These Terms govern all use of the website of Carglobe, Inc. located at www.carglobe.me (the "Website") and all content, services, and products available on or delivered through the Website. Carglobe, Inc., a California corporation (the "Company"), owns and operates the Website, and the terms "Carglobe", "we", "us", and "our" used in these Terms refer to the Company. The Website is a copyrighted work belonging to the Company. The Website is offered subject to your acceptance without modification of all of these Terms and all other operating rules, policies, and procedures that may be published and changed from time to time on the Website by us (collectively, the "Agreement"). Any subsequent changes by us to the Website (including, without limitation, the release of new tools or resources) shall be subject to the terms and conditions of the Agreement. We reserve the right, at our sole discretion and at any time, to amend, modify or replace any part of the Agreement. It is your responsibility to check the Agreement periodically for changes. Each Buyer's or Seller's continued use of or access to the Website following the posting of any changes to the Agreement constitutes acceptance of those changes. The Agreement is a legally binding agreement between you and us so please read the Agreement carefully before accessing or using the Website. By accessing or using any part of the Website, you agree to become bound by the terms and conditions of the Agreement. If you do not agree to all the terms and conditions of the Agreement, then you may not access or use any part of the Website. If these Terms are considered an offer by us, acceptance is expressly limited to the terms and provisions of the Agreement.
The Website is an intermediary platform and digital marketplace to allow licensed motor vehicle dealerships (each, a "Buyer" and collectively, "Buyers") to bid online in an auction style format on motor vehicles offered for sale by our end users on the Website (each a 'seller" and collectively 'sellers"). Sellers may list motor vehicles on the Website, and Buyers are invited to place bids to purchase (each, a "Bid") such motor vehicles through the Website (the "Bidding Process"). The Website conducts the bidding process to purchase a motor vehicle similar to an auction where the highest Bid generally wins (each, a "Winning Bid"). Except as otherwise explicitly noted in the Agreement, we do not generally directly buy or sell any motor vehicles, and we generally are not involved in or a party to the in-person sale transactions (the "Transactions") between Buyers and Sellers. As a result, we exercise no direct control over the quality, safety, legal or any other aspects of the Transactions that we are not directly involved in. We provide a platform through which Buyers and Sellers can facilitate the Transactions, and any other reports are provided in good faith only. Notwithstanding the foregoing or anything else in these Terms to the contrary, under certain circumstances and in our sole and absolute discretion, we reserve the right and may choose to participate in the Bidding Process and, if our Bid is a Winning Bid, purchase motor vehicles directly from Sellers in accordance with the Agreement and our standard purchasing terms and conditions and related documentation which we will make available to Sellers who accept our Bids. There may be times that Winning Bids must be manually reviewed, for instance, but not limited to suspicion of fraud, technology malfunction, security violations, etc. In such instances, we will do our best to review and validate the Winning Bids as quickly as possible. After the Winning Bid is delivered to the Seller, if within the range agreed to by Seller, such a bid is binding. In cases where the Winning Bid is outside of the Sellers agreed price range, the seller will have the opportunity to accept or counter the Winning Bid. Once the Winning Bid is binding, either by default or through counter offers, the Buyer agrees to transfer the bid amount and all applicable fees to an escrow account. At such time that the vehicle is delivered to the Buyer, funds are distributed from the aforementioned escrow account to both the Seller in the amount of the Winning Bid, or any such amount countered and agreed upon by both Buyer and Seller, and the Company in the amount of previously disclosed to and agreed by Buyer buying Notwithstanding the foregoing or anything else in the Agreement to the contrary, each The Data (as defined below) is for general informational purposes only. While we strive to provide a website that is useful, be mindful that the Website may, from time to time, contain errors or inaccurate information. The Data is often collected from and provided by third parties, and we may not have evaluated or reviewed the Data. Buyers and Sellers should not rely on any of the Data without independently verifying the accuracy, completeness, timeliness, and/or reliability of such Data.
BUYERS AND SELLERS
Buyers and Sellers each agree to be responsible for all use of the Website made by each respective party or someone else using the username and password belonging to each party and for preventing unauthorized use of the username and password. Each Buyer and Seller should use a robust password to protect such Buyer's or Seller's account through a combination of upper and lower case letters, numbers and other characters. Each Buyer and Seller agrees to immediately notify us of any unauthorized use or suspected unauthorized use of such Buyer's or Seller's account or any other breach of security. We cannot and will not be liable for any loss or damage arising from any Buyer's or Seller's failure to comply with the foregoing requirements. Each Buyer and Seller represents and warrants that (i) such Buyer's and Seller's use of the Website will be in strict accordance with the Agreement and with all applicable laws and regulations, including, without limitation, any local laws or regulations in such Buyer's or Seller's country, state, city or other governmental area, regarding online conduct and acceptable content, and (ii) such Buyer's and Seller's use of the Website will not infringe or misappropriate the intellectual property rights of any third party. Each Buyer and Seller agrees that it is such Buyer's or Seller's obligation to comply with all applicable laws, rules, statutes and regulations that may apply to access and use of the Website, the Services or the Transaction, including, without limitation, any and all applicable local, state and federal licensing requirements. If an individual is accessing or using the Website or the Services on behalf of any Buyer or Seller, such individual represents and warrants that he or she is an authorized representative of such Buyer or Seller with the full legal power and authority to bind such Buyer or Seller to the Agreement and enter into the Agreement on behalf of such Buyer or Seller.
SELLERS AND VEHICLE LISTING POLICIES
Representations & Warranties
Each Seller acknowledges that (i) such Seller is at least 18 years of age and possesses a valid driver's license or other form of valid government-issued photo identification; (ii) the personal information and information that such Seller has submitted regarding such Seller's motor vehicle is accurate, complete, non-fraudulent, and correct in all respects, including, without limitation, information regarding such motor vehicle's year, make, model, trim, mileage, Vehicle Identification Number ("VIN"), drivetrain, exterior and interior conditions, title, ownership, and outstanding liens; (iii) to the best of such Seller's actual knowledge, such Seller has not failed to disclose any material damage to or other material fact regarding such Seller's motor vehicle; (iv) unless such Seller otherwise explicitly discloses on the Website, such Seller is the registered owner of and owns the title to each motor vehicle that such Seller lists on the Website, free and clear of any liens. In offering a vehicle for sale through the Service, the seller represents that he or she has physical possession of the vehicle to be sold and that he or she has the ability to transfer title. Seller agrees to be solely responsible for satisfaction and payment of any liens, claims or damages of any type arising out of the vehicle during Seller's possession and ownership, including but not limited to medical, personal injury, citations, tolls, fines, legal or other claims, and Seller shall indemnify and hold Carglobe and the subsequent Buyer harmless of same. Each Seller further represents and warrants that said Seller is not engaged in the motor vehicle dealership business and is not an employee or agent of a motor vehicle dealership. For the avoidance of doubt, each Bid is contingent upon, among other things, the accuracy of the foregoing representations and warranties at all times.
Every motor vehicle listed on the Website must be located in the area in which the Services are offered. Sellers may not accept a Bid on any motor vehicle that could cause us to violate any applicable law, statute, ordinance or regulation or that violates our Listing Restrictions below.
Only motor vehicles may be listed for sale on the Website. Sellers cannot list non running vehicles, vehicles not originally built for the United States market or that were imported illegally or outside of official manufacturer channels (i.e. gray market vehicles), vehicles with illegal emissions equipment, vehicles registered at an auto auction or offered for sale on a wholesale website within the previous 45 days, or vehicles with a Kelley Blue Book wholesale value of less than $1,000 USD.
Vehicle Use While Listed For Sale
The seller is free to continue to use the vehicle until the Buyer arranges for a pickup of the vehicle. It is the seller's responsibility to inform Carglobe of any times during which the vehicle will be unavailable for pickup. For example, the seller must notify Carglobe if he or she is going on vacation and will be unavailable to transfer title and possession while away. If the seller fails to notify Carglobe that a vehicle listed through the Service is no longer available for sale or to remove the listed vehicle prior to the selling of the vehicle through the Service (referred to as a "Back Out"), Seller agrees that Carglobe may charge and seller will pay a "Back Out Fee" not to exceed $500.00. You also agree that the Back Out Fee will apply if you do not make your car available for pick up by the Buyer or the Buyer's agent within 72 hours of the sale. In addition, Carglobe reserves the right to refuse to accept a vehicle for listing from a seller with a previous Back Out. Carglobe may revise the guaranteed sale price range in the event of any post-inspection damage or additional mileage in excess of 1,500 miles following inspection. In such a situation, Carglobe may " but is not required to " make the seller a new offer on different terms. It is the seller's responsibility to inform Carglobe immediately if any damage occurs to the vehicle after the inspection by contacting firstname.lastname@example.org. Should the seller fail to timely inform Carglobe of such post-inspection damage, Carglobe may, at its sole discretion, remove the listing for the vehicle and reserves the right to refuse to accept future vehicles for listing from the Seller. The Seller also agrees to reimburse Carglobe for any costs, losses, or damages suffered as a result, including but not limited to the cost of repair and the cost of any necessary inspection or re-inspection. The nature and extent of any post-inspection damage will be determined solely by Carglobe, or a third-party working on Carglobe's behalf.
Each Buyer acknowledges and agrees with all of the terms and provisions of these Terms. Each Buyer represents and warrants that each Bid such Buyer delivers will be a bona fide bid to purchase the applicable motor vehicle for the amount of such Bid and agrees not to circumvent the Website or the Services or "cut out" and make offers or bids directly to Sellers outside of the Website or the Services. Each Buyer acknowledges and agrees that (i) the Bidding Process is used to solicit multiple Bids on each motor vehicle, where the highest Bid on such motor vehicle is designed to "win" the Bidding Process and becomes the Winning Bid, and (ii) the Website and the Services (including the Bidding Process) are not an appraisal service, and we do not guarantee that each motor vehicle purchased through the Website will be worth at least as much as the applicable Buyer pays for it. Unless we decide to directly participate in a Transaction where we directly act as a Buyer, Buyers are not owned or operated by us and are not affiliated with or acting on our behalf in any way.
We offer complimentary 3rd party 240 point inspections for all motor vehicles listed on our Website. Although we use reputable ASE certified mechanics, these mechanics are not employed by us. As such, we make no guarantees other than good faith as to the accuracy or completeness of such inspections. We stand behind our product and will work directly with Buyers on a case by case basis if such inspections grossly and materially misrepresent the motor vehicle purchased by the Buyer through a Winning bid.
Although we do our best to verify the validity, authenticity, and on-hand availability of titles for all motor vehicles listed on our Website, it is the Buyer's responsibility to check the validity of the title for each picked up motor vehicle purchased using the Service. In case of any title issues, the Buyer must notify us in writing within 120 hours after the Winning Bid.
TRANSACTION AND PAYMENT
We do not collect or store any payment information. All payments and related information is handled by our partner financial institution, including but not limited to escrow accounts, wire transfers, and issuing checks. At the end of an auction, in order to finalize a Transaction, a Seller must, within 72 hours after the Bidding Process is complete with respect to the applicable motor vehicle, make said motor vehicle available for pick up by the Buyer or the Buyer's agent. The vehicle must be accompanied by a valid and signed title transferring ownership to the Buyer. Once the vehicle is picked up, the Seller must notify us of this occurrence. Once the Buyer notifies us that said vehicle has been picked up, or 120 hours after the Buyer has placed the winning bid, funds are released to the Seller from the escrow account. Buyer must notify us within 72 to 120 hour window after the winning Bid if vehicle cannot be picked up; otherwise, Buyer assumes all responsibility and releases all liability from the service concerning winning funds released to the Seller.
Each Seller agrees that a fee of $199 shall be deducted from the selling price by the Company for each vehicle successfully sold using the Service. The fee is non-negotiable and is paid directly from the escrow account followed by a "Winning Bid". Each Buyer agrees that a fee of $299, or volume discounted and agreed upon, shall be paid to the Company for each Winning Bid.
DISCLAIMER OF WARRANTY
The Company has not made any representations, warranties, statements or promises in the Agreement, and Buyers and Sellers have not relied upon any such representation, warranty, statement or promise in accessing or using the Website. The Website, the services related thereto (the 'services"), and any data or information that are accessed or delivered through the Website or derived therefrom (collectively, the "Data") are provided "as-is," and the Company shall have no liability for any errors or omissions therein or any other aspects thereof, including with respect to the motor vehicles listed on the Website. The Company hereby expressly disclaims all representations and warranties, express or implied, including, without limitation, any warranties of merchantability, fitness for a particular purpose, workmanlike quality, and title, with respect to the Website, the Services, the Data or any Transaction in which the Company is not directly involved as the Buyer in such Transaction, including any representations or warranties with respect to the motor vehicles listed on the Website. The Company does not represent or warrant that the Website, the Services or the Data will meet the requirements of Buyers or Sellers or that access to and use of the Website, Services or Data will be uninterrupted, error-free, or entirely secure. Buyers and Sellers will bear all risk associated with any use of the internet or other means of data transmission by or on behalf of Buyers and/or Sellers, and the Company disclaims all responsibility and liability in connection with such use. The Company does not make any representations or warranties with respect to any materials, products, data, information or content provided by any third party. Buyers and Sellers acknowledge and agree that (i) data transferred to and from the Website may be done so unencrypted and over various networks, and (ii) any access to or use of the Website, the Services or the Data is done at the sole discretion and risk of such Buyers and Sellers. To the extent the Company cannot disclaim any warranty as a matter of law, the scope and duration of such warranty shall be the minimum permissible under applicable law.
RELEASE AND LIMITATION OF LIABILITY
By accessing and using the Website and the Services, each Buyer and Seller agrees not to sue or institute any cause of action or legal proceeding of any nature against the Company or any of its affiliates, or its or their respective officers, directors, employees, representatives, agents, licensors, licensees, successors and assigns (collectively the "Released Parties") for, and agrees to release, acquit, forever discharge and compensate and hold harmless the Released Parties from and against, any and all costs, damages (actual, consequential, special, incidental, indirect, exemplary, punitive or otherwise), losses, liabilities, claims or expenses (including attorneys" fees) of any kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed (collectively, "Damages"), arising out of, relating to, or in any way connected with such Buyer's or Seller's access or use of the Website or the Services (including any Transactions resulting therefrom). Should any Buyer or Seller have a dispute with any other Buyer or Seller, such Buyer or Seller agrees not to sue the Released Parties for, and agrees to release and hold harmless the Released Parties from and against, any and all Damages arising out of, related to or in any way connected with such dispute. In the event of any such dispute, such Buyer or Seller agrees to look solely to the other Buyer or Seller involved in the dispute for such Buyer's or Seller's remedy with respect thereto and not to any Released Party. IF ANY BUYER OR SELLER IS A CALIFORNIA RESIDENT, SUCH BUYER OR SELLER HEREBY WAIVES CALIFORNIA CIVIL CODE SECTION 1542 IN CONNECTION WITH THE FOREGOING, WHICH STATES: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." IN NO EVENT SHALL ANY RELEASED PARTY BE LIABLE IN CONNECTION WITH OR ARISING OUT OF THE AGREEMENT OR ANY ACCESS TO OR USE OF THE WEBSITE, THE SERVICES, ANY TRANSACTION OR THE DATA UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY FOR: (I) ANY INCIDENTAL, INDIRECT, EXEMPLARY, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OR INTERRUPTION OF USE, LOSS OR CORRUPTION OF DATA OR LOSS OF PROFITS, OR (II) THE COST OF PROCUREMENT FOR SUBSTITUTE PRODUCTS OR SERVICES, IN EACH CASE EVEN IF THE COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES OR COSTS. IN NO EVENT SHALL LIABILITY OF ANY RELEASED PARTY IN CONNECTION WITH THE AGREEMENT OR ANY ACCESS TO OR USE OF THE WEBSITE, THE SERVICES, ANY TRANSACTION OR THE DATA EXCEED THE FEES PAID BY THE APPLICABLE BUYER OR SELLER TO US UNDER THE AGREEMENT DURING THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY. WE SHALL HAVE NO LIABILITY FOR ANY FAILURE OR DELAY DUE TO MATTERS BEYOND OUR REASONABLE CONTROL. THE FOREGOING SHALL NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
With respect to any Buyer or Seller, we may suspend or permanently terminate such Buyer's or Seller's account or Bid at any time for any reason, including, without limitation, if a suspicion arises that such Buyer or Seller engaged in any fraudulent activity in conjunction with the Website or the Services.
By agreeing to these Terms, Sellers authorize us and our affiliates and our or their respective contractors or agents to view and obtain from applicable Department of Motor Vehicle databases the motor vehicle registration and title data for the VIN provided. Sellers specifically waive any protections under the Driver's Privacy Protection Act and specifically authorize us and our affiliates and our or their respective contractors or agents to obtain and review such records.
All disputes must be reported to us in writing within a reasonable time frame. Each Buyer or Seller can contact us by email at email@example.com. We will attempt to promptly and amicably resolve any disputes such Buyer or Seller has with us. Because we are an intermediary service provider, we are not responsible for resolving any disputes between the applicable Buyer or Seller with any other Buyers or Sellers. If a Buyer or Seller reports a dispute to us between such Buyer or Seller and another Buyer or Seller, we will make every effort to help both parties communicate; however, all disputes must be resolved directly between such Buyer or Seller and such other Buyer or Seller, unless otherwise stated.
INTELLECTUAL PROPERTY AND TRADEMARKS
All information contained in this website, unless otherwise stated, is owned solely and exclusively by Carglobe. You acknowledge and agree that all contents and materials available on this website are protected by copyrights, trademarks, service marks, patents, trade secrets, and/or other proprietary or intellectual property rights and laws. By permitting you to access and use this website, Carglobe has not granted you a license of any kind to use this information for any purpose (including, but not limited to, commercial purposes) without the express written consent of Carglobe; however, vehicle information may be printed for your non-commercial, personal use only. You may not otherwise amend, copy, create derivative works from, reverse engineer, display, distribute, edit, license, modify, reproduce, rent, sell, and/or transmit any part of this website. You may not use any meta tags or any other "hidden text" utilizing Carglobe's name or trademarks without the express written consent of Carglobe. In addition, deep linking, direct linking, framing, page-jacking, spoofing, hacking, data-mining and using a robot, spider, or automated device of any kind to monitor or copy our website is strictly prohibited. Carglobe is a registered trademark or service mark of Carglobe, Inc. Any unauthorized use, replication, or other violations of trademark law will be prosecuted to the maximum extent possible. All other trademarks not owned by Carglobe or its subsidiaries that appear on this site are property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by Carglobe.
INFORMATION DISCLAIMERS AND USE
Each Buyer and Seller is solely responsible for any information that such Buyer or Seller provides to us or other Buyers and Sellers through the Website or the Services, and such information may not contain any viruses or other malware that may damage or interfere with the Website. Each Buyer and Seller represents and warrants that such Buyer's and Seller's personal and contact information is true, legal, accurate and non-fraudulent in all respects. Each Buyer and Seller acknowledges that by transmitting, posting or uploading any information, materials or data on or through the Website, such Buyer or Seller grants us, or anyone authorized by us, an unrestricted, non-exclusive, worldwide, royalty-free, perpetual, irrevocable license to use, modify, perform, display, broadcast, reproduce, create derivative works from, transmit or otherwise use or distribute, at no cost whatsoever, all such information, materials or data, in whole or in part, in any manner or medium (whether now known or hereafter developed), in connection with the Website, the Services or otherwise. We require some personal and contact information ("Personal Information") to provide the Services. Each Buyer and Seller understands and agrees that by submitting Personal Information, we will share such Personal Information with certain affiliates, business partners and other Buyers and Sellers, as the case may be, to provide the Services. Each Buyer and Seller further agrees that such affiliates, business partners and other Buyers and Sellers, as the case may be, may contact such Buyer or Seller by telephone, email or mail based on such Buyer's or Seller's Personal Information, even if such Buyer or Seller has opted into the National Do Not Call List administered by the Federal Trade Commission, any state's equivalent of the Do Not Call List or the Do Not Call List of an internal company. Each Buyer and Seller understands that our affiliates, business partners and other Buyers and Sellers, as the case may be, may maintain such Buyer's or Seller's Personal Information. In particular, each Buyer and Seller agrees that we, our service providers and other Buyers and Sellers may contact such Buyer or Seller via any method per the contact information that such Buyer or Seller supplied to us regarding motor vehicles or other products and services that may be of interest to such Buyer or Seller. By supplying a mobile number, such Buyer or Seller consents to receive calls or texts at such number, whether manually or automatically dialed, from us, our service providers or other Buyers or Sellers. Each Buyer and Seller is not required to provide us with a mobile number as a condition of accessing or using the Website or the Services. We reserve the right to keep all records of any and all transactions and communications between Buyers and Sellers.
SOCIAL NETWORKING SERVICES
Without limiting any other terms or provisions of the Agreement, if any Buyer or Seller signs in to the Website via a social networking service (an 'sNS") or otherwise uses an SNS in connection with the Website or the Services, such Buyer or Seller understands and agrees that we, as an agent on such Buyer's or Seller's behalf, may access such Buyer's or Seller's SNS account information and content so that such information and content are available to such Buyer or Seller in connection with such Buyer's or Seller's access to or use of the Website, the Data or the Services. Each Buyer and Seller gives us permission to access such Buyer's or Seller's SNS account information and content in accordance with the preceding sentence.
THIRD-PARTY LINKS & ADS
The Website, the Services or the Data may contain links to third-party websites and services (including SNSs) and/or display advertisements for third parties (collectively, "Third-Party Links & Ads"). Third-Party Links & Ads are not under our control, and we are not responsible for any Third-Party Links & Ads. We provide access to these Third-Party Links & Ads only as a convenience to Buyers and Sellers and do not review, approve, monitor, endorse, warrant or make any representations with respect to Third-Party Links & Ads. Each Buyer and Seller shall use all Third-Party Links & Ads at such Buyer's or Seller's own risk and should apply a suitable level of caution and discretion in doing so. When a Buyer or Seller "clicks" on or otherwise visits any Third-Party Links & Ads, the applicable third party's terms and policies apply, including the third party's privacy and data gathering practices. Each Buyer and Seller should make whatever investigation such Buyer or Seller feels necessary or appropriate before proceeding with any transaction in connection with such Third-Party Links & Ads.
Each Buyer and Seller shall defend, indemnify, compensate, reimburse and hold harmless each Released Party, from and against any and all Damages associated with, arising out of or resulting from any Transaction or such Buyer's or Seller's access to or use of the Website, the Services or the Data, including, without limitation, (i) such Buyer's or Seller's breach of any representation, warranty, covenant or other term or provision of the Agreement, (ii) such Buyer's or Seller's negligent acts or omissions, (iii) such Buyer's or Seller's violation of applicable laws or regulations, and (iv) any content that such Buyer or Seller posts, submits or otherwise makes available on the Website.
If any term or provision of the Agreement is held to be invalid or unenforceable, the remaining terms and provisions shall continue in full force and effect without being impaired or invalidated in any way. The parties agree to replace any invalid provision with a valid provision that most closely approximates the original intent and substance of such invalid provision.
Each Buyer and Seller understands and agrees that we may, in our sole and absolute discretion and at any time, permanently terminate such Buyer's or Seller's account and discard and remove any content posted or submitted by such Buyer or Seller for any reason whatsoever. Each Buyer and Seller understands and agrees that we may take any one or more of these actions without prior notice to such Buyer or Seller. Should we take any of these actions, we may, in our sole and absolute discretion, immediately deactivate or delete any or all information about and concerning such Buyer's or Seller's account. Each Buyer and Seller understands and agrees that we shall not have any liability to such Buyer or Seller or any other person for any termination of such Buyer's or Seller's access to the Website or the Services or the removal of information concerning such Buyer's or Seller's account. If any Buyer or Seller violates the Agreement, we may pursue damages or any other remedies available to us, including without limitation specific performance or injunctive relief, against such Buyer or Seller in any forum we deem appropriate.
The Agreement constitutes the entire agreement between each Buyer and Seller and the Company concerning the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements, representations, warranties, both written and oral, with respect to the subject matter hereof. The Agreement may only be modified by a written amendment signed by an authorized executive of us or by the posting of a revised version by us to the Website. Except to the extent applicable law provides otherwise, the Agreement and any access to or use of the Website will be governed by the laws of the State of California, without regard to the conflict of laws rules thereof. All disputes of any nature related to the Agreement shall be determined by final and binding arbitration in San Francisco County, California before a single arbitrator. The parties shall agree on the rules and procedures to be followed in the arbitration. If the parties are unable to agree on the rules and procedures to be followed within 15 days, the arbitration shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures, and the arbitrator shall apply the laws applicable in the State of California (without regard to the conflict of laws rules thereof). Judgment on the arbitral award may be entered in any court having jurisdiction thereof. The foregoing arbitration provisions shall not preclude either party from seeking an injunction or other provisional remedies in aid of arbitration from a court of appropriate jurisdiction. The arbitrator shall, in the arbitral award, allocate all or part of the costs of the arbitration, including the fees of the arbitrator and reasonable attorneys" fees of the prevailing party, for payment by the non-prevailing party, and shall determine the prevailing party for this purpose. The parties further agree that (i) any claims brought by either party must be brought in such party's individual capacity and not as a plaintiff or class member in any purported class or representative proceeding, and (ii) the arbitrator may not (x) consolidate more than one person's claims, (y) otherwise preside over any form of a representative or class proceeding or (z) award class-wide relief. A waiver by any party of any term or condition of the Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof. Each Buyer and Seller may assign such Buyer's or Seller's rights under the Agreement to any party that consents to and agrees to be bound by the Agreement; we may assign our rights under the Agreement without condition. The Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.