Terms of Service
Effective Date: February 10, 2022
ALMM Ventures, LLC (“ALIVE”, “our”, “us” or “we”) provides the Awesome Joe Auctions Services (as defined below) to facilitate the listing and sale of motor vehicles and auto-parts (each, a “Vehicle”) on behalf of Sellers through the Services to Buyers. Prior to utilizing the Services, you must review and agree to the following terms and conditions. Any capitalized terms found in these Terms of Service not defined herein shall have the meaning found in the Listing Agreement or the Bidding and Buying Agreement, and in the event of a conflict between these Terms of Service and the Listing Agreement or the Bidding and Buying Agreement, the Listing Agreement or the Bidding and Buying Agreement shall control, except in the “Listing, Bidding and Buying Process” section, where these Terms of Service shall control.
1. Binding Agreement.
You agree to abide by these Terms of Service and enter into a binding contract with ALIVE at the earlier of:
a. When you register an account with the Services;
b. When you purchase goods or services through the Services; or
c. When you download any Application (as defined below), use, access, or browse any part of the Services.
If at any time you do not agree to these Terms of Service in whole or in part, you must cease use of the Services immediately and may not use or access the Services in the future unless and until you agree to these Terms of Service in their entirety. If you will be using the Services on behalf of an entity, you agree to these Terms of Service on behalf of that entity, its affiliates, successors, and/or assigns, and represent expressly that you have the authority to do so (in such cases, “User”, “you”, “your”, and any similar or related term shall apply and refer to the Entity on whose behalf you are accessing the Services). Use of the Services will be considered by us as your actual and apparent authority to bind the Entity to these Terms of Service. If you do not have the applicable authority, or if you do not agree to these Terms of Service in whole or in part, cease use of the Services immediately and do not use or access the Services in the future unless and until you (and the Entity, if applicable) agree to these Terms of Service in their entirety. Please note that separate terms and conditions apply to Sellers using the Services to promote, organize, and/or provide goods or services, as found within a Listing Agreement entered into at the time goods or services are listed through the Services. If you have questions regarding your use of the Services, please contact support@awesomejoeauctions.com.
THESE TERMS OF SERVICE INCLUDE A WAIVER OF RIGHTS TO BRING A CLASS ACTION AGAINST ALIVE FOR USERS LOCATED IN THE UNITED STATES; CERTAIN DISCLAIMERS OF WARRANTIES ON BEHALF OF ALIVE; AND A RELEASE BY YOU OF ALL CLAIMS FOR DAMAGE AGAINST ALIVE ARISING OUT OF DISPUTES BETWEEN YOU AND THIRD PARTIES IN CONNECTION WITH YOUR USE OF THE SERVICES. BY USING ANY OF THE SERVICES, YOU AGREE TO THE ABOVE REFERENCED PROVISIONS.
We reserve, at our sole discretion, the right to modify, update, replace, remove, or otherwise alter any of the terms, obligations, or conditions contained in these Terms of Service and the documents incorporated herein at any time and for any reason (collectively, “Modifications”). Modifications will be posted to the Awesome Joe Auctions website or via email in such a way that the most recent changes are plain and easily referenced for the convenience of the Users (as defined below). We may provide written notification of such Modifications through means such as email, notices posted within the Services, etc. Such notification shall not be a requirement of these Terms of Service, and are purely provided as a matter of convenience for the Users. Modifications shall be considered in full force and effect fifteen (15) days after their initial posting to the Awesome Joe Auctions website, or such other date as communicated to you, except that changes addressing new functions of the Services or which do not impose any additional burdens or obligations on Users which will be effective immediately. IT IS YOUR RESPONSIBILITY TO CHECK THESE TERMS OF SERVICE FROM TIME TO TIME FOR MODIFICATIONS. Your continued use of the Services constitutes your acceptance of any Modifications after the date on which they come into full force and effect. If at any time these Terms of Service become not acceptable to you due to Modifications, you must cease accessing and utilizing any and all Services. These Terms of Service may not be modified other than as provided for in this section.
While we may translate these Terms of Service and/or related documents into languages other than English for the convenience of Users, your use of the Services shall be governed strictly in accordance with the English language version of each applicable document in the event of a conflict between the parties thereto. In the event of any conflict between the English language version of these Terms of Service and a translated version in any other language, the English language version shall prevail.
2. The Services.
Awesome Joe Auctions’ services (collectively, the “Services”) include:
a. Our websites and domain names, including but not limited to awesomejoeauctions.com, awesomejoe.com, and any and all related websites, pages, sub-domains, domain variants to account for global use of Awesome Joe Auctions, any and all subparts to such websites, and any and all functionality on a User website which integrates the foregoing into the User’s website (collectively the “Awesome Joe Auctions Site”);
b. Any and all services provided for, on, and/or through the Awesome Joe Auctions Site, or otherwise provided by ALIVE (including any application development or programming interface, or code provided by ALIVE to be embedded by end users into their own website(s));
c. Any and all paid or free mobile applications (the “Applications”) that are offered, provided, and/or maintained by ALIVE, to the extent the terms of service of such applications do not conflict with these Terms of Service (in the event of a conflict, the terms of service of an individual application shall control);
d. Other to be defined features, services, applications, etc. that may be added to the Services in the future.
3. Users.
The Services provide a platform that enables sellers of vehicles, auto-parts, and related goods and services (“Sellers”) to coordinate and promote the sale of their goods and services through a streamlined processing system. Users (the “Buyers”) may then search for and purchase Seller goods and services through a bidding process described in these Terms of Service. Within these Terms of Service, “Users” shall mean both Buyers and Sellers utilizing the Services, collectively.
4. Scope.
The remainder of this document contains our Terms of Service Agreement (“Terms of Service”). These Terms of Service shall govern all of the Services, subject to your acceptance to these Terms of Service without modification, amendment or assignment. These Terms of Service shall additionally be construed to include and incorporate by reference the following:
c. Bidding and Buying Agreement
d. Any and all other agreements contemplated by and entered into between ALIVE and a User
5. Conditions of Use.
The following section contains many of the rights and obligations you have when making use of the Services (“Conditions of Use,” “Conditions”). We take adherence to these Conditions seriously, and have spent considerable effort to make sure we create an ecosystem that is healthy for all Users. If you notice someone behaving in a way that could be considered a violation of these Conditions, please contact support@awesomejoeauctions.com as soon as possible.
We hereby grant you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use the Services for the purpose of finding Seller goods and services. All use of the Services must comply with these Terms of Service including without limitation the Awesome Joe Auctions Privacy Policy, and in a way that complies with applicable laws. Your license shall not permit you or any other User to copy, modify, reproduce, translate, localize, port, or create a copy or derivative of any of the Services. Additionally, attempting to reverse engineer, disassemble, decompile or otherwise attempt to discover the source code or structure of any or all parts of the Services, except as permitted by applicable law, shall be viewed as a direct violation of these Terms of Service. You shall not rent, lease, resell, distribute or otherwise utilize the Services for any purpose not contemplated by these Terms of Service or exploit the Services in a manner that could be construed as unauthorized or unintended. You shall not alter or remove any and all proprietary notifications or labels in or on the Services, nor shall you engage in any activity that disrupts or affects the availability of the Services by other Users. Any right not expressly granted in these Terms of Service is reserved.
6. Use Free of Charge.
Utilizing the Services to create accounts, list goods and services, and access the Services is free of charge; we solely charge Sellers upon the successful sale of goods and services, or in certain other circumstances outlined in a Consignment Agreement between ALIVE and Seller. We operate as a consignment marketplace, and do not collect money due to Sellers from Buyers nor do the Services collect on behalf of, or distribute to, Sellers. We have no control over fees charged by banks, credit card companies, etc., including currency conversion fees. Check with your bank or credit card company prior to any purchase to ensure an intimate understanding of all applicable fees, charges, rates, and surcharges.
7. Nature of Transactions; Refunds.
All financial transactions are between Sellers and Buyers, except for consignment fees paid by Sellers to us upon the sale of their goods and/or services. Because of the nature of these transactions, we cannot enforce or mandate a refund policy for individual Sellers, and cannot force Sellers to return funds which Buyers have paid. In the event that the goods and/or services you have purchased are unsatisfactory to you, you are encouraged to seek out a refund by directly contacting the applicable Seller. In the event that a Seller fails to comply with their own stated refund policy, or respond to a request for a refund, you may contact support@awesomejoeauctions.com and we will pursue the matter according to our terms, policies, and Listing Agreement with the Seller. Notwithstanding the foregoing, we assume and will have no liability for a Seller’s failure to provide a refund or our failure to mediate a dispute between Buyers and Sellers.
8. Email and Electronic Messaging.
We enable you to contact other Users, and may enable you to contact third parties via email. Your use of this aspect of the Services means that you represent, agree to, and warrant the following:
a. That you have the right and authority needed to send emails to your intended recipients, and that doing so will not violate any applicable law;
b. That your use of the Services to send email is in compliance with spam and email laws, rules, and regulations;
c. That your use of the Services to send email is in compliance with the Terms of Service, including without limitation the Awesome Joe Auctions Privacy Policy;
d. That you will not attempt to deceive or mislead Users through use of the Services;
e. That you will identify applicable messages as advertisements or as commercial in nature;
f. That you will not attempt to contact any User who has opted out of receiving messages through the Services from you.
If you fail to abide by the above requirements, or if we receive sufficient notice and complaint from Users regarding your use of the Services to send email/electronic message, or if you otherwise violate these Terms of Service, we reserve the right to suspend or limit access to the Services by you in addition to any legal recourse which may apply.
9. Account Registration.
In order to make full use of the Services, you must create an account that includes certain pieces of personal information. You assert that you will provide true, accurate, and complete information about yourself, any entity that you might represent, and to maintain and update in a timely fashion any information which might change. In the event of a dispute arising from the veracity of an account or account ownership, we reserve the right to mediate such dispute at its sole discretion, and any decision arising out of the execution of such right shall be final and binding on all involved.
10. Password Security.
The confidentiality and security of your password and account details are solely your responsibility, as are any actions or activities arising out of your account’s interaction with the Services. In the event that someone uses your account or password without your authorization, you agree to notify us immediately to ensure the safety of our Users.
11. Age Restrictions.
To ensure the safety, security and privacy of children, you must be at least the legal age of majority where you reside to use the Services.
12. Content.
Our Services allows you to post, link, store, share and otherwise make available certain information, text, graphics, videos, or other material (“Content”). You are responsible for the Content that you post on or through the Service, including its legality, reliability, and appropriateness.
ALIVE MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTIES AS TO THE LEGALITY, ACCURACY, RELIABILITY, AND APPROPRIATENESS OF ANY CONTENT POSTED BY USERS TO THE SERVICES, AND EXPRESSLY DISCLAIMS AND WAIVES ANY LIABILITY FOR THE NEGLIGENCE, RECKLESSNESS, OR WILLFUL ACT OF ANY USER IN MAKING CONTENT AVAILABLE THROUGH THE SERVICES.
By posting Content on or through the Services, You represent and warrant that: (i) the Content is yours (you own it) and/or you have the right to use it and the right to grant us the rights and license as provided in these Terms, and (ii) that the posting of your Content on or through the Services does not violate the privacy rights, publicity rights, copyrights, contract rights or any other rights of any person or entity. We reserve the right to terminate the account of anyone found to be infringing on a copyright.
You retain any and all of your rights to any Content you submit, post or display on or through the Services and you are responsible for protecting those rights. WE TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR CONTENT YOU OR ANY THIRD PARTY POSTS ON OR THROUGH THE SERVICES. However, by posting Content using the Services you grant us the right and license to use, reasonably modify, publicly perform, publicly display, reproduce, and distribute such Content on and through the Services. You agree that this license includes the right for us to make your Content available to other users of the Services, who may also use your Content subject to these Terms.
We have the right but not the obligation to monitor and delete all Content provided by users that does not conform to these Terms of Service.
In addition, Content found on or through the Services are considered the property of Awesome Joe Auctions or used with permission. You may not distribute, modify, transmit, reuse, download, repost, copy, or use said Content, whether in whole or in part, for commercial purposes or for personal gain, without express advance written permission from us.
13. Community Guidelines.
Our goal in creating these guidelines is to ensure that Users have the optimal experience with the Services, cultivating a healthy social environment. The following are some important guidelines for using the Services.
a. Adult Content. We prohibit accounts that promote or distribute pornographic content.
b. Nudity or Sexually Suggestive Content Involving Minors. Never post, save, or send nude or sexual content involving people under the age of 18 — even of yourself. This includes adding drawings or captions to a Snap to make it sexual, even as a joke.
c. Illegal Content. Don’t use the Services for anything illegal. DON’T!
d. Invasions of Privacy. Don’t use the Services to invade the privacy of others. This activity will be punishable by permanent ban and will be strictly enforced.
e. Threats & Violence. Never threaten to harm a person, group of people, or property.
f. Harassment & Bullying. We don’t tolerate bullying or harassment on the Services.
g. Impersonation. Don’t state or imply that you are, are an agent or representative of, or are endorsed or promoted by, someone you are not – including friends, family, celebrities, brands and other organizations – unless you are that person or entity, or have the authority to present yourself as their agent, representative, endorsee, etc.
h. Hate Speech. Don't post content that demeans, defames, or promotes discrimination based on race, ethnicity, national origin, religion, sexual orientation, gender, disability, or veteran status.
i. Promotion of Terrorism. We prohibit content that promotes terrorism.
j. Spam. We have zero tolerance for spam.
k. Facilitation or Participation in Gambling. Gambling, gaming, lotteries, raffles, contests, etc. are prohibited from the Services.
l. External Sales. You may not utilize the Services for event promotion only as an Organizer. Events promoted through the Services must utilize the Services for all registration as well.
m. Data Collection. You may not use the Services to collect personal information from other Users, such as insurance or social security information, payment information, etc.
n. Stalking. In addition to harassment, you may not use the Services to stalk any User.
If you violate these guidelines, we may remove the offending content, terminate your account, or notify law enforcement. If your account is terminated for violating our Terms of Service or these guidelines, you may not use the Services again. While we will strive to ensure these guidelines are adhered to by all Users, our failure to enforce any or all guidelines shall not constitute a waiver of our ability to do so in the future, and nothing in the Terms of Service shall be construed to express or imply such a waiver.
14. Our Rights for Content Violation.
We reserve the right to monitor, or remove any Content you post to or generate with the Services in the event that we believe said Content violates the Terms of Service. In the exercise of these rights, we reserve the right to: 1) notify you of a need to alter or remove any of your Content with a reasonable timeframe for doing so, prior to removal or alteration by us; 2) notify the applicable legal authorities in the event that we believe your violation of the Terms of Use is in violation of applicable law; 3) directly and immediately alter or remove your Content in order to limit our liability and/or comply with applicable law; 4) preserve a copy of your Content, even if you remove or alter it in order to mitigate our risk and/or comply with applicable law, court order, etc.; 5) reasonably pursue matters involving our rights, property, and personal safety (of both our employees and Users, and the public at large), including prevention of fraud. You acknowledge and agree to the rights contemplated by this Condition. Our failure to exercise any of the above rights shall not constitute a waiver of our ability to do so in the future, and nothing in the Terms of Service shall be construed to express or imply such a waiver.
15. Cross-Promotion.
ALIVE offers a growing ecosystem of products and services to the motorsports and automotive enthusiast community. We reserve the right, from time to time, to cross-promote these products and services through content on the Services to generate interest and facilitate their use. If you are interested in learning more, please visit andylallyalive.com or contact support@andylallyalive.com.
16. Adjustments to the Services.
We may, from time to time, make adjustments to the quality and content of the Services, including the addition, removal, and modification of certain features available to Users. We are not responsible or liable for the impacts to you for such additions, modifications and/or removals, and does not guarantee or warrant the continued functionality of the Services as-is at the time you register an account. Because the fees Sellers pay to us are solely based on listing and consignment, no refunds shall be issued for fees already due to us at the time of an addition, modification, or removal of a feature.
17. Listing, Bidding and Buying Process.
Capitalized terms not defined in this section shall have the meaning as defined in our Listing Agreement or Bidding and Buying Agreement.
Through the Services, we enable Sellers to create a listing page (“Listing”) for their Vehicle. For an auction Listing (“Auction”), Sellers shall include the Start Date (as defined below), End Date (as defined below), a Reserve (as defined below), and ideal sales price, as well as other pertinent information. The “Start Date” is the day on which a Seller’s Auction or Classified (as defined below) first appears on the Services publicly. The “End Date” is the last day on which a Seller’s Auction or Classified appears on the Services publicly. The End Date is subject to change at any point at the discretion of the Seller and/or the Agent. If the End Date is altered at any point during a Listing, all terms still apply. All Start Dates begin at a time determined by our staff upon the creation of a Listing (“Start Time”), and all End Dates terminate at a time determined by our staff upon the creation of a Listing (“End Time”). The “Reserve” is the minimum Bid (as defined below) on an Auction required from a Buyer to initiate a sale of the Vehicle from Seller to Buyer following the End Date for any Auction. Sellers may not increase the Reserve once an Auction has been submitted. For a classified Listing (“Classified”), Sellers shall include the Start Date, an Ask Price (as defined below), as well as other pertinent information. The ask price (“Ask Price”) is the price which you are requesting for a Buyer to initiate a sale of the Vehicle from Seller to Buyer at any time during the live Classified. Sellers may not increase the Ask Price once a Classified has been submitted. Sellers must provide certain other information, such as vehicle identification number, make, model, and condition in order for a Listing to be accepted and displayed through the Services, and each Seller must warrant and represent that the information provided is true, correct, and complete, to the best of the Seller’s knowledge. Each Seller who has agreed to participate in the Buy Confident ProcessSM condition validation program (“Condition Validation Program”) must also list the conditions to be reported on in the event of a Winning Bid or Accepted Offer (as defined below), the condition validator whom that Seller has chosen to verify those conditions in such event, whether the Seller will, at the Buyer’s request, consider reporting on additional considerations or an alternative condition validator or require the Buyer to place funds in escrow for release upon validation of the agreed-to conditions by the selected condition validator.
Upon a Seller’s submission of a Listing, one of our representatives will contact that Seller by the phone number provided during the submission process to confirm the Listing information. No Listing will be displayed through the Services without this confirmation. Confirmed Auctions will be displayed through the Services from the Start Date through the End Date. Confirmed Classifieds will be displayed through the Services from the Start Date until cancellation or an Accepted Offer. However, ALIVE cannot guarantee the frequency or prominence of any Listing. For an Auction, from the Start Date through the End Date, we will track Buyer Bids on the Listing. A “Bid”, in the case of an Auction, or “Offer”, in the case of a Classified, is a monetary commitment made by a Buyer through the Services. Bid tracking information will be available to Sellers, for informational purposes, through the Services.
A “Winning Bid” is the highest Bid which meets or exceeds the Reserve as of the End Time on the End Date on an Auction. In the event that there is a Winning Bid at the terminus of the End Date, we will contact the Seller through the Services to confirm the process for finalizing the sale of the Vehicle to the Buyer who submitted the Winning Bid, in as much as the sale process involves the Services. An “Accepted Offer” is an agreed upon offer on a Classified between the Buyer and Seller. If the Listing is part of the Condition Validation Program and the Buyer has requested that the consummation of the sale be subject to validation of the conditions set forth in the Listing and any other additional conditions which the Seller may have agreed to by the selected condition validator, the Seller and the Buyer will enter into a separate agreement which sets forth the terms and conditions pursuant to which the Buyer will consummate the sale (“Condition Validator Commitment Agreement”), including any escrow requirements. The Buyer and the Seller will be bound by the selected condition validator’s conclusion regardless of whether the Seller or the Buyer may disagree with that conclusion and they will be required to proceed in accordance with that conclusion.
Please note that the Services facilitate Listings and contact between Buyers and Sellers, but do not facilitate payment processing, transportation, title and tag, or other services in connection with the sale of a vehicle. IT IS THE RESPONSIBILITY OF SELLER AND BUYER TO FINALIZE THE SALE OF A VEHICLE, and Buyer and Seller covenant to do so according to the terms of the Bidding and Buying Agreement, Listing Agreement and their individual Condition Validator Commitment Agreement. For Auctions, Sellers agree to accept the Winning Bid, whatever the amount, and Buyers agree to pay such Winning Bid amount in a timely and reasonable fashion. Upon a Winning Bid or Accepted Offer, Sellers agree to convey title and delivery of the Vehicle in a timely and reasonable manner. Buyers are solely responsible for obtaining shipping or facilitating pick-up of the Vehicle, and Sellers agree to provide reasonable, timely assistance and accommodation to Buyers in a manner that is both mutually agreeable to Buyers and consistent with Buyers choice of shipping or pick-up arrangements.
In the event that no Bid meets or exceeds the Reserve as of the End Time on the End Date of an Auction, and the difference between the Reserve and the highest Bid exceeds our Fee (as defined in the Listing Agreement), or in the event that no Bids were submitted, Seller will receive notification through the Services that there was no Winning Bid. Seller will then have the option to re-submit the Vehicle as a new Listing, subject to a new Listing Agreement.
In the event that no Bid meets or exceeds the Reserve as of the End Time on the End Date of an Auction, and the difference between the Reserve and the highest Bid is less than or equal to our Fee (as defined in the Listing Agreement), we may, at our sole discretion, exercise the option to pay for the remaining difference to facilitate the sale of the Vehicle (a “Facilitating Payment”). Under no circumstances shall we be compelled to make, or liable to Buyer or Seller for, a Facilitating Payment. In the event a Facilitating Payment is applied, the Fee will be calculated based on the Reserve. Additionally, in the event of a Facilitating Payment, we shall have no right, title, nor liability associated with the Vehicle, and conveyance of the Vehicle shall take place as if the Buyer had placed a Winning Bid in full, and Buyer shall have no liability to us for the amount of the Facilitating Payment.
In no event shall a Buyer and Seller conspire to use the Services to facilitate the purchase of a Vehicle after the Listing’s End Date, Classified closure, or a Classified cancellation at our exclusion, and/or for the purpose of avoiding the payment of any compensation which would otherwise be due to us. Doing so is a violation of these Terms of Service.
Compensation from Buyers and Sellers for Vehicle purchases facilitated through the Services is defined in the Bidding and Buying Agreement and Listing Agreement, respectively.
18. Third-Party Content.
We are not responsible for third-party content that is posted or linked to the Services by Users. We will maintain a high level of care with regard to exercising the rights afforded in these Terms of Service as such rights and guidelines may pertain to third-party content posted by or linked to by Users. Additionally, we are not responsible for the availability of third-party content, are not responsible or liable for any third-party content or links, and are not responsible or liable for loss or damages related to the use of third-party content or links, regardless as to whether such content or links are connected with User profiles, Seller pages, partners, or service providers.
In the event that you link your User account with a third-party account (e.g. social media), you acknowledge our right to access, store, and make available the Content you have provided to that third-party account in the same manner as if it were provided to your Awesome Joe Auctions account directly, in as much as such information (including personally identifiable information) is available through the Services.
19. Prohibitions - Merchants.
You hereby represent and warrant that:
a. You are not located in and are not a resident of any country subject to an embargo by the US, UK, EU, Australia, or Canada (a “Prohibited Country”); and
b. You are not a person or entity affiliated with a person or entity that appears on the US OFAC’s Specially Designated Nationals List, Foreign Sanctions Evaders List, or Palestinian Legislative Council List, the US Department of State’s Terrorist Exclusion List, the Bureau of Industry and Security’s Denied Persons List, the UK Treasury’s Consolidated List of Targets, the AU Department of Foreign Affairs and Trade’s Consolidated List, or is subject to sanctions in any country (a “Prohibited Person”); and
c. You are not prohibited from accessing, nor have had your merchant file terminated by any credit card scheme (a “Credit Prohibited Person”).
If you cannot represent and warrant any of the above, you are considered a Prohibited Merchant and not eligible to use the Services as they pertain to the consignment of goods and/or services.
20. Prohibitions – Goods and Services.
The following goods and services (“Prohibited Items”) are prohibited from the Services, and you agree not to attempt to utilize the Services in connection with any type of goods or services that:
a. Violates or facilitates the violation of any law, rule or regulation;
b. Would be prohibited by the rules, regulations and bylaws of any Payment Scheme;
c. Would take place in a Prohibited Country; or
d. Would violate the Terms of Use.
21. Prohibitions – Transactions.
Certain transactions (“Prohibited Transactions”) are prohibited under these Terms of Use, and you agree, warrant, and represent that you will not use the Services to process transactions that:
a. Violates the rules, regulations, and bylaws of any Payment Scheme;
b. Is fraudulent or criminal in nature;
c. Constitutes a restricted transaction as that term is defined under the Unlawful Gambling Enforcement Act of 2006 or Regulation GG; or
d. Constitutes the transfer of funds from one party to another, other than for the purchase of bona fide goods and services.
22. Prohibitions – Remedies.
In the event that we determine that you have conducted a Prohibited Transaction, utilized the Services in connection with Prohibited Items, and/or are a Prohibited Merchant, we may take one or more of the following actions, at our discretion; failure by us to take any remedial action shall not constitute a waiver of our right to remedial action under these Terms of Use, and all remedies listed herein may be taken in addition to remedies provided by applicable law:
a. Suspension or termination of your account(s);
b. Alteration, editing, or removal of a Prohibited Item;
c. Blocking, reversing or refunding transaction(s);
d. Putting an immediate hold on all funds and transactions associated with your account in accordance with applicable law; and
e. Referral of you, your goods and services, and/or your transactions and pertinent information thereto to credit card schemes or other payment schemes, and applicable law enforcement authorities for additional action.
23. Term and Termination.
These Terms of Service shall be effective upon your agreement hereto and continue in perpetuity until terminated.
Except where otherwise agreed separately and in writing, in an agreement which specifically modifies or supersedes these Terms of Service, we may terminate your right to use the Services at any time for:
a. Your violation or breach of these Terms of Service; or
b. Your misuse or abuse of the Services, as determined by our sole discretion; or
c. Your access to and use of the Services would violate any applicable local, state, national or other law, rule, or regulation, or would otherwise expose us to legal liability.
We shall exercise reasonable efforts to provide Users with notice of any such termination. You further agree that we shall not be liable to you or any third party for any such termination of your right to use or otherwise access the Services.
You may terminate your access to the Services, and your agreement to these Terms of Service by deleting your User account.
All provisions of these Terms of Service that by nature should survive termination shall survive, including without limitation all limitations on liability, releases, indemnification clauses and obligations, disclaimers of warranties, agreements to arbitrate, choices of law and judicial forum, and intellectual property rights and licenses.
24. Indemnification.
As a party to these Terms of Service, you agree to indemnify us and hold us harmless, and hold harmless our affiliates, subsidiaries, successors and assigns and each of their respective officers, directors, agents, licensors, payment processing partners, partners, employees (the “Released Parties”) from any and all damage, loss, liability, cost, and expense, including without limitation reasonable attorney’s and accounting fees resulting from any claim, demand, suit, proceeding, or investigation made by any third party (each of these a “Claim”), due to or arising out of:
a .Your breach of these Terms of Service, including without limitation the Awesome Joe Auctions Privacy Policy;
b. Your improper use of the Services;
c. Your breach of applicable local, state, national or other law, rule, regulation, or the rights of any third party.
We shall exercise commercially reasonable efforts to notify you of any such Claim, provided that the failure or delay by us in providing such notice shall not limit User obligations hereunder, except to the extent such User is materially disadvantaged by such failure.
25. Disclaimer of Warranties.
WE PROVIDE THE SERVICES USING A COMMERCIALLY REASONABLE LEVEL OF SKILL AND CARE. IN DOING SO, WE, ALIVE, ATTEMPT TO ENSURE THAT THE SERVICES ARE FREE OF BUGS, SAFE, AND GENERALLY AVAILABLE FOR USE BY USERS. HOWEVER, CERTAIN CIRCUMSTANCES SHALL NOT BE GUARANTEED OR PROMISED WITH REGARD TO THE SERVICES. TO THE EXTENT PERMITTED BY LAW, THE SERVICES ARE PROVIDED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS, AND WE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, AND FITNESS FOR A PARTICULAR PURPOSE. FOR ILLUSTRATIVE PURPOSES, WE MAKE NO WARRANTY THAT:
a. THE SERVICES WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS;
b. THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; OR
c. THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
YOU ACKNOWLEDGE AND AGREE THAT WE HAVE NO CONTROL OVER AND DO NOT GUARANTEE THE QUALITY, SAFETY, OR LEGALITY OF EVENTS ADVERTISED, THE TRUTH OR ACCURACY OF ANY USER-GENERATED CONTENT OR LISTING OR THE ABILITY OF ANY USER TO PERFORM OR ACTUALLY COMPLETE A TRANSACTION, AND WE ARE NOT AFFILIATED WITH, AND HAS NO AGENCY OR EMPLOYMENT RELATIONSHIP WITH, ANY THIRD PARTY SERVICE PROVIDER USED IN CONJUNCTION WITH THE SERVICES, AND WE HAVE NO RESPONSIBILITY FOR, AND HEREBY DISCLAIM ALL LIABILITY ARISING FROM THE ACTS OR OMISSIONS OF ANY SUCH THIRD PARTIES.
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN THE USER’S JURSIDICTION (IF ANY) SHALL APPLY TO THAT USER, AND OUR LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
26. Limitation of Liability.
TO THE EXTENT PERMITTED BY LAW, ALIVE, ITS AFFILIATES, SUBSIDIARIES, SUCCESSORS AND ASSIGNS AND EACH OF THEIR RESPECTIVE OFFICERS, DIRECTORS, AGENTS, LICENSORS, PAYMENT PROCESSING PARTNERS, PARTNERS, EMPLOYEES SHALL NOT BE LIABLE UNDER ANY CIRCUMSTANCES OR UNDER ANY LEGAL THEORY, WHETHER IN TORT, CONTRACT, OR OTHERWISE, WITH RESPECT TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION THE AWESOME JOE AUCTIONS PRIVACY POLICY, FOR:
a. ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, PUNITIVE, OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (REGARDLESS AS TO WHETHER ALIVE HAS BEEN NOTIFIED OF THE POTENTIAL OF SUCH DAMAGES);
b. THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES;
c. ANY OF YOUR CONTENT (AS DEFINED IN THE TERMS OF USE) OR ANY CONTENT OF ANY OTHER USER OF THE SERVICES; OR
d. ANY MATTERS BEYOND ALIVE’S REASONABLE CONTROL.
IN ADDITION, THE MAXIMUM AGGREGATE LIABILITY OF ALIVE, ITS PAYMENT PROCESSING PARTNERS, LICENSORS, AND ANY APPLICABLE CARD SCHEMES FOR ALL DAMAGES, LOSSES, LIABILITIES, COSTS, AND EXPENSES UNDER ANY LEGAL THEORY, WHETHER IN TORT CONTRACT OR OTHERWISE, WITH RESPECT TO, ARISING OUT OF, OR RELATED TO THE SERVICES, OR ANY OTHER SUBJECT MATTER OF THESE TERMS OF SERVICE, INCLUDING WITHOUT LIMITATION THE AWESOME JOE AUCTIONS PRIVACY POLICY, SHALL BE LIMITED TO:
a .THE TOTAL AMOUNT OF ALL GOODS AND SERVICES THAT YOU PUCHASED OR MADE THROUGH THE SERVICES IN THE NINETY (90) DAYS IMMEDIATELY PRECEDING THE CIRCUMSTANCES GIVING RISE TO YOUR CLAIM; OR
b. IF YOU MADE NO SUCH PURCHASE, ONE HUNDRED DOLLARS ($100.00 USD).
NOTHING IN THESE TERMS OF SERVICE IS INTENDED TO EXCLUDE OR LIMIT ANY CONDITION, WARRANTY, RIGHT OR LIABILITY WHICH MAY NOT BE LAWFULLY EXCLUDED OR LIMITED. ONLY THOSE LIABILITY AND OTHER LIMITATIONS WHICH ARE LAWFUL IN A USER’S JURISDICTION (IF ANY) WILL APPLY TO THAT USER AND ALIVE’S LIABILITY IS LIMITED TO THE MAXIMUM EXTENT PERMITTED BY LAW.
Users hereby release us, our affiliates, subsidiaries, successors and assigns and each of their respective officers, directors, agents, licensors, payment processing partners, partners, employees from all damages (direct, indirect, incidental, consequential, or otherwise), losses, liabilities, costs, and expenses of every kind and nature, known and unknown, arising out of or in any way connected with disputes between you and third parties (including other Users) in connection with the Services or any event listed on the Services. In addition, you waive any applicable law or statute, which says, in substance: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE RELEASED PARTY.”
27. Waiver of Class Action.
YOU AND ALIVE 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, CONSOLIDATED OR REPRESENTATIVE PROCEEDING. NO REMEDY FOR CONFLICTS UNDER THESE TERMS OF SERVICE AND/OR ANY DOCUMENT OR AGREEMENT INCORPORATED HEREIN BY REFERENCE SHALL CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, MAY NOT PRESIDE OVER ANY FORM OF CLASS, CONSOLIDATED OR REPRESENTATIVE PROCEEDING, AND MAY ONLY PROVIDE RELIEF IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT PARTY’S INDIVIDUAL CLAIM.
28. Intellectual Property.
The trademarks, service marks, and logos of ALIVE used and displayed in connection with the Services (“Awesome Joe Auctions’ Trademarks”) are registered and unregistered trademarks or service marks of ALIVE. Other company, product, and service names used in connection with the Services, may be trademarks or service marks owned by third parties (“Third Party Trademarks”; collectively with Awesome Joe Auctions’ Trademarks, the “Trademarks”). The offering of the Services shall not grant, by implication, estoppel or otherwise, any right or license to any Trademark displayed in connection with the Services, without the prior written consent of the applicable trademark or service mark owner. Trademarks may not be used to disparage any party, product, or service, or in any manner that may damage any goodwill in Trademarks. Use of any Trademarks as part of a link to or from any site is prohibited unless we and/or the applicable Trademark owner approves the establishment of such a link through prior written consent for each such link. Any and all goodwill generated from the use of any Awesome Joe Auctions Trademark shall inure to our benefit.
Patents and patents pending may apply to the Services. The Content of the Services is also protected by copyrights owned by ALIVE and/or third parties. Please note that if you copy portions of the Services, you are in strict violation of such patents and copyrights.
29. Procedure for Reporting Claims of Copyright Infringement.
We take claims of copyright infringement seriously. If you believe any materials accessible through the Services infringe your copyright, you may request removal of those materials by notifying our designated agent listed below in writing.
ALMM Ventures, LLC
ATTN: DMCA Claims Agent
44 West Gay Street
Suite 202
West Chester, PA 19380
302.778.1300
To be effective, the notification must include the following information:
a. Your physical or electronic signature.
b. Your address, telephone number and email address.
c. Identification of the copyrighted work you claim has been infringed or, if multiple works are covered by the notification, a representative list of such works.
d. Identification of the material you believe to be infringing, and information reasonably sufficient to permit us to locate that material on the Services.
e. A statement that you have a good faith belief that the use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.
f. A statement that the information in the notification is accurate.
g. A statement, under penalty of perjury, that you are the copyright owner or are authorized to act on behalf of the copyright owner.
Notifications that do not comply with the foregoing procedure will not receive a response.
30. Notices.
Notices to you may be sent via email to the address provided by you and retained by us for such use. Notices provided by any other means, including through the Services, are strictly a matter of convenience unless noted otherwise in writing.
31. Entire Agreement.
These Terms of Service, including the documents hereto incorporated by reference, constitute the entire agreement between you and ALIVE, and govern the use of the Services by you. These Terms of Service supersede any prior or contemporaneous agreement, unless specified in writing.
32. Governing Law.
These Terms of Service and the provision of the Services are governed by the laws of the State of Delaware, without reference to principles of conflict of laws. In the event of any controversy or claim arising out of or relating to these Terms of Service, or a breach thereof, the parties hereto shall first attempt to settle the dispute by mediation, administered by the American Arbitration Association, under its Mediation Rules. If settlement is not reached within sixty (60) days after service of a written demand for mediation, any unresolved controversy or claim shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules. The number of arbitrators shall be three (3). The place of arbitration shall be Wilmington, DE. Delaware law shall apply. Judgment on the award rendered by the arbitrators may be entered in any court having jurisdiction thereof.
