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1StopMotors™ Terms of Use
Effective — May 2009
Last updated — July 2009
This Agreement is made and entered into on the Date of Acceptance ("Effective Date") by and between 1StopMotors™ ("OSM"), and Acceptance User (together the "Parties" and individually the "Party") (certain terms used herein shall have the meaning ascribed to such terms as set forth in DEFINITIONS). In consideration of the covenants, representations and warranties set forth herein and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the Parties hereby agree as:
1. Service
1.1. Subject to the terms and conditions of this Agreement and only after OSM accepts the Registration (in OSM's sole and absolute discretion) and issues a Confirmation to User (whether or not received by User), OSM shall use OSM's reasonable efforts to: (a) provide reasonable access to certain Licensed Software through a User account and (b) list the Subject Vehicle on and through the Domain Name and Related Domain Names until the Subject Vehicle is sold. OSM shall not provide any other services unless expressly approved in writing by an officer of OSM.
1.2. User is solely responsible for the User Content (including, without limitation, the accuracy of the User Content that User includes in the Registration). User shall promptly notify OSM of any errors, mistakes or omissions in User's Registration and OSM shall use reasonable efforts to assist User in correcting any such errors, mistakes or omissions.
2. Grant of License
2.1. Subject to the terms and conditions of this Agreement, OSM hereby grants to User a personal, limited, revocable, non-exclusive, non-transferable, non-assignable license to: (a) execute the code of the Licensed Software only through the Domain Name utilizing a User account; provided, however, that access to and execution of the code of any Licensed Software may, in OSM's sole and absolute discretion, be denied at: (i) certain times reasonably designated by OSM for updates, back-ups and/or maintenance of the Enabled Content and/or Licensed Software and/or (ii) other times unexpected and/or outside the reasonable control of OSM, including, without limitation, network outages, technical errors, and third Person acts or omissions that prohibit, hinder or otherwise preclude access to and execution of the Licensed Software; (b) view and print the Enabled Content only for the User's personal, noncommercial purposes; provided, however, that nothing in this Agreement shall grant a license to Disclose such Enabled Content to any third Person and (c) upon prior written approval by OSM (in OSM's sole and absolute discretion and only after review of the proposed use by OSM), add a hypertext link from a website Controlled by the User to the Domain Name; provided, however, that such link does not and shall not state or imply any endorsement or sponsorship by OSM or any affiliate of OSM.
2.2. User hereby grants to OSM a non-exclusive, royalty-free, worldwide, perpetual, irrevocable license to use, reproduce, modify, adapt, publish, translate, create derivative works from, sell, distribute, display, or otherwise use or Disclose the User Content in any Media whatsoever (including, without limitation, to derive and Disclose vehicle valuation or other information, to use the User's name or likeness in accordance with Section 4.3, or to maintain an archive) in OSM's sole and absolute discretion.
3. Payment
3.1. User shall pay OSM the Amounts designated on the Confirmation and as otherwise obligated by User and hereby authorizes OSM to charge the Amounts to any credit card or electronic payment method approved by OSM (in OSM's sole and absolute discretion); provided, however, that if the amount designated on the Confirmation is clearly erroneous, OSM shall have the right to charge the correct amount upon notice to User.
3.2. In addition to any other remedies available in this Agreement or otherwise in Law or in equity: (a) OSM may limit or suspend access by the User to all Licensed Software or other Licensed Property in the event User fails to timely pay any Amounts due to OSM and (b) User shall pay to OSM interest on any late payments in an amount that shall be the lesser of: (i) one percent (1%) per month or (ii) the maximum percentage allowed by Law. Payment when due of the Amounts by User is of the essence of this Agreement.
3.3 OSM guarantees to advertise the vehicle until sold with no additional charges and/or hidden fees.
4. User Covenants/Representations/Warranties
User hereby covenants, represents and warrants as of the Effective Date and throughout the Term and where applicable, after the Term, the following:
4.1. User: (a) has the authority to enter into this Agreement, (b) is at least eighteen (18) years old and (c) shall comply with the terms and conditions of this Agreement;
4.2. User has possession of the Subject Vehicle and the ability and authority to sell the Subject Vehicle (including, without limitation, transfer title of the Subject Vehicle upon sale) in accordance with the price and other terms identified on the Registration (or as amended and updated through use of the Licensed Software by User or negotiated by User with a potential buyer of the Subject Vehicle);
4.3. OSM may, in OSM's sole and absolute discretion, use and Disclose the User's name, title, picture, biography, likeness, trade names, marks, domain names and/or logos in any promotional or marketing Content in any Media worldwide in association with, related to, or arising from the marketing, advertisement, promotion, distribution and/or sale of the Licensed Property, including, without limitation, in any press release or testimonial;
4.4. OSM cannot control the Internet or events or activities of third Persons outside of OSM's control and OSM shall not be liable for, or be in breach of this Agreement as a result of or related to any unavailability, delay, or malfunction of any Licensed Property associated with, relating to, resulting from, or arising from any cause beyond OSM's control, including, without limitation, war, insurrection, public enemy, acts of God, terrorist acts, changes in Laws, acts or omissions of Governmental Authorities, labor disputes, strikes, and/or power failures;
4.5. User shall comply with all applicable Laws, including, without limitation, privacy, obscenity, license, security, and export Laws;
4.6. User has read, consents to and shall comply with the Privacy Policy, including, without limitation, that OSM may, in OSM's sole and absolute discretion, Disclose User Content to Persons affiliated or Contracted with OSM;
4.7. User shall be responsible for all use by User of the Licensed Property, including, without limitation, associated with, related to, or arising from any User account name and password, shall maintain confidentiality of the User account name and password and shall immediately notify OSM in writing of any Disclosure and/or unauthorized use of such account name and password;
4.8. User owns or has a right to Disclose all the User Content (including, without limitation, all credit card Content) and the User Content has not, nor shall not, infringe or misappropriate any third Person's Intellectual Property or otherwise violates any Laws, including, without limitation, any privacy, defamatory or obscenity Laws;
4.9. No User Content contains any nudity, profanity, obscenity, or other offensive Content, including, without limitation, any threatening, harassing, slurring, abusive, or defamatory Content;
4.10. To the extent User is deemed an owner of any right, title, or interest (including, without limitation, any Intellectual Property right, title or interest) in and to the Licensed Property, OSM Intellectual Property, Confidential Information or any other Intellectual Property which OSM has Developed or otherwise has a bona fide claim of ownership (whether arising from this Agreement or otherwise), User hereby assigns any such right, title or interest to OSM and shall execute all documents and undertake all actions necessary to effect the clarification of ownership of all such right, title or interest in and to OSM and to permit OSM to apply for registration of any Intellectual Property right, title and/or interest and/or issuances of patents, as well as maintain any registrations or issuances granted;
4.11. User shall not view or print the Enabled Content for any purpose outside the limited scope set forth in Section 2.1 without express written consent of OSM, such consent granted or denied in OSM's sole and absolute discretion;
4.12. User shall not charge any Person any amount to: (a) execute the Licensed Software or (b) view, print or otherwise use the Enabled Content;
4.13. User shall not use any embodiment of Licensed Property in any Media whatsoever, unless such embodiment bears and displays the copyright and mark notices as designated (from time to time) by OSM and with OSM's prior written consent, such consent granted or denied in OSM's sole and absolute discretion;
4.14. User shall not Encumber, nor authorize nor enable any Person to Encumber, the OSM Intellectual Property or any portion thereof;
4.15. User shall not Disclose any Content on or through the Domain Name containing a virus, bug, Trojan horse, worm, time bomb, cancelbot, corrupted Content, security breach, any intrusion from internal or external sources, or other similar Content that may damage the operation of the Licensed Property or any Person's computer or property;
4.16. User shall not utilize framing technology to enclose any Enabled Content without express written consent of OSM, such consent granted or denied in OSM's sole and absolute discretion;
4.17. User shall not use any meta tags or other Content utilizing OSM Intellectual Property without the express written consent of OSM, such consent granted or denied in OSM's sole and absolute discretion;
4.18. User shall not, and shall not permit any Person to, copy, make derivative works, disassemble, decompile, or reverse engineer the Licensed Property; and
4.19. User shall in no way represent that User has any right, title or interest in or to the Licensed Property.
5. Retained Rights
5.1. OSM may, in OSM's sole and absolute discretion, modify any and all of the Licensed Property without notice at any time.
5.2. All licenses not expressly granted to User pursuant to this Agreement are reserved by OSM. User shall not acquire any right, title or interest in and to the Licensed Property.
5.3. All right, title and interest in and to the Licensed Property, including, without limitation, the Intellectual Property in and to the Licensed Software, exclusively vests in and shall always vest with OSM.
5.4. OSM retains the right to preclude User's use of any portion of the Licensed Software that is determined to infringe a third Person's Intellectual Property or that is the subject of a prohibition of use by any Governmental Authority (a "Prohibition Event"). If a Prohibition Event occurs and such preclusion follows, then OSM shall have ninety (90) days to provide a substitute, in OSM's reasonable discretion, to the affected Licensed Software for User's use consistent with the provisions of this Agreement.
