TERMS OF SERVICE
Last updated: Aug 29, 2023 7:03 AM
These Terms include a mandatory agreement to arbitrate in Section 12, which means that you agree to submit any dispute related to your membership or the Services to binding individual arbitration rather than proceed in court. There is also a 30 day opt-out right as detailed below.
The “agreement to arbitrate and class action waiver” in Section 12 below also includes a class action waiver, which means that you agree to proceed with any dispute individually and not as part of a group or class action.
IF YOU DO NOT AGREE TO ALL OF THESE TERMS, DO NOT PURCHASE A MEMBERSHIP OR USE THE SERVICES.
OVERVIEW OF SERVICES
Our Fast Pass Unlimited Wash Club provides you with the ability to keep your vehicle clean all month long. We offer the following membership plans depending on location: Wash & Wheel Shine, Wax & Shine, Lava Shield & Ceramic Shield (with respect to the plan purchased, the “Services”). For service details and fees, you can search for your local Company location. We reserve the right to change our membership plans or fees in any manner and at any time as we may determine in our sole and absolute discretion, provided, however, that any material changes to your membership plan or any increase to your membership fees will take effect thirty (30) days after being posted at the impacted locations and on our or the applicable location website. The Services may vary from location to location and may be affected by a variety of factors, including inclement weather, maintenance, holidays, store upgrades, governmental orders or other force majeure events. A currently paid membership plan allows the vehicle identified with the plan unlimited services at any of our location. In order to use our Services, you are not required to become a member.
Your membership plan for each vehicle will commence with your delivery to us of a current, valid, accepted debit or credit card, as may be updated from time to time (“Payment Method”) and your acceptance of the Terms as set forth herein. A link to these Terms will be included with your purchase receipt for future reference. Your Payment Method will not be charged until after you agree to these Terms. Your membership plan will automatically renew monthly, such that your Payment Method will automatically be charged on a recurring monthly basis until cancelled by you or terminated by us in accordance with these Terms. You retain the right without additional cost or penalty to terminate the membership plan if you cancel in a timely manner as described below. See Section 5 for additional payment and billing details, including our no refund policy.
YOUR ELIGIBILITY; YOUR RESPONSIBILITY
To be eligible to use the Services, you represent and warrant that you: (i) are at least 18 years of age; (ii) are not currently restricted from the Services and are not otherwise prohibited from having an account related thereto; (iii) will only provide accurate information to Company; (iv) have full power and authority to enter into these Terms; and (v) will not violate any rights of Company or a third party. Individuals under the age of 18 must use the membership account of their parent or legal guardian pursuant to these Terms.
- Communication. We will send you information relating to your membership account (e.g. payment authorizations, invoices, changes in password or Payment Method, confirmation messages, notices) in electronic form only, for example via emails to the email address you provided or via text messages to the cell telephone number you provided. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including any requirements that such communications be in writing.
- Accuracy. By registering for our Services, you represent and warrant that all information you submit to us is true, accurate, current and complete and that you will promptly notify us in writing if your information changes. It is your responsibility to keep your account and profile information accurate and updated. We are not responsible for any disputes or claims related to any inaccurate, incomplete, or untimely information provided by you to us.
- Privacy. To purchase a membership plans, you must register with us and submit certain personally identifiable information. You expressly agree that we may collect, disclose, store and otherwise use your information in accordance with the terms of the Company Privacy Notice, available at www.whistleexpresscarwash.com/privacy-policy/.
- Text Messages. Without limiting the Company Privacy Notice, we may communicate with you via text messages. Your carrier’s standard message rates will apply to any message you send us, your receipt of our confirmation, and all subsequent text messages. Other charges may apply. All charges are billed by and payable to your mobile service provider. We will not be liable for any delays in the receipt of any text messages. Delivery is subject to effective transmission from your network operator. Data obtained from you in connection with this text messaging service may include your mobile phone number, your carrier’s name, and the date, time and content of your messages and other information you provide to us. We may use this information to contact you and provide services you request from us. We do not send you promotional messages via text unless you expressly opt-in to receiving such messages or provide the level consent required by applicable law. Consent to receive such messages is not a condition of making any purchase. Maximum number of messages per month will vary. You can unsubscribe at any time by texting STOP to the number that appears in your text message (unless a different or additional method is specified in the text message). If you no longer have the original text message, text STOP to (302) 343-2942 to opt out of messages.
- Your Membership. The membership plan for a single, personal, non-commercial vehicle only. Resale or transfer of your membership plan to another vehicle or person is expressly prohibited. Commercial vehicles, including ride-sharing vehicles, taxis and limousines, are not eligible for membership plans. With regard to your accessing your account details online, you agree to: (i) keep your password secure and confidential; (ii) not permit others to use your account; (iii) not use the accounts of others; (iv) not transfer your account to another party; and (v) notify us of any actual or suspected unauthorized use of your account. You are responsible for any activity occurring under your account.
- Updating your Membership. To update your membership account, go online at www.whistleexpresscarwash.com , or visit any of our locations. There you can provide or change your email address, cell phone number, payment method, change your plan or cancel your membership.
BILLING, CANCELLATION, AND REFUNDS
- Payment Processing. To purchase membership plan, you must provide a Payment Method. You authorize us to charge the current Payment Method associated to your membership account for your membership plan(s) fees, which will be automatically charged on a monthly basis. You remain responsible for any uncollected amounts. If a payment is not successfully settled due to expiration, insufficient funds, or otherwise, and you do not cancel your membership account, we may suspend your access to the Service (or any other service we may provide) until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you additional fees. Check with your Payment Method service provider for details. We have no responsibility or liability if your Payment Method is declined by your financial institution. Payments are processed by our PCI-compliant third-party payment processor. For additional information, please see our privacy notice at www.whistleexpresscarwash.com/privacy-policy/..
- Automatic Billing Cycle. The fee for the membership plan you purchase, and any other charges you may incur in connection with your membership plan, such as taxes and possible transaction fees, will be charged monthly to your Payment Method on the day of month on which you signed up for the plan. Fees are fully earned upon payment. In some cases, your payment date may change, for example if your Payment Method has not successfully settled or if your membership plan was purchased on a day not contained in a given month, e.g., the 31st. The charges will appear on your Payment Method receipt as from the Company together with the respective store number where you purchased your membership plan and your membership plan number.
- Updating your Payment Method. To update your Payment Method, go online at www.whistleexpresscarwash.com or visit any of our locations. We may also update information on your Payment Method using information provided by the payment service providers, such as the expiration date of your Payment Method. Following any update, you authorize us to continue to charge the applicable Payment Method for each membership plan associated with your membership account.
- Cancellation by You; Reactivation. You must cancel membership plan at least 7 days before it renews in order to avoid automatic billing to your Payment Method for the applicable fee for the next monthly billing cycle. The vehicle identified with the cancelled membership plan will continue to have access to the car wash services through the end of its billing period. To cancel, go online at www.whistleexpresscarwash.com, or visit any of our locations. If you cancel all membership plan(s) associated with your membership account, your account will automatically close at the end of the next applicable billing period. To reactivate a closed membership account, go online at www.whistleexpresscarwash.com, or visit any of our locations.
- No Refunds. Paid membership fees are nonrefundable and there are no refunds or credits for partially used membership plan periods. Any refund, discount, or other consideration to some or all of our members are at our sole and absolute discretion in accordance with applicable law.
ACCEPTABLE USE POLICY
You agree to comply with all (i) applicable laws and regulations in connection with your membership and use or receipt of the Services and (ii) all codes of conduct or other polices that one of our location may have in place. In particular, the following is a representative, non-exhaustive list of acts that are prohibited:
- Misrepresenting your identity or affiliation with any person or entity, including but not limited to impersonating or attempting to impersonate Express Wash Operations LLC or its employees, representatives, subsidiaries or divisions;
- Engaging in any conduct that impairs, restricts or inhibits any other person’s use or enjoyment of our services or facilities or that exposes us or others to criminal or civil liability;
- Recording, whether audio, visual or otherwise, any activity occurring at our locations or our Services without our prior written consent in each instance; and
- Using any robot, spider or other similar automatic technology, process or means to access or use any of our websites for any purpose, including monitoring or copying any of the material on such websites or that interferes with their proper operation or functioning.
RIGHT TO RESTRICT OR TERMINATE ACCESS
To the maximum extent permitted by applicable law, Company may, for any reason and in its sole discretion, refuse, suspend, deactivate, or terminate your membership account, any purchased membership plans, and use of the services, without notice or liability. If we refuse, suspend, deactivate, or terminate your membership account, you may not register another membership account or purchase another membership plan without our prior written permission. We may, at our discretion, suspend, deactivate or terminate your membership account and plans to protect you or Company from identity theft or other fraudulent activity. Except as required by applicable law, Company is not obligated to credit, refund or discount your account for any such refusals, suspensions, deactivations, or terminations.
In the event that your membership or the Services are terminated for any reason or no reason, you acknowledge and agree that you will continue to be bound by these Terms. Following termination, you shall immediately cease use of the Services and any license granted to you under any agreement related to your use of the Services shall immediately terminate. Upon termination, Company reserves the right to delete all of your data and other information stored on Company’s servers. Company will not be liable to you or any third party as a result of the termination of your membership or the Services or for any actions taken by Company pursuant to these Terms as a result of such termination. Without limiting the generality of the foregoing, Company will not be liable to you or any third party for damages, compensation, or reimbursement relating to your use of the Services, or the termination thereof.
DISCLAIMER OF WARRANTY
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR MEMBERSHIP PLAN AND USE OR RECEIPT OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, STATUTORY, IMPLIED OR OTHERWISE. COMPANY DOES NOT WARRANT THAT THE SERVICES WILL BE ALWAYS AVAILABLE, WILL MEET YOUR REQUIREMENTS OR WILL OPERATE IN AN UNINTERRUPTED, ERROR-FREE OR COMPLETELY SECURE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. COMPANY DOES NOT MAKE ANY REPRESENTATIONS, WARRANTIES, OR CONDITIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SERVICES.
WE DO NOT REPRESENT THAT THE SERVICES ARE SUITABLE FOR YOUR VEHICLE(S). WITHOUT LIMITING, THE GENERALITY OF SECTIONS 8 OR 9, WE SPECIFICALLY DISCLAIM LIABILITY FOR DAMAGE TO YOUR VEHICLE(S) WITH RESPECT TO THE FOLLOWING ITEMS:
- Antennas or side mirrors
- Vehicle badging or emblems
- Loose or broken parts
- Molding, racks, etc.
- Wheel covers or center caps
- Non-factory installed parts or accessories, such as after-market wheels
- All unsecured personal items
- Driver or operator failure to follow instructions
- Driver or operator negligence, including but not limited to collusions due to braking or driving in car wash tunnel
- Moonroofs, sunroofs, glass or bug shields
- Electronic running boards left down
- Rear windshield wipers
- Automatic windshield wipers left o
- Body damage or scratches
- Vehicles over 5 years old
- Pre-existing conditions
Without limiting our rights and the terms and conditions of Sections 8, 9 or 11, if you believe you vehicle has incurred damage for which we are responsible, you must submit a written claim to the onsite manager of the location at which you alleged the damage occurred. You must submit such claim within 30 days of its alleged occurrence. The onsite manager will use commercially reasonable efforts to review such claim and conduct an investigation, including review of available video evidence. We endeavor to complete investigations within 48 hours but you acknowledge they may take longer in our discretion. If we, through the onsite manager, determine in our absolutely and sole discretion that we are responsible for the reported damage or any portion thereof, we may, upon your submission to us of all supporting documentation that we request, refund to you the lesser of either (i) the cost of your insurance deductible if you submitted a claim to your insurance company or (ii) the cost of the repair if you did not submit a claim to your insurance company. We may provide such refund in any form of our choosing, including but not limited to in the form of free, discounted or upgraded membership plans.
You acknowledge and agree that we have no obligation to provide any refund or to repair any damages to your vehicle, and, while we will use good faith, commercially reasonable efforts to investigate and asses your claim, all determinations are in our sole, final and absolute discretion. IF WE DECIDE TO PAY ANY CLAIM SUBMITTED PURSUANT TO THIS SECTION, YOU ACKNOWLEDGE AND AGREE THAT SUCH PAYMENT IS YOUR SOLE AND EXCLUSIVE REMEDY, AND OUR SOLE OBLIGATION, IN RESPECT OF SUCH CLAIM AND THE EVENT GIVING RISE TO SUCH CLAIM, AND YOU HEREBY RELEASE AND WAIVE ANY OTHER CLAIMS, ACTIONS OR DAMAGES, WHETHER KNOWN OR UNKNOWN, THAT YOU MAY HAVE AGAINST USE, OUR AFFILIATES AND THE LOCATION AT WHICH THE ALLEGED INCIDENT OCCURRED.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES WILL COMPANY, ITS AFFILIATES, EMPLOYEES, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“COMPANY PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
COMPANY’S TOTAL CUMULATIVE LIABILITY SHALL IN NO EVENT EXCEED THE GREATER OF: (A) THE AMOUNT YOU PAID COMPANY FOR YOUR USE OF THE SERVICES IN THE PRIOR THREE (3) MONTHS; OR (B) THE SUM OF ONE HUNDRED (100) US DOLLARS.
SOME STATES OR JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR THE LIMITATION OF LIABILITY. IN SUCH STATES OR JURISDICTIONS, THE COMPANY PARTIES’ LIABILITY TO YOU SHALL BE LIMITED TO THE FULL EXTENT PERMITTED BY LAW.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS OF THIS AGREEMENT BETWEEN THE PARTIES. THIS ALLOCATION IS REFLECTED IN THE PRICING OFFERED BY COMPANY TO YOU AND IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS SECTION AND THE SECTION ABOVE WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY IN THIS AGREEMENT.
You agree to defend, indemnify and hold the Company Parties harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party arising out of or relating to (i) any violation of these Terms by you; (ii) your Content or any other content or material you submit or otherwise transmit through our Services; (iii) your violation of any rights of another; or (iv) your use of the Services. Company reserves the right, at its own expense, to assume the exclusive defense and control of any matter otherwise subject to defense by you.
AGREEMENT TO ARBITRATE AND CLASS ACTION WAIVER
These Terms contains an Arbitration provision, which will, with limited exception, require you to submit disputes you have against Company to binding and final arbitration to the extent that the laws of the jurisdiction where you reside permit the inclusion of an arbitration provision in these Terms. You will only be permitted to pursue claims against Company on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
If you are located in, are based in, have offices in, or do business in a jurisdiction in which this section is enforceable, the following mandatory arbitration provisions apply to you:
This section is referred to in these Terms as the “Agreement to Arbitrate.” Unless you opt-out pursuant to the opt-out procedures set forth below, you agree that any and all disputes or claims that have arisen or may arise between you and Company or its affiliates, whether relating to the Services, these Terms (including any alleged breach thereof), or otherwise (each a “Dispute”), shall be resolved exclusively through final and binding arbitration, rather than a court in accordance with the terms of this Agreement to Arbitrate. A Dispute also includes without limitation disagreement about this Agreement to Arbitrate’s meaning, application, or enforcement. Your rights will be determined by a neutral arbitrator, not a judge or jury. YOU UNDERSTAND THAT ABSENT THIS AGREEMENT TO ARBITRATE, YOU WOULD HAVE THE RIGHT TO SUE IN COURT AND HAVE A JURY TRIAL.
The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”), including the AAA’s Supplementary Procedures for Consumer-Related Disputes, each available at www.adr.org, or such other alternative dispute resolution body and arbitration rules that may be mutually agreed upon by you and Company. Your arbitration fees and your share of arbitrator compensation shall be governed by such rules. The arbitration may be conducted in person, through the submission of documents, by phone, or online. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and Company may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator. All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
PLACE AND GOVERNING LAW
The place of arbitration shall be in Fulton County, Georgia, unless otherwise agreed to in writing by all parties to the arbitration. The parties acknowledge that this Arbitration Agreement evidences a transaction involving interstate commerce, and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., as may be amended from time to time, shall govern the interpretation, enforcement and proceedings pursuant to this Agreement to Arbitrate. To the extent state law is applicable, the laws of the State of Georgia shall apply without regard to conflict of laws provisions.
You and Company agree that any arbitration shall be limited to the Dispute between Company and you individually. To the full extent permitted by law, (1) no arbitration shall be joined with any other; (2) there is no right or authority for any Dispute to be arbitrated on a class-action basis or to utilize class action procedures; (3) there is no right or authority for any Dispute to be brought in a purported representative capacity on behalf of the general public or any other persons; and (4) any claims over which a small claims court has jurisdiction.
The parties expressly agree that any and all actions taken under the Agreement to Arbitrate and related provisions, including but not limited to all filings, orders, judgments, and awards made in any arbitration proceeding, are confidential and may not be disclosed to any third party, except as otherwise may be required by law.
EXCEPTIONS TO INFORMAL NEGOTIATIONS AND ARBITRATION
You and Company agree that the following Disputes are not subject to the above provisions concerning informal negotiations and binding arbitration: (1) any Disputes seeking to enforce or protect, or concerning the validity of, any of your or Company intellectual property rights; (2) any Dispute related to, or arising from, allegations of theft, piracy, invasion of privacy, or unauthorized use; and (3) any claim for injunctive relief.
30 DAY RIGHT TO OPT OUT OF ARBITRATION
You have the right to opt-out and not be bound by the arbitration provisions set forth in this section by sending written notice of your decision to opt-out to the following U.S. mailing address: 5821 Fairview Drive, Charlotte, NC 28209. The notice must be sent to Company within thirty (30) days of your purchase of a membership plan or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, we also will not be bound by them.
CLASS ACTION WAIVER
By purchasing a membership plan or receiving the Services offered by Company, you acknowledge that Company can only offer you these Services under the terms and conditions as presented herein. AS PARTIAL CONSIDERATION FOR YOUR PURCHASE OF A MEMBERSHIP PLAN OR RECEIPT OF THESE SERVICES, YOU AGREE NOT TO SUE COMPANY AS A CLASS PLAINTIFF OR CLASS REPRESENTATIVE, JOIN AS A CLASS MEMBER, OR PARTICIPATE AS AN ADVERSE PARTY IN ANY WAY IN A CLASS-ACTION LAWSUIT AGAINST COMPANY REGARDING YOUR PURCHASE OF A MEMBERSHIP PLAN OR RECEIPT OF THESE SERVICES. If you do not agree to any part of these terms, cancel your membership plan and do not use the Services.
This Arbitration Agreement provision will survive the termination of these Terms. If there is a final judicial determination that applicable law precludes enforcement of this Section’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court. Except as set forth in the immediately preceding sentence, if any portion of this Arbitration Agreement is deemed invalid or unenforceable through a final judicial determination, the entire Arbitration Agreement shall be null and void. No portion of this Arbitration Agreement may be amended, severed, or waived absent a written agreement between you and us.
TIME LIMITATION ON CLAIMS.
The parties agree that they must initiate arbitration within one (1) year after any Dispute arose; otherwise, the Dispute is permanently barred.
ELECTRONIC NOTICES AND DISCLOSURES
You acknowledge and agree that Company may provide notices and other disclosures to you electronically by posting such notices or other disclosures on Company’s website or by emailing it to you at any email address provided to Company by you. Such notices or other disclosures shall be considered received by you following the posting on the website or twenty-four (24) hours following the email being sent to you, as applicable. Any such electronic notice or other disclosure shall have the same effect and meaning as if it had been provided to you as a paper copy.
CHANGES TO THE TERMS
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting at the Site. As your next visit to the Site or use of the Services may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you visit the Site or use the Services. It is your responsibility to check these Terms periodically for changes. If we make any material changes to these Terms, we will endeavor to provide registered users with additional notice of any changes, such as at your e-mail address of record or when you log-in to your account.
Your use or continued use of the Services following the posting or notice of any changes to these Terms or any other posted policies shall constitute your acceptance of the changed Terms or policies.
If you have any questions about our Terms of Service, please contact us at .
We are free to use any comments, information, ideas, concepts, reviews, or techniques or any other material contained in any communication you may send to us (“Feedback”), including responses to questionnaires or through postings to our website and user interfaces, worldwide and in perpetuity without further compensation, acknowledgement or payment to you for any purpose whatsoever including, but not limited to, developing, manufacturing and marketing products and creating, modifying or improving the Services, our membership plans or any other of our products or services. In addition, you agree not to enforce any “moral rights” in and to the Feedback, to the extent permitted by applicable law.
These Terms, along with any rules, guidelines, or policies published on the Company homepage constitute the entire agreement between Company and you with respect to your use of our Services. If there is any conflict between the Terms and any other rules or instructions posted on the Services, the Terms shall control. No amendment to these Terms by you by shall be effective unless acknowledged in writing by Company. Notwithstanding the foregoing, Company reserves the right, in its sole discretion, to modify these Terms or the policies referenced herein at any time as set forth above. Subject to the Agreement to Arbitrate in Section 12, these Terms shall be governed by, and construed in accordance with, the laws of the state of Georgia, without reference to its choice of law rules. These terms shall not be governed by the United Nations Convention on Contracts for the Sale of International Goods, The Uniform Commercial Code, nor Incoterms.
Our failure to enforce any right or provision of these Terms will not be considered a waiver of that right or provision. If any provision of these Terms is held to be invalid or unenforceable by a court, the remaining provisions of these Terms will remain in effect. These Terms constitute the entire agreement between you and us regarding our Site, and supersede and replace any prior agreements we might have had with you regarding the Site.