User Terms of Service and Agreement
Last Revised December 18, 2019
The website located at www.skycart.com, as well as the SkyCart mobile application (collectively the “Website”) are published, owned, and operated by Logistic Cart, LLC dba SkyCart, an Ohio limited liability company, its affiliates and related entities (“SkyCart,” “we,” “us,” and “our”). These Terms of Service (these “Terms”) govern your access to and use of the Website. As used herein “Affiliate” shall mean with respect to any entity, any other entity that directly or indirectly controls, is controlled by, or is under common control with such entity.
By clicking the “I accept” button during the log-in process, or otherwise accessing, browsing, submitting information to and/or using the Website, you agree and acknowledge on your own behalf (referred to throughout these Terms as “you”) that you have read, understand and agree to be bound by these Terms and to comply with all applicable laws including, without limitation, all federal, state and local tax and tariff laws, regulations, and/or directives. If you do not agree to these Terms, please do not use the Website. You should note that Paragraph 17 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree to resolve all disputes through binding arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and that you waive your right to participate in class actions. Please read and review Paragraph 17 carefully. You indicate your acceptance to these Terms by clicking the “I accept” button in accordance with these Terms. Indicating acceptance establishes a binding and executed written agreement between you and SkyCart. If you do not accept these Terms, you cannot use the Services.
1. Services; Purpose of the Website.
You understand and agree that SkyCart is a technology platform that provides a marketplace in which individuals or businesses can list and sell certain products (“Merchants”) , and individual buyers, like you, can browse and purchase such products (“Buyer,” “User,” “You,” “Your”). The Website is provided solely for the purposes of facilitating your identification of desired products for purchase and Merchants that sell said products, for informational purposes and the purposes of enabling communication between you, the Merchant and SkyCart (collectively, the “Services”). The information provided is intended to be general in nature and does not necessarily address all the terms, exclusions, and conditions applicable to the Services or the Merchant.
In using the Services, you acknowledge the Merchant is solely responsible for the product sold, the shipping of the product and any related returns or other post-sale matters. All purchases are made directly (and any contract for purchase and sale is) between the Merchant and Buyer. SkyCart is not responsible or liable for any products sold by Merchants, nor any warranties or representations made by Merchants in the promoting or selling of such products. SkyCart is also not responsible nor liable for any content, feedback, warranties or representations made or posted by Merchants, Buyers, or outside third parties on SkyCart.
2. Use of the Website; Services.
SkyCart grants you a non-exclusive right to access and use the Website, Services and the data, information, text, usernames, graphics, images, photographs, audio, video, profiles, products, listings, items and links submitted, posted or displayed therein (collectively, the “Content”) solely for your personal use and not for the purposes or benefit of a third party. Your right to access and use the Website shall be limited to non-commercial purposes unless you are otherwise expressly authorized by SkyCart to use the Website and Services for commercial purposes. You agree to use the Website and Services only for lawful purposes, comply with all rules governing any transactions on and through the Website and comply with applicable laws.
3. User Account and User Responsibility.
In creating an account and accessing the Services, you are warranting and representing that you live in the United States and are eighteen (18) years of age or older and capable of legally entering into a binding contract to use the Services and purchases goods or services from a Merchant.
If you are given or create a password or other credential to access the Website and Services, or should you choose to use your credentials established with a social media service provider, you are responsible for maintaining the confidentiality of your account and your credentials. You agree to not share your account with any other individuals and are responsible for all activities that occur under your account. You agree to notify SkyCart immediately of any unauthorized use of your account. SkyCart is not responsible for any loss or damages that you may incur as a result of any unauthorized person using your account or your password.
4. Processing Payments to Merchants
In creating an account with SkyCart, you will authorize a payment card or other online method of payment for the processing of any payments to purchase products from a Merchant. You hereby acknowledge, accept and authorize SkyCart to securely process such payments through a contracted third party card processor or online payment processor. At no time will SkyCart possess or have access to your payment card information or online payment account information.
Upon submission of your order, SkyCart will immediately authorize the applicable charge to your payment card or online payment account through its trusted third party processor. In accordance with its Merchant agreement and policies, SkyCart will direct the remittance of payment to the Merchant upon your receipt of the product, less any agreed fees due to SkyCart for payment for the Services. In accepting these Terms, you consent to such payment processing and any other required steps to facilitate the procurement and shipment of any products on your behalf.
5. Prohibited Uses. You agree that you will not:
- Use the Website in any manner that could damage, disable, overburden, or impair the Website or interfere with any other party’s use and enjoyment of them;
- Attempt to gain unauthorized access to any Website account, computer systems or networks associated with SkyCart or the Website;
- Obtain or attempt to obtain any materials or information through the Website by any means not intentionally made available or provided by SkyCart;
- Use any robot, spider, or other automatic device, process or means to access the Website for any purpose, including monitoring or copying any of the material on the Website;
- Introduce any viruses, Trojan horses, worms, logic bombs, or other material which is malicious or technologically harmful;
- Purchase any illegal items;
- Attack the Website via a denial-of-service attack or a distributed denial-of-service attack;
- Impersonate or attempt to impersonate SkyCart, a Company employee, another user or any other person or entity (including, without limitation, by using email addresses associated with any of the foregoing); or
- Threaten, harass or engage in any other activity that might otherwise harm or otherwise infringe the rights of any Company employee, Merchant or other user of the Services.
If SkyCart determines, in its sole discretion, suspects, or is informed that you are engaging in acts in violation of any of the foregoing prohibited activities then, without limiting any of SkyCart’s rights under the Terms or at law, SkyCart may in its sole discretion suspend, freeze, terminate or restrict your privileges, issue fines against you, or take any other actions as SkyCart may deem to be appropriate or as may be permitted or required by law.
6. Notice and Consent to Receipt of Text (SMS) Messaging and Phone Calls.
7. Third Party Sites.
8. Third-Party Applications.
You acknowledge that your access and use of any third-party applications or software on our Website and Content (the “Third-Party Applications”) is at your discretion and risk, and SkyCart has no liability to you arising from your use of the Third-Party Applications. SkyCart hereby disclaims any representation, warranty, or guaranty regarding the Third-Party Applications, whether expressed, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty, or guaranty regarding the availability, quality, reliability, features, appropriateness, accuracy, completeness, or legality of the Third-Party Applications, and you agree to indemnify and hold SkyCart harmless for any direct, indirect, punitive, incidental, special, or consequential damages, or any damages whatsoever including, without limitation, damages for loss of use, arising out of or in any way connected with the use or performance of the Third-Party Applications.
9. Intellectual Property Notices.
The Website and Content are protected by copyrights, trademarks, or are subject to other proprietary rights. Accordingly, you are not permitted to use the Website or Content in any manner, except as expressly permitted by SkyCart in these Terms. The Website or Content may not be copied, reproduced, modified, published, uploaded, posted, transmitted, performed, or distributed in any way, and you agree not to modify, rent, lease, loan, sell, distribute, transmit, broadcast, or create derivatives without the express written consent of SkyCart or applicable owner.
Questions or complaints regarding the use of any intellectual property provided on the Website should be directed to [ ].
10. Your Content.
You acknowledge and agree that you are solely responsible for complying with the applicable restrictions on use of all Your Content, copyrighted materials and trademarks that you see, hear, and use on the Website. You understand that any unauthorized use of such intellectual property would result in irreparable injury for which money damages would be inadequate. You further acknowledge that, in the event of any such unauthorized use, SkyCart or the applicable intellectual property owner will have the right, in addition to other remedies available at law and in equity, to immediate injunctive relief to prevent any such unauthorized use.
11. Feedback and other Information
The Services may provide Buyers or Merchants the ability to provide Feedback in the form of reviews and ratings suggestions, comments, ideas, improvements or other feedback or materials to us (collectively referred to as “Feedback”). While SkyCart bears no responsibility or liability for the validity such reviews or ratings, or any damages or liabilities arising from the posting of such feedback, SkyCart is committed to maintaining a productive and helpful discourse about the experiences of Buyers and Merchants. The integrity of such feedback is essential to such a discourse. Therefore, following guidelines are in place and SkyCart shall enforce the guidelines, including removing any feedback that does not comply with such guidelines, in its sole evaluation.
- Feedback shall only be offered by individuals with first-hand accounts of the addressed experience.
- You will refrain from providing feedback on any Merchant with which you have a conflict of interest in the form of an ownership or employment interest, competitive stake
- No paid or sponsored feedback is permitted.
SkyCart shall not be liable for any Feedback it chooses to remove for violations of these guidelines. SkyCart will consider such Feedback to be non-confidential and non-proprietary. SkyCart shall have no obligations concerning the Feedback, and SkyCart will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing Feedback in any manner, without any restriction or compensation to you.
12. United States Only.
SkyCart is based in the state of Ohio in the United States. SkyCart provides this Website for use only by persons located in the United States. We make no claims that the Website, the Services, or any of its contents are accessible or appropriate outside of the United States. Access to the Website may not be legal by certain persons or in certain countries.
ALL INFORMATION OR SERVICES PROVIDED BY SKYCART TO YOU VIA THE WEBSITE, INCLUDING, WITHOUT LIMITATION, ALL CONTENT, ARE PROVIDED “AS IS” AND “WHERE IS” AND WITHOUT ANY WARRANTIES OF ANY KIND. SKYCART AND ITS THIRD-PARTY LICENSORS EXPRESSLY DISCLAIM ALL WARRANTIES, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. NOTWITHSTANDING ANY PROVISION CONTAINED HEREIN TO THE CONTRARY, SKYCART AND ITS THIRD-PARTY LICENSORS MAKE NO REPRESENTATION, WARRANTY OR COVENANT CONCERNING THE ACCURACY, QUALITY, SUITABILITY, COMPLETENESS, SEQUENCE, TIMELINESS, SECURITY OR AVAILABILITY OF THE WEBSITE OR ANY CONTENT POSTED ON OR OTHERWISE ACCESSIBLE VIA THE WEBSITE. YOU SPECIFICALLY ACKNOWLEDGE THAT SKYCART AND ITS THIRD-PARTY LICENSORS ARE NOT LIABLE FOR THE DEFAMATORY, OBSCENE OR UNLAWFUL CONDUCT OF OTHER THIRD PARTIES OR USERS OF THE WEBSITE AND THAT THE RISK OF INJURY FROM THE FOREGOING RESTS ENTIRELY WITH YOU. NEITHER SKYCART NOR ANY OF ITS THIRD-PARTY LICENSORS REPRESENT, WARRANT OR COVENANT THAT THE WEBSITE WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE. SKYCART FURTHER MAKES NO WARRANTY THAT THE WEBSITE WILL BE FREE OF VIRUSES, WORMS OR TROJAN HORSES OR THAT IT WILL FUNCTION OR OPERATE IN CONJUNCTION WITH ANY OTHER PRODUCT OR SOFTWARE. YOU EXPRESSLY AGREE THAT USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT SKYCART, ITS AFFILIATES AND THEIR THIRD-PARTY LICENSORS SHALL NOT BE RESPONSIBLE FOR ANY TERMINATION, INTERRUPTION OF SERVICES, DELAYS, ERRORS, FAILURES OF PERFORMANCE, DEFECTS, LINE FAILURES, OR OMISSIONS ASSOCIATED WITH THE WEBSITE OR YOUR USE THEREOF. YOUR SOLE REMEDY AGAINST SKYCART FOR DISSATISFACTION WITH THE WEBSITE OR THE CONTENT IS TO CEASE YOUR USE OF THE WEBSITE AND/OR THE CONTENT. SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU. YOU MAY HAVE OTHER RIGHTS, WHICH VARY BY JURISDICTION. WHEN THE IMPLIED WARRANTIES ARE NOT ALLOWED TO BE EXCLUDED IN THEIR ENTIRETY, YOU AGREE THAT THEY WILL BE LIMITED TO THE GREATEST EXTENT AND SHORTEST DURATION PERMITTED BY LAW.
14. Limitation of Liability.
UNDER NO CIRCUMSTANCES SHALL SKYCART OR ANY OF ITS THIRD-PARTY LICENSORS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, PUNITIVE, SPECIAL OR EXEMPLARY DAMAGES (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF USE, LOSS OF DATA, LOSS OF INFORMATION OR PROGRAMS ON YOUR DATA HANDLING SYSTEM, TRANSACTION LOSSES, OPPORTUNITY COSTS, INTERRUPTION OF BUSINESS OR COSTS OF PROCURING SUBSTITUTE GOODS) RESULTING FROM, ARISING OUT OF OR IN ANY WAY RELATING TO THE WEBSITE, OR THE DATA, CONTENT OR INFORMATION ACCESSED VIA THE WEBSITE OR ANY HYPERLINKED WEBSITE, OR ANY DISRUPTION OR DELAY IN THE PERFORMANCE OF THE WEBSITE, REGARDLESS OF THE FORM OF THE CLAIM OR ACTION, WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, STATUTE OR OTHERWISE, AND REGARDLESS OF WHETHER OR NOT SUCH DAMAGES WERE FORESEEN, UNFORESEEN OR FORESEEABLE, EVEN IF SKYCART OR ITS THIRD-PARTY LICENSORS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. BY ACCESSING THE WEBSITE SUBJECT TO THESE TERMS OF SERVICE, YOU UNDERSTAND THAT YOU ARE WAIVING RIGHTS WITH RESPECT TO CLAIMS THAT ARE AT THIS TIME UNKNOWN OR UNSUSPECTED, AND IN ACCORDANCE WITH SUCH WAIVER, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTOOD, AND HEREBY EXPRESSLY WAIVE, THE BENEFITS OF SECTION 1542 OF THE CIVIL CODE OF CALIFORNIA AND ANY SIMILAR LAW OF ANY STATE, COUNTRY OR TERRITORY, WHICH PROVIDES AS FOLLOWS: “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 KNOWN BY HIM OR HER MUST MATERIALLY AFFECT HIS OR HER SETTLEMENT WITH THE DEBTOR.”
You agree to defend, indemnify and hold harmless SkyCart and its Affiliates, licensors and service providers from and against any claims, liabilities, damages, judgments, awards, losses, costs, expenses or fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms or your use of the Website, including, but not limited to, any use of the Website Content, Services, or products other than as expressly authorized in these Terms or your use of any information obtained from the Website.
16. Termination and Restriction of Access.
In addition to any other remedies available under law or these Terms, including without limitation monetary and nonmonetary damages, a violation of these Terms can lead to a cancellation of your purchase. In its sole discretion, SkyCart may terminate or suspend your access to the Website and Services for breach of these Terms. SkyCart shall not be liable for any losses or damages arising from any such termination of service. The forgoing notwithstanding, at its sole discretion, SkyCart reserves the right to modify or terminate the Services at any time for any reason and shall not be liable to you or any third party for any losses or damages resulting from any modification or termination.
BY AGREEING TO THESE TERMS, YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
ANY CLAIM, DISPUTE OR CONTROVERSY (WHETHER IN CONTRACT, TORT OR OTHERWISE, WHETHER PRE-EXISTING, PRESENT OR FUTURE, AND INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT, AND EQUITABLE CLAIMS) BETWEEN YOU AND US ARISING FROM OR RELATING IN ANY WAY TO YOUR PURCHASE OF PRODUCTS OR SERVICES THROUGH THE SITE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION.
We encourage resolving disputes amicably and efficiently, and most user concerns can be resolved quickly and to your satisfaction by emailing our support team at email@example.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other party, by certified mail, a written Notice of Dispute (“Notice”). The Notice to SkyCart should be sent to PO BOX 1673, Elyria, Ohio 44036, USA (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If SkyCart and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or SkyCart may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by us or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you are SkyCart is entitled.
If you reside in the United States, any dispute will be resolved by binding arbitration to be held in the county in which you reside or any location agreed upon between you and us in writing; provided, however, that either party may seek preliminary injunctive relief pending arbitration to prevent irreparable harm. If you reside outside the United States, the arbitration shall be initiated in Elyria, Ohio. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this Section. The AAA Rules are available at https://www.adr.org/Rules. The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
The arbitrator will have exclusive authority to resolve any dispute relating to arbitrability and/or enforceability of this arbitration provision, including any unconscionability challenge or any other challenge that the arbitration provision or the agreement is void, voidable, or otherwise invalid. The arbitrator will be empowered to grant whatever relief would be available in court under law or in equity. Any award of the arbitrator(s) will be final and binding on each of the parties, and may be entered as a judgment in any court of competent jurisdiction.
You agree to an arbitration on an individual basis. In any dispute, NEITHER YOU NOR YOUR AFFILIATES WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS IN COURT OR IN ARBITRATION OR OTHERWISE PARTICIPATE IN ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. The arbitral tribunal has no power to consider the enforceability of this class arbitration waiver and any challenge to the class arbitration waiver may only be raised in a court of competent jurisdiction. To the extent the filing fee for the arbitration exceeds the cost of filing a lawsuit, SkyCart will pay the additional cost. SkyCart shall also bear the cost of any arbitration fees unless the arbitrator finds your claims, defenses, or other fee-generating activity to be asserted or conducted for an improper purpose or frivolous. You are responsible for all other additional costs that you may incur in the arbitration including, without limitation, attorneys’ fees and expert witness costs unless SkyCart is specifically required to pay such feeds under applicable law.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision will be severed and the remaining arbitration terms will be enforced.
RELEASE: IF YOU ARE A CALIFORNIA RESIDENT, YOU SHALL AND HEREBY DO WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH, IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR.” IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE.
You have the right to opt out of the provisions of this Section by sending a timely written notice of your decision to opt out to the Notice Address, within 30 days after first becoming subject to this Section. Your notice must include your name and address, your user ID (if any), the email address you used to set up your account (if you have one), and a clear statement that you want to opt out of this arbitration Section. If you opt out of this Section, all other parts of this Agreement will continue to apply to you. Opting out of this Section has no effect on any other arbitration agreements that you may currently have with us, or may enter into in the future with us.
18. Limitation on Time to File Claims.
Any cause of action or claim you may have arising out of or relating to these Terms or the Website must be commenced within one (1) year after the cause of action accrues, otherwise, such cause of action or claim is permanently barred.
19. Governing Law & Jurisdiction.
These Terms are governed by the laws of the State of Ohio, U.S.A. without regard to the conflicts of laws provisions thereof.
20. Changes to these Terms of Service.
SkyCart may update or change these Terms from time to time, in its sole discretion, in order to reflect changes in any offered Services, changes in the law, or for other reasons as deemed necessary by SkyCart. The effective date of any Terms will be reflected in the “Last Revised” entry at the top of these Terms. We shall notify you of such updated terms and conditions to these Terms or other applicable SkyCart policies by sending you an e-mail or other written notification through your account of such updates. You are responsible for reviewing these notifications and informing yourself of all applicable updates, changes or notices. IF ANY UPDATE IS UNACCEPTABLE TO YOU, YOUR ONLY RECOURSE IS TO DISCONTINUE YOUR USE OF THE WEBSITE. Your continued use of the Website and Services after any such change (regardless of whether we notify you of such change in advance) shall constitute your consent to such change(s).
You agree that no joint venture, partnership, employment, or agency relationship exists between you and SkyCart as a result of these Terms or use of the Website. You may not assign these Terms without the prior written consent of SkyCart in all instances. SkyCart may assign these Terms, in whole or in part, at any time. SkyCart’s performance of this agreement is subject to existing laws and legal process, and nothing contained in these Terms is in derogation of SkyCart’s right to comply with governmental, court, and law enforcement requests or requirements relating to your use of the Website or information provided to or gathered by SkyCart with respect to such use.
If any part of these Terms are determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision, and the remainder of these Terms shall continue in effect.
22. Company Contact Information.
Questions and complaints can be directed to SkyCart at: firstname.lastname@example.org.