Last Modified: October 18, 2021
These Equipment Listing Terms and Conditions (the “Terms and Conditions”) set forth the terms and conditions governing the relationship between you (either as an individual or on behalf of the legal entity you represent) (the “Advertiser”), Marketplace Enterprises LLC (“Marketplace Enterprises”) and Electric Cycle Rider LLC (“Electric Cycle Rider”) (“Marketplace Enterprises and Electric Cycle Rider are collectively referred to as “ECR”), relating to Advertiser’s use of the Platform located at www.electriccyclerider.com, including the Marketplace portion of the Platform located at www.electriccyclerider.com/marketplace, and the advertising and/or offering Equipment (as defined below) for sale on the Platform.
- Equipment Advertising and Promotion. Subject to these Terms and Conditions, and payment of all fees for the Platform services, ECR agrees to provide Advertiser a limited, revocable, non-exclusive license to access the Platform and the content and services provided on the Platform solely for the purpose of advertising and promoting electric bicycles, motorcycles, scooters, equipment, and other related goods (“Services”) to users of the Platform who are looking to purchase Equipment (“Customers”).
- ECR Not a Party to Any Transaction. ECR is not a party to any purchase agreement or other transaction between Advertisers and Customers. ECR also does not get in the middle of disputes between Customers and Advertisers.
- Customer Identity Verification/Background Checks. Customer verification on the Internet is difficult and ECR cannot, and does not assume any responsibility for, the confirmation of each Customer’s purported identity or background.
- Advertiser Identity and Location Verification. ECR reserves the right at any time to perform background checks on Advertisers and Advertisers may be subject to verification, including, but not limited to, validation against third-party databases or the verification of one or more official government or legal documents that confirm Advertiser’s identity and location. You authorize ECR, directly or through third parties, to make any inquiries necessary to validate Advertiser’s identity, location, and confirm Advertiser’s ownership of its email address or financial accounts, subject to applicable law. When requested, you must timely provide us with complete information about yourself and your business, which includes, but is not limited to, providing official government or legal documents. During verification some Platform account features may be temporarily limited.
- Customer Ratings. Advertiser acknowledges that the Platform is intended to refer Customers only to those Advertisers who maintain the highest standards of professionalism and quality of service. Advertiser acknowledges that Customers may rate and review an Advertiser at any time. Advertiser agrees to maintain high standards of professionalism, quality and service, including maintaining a Customer rating at or above the minimum rating established by ECR for access to the Platform, as modified from time to time.
- Advertiser Obligations and Responsibilities.
- Compliance with Applicable Law. Advertisers are fully responsible for and agree to comply with all applicable laws, rules and regulations applicable to the listing or advertising of the Equipment and the conduct of Advertiser’s business, including but not limited to any and all laws, rules, regulations or other requirements relating to taxes, credit cards, data and privacy, taxes, permits or license requirements, zoning ordinances, safety compliance and compliance with all anti-discrimination and fair housing laws, as applicable.
- Equipment Listings. All Equipment listings on the Platform are the sole responsibility of the Advertiser, and ECR specifically disclaims any and all liability arising from the alleged accuracy of the listings, reviews, or any alleged breaches of contract on a Customer’s part.
- License and Rights Granted to ECR.
- By submitting or authorizing Advertiser contributed User Contributions, Advertiser grants to ECR and its affiliates a perpetual, worldwide, irrevocable, unrestricted, non-exclusive, royalty-free and fully paid-up license to use, copy, license, sublicense (through multiple tiers), adapt, distribute, display, publicly perform, reproduce, transmit, modify, edit and otherwise exploit the copy, the photographs and the likenesses (if any) of any of Advertiser’s User Contributions, in connection with ECR’s business or the business of its affiliates.
- Advertiser further grants ECR and its affiliates the ability to copyright and protect the User Contributions, including the images, copy, and content available via any Advertiser’s listing, from the unauthorized use by unaffiliated third parties who may, from time to time, attempt to pirate such information via electronic or other means. This includes, but is not limited to, the right to file suit to seek injunctive relief to protect such material. You further agree to assist ECR, at ECR’s expense and control, to protect such copyrighted material from unauthorized redistribution.
- Advertiser agrees that ECR may sublicense all the rights granted to it under these Terms and Conditions to one or more third parties ECR may contract with to display all or part of the Advertiser’s Equipment listing or otherwise provide promotional or other services related to ECR’s business. Further, Advertiser agrees that ECR may reproduce in whole or in part any photographic material supplied by Advertiser in the promotion of the Equipment or the promotion of the Platform. In the event that it is determined that Advertiser retains any rights of attribution, integrity or any other moral rights in any User Contributions, Advertiser hereby declares that it does not require that any personally identifying information be used in connection with the User Contributions or any derivative works thereof and that Advertiser has no objection to the publication, use, modification, deletion or exploitation of the User Contributions by ECR or its affiliates.
- Limitations on Communications and Use of Customer’s Information.
- Advertiser agrees that, with respect to Customer’s personal information that Advertiser obtains directly or indirectly from or through the Platform or through any Platform-related communication or transaction, ECR grants to Advertiser a license to use such information only for: (a) Platform related communications that are not unsolicited commercial messages, (b) using services offered through the Platform, and (c) inquiring about or otherwise facilitating a financial transaction between Advertiser and the Customer related to the purpose of the Platform. Any other purpose will require express permission from the Customer. Advertiser may not use any such information for any unlawful purpose or with any unlawful intent.
(2) In all cases, Advertisers must give Customers an opportunity to remove their information from the Advertiser address book or database or other records and a chance to review what information Advertiser has collected about them. In addition, under no circumstances, except as defined in this section, may Advertiser disclose personal information about a Customer to any third party without both ECR’s consent and the consent of the Customer. Further, Advertiser agrees that it will protect Customer’s personal information with the same degree of care that it protects its own confidential information (using at minimum a reasonable standard of care), and Advertiser assumes all liability for the misuse, loss, or unauthorized transfer of such information.
- Fees, Payment Terms.
- Subscription Fees. Advertiser shall pay ECR the fees and expenses set forth in the applicable order between Advertiser and ECR. Payment will be as set forth in the applicable order form, generally by major credit card or debit card, Stripe, Paypal, e-check or similar, on an annual automatic and recurring basis. A valid credit card must remain on file at all times.
- Automatic Renewal of Subscriptions. For any subscription paid for by credit card, such subscription shall automatically renew at the expiration of the then-current term for an additional term of the same duration (as the previous term) and at the then-current non-promotional subscription rate. Automatic renewal applies to all subscriptions purchased by credit card or e-check. The automatic renewal feature allows your service to remain uninterrupted at the expiration of your then-current term. If Advertiser wishes to turn off auto-renewal, Advertiser must log on to its account and manually turn off auto-renewal, prior to expiration of the then-current term. Requests received via email, voicemail, or other correspondence do not constitute a valid opt-out. Upon any such turning off auto-renewal, your subscription will remain active through the expiration of your then-current subscription term, however your subscription will not be automatically renewed upon the expiration of your then current term. If the subscription does not auto-renew or expires at the end of the then current subscription term and Advertiser desires to renew the subscription, Advertiser will be required to pay the then-current non-promotional subscription rate to renew the subscription or to activate a new subscription. If Advertiser does not turn off auto-renewal, Advertiser re-affirms and authorizes ECR to charge the credit card at the end of each subscription term for an additional term of the same duration as the initial term and at the then-current non-promotional subscription rate for the same product or service. ECR intends to send reminder emails, prior to the expiration of the term, with regard to the subscription end date and automatic renewal.
- Non-Subscription Listings. If ECR enables Advertiser to list or promote Equipment on a basis other than by subscription, Advertiser agrees to pay the fees, if any, as described in the sign-up process. The sign-up process and additional notices Advertiser may receive from ECR may also provide additional terms and conditions for such listings.
- Representations, Warranties and Disclaimers. In addition to any other representations in this Agreement, Advertiser represents and warrants to ECR that: (a) Advertiser has the full right, power and authority to enter into and perform its obligations and grant the rights, licenses, consents and authorizations it grants or is required to grant under the Agreement; (b) the Agreement will constitute the legal, valid and binding obligation of such party, enforceable against Advertiser in accordance with its terms; and (c) ECR will at all times comply with all applicable laws.
- Indemnification.In addition to any other indemnification obligations,Advertiser shall defend, indemnify and hold harmless ECR and its affiliates and their officers, directors, employees, agents, successors, and assigns from and against all losses, damages, liabilities, deficiencies, actions, judgments, interest, awards, penalties, fines, costs, or expenses of whatever kind (including reasonable legal fees) arising out of, resulting from or relating to: (a) bodily injury, death of any person, theft or damage to real or tangible, personal property resulting from Advertiser’s acts or omissions, (b) any claims by any Customer or Platform user related to the Advertiser or the Equipment, and (c) Advertiser’s breach of any representation, warranty, or obligation under this Agreement.
- Limitation of Liability.
- EXCLUSION OF DAMAGES. IN NO EVENT WILL ECR OR ANY OF ITS LICENSORS, ADVERTISERS OR SUPPLIERS BE LIABLE UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, FOR ANY: (a) IMPAIRMENT, INABILITY TO USE OR LOSS, INTERRUPTION OR DELAY OF THE SERVICES, (b) LOSS, DAMAGE, CORRUPTION OR RECOVERY OF DATA, OR BREACH OF DATA OR SYSTEM SECURITY, OR (c) CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL, ENHANCED OR PUNITIVE DAMAGES, REGARDLESS OF WHETHER SUCH PERSONS WERE ADVISED OF THE POSSIBILITY OF SUCH LOSSES OR DAMAGES OR SUCH LOSSES OR DAMAGES WERE OTHERWISE FORESEEABLE, AND NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- CAP ON MONETARY LIABILITY. IN NO EVENT WILL THE AGGREGATE LIABILITY OF ECR UNDER OR IN CONNECTION WITH THE AGREEMENT OR ITS SUBJECT MATTER, UNDER ANY LEGAL OR EQUITABLE THEORY, INCLUDING BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY AND OTHERWISE, EXCEED THE FEES ACTUALLY PAID BY ADVERTISER IN THE THREE (3) MONTHS IMMEDIATELY PRIOR TO THE ACTION OR CLAIM. THE FOREGOING LIMITATION APPLIES NOTWITHSTANDING THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE.
- Term and Termination.
- Term. Unless earlier terminated in accordance with this Agreement, this Agreement will continue in effect for the period set forth in the applicable Advertiser subscription services order form. Unless written notice of termination is provided at least thirty days prior to the end of the then current term, the Agreement will automatically renew for additional 30-day periods (or such other period as agreed to by the parties).
- Termination. In addition to any other express termination right set forth elsewhere in this Agreement, ECR may suspend or terminate Advertiser’s access or use of the Platform, and the Agreement, at any time if there is any breach of any provision of the Agreement, including any unauthorized use of the Platform.
- Surviving Terms. The provisions set forth in the following sections, and any other right or obligation of the parties in this Agreement that, by its nature, should survive termination or expiration of this Agreement, will survive any expiration or termination of this Agreement.
- Force Majeure. ECR shall not be liable for any default or delay in the performance of any of its obligations under the Agreement if and to the extent such default or delay is caused, directly or indirectly, by (a) fire, flood, earthquake, elements of nature or acts of God; (b) wars (declared and undeclared), acts of terrorism, sabotage, riots, civil disorders, rebellions or revolutions; (c) extraordinary malfunction of third-party Internet infrastructure, data centers or related systems or (d) acts of any governmental authority with respect to any of the foregoing, and provided that such default or delay cannot reasonably be circumvented by the non-performing party through the use of commercially reasonable alternate sources, workaround plans or other commercially reasonable means.
- Assignment. Advertiser may not assign this Agreement. ECR may freely assign its rights and obligations under this Agreement at any time. This Agreement will inure to the benefit of, be binding on, and be enforceable against, each of the parties hereto and their respective successors and assigns.
- Changes to the Terms and Conditions. ECR may revise and update these Terms and Conditions from time to time in its sole discretion. All changes are effective immediately when ECR posts them and apply to all access to and use of the Platform thereafter. However, any changes to the dispute resolution provisions set forth in the Governing Law and Jurisdiction section will not apply to any disputes for which the parties have actual notice on or prior to the date the change is posted on the Platform. Your continued use of the Platform following the posting of revised Terms and Conditions means that you accept and agree to the changes. You are expected to check this page frequently, so you are aware of any changes, as they are binding on you.
- Notices.Any notice required or permitted by this Agreement will be in writing and will be delivered as follows with notice deemed given as indicated: (i) by person delivery when delivered personally; (ii) by overnight courier upon written verification of receipt; or (iii) by certified or registered mail, return receipt requested, upon verification of receipt. Notice will be sent to the addresses provided by the parties.
- Severability. Should any provision of the Terms and Conditions be held by a court of competent jurisdiction to be illegal, invalid or unenforceable, the legality, validity and enforceability of the remaining provisions will not be affected or impaired thereby.
- Waiver. The waiver by either party of a breach of any provision of the Terms and Conditions of the other party will not operate or be construed as a waiver of any other or subsequent breach by such other party.
- No Third-Party Beneficiaries. The Agreement is for the sole benefit of the parties hereto and their respective permitted successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of the Agreement.
- Severability. If any provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon such determination that any term or other provision is invalid, illegal or unenforceable, the parties hereto shall negotiate in good faith to modify this Agreement so as to effect the original intent of the parties as closely as possible in a mutually acceptable manner in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
- Waiver of Jury Trial. Each party irrevocably and unconditionally waives any right it may have to a trial by jury in respect of any legal action arising out of or relating to the Agreement or the transactions contemplated hereby.
- Attorneys’ Fees. In the event that any action, suit, or other legal or administrative proceeding is instituted or commenced by either party hereto against the other party arising out of the Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees and court costs from the non-prevailing party.
- Headings. The headings in this Agreement are for reference only and do not affect the interpretation of this Agreement.