Last Modified October 20, 2019
PLEASE READ THIS AGREEMENT CAREFULLY; THIS IS A BINDING CONTRACT.
Description of the Service: The Service provides individuals or businesses (“Customer”) seeking to obtain vehicles for online auction with a platform where they can search and filter out specific vehicles to purchase. A Customer will use the Service to find vehicles and bid on those vehicles either through our proxy service or directly with the seller. Customers and any other users of the Service are collectively referred to herein as “Users”. The Services and the Site are collectively referred to as the “Platform,”Please note that the Platform is operated in the United States and is not available to, and should not be accessed and used by, residents of the European Economic Area or others outside of the United States.
By using the Site and/or Service, or otherwise agreeing to these Terms, either by a click-through or other agreement, or by using any aspect of the Platform, you expressly acknowledge that (a) you have read these Terms and agree to all of its terms and conditions, (b) you are 18 years of age or older, (c) you have the right, authority and capacity to agree to these Terms, and (d) if you are agreeing to these Terms on behalf of an entity, you have authority to act on behalf of that entity and to bind that entity to this Agreement.
You agree to receive all communications, agreements and notices that we provide in connection with the Platform electronically, including by e-mail, SMS text message, or by posting them on the Site or otherwise making them available through the Platform. You agree that all communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
These Terms contain important language governing your use of the Platform. They address, among other things, information about how we provide the Platform, how we or you may terminate the Services and/or access to the Platform, the requirements imposed on you when managing your User account (an “Account”) and how we handle disputes (which includes a class action waiver and binding arbitration in most cases).
OAV may update these Terms at any time in its sole discretion, and OAV will post the updated version of these Terms on the Site. You understand and agree that you will be deemed to have accepted the updated Terms if you use any aspect of the Platform after the updated Terms are posted. If at any point you do not agree to any portion of these Terms, you must immediately stop using the Platform. Disputes arising under these Terms will be resolved in accordance with the version of these Terms in place at the time the dispute arose. We encourage you to review these Terms frequently to stay informed of the latest modifications.
- Provision of the Platform
You are responsible for any Internet connection, data usage and telecommunications fees and charges that you incur when accessing the Platform. You acknowledge and agree that OAV may make changes to any aspect of the Platform at any time without notifying you in advance.
- Termination of the Platform
OAV reserves the right to deny use of the Platform to any person or entity at OAV’s sole and absolute discretion. You acknowledge and agree that OAV may stop providing any aspect of the Platform or restrict your use of the Platform at any time, without notifying you in advance, for any reason or no reason. If OAV disables your access to your Account, you may be prevented from accessing the Platform, your Account details, or any materials contained in your Account.
- User Accounts and Security
4.1. User Account. To access certain aspects of the Platform, you must have an Account. You can create an Account by completing the registration process on the Site under the “Register/Request Invitation.”
You may be required to provide information about yourself and your company as part of the registration process or as part of your continued use of the Platform. You agree that any registration information that you submit to OAV will be correct, accurate, and up-to-date. You shall not select or use as a username a name (a) of another person with the intent to impersonate that person; (b) subject to any rights of a person other than you with appropriate authorization; or (c) that is otherwise offensive, vulgar or obscene.
4.2. User Account Security. Maintaining your Account security is very important. You are solely responsible for maintaining the confidentiality of your Account password and for all activities that are conducted via your Account. You agree to notify OAV immediately if you become aware of any unauthorized use of your password or of your Account.
4.3. User Account Sharing or Transfers. Accounts are registered to you personally and may not be transferred at any time under any circumstances. You should not share your Account with, or disclose your password to, anyone else.
4.4. Deactivation by You. You have the right to deactivate your account at any time. You may deactivate your account by emailing us at firstname.lastname@example.org, or by calling us at 1-855-370-8200. We may maintain a record of account of billing and search history for deactivated accounts.
4.5. Termination by OAV. OAV may terminate your Account at any time for any reason or no reason, including if: (a) OAV determines that you are (i) in breach of or otherwise acting inconsistently with these Terms or (ii) engaging in fraudulent or illegal activities or other conduct that may result in liability to OAV; (b) OAV determines it is required by law to terminate your Account; or (c) OAV decides to stop providing the Platform or critical portions of the Platform. When terminating your Account, OAV may delete the Account and all the information in it. You have no ownership rights to your Account.
4.6. Effect of User Account Deactivation. If you voluntarily deactivate your Account, you may reactivate that Account at any time by contacting us via email at email@example.com, or by telephone at 1-855-370-8200. Accounts terminated by OAV for any type of abuse including, without limitation, a violation of these Terms, may not be reactivated for any reason without the consent of OAV, which may be withheld in OAV’s sole and absolute discretion.
- Pricing and Payments
6.1. Fees and Payments. All prices, fees and other amounts for the Platform are set forth on the Site (the “Fees”). All amounts shall be expressed and paid in United States Dollars. All Fees are subject to change at any time without notice; no Fee is confirmed until the payment process is complete. Except as otherwise expressly set forth herein or as expressly approved by OAV in writing in its sole discretion, all payments made are final and non-refundable and a User shall not have the right to cancel its purchase for any reason. If you use PayPal or any other payment or financial mechanism (“Payment Provider”), the applicable Payment Provider agreement governs your use of such Payment Provider, and you should refer to that agreement, and not these Terms, to determine your rights and liabilities with respect thereto. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO USE ANY PAYMENT MEANS USED TO INITIATE ANY TRANSACTION. All information that you provide to us or our third-party payment processors must be accurate, current, and complete. You will also be responsible for paying any applicable taxes relating to payments that you make. OAV shall have no liability or responsibility to you or any other third party in connection with the accuracy of the Payment Provider information provided by you or your use of any Payment Provider (including any fees charged by such Payment Provider in connection with such use).
6.2. Payment Processing. When you first register with us for a subscription to our Service, we will place a hold on the credit card (or other linked payment instrument, if any) that you provide to us at the time of the subscription, such hold in the amount of the anticipated charge for the applicable subscription. Upon termination of the free trial period, if any, your credit card will be charged monthly at 30 day intervals unless you cancel your subscription.
6.3. Failed Transactions. In the event that OAV is unable to successfully charge any linked payment instrument such as a credit card, OAV will notify you via email and/or within the “Dashboard” page, and you will be unable to initiate searches or transactions with your Account. Upon OAV’s notification to you of such failure, you agree to link a new, valid payment instrument as soon as possible but in any event within one (1) business day. Your OAV Account may be disabled until a valid payment instrument is provided and the outstanding uncharged balance is resolved by OAV. OAV is not responsible for any charges imposed by the issuer of your payment instrument as a result of any failed charge by OAV. To the extent that OAV is unable to successfully charge any payment instrument linked to your Account as payment for authorized transactions for more than thirty (30) days, you understand and agree that OAV may employ a collection agency or other business in an effort to collect any outstanding debts and fees associated with your User Account, and you will not contest the use of a third party to collect the debt and fees owed to OAV. You agree that you will be responsible for any legal, court, arbitration or collection agency fees associated with rectifying your account and all monies owed thereunder. You agree that OAV, or any agency or business employed by OAV, has the right to contact you and your heirs or successors-in-interest via telephone, email or in-person using the information you provided upon registration or during any contact with OAV, in an effort to collect any monies and fees owed under your Account, whether specifically referenced in these Terms or not, and such contact may be made in a manual or automated fashion.
6.4. Subscription Plans.
(a) If you purchase a subscription plan (a “Subscription Plan”), you will be charged the subscription fee, plus any applicable taxes, plus set-up fee (if applicable) and other charges (“Subscription Fee”), at the beginning of your Subscription Plan and each subscription period (e.g., monthly, quarterly, or annually, as specified when you purchase such Subscription Plan) thereafter. Subscription Plans and Subscription Fees are described in more detail at https://OneAuctionView.com/dashboard/plans, and may be updated from time to time without notice (except that the monthly fee for any “Annual Plan, Paid Monthly” (if such option is selected at checkout) will remain locked in for the first year of such Subscription Plan).
(b) Subscription Plans become active as soon as your initial payment is processed. If you select the “Annual Plan, other Prepaid” option, the entire applicable annual Subscription Fee plus applicable taxes will be charged at the initial payment. If you select the “Annual Plan, Paid Monthly” option, the applicable first month’s Subscription Fee plus set-up fee will be charged at the initial payment, and thereafter the monthly Subscription Fee plus applicable taxes will be charged each month for the duration of the applicable year for that annual Subscription Plan.
(c) If you enroll in a free trial subscription, the free trial subscription will automatically convert into a paid subscription at the end of the trial period (which trial period will be indicated at the time of the enrollment in such trial period). Unless otherwise indicated, free trial subscriptions will automatically convert into OAV standard plan, and billed monthly. You may cancel the automatic paid subscription from “My Profile,” by clicking Disconnect or by contacting OAV support at firstname.lastname@example.org at any time on or prior to the last business day before the auto-subscription is scheduled to take effect.
(d) Your Subscription Plan will renew automatically at the end of the applicable subscription period (e.g., at the end of the 30-day period for a monthly Subscription Plan) or until you Disconnect or cancel service. Renewal rates are subject to change, but you will be notified of any change in your rate and be provided with the option to cancel in accordance with these Terms. Plan auto-renewal may be disabled at any time however your access to the site and it services will be immediately disabled and you will be logged out from OAV. You may turn off the auto-renewal option from “My Profile” and clicking “Disconnect” or by contacting OAV support at email@example.com. If you elect not to renew, your right to use the Platforms under the Subscription Plan will not continue until the end of your then current subscription period and will terminate immediately without further charges, even if you are still within the billing period.
(e) Payment failures will result in immediate deactivation of the applicable Subscription Plan(s). OAV Services will not be available to Users with a deactivated plan due to payment failure. Any outstanding payments will need to be made in order to reactivate the applicable Subscription Plan and bring your account current.
- Restrictions and Conditions of Use
7.1. Use Restrictions. OAV permits you to view and use the Platform solely for your own personal or limited commercial use, as applicable, in either case consistent with the intended purpose of the Platform. Furthermore, you agree that you will not:
(a) cause, permit or authorize the modification, creation of derivative works, translation, reverse engineering, decompiling, disassembling modifying, renting, leasing, distributing, or hacking of the Platform;
(b) sell, assign, rent, lease, act as a service bureau, or grant rights in the Platform, including, without limitation, through sublicense, to any other person or entity without the prior written consent of OAV;
(c) make any false, misleading or deceptive statement or representation regarding OAV or the Platform;
(d) institute, assist, or become involved in any type of attack including, without limitation, upon the Platform (or any servers, systems or networks connected to the Platform) or otherwise attempt to obstruct, disrupt or interfere with the operation of the Platform or any other authorized person’s or entity’s use of the Platform (or any servers, systems or networks connected to the Platform);
(e) attempt to gain unauthorized access to the Platform, accounts registered to other Users, or any servers, systems or networks connected to the Platform;
(f) use the Platform for any other commercial purpose unless consistent with these Terms and the intended use of the Platform;
(g) use the Platform to develop, generate, transmit or store information that is defamatory, harmful, abusive, obscene or hateful;
(h) use the Platform to upload, post, e-mail, or otherwise transmit any material that constitutes unsolicited or unauthorized advertising, promotional materials, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” or any other form of solicitation or commercial electronic message;
(i) breach any agreements you enter into with any third parties related to your use of the Platform;
(j) use the Platform for any unlawful, prohibited, abnormal or unusual activity as determined by OAV in its sole discretion;
(k) use the Platform to engage in any activity that (i) constitutes harassment or a violation of privacy or threatens other people or groups of people; (ii) is harmful to children in any manner; (iii) constitutes phishing, pharming or impersonates any other person or entity, or steals or assumes any person’s identity (whether a real identity or online nickname or alias); or (iv) violates any applicable law, ordinance, rule, regulation, treaty or self-regulatory guidelines;
(l) improperly obtain or attempt to improperly obtain any information or data from the Platform including, without limitation, email addresses or mobile phone numbers of other Users; username or password login for any third-party sites,
(m) intercept, examine or otherwise observe any proprietary communications protocol used by the Platform, whether through the use of a network analyzer, packet sniffer or other device; or
(n) use any type of bot, spider, virus, clock, timer, counter, worm, software lock, drop dead device, Trojan horse, trap door, time bomb or any other codes, instructions or third party software that is designed to provide a means of surreptitious or unauthorized access to, or distort, delete, damage or disassemble, any aspect of, the Platform.
8.1. Links from the Platform. The Platform may contain links to websites operated by independent third parties. OAV provides these links to other websites as a convenience and use of these websites is at your own risk. The linked websites are not under the control of OAV and OAV is not responsible for the content available on the other websites or services. Such links do not imply OAV’s endorsement or guarantee of information or material on any other website, and OAV disclaims all liability with regard to your access to and use of such linked websites. You understand and acknowledge that your access and use of linked websites and the services provided through these websites is governed by the terms of service and other agreements posted on such websites.
8.2. Links to the Platform. Unless otherwise set forth in a written agreement between you and OAV, you must adhere to OAV’s linking policy as follows: (a) the appearance, position, and other aspects of any link to the Platform may not be such as to damage or dilute the goodwill associated with OAV or its licensors’ names and trademarks; (b) the appearance, position, and other attributes of the link may not create the false appearance that your organization or entity is sponsored by, affiliated with, or associated with OAV; and (c) when selected by a User, the link to the Platform must display the Site on full-screen and not within a “frame” on the linking website. OAV reserves the right to revoke its consent to the link at any time and in its sole discretion (including any link on any social media networking platform). Furthermore, OAV reserves the right to revoke or modify any link (including any vanity link) to the Platform or otherwise related to your Account (including any link on any social media networking platform).
- OAV Intellectual Property
9.1. Trademarks. The OAV name and logo are trademarks and service marks of OAV LLC. Unless permitted in a separate written agreement with OAV, you do not have the right to use any of OAV’s trademarks, service marks or logos and your unauthorized use of any of these may be a violation of federal and state trademark laws.
9.2. Ownership. You acknowledge and agree that OAV, or its licensors, owns all right, title and interest in and to the Platform, including all intellectual property, industrial property, and proprietary rights recognized anywhere in the world at any time and that the Platform are protected by United States and international copyright laws, patents (pending or issued), and other intellectual property laws. Further, you acknowledge that the Platform may contain information that OAV has designated as confidential and you agree not to disclose such information without OAV’s prior written consent.
9.3. Feedback and Suggestions. You may choose to, or OAV may invite you to, submit comments, bug reports, ideas or other feedback about the Platform or any modifications, features or improvements thereto (“Feedback”) https://www.oneauctionview.com/dashboard/suggestion. You agree that OAV shall own any and all Feedback and OAV shall have the right to use, in any manner and for any purpose whatsoever, any and all Feedback. You hereby assign to OAV all right, title and interest that we may acquire in and to any Feedback.
9.4. Repeat Infringer Policy; Copyright Complaints. In accordance with the Digital Millennium Copyright Act and other applicable law, we have adopted a policy of terminating, in appropriate circumstances, the accounts of Users who repeatedly infringe the intellectual property rights of others. If you believe that anything on our Platform infringes any copyright that you own or control, you may notify OAV as follows:
|To:||OAV LLC Copyright Agent|
|Address:||1001 S Main Street Suite 5632 Kalispell Mt 59901|
Such notice must contain the following information:
- your address, telephone number, and email address;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the alleged infringing material is located;
- a statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law;
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
The Platform is operated by OAV in the United States. In order for us to provide our Platform, you agree that we may transfer, use and store information about you in the United States and other countries, where you may not have the same rights and protections as you do under local law. If you choose to access the Platform from a location outside of the United States, you do so on your own initiative and you are responsible for compliance with applicable local laws; provided, however, that the Platform is not available to, and should not be accessed and used by, residents of the European Economic Area.
- Submitted Content
12.1. OAV is not the source of, does not verify or endorse, and takes no responsibility for the content of communications made using the Platform or any materials submitted or made available through the Platform via any function which allows a User to post or view content (which shall include, without, limitation, any photograph, image or other visual likeness of you) (“Submitted Content”). By using the Platform, you agree that your Submitted Content may be viewable by other Users. Submitted Content is entirely the responsibility of the person from whom such content originated. You therefore may be exposed to content that is offensive, unlawful, harmful to minors, obscene, indecent or otherwise objectionable. Submitted Content may be protected by intellectual property rights owned by third parties. You are responsible for the content you choose to communicate and access using the Platform. In particular, you are responsible for ensuring that you do not submit material that (a) is protected by copyright, contains trade secrets or otherwise, is subject to third party proprietary rights, including privacy and publicity rights, unless you are the owner of such rights or have permission from the rightful owner; (b) is false or is a misrepresentation; (c) is offensive, unlawful, harmful to minors, obscene, defamatory, libelous, threatening, pornographic, harassing, hateful, racially or ethnically offensive, or that encourages conduct that would be considered a criminal offense, gives rise to civil liability, violates any law, or is otherwise objectionable; or (d) impersonates another person. OAV may in its sole discretion block, prevent delivery of or otherwise remove the content of communications as part of its effort to protect the Platform or its Users, or otherwise enforce the terms of these Terms. Further, OAV may in its sole discretion remove such content and terminate your Account if you submit any content that is in breach of these Terms. You acknowledge that OAV has the right to pre-screen your Submitted Content but has no obligation to do so. At OAV’s sole discretion, any Submitted Content may be included in the Platform in whole or in part in modified form.
12.2. OAV does not claim ownership of any of your Submitted Content. With respect to all of your Submitted Content, you grant OAV a perpetual, irrevocable, non-terminable, worldwide, royalty-free, sublicensable, fully paid-up, non-exclusive and transferable license to use, reproduce, distribute, prepare derivative works of, display, modify, copy and perform the Submitted Content or any part of the Submitted Content in connection with the Platform and OAV’s (and its successors’ and affiliates’) business, including, without limitation, for promoting, marketing and redistributing part or all of the Platform (and derivative works thereof) in any and all media formats and through any and all media channels. You also hereby grant each User a non-exclusive license to access your Submitted Content through the Platform while the Submitted Content is made available through the Platform. You may take down any of your Submitted Content at any time; however, you acknowledge and agree, that OAV may still have access to such Submitted Content and that the above license granted by you to OAV will remain in effect despite your removal of the Submitted Content from the Platform. You hereby represent, warrant and covenant that any Submitted Content you provide does not include anything (including, but not limited to, text, images, music or video) to which you do not have the full right to grant the license specified in this Section.
12.3. You acknowledge that your Submitted Content is your sole responsibility. You agree that, under no circumstances, will OAV be liable in any way for any Submitted Content, including, but not limited to, any errors or omissions in any Submitted Content, or any loss or damage of any kind incurred as a result of the use or distribution of any Submitted Content transmitted or otherwise made available via the Platform.
- Utilizing Your Computer or Other Device.
Some of the benefits of the Platform require the Platform to access information on your computer or other applicable device. You hereby grant permission for the Platform to monitor your computer or other applicable device (including, but not limited to, your device’s memory) and to communicate information, including, without limitation, your Account information, to OAV’s servers for the purposes of analyzing your device’s performance during use of the Platform. Additionally, the Platform will utilize the processor, bandwidth and hard drive (or other memory or storage hardware) and/or cache of your computer or other applicable device for the limited purpose of facilitating the communication between, and the transmittal of data, content, services or features to, you and other users, and to facilitate the operation of the network of computers running instances of the Platform.
- NO ENDORSEMENT; DISCLAIMER OF WARRANTIES
14.1. Although OAV displays information about Users and may collect payments or Fees, such actions do not in any way constitute OAV’s sponsorship or approval of any User. OAV does not endorse or recommend any User, and you agree that OAV is not responsible for the accuracy or completeness of information displayed through the Platform with respect to the information provided by third party sites.
14.2. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE PLATFORM IS AT YOUR SOLE RISK AND THAT: (A) THE PLATFORM IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, (B) TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OAV EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS INCLUDING, WITHOUT LIMITATION, WARRANTIES AND CONDITIONS OF SATISFACTORY QUALITY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, AND THOSE ARISING FROM COURSE OF DEALING OR USAGE OF TRADE, (C) OAV MAKES NO WARRANTY AS TO THE ACCURACY, COMPLETENESS OR RELIABILITY OF ANY MATERIALS, INFORMATION OR DATA AVAILABLE THROUGH, OR THE PERFORMANCE OF, THE PLATFORM, AND (D) OAV DOES NOT REPRESENT OR WARRANT THAT (I) YOU WILL BE ABLE TO ACCESS OR USE THE PLATFORM AT THE TIMES OR LOCATIONS OF YOUR CHOOSING; (II) THAT OPERATION OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (III) YOUR USE OF THE PLATFORM WILL MEET YOUR REQUIREMENTS; (IV) DEFECTS IN THE OPERATION OF THE PLATFORM WILL BE CORRECTED; OR (V) THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
14.4. EXCEPT FOR CERTAIN REMOTE TECHNICAL SUPPORT, OAV DOES NOT PROVIDE TECHNICAL SUPPORT SERVICES. OAV DOES NOT EMPLOY OR ENGAGE INDIVIDUALS TO PROVIDE TECHNICAL SUPPORT SERVICES ON ITS BEHALF.
14.5. NEITHER OAV NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING ITS AND THEIR RESPECTIVE DIRECTORS, OFFICERS, STOCKHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, AGENTS, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “OAV PARTIES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE PLATFORM AND YOU HEREBY RELEASE OAV PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH OAV OR THE PLATFORM.
14.6. OAV ONLY ENABLES SEARCH RESULTS AND PROXY BIDS BETWEEN USERS AND THIRD PARTY SITES, AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OR COMMUNICATIONS OF USERS, NOR DOES IT HAVE CONTROL OVER THE QUALITY, TIMING OF BIDS, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER OF AGREEMENTS BETWEEN USERS, THIRD PARTY SITES, NOR OF THE INTEGRITY, RESPONSIBILITY, COMPETENCE, QUALIFICATIONS, OR ANY OF THE ACTIONS OR OMISSIONS WHATSOEVER OF ANY USERS. OAV DISCLAIMS ANY AND ALL LIABILITY RELATING TO YOUR INTERACTIONS WITH ANY THIRD PARTY SITES. YOU UNDERSTAND AND ACKNOWLEDGE THAT OAV SHALL HAVE NO LIABILITY TO YOU FOR ANY STATEMENTS OR REPRESENTATIONS MADE BY THE THIRD PARTY SITES TO YOU OR ANY INFORMATION PROVIDED BY THIRD PARTY SITES TO YOU AS A RESULT OF YOUR USE OF THE PLATFORM.
- LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OAV AND THE OTHER OAV PARTIES SHALL NOT BE LIABLE TO YOU UNDER ANY CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY, OR OTHER LEGAL OR EQUITABLE THEORY FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES, INCLUDING LOSS OF PROFITS, USE, DATA OR GOODWILL, ARISING OUT OF OR IN ANY WAY CONNECTED WITH ACCESS TO OR USE OF THE PLATFORM, EVEN IF OAV OR THE OTHER OAV PARTIES HAVE BEEN ADVISED OR SHOULD HAVE BEEN AWARE OF THE POSSIBILITY OF ANY SUCH LOSSES OR DAMAGES. WITHOUT LIMITING THE FOREGOING, TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO CASE SHALL THE LIABILITY OF OAV OR ANY OF THE OTHER OAV PARTIES EXCEED, IN THE AGGREGATE, THE GREATER OF FIVE HUNDRED DOLLARS ($500) OR THE FEES ACTUALLY PAID BY CUSTOMER “YOU” FOR THE SERVICES.
THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THESE TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE OR IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW FOR LIMITED LIABILITY OR EXCLUSION OF CERTAIN WARRANTIES, CONDITIONS OR REPRESENTATIONS SO NOT ALL OF THE ABOVE LIMITATIONS MAY APPLY TO YOU. YOU ACKNOWLEDGE AND UNDERSTAND THAT THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY SET FORTH HEREIN FORM AN ESSENTIAL BASIS OF THE AGREEMENT BETWEEN THE PARTIES HERETO, THAT THE PARTIES HAVE RELIED UPON SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, AND THAT ABSENT SUCH DISCLAIMERS, EXCLUSIONS AND LIMITATIONS OF LIABILITY, THE TERMS AND CONDITIONS OF THESE TERMS WOULD BE SUBSTANTIALLY DIFFERENT.
You agree to defend, indemnify and hold OAV and the other OAV Parties harmless from and against any and all claims, demands, liabilities damages and losses including, without limitation, reasonable attorneys’ fees, resulting from or arising out of (a) your use of the Platform; or (b) your breach of these Terms or any other policies that OAV may issue for the Platform from time to time. You further agree to cooperate as required by OAV in the defense of any claim. OAV reserves the right to assume the exclusive defense and control of any matter subject to indemnification by you, and you will not in any event settle any claim without the prior written consent of OAV.
- Governing Law; Jurisdiction
These Terms are governed by California law, without regard to conflict of laws principles. The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded. You and OAV agree that, except as otherwise provided in Section 18 below, the state and federal courts located in Los Angeles, California will have exclusive jurisdiction of all disputes arising out of or related to these Terms or your use of the Platform and agree to submit to the personal jurisdiction and venue of these courts. Notwithstanding the foregoing, OAV shall be allowed to apply for equitable remedies (including injunctions) in any jurisdiction.
- Binding Arbitration
18.1. Arbitration Procedures. You and OAV agree that, except as provided in Section 18.4 below, all disputes, controversies and claims related to these Terms or the Platform (each a “Claim”) shall be finally and exclusively resolved by binding arbitration, which may be initiated by either party by sending a written notice requesting arbitration to the other party. Any election to arbitrate by one party shall be final and binding on the other. The arbitration will be conducted under the Streamlined Arbitration Rules and Procedures of JAMS that are in effect at the time the arbitration is initiated (the “JAMS Rules”) and under the terms set forth in these Terms. In the event of a conflict between the terms set forth in this Section 18 and the JAMS Rules, the terms in this Section 18 will control and prevail.
Except as otherwise set forth in Section 18.4, you may seek any remedies available to you under federal, state, or local laws in an arbitration action. As part of the arbitration, both you and OAV will have the opportunity for discovery of non-privileged information that is relevant to the Claim. The arbitrator will provide a written statement of the arbitrator’s decision regarding the Claim, the award given, and the arbitrator’s findings and conclusions on which the arbitrator’s decision is based. The determination of whether a Claim is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Except as otherwise provided in these Terms, (a) you and OAV may litigate in court to compel arbitration, stay proceedings pending arbitration, or confirm, modify, vacate or enter judgment on the award entered by the arbitrator; and (b) the arbitrator’s decision shall be final, binding on all parties and enforceable in any court that has jurisdiction, provided that any award may be challenged if the arbitrator fails to follow applicable law.
18.2. Location. The arbitration will take place in Los Angeles, California, unless the parties agree to video, phone, or internet connection appearances.
18.3. LIMITATIONS. YOU AND OAV AGREE THAT ANY ARBITRATION SHALL BE LIMITED TO THE CLAIM BETWEEN OAV AND YOU INDIVIDUALLY. YOU AND OAV AGREE THAT (A) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS ACTION BASIS OR TO UTILIZE CLASS ACTION PROCEDURES; (B) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY OR AS A PRIVATE ATTORNEY GENERAL; AND (C) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER ARBITRATION UNLESS THE PARTIES AGREE IN WRITING TO SUCH JOINDER.
18.4. Exceptions to Arbitration. You and OAV agree that the following Claims are not subject to the above provisions concerning negotiations and binding arbitration: (a) any Claim seeking to enforce or protect, or concerning the validity of, any of OAV’s intellectual property rights; (b) any Claim related to, or arising from, allegations of theft, piracy, invasion of privacy or unauthorized use; and (c) any claim for equitable relief. In addition to the foregoing, either party may assert an individual action in small claims court, subject to Secton 17 above, for Claims that are within the scope of such court’s jurisdiction in lieu of arbitration.
18.5. Arbitration Fees. If you initiate arbitration for a Claim, you will need to pay the JAMS arbitration initiation fee. If OAV initiates arbitration for a Claim, OAV will pay all costs charged by JAMS for initiating the arbitration. All other fees and costs of the arbitration will be charged pursuant to the JAMS Rules.
18.6. Severability. You and OAV agree that if any portion of this Section 18 is found illegal or unenforceable (except any portion of Section 18.4), that portion shall be severed and the remainder of the Section shall be given full force and effect. If Section 18.4 is found to be illegal or unenforceable then neither you nor OAV will elect to arbitrate any Claim falling within that portion of Section 18.4 found to be illegal or unenforceable and such Claim shall be exclusively decided by a court of competent jurisdiction within Los Angeles, California, United States of America, and you and OAV agree to submit to the personal jurisdiction of that court, agree to venue in such courts, and agree to waive any objection that the venue is inconvenient.
19.1. No Partnership. You agree that no joint venture, partnership, employment, or agency relationship exists between you and OAV as a result of these Terms or your use of the Platform.
19.2. Assignment. OAV may assign this agreement or its rights under these Terms to any person or entity without your consent. The rights granted to you under these Terms may not be assigned without OAV’s prior written consent, and any attempted unauthorized assignment by you shall be null and void.
19.3. Severability. If any part of these Terms is determined to be invalid or unenforceable, then that portion shall be severed, and the remainder of these Terms shall be given full force and effect.
19.4. Attorneys’ Fees. In the event any litigation or arbitration is brought by either party in connection with these Terms, except as otherwise provided in Section 18.5, the prevailing party shall be entitled to recover from the other party all the reasonable costs, attorneys’ fees and other expenses incurred by such prevailing party in the litigation.
19.5. No Waiver. OAV’s failure to enforce any provision of these Terms shall in no way be construed to be a present or future waiver of such provision, nor in any way affect OAV’s right to enforce the same provision at a later time. An express waiver by OAV of any provision, condition, or requirement of these Terms shall not be understood as a waiver of your obligation to comply with the same provision, condition, or requirement at a later time.
19.6. Notices. All notices given by you or required under these Terms shall be in writing and sent to firstname.lastname@example.org.’
19.7. Export Administration. You must comply with all export laws and regulations of the United States or any other country (“Export Controls”) and you shall not export, direct or transfer any portion of the Platform, or any direct product thereof, to any destination, person or entity restricted or prohibited by the Export Controls.
19.8. Equitable Remedies. You acknowledge and agree that OAV would be irreparably damaged if the terms of these Terms were not specifically enforced, and therefore you agree that OAV shall be entitled, without bond, other security, or proof of damages, to seek and to avail itself of appropriate equitable remedies with respect to breaches of these Terms, in addition to such other remedies as OAV may otherwise have available to it under applicable laws.
19.9. Entire Agreement. These Terms, including the documents referenced in these Terms, constitute the entire agreement between you and OAV with respect to the Platform and supersede any and all prior agreements between you and OAV relating to the Platform.