last updated: 5/11/2017
PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, INCLUDING THE MANDATORY ARBITRATION PROVISION WHICH REQUIRES THAT DISPUTES ARE RESOLVED BY FINAL AND BINDING ARBITRATION ON AN INDIVIDUAL AND NOT A CLASS‐WIDE OR CONSOLIDATED BASIS.
These Terms and Conditions (“Agreement”) govern the relationship between ecoATM, LLC. (“ecoATM,” “we,” or “us”) and you with respect to your use of our kiosks, websites, and other online or mobile services or applications (collectively, the “Services”). BY ACCESSING OR USING OUR SERVICES, YOU AGREE TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, DO NOT ACCESS OR USE OUR SERVICES.
We reserve the right to change or modify this Agreement at any time and in our sole discretion. If we make changes to this Agreement, we will provide you with notice of such changes, such as by providing notice through the Services or updating the "Last Updated" date at the top of this Agreement. By continuing to use the Services after such notice is provided, you confirm your acceptance of the modified Agreement. If you do not agree to the modified Agreement, you must stop using our Services.
You must be 18 or older to use our Services. You represent and warrant that you have full power and authority to enter into this Agreement and that, in doing so, you will not violate any other agreement to which you are a party. Our kiosks request certain information about you. In order to use our Services, you must provide certain information about yourself and the
electronic device that you provide to ecoATM for sale (“Device”), including, without limitation, a scan of your driver’s license or other government identification, and any other information requested by us, such as your fingerprint (“User Data”). You agree to provide accurate, current and complete User Data. You acknowledge and agree that ecoATM will collect and store your User Data and that it may be used and shared with law enforcement and others to prevent fraud and help investigate crimes. You agree to, and release ecoATM from any liability in connection with, these activities.
We will determine, in our sole discretion, whether to present an offer to purchase your Device. All offers to purchase a Device are made solely on behalf of ecoATM , prices will be displayed in U.S. dollars, and are relating to sale of a Device utilizing and ecoATM kiosk. You acknowledge and agree that we may rely upon any User Data you provide when we make our offer or complete the purchase of a Device. Subject to section 21 of this Agreement, all purchases made by ecoATM are final, and there are no returns or refunds, except as required by law. Once a
transaction has been completed, ecoATM will have no obligation to return any Device, subject to section 21.
ecoATM does not guarantee or warrant that data, photos, emails, notes and/or other files on your Device (“Device Data”) will be removed from your Device. You agree to remove all Device Data before providing your Device to us. You hereby release and hold ecoATM harmless from any access or use of any Device Data by ecoATM or any third parties that may subsequently acquire the Device. ecoATM shall not be responsible or have any liability for any losses suffered by you as a result of any Device Data that is accessible from a Device. YOUR PROVISION OF ANY DEVICE, INCLUDING ANY DEVICE DATA ACCESSIBLE THEREIN, TO ECOATM IS AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ECOATM HEREBY DISCLAIMS ANY AND ALL LIABILITY TO YOU FOR ANY LOSS OR LIABILITY RELATING TO YOUR DEVICE OR ANY DEVICE DATA ACCESSIBLE THEREIN.
5. Your Sale Obligations
You represent, warrant and agree that:
6. Biometric Collection Acknowledgment and Release
You acknowledge and agree that ecoATM may collect and store your fingerprint and that it may be used and shared with law enforcement and others to prevent fraud and help investigate crimes. You further understand that ecoATM will use and store your fingerprint only for as long as necessary to prevent fraud and investigate crimes, or as required under applicable law, unless a longer retention period is required by subpoena, warrant, court order, or another legal requirement. You agree to, and release ecoATM from any liability in connection with these
7. ecoTEXT Program
We may provide you with an opportunity to opt in to the ecoTEXT program. By opting in, you provide express written consent to receive automated commercial and informational text messages from us at the mobile number your provide. Message and data rates may apply to text messages and consent to the ecoTEXT program is not a condition of sale. You acknowledge that the content of our messages may contain materials copyrighted by us or third parties. Copyrighted materials cannot be copied, modified, publicly displayed or distributed by any means without the explicit permission of the copyright holder.
In accordance with the Digital Millennium Copyright Act (“DMCA”) and other applicable law, ecoATM has adopted a policy of terminating, in appropriate circumstances and at our sole discretion, users who are deemed to be repeat infringers. We may also limit access to our Services if any users infringe the intellectual property rights of others, whether or not there is any repeat infringement.
If you believe that anything on the Services infringes upon any copyright which you own or control, you may file a notification of such infringement with our Designated Agent as set forth below:
Name of Designated Agent: David Mersten, VP, Legal
Address of Designated Agent: 10121 Barnes Canyon Rd., San Diego, CA 92121
Telephone Number of Designated Agent: 858‐766‐7520
Facsimile Number of Designated Agent: 858‐597‐9830
E‐Mail Address of Designated Agent: email@example.com
Please see 17 U.S.C. §512(c)(3) for the requirements of a proper notification. You should note that if you knowingly misrepresent in your notification that the material or activity is infringing, you will be liable for any damages, including costs and attorneys' fees, incurred by us or the alleged infringer as the result of our relying upon such misrepresentation in removing or disabling access to the material or activity claimed to be infringing.
The information and materials provided through the Services, including any data, text, graphics, images, audio and video clips, logos, icons, software and links, and any intellectual property contained therein, (collectively, the “Materials”) constitute the property of ecoATM or its licensors or suppliers. You are granted a limited, non‐sublicensable license to access and use the Materials for your personal use; provided, however, that such license does not include the right to (a) use unauthorized data gathering or extraction methods, (b) access or use the Materials other than for their intended purposes, or (c) distribute, modify, transmit or publicly display the Materials without the written consent of ecoATM or its licensors or suppliers. The Materials and the selection, compilation, collection, arrangement and assembly thereof are protected by U.S. and international copyright, trademark and other laws, and you acknowledge that these rights are valid and enforceable. You acknowledge that you do not acquire any ownership rights by accessing or using the Materials.
The trademarks, logos, and service marks displayed on the Services (collectively the
“Trademarks”) are the registered and unregistered trademarks of ecoATM and our licensors and suppliers. The Trademarks owned by ecoATM, whether registered or unregistered, may not be used in connection with any product or service that is not ecoATM’s, in any manner that is likely to cause confusion with customers, or in any manner that disparages ecoATM. Nothing contained in the Services should be construed as granting, by implication, estoppel or otherwise, any license or right to use any Trademark without the express written permission of ecoATM or our licensors or suppliers. The terms “Materials” and “Trademarks” as used in this Agreement do not include third party trademarks, intellectual property, or other content or material owned by third parties and not covered under a license with ecoATM.
You are granted a limited, non‐exclusive right to create a text hyperlink to our websites for noncommercial purposes, provided that such link does not portray ecoATM or any of our products and services in a false, misleading, derogatory or otherwise defamatory manner and provided further that the linking site does not contain any adult or illegal material or any material that is offensive, harassing or otherwise objectionable. This limited right may be revoked at any time. You may not use ecoATM’s logo or other proprietary graphics to link to our websites without our express written permission. Further, you may not use, frame or utilize framing techniques to enclose any ecoATM trademark, logo or other proprietary information, including the images found on the Services, the content of any text or the layout/design of any page or form contained on the Services without our prior written consent. Except as noted above, you are not conveyed any right or license by implication, estoppel or otherwise in or under any patent, trademark, copyright or proprietary right of ecoATM or any third party.
ecoATM makes no claim or representation regarding, and accepts no responsibility for, the quality, content, nature or reliability of third party websites accessible by hyperlink from our Services or of websites that link to our Services. Such sites are not under the control of ecoATM and ecoATM is not responsible for the contents of any linked site or any link contained in a linked site, or any review, changes or updates to such sites. We provide these links to you only as a convenience, and the inclusion of a link does not imply affiliation, endorsement or adoption by ecoATM of any site or any information contained therein. You should also be aware that when you interact with these third party websites, the terms and policies of those third party websites will govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any site to which you navigate from our Services.
We may provide third party content on the Services as a service to those interested in this information. We do not control, endorse or adopt any third party Content and make no representations or warranties of any kind regarding such content, including without limitation, regarding its accuracy or completeness. You acknowledge and agree that we are not responsible or liable in any manner for any third party content and undertake no responsibility to update or review such content. You access and use such content at your own risk.
Our Services allow you to access Google Maps. Please note that when you use Google Maps, you are subject to Google’s Terms of Service (available at http://www.google.com/policies/terms/), as amended by Google from time to time.
We may display advertisements and promotions from third parties on our Services or may otherwise provide information about or links to third party products or services. ecoATM does not endorse or make any representations or warranties regarding any third party products, services, promotions or vendors. Your business dealings or correspondence with, or participation in promotions of, such third parties, and any terms, conditions, warranties or representations associated with such dealings or promotions, are solely between you and such third party. We are not responsible or liable in any manner for any third party products or services, for any loss or damage of any sort incurred as the result of any products, services, dealings or promotions or as the result of the presence of such third party information on the Services.
You acknowledge and agree that any materials, including but not limited to questions,
comments, suggestions, ideas, plans, notes, drawings, originals or creative materials or other information that you provide to ecoATM regarding our products or services are nonconfidential and shall become the sole property of ecoATM. We shall own exclusive rights, including all intellectual property rights, and shall be entitled to the unrestricted use and dissemination of these materials for any purpose, commercial or otherwise, without acknowledgement or compensation to you.
The Services may include interactive areas or services (“Interactive Areas”), such as forums, chat rooms. message boards, online hosting or storage services, or other areas or services in which you or other users can create, post or store content, messages, materials, data, information, text, music, sound, photos, video, graphics, applications, code or other items or materials (“User Content”). You are solely responsible for your use of such Interactive Areas and use them at your own risk. You agree not to post, upload to, transmit, distribute, store, create or otherwise publish through the Services any of the following:
You further agree that you are solely responsible for your conduct, and you agree that you will not do any of the following in connection with the Services or our users:
ecoATM takes no responsibility and assumes no liability for any User Content posted, stored or uploaded by you or any third party, or for any loss or damage thereto, or for any user conduct, nor are we liable for any mistakes, defamation, slander, libel, omissions, falsehoods, obscenity, pornography or profanity you may encounter. Enforcement of this section of the Agreement is solely at our discretion, and failure to enforce these terms in some instances does not constitute a waiver of our right to enforce the terms in other instances. In addition, these terms do not create any private right of action on the part of any third party or any reasonable expectation that the Services will not contain content that is prohibited by this Agreement. As a provider of interactive services, we are not liable for User Content and have no obligation to screen, edit or monitor such content. We do, however, reserve the right, and have absolute discretion, to remove, screen or edit any User Content posted or stored on the Service at any time and for any reason, and you are solely responsible for creating backup copies of and replacing any User Content you post or store at your sole cost and expense. Any use of the Interactive Areas or other portions of the Services in violation of the foregoing violates this Agreement and may result in, among other things, termination or suspension of your rights to use the Interactive Areas and/or the Services.
If you submit or post User Content to the Services, unless we indicate otherwise, you grant ecoATM a nonexclusive, royalty‐free, perpetual, irrevocable and fully sublicensable right to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display such User Content throughout the world in any media. You grant ecoATM and our sublicensees the right to use the name that you submit in connection with such content, if they choose.
By submitting or posting User Content to the Services, you represent and warrant that: (a) such User Content is non‐confidential; (b) you own and control all of the rights to the User Content that you post or you otherwise have all necessary rights to post such User Content to the Services; (c) the User Content is accurate and not misleading or harmful in any manner; and (d) the User Content, and your use and posting thereof in connection with the Services, does not and will not violate this Agreement or any applicable law, rule or regulation.
The Services are solely directed to individuals residing in the United States. We make no representation that the Services, including all Materials contained therein, are appropriate or available for use in locations outside the United States.
NEITHER ECOATM NOR ANY OF OUR AFFILIATES, LICENSORS, SUPPLIERS, ADVERTISERS OR SPONSORS, NOR OUR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, CONSULTANTS, AGENTS OR OTHER REPRESENTATIVES, ARE RESPONSIBLE OR LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE OR OTHER DAMAGES (INCLUDING, WITHOUT
LIMITATION, DAMAGES FOR LOSS OF BUSINESS, LOSS OF DATA OR LOST PROFITS), UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY ARISING OUT OF OR RELATING IN ANY WAY TO THE SERVICES OR MATERIALS. YOUR SOLE REMEDY FOR DISSATISFACTION WITH THE SERVICES OR MATERIALS IS TO STOP USING THE SERVICES. THE SOLE AND EXCLUSIVE
MAXIMUM LIABILITY OF ECOATM FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION, WHETHER IN CONTRACT, TORT (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE) OR OTHERWISE, SHALL BE LIMITED TO FIFTY DOLLARS ($50). SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, THUS THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
You agree to indemnify, defend and hold ecoATM and our affiliates, licensors, suppliers, advertisers and sponsors, and our respective directors, officers, employees, consultants, agents and other representatives, harmless from and against any and all claims, damages, losses, costs (including reasonable attorneys’ fees) and other expenses that arise directly or indirectly out of or from (a) your breach of this Agreement; (b) your activities in connection with the Services; (c) any User Content you post, store or otherwise transmit on or through the Services; (d) any feedback you provide; and (e) your violation of the rights of any third party.
If this purchase occurs at an ecoATM located in the State of Michigan, you have the ability to repurchase the Device from ecoATM at a stipulated price (the “Buyback”).
The Buyback may only occur within thirty (30) days from the date of this purchase (the“Redemption Period”).
You agree to remove all Device Data before providing your Device to us, regardless of whether you intend to repurchase the Device.
ecoATM does not guarantee or warrant that data, photos, emails, notes and/or other files on the Device (“Device Data”) will remain on the Device after the date of the Purchase, to include during the Redemption Period.
You understand and agree that return of the Device may take up to 3 weeks after you request to repurchase the Device and have completed all steps necessary to Buyback the device.
You understand and agree that your ability to Buyback the Device is terminated if the Device is shipped to or requested by law enforcement for any reason.
22. Arbitration; Applicable Law and Venue
PLEASE READ THE FOLLOWING PARAGRAPH CAREFULLY BECAUSE IT REQUIRES YOU TO ARBITRATE DISPUTES WITH ECOATM AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM US.
You and ecoATM agree to arbitrate any dispute arising from this Agreement or your use of the Services, except that you and ecoATM are not required to arbitrate any dispute in which either party seeks equitable and other relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. ARBITRATION PREVENTS YOU FROM SUING IN COURT OR FROM HAVING A JURY TRIAL.
You and ecoATM agree that you will notify each other in writing of any dispute within thirty (30) days of when it arises. Notice to ecoATM shall be sent to firstname.lastname@example.org. You and ecoATM further agree: (a) to attempt informal resolution prior to any demand for arbitration; (b) that any arbitration will occur in the County of San Diego, California; (c) that arbitration will be conducted confidentially by a single arbitrator in accordance with the rules of JAMS; and (d) that the state or federal courts in the County of San Diego, California have exclusive jurisdiction over any appeals of an arbitration award and over any suit between the parties not subject to arbitration. Other than class procedures and remedies discussed below, the arbitrator has the authority to grant any remedy that would otherwise be available in court.
Any dispute between the parties will be governed by this Agreement and the laws of the State of California and applicable United States law, without giving effect to any conflict of laws principles that may provide for the application of the law of another jurisdiction. WHETHER THE DISPUTE IS HEARD IN ARBITRATION OR IN COURT, YOU AND ECOATM WILL NOT COMMENCE AGAINST THE OTHER A CLASS ACTION, CLASS ARBITRATION OR OTHER REPRESENTATIVE ACTION OR PROCEEDING.
We reserve the right, without notice and in our sole discretion, to terminate your license to use the Services and to block or prevent your future access to, and use of, the Services.