GPAUP Terms & Conditions of Use (effective June 12, 2015)
Welcome to GPAUP.com, which is the website for GPAUP, Inc. (”GPAUP,” “we,” “us” or “our”). The terms and conditions set forth herein are hereinafter referred to as the “Agreement” and govern all use of the gpaup.com website and mobile application and all content, services, features, activities and products available at or through the website or mobile application (collectively, the “Services”). This Agreement sets forth the legally binding terms and conditions for your use of the website, mobile application, and the Services.
1.Summary
GPAUP is a service that primarily facilitates sales between private sellers and buyers. As a buyer, GPAUP offers you many services and protections, which are described further throughout this Agreement. For example, all vehicles offered for sale to buyers have undergone GPAUP's multipart pre-purchase vehicle inspection (the “Inspection”) and meet the safety and registration requirements imposed by Massachusetts upon delivery. Subject to certain restrictions, all GPAUP vehicles come with a 3-day money back guaranty so that you can return a vehicle for any reason and receive a full refund.
GPAUP offers many services to sellers as well. In particular, GPAUP will professionally inspect and photograph your vehicle before it is listed. Once a buyer agrees to purchase your vehicle, GPAUP will pick up the vehicle, pay you, and handle delivery to the buyer. You will retain that price even if a buyer returns the vehicle to GPAUP for any reason.
These features are offered subject to certain restrictions, which are described further throughout this Agreement. Moreover, your use of GPAUP's Services imposes certain obligations on you, which are described further below. GPAUP strongly encourages you to read this Agreement in its entirety.
2.General Provisions
A. Registration / Modification
By registering for and/or using the Services in any manner, including but not limited to visiting or browsing the GPAUP.com website, you agree that you have read and accepted the terms and conditions of this Agreement. The Agreement consists of all terms and conditions set forth in the Agreement, as well as those set forth in GPAUP's Privacy Policy (https://www.GPAUP.com/PrivacyPolicy) and any Motor Vehicle Purchase and Sale Agreement entered into between GPAUP and a seller, or any Motor Vehicle Retail Purchase and Sale Agreement entered into between GPAUP and a buyer, all of which are incorporated by reference herein in their entirety. All Services available at any time on this website are subject to this Agreement. GPAUP reserves the right to modify this Agreement at any time. Any such modification will be evidenced by a new effective date. All users of this website, including those who have previously acknowledged their acceptance of the Agreement, will be notified of any modification. GPAUP may, in its unilateral discretion, change, restrict access to, suspend, or discontinue this website, or any portion thereof.
B.Intended Use
This website is intended for use only by residents of the United States of America (excluding unincorporated territories, Puerto Rico and Guam), eighteen (18) years of age or older, who have the capacity to enter into a valid contract; by accepting this Agreement, you represent and affirm that you meet these requirements. If you are accepting this Agreement on behalf of an organization, you represent that you have the authority to do so..
In compliance with the Children's Online Privacy Protection Act, GPAUP does not knowingly or intentionally solicit or collect information from minors, and the Services are not directed at minors.
C.Arbitration and Class Action Waiver
In accordance with the terms set forth in Section 10 below, you agree that disputes between you and us will be resolved by binding, individual arbitration and you waive your right to participate in a class action lawsuit or class-wide arbitration.
D.Sale By Private Sellers/Non-Interference
This website serves primarily to facilitate sales between private sellers and buyers of used vehicles. With certain exceptions addressed below, the vehicles offered for sale on the website are offered for sale by the private seller, and not by GPAUP. By accepting this Agreement, you represent and affirm that you will not (i) communicate directly with buyers and/or sellers regarding the listed vehicles; (ii) recruit, solicit, or encourage any other user to use third party services or websites that are competitive to GPAUP; (iii) use the website or mobile application to find a buyer or listed vehicle and then complete a transaction independent of the website, mobile application, or Services in order to circumvent the obligation to pay any fees related to the Services; or (iv) otherwise interfere with vehicle listings without prior written authorization from GPAUP.
3.Access and Use of the Services.
In connection with use of this website and access the Services, you agree to provide accurate information. You must notify us immediately of any change in your eligibility to use the Services or breach of security.
4.Buying and Selling Vehicles.
GPAUP is licensed by the Commonwealth of Massachusetts as a dealer in pre-owned motor vehicles. As explained more fully below, once a buyer has agreed to purchase a particular vehicle offered for sale on this website, GPAUP facilitates the purchase of that vehicle from the seller (if GPAUP does not otherwise own the vehicle). Thereafter, GPAUP delivers the vehicle, title and, within Massachusetts, registration, to the buyer. At or prior to the time of delivery, (i) GPAUP gives all required disclosures and notifications to the buyer, (ii) GPAUP and the buyer mutually execute all required purchase and sale documents, and (iii) buyer pays GPAUP for the vehicle.
We may use a third-party payment processor (the “Payment Processor”) to bill you or compensate you through a payment account. The processing of payments will be subject to the terms, conditions, and privacy policies of the Payment Processor in addition to this Agreement. We are not responsible for error by the Payment Processor. By choosing to consummate a transaction with GPAUP and depending on your method of payment, you agree to pay us, directly or through the Payment Processor, all charges in accordance with the applicable payment terms and you authorize us, including through the Payment Processor, to charge or credit your chosen payment provider.
A.Selling a Vehicle on this Website.
With certain exceptions addressed below, the vehicles listed for sale on this website are advertised and offered for sale by private sellers, and not by GPAUP. To list a vehicle for sale on the GPAUP website, the seller must have possession of the vehicle to be sold, and (i) the ability to transfer title, or (ii) if there is a lien on the vehicle, must have advised GPAUP of the lien and must have provided GPAUP with the information GPAUP would need to satisfy the lien. Seller acknowledges that if he or she provides GPAUP with any false, incomplete, or inaccurate information, including but not limited to vehicle or personal information, any agreement entered into between seller and GPAUP for the purchase of a vehicle by GPAUP or a third party buyer, shall be, at GPAUP’s option, null and void and of no force of effect. Under such circumstances, seller will be responsible to compensate GPAUP for any costs, losses or damages resulting from any false, incomplete, or inaccurate information.
In order to list a vehicle for sale on this website, the website will ask you, as a prospective seller, to provide basic information regarding the vehicle, including make, model, year, style and mileage. You will then be asked to schedule an Inspection with a GPAUP inspector, and to fill in certain identifying information, including your name and the home or office address at which the vehicle will be inspected. At the completion of the registration and Inspection process, GPAUP will provide you, as a prospective seller, within two (2) business days, with the price GPAUP will pay you for the vehicle if a buyer agrees to buy it, or if GPAUP buys it at the end of the 45 day Sales Period (as such price may be adjusted for the actual mileage or condition of the vehicle at the time of the sale, the "Guaranteed Price").
Once you have filled in the required information and scheduled an Inspection, GPAUP will send one of its inspectors to your home or office to photograph the vehicle inside and out, and to conduct a pre-purchase Inspection, including a test drive of the vehicle. The inspector will also verify the vehicle’s make, model, year, style and mileage, and title and registration, and confirm that the seller is the owner of the vehicle. The Inspection will be conducted by the GPAUP inspector in accordance with GPAUP’s multipart pre-purchase vehicle inspection process.
Upon completing the Inspection, if GPAUP chooses to allow you to advertise and offer your vehicle for sale on gpaup.com, GPAUP will, within two (2) business days, email you the Guaranteed Price. Prices are fixed and not subject to negotiation, and are based on a variety of factors, including the market value of the vehicle at the time of inspection as assessed by a third-party appraisal. GPAUP will provide a prospective seller with a Guaranteed Price for the vehicle that takes into account the results of GPAUP’s Inspection. GPAUP is paid a commission in the event a vehicle is sold. The sale price advertised on gpaup.com is the Guaranteed Price plus GPAUP's commission in the event the car is sold to a third-party buyer. GPAUP’s commission is determined on a car-by-car basis, and takes into consideration the value of the car at the time of Inspection. GPAUP’s commission is not negotiable.
Once the vehicle passes Inspection, if the private seller decides to sell his or her vehicle for the Guaranteed Price, the private seller and GPAUP will enter into a Motor Vehicle Purchase and Sale Agreement. The Motor Vehicle Purchase and Sale Agreement is a legally binding agreement whereby the private seller agrees to sell his or her motor vehicle, either to a third party buyer designated by GPAUP within the 45 day Sales Period, or to GPAUP at the end of the 45 day Sales Period (either of such third party buyer or GPAUP, as the case may be, the “Buyer”).
By entering into the Motor Vehicle Purchase and Sales Agreement, the seller (i) represents that he or she has physical possession of the vehicle to be sold and either (a) that he or she has the ability to transfer title, or (b) that he or she has fully disclosed any lien on the vehicle to GPAUP, and has provided GPAUP with sufficient information to enable GPAUP to satisfy the lien, and (ii) agrees that, as long as the seller is paid the Guaranteed Price, seller will consummate the sale transaction with the Buyer, according to the terms of the Motor Vehicle Purchase and Sale Agreement.
Once the private seller and GPAUP have entered into the Motor Vehicle Purchase and Sale Agreement, for a period of forty-five (45) days (the “Sales Period”), GPAUP will advertise and offer the vehicle for sale to third parties, at a sales price equal to the Guaranteed Price plus GPAUP's commission, on the GPAUP website. If, at the end of the Sales Period, GPAUP has not identified and designated a third party Buyer, GPAUP will purchase the vehicle from Seller for a sales price equal to the Guaranteed Price.
The seller is free to continue to use the vehicle until a third party Buyer agrees to purchase the vehicle or until the end of the 45 day Sales Period, and a sale to the Buyer is consummated, as long as (i) the vehicle has not been driven more than a total of 500 miles (the “Seller Mileage Limit”), and (ii) the vehicle is in the same condition it was in at the time of Inspection (collectively the “Guaranteed Price Conditions”). As long as the Guaranteed Price Conditions are satisfied, the price received by the seller for the sale of the vehicle will be the Guaranteed Price. If the seller has exceeded the Seller Mileage Limit, the Guaranteed Price will be reduced by an amount equal to $3.00 (three dollars) per mile for each mile exceeding the Seller Mileage Limit.
In addition, in the event of any post-Inspection damage to the vehicle, GPAUP may either (i) terminate the Motor Vehicle Purchase and Sale Agreement without penalty; or (ii) negotiate a reduction of the Guaranteed Price. In such a situation, GPAUP may – but is not required to – make the seller a new offer on different terms. It is the seller’s responsibility to inform GPAUP immediately if any damage occurs to the vehicle after the Inspection by contacting ask@gpaup.com. Should the seller fail to timely inform GPAUP of such post-Inspection damage, GPAUP may, at its sole discretion, remove the listing for the vehicle from this website. The seller also agrees to reimburse GPAUP for any costs, losses, or damages suffered as a result, including but not limited to the cost of repair and the cost of any necessary inspection or re-inspection. The nature and extent of any post-Inspection damage will be determined solely by GPAUP, or a third-party working on GPAUP’s behalf.
If a Buyer agrees to purchase a vehicle advertised and offered for sale on the website, GPAUP will, as soon as reasonably practicable, (1) secure the vehicle title from the seller, (2) secure all necessary signatures from the seller to accomplish transfer of title, (3) pay the seller for the vehicle by way of a check issued by GPAUP or alternate payment method, and (4) pick up the vehicle from the seller. In addition, under the terms of the Motor Vehicle Purchase and Sale Agreement, the Seller agrees that GPAUP may act as seller’s attorney-in-fact to transfer the vehicle title from seller to Buyer. Assuming the seller has not exceeded the Seller Mileage Limit and the vehicle has not suffered any post-Inspection damage, the price paid by GPAUP to the seller will be the Guaranteed Price. Should the Buyer return the vehicle to GPAUP for any reason, GPAUP will retain title and possession of the vehicle and the seller shall retain the price paid to seller. To the extent such a returned vehicle is offered for sale on this website, it will be offered by sale by GPAUP.
By entering into the Motor Vehicle Purchase and Sale Agreement, the seller agrees to inform GPAUP of any times during which the vehicle will be unavailable for pickup. For example, the seller must notify GPAUP if he or she is going on vacation and will be unavailable to transfer title and possession while away.
GPAUP cannot guarantee that any vehicle listed on the website will be sold to a third-party Buyer. Nor can GPAUP guarantee the length of time it will take for any vehicle to sell.
B.Buying a Vehicle on this Website.
A prospective buyer is free to browse the website. For each vehicle offered for sale, the website displays professional photographs and certain characteristics of the vehicle. The photographs displayed are not exemplars, but photos of the actual vehicle offered for sale.
Each of the vehicles offered for sale on this website is certified by GPAUP pursuant to its multistep pre-purchase certification process. For each vehicle offered for sale, the website displays a completed inspection report reciting the steps conducted in the certification process, including each of the components inspected, and the status of the vehicle with respect to each step and component.
With respect to any vehicle GPAUP sells, GPAUP will have complied with all requirements of applicable Massachusetts law with respect to checking and making operational certain vehicle parts and odometer disclosure. GPAUP will also make all disclosures required under Massachusetts and federal law. GPAUP will publish or summarize on this website any third party report it has secured with respect to an individual vehicle. GPAUP disclaims any responsibility for the accuracy of any such report.
The sale price at which the seller offers a vehicle for sale on this website is fixed and not subject to negotiation. The prices on the website include title and registration for Massachusetts residents, the cost of delivery within the free delivery zone indicated on the GPAUP website (the “Free Delivery Zone”), Massachusetts document fees and GPAUP’s commission. Prices on the website do not include sales or usage tax, delivery outside of the Free Delivery Zone, non-Massachusetts title and registration fees, financing charges or extra purchases, including but not limited to an extended warranty. The Free Delivery Zone is subject to change without notice, at GPAUP’s sole discretion.
Prior to the time a vehicle (along with title and, within Massachusetts, registration) is delivered to the buyer for consummation of a sale, the buyer and GPAUP will mutually execute a Motor Vehicle Retail Purchase and Sale Agreement memorializing the terms of the sale. The Motor Vehicle Retail Purchase and Sale Agreement is a legally binding agreement whereby the buyer agrees to purchase a particular vehicle and GPAUP agrees either to facilitate the purchase of the vehicle from a private seller or sell the vehicle to the buyer, as the case may be. In addition, under the terms of the Motor Vehicle Retail Purchase and Sale Agreement, the buyer agrees that GPAUP may act as buyer’s attorney-in-fact to transfer the vehicle title from seller to buyer. A buyer can pay for the vehicle by check, credit card, or bank transfer. Payment is due at the time of executing the Motor Vehicle Retail Purchase and Sale Agreement, and the buyer’s account will be charged immediately. Depending on the payment method chosen by the buyer, delivery of the vehicle may occur up to 10 business days following buyer’s payment for the vehicle. All vehicles delivered to a buyer will be free and clear of any liens previously attached to the vehicle. At the time of delivery, GPAUP will give all required notifications and disclosures.
While GPAUP expects to be able to offer delivery within several days of most purchases, there are certain circumstances outside of GPAUP’s control that may delay delivery. For example, if the seller is out of town, GPAUP may be unable to obtain the vehicle until the seller returns. Accordingly, GPAUP cannot offer a guaranteed delivery timeframe at the time of purchase.
Each vehicle sold by GPAUP comes with a 3-day money back guaranty. This means that, as long as (i) the vehicle has not been driven more than a total of 100 miles while the vehicle was in buyer’s possession (the “Mileage Limit”), and (ii) the vehicle is in the same condition (Without any damage or excessive wear, tear and free of modification.)it was in at the time of delivery (collectively the “Money Back Guaranty Conditions”), a buyer can, within 3 days of delivery, return the vehicle to GPAUP and receive a full refund. As long as the Money Back Guaranty Conditions are satisfied, the buyer may return the vehicle for any reason and must also be accompanied by all the original documentations, registration, license and delivery paperwork. GPAUP does not offer partial refunds and will not renegotiate the purchase price if the buyer is not satisfied with the vehicle. In the event the buyer is not satisfied with the vehicle for any reason, the buyer may, as long as the Money Back Guaranty Conditions are satisfied, return the vehicle within 3 days of delivery and, subject to excess mileage and condition charges described below, receive a full refund. GPAUP WILL NOT refund sales tax, excise tax, title, registration, dealer documentation and or license fees. The buyer must pay any interest and principle balances and/or any other amounts due in order to provide a free and clear title of the vehicle to GPAUP. Any additional products purchased including Extended warranty, Maintenance agreements, promotional products and other aftermarket items may have to be refunded by the appropriate company which administers each respective product. Such refunds may not be processed immediately and will be refunded according to the policies and time-lines that are established by the appropriate company which administers each respective product.
To the extent the vehicle has been driven beyond the Mileage Limit, the refund given to the buyer will be reduced by $3.00 (three dollars) per mile. To the extent the vehicle has been damaged or is otherwise in worse condition than it was at the time of delivery, GPAUP, in its sole discretion, may (i) refuse to accept a return of the vehicle and refuse to refund any portion of the purchase price, or (ii) choose to reduce the refunded amount by the amount required to return the vehicle to its condition at the time of delivery to buyer. The amount of the deduction will be determined by GPAUP in its sole discretion, and GPAUP will provide an accounting to the buyer reflecting the amount of any deductions and the reason for each deduction. For any vehicle returned pursuant to the 3 day money back guaranty, GPAUP will have up to thirty (30) days to inspect the vehicle, determine the amount of the refund due to buyer and pay the refund to the buyer. In the event GPAUP refunds the purchase price to a buyer, GPAUP, as the owner of that vehicle, may itself offer the vehicle for sale on this website.
All GPAUP vehicles come with the 3-day money back guaranty described above.
5.User Generated Content.
A.Prohibited Actions.
You are solely responsible for your communications on and your use of the Services. You agree not to do any of the following: (A) post or transmit any libelous, defamatory, indecent, obscene, fraudulent, deceptive, abusive or pornographic message, data, image, content or program; (B) post or transmit any message, data, image, content or program that would violate any property rights of others; (C) use the Services to threaten, harass, or otherwise violate the legal rights (including rights of privacy and publicity) of others; (D) upload or download files that contain software, marks, logos, data, images, content or other material protected by intellectual property laws, rights of privacy or publicity, or any other applicable law, unless you own or control the rights to such files or material or have received all necessary consents; (E) upload files that contain a virus or corrupted data; (F) falsify the source or origin of software or other material contained in a file that you upload to the Services; (G) falsely purport to be an employee or agent of GPAUP; (H) act, in your use of the Services, in a manner that is contrary to applicable law or regulation; or (I) circumvent, disable or otherwise interfere with security-related features of the Services or features that prevent or restrict use or copying of any content or enforce limitations on use of the Services or the content.
B.GPAUP’s Exclusive Right to Manage the User Submissions.
You acknowledge that any materials and other information (including, without limitation, ideas contained therein for new or improved products or services) you post, upload, or submit to the Services, including but not limited to comments, forum messages, reviews, text, video, audio, photographs, computer code and applications (each, a “User Submission”) may be edited, removed, deleted, modified, published, transmitted, and displayed by GPAUP in its sole discretion and without your permission, and you waive any rights you may have (including any moral rights) in preventing the material from being altered or changed in a manner not agreeable to you. You expressly agree that we may remove, disable or restrict access to or the availability of any User Submissions from the Services at any time, for any reason or for no reason at all. GPAUP reserves the right to treat User Submissions as content stored at the direction of users for which GPAUP will not exercise control except to block or remove content that comes to GPAUP’s attention and is offensive, obscene, lewd, lascivious, filthy, violent, harassing, threatening, abusive, illegal, libelous, defamatory, fraudulent, deceptive, misleading or otherwise objectionable to GPAUP, or to enforce the rights of third parties or the content restrictions set forth below in this Agreement when notice of their violation comes to GPAUP’s attention. However, GPAUP shall not be responsible for controlling or editing any content, and GPAUP has no contractual obligation to remove inappropriate or unlawful content. Under no circumstances will we be held liable for removing, disabling or restricting access to or the availability of content.
C.License to GPAUP of Your User Submissions.
You hereby grant to GPAUP, and you agree to grant to GPAUP, a perpetual, royalty-free, non-exclusive, irrevocable, unrestricted, unconditional, unlimited, worldwide and cost-free license to use, copy, record, disclose, sell, re-sell, sublicense, reproduce, distribute, redistribute, modify, adapt, publish, edit, translate, transmit, create derivative works of, broadcast, publicly perform, display or otherwise exploit in any manner whatsoever, all or any portion of your User Submissions (and derivative works thereof), for any purpose whatsoever in all formats, on or through any media, software, formula, or technology whether by any means and in any media now known or hereafter developed and to sublicense such rights through multiple tiers of sublicenses, and to advertise, market and promote the same. In order to further effect the rights and license that you grant to GPAUP to your User Submissions, you also hereby grant to GPAUP, and agree to grant to GPAUP, the unconditional, perpetual, irrevocable right to use and exploit your name, persona, image, photograph, and likeness that you provide in connection with any User Submission, without any obligation or remuneration to you. Except as prohibited by law, you hereby waive, and you agree to waive, any moral rights (including attribution and integrity) that you may have in any User Submissions, even if your User Submissions are altered or changed in a manner not agreeable to you. You agree that you shall have no recourse against GPAUP for any alleged or actual infringement or misappropriation of any proprietary right in your User Submissions. You further acknowledge and agree that no compensation will be paid with respect to the use of your User Submissions or any of the rights granted in this section.
D.Representations and Warranties Related to Your User Submissions.
Each time you submit a User Submission, you represent and warrant that, as to that User Submission, (A) you are the sole author and owner of the intellectual property and other rights to the User Submission, or you have a lawful right to submit the User Submission and grant GPAUP the rights to it that you are granting by this Agreement, all without any obligation to obtain consent of any third party and without creating any obligation or liability of GPAUP; (B) the User Submission is accurate; (C) the User Submission does not and, as to GPAUP’s permitted uses and exploitation set forth in this Agreement, will not infringe any intellectual property or other right of any third party; (D) the User Submission will not violate this Agreement, or cause injury or harm to any person; and (E) the User Submission complies with all applicable laws and regulations.
E.Responsibility of Users.
You are entirely responsible for the content of, and any harm resulting from, your User Submissions. GPAUP does not assume any responsibility or liability for any User Submissions posted on the Services or any website linked to the Services and makes no express or implied warranty or guarantee about the accuracy, copyright compliance, legality, or any other aspect of the User Submissions.
6.Accuracy of Website Information.
GPAUP designed this website to meet your used car purchase and sale needs by providing you with accurate and up-to-date information about GPAUP's inventory. Despite our best efforts, however, it is inevitable that some inaccuracies may be present. Additionally, photographs of automobiles found on the GPAUP website are photographs of the actual vehicles; however, their color and general appearance may appear differently based on your monitor and color settings. GPAUP will not be responsible for errors found on this website, including but not limited to pricing errors or an incorrect statement of accessories on a particular vehicle.
GPAUP reserves the right to change product pricing without notice.
7.Ownership and Proprietary Rights.
All information contained in this website, including but not limited to text, graphics and icons, unless otherwise stated, is owned solely and exclusively by GPAUP. You acknowledge and agree that all contents and materials available on this website are protected by copyrights, trademarks, service marks, patents, trade secrets, and/or other proprietary or intellectual property rights and laws. By permitting you to access and use this website, GPAUP has not granted you a license of any kind to use this information for any purpose (including, but not limited to, commercial purposes) without the express written consent of GPAUP; however, vehicle information may be printed for your non-commercial, personal use only. You may not otherwise amend, copy, create derivative works from, reverse engineer, display, distribute, edit, license, modify, reproduce, rent, sell, and/or transmit any part of this website. You may not use any meta tags or any other "hidden text" utilizing GPAUP's name or trademarks without the express written consent of GPAUP. In addition, deep linking, direct linking, framing, page-jacking, spoofing, hacking, data-mining and using a robot, spider, or automated device of any kind to monitor or copy our website is strictly prohibited.
8.Intellectual Property.
GPAUP is a registered trademark or service mark of GPAUP, Inc. Any unauthorized use, replication, or other violations of trademark law will be prosecuted to the maximum extent possible. All other trademarks not owned by GPAUP or its subsidiaries that appear on this site are property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by GPAUP.
9.Warranty Disclaimer.
GPAUP MAKES NO REPRESENTATIONS ABOUT THE SUITABILITY OF THE INFORMATION AND RELATED GRAPHICS CONTAINED IN THIS WEBSITE FOR ANY PURPOSE WHATSOEVER. ALL INFORMATION PROVIDED ON OUR WEBSITE IS PROVIDED "AS IS," WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. GPAUP DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, WITHOUT LIMITATION, THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT AND ANY WARRANTIES ARISING FROM COURSE OF PERFORMANCE, COURSE OF DEALING, OR USAGE IN TRADE. GPAUP SHALL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOST PROFITS OR REVENUES, COSTS OF REPLACEMENT OF GOODS, LOSS OR DAMAGE TO DATA ARISING OUT OF THE USE OR INABILITY TO USE THE GPAUP WEBSITE, OR FOR DAMAGE RESULTING FROM THE USE OF OR RELIANCE ON THE INFORMATION CONTAINED HEREIN. SOME STATES DO NOT ALLOW LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY LASTS OR EXCLUSION OR LIMITATIONS ON RELIEF SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
10.Dispute Resolution/Jurisdiction/Agreement to Arbitrate.
A.In General.
Certain portions of this section are deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and GPAUP agree that we intend that this section satisfies the “writing” requirement of the Federal Arbitration Act.
B.First -- Try to Resolve Disputes and Excluded Disputes.
If any controversy, allegation, or claim arises out of or relates to the Services, the content available through the Services, your User Submissions, or this Agreement (collectively, “Dispute”), then you and we agree to send a written notice to the other providing a reasonable description of the Dispute, along with a proposed resolution of it. Our notice to you will be sent to you based on the most recent contact information that you provide us. But if you have failed to provide us with this information or if such information is not current or accurate, then we have no obligation under this section. Your notice to us must be sent to: ask@gpaup.com. For a period of 60 days from the date of receipt of notice from the other party, GPAUP and you will engage in a good faith dialogue in order to attempt to resolve the Dispute, though nothing will require either you or GPAUP to resolve the Dispute on terms with respect to which you and GPAUP, in each party’s sole discretion, are not comfortable.
C.Forums for Alternative Dispute Resolution.
If we cannot resolve a Dispute as set forth in above within 60 days of receipt of the notice (or, where no notice address exists for you, after such Dispute arises), then either you or we may submit the Dispute to formal arbitration in accordance with this section.
Upon expiration of the applicable 60-day period and to the fullest extent permitted by applicable law, a Dispute will be resolved solely by binding arbitration in accordance with the then current Commercial Arbitration Rules of the American Arbitration Association (“AAA”). If the Dispute has a claimed value of not more than $250,000, then the arbitration will be heard and determined by a single neutral arbitrator who is a retired judge or a lawyer with not less than 10 years’ experience as a practicing member of the bar in the substantive practice area related to the Dispute, who will administer the proceedings in accordance with the AAA’s Supplementary Procedures for Consumer Related Disputes. If the Dispute has a claimed value of more than $250,000, or if GPAUP elects in its sole discretion to bear the costs of arbitration in excess of those that would occur for a proceeding before a single neutral arbitrator, then the arbitration will be heard and determined by a three member panel, with one member to be selected by each party and the third (who will be chair of the panel) selected by the two party appointed members or by the AAA in accordance with the Commercial Arbitration Rules. The arbitrator or arbitration panel, as the case may be, will apply applicable law and the provisions of this Agreement, will determine any Dispute according to the applicable law and facts based upon the record and no other basis, and will issue a reasoned award.
If a party properly submits the Dispute to the AAA for formal arbitration and the AAA is unwilling or unable to set a hearing date within 60 days of the filing of a “demand for arbitration,” then either party can elect to have the arbitration administered by the Judicial Arbitration and Mediation Services Inc. (“JAMS”) using JAMS’ streamlined Arbitration Rules and Procedures, or by any other arbitration administration service that you and an officer of GPAUP consents to in writing. The substantive practice area requirements for the arbitrator and the $250,000 threshold for the number of arbitrators assigned to the Dispute set forth in the paragraph above for the AAA arbitration will also apply to any such arbitration under JAMS or another arbitration service.
You can obtain AAA and JAMS procedures, rules, and fee information as follows:
AAA: 800.778.7879 http://www.adr.org/
JAMS: 949.224.1810 http://www.jamsadr.com
D. Nature, Limitations, and Location of Alternative Dispute Resolution.
In arbitration, as with a court, the arbitrator must honor the terms of this Agreement and can award the prevailing party damages and other relief (including attorneys’ fees). However, WITH ARBITRATION (i) THERE IS NO JUDGE OR JURY, (ii) THE ARBITRATION PROCEEDINGS AND ARBITRATION OUTCOME ARE SUBJECT TO CERTAIN CONFIDENTIALITY RULES, AND (iii) JUDICIAL REVIEW OF THE ARBITRATION OUTCOME IS LIMITED. All parties to the arbitration will have the right, at their own expense, to be represented by an attorney or other advocate of their choosing. If an in-person arbitration hearing is required, then it will be conducted in Boston, Massachusetts; but if the applicable arbitration rules or laws require the arbitration to be conducted in the “metropolitan statistical area” (as defined by the U.S. Census Bureau) where you are a resident at the time the Dispute is submitted to arbitration, GPAUP shall have the right to elect to proceed to arbitration in such location. You and we will pay the administrative and arbitrator’s fees and other costs in accordance with the applicable arbitration rules; but if applicable arbitration rules or laws require GPAUP to pay a greater portion or all of such fees and costs in order for this section to be enforceable, then GPAUP will have the right to elect to pay the fees and costs and proceed to arbitration. Discovery will be permitted pursuant to the applicable arbitration rules. The arbitrator’s decision must consist of a written statement stating the disposition of each claim of the Dispute, and must provide a statement of the essential findings and conclusions on which the decision and any award (if any) is based. Judgment on the arbitration decision and award (if any) may be entered in or by any court that has jurisdiction over the parties pursuant to Section 9 of the Federal Arbitration Act.
E. Limited Time to File Claims.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IF YOU OR WE WANT TO ASSERT A DISPUTE AGAINST THE OTHER, THEN YOU OR WE MUST COMMENCE IT (BY DELIVERY OF WRITTEN NOTICE AS SET FORTH ABOVE, WHERE FEASIBLE) WITHIN ONE (1) YEAR AFTER THE DISPUTE ARISES -- OR IT WILL BE FOREVER BARRED.
F. Injunctive Relief.
The foregoing provisions of this section will not apply to any legal action taken by GPAUP to seek an injunction or other equitable relief in connection with any loss, cost, or damage (or any potential loss, cost, or damage) relating to the Services, the content available through the Services, your User Submissions and/or GPAUP’s intellectual property rights, GPAUP’s operations, and/or GPAUP’s products or services.
G. Small Claims Matters Are Excluded from Arbitration Requirement.
Notwithstanding the foregoing, either of us may bring a qualifying claim of Disputes in small claims court.
H. No Class Action Matters.
You and we expressly agree that any Dispute is personal to us, and any such Dispute shall only be resolved by an individual arbitration. Neither party agrees to class arbitration, or an arbitration where a person brings a Dispute as a representative of any other person or persons. Neither you nor we agree that a Dispute can be brought as a class or representative action outside of arbitration, or on behalf of any other person or persons. The parties agree that a Dispute may only be resolved through an individual arbitration and shall not be brought as a class arbitration, a class action, or any other representative proceeding.
I. Federal and State Courts.
Except to the extent that arbitration is required above, any action or proceeding relating to any Dispute may only be instituted in state court in San Mateo County, California or federal court in San Francisco, California. Accordingly, you and GPAUP consent to the exclusive personal jurisdiction and venue of such courts for such matters.
J. Applicable Law.
This Agreement will be governed by and construed in accordance with, and any Dispute and Excluded Dispute will be resolved in accordance with, the laws of the Commonwealth of Massachusetts, without regard to its conflict of law provisions.
11.Usage and Ownership of Customer Information.
All information submitted to GPAUP through our website becomes and remains the property of GPAUP. Consequently, we may use any information you submit for any purpose we deem appropriate in accordance with this Agreement and our Privacy Policy.
12.Violations of the Agreement.
In the event you violate or attempt to violate any part of this Agreement, GPAUP reserves the right to terminate your access to this website immediately, at our sole discretion, with or without notice of any kind. We also reserve the right to involve and cooperate with law enforcement agencies, and to pursue a civil lawsuit in accordance with the section above or criminal prosecution for any and all alleged or actual illegal activities involving this website.
13.Indemnification.
You agree to indemnify, defend, and hold harmless GPAUP from and against any and all claims, proceedings, damages, injuries, losses, costs, and expenses (including reasonable attorneys' fees), arising out of or relating to your use of this website that leads to any claim against us by a third-party, regardless of the nature of the cause of action or claim.
14.Severability and Integration.
In the event any part of this Agreement is found to be unenforceable, the remainder shall continue in full force and effect. You understand and agree that this Agreement, including all documents incorporated herein by reference, represents the entire agreement governing your use of this website, the mobile app, or the Services. This Agreement may not be modified, either expressly or by implication, except as set forth below in Section
15.Modification/Termination.
Our employees are not authorized to vary the terms of this Agreement. This Agreement may be modified only (A) by obtaining our written consent in a notarized agreement signed by an officer of GPAUP; or (B) as set forth in the next paragraph.
You agree that we may modify the terms of this Agreement from time to time, and that your right to access the Services is conditioned on an ongoing basis with your compliance with the then-current version of this Agreement. We will notify you of any material revisions or modifications to this Agreement by: posting a notice on the gpaup.com website for thirty (30) days following any revisions or modifications to this Agreement and/or by posting a notice on gpaup.com the first time that you visit gpaup.com following such revisions or modifications. You will be deemed to have agreed to the new terms and conditions if you continue to access the Services after having been notified of such revisions or modifications or after the passage of thirty (30) days from the time the revised terms and conditions are first posted on gpaup.com (whichever is sooner). We assume no responsibility for your failure to actually receive actual notice. It is your responsibility to review this page for possible modifications.
16.Website Material and Information.
This site includes materials and information collected from and provided by third parties that we may not have evaluated or reviewed. Unless specifically stated otherwise, we make no guarantees regarding the accuracy, completeness, timeliness, or reliability of any of the materials or information on this website, and you should not rely on it without independent verification. Please bring to our attention any materials or information that you believe to be inaccurate by forwarding to ask@gpaup.com both the information you believe to be inaccurate, and the basis for that belief.
17.Links to Third Party Websites.
The Services may contain links to third party websites (“Third Party Websites”). Access to Third Party Websites is at your own risk, and GPAUP is not responsible for the accuracy, availability or reliability of any information, goods, data, opinions, advice or statements made available on Third Party Websites. These links may also lead to Third Party Websites containing information that some people may find inappropriate or offensive. The Third Party Websites are not under the control of GPAUP and, as such, GPAUP is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any Third Party Website. The inclusion of any links to Third Party Websites on GPAUP does not imply an endorsement or recommendation by GPAUP. GPAUP is not responsible for any form of transmission received from any link, nor is GPAUP responsible if any of these links are not working appropriately. You are responsible for viewing and abiding by any privacy statements and terms of use posted in c1onnection with Third Party Websites, and these Third Party Websites are not governed by this Agreement.
18.Reservation of Rights.
Any and all rights not expressly granted to you in this Agreement are hereby reserved by GPAUP.