PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Effective date: 12th August, 2016
Welcome to 5miles. Please read on to learn the rules and restrictions that govern your use of our website(s), products, services and mobile applications (the “Services”). If you have any questions, comments, or concerns regarding these terms or the Services, please contact us at [email protected], 5miles LLC, 8150 N. Central Expressway, Ste. M2020, Dallas, TX 75206.
Will these Terms ever change?
We continually strive to improve our Services, so these Terms may need to change along with the Services to reflect those improvements, or for other reasons. We reserve the right to change the Terms at any time and for any reason, but if we do, we will bring it to your attention by placing a notice on the website at https://5miles.com/, by sending you an email, and/or by some other means.
If you don’t agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes. You should visit this page periodically to review these Terms.
Except for changes by us as described here, no other amendment or modification of these Terms will be effective unless in writing and signed by both you and us.
What about my privacy?
The Children’s Online Privacy Protection Act (“COPPA”) requires that online service providers obtain parental consent before they knowingly collect personally identifiable information online from children who are under 13. This Services are not directed toward or intended for children under age 13, and if you are under 13 you should not use this site. We do not knowingly collect or solicit personally identifiable information from children under 13; if you are a child under 13, please do not attempt to register for the Services or send any personal information about yourself to us. If we learn we have collected personal information from a child under 13, we will delete that information as quickly as reasonably possible. If you believe that a child under 13 may have provided us personal information, please contact us at [email protected] .
The Services are intended to be used by adults, as defined under any applicable law in each specific case. If you are not an adult, you are not authorized to download the application, register, and create an account with us. All minors require permission from their respective legal representative in order to use the Services.
Using the 5miles Marketplace
You may be required to sign up for an account, and select a password and user name (“5miles User ID”). You promise to provide us with accurate, complete, and updated registration information about yourself. You also promise to promptly notify us if the mobile phone number you provided for us to communicate with you is changed. You may not select as your 5miles User ID a name that you don’t have the right to use, or another person’s name with the intent to impersonate that person. Further, to the extent any information you provide is not truthful, 5miles shall not be liable since it cannot verify the provided information with certainty.
You may not transfer your account to anyone else without our prior written permission.
In using the 5miles Service, you agree to use the application and website and their contents and services in accordance with the law and in accordance with these Terms. You are obligated not to use the 5miles Service to conduct illegal activities or in a manner that constitutes a criminal offense, including violations of a third party’s rights.
In connection with using or accessing the Services you agree not to perform or engage in any actions from the following nonexhaustive list of prohibited actions:
- posting, listing, or uploading content or items in inappropriate categories or areas on our Services;
- posting, listing, or uploading items for sale that are generally illegal to own or possess;
- posting, listing, or uploading content or items that infringe or violate the intellectual property rights or any other rights of anyone else (including 5miles);
- posting, listing, selling, offering for sale, or otherwise providing any replicas, counterfeit items, unauthorized listings, stolen property, or any items listed on our Prohibited Items Policy available at https://5miles.com/info/privacy;
- breaching or circumventing any laws, third-party rights or our systems, policies, or determinations of your account status;
- using our Services if you are not able to form legally binding contracts (for example if you are under 18), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
- failing to pay for items purchased by you, unless you have a valid reason as set out in a 5miles policy;
- failing to deliver items sold by you, unless you have a valid reason as set out in a 5miles policy;
- manipulating the price of any item or interfere with any other user's listings;
- posting false, fraudulent, deceptive, inaccurate, misleading, defamatory, or libelous content, or content that is harmful, threatening, harassing, obscene, racist, xenophobic, or otherwise objectionable;
- taking any action that may undermine the feedback or ratings systems;
- transferring your 5miles account and 5miles User ID to another party without our consent or taking any action that jeopardizes the security of your 5miles account or anyone else’s (such as allowing someone else to log in to the Services as you);
- distributing or posting spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
- distributing viruses or any other technologies that may harm 5miles, or the interests or property of users;
- using any robot, spider, scraper, or any other means, manual or automated, to access our Services for any purpose, provided some limited web indexing is allowable by authorized entities;
- bypassing our robot exclusion headers or otherwise interfering with the working of our Services, or imposing an unreasonable or disproportionately large load on our infrastructure, including, but not limited to, running Maillist, Listerv, unsolicited, or unauthorized advertising, promotion materials, commercial activities, and/or sales, any form of auto-responder or “spam” on the Services, or any processes that run or are activated while you are not logged into the Services;
- circumventing any technical measures we use to provide the Services, including, but not limited to, violating the security of any computer network, or cracking any passwords or security encryption codes;
- reproducing, performing, displaying, distributing, reverse engineering, or preparing derivative works from content that belongs to or is licensed to 5miles, or that comes from the Services and belongs to another 5miles user or to a third party including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of 5miles and/or any other party holding the right to license such use;
- decompiling, reverse engineering, or otherwise attempting to obtain the source code of underlying idea or information of or relating to the Services;
- commercializing any 5miles application or any information or software associated with such application;
- harvesting or otherwise collecting information about users without their consent; or
- accessing, using, or otherwise exploiting the Services in violation of any applicable agreements, guidelines, regulations, or policies that 5miles makes available on the Services or otherwise in a manner deemed objectionable by 5miles in its sole discretion.
You represent and warrant that you are of legal age to form a binding contract (or if not, you have your parent’s or guardian’s permission to use the Services and their agreement to these Terms on your behalf). If you’re agreeing to these Terms on behalf of an organization or entity, you represent and warrant that you are authorized to agree to these Terms on its behalf and bind them to it Terms (in which case, the references to “you” and “your” in these Terms, except for in this sentence, refer to that organization or entity).
You will only use the Services for your own personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with all laws that apply to you and these Terms. If your use of the Services is prohibited by applicable laws, then you are not authorized to use the Services. We cannot and will not be responsible for your using the Services in a way that breaks the law.
A violation of any of the foregoing is grounds for termination of your right to use or access the Services.
If we believe you are abusing 5miles in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
Security of Your Account
By creating an account, you accept and assume all liability that may arise from any and all activity that originates from your account or occurs under your username and password. You acknowledge that you are responsible for maintaining the confidentiality of the password you designate during the registration process. You cannot share it with other people or perform acts that may diminish or undermine the security of your account. If you have knowledge that your password has been compromised, you should inform us immediately in order to recover your account.
Access and Proprietary rights
5miles is the holder of various intellectual property rights pertaining to or has obtained the necessary authorizations and/or licenses for its exploitation of the content disclosed in and associated with the Services, including, but not limited to, the trademarks, graphics, design, applications, text, images, and source code. Neither the contents of the Services nor the database of users may be used, reproduced, broadcasted, copied, processed, or transmitted in any form without 5miles’s prior express written consent.
5miles’s trademark(s) and trade dress may not be used in connection with any product or service that is not 5miles’s, in any manner that is likely to cause confusion among customers, or in any manner that disparages or discredits 5miles. All other trademarks not owned by 5miles that appear in any of our services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by 5miles.
Content; Do I have to grant any licenses to 5miles or to other users?
For all User Submissions, you hereby grant 5miles a license to translate, modify (for technical purposes, for example making sure your content is viewable on an iPhone as well as a computer) and reproduce and otherwise act with respect to such User Submissions, in each case to enable us to operate the Services, as described in more detail below. This is a license only—your ownership in User Submissions is not affected—however, you grant a license to 5miles to create derivative works, compile your content with other content and to own, register and enforce rights in such compilation and be the sole party entitled to any relief obtained from such enforcement efforts.
If you store a User Submission in your own personal 5miles account, in a manner that is not viewable by any other user except you (a “Personal User Submission”), you grant 5miles the license above, as well as a license to display, perform, and distribute your Personal User Submission for the purpose of making that Personal User Submission accessible to you and providing the Services necessary to do so.
If you share a User Submission only in a manner that only certain specified users can view (for example, a private message to one or more other users)(a “Limited Audience User Submission”), then you grant 5miles the licenses above, as well as a license to display, perform, and distribute your Limited Audience User Submission for the purpose of making that Limited Audience User Submission accessible to such other specified users, and providing the Services necessary to do so. Also, you grant such other specified users a license to access that Limited Audience User Submission, and to use and exercise all rights in it.
If you share a User Submission publicly on the Services and/or in a manner that more than just you or certain specified users can view, or if you provide us (in a direct email or otherwise) with any feedback, suggestions, improvements, enhancements, and/or feature requests relating to the Services (each of the foregoing, a “Public User Submission”), then you grant 5miles the licenses above, as well as a license to display, perform, and distribute your Public User Submission for the purpose of making that Public User Submission accessible to all 5miles users and providing the Services necessary to do so, as well as all other rights necessary to use and exercise all rights in that Public User Submission in connection with the Services and/or otherwise in connection with 5miles’s business. Also, you grant all other users of the Services a license to access that Public User Submission, and to use and exercise all rights in it, as permitted by the functionality of the Services.
You agree that the licenses you grant are royalty-free, perpetual, sublicenseable, irrevocable, and worldwide, provided that when you delete your 5miles account, we will stop displaying your User Submissions (other than Public User Submissions, which may remain fully available) to other users (if applicable) within a reasonable time, but you understand and agree that we may be required by law or otherwise to retain your account information or any other information associated with it and it may not be possible to completely delete that content from 5miles’s records, and that your User Submissions may remain viewable elsewhere to the extent that they were copied or stored by other users. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.
Finally, you understand and agree that 5miles, in performing the required technical steps to provide the Services to our users (including you), may need to make changes to your User Submissions to conform and adapt those User Submissions to the technical requirements of connection networks, devices, services, or media, and the foregoing licenses include the rights to do so.
You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph: your provision of content to us, your causing content to be posted using the Services, and use of any such content (including of works derived from it) by us, our users, or others in contract with us that is done in connection with the Services and in compliance with these Terms.
Who is responsible for what I see and do on the Services?
You are solely responsible for any information or content publicly posted or privately transmitted through the Services by you or through a device linked to you, and you access all such information and content at your own risk. 5miles is not liable for any errors or omissions in that information or content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can’t guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it. You will keep all your registration information accurate and current. You are responsible for all your activity in connection with the Services. 5miles shall have the right to remove any item or content that violates these Terms or is otherwise deemed objectionable by 5miles in its sole discretion.
5miles acts as an open marketplace for users to interact with other users to buy and sell products posted by users on the Services. 5miles is not involved in any transactions between buyers and sellers who use the Service, and does not act as the buyer or seller (or agent for buyers or sellers) with respect to any such transactions. 5miles has no control over, does not endorse or guarantee, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, 5miles will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You agree that 5miles shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings as further detailed below.
If there is a dispute between participants using the Services, or between users and any third party, you agree that 5miles is under no obligation to become involved. 5miles reserves the right to publish the applicable guidelines, policies, and regulations to regulate sellers’ or buyers’ standards of behaviors and dispute resolution procedures for customer complaints. In the event that you have a dispute with one or more other users, you release 5miles, its parent, affiliates and subsidiaries, and our and their respective officers, directors, employees and agents (collectively the “Releasees”) from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services. If you are a California resident, you shall and hereby do waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which, if known by him or her must have materially affected his or her settlement with the debtor."
What if I see something on the Services that infringes my copyright?
You may have heard of the Digital Millennium Copyright Act (the “DMCA”), as it relates to online service providers, like 5miles, being asked to remove material that allegedly violates someone’s copyright.
We do not permit copyright infringing activities and infringement of intellectual property rights and will remove any photos or other content if properly notified that such content infringes on another’s intellectual property rights. If you are a copyright owner or an agent thereof and believe that any content infringes upon your copyright, you may submit a notification by providing our Copyright Agent with the following information in writing:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright's interest;
- a description of the copyrighted work that you claim has been infringed, including the URL (i.e., web page address) of the location where the copyrighted work exists or a copy of the copyrighted work;
- identification of the URL or other specific location on the Services where the material that you claim is infringing is located;
- your address, telephone number, and email address
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
You can contact our Copyright Agent via email at [email protected].
To learn more about the DMCA, click here.
Authorization to Contact You; Recording Calls
5miles may, without further notice or warning and in its sole discretion, monitor or record telephone conversations you or anyone acting on your behalf has with 5miles or its agents for quality control and training purposes or for its own protection.
TERMS IN THIS SECTION ARE VOID WHERE PROHIBITED.
When you use the 5miles Service, or send emails, text messages, and other communications from your mobile device or desktop to us, you are communicating with us electronically. In doing so, you consent to receive communications from us electronically, including emails, text messages, mobile push notifications, or notices and messages on the website or through the 5miles Service, and you can retain copies of these communications for your records. You agree that all agreements, notices, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Privacy of Others
If 5miles provides you with information about another user, you agree you will use the information only for the purposes it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use the information for marketing purposes, via electronic means or other means, unless you obtain the consent of the specific user to do so.
Will 5miles ever change the Services?
We’re always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We’ll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn’t always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
Does the 5miles App cost anything?
Individual access and use of the Services are currently free. If you choose to sell goods through the Services, you are responsible for all income taxes associated with purchase/use and sale/solicitation of any items/services through the Service. If you choose to purchase goods through the Services, you will be charged the listed price for such good or service, together with any applicable shipping fees and taxes. All payments are processed by a third party payment processing service provider, and 5miles does not collect, store or retain your credit card or any other payment methods you provide to such third party payment processing service provider for any purpose other than facilitation of these the transaction and future communications with you. Shipping costs and taxes are not included in the listed price for any listings made available from sellers through the Service, but will be displayed to buyers before confirmation of any purchase if possible. The prices for listings displayed on the Services are quoted in US dollars. Prices are subject to change at any time before an agreement by both parties as to sales price is final. 5miles does not regulate agreements between parties, but merely serves to provide information regarding items for sale according to these Terms. Applicable taxes (including sales, excise, import, export, VAT and other taxes or duties associated with the purchase/use and sale/solicitation of any listing) are the exclusive responsibility of the parties. If you provide inaccurate or incomplete credit card information, your transaction may not be able to be completed, and your purchase may be cancelled or delayed.
We reserve the right to charge for certain or all Services in the future. We will try to notify you before any Services you are then using begin carrying a fee, but it may not always be possible. Any such changes are effective when we post information about the fee change through the Service. If you wish to continue using such Services, you must pay all applicable fees for such Services.
What else do I need to know if I want to make a sale on the Services?
You must have the legal authority to sell the listings that you are posting for sale through the Services. You must describe your listing and all terms of sale in your listing truthfully, accurately, reasonably, and completely in according with the Listing Guidelines available at here. An offer to sell may be retracted at any time prior to its acceptance, but not after. 5miles prohibits the posting or sale of any listing that is illegal to sell under any applicable law, statute, ordinance, or regulation, including without limitation content posted in our Prohibited Items Policy available here .
What if I want to stop using 5miles?
5miles is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. 5miles has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms.
If you deactivate the account, you can re-activate it by logging in again or retrieving your password at the login page. Account termination, deletion, or deactivation may result in destruction of any and/or all Content associated with your account, so keep that in mind before you decide to terminate your account. We will try to provide advance notice to you prior to our terminating your account so that you are able to retrieve any important User Submissions you may have stored in your account (to the extent allowed by law and these Terms), but we may not do so if we determine it would be impractical, illegal, not in the interest of someone’s right, safety or security, or otherwise harmful to the rights or property of 5miles.
Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding disputes between us.
I use the 5miles App available via the Apple App Store – should I know anything about that?
These Terms apply to your use of all the Services, including the iPhone, iPad Touch, and iPad applications available via the Apple, Inc. (“Apple”) App Store (the “Application”), but the following additional terms also apply to the Application:
- (a) Both you and 5miles acknowledge that the Terms are concluded between you and 5miles only, and not with Apple, and that Apple is not responsible for the Application or the Content;
- (b) The Application is licensed to you on a limited, non-exclusive, non-transferrable, non-sublicensable basis, solely to be used in connection with the Services for your private, personal, non-commercial use, subject to all the terms and conditions of these Terms as they are applicable to the Services;
- (c) You will only use the Application in connection with an Apple device that you own or control;
- (d) You acknowledge and agree that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application;
- (e) In the event of any failure of the Application to conform to any applicable warranty, including those implied by law, you may notify Apple of such failure; upon notification, Apple’s sole warranty obligation to you will be to refund to you the purchase price, if any, of the Application;
- (f) You acknowledge and agree that 5miles, and not Apple, is responsible for addressing any claims you or any third party may have in relation to the Application;
- (g) You acknowledge and agree that, in the event of any third party claim that the Application or your possession and use of the Application infringes that third party’s intellectual property rights, 5miles, and not Apple, will be responsible for the investigation, defense, settlement and discharge of any such infringement claim;
- (h) You represent and warrant that you are not located in a country subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country, and that you are not listed on any U.S. Government list of prohibited or restricted parties;
- (i) Both you and 5miles acknowledge and agree that, in your use of the Application, you will comply with any applicable third party terms of agreement that may affect or be affected by such use;
- (j) Both you and 5miles acknowledge and agree that Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and that upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as the third party beneficiary hereof.
Disclaimer of Warranties and Limitation of Liability
The 5miles Service is a marketplace platform that enables users to sell products locally online. As such, 5miles possesses no ownership or control over the items sold through the platform, unless otherwise stated, and is generally not a party to the transaction of the sale carried out exclusively between a seller and interested buyer, nor does it review the products that a user provides through the Services. Accordingly, 5miles is not liable for and shall not be responsible, either directly or indirectly, for any disagreement between users of the marketplace. Any claim or dispute that may arise between users of the Services shall be settled by them, and the parties agree to hold 5miles harmless.
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Additionally, 5miles shall in no case be responsible for the content operation and/or data protection or other terms referred to in other websites or applications that may be accessed by the inclusion of a hyperlink on the Service, or the content, services, or products offered on the same, unless such sites are owned by 5miles. The hyperlinks contained in the website or in the application may lead to a third party website, application, or service. 5miles assumes no responsibility for the content, information, or services that may appear on those sites.
THE 5MILES SERVICES AND ALL INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE 5MILES SERVICES ARE PROVIDED BY 5MILES ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING. 5MILES MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OF THE 5MILES SERVICES, OR THE INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE 5MILES SERVICES, UNLESS OTHERWISE SPECIFIED IN WRITING. YOU EXPRESSLY AGREE THAT YOUR USE OF THE 5MILES SERVICES IS AT YOUR SOLE RISK.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, 5MILES DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. 5MILES DOES NOT WARRANT THAT THE 5MILES SERVICES, INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH THE 5MILES SERVICES, 5MILES' SERVERS OR ELECTRONIC COMMUNICATIONS SENT FROM 5MILES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. 5MILES RELEASEES WILL NOT BE LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND ARISING FROM THE USE OF ANY 5MILES SERVICE, OR FROM ANY INFORMATION, CONTENT, MATERIALS, PRODUCTS (INCLUDING SOFTWARE) OR OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU THROUGH ANY 5MILES SERVICE, INCLUDING, BUT NOT LIMITED TO DIRECT, INDIRECT, INCIDENTAL, PUNITIVE, AND CONSEQUENTIAL DAMAGES, UNLESS OTHERWISE SPECIFIED IN WRITING, INCLUDING, BUT NOT LIMITED TO, SUCH DAMAGES RESULTING DIRECTLY OR INDIRECTLY FROM:
- your use of or your inability to use our Services;
- delays or disruptions in our Services;
- viruses or other malicious software obtained by accessing or linking to our Services;
- glitches, bugs, errors, or inaccuracies of any kind in our Services;
- damage to your hardware device from the use of any 5miles Service;
- the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
- a suspension or other action taken with respect to your account or breach of the using 5miles Section above;
- the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
- your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to these Terms or our policies.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OF OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the price the item sold for on 5miles (including any applicable sales tax) and its original shipping costs or (b) $100.
No Guarantees or Endorsements. We make no guarantees or representations regarding the skills or representations of such service provider or the quality of the job that he or she may perform for you if you elect to retain their services. 5miles DOES NOT ENDORSE OR RECOMMEND THE SERVICES OF ANY PARTICULAR SERVICE PROVIDER. It is entirely up to you to evaluate a service provider's qualifications, and to enter into a direct contract or otherwise reach agreement with a service provider. We do not guarantee or warrant any service provider's performance on the job or the outcome or quality of the services performed. The service providers are not employees or agents of 5miles, nor is 5miles an agent of the service providers.
No Contracting via 5miles. 5miles may inform you of certain offers or discounts provided by a service provider. Such offers or discounts are made solely by the service provider, and 5miles does not guarantee or warrant the pricing or discounts that a service provider may offer you. Any quotes provided by Service providers via the 5miles app, or that you find on the 5miles app, are not contractually binding offers, are for informational purposes only, and cannot be accepted on or via 5miles. No contractual arrangement is created based upon the quotes provided to you from Service providers (or your scheduling of an appointment with a Service provider) via 5miles. To contract with a Service provider, you must work directly with the Service provider. 5miles does not perform, and is not responsible for, any of the services requested by you in your service request. Your rights under contracts you enter into with service providers are governed by the terms of such contracts and by applicable federal, state, provincial and local laws.
If you have a dispute with one or more users, you release us the Releasees from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims that you may know or suspect to exist in your favor at the time of agreeing to this release.
You may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without 5miles’s prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
To the fullest extent allowed by applicable law, you will indemnify and hold the Releasees harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of these Terms, your improper use of 5miles’ Services or your breach of any law or the rights of a third party.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND 5MILES HAVE AGAINST EACH OTHER ARE RESOLVED.
You and 5miles agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the 5miles Terms, your use of or access to the Services, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
Choice of Law; Arbitration. These Terms are governed by and construed in accordance with the laws of the State of Delaware, without regard to the conflict of laws provisions thereof. Except for the right of either party to apply to any court of competent jurisdiction for a temporary restraining order, a preliminary injunction, or other equitable relief to preserve the status quo or prevent irreparable harm, any dispute, controversy or claim arising from or relating to the subject matter of these Terms shall be finally settled by binding arbitration in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS ") then in effect (“Rules”), by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with such Rules. The seat of arbitration will be Dallas, Texas and the arbitration will be conducted in English. Judgment upon the award rendered by such arbitrator may be entered in any court of competent jurisdiction.
Notwithstanding the foregoing obligation to arbitrate disputes, each party shall have the right to pursue injunctive or other equitable relief at any time, from any court of competent jurisdiction. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in Dallas, Texas.
You will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the 5miles may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder.
You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of 5miles, and you do not have any authority of any kind to bind 5miles in any respect whatsoever. Except as expressly set forth in the section above regarding the Apple Application, you and 5miles agree there are no third party beneficiaries intended under these Terms.
Except as otherwise provided in these Terms, if any provision of these Terms is held to be invalid, void or for any reason unenforceable, such provision shall be struck out to the minimum extent necessary and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign these Terms, by providing notice of such assignment in accordance with these Terms.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of these Terms.
5miles policies may be changed from time to time. Changes take effect when posted.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to these Terms. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms.
You and 5miles agree that these Terms are the complete and exclusive statement of the mutual understanding between you and 5miles, and that it supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of these Terms.
The following Sections survive any termination of these Terms: Content, Disclaimer of Warranties, Limitation of Liability, Release, Indemnity, and Legal Disputes.