Terms of Service
LAST UPDATED: April 19, 2021
The Pedals Service allows you to post used bikes and equipment for sale by uploading pictures and providing item descriptions.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY. THESE TERMS INCLUDE A MANDATORY ARBITRATION PROVISION AND CLASS ACTION WAIVER PROVISION, WHICH AFFECT YOUR RIGHTS ABOUT HOW TO RESOLVE ANY DISPUTE WITH PEDALS LLC. BY ACCESSING OR USING OUR WEBSITE, APPLICATIONS OR OTHER PRODUCTS OR SERVICES (THE “PEDALS SERVICE”), YOU AGREE TO BE BOUND BY ALL TERMS DESCRIBED HEREIN AND ALL TERMS INCORPORATED BY REFERENCE (COLLECTIVELY, THE “TERMS” OR “AGREEMENT’). BY USE OF THE PEDALS SERVICE, YOU HEREBY AGREE TO ALL OF THESE TERMS. IF YOU DO NOT AGREE TO THE TERMS, DO NOT ACCESS OR USE THE PEDALS SERVICE.
YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED MARKETPLACE AND INTERACTING WITH OTHER USERS IN PERSON AS OUTLINED IN SECTION 17.
These Terms apply to your access to and use of the Pedals Service provided by Pedals App, LLC. (“Pedals,” “we” and “us”). Additional terms (including, but not limited to, the terms of social media services, third-party payment processors, and third-party fulfillment providers) may apply to particular functionalities and features related to the Pedals Service.
Note: From time to time Pedals introduces new features that may only be available to certain users.
ONLY USERS WHO ARE THIRTEEN (13) YEARS OF AGE OR OLDER MAY REGISTER FOR OR USE THE PEDALS SERVICE. The Pedals Service is not targeted towards, nor intended for use by, anyone under the age of thirteen (13). If you are between the ages of thirteen (13) and eighteen (18), you may use the Pedals Service only under the supervision of a parent or legal guardian who agrees to be bound by these Terms and any applicable additional terms. You further represent and warrant that you: (a) have not previously been suspended or removed from using the Pedals Service; (b) are legally permitted to, and do, live in the United States or one of its territories, and (c) may enter into this Agreement without violating any other agreement to which you are a party. If you are registering to use the Pedals Service on behalf of a legal entity, you further represent and warrant that (i) such legal entity is duly organized and validly existing under the applicable laws of the jurisdiction of its organization, and (ii) you are duly authorized by such legal entity to act on its behalf.
2. Account Registration and Security Responsibilities
In order to access certain parts of the Pedals Service, you may be required to create a Pedals account (your “Account”). In connection with creating an Account, you must provide certain information (“Registration Data”) and answer all questions or fields marked “required.” You agree to: (a) provide true, accurate, current and complete Registration Data; (b) maintain and update such Registration Data to keep it true, accurate, current and complete; (c) maintain the security of your Account, including by maintaining the security and confidentiality of your login credentials; and (d) consent to allow Pedals to contact you for the purpose of confirming some or all of your Registration Data, to conduct research and to resolve disputes, as Pedals may elect to do from time to time.
3. Purchases From Other Users
A. Cash and Other Payments Determined by Users. A buyer may, by agreement with the seller, elect to make payment by cash, check or other payment method accepted by the seller. Such payments are made directly between the buyer and the seller when they meet in person to complete their purchase and sale transaction, pursuant to terms they determine. Pedals is not a party to such transactions, and does not facilitate such transactions, refunds, or returns in any manner.
B. Buyers. As with any purchases made using cash, all purchases are made directly between the buyer and the seller when they complete their purchase and sale transaction, pursuant to the terms they determine. Buyers should request a transaction receipt of the product(s) sold with sale price for their records. It is up to the buyer to request this information from the seller.
Pedals disclaims any and all responsibility to facilitate or provide refunds or returns in any manner. Returns and refunds are up to the sole discretion of the seller. Pedals and the Pedals Services provides no warranties unless otherwise expressly stated in these Terms and Pedals explicitly disclaims all warranties or representations made my buyers, sellers, or Users of Pedals Services in connection with sales made through the use of Pedals or Pedals Services.
C. Sellers. As with any sales, Sellers
Transactions between buyers and sellers using Pedals Services are strictly between those parties and Pedals is not a party to any sales agreement between buyers, sellers, or other Users of Pedals Services.
D. Transactions Final. Regardless of the payment method chosen, ALL PURCHASES ARE FINAL AND AS IS. THERE ARE NO REFUNDS, UNLESS THE BUYERAND THE SELLER (OR OTHER USER) OTHERWISE EXPRESSLY AGREE, IN WRITING, AND MAKE ARRANGEMENTS FOR A REFUND. Pedals will not be responsible for facilitating refunds.
E. Taxes. It is your responsibility to determine what, if any, taxes apply to each transaction you complete via the Pedals Service, including, for example, sales, use, value added, and other taxes. It is also your sole responsibility to withhold, collect, report and remit the correct taxes to the appropriate tax authorities. Pedals is not responsible for withholding, collecting, reporting, or remitting any sales, use, value added, or similar tax arising from any transaction you complete via the Pedals Service.
C. Shipping. From time to time, Pedals may, in its sole discretion, recommend a third party to allow sellers to ship purchased items to buyers. Pedals is not a party to transactions conducted between buyers and sellers, or to the shipping of items from sellers to buyers. Pedals will not be liable for, and you release us from any liability to you for, any losses, damages, or delays related to shipping. You agree to not hold Pedals liable to any shipper they recommend. If damages occur caused by the third party shipper, you are responsible to follow their claims process.
Items shipped by sellers must not violate the law and/or United States Postal Service or shipping regulations, including but not limited to U.S. Postal Service Publication 52. You further warrant that any item you mail or ship contains no weapons, ammunition, explosives, living or infectious biological matter, human remains, pornography, alcohol, prescription drugs, illegal drugs, currency, dangerous goods, hazardous goods, or other goods that may not be shipped or mailed by law. As a seller, you assume full responsibility for compliance with all applicable laws and regulations, including those regarding mailing and shipping. Anyone who sends, or causes to be sent, a prohibited, illegal, or improperly packaged or labeled material can be subject to legal penalties such as civil penalties, fines and/or imprisonment, including but not limited to those specified in 18 U.S.C. § 1716 and 39 U.S.C. § 3018.
i. Sellers. If the seller agrees to ship the product, the seller must ship the item in a commercially reasonable time frame.
ii. Buyers. The buyer is solely responsible to pay the cost of shipping the item from the seller. Buyers can cancel an offer to purchase an item for shipping up until the seller has accepted the offer. If there are any problems with the delivery or the item itself, please contact the seller and shipper.
4. Discontinuance of the Pedals Service
Pedals may, in its sole discretion and without liability to you, modify, discontinue, terminate, suspend or shut-down (temporarily or permanently) all or any portion of the Pedals Service at any time, without prior notice. Upon any such action by Pedals, you must immediately stop using the Pedals Service. You may also cancel your Account at any time by contacting the Pedals at firstname.lastname@example.org
5. Acceptable Use
When accessing or using the Pedals Service, you agree that you will not violate any law, contract, intellectual property or other third-party right or commit a tort. Without limiting the generality of the foregoing, you agree that you will not do, and will not permit any third party to do, any of the following:
Engage in any unauthorized use of the Pedals Service (including, without limitation, political campaigning, advertising, or marketing);
Transmit or otherwise make available any content that: (1) you do not have the right to provide or transmit using the Pedals Service, (2) may expose Pedals or its affiliates, licensors, or users to any harm or liability, or (3) is harmful, fraudulent, deceptive, threatening, harassing, defamatory, obscene, unlawful, untrue, or otherwise objectionable;
Upload to, transmit, distribute, store, create, or otherwise sell or offer for sale anything that violates our Prohibited Items Guidelines.
Transmit or otherwise make available any content that 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;
Originate, send, deliver, relay or otherwise transmit unsolicited commercial email or other messages through the Pedals Service;
Copy any portion of the Pedals Service or any underlying content or source code;
Reverse engineer, disassemble or decompile any portion of the Pedals Service or otherwise attempt to discover or re-create the source code to any software;
Distribute the software or source code of the Pedals Service to any third party;
Make any modification, adaptation, improvement, enhancement, translation or derivative work of or to any portion of the Pedals Service;
Remove, alter, or obscure any copyright or other proprietary notices of Pedals or its affiliates or licensors in any portion of the Pedals Service;
Obscure or disable any advertisements that appear on or through the Pedals Service;
Use any type of automated means, including without limitation any harvesting bot, robot, spider, script, crawler, scraper or other automated means or interface not provided by Pedals, to utilize the Pedals Service or to collect or extract data;
Access without authorization any networks, systems, or databases used in providing the Pedals Service or any accounts associated with Pedals Service, or to access or use any information therein for any purpose;
Attempt to probe, test, hack, or otherwise circumvent any security measures;
Violate any requirements, policies, procedures or regulations of any network connected to the Pedals Service;
Use the Pedals Service in any manner that could damage, disable, overburden, or otherwise impair the Pedals Service (or the networks connected to the Pedals Service);
Interfere with or disrupt the use and enjoyment by others of the Pedals Service, including without limitation attempting, in any manner, to obtain the password, account, or other security information of any other user;
Falsely state, impersonate, or otherwise misrepresent your identity;
Provide false information during Account creation or when using the TruYou Badge or the Pedals Payment Solution, or otherwise provide false, inaccurate or misleading information;
Create more than one Account or create an Account on behalf of anyone other than yourself without Pedals express permission;
Use, attempt to use, or otherwise gaining access another user’s Account or Account information without authorization;
Use the Pedals Service in any manner to stalk, harass, invade the privacy of, or otherwise cause harm to, any person;
Use the Pedals Service in any manner that exposes Pedals to any harm or liability of any nature;
Use the Pedals Service to infringe or violate the intellectual property rights or any other rights of anyone else (including Pedals);
Develop any third-party applications that interact with the Pedals Service without Pedals’s prior written consent;
Use the Pedals Service to engage in any illegal or unauthorized purpose or to engage in, encourage, or promote activities that are unlawful, misleading, malicious or discriminatory, including, but not limited to violations of these Terms, illegal gambling, fraud, money-laundering, or terrorist activities;
Transfer any rights granted to you under these Terms; or
Encourage or induce any third party to engage in any of the activities prohibited under this section.
If you violate any of the foregoing, Pedals reserves the right to suspend or terminate your right to access and use the Pedals Service immediately without notice, and you may have infringed Pedals’ intellectual property and other rights, which may subject you to prosecution and damages to the fullest extent available to the law. Pedals also reserves the right to take any lawful remedies it deems appropriate under the circumstances if you have purchased or sold items that are in violation of this Section or the Terms of the Agreement. Pedals reserves the right at all times to monitor, review, retain and disclose any information regarding your use of the Pedals Service as necessary to satisfy any applicable law, regulation, legal process or governmental request. You also acknowledge and agree that Pedals is not responsible or liable for the conduct of, or your interactions with, any users of the Pedals Service (whether online or offline). Your interactions with other users are solely between you and such users and we are not responsible or liable for any loss, damage, injury or harm which results from these interactions. In addition, enforcement of these Terms is solely in our discretion, and the absence of enforcement in some instances does not constitute a waiver of our right to enforce these Terms in other instances. These Terms do not create any private right of action on the part of any third party or any reasonable expectation or promise that the Pedals Service will not contain any content that is prohibited by these Terms.
6. User Content
In the course of using the Pedals Service, you may transmit or otherwise make available certain content, including information about yourself, content, messages, materials, data, information, text, photos, graphics, code or other items or materials (“User Content”) through interactive areas or services, such as posting items for sale, making an offer, private messaging, or other areas or services. User Content may be publicly viewable in some instances. Pedals reserves the right, but does not have the obligation unless otherwise required by applicable law, to remove, screen or edit any User Content posted, transmitted, or stored on the Pedals Service at any time and for any reason without notice. You will not (and will not allow or authorize any third-party to) post, upload to, transmit, distribute, store, create, solicit, disclose, or otherwise, publish through the Pedals Service any of the following:
User Content that is, in Pedals’ judgment, disrespectful or may expose Pedals, Users or others to harm or liability;
User Content that may infringe the patent, trademark, trade secret, copyright, intellectual, privacy or proprietary right of any party;
Private information of any third parties, including addresses, phone numbers and payment card information;
Viruses, corrupted data or other harmful, disruptive, or destructive files; or
User Content that inhibits any other person from using or enjoying the Pedals Service.
You are solely responsible for creating backup copies of and replacing your User Content at your sole cost and expense. You acknowledge and agree that Pedals is not responsible for any errors or omissions that you make in connection with the Pedals Service. By submitting or posting User Content, you hereby grant to Pedals a non-exclusive, transferable, royalty-free, perpetual, irrevocable, sublicensable right to use, reproduce, modify, adapt, publish, translate, sell, create derivative works from, distribute, perform, and display the User Content, and your name, company name, location and any other information you submit with the User Content, in connection with the Pedals Service. The use of your or any other User’s name, likeness, or identity in connection with the Pedals Service does not imply any endorsement thereof unless explicitly stated otherwise. We also have the right to disclose your identity to any third party who is claiming that any content posted by you constitutes a violation of their intellectual property rights, or of their right to privacy.
You agree that Pedals may moderate access to and use of the Pedals Service in our sole discretion through any means (including, for example, blocking, filtering, deletion, delay, omission, verification, and/or termination of your access. Furthermore, we have the right to remove any posting you make on the Pedals Service. You agree not to bypass or attempt to bypass such moderation. You further agree that Pedals is not liable for moderating or not moderating User content. Pedals makes no representations or warranties regarding moderation of content provided by Users except as required by applicable law or expressly stated in this Agreement.
8. Third Party Services and Content
In using the Pedals Service, you may view content, utilize services, or otherwise interact with content and services provided by third parties. Pedals does not control, endorse, or adopt any Third-Party Content and you expressly acknowledge and agree that Pedals has no responsibility for any Third Party Content, including without limitation, material that may be misleading, incomplete, erroneous, offensive, indecent or otherwise objectionable. In addition, your business or other dealings or correspondence with such third parties are solely between you and the third parties. Pedals is not a party to, responsible, or liable for any damage or loss of any sort caused, or alleged to be caused, by or in connection with any such dealings, including the delivery, quality, safety, legality or any other aspect of any good or services that you may purchase or sell to or from a third party.
Any comments or materials sent to us, including, but not limited to, ideas, questions, comments, suggestions, feedback or the like regarding the Pedals Service or any other products or services of Pedals (collectively, "Feedback"), is non-confidential and will become our sole property. We will have no obligation to you of any kind, monetary or non-monetary, with respect to such Feedback and will be free to reproduce, use, disclose, exhibit, display, transform, create derivative works from and distribute the Feedback to others without limitation or obligation. You waive any rights you may have to the Feedback (including any copyrights or moral rights). Further, you agree not to submit any feedback that is defamatory, illegal, offensive or otherwise violates any right of any third party, or breaches any agreement between you and any third party.
10. Copyright Policy
A. Repeat Infringer Policy. In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, Pedals has adopted a policy of terminating, in appropriate circumstances, and at Pedals’ sole discretion, users who are deemed to be repeat infringers. We also may, at Pedals’ sole discretion, limit access to the Pedals Service and terminate access of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
B. Copyright Complaints. If you believe that anything on the Pedals Service infringes upon any copyright that you own or control, you may contact Pedals at email@example.com.
Please see 17 U.S.C. § 512(c)(3) for the requirements of a proper notification. If you knowingly misrepresent in your notification that the material or activity is infringing, you may be liable for any damages, including costs and attorneys’ fees, incurred by Pedals or the alleged infringer as the result of Pedals’ reliance upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
11. Intellectual Property Rights
Unless otherwise indicated, the Pedals Service and all content, materials, information, functionality and other materials displayed, performed, contained or available on or through the Pedals Service, including, without limitation, the Pedals logo, and all designs, text, graphics, pictures, information, data, sound files, images, illustrations, software, other files, and the selection and arrangement thereof (collectively, the “Materials”) are the proprietary property of Pedals or its affiliates or licensors, and are protected by U.S. and international copyright laws and other intellectual property rights laws.
Except as otherwise provided, subject to your compliance with all of the terms and conditions of these Terms, and in consideration of your promises reflected herein (and with respect to any services requiring payment of fees, your payment of such fees), we grant to you a revocable, personal, non-exclusive, non-assignable and non-transferable license for personal, non-commercial purposes, except where explicitly provided otherwise, to (i) access and use the Pedals Service, (ii) cause the Materials to be displayed from a computer and/or mobile device and (iii) use the Materials, solely as permitted under the Terms in this Section 11 (the “License”) and this Agreement generally. Pedals and its affiliates and licensors reserve all rights not expressly granted within these Terms. You agree that these Terms do not grant you any rights in or licenses to the Pedals Service or the Materials, except for this express, limited License. You will not otherwise copy, transmit, distribute, sell, resell, license, de-compile, reverse engineer, disassemble, modify, publish, participate in the transfer or sale of, create derivative works from, perform, display, incorporate into another website, or in any other way exploit any of the Materials or any other part of the Pedals Service or any derivative works thereof, in whole or in part for commercial or non-commercial purposes. Without limiting the foregoing, you agree not to frame or display the Pedals Service or Materials (or any portion thereof) as part of any other website or any other work of authorship without our prior written permission. The License granted under this Section will automatically terminate if we suspend or terminate your access to the Pedals Service.
Pedals, pedalsapp.com and other Pedals graphics, logos, page headers, buttons, icons, scripts, and service names are trademarks, registered trademarks, or trade dress of Pedals or its affiliates in the U.S. and/or other countries, and may not be copied, imitated, or used, in whole or in part, without Pedals’ prior written consent. You will not use any trademark, product or service name of Pedals without our prior written permission, including without limitation any metatags or other “hidden text” utilizing any trademark, product of service name of Pedals. All other registered trademarks and service marks are used for reference purposes only, and remain the property of their respective owners. Reference to any products, services, processes or other information, by name, trademark, manufacturer, supplier or otherwise does not constitute or imply an endorsement, sponsorship or recommendation by Pedals.
13. Suspension; Termination
Pedals may revoke or terminate your License to access or use the Pedals Service for any reason without notice at Pedals’ sole discretion. Without limiting the generality of the foregoing, we may revoke or terminate the License if you: (i) breach any obligation in these Terms or in any other agreement between you and us, (ii) violate any policy or guideline applicable to the Pedals Service or Materials, or any other Pedals product or service, or (iii) use the Pedals Service or the Materials other than as specifically authorized in these Terms, without our prior written permission. You will stop accessing or using the Pedals Service immediately if Pedals suspends or terminates your License to access or use the Pedals Service. Pedals reserves the right, but does not undertake any duty, to take appropriate legal action including the pursuit of civil, criminal, or injunctive redress against you for continuing to use the Pedals Service during suspension or after termination. Pedals may recover its reasonable attorneys’ fees and court costs from you for such action. These Terms will remain enforceable against you while your License to access or use the Pedals Service is suspended and after it is terminated.
You may also terminate your License to access or use the Pedals Service by closing your Account at any time. For more details on how to close your Account, please refer to our FAQs.
14. Disclaimer of Warranties
A. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, AND EXCEPT AS EXPRESSLY PROVIDED TO THE CONTRARY IN A WRITING BY US, THE PEDALS SERVICE, THE MATERIALS, THE PAID SERVICES, AND ANY ITEMS SOLD BY USERS THROUGH THE PEDALS SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. TO THE MAXIMUM EXTENT PERMITTED UNDER APPLICABLE LAW, WE EXPRESSLY DISCLAIM, AND YOU WAIVE, ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AS TO THE PEDALS SERVICE, INCLUDING THE INFORMATION, CONTENT AND MATERIALS CONTAINED THEREIN, AND ANY ITEMS SOLD THROUGH THE PEDALS SERVICE.
B. WITHOUT LIMITING THE FOREGOING, TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NEITHER PEDALS NOR ANY OF ITS AFFILIATES OR LICENSORS, NOR THE RESPECTIVE OFFICERS, DIRECTORS, LICENSORS, AGENTS, EMPLOYEES OR REPRESENTATIVES OF SUCH PARTIES (COLLECTIVELY, THE "PEDALS PROVIDERS") REPRESENT OR WARRANT (I) THAT THE PEDALS SERVICE, MATERIALS OR ITEMS SOLD THROUGH THE PEDALS SERVICE WILL MEET YOUR REQUIREMENTS OR BE ACCURATE, COMPLETE, APPROPRIATE, RELIABLE OR ERROR FREE; (II) THAT THE PEDALS SERVICE, MATERIALS OR ITEMS SOLD THROUGH THE PEDALS SERVICE WILL ALWAYS BE AVAILABLE OR WILL BE UNINTERRUPTED, ACCESSIBLE, TIMELY, RESPONSIVE OR SECURE; (III) THAT ANY DEFECTS WILL BE CORRECTED, OR THAT THE PEDALS SERVICE, MATERIALS OR ITEMS SOLD, USED OR ACCESSED THROUGH THE PEDALS SERVICE WILL BE FREE FROM VIRUSES, "WORMS," "TROJAN HORSES" OR OTHER HARMFUL PROPERTIES; (IV) THE ACCURACY, RELIABILITY, TIMELINESS OR COMPLETENESS OF ANY MATERIALS AVAILABLE ON OR THROUGH THE PEDALS SERVICE; (V) ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE OF TRADE; (VI) THAT THE PEDALS SERVICE, MATERIALS OR ITEMS SOLD THROUGH THE PEDALS SERVICE ARE NON-INFRINGING; OR (VII) THAT ANY BADGE IS A REPRESENTATION AS TO THE IDENTITY, CHARACTER OR INTEGRITY OF ANY PERSON, BUSINESS, OR ENTITY THAT IS ASSOCIATED WITH A BADGE.
C. YOU ACKNOWLEDGE THAT INFORMATION YOU STORE OR TRANSFER THROUGH THE PEDALS SERVICE MAY BECOME IRRETRIEVABLY LOST OR CORRUPTED OR TEMPORARILY UNAVAILABLE DUE TO A VARIETY OF CAUSES, INCLUDING SOFTWARE FAILURES, PROTOCOL CHANGES BY THIRD PARTY PROVIDERS, INTERNET OUTAGES, DISASTERS, SCHEDULED OR UNSCHEDULED MAINTENANCE, OR OTHER CAUSES OUTSIDE OF OUR REASONABLE CONTROL. YOU ARE SOLELY RESPONSIBLE FOR BACKING UP AND MAINTAINING DUPLICATE COPIES OF ANY INFORMATION YOU STORE OR TRANSFER THROUGH THE PEDALS SERVICE.
15. Assumption of Risk
YOU ACKNOWLEDGE AND AGREE THAT THERE ARE RISKS ASSOCIATED WITH UTILIZING AN INTERNET-BASED MARKETPLACE AND INTERACTING WITH OTHER USERS IN PERSON. WE DO NOT INVESTIGATE OR VERIFY ANY USER’S REPUTATION, CONDUCT, MORALITY, CRIMINAL BACKGROUND, OR ANY INFORMATION USERS MAY SUBMIT TO THE SERVICES (OTHER THAN IN CONNECTION WITH THE TRUYOU FEATURE DESCRIBED IN SECTION 5). YOU ARE SOLELY RESPONSIBLE FOR TAKING ALL NECESSARY PRECAUTIONS WHEN INTERACTING WITH OTHER USERS, PARTICULARLY WHEN MEETING A STRANGER IN PERSON FOR THE FIRST TIME. IT IS POSSIBLE THAT OTHER USERS MAY ATTEMPT TO PHYSICALLY HARM OR DEFRAUD YOU OR OBTAIN INFORMATION FROM YOU FOR FRAUDULENT PURPOSES. YOU ARE SOLELY RESPONSIBLE FOR, AND ASSUME ALL RISKS RELATED TO, SELLING AND BUYING THROUGH PEDALS SERVICES (INCLUDING ALL ONLINE AND OFFLINE INTERACTIONS WITH OTHER USERS).
16. Limitation of Liability
A. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL PEDALS OR THE PEDALS PROVIDERS BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOSS OF USE, LOSS OF PROFITS OR LOSS OF DATA, WHETHER IN AN ACTION IN CONTRACT, TORT (INCLUDING BUT NOT LIMITED TO NEGLIGENCE), OR OTHERWISE, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (I) USE OF THE PEDALS SERVICE OR MATERIALS, INCLUDING, BUT NOT LIMITED TO, ANY DAMAGE CAUSED BY ANY RELIANCE ON, OR ANY DELAYS, INACCURACIES, ERRORS OR OMISSIONS IN, ANY OF THE PEDALS SERVICE OR MATERIALS, (II) ANY INABILITY TO USE THE PEDALS SERVICE OR MATERIALS FOR WHATEVER REASON, OR (III) ANY GOODS OR SERVICES DISCUSSED, PURCHASED OR OBTAINED, DIRECTLY OR INDIRECTLY, THROUGH THE PEDALS SERVICE, EVEN IF PEDALS OR THE PEDALS PROVIDERS ARE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION ANY DAMAGES CAUSED BY OR RESULTING FROM (Y) RELIANCE BY ANY USER ON ANY INFORMATION OBTAINED FROM COMPANY, OR (Z) THAT RESULT FROM EVENTS BEYOND PEDALS OR THE PEDALS PROVIDERS' REASONABLE CONTROL, SUCH AS SITE INTERRUPTIONS, DELETION OF FILES OR EMAIL, ERRORS, DEFECTS, VIRUSES, DELAYS IN OPERATION OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT RESULTING FROM A FORCE MAJEURE EVENT, COMMUNICATIONS FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO PEDALS’S RECORDS, PROGRAMS OR SERVICES.
B. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE AGGREGATE LIABILITY OF PEDALS OR THE PEDALS PROVIDERS (JOINTLY OR SEVERALLY), ARISING OUT OF OR RELATING TO THE USE OF, OR INABILITY TO USE THE PEDALS SERVICE OR OTHERWISE RELATING TO THESE TERMS EXCEED THE GREATER OF (I) ANY COMPENSATION YOU PAY, IF ANY, TO PEDALS FOR ACCESS TO OR USE OF THE PEDALS SERVICE OR MATERIALS DURING THE 12 MONTHS PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; OR (II) $100 U.S. DOLLARS.
C. THE LIMITATIONS SET FORTH IN THIS SECTION 16 WILL NOT LIMIT OR EXCLUDE LIABILITY FOR PEDALS OR THE PEDALS PROVIDERS' GROSS NEGLIGENCE, INTENTIONAL, WILLFUL, MALICIOUS OR RECKLESS MISCONDUCT OR FRAUD.
You agree to hold harmless, defend and indemnify Pedals and the Pedals Providers from all liabilities, losses, damages, deficiencies, claims, causes of action, demands and expenses, (including, but not limited to, reasonable attorneys' fees), that are due to, arise from or otherwise relate to your conduct or your use or misuse of the Pedals Service or Materials, including, without limitation, any actual or threatened suit, demand or claim made against Pedals or any Pedals Provider that arises out of or relates to: (i) any intellectual property rights or other proprietary rights of any third party, (ii) your breach of these Terms including without limitation your breach of any of your representations and warranties; (iii) your use of any of the Pedals Service or Materials; (iv) any content that you store on or transmit through the Pedals Service; or (v) any items that you mail or ship in connection with the Pedals Service, including items sold to other Pedals users. Pedals may assume exclusive control of any defense of any matter subject to indemnification by you, and you agree to cooperate with Pedals in such event.
PLEASE READ THE FOLLOWING SECTION CAREFULLY BECAUSE IT REQUIRES YOU TO SUBMIT TO BINDING ARBITRATION (INCLUDING A JURY TRIAL WAIVER) ANY AND ALL DISPUTES (OTHER THAN SPECIFIED INTELLECTUAL PROPERTY CLAIMS AND SMALL CLAIMS) WITH PEDALS AND IT LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM PEDALS (NO CLASS ARBITRATIONS, CLASS ACTIONS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS).
A. Binding Arbitration. Except for any disputes, claims, suits, actions, causes of action, demands or proceedings (collectively, “Disputes”) arising out of or related to a violation of Section 5 (Acceptable Use) or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including, without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Pedals agree (1) to waive your and Pedals’ respective rights to have any and all Disputes arising from or related to these Terms, the Pedals Service or the Materials, resolved in a court, and (2) to waive your and Pedals’ respective rights to a jury trial. Instead, you and Pedals agree to arbitrate Disputes through binding arbitration (which is the referral of a Dispute to one or more persons charged with reviewing the Dispute and making a final and binding determination to resolve it instead of having the Dispute decided by a judge or jury in court).
B. No Class Arbitrations, Class Actions or Representative Actions. You and Pedals agree that any Dispute arising out of or related to these Terms, the Pedals Service or the Materials is personal to you and Pedals and that such Dispute will be resolved solely through individual arbitration and will not be brought as a class arbitration, class action or any other type of representative proceeding. You and Pedals agree that there will be no class arbitration or arbitration in which an individual attempts to resolve a Dispute as a representative of another individual or group of individuals. Further, you and Pedals agree that a Dispute cannot be brought as a class or other type of representative action, whether within or outside of arbitration, or on behalf of any other individual or group of individuals. The limitations imposed by this Section 18(B) shall apply to, but are in no way limited to, class action refund claims brought by a class of taxpayers against Pedals related to taxes collected and remitted in good faith efforts at compliance with state and local marketplace facilitator or marketplace provider laws. Nothing in this Section 18(B) shall be construed to prohibit a buyer from filing a refund claim with the seller or applicable state and local tax authority as permitted by law.
C. Federal Arbitration Act. You and Pedals agree that these Terms affect interstate commerce and that the enforceability of this Section 20 shall be both substantively and procedurally governed by and construed and enforced in accordance with the Federal Arbitration Act, 9 U.S.C. § 1 et seq. (the “FAA”), to the maximum extent permitted by applicable law.
D. Notice; Informal Dispute Resolution. You and Pedals agree that each party will notify the other party in writing of any arbitrable or small claims Dispute within thirty (30) days of the date it arises, so that the parties can attempt in good faith to resolve the Dispute informally. Notice to Pedals shall be sent to firstname.lastname@example.org. Your notice must include (1) your name, postal address, telephone number, the email address you use or used for your Account, and, if different, an email address at which you can be contacted, (2) a description in reasonable detail of the nature or basis of the Dispute, and (3) the specific relief that you are seeking. Our notice to you will be sent to the email address you used to register for your Account, and will include (a) our name, postal address, telephone number and an email address at which we can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that we are seeking. If you and Pedals cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or Pedals may, as appropriate and in accordance with this Section 18, commence an arbitration proceeding, or to the extent specifically provided for in section 18(A), file a claim in court.
E. Process. Except for Disputes arising out of or related to a violation of Section 5 or Disputes in which either party seeks to bring an individual action in small claims court or seeks injunctive or other equitable relief for the alleged unlawful use of intellectual property, including without limitation, copyrights, trademarks, trade names, logos, trade secrets or patents, you and Pedals agree that any Dispute must be commenced or filed by you or Pedals within one (1) year of the date the Dispute arose, otherwise the underlying claim is permanently barred (which means that you and Pedals will no longer have the right to assert such claim regarding the Dispute). You and Pedals agree that (1) any arbitration will occur in Palm Beach County, Florida, (2) arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of the Judicial Arbitration and mediation Services (“JAMS”), which are hereby incorporated by reference, and (3) that the state or federal courts of the State of Florida and the United States, respectively, sitting in Palm Beach County, Florida have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. You may also litigate a Dispute in the small claims court located in the county of your billing address if the Dispute meets the requirements to be heard in small claims court.
F. Authority of the Arbitrator. As limited by the FAA, these Terms and the applicable JAMS rules, the arbitrator will have (1) the exclusive authority and jurisdiction to make all procedural and substantive decisions regarding a Dispute, including the determination of whether a Dispute is arbitrable, and (2) the authority to grant any remedy that would otherwise be available in court; provided, however, that the arbitrator does not have the authority to conduct a class arbitration or a representative action, which is prohibited by these Terms. The arbitrator may only conduct an individual arbitration and may not consolidate more than one individual’s claims, preside over any type of class or representative proceeding or preside over any proceeding involving more than one individual.
G. Rules of JAMS. The rules of JAMS and additional information about JAMS are available on the JAMS website. By agreeing to be bound by these Terms, you either (1) acknowledge and agree that you have read and understand the rules of JAMS, or (2) waive your opportunity to read the rules of JAMS and any claim that the rules of JAMS are unfair or should not apply for any reason.
H. Severability. If any term, clause or provision of this Section 18 is held invalid or unenforceable, it will be so held to the minimum extent required by law, and all other terms, clauses and provisions of this Section 18 will remain valid and enforceable. Further, the waivers set forth in Section 18(B) are severable from the other provisions of these Terms and will remain valid and enforceable, except as prohibited by applicable law.
I. Opt-Out Right. You have the right to opt out of binding arbitration within thirty (30) days of the date you first accepted the terms of this Section 18 by contacting Pedals through email@example.com. In order to be effective, the opt-out notice must include your full name and clearly indicate your intent to opt-out of binding arbitration. By opting out of binding arbitration, you are agreeing to resolve Disputes in accordance with Section 18.
19. Governing Law; Venue.
These Terms, your access to and use of the Pedals Service and Materials shall be governed by and construed and enforced in accordance with the laws of the State of Florida without regard to conflict of law rules or principles (whether of the State of Florida or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any Dispute between the parties that is not subject to arbitration or cannot be heard in small claims court, shall be resolved in the state or federal courts of the State of Florida and the United States, respectively, sitting in Palm Beach County, Florida.
A. Entire Agreement; Order of Precedence. These Terms contain the entire agreement, and supersede all prior and contemporaneous understandings between the parties regarding the Pedals Service. These Terms do not alter the terms or conditions of any other electronic or written agreement you may have with Pedals for the Pedals Service or for any other Pedals product, feature, service or otherwise. In the event of any conflict between these Terms and any other agreement you may have with Pedals, the Terms of this Agreement shall control unless otherwise expressly stated and mutually agreed upon by signed writing.
B. Amendments. We reserve the right to make changes or modifications to these Terms from time to time, in our sole discretion. If we make changes to these Terms, we will provide you with notice of such changes, such as by sending you an email and/or by posting the amended Terms via the Pedals Service and updating the “Last Updated” date at the top of these Terms. All amended Terms will become effective immediately on the date they are posted to the Pedals Service unless we state otherwise via our notice of such amended Terms. Any amended Terms will apply prospectively to use of the Pedals Service after such changes become effective. Your continued use of the Pedals Service following the effective date of such changes will constitute your acceptance of such changes. If you do not agree to any amended Terms, you must discontinue using the Pedals Service.
C. Severability. If any provision of these Terms is held to be unenforceable for any reason, such provision will be reformed only to the extent necessary to make it enforceable, and such decision will not affect the enforceability of such provision under other circumstances, or of the remaining provisions hereof under all circumstances.
D. Waiver. Our failure or delay in exercising any right, power or privilege under these Terms will not operate as a waiver thereof.
E. Relationship. Pedals is an independent contractor for all purposes, and is not your agent or trustee. You are not an agent nor have any agency relationship with Pedals.
F. Assignment. You may not assign or transfer any of your rights or obligations under these Terms without express, prior written consent from Pedals, including by operation of law or in connection with any change of control. Pedals may assign or transfer any or all of its rights under these Terms, in whole or in part, without obtaining your consent or approval.
G. Headings. Headings of sections are for convenience only and will not be used to limit or construe such sections.
H. Survival. Sections 14 (Disclaimer of Warranties), 16 (Limitation of Liability), 17 (Indemnity), 18 (Arbitration), 19 (Governing Law; Venue), this Section 20 (Miscellaneous), and any other Term of this Agreement will survive any termination or expiration of these Terms.