Welcome to Motoroso!
By using the Services, you agree to be bound by these Terms. If you do not agree to these Terms, do not use the Services. If you are accessing and using the Services on behalf of a company (such as your employer) or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms. In that case, "you" and "your" will refer to that company or other legal entity.
ARBITRATION NOTICE: THESE TERMS CONTAIN A DISPUTE RESOLUTION AND ARBITRATION PROVISION, INCLUDING CLASS ACTION WAIVER THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS AND WITH RESPECT TO DISPUTES YOU MAY HAVE WITH MOTOROSO.
Description of Our Services
Sellers are solely responsible for any Products that they sell through the Services; we merely facilitate the transactions between Seller and Buyers. By using the Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of Sellers or Buyers or other third parties will be limited to a claim against the Sellers or Buyers or other third parties who caused you harm and you agree not to attempt to impose liability on us, or seek any legal remedy from us with respect to such actions or omissions.
In addition, our Services are evolving and the form and nature of the Services that Motoroso provides may change from time to time without prior notice to you. In addition, Motoroso may need to stop (permanently or temporarily) providing the Services (or any features within the Services) to you or to users generally if we determine it necessary in our sole discretion, which may be without prior notice to you.
Eligibility to Use the Services
You must be at least 18 years old and have the capacity to form a binding contract to use the Services. You may not use the Services if you are a resident of a country embargoed by the United States, or are a foreign person or entity blocked or denied by the United States Government or in a jurisdiction which prohibits the use of the Services. You may use the Services only in compliance with these Terms and all applicable local, state, national, and international laws, rules and regulations. In addition, Sellers must meet certain additional qualifications as noted in the Seller Registration section below.
Registration and Accounts
You may browse and use certain aspects of the Site without registering with Motoroso. However, to use certain of the Services, such as buying and selling, or posting a profile, you will need to register and create an account with Motoroso. You will need to create a username, password and provide certain information about yourself as prompted by the registration form, including your name, a valid email address, phone number, and other information that we deem relevant. You agree to provide full, complete and accurate information when registering or creating an account, and to update that information promptly if it should change. We reserve the right to suspend or terminate your account if any information provided proves to be inaccurate, false, or otherwise in violation of these Terms.
You may not create more than one account on Motoroso without prior written approval from us. You may not use a username for the purpose of impersonating another person or entity, including staff or any other representative of Motoroso. We reserve the right to remove or reclaim inactive usernames or usernames on behalf of businesses or individuals that hold trademark or other legal claim on those usernames. You will not transfer your Motoroso account, including feedback and your username, to any other party without our prior written consent.
Unless you are an agent authorized to bind another person and you are acting under their direction, you may not create an account for anyone other than yourself. You may also link your Motoroso account with your account on third party sites, such as Facebook (such account, a "Third-Party Account"). If you provide your Third-Party Account credentials to us or otherwise link your Motoroso account with a Third-Party Account, we will obtain certain personal information, such as your name and email address, and other personal or contact information that your privacy settings on such Third-Party Account permit us to access. In addition, your activities on Motoroso may appear on your Facebook timeline unless you specifically restrict such postings using your privacy settings.
You should use strong passwords (passwords that use a combination of upper and lower case letters, numbers and symbols) with your account. You are responsible for safeguarding the password that you use to access the Services. You are solely responsible for any activities or actions under your account, whether or not you have authorized such activities or actions. You must immediately notify Motoroso of any unauthorized use of your account, or if you have reason to believe that your password was lost, stolen, disclosed to an unauthorized third party, or otherwise may have been compromised. Motoroso is not liable for any loss or damage arising from your failure to comply with the above requirements.
Brands and service providers may elect to register with Motoroso as a business account and create a profile on Motoroso. Subject to and conditioned on compliance with these Terms, such users are permitted to use the professional account/profile features offered by Motoroso to promote their business. All such Motoroso features are subject to discontinuance or change at any time. All of the terms and conditions of in these Terms apply to your use of any such business account and profile, including without limitation, maintaining profile information, uploading or other posting of Content, posting of Reviews, use of Motoroso buttons, links and widgets, and indemnification obligations.
Sellers will create certain information about your Product, including a description, price ("Sales Price"), expected shipment date, and shipping costs (if any), warranty (if any), and any other applicable terms of the sale (each a "Listing"). Motoroso is not responsible for the completeness or accuracy of any Listing, or the quality, condition or availability of any Product.
Buyers can purchase Products by agreeing to pay the Sales Price plus all shipping costs as indicated on the Listing. Once confirmed by the Buyer, the purchase is not cancellable except as provided in these Terms. No sale will be deemed complete unless and until Motoroso provides you with a confirmation of the sale through the Services (a "Confirmed Sale")
Payments by Buyers
Buyers are responsible for paying the Sales Price plus applicable Taxes (as defined below) and shipping costs charged by the Seller on all Confirmed Sales. Buyers are responsible for reading the full Listing before making a commitment to buy. If you make a purchase, you may be asked to provide payment information, including your credit card number, your bank account and routing number, the expiration date of your credit card, your address(es) for billing and delivery, and other information about your financial accounts (such information, "Payment Information"). If you make a purchase on a Confirmed Sale, you authorize Motoroso and Motoroso’s payment processor(s) to use the Payment Information to charge your designated payment account. You also authorize Motoroso and Motoroso’s payment processors to correct any mistakes in payments made by or to you, including any processing errors we discover, by using the Payment Information to debit or credit the payment account used in the applicable transaction.
You agree to bear any additional charges that your bank or other financial service provider may levy on you. You will receive a confirmation email once the transaction is complete. If you have any concerns or objections regarding charges, you agree to raise them first with us and you agree not to cancel, reject, chargeback or request reversal of any charges related to a purchase on a Confirmed Sale unless you have made a reasonable attempt at resolving the matter directly with Motoroso.
Because Buyers and Sellers may be located in separate and applicable tax jurisdictions, a Confirmed Sale may be subject to local sales, customs or value-added taxes or additional postage upon delivery. These taxes or additional postage fees are not charged by or through the Services and Motoroso cannot be responsible for or provide order-specific advice regarding additional taxes or postal fees.
Buyers are responsible for all shipping costs for the Products as specified by the Sellers in their Listing. The shipping costs will be charged to Buyers when they check out and complete their Confirmed Sale.
Sellers must offer Buyers up to 30 days to cancel a purchase and request a refund after payment, subject to return of the purchase Product and other Seller return conditions specified in the Listing. Upon confirmation of the return by Seller, a refund will be issued to the Buyer to the account used in making the Confirmed Sale.
Buyers may be required to pay any sales taxes, use taxes, value added taxes (VAT), goods and services taxes (GST), customs duties and other levies (collectively "Taxes") imposed by any governmental entity on a Confirmed Sale. Such Taxes will be charged to Buyers when they check out and complete their Confirmed Sale.
Motoroso does not endorse any Seller or any Product a Seller may offer for sale through the Services. The posting of a Product on the Site or the Services does not imply any endorsement, representation or warranty for that Product by Motoroso. Sellers are solely responsible for their Products.
No Employment or Agency
Sellers and Buyers are not employees, agents or otherwise contractors of Motoroso and we do not, in any way, supervise, direct, or control a Seller. No agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by these Terms. Sellers and Buyers have no authority to bind Motoroso by contract or otherwise.
Relationship between Seller and Buyer
Any purchase of a Product from a Seller is a contract between Seller and Buyer only. Sellers and Buyers acknowledge and agree that Sellers, and not Motoroso, will be responsible for performing the obligations of any contracts related to the sale of Products, and that Motoroso is not a party to such contracts and disclaims all liability arising from or related to such contracts.
Motoroso does not have any control over or liability for the quality, safety, legality, descriptions, photos, or other aspect of the Products listed for sale, nor does Motoroso have any control over or liability for the accuracy, truthfulness, quality, or other aspect of the materials and information associated with Products. Motoroso is not liable or responsible for defective Products. If a Product sold on Motoroso is delivered in a defective condition, a Buyer's sole remedy is with the Seller.
Buyers and Sellers are required to deal directly with each other with respect to any dispute over a Confirmed Sale or a Product. However , Motoroso reserves the right in its sole discretion (but has no obligation) to resolve disputes between Buyers and Sellers. You agree that Motoroso has the right to make the final decision in any dispute where Motoroso chooses to intervene. If we resolve a dispute in the Buyer's favor, we may, but are not required to, issue a refund for up to the full cost of the Product in dispute, including shipping, and require the Seller to reimburse us for the full amount refunded, including, in some cases, shipping costs. The foregoing paragraph states Motoroso's entire liability and obligation to Buyers and Sellers in connection with any dispute between such parties.
Users may submit feedback information regarding Sellers and Buyers that use the Services. You may only use the rating and feedback features for the bona-fide purpose of submitting feedback regarding the experience you had. Any other use of the feedback system is prohibited. You may not threaten to withhold refunds in order to avoid negative feedback or receive benefits beyond those to which you are entitled and you may not submit feedback for the purpose of manipulating another user's rating. Feedback information submitted by a user may be made available through the Services to other users.
As part of the Services we provide, you may (if enabled) receive notifications, alerts or other types of messages via text message, email or the messaging functionality provided by the Services ("Messages"). You have control over the Messages settings, and can opt in or out of these Messages (with the exception of service announcements and administrative messages) either through your account or by following the unsubscribe instructions provided in the e-mail you receive. Please be aware that third party messaging fees may occur for some of the Messages depending on the message plan you have with your wireless carrier.
If you provide your cellular phone number and agree to receive communications from Motoroso, you specifically authorize Motoroso to send text messages or calls to your phone using an automated telephone dialing system. You are not required to consent to receive text messages or calls as a condition of using the Services and may opt out of such messages. You can opt out of receiving text messages through your account settings.
Content and Reviews
The Services allows users to post content and reviews ("Reviews") relating to Products as well as other topics of interest. For purposes of these Terms: (i) "Content" means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) "User Content" means any Content that users (including you) provide to be made available through the Services (including Content associated with your Products). Content includes without limitation User Content.
All Content is the sole responsibility of the person who originated such Content, including its legality, reliability, and appropriateness. Any use of or reliance on any Content or materials posted via the Services or obtained by you through the Services is at your own risk.
We do not endorse, support, represent or guarantee the completeness, truthfulness, accuracy, or reliability of any Content or communications posted by users or other third parties via the Services. You understand that by using the Services, you may be exposed to Content that might be offensive, harmful, inaccurate or otherwise inappropriate, or in some cases, postings that have been mislabeled or are otherwise deceptive. Under no circumstances will Motoroso be liable in any way for any Content, including, but not limited to, any errors or omissions in any Content, or any loss or damage of any kind incurred as a result of the use of any Content posted, emailed, transmitted or otherwise made available via the Services or broadcast elsewhere.
Motoroso may offer a catalog of Products, which may include photos, descriptions, and other information provided by third parties. Motoroso cannot guarantee that the information contained in such catalog will be accurate or up to date, and you agree not to hold such third party Content providers, or Motoroso, responsible for any inaccuracies.
Subject to your compliance with these Terms, Motoroso grants you a limited, non-exclusive, non-transferable, non-sublicensable license to access and view the Content solely in connection with your permitted use of the Services.
Your User Content
Your User Content will be viewable by other users of the Services. You should only post information or provide User Content that is not confidential and you are comfortable sharing with others under these Terms. You are responsible for any User Content you provide, and for any consequences thereof, including the use of your User Content by other users and our third party partners. Motoroso is not responsible or liable for any use of your User Content by Motoroso in accordance with these Terms.
You represent and warrant that (i) you have all the rights, power and authority necessary (you own it or have the right to use it) to grant the rights granted herein to any User Content submitted; and (ii) your User Content or your use and provision of your User Content to be made available through the Services does not violate any privacy rights, publicity rights, intellectual property rights, contract rights, or any other rights of any person or entity or result in the violation of any applicable law or regulation.
By submitting, posting or displaying User Content on or through the Services, you grant Motoroso and its affiliates, third-party service providers and partners a worldwide, non-exclusive, royalty-free, perpetual license (with the right to sublicense) to use, copy, reproduce, process, adapt, modify, publish, transmit, display and distribute such User Content in any and all media or distribution methods (now known or later developed) in connection with the Services, including for commercial, advertising and promotional purposes relating to the Services or your Products. You agree that this license includes the right for us to make such User Content available to other users of the Services, who may also use your User Content subject to these Terms to take advantage of the Services. No compensation will be paid with respect to the User Content that you submit, post, transmit or otherwise make available through the Services, even if used by other companies, organizations or individuals who partner with Motoroso.
We may need to modify or adapt your User Content in order to transmit, display or distribute it over computer networks and in various media and/or make changes to your User Content as are necessary to conform and adapt that User Content to any requirements or limitations of any networks, devices, services or media and you hereby grant us the rights to do so. Motoroso claims no ownership of any User Content submitted, posted or displayed by you on or through the Services. You retain any and all of your rights to any User Content you submit, post or display on or through the Services, subject to the exceptions noted herein, and you are solely responsible for protecting those rights.
Motoroso Ownership Rights
All right, title, and interest in and to the Services (excluding your User Content), including all associated intellectual property rights, are and will remain the exclusive property of Motoroso and its licensors. The Services are protected by copyright, trademark, and other laws of both the United States and foreign countries. Nothing in the Terms gives you a right to use the Motoroso name or any of the Motoroso trademarks, logos, domain names, or other distinctive brand features. You shall not sell, license, rent, modify, distribute, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit, create derivative works from, or otherwise exploit any Content or third party submissions or other proprietary rights not owned by you, (i) without the consent of the respective owners or other valid right, and (ii) in any way that violates the rights of Motoroso or any third party. You may not remove, alter, or obscure any copyright, trademark, service mark, or other proprietary rights notices incorporated in or accompanying the Services, including any Content.
Any feedback, comments, or suggestions you may provide regarding Motoroso or the Services are entirely voluntary and are the sole and exclusive property of Motoroso. You hereby irrevocably assign to us all of your right, title and interest in and to such feedback, comments or suggestions, and Motoroso is free to use them as we see fit and without any obligation to you.
Restrictions on Content and Use of the Services
We reserve the right at all times (but are not obligated to) to remove or refuse to distribute any Content on the Services, which violates these Terms or the Seller Rules. We also reserve the right to access, read, preserve, and disclose any information as we reasonably believe is necessary to (i) satisfy any applicable law, regulation, legal process or governmental request, (ii) enforce the Terms, including investigation of potential violations hereof, (iii) detect, prevent, or otherwise address fraud, security or technical issues, (iv) respond to user support requests, or (v) protect the rights, property or safety of Motoroso, its users and the public.
Unless you have been specifically permitted to do so in a separate written agreement with Motoroso and except as expressly permitted in these Terms, you may not reproduce, modify or prepare derivative works based upon, distribute, sell, transfer, publicly display, publicly perform, transmit, or otherwise use the Content (except your User Content) or Services. You may not copy, modify, decompile, reverse-engineer, or disassemble the code used to generate web pages on the Services. You may not harvest usernames, addresses, email addresses, or other personal information for any purpose.
You may not do any of the following while accessing or using the Services:
- post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; or (v) promotes illegal or harmful activities or substances;
- send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- impersonate or misrepresent your affiliation with any person or entity;
- access, tamper with, or use non-public areas of the Services, Motoroso's computer systems, or the technical delivery systems of Motoroso's providers;
- probe, scan, or test the vulnerability of any system or network or breach or circumvent any security or authentication measures;
- access or search or attempt to access or search the Services by any means (automated or otherwise) other than through our currently available, published interfaces that are provided by Motoroso unless you have been specifically allowed to do so in a separate agreement with Motoroso;
- forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- interfere with, or disrupt, (or attempt to do so), the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, mail-bombing the Services, or by scripting the creation of Content in such a manner as to interfere with or create an undue burden on the Services;
- avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Motoroso or any of Motoroso's providers or any other third party (including another user) to protect the Services or Content;
- use, display, mirror or frame the Services, any individual element within the Services, or the layout and design of any page or form contained on a page, without Motoroso's express written consent;
- violate any applicable law or regulation;
- or encourage or enable any other individual to do any of the foregoing.
We respect the intellectual property rights of others and encourage you to do the same. Accordingly, we have a policy of removing User Content or Products that violate intellectual property rights of others, suspending access to the Services (or any portion thereof) to any user who uses these Services in violation of someone's intellectual property rights, and/or terminating in appropriate circumstances the account of any user who uses the Services in violation of someone's intellectual property rights.
Pursuant to Title 17 of the United States Code, Section 512, we have implemented procedures for receiving written notification of claimed copyright infringement and for processing such claims in accordance with such law. If you believe your copyright or other intellectual property right is being infringed by a user of the Services, please provide written notice to our Agent for notice of claims of infringement:.
To be sure the matter is handled immediately, your written notice must:
- Contain your physical or electronic signature;
- Identify the copyrighted work or other intellectual property alleged to have been infringed;
- Identify the allegedly infringing material in a sufficiently precise manner to allow us to locate that material;
- Contain adequate information by which we can contact you (including postal address, telephone number, and e-mail address);
- Contain a statement that you have a good faith belief that use of the copyrighted material or other intellectual property is not authorized by the owner, the owner's agent or the law;
- Contain a statement that the information in the written notice is accurate; and
- Contain statement, under penalty of perjury, that you are authorized to act on behalf of the copyright or other intellectual property right owner.
Submitting a DMCA Counter-Notification
We will notify you that we have removed or disabled access to copyright-protected material that you provided, if such removal is pursuant to a validly received DMCA take-down notice. In response, you may provide our Agent with a written counter-notification that includes the following information:
- 1. Your physical or electronic signature;
- 2. Identification of the material that has been removed or to which access has been disabled, and the location at which the material appeared before it was removed or access to it was disabled;
- 3. A statement from you under the penalty of perjury, that you have a good faith belief that the material was removed or disabled as a result of a mistake or misidentification of the material to be removed or disabled; and
- 4. Your name, physical address and telephone number, and a statement that you consent to the jurisdiction of a court for the judicial district in which your physical address is located, or if your physical address is outside of the United States, for any judicial district in which we may be located, and that you will accept service of process from the person who provided notification of allegedly infringing material or an agent of such person.
Termination of Repeat Infringers
We reserve the right, in our sole discretion, to terminate the account or access of any user of the Services who is the subject of repeated DMCA or other infringement notifications.
We may suspend or terminate your access to and use of the Services, at our sole discretion, at any
time and without notice to you, including, without limitation, if you violate any of these Terms, or
otherwise create risk or possible legal exposure for us. You may cancel your Account at any time by
logging into your account.
Upon any termination, discontinuation or cancellation of Services or your Account, the following provisions will survive: ownership provisions, indemnification, warranty disclaimers, limitations of liability, and dispute resolution provisions.
Unless Motoroso otherwise notifies you in writing, you agree to fulfill any Confirmed Sales that have not yet been shipped upon termination. Any payment for such Confirmed Sales will be subject to delivery being confirmed.
The Services are Available "AS-IS"
YOU EXPRESSLY UNDERSTAND AND AGREE THAT:
YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES AND THE CONTENT CONTAINED HEREIN ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. EXCEPT AS OTHERWISE EXPRESSLY PROVIDED IN THESE TERMS, THE COMPANY, ITS OTHER AFFILIATED COMPANIES AND THEIR RESPECTIVE OWNERS, OFFICERS, DIRECTORS, MEMBERS, MANAGERS, EMPLOYEES AND OTHER REPRESENTATIVES AND THE COMPANY’S VENDORS AND BUSINESS PARTNERS (COLLECTIVELY, "THE COMPANY AND ITS AFFILIATED PARTIES") EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
We MAKE NO WARRANTY THAT (I) THE SERVICES WILL MEET YOUR REQUIREMENTS; (II) THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; (III) THE INFORMATION THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE; (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL OBTAINED BY YOU THROUGH THE SERVICES WILL MEET YOUR EXPECTATIONS; AND (V) ANY ERRORS IN THE SERVICES WILL BE CORRECTED. ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM, YOUR MOBILE DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE COMPANY AND ITS AFFILIATED PARTIES OR ON OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED IN THESE TERMS.
No advice or information, whether oral or written, obtained from Motoroso or through the Services, will create any warranty not expressly made herein.
You agree to defend, indemnify, and hold harmless Motoroso and its partners, and their officers, directors, employees and agents, from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services, (ii) your violation of these Terms or any Content posted, published, transmitted or otherwise provided by you or on your behalf and (iii) any Products sold by you via the Services.
Limitation of Liability
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, MOTOROSO AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS ARE NOT LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING WITHOUT LIMITATION, LOSS OF PROFITS, DATA, USE, GOODWILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (i) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (ii) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY ON THE SERVICES, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE OR ILLEGAL CONDUCT OF OTHER USERS OR THIRD PARTIES; (iii) ANY CONTENT OBTAINED FROM THE SERVICES; (iv) ANY PRODUCTS SOLD OR PURCHASED THROUGH THE SERVICES; OR (v) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR TRANSMISSIONS OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT MOTOROSO HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, AND EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. UNDER NO CIRCUMSTANCES WILL MOTOROSO'S TOTAL LIABILITY TO YOU FROM ALL CAUSES OF ACTION AND UNDER ALL THEORIES OF LIABILITY EXCEED THE AMOUNT YOU PAID MOTOROSO FOR THE USE OF THE SERVICES DURING THE TWELVE MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, IF YOU HAVE MADE ANY PAYMENTS TO MOTOROSO, OR $50 IF YOU HAVE NOT MADE ANY PAYMENTS TO MOTOROSO.
Some jurisdictions do not allow the exclusion of certain warranties or the exclusion or limitation of liability for consequential or incidental damages, so the limitations above may not apply to you.
A. Arbitration. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement directly through good-faith negotiations, which shall be a precondition to either party initiating a lawsuit or arbitration. Except for disputes relating to Motoroso’s or its licensor’s intellectual property (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents) or if you opt out of these Terms to arbitrate, all claims arising out of or relating to these Terms and your use of the Services shall be finally settled by binding arbitration administered by the American Arbitration Association in accordance with the provisions of its Commercial Arbitration Rules and of its supplementary procedures for consumer-related disputes, excluding any rules or procedures governing or permitting class actions. The arbitrator, and not any court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to these Terms, including, but not limited to, any claim that all or any part of these Terms is void or voidable. The arbitrator shall be empowered to grant whatever relief would be available in a court; provided, however, that the arbitrator will not have authority to award damages, remedies, or awards that conflict with these Terms. The arbitrator’s award shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, Motoroso will pay the additional cost. You agree not to participate in claims brought in a private attorney general or representative capacity, or consolidated claims involving another person’s account, if Motoroso is a party to the proceeding. This dispute resolution provision will be governed by the Federal Arbitration Act.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and that the right to discovery may be more limited in arbitration than in court.
B. Class-Action Waiver. The parties further agree that any arbitration shall be conducted in their individual capacities only, and not as a class action or other representative action. If any court or arbitrator determines that the class-action waiver set forth in this section is void or unenforceable for any reason, or that an arbitration can proceed on a class basis, then the arbitration provision set forth above shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
C. Exception-Litigation of Small-Claims-Court Claims. Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
D. Thirty-Day Right to Opt Out. You have the right to opt out and not be bound by the arbitration- and class-action- waiver provisions set forth in this section by sending written notice f your decision to opt out to the following address:
872 Higuera Street
San Luis Obispo, CA 93401
The notice must be sent within thirty (30) days of registering to use the Services; otherwise, you shall be bound to arbitrate disputes in accordance with these Terms. If you opt out of these arbitration provisions, Motoroso also will not be bound by them. In addition, if you elect to opt out of these arbitration provisions, Motoroso may terminate your use of the Services.
E. Time Limitation on Claims. You agree that any claim you may have arising out of or related to your relationship with Motoroso and these Terms must be filed within one (1) year after such claim arose; otherwise, your claim is permanently barred.
Choice of Law and Forum
These Terms and your relationship with Motoroso shall be governed by, and construed and interpreted in accordance with, the laws of the State of California without regard to its conflict of laws principles AND WILL SPECIFICALLY NOT BE GOVERNED BY THE UNITED NATIONS CONVENTIONS ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS, IF OTHERWISE APPLICABLE. Subject to the arbitration provisions above, you consent to the exclusive jurisdiction of the federal or state courts located in Santa Clara County, California.
U.S. Government Restricted Rights
The Services shall be deemed "commercial computer software" pursuant to DFAR Section 227.7202 and FAR Section 12.212, as applicable. Any use, modification, reproduction release, performance, display or disclosure of the Services by the U.S. Government will be governed solely by the terms of these Terms and will be prohibited except to the extent expressly permitted by the terms of these Terms.
If any provision of these Terms is held to be invalid or unenforceable by a court of competent jurisdiction, then the remaining provisions will nevertheless remain in full force and effect, and such provision will be reformed in a manner to effectuate the original intent of the parties as closely as possible and remain enforceable. If such reformation is not possible in a manner that is enforceable, then such term will be severed from the remaining terms, and the remaining terms will remain in effect. This is the entire Agreement between you and us relating to the subject matter herein and supersedes any and all prior or contemporaneous written or oral agreements between you and us with respect to such subject matter. These Terms may not be changed, waived, or modified except by Motoroso as provided herein or otherwise by written instrument signed by Motoroso. Employees of Motoroso are not authorized to modify the terms of these Terms, either orally or in writing. If any employee of Motoroso offers to modify these Terms, he or she is not acting as an agent for Motoroso or speaking on Motoroso’s behalf. You may not rely, and should not act in reliance on, any statement or communication from an employee of Motoroso or anyone else purporting to act on Motoroso’s behalf. These Terms is between you and Motoroso; there are no third-party beneficiaries. You are responsible for compliance with all applicable laws and regulations, including, but not limited to, United States export and import regulations. Neither these Terms nor any right, obligation, or remedy hereunder is assignable, transferable, delegable, or sublicensable by you except with Motoroso’s prior written consent, and any attempted assignment, transfer, delegation, or sublicense shall be null and void. Motoroso may assign, transfer, or delegate these Terms or any right or obligation or remedy hereunder in its sole discretion. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Except as explicitly stated otherwise, legal notices shall be served on Motoroso at support@Motoroso.com (in the case of Motoroso) or to the e-mail address you have designated on your account (in your case). Notice to you shall be deemed given 24 hours after the e-mail is sent. Any heading, caption, or section title contained in these Terms is inserted only as a matter of convenience, and in no way defines or explains any section or provision hereof.
We may revise these Terms from time to time. If we make any material changes to these Terms, we will notify you of such changes by posting them on the Site or by sending you an email or other notification, and we will indicate when such changes will become effective. By continuing to access or use the Services after those revisions become effective, you agree to be bound by the revised Terms.
California Consumer Notice
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at 800-952-5210.
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Effective April 1, 2014
Last modified as of November 7, 2018