THIS AGREEMENT GOVERNS YOUR ACCESS AND USE OF OUR SERVICES.
YOU MAY NOT ACCESS THE SERVICES IF YOU ARE OUR DIRECT COMPETITOR, EXCEPT WITH OUR PRIOR WRITTEN CONSENT. IN ADDITION, YOU MAY NOT ACCESS THE SERVICES FOR PURPOSES OF MONITORING THEIR AVAILABLITY, PERFORMANCE, OR FUNCTIONALITY, OR FOR ANY OTHER BENCHMARKING OR COMPETITIVE PURPOSES.
THIS AGREEMENT WAS LAST UPDATED ON JUNE 1ST, 2015. IT IS EFFECTIVE BETWEEN YOU AND US AS OF THE DATE YOU ACCEPT THIS AGREEMENT.
By accessing this website, you are agreeing to be bound by these website Terms and Conditions of Use, all applicable laws and regulations, and agree that you are responsible for compliance with any applicable local laws. If you do not agree with any of these terms, you are prohibited from using or accessing this site. The materials contained in this website are protected by applicable copyright, trade mark, and patent/patent pending law. Upon registration of a User Account, the person ("User") submitting the Registration Form through this website agrees that User's use of any products or services (the "Service" or "Services") offered by MotoMiner will be subject to these standard terms and conditions (this "Agreement").
MotoMiner MAKES NO WARRANTIES, EXPRESS OR IMPLIED, REGARDING THE SERVICES PROVIDED UNDER THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. THE SERVICES ARE PROVIDED "AS IS" AND "WITH ALL FAULTS" AND MotoMiner MAKES NO WARRANTY THAT THE SERVICES (I) WILL BE UNINTERRUPTED OR ERROR-FREE OR WILL OPERATE IN CONNECTION WITH ANY PARTICULAR SOFTWARE, OR THAT ANY ERRORS WILL BE CORRECTED; (II) WILL MEET USER'S REQUIREMENTS OR EXPECTATIONS; (III) WILL PRODUCE ACCURATE OR RELIABLE RESULTS; OR (IV) WILL BE FREE OF VIRUSES OR OTHER HARMFUL OR MALICIOUS CODE. FURTHER, MotoMiner DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS CONCERNING THE ACCURACY, LIKELY RESULTS, OR RELIABILITY OF THE USE OF THE MATERIALS ON ITS INTERNET WEBSITE OR OTHERWISE RELATING TO SUCH MATERIALS OR ON ANY SITES LINKED TO THIS SITE.
User will indemnify, defend, and hold harmless MotoMiner, its Affiliates, successors and assigns, and all of their respective officers, directors, employees, and agents from and against any and all claims, losses, demands, causes of action, debts, or liabilities, including reasonable attorneys' fees, arising out of a third-party claim resulting from (i) any breach or alleged breach of User's obligations, representations, or warranties under this Agreement, (ii) User's use of the Services, or (iii) any claim that any User trademarks, service marks, trade names, logos, or other content or materials furnished by User for use in connection with the Services, including, without limitation, any User Data and any User Materials, but excluding any content provided by MotoMiner, (a) misappropriates any third party's confidential information, (b) violates any applicable law, rule, or regulation, (c) libels any person or entity, or (d) otherwise violates or infringes the rights of any third party, including, without limitation, any patent, copyright, trademark, trade secret, or other intellectual property or proprietary right, or any right of privacy or publicity.
IN NO EVENT WILL MotoMiner, ITS AFFILIATES, SUBSIDIARIES, OR LICENSORS BE LIABLE TO USER OR ANY THIRD PARTY FOR ANY SPECIAL, INDIRECT, PUNITIVE, CONSEQUENTIAL, OR INCIDENTAL DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOSS OF USE, OR LOSS OF DATA, ARISING OUT OF OR RELATED TO THIS AGREEMENT UNDER ANY CAUSE OF ACTION, WHETHER BASED ON BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. MotoMiner, ITS AFFILIATES AND THEIR LICENSORS' TOTAL LIABILITY TO USER OR ANY THIRD PARTY CLAIMING THROUGH USER FOR ANY CLAIM ARISING OUT OF MotoMiner's PERFORMANCE UNDER THIS AGREEMENT OR ITS PROVISION OF THE SERVICES HEREUNDER WILL NOT EXCEED, IN THE AGGREGATE, THE TOTAL FEES ACTUALLY PAID BY USER TO MotoMiner WITH RESPECT TO THE SERVICE(S) OUT OF WHICH THE CLAIM ARISES DURING THE NINETY (90) DAY PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE CLAIM.
6.1. Rights in MotoMiner Online Services. The Services constitute the intellectual property of and are owned by MotoMiner, its Affiliates, and/or its licensors. MotoMiner, its Affiliates, and/or its or their licensors retain all rights, including all patent, copyright, trademark, trade secret, and other intellectual property or proprietary rights in and to the Services. The structure, organization, and code of the Services are valuable trade secrets and Confidential Information of MotoMiner, its Affiliates, and/or its or their licensors. Except as expressly stated herein, this Agreement does not grant User any intellectual property rights in any Services and all rights not expressly granted are expressly reserved by MotoMiner, its Affiliates, and/or its or their licensors. User may not remove or authorize or permit its Authorized Users to remove or obscure any proprietary rights legends from the Services. For purposes of this Agreement, "Affiliate" means any entity that directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with, MotoMiner, where "control" means the power to direct or cause the direction of the management and policies of such other entity, whether through the ownership of voting securities, by contract or otherwise.
6.2. Trademarks. MotoMiner, its Affiliates, and/or its or their licensors own and retain all rights in any trademarks, service marks, trade names, and logos, and all related products and service names, marks, and slogans used by MotoMiner in connection with the Services and excluding only any User trademarks, service marks, trade names, and logos provided by User for use in connection with any services provided by MotoMiner. Any other trademarks, service marks, trade names, or logos contained within any Services are owned by their respective owners.
6.3. DataOne Software. Certain automotive content displayed within this website are Copyright DataOne Software (2000-2018) and are protected under the United States and international copyright law. Any unauthorized use, reproduction, distribution, recording or modification of this content is strictly prohibited.
6.4. Deal Ranking Algorithm. MotoMiner employs a proprietary deal ranking algorithm and makes no guaranties for this algorithm, as it is a best-guess ranking dependent fully upon the data provided by the seller of each vehicle. It is ultimately the consumer's responsibility to determine the quality of the deal.
7.1. Definition of Confidential Information. For purposes of this Agreement, "Confidential Information" means the terms and conditions of this Agreement, and all non-public information about MotoMiner' business or activities that is marked or designated by MotoMiner as "confidential" or "proprietary" at the time of disclosure or that reasonably would be understood to be confidential given the circumstances of disclosure. Without limiting the generality of the foregoing, Confidential Information will include, without limitation all MotoMiner business (including pricing), financial, technical, and other similar information.
7.2. Use of Confidential Information. User agrees that during the Agreement Term and for three (3) years thereafter: (i) it will not disclose to any third party any Confidential Information disclosed to it by MotoMiner except as expressly permitted in this Agreement; (ii) it will not use any Confidential Information disclosed to it by MotoMiner except as necessary to perform its obligations under this Agreement; and (iii) it will take all reasonable measures to maintain the confidentiality of all Confidential Information of MotoMiner in its possession or control, which will in no event be less than the measures it uses to maintain the confidentiality of its own information of similar importance. Notwithstanding the foregoing, User may disclose Confidential Information (a) to the extent required by a court of competent jurisdiction or other governmental authority or otherwise as required by law, provided that such party uses reasonable efforts to request confidential treatment or a protective order before such disclosure; and (b) on a "need-to-know" basis to its legal counsel, accountants, employees and agents who are obligated to maintain the confidentiality of such information. User agrees that it shall remain liable for the compliance by such persons with the terms of this Agreement. Upon termination or expiration of this Agreement, or at the request of MotoMiner, User shall (at its option) return the Confidential Information to MotoMiner, or destroy it and, upon MotoMiner' request, certify that it has taken such action.
Except as otherwise provided herein, any notice provided pursuant to this Agreement will be in writing, and will be sent by U.S. mail, postage prepaid, certified mail return receipt requested or by overnight courier addressed (if to User) to the address set forth on the website or to MotoMiner, 1515 W Diane Street, Suite B, Ozark, MO 65721 or to such other address as maybe provided by notice by the applicable party in accordance with this Section.
User may not resell, assign, or transfer any of its rights hereunder, and any attempt to resell, assign, or transfer such rights is void. MotoMiner may subcontract to any third party all or any part of the Services being provided by MotoMiner to User pursuant to this Agreement.
The materials appearing on MotoMiner's website could include technical, typographical, or photographic errors. MotoMiner does not warrant that any of the materials on its website are accurate, complete, or current. MotoMiner may make changes to the materials contained on its website at any time without notice. MotoMiner does not, however, make any commitment to update the materials.
MotoMiner has not reviewed all of the sites linked to or linked on its Internet website and is not responsible for the contents of any such linked site. The inclusion of any link does not imply endorsement by MotoMiner of the site. Use of any such linked website is at the user's own risk.
This Agreement and performance hereunder will be governed by the laws of the State of Missouri, without regard to its conflicts of laws rules. The parties hereby agree that the sole jurisdiction and venue for any litigation arising from or relating to this Agreement will be an appropriate federal or state court located in Springfield, MO.
This Agreement constitutes the complete and exclusive agreement between the parties relating to the subject matter hereof. It supersedes all prior proposals, understandings, and all other agreements, oral and written, between the parties relating to this subject matter. The waiver or failure of either party to exercise any right provided for herein will not be deemed a waiver of any further right hereunder. Except as otherwise set forth in Section 12, this Agreement may not be modified or altered except by written instrument duly executed by an authorized officer of each party, and any such other modification shall be null and void and of no legal effect. If any provision of this Agreement is held to be invalid, illegal, or unenforceable by a court of competent jurisdiction, such provision will be deemed restated, in accordance with applicable law, to reflect as nearly as possible the original intentions of the parties, and the remainder of the Agreement will remain in full force and effect. This Agreement may be executed in counterparts, each of which will constitute an original, and all of which will constitute one agreement.