Term and Condition
Updated as of October 2017
Website Terms of Service
Thank you for choosing Rubys, Inc. (“Company” or “We”) for your business.
Online Marketplace or Platform. The Company provides an online platform where sellers may offer and sell beauty products (“Sellers”) to the consuming public (“Buyers”) on our websites located at https://shopify.webkul.com/multivendor/?sid=6225 and www.hellobeni.com (collectively referred to herein as the “Website”). The Company refers to the online platform and Website herein collectively as the “Services.”
We are not directly involved in the transaction between Buyers and Sellers on our Website. We are not the owner of the products, do not ever take possession or control of the products, nor do it ever transfer legal ownership of items from the Seller to the Buyer. Rather, Buyers are purchasing the products directly from the Sellers.
Because we are merely an online platform, there are some aspects of the transaction over which we lack control. For example, we cannot certify the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of Sellers to sell items or the ability of Buyers to pay for items. We cannot ensure that a Buyer or Seller will actually complete a transaction. We cannot guarantee the true identity, age, and nationality of a Seller or Buyer. We encourage you to communicate directly with potential transaction partners through the Website tools made available by us.
By accessing the Website and/or Services, you agree that we merely provide an online marketplace and as such, the Company is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you or other third parties who visit our Website. You use our Services at your own risk. We are not required to report or remit to any taxing authority any state or local sales, use, or other transactional tax on sales of product by Sellers. Sellers are solely responsible for any and all reporting and remittance of such taxes, where applicable.
Legal Agreements to Which You are Bound. Buyers and Sellers of products on the Website are herein collectively referred to as “Users” or individually as “User,” to which these Website Terms of Service (“Agreement”) apply. Additionally, Sellers of products on our Website are bound by the Terms of Service for Sellers, incorporated by reference herein. This Terms of Service for Sellers supplements the Agreement and, except as set forth herein, no other modifications, express or implied, are deemed to be made to the Agreement.
Effective Date. This Agreement is effective (“Effective Date”) on the date you first access or use the Services and/or the Website, whichever is earlier.
Specific Terms for Buyers. If you purchase a product from a Seller on our Website, you understand that:
(a) You are not buying products from the Company, but from one of the many Sellers on the Company’s Website;
(b) The Company does not guarantee or endorse any items sold on the Company’s Website or any content posted by Sellers (such as photographs or language used in listings or store policies);
(c) Each Seller on the Company’s Website has their own processing times, shipping methods, and shop policies; and
(d) As a member of our online Community, you have the opportunity to flag an item or a store that violates any of our policies. Flagging is confidential.
By making a purchase from a Seller on the Company’s Website, you agree that you:
(a) Have read the item description and store policies before making a purchase;
(b) Have properly submitted the necessary and complete payment for item(s) purchased;
(c) Have provided accurate shipping information to the Seller; and
(d) May be required to remit state and local use tax, where applicable.
Please note, Sellers are prohibited to sell prescription products, pharmaceuticals, and pseudo pharmaceuticals on the Website. Used, opened, or expired products are also prohibited. You should not purchase any of the above on our Website.
You understand that we do not manufacture, store or inspect any of the items sold on our Website. We provide the online venue, but the items in our marketplace are sold by independent Sellers, so we cannot and do not make any warranties about their quality, safety or even their legality.
Returns/Cancellations. Each Seller has his or her own return policies, which should be outlined in their Store Policies. Unless otherwise stated, you may return an item if it is within thirty (30) days of purchase. You may request a Cancellation if the product has not been shipped yet.
Refunds. You may request for a refund in the following cases:
(a) Non-Delivery. A Non-Delivery occurs when a Buyer places an order and submits payment, but the Seller does not ship the item or does not ship the item to the correct address. The following are examples of Non-Delivery cases:
(i) An item was never sent;
(ii) An item was sent to the wrong address; or
(iii) There is no tracking receipt showing that the item was shipped to the Buyer.
(b) Not-as-Described. An item is Not as Described if it is materially different from the Seller's listing description or photos. Here are a few examples of Not as Described cases:
(i) The item received is a different color, size, flavor, or scent;
(ii) The item was advertised as authentic but is not authentic; or
(iii) A Buyer purchased three items but only received two, or received the wrong item.
(c) Item is damaged.
Payment Processing. Buyers will be required to provide their credit card or bank account details to the Company to process payment(s). The Company facilitates the processing of payment(s) that Sellers receive from Buyers through a third-party service provider, Stripe. The Company collects, analyzes and relays information to allow the service provider to process these payment(s).
All legal agreements regarding Stripe’s services may be found here: https://stripe.com/us/privacy. Buyers and Sellers on our Website are all encouraged to review the legal agreements found at the link above.
As a Buyer of products on this Website, you authorize us to process payment(s) for the Services, using the payment information you have supplied. Specifically, you will be required to provide your credit card or bank account details to the Company and/or the third-party service provider, and/or register with the third-party service provider to process payment(s) for the Services. You agree to provide the Company and/or the third-party service provider with accurate and complete information about you; and you authorize the Company to share it and any transaction information related to your use of the Services and/or Website with the third-party service provider for the purpose of processing payment(s). The Company reserves the right, in its sole discretion (but not the obligation), to: (i) place on hold any payment and out of pocket expenses; and/or (ii) refund, provide credits or arrange for the third-party service provider to do so, as necessary.
If you, a Buyer, believe a payment has been processed in error, you must provide written notice to the Company within thirty (30) days after the date of payment specifying the nature of the error and the amount in dispute. If notice is not received by the Company within such thirty (30) day period, the payment will be deemed final and valid.
While the Company takes what it believes to be reasonable efforts to ensure secure transmission of your information to Stripe to assess and process payment(s), the Company is not responsible for any fees or charges assessed by Stripe, or any errors in the processing of payment(s) by Stripe, including any errors that result from Stripe’s negligence, improper transmission of payment information, your mistaken submission of payment information, or your submission of erroneous payment information. Your sole recourse is with Stripe, the payment processor.
Fees and Taxes. If you are a Buyer of products on our Website, you are charged state, local and county taxes for online transactions based on your shipping address and as required by applicable laws and regulations. An estimate of these taxes will be provided during the ordering process and the actual sales tax (if any) will be calculated when your order is shipped and may vary from the estimated tax. Applicable taxes will be applied to orders shipped to any location where Sellers are required to collect taxes. If Sellers are not required to collect taxes, it is your responsibility to determine and pay any use taxes or similar taxes. You cannot assume that your purchase is exempt merely because it is made over the internet.
We may verify your provided information, as required for your use of and access to the Services. You agree to maintain your Account solely for your own use. You agree that you will not allow another person to use your Account. We reserve the right to suspend or terminate the Account of any User who provides inaccurate, untrue, or incomplete information, or who fails to comply with the account registration requirements.
You are solely and entirely responsible for maintaining the confidentiality of your Account, and for any charges, damages, liabilities or losses incurred or suffered as a result of you failure to do so. Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify us of any unauthorized use of your password or any breach of security. You also agree that we cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than us without our express written permission. Furthermore, you are solely and entirely responsible for any and all activities that occur under your Account, including any charges incurred relating to the Services.
The Company is not liable for any harm caused by or related to the theft of your Account, your disclosure of your Account, or your authorization to allow another person to access or use the Services using your Account. You agree to immediately notify us of any unauthorized use of your Account or any other breach of security known to you. You acknowledge that the complete privacy of your data and messages transmitted while using the Services and/or the Website cannot be guaranteed in the event of breach.
You represent that you own and are entitled to disclose your Third Party Account login information to the Company and/or grant the Company access to your Third Party Account (including, but not limited to, for use for the purposes described herein), without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account. The Company will not pay any fees or be subject to any usage limitations imposed by such third party service providers.
By granting the Company access to any Third Party Accounts, you understand that (i) the Company may access, make available and store (if applicable) any content that you have provided to and stored in your Third Party Account (the "SNS Content") so that it is available on and through the Services via your Account, including without limitation any friend lists, and (ii) the Company may submit and receive additional information to your Third Party Account to the extent you are notified when you link your Account with the Third Party Account. Please note that if a Third Party Account or associated service becomes unavailable or the Company's access to such Third Party Account is terminated by the third party service provider, then SNS Content may no longer be available on and through the Services.
Depending on the Third Party Accounts you choose to link with the Website, and subject to the privacy settings that you have set in the Third Party Accounts, personally identifiable information that you post to your Third Party Accounts may be available on and through your Account on the Website. Depending on your privacy settings, the Company may access your contacts associated with a Third Party Account, solely for the purposes of identifying and informing you of those contacts who have also registered to use the Services and/or Website, unless you expressly tell us not to do so in writing.
Finally, you will have the ability to disable the connection between your Account and your Third Party Accounts at any time. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS. The Company makes no effort to review Simple Notification Service push notification content (“SNS Content”) by any Third Party Accounts for any purpose, including but not limited to, for accuracy, legality or non-infringement, and the Company is not responsible for any SNS Content by Third Party Accounts.
However, we will not be liable to you for compensation, reimbursement, or damages in connection with your use of the Services, or in connection with any termination or suspension of the Services. Any termination of these Terms of Service does not relieve you of any obligations to pay any Fees or costs accrued prior to the termination and any other amounts owed by you to us and/or the Sellers, as provided in these Terms of Service.
The following applies to your posts on the public portions of our Website as well as any reviews you may leave on our Website:
Leaving a Review. You can review Sellers and products. By leaving a review or photograph, you acknowledge that:
(a) Your review and/or photograph and profile information will be publicly displayed on Seller's listing and review pages.
(b) Reviews and photographs may not:
(i) Contain private information;
(ii) Contain obscene, racist, or harassing language or imagery;
(iii) Contain medical or drug claims or information;
(iv) Contain advertising or spam;
(v) Discuss about things outside the Seller's control, such as a shipping carrier, us or a third party; or
(vi) Undermine the integrity of the Reviews system, as determined by us in our sole discretion.
Contributing to Our Public Forum: You agree not to post on our Website any content that: (i) may create a risk of harm, loss, physical or mental injury, emotional distress, death, disability, disfigurement, or physical or mental illness to you, to any other person; (ii) may create a risk of any other loss or damage to any person or property; (iii) seeks to harm or exploit children by exposing them to inappropriate content, asking for personally identifiable details or otherwise; (iv) may constitute or contribute to a crime or tort; (v) contains any information or content that we deem to be unlawful, harmful, abusive, racially or ethnically offensive, defamatory, infringing, invasive of personal privacy or publicity rights, harassing, humiliating to other people (publicly or otherwise), libelous, threatening, profane, or otherwise objectionable; (vi) contains any information or content that is illegal (including, without limitation, the disclosure of insider information under securities law or of another party's trade secrets); (vii) contains any information or content that you do not have a right to make available under any law or under contractual or fiduciary relationships; or (viii) contains any information or content that you know is not correct and current. You agree that any User content that you post does not and will not violate third-party rights of any kind, including without limitation any intellectual property rights or rights of privacy.
The Company reserves the right, but is not obligated, to reject and/or remove any User content on the blog/public forum that the Company believes, in its sole discretion, violates these provisions. We also reserve the right to block or remove any content we deem inappropriate, obscene, lewd, lascivious, filthy, violent, harassing, defamatory, libelous, tortious, illegal, threatening, or otherwise objectionable, regardless of whether it was intended to be private or public. Since we do not review all content on our Website, we cannot guarantee that we will be able to take protective measures in the event that any User posts content that violates the terms of this provision. However, when we become aware of content that we consider violates this provision (i.e., is offensive or could compromise the privacy of your personal or confidential information or that of another person), we will make a good-faith, reasonable effort to block or remove such content.
The Company takes no responsibility and assumes no liability for any User content that you or any other User or third party posts or sends over the Website or mobile app, or any action you take in reliance on any User content posted by another User. You shall be solely responsible for your User content and the consequences of posting or publishing it, and you agree that we are only acting as a passive conduit for your online distribution and publication of your User content.
Furthermore, you understand and agree that you may be exposed to other people’s User content that may be inaccurate, objectionable, inappropriate for children, or otherwise unsuited to your purpose, and you agree that the Company shall not be liable for any damages you allege to incur as a result of exposure to such User content.
You may self-edit and/or remove the content you posted on our Website and/or mobile app by logging into your account. Or, to request removal of any content that you believe violates this provision or that you previously posted on our blog/community forum, please contact us at email@example.com. In some cases, we may not be able to remove your content, especially if it was already re-posted by another User. If this is the case, we will let you know if we are unable to do so and why in response to your request.
No Submission of Unsolicited Ideas and/or Materials. In your communications with the Company, please keep in mind that we do not seek any unsolicited ideas or materials for products or services, or even suggested improvements to products or services, including, without limitation, ideas, concepts, inventions, or designs for music, websites, apps, books, scripts, screenplays, motion pictures, television shows, theatrical productions, software or otherwise (collectively, "Unsolicited Ideas and Materials"). Any Unsolicited Ideas and Materials you post on or send to us via the Website are deemed User Content and licensed to us as set forth below. In addition, Company retains all of the rights held by members of the general public with regard to your Unsolicited Ideas and Materials. The Company’s receipt of your Unsolicited Ideas and Materials is not an admission by the Company of their novelty, priority, or originality, and it does not impair the Company’s right to contest existing or future intellectual property rights relating to your Unsolicited Ideas and Materials.
In addition, any trademarks, service marks and logos associated with a Third Party Offering may be the property of the third party provider, and you should consult with their trademark guidelines before using any of their marks.
Any information and data that you submit to the Website or in connection with the Services must not violate the intellectual property rights of third parties.
DMCA Notice. The Company will respond appropriately to notices of alleged copyright infringement that comply with the U.S. Digital Millennium Copyright Act ("DMCA"), as set forth below. If you own a copyright in a work (or represent such a copyright owner) and believe that your (or such owner's) copyright in that work has been infringed by an improper posting or distribution of it via the Service, then you may send us a written notice that includes all of the following:
(i) a legend or subject line that says: "DMCA Copyright Infringement Notice";
(ii) a description of the copyrighted work that you claim has been infringed or, if multiple copyrighted works are covered by a single notification, a representative list of such works;
(iii) a description of where the material that you claim is infringing or is the subject of infringing activity is located that is reasonably sufficient to permit us to locate the material (please include the URL of the Website on which the material appears);
(iv) your full name, address, telephone number, and e-mail address;
(v) a statement by you that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law;
(vi) a statement by you, made under penalty of perjury, that all the information in your notice is accurate, and that you are the copyright owner (or, if you are not the copyright owner, then your statement must indicate that you are authorized to act on the behalf of the owner of an exclusive right that is allegedly infringed); and
(vii) your electronic or physical signature.
The Company will only respond to DMCA Notices that it receives by mail, e-mail, or facsimile at the addresses set forth in the “Notice” section of this Agreement.
It is often difficult to determine if your copyright has been infringed. The Company may elect to not respond to DMCA Notices that do not substantially comply with all of the foregoing requirements, and the Company may elect to remove allegedly infringing material that comes to its attention via notices that do not substantially comply with the DMCA.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity is infringing may be subject to liability.
We may send the information that you provide in your notice to the person who provided the allegedly infringing work. That person may elect to send us a DMCA Counter-Notification.
Without limiting the Company's other rights, the Company may, in appropriate circumstances, terminate a repeat infringer's access to the Services, Website, and/or any other website owned or operated by the Company.
Counter-Notification. If access on the Website to a work that you submitted to the Company is disabled or the work is removed as a result of a DMCA Notice, and if you believe that the disabled access or removal is the result of mistake or misidentification, then you may send us a DMCA Counter-Notification to the addresses above. Your DMCA Counter-Notification should contain the following information:
(i) a legend or subject line that says: "DMCA Counter-Notification";
(ii) a description of the material that has been removed or to which access has been disabled and the location at which the material appeared before it was removed or access to it was disabled (please include the URL of the Website from which the material was removed or access to it disabled);
(iii) a statement under penalty of perjury that you have a good faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled;
(iv) your full name, address, telephone number, e-mail address, and the username of your account;
(v) a statement that you consent to the jurisdiction of the Federal District Court for the judicial district in which your address is located (or, if the address is located outside the U.S.A., to the jurisdiction of the United States District Court for the Central District of California), and that you will accept service of process from the person who provided DMCA notification to us or an agent of such person; and
(vi) your electronic or physical signature.
Please note that the DMCA provides that any person who knowingly materially misrepresents that material or activity was removed or disabled by mistake or misidentification may be subject to liability.
If we receive a DMCA Counter-Notification, then we may replace the material that we removed (or stop disabling access to it) in not less than ten (10) and not more than fourteen (14) business days following receipt of the DMCA Counter-Notification. However, we will not do this if we first receive notice at the addresses above that the party who sent us the DMCA Copyright Infringement Notice has filed a lawsuit asking a court for an order restraining the person who provided the material from engaging in infringing activity relating to the material on the Service. You should also be aware that we may forward the Counter-Notification to the party who sent us the DMCA Copyright Infringement Notice.
You are solely responsible for resolving disputes regarding ownership or access to your data, including those involving any current or former owners, co-owners, employees or contractors of your business. You acknowledge and agree that the Company has no obligation whatsoever to resolve or intervene in such disputes.
HIPAA. Health Insurance Portability and Accountability Act (“HIPAA”) imposes rules to protect certain personal health information. You should not share on our Website any protected health information, or any information that relates to the past, present or future physical or mental health or condition of an individual; the provision of health care to an individual; or the past, present or future payment for the provision of health care to an individual. The Services and this Website are not intended to be used to communicate protected health information, nor comply with HIPAA. If you do share any protected health information, you do so at your own risk.
International Access. The Services may be accessed from countries other than the United States. The Services may contain products or references to products that are not available outside of the United States. Any such references do not imply that such products will be made available outside the United States. If you access and use the Services outside the United States you are responsible for complying with your local laws and regulations.
Release. IN NO EVENT SHALL WE, ITS AFFILIATES OR ANY OF THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, OR CONTENT OR SERVICE PROVIDERS BE LIABLE FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES ARISING FROM OR DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SITE OR THE CONTENT, MATERIALS AND FUNCTION RELATED THERETO, INCLUDING, WITHOUT LIMITATION, LOSS OF REVENUE, OR ANTICIPATED PROFITS, OR LOST BUSINESS, DATA OR SALES, OR COST OF SUBSTITUTE SERVICES, EVEN IF WE OR ITS REPRESENTATIVE OR SUCH INDIVIDUAL HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO YOU. IN NO EVENT SHALL THE TOTAL LIABILITY OF US TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THE TERMS OR YOUR USE OF THE SITE EXCEED, IN THE AGGREGATE, $100.00.
The Company is not liable for any losses relating to chargebacks, fraudulent charges, or other actions by any User that are deceptive, fraudulent or otherwise invalid. By using the Services, you hereby release the Company from any liability arising from fraudulent actions. You will also use best efforts to promptly notify the Company of any fraudulent actions which may affect the Services. The Company reserves the right, in its sole discretion, to terminate the account of any User that engages in, or enables any other User to engage in, fraudulent actions.
Disclaimer/No Warranties. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE COMPANY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING WITHOUT LIMITATION ANY WARRANTIES OF TITLE, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE WITH RESPECT TO THE SERVICES AND/OR THIS WEBSITE.
THE COMPANY DOES NOT WARRANT THAT YOUR USE OF THE SERVICES AND/OR THIS WEBSITE WILL BE SECURE, TIMELY, ERROR-FREE OR UNINTERRUPTED, OR THAT THE SERVICES ARE OR WILL REMAIN UPDATED, COMPLETE OR CORRECT, OR THAT THE SERVICES AND/OR WEBSITE WILL MEET YOUR REQUIREMENTS OR THAT THE SYSTEMS THAT MAKE THE SERVICES AVAILABLE (INCLUDING WITHOUT LIMITATION THE INTERNET, OTHER TRANSMISSION NETWORKS, AND YOUR LOCAL NETWORK AND EQUIPMENT) WILL BE UNINTERRUPTED OR FREE FROM VIRUSES OR OTHER HARMFUL COMPONENTS.
THE SERVICES AND ANY PRODUCTS AND THIRD PARTY MATERIALS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS AND SOLELY FOR YOUR USE IN ACCORDANCE WITH THIS AGREEMENT.
ALL DISCLAIMERS OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) ARE MADE ON BEHALF OF BOTH THE COMPANY AND ITS AFFILIATES AND THEIR RESPECTIVE SHAREHOLDERS, DIRECTORS, OFFICERS, EMPLOYEES, AFFILIATES, AGENTS, REPRESENTATIVES, CONTRACTORS, LICENSORS, SUPPLIERS AND SERVICE PROVIDERS (COLLECTIVELY, THE “THE COMPANY PARTIES”).
Indemnification. You agree to indemnify, defend, and hold harmless the Company and its Parties from and against any and all third party claims alleged or asserted against any of them, and all related charges, damages and expenses (including, but not limited to, reasonable attorneys' fees and costs) arising from or relating to: (a) any actual or alleged breach of any provisions of this Agreement; (b) any access to or use of the Services and/or Website; (c) any actual or alleged violation by you, an affiliate, or end User of the intellectual property, privacy or other rights of a third party; and (d) any dispute between you and another party and/or User regarding ownership of or access to your data.
Limitations/Exclusions on Liability. THE COMPANY EXPRESSLY DISCLAIMS ANY AND ALL LIABILITY AND WILL NOT BE RESPONSIBLE FOR ANY DAMAGES OR LOSS CAUSED, OR ALLEGED TO BE CAUSED, BY THE TRANSMISSION OF CARDHOLDER DATA PRIOR TO ITS ENCRYPTION AND RECEIPT BY SERVER(S) OWNED OR CONTROLLED BY THE COMPANY. THE EXCLUDED DAMAGES WILL INCLUDE, WITHOUT LIMITATION, DAMAGES RESULTING FROM FRAUD, EMBEZZLEMENT, THEFT, IDENTITY THEFT, OR INVASION OF PRIVACY.
TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL THE COMPANY PARTIES’ AGGREGATE LIABILITY, COLLECTIVELY, FOR ALL CLAIMS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER IN CONTRACT, TORT OR OTHERWISE, EXCEED THE FEES PAID PRECEDING THE DATE OF THE INCIDENT. ALL LIMITATIONS OF LIABILITY OF ANY KIND (INCLUDING IN THIS SECTION AND ELSEWHERE IN THIS AGREEMENT) APPLY WITH RESPECT TO BOTH THE COMPANY AND THE COMPANY PARTIES.
IN NO EVENT WILL THE COMPANY HAVE ANY LIABILITY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, HOWEVER CAUSED, OR FOR ANY LOST PROFITS, LOSS OF USE, DATA OR OPPORTUNITIES, COST OF DATA RECONSTRUCTION, COST OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, WHETHER IN CONTRACT, TORT OR OTHERWISE, ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THE SERVICES OR THIRD PARTY OFFERINGS, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICES, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, EVEN IF THE COMPANY, ITS LICENSORS OR SUBCONTRACTORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES.
THE COMPANY EXPRESSLY DISCLAIMS ANY LIABILITY THAT MAY ARISE BETWEEN USERS RELATED TO OR ARISING FROM USE OF THE SERVICES. BECAUSE THE COMPANY IS NOT INVOLVED IN THE ACTUAL INTERACTIONS BETWEEN SELLERS AND BUYERS, OR IN THE PROVISION OF ANY SERVICES, YOU HEREBY RELEASE AND FOREVER DISCHARGE THE COMPANY AND ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND LICENSORS FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES (ACTUAL OR CONSEQUENTIAL) OF EVERY KIND AND NATURE, WHETHER KNOWN OR UNKNOWN, CONTINGENT OR LIQUIDATED, ARISING FROM OR RELATED TO ANY DISPUTE OR INTERACTIONS WITH ANY OTHER USER, WHETHER ONLINE OR IN PERSON, WHETHER RELATED TO THE PROVISION OF SERVICES OR OTHERWISE.
THE FOREGOING EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.
If you are dissatisfied with the Services, or the terms of the Services, your only remedy under the Terms shall be to discontinue use of the Services. Without limiting this clause we shall have no liability for any failure or delay resulting from any matter beyond our reasonable control.
Choice of Law. These Terms of Service and the relationship between you and the Company shall be governed by the laws of the State of California without regard to its conflict of law provisions.
- Informal Dispute Resolution. We want to address your concerns without needing a formal legal case. Before filing a claim against the Company, you agree to try to resolve the Dispute informally by contacting firstname.lastname@example.org. We'll try to resolve the Dispute informally by contacting you through email. If a dispute is not resolved within 15 days after submission, you or the Company may bring a formal proceeding.
- We Both Agree To Arbitrate. You and The Company agree to resolve any Disputes through final and binding arbitration, except as set forth under Exceptions to Agreement to Arbitrate below.
- Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by contacting email@example.com within 30 days of first accepting these Terms of Service and stating that you (include your first and last name) decline this arbitration agreement. Arbitration Procedures: The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in San Mateo County, California, or any other location we agree to.
- Arbitration Fees. The AAA rules will govern payment of all arbitration fees. The Company will pay all arbitration fees for claims less than $75,000. The Company will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.
- Exceptions to Agreement to Arbitrate. Either you or The Company may assert claims, if they qualify, in small claims court in San Mateo (CA) or any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the The Company products or The Company Service, or infringement of intellectual property rights (for example, trademark, trade secret, copyright or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above.
- No Class Actions. You may only resolve Disputes with The Company on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed under this Agreement.
- Judicial Forum for Disputes. In the event that the agreement to arbitrate is found not to apply to you or your claim, you and the Company agree that any judicial proceeding (other than small claims actions) will be brought in the federal or state courts of San Mateo County, California. Both you and The Company consent to venue and personal jurisdiction there. We both agree to waive our right to a jury trial.
- Limitation on Claims. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the the Company’s products or Services must be filed within one (1) year after such claim or cause of action arose, or else that claim or cause of action will be barred forever.
- Relationship of the Parties. This Agreement does not, and will not be construed to, create any partnership, joint venture, employer-employee, agency or franchisor-franchisee relationship between you and the Company.
- Severability. Should any provision of these Terms of Service be found invalid or unenforceable, the remaining terms shall still apply.
- Force Majeure. Neither Party will be liable for any failure or delay in performance under this Agreement (other than for delay in the payment of money due and payable hereunder) for causes beyond that Party’s reasonable control and occurring without that Party’s fault or negligence, including, but not limited to, acts of God, acts of government, flood, fire, civil unrest, acts of terror, strikes or other labor problems (other than those involving the Company’s or your employees, respectively), computer attacks (by government/nation entities or otherwise) or malicious acts, such as attacks on or through the Internet, any Internet service provider, telecommunications or hosting facility. Dates by which performance obligations are scheduled to be met will be extended for a period of time equal to the time lost due to any delay so caused.
- Electronic Communications and Signatures. You agree to the use of electronic communication in order to enter into agreements and place orders, and to the electronic delivery of notices, policies and records of transactions initiated or completed through the Services. Furthermore, you hereby waive any rights or requirements under any laws or regulations in any jurisdiction that require an original (non-electronic) signature or delivery or retention of non-electronic records, to the extent permitted under applicable law.