GridMarket, LLC TERMS OF USE

GridMarket, LLC and its affiliates (collectively, “our,” “us,” or “we”) operate this and other websites and applications, operate a marketplace, provide products and Services, and develop software. We refer to these as “Sites,” “Services,” or “our Sites and Services.”

These terms, including any schedules and supplemental terms (collectively, these “Terms of Use” or this “TOU”) apply to our Sites and Services unless otherwise indicated. If there is any conflict between this TOU and any separate or supplemental terms to a site or service that are agreed to by the parties, the separate or supplemental terms will control with regard to the specific subject matter to which such separate or supplemental terms relate. This TOU does not apply to those sites and services that have their own terms of use.

By using our Sites and Services, you are a “user” and you accept and agree to this TOU as a legal contract between you and us. We may post changes to this TOU at any time, and any such changes will be applicable to all subsequent access to or use of our Sites and Services. If you do not accept and agree to all provisions of the TOU, now or in the future, you may reject the TOU by immediately terminating all access and use of our Sites and Services governed by these terms (while complying with any termination requirements and obligations which survive by their terms), in which case any continuing access or use of our Sites and Services is unauthorized.

You are also required to comply with, and to ensure compliance with, all laws, ordinances and regulations applicable to your activities on our Sites and Services.

These TOU grant you a limited, revocable, nonexclusive license to access and use our Sites and Services including but not limited to our intellectual property therein, solely in compliance with these TOU.

1. Content and Conduct

a. Content: We do not control, are not responsible for and make no representations or warranties with respect to any user content. You are solely responsible for your access to, use of and/or reliance on any user content. You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research and due diligence with respect to any user content. You are also responsible for any content that you post or transmit and, if you create an account, you are responsible for all content posted or transmitted through or by use of your account. We have the right, but not the obligation, to regulate content, conduct (including but not limited to any authorized or unauthorized access to or use of our Sites and Services) by any user (or any other third party in any manner), and to enforce these TOU, for any reason and in any manner or by any means that we, in our sole discretion, deem necessary or appropriate (including but not limited to automated and manual screening, blocking, filtering, requiring the use of an application programming interface (API), requiring the use of a bulk posting interface, authorization, verification, and the deletion and/or termination of content, accounts and/or all or any use or access). We may, in our sole discretion and without notice, start, stop or modify any regulation or enforcement measures at any time. Our action or inaction to regulate content or conduct or to enforce against any potential violation of these TOU by any user (or any other third party) does not waive our right to implement or not implement regulation or enforcement measures with respect to any subsequent or similar content, conduct or potential TOU violation.

Content prohibited from our Sites and Services includes but is not limited to: (1) illegal content; (2) content in facilitation of the creation, advertising, distribution, provision or receipt of illegal goods or Services; (3) offensive content (including, without limitation, court ordered defamatory statements, threatening, hateful or pornographic content); (4) content that discloses another’s personal, confidential or proprietary information; (5) false or fraudulent content (including but not limited to false, fraudulent or misleading responses to user ads transmitted via our Sites and Services); (6) malicious content (including, without limitation, malware or spyware); (7) content that offers, promotes, advertises, or provides links to posting or auto-posting products or Services, account creation or auto-creation products or Services, flagging or auto-flagging products or Services, bulk telephone numbers, or any other product or service that if utilized with respect to our Sites and Services would violate these TOU or our other legal rights; and (8) content that offers, promotes, advertises or provides links to unsolicited products or Services. Other content prohibitions are set forth in supplemental terms for particular categories or Services on our Sites and Services and all such prohibitions are expressly incorporated into these TOU as stated in the introductory paragraphs above.

You automatically grant and assign to us, and you represent and warrant that you have the right to grant and assign to us, a perpetual, irrevocable, unlimited, fully paid, fully sub-licensable (through multiple tiers), worldwide license to copy, perform, display, distribute, prepare derivative works from (including, without limitation, incorporating into other works) and otherwise use any content that you provide, post or permit to be posted. You acknowledge that all content you provide or post is subject to these TOU and you also expressly grant to us, on a non-exclusive basis, the right (but not the obligation) to enforce our TOU , including, without limitation, the rights and causes of action to prohibit and enforce against any unauthorized copying, display, distribution, use or exploitation of, or creation of derivative works from, any content that you provide or post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post), against any third party violators, provided, however, that we may not be held liable for any such violation, or failure to enforce such violation, by any such third party.

We also reserve the right, in our sole discretion, to limit, modify, interrupt, suspend or discontinue all or any portions of our Sites and Services at any time with or without notice. To the fullest extent permitted under applicable law, we and our representatives will not be liable for any such limitations, modifications, interruptions, suspensions or discontinuance, or any purported losses, harm or damages arising from or related thereto.

b. Conduct: We do not control, are not responsible for and make no representations or warranties with respect to any user or user conduct. You are solely responsible for your interaction with or reliance on any user or user conduct. You must perform any necessary, appropriate, prudent or judicious investigation, inquiry, research and due diligence with respect to any user or user conduct. You are also responsible for your own conduct and activities on, through or related to our Sites and Services, and, if you create an account on our Sites and Services, you are responsible for all conduct or activities on, through or by use of your account.

2. Postings and Accounts

a. Postings: Users may not circumvent any technological measure implemented by us to restrict the manner in which content may be posted on our Sites and Services or to regulate the manner in which content (including but not limited to email) may be transmitted to other users. It is expressly prohibited for any third party to post content to our Sites and Services on behalf of another. Users must post content only on their own behalf, and may not permit, enable, induce or encourage any third party to post content for them. It is expressly prohibited to post content to our Sites and Services using any automated means. Users must post all content personally and manually through all steps of the posting process. It is also expressly prohibited for any user to develop, offer, market, sell, distribute or provide an automated means to perform any step of the posting process (in whole or in part). Any user who develops, offers, markets, sells, distributes or provides an automated means to perform any step of the posting process (in whole or in part) will be responsible and liable to us for the fees and/or costs associated with such access and any losses or damages which may arise from each instance of access to our Sites and Services (by any user or other third party) using that automated means.

3. Unauthorized Access and Activities

To maintain the integrity and functionality of our Sites and Services for its users, access to our Sites and Services and/or activities related to our Sites and Services that are harmful to, inconsistent with or disruptive of our Sites and Services and/or users’ beneficial use and enjoyment of our Sites and Services are expressly unauthorized and prohibited. These include, without limitation:

The collection of our Sites and Services users’ personal information (including but not limited to email addresses, IP addresses and telephone numbers) is not allowed for any purpose.

Any copying, aggregation, display, distribution, performance or derivative use of our Sites and Services or any content posted on our Sites and Services whether done directly or through intermediaries (including but not limited to by means of spiders, robots, crawlers, scrapers, framing, iframes or RSS feeds) is prohibited.

Any access to, viewing, or use of any content or information in the Sites or Services for which permission has not been expressly granted is expressly prohibited, whether or not access is possible, nor shall any party granted access to the Sites or Services by us provide access to any third party.

Any effort to decompile, disassemble or reverse engineer all or any part of our Sites and Services in order to identify, acquire, copy or emulate any source code or object code is expressly prohibited.

Any activities (including but not limited to posting voluminous content) that are inconsistent with use of our Sites and Services in compliance with these TOU or that may impair or interfere with the integrity, functionality, performance, usefulness, usability, signal-to-noise ratio or quality of all or any part of our Sites and Services in any manner are expressly prohibited.

Any attempt (whether or not successful) to engage in, or to enable, induce, encourage, cause or assist anyone else to engage in, any of the above unauthorized and prohibited access and activities is also expressly prohibited and is a violation of these TOU.

If you access our Sites and Services or copy, display, distribute, perform or create derivative works from our Sites and Services webpages or our intellectual property in violation of these TOU or for purposes inconsistent with these TOU, your access, copying, display, distribution, performance or derivative work is unauthorized. Circumvention of any technological restriction or security measure on our Sites and Services or any provision of these TOU that restricts content, conduct, accounts or access is expressly prohibited. For purposes of this paragraph, you agree that cached copies of our webpages on your computer or computer server constitute “copies” under the Copyright Act, 17 U.S.C. § 101.

4. Interactions with Others

We and our representatives are not parties to, have no involvement or interest in, make no representations or warranties as to, and have no responsibility or liability with respect to any communications, transactions, interactions, disputes or any relations whatsoever between you and any other user, person or organization (“your interactions with others”). You must conduct any necessary, appropriate, prudent or judicious investigation, inquiry, research or due diligence with respect to your interactions with others.

5. Fees

In certain instances, we may charge a fee to utilize our Sites or Services or for other features, products, Services or licenses. You are responsible for any such applicable fees you contract for, purchase or that are purchased through your account or otherwise.Unless otherwise specified, all fees are in United States dollars and all charges will be made in United States dollars. Any applicable sales or other taxes are additional to the stated fees.

6. Indemnification

You agree to indemnify and hold us and our representatives harmless from and against any third-party claim, cause of action, demand or damages related to or arising out of: (a) content that you post or transmit (including but not limited to content that a third-party deems defamatory or otherwise harmful or offensive); (b) transactions or other activity that occurs through or by use of your account (including, without limitation, all content posted or transmitted and your interactions and agreements with others); (c) your use of or reliance on any user content; and (d) your violation of these TOU. This indemnification obligation includes payment of any attorneys’ fees and costs incurred by us or our representatives. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and you agree to cooperate with our defense of these claims.

7. Disclaimers

YOUR ACCESS TO, USE OF AND RELIANCE ON OUR SITES AND SERVICES AND CONTENT ACCESSED THROUGH OUR SITES AND SERVICES IS ENTIRELY AT YOUR OWN RISK. OUR SITES AND SERVICES (INCLUDING, WITHOUT LIMITATION, THE WEBSITES, PROGRAMS, SERVICES, FORUMS AND CONTENT ACCESSED THROUGH THE WEBSITES, PROGRAMS, SERVICES AND FORUMS) IS PROVIDED ON AN “AS IS” OR “AS AVAILABLE” BASIS WITHOUT ANY WARRANTIES OF ANY KIND. ALL EXPRESS AND IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS) ARE EXPRESSLY DISCLAIMED.

WITHOUT LIMITING THE FOREGOING, WE ALSO DISCLAIM ALL WARRANTIES FOR OR WITH RESPECT TO: (A) THE SECURITY, RELIABILITY, TIMELINESS, ACCURACY AND PERFORMANCE OF OUR SITES AND SERVICES AND CONTENT ACCESSED THROUGH OUR SITES AND SERVICES; (B) COMPUTER WORMS, VIRUSES, SPYWARE, ADWARE AND ANY OTHER MALWARE, MALICIOUS CODE OR HARMFUL CONTENT OR COMPONENTS ACCESSED, RECEIVED OR DISSEMINATED THROUGH, RELATED TO OR AS A RESULT OF OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES; AND/OR (C) ANY TRANSACTIONS OR POTENTIAL TRANSACTIONS, GOODS OR SERVICES PROMISED OR EXCHANGED, INFORMATION OR ADVICE OFFERED OR EXCHANGED, OR OTHER CONTENT, INTERACTIONS, REPRESENTATIONS OR COMMUNICATIONS THROUGH, RELATED TO OR AS A RESULT OF USE OF OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES (INCLUDING, WITHOUT LIMITATION, ACCESSED THROUGH ANY LINKS ON OUR SITES AND SERVICES OR IN CONTENT).

THESE DISCLAIMERS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

8. Limitations of Liability

WE AND OUR REPRESENTATIVES WILL UNDER NO CIRCUMSTANCES BE LIABLE FOR ANY ACCESS TO, USE OF OR RELIANCE ON OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES BY YOU OR ANYONE ELSE, OR FOR ANY TRANSACTIONS, COMMUNICATIONS, INTERACTIONS, DISPUTES OR RELATIONS BETWEEN YOU AND ANY OTHER PERSON OR ENTITY ARISING OUT OF OR RELATED TO OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES, INCLUDING BUT NOT LIMITED TO  ANY HARM, INJURY, LOSS OR DAMAGES OF ANY KIND INCURRED BY YOU OR ANYONE ELSE (INCLUDING, WITHOUT LIMITATION, DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, STATUTORY, EXEMPLARY OR PUNITIVE DAMAGES, EVEN IF WE OR OUR REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). THIS LIMITATION OF LIABILITY APPLIES REGARDLESS OF, BUT IS NOT RESTRICTED TO, WHETHER THE ALLEGED LIABILITY, HARM, INJURY, LOSS OR DAMAGES AROSE FROM AUTHORIZED OR UNAUTHORIZED ACCESS TO OR USE OF OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES; ANY INABILITY TO ACCESS OR USE OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES, OR ANY REMOVAL, DELETION, LIMITATION, MODIFICATION, INTERRUPTION, SUSPENSION, OR TERMINATION OF OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES. NOTHING IN THESE TOU WILL AFFECT THE STATUTORY RIGHTS OF ANY CONSUMER.

THESE LIMITATIONS WILL ALSO APPLY WITH RESPECT TO DAMAGES RESULTING FROM ANY TRANSACTIONS OR POTENTIAL TRANSACTIONS, GOODS OR SERVICES PROMISED OR EXCHANGED, INFORMATION OR ADVICE OFFERED OR EXCHANGED, OR OTHER CONTENT, INTERACTIONS, REPRESENTATIONS, COMMUNICATIONS OR RELATIONS THROUGH, RELATED TO OR AS A RESULT OF OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES (INCLUDING, WITHOUT LIMITATION, ANY LINKS ON OUR SITES AND SERVICES AND LINKS IN CONTENT ACCESSED THROUGH OUR SITES AND SERVICES).

IN NO EVENT WILL OUR OR OUR REPRESENTATIVES TOTAL AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT (INCLUDING, WITHOUT LIMITATION, ACCESS TO, USE OF OR RELIANCE ON OUR SITES AND SERVICES OR CONTENT ACCESSED THROUGH OUR SITES AND SERVICES EXCEED THE AMOUNTS PAID BY YOU DURING THE SIX (6) MONTHS PRECEDING THE BRINGING OF ANY CLAIM, OR ONE THOUSAND DOLLARS ($1,000.00), WHICHEVER IS LESS. YOU ACKNOWLEDGE AND AGREE THAT IF YOU HAVE NOT PAID US ANY AMOUNTS IN THE SIX (6) MONTHS PRECEDING THE BRINGING OF ANY CLAIM, YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY DISPUTE IS TO STOP USING OUR SITES AND SERVICES AND TO CANCEL YOUR ACCOUNT, IF ANY.

You hereby release us and each of our representatives, and their respective subsidiaries, affiliates, successors, predecessors, assigns, heirs, service providers and suppliers, from all claims, demands and damages of every kind and nature, known and unknown, direct and indirect, disclosed and undisclosed, arising out of or in any way related to our Sites and Services or content accessed through our Sites and Services, or any interactions with others arising out of or related to our Sites and Services or content accessed through our Sites and Services.

THESE LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED BY LAW.

[For California Residents only, you hereby agree to the following:

Waiver of California Civil Code §1542.  

You represent, acknowledge and agree that you have considered the possibility that you may not know or suspect the nature or value of claims which are generally released pursuant to these TOU and that you intend that the foregoing general release shall nevertheless be deemed to extend to all claims of every nature and kind, known or unknown, suspected or unsuspected, past or present, however arising pursuant to Section 1542 of the California Civil Code, which provides as follows:

“A general release does not extend to claims which the creditor does not know or suspect to exist in its favor at the time of executing the release, which, if known by him, must have materially affected its settlement with the debtor.”

You hereby waive any and all rights and/or benefits you have or may have under California Civil Code § 1542 or any other statute or common law principles of similar substance and effect.]

9. Injunctive Relief

You acknowledge and agree that any violation or breach of these TOU may cause us immediate and irreparable harm and damages. Consequently, notwithstanding any other provision of these TOU or other applicable legal requirements, we have the right to, and may in our discretion, immediately obtain preliminary injunctive relief (including, without limitation, temporary restraining orders) and seek permanent injunctive relief regarding any violation or breach of these TOU. In addition to any and all other remedies available to us in law or in equity, we may seek specific performance of any term in these TOU.

10. Release of Information

Our Privacy Policy prohibits the release of user or account information except in limited circumstances, including with express permission from the user, as and when required or permitted by law, or to comply with legal process properly served on us. We reserve the right to disclose any personal information about you or your use of our Sites and Services, including its contents, without your prior permission if we have a good faith belief that such action is necessary to: (1) conform to legal requirements or comply with legal process; (2) protect and defend our rights and property or our affiliated companies; (3) enforce these TOU; or (4) act to protect the interests of our users or others. Our performance of these TOU is subject to existing laws and nothing contained in this TOU is in derogation of our right to comply with governmental, court and law enforcement requests or requirements relating to your use of our Sites and Services or information provided to or gathered by us with respect to such use.

11. Dispute Resolution; Arbitration

We believe we will be able to resolve most disputes or issues you may have using our Sites and Services. In the unlikely event we are not able to resolve a dispute or issue, you agree to the following resolution process:

Prior to initiating any arbitration proceeding, you agree to first discuss the matter informally with us for at least 30 days. To do that, please send your full name and contact information, your concern and your proposed solution by mail to us at: GridMarket, LLC, 4 Lexington Avenue, Suite 9G, New York, NY 10010, Attn: Legal Department.

If we are unable to mutually agree upon a resolution after the 30-day period following our receipt of your notice, you agree that any claim you may have against us regarding these Terms of Use or our Sites and Services will be resolved through binding arbitration as follows:

a. Arbitration.  All disputes arising out of or related to these TOU shall be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with such rules. The place of arbitration shall be New York, New York.  The arbitration shall be conducted in English. The arbitrator(s) shall award to the prevailing party, if any, as determined by the arbitrator(s), its reasonable attorneys’ fees and costs, including the costs of the arbitration. Judgment on any arbitral award may be entered in any court having jurisdiction.   The Parties shall keep confidential: (i) the fact that any arbitration occurred; (ii) any awards awarded in the arbitration; (iii) all materials used, or created for use in the arbitration; and (iv) all other documents produced by another party in the arbitration and not otherwise in the public domain, except, with respect to each of the foregoing, to the extent that disclosure may be legally required (including to protect or pursue a legal right) or necessary to enforce or challenge an arbitration award before a court or other judicial authority.  

b. Preliminary Injunctive Relief. Notwithstanding the foregoing, either party will be entitled to seek preliminary injunctive relief, if possible, from the applicable state or federal courts located in New York, New York, prior to the constitution of the arbitral tribunal and/or during the pendency of the arbitration, without the necessity of posting a bond or other security or proving actual damages. In any suit, action or proceeding brought to obtain such relief, each Party waives its right to trial by jury and, to the maximum extent permitted by applicable law, waives its rights to interpose any counterclaim or set-off for any cause whatsoever.

It is important to us that we address any issues you might have promptly. You therefore agree to begin any arbitration within one year after your claim arose; otherwise, your claim is waived.

Further, you agree to arbitrate with us only in your individual capacity, not as a representative or member of a class. As such, your claims may not be joined with any other claims and there will be no authority for any dispute to be arbitrated on a class-action basis or brought by a purported class representative.

12. Miscellaneous

a. Copyright and Other IP Rights: Except as otherwise expressly provided, all contents of our Sites and Services are copyrighted. All rights reserved. One or more patents may apply to our Sites and Services and to the features and Services accessible via our Sites and Services. Subject to the limited rights expressly granted hereunder, we reserve all rights, title and interest in and to our Sites and Services, including all related copyrights, patents, trademarks and other intellectual property rights. No rights are granted to you hereunder other than as expressly set forth herein.

b. Governing Law; Forum: Any and all claims, causes of action or disputes (regardless of theory) between you and us arising out of or related to these TOU, our Sites and Services or content accessed through our Sites and Services will be governed by the laws of the State of New York, without regard to conflict or choice of law principles. Preliminary Injunctive Relief. Either party will be entitled to seek preliminary injunctive relief, if possible, from the courts located in the State of New York, county of New York prior to the constitution of the arbitral tribunal and/or during the pendency of the arbitration, without the necessity of posting a bond or other security or proving actual damages. In any suit, action or proceeding brought to obtain such relief, each Party waives its right to trial by jury and, to the maximum extent permitted by applicable law, waives its rights to interpose any counterclaim or set-off for any cause whatsoever.

You further agree that, regardless of any statute or law to the contrary, you must file any such claim or cause of action within one (1) year after such claim or cause of action arose or be forever barred.

c. Electronic Contracting: Your use of our Sites and Services includes the ability to enter into agreements and/or to make transactions electronically. YOU ACKNOWLEDGE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS AND TRANSACTIONS. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS YOU ENTER INTO ON THIS SERVICE, INCLUDING NOTICES OF CANCELLATION, POLICIES, CONTRACTS, AND APPLICATIONS. In order to access and retain your electronic records, you may be required to have certain hardware and software, which are your sole responsibility.

d. Termination; No Assignment: You may terminate your account and/or stop using our Sites and Services at any time. We may, in our sole discretion, terminate or suspend your access to all or part of our Sites and Services for any reason, including, without limitation, violation of these TOU or if we have a reasonable suspicion that you have violated these TOU. These TOU and the rights granted and obligations undertaken, may not be transferred, assigned or delegated by you. Any purported attempt will be ineffective. We retain the right to transfer, assign or delegate these TOU.

e. Feedback: You automatically grant and assign to us, a royalty-free, worldwide, irrevocable, perpetual license to use and incorporate into our Sites and Services any suggestions, enhancement requests, recommendations or other feedback provided by you.

f. Waiver: Any failure by us to enforce or exercise any provision of these TOU, or any related right, will not constitute a waiver of that provision or right.