Car Dash User Agreement (Dealer)
The entity you are contracting with is: 5miles LLC ("5miles," "we," or "us.").
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Section B("Agreement to Arbitrate")). Unless you opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
- About 5miles
5miles is a marketplace that allows users to offer, sell and buy just about anything in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer. 5miles is not a traditional auctioneer.
While we may provide pricing, shipping, listing, sourcing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, 5miles has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
- Using 5miles
In connection with using or accessing the Services you shall not:
- Post, list or upload content or items in inappropriate categories or areas on our sites;
- Breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
- Use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
- Manipulate the price of any item or interfere with any other user's listings;
- Post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
- Transfer your 5miles account (including Feedback) and user ID to another party without our consent;
- Interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
- Export or re-export any 5miles application or tool, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
- Infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, the "Intellectual Property Rights") that belong to or are licensed to 5miles. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to 5miles or someone else;
- Infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post content that you are not entitled or licensed to use;
- Commercialize any 5miles application or any information or software associated with such application, except with the prior express permission of 5miles
- Harvest or otherwise collect information about users of 5miles without their consent;
- Breach of Deal
4.1 In order to use Car Dash for vehicle auctions, each Seller needs to tie a valid credit card to the 5miles app. The credit card should be valid for at least 3 months, and the Seller hereby agrees that 5miles may from time to time charge such amount to the tied credit card as compensation as set forth in Section 4.2 of this User Agreement to the relevant buyer in case that the Seller breaks a deal.
4.2 The Seller will be deemed to have broken a deal and will be subject to relevant terms and provisions, if a Seller fails to complete a transaction after a buyer has won a bid as set forth in this User Agreement due to any reason that cannot be attributed to such buyer, including but not limited to the following:
- Seller fails to deliver the auctioned vehicle after a buyer successfully bids such vehicle as the vehicle listed and auctioned by such Seller does no longer exist;
- Seller fails to contact the buyer in time within the 7-day time limit due to any reason that cannot be attributed to such buyer;
- Seller unreasonably cancels an order after a buyer has won the bid;
- Seller fails to provide accurate and complete information of the vehicle that he posts, lists or uploads for auction;
- Seller fails to fully disclose real conditions of the vehicle posted, listed or uploaded by such Seller.
- Seller delivers a vehicle that is encumbered with any mortgage, pledge, loan, seizure, co-ownership or any other burden or limitation of rights;
- Seller delivers a vehicle that is encumbered with any burden or limitation of rights that impedes the transfer the title of the vehicle;
- Seller fails to fully disclose any major accident of the vehicle posted, listed or uploaded by such Seller.
In each case that a Seller breaks a deal, an amount of $50 will be charged to such Seller’s tied credit card as compensation and will be paid to the relevant buyer.
4.3 If 5miles cannot successfully deduct the amount of compensation which shall be paid to the relevant buyer arising out of the Seller’s breach of deal due to the problem of the Seller’s tied credit card, 5miles shall have the right to suspend or terminate providing services in part or in whole to such Seller at the sole discretion of 5miles, and the Seller may be suspended or terminated from using his 5miles account until the amount of compensation has been fully paid to 5miles.
4.4 If a buyer breaks a deal as set forth in the relevant rules and provisions, compensation of $50 per order will be paid to the relevant Seller by the buyer pursuant to the relevant rules and provisions.
- Listing Conditions
When listing an item, you agree to comply with 5mile's Listing policies and Selling practices policy and that:
- You are responsible for the accuracy and content of the listing and item offered
- Content that violates any of 5mile's policies may be modified, obfuscated or deleted at 5mile's discretion
- We may revise product data associated with listings to supplement, remove, or correct information
- We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
- Buyer’s location, search query, browsing site, and history;
- Item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
- Seller’s history, including listing practices, Detailed Seller Ratings, 5miles policy compliance, Feedback, and defect rate; and
- Number of listings matching the buyer's query
When providing content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce against 5miles, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in that content in connection with our, those assignees', and those sublicensees' use of that content in connection with our provision, expansion, and promotion of the Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. 5miles takes no responsibility and assumes no liability for any content provided by you or any third party.
We offer product data (including images, descriptions and specifications) that are provided by third parties (including 5miles users). You may use that content solely in your 5miles listings. 5miles may modify or revoke that permission at any time in our sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable product data, but cannot promise that the content provided through the Services will always be available, accurate, complete, and up-to-date. You agree that 5miles is not responsible for examining or warranting the listings or content provided by third parties through the Services, and that you will not attempt to hold us or our data providers liable for inaccuracies. As a seller, you agree to ensure that content directly associated with your listings is accurate.
The name "5miles" and other 5miles marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of 5miles in the U.S. . They may not be used without the express written prior permission of 5miles.
- Additional Terms
Most 5miles sales go smoothly, but if there's a problem with a purchase, the 5miles Money Back Guarantee helps buyers and sellers communicate and resolve issues. You agree to comply with the policy and permit us to make a final decision on any 5miles Money Back Guarantee case.
If you (as seller), choose to reimburse a buyer, or are required to reimburse a buyer or 5miles under the 5miles Money Back Guarantee, you authorize 5miles to request that credit card remove the reimbursement amount (in same or other currency) from your credit card account, place the amount on your invoice, and/or charge your payment method on file. If we cannot get reimbursement from you, we may collect the outstanding sums using other collection mechanisms, including retaining collection agencies.
- Disclaimers of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in 5mile's applications may not occur in real time. Such functionality is subject to delays beyond 5mile's control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
- The content you provide (directly or indirectly) using the Services;
- Your use of or your inability to use our Services;
- Pricing, shipping, format, or other guidance provided by 5miles;
- 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 Abusing 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 this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) 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 which you may know or suspect to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of 5mile's Services or your breach of any law or the rights of a third party.
- Legal Disputes
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 you and 5miles (including any claim or dispute between you and a third-party agent of 5miles) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of 5miles or its agents, 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.
- Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Delaware, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and 5miles, except as otherwise stated in this User Agreement.
- Agreement to Arbitrate
You and 5miles each agree that any and all disputes or claims that have arisen, or may arise, between you and 5miles (including any disputes or claims between you and a third-party agent of 5miles) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to the Services, the actions of 5miles or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court. Notwithstanding the foregoing, you may assert your claims in small claims court, only provided that your claims qualify and the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
- Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND 5MILES AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND 5MILES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and 5mile's right to appeal the court's decision. All other claims will be arbitrated.
- Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same 5miles user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
- Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that has been filed in a legal proceeding against 5miles prior to the effective date of such amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and 5miles. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.5miles.com at least 30 days before the effective date of the amendments and by providing notice through the 5miles Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.5miles.com.
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 this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.5miles.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the 5miles Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an 5miles representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the 5miles Service.
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 this User Agreement. 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 this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and 5miles, and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
- Termination and Assignment of this User Agreement
13.1 This User Agreement shall be terminated if:
13.1.2 Termination by notice: 5miles may terminate this User Agreement by giving a written notice 15 days in advance. For the avoidance of doubt, termination by 5miles pursuant to this provision shall not constitute a breach of contract and will not cause any liability of 5miles;
13.1.3 Unilateral termination: under any of the following circumstances, 5miles has the right to terminate this User Agreement immediately and take actions against you according to the relevant rules and provisions:
(1) You violate any promise or warranty in this User Agreement, including but not limited to any provisions hereunder;
(2) You violate any relevant terms, agreements, rules, notices and other relevant provisions of 5miles and 5miles has terminated providing services to you;
(3) You are suspended or terminated from using your 5miles account pursuant to Section 4.3 of this User Agreement.
13.1.4 Termination of this User Agreement shall be caused by the occurrence or realization of other termination conditions set forth herein.
13.2 Handling of relevant matters after termination of this User Agreement:
13.2.1 Regardless of the termination of this User Agreement for any reason, the parties hereto shall be fully and independently liable for any liability arising out of their ACTS prior to the termination of this User Agreement;
13.2.3 Prior to termination:
(1) If the lot you have posted to the auction has not reached a deal, 5miles has the right to delete the relevant information of the lot upon the termination of this User Agreement;
(2) If you have reached a deal with the user on the lot, 5miles may not delete the deal, but 5miles has the right to notify the relevant users participating in the deal of the termination of this User Agreement at the same time of such termination.
13.3. 5miles has the right to transfer all rights and obligations hereunder to a third party without your consent, and 5miles will give you a notice of the transfer by way of notice on the pages or announcements of 5miles platforms.
14.1 This User Agreement shall be governed by the laws of the State of Delaware.
14.2 Any dispute between 5miles and you regarding the signing, performance or interpretation of this User Agreement shall be settled by the parties through friendly negotiation. If no agreement can be reached through negotiation, 5miles and you agree that such dispute shall be settled through arbitration pursuant to Section 11 of this User Agreement.