California Historical Radio Society
Contract (“User Agreement” )
1. Introduction to this User Agreement
You are making a legal contract with:
The California Historical Radio Society
2152 Central Avenue
Alameda, CA 94501
which operates by several programs including its website: www.californiahistoricalradio.com . In this contract, The California Historical Radio Society is “CHRS,” “we,” or “us.”
This Contract defining “Services” sets out our terms on which The California Historical Radio Society, a California non-profit corporation (hereinafter “CHRS” etc.) offers you access to and use of our Services, the “Classified Ads” and any similar listings. You agree to comply with all terms of this contract when accessing or using our Services, and any such access ratifies your agreement and your agreement to any related terms posted by us.
This contract and your agreement to it by your conduct or otherwise, defines how claims you and we may come to have against each other are resolved, as set forth below. This contract also contains an Agreement to Arbitrate, which will require you to submit claims you have against us to binding and final arbitration.
2. About CHRS and its Classified Ads program
CHRS Classified Ads is a marketplace that allows users who are CHRS members to offer, sell and anyone to buy just about anything relating to the purview of the California Historical Radio Society (specifically without limitation vintage radios, electronic parts, books, and ephemera) sometimes in more than one way. Your actual contract for sale is directly between the seller and buyer and you hereby agree that CHRS does not participate in any such contract and that CHRS is not an auctioneer.
Any guidance we come to provide as part of our Services, such as pricing, shipping, listing, and sourcing is solely informational and you may decide to follow it or not. CHRS has no control over and does not guarantee: the existence, quality, safety or legality of items advertised, about which the buyer assumes all risk; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item. You may not rely on anything CHRS may say about anything in this marketplace.
3. Using CHRS’s Classified Ads program
In connection with using or accessing the Services you agree that you will not:
• Post false, inaccurate, misleading, deceptive, defamatory, or libelous, or offensive or obscene content;
• Infringe the copyright, trademark, patent, publicity, database, and/or other intellectual property rights and moral rights, (collectively, “Intellectual Property Rights”) that belong to or are licensed to CHRS including specifically without limitation the names “California Historical Radio Society,” “californiahistoricalradio,” Bay Area Radio Museum, Broadcasting Hall of Fame, our logos and all content in our publications and on our several websites and on social media; • Breach or circumvent any laws, regulations, third-party rights or our systems, policies, or determinations of your account status;
• Post, list or upload content or items in inappropriate categories or areas on our sites;
• Use our Services if you are not able to form legally binding contracts (for example, if you are insane, incompetent or under 18 years old), or are suspended by us;
• Fail to pay for items purchased by you;
• Fail to deliver items sold by you
• Interfere with any other user’s listings;
• Transfer your CHRS account and user identification ID to another party without our consent;
• Distribute or post spam, etc.;
• Distribute malware to the prejudice of CHRS;
• Use any BOT or the like to access our Services;
• Interfere with the working of our Services;
• Post content that does not belong to you;
• Commercialize any CHRS content or application or any information;
Sellers must meet CHRS’s minimum performance standards as may be posted from time to time: what we think of you is up to you. If we come to believe that you are abusing CHRS and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services.
Additionally, this contract gives us the power to refuse, modify, or terminate all or part of our Services to anyone at any time for any reason.
4. Policy Enforcement
Policy enforcement by CHRS is discretionary.
CHRS does not now charge fees to sellers, but this contract empowers CHRS to do so. Any fees we may choose to charge for using our Services will be posted on www.californiahistoricalradio.com and thereby bind you.
6. Listing Conditions
When listing an item for sale on CHRS Services, you agree to comply with CHRS’s several policies, including specifically without limitation:
1) Inasmuch as the sale of electronic equipment in the US is regulated by the Federal Communications Commission (FCC), you will not list equipment prohibited by the FCC, such as non-type-accepted specialized radios, or amplifiers for Citizens Band radios, or cell, GPS and other signal jamming devices.
2) You will not list any item containing mercury or radium or asbestos or any other toxic substance or any item in dangerous condition or prohibited by law;
• You agree that your listing(s) are and will be true and complete;
• Content that violates any of CHRS’s policies may be modified, blanked-out or deleted at CHRS’s discretion;
• We may revise information associated with listings to supplement, remove, or correct information;
• You acknowledge that the appearance or placement of listings in search and browse results, if any, will depend on a variety of factors discretionary to CHRS;
• You acknowledge that a listing may not appear in some search and browse results, if any, regardless of the sort order chosen by the buyer.
7. Purchase Conditions
When buying an item on or in connection with CHRS Services, you agree:
• You are responsible for reading and understanding the full item listing before making a commitment to buy;
• You enter into a legally binding contract with the seller to purchase an item when you commit to buy an item, or your offer for an item is accepted;
• We do not transfer legal ownership of items from the seller to the buyer;
• The California-enacted version of the Uniform Commercial Code applies to the transfer of ownership between the buyer and the seller.
8. International Buying and Selling
Our Services may be accessible to international sellers and buyers. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items, including export prohibitions.
9. Content of Listings
When you provide content using the Services (directly or indirectly, for example a particularly colorful and/or poetic description of an item), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of the Services, in any media or way now known or that may appear in the future, and hence you waive your right to enforce your Intellectual Property Rights in that content against CHRS and everyone associated with CHRS.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this Contract and User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this Contract and User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. CHRS assumes no liability for any content provided by you or any third party and you assume any such liability.
You will provide your own item or product information and data. You may use any such item or product information and data as may derive from CHRS content solely in your CHRS listings.
We cannot and do not promise that any item or product information and data or content provided through the Services will always be available, accurate, complete, and up-to-date. You agree that CHRS does not examine or warrant the listings or content provided by third parties through the Services, and that you will not hold us or our data providers liable for inaccuracies. As a seller, you agree that you will make sure that content directly associated with your listings is accurate.
The name California Historical Radio Society, “CHRS” and other CHRS marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress and the like of CHRS in the U.S. and other countries. They may not be used by you or anyone else not CHRS.
10. Notice for Claims of Intellectual Property Violations and Copyright Infringement
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act, pursuant to Section 512(c) of Title 17 of the United States Code. CHRS seeks to ensure that listed items and content on our site not infringe upon the copyright, trademark, or other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify us and we will investigate; you may do so by means of the DMCA “button” on the CHRS website: www.californiahistoricalradio.com. You may suffer adverse consequences if you make a false or un-researched claim of infringement.
CHRS may hold funds under certain circumstances, to be determined and posted on www.californiahistoricalradio.com .
12. Authorization to Contact You; Recording Calls; Analyzing Message Content
You agree that CHRS has the right to contact you using telephone calls and text messages, at any telephone number that you have provided us or that we otherwise determine, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; or (v) as otherwise necessary to service your account or enforce this Contract and User Agreement, our policies, applicable law, or any other agreement we may have with you. You acknowledge your carrier may apply standard telephone minute and text charges and may include overage fees if you have exceeded your plan limits.
CHRS is empowered hereby, without further notice or warning and in its discretion, to monitor or record telephone conversations and the like that you or anyone acting on your behalf has with CHRS or its agents for its own protection or for quality control and training purposes. This clause in this contract is your agreement that all calls etc. involving you and CHRS may be recorded by CHRS.
Privacy of Others; Marketing:
If CHRS provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use user information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
13. Additional Terms
Returns and Cancellations
The cost of return shipping for an item that is not as described is the seller’s responsibility.
14. Disclaimer of Warranties; Limitation of Liability
We cannot and do not guarantee the continuous operation of or access to our Services.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, we (including officers, directors, agents, volunteers and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
• the content you provide (directly or indirectly) using the Services;
• your use of or your inability to use our Services;
• pricing, shipping, format, or other guidance, if any provided by CHRS;
• delays or disruptions in our Services;
• viruses or other malicious malware infection caused by accessing or linking to our Services;
• glitches, bugs, errors, or inaccuracies of any kind in our Services;
• damage to your hardware devices from the use of any CHRS Service;
• the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake or prohibited items;
• a suspension or other action taken with respect to your account or any abuse connected with it.
• Any loss of business or inability to do business or impairment of business as a result of changes to this Contract and User Agreement or our policies.
• Some jurisdictions may not allow the disclaimer of warranties or exclusion of damages.
Regardless of the previous paragraphs, if we are found to be liable to you for anything, our liability to you or to any third party is limited to this mutually agreed liquidated damages amount of $100 and shall not include attorneys’ fees and costs.
If you have a dispute with one or more users, you release us (and our officers, directors, agents, volunteers, 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 such disputes.
In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release and your ratification of this contract upon each use by you of CHRS Services;
Moreover you covenant not to sue or go to arbitration against us in connection with any such dispute you may have with any one or more users, in consideration of our letting you use CHRS Services.
You will indemnify and hold us (including our officers, directors, agents, volunteers, and employees) harmless from any claim or demand, including actual legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of CHRS’s Services or your breach of any law or the rights of a third party.
17. Legal Disputes
You and CHRS agree that any claim or dispute at law or equity that has arisen, or may arise, between you and CHRS (including any claim or dispute between you and a third-party agent of CHRS) that relates in any way to or arises out of this Contract and User Agreement, your use of or access to the Services, the actions of CHRS or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of California, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and CHRS.
B. Agreement to Arbitrate
You and CHRS each agree that any and all disputes or claims that have arisen, or may arise, between you and CHRS (including any disputes or claims between you and a third-party agent of CHRS) that relate in any way to or arise out of this or previous versions of the Contract and User Agreement, your use of or access to the Services, the actions of CHRS or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration and only on an individual (non-class, non-representative) basis in the County of Alameda, California rather than in court. Alternatively, you may assert your claims in small claims court in the County of Alameda, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court in Alameda, California subject to your and CHRS’s right to appeal the court’s decision. All other claims will be arbitrated.
1) Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of this Contract and User Agreement as a court would. You and CHRS agree that all issues are for the arbitrator to decide, including any issues relating to arbitrability, and the scope or enforceability of this Agreement to Arbitrate.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice). The Notice to CHRS should be sent to
California Historical Radio Society
Post Office Box 31659
San Francisco, CA 94131
CHRS will send any Notice to you to the physical (postal) address we have on file associated with your CHRS account; it is your responsibility to keep your physical (postal) address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and CHRS are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or CHRS may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to CHRS at the address above.
In the event CHRS initiates an arbitration against you, it will send a copy of the completed form to the physical (postal) address we have on file associated with your CHRS account. Any settlement offer made by you or CHRS shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the county of Alameda, California or at another location if and only if mutually agreed. If the value of the relief sought is $3,000 or less, you or CHRS may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and CHRS subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or CHRS may attend by telephone, unless the arbitrator requires otherwise.
We expect that any arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and should honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same CHRS user if and to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof in the County of Alameda, California.
2) Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. If (a) you willfully fail to comply with the Notice of Dispute requirement discussed above, or (b) in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse CHRS for all fees associated with the arbitration paid by CHRS, and all legal and actual costs borne by CHRS including actual attorneys’ fees
If an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
4) Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against CHRS prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and CHRS. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.californiahistoricalradio.com at least 30 days before the effective date of the amendments. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
C. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and CHRS must be resolved exclusively by a state or federal court located in Alameda County, California. You and CHRS agree to submit to the personal jurisdiction of the courts located within Alameda County, California for the purpose of litigating all such claims or disputes.
Except as otherwise provided in this Contract and User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not limit our power to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this Contract and User Agreement at any time by posting the amended terms onwww.californiahistoricalradio.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we may notify you by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and a CHRS representative who intends to amend this User Agreement and has actual authority to agree to such an amendment.
The policies and terms posted with respect our Services may be changed from time to time. Changes take effect when we post them on www.californiahistoricalradio.com.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this Contract and User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship or the like is intended or created by this User Agreement.
The Contract and User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and CHRS, and supersede all or any prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
With respect to California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting it in writing at 400 “R” Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.