Droply by Abound Terms of Service Agreement
PLEASE READ THIS TERMS OF SERVICE AGREEMENT (THE “TERMS OF SERVICE”) CAREFULLY. THIS AGREEMENT APPLIES TO THE DROPLY BY ABOUND WEBSITE (“WEBSITE”) AND THE SERVICES AND RESOURCES AVAILABLE ON OR ENABLED VIA THE WEBSITE (COLLECTIVELY THE “PLATFORM”) WHICH IS OWNED AND OPERATED BY REPLOGIC, INC. (DBA ABOUND) (“COMPANY,” “OUR,” “WE,” OR “US”). THE PLATFORM PROVIDES A MARKETPLACE TO ALLOW USERS TO OFFER TO SELL, SELL AND BUY ITEMS. THESE TERMS OF SERVICE GOVERN THE USE OF THE WEBSITE AND APPLY TO ALL INTERNET USERS VISITING THE WEBSITE (“USERS”). BY ACCESSING OR USING THE WEBSITE IN ANY WAY, INCLUDING USING THE SERVICES AND RESOURCES AVAILABLE OR ENABLED VIA THE WEBSITE (EACH A “SERVICE” AND COLLECTIVELY, THE “SERVICES”). BY CLICKING ON THE “I ACCEPT” BUTTON, AND/OR COMPLETING THE REGISTRATION PROCESS, YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH COMPANY, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THE AGREEMENT PERSONALLY OR ON BEHALF OF COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THE TERMS OF SERVICE. THE TERM “YOU” REFERS TO THE INDIVIDUAL OR LEGAL ENTITY, AS APPLICABLE, IDENTIFIED AS THE USER WHEN YOU REGISTERED ON THE WEBSITE. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF SERVICE, YOU MAY NOT ACCESS OR USE THIS WEBSITE OR THE SERVICES.
THE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT COMPANY HAS NO LIABILITY REGARDING THE SERVICES (SECTION 3 (COMPANY ONLY PROVIDES A VENUE)); (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY (SECTION 17 (DISCLAIMER OF WARRANTIES AND CONDITIONS)); (3) YOUR CONSENT TO RELEASE COMPANY FROM LIABILITY (SECTION 15 (RELEASE)); AND (4) YOUR AGREEMENT TO INDEMNIFY COMPANY FOR YOUR USE OF, OR INABILITY TO USE, THE SERVICES (SECTION 16 (INDEMNIFICATION)).
SECTION 23 (ARBITRATION AGREEMENT) CONTAINS PROVISIONS THAT GOVERN HOW TO RESOLVE DISPUTES BETWEEN YOU AND COMPANY. AMONG OTHER THINGS, SECTION 23 (ARBITRATION AGREEMENT) INCLUDES AN AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL DISPUTES BETWEEN YOU AND US SHALL BE RESOLVED BY BINDING AND FINAL ARBITRATION. SECTION 23 ALSO CONTAINS A CLASS ACTION AND JURY TRIAL WAIVER. PLEASE READ SECTION 23 (ARBITRATION AGREEMENT) CAREFULLY.
UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT (AS DEFINED IN SECTION 23) WITHIN THIRTY
(30) DAYS IN ACCORDANCE WITH SECTION 23.10 (30-DAY RIGHT TO OPT OUT): (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND YOU WAIVE YOUR RIGHT TO PARTICIPATE IN A CLASS ACTION LAWSUIT OR CLASS-WIDE ARBITRATION; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SERVICE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK,
CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in the Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If the Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. The Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.”
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY COMPANY IN ITS SOLE DISCRETION AT
ANY TIME. When changes are made, Company will make a new copy of the Terms of Service Agreement available at the Website and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website. We will also update the “Effective Date” at the top of the Terms of Service Agreement. If we make any material changes, and you have registered with us to create an Account (as defined in Section 5.1 (Registering Your Account) below), we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website and/ or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users, provided that any material changes shall be effective for Registered Users who have an Account with us upon the earlier of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users (defined in Section 5.1 (Registering Your Account) below). Company may require you to provide consent to the updated Agreement in a specified manner before further use of the Website and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website and/or the Services. Otherwise, your continued use of the Website and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS.
SERVICES CONNECT RETAILERS AND BRANDS. Company provides a marketplace that allows Users to offer, sell, resell and buy items (“Products”). As a marketplace, we do not own or sell the items listed on the Website (“Products”), so the actual contract for sale is directly between the individuals seeking to sell items (“Brands”) and individuals seeking to buy and resell items (“Retailers”) to its customers (“Customers”). While we may, in our discretion, help facilitate the resolution of disputes through various programs, Company has no control over and does not guarantee the existence, quality, safety or legality of items offered on the Platform; the truth or accuracy of Users’ content or listings; the ability of Brands to sell Products; the ability of Retailers to pay for Products; or that a Retailer and Brand will actually complete a transaction or return a Product.
THE PLATFORM CONNECTS RETAILERS AND BRANDS. The Platform provides a marketplace that allows Brands to offer to sell and sell, and Retailers to purchase, Products. You may not use the Platform to solicit, advertise for, or contact in any form, Users for employment or any other purpose not related to the Platform facilitated through the Website. You may not use the Platform to collect usernames and/or e-mail addresses of Users by electronic or other means without the express prior written consent of the
Company. As a marketplace, we do not personally provide or deliver any of the Products, so the actual contract for the provision of any Product is directly between the Retailer and the Brand listing such Product.
COMPANY ONLY PROVIDES A VENUE. While Company may provide pricing and guidance on our Platform, such information is solely informational. We do not take part in the interaction between Users. We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by Users, items sold by Brands, or of the integrity, responsibility, or any actions of any Users. Company makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions. Company cannot confirm that each User is who they claim to be. Company does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Platform.
When interacting with other Users, you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don't know. NEITHER COMPANY NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES. COMPANY AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE COMPANY PROPERTIES (AS DEFINED BELOW).
USE OF THE PLATFORM, THE SERVICES AND COMPANY PROPERTIES. The Platform, the Website,
the Services, and the information and content available on the Website, Platform, and the Services (each, a “Company Property” and collectively, the “Company Properties”) are protected by copyright laws throughout the world. Subject to the Agreement, Company grants you a limited license and right to access and reproduce portions of Company Properties for the sole purpose of using the Platform to procure or sell Products. Unless otherwise specified by Company in a separate license, your right to use any and all Company Properties is subject to the Agreement.
Updates. You understand that Company Properties are evolving. As a result, you acknowledge and agree that Company may update Company Properties with or without notifying you. You may need to update third-party software from time to time in order to use Company Properties. Any future release, update or other addition to Company Properties shall be subject to the Agreement.
Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Company Properties or any portion of Company Properties, including the Website; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Company Properties (including images, text, page layout or form) of Company; (c) you shall not use any metatags or other “hidden text” using Company’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of Company Properties except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Website (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein or in the Services, no part of Company Properties may be copied, reproduced, distributed, republished,
downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in Company Properties. Company, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of any Company Property terminates the licenses/rights granted by Company pursuant to the Agreement.
Company Communications. By entering into this Agreement or using the Company Properties, you agree to receive communications from us, including via e-mail, text message (for operational purposes only), calls, and push notifications. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Company Properties, updates concerning new and existing features on the Company Properties, communications concerning promotions run by us or our third-party partners, and news concerning the Company and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
Registering Your Account. In order to access certain features of Company Properties you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a user who has registered an account on the Website (“Account”).
Registration Data. In registering an account on the Website, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are not a person barred from using Company Properties under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of Company Properties by minors. You may not share your Account or password with anyone, and you agree to (y) notify Company immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Company has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Company has the right to suspend or terminate your Account and refuse any and all current or future use of Company Properties (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account on the Platform at any given time. Company reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use Company Properties if you have been previously removed by Company, or if you have been previously banned from any of Company Properties.
Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account, and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Company.
Necessary Equipment and Software. You must provide all equipment and software necessary to connect to Company Properties. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing Company Properties.
RESPONSIBILITY FOR CONTENT.
Types of Content. You acknowledge that all Content, including Company Properties, is the sole responsibility of the party from whom such Content originated. This means that you, and not Company, are entirely responsible for all Content that you upload, post, e-mail, transmit or otherwise make available (“Make Available”) through Company Properties (“Your Content”), and that you and other Registered Users of Company Properties, and not Company, are similarly responsible for all Content that you and they Make Available through Company Properties (“User Content”).
No Obligation to Pre-Screen Content. You acknowledge that Company has no obligation to pre-screen Content (including, but not limited to, User Content), although Company reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. You acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, or voice communications. In the event that Company pre-screens, refuses or removes any Content, you acknowledge that Company will do so for Company’s benefit, not yours. Without limiting the foregoing, Company shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
Storage. Unless expressly agreed to by Company in writing elsewhere, Company has no obligation to store any of Your Content that you Make Available on Company Properties. Company has no responsibility or liability for the deletion or accuracy of any Content, including Your Content; the failure to store, transmit or receive transmission of Content; or the security, privacy, storage, or transmission of other communications originating with or involving use of Company Properties. Certain Services may enable you to specify the level at which such Services restrict access to Your Content. You are solely responsible for applying the appropriate level of access to Your Content. If you do not choose, the system may default to its most permissive setting. You agree that Company retains the right to create reasonable limits on Company’s use and storage of the Content, including Your Content, such as limits on file size, storage space, processing capacity, and similar limits described on the Website and as otherwise determined by Company in its sole discretion.
Company Properties. Except with respect to Your Content and User Content, you agree that Company and its suppliers own all rights, title and interest in Company Properties.
“Droply,” “Abound,” and all related graphics, logos, service marks and trade names used on or in connection with any Company Properties or in connection with the Services are the trademarks of Company and may not be used without permission in connection with your, or any third- party, products or services. Other trademarks, service marks and trade names that may appear on or in Company Properties are the property of their respective owners.
Your Content. Company does not claim ownership of Your Content. When you, as a Registered User, post or publish Your Content on or in Company Properties (including without limitation Product Listings), you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights and validly and irrevocably granted to you the right to grant the license stated above.
License to Your Content. Subject to any applicable account settings that you select, you grant Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part, including without limitation Product Listings) for the purposes of operating and providing Company Properties to you and to our other Registered Users. Please remember that other Registered Users, as well as Customers, may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of Company Properties. You agree that you, not Company, are responsible for all of Your Content that you Make Available on or in Company Properties. Any Content posted by you in your profile may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Company in its sole discretion. You may not post or submit for print services a photograph of another person without that person’s permission. “Product Listings” means any Product photos and descriptive information.
Username. Notwithstanding anything contained herein to the contrary, by submitting Your Content to any forums, comments, or any other area on Company Properties, you hereby expressly permit Company to identify you by your company name as the contributor of Your Content in any publication in any form, media or technology now known or later developed in connection with Your Content.
Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Company through its suggestion, feedback, wiki, forum, or similar pages (“Feedback”) is at your own risk and that Company has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Company a fully paid, royalty-free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of Company Properties and/or Company’s business.
As a condition of use, you agree not to use Company Properties for any purpose that is prohibited by this Agreement or by applicable law. You shall not (and shall not permit any third party) to either (a) take any action or (b) Make Available any Content on or through Company Properties that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or
entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Company’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Company; (vi) interferes with or attempt to interfere with the proper functioning of Company Properties or uses Company Properties in any way not expressly permitted by this Agreement; (vii) manipulates the price of any listed item or interferes with a User profile or Product Listings; (ix) transfers your Account and/or username to another party without our consent; (x) bypasses our robot exclusion hardware, interferes with the working of the Platform, or imposes an unreasonable or disproportionately large load on our infrastructure; (xi) uses the Platform to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (xii) takes any action that may undermine our feedback or ratings systems; (xiii) breaches or circumvents any laws, third party rights or our systems, policies, or determinations of your account status; or (xiv) attempts to engage in or engages in, any potentially harmful acts that are directed against Company Properties, including but not limited to violating or attempting to violate any security features of Company Properties, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in Company Properties, introducing viruses, worms, or similar harmful code into Company Properties, or interfering or attempting to interfere with use of Company Properties by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” Company Properties.
Return Policy. UNLESS OTHERWISE STATED BY BRAND, ALL SALES ARE FINAL AND NO RETURNS WILL BE ACCEPTED, OR REFUNDS ISSUED, FOR PRODUCTS PURCHASED THROUGH THE
PLATFORM. Notwithstanding the foregoing, subject to the following terms and conditions, Retailers may return Products within seven (7) days of receipt in the event such Products are received by Customer damaged, incorrect, or missing and Brands must accept such returns and issue refunds for the affected items. In order to initiate the returns process, Retailers must use the returns form located in your Account orders page and provide and submit the required information. If Company determines that the items qualify for a return, Brands will provide Retailer with a return shipping label, unless the Company or Buyer decides such item(s) do not need to be physically returned to qualify for a refund or the item(s) are missing (“Return Exception”). Other than in connection with a Return Exception, all items must be returned using the return shipping label to the location identified therein in order to be eligible for a refund. Items must be returned in their original condition and packaging, with any labels, tags or marketing materials of the Brand. If Company determines that a refund is appropriate (e.g. the items from an initial purchase are in their original condition or the items were received damaged upon receipt or were missing or incorrect), Company will issue Retailer a refund for the purchase price of the Product (including shipping and taxes paid). The applicable Brand will be responsible for promptly paying any refunded amounts, either to Company or Retailer directly. Company shall have the right to off-set any refunded amounts from future payments by Company to Brand.
Terms Specific to Brands (Sellers). The following terms apply to Brands:
When listing an item, you agree to comply with our rules for listing and that:
You are responsible for the content of the Product Listing and agree to provide complete and accurate data and information about Products (such as listing description, price, and other characteristics) to be listed on the Platform and Retailer’s websites in accordance with this Agreement. You are responsible for keeping all Product Listings up-to-date, accurate and complete at all times and ensure proper inventory is available to fulfill orders and timely deliver all Products (no shipment of Products should exceed your stated lead time).
You are solely responsible for the fulfillment and shipping of any Product sold via the Platform to the contact and address provided by a Retailer; provided the address is within the United States.
If Products are missing, incorrect or damaged in your shipment, the Retailer or Company will notify you and you will not receive payment for missing or damaged items, or if you have already received payment, you must immediately refund Company or Retailer (as instructed) any amount paid for such item, including shipping and taxes. Damaged items may be returned to Brand upon request. Company reserves the right to process a chargeback and/or request a refund from Brand if: (i) Brand cancels a Product order; (ii) Brand fails to ship a Product within its stated lead time; or (iii) Brand ships the wrong Product to a Retailer or Customer.
You shall comply with all applicable laws, rules and regulations in the offer to sell, sale, and shipping of Products. No shipments of Products by Brands may contain hazardous materials.
Company reserves the right to remove any Product Listing and Product (in whole or part) from the Platform for any reason. Company has the right, but not the obligation, to include Products and Product Listing on the Platform and to list, market or promote Products through the Services.
You shall make available and sell Products to Retailers at the prices found in the Product Listing and in accordance with the terms and conditions set out in this Agreement. Such price shall include all fees, other than applicable sales tax and delivery fees, which shall be separately communicated by you to Retailers.
You shall properly label, pack, mark, and otherwise prepare the Products for shipment in a manner acceptable to carriers and in accordance with good commercial practice and all regulations to ensure the safe arrival of Products to Retailers/Customers. You shall not include any marketing or promotional materials in the packaging of any Products shipped to Retailer or Customers. All packaging should be neutral in color and design.
License to Your Marks. During the Term, you grant to a non-exclusive, nontransferable license to use and display the name, logo and other identifiers of your company and/or Products (“Brand Marks”) (a) to Company, solely for the purposes of performance of its rights and obligations under this Agreement and the promotion of such Products and the Services and (b) to Retailers to use in connection with Retailer’s resale of Products on its websites. Company agrees that your Brand Marks and the goodwill associated with them are and will remain your sole property.
Terms Specific to Retailers (Buyers). The following terms apply to Retailers:
When buying an item on the Platform, you agree:
You are responsible for reading the full Product Listing before making a commitment to buy.
DESCRIPTIONS, IMAGES, REFERENCES, FEATURES, CONTENT, SPECIFICATIONS, PRODUCTS, PRICES, AND AVAILABILITY OF ANY PRODUCTS ARE SUBJECT TO CHANGE WITHOUT NOTICE. THE INCLUSION OF ANY PRODUCTS ON THE SERVICES AT A PARTICULAR TIME DOES NOT IMPLY OR WARRANT THAT THESE PRODUCTS WILL BE AVAILABLE AT ANY TIME.
You enter into a legally binding contract with the Brand to purchase a Product when you commit to buy a Product. You must pay Brand the price found on the Product Listing, plus applicable tax and delivery charges, regardless of the price you may charge a Customer and whether or not such Customer has remitted payment to you. You are solely responsible for collecting all payments for Products from Customers.
You must have a valid reseller ID and associate certificate if you conduct business in a state that collects sales tax. You agree to provide such information to Company and the Brand upon request for tax compliance purposes. Your resale of any Products shall comply in all respects to applicable law, rules and regulations.
All items you purchase via the Platform may only be resold to end customers and consumers of the items, and not for further resale and distribution or for personal use by you. You will not sell any Products under a private label and all Product listings you provide must be consistent with the Product Listing on the Platform and identify the Brand as the source, unless agreed otherwise by the Brand.
Company or Brands may refuse to (i) allow you to make any Product available to your Customers and/or use the Product Listing; and (ii) sell you any Product for any reason. Without limiting the foregoing, Company and Brands reserve the right to deny any order for any reason, including if: (i) an error in pricing and/or other information about the Product is discovered or Brand receives insufficient or erroneous billing, payment, and/or shipping information, (ii) a party suspects an order has been placed using stolen payment card information or otherwise appears to be connected to fraud, or (iii) the ordered Product is unavailable due to discontinuance or otherwise. Company and/or Brand may also refuse any order that is connected with a previous payment dispute. Each part of any order that you submit to Brands via the Platform constitutes an offer to purchase. If you do not receive a message from the Brand or Company confirming receipt of your order, please contact our Customer Service department at before re-entering your order. Company or Brands confirmation of receipt of your order does not constitute Brand’s acceptance of your order. Brand is only deemed to have accepted your order once the Product(s) you ordered have been shipped.
Brands shall be responsible for arranging shipping and delivery of ordered Products to the Customer and address you provide via the Platform; provided such address is within the United States and you pay for all applicable shipping charges.
The listed price of Products you may purchase does not include any taxes or delivery charges. Taxes and delivery charges are as advised to you during the check-out process, before you confirm your order.
License. Subject to the terms and conditions of this Agreement, Company grants Retailers a limited, revocable, non-transferable, non-sublicensable, royalty-free, non-exclusive right and license to
use certain Brands’ Product Listings and Brand Marks (as approved by Company and/or Brands on an individual basis) solely on its website(s) in connection with the resale of such Products to its Customers located within the United States. You agree that the Brand Marks and the goodwill associated with them are and will remain the Brands’ sole property.
NO SOLICITATION. The Platform may not be used to solicit for any other business, website or services. You may not solicit, advertise for, or contact in any form Users for employment, contracting, or any other purpose not related to the Services facilitated through the Company Properties. You may not use the Platform to collect usernames and/or email addresses of Users by electronic or other means without the express prior written consent of Company.
INVESTIGATIONS. Company may, but is not obligated to, monitor or review Company Properties and Content at any time. Without limiting the foregoing, Company shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Company does not generally monitor user activity occurring in connection with Company Properties or Content, if Company becomes aware of any possible violations by you of any provision of the Agreement, Company reserves the right to investigate such violations, and Company may, at its sole discretion, immediately terminate your license to use Company Properties, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
INTERACTIONS WITH OTHER USERS.
User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Company reserves the right, but has no obligation, to intercede in such disputes. You agree that Company will not be responsible for any liability incurred as the result of such interactions.
Content Provided by Other Users. Company Properties may contain User Content provided by other Registered Users. Company is not responsible for and does not control User Content (including without limitation the Product Listings). Company has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content, including without limitation any Products or Brands. You use all User Content and interact with other Registered Users at your own risk.
Subverting the Platform. The value of the Platform rests in its thriving marketplace for Retailers and Brands. It is a material breach of this Agreement to arrange for the sale of listed items from, or the payment of fees to, Brands outside the context of the Platform for the purposes of circumventing the obligation to pay the Company’s fee for items purchased through the Platform.
FEES AND PAYMENT POLICY.
Company Commission. The commission that the Company charges for using the Platform is listed in our help center at https://helloabound.kustomer.help/ (“Commission”). We may change Commission amounts from time to time by posting the changes in the help center and via email. The new Commissions will apply to purchases on the Platform after the changes are posted to the Platform.
Payment of Fees. Retailers contract directly with Brands for the purchase of items on the Platform. The Company is not a party to any such sales. The Company facilitates these sales through hosting the Platform and by facilitating the exchange of money as described below. You agree to pay
Company through our payment processor (currently Stripe) and billing agents all charges at the prices then in effect for any purchases in accordance with the applicable payment terms presented to you at the time of purchase. If no such payment terms are presented, all payments will be processed at the time of purchase. We reserve the right to correct, or to instruct our payment processor to correct, any errors or mistakes, even if payment has already been requested or received. All payments must be made through the Platform. The Commissions related to each purchase on the Platform is deducted from the purchase price paid by the Retailer, with the remainder remitted to the Brand. You understand and agree that the Company itself does not process the transmission of funds and thus it is not a separate and discrete service that the Company provides in addition to the Platform.
Third Party Services.
Taxes. The amounts paid under this Agreement do not include any Sales Tax that may be due in connection with any Services provided under this Agreement. If the Company determines it has a legal obligation to collect Sales Tax from a User in connection with this Agreement, the Company shall collect such Sales Tax in addition to the amounts required under this Agreement. If any Services, or payments for
any Services, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to the Company, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify the Company for any liability or expense the Company may incur in connection with such Sales Taxes. Upon the Company’s request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
RELEASE. The Company expressly disclaims any liability that may arise between Users of its Platform. The Platform is only a venue for connecting Retailers with Brands. Because the Company is not a party to the actual contracts between Retailers and Brands, in the event that you have a dispute with one or more Users, you release the Company, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any Users (collectively, the “Company Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.”
The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Company Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Platform provided hereunder.
INDEMNIFICATION. You agree to indemnify and hold Company, its parents, subsidiaries, affiliates, officers, employees, agents, partners, suppliers, and licensors (each, a “Company Party” and collectively, the “Company Parties”) harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your Products; (c) your use of, or inability to use, any Company Property; (d) your violation of the Agreement; (e) your violation of any rights of another party, including any Users; or (f) your violation of any applicable laws, rules or regulations. Company reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Company in asserting any available defenses. This provision does not require you to indemnify any of the Company Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Website or any Services provided hereunder. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to Company Properties.
DISCLAIMER OF WARRANTIES AND CONDITIONS.
As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF COMPANY PROPERTIES IS AT YOUR SOLE RISK, AND COMPANY PROPERTIES ARE
PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. COMPANY PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE
OF THE WEBSITE. This Section 17 (Disclaimer of Warranties and Conditions) does not affect in any way the return policy or limited warranty for Products provided, if any, by a Brand.
COMPANY PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) COMPANY PROPERTIES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF COMPANY PROPERTIES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF COMPANY PROPERTIES WILL BE ACCURATE OR RELIABLE. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE PLATFORM, AND OPERATION OF THE PLATFORM MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.
ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH COMPANY PROPERTIES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS COMPANY PROPERTIES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. COMPANY MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM COMPANY OR THROUGH COMPANY PROPERTIES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
FROM TIME TO TIME, COMPANY MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT COMPANY’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
WE MAKE REASONABLE EFFORTS TO ACCURATELY DISPLAY THE ATTRIBUTES OF THE PRODUCTS, INCLUDING THE APPLICABLE COLORS; HOWEVER, THE ACTUAL COLOR SEEN WILL DEPEND ON THE USER’S COMPUTER SYSTEM, AND WE CANNOT GUARANTEE THAT A USER’S COMPUTER WILL ACCURATELY DISPLAY SUCH COLORS.
No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT COMPANY PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD COMPANY PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OTHER USERS AND OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
Company makes no warranty regarding the quality of any Products, or the accuracy, timeliness, truthfulness, completeness or reliability of any User Content obtained through the Company Properties.
Company does not transfer legal ownership of items from the Brand to the Retailer. New York Commercial Code §2-401(2) and Uniform Commercial Code §2-401(2) apply to the transfer of ownership between the Retailer and the Brand, unless the Retailer and the Brand agree otherwise. Company does not transfer legal ownership of items from Brand to the Retailer.
No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF COMPANY PROPERTIES.YOU UNDERSTAND THAT COMPANY DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF COMPANY PROPERTIES. COMPANY MAKES NO WARRANTY REGARDING THE PRODUCTS PROVIDED BY BRANDS, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
Third-Party Materials. As a part of Company Properties, you may have access to materials that are hosted by another party. You agree that it is impossible for Company to monitor such materials and that you access these materials at your own risk.
LIMITATION OF LIABILITY.
Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL COMPANY PARTIES BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF COMPANY PROPERTIES, ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) THE USE OR INABILITY TO USE COMPANY PROPERTIES; (b) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION, PRODUCTS, OR SERVICES PURCHASED OR OBTAINED; OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH COMPANY PROPERTIES; (c) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON COMPANY PROPERTIES; OR (e) ANY OTHER MATTER RELATED TO COMPANY PROPERTIES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, COMPANY PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO COMPANY BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A COMPANY PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A COMPANY PARTY’S NEGLIGENCE; OR FOR (ii) ANY INJURY CAUSED BY A COMPANY PARTY’S FRAUD OR FRAUDULENT MISREPRESENTATION.
User Content. COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OR FAILURE TO STORE ANY CONTENT (INCLUDING, BUT NOT LIMITED TO, YOUR CONTENT AND USER CONTENT), USER COMMUNICATIONS, OR PERSONALIZATION SETTINGS.
Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN COMPANY AND YOU.
PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Company’s policy to
terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Company by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on Company Properties in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on Company Properties of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Company’s Copyright Agent for notice of claims of copyright infringement is as follows:
Designated Agent: Abound Copyright Compliance
Address of Agent: 121 West 36th Street, Suite 410 NY, NY 10018
MONITORING AND ENFORCEMENT. Company reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Company Properties or the public, or could create liability for the Company; (c) disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Company Properties; and/or (e) terminate or suspend your access to all or part of the Company Properties for any or no reason, including without limitation, any violation of this Agreement.
If Company becomes aware of any possible violations by you of the Agreement, Company reserves the right to investigate such violations. If, as a result of the investigation, Company believes that criminal activity has occurred, Company reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Company is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in Company Properties, including Your Content, in Company’s possession in connection with your use of Company Properties, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Company, its Registered Users or the public, and all enforcement or other government officials, as Company in its sole discretion believes to be necessary or appropriate.
TERM AND TERMINATION.
Term. The Agreement commences on the date when you accept them (as described in the preamble above) and remain in full force and effect while you use Company Properties, unless terminated earlier in accordance with the Agreement.
Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used Company Properties or (b) the date you accepted the Agreement, and that the Agreement will remain in full force and effect while you use any Company Properties, unless earlier terminated in accordance with the Agreement.
No Subsequent Registration. If your registration(s) with, or ability to access, Company Properties or any other Company community, is discontinued by Company due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access Company Properties or any Company community through use of a different member name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Company Properties to which your access has been terminated and any orders placed for Products may be cancelled, at the sole discretion of Company. In the event that you violate the immediately preceding sentence, Company reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
PLATFORM IS FOR US-BASED USERS ONLY. Company Properties may be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Company intends to announce such Services or Content in your country. Company Properties are controlled and offered by Company from its facilities in the United States of America. Company makes no representations that Company Properties are appropriate or available for use in other locations. Those who access or use Company Properties from other countries do so at their own volition and are responsible for compliance with local law.
ARBITRATION AGREEMENT. Please read this section (the “Arbitration Agreement”) carefully. It is part of your contract with Company and affects your rights. It contains procedures for MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and Company agree that any dispute, claim, disagreements arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement and prior versions of this Agreement, including claims and disputes that arose between you and us before the effective date of this Agreement (each, a “Dispute”) will be resolved by binding arbitration, rather than in court, except that: (i) you and Company may assert claims or seek relief in small claims court if such claims qualify and remain in small claims court; and (ii) you or Company may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). For purposes of this Arbitration Agreement, “Dispute” will also include disputes that arose or involve facts occurring before the existence of this or any prior versions of this Agreement as well as claims that may arise after the termination of this Agreement.
Informal Dispute Resolution. There might be instances when a Dispute arises between you and Company. If that occurs, Company is committed to working with you to reach a reasonable
resolution. You and Company agree that good faith informal efforts to resolve Disputes can result in a prompt, low‐cost and mutually beneficial outcome (“Informal Dispute Resolution”). You and Company therefore agree that before either party commences arbitration against the other (or initiates an action in small claims court if a party so elects), we will personally meet and confer telephonically or via videoconference, in a good faith effort to resolve informally any Dispute covered by this Arbitration Agreement (“Informal Dispute Resolution Conference”). If you are represented by counsel, your counsel may participate in the conference, but you will also participate in the conference.
The party initiating a Dispute must give notice to the other party in writing of its intent to initiate an Informal Dispute Resolution Conference (“Notice”), which shall occur within forty-five (45) days after the other party receives such Notice, unless an extension is mutually agreed upon by the parties. Notice to Company that you intend to initiate an Informal Dispute Resolution Conference should be sent by email to firstname.lastname@example.org or regular mail to our offices located at121 West 36th Street, Suite 410, New York, NY 10018. The Notice must include: (1) your name, telephone number, mailing address, e‐mail address associated with your Account (if you have one); (2) the name, telephone number, mailing address and e‐mail address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference shall be individualized such that a separate conference must be held each time either party initiates a Dispute, even if the same law firm or group of law firms represents multiple users in similar cases, unless all parties agree; multiple individuals initiating a Dispute cannot participate in the same Informal Dispute Resolution Conference unless all parties agree. In the time between a party receiving the Notice and the Informal Dispute Resolution Conference, nothing in this Arbitration Agreement shall prohibit the parties from engaging in informal communications to resolve the initiating party’s Dispute. Engaging in the Informal Dispute Resolution Conference is a condition precedent and requirement that must be fulfilled before commencing arbitration. The statute of limitations and any filing fee deadlines shall be tolled while the parties engage in the Informal Dispute Resolution Conference process required by this section.
Waiver of Jury Trial. YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and
Company are instead electing that all Disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 23.1 (Applicability of Arbitration Agreement). There is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
Waiver of Class and Other Non-Individualized Relief. YOU AND COMPANY AGREE THAT, EXCEPT AS SPECIFIED IN SECTION 23.9 (BATCH ARBITRATION), EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT ON A CLASS, REPRESENTATIVE, OR COLLECTIVE BASIS, AND THE PARTIES HEREBY WAIVE ALL RIGHTS TO HAVE ANY DISPUTE BE BROUGHT, HEARD, ADMINISTERED, RESOLVED, OR ARBITRATED ON A CLASS, COLLECTIVE, REPRESENTATIVE, OR MASS ACTION BASIS. ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND DISPUTES OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER.
Subject to this Arbitration Agreement, the arbitrator may award declaratory or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by the party’s individual claim. Nothing in this paragraph is intended to, nor shall it, affect the terms and conditions under Section 23.9 (Batch Arbitration). Notwithstanding anything to the contrary in this Arbitration Agreement, if a court decides by means of a final decision, not subject to any further appeal or recourse, that the limitations of this section are invalid or unenforceable as to a particular claim or request for relief (such as a request for public injunctive relief), you and Company agree that that
particular claim or request for relief (and only that particular claim or request for relief) shall be severed from the arbitration and may be litigated in the state or federal courts located in the State of New York. All other Disputes shall be arbitrated or litigated in small claims court. This section does not prevent you or Company from participating in a class-wide settlement of claims.
Rules and Forum. This Agreement evidences a transaction involving interstate commerce; and notwithstanding any other provision herein with respect to the applicable substantive law, the Federal Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and enforcement of this Arbitration Agreement and any arbitration proceedings. If the Informal Dispute Resolution process described above does not resolve satisfactorily within sixty (60) days after receipt of your Notice, you and Company agree that either party shall have the right to finally resolve the Dispute through binding arbitration. 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 of this Arbitration Agreement. The AAA Rules are currently available at https://www.adr.org/sites/default/files/Consumer%20Rules.pdf.
A party who wishes to initiate arbitration must provide the other party with a request for arbitration (the “Request”). The Request must include: (1) the name, telephone number, mailing address, e‐mail address of the party seeking arbitration and the account username (if applicable) as well as the email address associated with any applicable Account; (2) a statement of the legal claims being asserted and the factual bases of those claims; (3) a description of the remedy sought and an accurate, good‐faith calculation of the amount in controversy in United States dollars; (4) a statement certifying completion of the Informal Dispute Resolution process as described above; and (5) evidence that the requesting party has paid any necessary filing fees in connection with such arbitration.
If the party requesting arbitration is represented by counsel, the Request shall also include counsel’s name, telephone number, mailing address, and email address. Such counsel must also sign the Request. By signing the Request, counsel certifies to the best of counsel’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances, that: (1) the Request is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of dispute resolution; (2) the claims, defenses and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and (3) the factual and damages contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery.
Unless you and Company otherwise agree, or the Batch Arbitration process discussed in Section 23.9 (Batch Arbitration) is triggered, the arbitration will be conducted in the county where you reside. Subject to the AAA Rules, the arbitrator may direct a limited and reasonable exchange of information between the parties, consistent with the expedited nature of the arbitration. If the AAA is not available to arbitrate, the parties will select an alternative arbitral forum. Your responsibility to pay any AAA fees and costs will be solely set forth in the applicable AAA Rules.
You and Company agree that all materials and documents exchanged during the arbitration proceedings shall be kept confidential and shall not be shared with anyone except the parties’ attorneys, accountants, or business advisors, and shall be subject to the condition that they agree to keep all materials and documents exchanged during the arbitration proceedings confidential.
Arbitrator. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of New York and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within thirty-five (35) days of delivery of the Request, then the AAA will appoint the arbitrator in accordance with the AAA Rules, provided that if the Batch Arbitration process under Section 23.9 (Batch Arbitration) is triggered, the AAA will appoint the arbitrator for each batch.
Authority of Arbitrator. The arbitrator shall have exclusive authority to resolve any Dispute, including, without limitation, disputes arising out of or related to the interpretation or application of the Arbitration Agreement, including the enforceability, revocability, scope, or validity of the Arbitration Agreement or any portion of the Arbitration Agreement, except for the following: (1) all Disputes arising out of or relating to Section 23.4 (Waiver of Class and Other Non-Individualized Relief), including any claim that all or part of Section 23.4 (Waiver of Class and Other Non-Individualized Relief) is unenforceable, illegal, void or voidable, or that such Section 23.4 (Waiver of Class and Other Non- Individualized Relief) has been breached, shall be decided by a court of competent jurisdiction and not by an arbitrator; (2) except as expressly contemplated in Section 23.9 (Batch Arbitration), all Disputes about the payment of arbitration fees shall be decided only by a court of competent jurisdiction and not by an arbitrator; (3) all Disputes about whether either party has satisfied any condition precedent to arbitration shall be decided only by a court of competent jurisdiction and not by an arbitrator; and (4) all Disputes about which version of the Arbitration Agreement applies shall be decided only by a court of competent jurisdiction and not by an arbitrator. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties, except as expressly provided in Section 23.9 (Batch Arbitration). The arbitrator shall have the authority to grant motions dispositive of all or part of any Dispute. The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The award of the arbitrator is final and binding upon you and us. Judgment on the arbitration award may be entered in any court having jurisdiction.
Attorneys’ Fees and Costs. The parties shall bear their own attorneys’ fees and costs in arbitration unless the arbitrator finds that either the substance of the Dispute or the relief sought in the Request was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)). If you or Company need to invoke the authority of a court of competent jurisdiction to compel arbitration, then the party that obtains an order compelling arbitration in such action shall have the right to collect from the other party its reasonable costs, necessary disbursements, and reasonable attorneys’ fees incurred in securing an order compelling arbitration. The prevailing party in any court action relating to whether either party has satisfied any condition precedent to arbitration, including the Informal Dispute Resolution process, is entitled to recover their reasonable costs, necessary disbursements, and reasonable attorneys’ fees and costs.
Batch Arbitration. To increase the efficiency of administration and resolution of arbitrations, you and Company agree that in the event that there are one-hundred (100) or more individual Requests of a substantially similar nature filed against Company by or with the assistance of the same law firm, group of law firms, or organizations, within a thirty (30) day period (or as soon as possible thereafter), the AAA shall (1) administer the arbitration demands in batches of 100 Requests per batch (plus, to the extent there are less than 100 Requests left over after the batching described above, a final batch consisting of the remaining Requests); (2) appoint one arbitrator for each batch; and (3) provide for the resolution of each batch as a single consolidated arbitration with one set of filing and administrative
fees due per side per batch, one procedural calendar, one hearing (if any) in a place to be determined by the arbitrator, and one final award (“Batch Arbitration”).
All parties agree that Requests are of a “substantially similar nature” if they arise out of or relate to the same event or factual scenario and raise the same or similar legal issues and seek the same or similar relief. To the extent the parties disagree on the application of the Batch Arbitration process, the disagreeing party shall advise the AAA, and the AAA shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Administrative Arbitrator”). In an effort to expedite resolution of any such dispute by the Administrative Arbitrator, the parties agree the Administrative Arbitrator may set forth such procedures as are necessary to resolve any disputes promptly. The Administrative Arbitrator’s fees shall be paid by Company.
You and Company agree to cooperate in good faith with the AAA to implement the Batch Arbitration process including the payment of single filing and administrative fees for batches of Requests, as well as any steps to minimize the time and costs of arbitration, which may include: (1) the appointment of a discovery special master to assist the arbitrator in the resolution of discovery disputes; and (2) the adoption of an expedited calendar of the arbitration proceedings.
This Batch Arbitration provision shall in no way be interpreted as authorizing a class, collective and/or mass arbitration or action of any kind, or arbitration involving joint or consolidated claims under any circumstances, except as expressly set forth in this provision.
30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: 121 West 36th Street, Suite 410, New York, NY 10018 within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, the email address associated with your Account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
Invalidity, Expiration. Except as provided in Section 23.4 (Waiver of Class or Other Non- Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect. You further agree that any Dispute that you have with Company as detailed in this Arbitration Agreement must be initiated via arbitration within the applicable statute of limitation for that claim or controversy, or it will be forever time barred. Likewise, you agree that all applicable statutes of limitation will apply to such arbitration in the same manner as those statutes of limitation would apply in the applicable court of competent jurisdiction.
Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Company makes any future material change to this Arbitration Agreement, we will notify you. Unless you reject the change within thirty (30) days of such change become effective by writing to Company at 121 West 36th Street, Suite 410, New York, NY 10018 your continued use of the Service, including the acceptance of products and services offered on the Service following the posting of changes to this Arbitration Agreement constitutes your acceptance of any such changes. Changes to this Arbitration Agreement do not provide you with a new opportunity to opt out of the Arbitration Agreement
if you have previously agreed to a version of this Agreement and did not validly opt out of arbitration. If you reject any change or update to this Arbitration Agreement, and you were bound by an existing agreement to arbitrate Disputes arising out of or relating in any way to your access to or use of the Service, any communications you receive, any products sold or distributed through the Service or this Agreement, the provisions of this Arbitration Agreement as of the date you first accepted this Agreement (or accepted any subsequent changes to this Agreement) remain in full force and effect. Company will continue to honor any valid opt outs of the Arbitration Agreement that you made to a prior version of this Agreement.
Marketplace Exchange. All matters concerning the Products desired from a Brand, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Brand. Company makes no warranties or representations whatsoever with regard to any Products provided by Brands. You will not consider Company, nor will Company be construed as, a party to such transactions, whether or not Company may have received some form of revenue or other remuneration in connection with the transaction, nor will Company be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transaction.
Third-Party Websites, Applications and Ads. Company Properties may contain links to third-party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left Company Properties and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Company. Company is not responsible for any Third-Party Websites, Third-Party Applications or Third- Party Ads. Company provides these Third-Party Websites, Third-Party Applications and Third-Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
Electronic Communications. The communications between you and Company may take place via electronic means, whether you visit Company Properties or send Company e-mails, or whether Company posts notices on Company Properties or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Company in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq. (“E-Sign”).
Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Company’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
Force Majeure. Company shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to Company Properties, please contact us at: Replogic, Inc., Attn: Abound Legal, 121 West 36th Street, Suite 410, New York, NY 10018. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in New York County, New York.
Governing Law. THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF NEW YORK, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
Notice. Where Company requires that you provide an e-mail address, you are responsible for providing Company with your most current e-mail address. In the event that the last e-mail address you provided to Company is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by the Agreement, Company’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Company at the following address: 121 West 36th Street, Suite 410, New York, NY 10018. Such notice shall be deemed given when received by Company by letter delivered by nationally recognized overnight delivery service or first-class postage prepaid mail at the above address.
Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
Export Control. You may not use, export, import, or transfer Company Properties except as authorized by U.S. law, the laws of the jurisdiction in which you obtained Company Properties, and any other applicable laws. In particular, but without limitation, Company Properties may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department’s list of Specially Designated Nationals or the U.S. Department of Commerce’s Denied Person’s List or Entity List. By using Company Properties, you represent and warrant that (y) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the
U.S. Government as a “terrorist supporting” country and (z) you are not listed on any U.S. Government list of prohibited or restricted parties. You also will not use Company Properties for any purpose prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons. You acknowledge and agree that products, services or technology provided by Company are subject to the export control laws and regulations of the United States. You shall comply with these laws and regulations and shall not, without prior U.S. government authorization, export, re- export, or transfer Company products, services or technology, either directly or indirectly, to any country in violation of such laws and regulations.
Consumer Complaints. In accordance with 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 them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
Entire Agreement. The Agreement is the final, complete, and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.