Effective Date: March 8, 2019
ModuGo, LLC operates online marketplaces for the purchase and sale of modular buildings of all types (“Units”).
This User Agreement (this “Agreement”) is a contract between you (“you”, “User”, “Seller”, “Buyer” or “Shipper”) and ModuGo, LLC (“ModuGo”, “ModuGo”, “we”, or “us”), located at 206 E. Huron St., Ann Arbor, Michigan, 48104. You must read, agree to, and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.ModuGo.com (http://www.ModuGo.com), and all affiliated websites, including mobile websites, owned and operated by us or our successors in interest (collectively, the “Site”), all services, applications and products that are accessible through the Site and all ModuGo mobile applications that link to or reference this Agreement (“Site Services”) whether provided by us or our Affiliates.
Subject to the conditions set forth herein, ModuGo may, in its sole discretion, amend this Agreement and the other Terms of Service or Terms & Conditions at any time by posting a revised version on the Site and will provide reasonable advance notice of any amendment that includes a substantial change, in our discretion. If the substantial change includes an increase to the fees charged by ModuGo, ModuGo will provide at least 10 days’ advance notice of the change, but may not provide any advance notice for changes resulting in a reduction in fees or any temporary or promotional fee change. Any revisions to the Terms of Service will take effect on the noted effective date or when posted if there is no noted effective date (each, as applicable, the “Effective Date”).
Your continued use of the Site or the Site Services after the Effective Date of a revised version of this Agreement or of any other Terms of Service constitutes your acceptance of and agreement to be bound by the Terms of Service as revised. In the event of a conflict between this Agreement and the other Terms of Service, this Agreement will control unless the other Agreement explicitly states that it controls. Capitalized terms are defined throughout this Agreement and in Section 20 (Definitions).
By registering for a ModuGo account on the Site (an “Account”), or by clicking to accept the Terms of Service when prompted on the Site, you are deemed to have executed this Agreement and the other Terms of Service electronically, effective on the date you register your Account or click to accept the Terms of Service, pursuant to the U.S. Electronic Signatures in Global and National Commerce Act (the E-Sign Act) (15 USC §§ 7001 et seq.). Your Account registration constitutes an acknowledgement that you are able to electronically receive, download, and print this Agreement, the other Terms of Service, and any amendments.
In connection with the Terms of Service, you may be entitled to receive certain records from ModuGo, such as contracts, notices, and communications, in writing. To facilitate your use of the Site and the Site Services, you give us permission to provide these records to you electronically instead of in paper form.
2.1 Your Consent and Your Right to Withdraw Consent. By registering for an Account, you consent to electronically receive and access, via email or the Site, all records and notices for the services provided to you under the Terms of Service that we would otherwise be required to provide to you in paper form. However, we reserve the right, in our sole discretion, to communicate with you via the U.S. Postal Service and other third party mail services using the address under which your account is registered. Your consent to receive records and notices electronically will remain in effect until you withdraw it. You may withdraw your consent to receive further records and notices electronically at any time by contacting Customer Support. If you withdraw your consent to receive such records and notices electronically, we will revoke your access to the Site and the Site Services, and you will no longer be permitted to use the Site or the Site Services. Any withdrawal of your consent to receive records and notices electronically will be effective only after we have a reasonable period of time to process your request for withdrawal. Please note that your withdrawal of consent to receive records and notices electronically will not apply to records and notices electronically provided by us to you before the withdrawal of your consent becomes effective.
2.2 Keeping Your Address and Email Address Current With Us. order to ensure that we are able to provide records and notices to you electronically, you agree to notify us immediately of any change in your email address by updating your Account information on the Site or by contacting Customer Support. In addition, so that we may communicate with you via the U.S. Postal Service and other third-party mail services, you agree to notify us immediately of any change in your address.
2.3 Hardware and Software Requirements. To access and retain the records and notices we provide to you electronically, you will need: (a) a valid email address; (b) a computer system that operates on a platform like Windows or Mac; (c) a connection to the Internet; (d) Current Versions of the software, browsers, plug-ins, or other computer applications and programs identified on the Site (Users utilizing other browsers may experience compatibility difficulties); (e) a Current Version of a program that accurately reads and displays PDF files, such as the Current Version of Adobe Acrobat Reader; (f) a computer and an operating system capable of supporting all of the above; and (g) a printer to print out and retain records and notices in paper form or electronic storage to retain records and notices in an electronic form. By “Current Version”, we mean a version of the software that is currently being supported by its publisher. We may change these requirements from time to time and will update this Agreement accordingly. You should retain a copy of all of the records and notices we send to you electronically.
By accepting and agreeing to this Agreement and the other Terms of Service electronically, you represent that (x) you have read and understand the above consent to receive records and notices electronically; (y) you satisfy the minimum hardware and software requirements specified above; and (z) your consent will remain in effect until you withdraw your consent as specified above.
3.1 Account Eligibility. To use the Site and certain Site Services, you must register for an Account as a Buyer (“Buyer Account”), as a Seller (“Seller Account”) and/or as a Shipper (“Shipper Account”). By registering for an Account, by using the Site or Site Services after the Effective Date if you had an account on the Effective Date, or by clicking to accept the Terms of Service when prompted on the Site, you agree to abide by this Agreement and the other Terms of Service. ModuGo reserves the right, in our sole discretion, to refuse, suspend, or revoke your access to the Site and Site Services upon discovery that any information you provided on any form or posted on the Site is not true, accurate, or complete, or such information or other conduct otherwise violates the Terms of Service, or for any other reason or no reason in ModuGo's sole discretion.
You represent that you are not: (x) a citizen or resident of a geographic area in which access to or use of the Site or Site Services is prohibited by applicable law, decree, regulation, treaty, or administrative act; (y) a citizen or resident of, or located in, a geographic area that is subject to U.S. or other sovereign country sanctions or embargoes; or (z) an individual or an individual employed by or associated with an entity, identified on the U.S. Department of Commerce's Denied Persons or Entity List, the U.S. Department of Treasury's Specially Designated Nationals or Blocked Persons Lists, or the U.S. Department of State's Debarred Parties List or otherwise ineligible to receive Units subject to U.S. export control laws and regulations or other economic sanction rules of any sovereign nation. You agree that if your country of residence or other circumstances change such that the above representations are no longer accurate that you will immediately cease using the Site and Site Services
3.2 Buyer Account. To register a Buyer Account as an individual, you must be 18 years or older and able to form legally binding contracts. To register a Buyer Account on behalf of a business, you must have, and you hereby represent that you have an independent business (whether it be as a self-employed individual or sole proprietor), or that you are an employee or other authorized representative of a business entity recognized by and in good standing under state law; and further represent that you intend to use the Site and Site Services for your business purposes only. You understand that you must comply with any licensing or registration requirements with respect to your business, and you hereby represent that you comply with all such requirements. You understand and agree that you will maintain insurance liability coverage in amounts typical to the Buyer’s industry.
3.3 Seller Account. To register a Seller Account, you must be 18 years or older and able to form legally binding contracts; additionally, you must have, and you hereby represent that you have an independent business (whether it be as a self-employed individual or sole proprietor), or that you are an employee or other authorized representative of a business entity recognized by and in good standing under state law; and further represent that you intend to use the Site and Site Services for your business purposes only.
Payment processing services for Seller Account on the Site are provided by Stripe, Inc. (“Stripe”) and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to operate a Seller Account on the Site, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of ModuGo enabling payment processing services through Stripe, you agree to provide ModuGo accurate and complete information about you and your business, and you authorize ModuGo to share it and transaction information related to your use of the payment processing services provided by Stripe.
You understand and agree that you are solely responsible for and will pay all applicable state or local sales taxes to the applicable jurisdiction including, without limitation sales and use tax. You understand and agree that you must comply with any licensing or registration requirements with respect to your business, and you hereby represent that you comply with all such requirements. You understand and agree that you will maintain insurance liability coverage in amounts typical to the Seller’s industry.
3.4 Shipper Account. To register a Shipper Account, you must be 18 years or older and able to form legally binding contracts; additionally, you must have, and you hereby represent that you have an independent business (whether it be as a self-employed individual or sole proprietor), or that you are an employee or other authorized representative of a business entity recognized by and in good standing under state law; and further represent that you intend to use the Site and Site Services for your business purposes only.
Payment processing services for Shipper Account on the Site are provided by Stripe, Inc. (“Stripe”) and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continuing to operate a Shipper Account on the Site, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of ModuGo enabling payment processing services through Stripe, you agree to provide ModuGo accurate and complete information about you and your business, and you authorize ModuGo to share it and transaction information related to your use of the payment processing services provided by Stripe.
You understand and agree that you must comply with any licensing or registration requirements with respect to your business, and you hereby represent that you comply with all such requirements. You understand and agree that you will maintain insurance liability coverage in amounts typical to the Shipper’s industry.
3.5 Account Registration; Profile. By registering for an account, you must complete a User profile (“Profile”), which you consent to be shown to other Users. You agree to provide true, accurate, and complete information on your Profile and all registration and other forms you access on the Site or provide to us and to update your information to maintain its truthfulness, accuracy, and completeness. You agree not to provide and to correct any information about your location, your business, or the services your business provides that is or becomes false or misleading. You agree not to ask or allow another person to create an Account on your behalf, for your use, or for your benefit.
3.6 Identity Verification. When you register for an Account and from time to time thereafter, your Account will be subject to verification, including, but not limited to, validation of an account in good standing with Stripe, validation against third-party databases or the verification of one or more official government or legal documents that confirm your identity and your ability to represent your business on ModuGo, if it is a separate legal entity. You authorize ModuGo, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts, subject to applicable law. When requested, you must provide us with information about you and your business.
ModuGo does not approve the fitness of a Seller, a Buyer or a Shipper, or the ability of a Seller, a Buyer or Shipper to successfully complete a transaction.
3.7 Usernames and Passwords. When you register for an Account, you will be asked to choose a username and password for the Account. You are entirely responsible for safeguarding and maintaining the confidentiality of your Account username and password. You authorize ModuGo to assume that any person using the Site with your username and password either is you or is authorized to act for you. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or any unauthorized access to your password or the password of any User of your Account (or any related Agency Account). You further agree not to use any username, or password of another User of the Site that you are not authorized to use, and not to allow others who are not authorized to do so to use your Account at any time.
3.8 Marketplace Feedback. You acknowledge and agree that feedback benefits the marketplace, all Users, and the efficiency of the Site and you specifically request that ModuGo post Composite Feedback about Users, including yourself, on User Profiles and elsewhere on the Site. You acknowledge and agree that feedback results for you will consist of comments, ratings, indicators of User satisfaction, and other feedback left by other Users. You further acknowledge and agree that ModuGo reserves the right to monitor, display, or remove feedback results that are available to other marketplace Users, including Composite Feedback. ModuGo provides this feedback system as a means through which Users can share their opinions publicly; ModuGo monitors and may censor, display, or remove these opinions. You acknowledge and agree that posted Composite Feedback relate only to the business advertised in the User Profile and not to any individual person. You agree not to use the feedback to make any employment, credit, credit valuation, underwriting, or other similar decision about any other User.
ModuGo reserves the right to investigate any remarks posted by Users for accuracy or reliability and reserves the right to do so if a User requests that ModuGo investigate. You may be held legally responsible for damages suffered by other Users or third parties as a result of your remarks if such remarks are legally actionable or defamatory. ModuGo is not legally responsible for any feedback or comments posted or made available on the Site by any Users or third parties, even if that information is defamatory or otherwise legally actionable. In order to protect the integrity of the feedback system and protect Users from abuse, ModuGo reserves the right (but is under no obligation) to remove posted feedback or information that in ModuGo's sole judgment violates the Terms of Service or negatively affects our marketplace. You acknowledge and agree that you will notify ModuGo of any error or inaccurate statement in your feedback results, and that if you do not do so, ModuGo may rely on the accuracy of such information.
You hereby acknowledge and agree that ModuGo may provide information on the Site about a Seller, a Buyer, or Shipper such as feedback, Composite Feedback, including geographical location, or verification of identity or credentials. However, such information is based solely on data that Sellers, Buyers and Shippers voluntarily submit to ModuGo and does not constitute and will not be construed as an introduction, endorsement, or recommendation by ModuGo; ModuGo provides such information solely for the convenience of Users.
4.1 Fees. The fees to use the Site and Site Services are listed on our Fees and Fee Policies page (https://www.ModuGo.com/legal/fees). ModuGo may change the Fees and Fee Policies from time to time by posting the changes on our Site 10 days in advance, but with no advance notice required for temporary promotions or any changes that result in a reduction in fees.
If you fail to pay the applicable Fees owed to ModuGo, we may collect fees owed to us by charging other payment methods on file with us, retain collection agencies and legal counsel, or take any other legal measures available to us.
4.2 Stripe Account; Procedures and Standards. You must have an active account in good standing with Stripe. You must comply with all terms and conditions, rules, and procedures associates with the Stripe Connected Account Agreement and must pay all fees and applicable taxes associated with the Transaction. You must not circumvent or attempt to circumvent Stripe fees or other requirements.
Stripe determines, in its sole discretion, whether you qualify to establish and continue to hold a Stripe account.
ModuGo has no access to the information that Sellers or Shippers submit to Stripe in order to establish or maintain a Stripe account; ModuGo is not a party to the Stripe Connected Account Agreement between Stripe and a Seller or a Shipper. Seller’s or Shipper’s failure to maintain an active account in good standing with Stripe will result in termination of this Agreement.
4.3 Transactions Between Sellers, Buyers and Shippers. ModuGo does not introduce Sellers, Buyers and/or Shippers and ModuGo is not a party to any transaction. ModuGo merely makes the Site and the Site Services available to enable Sellers, Buyers and Shippers to engage in transactions directly with each other. Therefore, ModuGo does not charge a fee for listing a Unit for sale or lease, or for viewing Units for sale or lease. In addition, ModuGo does not charge any fee or dues for posting public feedback and Composite Feedback.
The User Agreement and registration of any account will not be construed as creating or implying any relationship or agency, franchise, partnership, or joint venture between users and ModuGo.
4.4 Refunds. ModuGo’s Fees and Fee Policy sets forth the procedures and policies regarding refunds.
5.1 Good Title and Accurate Listing Information. Seller hereby represents that it has good title and/or authorization from the owner of the Unit to list the Unit for sale or lease on the Site. Seller shall fully and accurately describe the Unit for sale or lease, including, but not limited to: listing price (or rent and other lease terms, if offered for lease), brand or manufacturer, serial number, condition, warranty status, state certifications, and any other details necessary in order to fully describe the Unit. By listing the Unit on the Site the Seller represents and warrants to a Buyer that the Unit is road worthy. For avoidance of doubt, Seller represents and warrants that all components of the Unit, including without limitation the tires, axles, brakes, hitch and jack, necessary to transport it to Buyer are in the condition required to complete such transport. Seller hereby understands and agrees that information provided by and derived from Seller may be utilized and displayed on the Site.
ModuGo does not verify or ensure the accuracy of the listing information. Sellers are solely responsible for information or omission of information contained in a listing, whether the listing information was entered on the Site solely by Seller or by Seller with the assistance of ModuGo.
Sellers’ use of copyrighted or trademarked material, photographs, graphic depictions, or visual representations in listing information shall be in compliance with all applicable laws and regulations for such materials. You hereby grant to ModuGo a license for any such materials to be displayed on the Site.
5.2 Full Service Seller. Sellers may sign up as providers of inspections, shipping, installation, ramps, steps, and other products and services necessary for the transportation and installation of a Unit (“Full-Service Seller”). ModuGo charges no fee for such listing. If a Buyer elects to use the Full-Service Seller option on the Site, Seller shall be solely responsible for contracting directly with Buyer to provide such services. ModuGo shall have no responsibility for products or services provided to Buyer by Seller, as a Full-Service Seller, and Seller hereby agrees to indemnify and hold ModuGo harmless from any claims arising in connection with the promise of such products and services.
6.1 Condition of Unit. Buyer acknowledges that all Units are purchased or leased “AS IS” subject only to Seller’s warranties of title and roadworthiness set forth in Section 5.1. Buyer shall be solely responsible to inspect or have a Unit inspected by a third party in order to verify the condition of a Unit.
6.2 Inspection Reports. A Buyer or Seller may purchase an inspection report for a Unit through the Site provided by a third-party inspection service independent of ModuGo. When you purchase an inspection report through the Site, you acknowledge and agree that ModuGo has no responsibility for the content or accuracy of the report.
6.3 Building Code and Zoning Requirements for Units. Buyer shall be solely responsible to determine whether a Unit complies with and has received all necessary permits under local building codes, zoning ordinances and regulations, and other laws and ordinances applicable to the location of the Unit selected by Buyer.
7.1 Damage to Units in Transit. Shipper shall be solely responsible for the care of and any damage to a Unit while in transport unless that damage was the result of a defect in the Unit condition. ModuGo shall not be responsible for any damage to a Unit while in transit.
7.2 Bids. All bids submitted by a Shipper through the Site shall be effective until revoked and cancelled by Shipper through the Site.
You acknowledge and agree that when an order has been placed, it cannot be cancelled without the permission of the Seller. You acknowledge and agree that once a Unit has shipped, the order cannot be cancelled.
Seller may elect to use, but is not obligated to use ModuGo’s shipping services through its shipping affiliates. ModuGo shall have no responsibility for the performance (including, without limitation, timely delivery or damage to the Unit) of the shipping affiliate in delivery of the Unit to Buyer.
If a Unit is not road worthy, Seller shall be responsible for all reasonable hard cost of shipping affiliate coming to the location of Seller’s Unit.
9.1 Payment to Seller - Sales. At the time of purchase of a Unit, shipped by a Shipper, Buyer shall pay through the Site one hundred per cent (100%) of the purchase price for the Unit. The purchase price, less fees due to ModuGo under this Agreement, shall be delivered to Seller within 5 business days of confirmation delivered to ModuGo by Shipper of delivery of the Unit, unless Buyer shall have advised ModuGo that Buyer has a dispute regarding the condition of the Unit. In such case, the purchase price shall be held until ModuGo receives written direction to make payment of the purchase price in a manner which has been mutually agreed upon by Seller and Buyer. However, if ModuGo has not received such written instruction within 30 days of confirmation of delivery, ModuGo reserves right, in its sole discretion, to release payment to Seller
At the time of purchase of a Unit, shipped by a shipper not associated with the Site, Buyer shall pay through the Site one hundred per cent (100%) of the purchase price for the Unit. The purchase price, less fees due to ModuGo under this Agreement, shall be delivered to Seller within 10 business days of date of confirmation delivered to ModuGo by Seller of shipment, unless Buyer shall have advised ModuGo that Buyer has a dispute regarding the description or condition of the Unit. In such case, the purchase price shall be held until ModuGo receives written direction to make payment of the purchase price in a manner which has been mutually agreed upon by Seller and Buyer. However, if ModuGo has not received such written instruction within 30 days of confirmation of delivery, ModuGo reserves right, in its sole discretion, to release payment to Seller
9.2 Payment to Seller - Leases. When Buyer applies for and offers to lease the Unit from Seller, Buyer shall pay to ModuGo the first months rent plus any Seller required fees such as fees for credit check or application. When Seller notifies ModuGo that it has accepted Buyer’s offer to lease, ModuGo will deliver to Seller the first month’s rent, less fees due to ModuGo under this Agreement, plus any additional credit check fee or application fee required by Seller. If Seller notifies ModuGo that it was rejected Buyer’s offer to lease or Seller has not accepted Buyer’s offer to lease within 7 business days, ModuGo will refund to Buyer the first months rent and pay to Seller any required credit check or application fee.
Seller and Purchaser shall be solely responsible for entering into mutually acceptable lease agreement. After payment of the first month’s rent, Purchaser shall pay Seller rent as provided in the lease agreement.
9.3 Payment to Shipper. Buyer shall pay, through the Site, all shipping charges for shipping a Unit to Buyer upon acceptance of Shipper’s bid. Shipping charges shall be paid to Shipper upon delivery by Shipper to ModuGo of written confirmation from Buyer that the Unit was delivered to Buyer.
You acknowledge and agree that ModuGo is compensated for the Site and Site Services by the payment of Seller Fees. ModuGo receives fees when a Seller and a Buyer complete a transaction and is paid a percentage of the final total selling fee or leasing fee. Therefore, for 24 months from the time you identify a Unit which is listed by a Seller on the Site (the “Non-Circumvention Period”), you agree not to independently contact the Seller or a Buyer in order to complete a transaction for the identified Unit outside of the Site. Should you violate this Section 10, the Seller and the Buyer agree to be jointly and severally obligated to pay the Seller’s fee to ModuGo, and you hereby acknowledge that ModuGo may report the violation to Stripe and terminate your account, and shall have the right to pursue all legal collection options, including placing a lien on the part, and utilizing a collection agency and all available legal means. However, nothing in this Agreement shall preclude a Seller from listing and selling or leasing a Unit in the normal course of business, not through the Site, and not in violation of the provisions of this Section 10.
ModuGo shall have no responsibility for the resolution of any dispute between Seller and Buyer with regard to the condition of a Unit and /or the accuracy of description of a Unit which appears on the Site.
12.1 Site License and Intellectual Property Rights. Subject to and conditioned on compliance with the Terms of Service, ModuGo grants you a limited license to access and, if you have created an Account, to use the Site for the purpose of using the Site Services. You must not access (or attempt to access) the Site or Site Services by any means other than the interface provided, and you will not use information from the Site or Site Services for any purposes other than the purposes for which it was made available. You agree not to use the Site or Site Services for offering any goods or services other than as permitted by this Agreement. You must not sell, reproduce, distribute, modify, display, publicly perform, prepare derivative works based on, repost, or otherwise use any content of the Site or Site Services in any way for any public or commercial purpose without ModuGo's prior written consent. You must not use any content of the Site or Site Services on any other website or in a networked computer environment for any purpose except your own viewing without ModuGo's prior written consent. You must not frame or link to the Site or Site Services except as permitted in writing by ModuGo. You must not attempt to reverse engineer, modify, adapt, translate, prepare derivative works from, decompile, attempt to interfere with the operation of, or otherwise attempt to derive source code from any part of the Site or Site Services unless expressly permitted by applicable law. You will not access Site Services in order to build a similar service or application, or publish any performance, or any benchmark test or analysis relating to the Site Services. ModuGo and our licensors retain all right, title, and interest in and to all Intellectual Property Rights related in and to the Site and the Site Services. The ModuGo logos and names are trademarks of ModuGo and may be registered in certain jurisdictions. All other product names, company names, marks, logos, and symbols on the Site or Site Services may be the trademarks of their respective owners. Except as expressly stated in this Agreement, nothing in the Terms of Service confers any license under any of ModuGo's or any third party's Intellectual Property Rights, whether by estoppel, implication, or otherwise.
12.2 Unauthorized Access and Use; Site Interference; Malicious Software. 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. You agree that you will not: (a) take any action that imposes or we believe may impose (in our sole discretion) an unreasonable or disproportionately large load on the Site's infrastructure; (b) copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (other than content you have submitted to the Site) from the Site, any software code that is part of the Site, or any services that are offered on the Site without the prior express written permission of ModuGo and the appropriate third party, as applicable; (c) interfere or attempt to interfere with the proper operation of the Site or any activities conducted on the Site; (d) bypass any measures we may use to prevent or restrict access to the Site or any subparts of the Site, including, without limitation, features that prevent or restrict use or copying of any content or enforce limitations on use of the Site or the content therein; (e) transmit spam, chain letters, or other unsolicited communications; (f) attempt to interfere with or compromise the system integrity or security or decipher any transmissions to or from the servers running the Site; (g) collect or harvest any personally identifiable information, including Account names, from the Site; (h) access any content on the Site through any technology or means other than those provided or authorized by the Site; or (i) directly or indirectly, advertise or promote another website, product, or service or solicit other Users for other websites, products, or services.
Additionally, you agree that you will not post or introduce any invalid data, virus, worm, or other harmful or malicious software code, agent, hidden procedure, routine, or mechanism through or to the Site or the Site software that is designed to cause to cease functioning, disrupt, disable, harm, or otherwise impair in any manner, including aesthetic disruptions or distortions, the operation of (or to allow you or any other person to access or damage or corrupt data, storage media, programs, equipment, or communications or otherwise interfere with operations of or on) the Site or any other software, firmware, hardware, computer system, or network of ModuGo or any third party.
12.3 Links and Applications. The Site may contain links to third-party websites. The Site may also contain applications that allow you to access third-party websites via the Site. Such third-party websites are owned and operated by the third parties and/or their licensors. Your access and use of third-party websites, including online communication services, such as chat, email, and calls will be governed by the terms and policies of the applicable third-party websites. You acknowledge and agree that ModuGo is not responsible or liable for: (a) the availability or accuracy of third-party websites; or (b) the content, advertising, or products on or available from third-party websites. You are responsible for deciding if you want to access third-party websites by clicking on a link or installing an application. The inclusion of any link or application on the Site does not imply that we endorse the linked site or application. You use the links and third-party websites at your own risk and agree that your use of an application or third-party website via the Site is on an "as is" and "as available" basis without any warranty for any purpose.
12.4 Mobile and Other Devices. When using our mobile applications, please be aware that your Carrier’s normal rates and fees, such as text messaging and data charges, will still apply. Our mobile applications may not contain the same functionality available on the Site.
12.5 Site Updates. We may from time to time in our sole discretion develop and provide Site Services updates which may include upgrades, bug fixes, patches, and other error corrections and/or new features (collectively, including related documentation (). Updates may also modify or delete in their entirety certain features and functionality. You agree that we do not have any obligation to provide any Updates or to continue to provide or enable any particular features or functionality. You will promptly download and install all Updates and acknowledge and agree “Updates” Site Services or portions thereof may not work properly should you fail to do so. You further agree that all Updates will be subject to the terms of the Terms of Service, unless otherwise provided in terms associated with such Update. ModuGo reserves the right, at any time, to modify, suspend, or discontinue Site Services or any part thereof without notice. You agree ModuGo will not be liable to you or any third party for any modification, suspension, or discontinuance of Site Services or any part thereof.
YOU AGREE NOT TO RELY ON THE SITE, THE SITE SERVICES, ANY INFORMATION ON THE SITE OR THE CONTINUATION OF THE SITE. THE SITE AND THE SITE SERVICES ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS. ModuGo MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SITE, THE INFORMATION PROVIDED BY SELLERS ON THE SITE, THE SITE SERVICES, WORK PRODUCT, OR ANY ACTIVITIES OR UNITS RELATED TO THIS AGREEMENT OR THE OTHE TERMS OF SERVICE. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ModuGo DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS, AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. SOME JURISDICTIONS MAY NOT ALLOW FOR ALL OF THE FOREGOING LIMITATIONS ON WARRANTIES, SO TO THAT EXTENT, SOME OR ALL OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU, SECTION 14 (TERM AND TERMINATION) STATES USER'S SOLE AND EXCLUSIVE REMEDY AGAINST ModuGo WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES, OR DISSATISFACTION.
ModuGo is not liable, and you agree not to hold us responsible, for any damages or losses arising out of or in connection with the Terms of Service, including, but not limited to:
ADDITIONALLY, IN NO EVENT WILL MODUGO, OUR AFFILIATES, OUR LICENSORS, OR OUR THIRD-PARTY SERVICE PROVIDERS BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR INDIRECT COSTS OR DAMAGES, INCLUDING, BUT NOT LIMITED TO, LITIGATION COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION, PROFIT, OR BUSINESS OPPORTUNITIES. THE LIABILITY OF MODUGO, OUR AFFILIATES, OUR LICENSORS, AND OUR THIRD-PARTY SERVICE PROVIDERS TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE WILL NOT EXCEED THE LESSER OF: (A) $2,500; OR (B) ANY FEES RETAINED BY MODUGO WITH RESPECT TO SERVICE CONTRACTS ON WHICH USER WAS INVOLVED AS CLIENT OR FREELANCER DURING THE SIX-MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE OTHER TERMS OF SERVICE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE). STRICT LIABILITY, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR ALL OF THE FOREGOING EXCLUSIONS AND LIMITATIONS, SO TO THAT EXTENT, SOME OR ALL OF THESE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
The Terms of Service as amended from time to time, will become effective on the later of the Effective Date or your first visit to the Site and will remain in effect for the duration of your use of the Site or Site Services. Unless both you and ModuGo expressly agree otherwise in writing, either of us may terminate this Agreement in our sole discretion, at any time, without explanation, upon written notice to the other, which will result in the termination of the other Terms of Service as well, except as otherwise provided herein. You may provide written notice to legal@ModuGo.com (mail to: legal@ModuGo.com). Those portions of the Terms of Service necessary to implement the foregoing survive termination of this Agreement for any reason.
Without limiting ModuGo's other rights or remedies, we may temporarily suspend, indefinitely suspend, or permanently revoke your access to the Site and refuse to provide any or all Site Services to you if: (i) you breach the letter or spirit of any terms and conditions of this Agreement or other parts of the Terms of Service; (ii) we suspect or become aware that you have provided false or misleading information to us; or (iii) we believe, in our sole discretion, that your actions may cause legal liability for you, our Users, or ModuGo or our Affiliates; may be contrary to the interests of the Site or the User community; or may involve illicit activity. If your Account is suspended or closed, you may not use the Site under the same Account or a different Account or reregister under a new Account without ModuGo's prior written consent.
Without limiting ModuGo's other rights or remedies, if you engage in actions or activities that circumvent the Site or otherwise reduce fees owed to ModuGo or to our Affiliates under the Terms of Service, you must pay ModuGo, and you authorize ModuGo or its Affiliate to charge you, for all fees owed to ModuGo and our Affiliates for all losses and costs (including any and all time of ModuGo's employees) and reasonable expenses (including attorneys' fees) related to investigating such breach and collecting such fees. In addition, violations of the Terms of Service may be prosecuted to the fullest extent of the law and may result in additional penalties and sanctions.
If your Account is closed for any reason, you will no longer have access to data, messages, files, and other material you keep on the Site. If practicable or required by law, ModuGo will retain this information along with all your previous posts and proposals for a period of up to five years from the date of closure. However, you understand that any closure of your Account may involve deletion of any content stored in your Account for which ModuGo will have no liability whatsoever.
15.1 Enforcement of Agreement. ModuGo has the right, but not the obligation, to suspend or revoke your access to the Site and Site Services if we believe that you have violated or acted inconsistently with the letter or spirit of this Agreement or the Terms of Service or violated our rights or those of another party. Without limiting ModuGo's other rights or remedies, we may suspend or close your Account, use self-help in connection with our rights collect fees owed to us, and refuse to provide any further access to the Site or the Services to you if (a) you breach any terms and conditions of this Agreement or other Terms of Service; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause legal liability for you, other Users, or ModuGo.
15.2 Survival. After this Agreement terminates, the terms of this Agreement and the other Terms of Service that expressly or by their nature contemplate performance after the Agreement terminates or expires will survive and continue in full force and effect. For example, the provisions requiring arbitration, protecting intellectual property, requiring non-circumvention, indemnification, payment of fees, reimbursement and setting forth limitations of liability each, by their nature, contemplate performance or observance after this Agreement terminates.
In addition to the recognition that ModuGo is not a party to any contract between Users, including, without limitation, leases of Units between Users, you hereby release ModuGo, our Affiliates, and our respective officers, directors, agents, subsidiaries, 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 any dispute you have with another User, whether it be at law or in equity. This release includes, for example and without limitation, any disputes regarding the performance, functions, and quality of the Unit provided to a Buyer from a Seller and requests for refunds based upon disputes. Procedures regarding the handling of certain disputes between Users are discussed in Section 10 (Dispute Resolution).
TO THE EXTENT APPLICABLE, YOU HEREBY WAIVE THE PROTECTIONS OF CALIFORNIA CIVIL CODE § 1542 (AND ANY ANALOGOUS LAW IN ANY OTHER APPLICABLE JURISDICTION) WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
This release will not apply to a claim that ModuGo failed to meet our obligations under the Terms of Service.
You will indemnify, defend, and hold harmless ModuGo, our Affiliates and our respective directors, officers, employees, representatives, and agents (each an “Indemnified Party”) from any and all claims, damages, liabilities, costs, losses, and expenses (including, but not limited to, reasonable attorneys' fees and all related costs and expenses) arising from or relating to any claim, suit, proceeding, demand, or action brought by you or a third party or other User against an Indemnified Party relating to: (a) use of the Site and the Site Services by you or your agents, including any payment obligations incurred through use of the Site Services; (b) failure to comply with the Terms of Service by you or your agents; (c) failure to comply with Stripe instructions, procedures, policies, or terms of the Stripe Services Agreement; (d) failure to comply with applicable law by you or your agents; (e) negligence, willful misconduct, or fraud by you or your agents; and (f) defamation, libel, violation of privacy rights, unfair competition, or infringement of Intellectual Property Rights or alThis release will not apply to a claim that ModuGo failed to meet our obligations under the Terms of Service.legations thereof to the extent caused by you or your agents.
18.1 Dispute Process and Scope. If a dispute arises between you and ModuGo or our Affiliates, our goal is to resolve the dispute quickly and cost-effectively. Accordingly, you, ModuGo, and our Affiliates agree to resolve any claim, dispute, or controversy that arises out of or relates to this Agreement, the other Terms of Service, the termination of your relationship with ModuGo, or the Site Services (each, a "Claim") in accordance with this Section. For the avoidance of doubt, Claims include, but are not limited to, all claims, disputes, or controversies arising out of or relating to the Terms of Service, false advertising, consumer protection, privacy, state statutes or regulations addressing the same or similar subject matters, and all other federal or state legal claims arising out of or relating to your relationship with ModuGo or the termination of that relationship. Only with respect to the Arbitration Provision, Claims do not include disputes that may not be subject to a pre-dispute arbitration agreement as provided by the Dodd-Frank Wall Street Reform and Consumer Protection Act (Public Law 111-203) and are excluded from the coverage of the Arbitration Provision.
You agree that any Claim must be resolved as described in the subsections below titled "Informal Dispute Resolution" and "Mandatory Binding Arbitration and Class Action/Jury Trial Waiver."
18.2 Choice of Law. This Agreement, the other Terms of Service, and any Claim will be governed by and construed in accordance with the laws of the State of Michigan, without regard to its conflict of law provisions.
18.3 Informal Dispute Resolution. Before serving a demand for arbitration of a Claim, you agree to first notify ModuGo of the Claim at Attn: Legal, 206 E. Huron St., Ann Arbor, Michigan, 481049 or by email to legal@ModuGo.com, and ModuGo agrees to provide to you a notice at your email address on file (in each case, a "Notice") and seek informal resolution of the Claim. Any Notice from you must include your name, pertinent account information, a brief description of the Claim, and your contact information, so that we may evaluate the Claim and attempt to informally resolve the Claim. Any Notice from ModuGo must include pertinent account information, a brief description of the Claim, and ModuGo's contact information, so that you may evaluate the Claim and attempt to informally resolve the Claim. Both you and ModuGo will have 60 days from the date of the receipt of the Notice to informally resolve the other party's Claim, which, if successful, will avoid the need for further action.
18.4 Mandatory Binding Arbitration and Class Action / Jury Trial Waiver. This Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision ("Arbitration Provision") applies to all Users.
In the unlikely event the parties are unable to resolve a Claim within 60 days of the receipt of the applicable Notice, you, ModuGo, and our Affiliates agree to resolve the Claim by binding arbitration before an arbitrator from JAMS. JAMS may be contacted at www.jamsadr.com (http://www.jamsadr.com)
Arbitration as provided in this Mandatory Binding Arbitration and Class Action/Jury Trial Waiver provision ("Arbitration Provision") is governed by the United States Federal Arbitration Act (9 U.S.C. 1 et seq.). This Arbitration Provision applies to any Claim the parties may have and survives after your relationship with ModuGo ends. This Arbitration Provision is intended to apply to the resolution of disputes that otherwise would be resolved in a court of law or before a forum other than arbitration. If for any reason JAMS will not administer the arbitration, either party may apply to a court of competent jurisdiction with authority over the location where the arbitration will be conducted for appointment of a neutral arbitrator.
Except as otherwise provided herein, arbitration will be conducted in Oakland County, Michigan in accordance with the JAMS Comprehensive Arbitration Rules and Procedures under the Optional Expedited Arbitration Procedures then in effect for JAMS. The JAMS arbitration rules may be found at www.jamsadr.com (http://www.jamsadr.com) or by searching online for "JAMS Comprehensive Arbitration Rules and Procedures.” The parties agree that any party will have the right to appear at the arbitration by telephone and/or video rather than in person.
You and ModuGo will follow the applicable JAMS rules with respect to arbitration fees. The arbitrator must follow applicable law and may award only those remedies that would have applied had the matter been heard in court. Judgment may be entered on the arbitrator's decision in any court having jurisdiction.
This Arbitration Provision does not apply to litigation between ModuGo and you to which you are a party that is or was already pending in a state or federal court before the expiration of your opt-out period. Either you or ModuGo may apply to a court of competent jurisdiction for provisional injunctive relief in connection with an arbitrable controversy, but only upon the ground that the award to which that party may be entitled may be rendered ineffectual without such relief; the arbitrator will render the final judgment in the matter.
This Arbitration Provision is the full and complete agreement relating to the formal resolution of Claims. For the avoidance of doubt, this Arbitration Provision covers, and the arbitrator shall have exclusive jurisdiction to decide, all disputes arising out of or relating to the interpretation, enforcement, or application of this Arbitration Provision, including the enforceability, revocability, scope, or validity of the Arbitration Provision or any portion of the Arbitration Provision. All such matters shall be decided by an arbitrator and not by a court. The parties expressly agree that the arbitrator and not a court will decide any question of whether the parties agreed to arbitrate, including but not limited to any claim that all or part of this Agreement or any other part of the Terms of Service is void or voidable.
In the event any portion of this Arbitration Provision is deemed unenforceable, the remainder of this Arbitration Provision will be enforceable. If any portion of the Class Action Waiver in subsection C, below, of this Arbitration Provision is deemed to be unenforceable, you and ModuGo agree that this Arbitration Provision will be enforced to the fullest extent permitted by law.
This arbitration provision affects your ability to participate in class, collective or representative actions. Both you and ModuGo agree to bring any dispute in arbitration on an individual basis only, and not on a class, collective, or representative basis on behalf of others. There will be no right or authority for any dispute to be brought, heard or arbitrated as a class, collective, representative or private attorney general action, or as a member in any such class, collective, representative or private attorney general proceeding ("Class Action Waiver"). The Class Action Waiver does not prevent you from bringing a Claim in arbitration as a private attorney general solely on your own behalf and not on behalf of others.
Notwithstanding any other portion of this Arbitration Provision or the JAMS Rules, the arbitrator will have authority to hear any Claim on a class, collective, or representative basis if, only if, and only to the extent that, the arbitrator determines that the waiver of such class, collective, or representative Claim is unenforceable. You and ModuGo agree that you will not be retaliated against, disciplined or threatened with discipline as a result of exercising any rights under Section 7 of the National Labor Relations Act by filing or participating in a class, collective or representative action in any forum. However, ModuGo may lawfully seek enforcement of this arbitration provision and the Class Action Waiver under the Federal Arbitration Act and seek dismissal of such class, collective or representative actions or claims.
You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by notifying ModuGo in writing within 30 days of the date you first registered for the Site. To opt out you must send a written notification to ModuGo at Attn: Legal, 206 E. Huron St., Ann Arbor, Michigan, 48104 (a) your account username, (b) your name, (c) your address, (d) your telephone number, (e) your email address, and (f) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver provisions. Alternatively or in addition, you may send this written notification to legalnotices@ModuGo.com (mail to: legal@ModuGo.com).
19.1 Entire Agreement. This Agreement, together with the other Terms of Service, sets forth the entire agreement and understanding between you and ModuGo relating to the subject matter hereof and thereof and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between you and us, written or oral, to the extent they relate in any way to the subject matter hereof and thereof. The section headings in the Terms of Service are included for ease of reference only and have no binding effect. Even though ModuGo drafted the Terms of Service, you represent that you had ample time to review and decide whether to agree to the Terms of Service. If an ambiguity or question of intent or interpretation of the Terms of Service arises, no presumption or burden of proof will arise favoring or disfavoring you or ModuGo because of the authorship of any provision of the Terms of Service.
19.2 Compliance. User will not violate any applicable foreign, federal, state, or local laws or third-party rights on or related to the Site. Without limiting the generality of the foregoing, User agrees to comply with all applicable laws and regulations, including, but not limited to, import and export control laws and third parties' Intellectual Property Rights.
Those who access or use the Site from other jurisdictions do so at their own volition and are entirely responsible for compliance with all applicable foreign, United States, state, and local laws and regulations, including, but not limited to, export and import regulations, including the Export Administration Regulations maintained by the United States Department of Commerce and the sanctions programs maintained by the Department of the Treasury Office of Foreign Assets Control. You must not directly or indirectly sell, export, re-export, transfer, divert, or otherwise dispose of any software or service to any end user without obtaining any and all required authorizations from the appropriate government authorities. You also warrant that you are not prohibited from receiving U.S. origin products, including services or software. You may not use or access the Site if you are: (a) a resident of a geographic area embargoed by the United States; (b) subject to United States economic sanctions that prohibit your use or access to the Site; or (c) a foreign person or entity blocked or denied by the United States government. Unless otherwise explicitly stated, all materials found on the Site are solely directed to individuals, companies, or other entities located in the United States.
19.3 Modifications. No modification or amendment to the Terms of Service will be binding upon ModuGo unless in a written instrument signed by a duly authorized representative of ModuGo. For the purposes of this subsection, a written instrument will expressly exclude electronic communications, such as email and electronic notices, but will include facsimiles. This Section 19.3 (Modifications) does not apply to amendments to the Terms of Service posted by ModuGo to the Site from time to time.
19.4 No Waiver. The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that party's right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of such party.
19.5 Assignability. User may not assign the Terms of Service, or any of its rights or obligations hereunder, without ModuGo's prior written consent in the form of a written instrument signed by a duly authorized representative of ModuGo (and, for the purposes of this subsection, a written instrument will expressly exclude electronic communications such as email and electronic notices, but will include facsimiles). ModuGo may freely assign this Agreement or the other Terms of Service without User's consent. Any attempted assignment or transfer in violation of this subsection will be null and void. Subject to the foregoing restrictions, the Terms of Service will inure to the benefit of the successors and permitted assigns of the parties.
19.6 Severability. If and to the extent any provision of this Agreement or the other Terms of Service is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
19.7 Force Majeure. The parties to this Agreement will not be responsible for the failure to perform or any delay in performance of any obligation hereunder due to labor disturbances, accidents, fires, floods, telecommunications or Internet failures, strikes, wars, riots, rebellions, blockades, acts of government. Governmental requirements and regulations or restrictions imposed by law or any other similar conditions beyond the reasonable control of such party. The time for performance of such party will be extended by the period of such delay. Irrespective of any extension of time, if an event of Force Majeure occurs and its effect continues for a period of 60 days, either the party may give to the other a 30-day notice of termination. If, at the end of the 30 day period, the effect of the Force Majeure continues, the Agreement and the other Terms of Service will terminate, except as provided in Section 15.2.
19.8 Notices. All notices to ModuGo intended to have legal effect must be in writing and delivered either (a) in person; (b) by a means evidenced by a delivery receipt, to the following address: Attn: Legal, 206 E. Huron St., Ann Arbor, Michigan, 48104; or (c) in writing via email to legal@ModuGo.com (mail to: legal@ModuGo.com). All such notices are deemed effective upon receipt by ModuGo. ModuGo does not accept service of any legal process by email or mail; all such service should occur by hand deliver on ModuGo or its registered agent for service of process.
“Affiliates” includes, but is not limited to: Amazon Web Services, Stripe, Inc., and other affiliate parties, as amended from time to time.
“Composite Feedback” includes, but is not limited to key performance indicators such as, Seller’s performance, average days to ship, bill back rates, and open cases.
“Site” means the ModuGo website located at www.ModuGo.com (http://ModuGo.com), all affiliated websites, including mobile applications, owned and operated by us, our successors in interest, or our Affiliates.
“Site Services” means all services, applications and products that are accessible through the Site and all ModuGo mobile applications that link to or reference this Agreement whether provided by us or our Affiliates.
“Transaction” means an order to purchase a Unit placed by a Buyer and accepted by a Seller.