MEMBER TERMS AND CONDITIONS
Last updated on April 1, 2020
You (the “Member”) are entering into a legally binding agreement. These Member Terms and Conditions (this “Agreement”) set out the terms on which PCARMARKET, Inc. (“PCARMARKET”) offers you access to and use of PCARMARKET’s websites, applications, tools, and services (collectively “Membership Services”).
Please be advised that this Agreement affects your legal rights and contains provisions that govern how claims between you and PCARMARKET have against each other are resolved. You should read this Agreement in its entirety before accepting it. If you object to anything in this Agreement, or otherwise do not understand or agree to be bound by this Agreement, do not use the Membership Services. If you use the Membership Services in any way, including by placing a bid through PCARMARKET’s website, you agree to and are bound by this Agreement. You are encouraged to retain a copy of this Agreement for future reference.
PCARMARKET may modify, add to, suspend or delete this Agreement, in whole or in part, at PCARMARKET’s sole discretion, at any time, with such modifications, additions or deletions being immediately effective upon their posting to the Website (as defined below). PCARMARKET will provide you with notice of such changes, and it is your responsibility to review any changes to this Agreement. If you object to any of the changes to this Agreement, or otherwise do not understand or agree to any of the changes to this Agreement, do not use the Membership Services. By continuing to use the Membership Services following notice of any changes to this Agreement, you agree to and are bound by this Agreement as changed.
II. GENERAL TERMS, ACKNOWLEDGMENTS
For purposes of this Agreement, references to “you,” “your,” and “Member” shall mean a registered user of the PCARMARKET website. References to the “Website” shall mean the website located at https://www.pcarmarket.com and any related website provided by PCARMARKET unless otherwise specified. “Member Account” or “Account” shall mean the account you create through the Website and through which you may receive information from PCARMARKET and participate in the Membership Services and other features of the Website, such as bid in online actions and arrange for vehicle shipment. “Seller” shall mean a Member who uses the Website to sell a vehicle. “Buyer” shall mean a Member who uses the Website to purchase a vehicle.
B. Modifications and Changes to the Website, Membership Services
PCARMARKET may modify, add to, suspend, or delete any aspect of the Website or any Membership Services offered by PCARMARKET thereby, in whole or in part, at PCARMARKET’s sole discretion at any time, with such modifications, additions or deletions being immediately effective. Such modifications, additions or deletions may include but are not limited to functionality and services offered, other content offered, hours of availability, and equipment needed for access or use.
C. Prohibited Use of the Website, Member Account
In addition to other prohibitions as set forth in this Agreement, you are prohibited from using the Website and/or any Member Account: (a) for any unlawful purpose; (b) to solicit others to perform or participate in any unlawful acts; (c) to violate any international, federal, provincial or state regulations, rules, laws, or local ordinances; (d) to infringe upon or violate PCARMARKET’s intellectual property rights or the intellectual property rights of others; (e) to harass, abuse, insult, harm, defame, slander, disparage, intimidate, or discriminate based on gender, sexual orientation, religion, ethnicity, race, age, national origin, or disability; (f) to submit false or misleading information; (g) to upload or transmit viruses or any other type of malicious code that will or may be used in any way that will affect the functionality or operation of the Website or materials and products found thereon, or of any related website, other websites, or the Internet; (h) to collect or track the personal information of others; (i) to spam, phish, pharm, pretext, spider, crawl, or scrape; (j) for any obscene or immoral purpose; or (k) to interfere with or circumvent the security features of the Website, other websites, or the Internet. PCARMARKET reserves the right to terminate your use of the Website for violating any of the prohibited uses or for any other reason at PCARMARKET’s sole and exclusive decision.
D. Accuracy, Completeness and Timeliness of Information
PCARMARKET is not responsible if information made available on the Website is not accurate, complete or current. You acknowledge that the Website is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. You acknowledge and agree that no advice or information, whether oral or written, obtained from PCARMARKET, or through the Website, shall create any warranty not expressly stated in this Agreement. You further acknowledge that any material downloaded or otherwise obtained through the use of the Website is done at your own risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
E. Right of Refusal, Limitation, and Discontinuation
PCARMARKET reserves the right to refuse to provide any access to the Website and/or Membership Services and/or a Member Account to anyone for any reason at any time at PCARMARKET’s sole discretion without recourse to you.
III. YOUR MEMBER ACCOUNT
A. Registration Required
In order to participate in the Membership Services, such as bidding on vehicles, accessing vehicle reports, establishing a bidding limit, and benefiting from exclusive discounts and services, users are required to register as Members. Access of the Membership Services without registration shall be strictly prohibited.
B. Membership Eligibility
Membership is limited to those persons who are eighteen (18) years of age or older and have the capacity to enter into a legally binding contract and who reside in the countries that are not currently under U.S. trade embargo restrictions. You must also hold a valid driver’s license, state-issued ID or passport and shall be required to provide proof of the same upon registration. In addition to the foregoing, state-specific registration requirements and applicable laws, regulations and restrictions may further limit Member registration and vehicle purchasing eligibility.
C. Registration Process and Procedures
D. Account Activity
Members are responsible for all Account activity, including, without limitation, all bids submitted under the Member's username and password through the Website. A Member's Account may not be transferred or assigned to any person or entity. In the event a Member's Account or username and password are used without authorization, you agree to immediately notify PCARMARKET of any such unauthorized activity. Members shall be responsible for all Account activity and charges incurred prior to the receipt of written notice by PCARMARKET of such unauthorized activity.
E. Revocation of Membership
PCARMARKET reserves the right to suspend or irrevocably revoke the Membership of a Member for any reason, at PCARMARKET’s sole and absolute discretion. Membership may be suspended for any of the following reasons, including but not limited to: improper or unprofessional conduct on the Website or on any affiliate website, through any electronic or non-electronic format; non?payment of contracted agreements; or any other reason whatsoever as PCARMARKET deems applicable. PCARMARKET shall not be liable in any manner whatsoever for said revocation or suspension.
F. Marketing and Promotional Materials
Members agree and acknowledge that by registering for an Account they have affirmatively requested to receive marketing and promotional materials via mail, email and facsimile from PCARMARKET and PCARMARKET’s third-party affiliates. To unsubscribe to any promotional materials sent to you via email, simply follow the unsubscribe information provided at the bottom of each communication.
G. Comments on Auction Pages
Members have the option to place comments on the auction page of any vehicle listed on the Website. Comments may be directed to the Seller, to other Members bidding on the vehicle, or to other Members commenting on the vehicle. You agree that any comments you make on an auction page will be appropriate and professional and will not contain any content that is indecent, of a derogatory nature, or otherwise inappropriate. PCARMARKET reserves the right to remove any comments or to revoke the Membership of any Member who violates this provision, all at PCARMARKET’s sole and absolute discretion.
Member agrees and acknowledges that PCARMARKET will have the right to periodically send electronic or printed correspondence to such Member, including text messages. Such correspondence may be in reference to changes in policies, promotions available to Members, or other material related to the Member’s Account or access thereof to the Website. Notwithstanding any current or prior election to opt in or opt out of receiving telemarketing calls or SMS messages (including text messages) from us, our agents, representatives, affiliates, or anyone calling on our behalf, you expressly consent to be contacted by us, our agents, representatives, affiliates, or anyone calling on our behalf for any and all purposes arising out of or relating to your Member Account, at any telephone number, or physical or electronic address you provide or at which you may be reached. You agree we may contact you in any way, including SMS messages (including text messages), calls using prerecorded messages or artificial voice, and calls and messages delivered using auto telephone dialing system or an automatic texting system. Automated messages may be played when the telephone is answered, whether by you or someone else. In the event that an agent or representative calls, he or she may also leave a message on your answering machine, voice mail, or send a message via text. You certify, warrant and represent that the telephone numbers that you have provided to us are your contact numbers. You represent that you are permitted to receive calls at each of the telephone numbers you have provided to us. You agree to promptly alert us whenever you stop using a particular telephone number. Your cellular or mobile telephone provider will charge you according to the type of plan you carry. You also agree that we may contact you by e-mail, using any email address you have provided to us or that you provide to us in the future. We may listen to and/or record phone calls between you and our representatives without notice to you as permitted by applicable law, for purposes of quality monitoring purposes.
IV. AUCTIONS, BIDDING AND SALES
After Seller creates an Account and provides all the necessary information in regard to the vehicle or item to be sold, Seller will receive an email notifying Seller that the vehicle or item has been approved for sale. Seller shall then choose the preferred type of auction for selling the vehicle. If Seller chooses a Reserve Auction or Blind Auction, Seller will suggest a reserve. PCARMARKET will review Seller’s suggested reserve and, together with Seller, will establish the Reserve Price, which shall be the minimum price at which the Seller’s vehicle may be sold. Before the auction takes place, Seller will be contacted by an auction specialist, who will verify all information with the Seller and arrange with Seller for photos of the vehicle to be displayed on the Website. After all information is verified and all necessary details are listed on the Website, the auction will begin once PCARMARKET determined at its discretion and will last for a period of at least seven to ten (7-10) days but may be longer or shorter as determined by PCARMARKET.
B. Reserve Auction
If Seller chooses a Reserve Auction, Seller will suggest a Reserve Price, which must be approved by PCARMARKET. Upon PCARMARKET and Seller agreeing upon the vehicle’s Reserve Price, the auction will begin at a date and time to be determined by PCARMARKET and will last for a period of at least seven to ten (7-10) days but may be longer or shorter as determined by PCARMARKET. PCARMARKET shall notify Seller once the Auction begins. If all bids received with respect to the vehicle during the initial auction period are below the Reserve Price, the vehicle will be placed in the Deal Tank for a period of four (4) weeks. Once a vehicle has been placed in the Deal Tank, PCARMARKET will work directly with the Seller and eligible Members to reach an agreement for the sale of the vehicle or item. While the vehicle or item remains in the Deal Tank, prospective Buyers will be able to submit an anonymous offer, which PCARMARKET will then present to Seller to accept or decline. In some cases, Buyers can “Buy Now” for an agreed upon price which will be automatically accepted by the Seller based on the vehicle or items availability. If the vehicle remains unsold after the conclusion of the Deal Tank period, all contractual obligations between Seller and PCARMARKET will end.
C. Blind Auction
In a Blind Auction, all bid amounts entered for a vehicle remain anonymous. The final selling price of the vehicle also remains anonymous. If Seller chooses to sell his or her vehicle by way of a Blind Auction, Seller will suggest a Reserve Price, which must be approved by PCARMARKET. Upon PCARMARKET and Seller agreeing upon the vehicle’s Reserve Price, the auction will begin at a date and time to be determined by PCARMARKET and will last for a period of at least seven to ten (7-10) days but may be longer or shorter as determined by PCARMARKET. PCARMARKET shall notify Seller once the Auction begins. If all bids received on the vehicle during the initial auction period are below the Reserve Price, the vehicle will be placed in the Deal Tank for a period of four (4) weeks. Once a vehicle has been placed in the Deal Tank, PCARMARKET will work directly with the Seller and eligible Members who placed the highest bids during the auction period to reach an agreement for the sale of the vehicle. If the vehicle remains unsold after the conclusion of the Deal Tank period, all contractual obligations between the Seller and PCARMARKET will end.
D. No Reserve Auction
In a No Reserve Auction, Seller does not provide a Reserve Price. Instead, Seller’s vehicle or item will sell for the highest bid amount, regardless of the exact amount of such bid. If no bids are received for the vehicle during the initial auction period, all contractual obligations between the Seller and PCARMARKET will end.
When a prospective Buyer desires to make a bid on a vehicle, the prospective Buyer will be prompted to enter his or her credit card information to pay the applicable bidding fees (as hereinafter explained in Section VI.B). After entering such information, the prospective Buyer will be able to make a bid. Bids are to be placed at the bottom of the auction page, where, except in the case of a Blind Auction, the prospective Buyer can see how many bids have been made for the vehicle and the amount of the current highest bid. Once a bid has been made, an email notification confirming the bid will be sent to the prospective Buyer. After a bid has been submitted, it cannot be retracted, deleted or canceled for any reason whatsoever; therefore, Members should exercise caution when placing bids. In the event that a prospective Buyer’s bid is exceeded by another bid, an email notification will be sent to the prospective Buyer notifying him or her that the bid has been exceeded. The prospective Buyer will then be able to make a separate bid.
F. Disputes Regarding Bids
Should a dispute arise regarding a bid, PCARMARKET is the exclusive deciding authority with sole and absolute discretion in resolving disputes. Members agree to indemnify, defend and hold PCARMARKET harmless from any and all liability arising out of decisions made in resolving disputes regarding bids.
G. Transfer of Title
Members understand that the procedures for transferring title of a vehicle purchased through the Website are the responsibility of Seller and Buyer. Title to vehicles listed for sale on PCARMARKET shall never be held by PCARMARKET and PCARMARKET shall bear no responsibility for the inability or failure of Seller or Buyer to affect the correct transfer of title of any vehicle purchased through the Website.
H. Sale Cancellation
PCARMARKET reserves the right to cancel or reverse a sale transaction in the event of fraud, material misrepresentation, or patent defect in the description of the vehicle or bidding information, as determined by PCARMARKET in PCARMARKET’s sole discretion. PCARMARKET will not be liable to any Member as a result of any vehicle withdrawal, sale cancellation or postponement.
I. Post-Bid Damage, Discrepancy
If, prior to the vehicle being retrieved by Buyer, it is determined that items have been removed or replaced on the vehicle, that additional damage has occurred since the time the Buyer submitted his/her bid, and/or there is a title type discrepancy, the Buyer will have the option to purchase the vehicle at the original price or cancel the sale. Odometer readings that differ from the listed mileage by less than one thousand (1,000) miles do not qualify for transaction cancellation or refund of any amount from PCARMARKET.
J. Risk of Loss, Assumption of the Risk
Buyer takes full responsibility and assumes all risk of loss for all vehicles purchased from the time PCARMARKET accepts the Buyer’s bid. From and after acceptance of the Buyer’s bid, Buyer acknowledges that PCARMARKET is not responsible for damage to or loss of the vehicle or parts thereof and shall not be responsible for any claim of damage, regardless of whether Buyer, or any person on Buyer’s behalf such as Buyer’s agent, employee or representative, picks up the vehicle from Seller.
K. Compliance with Laws, Rules, and Regulations
Members shall comply with all applicable laws, statutes, ordinances and regulations regarding their use of the Membership Services.
Buyer agrees to comply, and to cause its agents and representatives to comply, with all applicable laws and regulations when retrieving a purchased vehicle from Seller, including properly loading and securing all vehicles for safe travel. PCARMARKET shall in no event be responsible or liable for any damage occurring as a result of unsafe or improper loading or securing of a vehicle for transport and the Buyer agrees to indemnify, defend, and hold PCARMARKET harmless from any and all claims, damages, losses, liabilities, obligations, costs and expenses (including attorneys' fees) arising from or related to any failure of the Buyer or the Buyer’s agent or representative to properly load and/or secure a vehicle for transport.
V. DELIVERY OF VEHICLE OR ITEM TO BUYER
A. Pickup by Buyer
Purchased vehicles or Items may be picked up by the Buyer directly from the applicable Seller only after full and complete payment for the vehicle or Item, including payment of any and all applicable fees.
B. Shipment of Purchased Vehicle
Should a Buyer desire to have the purchased vehicle or Item shipped to Buyer, Buyer may arrange with Seller for such shipment. However, under no circumstances will PCARMARKET make arrangements for such shipment or be responsible for Seller’s refusal to make such arrangements.
C. Non-Delivery by Seller
In the event that Seller fails to make a purchased vehicle or Item available for delivery to Buyer within 48 hours of full payment of the vehicle, PCARMARKET will return to Buyer an amount equal to the Buyer’s Fee (as hereinafter defined) if paid in full less any administrative charge incurred by PCARMARKET in processing the refund. Seller will not be entitled to the return of any fee paid by Seller on account of that sale and will be liable to PCARMARKET for any amount refunded to Buyer and any fee or administrative charge incurred by PCARMARKET to refund the Buyer’s Fee to Buyer.
D. Shipping Disclaimer
Members acknowledge and agree that it is the Buyer’s responsibility to either pick up or arrange for the delivery of a purchased vehicle. In the event that Buyer elects for delivery of a purchased vehicle, Buyer shall be solely responsible for arranging and paying for the shipment of the vehicle. PCARMARKET shall not be liable for any loss of vehicle keys, vehicle damage, vehicle or part theft, or shipment delays.
VI. FEES AND PAYMENTS
A. Seller’s Fees
For a Vehicle Reserve Auction, Seller will be charged an auction fee of $99.00 USD at the time Seller submits the vehicle information for approval. For a Vehicle DealTank Direct listing, Seller will be charged a fee of $199 USD at the time Seller submits the vehicle information for approval. For a Vehicle Blind Auction, Seller will be charged an auction fee of $500.00 USD at the time Seller submits the vehicle information for approval. For a Vehicle No Reserve Auction, Seller will be charged an auction fee of $99.00 USD at the time Seller submits the vehicle information for approval. Seller will be charged an auction fee of $49.00 USD for any other item (e.g. Wheels, Parts, Accessories, etc.) which Seller wishes to list for auction. If the Seller's vehicle or item is rejected by PCARMARKET and not able to be listed for sale on the Website, for whatever reason, PCARMARKET will refund any auction fee already paid by Seller with respect to the rejected vehicle.
By listing a vehicle or item for auction (solicited or unsolicited) the Seller automatically agrees to all “General Terms and Condition” outlined in this document as well as the “Seller’s Agreement”.
B. Buyer’s Fees
For vehicle auctions, when a prospective Buyer enters a bid, a temporary hold in the amount of five percent (5%) of the prospective Buyer’s bid (the “Hold”) will be placed on the prospective Buyer’s credit card. In the event the prospective Buyer’s bid is exceeded by another bid and the prospective Buyer does not win the particular auction, the Hold will expire and the prospective Buyer will not be charged any fee. In the event that the prospective Buyer is the winning bidder for a particular vehicle auction, the Hold will be released, and full buyer’s premium of 5% of the winning bid with a minimum of $500.00 USD and a maximum of $5,000.00 USD will be charged to the credit card by PCARMARKET as the Buyer’s Fee.
For non-vehicle auctions (Parts, Memorabilia, Wheels, Accessories, etc.), when a prospective Buyer enters a bid, a temporary hold in the amount of ten percent (10%) of the prospective Buyer’s bid (the “Hold”) will be placed on the prospective Buyer’s credit card. In the event the prospective Buyer’s bid is exceeded by another bid and the prospective Buyer does not win the particular auction, the Hold will expire and the prospective Buyer will not be charged any fee. In the event that the prospective Buyer is the winning bidder for a particular auction, the Hold will be released, and full buyer’s premium of 10% of the winning bid will be charged to the credit card by PCARMARKET as the Buyer’s Fee.
C. Payments for Vehicles
After a prospective Buyer receives notice that the prospective Buyer has entered the winning bid for a vehicle or Item, the Buyer must contact the Seller directly to arrange for the payment of the vehicle or Item. Buyer should use the link provided for contacting Seller to arrange for such payment. All payments for vehicles bought through PCARMARKET must be made in full to Seller within seven (7) business days of the sale date.
D. Non-Payment by Buyer
If a Buyer fails to issue payment for a purchased vehicle within the allotted time, the Buyer will be considered to have forfeited all of its rights in the vehicle or Item. In the event that Seller fails to sell the vehicle for a sale price equal to or greater than the sale price agreed-upon by the forfeiting Buyer, the forfeiting Buyer will be liable to Seller for the difference between the sale prices.
E. Payment of Sales Tax
Buyer agrees that Buyer is solely responsible for paying any applicable sales tax for a vehicle purchased through the Website. Buyer agrees that PCARMARKET is not responsible for notifying Buyer of any particular sales tax and that PCARMARKET shall not be liable for any penalty incurred by Buyer for failure to pay any applicable sales tax or any other applicable local, state, or federal charge.
F. Authorization to Collect, Unpaid Fees
You hereby authorize PCARMARKET to debit any and all outstanding fees from the account linked to your original form of payment without seeking your prior consent or approval or otherwise notifying you of PCARMARKET’s intent to so debit said fees. All Members shall abide by the following statement: "I hereby authorize PCARMARKET to initiate debit/credit entries from my bank deposit account or credit/debit card."
In the event of unpaid fees due and owed by a Buyer, Buyer agrees and acknowledges that Seller shall have no duty or other obligation to release to Buyer any vehicle or vehicle title until all fees are paid in full to PCARMARKET to the complete satisfaction of PCARMARKET.
G. Fee Dispute
Unless otherwise specified herein, no fees shall be refundable to you for any reason whatsoever due to the non-cancelable and irrevocable nature of the transactions provided for herein.
Should you object to the payment of any fee, you agree to write to PCARMARKET, using the contact information on the Website, so that PCARMARKET may determine the validity of your claim. Should PCARMARKET deny refunding you the disputed fee, you agree to submit the claim to binding arbitration pursuant to the provisions of Section VIII.B, infra. You agree to indemnify PCARMARKET for any financial harm and/or any losses that arise from or relate to any fee dispute of any kind, including the payment of attorney’s fees and costs.
VII. DISCLAIMERS, LIMITATIONS OF LIABILITY
A. Vehicle Condition and History Disclaimer
ALL VEHICLES ARE SOLD "AS IS WHERE IS"
All vehicles offered for sale through PCARMARKET are sold "AS IS WHERE IS," WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. The term “Vehicles” shall mean all items posted for sale on the Website. PCARMARKET expressly disclaims the accuracy or completeness of any and all information provided to Members regarding vehicles, whether provided in written, verbal or digital image form ("Vehicle Information"). Vehicle Information provided by PCARMARKET is for convenience only. Members shall not rely on Vehicle Information in deciding whether or how much to bid on a vehicle purchased through PCARMARKET. Vehicle Information includes but is not limited to: year, make, model, condition, ACV, damage amount, damage type, drivability, accessories, mileage, odometer disclosures, vehicle identification number (e.g., “VIN,” “HIN” and serial number), title, repair cost, repair history, title history and total loss history. It is the Buyer’s responsibility to verify whether a vehicle has any warranty. PCARMARKET does not make and expressly disclaims any and all representations, warranties and guarantees regarding vehicles sold through the Website.
PCARMARKET does not guarantee that keys are available for any vehicle sold through the Website, regardless of whether keys are present in online vehicle images or were present in the vehicle prior to the time of purchase. Certain jurisdictions permit vehicles to be sold with missing VIN plates; as a result, PCARMARKET does not guarantee that vehicles are equipped with any or all VIN plates. Parts may be missing. PCARMARKET does not guarantee that vehicles meet or can be modified to meet federal, state, or local emission and/or safety requirements. It is the sole responsibility of Buyer to ascertain, confirm, research, inspect and/or investigate vehicles and any and all Vehicle Information prior to bidding on vehicles.
All Members agree that vehicles sold through PCARMARKET are sold “AS IS” and are not represented as being in a road-worthy condition, mechanically sound or maintained at any guaranteed level of quality. Vehicles may have latent, hidden, or undisclosed damage or other conditions that are not immediately apparent or discoverable. The vehicles may not be fit for use as a means of transportation and may require substantial repairs at your expense.
B. Registration Laws Disclaimer
PCARMARKET does not guarantee that any vehicle sold can be legally registered in any state or country, and Buyer accepts all risks associated with variations in vehicle title and registration laws between states, provinces and countries that may negatively impact the marketability of vehicles purchased through PCARMARKET. (For example, a vehicle legally purchased on a clean title by a Buyer through PCARMARKET from a Seller located in State "A" may be required to be sold on a salvage title if Buyer transports and resells the vehicle in State "B.")
C. DMV/MVD/DOR Paperwork Disclaimers
PCARMARKET shall not be responsible for defects, errors, or omissions (i) related to motor vehicle department or department of revenue paperwork not processed by PCARMARKET or (ii) made by any motor vehicle department, department of revenue or other governmental entity.
D. Disclosure of Member Information
Each Member expressly agrees that PCARMARKET may, if and to the extent necessary to comply with applicable law, disclose information regarding PCARMARKET’s Members and regarding transactions conducted by Members through PCARMARKET if requested to do so in any judicial or administrative proceeding or by any governmental agency or regulatory authority (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise).
E. Disclaimer and Release of Liability
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL PCARMARKET BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES OR LOST PROFITS THAT RESULT FROM OR ARE RELATED TO THE SALE, DISTRIBUTION, USE OF OR INABILITY TO USE ANY VEHICLE, EVEN IF PCARMARKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Members irrevocably and unconditionally waive and release their rights (if any) to recover from PCARMARKET, its directors, officers, employees, representatives, agents, parents, subsidiaries, partners, affiliates and vendors any and all damages, losses, liabilities, costs, expenses or claims therefore, whether direct or indirect, known or unknown, or foreseen or unforeseen, which may arise from or be related to the sale, distribution, use of or inability to use any vehicle purchased through PCARMARKET.
Members agree to indemnify, defend and hold PCARMARKET harmless from any and all damages, losses, liabilities, costs or expenses (including attorney’s fees) arising from claims made by a Member related to the sale, distribution, use of or inability to use any vehicle purchased through PCARMARKET.
Members who are California residents waive California Civil Code §1542, which reads: "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."
Members hereby unconditionally release PCARMARKET from any and all liability whatsoever for any losses or damages (whether direct or indirect, known or unknown, foreseen or unforeseen, and including attorneys’ fees) arising out of or in any way related to any of the following:
Your failure or refusal to strictly comply with this Agreement and any and all of PCARMARKET’s rules and policies;
Buyer’s failure or refusal to notify PCARMARKET of any problem with or condition of any vehicle before it is removed from Seller’s possession;
Your failure or refusal to keep your Account login information confidential;
The termination or suspension of your Account;
Your cancelation of your Account;
PCARMARKET’s decision to charge your credit card to pay any unpaid fees;
The postponement, cancelation or withdrawal of any vehicle auction on the Website;
Your failure or refusal to know the type and amount of applicable fees and charges (including auction fees and other applicable fees and charges related to your use of the Membership Services);
Your failure or refusal to pay any amount due within the time period specified (including any vehicle purchase price, auction fees, and other applicable fees and charges related to your use of the Membership Services);
Buyer’s failure or refusal to remove any vehicle from Seller’s possession within the time period specified;
Seller’s failure or refusal to deliver a vehicle purchased by Buyer to Buyer’s possession within the time period specified;
Seller’s refusal to release any vehicle or vehicle title or ownership documents or otherwise transfer possession or ownership of any vehicle to Buyer due to any unpaid fees or Buyer’s violation of this Agreement;
Any damage, removal or replacement of items, or title discrepancy occurring with respect to a purchased vehicle after the Buyer has purchased the vehicle, but before Buyer has retrieved the vehicle;
Seller’s refusal to release or transfer possession or ownership of any vehicle to anyone other than Buyer;
Your failure or refusal to transfer ownership or register any vehicle in your name (as applicable);
PCARMARKET’s refusal to issue you a refund for any reason;
PCARMARKET’s declaration that any vehicle is “abandoned” due to Buyer’s failure or refusal to remove the vehicle from Seller’s possession within the time specified;
Seller’s election to relist a purchased vehicle after Buyer fails to make payment for the vehicle within the time specified;
The sale or other disposition of any abandoned vehicle;
Any damage to or loss of a purchased vehicle due to acts of theft or vandalism, weather, acts of God, or any other reason that occurs after the end of an auction but before the vehicle is removed from the Seller’s possession;
Buyer’s failure or refusal to comply with this Agreement or any applicable law or regulation when removing a vehicle from Seller’s possession;
Buyer’s vehicle after it is purchased through the Website;
Your use of any service provided by any third party (including any of PCARMARKET’s recommended service providers); and
PCARMARKET’s denial or rejection of any request or demand by you that does not comply with this Agreement.
You acknowledge and agree that under this general release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the scope of this general release to include only those claims that you may know or suspect to exist at the time you agree to this release.
Additionally, you hereby agree to pay all reasonable costs and expenses (including court fees, attorney fees, travel expenses, and other related costs and expenses) incurred by PCARMARKET in connection with PCARMARKET’s efforts to obtain a stay or dismissal of any Claim (as defined in Section VIII.B) pursuant to the general release under this section.
F. General Indemnification of PCARMARKET
For the purposes of this Section, “Loss” means any and all claims, losses, liabilities, damages, fines, penalties, costs and expenses (including interest which may be imposed in connection therewith), expenses of investigation, reasonable fees, costs and disbursements of attorneys, counsel, and other experts (at trial and on any appeal), and cost to PCARMARKET of any funds expended by reason of the occurrence of any Third Party Claim (as defined in this Section) or incurred in imposition thereof or in enforcing the provisions of this Agreement.
To the maximum extent permitted by law, you hereby agree to indemnify PCARMARKET and its affiliates, sublicensees, members, directors, officers, employees, representatives, agents, and any person claiming by or through any of them, and their respective successors, heirs, and assigns against any and all Losses arising out of, resulting from, or related to any claim brought by a third-party related to any item listed in Section VII.E.
G. Limitation of Damages
Members agree that, to the extent permitted by applicable law, PCARMARKET shall not under any circumstances have any liability whatsoever to a Member or any third-party for any damages or losses of any kind (known or unknown, foreseen or unforeseen, direct or indirect) arising out of or in any way related to any disclaimer provided in this Agreement or on the Website.
Members agree that, to the extent permitted by applicable law, PCARMARKET shall not under any circumstances have any liability whatsoever to a Member or any third-party for any (a) indirect, incidental, special, consequential, or punitive damages, (b) loss of use, data, opportunity, goodwill, reputation, profit, or revenue, or (c) costs or expenses (including attorneys’ fees) for any Claim (as defined in Section VIII.B) not amounting to a willful or intentional wrong.
Regardless of the previous paragraphs, Members agree that, to the extent permitted by applicable law, if PCARMARKET is found liable in any Claim (as defined in Section VIII.B), PCARMARKET’s total liability to the Member or to any third-party shall not exceed the amount of any fees (excluding the purchase price of any vehicle, or any other fees charged by any third-party) paid by the Member to PCARMARKET related to the transaction or vehicle giving rise to the liability. If no such fees were paid by the Member to PCARMARKET, PCARMARKET’s total liability to the Member or any third-party for any Claim (as defined in Section VIII.B) shall not exceed $500.00 USD.
A. Governing Law, Jurisdiction
This Agreement shall be governed by the laws of the State of New York without reference to the principles of conflicts of law. In the event that the agreement to arbitrate under Section VIII.B is found not to apply to any particular Member or to any particular Claim, Members hereby irrevocably submit to the jurisdiction of the courts of the State of New York, sitting in Nassau County, and the courts of the United States for New York.
B. Binding Arbitration
You agree that any claim, demand, controversy, dispute, or cause of action arising out of or in any way concerning, relating, or referring to this Agreement, your Account, your relationship with PCARMARKET, your use of or inability to use the Membership Services, or any vehicle you bid on or purchase using the Membership Services (each, a “Claim”) shall be resolved exclusively by binding arbitration according to the then-existing rules of the American Arbitration Association (“AAA”). Such proceedings will be governed by and in accordance with substantive New York law and shall be decided by a panel of arbitrators or an arbitrator located in Nassau County, New York.
The arbitrator and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable.
You agree that any Claim shall be resolved exclusively through final and binding arbitration, rather than in state or federal court. You and PCARMARKET both agree that each waives any right to a jury trial under this Agreement.
C. Attorney Fees
Except as specifically provided under this Agreement, the AAA rules, or by applicable law, the parties acknowledge and agree that (a) each party shall bear its own costs, expenses, and attorneys’ fees incurred in connection with any Claim, and (b) any right to an award of costs and expenses (including attorneys’ fees) under Section VII.E or elsewhere in this Agreement is limited to the specific circumstances set forth under such section and is not intended to provide any party with a general right to an award of costs and expenses (including attorneys’ fees), even if such party is the “prevailing party” in connection with any Claim.
If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term or provision.
This constitutes the entire agreement between the parties concerning this Agreement and the subject matter contained herein. No further warranties, representations, or other promises, oral or written, have been made or are made part hereof.