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Policies
ONLINE TERMS OF USE
(last updated October 25, 2009)
1. INTRODUCTION
By using the services available on this website (the “Site”) you, on behalf of your dealership, are agreeing to the following terms and conditions (the “Agreement”) with National Powersport Auctions (“NPA”). All references in this Agreement to “you” or “your” or similar terms shall be mean your company that is an authorized vehicle dealers or reseller. Before you may use this Site, you must read and accept all of the terms and conditions in this Agreement. If you do not agree with any of these terms or conditions, do not access or otherwise use this Site or any information contained on the Site. You agree that NPA and its licensors may make improvements and/or change to this Site and the services and programs described in or offered on this Site, if any, at any time without notice, and you further agree that NPA can revise this Agreement at any time without notice by updating this posting. You agree that your continued use of the Site after such modifications have been posted constitutes your acceptance of such revisions to this Agreement.
2. MEMBERSHIP ELIGIBILITY
This Site is an on-line auction venue for the auction of certain vehicles. This Site is available only to authorized dealers of Harley-Davidson Financial Services whose branding appears on this Site (“Manufacturer” or “HDFSI”) that are approved by HDFSI to buy and sell vehicles on this Site. NPA and HDFSI reserve the right to refuse access to the Site in their discretion, including but not limited to bidding, listing, buying and selling vehicles on the Site. You represent and warrant that you will comply with the terms of any agreement you have with HDFSI in connection with your use of the Site or otherwise.
3. MEMBERSHIP REGISTRATION
To become eligible to use this Site you must apply to be a buyer and/or seller by registering and providing certain information requested by NPA and HDFSI, including but not limited to your name, company name, phone number, address and a valid email address ("Registration Data"). You agree to provide accurate Registration Data and to update your Registration Data as necessary to keep it accurate. NPA and HDFSI will use your Registration Data in accordance with the privacy provisions set forth below. When you register as a buyer/seller on behalf of the company you represent, you represent and warrant that (a) you are authorized to sign for and bind the registered buyer/seller and (b) the registered buyer's/seller’s business is authorized to operate as identified on the registration form. NPA may retain copies of all Registration Data. If NPA and HDFSI approve you application and Registration Data, you will be provided with a username and password that will allow you to use the Site.
4. DEALERSHIP VERIFICATION
To list vehicles on the Site and to buy and sell vehicles listed on the Site, you must be an authorized HDFSI dealer and hold all the necessary licenses and permits required by your state department of transportation or other governing authority. Only companies with licenses in good standing may use this Site. NPA does not guarantee or represent that any buyer or seller is an authorized dealer of HDFSI or that any buyer or seller has the necessary licenses or permits.
5. PASSWORD PROTECTION
You agree that you are entirely responsible and liable for maintaining the confidentiality of your username and password and will not share your password with a third party. You agree that you are entirely responsible and liable for any and all activities which occur under your account with your username and password, whether or not you authorized such activities. You agree to immediately notify NPA of any unauthorized use of your username or password or any other breach of security in relation to the Site known to you. In the event that you breach any provision in this Agreement, NPA shall be entitled to disable your username and password to discontinue your use of the Site.
6. ACCEPTABLE USE
While using the Site, you will not:
• post content or items in inappropriate category or areas on the Site;
• violate any laws, third party rights, or NPA policies set forth herein;
• use the Site if your dealership with HDFSI terminates or is suspended;
• use the Site if you are not able to form legally binding contracts or are temporarily or indefinitely suspended from use of the Site;
• fail to deliver payment for items purchased by you, unless the seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot authenticate the seller's identity;
• fail to deliver items purchased from you, unless the buyer fails to meet the posted terms, or you cannot authenticate the buyer's identity;
• manipulate the price of any item or interfere with other user's listings;
• circumvent or manipulate the fee structure, the billing process, or fees owed to NPA;
• post false, inaccurate, misleading, defamatory, or libelous content (including personal information);
• take any action that may undermine any feedback or ratings systems (such as displaying, importing or exporting feedback information off of the Site or for using it for purposes unrelated to the Site);
• transfer your account, username or password for this Site to another party without NPA’s prior written consent;
• distribute or post spam, chain letters, or pyramid schemes;
• distribute viruses or any other technologies that may harm NPA, or the interests or property of other users on this Site;
• copy, modify, or distribute content from the Site or NPA’s copyrights and trademarks; or
• harvest or otherwise collect information about users, including email addresses, without their consent.
7. ABUSING THE SITE
NPA and the users of this Site work together to keep the Site working properly. Please report problems, offensive content, and policy violations to NPA at info@npauctions.com.
Without limiting other remedies, NPA may limit, suspend, or terminate service and user accounts, prohibit access to the Site, remove hosted content, and take technical and legal steps to keep users off the Site if NPA thinks that they are creating problems, possible legal liabilities, or acting inconsistently with the letter or spirit of this Agreement. NPA also reserves the right to cancel unconfirmed accounts.
8. LISTING
If you would like to list a vehicle for sale, you must provide certain information regarding the vehicle before NPA posts the listing on the Site, including without limitation the year, make, model, VIN, mileage, condition and title information as well as photographs, images and other information about the vehicle. Prior to posting of your listing, you must provide to NPA - via the Site, facsimile at (858) 513-1599, or email at info@npauctions.com - a copy of the title or other legal documents for such vehicle that evidences your ownership or control of the vehicle to NPA’s satisfaction. You acknowledge that you are responsible for all information and material that you submit for posting on the Site as well as the title paperwork submitted to NPA (each, a “Submission”) and that you, and not NPA, will have full responsibility and liability for each such Submission. You represent and warrant that (i) you are the sole and exclusive owner of and have good, valid and marketable title to each vehicle for which you provide a Submission, (ii) all information in each Submission is complete, truthful and accurate and does not contain any misleading information; (iii) each vehicle submitted by you is free and clear of all liens, encumbrances and claims, and (iv) such Submissions do not violate, infringe or misappropriate any third party intellectual property, proprietary, privacy or publicity rights. Nothing in a Submission will be considered confidential information and may be used by NPA and HDFSI for any purpose.
If you post a listing on this Site, your listing will be subject to the review and approval of HDFSI. NPA will not post your listing on the Site until NPA has received approval from HDFSI. Listings on the Site are limited to listings for vehicles manufactured or allowed by HDFSI only. Vehicles not manufactured or allowed by HDFSI will be listed on NPA’s standard online auction page. At the request of HDFSI, a listing on the Site also may appear on NPA’s standard online auction page or other auction websites managed by NPA.
9. BIDDING
Most items are sold without reserve; however the seller has the right to post a reserve price on any vehicle posted for sale. A reserve price is a hidden price, known only to NPA and the seller, which is the minimum price required to sell the unit. NPA reserves the right to refuse a sale or re-post a unit if the buyer is not in good standing or there is a discrepancy in the vehicle's information discovered prior to the closing date of an auction.
A bidder using NPA's online bidding system has the option to include a start and a maximum amount he or she is willing to bid, in addition to an optional bid increment, on each unit. The Site will automatically bid for the bidder against other incoming bids and any reserve amount, up to the specified maximum amount and in the increments the bidder presets. At all times a bidder can view the current high bid and the length of time until close of an item.
10. CLOSING A PURCHASE
When an auction closes, the winning bidder shall be obligated to complete the purchase transaction with the seller for the applicable vehicle. All bidders represent and warrant that they submit all bids in good faith and they shall complete the purchase transaction if they are the winning bidder, and all bidders represent that they are capable of completing the transaction. NPA will issue the winning bidder an invoice for the purchase price plus any applicable buyers’ fees. NPA will collect the invoiced amounts from the buyer in accordance with the payment terms described in this Agreement. Upon the close of any auction in which the seller has sold a vehicle to a winning bidder, the seller will immediately send the title paperwork for such vehicle to NPA. Upon receipt of the invoiced amounts from the buyer, NPA will forward the title paperwork received from the seller to the buyer. In addition, within three (3) business days after receipt of the invoiced amounts from the buyer, NPA will issue a check or initiate a wire transfer to the seller for the purchase price less any sellers’ fees owed to NPA.
11. SHIPPING AND RETURNS
It is the buyers financial responsibility for transportation of the purchased vehicles. If a buyer receives a vehicle that does not materially conform to the description of such vehicle provided by a seller on the Site (including title information), then buyer may return such vehicle to the seller, and the seller agrees to pay all shipping costs associated with such return. NPA, MANUFACTURER, AND ALL THEIR PARENTS, SUBSIDIARIES AND AFFILIATES WILL HAVE NO LIABILITY, RESPONSIBILITY OR OBLIGATIONS REGARDING VEHICLES THAT DO NOT CONFORM TO THE DESCRIPTION OF THE VEHICLE AS SUCH DESCRIPTION IS SUPPLIED BY THE SELLER.
12. FEES AND SERVICES
Buyers and sellers are charged the applicable fees set forth in the then-current NPA fee schedule as posted at http://www.hd-dealerexchange.com/hddxPH.aspx?cp=hddxfees. NPA may change its fee schedule upon fourteen (14) days' notice by posting the changes at such webpage. NPA may choose to temporarily change the fees for NPA’s services for promotional events (for example, free listing days) or new services, and such changes are effective when NPA posts the temporary promotional event or new service on the Site.
Unless otherwise stated, all fees are quoted and payable in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with your use of the Site and all transactions undertaken on the Site in a timely manner with a valid payment method. If your payment method fails or your account is past due, NPA may collect fees owed using other collection mechanisms. (This includes charging other payment methods on file with NPA and retaining collection agencies and legal counsel.)
A note about NPA fees:
• In the event your account is suspended for any reason, any amounts due on your account will immediately become due and payable.
• The winning bidder will be notified via electronic mail and has four (5) options for payment, including (a) electronic funds transfer or “bank wire” to the wire transfer information below; (b) Harley-Davidson® flooring (c) cashiers check; (d) business check with prior approval by NPA or (e) cash. All payments must be received no later than seventy-two (72) hours after receipt of the invoice for the purchase price and applicable fees from NPA. If payment is not received within seventy-two (72) hours after receipt of the invoice, the buyer’s account will be suspended until reauthorized by NPA.
13. WIRE TRANSFER INFORMATION
If you wish to wire transfer funds in payment for vehicles, please download our wire and bank information Here. If you are choosing to use Harley-Davidson® flooring please download the form Here.
When selecting to wire transfer funds, please add the required transfer fee of $30.00 to the invoice amount.
14. CONTENT LICENSE
When you give NPA any Submission, you grant NPA a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to use, reproduce, modify, transmit and distribute such Submission as necessary for NPA to perform its obligations under this Agreement, including without limitation the posting of the Submission information on the Site.
15. CONFIDENTIALITY
You agree that you will (i) hold in trust and confidence and not directly or indirectly disclose any Confidential Information to any third party and (ii) will not use the Confidential Information of NPA except for your own personal use in connection with your activities related to the Site. “Confidential Information” means all information included on or accessible via the Site, except for information that you can document (a) was in the public domain at or subsequent to the time such Confidential Information was posted on the Site through no fault of yours; (b) was rightfully in your possession free of any obligation of confidence at or subsequent to the time such Confidential Information was posted on the Site; or (c) was developed by employees, contractors or agents of yours independently of and without reference to any Confidential Information. You agree that you will, and will require your employees to, treat all Confidential Information with the same degree of care as you accord your own Confidential Information, but in no case less than reasonable care. You shall immediately give notice to NPA of any unauthorized use or disclosure of Confidential Information. You agree to assist NPA in remedying any unauthorized use or disclosure of Confidential Information.
16. NO WARRANTIES
NPA, HDFSI and all their parents, subsidiaries, and affiliates make no representations or warranties of any kind whatsoever regarding any vehicle or any vehicle information listed or posted on the Site. NPA, MANUFACTURER AND ALL THEIR PARENTS, SUBSIDIARIES, AND AFFILIATES DISCLAIM ALL EXPRESS, IMPLIED AND STATUTORY WARRANTIES REGARDING VEHICLES AND INFORMATION INCLUDED ON THE SITE AS WELL AS REGARDING OTHER USERS OF THE SITE, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES, SO SUCH DISCLAIMERS MAY NOT APPLY TO YOU.
You will not hold NPA, HDFS or any of their parents, subsidiaries, or affiliates responsible or liable for other users' actions or inactions, including without limitation with regard to vehicles and information users post on the Site. NPA, HDFSI and all their parents, subsidiaries, and affiliates have no control over and do not guarantee the quality, safety or legality of vehicles advertised, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, that a buyer or seller will actually complete a transaction or the use of the Site for a particular purpose.
NPA, HDFSI and all their parents, subsidiaries, and affiliates do not transfer legal ownership of items from the seller to the buyer, and nothing in this Agreement shall modify the governing provisions of California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller. Unless the buyer and the seller agree otherwise, the buyer will become the item's lawful owner upon physical receipt of the item from the seller, in accordance with California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2).
Further, NPA, HDFSI and all their parents, subsidiaries, and affiliates cannot guarantee continuous or secure access to NPA’s services or the Site, and operation of the Site may be interfered with by numerous factors outside of NPA’s control. Accordingly, to the extent legally permitted, NPA, HDFSI and all their parents, subsidiaries, and affiliates exclude all implied warranties, terms and conditions regarding the Site and the operation of the Site.
17. LIABILITY LIMITS
NPA, MANUFACTURER AND ALL THEIR PARENTS, SUBSIDIARIES, AND AFFILIATES ARE NOT LIABLE FOR ANY LOSS OF MONEY, LOSS OF PROFITS, GOODWILL, OR REPUTATION, OR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF YOUR USE OF THE SITE OR ANY VEHICLE LISTED ON THE SITE. NPA, MANUFACTURER AND ALL THEIR PARENTS, SUBSIDIARIES, AND AFFILIATES ARE NOT LIABLE FOR ANY IMPACT ON YOUR BUSINESS ARISING OUT OF YOUR USE OF THE SITE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF DAMAGES, SO SUCH EXCLUSIONS MAY NOT APPLY TO YOU.
Regardless of the previous paragraph, if NPA is found to be liable, NPA’s liability to you or to any third party is limited to the greater of (a) the total fees you paid to NPA in the 12 months prior to the action giving rise to the liability, and (b) $100.
18. OWNERSHIP
NPA owns all right, title and interest in and to the software and/or technology used on the Site, and NPA grants you a non-exclusive, worldwide license to use the software and/or technology solely in connection with your use of the Site. NPA has no obligation to provide any software or technology to you in connection with this Agreement or your use of the Site.
19. RELEASE
If you have a dispute with one or more users, you release NPA, HDFSI and all their parents, subsidiaries, affiliates, officers, directors, agents, joint ventures and employees, 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. If you are a California resident, you waive California Civil Code §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.”
20. ACCESS AND INTERFERENCE
Much of the information on the Site is updated on a real-time basis and is proprietary or is licensed to NPA by NPA’s users or third parties. You agree that you will not use any robot, spider, scraper or other automated means to access the Site for any purpose without our express written permission.
Additionally, you agree that you will not:
• take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on NPA’s infrastructure;
• copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from the Site without the prior expressed written permission of NPA and the appropriate third party, as applicable;
• interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site; or
• bypass any measures NPA may use to prevent or restrict access to the Site.
21. PRIVACY
NPA collects certain personally identifiable information from you in connection with your use of the Site (e.g., name, address, phone number). NPA does not sell or rent your personal information to third parties for their marketing purposes without your explicit consent. NPA may aggregate your personal information and sell or rent the aggregated information, provided that the aggregate information does not identify you. NPA may provide your personal information to any entity involved in merger, sale of assets or other change of control of NPA. NPA views protection of users’ privacy as a very important community principle. NPA stores and processes your information on computers that are protected by physical as well as technological security devices. You can access and modify the information you provide to NPA, provided that such modifications comply with this Agreement. If you object to your information being transferred or used in this way, please do not use the Site. NPA may share your personal information with HDFSI.
22. INDEMNITY
You will indemnify and hold NPA, HDFSI, and all their parents, subsidiaries, affiliates, officers, directors, agents,, joint ventures and employees, harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of any act, omission, representation by you, or your breach of this Agreement, or your violation of any law or the rights of a third party, including but not limited to infringement of a third party’s intellectual property rights.
23. NO AGENCY
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
24. NOTICES
Except as explicitly stated otherwise, legal notices shall be served on NPA at 13175 Gregg Street, Poway, CA 92064 (in the case of NPA) or to the email address you provide to NPA during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent (in your case), unless NPA is notified that the email address is invalid. Alternatively, NPA may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.
25. RESOLUTION OF DISPUTES
If a dispute arises between you and NPA, NPA’s goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and NPA agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or NPA’s services (a “Claim”) in accordance with one of the subsections below or as NPA and you otherwise agree in writing. Before resorting to these alternatives, NPA strongly encourages you to first contact NPA directly to seek a resolution. NPA will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
• Forum for Disputes - You agree that any claim or dispute you may have against NPA must be resolved by a court located in San Diego County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You hereby submit to the personal jurisdiction and venue of the courts located within San Diego County, California for the purpose of litigating all such claims or disputes.
• Arbitration Option - For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
• Improperly Filed Claims - All claims you bring against NPA must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, NPA may recover attorneys' fees and costs up to $1000, provided that NPA has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
26. GENERAL
If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. In NPA’s sole discretion, NPA may assign this Agreement. Headings are for reference purposes only and do not limit the scope or extent of such section. NPA’s failure to act with respect to a breach by you or others does not waive NPA’s right to act with respect to subsequent or similar breaches. NPA does not guarantee that it will take action against all breaches of this Agreement. NPA may amend this Agreement at any time by posting the amended terms on the Site. Except as stated elsewhere, all amended terms shall automatically be effective thirty (30) days after they are initially posted on the Site. This Agreement may not be otherwise amended except in a writing signed by you and NPA. This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. This Agreement sets forth the entire understanding and agreement between NPA and you with respect to the subject matter hereof. The following Sections survive any termination of this Agreement: 12 (with respect to fees owed for NPA’s services), 15, 16, 18, 19, 21, 22, 23, 24, 25 and 26.
27. TERMINATION AND CHANGES
NPA or HDFSI may change the appearance, content, functionality or pricing of the Site at any time. NPA may terminate or discontinue the Site at any time.
28. CONTACT US
If you have any questions regarding the Site, please contact NPA by sending an email to info@npauctions.com.
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