Terms of Service
BOATHOUSE AUCTIONS INC TERMS OF SERVICE
Last Modified: 5/19/2018
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
- Eligibility. 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 18 is strictly prohibited and in violation of these Terms. For the avoidance of doubt, notwithstanding anything in this Agreement to the contrary, the parties acknowledge and agree that these Terms 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.
- Company Service. The Company is a boat information service and auction website that brings together Buyers and Sellers. COMPANY IS NOT A 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 BOAT LISTED FOR SALE ON OUR SERVICE. COMPANY DOES NOT HOLD OR POSSESS TITLE FOR ANY BOAT LISTED FOR SALE ON OUR SERVICE. Company makes no guarantees, representations or warranties as to title and the ability to document or register the vessel. Documentation and registration are between the buyer and seller. Company does NOT offer other ancillary products and services such as boat financing, service contracts, mechanical breakdown insurance, boat registration/titling, and boat 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.
- 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 the link at the bottom of the email.
- Service Rules. 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. Boathouse Auctions is not a party to any boat 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 including survey, 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. 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 boat (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. Company may, in its sole discretion, reserves the right to withdraw a boat from auction at any time.
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 boats listed via the Service. Sellers are not responsible for any shipping or delivery fee. We recommend that an in-person buyer’s survey take place, however you acknowledge and agree that Company bears no risk associated with purchasing of a boat listed via the Service, whether or not any inspection or survey 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.
- Bidding. All bidding is open to the public. Sale is not contingent upon financing. To Register to Bid, you must submit a Bidder Deposit in the amount of ten-thousand dollars ($10,000) via Wells Fargo escrow. Payments and return of deposit is outlined in 4. Payment Terms.
- Final Bid. Final bid means the highest bid acknowledged by the Company at the close of auction as determined by the Company. At close of auction the Company will privately disclose Buyer to Seller.
- Purchase Price. The sum of the final bid plus Buyer’s Premium in accordance with 4. Payment Terms.
- Bid Acceptance and Escrow Agreement. Once the final bid is accepted by the Company the Buyer and Seller must each sign an Escrow Agreement and “As-Is” Contract for Sale and Purchase within 24 hours of the close of auction to reflect the Purchase Price.
- Earnest Money. Immediately following the close of auction, the highest bidder, or Buyer, shall be required to pay a Total Deposit equal to ten percent (10%) of the Purchase Price. This Total Deposit will be a combination of the Bidder’s Deposit plus a payment to the Trust Account (the “Escrow Agent”) of Wells Fargo in the amount sufficient to bring the Total Deposit to ten percent (10%) of the Purchase Price within two (2) business days of the auction close (together the Total Deposit). The Escrow Agent will hold the Total Deposit and conduct the settlement per the terms of the Escrow Agreement. The Total Deposit will be applied to the Purchase Price at the time of closing.Example:Final bid on boat $100Buyer’s Premium 5% $ 5Purchase Price $105
- Closing. The Buyer must sign all documents and the “As-Is” Contract for Sale and Purchase with the Seller and any documents considered necessary to convey the interest in the boat to the Buyer or their assigns. All closings must occur within 30 calendar days of final bid acceptance by the Company.
- Delivery Location. Unless otherwise agreed, the delivery of the boat will be at its current stated location at time of auction close.
- Possession; Risk of Loss. The boat shall be, and remain, in the possession of the Seller until closing. Pending completion of the sale, the Seller shall hold all insurance policies or proceeds thereof relating to the boat in trust for the parties as their interest may appear and, in the event of substantial damage to the boat, the Buyer may either (i) receive the proceeds of the insurance relating to the boat and complete the purchase and sale or (ii) cancel the agreement of purchase and sale, in which case the Deposit will be returned. Possession of and risk of loss of the boat will pass to the Buyer at closing.
- Default. If the Buyer fails to comply with any of the terms of Service or Sale, including, without limitation, the increase of the Deposit amount, the Deposit shall be paid to the Seller and Auctioneer in equal amounts, as liquidated damages, in which event the Seller and Company shall be relieved of all obligations and the boat may be resold by the Seller. The foregoing right to retain the Deposit is not intended as a forfeiture or penalty, but as liquidated damages, it being acknowledged and agreed by the parties that the Seller’s and Company’s actual damages as a result of the Buyer’s failure or default would be difficult or impossible to estimate. The parties further acknowledge and agree that the amount of the Deposit represent their best estimate of the amount of damages reasonably anticipated to result from such failure or default.
- Closing Costs. The Buyer shall pay all closing costs for sales in the location of the boat including, but not limited to, all sales and use taxes.
- Boat Inspections. The Buyer acknowledges and agrees that the Buyer has, and had the opportunity, to inspect and investigate the boat. It is the Buyer’s sole responsibility to perform any inspections the Buyer deems pertinent to the purchase of a boat and to be satisfied as to the boat’s condition prior to bidding. All boats are sold in existing “As-Is, Where-Is” condition and “With All Faults.” No representation, warranty, or condition is expressed or implied by the Company and its agents or the Seller as to description, quality, fitness for a particular purpose, merchantability, condition of the boat in any manner whatsoever and any such representation, warranty, and condition is expressly waived by the Buyer. Personal onsite inspection of the boat is recommended, and Bidders are advised to independently verify all information they deem important. The Company or the Seller assume no liability for errors or omissions on any boat listing or advertising, promotional or publicity statements and materials. Although information has been obtained from resources deemed reliable, neither the Company nor the Seller makes any guarantee as to the accuracy of any such information. All information contained on the Company web site or any promotional materials was provided by the Seller and is believed to be accurate and complete. However, neither the Seller or the Company makes any guarantee or warranty as to the accuracy or completeness of such information. THE BUYER AND BUYER’S AGENT/BROKER SHALL BEAR THE SOLE RESPONSIBILITY TO CONFIRM ALL INFORMATION RELEVANT TO THE BOAT PRIOR TO BIDDING.
- Notice to Brokers. A Buyer’s broker will be paid a co-brokerage fee by the listing broker equal to 50% of the total brokerage fee, payable to the Buyer’s broker whose prospect successfully completes the highest and final bid and closes on the boat. To qualify for co-brokerage fee, Buyer’s representative or agent must be identified on Bidder Registration to be validated by the Company. All Bidders with no broker representation will be validated as such and referred to the boat’s listing brokerage firm.
- No Financing Contingency. All auctions are a cash transaction with no contingency for financing. They Buyer may ultimately finance a portion of the Purchase Price, but the Buyer’s obligation to proceed with the purchase is not contingent upon the buyer obtaining financing. If the Buyer is unsuccessful in obtaining financing and is unable to close within the required time period, the Buyer will be deemed in default.
- State Laws. The respective rights and obligations of the parties with respect to the conditions of sale shall be governed and interpreted by the laws of the state in which the boat is sold.
- Cancellation. The Company reserves the right to cancel, postpone or withdraw a boat before, up to the start of the auction and during auction at its sole discretion.
4. PAYMENT TERMS
- Fees. A five percent (5%) Buyer’s Premium shall be paid by the Buyer and added to the final bid amount on the boat. Collectively the final bid plus Buyer’s Premium will be the Purchase Price. The prices listed by Sellers on Boathouse Auctions exclude government fees and taxes, registration, USCG documentation and titling fees, regulatory and electronic processing charges, inspection 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 boat. All amounts listed on the website are in U.S. dollars.
- Payment Information; Taxes. All payments made by you to the Company shall be facilitated through Wells Fargo, Company’s third-party payment processing service. 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 Wells Fargo for use 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. A release of hold to a registered Bidder who is not the highest bid, or Buyer, will be processed within 24 hours of auction close. Fees incurred by Wells Fargo for credit card, debit card, or other payment method processing will be deducted from the Bidder deposit.
5. 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.
“Boathouse Auctions”, the Boathouse Auctions logo, and any other product or service name or slogan displayed on our Service are trademarks of Boathouse Auctions and its suppliers or licensors, and may not be copied, imitated or used, in whole or in part, without the prior written permission of Boathouse Auctions or the applicable trademark holder. You may not use any metatags or any other “hidden text” utilizing “Boathouse Auctions” or any other name, trademark or product or service name of Boathouse Auctions 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 Boathouse Auctions 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.
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.
7. THIRD-PARTY LINKS AND INFORMATION
The Service may contain links to third-party materials that are not owned or controlled by Company. Company does not endorse or assume any responsibility for any such third-party sites, information, materials, products, or services. If you access a third-party website or service from the Service on or through any third-party website or service, you do so at your own risk. You expressly relieve Company from any and all liability arising from your use of any third-party website, service, or content. Additionally, your dealings with or participation in promotions of advertisers found on the Service, including payment and delivery of goods, and any other terms (such as warranties) are solely between you and such advertisers. You agree that Company shall not be responsible for any loss or damage of any sort relating to your dealings with such advertisers.
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.
9. 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 BOAT, PRICE, AVAILABILITY, DESCRIPTION, OR CONDITION 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 BOATS 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. BOATHOUSE AUCTIONS CANNOT BE HELD LIABLE FOR ANY PERCEIVED OR ACTUAL DAMAGES ARISING FROM SERVICE CONTENT, OPERATION, OR USE OF THIS SERVICE.
10. 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.
11. GOVERNING LAW, ARBITRATION, AND CLASS ACTION/JURY TRIAL WAIVER
- Governing Law. You agree that: (i) the Service shall be deemed solely based in DELAWARE; 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 DELAWARE. These Terms shall be governed by the internal substantive laws of the State of DELAWARE, 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 DELAWARE 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 DELAWARE 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.
- 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 (60) 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 the location of the Company’s choice. 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 JAMS; and you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
Please contact us at firstname.lastname@example.org with any questions.