TERMS, CONDITIONS AND LIMITED WARRANTY OF SALE & SERVICE

ACCEPTANCE AND TERMS: These Terms, Conditions & Limited Warranties of Sale and Service (these “Terms and Conditions”) contain the terms, conditions, and warranties applicable to the purchase and sale of the patented Opus IVS® remote diagnostic device (the “Opus IVS Device”) and delivery of related Opus IVS Services by Repairify, Inc. d/b/a Opus IVS (“Opus IVS”). The Purchase and Service Agreement, by and between Opus IVS and the Customer, into which these Terms and Conditions are incorporated is referred to herein as the “PSA”. Capitalized terms used but not otherwise defined herein shall have the meaning ascribed to them in the PSA. The TEXT MESSAGING (SMS) PROGRAM – SMS TERMS section at the end of these Terms and Conditions (Section 15) sets out the terms of Opus IVS Scan Alerts, Opus IVS’s scan completion text message program, and applies to any person who opts in to that program, whether or not that person is a party to a PSA; for a person who is not a party to a PSA, Section 15, read with the definitions in this ACCEPTANCE AND TERMS section, is the only part of these Terms and Conditions that applies to that person’s participation in the program.

PRICES; PAYMENT TERMS: The prices, discounts, and incentive programs quoted in the PSA are subject to change at any time upon notice from Opus IVS. Customer shall make payments according to the schedule set out in the PSA. Any amount remaining unpaid thirty (30) days after its due date under that schedule shall bear interest at 1.5% per month or the maximum rate allowed by law, whichever is less. Opus IVS may charge Customer a $25.00 service fee, or up to the maximum rate allowed by law, whichever is less, if Customer’s check, bank draft, electronic funds transfer, credit card, or other order for payment is dishonored or returned for insufficient funds or any other reason. In the event of a payment default, Customer will be responsible for all of Opus IVS’s costs of collection, including, but not limited to, court costs, filing fees, and reasonable attorneys’ fees. In addition, Opus IVS reserves the right to terminate or suspend delivery of the Opus IVS Device(s) and/or Opus IVS Services until payment is received. Installation and training are not included in the price unless specifically described in the PSA. Opus IVS’s prices do not include any sales, use, excise, or other taxes, all of which are the responsibility of Customer or any export crating, freight, or insurance, unless specifically set out in the PSA.

SMS TERMS: the terms for Opus IVS Scan Alerts, Opus IVS’s scan completion text messages, are at the end of this page under TEXT MESSAGING (SMS) PROGRAM – SMS TERMS (Section 15).

SPECIFICATIONS, PERFORMANCE: Opus IVS reserves the right to change its products and its specifications at any time without notice. Specifications, depictions, and descriptions in any picture, catalogue, brochure, or other literature are subject to change without notice and do not constitute a sample, representation, warranty, or guaranty, and do not become a part of any PSA or of the purchase of the Opus IVS Device(s) and the Opus IVS Services.

LIMITED WARRANTIES: Subject to the terms and conditions set forth in the PSA, including these Terms and Conditions, Opus IVS extends the following limited warranties:

OPUS IVS DEVICE(S): Opus IVS warrants to the Customer, only when the original purchaser, that the Opus IVS Device, excluding cables, shall be free from substantial defect in material or workmanship under normal use and service for the period of two (2) years after delivery to the Customer location. Opus IVS’s obligation under this warranty is limited solely to the repair or replacement, at Opus IVS’s option, of the Opus IVS Device or any component part thereof. This warranty is not transferable. If Customer selects an Opus IVS monthly subscription agreement, Opus IVS shall provide a universal coverage warranty, guaranteeing that Customer will always have an operating device in new or like-new condition (as determined in Opus IVS’s discretion) for the term of the subscription agreement.

OPUS IVS SERVICES: Opus IVS warrants that, where Opus IVS Services are completed on a vehicle using the Opus IVS Device, and where Customer’s shop technicians have followed service and repair recommendations provided on the scan report from Opus IVS, the vehicle will be free of Diagnostic Trouble Codes (“DTCs”), with the exceptions of certain manufacturer-dependent codes, which can be converted from “Active” to “History,” but require a pre-determined number of keystrokes and/or miles driven to be cleared. Where it is determined that a DTC reoccurs or re-illuminates a malfunction indicator lamp (MIL) after repairs have been completed and the vehicle is returned to its titled owner, Opus IVS will re-scan the vehicle at no charge and provide a rental vehicle reimbursement on approved claims of up to $25.00 per day for a maximum of three (3) days. In addition, if a vehicle is more than 25 miles from the vehicle repair facility and requires being towed, Opus IVS will provide a towing reimbursement on approved claims of up to $50.00 in total. This warranty is effective for the earlier of three (3) business days or 250 miles driven after delivery of the vehicle to its titled owner, so long as the vehicle is returned to the vehicle repair facility that performed the work within said period or miles, provided that this warranty will be extended for the number of days, as determined in Opus IVS’s reasonable discretion, that a force majeure event (defined below) prevents or interrupts the return of the vehicle to the vehicle repair shop. This warranty is limited to DTCs that were missed in the original scan and does in no way guarantee the parts or labor performed by the vehicle repair facility. This warranty is only for the Customer who initiated the original service request with Opus IVS and the titled owner of the vehicle that was serviced. This warranty only applies if the “Request for Service” (“RFS”) submitted by Customer to Opus IVS is accurate and contains complete information, including providing all required vehicle information. Opus IVS is not responsible for any failed or ineffectual Opus IVS Services due to an RFS containing inaccurate or incomplete information. This warranty is not transferable. Other than this warranty, the titled owner of the vehicle that was serviced will not be deemed a third-party beneficiary of any other terms and conditions of the PSA.

EXCEPT FOR THE EXPRESS WARRANTIES OPUS IVS MAKES IN THIS SECTION 4, OPUS IVS MAKES NO WARRANTY TO THE OPUS IVS DEVICES OR OPUS IVS SERVICES. OPUS IVS EXPLICITLY DISCLAIMS ANY AND ALL OTHER WARRANTIES, WHETHER STATUTORY, ORAL, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO ALL IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.

Customer waives any rights under the warranties set forth in this Section 4, and Opus IVS shall have no obligations therefore, if any payment owing to Opus IVS remains unpaid or if Customer’s account with Opus IVS is in arrears. Product or service failures or defects caused by accidental damage, negligence, failure to maintain, unreasonable use, misuse (whether intentional or unintentional), abuse of the Opus IVS Device or the Opus IVS Services by Customer or the end user are excluded from the warranties in this Section 4. Such warranties shall be null and void for any Opus IVS Device (including any component part) or Opus IVS Service, which is modified or altered in any way by any person not authorized by Opus IVS. Opus IVS is not responsible for, and will not pay for, work performed, or repairs made by any other party unless prior written approval is obtained from Opus IVS.

WARRANTY CLAIM PROCEDURE: To initiate a warranty claim, Customer shall contact Opus IVS Customer Service using the toll-free phone number 1-888-486-1166. Notice of any warranty claim must be received by Opus IVS within the warranty coverage time specified under Section 4 above or otherwise be barred. Repairs or replacements for qualifying warranty claims will be made within a reasonable time following the Customer’s notice. Opus IVS will ship a pre-printed UPS or other appropriate return label to Customer and Customer agrees to return the non-functioning Opus IVS Device to Opus IVS’s address with original case.

LIMITATION OF LIABILITY: Except as expressly set forth herein, Opus IVS shall not be bound by any representation, promise, or inducement made by its agent or employee. The remedies of Customer set forth in these Terms and Conditions are Customer’s exclusive remedies. THE AGGREGATE LIABILITY OF OPUS IVS FOR ANY CLAIM OF ANY KIND FOR ANY LOSS OR DAMAGE RESULTING FROM, ARISING OUT OF, OR CONNECTED WITH THESE TERMS AND CONDITIONS OR FROM THE PERFORMANCE OR BREACH THEREOF, OR FROM THE MANUFACTURE, SALE, DELIVERY, RESALE, REPAIR, OR USE OF OPUS IVS DEVICE OR OPUS IVS SERVICE, WHETHER BASED ON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, INDEMNITY, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE PRICE ALLOCABLE TO THE OPUS IVS DEVICE (INCLUDING ANY COMPONENT PART) AND/OR OPUS IVS SERVICE WHICH GAVE RISE TO THE CLAIM. IN NO EVENT SHALL OPUS IVS BE LIABLE TO CUSTOMER OR ANY OTHER PARTY FOR COMPENSATORY, PUNITIVE, SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES, OR ANY SIMILAR DAMAGES, WHETHER FORESEEABLE OR NOT, ARISING FROM OR RELATED TO ANY DEFECT OR FAILURE OF THE OPUS IVS DEVICE AND/OR OPUS IVS SERVICE, INCLUDING BUT NOT LIMITED TO: LOSS OF PROFITS, REVENUE OR BUSINESS OPPORTUNITY, OR LOSS BY REASON OF SHUTDOWN OF FACILITIES.

SETOFF: Neither Customer nor any of its affiliates shall have any right to set off claims against Opus IVS or any of its affiliates for the amounts owed under the PSA or otherwise.

WAIVER OF INSURED CLAIMS AND SUBROGATION: Customer and Opus IVS, for themselves, for all other insured under any applicable insurance policy, and for their insurers under any applicable insurance policy, hereby waive any right of subrogation against each other and against their respective employees, agents, officers, suppliers, and affiliates, to the fullest extent permitted by each such policy.

CUSTOMER’S COVENANTS; INDEMNIFICATION:
Customer covenants to Opus IVS that Customer: (i) will use the Opus IVS Device and the Opus IVS Services only for their intended uses; will not use the Opus IVS Device and the Opus IVS Services for personal, family, or household purposes; will keep the Opus IVS Device in good repair; (ii) will train in the use of the Opus IVS Device and the Opus IVS Services all operators, service technician personnel, other employees, and third parties who deal with the Opus IVS Device and the Opus IVS Services; (iii) will be responsible for completing RFS’s accurately and completely, including all required vehicle information; (iv) will implement and comply with any and all applicable state, federal, national, regional, provincial, municipal, and other laws or regulations; (v) has determined without reliance on Opus IVS that the Opus IVS Device and the Opus IVS Services are suitable components in Customer’s processes and services; (vi) will comply with the terms of the PSA without limiting the foregoing; (vii) has properly represented to Opus IVS in writing the true destination, use, and ownership of the Opus IVS Device and will comply with all applicable requirements and restrictions of United States export laws and regulations; (viii) if ownership of with the Opus IVS Device is transferred, will notify Opus IVS of the name and address of the new owner and will furnish the new owner with all manuals and instructions. Customer shall promptly notify Opus IVS of any failure or ineffectual results from the Opus IVS Device or Opus IVS Services; (ix) will provide Opus IVS with access to the Opus IVS Device, including mailing the non-functioning Opus IVS Device back to Opus IVS in accordance with Section 5; and (x) Customer will furnish Opus IVS with all information reasonably requested by Opus IVS that is needed to perform the repair or replacement, at Opus IVS’s option, of the Opus IVS Device or any component part thereof.
Customer understands the Opus IVS Device and Opus IVS Services do not include any Internet communication services, operating supplies, or accessories. Customer is further aware that the Opus IVS Services provided by Opus IVS shall be rendered remotely by and through the Internet and Customer is solely responsible for providing and maintaining its own secure, high-speed (minimum 10 MB/sec) Internet connection for non-mobile enabled Opus IVS Device(s) in order to receive the Opus IVS Services, including vehicle code analytics, delivered by Opus IVS. Opus IVS shall not be responsible for any failures caused by any Internet or Mobile Service Provider outages, Customer’s Internet Service Provider or Customer’s connection thereto.

INDEMNIFICATION: Customer shall defend, indemnify and hold harmless Opus IVS, its officers, agents, affiliates, suppliers and employees for any and all liability arising out of or related to this PSA which was directly or indirectly caused by the negligent or grossly negligent acts or omissions or willful misconduct of CUSTOMER, its employees, agents, contractors, officers, directors, or successors.

SHIPPING: Unless otherwise stated in the PSA or agreed in writing by Opus IVS, the Customer assumes responsibility for the Opus IVS Device FOB Shipping Point. As an accommodation to the Customer, Opus IVS may pre-pay the cost of freight and add such cost to the invoice, but such prepayment shall not affect the risk of loss or damage, which shall remain with Customer.

FORCE MAJEURE: Opus IVS shall not be liable for any loss or delay due to acts of God, any change in or adoption of any law or regulation by a governmental authority, strikes, natural disasters, fires, floods, earthquakes, severe weather, epidemics, pandemics, quarantine restrictions, war, terrorism, riot, delays in transportation, telecommunication infrastructure or Internet failures, inability to obtain necessary labor or materials from usual sources, or other causes beyond the reasonable control of Opus IVS (collectively, referred to herein as “Force Majeure Events”). In the event of any delays in performance due to a Force Majeure Event, the date of delivery or performance shall be deferred for a period equal to the time lost by the reason of the delay.

CONFIDENTIALITY; OWNERSHIP: Customer and Opus IVS shall each use their commercially reasonable efforts to avoid disclosure to third parties of any of Customer’s and Opus IVS’s proprietary and confidential information associated with, but not limited to, the Opus IVS Device and the Opus IVS Services. Customer shall use the Opus IVS Device and the Opus IVS Services only with Customer’s employees, agents, consultants, and representatives requiring access to the Opus IVS Device and the Opus IVS Services in order to perform vehicle repair services. Customer and Opus IVS shall not be responsible for the use and disclosure of any such confidential and proprietary information if the same is (i) in the public domain at the time it was disclosed; (ii) used or disclosed with the prior approval of the other party; (iii) already in the receiving party’s possession free from confidentiality at the time of disclosure or independently developed by the receiving party without use of the proprietary or confidential information; or (iv) becomes known to the receiving party from a third party without any obligation of confidentiality and without any breach of confidentiality by such third party. Notwithstanding anything to the contrary in the PSA, Opus IVS retains all right, title, and interest in and to the Opus IVS Device and the Opus IVS Services, any modifications thereto and all materials provided by Opus IVS to Customer. Customer shall not (i) copy, modify, or create any derivative work of, (ii) reverse engineer or otherwise attempt to derive source code (or the underlying ideas, algorithms, structure, or organization), or (iii) remove any patent or copyright notices, identification, or any other proprietary notice from any hardware, software, copyrighted content, and any proprietary information related to the Opus IVS Device and the Opus IVS Services.

GENERAL:
The PSA contains the entire and only agreement between the parties with respect to the subject matter hereof and supersedes all prior oral and written offers, negotiations, and understandings between Customer and Opus IVS concerning the purchase of the Opus IVS Device and the delivery of the Opus IVS Services as described in the PSA. Any prior course of dealings or usage of the trade are excluded unless they are expressly incorporated in the PSA. In the event that one or more of the provisions of the PSA shall be found by a competent court of law to be invalid, illegal, or unenforceable in any respect, the validity, legality, and enforceability of the remaining provisions contained herein shall not be affected thereby, and the parties agree such provisions shall be reformed by such court of law to make such provisions enforceable to the maximum extent permitted by law.

All notices required or permitted to be given hereunder shall be in writing and shall be either hand-delivered, sent by recognized overnight delivery service, by facsimile, by email, or sent U.S. mail (in each case, delivery of notice shall be verified by registered or certified, return receipt requested or signature confirmation).

Section headings are for convenience only and shall not be construed to limit or modify the text in any Section.

Interpretation and enforcement of any PSA and the performance thereof will be governed by and construed according to the laws of the State of Texas, USA, without reference to the rules of any jurisdiction concerning conflicts of law and without application of the United Nations Convention on Contracts for the International Sale of Goods. With regard to any and all conflicts, controversies, and disputes between the parties arising out of or in relation to the PSA: (i) if Customer is a United States entity or person, including an entity or person of any State, Territory, or Protectorate of the United States, the parties hereto irrevocably submit to the exclusive jurisdiction of the Federal and State courts sitting in Dallas or Collin County, Texas, for final adjudication of the matter in controversy, and they waive any claims as to inconvenient forum; CUSTOMER AND OPUS IVS HEREBY FURTHER WAIVE THEIR RESPECTIVE RIGHT TO TRIAL BY JURY OF ANY CAUSE OF ACTION, CLAIM, COUNTERCLAIM, OR CROSS-COMPLAINT IN ANY ACTION, PROCEEDING, OR HEARING BROUGHT BY EITHER PARTY AGAINST THE OTHER ON ANY MATTER WHATSOEVER ARISING UNDER, RELATING TO, OR IN ANY WAY CONNECTED WITH THE PSA, THE OPUS IVS DEVICE OR THE OPUS IVS SERVICES; and (ii) if Customer is not a United States entity or person, the parties hereto irrevocably submit the matter to final and exclusive determination through arbitration in English, in Dallas, Texas, USA, under the auspices and International Rules of the International Centre for Dispute Resolution, under a single arbitrator, who is hereby authorized and instructed to award damages and issue injunctions, as well as to award costs to the party prevailing in such arbitration, and the parties consent to the jurisdiction of any court for the exclusive purpose of enforcement of the arbitral award.

Unless otherwise agreed to in writing by the parties, all documentation, signs, warnings, explanations, information, operating manuals, and training materials shall be provided by Opus IVS only in English; Customer at its cost shall supply, in a timely fashion, translations of all such items into the language(s) of the country where the Opus IVS Device will be installed and operated and shall promptly place warnings and signs on the Opus IVS Device and supply translated documentation to users, operators, and others as reasonably expected or needed for safety, information, and compliance with applicable laws. Customer shall indemnify Opus IVS with respect to any costs, damages, and other losses suffered by Opus IVS, including but not limited to reasonable attorneys’ fees, for Customer’s failure of the timely and accurate supply of documentation and interpretation as provided in this Section 14(e).

TEXT MESSAGING (SMS) PROGRAM – SMS TERMS:

Section 15 last updated: [PUBLICATION DATE]

(a) Applicability. This Section 15 governs Opus IVS Scan Alerts, the scan completion text message program (the “SMS Program”), and applies to any person who opts in to the SMS Program (“you”), whether or not you are a party to a PSA. As to the SMS Program, this Section 15 controls over any conflicting provision of these Terms and Conditions. If you are not a party to a PSA, this Section 15 is the only part of these Terms and Conditions that applies to your participation in the SMS Program, except that capitalized terms that this Section 15 uses but does not define have the meanings given in ACCEPTANCE AND TERMS. Requests to opt out of the SMS Program are not subject to the written-notice requirements in the GENERAL section of these Terms and Conditions (Section 14(b)).

(b) Program description. When you select Text as your preferred contact method on a remote diagnostic scan work order in the Opus IVS Connect application, Opus IVS may send one automated, informational text message from an Opus IVS toll-free number to the mobile number you provide, letting you know that the scan for that work order is complete and the Opus IVS Device can be disconnected from the vehicle. SMS Program messages are transactional and relate only to the work order for which you selected Text. Opus IVS does not send marketing or promotional messages through the SMS Program.

(c) Consent is optional. Selecting Text is not required to use Opus IVS Connect or to receive Opus IVS’s remote diagnostic scan services. Opus IVS Connect also offers Chat and Phone as contact methods, and you receive the same service whichever you choose. Consent to receive text messages is not a condition of any purchase. Enter only a mobile number that you use. By selecting Text, you confirm that you are the subscriber or an authorized user of that number.

(d) Message frequency. One message per work order for which you select Text.

(e) Message and data rates. Message and data rates may apply to messages Opus IVS sends to you and messages you send to Opus IVS. Contact your wireless provider for information about your text messaging or data plan.

(f) How to opt out. You can opt out at any time by replying STOP, UNSUBSCRIBE, CANCEL, or QUIT to any SMS Program message. You will receive a confirmation text that you have been unsubscribed, and you will receive no further SMS Program messages at that mobile number. You may also opt out by calling Opus IVS Customer Service at 1-888-486-1166 or by any other reasonable means, and Opus IVS will honor your request promptly and in any event within 10 business days.

(g) How to opt back in. Selecting Text on a later work order does not resume SMS Program messages to a mobile number that has opted out. If you opted out by replying STOP, UNSUBSCRIBE, CANCEL, or QUIT, the opt-out is recorded at the carrier level for the number that sends SMS Program messages, and Opus IVS cannot resume messages on your behalf; reply UNSTOP to that number to opt back in. If you opted out in any other way, call Opus IVS Customer Service at 1-888-486-1166 to opt back in. If you are not sure how your mobile number was opted out (for example, because someone else who uses it opted out), call Opus IVS Customer Service and Opus IVS will tell you which of these steps applies. Once you have opted back in, SMS Program messages can again be sent for work orders on which you select Text.

(h) What opting out affects. Opting out ends SMS Program messages to your mobile number. It does not change notifications within Opus IVS Connect or work order report emails. If you do not want text messages about a work order, choose Chat or Phone as the contact method for that work order.

(i) Shared mobile numbers. Opt-out and opt-in requests apply to a mobile number, not to an individual Opus IVS Connect account. If more than one person uses the same mobile number, opting out stops SMS Program messages for everyone who uses that number.

(j) Help. For help, reply HELP to any SMS Program message and Opus IVS will reply with how to reach Opus IVS and how to opt out. You can also use chat in Opus IVS Connect or call Opus IVS Customer Service at 1-888-486-1166.

(k) Supported carriers. SMS Program messages can be delivered to subscribers of major U.S. and Canadian wireless carriers, including AT&T, T-Mobile and Verizon in the United States and Bell, Rogers and TELUS in Canada. Carriers are not liable for delayed or undelivered messages. Message delivery depends on your wireless carrier and is not guaranteed.

(l) Privacy. Opus IVS collects your mobile number only when you voluntarily provide it on a work order. Opus IVS uses the mobile number you provide on a work order only in connection with that work order, including to contact you about it, and to keep records of text message consent and opt-outs. No mobile information will be shared with third parties/affiliates for marketing/promotional purposes. All other categories exclude text messaging originator opt-in data and consent; this information will not be shared with any third parties. Opus IVS will not sell or transfer your mobile number to another party, including after you opt out. For more information, see the Opus IVS Privacy Policy.

(m) Changes. Opus IVS may update this Section 15 or discontinue the SMS Program at any time. Updates will be posted on this page with a revised “Section 15 last updated” date.