Effective Date: August 1, 2012
Welcome to the YardSales.net website, which is located at YardSales.net (the "Website"). This Terms of Service ("TOS") contain the terms and conditions that govern your use of the Website and the YardSales.net Service (as defined below). This TOS describes your rights and responsibilities and what you can expect from the YardSales.net Service. Use of the YardSales.net Website constitutes your acceptance of and agreement to this TOS.
YardSales.net reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and in its sole discretion, by posting a change notice or a new agreement on the YardSales.net Website. In the event of substantive changes to this TOS, you may be notified by email. If any modification is unacceptable to you, your only recourse is to not use the Website and the YardSales.net Service. Your continued use of the YardSales.net Website following posting of a change notice or new TOS on the YardSales.net Website will constitute binding acceptance of the changes.
YardSales.net provides a number of Internet-based services through the Website (all such services, collectively, the "YardSales.net Service"). One such service enables users to post information regarding to sales, including without limitation, addresses, photos, descriptions and merchandise (collectively, "Products"). YardSales.net allows all users to browse the Website and use the information provided to find the locations of posted sales. YardSales.net may offer a number of other services on its Website, including without limitation, message boards, contests, and newsletters, which may change from time to time.
2.1 Eligibility. YardSales.net will only knowingly provide the YardSales.net Service to parties that can lawfully enter into and form contracts under applicable law. If you are under the age of 18, but at least 13 years of age, you may use the YardSales.net Service only under the supervision of a parent or legal guardian who agrees to be bound by this TOS. The YardSales.net Service is not intended for children under the age of 13.
2.2 Compliance with TOS and Applicable Law. You must comply with all of the terms and conditions of this TOS, the applicable agreements and policies referred to below, and all applicable laws, regulations and rules when you use the YardSales.net Service and the Website.
2.3 Your License to Use the Web Site and the YardSales.net Service.
3.1 Prohibited Use. You may only use the YardSales.net Service as expressly permitted by YardSales.net. You may not cause harm to the Website or the YardSales.net Service. Specifically, but not by way of limitation, you may not:
4.1 Monitoring. YardSales.net reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If YardSales.net determines, in its sole and absolute discretion, that you or another YardSales.net user will breach a term or condition of this TOS or that such transaction or communication is inappropriate, YardSales.net may cancel such transaction or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
4.2 Modification of the Service. YardSales.net reserves the right to modify the organization, structure or "look and feel" of the YardSales.net Service or the Website, and may change, suspend, or discontinue any aspect of the YardSales.net Service at any time without any liability to you or any third party. YardSales.net shall have complete discretion over the features, functions, prices and other terms and conditions on which the YardSales.net Service is offered to YardSales.net users.
When you submit questions, comments, suggestions, ideas, message board postings, material submitted via web forms, contest entries, communications or any other information ("Submissions"), you grant YardSales.net permission to use such Submissions for marketing and other promotional purposes, including the right to sublicense. You agree that YardSales.net will have no obligation to keep any Submissions confidential. You will not bring a claim against YardSales.net based on "moral rights" or the likes arising from YardSales.net's use of a Submission.
6.1 Mutual Representations and Warranties. You represent and warrant to YardSales.net and YardSales.net represents and warrants to you: (i) that you or it has the full power and authority to enter into and perform under this TOS, (ii) the execution and performance of your or its obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which you or it is bound, and (iii) this TOS is a legal, valid and binding obligation of the party entering into this TOS, enforceable in accordance with its terms and conditions.
6.2 By You. You represent and warrant to YardSales.net that, in your use of the YardSales.net Service, you: (i) will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or other legal right of any third party, and (ii) will comply with all applicable laws, rules, and regulations. You further represent and warrant to YardSales.net that: (i) there are no claims, demands or any form of litigation pending, or to the best of your knowledge, threatened with respect to any of your Content; (ii) YardSales.net will not be required to make any payments to any third party in connection with its use of your Content, except for the expenses that YardSales.net incurs in providing the YardSales.net Service; (iii) the use of any instructions, formulae, recommendations, or the like contained in your Content will not cause injury to any third party; and (iv) your Content does not contain viruses or any other programs or technology designed to disrupt or damage any software or hardware.
DISCLAIMER OF WARRANTIES. YARDSALES.NET PROVIDES THE WEBSITE AND YARDSALES.NET SERVICE ON AN "AS IS" AND "AS AVAILABLE" BASIS. YARDSALES.NET DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, YARDSALES.NET SERVICE OR ITS USE: (i) WILL BE UNINTERRUPTED, (ii) WILL BE FREE OF INACCURACIES OR ERRORS, (iii) WILL MEET YOUR REQUIREMENTS, OR (iv) WILL OPERATE IN THE CONFIGURATION OR WITH THE HARDWARE OR SOFTWARE YOU USE. YARDSALES.NET MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THESE TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION, WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
LIMITATION OF LIABILITY. YARDSALES.NET WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF THE YARDSALES.NET SERVICE OR THIS TOS, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL THE LIABILITY OF EITHER PARTY IN CONNECTION WITH THIS TOS EXCEED THE GREATER OF (i) THE AMOUNT PAID BY YARDSALES.NET TO YOU DURING THE SIX MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GIVES RISE TO SUCH LIABILITY OR (ii) $100.
You must indemnify and hold YardSales.net and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Parties") harmless from any damage, loss, or expense (including without limitation, attorneys' fees and costs) incurred in connection with any third-party claim, demand or action ("Claim") brought against any of the Parties alleging that you have breached any provision of this TOS through any act or omission. If you have to indemnify YardSales.net under this Section, YardSales.net will have the right to control the defense, settlement, and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without YardSales.net's express written permission.
10.1 Termination. In its sole discretion, with or without notice to you, YardSales.net may: (i) suspend, limit your access to or terminate your use of the Website and/or the YardSales.net Service, (ii) suspend, limit your access to or terminate your account, (iii) remove any of your Content from YardSales.net's servers and directories and (iv) prohibit you from using the YardSales.net Service and/or the Website.
10.2 Survival. Notwithstanding Section 11.1 above, this TOS will survive indefinitely unless and until YardSales.net chooses to terminate this TOS.
10.3 Effect of Termination. If you or YardSales.net terminates your use of the Website or the YardSales.net Service, YardSales.net may delete any Content or other materials relating to your use of the YardSales.net Service on YardSales.net's servers or otherwise in its possession and YardSales.net will have no liability to you or any third party for doing so.
All notices required or permitted to be given under these TOS will be in writing and delivered to the other party by any of the following methods: (i) U.S. mail, (ii) overnight courier, or (iii) electronic mail. If you give notice to YardSales.net, you must use the following addresses: 950 Tower Lane, Suite 600, Foster City, CA 94404, email@example.com. If YardSales.net provides notice to you, YardSales.net will use the contact information provided by you to YardSales.net. All notices will be deemed received as follows: (i) if by delivery by U.S. mail, seven (7) business days after dispatch, (ii) if by overnight courier, on the date receipt is confirmed by such courier service, or (iii) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication will satisfy this requirement.
All disputes arising out of, relating to or connected with these TOS or your use of any part of the YardSales.net Service will be exclusively resolved under confidential binding arbitration held in Santa Clara County, California, before and in accordance with the Rules of the American Arbitration Association, by a sole arbitrator applying California law (without regard for conflicts of law principles). The arbitrator's award will be binding and may be entered as a judgment in any court of competent jurisdiction. Any action to enforce an arbitrator's award will be brought in a federal or state court located in Santa Clara County, California. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and California State courts in Santa Clara County. Notwithstanding anything to the contrary in this Section 13, YardSales.net may seek equitable relief, including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
These TOS will be binding upon each party hereto and its successors and permitted assigns, and governed by and construed in accordance with the laws of the State of California without reference to conflict of law principles. This TOS is not assignable or transferable by you without the prior written consent of YardSales.net. This TOS (including all of the policies and other Agreements described in this TOS, which are incorporated herein by this reference) contain the entire understanding of the parties regarding its subject matter, and supersedes all prior and contemporaneous agreements and understandings between the parties regarding its subject matter. No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power, or privilege. You and YardSales.net are independent contractors, and no agency, partnership, joint venture, or employee-employer relationship is intended or created by this TOS. The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provision of this TOS, all of which will remain in full force and effect.
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