Boulder County Trader's Terms of Service Agreement
Effective Date: March 15, 2010
Thank you for visiting BoulderCountyTrader.com. The following Terms of Service ("TOS") contains the terms and conditions that govern your use of the website www.BoulderCountyTrader.com (the "Website"). This TOS sets forth the agreement between you and Boulder County Barter Association, LLC ("Boulder County Trader" or "BCT") (collectively, the "Parties") concerning the respective rights and responsibilities of the Parties arising from your use of the Website and Services. Your use of the Website constitutes your acceptance of this TOS. You may not use the Website until you review and agree to this TOS.
1. Services
BCT offers a membership-based online listing service through the Website (the "Services"). The Services allow Users ("Members") to advertise, for a fee, items they have that they wish to sell or trade ("Listings"). The parties acknowledge that BCT does not participate in or coordinate the exchange between Users in any manner. BCT reserves the right to add or delete any of its Services at any time. Users who would like to utilize the Services must establish a Member Profile with BCT. Upon establishing a Member Profile and paying the initial membership fee, you will receive the number of free standard listings offered in the then current published rates and details. Unused listings will not carry over into subsequent membership terms or renewals. BCT may, at its option, offer a number of other additional Services in the future through its Website. If additional Services are offered, BCT may, at its sole discretion, adopt additional rules, regulations or terms of service concerning the additional Services.
2. License for Services and Website
BCT grants you a personal, non-transferable, limited, revocable license to access and use the Website and the Services for their intended purposes only, subject to your compliance with this TOS. You may not collect or otherwise use information contained on the Website for any purpose not directly related to your use of the Website or Services, including, but not limited to, any prohibited purpose as determined by BCT. Examples of "Prohibited Purposes" as used in this Section include, but are not limited to, the creation of unauthorized derivative works based on the Website, making copies of the Website for purposes other than standard web browser caching or use of the information for the purpose of competing with BCT. Any use of the Services or the Website that violates the TOS or the limited license contained herein may result in the immediate, without prior notice, termination and revocation of the license granted to you.
3. Becoming a Member
3.1 Member Account
In order to become a User of the Website, you must set up a Member Profile. In order to set up a Member Profile, you must be at least 18 years of age and hold a valid credit card. Additionally, BCT requires Members to provide a first and last name, a phone number, email address and the billing address of your credit card. BCT reserves the right to validate any of the information you provide in setting up your Member Profile.
3.2 Fees
All Members shall pay an annual fee set at the then current prices published by BCT. Thereafter, Members shall be charged upon the creation of a new Listing in accordance with the then current pricing published by BCT. BCT reserves the right to increase its pricing structure upon 30 days notice to Users.
3.3 Payment of Fees
All fees for the Services shall be paid by credit card. By signing up as a Member, you authorize BCT to bill the credit card you have on file for your annual membership and any listing fees you may incur through your use of the Services. If you wish to terminate use of the Services, no refunds will be made for terminations made during the contract year.
4. Rules & Policies
4.1 Prohibited Uses
Under the limited license granted in Section 2 above, you may only use the Services as expressly permitted by BCT. Prohibited uses include, but are not limited to, the following:
1) any use that interferes with a third party's ability to use or enjoy the Services;
2) any use of the Services that threatens, harasses or intimidates any other User of the Services or any third party;
3) listing or attempting to barter or trade any firearms, alcohol, tobacco, medical marijuana, pornography or any other sexually oriented goods or services;
4) listing or attempting to trade or sell any product that the user knows is defective or has been recalled for safety reasons;
5) any use of the Services that would be illegal or violate any state, local or federal statute, ordinance or regulation;
6) impersonating another individual or entity;
7) any use of spyders, robots or any other device or process to monitor the activity on or copy pages from the Website;
8) reverse engineering, decompiling or disassembling any software or other technology used in conjunction with the Website or the Services;
9) collecting or attempting to collect any electronic information concerning any Users of the Services or Website, such as email addresses or other Personal Information, unless such collection is done in conjunction with the legitimate use of the Services;
10) interfering with or disrupting the Website or Services by using viruses, spyware or any other programs or technology designed to disrupt or damage any software or hardware;
11) use of any meta tags, search terms, key terms or keywords that contain Boulder County Trader's name or trademarks, or the unauthorized use of any name or trademarks of any other person or entity;
12) any use or action that directly or indirectly assists or encourages any third party to engage in the above mentioned prohibited uses or otherwise violates this TOS.
4.2 Privacy Policy
In the course of offering the Services and operating the Website, BCT collects certain Personal Information and Non-Personal Information from you. By entering into this TOS, you agree to BCT's collection, use and disclosure of your Personal Information in accordance with BCT's Privacy Policy, which is hereby incorporated by reference.
5. Listing Services Rules and License
5.1 Listing Services
As part of the Services, BCT allows Members to post Listings of goods or services they would like to barter or sell. In doing so, BCT allows you to upload images, graphics, text or other content (collectively, "User Supplied Content") to the Website in conjunction with your use of the Services. The parties acknowledge that BCT is not responsible for any User Supplied Content uploaded to the Website.
5.2 Delivery of Content
You agree to use the Services and provide the User Supplied Content in accordance with this TOS. BCT reserves the right to monitor the User Supplied Content you upload to the Website and BCT may, at its sole and exclusive discretion, determine whether any User Supplied Content complies with BCT's policies and guidelines. BCT may, at its sole discretion, determine that the User Supplied Content does not satisfy the terms contained in this TOS and refuse to allow the posting or display of the User Supplied Content, or may, in its sole discretion, modify the User Supplied Content.
5.3 User Supplied Content Rules and Policies
1) You may only upload User Supplied Content to the Website that you have legitimate rights to or have permission from the owner to use. By uploading the content, you are warranting to BCT that your use of the User Supplied Content in conjunction with the Services does not violate or infringe on any third party's right in or to the User Supplied Content.
2) Additionally, you may not upload any User Supplied Content or publish listings that:(a) are generally offensive or inappropriate as determined by BCT in its sole discretion; (b) are obscene or pornographic; (c) are libelous, slanderous or otherwise defamatory; (d) are designed or intended to harass, threaten or intimidate others; (e) are in violation of any applicable, rule, law, regulation or ordinance; (f) are exploitative of the images or likeness of minors; (g) are infringing on any right of a third party including, but not limited to, any rights relating to trademarks, copyright, trade secrets, trade dress, patents, rights of publicity or rights of privacy; (h) contain any Users' contact information in the body of the listing.
5.4 Licensing User Supplied Content to BCT
You hereby grant to BCT a royalty-free, worldwide, transferable, non-exclusive right and license to use such User Supplied Content, in all media existing now or created in the future, as BCT deems necessary to allow BCT to satisfy its obligations to you because of your use of the Services including, but not limited to, the right to use any User Supplied Content in advertising or publicizing the Services or utilizing the User Supplied Content in spotlighted, highlighted or featured Listings on the Website. This license remains in effect for the duration that the content is stored on the Website. BCT may sublicense the rights that you grant it in this Section to a third-party subcontractor only for purposes of providing the Services to you. You retain any and all rights in and to the User Supplied Content including, but not limited to, any copyright or trademark rights.
6. Representations and Warranties
6.1 Representations and Warranties of the Parties
The Parties represent and warrant to each other that: (a) they have the full power and authority to enter into and perform under this TOS; (b) the execution and performance of their obligations under this TOS does not constitute a breach of or conflict with any other agreement or arrangement by which either party is bound; and (c) this TOS is a legal, valid and binding obligation of the parties entering into this TOS, enforceable in accordance with their terms and conditions.
6.2 User Representations and Warranties
You represent and warrant to BCT that your use of the Services will not infringe the copyright, trademark, patent, trade secret, right of privacy, right of publicity or any other legal right of any third party and will comply with all applicable laws, rules and regulations. You further represent and warrant to BCT that you are the true owner of the User Supplied Content and that the content is free from any and all liens, encumbrances or any other restrictions on your right to display or use the content, and that there are, to the best of your knowledge, no pending or threatened claims, demands or litigation concerning any of the User Supplied Content. Furthermore, you represent to BCT that BCT will not be required to make any payments such as licensing fees or royalties to any third party in connection with the User Supplied Content. Lastly, you warrant that the User Supplied Content does not violate Sections 4 and 5 of this TOS.
7. Warranty Disclaimer
BCT PROVIDES THE WEBSITE AND THE SERVICES ON AN "AS IS" AND "AS AVAILABLE" BASIS. THE SERVICES PROVIDED HEREIN ARE A LISTING SERVICE ONLY AND BCT DOES NOT ENDORSE OR MAKE ANY REPRESENTATIONS AS TO ANY LISTING'S VERACITY OR ACCURACY. BCT DOES NOT REPRESENT OR WARRANT THAT THE WEBSITE, THE SERVICES OR THEIR USE: (a) WILL BE UNINTERRUPTED, (b) WILL BE FREE OF INACCURACIES OR ERRORS OR (c) WILL MEET YOUR REQUIREMENTS. BCT DOES NOT GUARANTEE ANY SALES OR EXCHANGES THROUGH USE OF THE WEBSITE. BCT MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION: WARRANTIES OF FITNESS FOR A PARTICULAR PUPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
8. Limitations
8.1 EXCLUSION OF DAMAGES
BCT WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, PUNITIVE OR SPECIAL DAMAGES (INCLUDING DAMAGES RELATING TO LOST PROFITS, LOST DATA OR LOSS OF GOODWILL) ARISING OUT OF, RELATING TO OR CONNECTED WITH THE USE OF SERVICES, BASED ON ANY CAUSE OF ACTION, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
8.2 LIMITATION OF LIABILITY
EXCEPT FOR A BREACH OF A PARTY'S REPRESENTATIONS AND WARRANTIES UNDER THIS TOS OR IN CONNECTION WITH YOUR INDEMNITY OBLIGATIONS UNDER THIS TOS, IN NO EVENT WILL BCT'S LIABILITY IN CONNECTION WITH THIS TOS OR THE SERVICES EXCEED THE AMOUNTS PAID BY YOU DURING THE PREVIOUS SIX MONTHS.
9. Indemnification
You will indemnify and hold BCT and its employees, representatives, agents, affiliates, directors, officers, managers and shareholders (the "Indemnified Parties") harmless from any damage, loss or expense, including, without limitation, attorneys' fees and costs incurred in connection with any third-party claim, demand or action (a "Claim") brought against any of the Indemnified Parties due to your use of the Services or alleging that you have breached this TOS through any act or omission. If you are required to indemnify BCT under this Section, BCT will have the right to control the defense, settlement and resolution of any Claim at your sole expense. You may not settle or otherwise resolve any Claim without BCT's prior express written consent.
10. Termination
BCT may suspend or terminate your use of the Website or the Services if it believes, at its sole and absolute discretion, that you have breached a term of this TOS. Notwithstanding BCT's termination of your permission to use the Website or Services, this TOS will survive indefinitely unless and until BCT chooses to terminate it. If you or BCT terminates your use of the Website or the Services, BCT may delete any User Supplied Content or other materials relating to your use of the Services on BCT's servers or otherwise in its possession and BCT will have no liability to you or any third party for doing so. No refunds will be made for termination.
11. Notice
All notices required or permitted to be given under this TOS will be in writing and delivered to the other party by any of the following methods: (a) U.S. mail, (b) overnight courier, (c) electronic mail or (d) if notice is given by BCT, by a posting on the main page of the Website. If you give notice to BCT, you must use the following address: P.O. Box 270488, Louisville CO 80027. If BCTprovides notice to you, BCT will use the contact information provided by you to BCT It is your responsibility to keep your contact information up to date. All notices will be deemed received as follows: (a) if by delivery by U.S. mail, seven (7) business days after dispatch, (b) if by overnight courier, on the date receipt is confirmed by such courier service or (c) if by electronic mail, 24 hours after the message was sent, if no "system error" or other notice of non-delivery is generated. If applicable law requires that a given communication be "in writing," you agree that email communication or posting such notice on the Website will satisfy this requirement.
12. Dispute Resolution
12.1 Disputes between you and BCT Any and all disputes arising out of, relating to or connected with this TOS or your use of any part of the Services or the Website will be exclusively resolved in the State Court of Boulder County or Federal courts in the City and County of Denver, Colorado. Each party hereby irrevocably submits to the personal jurisdiction of the Federal and Colorado State courts in the City and County of Denver, Colorado. By entering into this TOS, you hereby irrevocably waive any right you may have to join claims with those of others in the form of a class action or similar procedural device. Any claim arising out of, relating to or connected with this TOS or your use of any part of the Services or the Website must be asserted individually. Notwithstanding anything to the contrary in this Section, BCT may seek equitable relief including, without limitation, injunctive relief and specific performance, without the requirement of posting a bond or other security or proving money damages are insufficient, from a court of competent jurisdiction.
12.2 Disputes between Website Users
BCT has no obligation to mediate, arbitrate or otherwise be involved or participate in any dispute between Website Users. However, BCT encourages Website Users to inform us when such problems exist. Any disputes that may arise between any Users of the Website shall be remedied solely by the parties involved. BCT recommends the use of a barter contract when engaging in barter transactions. BCT has provided a sample barter contract on the Website. THIS CONTRACT IS PROVIDED AS AN EXAMPLE OF WHAT A BARTER CONTRACT MAY LOOK LIKE FOR YOUR EDUCATIONAL PURPOSES ONLY AND DOES NOT CONSTITUTE LEGAL ADVICE. BCT PROVIDES THE BARTER CONTRACT "AS IS." BCT DOES NOT REPRESENT OR WARRANT THAT THE BARTER CONTRACT IS LEGALLY BINDING, FREE OF INACCURACIES OR ERRORS, OR WILL MEET YOUR REQUIREMENTS. BCT MAKES NO WARRANTIES OTHER THAN THOSE MADE EXPRESSLY IN THIS TOS, AND HEREBY DISCLAIMS ANY AND ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION: WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY AND NON-INFRINGEMENT.
13. Choice of Law
This TOS, and any other Agreement incorporated by reference in this TOS, shall be governed by laws of the State of Colorado, without regard to its conflicts of laws principles.
14. Assignment
The TOS will be binding upon each party hereto and its successors and permitted assigns. This TOS or User Accounts cannot be assignable or transferable by you without the prior written consent of BCT.
15. Entire Agreement
This TOS and all of the policies and other Agreements mentioned in this TOS, which are each hereby incorporated herein by reference, contain the entire understanding of the parties regarding its subject matter and supersede all prior and contemporaneous agreements and understandings between the parties regarding its subject matter.
16. No Waiver
No failure or delay by a party in exercising any right, power or privilege under this TOS will operate as a waiver thereof, nor will any single or partial exercise of any right, power or privilege preclude any other or further exercise thereof or the exercise of any other such right, power or privilege.
17. No Partnership or Joint Venture
You and BCT are independent contractors, and no agency, partnership, joint venture or employee-employer relationship is intended or created by this TOS.
18. Severability
The invalidity or unenforceability of any provision of this TOS will not affect the validity or enforceability of any other provisions of this TOS, all of which will remain in full force and effect.
19. General
19.1 Intellectual Property Rights
All intellectual property rights and all other rights, title and interest in and to the Services and Website, except as expressly provided for in the TOS, are and shall remain the exclusive property of BCT. Such rights include, but are not limited to, any and all trademark rights including rights to the mark BOULDER COUNTY TRADER; all copyrights in and to the Website; and any proprietary rights used in providing the Service, including, but not limited to, computer software and hardware interfaces. You cannot acquire any right, title or interest in or to the above mentioned rights through your use of the Services or Website under this TOS or otherwise.
19.2 Rights to Submissions and Other Information
By your use of the Services or Website, you consent and agree that any questions, comments, suggestions, ideas or any other information, whether submitted via email, telephone, U.S. mail, Fax or context submission, or appearing on any message board or chat group, or User Supplied Content (collectively "Submitted Information"), are not considered confidential, and you hereby grant BCT permission to use such Submitted Information for marketing and other promotional purposes without any payment to you, including the right to sublicense. Furthermore, you agree that BCT will have no obligation to keep any Submitted Information confidential. For the avoidance of doubt, the exclusion of any obligation to keep Submitted Information confidential does not pertain to anything that is defined as Personally Identifiable information in the BCT Privacy Policy. You will not bring a claim and hereby forever waive any and all claims against BCT based on "droit moral," moral rights, or any other legal or equitable theory from BCT's use of the Submitted Information.
19.3 Age
In order to use the Services, you must be of sufficient age that you can lawfully enter into and form contracts under applicable law (generally 18 years of age). If you are under the age of 18, but at least 13 years of age, you may use the Services only through the account and under the direct supervsion of a parent or legal guardian who agrees to be bound by the TOS. The Services are not intended for and may not be used by children under the age of 13.
19.4 Monitoring
BCT reserves the right, but does not assume the obligation, to monitor transactions and communications that occur through the Website. If BCT determines, at its sole and absolute discretion, that you or another BCT User has breached or is attempting to breach a term or condition of this TOS or that such listing or communication is inappropriate, BCT may cancel such listing or take any other action to restrict access to or the availability of any material that may be considered objectionable, without any liability to you or any third party.
19.5 Modification of the Service
BCT reserves the right to add, delete and/or modify any of the terms and conditions contained in this TOS, at any time and at its sole discretion, by posting a change notice or a new agreement on the Website without any further notice to you. For certain changes to the TOS, BCT may, at its option, notify you by email at the email address in our then current records, by posting a notice in the "News" box in your BCT account area or by posting a notice in the "What's Up" box on the BCT home page. If any modification is unacceptable to you, your only recourse is to discontinue the use of our Website and Services. Your continued use of the BCT Website following the posting of a change notice or new TOS on the Website will constitute affirmative and binding acceptance by you of the changes.
19.6 Third-Party Services
BCT may, in its absolute discretion, use third parties to provide certain Services. These third-party independent contractors and vendors are not related to BCT and BCT does not exercise any control or supervision over such contractors and vendors or the Services that they provide. You agree that BCT will not be liable to you in any way for the use of such third-party Services. These third parties may have their own terms of use and other policies that govern their Services. By utilizing these Services, you agree to comply with such terms and policies. In the event of a conflict between BCT's and a third party's TOS, rules or policies, BCT's TOS, rules or policies shall govern.
19.7 Compliance with TOS and Applicable Law
You must comply with all of the terms and conditions of this TOS, the applicable agreements and policies referred to above and all applicable laws, regulations and rules when you use the Services and the Website.
19.8 Taxes
Users may be liable for federal, state and local taxes on items that are bartered. BCT does not track or keep information on User's trade or the dollar value connected therewith. It is a User's responsibility to determine if any of their activities incur any tax liability and to track the value of their trades. BCT suggests Users consult a qualified tax professional before utilizing the Services. |
