- In the case of SellerBench, 3CG SELLERBENCH, LLC, a Delaware limited liability company (“SellerBench”);
- In the case of OldStreetMedia, Old Street Media, LLC, a Delaware limited liability company (“Old Street Media”);
- In the case of TacitcalArbitrage, 3CG TACTICALARBITRAGE, LLC, a Delaware limited liability company (“TacticalArbitrage”);
- In the case of Bindwise, 3CG BINDWISE, LLC, a Delaware limited liability company (“Bindwise”);
- In the case of HotShp, 3CG HOTSHP, LLC, a Delaware limited liability company (“HotShp”);
- In the case of RefundSniper, 3CG REFUND SNIPER, LLC, a Delaware limited liability company (“RefundSniper”);
- In the case of ChannelReply, 3CG CHANNELREPLY, LLC, a Delaware limited liability company (“ChannelReply”).
- In the case of ScoutIQ, 3CG SCOUTIQ, LLC, a Delaware limited liability company (“ScoutIQ”).
- In the case of OnSite, 3CG ONSITE, LLC, a Delaware limited liability company (“OnSite”).
Except as where otherwise more specifically referenced in this Agreement, each entity will generally be referred to as the “Company.” The terms of this Agreement are intended to apply to Your use of the Services of each Company. This Agreement will be effective when You select the “I Agree” button, and Your selection of the “I Agree” button constitutes Your manifestation of assent to the terms of this Agreement. If You do not wish to be bound by the terms of this Agreement, You must not select the “I Agree” button or use the Services of any Company. The Company reserves the right to change, modify, rescind, or remove the terms of this Agreement at any time and without prior notice. Your continued use of any of the Services after a change, modification, recission, or removal of the terms of this Agreement constitutes Your manifestation of asset to such change, modification, recission, or removal. If You do not agree with these terms, You must immediately discontinue Your use of the Services.
You warrant and agree that You have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that You are a human individual that is eighteen (18) years of age or older and that You are not a bot, script, or other computer or machine. You warrant that You are not prohibited from assenting to this Agreement by any preexisting Agreement. If You are using the Website on behalf of a third party, including but not limited to a business entity, You warrant that You are the authorized representative of that third party and have the authority to bind that third party to the terms of this Agreement.
The Company may provide You with the ability to register a user account (“User Account”), which will provide access to the Services. Your User Account is protected by a username and password. You recognize that You are solely responsible for maintaining the security and confidentiality of Your username and password and that You are responsible for any unauthorized access to Your User Account. In the event Your User Account is accessed without Your authorization, You agree to notify the Company immediately. The Company reserves the right to restrict access to, suspend, disable, or delete Your User Account at any time, in its sole discretion, and without prior warning.
Subject to the terms of this Agreement and conditional upon timely payment for any Services licensed through Your User Account, Company grants You a limited, non-exclusive, non-transferable, worldwide, and revocable license to use the Services in executable form and for their customary and intended purposes.
As a condition of the license granted to You under the terms of this Agreement, and except where otherwise expressly allowed under the terms of this Agreement, You are expressly prohibited from the following:
- Distributing, framing, emulating, cloning, publishing, displaying, selling, assigning, sublicensing, renting, leasing, loaning, modifying, publicly displaying, publicly performing, creating derivative works of, translating, or adapting the Services;
- Decompiling, reverse engineering, disassembling, or hacking the Services;
- Scraping, caching, or utilizing the Services through a proxy;
- Unless otherwise allowed under a group license, granting more than one user access to the Services;
- Circumventing the Services’ technology protection measures;
- Infringing upon the intellectual property or other proprietary rights of Company;
- Exporting the Services in violation of the export controls or regulations of the laws of Your country or any other country’s laws or regulations;
- Using the Services to violate any applicable law, statute, regulation, ordinance, or treaty, whether national or international;
- Using the Services to violate the policies of any third party marketplace or platform, including, but not limited to, Amazon.com;
- Using the Services to violate the rights of third parties, including, but not limited to, personal and proprietary rights; and
- Removing or altering any proprietary notices contained within the Services, including, but not limited to, copyright, patent, and trademark notices.
The following service-specific terms will apply to the services provided by the Company and its subsidiaries (“Service-Specific Terms”). To the extent the Service-Specific Terms conflict with the more general terms of this Agreement, the Service-Specific Terms will control.
- Description, Access, and Use of the Services. TacticalArbitrage provides software services to aid Amazon FBA sellers in sourcing products from retail suppliers. TacticalArbitrage provides access to the ability to scan online retail websites by means of advanced algorithms that can quickly calculate Amazon fees, source discounts, cashbacks, and shipping costs to provide data on estimated profit and return on investment. TacticalArbitrage also provides access to estimated sales metrics, competitor stock levels, dozens of filters, average periods of rank and price, product variation analysis, image recognition, and saved product folders. Since TacticalArbitrage relies on the accuracy of third-party retailer websites, the information provided by TacticalArbitrage cannot always be accurate or complete. You understand and agree that TacticalArbitrage will not be held liable for inaccuracies in third party websites.
- Free Trial Period. TacticalArbitrage may provide You with the ability to try the Services for free upon registration of a User Account for a period of seven (7) days. Thereafter, You must subscribe to the Services to continue their use.
- Cancellation. You may cancel Your subscription to the Services at any time by using the cancel account link located within your User Account. If You cancel the Services during a weekly, monthly, or yearly membership cycle, You will retain access to the Services until the end of that period. No refunds will be given for weekly, monthly, or annual memberships once the period of subscription has started.
- Subscriptions. Bindwise offers two subscription plans to its Services (each, a “Plan”). Each Plan includes a numerical range of products (“Products”) and competitors (“Competitors”) that may be monitored by the Bindwise Services on your Bindwise User Account in any given month of the subscription period. You may link Your Amazon accounts from any marketplace to Your Bindwise User Account. One Plan allows You to link all marketplaces to the Account. If there is a repetition in linked marketplaces, the maximum number of the same linked marketplaces determines the amount of Plans you are subscribed to. For example, one Plan gives you a possibility to use the Services for Amazon US, Canada, Germany, Spain, France, Italy, UK, India, Japan and China marketplaces. If You would like to use the Services twice for US marketplace (because you have two different shops on the marketplace) - You will be subscribed to two Plans.
- Billing Cycles The fees for Your Plan are billed in advance of each billing cycle. If You upgrade your Plan level, You will immediately be charged for the increased price of the upgraded Plan, prorated to reflect the remaining duration of your subscription period, and You will be charged the full amount of the then-current rate for the new Plan, as provided at https://www.bindwise.com (Pricing section), beginning with your next billing cycle. If You downgrade your Plan level, You will have a negative balance stated in your Account, which will be subtracted (prorated) from the full amount of the then-current rate in the very next billing cycle. Afterwards, next billing cycles will have the then-current rate without a proration. But be aware that downgrading Your Plan may cause the loss of Account content, features, capacity, or other losses. Bindwise disclaims liability for any such loss.
- Agent in Fact. When using the RefundSniper Services, You understand and agree that RefundSniper will communicate with third party platform providers, such as Amazon.com, on your behalf to identify, and request reimbursements for, any inventory discrepancies or other inaccurate charges. By using the RefundSniper Services, You appoint RefundSniper Your true and lawful proxy, attorney-in-fact, and agent-in-fact to take your name, place, and stead, with full power of substitution, to communicate with and advocate on Your behalf with third party platform providers, such as Amazon.com.
- Commissions. When You utilize the RefundSniper Services, You will pay to the Company, as full and total compensation for the Services provided, commissions in the amount of thirty percent (30%) of the gross proceeds received by You from reimbursements or refunds that are obtained through RefundSniper’s efforts. All commissions payable by You to RefundSniper shall be due and payable to the Company no later than the fifteenth calendar day after close of the financial month during which You receive payment in full for the reimbursements or refunds giving rise to the commissions. Upon termination of this Agreement, You understand and agree that You will be responsible for paying all commissions to RefundSniper that accrued as a result of the Services provided by RefundSniper to You prior to termination.
- “Affiliate” means, with respect to a Party, any entity that directly or indirectly controls, is controlled by, or is under common control with such Party, whereby “control” (including, with correlative meaning, the terms “controlled by” and “under common control”) means the possession, directly or indirectly, of the power to direct, or cause the direction of the management and policies of such person, whether through the ownership of voting securities, by contract, or otherwise.
- “Agent” means an individual authorized to use the Service through Your User Account as an agent and/or administrator as identified through a unique login.
- “API” means the application programming interfaces developed and enabled by ChannelReply that permits a subscriber to access certain functionality provided by the Service, including without limitation, the REST API that enables the interaction with the Service automatically through HTTP requests and the application development API that enables the integration of the Service with other web applications.
- “Associated Services” means products, services, features and functionality designed to be used in conjunction with the Service but not included in the Service Plan to which You subscribed, including without limitation, integrations and applications created or developed by ChannelReply or its Affiliates which are expressly stated to be governed by these Terms. For avoidance of doubt, neither the ChannelReply Service or any other product, service, feature or functionality that is expressly stated to be governed by any alternative license, agreement or terms of service shall be deemed an Associated Service.
- “ChannelReply Group” means 3CG ChannelReply, LLC, a Delaware limited liability company, together with all of its Affiliates.
- “Confidential Information” means all information disclosed by You to ChannelReply or by ChannelReply to You which is in tangible form and labeled “confidential” (or with a similar legend) or which a reasonable person would understand to be confidential given the nature of the information and circumstances of disclosure, including, but not limited to information relating to ChannelReply security policies and procedures. For purposes of this Agreement, Service Data, as defined below,d shall be deemed Confidential Information. Notwithstanding the foregoing, Confidential Information shall not include information that (a) was already known to the receiving party at the time of disclosure by the disclosing party; (b) was or is obtained by the receiving party by a third party not known by the receiving party to be under an obligation of confidentiality with respect to such information; (c) is or becomes generally available to the public other than by violation of these Terms or another valid agreement between the Parties; or (d) was or is independently developed by the receiving party without use of the disclosing party’s Confidential Information.
- “Directive” means Directive 95/46/EC on the protection of individuals with respect to
- “Documentation” means any written or electronic documentation, images, video, text or sounds specifying the functionalities of the ChannelReply Service provided or made available by ChannelReply to You, through the website or otherwise.
- “End-User” means any person or entity other than ChannelReply or You with whom You interact with using the ChannelReply Service.
- “Party” means ChannelReply or You, each a party to this Agreement.
- “Personal Data” means any information relating to an identified or identifiable natural person where an identifiable person is one who can be identified, directly or indirectly, in particular by reference to an identification number or to one or more factors specific to their physical, physiological, mental, economic, cultural or social identity.
- “Processing/To Process/Processed” means any operation or set of operations which is performed upon Personal Data, whether or not by automatic means, such as collection, recording, organization, storage, adaptation or alteration, retrieval, consultation, use, disclosure by transmission, dissemination or otherwise making available, alignment or combination, blocking, erasure or destruction.
- “Service Data” means electronic data, text, messages, communications or other materials submitted to and stored within the Service by You, Agents and End-Users in connection with Your use of such Service, which may include, without limitation, Personal Data.
- “Service Plan(s)” means the packaged service plan(s) and the functionality and services associated therewith (as detailed on the website applicable to the Service) for the ChannelReply Service, as applicable, to which You subscribe.
- “Subscription Term” means the period during which You have agreed to subscribe to the ChannelReply Service, as applicable, with respect to any individual Agent.
- ChannelReply User Accounts. You are responsible for compliance with the provisions of this Agreement for any and all activities that occur under Your User Account. Without limiting the foregoing, You are solely responsible for ensuring that Your use of the Service to store and transmit data is compliant with all applicable laws and regulations as well as any and all privacy policies, agreements or other obligations You may maintain or enter into with Your End-Users. You also maintain all responsibility for determining whether the Services or the information generated thereby is accurate or sufficient for Your purposes. Subject to any limitation on the number of individual Agents available under the applicable service plan to which You subscribed or applicable Deployed Associated Service, access to and use of the Service is restricted to the specified number of individual Agents permitted under Your subscription to the Service. You agree and acknowledge that each Agent will be identified by a unique username and password (“Login”) and that an Agent Login may only be used by one (1) individual. You will not share an Agent Login among multiple individuals. The foregoing shall not be deemed to limit Your use of the Multi-Branding and Light Agent features of the ChannelReply Service if Your Service Plan includes these features or they are made available to you as a Deployed Associated Service. You and Your Agents are responsible for maintaining the confidentiality of all Login information for Your Account.
- Use of the Service. During the Subscription Term and subject to compliance by You, Agents, and End-Users with these Terms, You have the limited right to access and use a Service consistent with the Service Plan(s) that You subscribe to, together with all applicable deployed Associated Services, for Your internal business purposes. You may not use the Service to provide customer service, support, or other outsourced business process services to more than one third party (other than Affiliates) through a single User Account, unless directly approved in writing via ChannelReply. Without limiting the foregoing, Your right to access and use the API is also subject to the restrictions and policies implemented by ChannelReply from time to time with respect to the API as set forth in the Documentation or otherwise communicated to You in writing.
- Suspension of Service. ChannelReply reserves the right, in its reasonable discretion, to temporarily suspend Your access to and use of the Service: (a) during planned downtime for upgrades and maintenance to the Service (of which ChannelReply will use commercially reasonable efforts to notify You in advance both through its website and a notice to Your User Account owner and Agents) (“Planned Downtime”); (b) during any unavailability caused by circumstances beyond ChannelReply’s reasonable control, such as, but not limited to, acts of God, acts of government, acts of terror or civil unrest, technical failures beyond ChannelReply’s reasonable control (including, without limitation, inability to access the Internet), or acts undertaken by third parties, including without limitation, distributed denial of service attacks; or (c) if ChannelReply suspects or detects any malicious software connected to Your User Account or use of the Service by You, Agents, or End-Users.
Data Privacy, Security, and Confidentiality.
- Subject to the express permissions of this Agreement, each Party will protect each other’s Confidential Information from unauthorized use, access, or disclosure in the same manner as each protects its own Confidential Information, but with no less than reasonable care. Except as otherwise expressly permitted pursuant to this Agreement, each of us may use each other’s Confidential Information solely to exercise our respective rights and perform our respective obligations under this Agreement and shall disclose such Confidential Information (a) solely to those of our respective employees, representatives, subcontractors and agents who have a need to know such Confidential Information for such purposes and who are bound to maintain the confidentiality of, and not misuse, such Confidential Information; (b) as necessary to comply with an order or subpoena of any administrative agency or court of competent jurisdiction; or (c) as reasonably necessary to comply with any applicable law or regulation. The provisions of this Section shall supersede any non-disclosure agreement by and between the Parties that would purport to address the confidentiality and security of Service Data and such agreement shall have no further force or effect with respect to Service Data.
- To the extent Service Data constitutes Personal Data, You and ChannelReply hereby agree that You shall be deemed to be the data controller and ChannelReply shall be deemed to be the data processor as those terms are understood under the Directive (and any applicable national legislation implementing the Directive). In providing the Service, ChannelReply will engage entities within the ChannelReply Group and other authorized service providers, to Process Service Data, including and without limitation, any associated Personal Data pursuant to this Agreement, in the United States. Under no circumstances will ChannelReply be deemed a data controller with respect to Service Data under the Directive or any relevant law or regulation of any Member State as defined in the Directive.
- ChannelReply will maintain commercially reasonable administrative, physical and technical safeguards to protect the security, confidentiality and integrity of Service Data. These safeguards include encryption of Service Data in transmission (using TLS or similar technologies), except for certain other Services that do not support encryption, which You may link to through the Service at Your election.
- You agree that ChannelReply and the service providers that ChannelReply utilizes to assist in providing the Service to You shall have the right to access Your User Account and to use, modify, reproduce, distribute, display and disclose Service Data to the extent necessary to provide the Service, including, without limitation, in response to Your support requests. Any third-party service providers ChannelReply utilizes will only be given access to Your User Account and Service Data as is reasonably necessary to provide the Service and will be subject to (a) confidentiality obligations which are commercially reasonable and substantially consistent with the standards described herein and (b) their agreement to comply with the data transfer restrictions applicable to Personal Data.
- If during Your Subscription Term You choose to upgrade your Service Plan (a "Subscription Upgrade") or exceed the maximum message count associated with your then-current Service Plan (any such additional messages, "Message Overages") any incremental subscription charges associated with such Subscription Upgrade or Message Overages will be charged to Your User Account and due and payable upon the occurrence of such Subscription Upgrade or Message Overages. In any future Subscription Term, Your subscription charges for such renewal period will reflect your most recent Subscription Upgrades, unless otherwise requested by You in connection with such renewal.
- No refunds or credits for subscription charges or other fees or payments will be provided to You if You elect to downgrade Your Service Plan. Downgrading Your Service Plan may cause loss of content, features, or capacity of the Service as available to You under Your User Account, and ChannelReply does not accept any liability for such loss.
- Credits Policy. We may, at our sole discretion, choose to offer credits for the Service in various ways, including but not limited to, coupons, promotional campaigns, and referrals. ChannelReply reserves the right to award credits at its sole discretion. Credits have no monetary or cash value and can only be used by You to offset Your subsequent payments of subscription charges for the applicable Service. Credits may only be applied to subscription charges due for the Service specifically identified by ChannelReply when issuing the credit. Credits can only be used by You and are non-transferable. To the extent that You have been awarded ChannelReply credits, unless the instrument (including any coupon) states an earlier expiration date, these ChannelReply credits shall expire and no longer be redeemable twelve (12) months from the date the ChannelReply credit was issued.
Cancellation and Termination.
- Either Party may elect to terminate Your User Account and subscription to the Service as of the end of Your then current Subscription Term by providing notice, in accordance with this Agreement, on or prior to the date thirty (30) days preceding the end of such Subscription Term. Unless Your User Account and subscription to the Services is so terminated, Your subscription to the Service (including any and all deployed Associated Services) will renew for a Subscription Term equivalent in length to the then expiring Subscription Term. Unless otherwise provided for in any form, the Subscription Charges applicable to Your subscription to the Service for any such subsequent Subscription Term shall be ChannelReply’s standard subscription charges for the Service Plan and Associated Services to which You have subscribed or which you have deployed, as applicable, as of the time such subsequent Subscription Term commences.
- No refunds or credits for subscription charges or other fees or payments will be provided to You if You elect to terminate Your subscription to the Service or cancel Your User Account prior to the end of Your then effective Subscription Term. Following the termination or cancellation of Your subscription to the Service and/or User Account, ChannelReply reserves the right to delete all Service Data in the normal course of operation. Service Data cannot be recovered once Your User Account is cancelled.
- If You terminate Your subscription to the Service or cancel Your User Account prior to the end of Your then effective Subscription Term or ChannelReply effects such termination or, in addition to other amounts You may owe ChannelReply, You must immediately pay any then unpaid subscription charges associated with the remainder of such Subscription Term. This amount will not be payable by You in the event You terminate Your subscription to the Service or cancel Your User Account as a result of a material breach of these Terms by ChannelReply, provided that You provide advance notice of such breach to ChannelReply and afford ChannelReply not less than thirty (30) days to reasonably cure such breach.
- ChannelReply reserves the right to modify, suspend, or terminate the Service (or any part thereof), Your User Account or Your and/or Agents’ or End-Users’ rights to access and use the Services, and remove, disable, and discard any Service Data if ChannelReply believes that You, Agents, or End-Users have violated this Agreement. Unless legally prohibited from doing so, ChannelReply will use commercially reasonable efforts to contact You directly via email to notify You when taking any of the foregoing actions. ChannelReply shall not be liable to You, Agents, End-Users or any other third party for any such modification, suspension, or discontinuation of Your rights to access and use the Service. Any suspected fraudulent, abusive, or illegal activity by You, Agents, or End-Users may be referred to law enforcement authorities at ChannelReply’s sole discretion.
To perform the Services, the Company may provide you with the ability to upload, contribute, or transmit user-generated content to the Services through Your User Account, including, but not limited to, listings text, photographs, images, videos, URLs, and other files (collectively “User-Generated Content”). You warrant that your User-Generated Content will not (i) violate any law, statute, regulation, or ordinance, whether local, state, provincial, national, or international, (ii) violate any term or condition of this Agreement, or (iii) violate the rights of third parties, including intellectual property rights and any other personal or proprietary rights. By submitting User Generated Content to the Services, you grant the Company a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your User-Generated Content for the customary and intended purposes of the Services. The customary and intended purposes of the Services may include, but are not limited to, creating or maintaining user profiles, drafting product descriptions, titles, blog posts, and social media posts, as well as archiving or making backup copies of Your User Generated Content. By submitting User-Generated Content to the Services, you waive all moral rights or rights of publicity or privacy with respect to the User-Generated Content submitted to the Services. When providing User-Generated Content to the Services, You warrant that your User Generated Content will be accurate, truthful, non-deceptive, and complete.
You understand and agree that the Services, including, but not limited to, their source code, data, selection and arrangement, executable code, structure, and organization, contains the valuable trade secrets and intellectual property of Company. Under the terms of this Agreement, You do not acquire any ownership rights to the Services or the data contained therein. You acquire only a limited license to use the Services subject to the terms of this Agreement. All other rights are reserved by Company.
You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on or through the Services by Company, including, but not limited to, THREE COLTS GROUP, SELLERBENCH, OLDSTREETMEDIA, TACTICALARBITRAGE, BINDWISE, HOTSHP, REFUNDSNIPER, and CHANNELREPLY, are common law or registered trademarks owned by or licensed to the Company. You are expressly prohibited from using the trademarks of Company to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of Your goods or services. You are further prohibited from using the trademarks of Company in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.
When You register and use a User Account to access the Services, You may be charged a subscription fee (“Subscription Fee”) by Company depending on the services You utilize. The Subscription Fee will be payable at the times specified by Company on the website associated with the Services and may be billed on a reoccurring basis. All Subscription Fee payments for the Services are non-refundable. You represent and warrant that You will timely pay all fees and charges and You agree that the Company will charge Your payment method on a reoccurring basis. The Company reserves the right to terminate Your User Account and access to the Services for Your failure to timely pay. All Subscription Fees will be quoted and payable in United States Dollars. You agree that You will not initiate any chargebacks against the Company unless approved by the Company in writing. You understand and agree that You will be held responsible for any costs or fees associated with any unauthorized chargebacks. Any disputes as to payment must be brought to the Company’s attention in writing within thirty (30) days or will otherwise be barred.
- “Affiliate” is defined as any individual or business entity that has assented to this Agreement and is authorized to participate in the Affiliate Program under the terms of this Agreement.
- “Advertising Materials” is defined as pay per click advertisements, display advertisements, landing pages, web pages, newsletters, email blasts, hypertext links, or other content used to advertise the availability of the Company’s Services.
- "Customer" means any person or entity who successfully purchases a Service from the Company.
- “Lead” is defined as an individual or business entity that contacts the Company through efforts that are directly attributable to Affiliate.
- “Referral Fee” is defined as the amount paid by Company to Affiliate for Customers.
- “User” is defined as a potential lead, including, but not limited to, users of third-party websites.
- Websites or other services that collect personal or personally identifiable information from a User without his or her express consent;
- Websites or other services that contain or display obscene, sexually explicit, illegal, pornographic, racist, offensive, or derogatory content;
- Websites or other services that promote bodily harm to or harassment of third parties;
- Websites or other services that violate the rights of third parties, including intellectual property or other personal or proprietary rights;
- Websites or other services that violate any applicable law, statute, treaty, regulation, or ordinance, whether local, state, provincial, national, or international; and
- Websites or other services that contain any other objectionable content to be defined within Company’s sole and absolute discretion.
Through Your use of the Services, You may interact with third party services or websites that are not under the Company’s ownership or control. You understand and agree that the Company cannot be held liable for Your use of third party services and You are directed to review the terms and privacy polices adopted by all third party service providers.
You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with Your use of the Services. The Company will report as income all payments received from You to the Company to all proper taxing authorities.
The term of this Agreement will begin upon Your first accessing of the Services and will continue until the earlier of the following: (i) Company terminates Your access to the Services; or (ii) You cease using the Services and terminate Your User Account. The Company reserves the right to terminate the Services or Your access to the Services in its sole and absolute discretion and without prior notice.
YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT THE COMPANY WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE SERVICES OR DOWNTIME. YOU ACKNOWLEDGE THAT THE COMPANY MAKES NO GUARANTEE OR REPRESENTATION OF ANY KIND CONCERNING THE SERVICES, INCLUDING ANY GUARANTEE OR REPRESENTATION THAT YOU WILL OBTAIN A PARTICULAR OUTCOME THROUGH YOUR USE OF THE USE OF THE SERVICES OR THAT YOU WILL OBTAIN A CERTAIN RESULT THROUGH YOUR USE OF THE SERVICES. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT COMPANY’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE COMPANY SERVICES OR $1,000, WHICHEVER IS LESS.
You agree to indemnify, defend, and hold harmless the Company, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives, from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) Your use of the Services, (ii) Your violation of any term or condition of this Agreement; (iii) Your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; (iv) Your violation of the policies or procedures of any third party marketplace, including, but not limited to, Amazon.com; and (v) Your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Company will not provide You with the ability to control Company's defense, and Company reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
YOU AND THE COMPANY AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES. EXCEPT FOR CLAIMS THAT MAY BE BROUGHT IN SMALL CLAIMS COURT, CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, OR CLAIMS FOR INJUNCTIVE RELIEF BY EITHER PARTY, YOU AND THE COMPANY AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, IN RELATION TO, OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DISPUTES, CLAIMS (WHETHER IN TORT, CONTRACT, STATUTORY, OR OTHERWISE), OR DISAGREEMENTS CONCERNING THE EXISTENCE, BREACH, INTERPRETATION, APPLICATION, OR TERMINATION OF THIS AGREEMENT, WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT IN DOVER, DELAWARE OR, AT THE OPTION OF THE PARTY SEEKING RELIEF, BY TELEPHONE, ONLINE, OR VIA WRITTEN SUBMISIONS ALONE, AND BE ADMINISTERED BY THE AMERICAN ARBITRATION ASSOCIATION (“AAA”) UNDER THE THEN IN FORCE COMMERCIAL ARBITRATION RULES BY ONE ARBITRATOR APPOINTED IN ACCORDANCE WITH SUCH RULES. SUCH ARBITRATION WILL BE INDEPENDENT AND IMPARTIAL. IF THE PARTIES FAIL TO AGREE ON THE ARBITRATOR WITHIN TWENTY (20) CALENDAR DAYS AFTER THE INITIATION OF THE ARBITRATION HEREUNDER, AAA WILL APPOINT THE ARBITRATOR.
THIS ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE. THE DECISION OF THE ARBITRATOR WILL BE FINAL AND BINDING ON THE PARTIES AND JUDGMENT ON ANY AWARD(S) RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. NOTHING IN THIS SECTION WILL PREVENT EITHER PARTY FROM SEEKING IMMEDIATE INJUNCTIVE RELIEF FROM ANY COURT OF COMPETENT JURISDICTION, AND ANY SUCH REQUEST SHALL NOT BE DEEMED INCOMPATIBLE WITH THE AGREEMENT TO ARBITRATE OR A WAIVER OF THE RIGHT TO ARBITRATE. THE PARTIES UNDERTAKE TO KEEP CONFIDENTIAL ALL AWARDS IN THEIR ARBITRATION, TOGETHER WITH ALL CONFIDENTIAL INFORMATION, ALL MATERIALS IN THE PROCEEDINGS CREATED FOR THE PURPOSE OF THE ARBITRATION, AND ALL OTHER DOCUMENTS PRODUCED BY THE OTHER PARTY IN THE PROCEEDINGS AND NOT OTHERWISE IN THE PUBLIC DOMAIN, SAVE AND TO THE EXTENT THAT DISCLOSURE MAY BE REQUIRED OF A PARTY BY LEGAL DUTY, TO PROTECT OR PURSUE A LEGAL RIGHT OR TO ENFORCE OR CHALLENGE AN AWARD IN LEGAL PROCEEDINGS BEFORE A COURT OR OTHER JUIDICAL AUTHORITY. THE ARBITRATOR SHALL AWARD ALL FEES AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, TO THE PREVAILING PARTY. ANY JUDGMENT RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.
ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSING OF THE SERVICES, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION, AND YOU AND THE COMPANY EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.
ANY CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF EACH APPLICABLE LICENSE OR SALE OR WILL OTHERWISE BE BARRED.
The Company will not be responsible for any delay or failure in performance of the Services arising out of any cause beyond Company’s control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.
The representations, warranties, duties, and covenants made by You under this Agreement will survive the termination of this Agreement, Your User Account, or the Services, including, but not limited to, Your duty to indemnify and defend Company.
This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
You are expressly prohibited from assigning Your rights and duties under this Agreement. Company reserves the right to assign its rights and duties under this Agreement, including in a sale of Company or the Services.
No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.