Last updated: November 1st, 2021
Your use of this website constitutes your agreement to be bound by these website terms and conditions of use.
These terms contain a mandatory arbitration provision that, as further set forth below, requires the use of arbitration on an individual basis to resolve disputes, in lieu of jury trials, other court proceedings, or class actions of any kind.
By accepting the Terms through your use of the Site, you affirm that you are either (i) 18 years of age or older, or (ii) you are at least 13 years of age and are using the Site under the supervision of a parent or legal guardian who has agreed to be bound by these Terms. If you are a parent or legal guardian agreeing to be bound by these Terms on behalf of a person between the ages of 13 and 17, you agree to be fully responsible for such child’s use of the Site, including all financial charges and legal liability that such child may incur, and you agree that you will ensure that neither you nor your child submits your child’s personally identifiable information to Company via the website as Company does not collect or store the personal information of persons under age 18. We believe the content on the Site is suitable for everyone; federal law (47 U.S.C. § 230(d)) nevertheless requires that we notify you that parental control protections are commercially available that may assist you in limiting access to material that is harmful to minors. For more information, go to consumer.ftc.gov.
Please note that in the event of any direct conflict between these Terms and any other agreement between you and Company for the provision of goods or services (“Contract”), including software as a service or the purchase of an automobile, the Contract terms shall prevail.
2. CHANGES TO THESE TERMS.
3. COMPANY’S INTELLECTUAL PROPERTY
You acknowledge and agree that the Site, and any logos, names, designs, text, graphics, software, content, files, materials, and any other intellectual property rights contained therein, including without limitation any copyrights, patents, trademarks, proprietary or other rights arising therefrom are owned by Company or its affiliates, licensors or suppliers. Furthermore, you acknowledge and agree that the source and object code of certain software (such as our mobile applications and SaaS applications) and the format, directories, queries, algorithms, structure, and organization of the same are the intellectual property, proprietary and confidential information of Company and its affiliates, licensors, and suppliers. You expressly agree that you will do nothing inconsistent with Company’s ownership of the Site, and that you gain no rights, title, or interest in or to any aspect of the Site, except as stated in these Terms or any Contract. In addition, except as expressly set forth in these Terms, you are not conveyed any right or license by implication, estoppel, or otherwise in or under any patent, trademark, copyright, or other proprietary right of Company or any third party.
3B. Third Party Services and Content.
3C. App Providers.
If you access any part of the Site using an Apple® iOS or other third-party device, you acknowledge that each of those third-party companies, such as Apple Inc. (each, “App Provider”), will not be responsible for any damages arising out of the failure of the Site to operate as intended.
When accessing the Site by or through a mobile device application (“mobile app”) obtained through an App Provider, you acknowledge and agree that: (i) these Terms are concluded between you and Company, and not with the App Provider, and that we are solely responsible for the Site (including our mobile applications), and not the App Provider; (ii) the App Provider has no obligation to furnish any maintenance and support services with respect to the Site; (iii) in the event of any failure of the mobile app to conform to any applicable warranty: (a) you may notify the App Provider and the App Provider will refund the purchase price you paid to the App Provider for the mobile app Services to you (if applicable); (b) to the maximum extent permitted by applicable law, the App Provider will have no other warranty obligation whatsoever with respect to the Site, including the mobile app; and (c) any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be our responsibility; (iv) the App Provider is not responsible for addressing any claims you have or any claims of any third party relating to the Site or your possession and use of the Site, including without limitation: (a) product liability claims; (b) any claim that the Site fails to conform to any applicable legal or regulatory requirement; and (c) claims arising under consumer protection or similar legislation; (v) in the event of any third party claim that the Site or your possession and use of the same infringes that third party’s intellectual property rights, we will be responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by these Terms; (vi) the App Provider and its subsidiaries are third-party beneficiaries of these Terms as it relates to your license and/or use of our mobile app, and that, upon your acceptance of these Terms, the App Provider will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof; and (vii) you must also comply with all applicable third-party terms of service when using our mobile app. As also mentioned in these Terms, you represent and warrant to us and to any relevant App Provider that you are not located in a country that is subject to a U.S. government embargo, or that has been designated by the U.S. government as a terrorist supporting country, and that you are not listed on any U.S. government list of prohibited or restricted parties.
3D. Mobile Networks; Texting.
When you access the Site through a mobile network, such as one of our mobile applications, or you sign up for our text message programs, your network or roaming provider’s messaging, data and other rates and fees may apply. Not all aspects of the Site may work with your network provider or device.
When you sign up to receive text messages from us, you acknowledge and agree you will receive such text messages using an autodialer to the number you provide, and that your consent for us to send you text messages is not a condition of purchasing anything. Not all carriers may be included within our text messaging programs. You are free to opt-out of receiving text messages from us at any time. Please see any additional instructions provided to you at the time you sign up.
4. YOUR CONTENT AND ACCOUNT.
4A. User Generated Content.
You may not submit or upload User Generated Content that Company determines in its sole and absolute discretion is illegal, infringing, false, defamatory, harassing, threatening, bigoted, hateful, violent, vulgar, obscene, pornographic, or otherwise offensive or that harms or can reasonably be expected to harm any person or entity, whether or not such material is protected by law. We have the right, but not the obligation, to monitor, screen, post, remove, modify, store and review User Generated Content or communications you submit, at any time and for any or no reason, including to ensure that the User Generated Content or communication conforms to these Terms, without prior notice to you.
You represent and warrant that your User Generated Content conforms to these Terms and that you own or have the necessary rights and permissions, without the need for payment to any other person or entity, to use and exploit, and to authorize us to use and exploit, your User Generated Content in all manners contemplated by these Terms. You agree to indemnify and hold us and our affiliates and subsidiaries, and each of their respective employees and officers, harmless from any demands, loss, liability, claims or expenses (including attorneys’ fees), made against us by any third party arising out of or in connection with our use and exploitation of your User Generated Content. You also agree not to enforce any moral rights, ancillary rights, or similar rights in or to the User Generated Content against us or our licensees, distributors, agents, representatives, and other authorized users, and agree to procure the same agreement not to enforce from others who may possess such rights.
We will not be responsible or liable to any third party for any User Generated Content. We are not responsible for, and do not endorse or guarantee, the opinions, views, advice, or recommendations posted or sent by other users of the Site, or any authors, experts, celebrities or otherwise. User Generated Content shall not state or reflect the attitudes and opinions of Company, and any views and opinions expressed on our websites shall not be attributed to or otherwise endorsed by Company. You agree to comply with all applicable local, national, and international laws, rules, regulations, and ordinances in connection with your use of the Site.
4B. License to Your User Generated Content.
We do not claim ownership to your User Generated Content; however, you grant us a perpetual, fully paid-up, non-exclusive, sublicensable, irrevocable and royalty-free worldwide license under all copyrights, trademarks, patents, trade secrets, privacy and publicity rights and other intellectual property rights to use, reproduce, transmit, print, publish, publicly display, exhibit, distribute, redistribute, copy, index, comment on, modify, adapt, translate, create derivative works of, publicly perform, make available and otherwise exploit such User Generated Content, in whole or in part, in any and all media and channels now known or hereafter devised (including in connection with the Site and on third-party sites and platforms such as Facebook®, YouTube® and Twitter®), in any number of copies and without limit as to time, manner and frequency of use, without further notice to you, with or without attribution, and without the requirement of permission from or payment to you or any other person or entity. This includes without limitation our use of your User Generated Content in connection with any advertising, product packaging, printed publications, presentations, promotional materials, events, and associated marketing materials, television and digital commercials, videos, social media websites, or on our websites. We are not, however, obligated to use your User Generated Content.
To the extent that we authorize you to create, post, upload, distribute, publicly display or publicly perform User Generated Content that requires the use of our copyrighted works, we grant you a limited, non-transferable, non-exclusive license to create a derivative work using our copyrighted works as required for the sole purpose of creating the materials, provided that such license shall be conditioned upon your assignment to us of all rights in the work you create. If such rights are not assigned to us, your license to create derivative works using our copyrighted works shall be null and void.
4C. Public Forums.
The Site may include public forums, which may include without limitation, discussion forums, message boards, blogs, chat rooms or instant messaging features. You acknowledge these public forums are for public and not private communications. You further acknowledge that any User Generated Content you upload, submit, post, transmit, communicate, share, or exchange by means of any public forum may be viewed on the Internet by the general public, and therefore, you have no expectation of privacy with regard to any such submission or posting. You are, and shall remain, solely responsible for the User Generated Content you upload, submit, post, transmit, communicate, share, or exchange by means of any public forum and for the consequences of submitting or posting same.
4D. User Conduct.
While using the Site, you may not:
- Restrict or inhibit any other visitor from using or enjoying the Site, including, without limitation, by means of “hacking” or defacing any portion of the Site;
- Use the Site or content on or from the Site for any unlawful purpose;
- Express or imply that any statement you make is endorsed by Company;
- Post or transmit any unlawful, confidential, fraudulent, libelous, defamatory, obscene, pornographic, profane, threatening, abusive, hateful, offensive, or otherwise objectionable information of any kind, including without limitation any transmissions constituting or encouraging conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any local, state, national, or foreign law, including without limitation the U.S. export control laws and regulations;
- Engage in spamming, flooding, phishing, or other activity intended to gather information unlawfully;
- Publish or distribute any material that infringes on the rights, including intellectual property rights, of another;
- Transmit any software or other materials that contain any harmful or malicious code, including, without limitation, viruses, worms, time bombs, date bombs, trojan horses, and defects;
- Modify, adapt, sublicense, translate, sell, reverse engineer, decompile, or disassemble any portion of the Site;
- Remove any copyright, trademark, patent, or other notices of proprietary rights contained on the Site;
- "Frame" or "mirror" any part of the Site without Company's prior written authorization;
- Use any robot, spider, site search/retrieval application or other manual or automatic device or process to retrieve, index, data mine, or in any way reproduce or circumvent the navigational structure or presentation of the Site or its contents;
- Harvest or collect information about Site visitors;
- Take any action that imposes an unreasonable or disproportionately large load on Company's infrastructure; or
- Use the Site for any reseller activities. Reseller activities include (i) purchasing products for the purpose of reselling those products through any channel to downstream customers; (ii) placing orders on behalf of other persons for commercial purposes; and (iii) extracting, scraping, mining, copying or otherwise gathering information from the Site in connection with your sale or another party’s sale of products (whether purchased from Company or another seller) through any channel to downstream customers.
Company has the right, but not the obligation, to monitory, screen, post, remove, modify, store, and review any user posts to the Site and any communications sent via the Site. Unless Company agrees otherwise in writing, any communication or material of any kind that you transmit through this Site will be treated as non-confidential and non-proprietary; and Company is free to use any ideas, concepts, know-how, or techniques disclosed in such communications without compensation to you.
4E. Your Account; Passwords.
Aspects of the Site permit or require you to create an account (such as a User Account) to enjoy additional services and benefits that we provide. You agree to provide and maintain accurate, current, and complete information for your accounts, including as applicable, your name, contact, and payment information. You agree not to impersonate or misrepresent your affiliation with any person or entity, including using another person’s username, password or other account information, or another person’s name or likeness, or if applicable, provide false details for a parent or guardian. You agree that we may take steps to verify the accuracy of information you provide.
We have adopted and implemented a policy that provides for the suspension or termination, in appropriate circumstances and in our sole and absolute discretion, of the accounts of users who violate these Terms, are repeat infringers of copyright, or engage in, encourage, or advocate for illegal conduct.
You are responsible for maintaining the confidentiality of your username and password, and you are responsible for all activities under your account that you can reasonably control. You may not share your password or other login information with any person; any use of your account by any person other than you is grounds for suspension or termination of your account. You agree to promptly notify us of any unauthorized use of your username, password, or other account information, or of any other breach of security that you become aware of involving your account or the Site. You agree not to use the account, username, or password of any other account holder at any time. Company will not be liable for any loss that you incur as a result of someone else using your password, either with or without your knowledge.
4F. Member Public Profiles.
When you create an account with us (such as a User Account), you may be asked to provide certain personal information, such as your name and e-mail address. Some of this information may be publicly viewable by others, such as other Site users, customers, members, or account holders.
Company relies on its users to provide current and accurate information, and we do not, and cannot, investigate information contained in user public profiles. Company does not represent, warrant, or guarantee the accuracy of public profile information, and hereby disclaims all responsibility or liability for any information provided by users by means of public profiles or otherwise.
You are solely responsible for your interactions with other users. You acknowledge and agree that Company does not (i) screen its users; (ii) inquire into the backgrounds of its users; or (iii) review or verify the statements of its users, including without limitation, information or representations contained in public profiles. Company does not warrant, endorse, or guarantee the conduct of its users or their compatibility with you, and you agree to exercise all precautions in your interactions with other users. Like all open forums on the Internet or social media, you should always be careful about what you share in a public forum, and in particular, you should never share your password, social security number, or any other personal information.
5. COMPANY’S PRODUCTS/SERVICES; WEBSITES; ORDERS.
5A. Product and Service Descriptions, Price and Other Information.
We have taken reasonable precautions to ensure that all product descriptions, prices, and other information created by Company and shown on the Site are correct and fairly described. However, when ordering services through our Site, please note that:
- Company reserves the right to refuse or discontinue the supply of any service to any customer, or change, suspend or discontinue any aspect of our websites at any time in our sole and absolute discretion;
- all prices are displayed in United States Dollars unless expressly indicated otherwise;
- content may vary from that shown on our websites;
- any weights, dimensions, capacities, and fuel efficiency shown on our websites are approximate only; and,
- you will be responsible for all applicable taxes, which may be collected by us.
Please also note that we may be required to change the terms of any products, goods, or services that we offer and/or you purchase. This includes without limitation changes to prices, taxes, shipping, and handling amounts, specifications, delivery times, and/or package contents. We will provide you with prior notice of any changes by posting a notice on our websites, sending an email to you at the address you provided at the time of purchase, or by including a notice in any products you receive on an automatic recurring or subscription basis. Company will not incur any obligation because of such change.
We reserve the right to refuse or cancel any service prior to delivery. Some situations that may result in your order being cancelled include system or typographical errors, inaccuracies in product or pricing information or product availability, fairness among customers where supplies are limited, or problems identified by our credit or fraud departments. We also may require additional verification or information before accepting an order. We will contact you if any portion of your order is cancelled or if additional information is required to accept your order. If your order is cancelled after we have processed your payment but prior to delivery, we will of course refund your payment.
All purchases are subject to applicable shipping and handling, and sales and/or other taxes, which will be applied to your order total. For non-shippable goods, sales and/or other taxes will be calculated based on the billing address provided. For shippable goods, sales and/or other taxes will be calculated based on the shipping address provided. For orders that consist of both shippable and non-shippable goods, sales and/or other taxes will be calculated based on the shipping address
5C. Your Personal and Payment Information.
When you provide any information to us for any reason, you agree to only provide true, accurate, current, and complete information. By providing any credit card or other payment card information to us, you represent that such payment information is correct, and belongs to you or you have the authority to use such payment card. In the case of email, you must provide an accurate email address that is registered to you. You are responsible for promptly updating your information with any changes, especially to keep your billing information current. You must promptly notify us if your payment card is cancelled (for example, for loss or theft). Changes to such information can be made by contacting Customer Service at email@example.com. To help keep your account current and prevent service interruption, you acknowledge Company may update your payment card information on file when it is set to expire or based on updates it receives from the bank that issues your payment card. You agree that your placement of an electronic order on our websites is sufficient to satisfy any applicable Statute of Frauds, and no further writing is required.
5D. Vehicle Listings.
Vehicle listings and descriptions on the Site are for informational purposes only and Company does not guarantee the accuracy of such information. Company may obtain vehicle listing information, including vehicle descriptions from third parties, so there is a possibility that unintentional errors can occur. All vehicles are subject to prior sale and may not be available in your area when you are ready to purchase. You agree that any reliance on the vehicle listing and descriptions on the Site is at your own risk. All vehicle listings are subject to the Disclaimer of Warranty and Limitation of Liability in these Terms. Company is under no obligation to finance, sell, or lease a vehicle to you.
5E. International Orders.
We do not directly sell certain services in any jurisdiction other than the United States as these products may not be approved for sale in other jurisdictions. Our goods and services are intended for purchase and use only in North America. In the event any of our goods and services are provided to non-residents of the United States, your acceptance of such services or products will only be based on the following conditions precedent:
- you agree that the purchase of any Company products by you, as a non-resident of the United States, shall be subject to United States Law; and
- no foreign law, such as the United Nations Convention on the International Sale of Goods, shall apply to any purchase or sale, and Company expressly opts out of such applications.
For services sold outside the United States, please note that some of Company’s goods and services, including without limitation, programs, content, manuals, instructions and safety warnings may not be localized in destination country languages; and the products, goods, services and accompanying materials may not be designed in accordance with destination country standards, specifications, and labeling requirements. In those cases, you expressly accept those goods/services in the English language and as they are sold in the United States.
5F. Reservation of Rights.
Company reserves the right to suspend or terminate your interaction with any aspect of the Site for any or no reason in its sole and absolute discretion, including your access, use or purchase of any products, goods, or services that we provide. If you are accessing, using and/or purchasing any goods/services on behalf of a company, you represent you have sufficient authority to bind that company to these Terms.
5G. Editorial Content.
Some articles on our editorial site may have been written about vehicles being sold by paying clients of Company. The decision to write articles about specific vehicles are exclusively those of Company’s editorial team. All views expressed in an editorial article are those of the contributing writer and do not necessarily represent the policy or position of Company, its clients, or any related entities. Company assumes no responsibility or liability for errors or omissions in editorial content.
6. IMPORTANT NOTICE ABOUT THE SITE CONTENT.
6A. Assumption of Risk.
You expressly acknowledge and agree that your access, use and/or involvement with aspect of the Site, and the subject motor vehicles related thereto, may involve potentially dangerous and physical activities that may lead to personal and/or bodily injury, death, loss of services, loss of consortium, or damage to or loss of property or privacy. You hereby acknowledge and willingly accept these risks and agree to unconditionally release and hold harmless Company from and against all claims, suits, causes of action, costs, expenses or liability arising out of or related to your access, use and/or involvement with any aspect of the Site.
You hereby acknowledge that you, or your clients, and not Company, are personally responsible for the substantive content/representations of all transactions. You further understand and acknowledge that use and/or transport of a motor vehicle is inherently dangerous and carries with it the potential for death, serious injury and property loss. You understand and agree that you assume the risk of using the Site. You are responsible for assuring that any subject motor vehicle is safe and appropriate for use/transport, and you may not rely upon any content provided by Company.
You understand that the use of the Site, the subject motor vehicles and all their related attendant activities may include activities which can be dangerous, calculated risk activities which can, and sometimes do, result in serious, permanent bodily injury or death to the participants. You understand that you or your customers and clients can be injured or killed. You are accepting these and all other accompanying risks in order to be allowed to use the Site of your own free will, with full understanding of the possible consequences and potential dangers, and without inducements, promises or statements other than those contained in this agreement.
You hereby personally assume all risks of any nature whatsoever for any death, injury or other damages to yourself, your property your family, customers and clients, or the property of others which may in any way, whether foreseeable or not, arise out of the use of the Site and all accompanying facilities and equipment, and/or from the actions – specifically including negligent, grossly negligent and reckless acts or omissions – of all persons involved either directly or indirectly in the use of the Site. You know and fully appreciate that use of the Site, including to purchase and then operate a vehicle, may expose your or your customers and clients to risk of serious personal injury or death. You fully appreciate these dangers and voluntarily assume these risks.
7. COPYRIGHT POLICY AND COPYRIGHT AGENT.
It is Company’s policy to respect the copyright and other intellectual property rights of others. Company may remove content from its websites or other properties that appears to infringe the copyright or other intellectual property rights, including moral rights, of others. In addition, Company may terminate access by users who appear to infringe the copyright or other intellectual property rights of others. Further, Company complies with the Digital Millennium Copyright Act (DMCA).
If you believe that content available on or through the Site, or accessible via links posted to the Site, infringes your copyright, you or your authorized agent may submit a notification to us, as set forth in this policy. Please send a notification including all of the information described below (“Notification”) to our copyright agent by mail or e-mail using the contact information provided below.
You may be held liable for damages and attorneys’ fees if you make any material misrepresentations in a Notification. Therefore, if you are not sure whether content located on or accessible via a link posted on to the Site infringes your copyright, you should contact an attorney.
A Notification must include the following:
- Identification of the copyright claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single Notification, a representative list of works. Please describe the work and, where possible, include a copy or the location (e.g., URL) of an authorized version of the work.
- Identification of the material that you claim to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material (preferably a link to the material).
- Information reasonably sufficient to permit us to contact you, such as your name, address, telephone number, and, if available, an email address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the rights owner, its agent, or the law.
- A statement that the information you have supplied is accurate and indicating that “under penalty of perjury” you are the copyright owner or are authorized to act on the copyright owner’s behalf.
- A physical or electronic signature of the copyright holder or authorized representative.
The Copright Agent designated by Speed Digital to receive notifications of claimed infringement through email or regular mail is:
DMCA Notices – Legal
Speed Digital, LLC
10130 Perimeter Parkway
Charlotte, NC 28216
(when emailing include the term “DMCA Notice” in the subject header)
Only DMCA notices should go to our Copyright Agent. Any other communications should be directed to our customer service representatives using the contact information on our website. Upon receipt of a substantially compliant Notification regarding an alleged copyright violation, we will respond expeditiously to remove, or disable access to, the material that is claimed to be infringing. We will also terminate in appropriate circumstances users who are repeat infringers. You acknowledge that if you fail to comply with all of the above instructions, your DMCA notice will not be valid.
Reinstatement Process. If your submitted materials were removed or access thereof has been disabled, and you believe that such materials are not infringing or that you have authorization from the copyright owner, the owner’s agent, or under the law, to post and use the content, you may send a counter-notice containing the following information to our designated Copyright Agent via email or regular mail using the above contact information for our Copyright Agent:
- Your original or electronic signature.
- Identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled.
- A statement “under penalty of perjury” by you that you have a good faith belief that the content was removed or disabled as a result of a mistake or misidentification of the content.
- Your name, address, telephone number, and, if available, email address, along with a statement that you consent to the jurisdiction of the federal district court for the judicial district in which your address is located, or if your address is outside the United States, for the Federal District Court for the Western District of North Carolina; and that you will accept service of process from the person who provided us with the original notification of infringement or an agent of such person.
- If a counter-notice is received by our Copyright Agent, we may send a copy of the counter-notice to the original complaining party information that person or entity that it may replace the removed content or cease disabling it within ten (10) business days. Unless our Copyright Agent receives notice from the person or entity who submitted the DMCA notice that the copyright owner has filed an action seeking a court order to restrain the relevant user from engaging in infringing activity relating to the materials submitted to the Site or made available through the Site, in our sole discretion we may replace or restore access to the relevant content in ten (10) to fourteen (14) business days after receipt of the counter-notice.
8. DISPUTES, BINDING INDIVIDUAL ARBITRATION, AND WAIVER OF CLASS ACTIONS AND CLASS ARBITRATIONS.
PLEASE READ THIS SECTION CAREFULLY because it affects rights that you might otherwise have. It provides for resolution of most disputes through arbitration instead of court proceedings.
Arbitration is different from court. There is no judge or jury, but the arbitrator can award damages. Arbitration is final, biding, and subject to only limited review by a court. You agree to give up your right to a trial in court except for certain small claims as described below. You agree that this arbitration section shall survive termination of these Terms. This section shall be broadly interpreted to encompass all disputes or claims arising out of or relating to these Terms. Any dispute or claim made by you against Company or against any of our subsidiaries, parents, or affiliated companies arising out of these Terms, whether based on contract, statute, fraud, misrepresentation, tort, or any other legal theory, will be resolved by binding arbitration, except that you may take claims to small claims court if they qualify for hearing by such court.
You must first present any claim or dispute to Company by emailing a complete description of the basis for the claim or dispute to Legal@speeddigital.com. You may request arbitration if your claim or dispute cannot be resolved within sixty (60) days of you emailing the basis to us.
The arbitration of any dispute or claim shall be conducted in accordance with the rules of a nationwide arbitration organization, as modified in these Terms. Any arbitration will be conducted in Charlotte, North Carolina. An arbitrator may not (i) award relief in excess of or contrary to what these Terms provide; (ii) order consolidation or arbitration on a class-wide or representative basis, or (iii) award punitive damages or any other damages aside from the prevailing party’s actual damages, except that the arbitrator may award damages that any statute deems unwaivable and may order injunctive or declaratory relief pursuant to an applicable consumer protection statute.
The decisions of the arbitrator shall be binding and conclusive upon all parties involved, and any judgment or decision on an arbitration may be entered in and specifically enforced in any court having proper jurisdiction. If any portion of this section is determined by a court to be inapplicable or invalid, then the remainder shall be given full force and effect. Unless an applicable statute expressly permits awarding attorney’s fees to the prevailing party, all administrative fees and expenses of arbitration will be divided equally between you and Company. Each party will bear the expense of its own counsel, experts, witnesses, facility fees, and preparation and presentation of evidence at any arbitration hearing.
If any provision in this Section is found to be unenforceable, that provision shall be severed with the remainder of these Terms remaining in full force and effect. The foregoing shall not apply to the prohibition against class or representative actions; if the prohibition against class or representative actions is found to be unenforceable, this entire Section shall be null and void. The terms of this Section shall otherwise survive any termination of these Terms.
8C. Exclusive Venue for Other Controversies.
Company and you agree that any controversy excluded from the arbitration procedure and class action waiver provisions, shall be filed only in the state courts of Mecklenburg County, North Carolina, or in the federal courts of the United States District Court for the Western District of North Carolina-Charlotte Division, and each party hereby irrevocably and unconditionally consents and submits to the exclusive jurisdiction of such courts for any such controversy.
9. INDEMNIFICATION; LIMITATION OF LIABILITY.
You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, shareholders, officers, directors, employees, agents, and suppliers harmless from and against any claim, action, demand, loss, suit, or damages (including attorneys' fees) made or incurred by any third party arising out of or relating to your improper use of the Site, your violation of these Terms, or your violation of any rights of a third party. This indemnification is from and against any and all losses, liability, damages, causes of action, claims, demands, costs, and expenses (including but not limited to attorney’s fees, paralegal’s fees and expert’s fees), whether incurred at the pre-arbitration, arbitration, the pre-trial, trial or appellate levels of litigation, or otherwise, in connection with (i) any breach of this agreement by you or anyone claiming through you or because of you. Company shall always retain choice of counsel.
9B. Disclaimer of Warranty and Limitation of Liability.
CERTAIN FEATURES, FUNCTIONALITY, AND/OR CONTENT OFFERED ON OR THROUGH THE SITE MAY BE HOSTED, ADMINISTERED, RUN OR OTHERWISE PARTICIPATED IN BY THIRD PARTIES. THESE SERVICE PROVIDERS MAY REQUIRE THAT YOU AGREE TO THEIR ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES. YOUR COMPLIANCE WITH ANY SUCH ADDITIONAL TERMS, CONDITIONS, CONTRACTS, AGREEMENTS AND/OR RULES IS SOLELY YOUR RESPONSIBILITY AND WILL HAVE NO EFFECT ON YOUR CONTINUING OBLIGATION TO COMPLY WITH THESE TERMS WHEN USING THE SITE. COMPANY AND OUR INDEMNITEES SPECIFICALLY DISCLAIM ANY AND ALL LIABILITY IN CONNECTION WITH THE ACTS OR OMISSIONS OF SUCH THIRD PARTIES.
YOU ACKNOWLEDGE THAT YOU ARE USING THE SITE AT YOUR OWN RISK. THE SITE IS PROVIDED "AS IS", "WITH ALL FAULTS" AND ON AN "AS AVAILABLE" BASIS, AND WE AND OUR INDEMNITEES HEREBY EXPRESSLY DISCLAIM ANY AND ALL REPRESENTATIONS, WARRANTIES, AND GUARANTEES, EXPRESS AND IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF ACCURACY, RELIABILITY, TITLE, MERCHANTABILITY, NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE OR ANY OTHER WARRANTY, CONDITION, GUARANTEE OR REPRESENTATION, WHETHER ORAL, IN WRITING OR IN ELECTRONIC FORM, INCLUDING BUT NOT LIMITED TO THE ACCURACY OR COMPLETENESS OF ANY CONTENT CONTAINED THEREIN OR PROVIDED BY US OR THE SITE. WE AND OUR INDEMNITEES DO NOT REPRESENT, WARRANT OR GUARANTEE THAT ACCESS TO THE SITE AND/OR COMMUNICATIONS OR MESSAGING FROM OR TO US OR YOU WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE, OR THAT THERE WILL BE NO FAILURES, DELAYS, INACCURACIES, ERRORS OR OMISSIONS OR LOSS OF TRANSMITTED CONTENT, OR THAT NO SOFTWARE DISABLING DEVICES, TIME BOMBS, VIRUSES, WORMS, BUGS, OR DEVICES OR DEFECTS OF SIMILAR NATURE WILL BE TRANSMITTED ON OR THROUGH THE SITE, AND WE AND OUR INDEMNITEES WILL NOT BE LIABLE IN THE EVENT OF ANY SUCH OCCURRENCE.
WE AND OUR INDEMNITEES ARE NOT RESPONSIBLE FOR INCOMPLETE, INCORRECT, LOST, DELAYED, LATE, MISDIRECTED, GARBLED, DAMAGED, ILLEGIBLE, UNDELIVERABLE, OR INCOMPLETELY RECEIVED COMMUNICATIONS OR MESSAGING FROM OR TO US OR YOU FOR ANY REASON, INCLUDING BY REASON OF HARDWARE, SOFTWARE, BROWSER, NETWORK, COMMUNICATIONS SYSTEM FAILURE, MALFUNCTION, DELAY, OR CONGESTION, OR ANY INCOMPATIBILITY AT OUR SITE OR ELSEWHERE, OR FOR ANY OTHER TECHNICAL PROBLEMS, ANY FORM OF ACTIVE OR PASSIVE FILTERING BY A USER'S COMPUTER, MOBILE OR OTHER DEVICE OR ACCESS PROVIDER, INSUFFICIENT SPACE ON USER'S COMPUTER, MOBILE OR OTHER DEVICE OR ACCOUNT/PROFILE, OR ANY OTHER CAUSE OR COMBINATION THEREOF.
WE AND OUR INDEMNITEES SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTIES FOR ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES ALLEGEDLY SUSTAINED ARISING OUT OF THESE TERMS, THE SITE, YOUR ABILITY OR INABILITY TO ACCESS, VISIT AND/OR USE THE SITE, INCLUDING DAMAGE TO YOUR COMPUTER, MOBILE OR OTHER DEVICE, OR FOR SOFTWARE DISABLING DEVICES, TIME BOMBS, VIRUSES, WORMS, BUGS, OR DEVICES OR DEFECTS OF SIMILAR NATURE ALLEGED TO HAVE BEEN OBTAINED FROM THE SITE, YOUR ACCESS, VISITATION, AND/OR USE OF, OR RELIANCE ON, THE SITE AND/OR CONTENT AVAILABLE ON OR THROUGH THE SITE, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL OUR LIABILITY TO YOU EXCEED THE TOTAL AMOUNT OF FEES PAID BY YOU DURING THE ONE MONTH PERIOD IN WHICH THE CLAIM AROSE. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. THE AGREEMENT IS NOT SUBJECT TO THE LAWS OF SUCH STATES, BUT TO THE EXTENT A CLAIM IS BROUGHT THEREIN, OUR LIABILITY AND WARRANTIES ARE LIMITED TO THE EXTENT PERMITTED BY LAW. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH STATES, IN PART: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR".
COMPANY WILL NOT BE LIABLE FOR FAILURE TO PERFORM ANY OBLIGATION UNDER THESE TERMS IF SUCH FAILURE IS CAUSED BY THE OCCURRENCE OF ANY UNFORESEEN CIRCUMSTANCES BEYONDS ITS REASONABLE CONTROL, INCLUDING, WITHOUT LIMITATION, INTERNET OUTAGES, COMMUNICATIONS OUTAGES, FIRE, FLOOD, WAR, OR PANDEMIC.
If any provision of these Terms, or a part thereof, shall be unlawful, void, or for any reason unenforceable, then that provision or part thereof shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions or parts thereof.
Notwithstanding anything to the contrary in these Terms, Company reserves the right, without notice and in its sole and absolute discretion, for any reason or no reason, to terminate your access and use of all or part of the Site. You agree that Company shall not be liable for any termination of your access and/or use of the Site.
The provisions of these Terms which by their nature should survive the termination of these Terms shall survive such termination.
No waiver of any provision of these Terms by us shall be deemed a further or continuing waiver of such provision or any other provision, and our failure to assert any right or provision under these Terms shall not constitute a waiver of such right or provision. Any waiver must be in writing signed by a duly authorized representative of Company to be effective.
Company may assign these Terms, in whole or in part, to any person or entity at any time, for any reason, with or without notice to you. You may not assign these Terms, in whole or in part, nor transfer or sublicense your rights under these Terms to any third party.