Please read the following Terms of Service carefully. By registering and creating an AskOtto account on behalf of yourself or your employer, you acknowledge that you have read this Terms of Service, understand it, and have the authority to bind yourself and/or your employer to it.
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DEALER TERMS OF SERVICE
Last updated: July 1, 2019
Welcome to AskOtto!
inSearchX, LLC (“inSearchX,” “we,” “our,” or “us”) makes this website “www.askotto.com” and all software, services, extensions, and application programming interfaces thereon (collectively, our “Service”) available for your use subject to the terms and conditions in this Terms of Service (this “Agreement”). The disclaimers, terms, and conditions in this Agreement are of general application and may be supplemented by additional policies, procedures, disclaimers, guidelines, rules, terms, and conditions of specific application that we disclose. We collect, store, and use personal information about you in accordance with our Privacy Policy, located at http://www.askotto.com/privacy. The terms and conditions of our Privacy Policy are hereby expressly incorporated into this Agreement.
BY ACCESSING OR USING OUR SERVICE IN ANY WAY, YOU AGREE TO AND ARE BOUND BY THIS AGREEMENT, AND IF YOU DO NOT ACCEPT ANY OF THE TERMS OF THIS AGREEMENT AND/OR YOU DO NOT MEET OR COMPLY WITH THEIR PROVISIONS, YOU MAY NOT USE OUR WEBSITE OR SERVICE.
IMPORTANT NOTICE: YOUR USE OF OUR SERVICE IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 7 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. PLEASE CAREFULLY REVIEW SECTION 7 OF THIS AGREEMENT FOR MORE INFORMATION.
OUR SERVICE
General. The Service is an AI-powered vehicle listing and information service that brings together potential buyers and sellers. inSearchX does not hold title to any vehicle and is not a party to any transaction between vehicle buyers and sellers that originates on or through the Service. Any vehicle recommendations made to prospective buyers through the Service are recommendations only and we have no liability to any seller or to any buyer if a recommended vehicle is purchased and the buyer is not ultimately not happy with the purchase for any reason. Any information you supply about a particular vehicle is supplied by you only and not by inSearchX. All price and other terms relating to the sale of a vehicle remain subject to direct negotiation between you and the prospective buyer. All materials, content and other information that appears on or through the Service is for general informational purposes only. While we aim to provide a Service that is useful, be mindful that the information provided through the Service may, from time to time, contain errors or omissions. The Service includes materials and information collected from and provided by other third parties and other users of the Service that we have not evaluated or reviewed. We make no representations, warranties or guarantees regarding the accuracy, completeness, timeliness, or reliability of any of the materials or information made available through the Service, and you should not rely on it without independent verification. Though we hope and encourage all persons who use our Service to act honorably and treat each other fairly, we cannot verify the information that sellers or buyers supply or guarantee any vehicles offered through the Service. Nor can we assure any seller of a vehicle that any payment received from a buyer is legitimate. When using the Service, we urge you to use the same common sense and good judgment you would use in selling or buying a vehicle through, or responding to, a classified ad in the newspaper.
Fees. There is no cost to register and create an account to use the Service. However, in order to access or use certain premium features of the Service for yourself or on behalf of your employer, inSearchX requires that you or your employer have on file a valid credit card that has not exceeded the monthly spend limit, if any, set on such card at the time of registration of your (or your employer’s) account to cover the applicable fees associated with using such premium features of the Service. All fees associated with using the premium features of the Service are set forth in our Schedule of Fees, located at http://www.askotto.com/dealer/fees (the “Schedule of Fees”), which may be updated from time to time in our discretion. Price changes for premium features of the Service will take effect upon our posting of such changes. You accept such new prices by continuing to use the Service after the price change is posted to the Service. If you do not agree with the price changes, your only remedy is to stop using the Service. By utilizing any of the premium features of the Service, you agree that we may charge the applicable credit card on file for your account. You must use care when utilizing the premium features of the Service and inputting information regarding any vehicle(s) you intend to offer for sale or when responding to user requests for trade offers. Fees for use of the premium features of the Service are not refundable, even if you inadvertently provide erroneous information or otherwise fail to enter into a purchase or sale transaction with another user.
Certified Vehicles. Dealers may provide listings for vehicles that have been “certified” as meeting certain standards established by manufacturers and/or dealers in connection with their pre-owned vehicle programs. The decision to certify any particular vehicle is made by the certifying manufacturer or dealer, as applicable, and the vehicle information made available about a certified vehicle listing is provided by the listing dealer. Neither inSearchX nor the manufacturer is responsible for the accuracy of any information contained in a certified vehicle listing. Any dealer that lists a vehicle as being “certified” is responsible for ensuring such vehicle has satisfied all relevant criteria to earn such certification. Should you elect to list or otherwise provide information to a prospective buyer about a “certified” vehicle, you represent to inSearchX that you are familiar with the terms of the applicable certification program and such vehicle satisfies the criteria of such certification program before marketing or selling such vehicle as being “certified”.
Grant of Limited License. On the condition you (and/or your employer, if applicable) comply with all obligations under this Agreement (including all payment obligations), and subject to additional terms of any third-party licenses applicable to third-party software included in our Service, we hereby grant to you a limited, revocable, non-exclusive, non-transferable, non-sublicensable right to access and use our Service during the term of this Agreement. We reserve all rights not otherwise expressly granted by this Agreement. If you or your employer do not comply with this Agreement, we reserve the right to revoke any license granted in this Agreement and limit your access to our Service. Any use of our Service that exceeds the rights expressly granted in this Agreement is strictly prohibited and constitutes a violation of this Agreement, which may result in the suspension or termination of your access to our Service.
Modification. We may discontinue or alter any aspect of our Service, restrict the time our Service is available, and restrict the amount of use permitted at our sole discretion and without prior notice or liability to you. We may also install bug fixes, updates, patches, and other upgrades to our Service without prior notice or liability to you. Your only remedy is to discontinue using our Service if you do not want a modification we make to our Service.
Removal of Access. Your access to our Service is provided on a temporary basis with no guarantee of future availability. You agree that we may immediately suspend or terminate your access to our Service or any part thereof for any reason, including for cause. Cause for such measures include, without limitation: (1) breach or violation of this Agreement or other incorporated agreements or guidelines; (2) discontinuance or material modification to our Service; (3) unexpected technical or security issues or problems; or (4) your engagement in fraudulent or illegal activities. You further agree that such measures may be taken in our sole discretion and without liability to you or any third party.
Defects and Availability. We use commercially reasonable efforts to maintain our Service, but we are not responsible for any defects or failures associated with our Service, any part thereof, or any damages (direct or indirect) that may result from any such defects or failures. Our Service may be inaccessible or inoperable for any reason, including, without limitation: (1) equipment malfunctions; (2) periodic maintenance procedures or repairs which we may undertake from time-to-time; or (3) causes beyond our reasonable control or which we could not reasonably foresee. You understand that our Service is provided over the Internet and hosted by a third party provider, so the quality and availability of our Service may be affected by factors outside of our control. Our Service is not intended to be available 100% of the time and we do not make any guarantees regarding the reliability or availability of our Service. We will not be liable to you or any third party for damages or losses related to our Service being unavailable.
Restrictions. You may not: (1) license, sublicense, sell, resell, transfer, assign, distribute, or otherwise commercially exploit or make available to any third party any portion of our Service in any way; (2) copy, modify, adapt, alter, translate, create derivative works, reverse engineer, decompile, disassemble, or otherwise attempt to learn the source code, structure, or ideas upon which our Service is based; (3) use our Service or Third Party Content to develop a competing service or product; (4) use any device, software, or routine intended to damage or otherwise interfere with the proper functioning of our Service, servers, or networks connected to our Service or take any other action that interferes with any other person’s use of our Service; (5) decrypt, transfer, create Internet links to our Service, or “frame” or “mirror” our Service on any other server or wireless or Internet-based device; (6) use or merge our Service or any component thereof with other software, databases, or services not provided or approved by us; (7) circumvent or attempt to circumvent any electronic protection measures in place to regulate or control access to our Service; (8) use our Service for unlawful purposes or in violation of this Agreement; (9) develop, distribute, or sell any software or other functionality capable of launching, being launched from, or otherwise integrated with our Service; (10) use any bot, spider, or other automatic or manual device or process for the purpose of harvesting or compiling information on our Service for any reason; (11) access or attempt to access any other user’s account; (12) use any Third Party Content made available through our Service in any manner that misappropriates any trade secret or infringes any copyright, trademark, patent, rights of publicity, or other proprietary right of any party; (13) introduce into our Service any virus, rogue program, Trojan horse, worm or other malicious or intentionally destructive code, software routines, or equipment components designed to permit unauthorized access to or disable, erase, or otherwise harm our Service, or perform any such actions; (14) introduce into our Service any back door, time bomb, drop dead device, or other software routine designed to disable a computer program automatically with the passage of time or under the positive control of an unauthorized person; (15) delete, modify, hack, or attempt to change or alter our Service, Third Party Content, or notices on our Service; or (16) impersonate any other person or entity to use or gain access to our Service. We reserve the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate this Agreement.
Mobile Terms. Your contract with your mobile network provider (“Mobile Provider”) will continue to apply when accessing or using our Service on your mobile, handheld device. You understand that your Mobile Provider may charge you fees for your use of its network connection services while accessing or using our Service, for data downloading, e-mail, roaming, and other Mobile Provider or third party charges. YOU ACCEPT RESPONSIBILITY FOR ALL MOBILE PROVIDER FEES INCURRED WHILE USING THE SERVICE. As applicable to your device, you agree to be bound by the then-current Apple Media Service Terms and Conditions (located at: https://www.apple.com/ca/legal/internet-services/itunes/ca/terms.html), or Google Play Terms of Service (located at: https://play.google.com/about/play-terms.html). You acknowledge and agree that neither Apple, nor Google have any obligation whatsoever to furnish any maintenance and support services with respect to our Service, and that in the event of a conflict between their terms and this Agreement, their terms will prevail.
CONTENT ON OUR SERVICE
Third Party Content. Our Service may include or provide access to information, software, photos, videos, text, graphics, music, sounds, and other material or information provided by us or third parties (collectively, the “Third Party Content”) that are protected by copyrights, trademark, or other intellectual property laws. You understand and agree that these rights in any Third Party Content are valid and protected in all forms, media, and technologies existing now or developed in the future. You may not obscure or remove any proprietary rights notices contained in or on the Third Party Content. We cannot and do not assume any responsibility for your use or misuse of Third Party Content, or any other information transmitted, monitored, stored, or received while using our Service. We reserve the right to amend or delete any Third Party Content (along with the right to terminate or restrict use of or access to our Service) in our sole discretion.
User Content Submissions. You may upload, download, archive, and export information on your vehicle inventory and other services through our Service either directly through dynamic web-based forms, APIs or indirectly through individual or bulk upload of certain documents, pictures, videos, text and other graphics (collectively, “User Content”). By registering to use the Service, you agree to provide us with electronic access to your online vehicle inventory in order for us to make recommendations to other users of the Service who may be interested in purchasing a vehicle or other services from you.
Trade Submissions. Other users of the Service may request to receive trade offers from dealers who have listed a vehicle for sale or who are otherwise using the Service. In order for you to respond to a user’s trade offer request, you or your employer must have a valid credit card on file with inSearchX and that credit card will be charged the then current transaction fee as set forth in our Schedule of Fees. Photos submitted by a user who is requesting trade offers must correspond to the actual vehicle being offering for trade and all information such user provides regarding such vehicle must be truthful and accurate. However, inSearchX is not responsible for any inaccurate or misleading information provided by any user of the Service. IF YOU ELECT TO MAKE OR OTHERWISE ACCEPT ANY TRADE OFFER ON A VEHICLE, YOU AGREE NOT TO SUE INSEARCHX FOR, AND AGREE TO RELEASE AND HOLD HARMLESS INSEARCHX FROM AND AGAINST, ANY AND ALL CLAIMS RELATING TO OR ARISING OUT OF ANY TRADE OR PURCHASE TRANSACTION THAT YOU ENTER INTO WITH ANOTHER USER OF THE SERVICE OR OTHERWISE. IN THE EVENT THAT ANY CLAIMS OR DISPUTES ARISE OUT OF SUCH A TRANSACTION, YOU AGREE TO LOOK SOLELY TO THE OTHER PARTY TO SUCH TRANSACTION FOR YOUR REMEDY AND NOT TO INSEARCHX.
User Content Limited License. By submitting User Content to our Service either through yourself or through a third party, you grant 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, sell or otherwise use, exploit or distribute, at no cost whatsoever, all such User Content (including, without limitation, all intellectual property rights embodied therein), in whole or in part, in any manner or medium (whether now known or hereafter developed), for any purpose. The foregoing license includes the right to exploit any proprietary rights in such User Content, including, but not limited to, rights under copyright, trademark, or patent laws that exist in any applicable jurisdiction. You will not receive any compensation of any kind for the use of any User Content you transmit or post via the Service. Among other uses of User Content, inSearchX uses User Content and other data to derive useful information (such as vehicle valuation information, vehicle recommendations, etc.) for display, sale and distribution to other users. YOU AGREE THAT YOU WILL EVALUATE AND BEAR ALL RISK RELATED TO THE USE OF, OR ANY ACTIVITIES ASSOCIATED WITH, ANY USER CONTENT THAT YOU PROVIDE THROUGH OUR SERVICE. THE RESULTS OF ANY ACTIONS YOU TAKE BASED ON USER CONTENT, THIRD PARTY CONTENT OR OTHER CONTENT YOU FIND ON OUR SERVICE ARE SOLELY YOUR RESPONSIBILITY. UNDER NO CIRCUMSTANCES WILL INSEARCHX BE LIABLE IN ANY WAY FOR USER CONTENT SUBMITTED, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF, THE TRANSMISSION OF ANY USER CONTENT THROUGH OUR SERVICE.
User Content Restrictions. You may not upload, post, or transmit any User Content that: (1) would violate or infringe the proprietary, privacy, publicity, or intellectual property rights of inSearchX or any third party; (2) is obscene, defamatory, threatening, harassing, abusive, libelous, hateful, or harmful to any other person or entity; (3) violates any applicable law, statute, ordinance, or regulation; (4) puts in jeopardy the security of your account, inSearchX or our Service; or (5) promotes or displays any of the following content: (a) pornography; (b) violence; (c) racial intolerance or advocacy against any individual, group, or organization; (d) profanity; (e) hacking or cracking; (f) illicit drugs and drug paraphernalia; (g) sale of alcohol, tobacco, or tobacco-related products; or (h) the sale of weapons or ammunition. Although we cannot monitor all User Content, Third Part Content and other content posted through the Service, we reserve the right (but assume no obligation) to delete, move, condense or edit any ads, ratings, reviews, content or other postings that come to our attention that we consider unacceptable or inappropriate, whether for legal or other reasons. We retain the right to deny access to anyone who we believe has violated these terms or any other term of this Agreement. We will not, in the ordinary course of business, review the content of private electronic messages that are not addressed to us. However, we may occasionally monitor such communications as we believe is appropriate to comply with applicable laws, respond to legal process or a law enforcement request, to enforce this Agreement, or to protect the rights, property or safety of other users of the System, our advertisers, the public, us or our affiliates. Notwithstanding the foregoing and for the avoidance of doubt, inSearchX takes no responsibility and assumes no liability for any User Content or Third Party Content posted on or through the System by you or by any other user or third party.
Feedback. We welcome your comments, feedback, information, or materials regarding our Service or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property upon your submission to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to us, all right, title, and interest in and to the Feedback and all copyrights and other intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
Links; Third Party Materials. Our Service may include links to other websites or resources on the Internet (collectively, “Third Party Materials”). Because we have no control over Third Party Materials, you acknowledge and agree that we are not responsible for the availability of such materials, and we do not endorse and are not responsible or liable for any content, advertising, products, or other materials on or available from such Third Party Materials or for any privacy or other practices of the third parties operating those websites or providing such materials. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by, in connection with, resulting from your use of or reliance on any such Third Party Materials available on or through any such website or resource. We strongly encourage you to review any separate terms of use and privacy policies governing use of these third party websites and Third Party Materials.
ACCOUNTS
Account Registration and Delegation. Access to our Service requires you to be registered with us via our generated registration form. This form will require you to provide certain requested information about yourself and/or your employer. If you are creating and registering an account on behalf of your employer, you represent that you are authorized to do so. Once inSearchX receives such information, you will be provided with an account and login information, including a username and password, to successfully complete the registration process. You are the only person authorized to access and use the Service with your username and password. However, please be advised that if you (or your employer) elects to delegate account access rights to one or more administrative users, you acknowledge and agree that such administrative users may have read-only rights or “modification” rights to your account, depending on the access privileges that are delegated by your employer. INSEARCHX SHALL NOT, UNDER ANY CIRCUMSTANCE, BE LIABLE FOR ANY DIRECT OR INDIRECT CLAIMS, DAMAGES, OR ACTIONS ARISING FROM, OR RELATED TO, ACCOUNT DELEGATION ON BEHALF OF YOURSELF OR THROUGH YOUR EMPLOYER. WE PROVIDE NO GUARANTEES OR WARRANTIES REGARDING THE ACTIONS OF ANY ADMINISTRATIVE USER. YOU HEREBY RELEASE INSEARCHX FROM THE ACTIONS OF AN ADMINISTRATIVE USER AND ANY FAILURE ON THE PART OF SUCH USER TO PROTECT THE CONFIDENTIALITY, INTEGRITY, OR SECURITY OF YOUR USER CONTENT.
For Administrative Users Only. If you have been designated as an administrative user by your employer in connection with our Service, you may be granted elevated access rights and privileges in an effort to coordinate and manage other end-user accounts associated with your employer. Depending on the rights granted, you have the ability to read end-user account information, generate reports, or modify an end-user’s account on his or her behalf. You represent and warrant that you will use best efforts to provide only true, accurate, and complete information as it relates to any end-user’s account that you are responsible for and that you will serve as the primary liaison between such end-user and your employer.
Unauthorized Use and Information Changes. You must immediately notify us if your registration information changes or you learn of or have reason to suspect any unauthorized use of your username or password or any other breach of security. You are responsible for maintaining the confidentiality of your username and password and are fully responsible for all activities that occur under your username and password. You also agree that you will provide truthful and accurate information during the account registration process. We may refuse to grant you a particular username for any reason, including, without limitation, if we have reason to believe that such username impersonates someone else, is protected by trademark or other proprietary rights, or is vulgar or otherwise offensive.
Storing Credentials. Our Service may allow you to store your login credentials in your web browser so that you can be automatically logged in each time you access our Service. If someone else has access to your computer or web browser, the automatic login feature will allow that person to have access to your account. You are responsible for any fees incurred or other damages to inSearchX or our Service resulting from unauthorized access to our Service from your account and we will have no liability to you or any third party for damages or loss related to such unauthorized access or use.
USER REPRESENTATIONS
Representations. You hereby represent and warrant that: (1) you are over the age of 18 and have the legal capacity and authority to enter into and perform your obligations under this Agreement; (2) you will comply with the terms and conditions of this Agreement and any other agreement to which you are subject that is related to your use of our Service or any part thereof; (3) you have provided and will maintain accurate and complete information with us, including, without limitation, your legal name, email address, and any other information we may reasonably require; (4) your access to and use of our Service or any part thereof will not constitute a breach or violation of any other agreement, contract, terms of use or any law or regulation to which you are subject; (5) you will immediately notify us in the event that you learn or suspect that the personal information you provided to us has been disclosed or otherwise made known to any other person; (6) you will not use our Service in order to gain competitive intelligence about us, our Service, or any product or service offered via our Service or to otherwise compete with us; and (7) the User Content you provide does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and you have acquired the appropriate consent of all third parties (if required) to provide the User Content through our Service.
Feedback. In the event you provide any Feedback via our Service, you hereby make the following additional representations and warranties to us: (1) you are owner of such Feedback or otherwise have the right to grant us the licenses or assignments granted pursuant to this Agreement; (2) you have secured any and all consents necessary to provide the Feedback and to grant the foregoing licenses or assignments; (3) the Feedback does not violate the rights of any third party, including, without limitation, the intellectual property, privacy or publicity rights of any third party, and such Feedback does not contain any personally identifiable information about third parties in violation of such parties’ rights; (4) the use of any Feedback will not result in harm or personal injury to any third party; and (5) all factual information contained in the Feedback is true and accurate.
DISCLAIMER OF WARRANTIES
TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR SERVICE IS PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT. WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT OUR SERVICE WILL MEET YOUR REQUIREMENTS, THAT USE OF THE FOREGOING WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON OUR SERVICE WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF OUR SERVICE WILL BE CORRECTED, THAT OUR SERVICE AND ANY CONTENT OR INFORMATION FOUND ON OUR SERVICE WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH OUR SERVICE WILL MEET YOUR EXPECTATIONS. ANY CONTENT OR OTHER MATERIALS UPLOADED, DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF OUR SERVICE IS DONE AT YOUR SOLE RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. FURTHER, PLEASE NOTE THAT NO INFORMATION, OBTAINED BY YOU THROUGH OUR SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY PROVIDED FOR IN THIS AGREEMENT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU.
INDEMNITY; LIMITATION OF LIABILITY
Indemnity. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS INSEARCHX, OUR OFFICERS, EMPLOYEES, SUPPLIERS, CONTRACTORS, AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) YOUR USE OF OUR SERVICE, (B) YOUR VIOLATION OF THIS AGREEMENT, (C) ANY USER CONTENT YOU PROVIDE THROUGH OUR SERVICE, (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, AND (E) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT.
Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL INSEARCHX BE LIABLE FOR ANY DIRECT OR INDIRECT LOSSES OR DAMAGES ARISING OUT OF OR IN CONNECTION WITH THE USE OF OR INABILITY TO USE OUR SERVICE. IF YOU ARE DISSATISFIED WITH OUR SERVICE, OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OUR SERVICE. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY TO YOU UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF OUR SERVICE IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00).
For California Residents. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE 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." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST INSEARCHX.
DISPUTE RESOLUTION AND GOVERNING LAW, JURISDICTION AND COSTS
Governing Law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Delaware without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Boca Raton, Florida and you hereby consent to the exclusive jurisdiction and venue of the state or federal courts in Palm Beach County, Florida. You irrevocably submit and consent to the personal jurisdiction of such courts.
Dispute Resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to our Service or inSearchX Materials (defined below), this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and inSearchX agree to resolve such Dispute through confidential binding arbitration as set forth below.
Binding Arbitration. If you and inSearchX are unable to resolve a Dispute through informal negotiations, either you or inSearchX may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and inSearchX may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury under applicable law. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS. CLAIMS OF MORE THAN ONE PROVIDER OR USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER PROVIDER OR USER.
MISCELLANEOUS
Ownership of Intellectual Property. Unless otherwise specifically noted in this Agreement, images, trademarks, service marks, logos and icons displayed on our Service, are the property of inSearchX and/or its licensors and may not be used without our prior written consent. Our Service, including our systems, databases, information, data, documents, materials, works, Third Party Content, and all intellectual property rights in and to the foregoing (collectively, the “inSearchX Materials”) shall at all times remain the exclusive property of inSearchX and its third-party licensors. You are not acquiring any rights in or to the inSearchX Materials other than a non-exclusive right to access and use our Service solely in accordance with the terms of this Agreement. Our inSearchX Materials are our intellectual property and may not be reproduced, recreated, modified, accessed, or used in any manner or disseminated or distributed to any other party in violation of this Agreement. Any unauthorized use of any inSearchX Materials, whether owned by us or other parties, may violate copyright laws, trademark laws, privacy and publicity laws and communications regulations and statutes. Any third-party software included in our inSearchX Materials is licensed subject to the additional terms of the applicable third-party license. Trademarks owned by third parties are the property of those respective third parties.
Notice of Copyright Infringement. If you are an owner of intellectual property who believes your intellectual property has been improperly posted or distributed via the Service, please notify us by sending an email to legal@insearchx.com or by sending a notice by U.S. Mail to:
inSearchX, LLC
Attn: Legal Department/Copyright
170 NE 2nd St. #1331
Boca Raton FL 33429
Your notice to us must include the following information: (1) a physical or electronic signature of a person authorized to act on behalf of the owner of the copyrighted work allegedly infringed; (2) a description of the copyrighted work or works that allegedly have been infringed; (3) a description of where on our web site the allegedly infringing material appears that will allow us to locate the material; (4) your contact information, including your address, telephone number, and, if available, email address; (5) a statement by you that you have a good faith belief that the allegedly infringing use has not been authorized by the copyright owner, its agent, or the law; and (6) a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are authorized to act on behalf of the owner of the copyrighted work that has allegedly been infringed.
Term. This Agreement is effective upon your acceptance and will continue in full force until terminated by you or inSearchX. You may terminate this Agreement at any time by immediately discontinuing all access to our Service. Termination or cancellation of this Agreement will not affect any right or relief to which we may be entitled at law or in equity. We reserve the right to terminate this Agreement at any time and for any reason without prior notice to you. Further, you agree that we will not be liable to you or any third-party for any termination or suspension of your access to our Service or any part thereof.
Independent Contractors. You understand and expressly agree that you and inSearchX are independent contractors and not agents or employees of the other party. Neither you nor inSearchX has any right, power, or authority to act or create any obligation, express or implied, on behalf of the other party.
Consent to Do Business Electronically. You agree not to contest the authorization for, or validity or enforceability of, electronic records and electronic signatures, or the admissibility of copies thereof, under any applicable law relating to whether certain agreements, files, or electronic records are to be in writing or signed by you to be bound thereby.
Equitable Relief. You agree that breach of the provisions of this Agreement would cause irreparable harm and significant injury to us which would be both difficult to ascertain and which would not be compensable by damages alone. As such, you agree that we have the right to enforce the provisions of this Agreement by injunction (without necessity of posting bond), specific performance, or other equitable relief without prejudice to any other rights and remedies we may have for your breach of this Agreement.
Entire Agreement. This Agreement constitutes the entire agreement between you and inSearchX with respect to the subject matter hereof and supersedes all prior agreements, both oral and written. We may revise and update this Agreement from time to time, and will post the updated Agreement to our Service. UNLESS OTHERWISE STATED IN THE AMENDED VERSION OF THIS AGREEMENT, ANY CHANGES TO THIS AGREEMENT WILL APPLY IMMEDIATELY UPON POSTING. Although we are not obligated to provide you with notice of any changes, any changes to this Agreement will not apply retroactively to events that occurred prior to such changes. Your continued use of our Service will constitute your agreement to any new provisions within this revised Agreement.
Waiver; Severability. Our failure to enforce any provision of this Agreement will not be deemed to be a waiver of our right to enforce them. If any term or provision of this Agreement will be held to be invalid, illegal, or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and such invalid, illegal, or unenforceable term or provision will be deemed not to be part of this Agreement.
Assignment. You may not assign, transfer, or sell (voluntarily or by operation of law) your rights or obligations under this Agreement without our prior written consent. Any purported assignment without our consent will be void and will constitute a breach of this Agreement. We may assign this Agreement or delegate or subcontract our obligations under this Agreement at any time.
Survival. The provisions of this Agreement that by their content are intended to survive the expiration or termination of this Agreement, including, without limitation, provisions governing ownership and use of intellectual property, representations, disclaimers, warranties, liability, indemnification, governing law, jurisdiction, venue, remedies, rights after termination, and interpretation of this Agreement, will survive the expiration or termination of this Agreement for their full statutory period.
Contact Us. If you have questions about this Agreement, email us at legal@insearchx.com.