commence Action. Except to the extent that the laws of the United States may apply or otherwise control this Agreement, the rights and obligations of the parties hereunder shall be governed by, and construed and interpreted in accordance with the laws of the state in which Rush is located, without regard to conflict of law principles. The mandatory venue for any claim, litigation, civil action, or any other legal or administrative proceeding (“Action”) involving any controversy or claim between or among the parties to this Agreement, is the county and state in which Rush is located. Customer has one (1) year from the accrual of any cause of action arising from the purchase of the Services to commence an Action against Rush.
10. LIMITATION OF DAMAGES. CUSTOMER AGREES THAT IN THE EVENT OF ANY ACTION BROUGHT BY CUSTOMER AGAINST RUSH, CUSTOMER SHALL NOT BE ENTITLED TO RECOVER ANY INCIDENTAL OR CONSEQUENTIAL DAMAGES AS DEFINED IN THE UNIFORM COMMERCIAL CODE, INCLUDING, BUT NOT LIMITED TO INDIRECT OR SPECIAL DAMAGES, LOSS OF INCOME OR ANTICIPATED PROFITS, OR DOWN-TIME, OR ANY PUNITIVE DAMAGES.
11. Fees and Expenses of Actions. In any Action, whether initiated by Rush or Customer, where the Customer has a right, pursuant to statute, common law or otherwise, to recover reasonable attorneys’ fees and costs in the event it prevails, Customer agrees that Rush shall have the same right to recover reasonable attorneys’ fees and costs incurred in connection with the Action in the event that Rush prevails.
12. Waiver; Severability; Entire Agreement. No waiver of any term of this Agreement shall be valid unless it is in writing and signed by Rush’s authorized representative. If any provision or part of any provision of this Agreement shall be deemed to violate any applicable law or regulation, such invalid provision or part of a provision shall be inapplicable, BUT the remaining part of that provision and the remainder of the Agreement shall continue to be binding and enforceable. This Agreement constitutes the entire agreement and understanding between the parties hereto and supersedes any and all prior agreements and understandings, oral or written, relating to the subject matter hereof.
13. Communication Consent; Use of Customer Data. Customer acknowledges that Rush and third parties with which Rush contracts may use any information Customer provides Rush or that Rush gathers or generates in the course of providing services to Customer, including but not limited to parts purchasing and repair information and data, email addresses and phone numbers (“Customer Data”) to contact Customer for marketing and sales purposes and in support of services provided by Rush and the third parties to their customers. Customer also authorizes Rush to use and disclose Customer Data to third parties for any purpose in an anonymous or aggregated form that does not identify Customer.