Terms and Conditions of Parts, Maintenance, and Repair Services

 

1. Parties to this Agreement; Definitions.

1.1  As used in this Agreement, the terms: (a) “YMS” means the Yard Mule Specialists, Inc. repair facility identified in the Service Authorization, estimate, work order, online request or other ordering document; (b) “Customer” means the Customer identified in the Service Authorization, estimate, work order, online request or other ordering document; (c) “Manufacturer(s)” means the entity or entities that manufactured the Parts used in the Services; (d) “Part(s)” means the new or used parts, components, accessories or materials used in the Services; and (e) “Services” means the repair or maintenance services performed by YMS for Customer, together with the Parts.

1.2 These General Terms and Conditions will apply exclusively to repair works undertaken by YMS, except where other agreements have been explicitly made. Any general terms of the customer inconsistent with or supplement the General Terms and Conditions set forth here shall only apply as long as YMS has expressly consented to them in writing.

 

2. WARRANTY DISCLAIMERS AND LIMITATIONS AND LIMITED WARRANTY ON SERVICES:  

2.1 YMS warrants that the Services will be performed in a good and workmanlike manner (“Services Warranty”).  The Services Warranty is valid for 90 days from the date the Services are performed. Customer’s sole remedy, and YMS’ 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 YMS’ repair facilities. All warranty work is performed during normal business hours. Any claim for repairs to be performed by other than a YMS facility must be approved in writing by YMS before commencement of any work. The Services Warranty extends only to the Customer for whom the Services were provided and not any subsequent purchaser. YMS PROVIDES NO OTHER WARRANTIES CONCERNING ITS SERVICES AND DISCLAIMS ANY OTHER WARRANTIES, EXPRESS OR IMPLIED.

2.2  Any warranties on any Parts are limited only to those written policies and  warranties provided by the applicable Part’s manufacturer, and based on manufacturer’s approval.  All warranty work is performed during normal business hours. No warranty on electrical items. EXCEPT FOR ANY SUCH WARRANTIES MADE BY MANUFACTURERS, THE PARTS ARE SOLD WITH NO OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY IMPLIED WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, EACH OF WHICH IS EXPRESSLY DISCLAIMED.

2.3 NO OTHER WARRANTIES:  UNLESS SET FORTH ABOVE, YMS EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED. YMS neither assumes nor authorizes any other person to assume for it any liability in connection with the services or any parts provided to customer as part of the services.  

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3. Rates; Authorization; Additional Repairs.  

3.1 A). YMS’s charges for labor are not based on actual mechanic’s time, but are established by multiplying YMS’s labor rate by industry time allowances or YMS’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 YMS 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. It is understood that YMS does not act as a safety advisor and that Customer must rely on its own safety assessment in determining the need for repairs.

B). If 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.  All cores must be returned within 30 days.

3.2 YMS will submit warranty claims on behalf of Customer for manufacturers for whom it is authorized to perform warranty service; and Customer understands and agrees that it is responsible for full payment for any Services provided that are not covered by warranty.  YMS is not responsible for any loss, damage, warranty, or other liability caused by, arising from, or related to repair or maintenance work recommended by YMS that is declined by Customer. Customer agrees that YMS employees may operate Customer’s vehicle to facilitate the repairs, including, but not limited to, diagnosing, road testing, and sublet services.  

3.3  If the Customer elects not to proceed with any Work any reason after diagnostics have been performed, including not accepting the YMS estimate, the Customer agrees to pay a flat diagnostic fee of $450.00, and customer will accept and remove its property in a disassembled condition and if re-assembled, without warranty and Customer agrees to pay for the reasonable re-assembly costs.

 

4. OEM Parts. 

4.1 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.

4.2 PARTS RETURN POLICY.  All returns must be approved by YMS Parts Research Team before return.  Customer agrees to the following: A 15% re-stocking fee will be assessed on all returns of stock items.  All non-stock or special-order returnable parts are subject to re-stocking charge of up to 30%.  Freight charges will be added to all returns. All claims for returned parts must include the purchase invoice. No refund after 30 days, and parts must be in new, uninstalled, undamaged, and saleable condition in YMS’ sole discretion.  No returns on filters or electrical parts of any type.  All cores must be returned within 30 days to be eligible for refund.

4.3 MATERIAL HANDLING. Due to the extreme volatility in the parts and materials marketplace, YMS reserves the right to adjust pricing on orders at any time prior to delivery.

 

5. Sublet Repairs.  

5.1 Customer acknowledges that portions of the repairs may be provided by a subcontractor hired by YMS and Customer authorizes all sublet repairs that YMS, in its sole discretion, may deem necessary.

 

6. Damage; Theft.  

6.1 YMS 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 gross negligence of YMS.  YMS 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. 

7.1 All charges for repairs including labor and materials furnished are due and payable simultaneously with the delivery of the within described vehicle or before delivery upon the expiration of three days after notice to Customer that the repairs have been completed, or as otherwise agreed in writing.  If the vehicle is not picked up within three business days after such notice is given, YMS 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.  

8.1 Along with any and all other legal remedies available to YMS, Customer authorizes and acknowledges the attachment of an express mechanic’s lien as a valid and perfected possessory security interest in favor of YMS, on the vehicle for all charges for repairs, including diagnosis, labor and parts, storage, and towing. 

8.2 Unless otherwise agreed in writing, Customer authorizes and acknowledges that if payment in full is not received within 30 days after YMS has notified the Customer that the repairs are completed: (i) YMS may, in accordance with applicable state law, begin lien sale proceedings and sell the vehicle at public auction; and/or (ii) YMS may refer such account to its attorneys or a collection agency for collection.

 

9. Governing Law; Venue; Time to Commence Action.  

9.1 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 under this agreement shall be governed by, and construed and interpreted under Texas law, 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 agreed to be Brazoria County, Texas. Customer agrees it has one year from the accrual of any cause of action arising from the purchase of the Services to sue YMS.

 

10. LIMITATION OF DAMAGES.  

10.1  CUSTOMER AGREES THAT IN THE EVENT OF ANY ACTION BROUGHT BY CUSTOMER AGAINST YMS, CUSTOMER WILL HAVE NO RIGHT 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.  

11.1  In any Action, whether initiated by YMS or Customer, where the Customer has a right, under statute, common law or otherwise, to recover reasonable attorneys’ fees and costs if it prevails, Customer agrees that YMS will have the same right to recover reasonable attorneys’ fees and costs incurred in connection with the Action if YMS prevails.

 

12. Waiver; Severability; Entire Agreement.  

12.1  No waiver of any term of this Agreement will be valid unless it is in writing and signed by YMS’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 not apply, and the remaining part of that provision and the rest of the Agreement shall remain binding and enforceable. 

12.2 This Agreement constitutes the entire agreement and understanding between the parties for the subject matter.

 

13. Communication Consent; Use of Customer Data.  

13.1 YMS may use information Customer provides YMS, including, but not limited to, email addresses, cell phone numbers, and landline numbers (“Customer Data”) to contact Customer for purposes related to this account, including debt collection, and for marketing and sales purposes. Customer also authorizes YMS and its affiliates to use and disclose Customer Data to third parties for any purpose in an anonymous or aggregated form that does not identify Customer. 

13.2 In addition, Customer Data and vehicle maintenance service and repair information arising from or created as a result of maintenance and repair services provided by YMS to Customer, including vehicle owner information, vehicle identification numbers and vehicle specifications (“Vehicle Repair Data”), may be provided to vehicle/component manufacturer(s) and the vehicle/component manufacturer(s) dealers, and their respective service management platform providers (“Maintenance Third Parties”) and used by YMS and such Maintenance Third Parties to support and enhance vehicle repair services provided to YMS and the Maintenance Third Parties’ customers.  Customer also authorizes YMS and the Maintenance Third Parties to use and disclose Vehicle Repair Data to third parties for any purpose in an anonymous or aggregated form that does not identify Customer.