Terms & Conditions
STRATAS AUCTIONS INC.
TERMS OF SERVICE
Last Revised on July 30, 2020
Welcome to the Terms of Service (these “Terms”) for the website, stratas.auction (the “Website”) operated on behalf of Stratas Auctions Inc. (“Company”, “we” or “us”), and together with any content, tools, features and functionality offered on or through our Website and the App (the “Services”).
These Terms, together with any related consignment agreements or seller’s terms and conditions you may enter into with the Company (collectively, the “Seller Agreement”), govern your access to and use of the Services, including your use of the Services to list vehicles for sale on the Services as a “Seller” and your use of the Services to submit bids for the purchase of a vehicle posted for auction through our Services as a “Buyer” (such vehicle sales offerings, “Vehicle Offerings”). Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services, including as a Seller or a Buyer. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity's behalf.
Please note that Section 10 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) that you waive your right to participate in class actions, class arbitrations, or representative actions. You have the right to opt-out of arbitration as explained in Section 10.
TABLE OF CONTENTS
- WHO MAY USE THE SERVICES
- USER ACCOUNTS
- AUCTION AND BIDDING PROCESS
- ORDERS FOR VEHICLES AND OTHER PRODUCTS AND/OR SERVICES
- RIGHTS WE GRANT YOU
- OWNERSHIP AND CONTENT
- THIRD PARTY SERVICES AND MATERIALS
- DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
- ARBITRATION AND CLASS ACTION WAIVER
- ADDITIONAL PROVISIONS
WHO MAY USE THESE SERVICES
You must be 13 years of age or older to use the Services. Minors under the age of majority in their jurisdiction but that are at least 13 years of age are only permitted to use the Services if the minor’s parent or guardian accepts these Terms on the minor’s behalf prior to use of the Services. Children under the age of 13 are not permitted to use the Services. By using the Services, you represent and warrant that you meet these requirements.
- USER ACCOUNTS
- Creating and Safeguarding your Account. To use certain of the Services, you may need to create an account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit, terminate and update your Account via the following means. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at firstname.lastname@example.org if you know or have any reason to suspect that your Account or password have been stolen, misappropriated or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You hereby agree that if you terminate your Account you shall remain liable for any outstanding obligations with respect to use of your Account prior to termination, including for any past sales or purchases as applicable. In the event you are a Buyer and you terminate your Account after winning a bid on a Vehicle Offering but prior to paying the Full Purchase Amount, or otherwise purchase any Other Offering but have not yet paid the purchase price for such Other Offering, the Company may, without any notice to you, rescind any and all outstanding purchases made by you that you have not paid for in full, including any purchased Vehicle Offerings.
- AUCTION AND BIDDING PROCESS
- Interactions with Other Users; Company as Agent; and Transactions Concluded Through the Services. You are responsible for your interactions with other users. The Company reserves the right, but is not obligated, to monitor interactions between you and other users, and the Company shall not be liable for your interactions with other users, or for any user’s actions or inactions. The Company offers for sale Vehicle Offerings as an exclusive agent for Sellers, and is not responsible for any breach or default by Seller or Buyer. Unless otherwise agreed upon in writing and except as set forth in these Terms, the Company is not and shall not be a party to any vehicle sale contract between a Buyer and a Seller.
- Seller Obligations. Each Seller agrees to provide the information requested by the Company in connection with a Vehicle Offering, and to abide by the terms of the Seller Agreement that Seller enters into with the Company with respect to any Vehicle Offering. In the event of any conflict between any terms of the Seller Agreement and these Terms, the terms and conditions of the Seller Agreement shall supersede and control.
- Buyer Due Diligence and Bidding Process.
- In order to bid for a Vehicle Offering, a Buyer must satisfy all of the Company’s Buyer registration requirements, which may include, but are not limited to (i) being at least 18 years of age, (ii) a government-issued form of identification (e.g. a copy of your driver’s license or passport), (iii) your address, and (iv) your credit card information. If Buyer fails to provide the Company’s registration requirements or any additional information or documentation requested by the Company, the Company may, in the Company’s sole discretion, prevent Buyer from registering to bid for a Vehicle Offering.
- Vehicle Offerings are available for inspection during (i) the preview period in which the Vehicle Offering is available for viewing and inspection prior to the Vehicle Offering becoming available for auction, as predetermined by the Company and Seller, (ii) the period beginning on the hour the Vehicle Offering is offered for sale on through the Services and ending seven (7) days later at the same hour (unless a different auction period is specifically set forth on the Vehicle Offering listing) (the “Auction Period”), and (iii) if applicable, for 20 days following the Auction Period (the “Post-Auction Period”) if the Vehicle Offering is not sold during the Auction Period, as determined in the Company’s sole discretion, and we recommend that Buyer conduct an in-person inspection of the applicable vehicle. Each Buyer acknowledges and agrees that it is responsible for any and all due diligence of the Vehicle Offering that Buyer is interested in prior to bidding, including conducting in-person inspections and verifying the condition, authenticity, value, title, quality and description of the Vehicle Offering, and the veracity of Seller’s representations related thereto. To schedule an inspection of any Vehicle Offering, please make the appropriate arrangements direct in the “Schedule Viewing Appointment” button found on the Vehicle Offering’s listing page. For additional questions related to vehicle inspection, please contact the Company via email at email@example.com or via telephone at 310-749-0174.
- Additionally, the Company may, from time to time, recommend third party inspection services through the Services. Each Buyer hereby acknowledges and agrees that the Company has no responsibility with respect to any services rendered by any third parties which may be recommended through the Services, including, without limitation, any third party inspection services recommended through the Services. Buyer acknowledges that the Company may receive a share of sales or other compensation from any third party services offered through the Services.
- The Company does not assume any obligation or responsibility for Buyer’s due diligence, and has no obligation to undertake any inspection or take any action with respect to obtaining or verifying any information related to any Vehicle Offering.
- The Company may offer as part of the Services to provide a Buyer with a written condition report with respect to a Vehicle Offering. You agree that any condition report with respect to a Vehicle Offering provided by the Company, its officers, employees or agents (whether oral or in writing) is a statement of opinion only, and may not be relied upon as any indication of the actual condition and quality of the Vehicle Offering. The provision of any such condition reports shall not be deemed to create representations or warranties of any kind, and in no event shall the Company or any of its directors, employees, officers, agents or representatives have any liability or responsibility for any matters relating to or arising out of such condition reports and/or the condition of any Vehicle Offering, regardless of the content or omissions of, or any errors in, such condition reports, including the inclusion or omission of any discussion of repairs, damages, replacement parts or restoration.
- The Company reserves the right, in its sole discretion, to reject any bid of a Buyer.
- Each bid submitted by a Buyer via the Services is binding on the Buyer with respect to any fees owed by the Buyer to the Company, and a Buyer may not retract a bid made via the Services for any reason. The Vehicle Offering shall be sold to the highest bidding Buyer at the end of the Auction Period, at which moment a binding contract of sale is made between Seller and Buyer. Except in cases where the Company is acting as a selling principal of a Vehicle Offering, the Company is not a party to such contract of sale.
- Title to the Vehicle Offering shall pass from Seller to Buyer when the Full Purchase Amount (defined below) has been received by the Company; the Company makes no representation or warranty with respect to the quality or marketability of such title, or whether such title and related documentation satisfy any governmental requirements for valid title and registration; Buyer bears the sole responsibility for all confirming all such items.
- Buyer Credit Card Hold and Pre-Authorization. In order for a Buyer to register a bid for a Vehicle Offering, the Company may require a hold and pre-authorization of $2,500 USD to be placed on the Buyer’s credit card from the date of the bid until the end of the Auction Period (a “Credit Card Hold”). If a Buyer is not the winning bidder of the Vehicle Offering, the hold on Buyer’s credit card will be removed from the credit card. If a Buyer is the winning bidder for the Vehicle Offering, the Buyer will be required to pay the Full Purchase Amount in accordance with these Terms.
- Buyer’s Service Fee. In each instance a Buyer purchases a Vehicle Offering through the Services, such Buyer hereby acknowledges and agrees that it shall pay the Company a service fee based on a percentage of the sale price of such Vehicle Offering, such percentage to be specified on the applicable Vehicle Offering listing, together with any applicable sales or use tax and any fees or duty due on the Vehicle Offering.
- Vehicle Registration; Taxes and Related Fees; Export License.
- Each Buyer acknowledges that governmental laws may require that a Vehicle Offering be registered with applicable governmental authorities, and that a certificate of title may be, and often is, required in order to obtain such registration. Each Buyer acknowledges and agrees that the Company makes no representations or warranty with respect to any registration or title document which may accompany or relate to the Vehicle Offering, or with respect to any future issuance of any title or registration document related to the Vehicle Offering. Each Buyer agrees that it is Buyer’s sole responsibility to conduct its own independent investigation as to the registrability of the Vehicle offering and any required registrations applicable under law.
- In the event the Company does not collect sales tax and documentation or licensing fees or other fees on registrable Vehicle Offerings or a Buyer fails to collect such taxes or fees for any reason, such Buyer agrees that it shall be solely responsible for the payment of any and all sales or use tax arising from the sale and delivery of any Vehicle Offering purchased through the Services, as well as any required registration and related taxes, fees and documentation. Each Buyer hereby agrees to defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with (i) any failure to register a Vehicle Offering as may be required under applicable law, and (ii)any unpaid sales or uses taxes and any unpaid documentation and licensing fees and related costs, interest and penalties arising from the sale of a Vehicle Offering to a Buyer.
- Each Buyer acknowledges and agrees that it is a Buyer’s sole responsibility to obtain any required licenses, permits or certificates of title to export a Vehicle Offering from the United States (and/or import a Vehicle Offering into any foreign jurisdiction), including with respect to the payment of any and all costs or fees related thereto.
- Buyer Insurance Requirements.
- Unless otherwise mutually agreed in writing, each Buyer agrees, at no expense to the Company, to cause each purchased Vehicle Offering to be and remain insured from the date of purchase through the auction sale and until the Vehicle Offering ceases to be in the Company’s care, custody and control, against theft, loss and damage, for an amount equal to the Full Purchase Amount.
- Each Buyer expressly acknowledges and agrees that the Company shall be under no obligation to carry any insurance policy against risk of any loss, theft or damage to the Vehicle Offering at any time and the Company assumes no liability for any loss or theft of or damage to the Vehicle Offering.
- The policies with respect to such insurance shall be payable to the Company and shall be satisfactory to the Company as to form, amount and insurer. Buyer shall furnish certificates, policies or endorsements to the Company as proof of such insurance naming the Company as an additional insured.
- Post-Auction Period Vehicle Offerings Each Seller and Buyer hereby acknowledges and agrees that the Company’s assistance in negotiating a post-auction sale during the Post-Auction Period will not in any way make the Company a party to such sale or other transaction between Seller and Buyer.
- Absentee Bidding. The Company, as part of the Services, may offer absentee bidding services whereby the Company, acting as Buyer’s exclusive agent, would bid on Vehicle Offerings on behalf of Buyer. Any such absentee bidding services will be provided pursuant to a separate agreement entered into by Buyer and the Company in writing (an “Absentee Bidding Agreement”). In the event of any conflict between any terms of the Absentee Bidding Agreement and these Terms, the terms and conditions of the Absentee Bidding Agreement shall control. In connection with the provision of absentee bidding Services, each Buyer acknowledges and agrees that the Company shall not be responsible for any errors or omissions with respect to the absentee bidding process, including any failure to execute any bid requested by Buyer. Buyer acknowledges and agrees that each absentee bid submitted by the Company on behalf of Buyer via the absentee bidding Services is binding on the Buyer with respect to any fees owed by the Buyer to the Company, and Buyer may not retract an absentee bid made via the absentee bidding Services for any reason. Buyer acknowledges and agrees that upon the submission of any absentee bid for a Vehicle Offering, Buyer has entered into a binding contract with Seller to purchase such Vehicle Offering if the bid is successful and Buyer wins the sale.
- ORDERS FOR VEHICLES AND OTHER PRODUCTS AND/OR SERVICES
- Payment. In addition to Vehicle Offerings, the Services may permit you to purchase certain other physical products or services through the Services, including products or services of third parties that are offered through the Services (collectively, “Other Offerings” and together with the Vehicle Offerings, the “Offerings”), and that you may be required to pay the Company commissions, deposits, or fees in order to access and use certain of the Services. You acknowledge and agree that all information you provide with regards to a purchase of Offerings, including, without limitation, credit card, PayPal, or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice and in our sole and complete discretion, to (a) discontinue, modify, or limit the available quantity of, any Offerings, and (b) refuse to allow any user to purchase any Offering or deliver such Offerings to a user or a user designated address. When you purchase Offerings, you (i) agree to pay the price for such Offerings as set forth in the applicable Service, including any deposits, fees or other costs, and all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”), and (ii) with respect to Other Offerings only, authorize us to charge your credit card or other payment method for the Full Purchase Amount. With respect to Vehicle Offerings, you must pay the Full Purchase Amount to the Company within five (5) business days of the close of the auction for such Vehicle Offering (the “Vehicle Offering Payment Deadline”) in accordance with the payment method details provided by the Company to Buyer at the close of such auction. The Services may allow you to purchase Offerings and designate them to be delivered or provided at a future date. In such instance, with respect to Other Offerings you acknowledge and agree that we may charge your credit card or other payment method for the Full Purchase Amount on the date of purchase, rather than on the ultimate date of delivery or provision of the applicable Offering. Unless otherwise noted, all currency references are in U.S. Dollars. All fees, deposits and charges are payable in accordance with payment terms in effect at the time the fee, deposit or charge becomes payable. Payment can be made by credit card, debit card, or through PayPal or other means that we may make available. Orders will not be processed until payment has been received in full, and any holds on your account by PayPal or any other payment processor are solely your responsibility.
- Non-Payment. In the event a Buyer fails to pay all amounts owed by the Vehicle Offering Payment Deadline with respect to a Vehicle Offering, or otherwise fails to pay in full for any order or Other Offering through the Services, the Company may, in its sole discretion and without any notice to Buyer, exercise any remedy it may have at law or in equity, including, without limitation, taking one or more of the following actions: (i) cancel or rescind the sale of a Vehicle Offering, order or Other Offering, as applicable, (ii) repossess any Vehicle Offering which may have been transferred to such Buyer, or (iii) institute legal proceedings against such Buyer.
- Late-Payments. In the event a Buyer fails to pay the Full Purchase Amount for a Vehicle Offering by the Vehicle Offering Payment Deadline, the Company reserves the right to impose a late fee on such Buyer at a rate equal to ten percent (10%) per annum (or the maximum amount permitted by law, if less) of the Full Buyer’s Premium, from the date first owed until paid.
- Changes and Pricing; Returns and Rescission.
- The Company may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any Offerings. While we attempt to be as accurate as we can in our descriptions for the Offerings, we do not warrant that Offering descriptions, including vehicle descriptions, are accurate, complete, reliable, current, or error-free. If an Other Offering itself is not as described on the Services, your sole remedy is to return it (for physical products, in unused condition).
- The Company shall have no responsibility with respect to any Vehicle Offerings, and shall be under no obligation to accept any returns or offer any remedies in connection with a Vehicle Offering; provided, however, that if a Buyer has concerns that a material misrepresentation was made with respect to a purchased Vehicle Offering, Buyer may, within twenty (20) days of payment of the Full Purchase Amount, submit such concern to firstname.lastname@example.org, and the Company shall review such submitted concern regarding a material misrepresentation. In the event the Company finds, in its sole discretion, that the alleged material misrepresentation (a) could not have been reasonably uncovered through Buyer’s own due diligence during the bidding process and (b) materially decreases the value or functionality of the Vehicle Offering, the Company shall work in good faith with such Buyer and the applicable Seller to reach a solution, and may, in its sole discretion permit Buyer to rescind the purchase of such Vehicle Offering; provided, however, that such Buyer agrees to defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with any Buyer-alleged damages or liabilities related thereto (including, but not limited to, any expenses related to such concern of material misrepresentation raised by Buyer (e.g. repair, inspection, travel and storage expenses).
- The inclusion of any Offerings for purchase through the Services at a particular time does not imply or warrant that the Offerings will be available at any other time. We reserve the right to change prices for Other Offerings displayed on the Services at any time, and to change price for Vehicle Offerings displayed on the Services at any time at Seller’s request, and to correct pricing errors that may inadvertently occur (and to cancel any orders in our sole discretion that were purchased with pricing errors). All such changes shall be effective immediately upon posting of such new Offering prices to the Services and/or upon making the customer or Buyer aware of the pricing error (as applicable).
- Order Acceptance; Shipment; Risk of Loss. Once we receive your order for an Offering, we will provide you with an order confirmation. Your receipt of an order confirmation, however, does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. We reserve the right at any time after receiving your order to accept or decline your order for any reason and in our sole discretion. If we cancel an order after you have already been billed, then we will refund the billed amount. Title and risk of loss for any purchases of physical products that constitute Other Offerings pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you), and notwithstanding anything to the contrary in Section 4.1, the portion of any order that is partially shipped may be charged at the time of shipment. All orders for Other Offerings that are physical products are shipped using one of our third party couriers. Online tracking may be available at our courier’s website (for example, FedEx), though we make no warranties regarding its availability because it is not under our control. While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific date or time. With respect to Vehicle Offerings only, risk of loss for any purchase of a Vehicle Offering passes to Buyer at the time the contract of sale is made, and neither the Company nor any of its employees or agents shall be liable for loss or damages of a Vehicle Offering from and after that time. Buyer acknowledges and agrees that Buyer shall pick up the purchased Vehicle Offering from its designated location within ten (10) business days of payment of the Full Purchase Amount for such Vehicle Offering, at Buyer’s sole cost and expense. Neither the Company nor any Seller shall be under any obligation to deliver the purchased Vehicle Offering to Buyer, unless separately agreed upon in writing.
- Manufacturer's Warranty and Seller and Manufacturer Disclaimers. In addition to Vehicle Offerings made available on the Services by Sellers, certain of the Other Offerings made available on the Services are manufactured by third parties (“Third Party Offerings”). The availability of Vehicle Offerings and Third Party Offerings through the Services does not indicate an affiliation with or endorsement by us of any Vehicle Offering or its Seller or Third Party Offering or its manufacturer. Accordingly, we do not provide any warranties with respect to the Vehicle Offerings or Third Party Offerings. However, the Third Party Offerings offered on our Services are covered by the manufacturer's warranty as detailed in the manufacturer’s documentation included with the Third Party Offering. To obtain warranty service for defective Third Party Offerings, please follow the instructions included in the manufacturer's warranty.
- No Delivery to Children. In furtherance of our policy of not collecting personal information from persons under the age of 13, users are not allowed to give the Company the personal information of any persons under the age of 13 for delivery or shipping purposes or any other reason.
- RIGHTS WE GRANT YOU
- License Grant. Subject to your compliance with these Terms, the Company hereby grants to you, a personal, worldwide, royalty-free, non-assignable, non-sublicensable, non-transferrable, and non-exclusive license to use the software and online services provided to you as part of the Services (and to download a single copy of the App onto the equipment or device specified by us). This license has the sole purpose of enabling you to use and enjoy the benefit of the Services as provided by us, in the manner permitted by these Terms and subject to the use restrictions described below. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance or repair of the Service or other actions that Company, in its sole discretion, may elect to take.
- Restrictions On Your Use of the Services. You may not do any of the following, unless applicable laws or regulations prohibit these restrictions or you have our written permission to do so:
- download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services;
- duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
- use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
- use automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
- exploit the Services for any commercial purpose, including without limitation communicating or facilitating
- access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party's access to or use of the Services or use any device, software or routine that causes the same;
- attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
- circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
- use any robot, spider, crawlers or other automatic device, process, software or queries that intercepts, “mines,” scrapes or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
- introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
- use the Services for illegal, harassing, unethical, or disruptive purposes;
- impersonate another individual or entity, conceal or attempt to conceal your identity, participate in fraudulent activities, or otherwise misrepresent your affiliation with an individual or entity;
- violate any applicable law or regulation in connection with your access to or use of the Services; or
- access or use the Services in any way not expressly permitted by these Terms.
- OWNERSHIP AND CONTENT
- Ownership of the Services. The Services, including their "look and feel" (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content (other than Your Content), including, without limitation, the exclusive right to create derivative works.
- Ownership of Trademarks. The Company’s name, the Company’s logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
- Ownership of Company-Created Vehicle Offering Content. You agree that the Company owns all intellectual right title and interest in and to all photographs, videos, illustrations, written descriptions of or any other content related to the Vehicle Offerings created by the Company or on the Company’s behalf (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. For the avoidance of doubt, such ownership rights include, without limitation, the right to use, publish, display and reproduce any and all of the foregoing for any purpose and in any media at the Company’s discretion at any time in any manner whether before and/or after any Vehicle Offering sale, and you shall not have any right, title or interest to any of the foregoing. You acknowledge and agree that you will not use, reproduce or publish for any purpose any content created the Company or on the Company’s behalf.
- Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
- Your Content License Grant. In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services (“Your Content”). In order to operate the Service, we must obtain from you certain license rights in Your Content so that actions we take in operating the Service are not considered legal violations. Accordingly, by using the Service and uploading Your Content, you grant us a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) Your Content, as well as your name, persona and likeness included in any of Your Content or any information associated with Your Content (such as, for example, your username, profile picture and social media handle(s)), but solely as required to be able to operate and provide and promote the Services. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as Your Content is stored with us), and include a right for us to make Your Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose Your Content to third parties if we determine such access is necessary to comply with our legal obligations. As part of the foregoing license grant you agree that the other users of the Services shall have the right to comment on and/or tag Your Content and/or to use, publish, display, modify or include a copy of Your Content as part of their own use of the Services; except that the foregoing shall not apply to any of Your Content that you post privately for non-public display on the Services. By posting or submitting Your Content through the Services, you represent and warrant that (a) you are at least 18 years of age, (b) you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content and (c) Your Content does not contain any false or misleading information, or offensive, threatening, hateful, libelous, defamatory or obscene content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above. We may, at any time, request that you provide us with any documentation, evidence, substantiation or releases necessary in order to verify that you are complying with these Terms.
- Notice of Infringement – DMCA Policy
If you believe that any text, graphics, photos, audio, videos or other materials or works uploaded, downloaded or appearing on the Services have been copied in a way that constitutes copyright infringement, you may submit a notification to our copyright agent in accordance with 17 USC 512(c) of the Digital Millennium Copyright Act (the “DMCA”), by providing the following information in writing:
- identification of the copyrighted work that is claimed to be infringed;
- identification of the allegedly infringing material that is requested to be removed, including a description of where it is located on the Service;
- information for our copyright agent to contact you, such as an address, telephone number and e-mail address;
- a statement that you have a good faith belief that the identified, allegedly infringing use is not authorized by the copyright owners, its agent or the law;
- a statement that the information above is accurate, and under penalty of perjury, that you are the copyright owner or the authorized person to act on behalf of the copyright owner; and
- the physical or electronic signature of a person authorized to act on behalf of the owner of the copyright or of an exclusive right that is allegedly infringed. Notices of copyright infringement claims should be sent by mail to: Stratas Auctions Inc., 114 Standard St. Ste. B, El Segundo, CA. 90245 or by e-mail to email@example.com. It is our policy, in appropriate circumstances and at our discretion, to disable or terminate the accounts of users who repeatedly infringe copyrights or intellectual property rights of others.A user of the Services who has uploaded or posted materials identified as infringing as described above may supply a counter-notification pursuant to sections 512(g)(2) and (3) of the DMCA. When we receive a counter-notification, we may reinstate the posts or material in question, in our sole discretion. To file a counter-notification with us, you must provide a written communication (by fax or regular mail or by email) that sets forth all of the items required by sections 512(g)(2) and (3) of the DMCA. Please note that you will be liable for damages if you materially misrepresent that content or an activity is not infringing the copyrights of others.
- THIRD PARTY SERVICES AND MATERIALS
- Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
- DISCLAIMERS, LIMITATIONS OF LIABILITY AND INDEMNIFICATION
- Disclaimers. Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. All Vehicle Offerings are sold “AS IS” and “WHERE IS”. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “the Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; (e) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services; (f) any user content, including Your Content, made available or visible to users through the Services; (g) any of your interactions with other users or other individuals or entities; (h) any Vehicle Offerings, including but not limited to (i) the condition, originality, authenticity, origin, provenance, previous use or ownership, manufacturing or restoration processes, year, serial number, make, model, options and tools, engine hours, and mileage of any Vehicle Offering or component of any Vehicle Offering; (ii) any failure or delay in executing a Buyer’s bids or any errors contained in bids placed through the Services; (iii) any error, omission or misstatement in the description of any Vehicle Offering on its listing page; and (iv) except in cases in which the Company is acting as selling principal with respect to a Vehicle Offering, any breach or default to a contract of sale between Seller and Buyer. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
- Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING DIRECT, INDIRECT, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED THE AMOUNT OF ONE HUNDRED DOLLARS ($100.00), OR THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR OFFERINGS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
- Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your access to or use of the Services; (d) Your Content, (e) your interactions with other users or any other person or entity, or (f) your negligence or wilful misconduct.
- ARBITRATION AND CLASS ACTION WAIVER
- Informal Process First. You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
- Arbitration Agreement and Class Action Waiver. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures (the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration. Notwithstanding the foregoing, you and the Company will have the right to bring an action in a court of proper jurisdiction for injunctive or other equitable or conservatory relief, pending a final decision by the arbitrator. You may instead assert your claim in “small claims” court, but only if your claim qualifies, your claim remains in such court and your claim remains on an individual, non-representative and non-class basis.
- Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules. If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose.
- Opt-Out. You have the right to opt-out and not be bound by the arbitration provisions set forth in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your registering to use the Services or agreeing to these Terms, otherwise you shall be bound to arbitrate disputes in accordance with these Terms. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
- ADDITIONAL PROVISIONS
- Phone Calls. Certain portions of the Services may allow us to contact you via telephone. You agree that the Company may contact you via telephone at any of the telephone numbers provided by you or on your behalf in connection with your use of the Services, including for marketing purposes. You understand that you are not required to provide this consent as a condition of purchasing any products or Services.
- Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
- Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. the Company shall not be responsible for the failure to delete or deletion of Your Content. All sections which by their nature should survive the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of this Agreement by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
- Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
- California Residents. If you are a California resident, in accordance with Cal. Civ. Code § 1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112 Sacramento, CA 95834, or by telephone at (800) 952-5210.
- Export Laws. You agree that you will not export or re-export, directly or indirectly, the Services and/or other information or materials provided by the Company hereunder, to any country for which the United States or any other relevant jurisdiction requires any export license or other governmental approval at the time of export without first obtaining such license or approval. In particular, but without limitation, the Services may not be exported or re-exported (a) into any U.S. embargoed countries or any country that has been designated by the U.S. Government as a “terrorist supporting” country, or (b) to anyone listed on any U.S. Government list of prohibited or restricted parties, including the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Person’s List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You are responsible for and hereby agree to comply at your sole expense with all applicable United States export laws and regulations.
- Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws. These Terms are governed by the laws of the State of California, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the state and federal courts located in the Southern District of California. You and the Company agree that the United Nations Convention on Contracts for the International Sale of Goods will not apply to the interpretation or construction of these Terms.
- How to Contact Us. You may contact us regarding the Services or these Terms at: Stratas Auctions Inc., 114 Standard St. Ste. B, El Segundo, CA. 90245, by telephone at 310-749-0174 or by e-mail at email@example.com.