BUYMYSPOT, LLC SITE TERMS OF USE
VERSION 1.1
Last Updated: 8/9/2023
The website located at buymyspot.com and associated mobile application (collectively, the “
Site”) are copyrighted works belonging to BuyMySpot, LLC (“
Company”, “
us”, “
our”, and “
we”). Your access to and use of the Site is subject to the following terms and conditions. Certain features of the Site may be subject to additional guidelines, terms, or rules, which will be posted on the Site in connection with such features. All such additional terms, guidelines, and rules are incorporated by reference into the following terms and conditions. For the purposes of this agreement, “
you” and “
your” shall mean individuals who access and/or use the Site in any capacity.
1. ACCEPTANCE OF THE TERMS OF USE. THESE TERMS OF USE (THE "
TERMS”) SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS THAT GOVERN YOUR USE OF THE SITE. BY ACCESSING OR USING THE SITE, YOU ARE ACCEPTING THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT), AND YOU REPRESENT AND WARRANT THAT YOU HAVE THE RIGHT, AUTHORITY, AND CAPACITY TO ENTER INTO THESE TERMS (ON BEHALF OF YOURSELF OR THE ENTITY THAT YOU REPRESENT). IF YOU ARE NOT AT LEAST 18 YEARS OLD, YOU CANNOT ACCEPT THE TERMS, AND THEREFORE, YOU MAY NOT ACCESS OR USE THE SITE. IF YOU DO NOT AGREE OR DO NOT WISH TO BE BOUND BY THE TERMS, YOU MUST NOT ACCESS OR USE THE SITE.
THESE TERMS REQUIRE THE USE OF ARBITRATION (SECTION 16.2) ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND ALSO LIMIT THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
2. ELECTRONIC SIGNATURES AND CONTRACTS. Your use of the Site includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS.
3. BuyMySpot Services. Unless expressly stated otherwise herein, the services provided by the Company (the “
Services”) are limited to informing users of the location and potential availability of certain parking spots (“
Parking Spots”) and facilitating Reservations (as defined below) by displaying Parking Spots, processing Reservations and collecting payment for Reservations on behalf of Property Owners (as defined below). The Company lists the Parking Spots on the Site and, as such, facilitates the reservation of Parking Spots (“
Reservations”) between users of the Services (“
Property Renters”), and the independent owners, lessors, managers or operators of the Parking Spots (the “
Property Owners”). In facilitating Reservations, the Company may share Property Renters’ and Property Owners’ email addresses and/or phone numbers with each other when such parties complete a transaction using our Services. Any fees and/or consideration paid to the Company is paid to the Company in connection with these Services unless otherwise indicated.
To be clear, the Company does not: (i) negotiate terms of licenses or settle disputes between users of the Site; (ii) provide a parking service; (iii) operate a parking lot or other parking facility; (iv) otherwise accept custody of motor vehicles; or (v) provide services other than the Services (collectively, “
Excluded Services”). Some Excluded Services may be provided by Property Owners who are neither our agents nor acting on our behalf. We have no responsibility whatsoever regarding the safety of persons or property in connection to our Services, including in the Parking Spots, at any facility where the Parking Spots are located, and elsewhere. Neither we nor Property Owners are responsible for any consequences arising from the Excluded Services, including, without limitation, consequences arising from not being able to park, delays associated with parking, road closures, towing of vehicles or changing traffic conditions.
The Services are not intended for use by persons under the age of 18. Individuals under the age of 18 may not access or use the Services in any capacity. Users agree to comply with all applicable laws when accessing or using our Services, and may only access or use our Services for lawful purposes.
4. PROPERTY OWNERS, PROPERTY OWNERS’ TERMS AND CONDITIONS AND PROPERTY RENTERS
4.1. Property Owners. Property Owners establish the prices for Parking Spots, operate Parking Spots, and determine parking availability. While the Company makes every effort to provide accurate information regarding the Parking Spots listed on the Site, at times such information may become inaccurate, and the Company shall not be liable for any such inaccuracy.
4.2. Property Owner’s Terms and Conditions. In all cases, a Property Renter’s utilization of a Parking Spot will be governed by the Property Owner’s customer agreements or policies, as made available to the Property Renter at or before the time of parking in the Parking Spot. This includes, without limitation, all terms and conditions related to the use of any Parking Spot, any payment terms and conditions, and all rules and restrictions imposed by the Property Owner on the relevant parking facility and/or Parking Spot, as each may be entered into or effected in accordance with the Property Owner’s standard operating procedures (the “
Property Owner’s Terms and Conditions”).
4.3. Property Renters. By making a Reservation, a Property Renter agrees in all cases to abide by the Property Owner’s Terms and Conditions. In connection with our provision of the Services, a Property Owner may represent and warrant to us that the Property Owner has full authority to list the Parking Spot(s) for Reservations. We are not responsible for confirming whether any such representation or warranty is true and correct, nor are we responsible if any such representation or warranty becomes inaccurate or incomplete prior to a Property Renter’s use of a Parking Spot. In addition, the Company will never be responsible for any agreement or other arrangements between any Property Renter and any Property Owner, regardless of whether such agreement or other arrangements are related to the Property Renter’s booking and use of a Parking Spot. Although we do not guarantee the availability of a specific Parking Spot, if a booked Parking Spot is unavailable at the reserved time, we will attempt to locate an alternative Parking Spot, provide the Property Renter with a refund and/or otherwise resolve any issues in accordance with our standard customer service policies and procedures.
5. FEES, PAYMENTS, TAXES AND CANCELLATIONS
5.1. Service Fee, Commission Fee and Overage Fees. In connection with facilitating a Reservation, the Company, at its discretion, may charge a Property Renter a service fee as compensation for providing Services (“
Service Fee”). In connection with remitting payment to Property Owners for fulfilled Reservations, the Company, at its discretion, may charge a Property Owner a commission fee as compensation for providing Services (“
Commission Fee”). Except as provided in these Terms or when required by law or other agreement between the Company and a Property Owner, all fees paid are non-refundable and the Company may change the Service Fee and/or Commission Fee at any time.
5.2. Payments. In connection with facilitating a Reservation, the Company will charge the Property Renter’s credit card for the total price displayed at checkout, which includes the amount for the Reservation, a Service Fee retained by the Company (if applicable), and all anticipated applicable taxes. When the Company receives a Property Renter’s payment, the Property Renter’s obligation to pay the Property Owner for the Reservation is fully satisfied. The Company guarantees payment to the Property Owner for all Reservations fulfilled by the Property Owner. Payments to Property Owners for fulfilled Reservations will include the amount for the Reservation minus a Commission Fee (if applicable).
5.3. Taxes. The amounts paid to the Property Owner in connection with a Property Renter’s Reservation includes all anticipated applicable taxes for the Parking Spot(s). The Property Owners are responsible for remitting applicable taxes to the applicable taxing jurisdictions. The Company is not a vendor collecting and remitting taxes to the applicable taxing authorities nor a co-vendor associated with the vendor with whom the Company’s customers are submitting the Reservations. If a Property Renter is required by law to withhold any taxes from the Property Renter’s payments to the Company, the Property Renter must provide the Company with an official tax receipt or other appropriate documentation to support such withholdings.
5.4. Cancellations and Refunds. Reservations made through the Site are cancellable in accordance with (a) the Company’s cancellation policy in effect at the time of booking and as more fully described
here (as may be updated by the Company from time to time) (“
Cancellation Policy”) or (b) any specific cancellation policies or restrictions stated in the Property Owner’s Terms and Conditions, as applicable. In the event of any conflict between the Cancellation Policy and any statements in the Property Owner’s Terms and Conditions, the specific policies and restrictions in the Property Owner’s Terms and Conditions shall control.
Following the start of the Reservation, each and every Reservation is non-refundable, regardless of the Property Renter’s use or non-use of the Reservation and regardless of any circumstance surrounding the use or non-use of a Reservation (i.e., traffic or weather delays, cancellation of a related event). If, for whatever reason, an error occurs regarding any fee for Services, the Company may, in its sole discretion, void a Reservation related to that error and refund appropriate monies paid in connection therewith.
6. PROMOTIONAL MARKETING INCENTIVES AND RESERVATION RATES
6.1. Promotional Marketing Incentives. The Company may from time to time issue promotional marketing incentives in the form of promotional codes, promotional discounts, coupon codes, referral credits or other marketing incentives (“
Marketing Incentives”). The Marketing Incentives are given for no exchange of value or other consideration and Property Renters therefore have no ownership interests or rights in the Marketing Incentives. For this reason, the Company reserves the right to deactivate any Marketing Incentive at any time and for any reason, including, but not limited to, mistake, failure to maintain an updated online account, unauthorized use or suspicion of fraud or abuse of any promotional program or Marketing Incentives. Further, the Company reserves the right to terminate or discontinue any promotional program or other program offering Marketing Incentives at any time.
6.2 Reservation Rates. The rate for a Reservation made on the Site may not be combined with any additional coupons, special offers or other promotions available off of the Site. Special discounts do not apply.
7. ACCOUNTS
7.1. Account Creation. In order to use certain features of the Site, individuals must register for an account (“
Account”) and provide certain personal information as prompted by the account registration form. Creating an account makes an individual a user of the Site (“
User”). Each User represents and warrants that: (a) all required registration information submitted is truthful and accurate; and (b) the User will maintain the accuracy of such information. The Company may suspend or terminate a User’s Account in accordance with Section 15. We have the right to, in our sole discretion, disable any username, password, or other identifier, whether chosen by the User or provided by us at any time, for any or no reason.
7.2. Account Responsibilities. A User is fully responsible for maintaining the confidentiality of the User’s Account login credentials and for all activities that occur under the User’s Account. Users agree to immediately notify the Company of any unauthorized use, or suspected unauthorized use of the User’s Account or any other breach of security. The Company cannot and will not be liable for any loss or damage arising from Users’ failure to comply with the above requirements.
7.3. Disputed Charges and Reversals. If a User believes that an unauthorized transaction has taken place under the User’s Account, the User agrees to notify us immediately. Users are responsible for and agree to reimburse us for all reversals, claims, fees and other liability or expense incurred by us that were caused by payments that Users authorized or accepted.
8. ACCESS TO AND USE OF THE SITE
8.1. License. Subject to these Terms, the Company grants you a non-transferable, non-exclusive, revocable, and limited license to:
(a) download, install, access and use the Site solely for your personal, non-commercial use through a web browser or on a single mobile device (collectively, “
Device”) owned or otherwise controlled by you;
(b) access and use on such Device the User Content (defined in Section 9.1) and Services made available by the Company.
8.2. Certain Restrictions. The rights granted to you in these Terms are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, distribute, host, publish, or otherwise commercially exploit the Site, whether in whole or in part, or any content displayed on the Site; (b) you shall not modify, adapt, make derivative works of, disassemble, decompile, decode, reverse engineer or otherwise attempt to derive or gain access to the source code of any part of the Site; (c) you shall not access the Site in order to build a similar or competitive website, product, or service; (d) except as expressly stated herein, no part of the Site may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; (e) you shall not remove, delete, alter, or obscure any trademarks or any copyright, trademark, patent, or other intellectual property or proprietary rights notices from the Site, including any copy thereof; (f) you shall not frame, mirror, or otherwise incorporate the Site or any portion of the Site as part of any other mobile application, website, or service; and (g) you shall not remove, disable, circumvent, or otherwise create or implement any workaround to any copy protection, rights management, or security features in or protecting the Site.
8.3. Prohibited Uses. You may use the Site only for lawful purposes and in accordance with these Terms.
You shall not use the Site:
(a) In any way that violates any applicable lease, sublease, federal, state, local, or international law, regulation (including, without limitation, any laws regarding the export of data or software to and from the US or other countries).
(b) To transmit, or procure the sending of, any advertising or promotional material without our prior written consent, including any "
junk mail," "
chain letter," "
spam," or any other similar solicitation.
(c) To impersonate or attempt to impersonate the Company, a Company employee, another user, or any other person or entity (including, without limitation, by using email addresses or screen names associated with any of the foregoing).
(d) To engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Site, or which, as determined by us, may harm the Company or users of the Site, or expose them to liability.
(e) To harass, embarrass, or otherwise harm other users of the Site.
(f) In any manner that could disable, overburden, damage, or impair the Site or interfere with any other party's use of the Site, including their ability to engage in real time activities through the Site.
(g) To use any robot, spider, or other automatic device, process, or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
(h) To violate Content Standards, as outlined in Section 9.
Additionally, you agree not to:
(a) Use any manual process to monitor or copy any of the material on the Site, or for any other purpose not expressly authorized in these Terms, without our prior written consent.
(b) Use any device, routine or software:
(1) that interferes with the proper working of the Site.
(2) to collect the data stored by the Site, including, but not limited to, data relating to user information, viewing preferences, or account data.
(c) Introduce any viruses, trojan horses, worms, logic bombs, or other material that is malicious or technologically harmful.
(d) Attempt to gain unauthorized access to, interfere with, damage, or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer, or database connected to the Site.
(e) Attack the Site via a denial-of-service attack or a distributed denial-of-service attack or otherwise attempt to interfere with the proper working of the Site.
(f) Use software, automated agents or scripts to produce multiple accounts on the Site, or to generate automated searches, requests, or queries to (or to strip, scrape, or mine data from) the Site (provided, however, that we conditionally grant to the operators of public search engines revocable permission to use spiders to copy materials from the Site for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials, subject to the parameters set forth in our robots.txt file).
8.4. Modification, Suspension or Discontinuation of Site. Company reserves the right, at any time, to modify, suspend, or discontinue the Site (in whole or in part) with or without notice to you. You agree that the Company will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Site or any part thereof.
8.5. No Support or Maintenance. You acknowledge and agree that the Company will have no obligation to provide you with any support or maintenance in connection with the Site.
8.6. Collection and Use of Your Information. You acknowledge that when you download, install, access or use the Site, the Company may use automatic means (including, for example, cookies and web beacons) to collect information about your Device and about your use of the Site. All information we collect through or in connection with the Site is subject to our
Privacy Policy. By downloading, installing, using, and providing information to or through the Site, you consent to all actions taken by us with respect to your information in compliance with the Privacy Policy.
8.7. Ownership. You acknowledge and agree that the Site is provided under license, and not sold, to you. Excluding any User Content (defined in Section 9.1) that you may provide, you acknowledge that the Site and all the intellectual property rights, including copyrights, patents, trademarks, and trade secrets, in the Site and its content are owned by the Company or its suppliers. Neither these Terms nor your access to the Site transfers to you or any third party any rights, title or interest in or to such intellectual property rights or the Site, except for the limited access rights expressly set forth in Section 8.1. The Company and its suppliers reserve all rights not granted in these Terms. There are no implied licenses granted under these Terms.
8.8. Updates. The Company may from time to time in its sole discretion develop and provide Site updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, "
Updates"). Updates may also modify or delete in their entirety certain features and functionality. You agree that the Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on the Device and its settings, when your Device is connected to the internet either (a) the Site will automatically download and install all available Updates; or (b) you may receive notice of or be prompted to download and install available Updates.
You shall promptly download and install all Updates and acknowledge and agree that the Site or portions thereof may not properly operate should you fail to do so. You further agree that all Updates and future releases will be deemed part of the Site and be subject to these Terms.
9. USER CONTENT
9
.1. User Content. “User Content” means any and all information, content and materials that you, Post (as defined below) to the Site. The Site may contain message boards, chat rooms, bulletin boards, maps, and other interactive features (collectively, "I
nteractive Services") that allow Users to post, submit, publish, display or transmit User Content to other Users and/or the Site (“
Post”). You are solely responsible for your User Content. You assume all risks associated with your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that personally identifies you or any third party. You hereby represent and warrant that your User Content does not violate our Content Standards (defined in Section 9.5). Because you, alone, are responsible for your User Content, you may expose yourself to liability if, for example, your User Content violates our Content Standards. The Company is not obligated to backup any User Content, and your User Content may be deleted at any time without prior notice. You are solely responsible for creating and maintaining your own backup copies of your User Content if you desire.
9.2. User Content License. You hereby grant (and you represent and warrant that you have the right to grant) to the Company 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 and exploit your User Content, and to grant sublicenses of the foregoing rights, solely for the purposes of including your User Content in the Site. You hereby irrevocably waive and agree never to assert any claims and assertions of moral rights or attribution with respect to your User Content.
9.3. Interactions Between Users. Your interactions with other users of the Site are solely between you and such users. You agree that the Company 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 Site user, we are under no obligation to become involved.
9.4. Feedback. If you provide the Company with any feedback or suggestions regarding the Site (“
Feedback”), you hereby assign to Company all rights in such Feedback and agree that the Company shall have the right to use and fully exploit such Feedback and related information in any manner it deems appropriate. Company will treat any Feedback you provide to the Company as non-confidential and non-proprietary. You agree that you will not submit to the Company any information or ideas that you consider to be confidential or proprietary.
9.5. Content Standards. The following standards (“
Content Standards”) apply to any and all User Content and use of Interactive Services. User Content must in its entirety comply with all applicable federal, state, local and international laws and regulations. Without limiting the foregoing, User Content must not:
(a) Contain any material which is defamatory, obscene, indecent, abusive, offensive, harassing, violent, hateful, inflammatory or otherwise objectionable.
(b) Promote sexually explicit or pornographic material, violence, or discrimination based on race, sex, religion, nationality, disability, sexual orientation or age.
(c) Infringe any patent, trademark, trade secret, copyright or other intellectual property or other rights of any other person.
(d) Violate the legal rights (including the rights of publicity and privacy) of others or contain any material that could give rise to any civil or criminal liability under applicable laws or regulations or that otherwise may be in conflict with these Terms of Use and our
Privacy Policy.
(e) Be likely to deceive any person.
(f) Promote any illegal activity, or advocate, promote or assist any unlawful act.
(g) Cause annoyance, inconvenience or needless anxiety or be likely to upset, embarrass, alarm or annoy any other person.
(h) Impersonate any person, or misrepresent your identity or affiliation with any person or organization.
(i) Give the impression or represent that it emanates from, is endorsed by or is sponsored by us or any other person or entity, if this is not the case.
9.6. Enforcement. We reserve the right (but have no obligation) to review any User Content, and to investigate and/or take appropriate action against you in our sole discretion if you violate the Content Standards or any other provision of these Terms or otherwise create liability for us or any other person. Such action may include removing or modifying your User Content, terminating your Account in accordance with Section 15, and/or reporting you to law enforcement authorities.
10. THIRD-PARTY LINKS & ADS; USER GENERATED INFORMATION
10.1. Third-Party Links & Ads. The Site may contain links to third-party websites and services, and/or display advertisements for third parties (collectively, “
Third-Party Links & Ads”). Such Third-Party Links & Ads are not under the control of the Company, and the Company is not responsible for any Third-Party Links & Ads, including their accuracy, completeness, timeliness, validity, copyright compliance, legality, decency, quality, or any other aspect thereof. The Company provides access to these Third-Party Links & Ads only as a convenience to you, and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Links & Ads. You use all Third-Party Links & Ads at your own risk, and should apply a suitable level of caution and discretion in doing so. When you click on any of the Third-Party Links & Ads, the applicable third party’s terms and policies apply, including the third party’s privacy and data gathering practices. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
10.2. Reliance on Information Posted. The information presented on or through the Site is made available solely for general information purposes. We do not warrant the accuracy, completeness, or usefulness of this information. Any reliance you place on such information is strictly at your own risk. We disclaim all liability and responsibility arising from any reliance placed on such information by you, or by anyone who may be informed of any of its contents. This Site may include content provided by third parties, including materials provided by other users, bloggers, and third-party licensors, syndicators, aggregators, and/or reporting services. All content, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company.
10.3. Reliance on User Generated Information. Some of the information presented on or through the Site is generated by, or at least in part by, Users and third-parties accessing the Site (“
User Generated Information”). We do not warrant the accuracy, completeness, or usefulness of this information. We are not responsible, or liable to you or any third party, for the content or accuracy of any such User Generated Information.
11. RELEASE. You hereby release and forever discharge the Company (and our officers, employees, agents, successors, and assigns) from, and hereby waive and relinquish, each and every past, present and future dispute, claim, controversy, demand, right, obligation, liability, action and cause of action of every kind and nature (including personal injuries, death, and property damage), that has arisen or arises directly or indirectly out of, or that relates directly or indirectly to, the Site (including any interactions with, or act or omission of, Site users or any Third-Party Links & Ads). 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.”
12. INDEMNIFICATION. You agree to indemnify and hold the Company (and its officers, employees, and agents) harmless, including costs and attorneys’ fees, from any claim or demand made by any third party due to or arising out of (a) your use of the Site, (b) your violation of these Terms, (c) your violation of applicable laws or regulations, or (d) your User Content. Company reserves the right, at your expense, to assume the exclusive defense and control of any matter 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 the Company. The Company will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.
13. DISCLAIMERS
THE SITE IS PROVIDED ON AN “AS-IS” AND “AS AVAILABLE” BASIS, AND COMPANY (AND OUR SUPPLIERS) EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING ALL WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE (AND OUR SUPPLIERS) MAKE NO WARRANTY THAT THE SITE WILL MEET YOUR REQUIREMENTS, WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS, OR WILL BE ACCURATE, RELIABLE, FREE OF VIRUSES OR OTHER HARMFUL CODE, COMPLETE, LEGAL, OR SAFE. IF APPLICABLE LAW REQUIRES ANY WARRANTIES WITH RESPECT TO THE SITE, ALL SUCH WARRANTIES ARE LIMITED IN DURATION TO NINETY (90) DAYS FROM THE DATE OF FIRST USE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
14. LIMITATION ON LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL THE COMPANY (OR OUR SUPPLIERS) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS, OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM OR RELATING TO THESE TERMS OR YOUR USE OF, OR INABILITY TO USE, THE SITE, EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. ACCESS TO, AND USE OF, THE SITE IS AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR COMPUTER SYSTEM, OR LOSS OF DATA RESULTING THEREFROM.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO THIS AGREEMENT (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO A MAXIMUM OF FIFTY U.S. DOLLARS (U.S. $50). THE EXISTENCE OF MORE THAN ONE CLAIM WILL NOT ENLARGE THIS LIMIT. YOU AGREE THAT OUR SUPPLIERS WILL HAVE NO LIABILITY OF ANY KIND ARISING FROM OR RELATING TO THIS AGREEMENT.
THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
15. TERM AND TERMINATION. Subject to this Section, these Terms will remain in full force and effect while you use the Site. We may suspend or terminate your rights to use the Site (including your Account), at any time, for any reason, and at our sole discretion, including for any use of the Site in violation of these Terms. Upon termination of your rights under these Terms, your Account and right to access and use the Site will terminate immediately. You understand that any termination of your Account may involve deletion of the User Content associated with your Account from our live databases. The Company will not have any liability whatsoever to you for any termination of your rights under these Terms, including for termination of your Account or deletion of your User Content. Even after your rights under these Terms are terminated, the following provisions of these Terms will remain in effect: Sections 8.2 through 8.6, Sections 9 through 9.4 and Sections 9.6 through 16.
16. GENERAL
16.1. Changes to the Terms of Use. These Terms are subject to occasional revision, at our sole discretion and are effective immediately when we post them and apply to all access to and use of the Site thereafter. If we make any substantial changes, we may notify you by sending you an email to the last email address you provided to us (if any), and/or by prominently posting notice of the changes to our Site. You are responsible for providing us with your most current email address. In the event that the last email address that you have provided to us is not valid, or for any reason, cannot deliver the notice described above, our dispatch of the email containing such notice will nonetheless constitute effective notice. Continued use of our Site following notice of such changes shall indicate your acknowledgement of such changes and agreement to be bound by the updated terms and conditions.
16.2. Dispute Resolution.
Please read this Arbitration Agreement carefully. It is part of your contract with the Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
(a) Applicability of Arbitration Agreement. All claims and disputes (excluding claims for injunctive or other equitable relief as set forth below) in connection with the Terms or the Services that cannot be resolved informally or in small claims court shall be resolved by binding arbitration on an individual basis under the terms of this Arbitration Agreement. Unless otherwise agreed to, all arbitration proceedings shall be held in English. This Arbitration Agreement applies to you and the Company, and to any subsidiaries, affiliates, agents, employees, predecessors in interest, successors, and assigns, as well as all authorized or unauthorized users or beneficiaries of Services provided under the Terms.
(b) 30 Day Opt-Out Period. If you do not wish to be bound by the arbitration and class action waiver provisions in this Section, you must notify us in writing within 30 days of the date that you first accept these Terms (unless a longer period is required by applicable law). Your written notice must be mailed to us at the following address: 330 E Liberty St, Ann Arbor, MI 48104. Your written notice must include: (i) your name, (ii) your email and mailing addresses, and (iii) a statement that you do not wish to resolve disputes with us through arbitration. If you do not notify us in accordance with this Section 16(b), you agree to be bound by the arbitration and class action waiver provisions of these Terms, including such provisions in any Terms revised after the date of your first acceptance. If we make any changes to the arbitration and class action waiver provisions of these Terms (other than a change to the address at which we will receive notices of dispute, opt-out notices, or rejections of future changes to the arbitration and class action waiver provisions of these Terms), you may reject any such change by sending us written notice within 30 days of the change to the address set forth in this Section 16(b). This notification affects these Terms only; if you previously entered into other arbitration agreements with us or enter into other such agreements in the future, your notification that you are opting out of the arbitration provision in these Terms shall not affect the other arbitration agreements between you and us. You may only submit an individual opt out on your own behalf. Any attempt to opt out more than one individual in an opt out request is invalid as to all such requests.
(c) Notice Requirement and Informal Dispute Resolution. Before either party may seek arbitration, the party must first send to the other party a written Notice of Dispute (“
Notice”) describing the nature and basis of the claim or dispute, and the requested relief. A Notice to the Company should be sent to: BuyMySpot, LLC, 330 E Liberty St, Ann Arbor, MI 48104. After the Notice is received, you and the Company may attempt to resolve the claim or dispute informally. If you and the Company do not resolve the claim or dispute within thirty (30) days after the Notice is received, either party may begin an arbitration proceeding. The amount of any settlement offer made by any party may not be disclosed to the arbitrator until after the arbitrator has determined the amount of the award, if any, to which either party is entitled.
(d) Arbitration Rules. Arbitration shall be initiated through the American Arbitration Association (“
AAA”), an established alternative dispute resolution provider (“
ADR Provider”) that offers arbitration as set forth in this section. If AAA is not available to arbitrate, the parties shall agree to select an alternative ADR Provider. The rules of the ADR Provider shall govern all aspects of the arbitration, including but not limited to the method of initiating and/or demanding arbitration, except to the extent such rules are in conflict with the Terms. The AAA Consumer Arbitration Rules (“
Arbitration Rules”) governing the arbitration are available online at www.adr.org or by calling the AAA at 1-800-778-7879. The arbitration shall be conducted by a single, neutral arbitrator. Any claims or disputes where the total amount of the award sought is less than Ten Thousand U.S. Dollars (US $10,000.00) may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount of the award sought is Ten Thousand U.S. Dollars (US $10,000.00) or more, the right to a hearing will be determined by the Arbitration Rules. Any hearing will be held in a location within 100 miles of your residence, unless you reside outside of the United States, and unless the parties agree otherwise. If you reside outside of the U.S., the arbitrator shall give the parties reasonable notice of the date, time and place of any oral hearings. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. If the arbitrator grants you an award that is greater than the last settlement offer that the Company made to you prior to the initiation of arbitration, the Company will pay you the greater of the award or $2,500.00. Each party shall bear its own costs (including attorney’s fees) and disbursements arising out of the arbitration and shall pay an equal share of the fees and costs of the ADR Provider.
(e) Additional Rules for Non-Appearance Based Arbitration. If non-appearance-based arbitration is elected, the arbitration shall be conducted by telephone, online and/or based solely on written submissions; the specific manner shall be chosen by the party initiating the arbitration. The arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise agreed by the parties.
(f) Time Limits. If you or the Company pursue arbitration, the arbitration action must be initiated and/or demanded within the statute of limitations (i.e., the legal deadline for filing a claim) and within any deadline imposed under the AAA Rules for the pertinent claim.
(g) Authority of Arbitrator. If arbitration is initiated, the arbitrator will decide the rights and liabilities, if any, of you and the Company, and the dispute will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages, and to grant any non-monetary remedy or relief available to an individual under applicable law, the AAA Rules, and the Terms. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and the Company.
(h) Waiver of Jury Trial. THE PARTIES HEREBY WAIVE THEIR CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY, except as otherwise provided herein. The parties instead elect that all claims and disputes shall be resolved by arbitration under this Arbitration Agreement (or by a judge or magistrate in small claims court). Arbitration procedures are typically more limited, more efficient and less costly than rules applicable in a court and are subject to very limited review by a court. In the event any litigation should arise between you and the Company in any state or federal court in a suit to vacate or enforce an arbitration award or otherwise, YOU AND THE COMPANY WAIVE ALL RIGHTS TO A JURY TRIAL, instead electing that the dispute be resolved by a judge.
(i) Waiver of Class or Consolidated Actions. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED.
(j) Confidentiality. All aspects of the arbitration proceeding, including, but not limited to, the award of the arbitrator and compliance therewith, shall be strictly confidential. The parties agree to maintain confidentiality unless otherwise required by law. This paragraph shall not prevent a party from submitting to a court of law any information necessary to enforce this Agreement, to enforce an arbitration award, or to seek injunctive or equitable relief.
(k) Severability. If any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable by a court of competent jurisdiction, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Agreement shall continue in full force and effect.
(l) Right to Waive. Any or all of the rights and limitations set forth in this Arbitration Agreement may be waived by the party against whom the claim is asserted. Such waiver shall not waive or affect any other portion of this Arbitration Agreement.
(m) Survival of Agreement. This Arbitration Agreement will survive the termination of your Account and your relationship with the Company.
(n) Small Claims Court. Notwithstanding the foregoing, either you or the Company may bring an individual action in small claims court.
(o) Emergency Equitable Relief. Notwithstanding the foregoing, either party may seek emergency equitable relief before a state or federal court in order to maintain the status quo pending arbitration. A request for interim measures shall not be deemed a waiver of any other rights or obligations under this Arbitration Agreement.
(p) Claims Not Subject to Arbitration. Notwithstanding the foregoing, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark or trade secrets shall not be subject to this Arbitration Agreement.
(q) Courts. In any circumstances where the foregoing Arbitration Agreement permits the parties to litigate in court, the parties hereby agree to submit to the personal jurisdiction of the courts located within Washtenaw County, Michigan.
16.3. Export. The Site may be subject to U.S. export control laws and may be subject to export or import regulations in other countries. You agree not to export, re-export, or transfer, directly or indirectly, any U.S. technical data acquired from the Company, or any products utilizing such data, in violation of the United States export laws or regulations.
16.4. Disclosures. The Company is located at the address in Section 18. If you are a California resident, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Product of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
16.5. Electronic Communications. The communications between you and the Company use electronic means, whether you use the Site or send us emails, or whether the Company posts notices on the Site or communicates with you via email. For contractual purposes, you: (a) consent to receive communications from the Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that the Company provides to you electronically satisfy any legal requirement that such communications would satisfy if they were to be in hardcopy writing. The foregoing does not affect your non-waivable rights.
16.6. Entire Terms. These Terms and the Company’s
Privacy Policy constitute the sole and entire agreement between you and us regarding the use of the Site and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site. The section titles in these Terms are for convenience only and have no legal or contractual effect. The word “including” means “including without limitation”.
Neither you nor the Company is an agent or partner of the other. These Terms, and your rights and obligations herein, may not be assigned, subcontracted, delegated, or otherwise transferred by you without the Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void. The Company may freely assign these Terms, and the Terms shall be binding upon assignees.
16.7. Waiver, Severability, Governing Law and Jurisdiction. Our failure to exercise or enforce any right or provision of these Terms shall not operate as a waiver of such right or provision.
If any provision of these Terms is, for any reason, held to be invalid or unenforceable, the other provisions of these Terms 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.
All matters relating to the Site and these Terms, and any dispute or claim arising therefrom or related thereto (in each case, including non-contractual disputes or claims), shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule (whether of the State of Michigan or any other jurisdiction).
16.8. Copyright and Trademark Information. All copyrights are property of the Company. All trademarks, logos and service marks (“
Marks”) displayed on the Site are our property or the property of third parties. You are not permitted to use these Marks without our prior written consent or the written consent of the Marks’ respective owners.
16.9. Copyright Complaint. Pursuant to the Digital Millennium Copyright Act, 17 U.S.C. §512(c), the Company has adopted a policy that provides for the removal of any infringing materials and for the termination, in appropriate circumstances, of users of our Site who are repeat infringers of intellectual property rights, including copyrights. If you believe that there is content that infringes a copyright on the Site and wish for it to be removed, please provide the following information to help@buymyspot.com:
1. A physical or electronic signature (i.e., /s/NAME) of a person authorized to act on behalf of the owner of the copyright that is allegedly infringed.
2. Identification of the copyrighted work claimed to have been infringed.
3. Identification of the material that is claimed to be infringing and information reasonably sufficient to permit the service provider to locate the material.
4. Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted.
5. A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner.
6. A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of the copyright that is allegedly infringed.
17. ACCESSING THE SITE ON APPLE DEVICES OR VIA THE APPLE APP OR GOOGLE PLAY STORES
17.1. Apple Device and Application Terms. In the event you are accessing the Site on a Device provided by Apple, Inc. (“
Apple”) or through the Apple App Store, the following shall apply:
a. Both you and the Company acknowledge that these Terms are contracted between you and the Company only, and not with Apple, and that Apple is not responsible for the Site or Services;
b. The Site is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
c. You will only use the application in connection with an Apple Device that you own or control;
d. You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Site;
e. In the event of any failure of the Site to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Site;
f. You acknowledge and agree that the Company, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Site;
g. You acknowledge and agree that, in the event of any third party claim that the Site or your possession and use of the Site infringes that third party’s intellectual property rights, the Company, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
h. You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
i. Both you and the Company acknowledge and agree that, in your use of the Site, you will comply with any applicable third party terms of agreement which may affect or be affected by such use; and
j. Both you and the Company acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
17.2. Google Play Store Terms. By downloading the Site from Google Play (or its successors) operated by Google, Inc. or one of its affiliates (“
Google”), you specifically acknowledge and agree that:
a. to the extent there is any conflict between (a) the Google Play Terms of Services and the Google Play Business and Program Policies or such other terms which Google designates as default end user license terms for Google Play (all of which together are referred to as the “
Google Play Terms”), and (b) the other terms and conditions in these Terms, the Google Play Terms shall apply with respect to your use of the Site that you download from Google Play; and,
b. Google does not have any responsibility or liability related to compliance or non-compliance by the Company or you (or any other person) under these Terms or the Google Play Terms.
18. COMPANY CONTACT INFORMATION
BuyMySpot, LLC
ADDRESS: 330 E Liberty St, Ann Arbor, MI 48104
Email: help@buymyspot.com
