This Listing Agreement (“Agreement”) governs Your access to and use of the H-D1™ Marketplace Listing Portal (“Portal”). By clicking the box indicating Your acceptance of this Agreement, You acknowledge that You have read, understood, and are bound by the terms and conditions contained herein. This Agreement may be periodically updated and You will be bound by the updated terms of this Agreement each time you accept them. You further acknowledge that acceptance of the terms and conditions of this Agreement are required to access the Portal and maintain any Listing as defined below. In addition to the terms and conditions contained herein, You agree to comply with the terms and conditions governing harley-davidson.com, including but not limited to the terms and conditions specifically governing H-D1 Marketplace contained therein.
For purposes of this Agreement, the terms “You” and “Your” refer to both the person who holds legal title to the vehicle that is the subject of the Listing, as well as any person acting on their behalf in connection with the Listing or access to the Portal. By accepting the terms of this Agreement, You represent that You are the owner of the vehicle that is the subject of the Listing and that You have the authority to enter into this Agreement.
1. Scope
Harley-Davidson Motor Company, Inc. (“HDMC”) maintains the Portal as a means of providing You with the ability to submit Listings, as well as access to certain data and analytics related to each Listing on the H-D1 Marketplace website, a website owned by HDMC that displays Listings to the public and provides a means for interested parties to contact You about the potential purchase of Your Listings. In addition, the Portal provides a means for You to upload and submit Listings for publication on the H-D1 Marketplace subject to the terms and conditions contained herein. This Agreement governs Your use of the Portal as well as requirements for the display of any motorcycle You permit to be displayed on H-D1 Marketplace (each a “Listing”). Nothing herein shall be interpreted to permit You or provide You with any right to access or obtain any data with respect to any Listing other than Listings provided by You.
HDMC makes no representations or warranties about the type or extent of any data made available to You through the Portal, and HDMC reserves the right to add or remove any data available to You through the Portal at any time, without notice, in its sole discretion.
2. Listings
To the extent such authorization has not otherwise been provided, You must ensure that Your Listings comply with all requirements of HDMC and applicable law. Listings may not include any offensive or unlawful material; any material that is unrelated to the Listing; any material containing any computer virus, worm, or other malicious code; or any material that infringes another person’s copyright, trade or service mark, or any other intellectual property right. Except for aftermarket parts and accessories, any motorcycle that is the subject of a Listing submitted by You must have been originally manufactured by HDMC or an affiliate of HDMC.
Without limiting the foregoing, HDMC has the right to fully cooperate with any law enforcement authorities or court order requesting or directing HDMC (or one of its affiliates) to disclose the identity or other information of anyone posting any materials on or through the Portal. HDMC has the right, in our sole discretion, to reject any Listings that do not comply with these requirements. However, HDMC does not undertake to review all material before it is posted on the Portal and cannot ensure prompt removal of objectionable material after it has been posted. Accordingly, HDMC assumes no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party.
By accepting this Agreement, You grant HDMC and its affiliates and service providers, and each of their and our respective licensees, successors, and assigns, the right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties Your Listings, including but not limited to any images therein, on H-D1™ Marketplace and to promote H-D1 Marketplace.
3. Permissible use and access; Intellectual property
You may access, download, and use material displayed on the Portal or in connection with Your Listing only in accordance with the terms of this Agreement. You specifically acknowledge that Your use of the Portal and H-D1 Marketplace is subject to applicable federal, state, local, and international regulations and You represent and warrant that You will not use the Portal, H-D1 Marketplace or any data obtained through the Portal or H-D1 Marketplace in any manner or for any purpose that is unlawful or prohibited by this Agreement. HDMC may terminate or suspend Your access to the Portal, as well as decline to include any one or more of Your Listings on the H-D1 Marketplace if it determines in its sole discretion that: (a) Your use of the Portal or H-D1 Marketplace; or (b) one or more of Your Listings are unlawful or otherwise in breach of this Agreement or HDMC’s requirements for Listings.
You agree that You are responsible for complying with applicable privacy, data transfer, and data security laws, and You agree to abide by such laws in connection with Your use of the Portal. Without limiting the foregoing, You agree to not use any information (including personal information) made available to you on the Portal: (a) in any way that violates any applicable federal, state, or local law or regulation (including, without limitation, any laws regarding the export of the vehicle or any data or software to and from the US or other countries); (b) for the purpose of exploiting, harming, or attempting to exploit or harm a minor or other individual; (c) to transmit, or procure the sending of, any advertising or promotional material that may be considered “junk mail,” “chain letter,” “spam,” or other similar solicitation unrelated to Your Listing; (d) to impersonate or attempt to impersonate Harley-Davidson, a Harley-Davidson employee, another user or any other person or entity (including, without limitation by using email addresses or screen names associated with any of the foregoing); or (e) to engage in any other conduct that restricts or inhibits anyone’s use or enjoyment of the Portal, or which, as determined by us, may harm HDMC, its affiliates, or users of the Portal or expose them to liability.
Access to the Portal is granted in the absolute discretion of HDMC, and may be terminated at any time. Access is permitted by user name and password only and You must have Your own unique user name. You are responsible for protecting the confidentiality of any user names and passwords registered to Your account, and You accept responsibility for all actions which occur under such names and/or passwords. If You believe that Your user name or password has been compromised, You must contact HDMC promptly.
Although HDMC will attempt to provide accurate and updated information through the Portal, You acknowledge that Portal Content may contain errors or omissions and may not be current, and except as expressly provided herein, HDMC makes no representations or warranties about the accuracy of any Portal Content.
4. Your responsibility for contents of listings and idemnification
HDMC shall have no responsibility to make any revisions to any of Your Listings and shall have no responsibility for the content of Your Listings, including but not limited to the accuracy of any material contained in the Listing. You shall defend, indemnify, and hold harmless, and hereby do indemnify and hold harmless, HDMC and its affiliates, and their officers, directors, employees, agents, successors, and assigns (collectively, “H-D Indemnitees”) from and against any and all damages, losses, liabilities, penalties, fines, assessments, costs, and expenses, including but not limited to reasonable attorneys’ fees, experts’ fees, court costs, settlement amounts and damages awards (collectively “Damages”), incurred or suffered by H-D Indemnitee(s) pursuant to any third party claims, demands, suits and causes of action (collectively, “Claims”) against such HD Indemnitee(s) to the extent such Claims arise from or in connection with Your use of the H-D1™ Marketplace and the Portal, including but not limited to (a) Claims brought by third parties with respect to the use, advertising or promotion of motorcycles listed on the H-D1 Marketplace, (b) violations of applicable law by You in Your Listings of motorcycles displayed on the H-D1 Marketplace, (c) personal injury, death or property damage caused by acts or omissions of You relating to Your Listings, (d) Your breach of any of HDMC’s requirements relating to the H-D1 Marketplace, Portal, or this Agreement; (e) Your use or misuse of any data made available to You through the H-D1 Marketplace or Portal; (f) any negligent action or omission or intentional misconduct of You to the extent arising in connection with the sale of motorcycles listed on the H-D1 Marketplace. Notwithstanding anything to the contrary herein, You shall not be required to indemnify the HD Indemnitees pursuant to this section for any Claims to the extent relating to or arising out of (1) manufacturing or design defects in products or services provided by HDMC or its affiliates, (2) personal injury, death, property damage or other Damages to the extent caused by the negligence, intentional misconduct or error of, or breach of contract by, HDMC or its affiliates; or (3) any violation of applicable law by HDMC or its affiliates or their respective officers, directors, employees, agents, successors, or assigns. HDMC shall be permitted to defend, compromise and settle any Claims for which You are required to provide indemnification pursuant to this section, provided that HDMC shall not settle or otherwise compromise that Claim without Your prior written consent, such consent not to be unreasonably delayed, conditioned or withheld. In the defense of any claim or action pursuant to this Section, HDMC is entitled to separate representation by counsel of HDMC’s choice and the parties shall cooperate in the conduct of any such joint defense. Each Party shall give prompt written notice to the other of any occurrence of which it becomes aware that might reasonably be expected to result in any Claim against any one or more of the HDMC Indemnitees, provided the Party shall have no liability for failure to give such notice except to the extent the other Party is materially prejudiced by such failure. The obligations under this paragraph shall survive termination of the H-D1™ Marketplace and/or Portal, or of Your participation in the H-D1 Marketplace and/or Portal.
5. ADDITIONAL REPRESENTATIONS AND WARRANTIES
You represent and warrant that You are an owner of each motorcycle that is the subject of Your Listings and have the legal right and authority to sell and market each such motorcycle. In addition, you represent and warrant that you are a natural person and are not acting for or on behalf of any entity in the business of selling motorcycles or other motor vehicles.
You further represent and warrant that You have the right, discretion, and authority to enter into this Agreement. You also represent and warrant that You own or control all rights in and to any images or other content contained in any of Your Listings and to grant the license granted to HDMC and our affiliates and service providers, and each of their and our respective licensees, successors, and assigns.
6. ENTIRE AGREEMENT
This Agreement sets forth the entire understanding between the parties, and there are no other agreements or understandings, either written or oral, between the parties, relating to the subject matter of this Agreement. Except as otherwise provided herein, this Agreement supersedes and cancels all previous agreements between the parties that relate to any matters covered herein. No modifications, amendments or changes to this Agreement, except as otherwise provided herein, shall be valid and binding unless made in writing and signed by both parties.
7. SEVERABILITY
If any provision of this Agreement is held invalid and unenforceable for any reason whatsoever by any court or regulatory agency of competent jurisdiction, or to violate any applicable law, such provision(s) shall be deemed deleted from this Agreement, and the remainder of this Agreement shall remain in full force and effect.
8. ASSIGNMENT
This Agreement and/or the rights and duties hereunder may not be assigned by You in whole or in part without the prior written consent of HDMC. This Agreement and/or the rights and duties hereunder may be assigned in whole or in part by HDMC at any time. This Agreement is binding upon the heirs, successors and assigns of the parties.
9. WAIVER
The failure of either party to enforce at any time any of the provisions of this Agreement shall in no way be construed to be a waiver of such provisions, nor in any way to affect the validity of this Agreement or any part thereof, or the right of the party to thereafter enforce any such provision.
10. PRIVACY
The information we collect through the Portal is subject to our Privacy Policy. In addition, by using the Portal You agree that we may share Your Listing information (including, your name, contact information, vehicle information, and other information in Your Listing) with Your local Harley-Davidson® dealer to enable the dealer to inquire about purchasing the vehicle, and to inquire about facilitating any financing for the buyer if you sell your vehicle to a private buyer. If You do not wish us to share Your information in this way, You may check the relevant box located on the form when you post Your Listing or contact us through the contact information listed in our Privacy Policy.
11. GOVERNING LAW AND VENUE
This Agreement is deemed to have been accepted and executed in Wisconsin, and shall be construed in accordance with, and all disputes between the parties arising out of or relating to this Agreement shall be governed by, the laws of the State of Wisconsin, without regard to any choice of law or conflicts of law principles. Any and all disputes between the parties arising out of or related in any manner to this Addendum or its performance or breach must be brought, heard, and determined solely and exclusively in the state or federal courts sitting in Milwaukee, Wisconsin. All parties to this Agreement consent to the personal and subject matter jurisdiction and venue of such courts and waive and relinquish all right to attack the suitability or convenience of such venue or forum.
12. REFUNDS
Refunds are evaluated on a case-by-case basis, and can only be made within 60 days of the transaction. To initiate the refund process, contact our customer service team at 1-888-MY1-HDFS (1-888-691-4337).