terms and conditions
Welcome to Small Craft Sales LLC, a Colorado limited liability company (“Small Craft Sales”) - the online marketplace for small boats. The Small Craft Sales platform includes the website, mobile applications, and other platforms that link to these Terms and Conditions (collectively, the “Platform”). The Platform is owned and operated by Small Craft Sales, LLC - PO Box 18352, Boulder CO 80304.
The Platform enables individuals (“Customers”) to buy and sell “small” boats. The terms and conditions that apply to your access to and/or your use of the Platform (and the information, products and services available through the Platform), and our use of any communications or User Content (defined below) that you submit to us or post on the Platform, are set forth below. PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING ANY ASPECT OF THE PLATFORM. These Terms include the Small Craft Sales Privacy Policy, which is incorporated into these Terms by reference. By using the Platform or submitting communications or User Content to us, you accept and agree to all of the terms and conditions set forth herein (the “Terms and Conditions”), which form a legally binding agreement between you and Small Craft Sales. In addition, if you are advertising with us, you must also accept and agree to comply with all of the terms and conditions of our Advertising Agreement. To continue to access the site you must read and agree to the Terms and Conditions, by clicking on the I Accept button below.
YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 10 THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE PLATFORM.
1. Platform Overview
1.1. Small Craft Sales is not a third-party beneficiary of or liable for any agreements between you and a Customer, regardless of whether or not Small Craft Sales is compensated in connection with such agreement.
1.2. Small Craft Sales provides the material available through the Platform for informational purposes only. You may use the content, information, consumer reviews, data and materials from, and the products and services available through, the Platform solely for your personal and non-commercial use. Before you act on any such content, information, consumer reviews, data and materials you have found on, or purchase any products or services available through, the Platform, you should independently confirm any facts that are important to your decision. IF YOU RELY ON ANY INFORMATION, PRODUCT, OR SERVICE AVAILABLE THROUGH THE PLATFORM, YOU EXPRESSLY AGREE THAT YOU DO SO SOLELY AT YOUR OWN RISK. YOU UNDERSTAND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS YOU MAY INCUR THAT RESULTS FROM YOUR USE OF ANY INFORMATION, PRODUCT OR SERVICE PURCHASED OR OTHERWISE ENGAGED THROUGH THE USE OF THE PLATFORM. Without limiting the foregoing, with respect to any classified advertising services included on or otherwise available through the Platform, please note that we do not sell the advertised items directly and are not involved in any actual transaction between any seller and buyer; further, we do not guarantee or insure any item advertised or the completion of any transaction or collect or process payment, act as an escrow service or transfer title, nor do we warehouse, store, ship or deliver any item that is advertised.
1.3. The Platform may provide links or references to third party sites that we do not operate and/or that will allow you to leave the Platform or open an additional browser connecting you to the third-party site. Any such links to third party sites are provided merely as a convenience to the users of the Platform, and such links do not imply endorsement by Small Craft Sales of such other third-party sites or the content contained therein. Small Craft Sales disclaims all liability with regard to your access to such linked websites and your use of and access to any websites linked to the Platform is at your own risk. Further, Small Craft Sales has no responsibility for the content of such third-party sites and shall not be liable for any damages or injury arising from that content or your use, reliance on or access to such third-party sites. Small Craft Sales encourages you to consult the specific terms of use and privacy policies of such other websites.
1.4. Small Craft Sales may provide a variety of services on the Platform through which you can directly interact with others, such as email services, blogging services, chat rooms, communications tools, forums and other public posting areas (“Communications Services”). Small Craft Sales cannot and does not review every posting made in these Communications Services. You can expect these Communications Services to include information and opinions from a variety of individuals and organizations other than Small Craft Sales. We do not endorse or guarantee the accuracy of any posting, and we are not responsible or liable for, and do not assume any responsibility in respect of, the views and opinions expressed.
2. Use of the Platform
2.1. To protect the account information of our members, where applicable, Small Craft Sales assigns to each member either a unique user name or password or a unique ID number. These unique identifiers are disclosed to the user via email immediately upon becoming a member of the Platform. Only members (and Small Craft Sales, where appropriate and as provided for herein these Terms and Conditions) have the ability to modify their personal information and delete their ads as needed.
2.2. Certain features of the Platform will only be available for use in the United States. Some features may be available only if you provide Small Craft Sales with certain information about you and Small Craft Sales is able to verify your identity.
2.3. You represent and warrant that you own the email or mobile phone number you register with and all information entered or collected in the course of creating your Platform account and any information you subsequently add or update from your settings (“Account Information”). You shall ensure that your Account Information remains complete and accurate. To register, open, use, or upgrade a Platform account, Small Craft Sales may require that you submit certain Account Information, including but not limited to your name, email address, text-enabled mobile phone number, street address, zip code, date of birth, social security number, or a government issued form of identification.
2.4. You authorize Small Craft Sales, directly or through third parties, to make any inquiries Small Craft Sales considers necessary to validate your identity or authenticate your identity and Account Information. This may include asking you for further information or documentation about your Platform account usage or identity, requiring you to take steps to confirm ownership of your email address, mobile phone number or financial instruments, or verifying your information against third party databases or through other sources. In connection with your use of the Platform, you may not refuse to: (a) cooperate in an investigation concerning activity that potentially violates the law or these Terms; (b) provide confirmation of your identity; or (c) provide confirmation of any information you provide Small Craft Sales.
2.5. You understand and acknowledge that if you cancel your Platform account or your Platform account is terminated, then all your data and all other information within the Platform may be removed from the Platform, subject to Small Craft Sales’ retention policies.
2.6. Use of the Platform by you for spamming is strictly prohibited. By using the Platform, you agree not to use information concerning other users of the Platform, or any items such users have listed or searched for on the Platform (including listing information, user names, email addresses, telephone numbers and/or other information), for any purpose that is not expressly permitted by these Terms and Conditions. You may not post information directed to or collect personal information from any minor.
2.7. You agree not to post, submit or transmit to Small Craft Sales through the Platform or via any Communications Services any User Content or other information that (i) violates or infringes in any way upon the rights of others, (ii) is unlawful, threatening, abusive, defamatory, invasive of privacy or publicity rights, vulgar, obscene, profane, misleading, fraudulent or otherwise objectionable, (iii) encourages conduct that would constitute a criminal offense or give rise to civil liability or otherwise violate any law, or (iv) without our express prior approval, contains advertising or any solicitation with respect to products or services. The sender of any User Content to the Platform or via any Communications Services or otherwise to Small Craft Sales shall be solely responsible for the content and information contained therein, including its truthfulness and accuracy. By posting to the Platform or via any Communications Services, or otherwise submitting User Content to Small Craft Sales, you represent and warrant that you either own or otherwise control all rights necessary for you to provide, post, upload or submit such User Content. Without limiting the foregoing, You shall be solely liable for any damage resulting from any infringement of copyrights, trademarks, or other proprietary rights or any other harm resulting from any User Content submitted by you to or through the Platform or via any Communications Services. Small Craft Sales reserves the right to deny access to the Platform and/or any Communications Service to anyone who violates these Terms and Conditions or who, in our judgment, interferes with the ability of others to enjoy the Platform or Communication Services, or infringes the rights of others. Small Craft Sales will comply with the requirements of the law regarding disclosure of any messages to others, including law enforcement agencies.
2.8. Small Craft Sales reserves the right to delete your Platform account and/or block your future access to the Platform if we determine that you have violated these Terms and Conditions or other agreements or guidelines which may be associated with your use of the Platform, including but not limited to our Privacy Policy, as well as after a significant duration of inactivity. You also agree that any violation by you of these Terms and Conditions will constitute an unlawful and unfair business practice, and will cause irreparable harm to us, for which monetary damages would be inadequate, and you consent to our obtaining any injunctive or equitable relief that we deem necessary or appropriate in such circumstances. These remedies are in addition to any other remedies we may have at law or in equity.
2.9. You shall not use the Platform to send or receive payments in violation of law. You further agree that in connection with your use of the Platform, you will not use the Platform in a manner that Small Craft Sales, Visa, MasterCard, American Express or Discover reasonably believe to be an abuse of the payment card system or a violation of payment card association rules. Small Craft Sales reserves the right to block, refuse, or reverse any transaction, in its sole discretion. Small Craft Sales will notify the affected parties promptly if Small Craft Sales decides to do so, but notification is not required if the transaction is prohibited by these Terms or applicable law. Neither Small Craft Sales nor third parties to whom it assigns or delegates rights or responsibilities will be liable for any claims or damages resulting from prohibited transactions. All costs for research and resolution for any misapplied, misposted or misdirected prohibited transactions will be your sole responsibility and not Small Craft Sales’.
2.10. You agree that any rights you have under the US Fair Credit Reporting Act, any corresponding state laws, or any similar laws regulating consumer or credit reporting agencies in other countries, may only be asserted against the Customer. You shall not assert such rights against Small Craft Sales, and waive your ability to do so.
3. Communicating with You
3.1. Small Craft Sales and its third-party service providers may need to provide you with certain communications, notices, agreements, billing statements, or disclosures in writing (“Communications”) regarding the Platform. By accepting these Terms, you acknowledge your ability and consent to receive Communications electronically from Small Craft Sales and its third-party service providers, rather than in paper form, and to the use of electronic signatures in Small Craft Sales’ relationship with you (“Consent”). If you withdraw your Consent, you may be restricted from using the Platform. Under this Consent, Small Craft Sales may provide all Communications electronically by email, by text message, or by making them accessible via the Platform. Communications include, but are not limited to: (a) agreements and policies required to use the Platform; (b) payment authorizations and transaction receipts or confirmations; (c) account statements and history; and (d) all federal and state tax statements and documents. Small Craft Sales may also use electronic signatures and obtain them from you.
3.2. To access and retain the electronic Communications, you will need the following: (a) a computer or mobile device with Internet or mobile connectivity; (b) for desktop Platform-based Communications: (i) recent web browser that includes 256-bit encryption; (ii) the browser must have cookies enabled; and (iii) the most recent version of Mozilla Firefox, Apple Safari, or Google Chrome; (c) for application-based Communications: (i) a recent device operating system that supports text messaging, downloading, and applications from the Apple App Store or Google Play store; and (ii) the most recent versions of Apple Safari or Google Chrome on iOS or Google Chrome for Android OS; (d) access to the email address used to create a Platform account; (e) sufficient storage space to save Communications and/or a printer to print them; and (d) if you use a spam filter that blocks or re-routes emails from senders not listed in your email address book, you must add info@smallcraftsales.com to your email address book.
3.3. You have the right to receive Communications in paper form. To request a paper copy of any Communication, please write to Small Craft Sales - PO Box 18352, Boulder CO 80304, within 180 days of the date of the Communication, specifying in detail the Communication you would like to receive. If you request one or more paper copies, you understand and agree that Small Craft Sales may charge you $10 for each paper copy requested. For the avoidance of doubt, requesting a paper copy of any Communication, in and of itself, will not be treated as withdrawal of consent to receive electronic Communications.
3.4. You may withdraw your Consent to receive electronic Communications at any time, by writing to Small Craft Sales - PO Box 18352, Boulder CO 80304. However, withdrawal of your Consent to receive electronic Communications may result in termination of your access to the Platform. Any withdrawal of your Consent will be effective after a reasonable period of time for processing your request, and Small Craft Sales will confirm your withdrawal of consent and its effective date in writing (either electronically or in paper form).
3.5. You can change your email address by writing to Small Craft Sales - PO Box 18352, Boulder CO 80304. You may also be able to change your email address yourself through the Platform.
3.6. In connection with your use of the Platform, Small Craft Sales may send you service announcements, administrative messages, and other information. You may opt out of some of those communications, for example, by clicking on the “unsubscribe” link in marketing e-mails or texting “Stop” or “Do Not Send” in response to text messages, or disabling notifications in your Platform settings. Please be aware that there may be a brief period before Small Craft Sales is able to process your opt-out.
4. Platform Access
4.1. You may create a username and password to access the Platform (“Credentials”). You are responsible for maintaining the confidentiality of the Credentials, and for all activities performed using the Credentials. You shall not share the Credentials with any third party, and will notify Small Craft Sales immediately at info@smallcraftsales.com if you know, or reasonably suspect that, a third party is using your Credentials.
4.2. You are responsible for controlling access to any PCs, mobile devices, or other end points that you allow to store your Platform password, or on which you enable a "Remember Me" or similar functionality (“Activated Device”). Accordingly, you agree that you will be solely responsible for all activities that occur under your Credentials, including the activities of any individual with whom you share your Credentials or an Activated Device.
5. Payment Process
5.1. The Platform will process variable payments on the business day you designate, provided the payment request is received prior to the cut-off time set by Small Craft Sales. Variable payment requests received after the business day cut-off time or at any time on a non-business day will be processed on the next business day.
5.2. For recurring payment requests, if you designate a processing date of the 29th through the 31st of a month, processing will be initiated on the last calendar day of the month in any month that does not have the designated date. Otherwise, recurring payment requests will be processed on the dates you have designated, unless such date falls on a non-business day resulting in your payment being processed on the next business day.
5.3. When scheduling payments, you must select a scheduled payment date (taking into account the processing information described in the previous sections) that is no later than your actual due date. Scheduled payment dates and recommended delivery times should be prior to any late date or grace period. Small Craft Sales is not responsible for any finance charges or penalties incurred for late payments that were due to invalid information entered by you.
5.4. When you have scheduled a payment, you authorize Small Craft Sales to debit the account designated by you (“Payment Account”) and remit funds on your behalf. You certify that your Payment Account is an account from which you are authorized to make payments and any payment you make will be debited from this account. You also authorize the credit of returned payments from using the Platform.
5.5. Small Craft Sales incurs no liability if it is unable to complete any payments because of any of the following: (a) you did not provide complete and correct payment or transfer information; (b) you did not properly follow the instructions for use of the Platform; (c) the Platform is not working properly and you know or have been advised about the malfunction before you execute the transaction; (d) if your Payment Account does not contain sufficient funds to complete the transaction or the transaction would exceed your credit limit or overdraft limit; (e) your Payment Account is closed or has been frozen; (f) you, or anyone you allow, commits fraud or violates any law or regulation in connection with the Platform; (g) circumstances beyond Small Craft Sales’ control (such as fire, flood, postal delay or improper transmission or handling by a third party) prevent, hinder or delay the transaction, despite reasonable precautions that Small Craft Sales has taken; and/or (h) a legal order prohibits entries to or withdrawals from your Payment Account.
5.6. You agree to have funds available in the Payment Account you designate in amounts sufficient to pay for all payments requested through the Platform as well as any other payment obligations you have to Small Craft Sales. Small Craft Sales reserves the right, without liability, to reject or reverse a payment if you fail to comply with this requirement or any these Terms.
5.7. Small Craft Sales will not send periodic statements regarding transactions that you make using the Platform. The transactions will appear only on the statement issued by your bank or other financial institution. You agree to regularly review your transaction history from your financial institution and to notify the applicable Customer immediately if there are any suspected unauthorized payments or errors related to the Platform.
5.8. Any payment that is not a recurring payment can be changed or canceled, provided you access the Platform prior to the cut-off time on the business day prior to the business day the payment is going to be initiated. You may stop a recurring payment by accessing the Platform or by notifying the applicable Customer either by telephone (if supported by the applicable Customer) or in writing at least 3 business days before the scheduled date of the payment.
5.9. Tell the applicable Customer immediately if you believe anyone has improperly obtained access to your Platform account, or if you suspect any fraudulent activity or unauthorized transactions on your Platform account. Also, if your statement reflects any errors or unauthorized transactions, tell the applicable Customer at once. The Customer must hear from you no later than 90 days after the unauthorized transaction.
5.10. You are responsible for determining any and all taxes assessed, incurred, or required to be collected, paid, or withheld for any reason for your use of the Platform (“Taxes”). You also are solely responsible for collecting, withholding, reporting, and remitting correct Taxes to the appropriate tax authority. Small Craft Sales is not obligated to, nor will we determine whether Taxes apply, or calculate, collect, report, or remit any Taxes to any tax authority arising from any transaction. Small Craft Sales specifically disclaims any liability for Taxes. Small Craft Sales may be required by law to report information about you and your use of the Platform to the IRS.
6. Termination and Suspension
6.1. Small Craft Sales may terminate these Terms or suspend your access to the Platform at any time, with or without notice to you. Small Craft Sales may add or remove features to the Platform at any time, with or without notice to you. Small Craft Sales will use reasonable efforts to notify you of these actions, by email or through the Platform.
6.2. You may terminate these Terms at any time by closing your Platform account, by contacting the applicable Customer or info@smallcraftsales.com.
6.3. If these Terms are terminated or suspended for any reason: (a) the license and any other rights granted under these Terms will end; (b) Small Craft Sales may (but has no obligation to) delete your information and Platform account data stored on its servers; and (c) Small Craft Sales will not be liable to you or any third party for compensation, reimbursement, or damages for any termination or suspension of the Platform, or for deletion of your information or Platform account data. Sections 6, 7, and 8 - 11 survive termination of these Terms, for any reason.
7. Intellectual Property
7.1. Small Craft Sales grants you a limited, non-exclusive, revocable, non-transferable, non-sublicensable license to use the Platform, as authorized in these Terms. Small Craft Sales reserves all rights not expressly granted to you in these Terms. Small Craft Sales owns all rights, title, and interest in the Platform and the intellectual property therein. These Terms do not grant you any rights to Small Craft Sales’ trademarks or service marks. Except as expressly authorized in these Terms and Conditions, you may not modify, distribute, reproduce, display, or use the Platform or any elements thereof. Furthermore, (i) reproduction, re-transmission or re-presentation in any form, in whole or in part, of any content, programming code, images or graphics included within the Platform is strictly prohibited without our prior express written permission; (ii) you may not frame, squeeze back, overlay or employ other techniques to enclose or display the Platform, or any trademark, logo, content or other proprietary information (including images, text, page layout, or form) included on the Platform, with any other software or content of a third party; (iii) you may not use any meta tags or any other “hidden text” utilizing the names or trademarks of Small Craft Sales or affiliates, licensors or licensees without our or their express written consent; and (iv) you may not decompile or disassemble, reverse engineer or otherwise attempt to discover any source code contained in the Platform or the services offered herein. In addition to and not in limitation of any of the foregoing limitations and restrictions, you are expressly prohibited from using automated means (including but not limited to spiders, robots, crawlers, scrapers, deep-links, data-mining, data-gathering or extraction tools and the like), or any other automated methodology, algorithm or device or any manual process, to for any purpose monitor, copy, download or otherwise access data or content from the Platform. A limited exception to the foregoing limitations and restrictions is provided to general purpose internet search engines and non-commercial public archives that use such tools to gather information for the sole purpose of displaying hyperlinks to the Platform, provided they each do so from a stable IP address or range of IP addresses using an easily identifiable agent and comply with our applicable policies and procedures in effect from time to time. “General purpose internet search engine” does not include a website or search engine or other service that specializes in classified listings or in any subset of classifieds listings such as boats, automobiles, vehicles, jobs, housing/apartments, rentals, services or equipment or which is in the business of providing classified ad listing services.
7.2. You may submit feedback or suggestions about the Platform (“Feedback”). By submitting any Feedback, you agree that your disclosure is gratuitous, unsolicited, and without restriction, that it will not place Small Craft Sales under any fiduciary, confidentiality, or other obligation, and that Small Craft Sales is free to use the Feedback without any additional compensation to you, and/or to disclose the Feedback on a non-confidential basis or otherwise to anyone.
7.3. Any content and information, including but not limited to consumer reviews, opinions, concepts, inventions, techniques, know-how, data, materials or other postings or communications submitted by You (collectively, “User Content”), to Small Craft Sales via the Platform, whether by posting to a public area of the Platform or by other submission to us through email or other means of electronic communication facilitated by Small Craft Sales. By submitting any such User Content to us or posting any such User Content in any public area of the Platform, you: (i) grant Small Craft Sales and our owners, affiliates and licensees the royalty-free, perpetual, irrevocable, non-exclusive right and license to use, reproduce, modify, adapt, aggregate, translate, prepare derivative works from, publicly display, publicly perform and distribute such User Content (in whole or in part) alone or as incorporated into other works in any form, media or technology now known or hereafter developed, on a worldwide basis; (ii) grant Small Craft Sales and our owner, affiliates and licensees the right to use the name that you use in connection with such submission or post, if and to the extent any or all of them so choose; and (iii) represent and warrant that you own or otherwise control all of the rights to the User Content that you submit or post, the User Content is accurate and the use of the User Content you supply or post does not violate these Terms and Conditions and will not cause injury or damage to any person or entity. You also permit any other user of the Platform to access, view, store or reproduce your User Content for that user’s personal use, which such use may include disclosure to third parties. By posting or submitting such User Content, you hereby waive any claim that Small Craft Sales misappropriated any such User Content or any portions thereof.
8. Representations, Disclaimer of Warranties, Indemnity
8.1. You represent and warrant that: (a) you are at least eighteen (18) years of age; (b) you are eligible to register and use the Platform and have the right, power, and ability to enter into and perform under these Terms; (c) any information you provide in connection with the Platform accurately and truthfully represents your identity; (d) you and all transactions initiated by you will comply with all federal, state, and local laws, rules, and regulations applicable to you; (e) you will not use the Platform, directly or indirectly, for any fraudulent undertaking or in any manner so as to interfere with the operation of the Platform; and (f) your use of the Platform will comply with these Terms.
8.2. THE USE OF “SMALL CRAFT SALES” IN SECTIONS 8, 9, AND 10 MEANS SMALL CRAFT SALES, LLC, ITS AFFILIATES, AND ITS AND THEIR SUCCESSORS AND ASSIGNS, AND ITS AND THEIR VENDORS, SERVICE PROVIDERS, AND SUPPLIERS, AND EACH OF THE FOREGOING’S OFFICERS, DIRECTORS, EMPLOYEES, AND AGENTS. 8.3. THE PLATFORM AND ALL INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE PLATFORM IS PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY, WHETHER IT IS EXPRESS, IMPLIED, OR STATUTORY. WITHOUT LIMITING THE FOREGOING, SMALL CRAFT SALES SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SMALL CRAFT SALES DOES NOT WARRANT OR GUARANTEE THAT THE PLATFORM OR INFORMATION CONTAINED THEREIN IS ACCURATE, RELIABLE OR CORRECT; THAT THE PLATFORM WILL MEET YOUR REQUIREMENTS; THAT THE PLATFORM WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, UNINTERRUPTED, ERROR-FREE, WITHOUT DEFECT OR SECURE; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE PLATFORM IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. Small Craft Sales does not warrant, endorse, guarantee, or assume responsibility for any product or service advertised or offered by a third party. Small Craft Sales does not have control of, or liability for, goods or services that are paid for using the Platform.
8.3. You will indemnify, defend, and hold Small Craft Sales harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest, and expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry, or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties, or obligations set forth in these Terms; (b) your wrongful or improper use of the Platform; (c) your violation of any third-party right, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any claims made by a Customer regarding your use of the Platform; and (f) any other party’s access and/or use of the Platform under your Platform account.
8.4. If you are a California resident, you hereby 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 favor at the time of executing the release, which, if known by him must have materially affected his settlement with the debtor.”
9. Limitation of Liability
9.1. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL SMALL CRAFT SALES BE LIABLE FOR ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING WITHOUT LIMITATION DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES, THAT RESULT FROM THE USE OF, INABILITY TO USE, OR UNAVAILABILITY OF THE PLATFORM AND ALL INFORMATION, PRODUCTS OR SERVICES AVAILABLE THROUGH THE PLATFORM. IN ALL CASES, SMALL CRAFT SALES WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE THAT IS NOT REASONABLY FORESEEABLE.
9.2. UNDER NO CIRCUMSTANCES WILL SMALL CRAFT SALES BE RESPONSIBLE FOR ANY DAMAGE, LOSS, OR INJURY RESULTING FROM HACKING, TAMPERING, OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PLATFORM OR YOUR PLATFORM ACCOUNT, OR THE INFORMATION CONTAINED THEREIN.
9.3. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE TOTAL LIABILITY OF SMALL CRAFT SALES IS LIMITED TO THE GREATER OF: (A) THE AMOUNT OF FEES EARNED BY SMALL CRAFT SALES IN CONNECTION WITH YOUR USE OF THE SERVICES DURING THE THREE (3) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO THE LIABILITY; OR (B) $10.00.
9.4. THIS LIMITATION OF LIABILITY SECTION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF SMALL CRAFT SALES HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. THE FOREGOING LIMITATION OF LIABILITY WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW IN THE APPLICABLE JURISDICTION.
10. Binding Arbitration
You agree to the following:
10.1. Any and all Disputes (as defined below) involving You and Small Craft Sales will be resolved through individual arbitration. In arbitration, there is no judge or jury and there is less discovery and appellate review than in court. This Section 10 (the “Arbitration Provision”) shall be broadly interpreted. Notwithstanding anything to the contrary in these Terms, this Section 10 does not apply to an action by either party to enjoin the infringement or misuse of its intellectual property rights, including copyright, trademark, patent or trade secret rights.Terms and Conditions Welcome to Small Craft Sales LLC, a Colorado limited liability company (“Small Craft Sales”) - the online marketplace for small boats. The Small Craft Sales platform includes the website, mobile applications, and other platforms that link to these Terms and Conditions (collectively, the “Platform”). The Platform is owned and operated by Small Craft Sales, LLC - PO Box 18352, Boulder CO 80304. The Platform enables individuals (“Customers”) to buy and sell “small” boats. The terms and conditions that apply to your access to and/or your use of the Platform (and the information, products and services available through the Platform), and our use of any communications or User Content (defined below) that you submit to us or post on the Platform, are set forth below. PLEASE READ THESE TERMS CAREFULLY BEFORE ACCESSING OR USING ANY ASPECT OF THE PLATFORM. These Terms include the Small Craft Sales Privacy Policy, which is incorporated into these Terms by reference. By using the Platform or submitting communications or User Content to us, you accept and agree to all of the terms and conditions set forth herein (the “Terms and Conditions”), which form a legally binding agreement between you and Small Craft Sales. In addition, if you are advertising with us, you must also accept and agree to comply with all of the terms and conditions of our Advertising Agreement. To continue to access the site you must read and agree to the Terms and Conditions, by clicking on the I Accept button below. YOU ACKNOWLEDGE AND AGREE THAT THESE TERMS CONTAIN A BINDING ARBITRATION PROVISION IN SECTION 10 THAT AFFECTS YOUR RIGHTS UNDER THESE TERMS WITH RESPECT TO THE PLATFORM.
10.2. The term “Dispute” means any claim or controversy related to the Platform, including but not limited to any and all: (a) claims for relief and theories of liability, whether based in contract, tort, fraud, negligence, statute, regulation, ordinance, or otherwise; (b) claims that arose before these Terms or any prior agreement; (c) claims that arise after the expiration or termination of these Terms; and (d) claims that are currently the subject of purported class action litigation in which you are not a member of a certified class.
10.3. The party initiating the arbitration proceeding may open a case with JAMS, formerly Judicial Arbitration and Mediation Services, Inc. (“JAMS”) by visiting its Platform (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). You may deliver any required or desired notice to Small Craft Sales by mail to Small Craft Sales - PO Box 18352, Boulder CO 80304
10.4. Notwithstanding anything in this Arbitration Provision to the contrary, either You or Small Craft Sales may bring an individual action in a small claims court in the area where you access the Platform if the claim is not aggregated with the claim of any other person and if the amount in controversy is properly within the jurisdiction of the small claims court.
10.5. This Arbitration Provision shall be governed by the Federal Arbitration Act. Arbitrations shall be administered by JAMS pursuant to its Streamlined Arbitration Rules and Procedures (the “JAMS Rules”) as modified by the version of this Arbitration Provision that is in effect when You notify Small Craft Sales about your Dispute. You can obtain the JAMS Rules from the JAMS by visiting its Platform (www.jamsadr.com) or calling its toll-free number (1-800-352-5267). If there is a conflict between this Arbitration Provision and the rest of these Terms, this Arbitration Provision shall govern. If there is a conflict between this Arbitration Provision and the JAMS rules, this Arbitration Provision shall govern. If JAMS will not administer a proceeding under this Arbitration Provision as written, the parties shall agree on a substitute arbitration organization. If the parties cannot agree, the parties shall mutually petition a court of appropriate jurisdiction to appoint an arbitration organization that will administer a proceeding under this Arbitration Provision as written applying the JAMS Rules. A single arbitrator will resolve the Dispute. Unless You and Small Craft Sales agree otherwise, any arbitration hearing will take place in Denver, CO. The arbitrator will honor claims of privilege recognized by law and will take reasonable steps to protect Platform Content and other confidential or proprietary information. The arbitrator shall issue a reasoned written decision that explains the arbitrator’s essential findings and conclusions. The arbitrator’s award may be entered in any court having jurisdiction over the parties only if necessary for purposes of enforcing the arbitrator’s award. An arbitrator’s award that has been fully satisfied shall not be entered in any court.
10.6. THERE SHALL BE NO RIGHT OR AUTHORITY FOR ANY CLAIMS TO BE ARBITRATED OR LITIGATED ON A CLASS ACTION, JOINT OR CONSOLIDATED BASIS OR ON BASES INVOLVING CLAIMS BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC (SUCH AS A PRIVATE ATTORNEY GENERAL), OTHER USERS, OR OTHER PERSONS. THE ARBITRATOR MAY AWARD RELIEF ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF WARRANTED BY THAT INDIVIDUAL PARTY’S CLAIM. THE ARBITRATOR MAY NOT AWARD RELIEF FOR OR AGAINST ANYONE WHO IS NOT A PARTY. THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING. THIS WAIVER OF CLASS ACTIONS AND COLLECTIVE RELIEF IS AN ESSENTIAL PART OF THIS ARBITRATION PROVISION AND CANNOT BE SEVERED FROM IT. THE REMAINING PORTIONS OF THIS ARBITRATION PROVISION ARE NOT ESSENTIAL PARTS OF THIS ARBITRATION PROVISION AND CAN BE SEVERED FROM IT BY A COURT OF COMPETENT JURISDICTION.
10.7. The payment of the JAMS’ fees and costs will be governed by the JAMS Rules. However, if the arbitrator finds that your Dispute was frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), the payment of the JAMS’ fees and costs shall be governed by the JAMS Rules and You shall reimburse Small Craft Sales for all fees and costs that were its obligation to pay under the JAMS Rules. You may hire an attorney to represent you in arbitration. You are responsible for your attorneys’ fees and additional costs and may only recover your attorneys’ fees and costs in the arbitration to the extent that you could in court if the arbitration is decided in your favor.
10.8. This Section 10 survives termination or expiration of the Terms for any reason.
11. Miscellaneous
11.1. These Terms, and your relationship with Small Craft Sales under the Terms, is governed by the laws of the State of Colorado, without regard to its conflict of laws provisions. By using the Platform, you consent to the exclusive jurisdiction of the state and federal courts in Denver in all disputes arising out of or relating to the Terms or Platform, that are not subject to the Arbitration Provision above.
11.2. You will not assign or transfer any of your rights or obligations in these Terms, in whole or in part, by operation of law or otherwise, without Small Craft Sales’ prior written consent. Any attempt to do so without Small Craft Sales’ consent will be null and void.
11.3. In the event that any provision of these Terms are deemed by a court of competent jurisdiction to be illegal, invalid, or unenforceable, the court will modify or reform these Terms to give as much effect as possible to that provision. Any provision that can't be modified or reformed in this way will be deemed deleted, and the remaining provisions of these Terms will continue in full force and effect.
11.4. A party's obligations under these Terms can only be waived in a writing signed by an authorized representative of the other party, which waiver will be effective only with respect to the specific obligation described. Any waiver or failure to enforce any provision of these Terms on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
11.5. Notwithstanding anything to the contrary in these Terms, a party will not be deemed to be in breach of these Terms, or liable for any delay or failure to perform any obligation under these Terms, where caused by circumstances beyond their reasonable control, acts of God, labor disputes or other industrial disturbances, electrical or power outages, utilities or other telecommunications failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war (collectively, “Force Majeure Events”).
11.6. Small Craft Sales may change or modify these Terms from time to time (“Revisions”) by posting such Revisions within the Platform or otherwise giving notice thereof, except where otherwise provided herein. The Revisions shall be effective upon posting to the Platform, or if later, the effective date set forth in such notice or the Revisions (“Revisions Effective Date”). By continuing to use the Platform after the Revisions Effective Date, You agree to be bound by the Revisions. It is your responsibility to check the Platform regularly for Revisions.
11.7. These Terms and all documents incorporated by reference therein, constitute the entire agreement and understanding of the parties with respect to their subject matter, and supersedes any and all prior or contemporaneous understandings and agreements, whether oral or written, between the parties with respect to their subject matter. As used in these Terms, “including” and “includes” are exemplary and not limiting. In the event that a document referenced in these Terms is not available on the Platform, Small Craft Sales will provide a copy to You on request. It is your responsibility to review the Platform and request such documents.
11.8. The section headings used in these Terms are for reference only and shall not limit or control any term or provision of these Terms or the interpretation or construction thereof.
11.9. Your sole and exclusive remedies are expressly set forth in these Terms. Certain of the exclusions enumerated in these Terms may not apply if the state in which a Platform is provided does not allow the exclusion or limitation of implied warranties or does not allow the limitation or exclusion of incidental or consequential damages. In those states, the liability of Small Craft Sales shall be limited to the maximum extent permitted by law.
11.10. Small Craft Sales respects the rights of all copyright holders and in this regard has adopted and implemented a policy that provides for the removal of content from the Platform under certain circumstances. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Small Craft Sales Agent and include the following information required by the Digital Millennium Copyright Act, 17 U.S.C. 512: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site; (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity, and information reasonably sufficient to permit us to locate the material; (iv) Information reasonably sufficient to permit us to contact the complaining party (e.g., address, telephone number and email address); (v) A statement that the complaining party has a good faith belief that use of the material is unauthorized; and (vi) A statement that the information in the notification is accurate and, under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. For copyright inquiries, including notification of claims of infringement, please contact info@smallcraftsales.com.
11.11. You agree that you shall not post, upload or transit Content, Visitor Materials, Customer Materials, information, or material involving boats or other vessels located in any country or region that is the subject or target of U.S. or EU comprehensive economic sanctions (including, without limitation, Cuba, Iran, North Korea, Sudan, Syria, and the Crimea region of Ukraine) or that involve any individual or entity designated on any restricted party list administered under any U.S., EU, or other applicable laws related to economic or trade sanctions (“Sanctions Laws”) or under any export control laws of the United States, EU, or any relevant EU Member State (“Export Control Laws”), including without limitation, the U.S. Department of the Treasury, Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List and the EU Consolidated List, or with any individual or entity that is in the aggregate, 50 percent or greater, owned or controlled by any such person, in each case, to the extent such dealings or transactions are in violation of Sanctions Laws or Export Control Laws. Any violative listing may be removed by Small Craft Sales.
11.12. Failure by Small Craft Sales to enforce any provision of these Terms and Conditions will not be deemed a waiver of future enforcement of that or any other provision of these Terms and Conditions.