Effective date: July 30, 2021
Welcome to DRIVEDOWN, LLC Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at:
Please read these Terms carefully. They cover important information about Services provided to you. These Terms include information about future changes to these Terms, limitations of liability, a class action waiver and resolution of disputes by arbitration instead of in court. PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES AND/OR OUR WEBSITE INCLUDING BUT NOT LIMITED TO ANY CONTENT THEREOF OR THEREIN, ARE SUBJECT TO ALL THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see "Disclaimer of Warranties; Limitation of Liability" and "Legal Disputes" provisions below). It also contains an Agreement to Arbitrate which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate If you do not opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
ARBITRATION NOTICE AND CLASS ACTION WAIVER: EXCEPT FOR CERTAIN TYPES OF DISPUTES DESCRIBED IN THE ARBITRATION AGREEMENT SECTION BELOW, YOU AGREE THAT DISPUTES BETWEEN YOU AND US WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION.
RELATIONSHIP BETWEEN THE PARTIES
Connecting Car Sellers and Buyers, “The Services.”
DRIVEDOWN, LLC provides The Services only of offering one particular means of connecting those offering cars or other vehicles (“hereinafter collectively “cars”) for sale (“Sellers”) and those looking to acquire cars from Sellers (“Buyers”), The Services.
DRIVEDOWN, LLC, provides only The Services to act as a meeting place only; between Buyers and Sellers. The actual contract for sale for cars listed on The Services is solely between the Seller and Buyer(s).
When we use the word “you” in these Terms, it refers to any user, regardless of whether a Seller, Buyer and/or other registered user or unregistered user, while if we use one of those specific terms, it only applies to that category of user.
You agree that you are making use of the Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
Before purchasingany car from any Seller (hereinafter, a “Seller Car”), Buyers must exercise their own due diligence with regard to the Seller and the Car. Buyers are solely responsible for making their own determinations that the Seller Car is suitable, appropriate, merchantable, desirable best suited and/or safe for the user for all purposes, present, future, known and unknown whether anticipated, unanticipated or unanticipated, disclosed and/or undisclosed.
DRIVEDOWN, LLC is only responsible for connecting Sellers and Buyers, and is not responsible for ensuring that any Seller and/or Car is up to any standard of quality or otherwise and/or has or does not have any particular characteristics, specification and/or attribute of any kind or nature.
DRIVEDOWN, LLC is not responsible for ensuring that information (including credentials) of any Buyer, Seller, Car and/or car provided is accurate, complete and/or or up-to-date. Each Seller acknowledges and agrees that they shall make reasonable efforts to complete the sale of their Car if there is a winning buyer. Each Buyer acknowledges and agrees that if they are the winning buyer in a listing through the Services, their purchase is binding on the buyer, and buyer is solely responsible for all applicable government fees and taxes for the vehicle won through such purchase. Notwithstanding the foregoing, Seller and Buyer express acknowledge and agree that DRIVEDOWN, LLC does not control the actions of any Buyer or Seller, and neither Sellers nor Buyers are or employees, agents or representatives of DRIVEDOWN, LLC and DRIVEDOWN, LLC cannot be held responsible for any action, inaction or omission of any Seller and/or buyer.
DRIVEDOWN, LLC DOES NOT DIRECTLY OR INDIRECTLY OFFER CARS OR ANY OTHER TANGIBLE ITEMS OF ANY KIND OR NATURE FOR SALE TO ANYONE. YOU HEREBY ACKNOWLEDGE THAT DRIVEDOWN, LLC DOES NOT SUPERVISE, DIRECT, CONTROL OR MONITOR SELLERS, SELLERS CARS AND/OR BUYERSS AND EXPRESSLY DISCLAIMS ANY RESPONSIBILITY AND/OR LIABILITY FOR SELLERS, SELLERS CARS AND/OR CARS INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF TITLE, OR CONDITION OF QUALITY OR FITNESS FOR A PARTICULAR PURPOSE, OR COMPLIANCE WITH ANY LAW, REGULATION, OR CODE.
Sellers may not remove a car listing on the Services before the end of such listing. While a Seller Car is listed on the Services, Seller may not list or make available such Seller Car on any auction, dealership, listing service or publication.
Will these Terms ever change?
We are constantly trying to improve our Services, so these Terms may need to change along with our Services. We reserve the right to change the Terms at any time, but if we do, we will place a notice on our site, request your approval of the new terms, send you an email, and/or notify you by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
Children’s Online Privacy Protection Act
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under thirteen (13). We do not knowingly collect or solicit personally identifiable information from children under thirteen (13); if you are a child under thirteen (13), please do not attempt to register for or otherwise use the Services or send us any personal information. If we learn we have collected personal information from a child under thirteen (13), we will delete that information as quickly as possible. If you believe that a child under thirteen (13) may have provided us personal information, please contact us.
What are the basics of using DRIVEDOWN, LLC?
You may be required to sign up for an account, select a password and username (“DRIVEDOWN, LLC User ID”), and provide us with certain information or data, such as your contact information. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your DRIVEDOWN, LLC, a User ID a name that you do not have the right to use, or adopt a user name with the intent to impersonate someone else and/or that may cause confusion and/or offense in others. DRIVEDOWN, LLC reserves the right to require that any user cease using any particular user name at any time and adopt a different user name upon request at any time for any reason. Any user that objects to a request for a change in User ID may elect not to select a new User ID and cease using The Services and/or the website of DRIVEDOWN, LLC. No one may transfer a DRIVEDOWN, LLC account to anyone else without our prior written permission.
By signing up for The Services and selecting a password and/or User ID, you represent and warrant that you are a competent person of legal age and legally able to form a binding contract (or if not, you’ve received your parent’s or guardian’s permission to use the Services and have gotten your parent or guardian to agree to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on that organization’s or entity’s behalf and bind them to these Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own internal, personal use, and not on behalf of or for the benefit of any third party. You will comply with all laws that apply to you, your use of the Services, and your actions and omissions that relate to the Services (for example, Sellers must comply with all laws that relate to the Seller, Seller Cars and Buyers). If your use of the Services is prohibited by applicable laws, then you aren’t authorized to use the Services. DRIVEDOWN, LLC will not authorize any action by you that is in violation of any law, regulation rule or local ordinance. Any legal violations by you are in violation of this agreement and any and all penalties of any kind are and remain your sole responsibility.
Any actions by you that create any violation of the law by DRIVEDOWN, LLC and which may result in prosecution and/or liability on the part of DRIVEDOWN, LLC are expressly prohibited by this agreement, are unauthorized and void this agreement as permitted under the law.
You will not share your DRIVEDOWN, LLC User ID, account or password with anyone, and you must protect the security of your DRIVEDOWN, LLC User ID, account, password and any other access tools or credentials. You’re responsible for any activity associated with your DRIVEDOWN, LLC User ID and account.
What about messaging?
As part of the Services, you may receive communications through the Services, including messages that DRIVEDOWN, LLC sends you (for example, via email). When signing up for the Services, you will receive a welcome message and instructions on how to stop receiving certain marketing messages.
Are there restrictions in how I can use the Services?
You represent, warrant, and agree that you will not contribute any Content or User Submission (each of those terms is defined below) or otherwise use the Services or interact with the Services in a manner that:
(a) infringes or violates the intellectual property rights or any other rights of anyone else (including DRIVEDOWN, LLC);
(b) violates any law or regulation, including, without limitation, any applicable export control laws, privacy laws or any other purpose not reasonably intended by DRIVEDOWN, LLC;
(c) is dangerous, harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, or otherwise objectionable (including, without limitation, by creating multiple accounts for purposes of cheating or gaming the purchasing system);
(d) jeopardizes the security of your DRIVEDOWN, LLC User ID, account or anyone else’s (such as allowing someone else to log in to the Services as you);
(e) attempts, in any manner, to obtain the password, account, or other security information from any other user;
(f) violates the security of any computer network, or cracks any passwords or security encryption codes;
(g) runs Maillist, Listserv, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services, or that otherwise interfere with the proper working of the Services (including by placing an unreasonable load on the Services’ infrastructure);
(h) “crawls,” “scrapes,” or “spiders” any page, data, or portion of or relating to the Services or Content (through use of manual or automated means);
(i) copies or stores any significant portion of the Content; or
(j) decompiles, reverse engineers, or otherwise attempts to obtain the source code or underlying ideas or information of or relating to the Services.
(k) distribute viruses or any other technologies that may harm us or the interests or property of users;
(l) use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with prior express permission;
(m) interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure;
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
How may I use information obtained from other users?
You may not collect any information from or relating to another user (“User Information”), whether via the Services, in the course of offering or making an offer on Seller Cars, or cars as applicable, or otherwise, beyond what is necessary to complete your diligence and the purchase transaction. Upon the conclusion of a listing, you must properly destroy all User Information from or relating to such user and make no further use of it whatsoever. You must collect, use, maintain, and transmit all User Information in compliance with all applicable laws.
What are my rights in the Services?
The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions (as defined below) and so forth (all of the foregoing, the “Content”) are protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won’t use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell, commercialize or otherwise exploit for any purpose any Content not owned by you, (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else’s (including DRIVEDOWN, LLC) rights.
Subject to these Terms, we grant each user of the Services a worldwide, non-exclusive, non-sublicensable and non-transferable license to use (i.e., to download and display locally) Content solely for purposes of using the Services. Use, reproduction, modification, distribution or storage of any Content for any purpose other than using the Services is expressly prohibited without prior written permission from us. You understand that DRIVEDOWN, LLC owns the Services. You won’t modify, publish, transmit, participate in the transfer or sale of, reproduce (except as expressly provided in this Section), create derivative works based on, or otherwise exploit any of the Services. The Services may allow you to copy or download certain Content, but please remember that even where these functionalities exist, all the restrictions in this section still apply.
What about anything I contribute to the Services – do I have to grant any licenses to DRIVEDOWN, LLC or to other users?
Anything you post, upload, share, store, or otherwise provide through the Services is your “User Submission.” Some User Submissions may be viewable by other users. You are solely responsible for all User Submissions you contribute to the Services. You represent that all User Submissions submitted by you are accurate, complete, up-to-date, and in compliance with all applicable laws, rules and regulations.
You agree that you will not post, upload, share, store, or otherwise provide through the Services any User Submissions that: (i) infringe any third party’s copyrights or other rights (e.g., trademark, privacy rights, etc.); (ii) contain sexually explicit content or pornography; (iii) contain hateful, defamatory, or discriminatory content or incite hatred against any individual or group; (iv) exploit minors; (v) depict unlawful acts or extreme violence; (vi) depict animal cruelty or extreme violence towards animals; (vii) promote fraudulent schemes, multi-level marketing (MLM) schemes, get rich quick schemes, online gaming and gambling, cash gifting, work from home businesses, or any other dubious money-making ventures; or (viii) violate any law.
By submitting User Submissions through the Services, you hereby do and shall grant DRIVEDOWN, LLC a worldwide, non-exclusive, perpetual, royalty-free, fully paid, sublicensable and transferable license to use, edit, modify, truncate, aggregate, reproduce, distribute, prepare derivative works of, display, perform, and otherwise fully exploit the User Submissions in connection with this site, the Services and our (and our successors’ and assigns’) businesses, including without limitation for promoting and redistributing part or all of this site or the Services (and derivative works thereof) in any media formats and through any media channels (including, without limitation, third party websites and feeds), and including after your termination of your account or the Services. You also hereby do and shall grant each user of this site and/or the Services a non-exclusive, perpetual license to access your User Submissions through this site and/or the Services, and to use, edit, modify, reproduce, distribute, prepare derivative works of, display and perform such User Submissions, including after your termination of your account or the Services. For clarity, the foregoing license grants to us and our users do not affect your other ownership or license rights in your User Submissions, including the right to grant additional licenses to your User Submissions, unless otherwise agreed in writing. You represent and warrant that you have all rights to grant such licenses to us without infringement or violation of any third party rights, including without limitation, any privacy rights, publicity rights, copyrights, trademarks, contract rights, or any other intellectual property or proprietary rights.
Finally, you understand and agree that DRIVEDOWN, LLC, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
What if I see something on the Services that infringes my copyright?
In accordance with the DMCA, we’ve adopted the following policy toward copyright infringement. We reserve the right to (1) block access to or remove material that we believe in good faith to be copyrighted material that has been illegally copied and distributed by any of our advertisers, affiliates, content providers, members or users and (2) remove and discontinue service to repeat offenders.
(1) Procedure for Reporting Copyright Infringements. If you believe that material or content residing on or accessible through the Services infringes your copyright (or the copyright of someone whom you are authorized to act on behalf of), please send a notice of copyright infringement containing the following information to DRIVEDOWN, LLC' Designated Agent to Receive Notification of Claimed Infringement (our “Designated Agent,” whose contact details are listed below):
(a) A physical or electronic signature of a person authorized to act on behalf of the owner of the copyright that has been allegedly infringed;
(b) Identification of works or materials being infringed;
(c) Identification of the material that is claimed to be infringing including information regarding the location of the infringing materials that the copyright owner seeks to have removed, with sufficient detail so that Company is capable of finding and verifying its existence;
(d) Contact information about the notifier including address, telephone number and, if available, email address;
(e) A statement that the notifier has a good faith belief that the material identified in (1)(c) is not authorized by the copyright owner, its agent, or the law; and
(f) A statement made under penalty of perjury that the information provided is accurate and the notifying party is authorized to make the complaint on behalf of the copyright owner.
(2) Once Proper Bona Fide Infringement Notification is Received by the Designated Agent. Upon receipt of a proper notice of copyright infringement, we reserve the right to:
(a) remove or disable access to the infringing material;
(b) notify the content provider who is accused of infringement that we have removed or disabled access to the applicable material; and
(c) terminate such content provider's access to the Services if he or she is a repeat offender.
(3) Procedure to Supply a Counter-Notice to the Designated Agent. If the content provider believes that the material that was removed (or to which access was disabled) is not infringing, or the content provider believes that it has the right to post and use such material from the copyright owner, the copyright owner's agent, or, pursuant to the law, the content provider may send us a counter-notice containing the following information to the Designated Agent:
(a) A physical or electronic signature of the content provider;
(b) Identification of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or disabled;
(c) A statement that the content provider has a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material; and
(d) Content provider's name, address, telephone number, and, if available, email address, and a statement that such person or entity consents to the jurisdiction of the Federal Court for the judicial district in which the content provider’s address is located, or, if the content provider's address is located outside the United States, for any judicial district in which Company is located, and that such person or entity will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Designated Agent, Company may, in its discretion, send a copy of the counter-notice to the original complaining party informing that person that Company may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider accused of committing infringement, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at Company's discretion.
Please contact DRIVEDOWN, LLC Designated Agent at the following address:
Attn: DMCA Designated Agent
Jason D. Hochman, Esq.
Dinn, Hochman + Potter LLC
6105 Parkland Boulevard, Suite 100
Cleveland, Ohio 44124
Main: (440) 446-1100
Who is responsible for what I see and do on the Services?
Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such Content originated, and you access all such information and Content at your own risk, and we aren’t liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
The Services may contain links or connections to third-party websites or services that are not owned or controlled by DRIVEDOWN, LLC. When you access third-party websites or use third-party services, you accept that there are risks in doing so, and that DRIVEDOWN, LLC is not responsible for such risks.
If there is a dispute between participants on this site or Services, or between users and any third party, you agree that DRIVEDOWN, LLC is under no obligation to become involved. In the event that you have a dispute with one or more other users, you release DRIVEDOWN, LLC, its directors, officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. You shall and hereby do waive California Civil Code Section 1542 or any similar law of any jurisdiction, which says in substance: “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
Will DRIVEDOWN, LLC ever change the Services?
We’re always trying to improve our Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Do the Services cost anything?
It is free to register for the Services but certain aspects of the Services may require that you pay us fees. If you decide to use these paid aspects of the Services, you agree to the Fees Terms set forth below, as we may amend them from time to time.
We reserve the right to charge for certain or all Services in the future. We will notify you before any Services you are then using begin carrying a fee, and if you wish to continue using such Services, you must pay all applicable fees for such Services.
You must pay all fees and applicable taxes associated with our Services by the payment due date (including, without limitation, any fees incurred in connection with the use of our third party payment processor, Stripe). Stripe’s terms of service can be found at https://stripe.com/legal.
Listing Fees: NONE
If you purchase the car listed on the Services, you shall pay us a fee (a “Buyer’s Fee”) equal to 5% of the winning purchase amount listed on the Services. Notwithstanding the foregoing, for each winning purchase on the Services, the minimum Buyer’s Fee is $500 and the maximum Buyer’s Fee is $5,000. All Buyer’s Fees are non-refundable.
If you place a proxy offer on the Services, we will place a hold on your credit card in an amount equal to 5% of the proxy offer amount (a minimum of $500, up to a maximum of $5,000). We will remove all such holds – except the hold on the purchaser credit card – after the listing is completed. The hold on the winning Bidder’s credit card will be charged as payment for the Buyer’s Fee immediately after the listing ends.
Within ninety (90) days after the end of an listing, Seller must provide DRIVEDOWN, LLC with information it reasonably requires in order to process any payments to Seller under the Services (including, without limitation, PayPal or bank account information and a current IRS Form W-9). If Seller fails to comply with the foregoing, DRIVEDOWN, LLC shall not be liable for, and Seller waives, any and all payment obligations then owed by DRIVEDOWN, LLC to Seller.
DRIVEDOWN, LLC is also free to terminate (or suspend access to) your use of the Services or your account for any reason in our discretion, including your breach of these Terms. DRIVEDOWN, LLC has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms; for example, a Buyer who believes that a Seller may be in breach of these Terms is not able to enforce these Terms against that Seller.
Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us, including without limitation the arbitration agreement.
What else do I need to know?
Warranty Disclaimer. DRIVEDOWN, LLC and its licensors, suppliers, partners, parent, subsidiaries or affiliated entities, and each of their respective officers, directors, members, employees, consultants, contract employees, representatives and agents, and each of their respective successors and assigns (DRIVEDOWN, LLC and all such parties together, the “DRIVEDOWN, LLC Parties”) make no Representations or warranties concerning the Services, including without limitation regarding any Content contained in or accessed through the Services, and the DRIVEDOWN, LLC Parties will not be responsible or liable for the accuracy, copyright compliance, legality, or decency of material contained in or accessed through the Services or any claims, actions, suits procedures, costs, expenses, damages or liabilities arising out of use of, or in any way related to your participation in, the Services. The DRIVEDOWN, LLC Parties make no representations or warranties regarding suggestions or recommendations of services or products offered or purchased through or in connection with the Services including, without limitation, any Seller Cars. Seller Cars and services purchased or offered (whether or not following such recommendations and suggestions) through the Services are provided “AS-IS” and without any warranty of any kind from the DRIVEDOWN, LLC Parties or others (unless, with respect to such others only, provided expressly and unambiguously in writing by a designated third party for a specific product). THE SERVICES AND CONTENT ARE PROVIDED BY DRIVEDOWN, LLC (AND ITS LICENSORS AND SUPPLIERS) ON AN “AS-IS” BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
DRIVEDOWN, LLC (I) DOES MAKES NO REPRESENTATIONS OR WARRANTIES OR ASSUME RESPONSIBILITY FOR ANY CAR ADVERTISED OR OFFERED BY A SELLER THROUGH THE SERVICE (OR ANY HYPERLINKED WEBSITE OR SERVICE) AND (II) WILL NOT BE A PARTY TO OR IN ANY WAY MONITOR ANY TRANSACTION BETWEEN YOU AND A BUYER OR OTHER THIRD-PARTY PROVIDER.
SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS, SO THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
Limitation of Liability. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL ANY OF THE DRIVEDOWN, LLC PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, BUSINESS INTERRUPTION, LOSS OF DATA, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION, (B) ANY SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY, (C) ANY AMOUNT, IN THE AGGREGATE, IN EXCESS OF THE GREATER OF (I) ONE-HUNDRED ($100) DOLLARS OR (II) THE AMOUNTS PAID AND/OR PAYABLE BY YOU TO DRIVEDOWN, LLC IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THIS APPLICABLE CLAIM OR (D) ANY MATTER BEYOND OUR REASONABLE CONTROL. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL OR CERTAIN OTHER DAMAGES, SO THE ABOVE LIMITATION AND EXCLUSIONS MAY NOT APPLY TO YOU.
Indemnity. You agree to indemnify and hold the DRIVEDOWN, LLC Parties harmless from and against any and all claims, liabilities, damages (actual and consequential), losses and expenses (including attorneys’ fees) taxes, interest and/or penalties arising from or in any way related to any claims relating to (a) your use of the Services (including any actions taken by a third party using your account), and (b) your violation of these Terms. In the event of such a claim, suit, or action (“Claim”), we will attempt to provide notice of the Claim to the contact information we have for your account (provided that failure to deliver such notice shall not eliminate or reduce your indemnification obligations hereunder).
Assignment. You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without DRIVEDOWN, LLC' prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
Choice of Law. These Terms are governed by and will be construed under the Federal Arbitration Act, applicable federal law, and the laws of the State of Ohio , without regard to the conflicts of laws provisions thereof.
Arbitration Agreement. Please read the following ARBITRATION AGREEMENT carefully because it requires you to arbitrate certain disputes and claims with DRIVEDOWN, LLC and limits the manner in which you can seek relief from DRIVEDOWN, LLC. Both you and DRIVEDOWN, LLC acknowledge and agree that for the purposes of any dispute arising out of or relating to the subject matter of these Terms, DRIVEDOWN, LLC' officers, directors, employees and independent contractors (“Personnel”) are third-party beneficiaries of these Terms, and that upon your acceptance of these Terms, Personnel 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.
(a) Arbitration Rules; Applicability of Arbitration Agreement. The parties shall use their best efforts to settle any dispute, claim, question, or disagreement arising out of or relating to the subject matter of these Terms directly through good-faith negotiations, which shall be a precondition to either party initiating arbitration. If such negotiations do not resolve the dispute, it shall be finally settled by binding arbitration in Cuyahoga County Ohio. The arbitration will proceed in the English language, in accordance with the JAMS Streamlined Arbitration Rules and Procedures (the “Rules”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes. The arbitrator shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
(b) Costs of Arbitration. The Rules will govern payment of all arbitration fees. DRIVEDOWN, LLC will pay all arbitration fees for claims less than seventy-five thousand ($75,000) dollars. DRIVEDOWN, LLC will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
(c) Small Claims Court; Infringement. Either you or DRIVEDOWN, LLC may assert claims, if they qualify, in small claims court Cuyahoga County Ohio. Furthermore, notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction, to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights.
(d) Waiver of Jury Trial. YOU AND DRIVEDOWN, LLC WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO GO TO COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR JURY. You and DRIVEDOWN, LLC are instead choosing to have claims and disputes resolved by arbitration. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between you and DRIVEDOWN, LLC over whether to vacate or enforce an arbitration award, YOU AND DRIVEDOWN, LLC WAIVE ALL RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
(e) 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. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If however, this waiver of class or consolidated actions is deemed invalid or unenforceable, neither you nor DRIVEDOWN, LLC is entitled to arbitration; instead all claims and disputes will be resolved in a court as set forth in (g) below.
(f) Opt-out. You have the right to opt out of the provisions of this Section by sending written notice of your decision to opt out to the following address: 6105 Parkland Boulevard, Suite 100 Cleveland, Ohio 44124 postmarked within thirty (30) days of first accepting these Terms. You must include (i) your name and residence address, (ii) the email address and/or telephone number associated with your account, and (iii) a clear statement that you want to opt out of these Terms’ arbitration agreement.
(g) Exclusive Venue. If you send the opt-out notice in (f), and/or in any circumstances where the foregoing arbitration agreement permits either you or DRIVEDOWN, LLC to litigate any dispute arising out of or relating to the subject matter of these Terms in court, then the foregoing arbitration agreement will not apply to either party, and both you and DRIVEDOWN, LLC agree that any judicial proceeding will be brought in the state or federal courts located in, Cuyahoga County , Ohio.
(h) Severability. If the prohibition against class actions and other claims brought on behalf of third parties contained above is found to be unenforceable, then all of the preceding language in this Arbitration Agreement section will be null and void. This arbitration agreement will survive the termination of your relationship with DRIVEDOWN, LLC.
Miscellaneous. You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the DRIVEDOWN, LLC may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. If any provision of these Terms are found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You and DRIVEDOWN, LLC agree that these Terms are the complete and exclusive statement of the mutual understanding between you and DRIVEDOWN, LLC, and that these Terms supersede and cancel all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of DRIVEDOWN, LLC, and you do not have any authority of any kind to bind DRIVEDOWN, LLC in any respect whatsoever.
Except as expressly set forth in the section above regarding the arbitration agreement, you and DRIVEDOWN, LLC agree there are no third-party beneficiaries intended under these Terms.