THE FOLLOWING DESCRIBES THE
TERMS ON WHICH MOTOYARD OFFERS YOU ACCESS TO OUR SERVICES.
Welcome to the user agreement (the "Agreement" or "User Agreement") for
MotoYard.com. This Agreement describes the terms and conditions applicable
to your use of our services available under the domain and sub-domains of
www.motoyard.com (the "Site") and the general principles for the websites
of our subsidiaries and international affiliates. If you do not agree to
be bound by the terms and conditions of this Agreement, do not use or
access our services.
You must read, agree with and accept all of the terms and conditions
contained in this User Agreement and the Privacy Policy, which include
those terms and conditions expressly set out below and those incorporated
by reference, before you may become a member of MotoYard.com. We strongly
recommend that, as you read this User Agreement, you also access and read
the information contained in the other pages and websites referred to in
this document, as they may contain further terms and conditions that apply
to you as an MotoYard.com user. Please note: underlined words and phrases
are links to these pages and websites. By accepting this User Agreement,
you also agree that your use of other MotoYard.com websites will be
governed by the User Agreement and Privacy Policy posted on those
websites.
We may amend this Agreement at any time by posting the amended terms on
the Site. Except as stated below, all amended terms shall automatically be
effective 30 days after they are initially posted on the Site. In
addition, we will notify you in accordance with your Notification
Preferences. This Agreement may not be otherwise amended except in a
writing signed by you and MotoYard.com. This Agreement is effective upon
acceptance in registration for new registering users.
1. Membership Eligibility.
Our services are available only to, and may only be used by individuals
who can form legally binding contracts under applicable law. Without
limiting the foregoing, our services are not available to children
(persons under the age of 18) or to temporarily or indefinitely suspended
MotoYard.com members. If you are a under the age of 18, you can use this
service only in conjunction with, and under the supervision of your
parents or guardians. If you do not qualify, please do not use our Site.
Further, your MotoYard.com account (including feedback) and User ID may
not be transferred or sold to another party. If you are registering as a
business entity, you represent that you have the authority to bind the
entity to this Agreement.
2. Fees and Services.
Joining and bidding on items at MotoYard.com is free. We do charge fees
for listing items for sale through our Site and when you list an item you
have an opportunity to review and accept the fees that you will be
charged. Our Fees and Credits Policy is available (at
http://www.motoyard.com/Help/Selling-Fees.aspx) and is incorporated into this
Agreement by reference. We may change our Fees and Credits Policy and the
fees for our services from time to time. Our changes to the policy are
effective after we provide you with at least fourteen (5) days' notice of
the changes by posting the changes on the Site. However, we may choose to
temporarily change our Fees and Credits Policy and the fees for our
services for promotional events (for example, free listing days) and such
changes are effective when we post the temporary promotional event on the
Site.. We may in our sole discretion change some or all of our services at
any time. In the event we introduce a new service, the fees for that
service are effective at the launch of the service. Unless otherwise
stated, all fees are quoted in U.S. Dollars. You are responsible for
paying all fees associated with using our service and the Site and all
applicable taxes.
3. MotoYard.com is a Venue.
3.1 MotoYard.com is not an Auctioneer. Although we are commonly referred
to as an online auction web site, it is important to realize that we are
not a traditional "auctioneer." Instead, the Site acts as a venue to allow
anyone to offer, sell, and buy just about anything, at anytime, from
anywhere, in a variety of pricing formats, including a fixed price format
and an auction-style format commonly referred to as "online auctions" or
"auctions." We are not involved in the actual transaction between buyers
and sellers. As a result, we have no control over the quality, safety or
legality of the items advertised, the truth or accuracy of the listings,
the ability of sellers to sell items or the ability of buyers to pay for
items. We cannot ensure that a buyer or seller will actually complete a
transaction.
3.2 Identity Verification. We use many techniques to verify the accuracy
of the information our users provide us when they register on the Site.
However, because user verification on the Internet is difficult,
MotoYard.com cannot and does not confirm each user's purported identity.
Thus, we have established a user-initiated feedback system to help you
evaluate with whom you are dealing. We also encourage you to communicate
directly with potential trading partners through the tools available on
the Site. You may also wish to consider using a third party escrow service
or services that provide additional user verification. See our Buying and
Selling Tools page (at http://www.motoyard.com/help/buyandsell.asp).
3.3 Release. Because we are a venue, in the event that you have a dispute
with one or more users, you release MotoYard.com (and our officers,
directors, agents, subsidiaries, joint ventures and employees) from
claims, demands and damages (actual and consequential) of every kind and
nature, known and unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way connected with such disputes. If
you are a California resident, you waive California Civil Code §1542,
which says: "A general release does not extend to claims which the
creditor does not know or suspect to exist in his favor at the time of
executing the release, which if known by him must have materially affected
his settlement with the debtor."
3.4 Information Control. We do not control the information provided by
other users that is made available through our system. You may find other
user's information to be offensive, harmful, inaccurate, or deceptive.
Please use caution, common sense, and practice safe trading when using the
Site. Please note that there are also risks of dealing with underage
persons or people acting under false pretense. Additionally, there may
also be risks dealing with international trade and foreign nationals. By
using this Site, you agree to accept such risks and MotoYard.com is not
responsible for the acts or omissions of users on the Site.
4. Bidding and Buying.
As a buyer, you are obligated to complete the transaction with the seller:
o if you purchase an item through one of our fixed price formats; or
o if you are the highest bidder at the end of an auction (meeting the
applicable minimum bid or reserve requirements) and your bid is accepted
by the seller, unless the transaction is prohibited by law or by this
Agreement.
By bidding on an item you agree to be bound by the conditions of sale
included in the item's description so long as those conditions of sale are
not in violation of this Agreement or unlawful. Bids are not retractable
except in exceptional circumstances, such as: when the seller materially
changes the item's description after you bid; a clear typographical error
is made; you cannot authenticate the seller's identity. If you choose to
bid on mature audience items or items that are restricted to adult use,
you are certifying that you have the legal right to purchase such items.
5. Listing and Selling.
5.1 Listing Description. You must be legally able to sell the item(s) you
list for sale on the Site. You must describe your item and all terms of
sale on the listing page of the Site. Your listings may only include text
descriptions, graphics, pictures and other content relevant to the sale of
that item. All listed items must be listed in an appropriate category. All
items in multiple item listings must be identical.).
5.2 Binding Bids. Except for items listed in a category under the
Non-binding Bid Policy, if you receive at least one bid at or above your
stated minimum price (or in the case of reserve auctions, at or above the
reserve price), you are obligated as the seller to complete the
transaction with the highest bidder upon the auction's completion, unless
there is an exceptional circumstance, such as: (a) the buyer fails to meet
the terms of your listing (such as payment method), or (b) you cannot
authenticate the buyer's identity.
5.3 Fraud. Without limiting any other remedies, MotoYard.com may suspend
or terminate your account if we suspect that you (by conviction,
settlement, insurance or escrow investigation, or otherwise) have engaged
in fraudulent activity in connection with the Site.
5.4 Manipulation. Neither you, bidders nor sellers may manipulate the
price of any item nor may you interfere with other user's listings or
transactions.
6. Your Information.
6.1 Definition. "Your Information" is defined as any information you
provide to us or other users in the registration, bidding or listing
process or through any email feature. You are solely responsible for Your
Information, and we act as a passive conduit for your online distribution
and publication of Your Information.
6.2 Restricted Activities. Your Information (or any items listed) and your
activities on the Site shall not: (a) be false, inaccurate or misleading;
(b) be fraudulent or involve the sale of counterfeit or stolen items; (c)
infringe any third party's copyright, patent, trademark, trade secret or
other proprietary rights or rights of publicity or privacy; (d) violate
any law, statute, ordinance or regulation (including, but not limited to,
those governing export control, consumer protection, unfair competition,
antidiscrimination or false advertising); (e) be defamatory, trade
libelous, unlawfully threatening or unlawfully harassing; (f) be obscene
or contain child pornography or, if otherwise adult in nature or harmful
to minors, shall be posted only in the Mature Audiences section and shall
be distributed only to people legally permitted to receive such content;
(g) contain any viruses, Trojan horses, worms, time bombs, cancelbots,
easter eggs or other computer programming routines that may damage,
detrimentally interfere with, surreptitiously intercept or expropriate any
system, data or personal information; (h) create liability for us or cause
us to lose (in whole or in part) the services of our ISPs or other
suppliers; and (i) link directly or indirectly to or include descriptions
of goods or services that: (aa) are prohibited under this Agreement; (bb)
are identical to other items you have up for auction but are priced lower
than your item's reserve or minimum bid amount; (cc) are concurrently
listed for sale on a web site other than MotoYard's (this does not prevent
linking to or advertising an MotoYard.com item from another web site); or
(dd) you do not have a right to link to or include. Furthermore, you may
not list any item on the Site (or consummate any transaction that was
initiated using our service) that, by paying to us the listing fee or the
final value fee, could cause us to violate any applicable law, statute,
ordinance or regulation, or that violates our current Prohibited,
Questionable and Infringing Items.
6.3 License. Solely to enable MotoYard.com to use the information you
supply us with, so that we are not violating any rights you might have in
that information, you agree to grant us a non-exclusive, worldwide,
perpetual, irrevocable, royalty-free, sublicensable (through multiple
tiers) right to exercise the copyright, publicity, and database rights
(but no other rights) you have in Your Information, in any media now known
or not currently known, with respect to Your Information. MotoYard.com
will only use Your Information in accordance with our Privacy Policy.
7. Access and Interference.
The Site contains robot exclusion headers. Much of the information on the
Site is updated on a real time basis and is proprietary or is licensed to
MotoYard.com by our users or third parties. You agree that you will not
use any robot, spider, scraper or other automated means to access the Site
for any purpose without our express written permission. Additionally, you
agree that you will not: (i) take any action that imposes, or may impose
in our sole discretion an unreasonable or disproportionately large load on
our infrastructure; (ii) copy, reproduce, modify, create derivative works
from, distribute or publicly display any content (except for Your
Information) from the Site without the prior expressed written permission
of MotoYard.com and the appropriate third party, as applicable; (iii)
interfere or attempt to interfere with the proper working of the Site or
any activities conducted on the Site; or (iv) bypass our robot exclusion
headers or other measures we may use to prevent or restrict access to the
Site.
8. Feedback.
8.1 Integrity. You may not take any actions that may undermine the
integrity of the feedback system. We may limit the number of bids and
listings you may place on the Site based upon the level of your feedback.
If you earn a net feedback rating of -4 (minus four), your membership may
be suspended, and you may be unable to list or bid.
8.2 Export. You acknowledge that your feedback consists of comments left
by other users and a composite feedback number compiled by MotoYard.com,
and that the composite number without the comments does not convey your
full user profile. Because feedback ratings are not designed for any
purpose other than for facilitating trading between MotoYard.com users,
you agree that you shall not market or export your MotoYard.com feedback
rating in any venue other than an MotoYard.com operated website.
8.3 Import. We do not provide you the technical ability to import feedback
from other (non-MotoYard.com operated) websites to MotoYard.com because a
composite number, without the corresponding feedback does not reflect your
true online reputation within our community.
9. Breach.
Without limiting other remedies, we may limit your activity, immediately
remove your bids or item listings, warn our community of your actions,
issue a warning, temporarily suspend, indefinitely suspend or terminate
your membership and refuse to provide our services to you if: (a) you
breach this Agreement or the documents it incorporates by reference; (b)
we are unable to verify or authenticate any information you provide to us;
or (c) we believe that your actions may cause financial loss or legal
liability for you, our users or us.
10. Privacy.
We do not sell or rent your personal information to third parties for
their marketing purposes without your explicit consent and we only use
your information as described in the Privacy Policy. We view protection of
users' privacy as a very important community principle. We understand
clearly that you and your information is one of our most important assets.
We store and process your information on computers located in the United
States that are protected by physical as well as technological security
devices. We use third parties to verify and certify our privacy
principles. If you object to your Information being transferred or used in
this way please do not use our services.
11. No Warranty.
WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS
PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR
CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES, OFFICERS,
DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT. Some states do not allow the disclaimer of implied
warranties, so the foregoing disclaimer may not apply to you. This
warranty gives you specific legal rights and you may also have other legal
rights that vary from state to state.
12. Liability Limit.
IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR
OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR
SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS,
EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE
IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE
12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some
States do not allow the exclusion or limitation of incidental or
consequential damages, so the above limitation or exclusion may not apply
to you.
13. Indemnity.
You agree to indemnify and hold us and (as applicable) our parent,
subsidiaries, affiliates, officers, directors, agents, and employees,
harmless from any claim or demand, including reasonable attorneys' fees,
made by any third party due to or arising out of your breach of this
Agreement or the documents it incorporates by reference, or your violation
of any law or the rights of a third party.
14. Legal Compliance.
You shall comply with all applicable domestic and international laws,
statutes, ordinances and regulations regarding your use of our service and
your bidding on, listing, purchase, solicitation of offers to purchase,
and sale of items.
15. No Agency.
You and MotoYard.com are independent contractors, and no agency,
partnership, joint venture, employee-employer or franchiser-franchisee
relationship is intended or created by this Agreement.
16. Notices.
Except as explicitly stated otherwise, any notices shall be given by
postal mail to MotoYard.com.(in the case of MotoYard.com) or to the email
address you provide to MotoYard.com during the registration process (in
your case). Notice shall be deemed given 24 hours after email is sent,
unless the sending party is notified that the email address is invalid.
Alternatively, we may give you notice by certified mail, postage prepaid
and return receipt requested, to the address provided to MotoYard.com
during the registration process. In such case, notice shall be deemed
given 3 days after the date of mailing.
17. Resolution of Disputes.
In the event a dispute arises between you and MotoYard.com, our goal is to
provide you with a neutral and cost effective means of resolving the
dispute quickly. Accordingly, you and MotoYard.com agree that any claim or
controversy at law or equity that arises out of this Agreement or our
services ("Claims") shall be resolved in accordance with one of the
subsections below or as otherwise mutually agreed upon in writing by the
parties. Before resorting to these alternatives, we strongly encourage you
to first contact us directly to seek a resolution and we will consider
reasonable requests to resolve the dispute through alternative dispute
resolution procedures, such as mediation, as an alternative to litigation.
17.1 Binding Arbitration. For any Claim (excluding Claims for injunctive
or other equitable relief) where the total amount of the award sought is
less than $10,000, you or MotoYard.com may elect to resolve the dispute
through binding arbitration conducted by telephone, on-line and/or based
solely upon written submissions where no in-person appearance is required.
In such cases, the arbitration shall be administered by the American
Arbitration Association or JAMS in accordance with their applicable rules,
or any other established ADR provider mutually agreed upon by the parties.
Any judgment on the award rendered by the arbitrator may be entered in any
court having jurisdiction thereof.
17.2 Court. Alternatively, any Claim may be adjudicated by a court of
competent jurisdiction located in Los Angeles County, California or where
the defendant is located (in our case Los Angeles, California, and in your
case your home address or principal place of business). You and
MotoYard.com agree to submit to the personal jurisdiction of the courts
located within the county of Los Angeles, California.
17.3 Alternative Dispute Resolution. Alternatively, MotoYard.com will
consider use of other alternative forms of dispute resolution, such as
binding arbitration to be held in Los Angeles County, California or
another location mutually agreed upon by the parties.
All Claims (excluding requests for injunctive or equitable relief) between
the parties must be resolved using the dispute resolution mechanism that
is selected in accordance with this Section by the first party to file a
Claim. Should either party file an action contrary to this Section 17, the
other party may recover attorneys' fees and costs up to $1000, provided
that the party seeking the award has notified the other party in writing
of the improperly filed Claim, and the other party has failed to withdraw
the Claim.
18. Additional Terms.
The following policies are incorporated into this Agreement by reference
and provide additional terms and conditions related to specific services
offered on the Site:
Outage Policy: http://www.motoyard.com/help/outage.asp,
Non-Paying Bidder Policy: http://www.motoyard.com/help/bidders.asp.
Each of these policies may be changed from time to time and are effective
immediately after we post the changes on the Site, except for the Privacy
Policy for which we will provide you with thirty days prior notice. In
addition, when using particular services on the Site, you agree that you
are subject to any posted policies or rules applicable to services you use
through the Site, which may be posted from time to time. All such posted
policies or rules are hereby incorporated by reference into this
Agreement.
19. General.
This Agreement shall be governed in all respects by the laws of the State
of California as such laws are applied to agreements entered into and to
be performed entirely within California between California residents. We
do not guarantee continuous, uninterrupted or secure access to our
services, and operation of the Site may be interfered with by numerous
factors outside of our control. If any provision of this Agreement is held
to be invalid or unenforceable, such provision shall be struck and the
remaining provisions shall be enforced. You agree that this Agreement and
all incorporated agreements may be automatically assigned by MotoYard.com
in accordance with Section 16 "Notices", in our sole discretion, Headings
are for reference purposes only and in no way define, limit, construe or
describe the scope or extent of such section. Our failure to act with
respect to a breach by you or others does not waive our right to act with
respect to subsequent or similar breaches. This Agreement sets forth the
entire understanding and agreement between us with respect to the subject
matter hereof. Sections 2 (Fees and Services) with respect to fees owed
for our services, 3.4 (Release), 6.3 (License), 7 (Access and
Interference), 12 (Liability Limit), 13 (Indemnity) and 17 (Resolution of
Disputes) shall survive any termination or expiration of this Agreement.
20. Disclosures.
The services hereunder are offered by MotoYard.com. If you are a
California resident, you may have this same information emailed to you by
sending a letter to the foregoing address with your email address and a
request for this information.
Commercially available parental control protections (such as computer
hardware, software, or filtering services) are commercially available that
may assist you in limiting access to material that is harmful to minors.
If you are interested in learning more about these protections,
information is available at http://www.safetysurf.com/ or other analogous
sites providing information on such protections. The preceding link is
provided for information purposes only, and is not intended as an
endorsement of SafetySurf.com's Internet site, services, or policies.
MotoYard.com is not affiliated with SafetySurf.com.
Disputes between you and MotoYard.com regarding our services may be
reported to Customer Support. We encourage you to report all user-to-user
disputes to your local law enforcement, postmaster general, or a certified
mediation or arbitration entity.
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