Welcome to SureSale, a platform operated by Overdrive Labs, Inc. dba SureSale (“SureSale,” “us,” and “we”)! SureSale provides an online platform designed to allow individuals and/or dealers interested in selling vehicles to list their vehicles, individuals interested in purchasing vehicles to browse vehicle listings, and individuals interested in buying or selling vehicles to schedule SureSale vehicle inspections with vehicle inspectors, order vehicle inspection reports, and purchase vehicles, as further described below.
PLEASE BE AWARE THAT THIS AGREEMENT CONTAINS PROVISIONS GOVERNING HOW CLAIMS THAT YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED, INCLUDING, WITHOUT LIMITATION, ANY CLAIMS THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE BELOW WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL ON YOUR CLAIMS.
ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE WEBSITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in this Agreement or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the terms of this Agreement are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. All Supplemental Terms are hereby incorporated into this Agreement by reference.
PLEASE NOTE THAT This agreement is subject to change by SURESALE at its sole discretion at any time. When changes are made, SureSale will make a new copy of this Agreement available on the Website and within the Application and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Application. We will also update the “Last Updated” date at the bottom of this Agreement. If we make any material changes, and you have registered with us to create an Account as defined below, we will also send an e-mail to you at the last e-mail address you provided to us pursuant to this Agreement. Any changes to this Agreement will be effective immediately for new users of the Website, the Application and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing users, provided that any material changes shall be effective for users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users below. SureSale may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Application and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Application and/or the Services. Otherwise, your continued use of the Website, the Application and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
How the SureSale Services Work. The Services may be used to list vehicles, browse vehicle listings, facilitate the ordering and performance of SureSale vehicle inspections (“Inspections”) and/or purchase of SureSale Comprehensive Auto Reports (“Reports”). We make our Services available as an online platform for, among other things, individuals interested in purchasing or selling a vehicle (“Clients”) to request an Inspection from vehicle inspectors in the Clients’ geographic area or other identified area (“Inspectors”) to conduct an Inspection.
THE SURESALE SERVICES ONLY ENABLE CONNECTIONS BETWEEN CLIENTS AND INSPECTORS FOR THE ARRANGEMENT OF INSPECTIONS. SURESALE DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR THE PERFORMANCE OR COMMUNICATIONS OF USERS, NOR DOES IT HAVE CONTROL OVER THE QUALITY, TIMING, LEGALITY, FAILURE TO PROVIDE, OR ANY OTHER ASPECT WHATSOEVER OF INSPECTIONS, REPORTS, CLIENTS, OR INSPECTORS, NOR OF THE INTEGRITY, RESPONSIBILITY, COMPETENCE, QUALIFICATIONS, OR ANY OF THE ACTIONS OR OMISSIONS WHATSOEVER OF ANY USERS. SURESALE MAKES NO WARRANTIES OR REPRESENTATIONS ABOUT THE SUITABILITY, RELIABILITY, TIMELINESS, OR ACCURACY OF THE INSPECTIONS REQUESTED OR SERVICES PROVIDED BY, OR THE COMMUNICATIONS OF OR BETWEEN, USERS IDENTIFIED THROUGH THE SURESALE SERVICES, WHETHER IN PUBLIC, PRIVATE, OR OFFLINE INTERACTIONS OR OTHERWISE HOWSOEVER. ACCORDINGLY, ANY INSPECTIONS OR REPORTS, AND RELIANCE THEREON, ARE MADE AND ACCEPTED AT A USER’S OWN RISK.
AS AN INSPECTOR ON THE SURESALE PROPERTIES, YOU ACKNOWLEDGE AND AGREE THAT THE RELATIONSHIP BETWEEN YOU AND SURESALE UNDER THIS AGREEMENT IS SOLELY THAT OF INDEPENDENT CONTRACTING PARTIES. YOU AND SURESALE EXPRESSLY AGREE THAT (1) THIS IS NOT AN EMPLOYMENT AGREEMENT AND DOES NOT CREATE AN EMPLOYMENT RELATIONSHIP BETWEEN YOU AND SURESALE; AND (2) NO JOINT VENTURE, FRANCHISOR-FRANCHISEE, PARTNERSHIP, OR AGENCY RELATIONSHIP IS INTENDED OR CREATED BY THIS AGREEMENT. YOU HAVE NO AUTHORITY TO BIND SURESALE, AND YOU UNDERTAKE NOT TO HOLD YOURSELF OUT AS AN EMPLOYEE, AGENT OR AUTHORIZED REPRESENTATIVE OF SURESALE. SURESALE DOES NOT, AND SHALL NOT BE DEEMED TO, DIRECT OR CONTROL YOU GENERALLY OR IN YOUR PERFORMANCE UNDER THIS AGREEMENT SPECIFICALLY, INCLUDING IN CONNECTION WITH YOUR PROVISION OF ANY SERVICES AS PART OF INSPECTIONS ORDERED VIA THE SERVICES, AND YOUR ACTS OR OMISSIONS THEREOF. YOU RETAIN THE SOLE RIGHT TO DETERMINE WHEN, WHERE, AND FOR HOW LONG YOU WILL UTILIZE THE SURESALE PROPERTIES. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE COMPLETE DISCRETION TO PROVIDE SERVICES OR OTHERWISE ENGAGE IN OTHER BUSINESS OR EMPLOYMENT ACTIVITIES.
Use of the Services and SureSale Properties. The Application, the Software, the Website, the Services, and the information and content available on the Website and in the Application and the Services (as these terms are defined herein) (collectively, the “SureSale Properties”) are protected by copyright laws throughout the world. Subject to the terms of this Agreement, SureSale grants you a limited license to reproduce portions of SureSale Properties for the sole purpose of using the Services for your personal or business purposes. Unless otherwise specified by Company in a separate license, your right to use any SureSale Properties is subject to this Agreement.
Application License. Subject to your compliance with this Agreement, SureSale grants you a limited non-exclusive, non-transferable, non-sub licensable, revocable license to download, install and use a copy of the Application on a mobile device or computer that you own or control and to run such copy of the Application solely for your own personal or business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (i) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (ii) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service.
Software. Use of any software and associated documentation, other than the Application, that is made available via the Website or the Services (“Software”) is governed by the terms of this Agreement. Subject to your compliance with this Agreement, SureSale grants you a non-assignable, non-transferable, non-sublicensable, revocable non-exclusive license to use the Software for the sole purpose of enabling you to use the Services in the manner permitted by this Agreement.
Updates. SureSale may from time to time develop patches, bug fixes, updates, upgrades and other modifications to improve the performance of the Services and related Services (“Updates”). These Updates may be automatically installed without providing any additional notice or receiving any additional consent. Under this Agreement, you consent to these automatic updates. If you do not want such Updates, your remedy is to terminate your Account (defined below). If you do not terminate your Account, you will receive Updates automatically. You acknowledge that you may be required to install Updates to use the SureSale Properties and you agree to promptly install any Updates SureSale provides. Your continued use of the SureSale Properties is your agreement to this Agreement with respect to the SureSale Properties.
Certain Restrictions. The rights granted to you in this Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit SureSale Properties or any portion of SureSale Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other SureSale Properties (including images, text, page layout or form) of SureSale; (c) you shall not use any metatags or other “hidden text” using SureSale’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of SureSale Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including, but not limited to, spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) you will not access SureSale Properties in order to build a similar or competitive website, application or service; (g) except as expressly stated herein, no part of SureSale Properties may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (h) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in SureSale Properties. Any future release, update or other addition to SureSale Properties shall be subject to this Agreement. SureSale, its suppliers and service providers reserve all rights not granted in this Agreement. Any unauthorized use of SureSale Properties terminates the licenses granted by SureSale pursuant to this Agreement.
Third-Party Materials. As a part of SureSale Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for SureSale to monitor such materials and that you access these materials at your own risk.
Registration and Background Checks, Necessary Equipment
Registering Your Account. In order to access certain features of SureSale Properties, including to request an Inspection, you are required to become a Registered User. For purposes of this Agreement, a “Registered User” is a user (whether an Inspector or a Client) who has registered an account on the Website or Application(s) (“Account”). Inspectors will be required to submit verifiable identification and proof of certification or license for the services to be listed.
Registration Data. In registering an Account through the Services, you agree to (1) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (2) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (1) at least eighteen (18) years old; (2) of legal age to form a binding contract; and (3) not a person barred from using SureSale Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of SureSale Properties by minors. If you provide any information that is untrue, inaccurate, not current or incomplete, or SureSale has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, SureSale has the right to suspend or terminate your Account and refuse any and all current or future use of SureSale Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account per platform at any given time. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third-party that a username violates the third-party’s rights. You agree not to create an Account or use SureSale Properties if you have been previously removed by SureSale, or if you have been previously banned from any of SureSale Properties.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to SureSale Properties, including but not limited to, a mobile device that is suitable to connect with and use SureSale Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing SureSale Properties. By providing your cellphone number and using the Services, you hereby affirmatively consent to our use of your cellphone number for calls and texts in order to perform and improve upon the Services, including to confirm Inspections and notify you of any updates to such Inspections. Carriers are not liable for any delayed or undelivered messages.We will not assess and charge for any calls or texts, but standard message charges or other charged from your wireless carrier may apply. You may opt out of receiving text messages from us by replying STOP to any of the messages you receive from us.
Background Checks. In SureSale’s sole discretion, Inspectors may be subject to an extensive vetting process before they can register for and during their use of the SureSale Services, including but not limited to a verification of identity, using third-party services as appropriate (“Background Checks”). Although SureSale may perform Background Checks, SureSale is not required to do so and cannot confirm that each Inspector is who s/he claims to be. SureSale reserves the right to reject the registration of any Inspector or to suspend or terminate the Account of any Inspector at any time based on any such Background Check or for any other reason in SureSale’s discretion. SureSale cannot and does not assume any responsibility for the accuracy or reliability of Background Check information or any information provided through the SureSale Services. When interacting with other users, you should exercise caution and common sense to protect your personal safety, data, and property, just as you would when interacting with other persons whom you don’t know. SureSale will not be liable for any false or misleading statements made by users of the SureSale Services. NEITHER SURESALE NOR ITS PARENTS, AFFILIATES OR LICENSORS, INCLUDING THEIR RESPECTIVE DIRECTORS, OFFICERS, SHAREHOLDERS, AGENTS, INVESTORS, SUBSIDIARIES, ATTORNEYS, REPRESENTATIVES, INSURERS, EMPLOYEES, SUCCESSORS AND ASSIGNS (HEREINAFTER REFERRED TO COLLECTIVELY AS “AFFILIATES”) IS RESPONSIBLE FOR THE CONDUCT, ACTS, OR OMISSIONS, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SURESALE SERVICES AND YOU HEREBY RELEASE SURESALE AND AFFILIATES FROM ANY AND ALL LIABILITY, CLAIMS, DEMANDS, OR DAMAGES OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH THE SURESALE SERVICES.
Responsibility for Content
Mobile Phone Number Use; One-Time Short Code Program
Account Management Text Messages and the Provision of Mobile Phone Number(s) By providing your mobile (cellular) phone number, you have provided SureSale with consent to send you text messages to provide you information regarding the Services you have requested which may include but not be limited to information regarding your Account, Supplemental Services, reminders and notifications. By providing this consent, you are authorizing SureSale, individually and on behalf of our affiliates, agents, assigns and service providers (collectively, “we”, “us” and “our”) to contact you using automatic texting systems and artificial or prerecorded messages. By providing this consent, you have also represented that you are the owner or customary user of any cellular phone number which you have provided to us. Your cellular provider’s Message & Data Rates May Apply.
You understand the text messages we send may be seen by anyone with access to your phone and you agree that we are not liable for anyone accessing such messages. Accordingly, you should take steps to safeguard your phone and your text messages if you want them to remain private. You agree to notify us immediately if you change your cellular phone number, cease using the cellular phone number you provided us, assign any non-cellular phone number you have provided us to a cellular service, or transfer your cellular phone to another person.
We may notify you of any updates by sending you a text message with a link to the revised terms and conditions and/or posting revised terms and conditions on the Website. We also reserve the right to terminate our Account Management Text Messages at any time. Please be aware that our Account Management Text Message program does not currently provide for two-way communication, other than sending auto-responses if you text STOP or HELP as specified below. Also, please be aware that Account Management Text Messages that we send you may come from different numbers, except as provided otherwise under our One-Time Short-Code Factfile Program, the terms of which are set forth below.
Opt-out or STOP – You understand that, at any time, you may withdraw your consent to receive text messages. If you wish to stop receiving Account Management Text Messages from us (which does not cover any fraud alerts we may send you), reply to any text message we have sent you and in the reply text message simply type STOP. If you text STOP to us, you understand that this direction will be limited to Account Management Text Messages for the Service to which the text message relates, and we will only opt you out of receiving Account Management Text Messages. Your opt-out will only be effective as to the cellular phone number from which you send the STOP request or that you specify. You can also opt-out of receiving text messages by sending an email to firstname.lastname@example.org. Your stop request will become effective within 24 hours of receipt.
Support or HELP – If at any time you need our contact information, information on how to stop text messages, or these Terms & Conditions, reply to any text message we have sent you and in the reply text message simply type HELP. Upon receiving your text message, we will send you a text message with this information. Some of the text messages we send may include links to websites. To access these websites, you will need a web browser and Internet access. Not all cellular carriers or text message service providers may support this service.
SMS Request for Free Factfile. SMS Request for Free Factfile. Customers and potential customers (“Customer(s)”) viewing vehicles on a participating SureSale dealer’s lot, dealer website or on the SureSale Website may request a one-time link to download a free vehicle report (the “Factfile”) by sending the vehicle ID via SMS to our Factfile short code. Customer consents to receive the SMS Factfile message from SureSale and affirms that the Customer is the subscriber or customary user of the cellular phone number provided if on a group plan. Message and data rates may apply for sending or receiving SMS messages. Carriers are not liable for delayed or undelivered messages.
Responsibility for Content
No Obligation to Pre-Screen Content. You acknowledge that SureSale has no obligation to pre-screen Content (including, but not limited to, User Content), although SureSale reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into this Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that SureSale pre-screens, refuses or removes any Content, you acknowledge that SureSale will do so for SureSale’s benefit, not yours. Without limiting the foregoing, SureSale shall have the right to remove any Content that violates this Agreement or is otherwise objectionable.
Storage. Unless expressly agreed to by SureSale in writing elsewhere, SureSale has no obligation to store any of Your Content that you Make Available on SureSale Properties. SureSale has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of SureSale Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that SureSale retains the right to create reasonable limits on Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by SureSale in its sole discretion.
Inspections and Purchases.
Arranging an Inspection. Clients who are Registered Users may request Inspections at any time. Upon such a request, Inspectors who are within a designated radius (which may be changed within the Application settings) of the Client or specified address at the time of such request will be notified and provided with the opportunity to respond and confirm such Inspection. Once an Inspection is confirmed by an Inspector, such Inspector will be responsible for performing the Inspection requested by the Client.
Rules Regarding Inspections. You acknowledge and agree that as an Inspector, you alone are responsible for any and all Inspections you perform and Reports or other Content you create or deliver to Clients. Accordingly, you represent and warrant that any booking of an Inspection, or performance of an Inspection (i) will not breach any agreements you have entered into with any third parties, and (ii) will (a) be in compliance with all applicable laws, rules, and regulations, tax requirements, intellectual property laws, and rules and regulations that may apply to any Inspection (including having all required permits, licenses and registrations), and (b) not conflict with the rights of third parties. Please note that SureSale assumes no responsibility for an Inspector’s compliance with any agreements with or duties to third parties, applicable laws, rules and regulations. SureSale reserves the right, at any time and without prior notice, to remove or disable access to any listing for any reason, including listings that we, in our sole discretion, consider to be objectionable for any reason, in violation of this Agreement or otherwise harmful to the Website, Application or Services or other users.
Agreements between Users. If you are an Inspector, you understand and agree that SureSale does not act as an insurer or as your contracting agent. If a Client requests an Inspection, any agreement you enter into with such Client is between you and the Client and SureSale is not a party to it. If a Client purchases a vehicle from a seller found through the Services, the Client enters into an agreement for such purchase and sale directly with the seller, and SureSale is not party to that agreement.
SureSale Properties. Except with respect to Your Content and User Content, you agree that SureSale and its suppliers own all rights, title and interest in SureSale Properties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Website, the Services, or SureSale Properties.
Trademarks. and other related graphics, logos, service marks and trade names used on or in connection with SureSale Properties or in connection with the Services are the trademarks of SureSale and may not be used without permission in connection with any third-party products or services. Other trademarks, service marks and trade names that may appear on or in SureSale Properties are the property of their respective owners.
Other Content. Except with respect to Your Content, you agree that you have no right or title in or to any Content that appears on or in SureSale Properties. SureSale prohibits and does not recognize any purported transfers of virtual property effectuated outside of the Services, or the purported sale, lease, gift or trade in the “real world” of anything that appears or originates in the Services.
Your Content. SureSale does not claim ownership of Your Content. However, when you as a user post or publish Your Content on or in SureSale Properties, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. Subject to any applicable account settings that you select, you grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display, Your Content (in whole or in part) for the purposes of operating and providing SureSale Properties to you and to our other Users. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of SureSale Properties. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not SureSale, are responsible for all of Your Content that you Make Available on or in SureSale Properties.
Account. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments or any other area on SureSale Properties, you acknowledge and agree that you will have no ownership or other property interest in your Account, and your further acknowledge and agree that all rights in and to your Account are and will forever be owned by and inure to the benefit of SureSale.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to SureSale through its suggestion, feedback, wiki, forum or similar pages (“Feedback”) is at your own risk and that SureSale has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to SureSale a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of SureSale Properties.
General. In connection with your use of SureSale Properties, you shall not:
Make Available any Content that (i) is unlawful, tortious, defamatory, vulgar, obscene, libelous, or racially, ethnically or otherwise objectionable; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening, or promotes violence or actions that are threatening to any other person; or (v) promotes illegal or harmful activities;
Harm minors in any way;
Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
Make Available any Content that you do not have a right to Make Available under any law or under contractual or fiduciary relationships (such as inside information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements);
Make Available any Content that infringes the rights of any person or entity, including without limitation, any patent, trademark, trade secret, copyright, privacy, publicity or other proprietary or contractual rights;
Intentionally or unintentionally violate any applicable local, state, national or international law or regulation, or any order of a court;
Stalk or otherwise harass any other user of our SureSale Properties; or
Advocate, encourage or assist any third-party in doing any of the foregoing activities in this section.
Ratings and Reviews. The Services allow users to post reviews, ratings and comments about Inspectors (collectively, “Reviews”), and you are solely responsible for any content, opinion, statement, recommendation or advance contained therein. Reviews posted on our Services are User Content that is not endorsed by SureSale and does not represent the views of SureSale. You acknowledge that any opinions, statement, recommendation, ratings, offers, advice or other information presented or disseminated in any Review are those of their respective authors who are solely responsible and liable for their content. SureSale shall have the right, but not the obligation to monitor or review any Reviews at any time. SureSale reserves the right to refuse to post or remove any material submitted or posted in any Review. Notwithstanding the foregoing, you acknowledge that SureSale is under no obligation to edit or modify any information available in any Reviews or decide any dispute or disagreement between the posters and shall have no liability to you for any content posted in a Review. SureSale does not assume liability for Reviews or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable Inspector or Client; (ii) you will not provide a rating or review for any Client or Inspector with respect to which you have an employment relationship or other affiliation; (iii) you will not submit a rating or review in exchange for payment or other benefits from any individual or entity; and (iv) your review will comply with the terms of this Agreement. If SureSale determines, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews, we may exclude such User Content without notice.
Investigations. SureSale may, but is not obligated to, monitor or review SureSale Properties and Content at any time. Without limiting the foregoing, SureSale shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates this Agreement or any applicable law. Although SureSale does not generally monitor user activity occurring in connection with SureSale Properties or Content, if SureSale becomes aware of any possible violations by you of any provision of this Agreement, SureSale reserves the right to investigate such violations, and SureSale may, at its sole discretion, immediately terminate your license to use SureSale Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
Interactions with Other Users. You are solely responsible for your interactions with other users and any other parties with whom you interact; provided, however, that SureSale reserves the right, but has no obligation, to intercede in such disputes. You agree that SureSale will not be responsible for any liability incurred as the result of such interactions. SURESALE MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF REGISTERED USERS OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE REGISTERED USERS.
Content Provided by Other Users. SureSale Properties may contain User Content provided by other users, including listings. SureSale is not responsible for and does not control User Content. SureSale has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to User Content. You use all User Content and interact with other Users at your own risk.
Third-Party Websites, Applications & Ads. SureSale Properties may contain links or otherwise provide access to third-party websites (“Third-Party Websites”) and applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to or otherwise access a Third-Party Website, Third-Party Application or Third-Party Ad through the Services, we will not always warn you that you have left SureSale Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of SureSale. SureSale is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. SureSale provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or their products or services. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, this Agreement, and our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites or Third-Party Applications, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third-party.
App Store. You acknowledge and agree that the availability of the Application and the Services is dependent on the third-party from whom you received the Application license, e.g., the Apple App Store or Google Play (“App Store”). You acknowledge that this Agreement is between you and SureSale and not with the App Store. SureSale, not the App Store, is solely responsible for SureSale Properties, including the Application, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Application, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with SureSale Properties, including the Application. You agree to comply with, and your license to use the Application is conditioned upon your compliance with, all applicable third-party terms of agreement (e.g., the App Store’s terms and policies) when using SureSale Properties, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of this Agreement and will have the right to enforce them.
Fees for Services and Payment Terms
Payment Terms for Inspectors. When you confirm a booking requested by a Client, we will send you a message confirming such booking, depending on the selections you make via the Services. We will collect the applicable fees from Clients at the time of the Inspection request in accordance with the Inspector’s pricing offered at the time of such Inspection request (“Inspection Fees”), and will initiate payment to the Inspector of the Inspection Fees, less (a) applicable credit card processing and other third-party fees and taxes, and (b) the Service Fees, on a weekly basis for all Inspection Fees received by SureSale during the previous week.
Payment Terms for Sale of Reports. If you purchase a Report, we will collect the applicable fees from you relating to such Reports upon confirmation and acceptance of the transaction (“Report Fees”). Your Report will be delivered electronically within twenty-four (24) hours of our processing of the applicable Report Fees. By purchasing a Report, you acknowledge and agree that commercial use, resale and redistribution of the Report is strictly prohibited. You further acknowledge and agree that SureSale may not have the complete history of every vehicle.
Payment Terms for Clients (Inspectors). The Inspectors, not SureSale, are solely responsible for honoring any confirmed bookings and making available any Inspections reserved through the Services. If you, as a Client, choose to enter into a transaction with an Inspector for the booking of an Inspection, you agree and understand that you will be required to enter into an agreement with the Inspector and you agree to accept any terms, conditions, rules and restrictions associated with such Inspection imposed by the Inspector. The total fees payable will be displayed to a Client before the Client books an Inspection with an Inspector. Upon receipt of your Inspection request, SureSale may initiate a pre-authorization and/or charge a nominal amount to your Payment Method. You as a Client agree to pay the total fees for any Inspection requested and confirmed, in connection with your Account. You as a Client will be responsible for paying any applicable taxes relating to your payments and will indemnify and hold harmless SureSale from any and all taxes, including sales tax, based on any payments made by you via the Payment Services. SureSale does not make any representation or render any advice as to the potential tax implications of any payments made via the Payment Services, or booking or sale, and you should consult your tax professional with regards to the same.
Payment of Fees
Payment Terms for Inspectors. To buy, access, or use any of our Services you will set up a payment method such as a credit card, debit card, ACH or other bank account information (“Payment Method(s)”) at the time of enrollment. You authorize Overdrive Labs, Inc., dba SureSale, to charge your Payment Method for the agreed upon Activation Fees, Program Fees and any other Fees related to the provision of Services as described herein and in your SureSale Authorized Dealer Agreement (“Transactions”). All information that you provide to us, our third-party payment process vendors, such as Stripe, or Plaid, must be accurate, current, and complete. By accessing or using the Services, you authorize SureSale to charge your Payment Method in accordance with these Terms and the additional terms of Payment Service providers.. YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL RIGHT TO AUTHORIZE ANY PAYMENT METHOD USED TO PAY ANY FEES. You agree to pay all charges incurred by you or any users of your member Account and Payment Method.
Failure to pay any fees owed will result in either the delay in providing Services or the termination of your Services. You agree that SureSale or Stripe or Plaid, may store and continue billing your payment method (e.g. credit card) even after it has expired, to avoid interruptions in your Services and to use to pay other Services you may buy. Your Payment Method automatically will be charged at the start of each subscription period, request for Services, or the provision of Services for the applicable fees and taxes. To avoid future charges, you must cancel any Services in accordance with these Terms. There are no refunds. Any taxes payable by you is based on the billing information that you provide us at the time of purchase.
Third-Party-Payment Service Providers Additional Terms
Indemnification. You agree to indemnify and hold SureSale, its parents, subsidiaries, affiliates, officers, employees, agents, partners and licensors (collectively, the “SureSale Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of: (a) Your Content; (b) your use of, or inability to use, SureSale Properties; (c) your violation of this Agreement; (d) your violation of any rights of another party, including any users; (e) your interactions with other users; and (f) your violation of any applicable laws, rules or regulations. SureSale reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with SureSale in asserting any available defenses. This provision does not require you to indemnify any of the SureSale Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, this Agreement, or your access to SureSale Properties.
Disclaimer of Warranties and Conditions
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF SURESALE PROPERTIES IS AT YOUR SOLE RISK, AND SURESALE PROPERTIES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. SURESALE EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. YOU ACCEPT ANY VEHICLE YOU PURCHASE ON AN “AS IS” AND “WHERE IS” BASIS. ANY WARRANTIES YOU MAY RECEIVE IN CONNECTION WITH A PURCHASED VEHICLE ARE PROVIDED BY OR ON BEHALF OF THE SELLER OF THE VEHICLE, AND NOT BY SURESALE OR ITS AFFILIATES IN ANY WAY. SURESALE MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE CONDITION OR QUALITY OF ANY VEHICLE AVAILABLE THROUGH THE SERVICES, AND TO THE MAXIMUM EXTENT PERMITTED BY LAW, SURESALE EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, REGARDING ANY VEHICLE YOU MAY PURCHASE THROUGH THE SERVICES OR OTHERWISE FROM A SURESALE SELLER, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE.
SURESALE MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) SURESALE PROPERTIES WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF SURESALE PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF SURESALE PROPERTIES, INCLUDING ANY REPORT, WILL BE ACCURATE OR RELIABLE.
ANY INSPECTION ORDERED OR REPORT PURCHASED THROUGH THE SERVICES, OR ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH SURESALE PROPERTIES, IS AT YOUR OWN RISK AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PERSON OR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS SURESALE PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM SURESALE OR THROUGH SURESALE PROPERTIES, INCLUDING AS PART OF ANY VEHICLE LISTING OR ANY REPORT PURCHASED BY YOU, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
From time to time, SURESALE may offer new “beta” features or tools with which its users may experiment. Such features or tools are offered solely for experimental purposes and without any warranty of any kind, and may be modified or discontinued at Company’s sole discretion. The provisions of this section apply with full force to such features or tools.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT SURESALE PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD SURESALE LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF ECONOMIC DAMAGES FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU. SURESALE MAKES NO WARRANTY THAT THE GOODS OR SERVICES PROVIDED BY THIRD PARTIES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. SURESALE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY SUCH GOODS OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH COMPANY PROPERTIES.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF SURESALE PROPERTIES. YOU UNDERSTAND THAT SURESALE DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF SURESALE PROPERTIES. FOR EVERY TRANSACTION THAT IS COMMENCED THROUGH OUR SERVICES, YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION REGARDING THE STATEMENTS OR THE REPRESENTATIONS OF THE OTHER PARTY AND THE PARTY’S ABILITY TO PAY FOR OR DELIVER THE REPORTS OR SERVICES OR VEHICLES OFFERED. PLEASE USE CAUTION, COMMON SENSE, AND PRACTICE SAFE TRADING WHEN DEALING WITH OTHER USERS OR OTHERWISE USING THE SERVICES.
New York Disclaimer. In compliance with New York state laws, which restricts the use of the term ‘Certified’ to only manufacturer backed inspection programs, SureSale Authorized Dealers in the state of New York offer a comprehensive inspection program called ‘SureSale.’
NMVTIS Disclaimer. The National Motor Vehicle Title Information System (NMVTIS) is an electronic system that contains information on certain automobiles titled in the United States. NMVTIS is intended to serve as a reliable source of title and brand history for automobiles, but it does not contain detailed information regarding a vehicle’s repair history.
All states, insurance companies, and junk and salvage yards are required by federal law to regularly report information to NMVTIS. However, NMVTIS does not contain information on all motor vehicles in the United States because some states are not yet providing their vehicle data to the system. Currently, the data provided to NMVTIS by states is provided in a variety of time frames; while some states report and update NMVTIS data in “real-time” (as title transactions occur), other states send updates less frequently, such as once every 24 hours or within a period of days.
Information on previous, significant vehicle damage may not be included in the system if the vehicle was never determined by an insurance company (or other appropriate entity) to be a “total loss” or branded by a state titling agency. Conversely, an insurance carrier may be required to report a “total loss” even if the vehicle’s titling-state has not determined the vehicle to be “salvage” or “junk.”
Before making a decision to purchase a vehicle, consumers may wish to obtain an independent vehicle inspection, a NMVTIS Vehicle History Report, and consult other available vehicle information resources.
The information in NMVTIS INCLUDES:
1.Information from participating state motor vehicle titling agencies.
2.Information on automobiles, buses, trucks, motorcycles, recreational vehicles, motor homes, and tractors. NMVTIS may not currently include commercial vehicles if those vehicles are not included in a state’s primary database for title records (in some states, those vehicles are managed by a separate state agency), although these records may be added at a later time.
3.Information on “brands” applied to vehicles provided by participating state motor vehicle titling agencies. Brand types and definitions vary by state, but may provide useful information about the condition or prior use of the vehicle. Most recent odometer reading in the state’s title record.
4.Information from insurance companies, and auto recyclers, including junk and salvage yards, that is required by law to be reported to the system, beginning March 31, 2009. This information will include if the vehicle was determined to be a “total loss” by an insurance carrier.
5.Information from junk and salvage yards receiving a “cash for clunker” vehicle traded-in under the Consumer Assistance to Recycle and Save Act of 2009 (CARS) Program. 5.Clients are advised to visit www.vehiclehistory.gov for details on how to interpret the information in the system and understand the meaning of various labels applied to vehicles by the participating state motor vehicle titling agencies.
Limitation of Liability
Disclaimer of Certain Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, YOU UNDERSTAND AND AGREE THAT IN NO EVENT SHALL SURESALE BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH SURESALE PROPERTIES, OR FOR ANY DAMAGES RESULTING FROM LOSS OF USE, DATA OR PROFITS, ARISING OUT OF OR IN CONNECTION WITH SURESALE PROPERTIES, WHETHER OR NOT SURESALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THE TERMS, RESULTING FROM: (1) THE USE OR INABILITY TO USE SURESALE PROPERTIES; (2) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (3) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (4) STATEMENTS OR CONDUCT OF ANY THIRD-PARTY ON SURESALE PROPERTIES; OR (5) ANY OTHER MATTER RELATED TO SURESALE PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
Cap on Liability. UNDER NO CIRCUMSTANCES WILL SURESALE PARTIES BE LIABLE TO YOU FOR MORE THAN THE TOTAL AMOUNT PAID TO Company by you during the one-month period prior to the act, omission or occurrence giving rise to such liability. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU. THE FOREGOING LIMITATIONS OF LIABILITY APPLY TO THE FULLEST EXTENT ALLOWED BY LAW.
Termination of Services. This Agreement will remain in full force and effect until your Account is terminated as provided herein. You may delete your Account at any time, for any reason by emailing email@example.com. SureSale may terminate your Account if (a) you are in breach of the Agreement; (b) if SureSale decides in its sole discretion to stop providing the applicable Services; or (c) for any or no reason, without giving you notice. You understand that any termination of this Agreement and your Account may involve deletion of your Account information from our live databases and all the information stored for such Account. SureSale will not have any liability whatsoever to you for any termination of your Account or related deletion of your information.
Effect of Termination. Termination of any Service includes removal of access to such Service and barring of further use of the Service. Termination of all Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of any Service, your right to use such Service will automatically terminate immediately. You understand that any termination of Services may involve deletion of Your Content associated therewith from our live databases. All provisions of this Agreement which by their nature should survive, shall survive termination of Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
Dispute Resolution. Please read the following arbitration agreement in this Section (“Arbitration Agreement”) carefully. It requires you to arbitrate disputes with SureSale and limits the manner in which you can seek relief from us.
Applicability of Arbitration Agreement. You agree that any dispute or claim relating in any way to your access or use of the Website, to any products sold or distributed through the Website, or to any aspect of your relationship with SureSale, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims in small claims court if your claims qualify, so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis; and (2) you or SureSale may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all claims that arose or were asserted before the Effective Date of this Agreement or any prior version of this Agreement.
IF YOU AGREE TO ARBITRATION WITH SURESALE, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST COMPANY ALLEGING CLASS, COLLECTIVE, AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST THE COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. IF SUCCESSFUL ON SUCH CLAIMS, YOU COULD BE AWARDED MONEY OR OTHER RELIEF BY AN ARBITRATOR. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT, INCLUDING THIS ARBITRATION AGREEMENT.
Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to Registered Agent Solutions, Inc., 9 E Lockerman St, Dover, DE 19901 Suite 311. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims and counterclaims under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other claims shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Company will pay them for you. In addition, SureSale will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, SureSale will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Authority of Arbitrator. The arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and SureSale. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
Waiver of Jury Trial. YOU AND SURESALE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and SureSale are instead electing that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. In the event that this subparagraph is deemed invalid or unenforceable neither you nor we are entitled to arbitration and instead claims and disputes shall be resolved in a court as set forth in Sections 16.5 and 16.6.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to the following address: Overdrive Labs, Inc. dba SureSale, 10 E Yanonali St Santa Barbara, CA 93101, within 30 days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your SureSale username (if any), the email address you used to set up your SureSale account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with SureSale.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if SureSale makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) that you had already provided notice to SureSale.
Electronic Communications. The communications between you and SureSale use electronic means, whether you visit SureSale Properties or send SureSale e-mails, or whether SureSale posts notices on SureSale Properties or communicates with you via e-mail. For contractual purposes, you (1) consent to receive communications from SureSale in an electronic form; and (2) agree that all terms and conditions, agreements, notices, disclosures, and other communications that SureSale provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights.
Assignment. This Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without SureSale’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. SureSale shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to SureSale Properties, please contact us at: Overdrive Labs, Inc. dba SureSale, 10 E Yanonali St Santa Barbara, CA 93101. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and SureSale agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles County, California.
Governing Law. THIS AGREEMENT and any action related thereto will be governed and interpreted by and under the laws of the State of CALIFORNIA, consistent with the Federal Arbitration Act, without giving effect to any principles that provide for the application of the law of another jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this agreement.
Choice of Language. It is the express wish of the parties that this Agreement and all related documents have been drawn up in English.
Notice. Where SureSale requires that you provide an e-mail address, you are responsible for providing SureSale with your most current e-mail address. In the event that the last e-mail address you provided to SureSale is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by this Agreement, SureSale’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to SureSale at the following address: Overdrive Labs, Inc. dba SureSale, 10 E Yanonali St Santa Barbara, CA 93101. Such notice shall be deemed given when received by SureSale by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of this Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer SureSale Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained SureSale Properties, and any other applicable laws. In particular, but without limitation, SureSale Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using SureSale Properties, you represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use SureSale Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by SureSale are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re-export, or transfer SureSale products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Consumer Complaints. In accordance with California Civil 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Entire Agreement. This Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
Note to International Users
YOUR PERSONAL INFORMATION MAY BE PROCESSED BY US IN THE COUNTRY WHERE IT WAS COLLECTED AS WELL AS OTHER COUNTRIES (INCLUDING THE UNITED STATES) WHERE LAWS REGARDING PROCESSING OF PERSONAL INFORMATION MAY BE LESS STRINGENT THAN THE LAWS IN YOUR COUNTRY. BY USING THE SITE AND PROVIDING ANY PERSONAL INFORMATION, YOU ACKNOWLEDGE THE TRANSFER OF DATA FROM YOUR COUNTRY TO A COUNTRY THAT HAS LESS STRINGENT LAWS, AND THE PROCESSING OF YOUR PERSONAL INFORMATION IN CONFORMANCE WITH THIS POLICY.
Note about Children
The Site and App are not directed to children under the age of 13 and children under the age of 13 are not eligible to use our Services. We do not intentionally collect or maintain Personal Information from children under 13 years of age. In fact, in accordance with our Terms of Service, available at [INSERT LINK], you must be 18 years of age to use the Site or App. If we later learn that a person under 13 years of age has submitted Personal Information to us, we will take steps to remove that user’s Personal Information from our databases and to prevent the user from utilizing the App, Site and the Services.
How We Collect Information
Information Your Provide to Us. We collect Personal Information from you in the following ways:
We collect Personal Information that you submit to us voluntarily when you register for the service and/or use the Services. For example, we will collect your name, email address, phone number, and password when you register for an account on the Services (an “Account”). We may also collect additional information that you voluntarily provide to us, such as demographic information and vehicle preferences.
If you are a dealer, we will collect the information you submit to us to create a listing related to your vehicles (each, a “Listing”), which may include, without limitation, information related to the location of your vehicles, condition of your vehicles, and features of your vehicles. We may also request that you upload photographs of your vehicles. Your Listing and the information therein will be visible to Clients and other users on the Services.
We also collect other types of Personal Information that you provide to us voluntarily, such as your operating system and version, product registration number, and other requested information if you contact us via e-mail regarding support for the Services.
When you order reports or inspections through our Services, we will collect all information necessary to complete the transaction, including your name, credit card information, billing information and shipping information.
If you are Inspector, we collect your social security number, address, and information about your education, license and certifications, and we may require you to provide us with verifiable government-issued identification, as well as electronic copies of your licenses and certifications.
If you send messages to other users of the Services, we will collect and share those messages with the intended recipient. If you use our Services on your mobile device, including through our App, we may collect your phone number and the unique device id number.
If you tell us where you are (e.g., by allowing your mobile device to send us your location), we may collect, store and use that information and tie it to your mobile device information. If you want to deactivate this feature, you can disable location services on your mobile device.
When you communicate with us through our Site or App or by sending us an email, we may collect and store any information that is contained in your communications with us. You can choose not to provide us with certain information, but this may limit the features of the Site or Services you are able to use.
We may also collect Personal Information, such as at other points in our Site that state that Personal Data is being collected.
Information Automatically Collected Via Technology.
Log Files. As is true of most websites, we gather certain information automatically and store it in log files. This information includes IP addresses, browser type, Internet service provider (“ISP”), referring/exit pages, operating system, date/time stamp, and clickstream data. We use this information to analyze trends, administer the Site, track users’ movements around the Website, gather demographic information about our user base as a whole, and better tailor our Services to our users’ needs. For example, some of the information may be collected so that when you visit the Website or the Services again, it will recognize you and the information could then be used to serve advertisements and other information appropriate to your interests.
Pixel Tags. In addition, we use “Pixel Tags” (also referred to as clear Gifs, Web beacons, or Web bugs). Pixel Tags are tiny graphic images with a unique identifier, similar in function to Cookies, which are used to track online movements of Web users. In contrast to Cookies, which are stored on a user’s computer hard drive, Pixel Tags are embedded invisibly in Web pages. Pixel Tags also allow us to send e-mail messages in a users can read, and they tell us whether e-mails have been opened to ensure that we are sending only messages that are of interest to our users. We may use this information to reduce or eliminate messages sent to a user. We do not tie the information gathered by Pixel Tags to our users’ Personal Information.
Mobile Device. We may also collect information about your mobile device if you have downloaded the App, including the hardware model, operating system and version, MAC address, unique device identifier, phone number, and mobile network information. In addition, the Services may access your device’s image storage applications, with your consent, to facilitate your use of certain features of the Services. In addition, in the event our App crashes on your mobile device, we will receive information about your mobile device model software version and device carrier, which allows us to identify and fix bugs and otherwise improve the performance of our App. This information is sent to us as aggregated information and is not traceable to any individual and cannot be used to identify an individual.
Information Collected from Third Parties. We may receive Personal Information about you from companies third-party companies or public sources. We may add this information to the information we have already collected from you via our Services in order to improve or expand the Services we provide.
How We Use Information
Personal Information. In general, we will use your Personal Information to either respond to the requests you make, or to aid us in serving you better. We use your Personal Information to:
Provide the Services to you;
Facilitate the arrangement of inspections between Inspectors and Clients;
Facilitate communications between dealers and potential purchasers of vehicles;
Conduct background checks on Inspectors and otherwise attempt to identify and prevent fraud;
Facilitate the creation of your account on our system;
Notify Inspectors of the status of their application on the Services;
Provide you with Services and customer support;
Provide you with information related to the inspections that are scheduled;
Facilitate payment transactions made through the Payment Services;
Tailor the features and content of the Services to you;
Communicate with you, either directly or through one of our partners, including for marketing and promotional purposes;
Respond to your requests, resolve disputes and/or troubleshoot problems;
Improve, expand and promote the Services;
Communicate with you about the Site and the Services and send you SMS messages and push notifications, including appointments booked or purchases made;
Provide you with newsletters and information about our products and services as well as the products and services of third parties that may interest you; and
Respond to trust and safety issues of users, and respond to requests from government authorities.
Anonymous Information. We may create Anonymous Information records from your Personal Information by excluding information (such as your name) that makes the data personally identifiable to you. We may use Anonymous Information analyze request and usage patterns so that we may enhance the content of our Services and improve Site navigation. We reserve the right to use Anonymous Information for any purpose and disclose Anonymous Information to third parties in our sole discretion.
Reviews and Feedback. We often receive testimonials and comments from users who have had positive experiences with our Services. We occasionally publish such content. When we publish this content, we may identify our users by their first and last name and may also indicate their home city. We obtain the user’s consent prior to posting his or her name along with the testimonial. We may post user feedback on the Site from time to time. We will share your feedback with your first name and last initial only. If we choose to post your first and last name along with your feedback, we will obtain your consent prior to posting you name with your feedback. If you make any comments on a blog or forum associated with your Site, you should be aware that any Personal Information you submit there can be read, collected, or used by other users of these forums, and could be used to send you unsolicited messages. We are not responsible for the personally identifiable information you choose to submit in these blogs and forums.
How We Disclose Information
Third Parties Designated by You. When you use the Services, the Personal Information you provide will be shared with the third parties that you authorize to receive such information.
Listings. If you create a Listing, we will share your Listing with Clients and browsers of our Services. The information in your Listing is meant for public consumption, and once displayed on publicly viewable web pages, that information can be collected and used by Clients and other users.
Third-Party Service Providers. We may share your Personal Information with our third-party service providers that help us provide Services that we offer you (for example, our cloud storage provider) and any other information your data that you provide through your use of the Services. For example, we will share certain information provided by Inspectors with the company we have engaged to perform background checks in order to run those background checks on such Inspectors.
Partners. We may share some or all of your Personal Information with third-party partners, such as our marketing, insurance, and financing partners.
Representatives. We may share some or all of your Personal Information to our consultants, lawyers, accountants, and other third parties who provide us with professional services, solely as part of their provision of services to us.
Disclosure to Third-Party Companies. We may enter into agreements with companies that provide offer their products or services through our Services. AS A RESULT, WE MAY PROVIDE YOUR PERSONAL DATA TO A THIRD-PARTY COMPANY. BECAUSE WE DO NOT CONTROL THE PRIVACY PRACTICES OF THESE THIRD-PARTY COMPANIES, YOU SHOULD READ AND UNDERSTAND THEIR PRIVACY POLICIES.
WE MAY PROVIDE YOUR PERSONAL INFORMATION TO A THIRD-PARTY COMPANY. BECAUSE WE DO NOT CONTROL THE PRIVACY PRACTICES OF THESE THIRD-PARTY COMPANIES, YOU SHOULD READ AND UNDERSTAND THEIR PRIVACY POLICIES.
NOTICE TO CALIFORNIA RESIDENTS – YOUR CALIFORNIA PRIVACY RIGHTS
(AS PROVIDED BY CALIFORNIA CIVIL CODE SECTION 1798.83
A CALIFORNIA RESIDENT WHO HAS PROVIDED PERSONAL DATA TO A BUSINESS WITH WHOM HE/SHE HAS ESTABLISHED A BUSINESS RELATIONSHIP FOR PERSONAL, FAMILY, OR HOUSEHOLD PURPOSES (A “CALIFORNIA CUSTOMER”) MAY REQUEST INFORMATION ABOUT WHETHER THE BUSINESS HAS DISCLOSED PERSONAL INFORMATION TO ANY THIRD PARTIES FOR THE THIRD PARTIES’ DIRECT MARKETING PURPOSES. IN GENERAL, IF THE BUSINESS HAS MADE SUCH A DISCLOSURE OF PERSONAL DATA, UPON RECEIPT OF A REQUEST BY A CALIFORNIA CUSTOMER, THE BUSINESS IS REQUIRED TO PROVIDE A LIST OF ALL THIRD PARTIES TO WHOM PERSONAL DATA WAS DISCLOSED IN THE PRECEDING CALENDAR YEAR, AS WELL AS A LIST OF THE CATEGORIES OF PERSONAL DATA THAT WERE DISCLOSED. CALIFORNIA CUSTOMERS MAY REQUEST FURTHER INFORMATION ABOUT OUR COMPLIANCE WITH THIS LAW BY E-MAILING SUPPORT@SURESALE.COM. PLEASE NOTE THAT WE ARE REQUIRED TO RESPOND TO ONE REQUEST PER CALIFORNIA CUSTOMER EACH YEAR AND WE ARE NOT REQUIRED TO RESPOND TO REQUESTS MADE BY MEANS OTHER THAN THROUGH THIS E-MAIL ADDRESS.
Your Choices Regarding Your Information
Application. You can stop all collection of information by the App by uninstalling the App. You may use the standard uninstall process as may be available as part of your mobile device or via the mobile application marketplace or network.
SMS Communications. We may periodically send you administrative SMS message to update and confirm your inspections and/or other orders or purchase. You may indicate a preference to stop receiving further SMS communications by texting STOP in response to any SMS message you receive from us.
Cookies. If you decide at any time that you no longer wish to accept Cookies from our Services for any of the purposes described above, then you can instruct your browser, by changing its settings, to stop accepting Cookies or to prompt you before accepting a Cookie from the websites you visit. Consult your browser’s technical information. If you do not accept Cookies, however, you may not be able to use all portions of the Services or all functionality of the Services. If you have any questions about how to disable or modify Cookies, please let us know at the contact information provided below.
Information Disclosed to Third Parties
Security of your Personal Information
SureSale is committed to protecting the security of your Personal Information. We use a variety of industry-standard security technologies and procedures to help protect your Personal Information from unauthorized access, use, or disclosure. We also require you to enter a password to access your Account information. Please do not disclose your Account password to unauthorized people. No method of transmission over the Internet, or method of electronic storage, is 100% secure, however. Therefore, while SureSale uses reasonable efforts to protect your Personal Information, SureSale cannot guarantee its absolute security.