Last revised on: 6/25/2020
BY ACCESSING OR USING THE DIGITAL SERVICES, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE DIGITAL SERVICES. SPECIFICALLY, PLEASE TAKE NOTICE THAT WITH LIMITED EXCEPTIONS, ALL DISPUTES BETWEEN YOU AND US REGARDING THIS AGREEMENT ARE SUBJECT TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN JURY TRIALS, INCLUDING CLASS ACTION LAWSUITS, IN COURTS AND ONLY SPECIFIC REMEDIES ARE AVAILABLE TO YOU. Read more in section 24. Dispute Resolution (Arbitration Clause and Class Action Waiver).
In the Highlights section, we provide an overview of the terms and conditions that apply to your access to or use of a U.S. website, mobile app or other digital service (each a “Digital Service”) operated by Enthusiast Enterprises LLC or one of its affiliates (“we”, “us”, “our” or “Mods & Miles”).
The Digital Services include a platform for vehicle listings and information services. Mods & Miles IS NOT AN AUTOMOBILE BROKER, DEALER OR TRADITIONAL AUCTIONEER AND WE DO NOT SELL, EXCHANGE, BUY, OR OFFER FOR SALE, NEGOTIATE OR ATTEMPT TO NEGOTIATE, A SALE OR EXCHANGE OF AN INTEREST IN ANY VEHICLE LISTED ON THE DIGITAL SERVICES. Mods & Miles HAS NEVER: (I) HELD TITLE FOR ANY VEHICLE LISTED ON THE DIGITAL SERVICES, (2) INSPECTED ANY VEHICLE LISTED ON THE DIGITAL SERVICES OR (3) HAD ANY VEHICLE LISTED ON THE DIGITAL SERVICES IN ITS LEGAL POSSESSION.Highlights
Intellectual and Other Proprietary Rights
Release, Indemnity, Disclaimers and Limitation of Liability
Governing Law and Severability
Last revised on: June 25, 2020
1. Application and Acceptance of this Agreement
The Digital Services and Content are for general information, discussion and entertainment purposes only. The term “Content” includes, without limitation, information, data, text, photographs, videos, audio clips, written posts, articles, comments, software, scripts, graphics and interactive features generated, provided, or otherwise made available through or in connection with the Digital Services. We make no representations or guarantees about any aspect of the Digital Services and Content and do not endorse any opinions expressed by any Users. THE DIGITAL SERVICES AND ALL CONTENT ARE PUBLISHED “AS IS” AND YOUR USE OR RELIANCE ON THE DIGITAL SERVICES OR ANY CONTENT IS AT YOUR OWN RISK. WE HAVE NO LIABILITY TO YOU FOR THE CONSEQUENCES OF USING OR RELYING ON THE DIGITAL SERVICES OR ANY CONTENT.
2. Our Role
The Digital Services include a platform for vehicle listings and information services. We are not the creator or owner of the items posted on the Digital Services by Sellers for Buyers to bid on. Rather, we provide the Digital Services, which enable Users to access certain features and functionalities, including posting vehicles and other products and services, and bidding on such products and services. Sellers are responsible for ensuring that any of their User Content meets all applicable local, state, provincial, national and other laws, rules and regulations, and that any goods (including vehicles) and services promoted, offered or otherwise described on the Digital Services are described in listings, and/or delivered as described, in an accurate satisfactory manner. For any payment processing related to Purchases made on the Digital Services, if the Seller or third party responsible for the applicable vehicle or other good or service selects a payment processing method that uses a third party to process the payment, then we do not process that payment transaction.
As part of the Digital Services, Mods & Miles may assist Sellers in the creation of their listings (including the content of such listing) but it remains each Seller’s responsibility to make sure that its listings are accurate.
Mods & Miles IS NOT AN AUTOMOBILE BROKER, DEALER OR TRADITIONAL AUCTIONEER AND WE DO NOT SELL, EXCHANGE, BUY, OR OFFER FOR SALE, NEGOTIATE OR ATTEMPT TO NEGOTIATE, A SALE OR EXCHANGE OF AN INTEREST IN ANY VEHICLE LISTED ON THE DIGITAL SERVICES. Mods & Miles HAS NOT EVERNEVER: (I) HELD TITLE FOR ANY VEHICLE LISTED ON THE DIGITAL SERVICES, (2) INSPECTED ANY VEHICLE LISTED ON THE DIGITAL SERVICES OR (3) HAD ANY VEHICLES LISTED ON THE DIGITAL SERVICES IN ITS LEGAL POSSESSION.
3. Privacy Notice
In connection with your access to or use of the Digital Services, we may obtain information from you directly or about you through the Digital Services. We will use your information in accordance with our Privacy Notice, which describes our privacy practices as well as choices you may have with respect to the collection and processing of some of your information. Please take a moment to review our Privacy Notice. The Privacy Notice is incorporated into this Agreement and forms part of the Agreement.
4. Accuracy of Your Information & Communication Methods
The information you submit to us through the Digital Services, including as part of your account creation, registration or membership, or for any listings, must be truthful, accurate and current. You are responsible for maintaining the accuracy of such information. If we believe that your information is not truthful, accurate or current, we have the right to terminate, suspend or refuse you access to the Digital Services.
We may send you information relating to your use of the Digital Services (e.g., payment authorizations, invoices, changes in password or payment method, confirmation messages, notices) in electronic form only, for example via emails to your email address provided during registration, if applicable. You agree that any notices, agreements, disclosures or other communications that we send to you electronically will satisfy any legal communication requirements, including that such communications be in writing.
5. Age Eligibility and Legal Capacity
The Digital Services are not intended for access or use by children, especially those under the age of 13. If you are under the age of 13, you may not access or use the Digital Services or provide information to us.
By accessing or using the Digital Services, you represent that you have legal capacity to enter into this Agreement and to fulfill your obligations set out in this Agreement. If you are not of an age old enough to enter into contracts in your state (i.e., a minor), you need to review this Agreement with your parent or guardian before using the Digital Services; if your parent or guardian does not agree with the Agreement as applied to you, then you are not authorized to access or use the Digital Services.
6. Your Account; Username, Password and Other Credentials
(a) You may set up an account to access or use the Digital Services. You are responsible for maintaining the confidentiality of your username, password and other credentials (your “Credentials”) that you may be asked to create to access the Digital Services or certain features or portions thereof. We are not responsible for any misuse of your Credentials by any third party, whether authorized by you or not. You agree to immediately notify Mods & Miles of any actual or suspected unauthorized use of your Credentials or any other breach of security. We are not responsible or liable for any loss or damage resulting from unauthorized use of your Credentials or for your failure to follow the requirements set out in this Agreement.
(b) Mods & Miles may in its sole discretion maintain different types of accounts for different types of Users. If you open an account to use or Access the Digital Services on behalf of a company, organization or other entity, then (i) “you” includes you and that entity, and (ii) you represent and warrant that you are an authorized representative of the entity with the authority to bind the entity to the Agreement and that you agree to the Agreement on the entity’s behalf.
7. Intellectual and Other Proprietary Rights
The rights granted to you in this Agreement are subject to the following restrictions:
Any future release, update, or other addition to functionality of the Digital Services or Content shall be subject to this Agreement. All copyright and other proprietary notices on any Digital Services content or materials must be retained on all copies thereof. Modification or use of the Digital Services (including any content or materials published thereon) for any purpose not permitted by this Agreement is prohibited and may be a violation of the copyrights and/or trademarks protected by law and this Agreement.
If you provide Mods & Miles any feedback or suggestions for improving or regarding your use of the Digital Services (“Feedback”), you hereby assign to Mods & Miles all rights in the Feedback and agree that Mods & Miles shall have the right to use such Feedback and related information in any manner it deems appropriate. Mods & Miles will treat any Feedback you provide to Mods & Miles as non-confidential and non-proprietary. You agree that you will not submit to Mods & Miles any information or ideas that you consider to be confidential or proprietary.
8. User Content
“User Content” means any and all information and content that a User submits to, or uses with, the Digital Services (e.g., photos, audio, video, messages, text, files, or other content you provide us, including any listings that appear on the Digital Services (regardless of any role that Mods & Miles has in the listing)), except any Feedback. You are solely responsible for your User Content. User Content may include unsolicited or invited submissions. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You may not state or imply that your User Content is in any way provided, sponsored or endorsed by Mods & Miles. Because you alone are responsible for your User Content (including backing up your data), you may expose yourself to liability. Under no circumstance will Mods & Miles be liable for any inaccuracy or defect in any User Content.
You hereby grant, and you represent and warrant that you have the right to grant, to Mods & Miles an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, for any lawful purpose. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
Because we do not control User Content, you acknowledge and agree that we are not responsible for any User Content and we make no guarantees regarding the accuracy, currency, suitability, or quality of any User Content, and we assume no responsibility for any User Content. Your interactions with other Users of the Digital Services are solely between you and such User. You agree that Mods & Miles will not be responsible for any loss or damage incurred as the result of any such interactions. If there is a dispute between you and any User of the Digital Services, we are under no obligation to become involved. We are not a party to any vehicle sale contract between any Buyer and Seller that originates on or through the Digital Services and you are solely responsible for any of your interactions with other Users (including transacting for a Purchase involving a vehicle). Additionally, you acknowledge that other Users may post comments about your User Content which may be derogatory, and Mods & Miles has no obligation to monitor or delete any such User Content. Mods & Miles may remove or modify any User Content without notice or liability at any time in Mods & Miles’s sole discretion. We reserve the right, but have no obligation, to monitor disputes between you and other Users. Mods & Miles shall have no liability for your interactions with other Users, or for any User’s action or inaction.
9. User Submissions
You agree that we may use information/User Content you provide us through emails, Q&A, blogs, forums, polls, or through any other User generated submission, and may use your name and any stories you provide us in articles or other features published on the Digital Services or in our publications, advertising or sponsored content. If you provide us with personal anecdotes, they may be attributed to you. Mods & Miles can edit, rewrite, use, and reuse the User Content, including your name, likeness, photograph, and biographical information you provide, with or without attribution, including publication in the Digital Services or our publications, advertising or sponsored content.
From time to time, the Digital Services may expressly request submissions of concepts, stories, or other potential content from you (“Invited Submissions”). Please carefully read any specific rules or other terms and conditions that appear in connection with such Invited Submissions as such terms and conditions will govern the submissions and may affect your legal rights. If no such additional terms govern those submissions, then this Agreement will apply in full to any Invited Submissions you make. IN ANY EVENT, ANY MATERIAL YOU SEND TO US WILL NOT BE TREATED AS CONFIDENTIAL. Regardless of any industry custom or practice, we will not pay you for the use of any content that you submit to through the Digital Services.
If we become aware of a User’s violation of this Agreement, including the rights of any other User or third party, we may take certain remedial steps, including refusing access to the Digital Services to any person or entity and change eligibility requirements at any time.
If we become aware that any of our Users has repeatedly infringed the proprietary rights of any third party, we may take steps to terminate that User’s access to the Digital Services. We reserve the right (but have no obligation) to review information we obtain from or about you and your use of the Digital Services, to investigate, and/or to take appropriate action against you in our sole discretion. Such acts may include removing or modifying your User Content, terminating your access to the Digital Services (including any User account, registration or membership), legal action and/or reporting you to law enforcement authorities. If Mods & Miles elects to modify User Content, Mods & Miles nonetheless assumes no responsibility for the User Content.
Mods & Miles reserves the right to investigate suspected violations of this Agreement, including without limitation, any violation arising from any information obtained about you (including unsolicited or invited submissions), postings or emails you make on or send through the Digital Services. Mods & Miles may seek to gather information from the User who is suspected of violating this Agreement and from any other User. Mods & Miles may suspend any Users whose conduct or postings are under investigation and may remove such material from its servers as it deems appropriate and without notice. If Mods & Miles believes, in its sole discretion, that a violation of this Agreement has occurred, it may edit or modify any submission, posting or emails, remove the material permanently, cancel postings, warn Users, suspend Users and passwords, terminate accounts, or take other corrective action it deems appropriate. Mods & Miles may cooperate with law enforcement authorities or court order requesting or directing Mods & Miles to disclose the identity of anyone posting any emails or publishing or otherwise making available any materials that are believed to violate this Agreement. BY ACCEPTING THIS AGREEMENT, YOU WAIVE AND HOLD HARMLESS Mods & Miles (AND ITS AFFILIATES, SERVICE PROVIDERS, PARTNERS AND ITS AND THEIR RESPECTIVE CO-BRANDERS, LICENSORS, PAYMENT PROCESSING PARTNERS, OTHER PARTNERS AND OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS) FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY Mods & Miles (AND ITS AFFILIATES, SERVICE PROVIDERS, PARTNERS AND ITS AND THEIR RESPECTIVE CO-BRANDERS, LICENSORS, PAYMENT PROCESSING PARTNERS, OTHER PARTNERS AND OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS) DURING OR AS A RESULT OF ITS INVESTIGATIONS AND/OR FROM ANY ACTIONS TAKEN AS A CONSEQUNCE OF INVESTIGATIONS BY EITHER Mods & Miles OR LAW ENFORCEMENT AUTHORITIES.
11. Your Conduct and Responsible Use of the Digital Services
Please act responsibly when using the Digital Services. The following rules are a condition of your access to or use of the Digital Services and Content:
We may require, at any time, proof that you are following these rules. We reserve the right to take, or refrain from taking, any and all steps available to us, once we become aware of any violation of this Agreement, including the following:
If you’ve violated this Agreement, then you’re also responsible for damages to Mods & Miles caused by your violation of this Agreement.
If we close your user account or terminate your use of Digital Services for any reason, we’ll provide you with notice of our actions.
You are responsible for all claims, fees, fines, penalties and other liability incurred by Mods & Miles, any user account holder, or a third party caused by or arising out of your breach of this Agreement, and/or your use of Digital Services.
12. Availability of and Modification to the Digital Services and Content
We do not guarantee that any or all of the Digital Services or any Content will be made available through the Digital Services. We may change, modify, edit, suspend, discontinue or otherwise manipulate the Digital Services, Content or any part, feature or service of the Digital Services at any time with or without notice to you. You agree that Mods & Miles will not be liable to you or to any third party for any modification, suspension, or discontinuance of the Digital Services, Content or any part thereof.
13. Fees, Purchases and Referrals
(a) Payment of Fees.
You agree to pay any applicable fees (including any initial deposit made as a Buyer in connection with a bid, certain Buyer’s fees and Seller listing fees set forth on our website in connection with bids or for any purchases you make of any products, features and/or services (“Purchases”) listed on the Digital Services, including, without limitation, any applicable sales, uses or similar taxes or charges. Certain products, fee-based services or features that you purchase, access or download via the Digital Services may be subject to additional terms and conditions presented to you at the time of purchase, access or download.
All payments made by you to Mods & Miles shall be facilitated through Stripe, Inc., Mods & Miles’s third party payment processing service. Stripe’s terms of service can be found at https://stripe.com/us/terms. All information that you provide in connection with a Purchase (including any initial deposit made as a Buyer in connection with a bid, certain Buyer’s fees and Seller listing fees) must be accurate, complete, and current. You agree to pay all charges incurred by any users of your credit card, debit card, or other payment method used in connection with a Purchase on the Digital Services at the prices in effect when such charges are incurred. You also agree to pay any applicable taxes, if any, relating to any Purchase.
For any Purchases you make directly from a Seller on or through the Digital Services that involve payment processing, if such Seller selects a payment processing method that uses a third party to process the payment, then we do not process the transaction.
Prices listed for vehicles or any other products or services listed by Sellers on the Digital Services are set by the Sellers and Mods & Miles is not responsible setting or negotiating any prices or related fees. Listed prices set by the Sellers on the Digital Services may exclude government fees and taxes, registration and titling fees, regulatory and electronic processing charges, inspection charges, emission testing charges, and any other fees required by law. A Seller may add any or all of the foregoing or any other taxes and fees to the listed price when calculating the final sale price to charge a Buyer.
All amounts listed on the Digital Services are in U.S. dollars.
(b) No Refunds. All Purchases made from a Seller using the Digital Service are between the applicable Buyer and Seller; for that reason, in the event you seek a refund related to a Purchase or have any questions, you must directly contact the applicable Seller.
(c) Bidding and Auction.
(i) Reserve and Publication
In order to use the Digital Services to list a vehicle or other product, a Seller is required to indicate whether there is a minimum price at which the Seller is willing to consider a sale to a Buyer (the “Reserve”) or whether no such minimum bid is required (“No Reserve”). A Seller may reduce or waive a Reserve during the auction by notifying Mods & Miles of such change via email or, if available, Mods & Miles’s web-based notification tools made available to Seller. Mods & Miles will only approve a listing for publication on the Digital Services once a Seller has either selected a Reserve or selected “No Reserve” for the applicable listing.
(ii) Seller Acknowledgment
If you or any other User submits a vehicle or other product or service to sell on the Digital Services, and we accept such vehicle, product or service, then you, or such other User, are considered a “Seller” on the Digital Services. You are responsible in all respects for the User Content and any other information related to any vehicle, product or service you decide to sell. You are also fully responsible in all respects for consummating the transaction with the applicable Buyer in accordance with the Agreement.
IN THE EVENT A USER ACCESSES OR USES THE DIGITAL SERVICES TO SELL A VEHCILE OR OTHER PRODUCT OR SERVICE AS A “SELLER,” ANY SUCH USER HEREBY ACKNOWLEDGES AND AGREES THAT FOLLOWING PUBLICATION AND FOR THE PERIOD THAT SUCH SELLER’S LISTING IS MADE AVAILABLE ON OR THROUGH THE DIGITAL SERVICES, SUCH SELLER MAY NOT LIST, POST OR OTHERWISE MAKE AVAILABLE THE APPLICABLE VEHICLE OR OTHER PRODUCT OR SERVICE ON ANY OTHER AUCTION, DEALERSHIP, OR LISTING SERVICE. FURTHERMORE, EACH SELLER HEREBY ACKNOWLEDGES AND AGREES THAT AT ANY TIME FOLLOWING PUBLICATION, SELLER’S LISTING MAY BE REMOVED BY Mods & Miles (IN OUR SOLE DISCRETION).
(iii) Buyer Acknowledgment
Each Buyer acknowledges and agrees that (i) the Buyer fees associated with each bid submitted via the Digital Services are binding and thus due and payable to Mods & Miles in accordance with the Agreement, and (ii) Buyer is responsible for all applicable government fees and taxes for applicable vehicles listed via the Digital Services . If you decide to bid on a vehicle that has been listed by a Seller on the Digital Services, you acknowledge and agree that your bid constitutes the first non-binding step in expressing your interest to a Seller in the listed vehicle and does not in and of itself create a formal contract between you as the Buyer and such Seller. It is the responsibility of a Buyer and Seller, respectively, to negotiate the terms of a binding transaction and enter into a formal contract. This contracting is outside of the scope of this Agreement and the Digital Services, neither of which bind the parties to each other. Buyer’s responsibility for any shipping or delivery fees shall be set forth in the formal agreement between the applicable Seller and Buyer.
We do not inspect any vehicles or any other goods that a Seller lists on the Digital
Services. You acknowledge and agree that Mods & Miles bears no risk associated with purchasing a
vehicle from a Seller listed via the Digital Services..
In certain circumstances, following the close of an auction, if no bid has met the Seller’s Reserve, Mods & Miles may (in its sole discretion) offer to pay Seller a separate amount to make up the difference between the Reserve and the highest bid (the “Make Whole Amount”); provided, that if Mods & Miles provides such Make Whole Amount to Seller in connection with the foregoing, Seller hereby agrees to return to Mods & Miles the Make Whole Amount if following such payment, such Seller’s vehicle is not sold to such highest bidder within 30 days. SELLER ACKNOWLEDGES AND AGREES THAT THE OFFERING OR PROVISION OF SUCH MAKE WHOLE AMOUNT BY Mods & Miles TO SELLER IS AN INDEPENDENT TRANSACTION AND DOES NOT IN ANY WAY MAKE Mods & Miles A PARTY TO SALE OF THE SELLER’S APPLICABLE VEHICLE OR OTHER TRANSACTION BETWEEN THE SELLER AND THE BUYER.
(d) Mods & Miles Ambassadors
If you have a dispute with one or more Users of the Digital Services (including merchants) or any other third parties, you release Mods & Miles (and its affiliates, service providers, partners, and its and their respective co-branders, licensors, payment processing partners, other partners and officers, directors, employees, contractors, and agents) from claims, demands, liabilities, costs, or expenses and damages (actual and consequential of every kind and nature, known and unknown, arising out of or in any way connected with such disputes). In entering into this release, you expressly waive any protections (whether statutory or otherwise) to the extent permitted by applicable law that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. IF YOU ARE A CALIFORNIA RESIDENT, YOU HEREBY WAIVE CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to indemnify and hold Mods & Miles (and its affiliates, service providers, partners, and its and their respective co-branders, licensors, payment processing partners, other partners and officers, directors, employees, contractors, and agents) harmless from any and all damage (whether direct, indirect, incidental, consequential or otherwise), loss, liability, cost and expenses (including, without limitation, costs and reasonable attorneys’ and accounting fees) resulting from any claim, demand, suit, proceeding (whether before an arbitrator, court, mediator or otherwise) or investigation made by any User or third party (each, a “Claim”) due to or arising out of (a) your use of the Digital Services or Content, (b) information you provide or we obtain about you and your use of the Digital Services, (c) your violation of this Agreement; (d) your violation of applicable laws or regulations or (e) the actions or inactions of any third party to whom you grant permission to use your user account to access the Digital Services (including the sharing of your Credentials). Mods & Miles reserves the right, at your expense, to assume the exclusive defense and control of any Claim for which you are required to indemnify us, and you agree to cooperate with our defense of these Claims. You agree not to settle any matter without the prior written consent of Mods & Miles. Mods & Miles will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
THE DIGITAL SERVICES ARE PROVIDED “AS-IS” AND “AS AVAILABLE” AND WE (AND OUR SERVICE PROVIDERS) EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SERVICE PROVIDERS) MAKE NO WARRANTY THAT THE DIGITAL SERVICES: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE.
Mods & Miles DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY ON OR THROUGH THE DIGITAL SERVICES OR ANY HYPERLINKED WEBSITE OR SERVICE, AND Mods & Miles WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND THIRD-PARTY PROVIDERS OF PRODUCTS OR SERVICES. Mods & Miles CANNOT ENSURE THAT A BUYER OR SELLER YOU ARE DEALING WITH WILL ACTUALLY COMPETE THE TRANSACTION OR HAS AUTHORIZATION TO DO SO.
AS PART OF THE DIGITAL SERVICES, Mods & Miles MAY ASSIST SELLERS IN THE CREATION OF THEIR LISTINGS (INCLUDING THE CONTENT OF SUCH LISTING) BUT IT REMAINS EACH SELLER’S RESPONSIBILITY TO MAKE SURE THAT ITS LISTINGS ARE ACCURATE. WHILE WE TRY TO MAKE SURE THAT ALL INFORMATION (INCLUDING PRICES) ABOUT A VEHICLE OR ANY OTHER PRODUCT OR SERVICE MADE AVAILABLE ON OR THROUGH THE DIGITAL SERVICES BY A SELLER ARE COMMUNICATED ACCURATELY, WE ARE NOT RESPONSIBLE FOR ERRORS (INCLUDING TYPOGRAPHICAL) THAT MAY APPEAR ON THE DIGITAL SERVICES (INCLUDING IN ANY LISTINGS). IF THERE IS INCORRECT OR MISLEADING INFORMATION GIVEN ABOUT THE PRICE, AVAILABILITY, DESCRIPTION OR CONDITION OF A PRODUCT OR SERVICE (INCLUDING, WITH RESPECT TO VEHICLES POSTED, THE MILEAGE) DUE TO AN ERROR (INCLUDING TYPOGRAPHICAL), Mods & Miles IS NOT RESPONSIBLE FOR SUCH ERROR OR ITS CORRECTION BUT WILL ATTEMPT TO CORRECT SUCH ERROR PROMPTLY. WE RESERVE THE RIGHT TO REFUSE OR CANCEL ANY LISTINGS FOR VEHICLES OR OTHER PRODUCTS AND SERVICES LISTED WITH INCORRECT OR MISLEADING INFORMATION.
DUE TO THE INHERENT NATURE OF THE INTERNET, WE CANNOT GUARANTEE THAT INFORMATION, DURING TRANSMISSION THROUGH THE INTERNET OR WHILE STORED ON OUR SYSTEMS OR OTHERWISE IN OUR CARE, WILL BE ABSOLUTELY SAFE FROM INTRUSION BY OTHERS. Mods & Miles ASSUMES NO LIABILITY FOR ANY ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, HARDWARE OR NETWORK FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, OR ALTERATION OF, ANY USER CONTENT. YOU UNDERSTAND THAT IF YOU DOWNLOAD ANY MATERIAL, YOU DO SO AT YOUR SOLE RISK. Mods & Miles DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE MATERIAL, INFORMATION, SOFTWARE, FACILITIES, SERVICES OR OTHER CONTENT ON THE DIGITAL SERVICES OR ANY ONLINE SERVICES LINKED TO THE DIGITAL SERVICES IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, OR OTHERWISE. UNDER NO CIRCUMSTANCES SHALL Mods & Miles BE RESPONSIBLE FOR ANY LOSS OR DAMAGE, INCLUDING PERSONAL INJURY OR DEATH, RESULTING FROM USE OF THE DIGITAL SERVICES, ANY CONTENT POSTED ON OR THROUGH THE DIGITAL SERVICES, OR CONDUCT OF ANY USERS OF THE DIGITAL SERVICES, WHETHER ONLINE OR OFFLINE. YOU USE THE DIGITAL SERVICES AT YOUR OWN RISK. SOME AREAS OF OUR DIGITAL SERVICES OFFER ADVICE FROM A VARIETY OF PROVIDERS, WHO MAY BE AFFILIATED WITH Mods & Miles OR MEMBERS OF THE USER COMMUNITY; SUCH ADVICE IS FOR ENTERTAINMENT ONLY AND NOT AS TREATMENT OR REMEDY FOR AN INDIVIDUAL CIRCUMSTANCE. Mods & Miles CANNOT GUARANTEE AND DOES NOT PROMISE ANY SPECIFIC RESULTS FROM USE OF THE DIGITAL SERVICES.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
17. Limitation of Liability
IN NO EVENT SHALL WE (AND OUR AFFILIATES, SERVICE PROVIDERS, PARTNERS, AND OUR AND THEIR RESPECTIVE CO-BRANDERS, LICENSORS, PAYMENT PROCESSING PARTNERS, OTHER PARTNERS AND OFFICERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AND AGENTS) OR OUR SERVICE PROVIDERS BE LIABLE TO YOU OR ANY THIRD PARTY UNDER CONTRACT, IN TORT, STRICT LIABILITY, NEGLIGENCE OR ANY OTHER LEGAL OR EQUITABLE THEORY, FOR ANY LOSS OR DAMAGES (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, PUNITIVE, ACTUAL, CONSEQUENTIAL, INCIDENTAL, SPECIAL, EXEMPLARY, OR OTHERWISE) LOST PROFIT, DATA LOSS, COST OF PROCUREMENT OF SUBSTITUTE GOODS ARISING FROM OR RELATING TO THIS AGREEMENT OR YOUR USE OF, OR INABILITY TO USE, THE DIGITAL SERVICES INCLUDING FOR ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE (REGARDLESS OF THE SOURCE OF ORIGINATION), EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
WITHOUT LIMITING THE FOREGOING, TO THE EXTENT PERMITTED BY APPLICABLE LAW, Mods & Miles IS NOT LIABLE, AND YOU AGREE NOT TO HOLD Mods & Miles RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, PROFITS, OR OTHER INTANGIBLE LOSSES OR ANY SPECIAL, INDIRECT, OR CONSEQUENTIAL DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM: (1) YOUR USE OF, OR YOUR INABILITY TO USE OR ACCESS THE DIGITAL SERVICES; (2) DELAYS OR DISRUPTIONS IN THE USE OR ACCESS TO THE DIGITAL SERVICES; (3) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING OR USING THE DIGITAL SERVICES; (4) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE DIGITAL SERVICES; (5) ACTIONS, OR INACTIONS OF OTHER USERS; (6) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR USER ACCOUNT; OR (7) YOUR NEED TO MODIFY THE INFORMATION YOU PROVIDE OR YOUR BEHAVIOR AS A RESULT OF CHANGES TO THIS AGREEMENT.
NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY
DAMAGES ARISING FROM OR RELATED TO THE DIGITAL SERVICES OR THIS AGREEMENT (FOR ANY CAUSE
WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE
GREATER OF (A) FIFTY US DOLLARS ($50) OR (B) AMOUNTS YOU’VE PAID Mods & Miles IN THE PRIOR 12
MONTHS (IF ANY). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE
THAT NEITHER OUR AFFILATES, SERVICE PROVIDERS OR PARTNERS NOR THEIR RESPECTIVE CO-BRANDERS,
LICENSORS, PAYMENT PROCESSING PARTNERS, OTHER PARTNERS AND OFFICERS, DIRECTORS, EMPLOYEES,
CONTRACTORS AND AGENTS WILL HAVE ANY LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO IN THOSE STATES OUR LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.
18. Third Party Services and Ads
The Digital Services might contain links to third-party websites, apps or other services (e.g., social media platforms), and advertisements for third parties (collectively, “Third-Party Services & Ads”). Such Third-Party Services and Ads are not under the control of Mods & Miles and Mods & Miles is not responsible for any Third-Party Services and Ads. Mods & Miles provides these Third-Party Services and Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Services and Ads. When you use Third-Party Services and Ads, you do so at your own risk. When you link to Third-Party Services and Ads, the applicable third party’s terms and policies apply, including the third party’s privacy policies.
19. Third Party Affiliate Marketing
We participate in affiliate marketing and may allow third-party affiliate links to be encoded on some of our Digital Services. This means that we may earn a commission when you click on or make purchases via third-party affiliate links.
20. Local Regulations
21.Term and Termination
Mods & Miles may, in its sole discretion, terminate your Credentials (including your password, account (or any part thereof)) or use of the Digital Services, or remove and discard any User Content or information stored, sent, or received via the Digital Services without prior notice and for any reason or no reason, including, but not limited to: (i) permitting another person or entity to use your identification to access the Digital Services (including through the sharing of your Credentials), (ii) any unauthorized access or use of the Digital Services (including through the use of your Credentials), (iii) any violation of this Agreement, or (iv) tampering with or alteration of any of the software, data files, and/or Content contained in or accessed through, the Digital Services. You may terminate your user account for any reason or no reason. Termination, suspension, or cancellation of this Agreement or your access rights to the Digital Services shall not affect any right or relief to which Mods & Miles may be entitled, at law or in equity. Upon such termination, suspension, or cancellation, all rights granted to you will automatically terminate and immediately revert to Mods & Miles and its licensors and all rights granted by you to Mods & Miles shall survive in perpetuity.
Notwithstanding any termination, suspension, or cancellation of this Agreement or your access rights to the Digital Services, the following provisions of this Agreement will survive: Sections 2 – 30.
22. Entire Agreement
This Agreement (including the Privacy Notice and any additional guidelines, terms, procedures or rules that may apply to a specific feature of the Digital Services) constitutes the entire agreement between you and us regarding the use of the Digital Services. Our failure to exercise or enforce any right or provision of this Agreement shall not operate as a waiver of such right or provision. The section titles in this Agreement are for convenience only and have no legal or contractual effect. The word including means including without limitation. If any provision of this Agreement is, for any reason, held to be invalid or unenforceable, the other provisions of this Agreement will be unimpaired and the invalid or unenforceable provision will be deemed modified so that it is valid and enforceable to the maximum extent permitted by law.
23. Changes to this Agreement
We may revise, prospectively, this Agreement by posting an updated version on the Digital Services or by providing you with notice (by email or other notification through the Digital Services). You consent and agree to receive notices of updates to this Agreement through our posting of an updated Agreement on the Digital Services. You should visit this page or section regularly to review the current version of the Agreement. Your continued use of the Digital Services will be deemed as irrevocable acceptance of any revisions.
24. Dispute Resolution (Arbitration Clause and Class Action Waiver)
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS.
24.1 Except for either party’s claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret, any and all disputes between you and Mods & Miles arising under or related in any way to this Agreement, must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of any of the Digital Services.
24.2 YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND Mods & Miles ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND Mods & Miles AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
24.3 The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and Mods & Miles must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in your choice of the following locations: Mesa, AZ. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in Mesa, Arizona. Claims of infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in Mesa, Arizona.
25. No Waiver
No failure or delay by Mods & Miles in exercising any right, power or privilege under this Agreement will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other right, power, or privilege under this Agreement.
26. Governing Law
This Agreement shall be governed by and construed solely and exclusively in accordance with the laws of the State of Arizona, USA without giving effect to any law that would result in the application of the law of another jurisdiction.
27. Notice to California Users
Under California Civil Code Section 1789.3, California users of the Digital Services are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.
28. Copyright Infringement Claims Policy
In accordance with the provisions of the Digital Millennium Copyright Act, 17 USC sec. 512, our Digital Services have designated an agent to receive notices of claims of copyright infringement: Copyright Agent, 3645 N Sagewood Circle, Mesa, AZ 85207 - fax: 000-000-0000; email@example.com. If you believe your copyright has been infringed, you may provide us with notice. To be effective, the notification must be a written communication that includes the following:
We may give notice to our Users that we have received a notice of infringement by means of a general notice on our site, electronic mail to a User’s e-mail address in our records, or by written communication sent by first-class mail to a User’s physical address in our records. If you receive such a notice, you may provide counter-notification in writing to the designated agent that includes the information below. To be effective, the counter-notification must be a written communication that includes the following:
We have a policy of terminating access to our Digital Services of any User who repeatedly infringes the proprietary rights of any third party.
29. Apple App Store Additional Terms and Conditions
The following additional terms and conditions apply to you if you are using an app from the Apple App Store (an “Apple App”). To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section 29, the more restrictive or conflicting terms and conditions in this Section 29 apply, but solely with respect to Apple Apps from the Apple App Store.
Acknowledgement: Mods & Miles and you acknowledge that this Agreement is concluded between Mods & Miles and you only, and not with Apple, and Mods & Miles, not Apple, is solely responsible for the Apple App and the content thereof. To the extent this Agreement provides for usage rules for Apple App that are less restrictive than the usage rules set forth for the Apple App in, or otherwise is in conflict with, the App Store Terms of Service, the more restrictive or conflicting Apple term applies.
Scope of License: The license granted to you for the Apple App is limited to a non-transferable license to use the Apple App on an iOS Product that you own or control and as permitted by the usage rules set forth in the App Store Terms of Service.
Maintenance and Support: Mods & Miles is solely responsible for providing any maintenance and support services with respect to the Apple App, as specified in this Agreement (if any), or as required under applicable law. Mods & Miles and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Apple App.
Warranty: Mods & Miles is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of the Apple App to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be Mods & Miles’s sole responsibility.
Product Claims: Mods & Miles and you acknowledge that Mods & Miles, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple App or your possession and/or use of the Apple App, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit Mods & Miles’s liability to you beyond what is permitted by applicable law.
Intellectual Property Rights: Mods & Miles and you acknowledge that, in the event of any third-party claim that the Apple App or your possession and use of the Apple App infringes that third party’s intellectual property rights, Mods & Miles, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
Legal Compliance: 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.
Developer Name and Address: Mods & Miles’s contact information for any end-user questions, complaints or claims with respect to the Apple App is: Enthusiast Enterprises LLC at 3645 N Sagewood Circle, Mesa, AZ 85207 or at firstname.lastname@example.org.
Third Party Terms of Agreement: You must comply with applicable third-party
terms of agreement when using the Apple App.
Third-Party Beneficiary: Mods & Miles and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of this Agreement, and that, upon your acceptance of the terms and conditions of this Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce this Agreement against you as a third-party beneficiary thereof.
30. Copyright/Trademark Information
Copyright © 2020, Enthusiast Enterprises LLC. All rights reserved. All trademarks, logos and service marks (“Marks”) displayed on the Digital Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Marks.
31. Contact Us.
If you have any questions about this Agreement, you may contact us by email at email@example.com.