Terms and Conditions

These Terms of Use ("Terms of Use" or "Agreement") shall serve as an agreement that sets forth the terms and conditions which will govern your use and participation in the transaction management and services provided on and through SmartWay LLC (the "Services"). By selecting to utilize the Services you shall have also indicated your acceptance of these Terms of Use and your intent and agreement to be bound by them. If you are unwilling to agree to these Terms of Use, you shall discontinue further use of the Services. If you agree to these Terms of Use, you will be bound as follows:

1. Rejection of Payment - Since the use of a bank account, credit card or debit card account, or the making of an electronic funds transfer may be limited by your agreement with your financial institution and/or by applicable law, SmartWay LLC is not liable to any User if SmartWay LLC does not complete a Transaction as a result of any such limit, or if a financial institution fails to honor any credit or debit to or from an Account. SmartWay LLC may post operating rules related to payment on the Site and change such rules from time to time.
2. General Conditions of Use - If you arrive at the Site through entities linked and/or integrated with SmartWay LLC or otherwise by or through a third party (e.g., an auction, exchange, or Internet-based intermediary that hosts electronic marketplaces and mediates transactions among businesses), then you authorize such third party to transfer relevant data to SmartWay LLC to facilitate the Transaction. You represent and warrant that all information you provide to SmartWay LLC or to such third party will be true, accurate and complete. The party entering into this Agreement on behalf of any User represents and warrants that he/she is authorized to do so and to bind the User and is a natural person of at least eighteen (18) years of age.
3. Obligations of Sellers - On the Transaction Detail Screens, each Seller to a Transaction must designate an Account to which payment for the Transaction will be made. Each Seller authorizes IES and its authorized agents to initiate credit entries to such Seller's Account for payment of the purchase price, or applicable balance due, and to debit Seller's Account to discharge Seller's obligations. Each Seller in a Transaction shall deliver the vehicles set forth in Transaction Detail Screens directly to the Buyer (or Buyers), at the address specified by such Buyer as shown on the SmartWay LLC website and on the terms and conditions set forth in the Transaction Instructions and General Instructions. Seller shall use a delivery service that provides a confirmation of delivery and Seller shall provide SmartWay LLC with a tracking or reference number for the shipment of the goods. Seller gives SmartWay LLC permission to act as its agent in communicating with the shipping company regarding the notice of the delivery of the goods. In the event SmartWay LLC does not receive notice of shipment from Seller within ten (10) calendar days of notification from SmartWay LLC's notice to Seller to ship the vehicles, Seller authorizes SmartWay LLC to return the funds (excluding SmartWay LLC fees) to Buyer. In the event of a return of the vehicles by Buyer, Seller shall notify SmartWay LLC of the receipt of the returned vehicles. Upon receipt of such notice from Seller, the Seller's five (5) day inspection period shall commence. In the event Seller accepts the returned vehicles within the inspection period or fails to act within the inspection period, SmartWay LLC shall remit the funds (excluding SmartWay LLC fees) to Buyer. If Seller notifies SmartWay LLC of its non-acceptance of any returned vehicles within the Seller's inspection period, then SmartWay LLC will retain the funds pending resolution of the dispute or take other action as authorized. Notwithstanding anything to the contrary above, if all Users to a Transaction agree on the Transaction Detail Screens that there is no shipping required, then no party hereto will have any obligation under this Agreement with respect to shipping.
4. Obligations of Buyers - On the Transaction Detail Screens, Buyer must designate a payment mechanism and an Account from which the purchase price and related fees (unless such fees are to be paid by Seller) will be obtained for the deposit into account. Depending on the amount of the Transaction and the currency selected for the Transaction, Buyer may remit the necessary funds via various methods, which may include corporate credit card, charge card, debit card or purchasing card, check (cheque), cashier's check, money order, or wire transfer. In the case of wire transfers, Buyer will initiate the wire to an account designated by SmartWay LLC on or before the date set forth in the Transaction Detail Screens. Regardless of the payment method, Buyer authorizes SmartWay LLC and SmartWay LLC authorized agents to initiate credit or debit transactions, as applicable, to obtain the purchase price and fees due for a Transaction and to initiate any debit or credit entries or reversals, as the case may be, as may be necessary to correct any error in a payment or transfer and to discharge Buyer's obligations under Section 22 of this Agreement. SmartWay LLC will deposit funds received from Buyer into an trust account maintained by SmartWay LLC (the "Account"). Unless otherwise requested as specified in the following sentence, deposits do not earn interest for Buyer or Seller. If you anticipate an extended closing of the Transaction, then you may request and approve an instruction to have SmartWay LLC place Buyer's funds into an interest bearing account for the benefit of Buyer or Seller. If interest is to accrue to the benefit of the Seller, then both Buyer and Seller must request and approve the establishment of the interest bearing account. If this request is made, then SmartWay LLC will charge the account of the party to whom the interest accrues an additional nonrefundable service charge of $100.00, which must be paid in advance.

Buyer shall notify SmartWay LLC of the receipt or non-receipt of the vehicles on the date the merchandise is received or the Buyer Inspection Period is started. Buyer shall notify SmartWay LLC of the Buyer's acceptance or rejection of the vehicles before the Buyer's Inspection Period expires. Upon receipt of notice from Buyer that the vehicles have been received and accepted, SmartWay LLC shall transfer the payment amount (less any amount payable to SmartWay LLC for SmartWay LLC fees) to Seller's Account. Transfer to a Seller generally will be initiated within the next business day from the day on which notice of acceptance of the vehicles is received from the Buyer. If Buyer has not notified SmartWay LLC of the non-receipt or rejection of the vehicles during the Buyer's Inspection Period, then Buyer authorizes SmartWay LLC to remit the funds (excluding SmartWay LLC fees) to the Seller. Buyer shall follow the procedures set forth on the Site in the event the vehicles are rejected.

1. Obligations of Brokers - On the Transaction Detail Screens, each Broker to a Transaction must designate an Account to which the Broker Fee payment will be made. Each Broker authorizes IES and its authorized agents to initiate credit entries to such Broker's Account for payment of the Broker's commission, and to debit Broker's account to discharge Broker's obligations. Each Broker in a Transaction shall provide Buyer email, Seller email, and Transaction details including purchase price, merchandise description, inspection period and which party is responsible for the Broker and account fees.
2. Our Responsibilities - SmartWay LLC is obligated to perform only those duties expressly described in this Agreement and the General Instructions. SmartWay LLC shall not be liable for any error in judgment, for any act taken or not taken, or for any mistake of fact or law, except for gross negligence or willful misconduct (subject to the limitations in Section 17 below). SmartWay LLC may rely upon any notice, demand, request, letter, certificate, agreement or any other document which purports to have been transmitted or signed by or on behalf of a User indicated as the sender or signatory thereof and shall have no duty to make any inquiry or investigation. In the event that SmartWay LLC is uncertain as to SmartWay LLC duties or rights under this Agreement, receives any instruction, demand or notice from any User or financial institution which, in SmartWay LLC's opinion, is in conflict with any of the provisions of this Agreement, or any dispute arises with respect to this Agreement or the Funds, SmartWay LLC may (i) consult with counsel of our choice (including our own attorneys) and any actions taken or not taken based upon advice of counsel shall be deemed consented to by you, or (ii) refrain from taking any action other than to retain the funds in for delivery in accordance with the written agreement of the Users, the final decision or award of an arbitrator pursuant to an arbitration commenced and conducted in accordance with the General Instructions or a final, non-appealable judgment of a court of competent jurisdiction, or (iii) discharge our duties under this Agreement by depositing all funds by interpleader action with a court of competent jurisdiction in accordance with the procedures outlined in the General Instructions.

1. Canceling a Transaction - If a Transaction cannot be completed for any reason, including cancellation by SmartWay LLC for any reason, SmartWay LLC will notify each User in such Transaction by e-mail, to the e-mail address each has provided to SmartWay LLC. In SmartWay LLC's sole discretion, SmartWay LLC may cancel any Transaction if each User to a Transaction fails to agree on the terms as required in the Transaction Details Screens by clicking the "Agree" button as requested on the Site. You may cancel a Transaction as provided in this Agreement, on the General Instructions or in the Transaction Instructions.
2. Questions about the Services - You may inquire about payments made through the Service by calling the toll-free number that appears on the Site or by filling out the customer service form. If you believe an error has been made or there has been any unauthorized use of your Account or the Services, you agree to call or send an e-mail as soon as possible, but no later than forty-eight hours after you became aware of an error. When you contact SmartWay LLC, please be prepared to provide your name, SmartWay LLC reference number and your email address you have registered on the SmartWay LLC site.
3. Statements, Verification - You agree that all disclosures and communications regarding this Agreement and the Service shall be made by e-mail or on the Site, unless the parties make other arrangements as set forth in the General Instructions.
4. Digital Identification - You understand and agree that SmartWay LLC will create, issue, and verify a digital identification (a "Digital ID") for each User. This Digital ID is attached to each accepted electronic document and notification e-mails. You agree that your Digital ID is a valid "Electronic Signature." Please review the General Instructions for more information about SmartWay LLC's use of the Digital ID.
5. Fees - Unless otherwise agreed upon by each User in the Transaction, Buyer agrees to pay the fees for the Services that are disclosed on the Site at the time the completed Transaction Instructions are agreed to by all such Users, as well as any other fees, including, without limitation, third party service fees (e.g., shipping, appraisal, inspection, etc.). Once paid, SmartWay LLC fees are nonrefundable. SmartWay LLC fees may change from time to time in SmartWay LLC's absolute and sole discretion. SmartWay LLC is not responsible for payment of any sales, use, personal property or other governmental tax or levy imposed on any vehicles purchased or sold through the Services or otherwise arising from the Transaction.
6. Security - SmartWay LLC uses secure sockets layer ("SSL"), a security protocol that provides data encryption, server authentication, and message integrity for connections to the Internet to ensure that the data you provide SmartWay LLC is not transmitted over the Internet unencrypted and cannot be viewed by unauthorized individuals. SmartWay LLC has also implemented a security system requiring a user ID and a password to access your transactions on the Site. You agree not to give your password to any other person or entity and to protect it from being used or discovered by anyone else.
7. Disclaimers - You expressly agree that your use of the Services is at your sole risk. The Services are provided on a strictly "as is" and "as available" basis. SmartWay LLC MAKES NO WARRANTY WITH REGARD TO THE UNDERLYING TRANSACTION, ANY vehicleS OBTAINED BY YOU THROUGH THE USE OF THE SITE OR THE SERVICES, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES OR THE SITE WILL BE UNINTERRUPTED, TIMELY, OR ERROR FREE.

SmartWay LLC expressly disclaims any and all express and implied warranties, including, but not limited to, the implied warranties of merchantability, fitness for a particular purpose and non-infringement. SmartWay LLC shall not be liable or responsible for those guarantees, warranties and representations, if any, offered by any Seller of vehicles. No advice or information, whether oral or written, obtained by you from SmartWay LLC or through the Services shall create any warranty not expressly made herein.

You acknowledge and agree that SmartWay LLC does not endorse the website of any third party, or assume responsibility or liability for the accuracy of any material contained therein, or any infringement of third party intellectual property rights arising therefrom, or any fraud or other crime facilitated thereby. In no event will SmartWay LLC be liable for any act or omission of any third party, including, but not limited to, your financial institution, any payment system, any third party service provider, any provider of telecommunications services, Internet access or computer equipment or software, any mail or delivery service or any payment or clearing house system or for any circumstances beyond SmartWay LLC's control (including but not limited to, fire, flood or other natural disaster, war, riot, strike, terrorism, act of civil or military authority, equipment failure, computer virus, infiltration or hacking by a third party, or failure or interruption of electrical, telecommunications or other utility services).

1. Limitation of Liability - TO THE EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SmartWay LLC NOR ITS AFFILIATES, SHALL BE LIABLE FOR ANY DAMAGES, WHETHER DIRECT, INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL, RELATING TO YOUR USE OF THE SITE OR THE SERVICES OR YOUR INABILITY TO USE THE SITE OR THE SERVICES.
2. Termination of Services - SmartWay LLC may suspend or terminate your use of the Services at any time, without notice for any reason, in SmartWay LLC's sole discretion. Except as warranted by risk to the security, privacy or integrity of the Services, SmartWay LLC will attempt to provide you with prior notice of the suspension or termination of the Services by sending you an e-mail, but SmartWay LLC is not obligated to do so. You shall remain liable for all Transactions you initiate through the Services prior to such termination, and the performance of your obligations, including but not limited to, the delivery of the vehicles and the payment of all amounts you owe prior to termination or discontinuation of your use of the Services.
3. Non-Transferability of the Services - You may not assign this Agreement or the Instructions to any other person or entity. Your right to use the Services shall not be sold or transferred to any other person or entity without the prior written consent of SmartWay LLC. SmartWay LLC may assign this Agreement upon notice to you. Any assignment or transfer in violation of this provision shall be null and void.
4. Modifications - SmartWay LLC reserves the right to change this Agreement, or any portion of it, at any time, without prior notice, provided that no such change will apply to a Transaction once the Users to such Transaction have agreed to the Transaction Instructions. You understand that the most recent version of this Agreement will be located on the Site.
5. Notices - Notices from SmartWay LLC to you will be given by e-mail, or by general posting on the Site. You may contact SmartWay LLC by filling out the customer support form or such other email address as SmartWay LLC posts as its address for notice on the Site in the most recent version of the Terms of Use
6. Indemnification - You agree to indemnify and hold SmartWay LLC, SmartWay LLC affiliates and their respective officers, directors, shareholders, employees and assigns, harmless from any claim, demand, expense or damage, including reasonable attorneys' fees and court costs, arising from or relating to your use of the Services or any violation of this Agreement, the rules contained on the Site or the Transaction Instructions, including, without limitation, payment of SmartWay LLC fees and any charge backs from a card organization or reversal or nonpayment of any credit or debit entry.

Miscellaneous - In the event of any dispute, claim, question, or disagreement arising from or relating to, this Agreement or to the Underlying Transaction, or breach of any of them, you agree to resolve such dispute in the manner set forth in the General Instructions. This Agreement shall be governed by the laws of the State of California. Any dispute shall be resolved pursuant to the Dispute Resolution and Governing Law/Venue provisions of the General Instructions. This Agreement in conjunction with the General Instructions and rules contained on the Site constitutes the entire agreement between SmartWay LLC and you relating to the subject matter hereof and supersedes all prior or contemporaneous understandings, agreements, communications and/or advertising with respect to such subject matter. If there is a conflict between the terms and conditions of this Agreement, the rules contained on the Site, and/or the General Instructions, then the conflicting terms set forth in the General Instructions shall control first, these Terms of Use shall control second and the rules contained on the Site shall control third. The General Instructions are incorporated herein by this reference. SmartWay LLC's failure to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by SmartWay LLC in writing. If any term or other provision of this Agreement is invalid, illegal or incapable of being enforced by any law or public policy, all other terms and provisions of this Agreement shall nevertheless remain in full force and effect for so long as the economic or legal substance of the transactions contemplated hereby is not affected in any manner materially adverse to any party hereto.

SmartWay LLC may assign this Agreement to any current or future affiliated company and to any successor in interest. SmartWay LLC also may delegate certain of SmartWay LLC rights and responsibilities under the Agreement to independent contractors or other third parties.

If you are a registered User of the Site, then each time you request the Services will constitute your agreement to these Terms of Use, as amended from time to time in SmartWay LLC's sole discretion, and evidence that you have read, understood and accepted the then applicable Terms of Use.

Revised July 16, 2020.