THIS TERMS OF SERVICE CONTAINS AN ARBITRATION AGREEMENT, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION. UNDER THE ARBITRATION AGREEMENT, (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST MOTORCREW 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, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
MotorCrew, Inc. ("MotorCrew," "we," "us," "our") provides its ecommerce and professional networking services to you through its website located at https://www.motorcrew.com/ (the "Site" and together with the related ecommerce and professional networking services, the "Service"), subject to the following Terms of Service (as amended from time to time, the "Terms of Service"). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time. If we do this, we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Any such changes will become effective no earlier than fourteen (14) days after they are posted, except that changes addressing new functions of the Service or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
If you are entering into these Terms of Service on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms of Service, in which case the terms "User", "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms of Service, you must not accept these Terms of Service and may not use the Services.
"Enthusiast" means a User who is registered to receive quotes for Pro Services, requests quotes for Pro Services, or otherwise uses the Services to seek, receive, pay for, review, or facilitate the receipt of Pro Services.
"User" means any person or business who completes MotorCrew's account registration process or a person who submits or receives a request through MotorCrew, including but not limited to Service Providers and Enthusiasts.
"Pro Services" means the services listed, quoted, scheduled, offered or provided by a Service Provider, or sought, scheduled or received by an Enthusiast, through the Services.
"MC Direct Services" means Pro Services that are provided to any Enthusiast by MotorCrew directly as the Service Provider.
"Service Provider" means a User who is registered to send quotes for Pro Services, sends quotes for Pro Services, or otherwise uses the Services to offer, provide, receive payment for, or facilitate the provision of Pro Services.
Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify MotorCrew of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. MotorCrew will not be liable for any loss or damage arising from your failure to comply with this Section.
The MotorCrew Service: Certain Services are provided to Users free-of-charge. Other Services require payment before Users can access them. Our Service allows Users to connect with other car enthusiasts seeking knowledge, advice, products or other services, all within MotorCrew’s online, centralized marketplace. MotorCrew is a conduit to facilitate communication and payments between Users for products or services that are provided or received, and may offer certain MC Direct Services. MotorCrew does not have control over the quality, timing, legality, failure to provide, or any other aspect whatsoever of the products or services provided amongst Users, nor of the integrity, responsibility, qualifications or any of the actions or omissions whatsoever of any Users, except for such cases in which an Enthusiast purchases MC Direct Services. MotorCrew makes no representations about the suitability, reliability, timeliness, or accuracy of the products or services requested or provided by other Users identified through the Service, whether in public, private, or offline interactions. The Services may include tools and information that assist you in evaluating data and making decisions regarding your vehicles. MotorCrew strongly recommends that you use the Services as an important tool, along with your independent research and investigation, to make a better decision about your vehicles. You assume full responsibility with respect to your decisions and transactions using the Services.
Service Provider Terms: If you are a Service Provider interested in using our Service to connect with Enthusiasts about your service and/or product offerings, you must also execute or otherwise agree to MotorCrew’s Service Provider Terms, which incorporate these Terms of Service by reference.
Disclaimer: MotorCrew cannot confirm that each User is who they claim to be and therefore, we cannot and do not assume any responsibility for the accuracy or reliability of any information provided through the Services. When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don’t know. NEITHER MOTORCREW NOR ITS AFFILIATES OR LICENSORS ARE RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES AND YOU HEREBY RELEASE MOTORCREW AND ITS AFFILIATES OR LICENSORS FROM ANY LIABILITY RELATED THERETO.
Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.
User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, messages or other materials ("content") that you upload, post, publish or display (hereinafter, "upload") or email or otherwise use via the Service. The following are examples of the kind of content and/or use that is illegal or prohibited by MotorCrew. MotorCrew reserves the right to investigate and take appropriate legal action against anyone who, in MotorCrew's sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
- email or otherwise upload any content that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of MotorCrew, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose MotorCrew or its Users to any harm or liability of any type;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- provide MotorCrew with personal information from third parties without consent from such interested third parties;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other Users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Modifications to Service: MotorCrew reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that MotorCrew will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use: You acknowledge that MotorCrew may establish general practices and limits concerning use of the Service. You agree that MotorCrew has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded to the Service. You further acknowledge that MotorCrew reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Termination: You agree that MotorCrew, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if MotorCrew believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. MotorCrew may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that MotorCrew may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that MotorCrew will not be liable to you or any third party for any termination of your access to the Service.
General: To the extent the Service or any portion thereof is made available for any fee, you will be required to provide MotorCrew information regarding your credit card or other payment instrument. You represent and warrant to MotorCrew that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay all applicable fees or charges based on the fee and billing terms then in effect, regardless of whether you have an active account. In addition, you agree that any email, text, webchat or other written confirmation by you of any fees or charges that are different from published fees or charges constitutes your acceptance and agreement to those fees or charges. If you dispute any charges you must let MotorCrew know within sixty (60) days after the date that MotorCrew charges you. We reserve the right to change MotorCrew's prices. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount. You shall be responsible for all taxes associated with the Services other than U.S. taxes based on MotorCrew's net income. Any amounts payable to MotorCrew as fees (including membership fees) are not refundable. Charges shall be made to your credit card or other payment instrument designated at the time you make a purchase or register for a service. If you have a balance due on any account, you agree that MotorCrew may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees. MotorCrew's has integrated third-party software provided by Stripe, Inc. (‘Stripe") a payment processing service, into the Service, which allows us to accept fees from you. As a condition of MotorCrew enabling payment processing services through Stripe, you agree to provide MotorCrew accurate and complete information about you and your business, and you authorize MotorCrew to share with Stripe this information and transaction information related to your use of the payment processing services provided by Stripe.
Payment for Pro Services: MotorCrew is authorized to collect payment from Enthusiasts for Pro Services, and serves as a limited payment collection agent when Pro Services are purchased from Service Providers other than MotorCrew. Service Providers agree that payment made to MotorCrew shall be considered the same as a payment made directly to the applicable Service Provider for the Pro Services rendered. Additional information regarding payment structure may be found on the applicable Service Provider Terms.
Some Pro Services may be introduced through the MotorCrew platform and online marketplace, but are otherwise conducted and paid for outside of the Services. In these instances, Enthusiasts contract for such Pro Services directly with the applicable Service Provider, and payment for such Pro Services is made directly from the Enthusiasts to the Service Provider, and not through MotorCrew. MotorCrew assumes no liability for any acts or omissions of Service Providers who provide Pro Services to Enthusiasts that are conducted outside of the Services and in which payment is provided to the Service Provider outside of the Services.
User Disputes: The MotorCrew platform is a venue for connecting Enthusiasts with Service Providers. In the event that there is a dispute between you and MotorCrew, and MotorCrew is not a party to or otherwise involved in the performance or payment for Pro Services, you hereby release MotorCrew from any and all claims, demands, damages (including direct, indirect, losses, governmental obligations, suits and/or controversies of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such dispute.
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR."
Membership Terms: If you sign up for a membership plan, you agree to pay MotorCrew the amount that is specified in the payment plan in accordance with the terms of such plan and this Terms of Service. You hereby authorize MotorCrew to bill your payment instrument in advance on a periodic basis in accordance with the terms of the applicable payment plan until you terminate your account, and you further agree to pay any charges so incurred. If MotorCrew does change membership prices, MotorCrew will provide notice of the change on the Site or in email to you, at MotorCrew's option, at least 30 days before the change is to take effect. Members of the Service may terminate their membership at any time upon at least thirty (30) days prior written notice to the MotorCrew at email@example.com.
Cancellations and Refunds: All cancellation and refund requests will be subject to MotorCrew’s review and absolute discretion. We will normally process valid written request within thirty (30) days of receiving it, unless a shorter period is required by law. You may request a cancellation or refund by emailing a request to MotorCrew at firstname.lastname@example.org. If you cancel your account at any time, you will not receive any refund. In regard to any refunds sought for Pro Services purchased from a Service Provider other than MotorCrew and paid for outside of the Services, such refund requests shall be made directly with the Service Provider of such Pro Services.
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features ("Service Content") that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by MotorCrew, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. If you are blocked by MotorCrew from accessing the Service (including by blocking your IP or email address), you agree not to implement any measures to circumvent such blocking (e.g., by masking your IP address or using a proxy IP address or different email address). Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith are the property of MotorCrew, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by MotorCrew.
The MotorCrew and MotorCrew names and logos are trademarks and service marks of MotorCrew (collectively the "MotorCrew Trademarks"). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to MotorCrew. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of MotorCrew Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of MotorCrew Trademarks will inure to our exclusive benefit.
User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other Users or recipients (collectively, "User Content"), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyrights and rights of publicity contained therein. By uploading and sharing any User Content you hereby grant and will grant MotorCrew and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.
You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ("Submissions"), provided by you to MotorCrew are non-confidential and MotorCrew will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.
You acknowledge and agree that MotorCrew may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of MotorCrew, its Users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Copyright Complaints: MotorCrew respects the intellectual property of others, and we ask our Users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify MotorCrew of your infringement claim in accordance with the procedure set forth below.
MotorCrew will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to MotorCrew's Copyright Agent at email@example.com (Subject line: "DMCA Takedown Request"). You may also contact us by mail or facsimile at:
1165 Lincoln Avenue #8721
San Jose, CA 95125
To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
Counter-Notice: If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, MotorCrew will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or User, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.
Repeat Infringer Policy: In accordance with the DMCA and other applicable law, MotorCrew has adopted a policy of terminating, in appropriate circumstances and at MotorCrew's sole discretion, Users who are deemed to be repeat infringers. MotorCrew may also at its sole discretion limit access to the Service and/or terminate the memberships of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
Third Party Websites: The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. MotorCrew has no control over such sites and resources and MotorCrew is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that MotorCrew will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that MotorCrew is not liable for any loss or claim that you may have against any such third party.
Third Party Content: Under no circumstances will MotorCrew be liable in any way for any content or materials of any third parties (including Users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that MotorCrew does not pre-screen content, but that MotorCrew and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, MotorCrew and its designees will have the right to remove any content that violates these Terms of Service or is deemed by MotorCrew, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
In addition, MotorCrew is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, MotorCrew is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. MotorCrew enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
You agree to release, indemnify and hold MotorCrew and its affiliates and their officers, employees, directors and agents harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service, any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MOTORCREW EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF EXCLUSION, RESTRICTION OR MODIFICATION UNDER APPLICABLE LAW. MOTORCREW MAKES NO WARRANTY THAT (I) THE SERVICE WILL MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, RECOMMENDATION OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
ADDITIONALLY, THERE ARE NO WARRANTIES RELATING TO ANY OF THE VEHICLES ABOUT WHICH INFORMATION IS POSTED OR OBTAINED THROUGH THE SERVICES. THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INACCURACY, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF THE SERVICES, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR (INCLUDING STRICT LIABILITY), NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT MOTORCREW WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MOTORCREW HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; ANY DEFECTS OR ERRORS OF ANY KIND IN ANY SERVICE; OR (VI) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL MOTORCREW'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT YOU HAVE PAID MOTORCREW IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate: This Dispute Resolution by Binding Arbitration section is referred to in this Terms of Service as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and MotorCrew, whether arising out of or relating to this Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into this Terms of Service, you and MotorCrew are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND MOTORCREW AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND MOTORCREW AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S).
Pre-Arbitration Dispute Resolution: MotorCrew is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to MotorCrew should be sent to 1165 Lincoln Avenue #8721, San Jose, CA 95125 ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If MotorCrew and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or MotorCrew may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by MotorCrew or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or MotorCrew is entitled.
Arbitration Procedures: Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless MotorCrew and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, MotorCrew agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration: Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, MotorCrew will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, MotorCrew will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, MotorCrew will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.
Confidentiality: All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
Severability: If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
Future Changes to Arbitration Agreement: Notwithstanding any provision in this Terms of Service to the contrary, MotorCrew agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a User of the Services, you may reject any such change by sending MotorCrew written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that you are solely responsible for your interactions with any other User in connection with the Service, other than MC Direct Services, and MotorCrew will have no liability or responsibility with respect thereto, including with respect to items or services purchased through the Service. MotorCrew reserves the right, but has no obligation, to become involved in any way with disputes between you and any other User of the Service.
Software (defined below) available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
These Terms of Service constitute the entire agreement between you and MotorCrew and govern your use of the Service, superseding any prior agreements between you and MotorCrew with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third party services, third party content or third party software. These Terms of Service will be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and MotorCrew agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of MotorCrew to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of MotorCrew, but MotorCrew may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Under California Civil Code Section 1789.3, Users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at MotorCrew, Inc., 1165 Lincoln Avenue #8721, San Jose, CA 95125.
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.