October 3, 2019
PLEASE READ THESE TERMS AND CONDITIONS OF USE CAREFULLY BEFORE USING THIS SITE
Motofoto website (the “Site”) is owned and operated by Motofoto, Inc. (or "Motofoto"). By using this Site, you explicitly agree to comply with and be bound by the following terms and conditions (“Terms and Conditions” or “Agreement”), and all policies, rules, and instructions, and additional terms posted on or through the Site, all of which are incorporated into this Agreement. By registering for, logging into, visiting and/or otherwise using the Site in any way, you indicate that you understand, intend to be legally bound by, and accept these Terms and Conditions. Motofoto may change these Terms and Conditions at any time. Your continued use of the Site following appropriate notice of such modifications will be conclusively deemed acceptance of any changes to these Terms and Conditions. At all times, you are bound by the then-current version of these Terms and Conditions and all applicable laws. Please review these Terms and Conditions periodically for changes.
Use of Motofoto Listings and Private Sale Services
Motofoto includes a vehicle listing and information service, sometimes referred to as Motofoto Pay, that brings together buyers and sellers, and a secure private vehicle sales platform (“Platform”) through which buyers and sellers can conduct vehicle sales transactions. The information on vehicles provided through these services and on the Site is supplied by the seller or other third parties; Motofoto is not responsible for the accuracy of such information. Motofoto provides these services and the Site and all information and materials without conditions, representations or warranties of any kind, either expressed or implied. Motofoto is not a party to any transaction between vehicle buyers and sellers that occurs through the Site or that originates from information found on the Site. Prices do not include additional fees such as government fees and taxes, title and registration fees, licensing and plate fees, finance charges, dealer document preparation fees, and emission testing.
FOR BOTH THE LISTINGS SERVICE AND THE PLATFORM, MOTOFOTO IS NOT AN AUTOMOBILE BROKER OR DEALER AND DOES NOT SELL, EXCHANGE, BUY, OR OFFER FOR SALE, NEGOTIATE OR ATTEMPT TO NEGOTIATE, A SALE OR EXCHANGE OF AN INTEREST IN ANY VEHICLE LISTED FOR SALE ON OUR SITE. Motofoto does not hold or possess title for any vehicle listed for sale on our Site and Motofoto is not a party to any vehicle sale contract between vehicle buyers and sellers that originates on or through the Site.
All buyers and sellers must be at least 18 years old to use the Site and by using the Site, you represent that you are at least 18 years old. Information about a particular vehicle is supplied by the seller, not by Motofoto, and the buyer is solely responsible for reading the full vehicle listing before making a commitment to buy. The price and other terms of any sale are arranged after negotiation between the buyer and the seller. Motofoto is not responsible for incorrect information given by buyers or sellers, including information regarding vehicles, including but not limited to vehicle mileage, condition, history, or photos of vehicles. AutoCheck Vehicle History reports are provided for informational purposes only from an unaffiliated third-party vehicle report provider, and Motofoto is not responsible for any incorrect information or mistakes. We cannot verify the information/photos that sellers supply or guarantee the vehicles they offer. When using this Site, please use common sense and good judgment. When dealing with prospective purchasers/sellers, we urge you to take the same precautions you would take if you were purchasing/selling a car through a classified ad in the newspaper or any other private sales transaction.
MOTOFOTO MAKES NO GUARANTEES, WARRANTEES OR REPRESENTATIONS REGARDING ANY VEHICLES LISTED FOR SALE OR SOLD ON OUR SITE. VEHICLE SALES ARE “AS IS”. VEHICLE SALES ARE BETWEEN THE BUYER AND THE SELLER ONLY. MOTOFOTO DOES NOT OWN, INSPECT, BUY, OR SELL, ANY VEHICLES LISTED FOR SALE ON OUR SITE. ANY DISPUTE ABOUT THE CONDITION OF A VEHICLE SOLD THROUGH THE SITE IS BETWEEN THE BUYER AND SELLER ONLY. MOTOFOTO DOES NOT HOLD OR POSSESS TITLE FOR ANY VEHICLE LISTED FOR SALE ON OUR SITE.
In addition, as a Platform seller you represent and warrant:
All applications for credit and/or lending arrangements are through one or more unaffiliated third-party providers over whom Motofoto has no control. Any application for credit or lending arrangement, terms, conditions, warranties, or representations associated with any application for credit or lending arrangement, is solely between you and any such third-party provider. Motofoto is not responsible or liable for any loss or damage incurred as the result of such application for credit or lending arrangement.The following terms also apply to vehicle purchases and sales through the Platform:
Processing Payments through the Private Sale Platform
Certain vehicle sales transactions through the Platform may use Motofoto’ online payment processing services, where Motofoto manages receipt of payments on behalf of sellers (such management described herein as "managed payments" or similar references). For vehicles offered for sale on the Platform by sellers using managed payments accounts, such vehicles may be paid for using certain payment methods that Motofoto may in its sole discretion make available, and Motofoto will manage settlement of the payment to sellers. The contract for sale underlying the vehicle purchase is directly concluded between seller and the buyer in the same manner as for transactions for which Motofoto does not manage payments.
Motofoto may use different third party payment service providers to assist in providing the managed payments experience, including companies that process payments, perform risk assessments or compliance checks, verify identity and validate payment methods.
By completing purchases from sellers who use managed payments, buyers authorize Motofoto to initiate payments using the buyers' selected payment method and collect the transaction amounts on behalf of sellers. BUYERS AGREE AND UNDERSTAND THAT MOTOFOTO HAS BEEN APPOINTED AS AN AGENT OF SELLERS WHO USE MANAGED PAYMENTS FOR THE LIMITED PURPOSE OF ACCEPTING SUCH PAYMENTS ON BEHALF OF SELLERS. Accordingly, payments received by Motofoto from buyers satisfy buyers' obligations to pay sellers in the amount of payments received.If you are a buyer completing a purchase from a seller that is using managed payments:
Ownership And Intellectual Property
Except as otherwise indicated, all copyright rights and other intellectual property rights in this Site and its contents, including any and all messages, data, information, text, music, sound, photos, images, graphics, code, marks, logos, audio and video, footage, animations, podcasts, analyses, studies, reports, downloads, and other content contained herein ("Site Content") is owned by or licensed to Motofoto, Inc., and protected by law, including copyright, database, trade secret, and trademark laws of the United States and all applicable jurisdictions, as well as other applicable state, national, and international laws and regulations. The Site Content is Copyright 2019, Motofoto, Inc., all rights reserved. Motofoto also owns copyright rights in the Site Content as a collective work and/or compilation, and in any and all databases accessible on or through the Site. Motofoto, the Motofoto Logo, and all other marks displayed on this site (the "Trademarks") are registered and/or common law trademarks of Motofoto and/or various third parties. Except as expressly stated herein, nothing contained on this Site may be construed as granting, by implication, estoppel, or otherwise, any grant, license or right to use any Site Content or Trademarks without the prior written permission of Motofoto or such other party that may own the Trademarks or any licensed copyrights. You agree not to directly or indirectly: attempt to register, challenge or contest the validity or the Motofoto’ (or its licensor’s, as applicable) ownership of, such copyrights, Trademarks or any other Motofoto’ intellectual property, or assist any third party in doing so.
Use of Chat Rooms, Bulletin Boards and Other Interactive Areas
The Site may contain discussion forums, bulletin boards, review services or other forums in which you or third parties may post reviews of automobiles and automotive related services or other content, messages, materials or other items on the Site ("Interactive Areas"). If Motofoto provides such Interactive Areas, you are solely responsible for your use of such Interactive Areas and use them at your own risk. No action should be taken based upon any of the information contained in the Interactive Areas. You should seek independent professional advice from a person who is licensed and/or knowledgeable in the applicable automotive area before acting upon any opinion, advice, or information contained on the Site. All statements, information and other content submitted by users are solely the opinions of users, and not of Motofoto.
By using any Interactive Areas, you expressly agree not to use, reproduce, modify, adapt, edit, translate, publicly display, telecommunicate or perform, post, upload to, transmit, distribute, store, create derivative works from or otherwise publish throughout the World, in any media, now known or hereafter devised, on or through the Site any of the following:
You further agree that you will not attempt or do any of the following:
By posting or distributing Content to or through the Site, unless we indicate otherwise, you (a) grant Motofoto and its affiliates and sublicensees a nonexclusive, royalty-free, perpetual, worldwide, transferable, irrevocable and fully sublicensable right to use, post, store, reproduce, modify, adapt, edit, translate, distribute, transmit, publish, create derivative works from and publicly display, telecommunicate and perform such Content throughout the world in any media, now known or hereafter devised; (b) grant Motofoto and its affiliates and sublicensees the right to use the name that you submit in connection with such Content, if they choose in their absolute discretion; and (c) represent and warrant that (i) you own and/or control all of the rights to the Content that you post or otherwise distribute, or you otherwise have the lawful right to post and distribute such Content to or through the Site, and to grant the licenses granted herein; (ii) such Content is accurate and not misleading; and (iii) use and posting or other transmission of such Content does not violate these Terms and Conditions and will not violate any rights of or cause injury to any person or entity. You further grant Motofoto the right to pursue at law any person or entity that violates your or Motofoto' rights in the Content or breaches of these Terms and Conditions.
Motofoto takes no responsibility and assumes no liability for any Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto or in connection therewith, nor is Motofoto liable for any mistakes, inaccuracies, infringements, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. As a provider of interactive services, Motofoto is not liable for any statements, representations or Content provided by its users in any public forum, personal home page or any Interactive Area. Although Motofoto has no obligation to screen, edit or monitor any of the Content posted to or distributed through any Interactive Area, Motofoto reserves the right, and has absolute discretion, to remove, screen or edit without notice any Content posted or stored on the Site at any time and for any reason and without liability to you or any third party, and you are solely responsible for creating backup copies of and replacing any Content you post or store on the Site at your sole cost and expense.
Any use of the Interactive Areas or other portions of the Site in violation of the foregoing violates these Terms and Conditions and may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Site. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect Motofoto’ systems and customers, or to ensure the integrity and operation of Motofoto business and systems, Motofoto may access and disclose any information it considers necessary or appropriate, including, without limitation, user profile information (i.e. name, email address, etc.), IP addressing and traffic information, usage history, and posted Content.
Rights to User Content
Content submitted by users will be considered non-confidential and Motofoto is under no obligation to treat such Content as confidential or proprietary information. Without limiting the foregoing, Motofoto reserves the right to use the Content as it deems appropriate, including, without limitation, posting, reproducing, adapting, translating, publicly displaying, telecommunicating or performing, uploading to, transmitting, distributing, storing, creating derivative works from, publishing, deleting, editing, modifying, rejecting, or refusing to post it. Motofoto is under no obligation to offer you or make any payment for Content that you submit or its use as contemplated herein or for your permission or license to edit, delete or otherwise modify Content once it has been submitted to Motofoto. Motofoto shall have no duty to attribute authorship of Content to you, and shall not be obligated to enforce any form of attribution by third parties.
If it is determined that you retain moral rights (including rights of attribution or integrity) in the Content, you hereby declare that (a) you do not require that any personally identifying information be used in connection with the Content, or any derivative works of or upgrades or updates thereto; (b) you have no objection to the publication, use, modification, deletion and exploitation of the Content by Motofoto or its licensees or sublicensees, successors and assigns; (c) you forever irrevocably waive in favor of Motofoto and its successors, assigns, officers, employees, affiliates, agents and sublicensees, and agree not to claim or assert any entitlement to, any and all moral rights you may have as an author throughout the World in any of the Content; and (d) you forever release Motofoto, and its licensees, successors and assigns, from any claims that you could otherwise assert against Motofoto by virtue of any such moral rights.
Grant of License; Use Of The Site
Motofoto grants to you a personal, revocable, nonexclusive, non-transferable license to view, download, and print limited portions of the Site Content available in the public areas of the Site subject to the following conditions: (i) you may only do so on an occasional basis for your own personal and non-commercial use; (ii) you may not modify the Site Content; (iii) any displays or printouts of Site Content must be marked "© 2019, Motofoto, Inc., All rights reserved."; (iv) you may not remove or modify any copyright, trademark, or other proprietary notices that have been placed in/on the Site Content by Motofoto; and (v) you may not reproduce, modify, adapt, translate, edit, upload to, transmit, store, further post, mirror, frame, “deep link,” “scrape,” data mine, prepare derivative works from, sell or distribute or publicly display, perform or telecommunicate Site Content, except as provided herein. Except as expressly permitted above, copying, transmission, reproduction, public display, performance or telecommunication, reproduction, republication, modification, adaptation, translation, editing, storing, transmitting, creation of derivative works, posting, or redistribution of the Site Content or any portion thereof is strictly prohibited without the prior written permission of Motofoto. To request permission, you may contact Motofoto as follows:
By electronic mail to: email@example.com
Or by regular mail to:
You may not use Site Content in any manner that suggests the affiliation, sponsorship, endorsement or association with or by Motofoto with or of you or any third-party entity, person, product or service unless express written permission has been given by Motofoto in advance. You represent and warrant that your use of Site Content will be consistent with this license and will not infringe or violate the rights of any other party or breach any contract or legal duty to any other parties, or violate any applicable law. Any unauthorized use of the Site or the Site Content will terminate the permission granted by this Agreement and may violate applicable laws, including copyright law, trademark laws, and commercial regulations and statutes.WARRANTY DISCLAIMER
MOTOFOTO, MAKES NO CONDITION, REPRESENTATION OR WARRANTY OF ANY KIND REGARDING THE SUITABILITY OF THE SITE CONTENT, OR ANY PORTION THEREOF, FOR ANY PURPOSE. THE SITE, ALL SITE CONTENT, AND ALL OTHER CONTENT AVAILABLE ON OR THROUGH THE SITE ARE PROVIDED ON AN "AS IS," “AS AVAILABLE” BASIS, AND MOTOFOTO, INC. EXPRESSLY DISCLAIMS ANY AND ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES OF MERCHANTABILITY OR FITNESS FOR PARTICULAR USE, INCLUDING ALL IMPLIED WARRANTIES IN CONNECTION WITH THE FOREGOING. MOTOFOTO, INC. ALSO EXPRESSLY DISCLAIMS ANY CONDITION, WARRANTY OR REPRESENTATION AS TO THE ACCURACY, RESULTS, TIMELINESS, COMPLETENESS, NON-INFRINGEMENT, OR PROPRIETARY CHARACTER OF THE SITE, ALL SITE CONTENT, AND ALL OTHER CONTENT AVAILABLE ON OR THROUGH THE SITE. MOTOFOTO DOES NOT GUARANTEE THAT THE SITE WILL BE ERROR FREE, OR CONTINUOUSLY AVAILABLE, OR THAT THE SITE WILL BE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU WAIVE AND COVENANT NOT TO ASSERT ANY CLAIMS OR ALLEGATIONS OF ANY NATURE WHATSOEVER ARISING FROM OR RELATING TO YOUR USE OF THE SITE, INCLUDING, WITHOUT LIMITATION, ALL CLAIMS AND ALLEGATIONS RELATING TO THE ALLEGED INFRINGEMENT OF PROPRIETARY RIGHTS, THE ALLEGED INACCURACY OF SITE CONTENT, YOUR INABILITY TO ACCESS THE SITE AT ANY GIVEN TIME, OR ALLEGATIONS THAT MOTOFOTO, INC. HAS OR SHOULD INDEMNIFY, DEFEND, OR HOLD YOU HARMLESS FROM ANY CLAIM OR ALLEGATION ARISING FROM YOUR USE OR OTHER EXPLOITATION OF THE SITE.LIMITATION OF LIABILITY
YOU USE THE SITE AT YOUR OWN RISK AND NEITHER MOTOFOTO, INC., ITS AFFILIATES AND SUBLICENSEE NOR THE PARTIES WHO PROVIDE INFORMATION AND MATERIAL FOR PUBLICATION WITHIN THE SITE CONTENT SHALL BE LIABLE FOR ANY DAMAGES OF ANY SORT ARISING FROM YOUR USE OF OR INABILITY TO USE THE SITE OR ANY PRODUCT OR SERVICE LINKED TO OR FROM OR ADVERTISED OR PROMOTED ON THE SITE, INCLUDING, WITHOUT LIMITATION, CONSEQUENTIAL, SPECIAL, INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR OTHER DAMAGES OF ANY KIND (INCLUDING LOST REVENUES OR PROFITS, LOSS OF BUSINESS, AND LOSS OF DATA), EVEN IF WE ARE ADVISED BEFOREHAND OF THE POSSIBILITY OF SUCH DAMAGES. BECAUSE SOME STATES/JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. TO THE EXTENT PERMITTED BY LAW, MOTOFOTO ALSO DISCLAIMS LIABILITY FOR ANY DIRECT DAMAGES BASED ON YOUR ACCESS OR USE OF THE SITE AND THE SITE CONTENT. IF MOTOFOTO IS FOUND TO BE LIABLE UNDER THIS AGREEMENT, INCLUDING FOR DIRECT OR ANY TYPE OF DAMAGES, OUR AGGREGATE LIABILITY TO YOU OR TO ANY THIRD PARTY IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES PAID BY YOU IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY; OR (B) $100.
YOU AGREE TO INDEMNIFY MOTOFOTO AND ITS OWNERS, SHAREHOLDERS, SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, PARTNERS, AND LICENSORS, AND THEIR RESPECTIVE SUCCESSORS AND ASSIGNS, AND HOLD ALL OF THE FOREGOING HARMLESS, FROM AND AGAINST ANY AND ALL CLAIMS, LIABILITY AND EXPENSES, INCLUDING ATTORNEYS FEES, ARISING FROM OR RELATED IN ANY WAY TO YOUR USE OF THE SITE OR ANY BREACH OF THESE TERMS AND CONDITIONS.Links To Other Sites
Motofoto may change, restrict access to, suspend, or discontinue any aspect of Motofotoservice or the Site at any time, including availability of any feature, database, or content. Motofoto may also impose limits on certain features and services or restrict your access to all or parts of Motofotoweb site without notice or liability. Motofoto may remove any review from the Site if Motofoto determines, in its sole discretion, that the review may be false or fraudulent. Motofoto may exclude or remove vehicle prices from the Site if Motofoto determines, in its sole discretion, that the prices violate Guidelines for Dealer Pricing and Marketing, which are accessible to vehicle dealers. Motofoto may exclude or remove from the Site embedded contact information in images, often known as "Watermarking," if Motofoto determines in its sole discretion that such information is embedded with the intent of circumventing the Motofoto lead routing process.
Motofoto reserves the right (but assumes no obligation) to delete, move, condense or edit any content on the Site that comes to Motofoto' attention and that Motofoto considers unacceptable or inappropriate, whether for legal or other reasons.Termination
You agree that we may, under some circumstances and without prior individual notice to you, terminate your use of and access to any of the parts of the Site to which we restrict access, for example, by requiring registration. Some of the reasons for such termination may include, but are not limited to, (a) a breach or violation or suspected breach or violation of these Terms and Conditions or other incorporated terms or guidelines, (b) a request by law enforcement or another government agency, (c) our decision to discontinue or change all or part of the Site, (d) technical or security issues, and (e) fraudulent or illegal activities. All terminations will be made in our sole discretion and you agree that we will not be liable for any termination of your use of or access to the Site or any part of the Site.Miscellaneous
This agreement may not be assigned by you without the prior written consent of Motofoto. Any attempted assignment that does not comply with these Terms and Conditions shall be null and void. Motofoto may assign these Terms and Conditions, in whole or in part, to any third-party in its sole discretion. These terms and Conditions shall inure to the benefit of and be binding upon the parties hereto, and their permitted successors, permitted assigns, heirs, and legal and personal representatives. If any provisions of this agreement are held to be invalid or unenforceable by an arbitrator or a court of competent jurisdiction, any such provision(s) shall be enforced to the maximum extent permissible so as to effect the intent of the parties and shall not affect the validity or enforceability of any other provisions herein, and the remainder of this Agreement shall continue in full force and effect. Any waiver of any provision herein, to be effective, must be in writing signed by an authorized officer of Motofoto, and shall not constitute a waiver of any other provision herein or a continuing waiver of any future breaches of the same provision.Entire Agreement/Reservation of Rights