BY ACCESSING OR USING THE DIGITAL SERVICES, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY AND COMPLY WITH THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, DO NOT ACCESS OR USE THE SERVICES. SPECIFICALLY, PLEASE TAKE NOTICE THAT WITH LIMITED EXCEPTIONS, ALL DISPUTES BETWEEN YOU AND US REGARDING THIS AGREEMENT ARE SUBJECT TO BINDING ARBITRATION ON AN INDIVIDUAL BASIS RATHER THAN JURY TRIALS, INCLUDING CLASS ACTION LAWSUITS, IN COURTS AND ONLY SPECIFIC REMEDIES ARE AVAILABLE.
The entity you are contracting with is: Motologiq Inc., 601 Dresher Rd Suite 300, Horsham, PA 19044 USA. In this User Agreement, this entity is individually and collectively referred to as “Motologiq, Inc”, “motobyo”, “motobyo.com”, “Services”, “we,” or “us.”
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. Also be advised that: (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) on an individual basis and the total claim for monetary relief can only be equal to the total amount of fees that we collect from you or less. For example: If you have listed a vehicle for sale and paid us $99 or $299 or more to list the vehicle, then you total claim cannot be more than those amounts paid to us. The exact fees paid to us is our limit of liability for any transaction. If you do not agree with this policy, do not use our services.
2. About Motobyo
Motobyo is a digital marketplace that allows users to offer, sell and buy just about anything automotive related in a variety of pricing formats, auction formats and locations. The actual contract for sale is directly between the seller and buyer. Motobyo is not a traditional auctioneer.
MOTOBYO IS NOT AN AUTOMOBILE BROKER, DEALER OR TRADITIONAL AUCTIONEER AND WE DO NOT SELL, EXCHANGE, BUY, OR OFFER FOR SALE, NEGOTIATE OR ATTEMPT TO NEGOTIATE, A SALE OR EXCHANGE OF AN INTEREST IN ANY VEHICLE LISTED ON THE DIGITAL SERVICES. MOTOBYO DOES NOT: (I) HOLD TITLE FOR ANY VEHICLE LISTED ON THE DIGITAL SERVICES, (2) INSPECT ANY VEHICLE LISTED ON THE DIGITAL SERVICES OR (3) HAVE ANY VEHICLES LISTED ON THE DIGITAL SERVICES IN ITS LEGAL POSSESSION.
Any guidance we provide as part of our Services, such as pricing, transportation, listing, and sourcing is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, Motobyo has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
3. Using Motobyo
In connection with using or accessing our Services you will not:
post, list or upload content or items in inappropriate categories or areas on our sites; breach or circumvent any laws, regulations, third-party rights or our systems, Services, policies, or determinations of your account status;
use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our Services, or are a person with whom transactions are prohibited under economic or trade sanctions;
fail to pay for items purchased by you, unless you have a valid reason as set out in an Motobyo policy, for example, the seller has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot contact the seller (see our Unpaid item policy);
fail to deliver items sold by you, unless you have a valid reason as set out in our policy, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;
manipulate the price of any item or interfere with any other user’s listings;
post false, inaccurate, misleading, deceptive, defamatory, or libelous content; take any action that may undermine the ratings systems;
transfer your Motobyo account and/or user ID to another party without our consent; distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes; distribute viruses or any other technologies that may harm Motobyo or the interests or property of users; 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 the prior express permission of Motobyo; interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure; export or re-export any Motobyo application or tool, except in compliance with the export control laws, Motobyo rules, and rules and policies of any relevant jurisdictions; infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to Motobyo. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Motobyo or someone else;
infringe any Intellectual Property Rights that belong to third parties affected by your use of our Services or post content that does not belong to you; commercialize any Motobyo application or any information or software associated with such application, except with the prior express written permission of Motobyo; harvest or otherwise collect information about users without their consent; or circumvent any technical measures used to provide our Services.
Sellers must meet Motobyo’s minimum performance standards. Failure to meet these standards may result in Motobyo charging you additional fees, and/or limiting, restricting, suspending, or downgrading your buyer or seller account.
If we believe you are abusing Motobyo and/or our Services in any way, we may, at our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
We may cancel unconfirmed accounts or accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.
4. Policy Enforcement
When a buyer or seller issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.
5. Fees and Taxes
The fees we charge for using our Services are listed plainly on the Motobyo.com website. We may change our fees from time to time by posting the changes on the Motobyo site, with no advance notice required.
If you are a seller, you are liable for listing and related services fees arising out of listings made using some or all of our Services, even if sales terms are finalized or payment is made outside of Motobyo. The seller fees and services fees are paid up front when your item is listed and apply to all sales or no-sales completed or not completed on the Motobyo site or outside the site. Buyer fees are charged at the end of the auction and are paid regardless of whether a transaction is completed or not.
In any jurisdiction where Motobyo has an obligation to collect sales taxes on purchases you make using our products or Services, we may collect such sales taxes from you using any means available to us.
Seller fees and/ or buyer fees do not purchase exclusive rights to item exposure on our Services. We may display third-party advertisements (including links and references thereto) or other content in any part of our Services, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers.
Buyers and Sellers agree to pay any applicable fees for our Services, including, without limitation, any applicable sales, uses or similar taxes or charges. Certain products, fee-based services or features that you purchase, access or download via the Digital Services may be subject to additional terms and conditions presented to you at the time of purchase, access or download.
Credit card payments made by buyers and sellers to Motobyo shall be facilitated through Stripe, Inc., Motobyo’s third party payment processing service. Stripe’s terms of service can be found at https://stripe.com/us/terms. All information that you provide in connection with any charge must be accurate, complete, and current. You agree to pay all charges incurred by any users of your credit card, debit card, or other payment method used in connection with a purchase on our Service at the prices in effect when such charges are incurred. You also agree to pay any applicable taxes, if any, relating to any purchase. ACH, wire transfer, google pay, apple pay and other payment methods are regularly available on the Motobyo.com platform. Some of these payment methods are facilitated by Stripe and some come direct to Motobyo via bank transfers.
6. Selling Conditions
When listing an item for sale on our Services, you agree to comply with Motobyo’s Listing policies and Selling practices policy and that:
You assume full responsibility for the item offered and the accuracy and content of the listing. You agree to list your item honestly, with known mechanical problems, cosmetic problems, history problems, title problems and any other known information listed to give potential buyers a clear understanding of the item.
Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Motobyo can’t guarantee exact listing duration.
Content that violates any policy may be modified, obfuscated or deleted at our sole discretion.
We may revise product data associated with listings to supplement, remove, or correct information.
We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
searcher’s location, search query, browsing site, and history;
item location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
seller history, including listing practices, Seller Ratings, Motobyo policy compliance, defect rate; and number of listings matching the buyer query.
To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer.
Some advanced listing upgrades will only be visible on some of our Services.
Our Duplicate listings Policy may also affect whether your listing appears in search results.
Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results.
We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results may vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to other sellers.
For items listed in certain categories, subject to certain programs, and/or offered or sold at certain price points, we may require the use of certain payment methods, subject to our Payments methods policy. For example, buyers and sellers may be subject to escrow and/or payment handling requirements.
No Refunds. All vehicle purchases made from a Seller using our Service is between the applicable Buyer and Seller; for that reason, in the event you seek a refund related to a vehicle purchase or have any questions, you must directly contact the applicable Seller.
7. Vehicle offers and pricing recommendations
Motobyo utilizes proprietary pricing software to help guage the value of vehicles based on market conditions of similar vehicles with similar attributes. Any valuations or suggested vehicle values are provided for informational purposes only and are based on a vehicle with a clean title history, in normal operating condition, with normal options and packages and without damage. Motobyo’s value estimations are meant to be used as a guide on clean vehicles in excellent running condition with only light, normal wear. Any partner buying center will adjust the cash offer and/or reject any vehicle if the condition is different than as described by the seller, if the vehicle has out of the ordinary options, missing options, iregular features, mechanical problems, cosmetic problems, aftermarket equipments, interior damage or needed repairs, needed service or maintenance, etc. The partner buying center may refuse to purchase any vehicle for any reason and cannot be help liable for any reason. In the event of a pricing technology, mis-quote or other pricing malfunction Motobyo will refund any fees collected from the seller and allow the vehicle to be re-listed once th error has been corrected. This system is not designed to price junk vehicles, vehicles with prior title history issues or vehicles with major damages (either cosmetic or mechanical).
No Warranties. Motobyo specifically (but without limitation) disclaims (i) any implied warranties of merchantability, fitness for a particular purpose, quiet enjoyment, or non-infringement; and (ii) any warranties arising out of course-of-dealing, usage, or trade. You assume all risk for any/all damages that may result from your use of or access to the Services. Motobyo is not responsible for the loss of, damage to, or unavailability of any information you have made available through the Services, and you are solely responsible for ensuring that you have backup copies of any information you have made available through the Services.
No Guarantee Of Accuracy. Motobyo does not guarantee the accuracy of, and disclaims all liability for, any errors or other inaccuracies in the information, content, recommendations, and materials made available through the Services.
Services Provided For Informational Purposes. The information provided through the Services is provided solely for informational, educational, or entertainment purposes. Motobyo is not a financial institution or insurance provider. Motobyo makes no representations, warranties, or guarantees, express or implied regarding the use of the Services. Before making any financial decisions or implementing any financial strategy, including recommendations of third parties identified through the Services, Motobyo recommends that you obtain additional information and advice of accountants or other financial advisors who are fully aware of your individual circumstances.
No Warranties Regarding Third Parties. Motobyo makes no representations, warranties, or guarantees, express or implied, regarding any third party service or advice provided by a third party, or any quotes or offers provided through the Services. Motobyo does not endorse any particular advisor or other third party. Motobyo acts solely as an intermediary between you and third party service providers and expressly disclaims any and all liability for any content, products, or services provided by such service providers.
Limitation of Liability. In no event will Motobyo be liable to you for any incidental, special, consequential, direct, indirect, or punitive damages, whether based on warranty, contract, tort (including negligence), statute, or any other legal theory, whether or not Motobyo has been informed of the possibility of such damage. Some jurisdictions do not allow the disclaimer of warranties or limitation of liability in certain circumstances. Accordingly, some of the above limitations may not apply to you.
8. Buying Conditions
When buying an item on our Services, you agree to the Rules and policies for buyers and that:
You are responsible for reading the full item listing before making a bid or committing to buy.
You enter into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted). A bid or offer that meets the reserve or is electronically accepted by a seller initiates a binding transaction. This creates a bonafide formal contract between the buyer and the seller. For this reason, it is imperative that all bidders make arrangements to have funds available to pay for any item that they place a bid on, before they place a single bid. We do not transfer legal ownership of items from the seller to the buyer and we do not step in help enforce these contracts between seller and buyer. We do take every Motobyo user’s actions seriously and will, at our discretion, limit, remove, terminate or otherwise cancel the account of any user who is not acting appropriately.
9. International Buying and Selling; Translation
Although our Services are intended to be used in the USA only, many of our Services are accessible internationally. We may offer certain programs, tools, and site experiences of particular interest to international sellers and buyers, such as estimated local currency conversion and international shipping calculation tools. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items.
If you purchase an item on a Motobyo site that is different from your registration site, you are subject to the User Agreement and applicable policies of that other Motobyo site with respect to that particular purchase, as detailed in the International Selling Policy.
For sellers, you agree that we may display your listing for sale on a Motobyo site other than the site where you listed your item for sale, based on your location and the location of interested buyers. The appearance of your listings on sites other than the listing site is not guaranteed. If you sell an item on a Motobyo site that is different from your registration site, you are subject to the User Agreement and applicable policies of both sites.
You authorize us to use automated tools to translate your listing content and member-to-member communications, in whole or in part, into local languages where such translation solutions are available. We may provide you with tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed.
Both sellers and buyers consent to the disclosure of certain personally identifiable information, as well as listing and order information, by Motobyo to all parties involved in your transaction; including but not limited to: all buyers, sellers, escrow agent, service contract agents, any Motobyo employee or agent, etc.
When you provide content using our Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of our Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against Motologiq Inc, our assignees, our sublicensees, and their assignees in connection with our, those assignees’, and those sublicensees’ use of that content in connection with our provision, expansion, and promotion of our Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Motobyo takes no responsibility and assumes no liability for any content provided by you or any third party.
We offer product data (including images, descriptions and specifications) that are provided by third parties (including other users). You may use that content solely in your Motobyo listings. We may modify or revoke that permission at any time in our sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable product data, but cannot promise that the content provided through our Services will always be available, accurate, complete, and up-to-date. You agree that Motobyo is not responsible for examining or warranting the listings or content provided by third parties through our Services, and that you will not attempt to hold us or our data providers liable for inaccuracies.
The name “Motobyo” and other Motobyomarks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Motobyo in the U.S. and other countries. They may not be used without the express written prior permission of Motobyo.
11. Authorization to Contact You; Recording Calls; Analyzing Message Content
Motobyo may contact you using live or autodialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Motobyo may also contact you using autodialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications. Our collection, use, disclosure, retention, and protection of your personal information is governed by the User Privacy Notice. As described in our User Privacy Notice, Motobyo may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits.
We may share your telephone number with our authorized service providers as stated in our User Privacy Notice. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by Motobyo to carry out the purposes identified above.
We may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Motobyo or its agents for quality control and training purposes, or for its own protection.
Our automated systems scan and analyze the contents of every message sent through our messages platform, including messages between users, to detect and prevent fraudulent activity or violations of the User Agreement, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. We may store message contents, including to conduct this scanning and analysis.
Privacy of Others; Marketing
12. Managed Payments
Motobyo has a managed payments service or “Payment Protection” plan that manages payments on behalf of both sellers and buyers when requested by either party or in the case of a vehicle sale where the buyer has a loan payoff on the vehicle being sold. In this case, the Payment Protection service is a required service and is paid for by the vehicle seller.
Motobyo will make contact with any seller of a vehicle opting to use the Payment Protection service either before the item has been sold or soon thereafter to collect all payoff and other information needed to transact with the bank or financial institution that holds the title. All bank accounts must be U.S. based.
The contract for sale underlying the purchase of goods is directly concluded between seller and the buyer in the same manner as for transactions for which the Payment Protection service entity does not manage payments.
If you are a buyer completing a purchase from a seller that is using the Payment Protection service:
You will pay for any vehicles, services, or products purchased directly to the Motobyo assigned Payment Protection service. By completing purchases from sellers who indicate the desire or need to complete the sale using the Payment Protection service, buyers authorize the Motobyo payment service to initiate payments using the buyers’ selected payment method and collect the transaction amounts on behalf of sellers. Accordingly, payments received by the Payment Protection service agents from buyers satisfy buyers’ obligations to pay sellers in the amount of payments received. In certain instances, your transaction may be declined, frozen, or held for any reason including for suspected fraud, AML compliance, compliance with economic or trade sanctions, in connection with Motobyo’s internal risk controls or due to potential violations of any policy of Motobyo or the Payment Protection service, or a third party payments provider.
Motobyo, the payments entity or its affiliates may save payment information, such as credit card or debit card numbers, and card expiration dates, entered by you on our Services when you make a purchase, redeem a coupon, or make any other transaction on our Services where card information is entered. You are responsible for maintaining the accuracy of information in your profile, and you consent to Motobyo updating such stored information from time to time based on information provided by you, your bank or other payments services providers. You will only provide information about payment methods that you are authorized to use. You agree to comply with, and not cause a third party to violate, all applicable laws, regulations, rules and terms and conditions in connection with the use of our Payment Protection services. You understand that some third parties, such as credit and debit card issuers, credit and debit card networks and payments services providers, may have their own terms and conditions for the payment or settlement methods you choose to use in connection with any purchase or sale. Failure to abide by third party terms and conditions may result in fees assessed to you (for example, currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency) or other actions taken by such third parties, and you agree that the payments entity has no control over, or responsibility or liability for, such fees or actions.
13. Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in our applications may not occur in real time. Such functionality is subject to delays beyond our control.
You agree that you are making use of our 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.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from the content you provide (directly or indirectly) using our Services;
your use of or your inability to use our Services; pricing, shipping, format, or other guidance provided by us; delays or disruptions in our Services;
viruses or other malicious software obtained by accessing or linking to our Services; glitches, bugs, errors, or inaccuracies of any kind in our Services;
damage to your hardware device from the use of any Motobyo Service;
the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items or listings that violate any policy; a suspension or other action taken with respect to your account or breach of any part of the user agreement;
the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the amount of fees that we collected from you in connection with the single transaction in dispute.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims that you may know or suspect to exist in your favor at the time of agreeing to this release.
16. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND MOTOBYO HAVE AGAINST EACH OTHER ARE RESOLVED.
In this Legal Disputes Section, the term “related third parties” includes your and Motobyo’s respective affiliates, subsidiaries, parent companies, predecessors, successors, assigns, as well as your, Motobyo’s, and these entities’ respective employees and agents.
You and Motobyo agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Motobyo (or any related third parties) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of Motobyo or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Pennsylvania, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and Motobyo, except as otherwise stated in this User Agreement.
B. Agreement to Arbitrate
You and Motobyo each agree that any and all disputes or claims that have arisen, or may arise, between you and Motobyo (or any related third parties) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to our Services, the actions of Motobyo or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court. The maximum liability of such a claim for Motobyo will be equal to the amount of user fees that we ave collected from you in respect to the single transaction in dispute. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individualized basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules and the AAA’s Commercial Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by Motobyo and/or its agents.
A party who intends to seek arbitration must first send to the other, by certified mail, a valid Notice of Dispute (“Notice”). The Notice to Motobyo must be sent to Motologiq, Inc., Attn: Litigation Department, Re: Notice of Dispute, 1000 N West Street, Suite 1200 PMB2003, Wilmington, DE 19801. We will send any Notice to you to the physical address we have on file associated with your Motobyo account; it is your responsibility to keep your physical address up to date. To be valid, you must personally sign the Notice and complete all information on the Notice form, including a description of the nature and basis of the claims you are asserting, the specific relief sought, and the email address and phone number associated with your account.
If we are unable to resolve the claims described in a valid Notice within 30 days after Motobyo receives that Notice, you or Motobyo may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Motobyo at the following address: Motologiq, Inc 1000 N West Street, Suite 1200 PMB2003 Wilmington, DE 19801. In the event the Motobyo initiates an arbitration against you, we will send a copy of the completed form to the physical address we have on file associated with your Motobyo account. Any settlement offer made by you or Motobyo shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. Where no disclosed claims or counterclaims exceed $1,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Motobyo may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Motobyo user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be paid by the party making the claim.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Motobyo prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Motobyo. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms by providing notice through the eBay Message Center and/or by email. If you do not agree to these amended terms, you may close your account and you will not be bound by the amended terms.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice in your message center.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on Motobyo.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. Additionally, we will notify you through the Motobyo Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and a Motobyo representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on Motobyo.com.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and Motobyo, and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
18. Third Party Services
Advice from Third Parties. Some of the Services offered on our Motobyo.com website or apps involve advice from third parties and third party content. You agree that any such advice and content is provided for information, education, and entertainment purposes only, and does not constitute legal, financial, tax planning, medical, or other advice from Motobyo. You agree that Motobyo is not liable for any advice provided by third parties. You agree that you are responsible for your own research and decisions, and that Motobyo is not responsible or liable for any decisions or actions you take or authorize third parties to take on your behalf based on information you receive as a user of Motobyo.
b) Sharing Information With Third Parties. To use some of the Services, you may need to provide information such as credit card numbers, bank account numbers, and other sensitive financial information, to third parties. You agree that your decision to make available any sensitive or confidential information is your sole responsibility and at your sole risk. Motobyo has no control and makes no representations as to the use or disclosure of information provided to third parties. You agree that these third party services are not under Motobyo’s control, and that Motobyo is not responsible for any third party’s use of your information.
c) Motobyo Does Not Endorse Third Parties. The Services may contain links to third party websites and services. Motobyo provides such links as a convenience, and does not control or endorse these websites and services. You acknowledge and agree that Motobyo has not reviewed the content, advertising, products, services, or other materials that appear on such third party websites or services, and is not responsible for the legality, accuracy, or appropriateness of any such content, and shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of any such third party websites or services.
d) Motobyo receives compensation from third party Service Providers, including finance sources, insurance carriers, transportation companies, affiliate partners and others.
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