MARKET DIRECT CAMPERS
CONTRACT TERMS AND AGREEMENT
This Agreement, between Market Direct Campers. MDC USA Inc. (“MDC,” “we,” “our,” or “us”) and Purchaser supplements The Market Direct Campers Terms of Service, previously agreed to by Purchaser, which are incorporated herein by reference and which have full force and effect as part of Purchaser’s purchase of the Product referenced in this invoice and Agreement. Please review carefully all the terms and conditions below. If you do not accept any of the terms of this Agreement and/or you do not meet or comply with its provisions, you may not purchase the Product.
IMPORTANT NOTICE: YOUR PURCHASE OF THE PRODUCT IS SUBJECT TO AN ARBITRATION PROVISION IN SECTION 8 OF THIS AGREEMENT, REQUIRING ALL CLAIMS TO BE RESOLVED BY WAY OF BINDING ARBITRATION. IT ALSO INCLUDES A WAIVER OF ANY RIGHT TO PURSUE A CLASS ACTION LAWSUIT OR ANY OTHER FORM OF COLLECTIVE ACTION. PLEASE CAREFULLY REVIEW SECTION 4 OF THIS AGREEMENT FOR MORE INFORMATION
1. PURCHASES MADE ON OUR SERVICE
1.1 Applicability. This Article governs your purchase of Product and any of our trailers, campers and caravans (collectively, “Products”) made available for purchase through our Service.
1.2 Orders. All orders for Products (each, an “Order”) placed by you are subject to our acceptance. All Orders shall, at a minimum, identify the Products purchased, quantities, price, and taxes. We reserve the right to cancel or refuse any Order for any reason at any time, including after an Order has been submitted, whether or not the Order has been confirmed. The price of the Products are those prices specified on our Service and in the Order. All Products offered via our Service are subject to availability. Prices for the Products are subject to change without notice at any time. This invoice identifies the specific Product purchased in this Agreement
1.3 Product Listings. You agree that any Product listings and descriptions on the Service are for informational purposes only and we do not guarantee the accuracy of such information. We may obtain listing information, including descriptions from third parties, so there is a possibility that unintentional errors can occur. You agree that any reliance on the Product listing and descriptions on the Service is at your own risk. All vehicle listings are subject to the Disclaimers of Warranty and Limitation of Liability in the Terms of Service and in this Agreement. We are under no obligation to finance, sell, or lease a vehicle to you. In addition, despite our best efforts, it is possible that vehicles or other items on our website may be mispriced. If the correct price of a vehicle or other item is higher than our stated price, we will, at our discretion, either contact you for instructions before delivery or pickup of the vehicle or cancel your purchase and notify you of such cancellation. By signing this Agreement and the incorporated Terms of Service you agree to accept the Product subject to all such terms.
1.4 Payment. To purchase Product, you have provided information regarding your credit card or other payment instrument (“Payment Method”). You represent and warrant that such information is true and that you are authorized to use the Payment Method. You hereby authorize us through our third party payment processor to bill your Payment Method in accordance with the Product you are purchasing. If any bank or other financial institution refuses to honor any payment of yours, we may charge you a fee up to the maximum amount permitted under applicable law. By providing a Payment Method, you may authorize us to keep such Payment Method on file and charge you the fees, charges, or other amounts related to your Order. If you want to use a different Payment Method than the one you signed up to use during registration, or if there is a change in your credit card validity or expiration date, you may edit your Payment Method information by logging in to your account and viewing your account details or by contacting us at https://www.mdcusa.com/contact-us/. If your Payment Method expires and you do not edit your Payment Method information or cancel your account, you authorize us to charge you for any Product purchases, and you will remain responsible for any uncollected amounts. Please visit https://www.mdcusa.com/contact-us/ if you would like to receive more detailed account history or billing information, if you believe there are any billing errors, or if you have any other questions related to your account history or bill. Unless otherwise provided by law, you must still pay any disputed charges until the dispute is resolved.
1.5 Financing. We may include links on our Service to third-party sites to facilitate your ability to obtain financing for the purchase of our Products. You acknowledge we have no control over such sites, and any such links are subject to the “Links; Third Party Materials” section of the Terms of Service.
1.6 Taxes. As applicable, you are responsible for, and agree to pay, all taxes, fees, and surcharges set by any governmental agency or taxing authority. You agree to indemnify and hold us harmless for any liability for tax in connection with the sale or a Product.
1.7 Credit Check. By applying for [financing through MDC], you authorize MDC, at any time or for any reason during the term of this agreement, to obtain credit information about you from one or more consumer credit reporting agencies, as permitted by applicable law. You understand that such credit information may be used to evaluate whether you are an appropriate candidate for [financing through MDC], that any determination is within MDC’s absolute discretion, and any determination may be adverse to you. You understand that in the event any adverse action is taken against you based in whole or in part on the credit information obtained, MDC shall provide notice to you of the adverse action and provide you with the name, address and telephone number of the credit bureau or consumer reporting agency.
2. DISCLAIMERS OF WARRANTY
TO THE MAXIMUM EXTENT PERMITTED BY LAW, OUR SERVICE AND THE PRODUCT YOU ARE PURCHASING ARE PROVIDED “AS IS” AND “AS AVAILABLE,” AND AT YOUR SOLE RISK. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, TITLE, AND NON-INFRINGEMENT.
WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT THE PRODUCT WILL MEET YOUR REQUIREMENTS.
WITHOUT LIMITATION, WE MAKE NO WARRANTY THAT USE OF OUR SERVICE WILL MEET YOUR REQUIREMENTS, WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, THAT THE RESULTS OBTAINED FROM THE USE OF THE FOREGOING OR ANY INFORMATION OR CONTENT FOUND ON OUR SERVICE WILL BE ACCURATE OR RELIABLE, THAT DEFECTS IN THE OPERATION OR FUNCTIONALITY OF OUR SERVICE WILL BE CORRECTED, THAT OUR SERVICE AND ANY CONTENT OR INFORMATION FOUND ON OUR SERVICE WILL BE VIRUS-FREE, OR THAT THE QUALITY OF ANY INFORMATION, CONTENT, OR OTHER MATERIALS OBTAINED THROUGH OUR SERVICE WILL MEET YOUR EXPECTATIONS. MDC WILL HAVE NO LIABILITY REGARDING ANY LOSS OF DATA. MDC IS NOT RESPONSIBLE FOR OR LIABLE FOR ANY EMPLOYMENT, RECRUITING, OR PROMOTION DECISIONS, FOR ANY REASON, MADE BY YOU UTILIZING OUR SERVICE.
3. INDEMNITY; LIMITATION OF LIABILITY
3.1 Indemnity. YOU AGREE TO DEFEND, INDEMNIFY, AND HOLD HARMLESS MDC, OUR AFFILIATES AND ALL OF THEIR OFFICERS, MEMBERS, MANAGERS, EMPLOYEES, AND AGENTS (COLLECTIVELY, “RELEASED PARTIES”) FROM AND AGAINST ANY AND ALL FIRST-PARTY AND THIRD-PARTY CLAIMS, LIABILITIES, DAMAGES, LOSSES, DEMANDS, OR EXPENSES, INCLUDING ATTORNEY’S FEES AND COSTS AND EXPENSES, ARISING OUT OF OR IN ANY WAY CONNECTED WITH: (A) YOUR USE OF OUR SERVICE, (B) YOUR VIOLATION OF THIS AGREEMENT, (C) ANY USER INFORMATION YOU PROVIDE THROUGH OUR SERVICE, (D) YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF ANY THIRD PARTY, AND (E) YOUR NEGLIGENCE OR WILLFUL MISCONDUCT.
3.2 Limitation of Liability. UNDER NO CIRCUMSTANCES SHALL RELEASED PARTIES BE LIABLE TO YOU OR ANY THIRD PARTY WITH RESPECT TO ITS OBLIGATIONS UNDER THIS AGREEMENT OR OTHERWISE FOR LOST PROFITS, LOSS OF DATA, WORK STOPPAGE, PERSONAL INJURY, DEATH, OR CONSEQUENTIAL, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR PUNITIVE DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IF YOU ARE DISSATISFIED WITH OUR SERVICE, THE PRODUCT OR WITH THIS AGREEMENT, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USING OUR SERVICE. IN ANY EVENT, THE TOTAL MAXIMUM AGGREGATE LIABILITY UNDER THIS AGREEMENT FOR THE USE OF ANY OR ALL PARTS OF OUR SERVICE INCLUDING THE PURCHASE AND USE OF THE PRODUCT, IN ANY MANNER WHATSOEVER SHALL BE LIMITED TO ONE HUNDRED DOLLARS ($100.00 USD).
3.3 For California Residents. IF YOU ARE A CALIFORNIA RESIDENT OR COULD OTHERWISE CLAIM THE PROTECTIONS OF CALIFORNIA LAW, YOU FURTHER EXPRESSLY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE, WHICH READS AS FOLLOWS: "A GENERAL RELEASE DOES NOT EXTEND TO THE 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 HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR." YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND SECTION 1542 OF THE CALIFORNIA CIVIL CODE, AND YOU HEREBY EXPRESSLY WAIVE AND RELINQUISH ALL RIGHTS AND BENEFITS UNDER THAT SECTION AND ANY LAW OF ANY JURISDICTION OF SIMILAR EFFECT WITH RESPECT TO YOUR RELEASE OF ANY CLAIMS YOU MAY HAVE AGAINST RELEASED PARTIES.
4. Dispute Resolution and Governing Law, Jurisdiction and Costs
4.1 Governing Law. This Agreement will be governed by and construed, interpreted, and enforced in accordance with the laws of the State of Arizona without reference to its conflicts or choice of law principles. Any arbitration or court proceeding will take place in Maricopa County, California, and you hereby consent to the exclusive jurisdiction and venue of the state or Federal courts in Maricopa County, California. You irrevocably submit and consent to the personal jurisdiction of such courts.
4.2 Dispute Resolution. To the extent feasible, the parties desire to resolve any dispute, claim or controversy arising out of or relating to your use of or access to our Service, purchase of the Product or MDC Materials, this Agreement or the breach, termination, enforcement, interpretation, or validity of this Agreement, including the determination of the scope or applicability of this agreement to arbitration, or claims that the Product is defective or has caused injury to person or property (a “Dispute”) through discussions and negotiations between each other. The parties agree to attempt to resolve any Disputes by negotiation with the other party (by phone, electronic correspondence, or written correspondence). If we are not able to resolve any Dispute ourselves, you and MDC agree to resolve such Dispute through confidential binding arbitration as set forth below.
4.3 Binding Arbitration. If you and MDC are unable to resolve a Dispute through informal negotiations, either you or MDC may elect to have the Dispute (except those Disputes expressly excluded below) finally and exclusively resolved by binding arbitration. Any election to arbitrate by one party shall be final and binding on the other. The arbitration shall be commenced and conducted under the Commercial Arbitration Rules of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”) both of which are available at the AAA website www.adr.org. The determination of whether a Dispute is subject to arbitration shall be governed by the Federal Arbitration Act and determined by a court rather than an arbitrator. Your arbitration fees and your share of arbitrator compensation shall be governed by the AAA Rules and, where appropriate, limited by the AAA Consumer Rules. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement you and MDC may litigate in court to compel arbitration, stay proceeding pending arbitration, or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
4.4 Waiver of Rights. You hereby agree that you understand the consequences of agreeing to binding arbitration under this Section, including giving up any constitutional rights to have the Dispute determined by a court of law or by a jury and any right that you may have to have a trial de novo by a court after nonbinding arbitration of a dispute concerning fees or costs; that discovery of information in arbitration may be limited; and that the arbitration decision will be final and binding, except to the limited extent that judicial review might be available. ALL CLAIMS AND DISPUTES WITHIN THE SCOPE OF THIS AGREEMENT MUST BE ARBITRATED OR LITIGATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS BASIS OR THROUGH PARTICIPATION IN A CLASS ACTION OR REPRESENTATIVE ACTION. CLAIMS OR DISPUTES OF MORE THAN ONE USER CANNOT BE ARBITRATED OR LITIGATED JOINTLY OR CONSOLIDATED WITH THOSE OF ANY OTHER USER.