NeverDropped INC. TERMS OF SERVICE
Certain services may be subject to additional terms and conditions specified by us from time to time, and your use of such services is subject to those additional terms and conditions, which are hereby incorporated into these Terms by reference.
PLEASE READ THIS AGREEMENT CAREFULLY TO ENSURE THAT YOU UNDERSTAND EACH PROVISION. THESE TERMS CONTAIN A MANDATORY INDIVIDUAL ARBITRATION AND CLASS ACTION/JURY TRIAL WAIVER PROVISION THAT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS.
1. Use of Our Service
This is a contract between you and Company. You must read and agree to these terms before using the Company Service. If you do not agree, you may not use the Service. You may use the Service only if you can form a binding contract with Company, and only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. Any use or access to the Service by anyone under 13 is strictly prohibited and in violation of these Terms. The Service is not available to any Users previously removed from the Service by Company. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, the parties acknowledge and agree that these Terms, including, without limitation with respect to this Section 14(A) and 14(B), are solely a contract between you and the Company and expressly do not govern any sale, transaction, or other relationship between you and any other User, including with respect to a Buyer or Seller.
B. Company Service
NeverDropped is a vehicle listing, information service and auction website that brings together Buyers and Sellers. NeverDropped IS NOT A VEHICLE BROKER OR DEALER AND DOES NOT SELL, EXCHANGE, BUY, OR OFFER FOR SALE, NEGOTIATE OR ATTEMPT TO NEGOTIATE, A SALE OR EXCHANGE OF AN INTEREST IN ANY VEHICLE LISTED FOR SALE ON OUR SERVICE. NeverDropped DOES NOT HOLD OR POSSESS TITLE FOR ANY VEHICLE LISTED FOR SALE ON OUR SERVICE. NeverDropped does NOT offer other ancillary products and services such as vehicle financing, service contracts, mechanical breakdown insurance, vehicle registration/titling, and vehicle transfer escrow services.
Subject to the terms and conditions of these Terms, you are hereby granted a non-exclusive, limited, non-transferable, freely revocable license to use the Service as permitted by the features of the Service. Company reserves all rights not expressly granted herein in the Service and the Company Content (as defined below). Company may terminate this license at any time for any reason or no reason.
C. Company Accounts
Your Company account gives you access to the services and functionality that we may establish and maintain from time to time and in our sole discretion. We may maintain different types of accounts for different types of Users. If you open a Company account on behalf of a company, organization, or other entity, then (a) “you” includes you and that entity, and (b) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to these Terms, and that you agree to these Terms on the entity’s behalf.
You may never use another User’s account without permission. When creating your account, you must provide accurate and complete information, and you must keep this information up to date. You are solely responsible for the activity that occurs on your account, and you must keep your account password secure. We encourage you to use “strong” passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You must notify Company immediately of any breach of security or unauthorized use of your account. Company will not be liable for any losses caused by any unauthorized use of your account.
By providing Company your email address you consent to our using the email address to send you Service-related notices, including any notices required by law, in lieu of communication by postal mail. We may also use your email address to send you other messages, such as changes to features of the Service, special offers and newsletters. If you do not want to receive such newsletter email messages, you may unsubscribe to such messages using our prescribed means.
D. Service Rules
You agree not to engage in any of the following prohibited activities: (i) copying, distributing, or disclosing any part of the Service in any medium, including without limitation by any automated or non-automated “scraping”; (ii) using any automated system, including without limitation “robots,” “spiders,” “offline readers,” etc., to access the Service in a manner that sends more request messages to the Company servers than a human can reasonably produce in the same period of time by using a conventional on-line web browser (except that Company grants the operators of public search engines revocable permission to use spiders to copy publically available materials from the Company Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (iii) transmitting spam, chain letters, or other unsolicited email; (iv) attempting to interfere with, compromise the system integrity or security or decipher any transmissions to or from the servers running the Service; (v) taking any action that imposes, or may impose at our sole discretion an unreasonable or disproportionately large load on our infrastructure; (vi) uploading invalid data, viruses, worms, or other software agents through the Service; (vii) collecting or harvesting any personally identifiable information, including account names, from the Service; (viii) except as otherwise expressly permitted by the Company, using the Service for any commercial solicitation purposes; (ix) impersonating another person or otherwise misrepresenting your affiliation with a person or entity, conducting fraud, hiding or attempting to hide your identity; (x) interfering with the proper working of the Service; (xi) accessing any content on the Service through any technology or means other than those provided or authorized by the Service; or (xii) bypassing the measures we may use to prevent or restrict access to the Service, including without limitation features that prevent or restrict use or copying of any content or enforce limitations on use of the Service or the content therein.
We may, without prior notice, change the Service; stop providing the Service or features of the Service, to you or to Users generally; or create usage limits for the Service. We may permanently or temporarily terminate or suspend your access to the Service without notice and liability for any reason, including if in our sole determination you violate any provision of these Terms, or for no reason. Upon termination for any reason or no reason, you continue to be bound by these Terms.
NeverDropped is not a party to any vehicle sale contract between Buyers and Sellers that originates on or through the Service. You are solely responsible for your interactions with other Company Users. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Company shall have no liability for your interactions with other Users, or for any User’s action or inaction.
2. Seller Content
We do not claim ownership of Seller-generated content and material provided to us in connection with the Services (collectively “Seller Content”). By submitting any Seller Content, you grant to Company and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable and transferable license to copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, display, transmit, publish, broadcast, host, archive, store, cache, use or otherwise exploit all or any portion of the Seller Content, as well as your name, persona and likeness included in any Seller Content and your social media account handle, username, real name, profile picture and/or any other information associated with the Seller Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, will have the right to (i) receive any royalty or consideration of any kind for the use of the Seller Content pursuant to these Terms or (ii) inspect or approve the editorial copy or other material that may be used in connection with the Seller Content. Company retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any Seller Content for any reason or no reason. Subject to the licenses granted in these Terms, you retain ownership of any copyright and other rights you may have in the Seller Content.
By submitting Seller Content, you represent and warrant that (i) you own or control any and all rights in and to the Seller Content, and the right to grant all of the rights and licenses in these Terms, and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the licenses stated above without the need for payment to you or any other person or entity; (ii) you have obtained permission from any individuals that appear in the Seller Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; and (iv) the Seller Content does not (a) contain false or misleading information, (b) infringe on the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, (c) contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses, phone numbers or any contact information or (e) contain computer viruses, worms or other harmful files. Upon request by Company, you will furnish Company any documentation, substantiation or releases necessary to verify your compliance with these Terms. You are solely responsible for the Seller Content and you hereby agree to indemnify and hold Company and its employees, agents, affiliates, assigns and licensees harmless from any and all damages, claims, expenses, costs or fees arising from or in connection with a breach of any of the foregoing representations or your violation of any law or rights of a third party.
Company does not guarantee the truthfulness, accuracy or reliability of any Seller Content or endorse any opinions expressed by you or anyone else. By submitting the Seller Content you fully and unconditionally release and forever discharge Company and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected with: (i) disputes between you and a Buyer or one or more users or any other person or entity, or (ii) the use by Company or you of the Seller Content, including, without limitation, any and all claims that use of the Seller Content pursuant to these Terms violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that Company has no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any Seller Content. Company acts as a passive conduit for Seller Content and has no obligation to screen or monitor Seller Content. If Company becomes aware of any Seller Content that allegedly may not conform to these Terms, Company may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms. Company has no liability or responsibility to Users for performance or nonperformance of such activities.
Company has the absolute right to remove and/or delete without notice any Seller Content within its control that it deems objectionable. You consent to such removal and/or deletion and waive any claim against Company for such removal and/or deletion. Company is not responsible or liable for failure to store posted content or other materials you transmit through the Service. You should take measures to preserve copies of any data, material, content or information you post on the Service or any other sites or platforms.
3. Our Proprietary Rights
Except for Seller Content, the Service and all materials therein or transferred thereby (the “Company Content”), and all Intellectual Property Rights related thereto, are the exclusive property of Company and its licensors. Except as explicitly provided herein, nothing in these Terms shall be deemed to create a license in or under any such Intellectual Property Rights, and you agree not to sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from any Company Content. Use of the Company Content for any purpose not expressly permitted by these Terms is strictly prohibited.
“NeverDropped,” the NeverDropped logo, and any other product or service name or slogan displayed on our Service are trademarks of NeverDropped and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of NeverDropped or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “NeverDropped” or any other name, trademark or product or service name of NeverDropped without our prior written permission. In addition, the look and feel of our Service, including all page headers, custom graphics, button icons and scripts, is the service mark, trademark and/or trade dress of NeverDropped and may not be copied, imitated or used, in whole or in part, without our prior written permission. All other trademarks, registered trademarks, product names and company names or logos mentioned in our Service are the property of their respective owners. Reference to any products, services, processes or other information, by trade name, trademark, manufacturer, supplier, or otherwise does not constitute or imply endorsement, sponsorship, or recommendation thereof by us.
You may choose to or we may invite you to submit comments or ideas about the Service, including without limitation about how to improve the Service or our products (“Ideas”). By submitting any Idea, you agree that your disclosure is gratuitous, unsolicited and without restriction and will not place Company under any fiduciary or other obligation, and that we are free to use the Idea without any additional compensation to you, and/or to disclose the Idea on a non-confidential basis or otherwise to anyone. You further acknowledge that, by acceptance of your submission, Company does not waive any rights to use similar or related ideas previously known to Company, or developed by its employees, or obtained from sources other than you.
4. Bidding and Auction
In connection with the Services, Sellers agree to provide to Company a reserve amount indicating the minimum price at which the Seller will make a sale of the applicable vehicle (the “Reserve”) prior to the Company’s publication of the Seller’s listing (the “Publication”). Seller may reduce or waive the Reserve during the auction by notifying the Company of such change via email or, if available, the Company’s web-based notification tools made available to Seller. If we believe you are abusing the Service, in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
Each Buyer acknowledges and agrees that (i) each bid submitted via the Service is binding on the Buyer with respect to applicable Buyer’s fees, and (ii) Buyer is responsible for all applicable government fees and taxes for applicable vehicles listed via the Service. Sellers are not responsible for any shipping or delivery fee. We recommend that an in-person inspection take place, however you acknowledge and agree that Company bears no risk associated with purchasing of a vehicle listed via the Service, whether or not any inspection is performed and we make no warranties and bear no risk or responsibility whatsoever with respect to any recommended third party inspection services provided to you.
In certain circumstances, following the close of an auction, if no bid has met the Seller’s Reserve, NeverDropped may offer to pay Seller a separate amount to make up the difference between the Reserve and the highest bid (the “Make Whole Amount”); provided, that if NeverDropped provides such Make Whole Amount to Seller in connection with the foregoing, Seller hereby agrees to return to NeverDropped the Make Whole Amount if following such payment, such Seller’s vehicle is not sold to such highest bidder within 30 days. SELLER ACKNOWLEDGES AND AGREES THAT THE OFFERING OR PROVISION OF SUCH MAKE WHOLE AMOUNT BY NeverDropped TO SELLER IS AN INDEPENDENT TRANSACTION AND DOES NOT IN ANY WAY MAKE NeverDropped A PARTY TO SALE OF THE SELLER’S APPLICABLE VEHICLE OR OTHER TRANSACTION BETWEEN THE SELLER AND THE BUYER.
5. NeverDropped Referral Program
NeverDropped offers a USD $100 referral fee to registered Users who refer new Sellers whose vehicles are listed via the Service for the first time. To qualify, the Seller must list the correct username of the referring User in the submission form at time of initial submission. If an invalid username is listed in this form, if more than one username is listed in this form, if the submitted vehicle is not the Seller’s first submission via the Service, or if the submitted vehicle listing is not accepted by Company or otherwise is not published, no referral fee will be earned. Such referral fees can only be earned for submissions made on or after May 1, 2019, which was the date the offer was created. Referring User must submit valid mailing address and/or any other information requested or required by Company prior to receiving payment. Referring User must be 21 years of age or older to be eligible to earn referral payments. All valid referral fees earned will be paid via check in US funds within 90 days of date the referral fee was earned. Referral fee amount subject to change by Company at any time. Company reserves the right to disqualify any party from participation in the program at any time at its sole discretion. Company reserves the right to discontinue the referral fee offer at any time. Offer void where prohibited.
6. Payment Terms
A. Fees. Certain aspects of the Service require fees paid to the Company, including with respect to the initial deposit made by Buyers in connection with a bid, certain Buyer’s fees, and Seller listing fees. If you elect to use paid aspects of the Service, you agree to the pricing and payment terms, as we may update them from time to time. Company may add new services for additional fees and charges, add or amend fees and charges for existing services, at any time in its sole discretion. The prices listed by Sellers on NeverDropped exclude government fees and taxes, registration and titling fees, regulatory and electronic processing charges, inspection charges, emission testing charges, and any other fees required by law, any or all of which may be added to the listed price to arrive at the final sale price of a particular vehicle. All amounts listed on the website are in U.S. dollars.
B. No Refunds. You may cancel your Company account at any time; however, there are no refunds for or in connection with cancellation; provided, that Seller’s fees may be refundable solely prior to a Seller’s listing being assembled. In the event that Company suspends or terminates your account or this Agreement, you understand and agree that you shall receive no refund, including in any content or data associated with your account or for anything else.
C. Payment Information; Taxes. All payments made by you to the Company shall be facilitated through Stripe, Inc., NeverDropped’s third party payment processing service. Stripe’s terms of service can be found at https://stripe.com/us/terms. All information that you provide in connection with a monetary transaction interaction with the Service must be accurate, complete, and current. You agree to pay all charges incurred by users of your credit card, debit card, or other payment method used in connection with a purchase or transaction or other monetary transaction interaction with the Service at the prices in effect when such charges are incurred. You will pay any applicable taxes, if any, relating to any such purchases, transactions or other monetary transaction interactions.
Company cares about the integrity and security of your personal information. However, we cannot guarantee that unauthorized third parties will never be able to defeat our security measures or use your personal information for improper purposes. You acknowledge that you provide your personal information at your own risk.
9. Copyright Complaints
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Company’s copyright agent as set forth in the DMCA.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice, NeverDropped INC.
Address: P.O. Box 54067
San Jose, CA 95154
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Company and its affiliates that your copyrighted material has been infringed. The preceding requirements are intended to comply with Company’s rights and obligations under the DMCA, including 17 U.S.C. §512(c), but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws.
In accordance with the DMCA and other applicable law, Company has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Company may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
10. Third-Party Links and Information
You agree to defend, indemnify and hold harmless Company and its subsidiaries, agents, licensors, managers, and other affiliated companies, and their employees, contractors, agents, officers and directors, from and against any and all claims, damages, obligations, losses, liabilities, costs or debt, and expenses (including but not limited to attorney’s fees) arising from: (i) your use of and access to the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms, including without limitation your breach of any of the representations and warranties above; (iii) your violation of any third-party right, including without limitation any right of privacy or Intellectual Property Rights; (iv) your violation of any applicable law, rule or regulation; (v) Seller Content or any content that is submitted via your account including without limitation misleading, false, or inaccurate information; (vi) your willful misconduct; or (vii) any other party’s access and use of the Service with your unique username, password or other appropriate security code.
12. No Warranty
THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. USE OF THE SERVICE IS AT YOUR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICE IS PROVIDED WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM COMPANY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. WITHOUT LIMITING THE FOREGOING, COMPANY, ITS SUBSIDIARIES, ITS AFFILIATES, AND ITS LICENSORS DO NOT WARRANT THAT THE CONTENT IS ACCURATE, RELIABLE OR CORRECT; THAT THE SERVICE WILL MEET YOUR REQUIREMENTS; THAT THE SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. ANY CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICE IS DOWNLOADED AT YOUR OWN RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM SUCH DOWNLOAD OR YOUR USE OF THE SERVICE.
COMPANY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY THROUGH THE SERVICE OR ANY HYPERLINKED WEBSITE OR SERVICE, AND COMPANY WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES.
WHILE WE TRY TO MAKE SURE THAT ALL PRICES POSTED ON THE SERVICE ARE COMMUNICATED ACCURATELY, WE CANNOT BE RESPONSIBLE FOR THE TYPOGRAPHICAL AND OTHER ERRORS THAT MAY APPEAR ON THE SERVICE. IF THERE IS INCORRECT INFORMATION GIVEN ABOUT A VEHICLE PRICE, AVAILABILITY, DESCRIPTION, CONDITION OR MILEAGE DUE TO A TYPOGRAPHICAL ERROR, COMPANY IS NOT RESPONSIBLE FOR SUCH ERROR OR ITS CORRECTION; BUT WILL ATTEMPT TO CORRECT SUCH ERROR PROMPTLY. WE RESERVE THE RIGHT TO REFUSE OR CANCEL ANY LISTINGS FOR VEHICLES LISTED AT AN INCORRECT PRICE.
THE SERVICE MAY BECOME INACCESSIBLE OR IT MAY NOT FUNCTION PROPERLY WITH YOUR WEB BROWSER, MOBILE DEVICE, AND/OR OPERATING SYSTEM. NeverDropped CANNOT BE HELD LIABLE FOR ANY PERCEIVED OR ACTUAL DAMAGES ARISING FROM SERVICE CONTENT, OPERATION, OR USE OF THIS SERVICE.
FEDERAL LAW, SOME STATES, PROVINCES AND OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION AND LIMITATIONS OF CERTAIN IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS AND EXCLUSIONS UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
13. Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS OR LICENSORS BE LIABLE FOR ANY INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES, ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE, THIS SERVICE. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SERVICE OR YOUR ACCOUNT OR THE INFORMATION CONTAINED THEREIN.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY (I) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (II) PERSONAL INJURY OR PROPERTY DAMAGE, OF ANY NATURE WHATSOEVER, RESULTING FROM YOUR ACCESS TO OR USE OF OUR SERVICE; (III) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND/OR ANY AND ALL PERSONAL INFORMATION STORED THEREIN; (IV) ANY INTERRUPTION OR CESSATION OF TRANSMISSION TO OR FROM THE SERVICE; (V) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE THAT MAY BE TRANSMITTED TO OR THROUGH OUR SERVICE BY ANY THIRD PARTY; (VI) ANY ERRORS OR OMISSIONS IN ANY CONTENT OR FOR ANY LOSS OR DAMAGE INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED, EMAILED, TRANSMITTED, OR OTHERWISE MADE AVAILABLE THROUGH THE SERVICE; AND/OR (VII) SELLER CONTENT OR THE DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD PARTY. IN NO EVENT SHALL COMPANY, ITS AFFILIATES, AGENTS, DIRECTORS, EMPLOYEES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU FOR ANY CLAIMS, PROCEEDINGS, LIABILITIES, OBLIGATIONS, DAMAGES, LOSSES OR COSTS IN AN AMOUNT EXCEEDING THE AMOUNT YOU PAID TO COMPANY HEREUNDER.
THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY SHALL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATIONS OR EXCLUSIONS MAY NOT APPLY TO YOU. THIS AGREEMENT GIVES YOU SPECIFIC LEGAL RIGHTS, AND YOU MAY ALSO HAVE OTHER RIGHTS WHICH VARY FROM STATE TO STATE. THE DISCLAIMERS, EXCLUSIONS, AND LIMITATIONS OF LIABILITY UNDER THIS AGREEMENT WILL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
The Service is controlled and operated from facilities in the United States. Company makes no representations that the Service is appropriate or available for use in other locations. Those who access or use the Service from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable United States and local laws and regulations, including but not limited to export and import regulations. You may not use the Service if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Service are solely directed to individuals, companies, or other entities located in the United States.
14. Governing Law, Arbitration, and Class Action/Jury Trial Waiver
A. Governing Law. You agree that: (i) the Service shall be deemed solely based in California; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than California. These Terms shall be governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. The parties acknowledge that these Terms evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You agree to submit to the personal jurisdiction of the federal and state courts located in Santa Clara County, California for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below, including any provisional relief required to prevent irreparable harm. You agree that San Francisco County, California is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
B. Arbitration. Read this section carefully because it requires the parties to arbitrate their disputes and limits the manner in which you can seek relief from Company. For any dispute with Company, you agree to first contact us at email@example.com and attempt to resolve the dispute with us informally. In the unlikely event that Company has not been able to resolve a dispute it has with you after sixty (90) days, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Santa Clara County, California, unless you and Company agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees pursuant to and in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses; provided, that if you are an individual, you may apply for and successfully obtain a fee waiver from JAM. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Company from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, Intellectual Property Rights or other proprietary rights.
C. Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Service for personal, commercial or other purposes, all claims must be brought in the parties’ individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person’s claims. You agree that, by entering into this agreement, you and Company are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
A. Assignment. These Terms, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by Company without restriction. Any attempted transfer or assignment in violation hereof shall be null and void.
B. Text Notification. As a part of the Service, at your election Company may send you text notification messages. BY SIGNING UP FOR THE SERVICE AS A BUYER OR A SELLER, YOU HEREBY AGREE AND CONSENT TO RECEIVE TEXT MESSAGES FROM US AND YOU REPRESENT AND WARRANT THAT YOU HAVE ALL NECESSARY AUTHORITY AND CONSENTS TO RECEIVE SUCH TEXT MESSAGES. To permanently cease receiving text messages from us, text #STOP to the number from which you are receiving the text messages.
C. Notification Procedures and Changes to these Terms. Company may provide notifications, whether such notifications are required by law or are for marketing or other business related purposes, to you via email notice, written or hard copy notice, or through posting of such notice on our website, as determined by Company in our sole discretion. Company reserves the right to determine the form and means of providing notifications to our Users, provided that you may opt out of certain means of notification as described in these Terms. Company is not responsible for any automatic filtering you or your network provider may apply to email notifications we send to the email address you provide us. Company may, in its sole discretion, modify or update these Terms from time to time, and so you should review this page periodically. When we change these Terms in a material manner, we will update the ‘last modified’ date at the top of this page and notify you that material changes have been made to these Terms. Your continued use of the Service after any such change constitutes your acceptance of the new Terms of Service. If you do not agree to any of these terms or any future Terms of Service, do not use or access (or continue to access) the Service.
D. Entire Agreement/Severability. These Terms, together with any amendments and any additional agreements you may enter into with Company in connection with the Service, shall constitute the entire agreement between you and Company concerning the Service. If any provision of these Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of these Terms, which shall remain in full force and effect, except that in the event of unenforceability of the universal Class Action/Jury Trial Waiver, the entire arbitration agreement shall be unenforceable.
E. No Waiver. No waiver of any term of these Terms shall be deemed a further or continuing waiver of such term or any other term, and Company’s failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision.
F. Expiration of Claims. Any claim or cause of action you may have with respect to Company or the Service must be commenced within one (1) year after the claim or cause of action arose.
G. Contact. Please contact us at firstname.lastname@example.org or postal mail to P.O. Box 54067
San Jose, CA 95154 with any questions regarding these Terms.