Terms of Service
TERMS OF SERVICE
Last Revised on August 23, 2022
Welcome to the Terms of Service (these “Terms”) for the website, taggrading.com (the “Website”), and the related Taggrading mobile application (the “App”) operated on behalf of Technical Authentication and Grading, LLC (“Company”, “we” or “us”). The Website, the App and any content, tools, features and functionality offered on or through our Website and the App are collectively referred to as the “Services”.
These Terms govern your access to and use of the Services. Please read these Terms carefully, as they include important information about your legal rights. By accessing and/or using the Services, you are agreeing to these Terms. If you do not understand or agree to these Terms, please do not use the Services.
For purposes of these Terms, “you” and “your” means you as the user of the Services. If you use the Services on behalf of a company or other entity then “you” includes you and that entity, and you represent and warrant that (a) you are an authorized representative of the entity with the authority to bind the entity to these Terms, and (b) you agree to these Terms on the entity’s behalf.
Section 9 contains an arbitration clause and class action waiver. By agreeing to these Terms, you agree (a) to resolve all disputes with us related to the Services through binding individual arbitration, which means that you waive any right to have those disputes decided by a judge or jury, and (b) to waive your right to participate in class actions, class arbitrations, or representative actions in connection with your use of the Services. You have the right to opt-out of arbitration as explained in Section 9.
1......... Who May Use the Services. 1
2......... User Accounts. 2
3......... Grading Services; ORDERS. 2
5......... Rights We Grant You.. 5
6......... Ownership and Content.. 9
7......... Third Party Services and Materials. 9
8......... Disclaimers, Limitations of Liability and Indemnification.. 9
9......... ARBITRATION AND CLASS ACTION WAIVER.. 11
10....... Additional Provisions. 13
1.Who May Use the Services
You must be 13 years of age or older and reside in the United States or any of its territories to use the Services. Minors under the age of majority in their jurisdiction but that are at least 13 years of age are only permitted to use the Services if the minor’s parent or guardian accepts these Terms on the minor’s behalf prior to use of the Services and only with the involvement of such parent or guardian. Children under the age of 13 are not permitted to use the Services. By using the Services, you represent and warrant that you meet these requirements.
2.1Creating and Safeguarding your Account. To use certain of the Services, you need to create an account or link another account, such as your Apple, Facebook or Google account (“Account”). You agree to provide us with accurate, complete and updated information for your Account. You can access, edit and update your Account via the account information page of the Website and App. You are solely responsible for any activity on your Account and for maintaining the confidentiality and security of your password. We are not liable for any acts or omissions by you in connection with your Account. You must immediately notify us at firstname.lastname@example.org if you know or have any reason to suspect that your Account or password have been stolen, misappropriated, or otherwise compromised, or in case of any actual or suspected unauthorized use of your Account. You agree not to create any Account if we have previously removed your Account, or we previously banned you from any of our Services, unless we provide written consent otherwise.
3.Grading Services; ORDERS
3.1Grading Services. We provide trading card authentication and grading services (“Grading Services”) through the Services. When you purchase any of our Grading Services for your cards (“Your Cards”), we may mail you a submission kit (“Submission Kit”), which may include certain TAG shields, card sleeves, card deck boxes and certain other materials. You must use our Submission Kit when submitting Your Cards for our Grading Services, unless otherwise agreed by TAG in writing. We reserve the right to decline to perform any Grading Services for Your Cards if you do not send us Your Cards using our Submission Kit and following our directions in connection with such Submission Kit. Our Submission Kit may also include a pre-paid express shipping label for you to send Your Cards to us. Title and risk of loss for Your Cards does not pass to us until we receive Your Cards from the carrier. After we complete the Grading Services for Your Cards, Your Cards will be put into a slab (“Slab”), which will include certain information about Your Card, including the TAG Grade, and sent back to you. TAG reserves the right to add to, delete from, or amend in any manner the contents and/or design of the Slab. Title and risk of loss for Your Cards passes to you upon our delivery to the carrier. The Slab may include a QR Code that you and others may scan with a smart phone or other device in order to access a digital imaging and grading report (“Digital Image and Grading Report”, or “DIG Report”) we prepared for such card. The DIG Report and certain other information about Your Card may also be made generally available to the public through our database that can be accessed via the Services. We welcome any questions, complaints or feedback about our Grading Services or the TAG Grades affiliated with Your Cards. However, we have no obligation to provide any re-Grading Services for Your Cards or to remove any TAG Grade or DIG Report affiliated with Your Card. If you believe we made an error in our Grading Services with Your Card(s), please reach out to us at email@example.com.
3.2Payment. The Services may permit you to purchase certain products or services through the Services, including Grading Services (“Offerings”). You acknowledge and agree that all information you provide with regards to a purchase of Offerings, including, without limitation, credit card, PayPal, or other payment information, is accurate, current and complete. You represent and warrant that you have the legal right to use the payment method you provide to us or our payment processor, including, without limitation, any credit card you provide when completing a transaction. We reserve the right, with or without prior notice and in our sole and complete discretion, to (a) discontinue, modify, or limit the available quantity of, any Offerings, and (b) refuse to allow any user to purchase any Offering or deliver such Offerings to a user or a user designated address. When you purchase Offerings, you (a) agree to pay the price for such Offerings as set forth in the applicable Service, and all shipping and handling charges and all applicable taxes in connection with your purchase (the “Full Purchase Amount”), and (b) authorize us to charge your credit card or other payment method for the Full Purchase Amount. The Services may allow you to purchase Offerings and designate them to be delivered or provided at a future date. In such instance, you acknowledge and agree that we may charge your credit card or other payment method for the Full Purchase Amount on the date of purchase, rather than on the ultimate date of delivery or provision of the applicable Offering. Unless otherwise noted, all currency references are in U.S. Dollars. All fees and charges are payable in accordance with payment terms in effect at the time the fee or the charge becomes payable. Payment can be made by credit card, debit card, or through PayPal or other means that we may make available. Orders will not be processed until payment has been received in full, and any holds on your account by PayPal or any other payment processor are solely your responsibility.
3.3Promotional Codes. We may offer certain promotional codes, referral codes, discount codes, coupon codes or similar offers (“Promotional Codes”) that may be redeemed for discounts on future Offerings, or other features or benefits related to the Services, subject to any additional terms that the Company establishes. You agree that Promotional Codes: (a) must be used in a lawful manner; (b) must be used for the intended audience and purpose; (c) may not be duplicated, sold or transferred in any manner, or made available by you to the general public (whether posted to a public forum, coupon collecting service, or otherwise), unless expressly permitted in writing by the Company; (d) may be disabled or have additional conditions applied to them by the Company at any time for any reason without liability to the Company; (e) may only be used pursuant to the specific terms that the Company establishes for such Promotional Code; (f) are not valid for cash or other credits or points; and (g) may expire prior to your use.
3.4Gift Cards. Tangible and/or digital gift cards containing stored money value may be offered by us for the purchase of Offerings (“Gift Cards”). You acknowledge that the Company does not make any warranties with respect to your Gift Card balance and is not responsible for any unauthorized access to, or alteration, theft, or destruction of a Gift Card or Gift Card code that results from any action by you or a third party. You also acknowledge that we may suspend or prohibit use of your Gift Card if your Gift Card or Gift Card code has been reported lost or stolen, or if we believe your Gift Card balance is being used suspiciously, fraudulently, or in an otherwise unauthorized manner. If your Gift Card code stops working, your only remedy is for us, upon our agreement that the Gift Card remains valid, to issue you a replacement Gift Card code. By purchasing a Gift Card, you represent and warrant to the Company that use of the Gift Card will comply with these Terms and all applicable laws, rules and regulations, and the Gift Card will not be used in any manner that is misleading, deceptive, unfair or otherwise harmful to consumers. Gift Cards may only be used in the manner stated and cannot be used to purchase other gift cards, reloaded, resold, used for payment outside of the Services, used for unauthorized marketing, sweepstakes, advertising, or other promotional purposes, redeemed for more than face value, transferred for value, redeemed for cash, or returned for a cash refund (except to the extent required by law). Gift Cards do not expire, and the Company will not assess a service fee or dormancy fee with respect to a Gift Card.
3.5Changes and Pricing. The Company may, at any time, revise or change the pricing, availability, specifications, content, descriptions or features of any Offerings. While we attempt to be as accurate as we can in our descriptions for the Offerings, we do not warrant that Offering descriptions are accurate, complete, reliable, current, or error-free. The inclusion of any Offerings for purchase through the Services at a particular time does not imply or warrant that the Offerings, or similar Offerings, will be available at any other time. We reserve the right to change prices for Offerings displayed on the Services at any time, and to correct pricing errors that may inadvertently occur (and to cancel any orders in our sole discretion that were purchased with pricing errors). All such changes shall be effective immediately upon posting of such new Offering prices to the Services and/or upon making the customer aware of the pricing error.
3.6Order Acceptance; Shipment. Once we receive your order for an Offering, we will provide you with an order confirmation. Your receipt of an order confirmation, however, does not signify our acceptance of your order, nor does it constitute confirmation of our offer to sell; we are simply confirming that we received your order. We reserve the right at any time after receiving your order to accept or decline, in whole or in part, your order for any reason and in our sole discretion. If we cancel an order after you have already been billed, then we will refund the billed amount. Title and risk of loss for any purchases of physical products pass to you upon our delivery to our carrier. We reserve the right to ship partial orders (at no additional cost to you), and notwithstanding anything to the contrary in Section 3.2, the portion of any order that is partially shipped may be charged at the time of shipment, if not previously paid. All orders are shipped using one of our third party couriers. Online tracking may be available at our courier’s website (for example, FedEx), though we make no warranties regarding its availability because it is not under our control. While deliveries may be scheduled for a specified arrival, we cannot guarantee delivery by any specific date or time. Subject to availability and the payment of an additional fee, the shipment of your Cards may be eligible for FedEx’s SenseAware Tracking Device or a similar offering from another carrier. We make no warranties regarding FedEx’s SenseAware Tracking Device or similar offerings from other carriers, because they are not under our control. If we allow you to use FedEx’s SenseAware Tracking Device or a similar offering from another carrier and you do not return such device to us in working condition within 30 days from your receipt of your Cards after we have performed the Grading Services, you will be charged 100% of the cost of such device; provided that we may (but are not obligated to) return 50% of such cost upon our subsequent receipt of such device from you. You acknowledge that the Company does not obtain delivery insurance on your behalf in connection with the shipment of your Cards to or from the Company. We do not offer such insurance, but you may elect to purchase from third parties additional insurance coverage in connection with the shipment of your Cards.
3.7Resubmissions. Resubmissions for Grading Services may be accepted in the Company’s sole discretion. If you resubmit your Card for Grading Services, you will be charged the fee for the applicable Grading Services selected by you in connection with your resubmission. If you resubmit your Card for Grading Services and the Company determines, in its sole discretion:
(a)Your Card appears to be altered in any manner (including, but not limited to, trimming, color alteration, or the addition or removal of card stock), then the Company will return such resubmitted card to you in a TAG shield;
(b)Your Card, as resubmitted, appears to have a lower TAG Grade than your Card at the time of its initial submission, then the Company will put your Card in a Slab with such lower TAG Grade;
(c)Your Card, as resubmitted, appears to have a higher TAG Grade that is no greater than an 8-point (8 out of 900) increase compared to your Card at the time of its initial submission, then the Company will put your Card in a Slab with such higher TAG Grade; or
(d)Your Card, as resubmitted, appears to have a higher TAG Grade that is greater than an 8-point increase compared to your Card at the time of its initial submission and such increase does not appear to be the result of any alteration, then the Company may, in its sole discretion, either put your Card in a Slab with such higher TAG Grade or return such card to you in a TAG shield.
3.8Rejected Cards. The Company reserves the right, to decline to provide the Grading Services to certain cards, as determined in its sole discretion, in which case, you will not be charged a fee for the Grading Services for such cards and such card will be returned to you in a TAG shield, including if the Company determines your Card is or may be, (a) altered in any manner (including, but not limited to, trimming, color alteration, or the addition or removal of card stock), (b) counterfeit or (c) graded previously by a third party and the TAG Grade would be higher than such third party’s grade.
3.9Different Cards. If you allege that the cards returned to you by the Company are not the cards you submitted for Grading Services, then the Company and you shall work in good faith to resolve such discrepancy. If the Company has an image of your Card prior to shipping it back to you, then the Company’s image of such card shall control and determine what card you submitted. If you have an image of your Card immediately prior to shipping such card to the Company and the Company has no such image, then your image of such card shall control and determine what card you submitted. If neither the Company nor you have an image of your Card prior to shipping such card, then you and the Company will use good faith efforts to negotiate a mutually acceptable settlement and, in the event no such settlement is reached, then the dispute resolution process in Section 9 shall apply.
3.10Card Discrepancy. If the Company determines your Card that you submit for Grading Services does not match the Card ID you provided in connection with your order for such Grading Services, then the Company will use good faith efforts to notify you of such discrepancy and confirm you want the Grading Services for the received card. If so, the same fees you chose for such Grading Services apply to such card. If not, the Company will return such card to you in a TAG shield.
3.11Return Policy. There are no refunds available for any Offerings on the Services, except as we may choose to offer in our sole discretion on a case by case basis. If you purchase any of our Grading Services, we may, in our sole discretion, allow you to cancel your purchase of such Grading Services and request a refund of any amounts paid for such cancelled Grading Services prior to us receiving Your Cards from the carrier and/or beginning our Grading Services on Your Cards; provided that we reserve the right to charge you certain handling charges and other cancellation fees, including the cost of a Submission Kit, in connection with your cancellation. In the event of such a cancellation, if we have already received Your Cards and you have asked for us to send them back to you, we will mail them back in the same form that we received them and you agree that we will have no liability to you or to any third party for any claims or damages that may arise as a result of such cancellation.
3.12No Delivery to Children. In furtherance of our policy of not collecting personal information from persons under the age of 13, users are not allowed to give the Company the personal information of any persons under the age of 13 for delivery or shipping purposes or any other reason.
5.Rights We Grant You
(a)Services License. We hereby permit you to use the Services for your personal non-commercial use only, provided that you comply with these Terms in connection with all such use. If any software, content or other materials owned or controlled by us are distributed to you as part of your use of the Services, we hereby grant you, a personal, non-assignable, non-sublicensable, non-transferrable, and non-exclusive right and license to access and display such software, content and materials provided to you as part of the Services (and right to download a single copy of the App onto your applicable equipment or device), in each case for the sole purpose of enabling you to use the Services as permitted by these Terms. Your access and use of the Services may be interrupted from time to time for any of several reasons, including, without limitation, the malfunction of equipment, periodic updating, maintenance, or repair of the Service or other actions that the Company, in its sole discretion, may elect to take.
(b)Your Content License Grant. In connection with your use of the Services, you may be able to post, upload, or submit content to be made available through the Services or in connection with our Services, such as our preparation of a digital image and/or video of Your Cards (“Your Content”). In order to operate the Service, we must obtain from you certain license rights in Your Content so that actions we take in operating the Service are not considered legal violations. Accordingly, by using the Service and uploading or otherwise providing us with Your Content, you grant us a license to access, use, host, cache, store, reproduce, transmit, display, publish, distribute, adapt, and modify (for technical purposes, e.g., making sure content is viewable on smartphones as well as computers and other devices) Your Content but solely as required to be able to operate and provide the Services. You agree that these rights and licenses are royalty free, transferable, sub-licensable, worldwide and irrevocable (for so long as Your Content, in our sole discretion, is stored with us), and include a right for us to make Your Content available to, and pass these rights along to, others with whom we have contractual relationships related to the provision of the Services, solely for the purpose of providing such Services, and to otherwise permit access to or disclose Your Content to third parties if we determine such access is necessary to comply with our legal obligations. For example, the digital image or video of Your Cards may be made generally available to the public through our database that can be accessed via the Services. To the fullest extent permitted by applicable law, the Company reserves the right, and has absolute discretion, to remove, screen, edit, or delete any of Your Content at any time, for any reason, and without notice. By posting or submitting Your Content through the Services, you represent and warrant that you have, or have obtained, all rights, licenses, consents, permissions, power and/or authority necessary to grant the rights granted herein for Your Content. You agree that Your Content will not contain material subject to copyright or other proprietary rights, unless you have the necessary permission or are otherwise legally entitled to post the material and to grant us the license described above.
5.2Restrictions On Your Use of the Services. You may not do any of the following in connection with your use of the Services, unless applicable laws or regulations prohibit these restrictions, or you have our written permission to do so:
(a)download, modify, copy, distribute, transmit, display, perform, reproduce, duplicate, publish, license, create derivative works from, or offer for sale any information contained on, or obtained from or through, the Services, except for temporary files that are automatically cached by your web browser for display purposes, or as otherwise expressly permitted in these Terms;
(b)duplicate, decompile, reverse engineer, disassemble or decode the Services (including any underlying idea or algorithm), or attempt to do any of the same;
(c)use, reproduce or remove any copyright, trademark, service mark, trade name, slogan, logo, image, or other proprietary notation displayed on or through the Services;
(d)infringe upon or otherwise misappropriate our patents;
(e)use cheats, automation software (bots), hacks, modifications (mods) or any other unauthorized third-party software designed to modify the Services;
(f)exploit the Services for any commercial purpose, including without limitation communicating or facilitating any commercial advertisement or solicitation;
(g)access or use the Services in any manner that could disable, overburden, damage, disrupt or impair the Services or interfere with any other party’s access to or use of the Services or use any device, software or routine that causes the same;
(h)attempt to gain unauthorized access to, interfere with, damage or disrupt the Services, accounts registered to other users, or the computer systems or networks connected to the Services;
(i)circumvent, remove, alter, deactivate, degrade or thwart any technological measure or content protections of the Services;
(j)use any robot, spider, crawlers, scraper, or other automatic device, process, software or queries that intercepts, “mines,” scrapes, extracts, or otherwise accesses the Services to monitor, extract, copy or collect information or data from or through the Services, or engage in any manual process to do the same;
(k)introduce any viruses, trojan horses, worms, logic bombs or other materials that are malicious or technologically harmful into our systems;
(l)submit, transmit, display, perform, post or store any content that is inaccurate, unlawful, defamatory, obscene, lewd, lascivious, filthy, excessively violent, pornographic, invasive of privacy or publicity rights, harassing, threatening, abusive, inflammatory, harmful, hateful, cruel or insensitive, deceptive, or otherwise objectionable, use the Services for illegal, harassing, bullying, unethical or disruptive purposes, or otherwise use the Services in a manner that is obscene, lewd, lascivious, filthy, excessively violent, harassing, harmful, hateful, cruel or insensitive, deceptive, threatening, abusive, inflammatory, pornographic, inciting, organizing, promoting or facilitating violence or criminal or harmful activities, defamatory, obscene or otherwise objectionable;
(m)violate any applicable law or regulation in connection with your access to or use of the Services; or
(n)access or use the Services in any way not expressly permitted by these Terms.
5.3Use of the App. You are responsible for providing the mobile device, wireless service plan, software, Internet connections and/or other equipment or services that you need to download, install and use the App. We do not guarantee that the App can be accessed and used on any particular device or with any particular service plan. We do not guarantee that the App will be available in, or that orders for Offerings can be placed from, any particular geographic location. As part of the Services and to update you regarding the status of deliveries, you may receive push notifications, local client notifications, text messages, picture messages, alerts, emails or other types of messages directly sent to you in connection with the App (“Push Messages”). You acknowledge that, when you use the App, your wireless service provider may charge you fees for data, text messaging and/or other wireless access, including in connection with Push Messages. You have control over the Push Messages settings, and can opt in or out of these Push Messages through the Services or through your mobile device’s operating system (with the possible exception of infrequent, important service announcements and administrative messages). It is your responsibility to check with your wireless service provider to determine what fees apply to your access to and use of the App, including your receipt of Push Messages from the Company. You are solely responsible for any fee, cost or expense that you incur to download, install and/or use the App on your mobile device, including for your receipt of push messages from the Company.
5.5Beta Offerings. From time to time, we may, in our sole discretion, include certain test or beta features or products in the Services (“Beta Offerings”) as we may designate from time to time. Your use of any Beta Offering is completely voluntary. The Beta Offerings are provided on an “as is” basis and may contain errors, defects, bugs, or inaccuracies that could cause failures, corruption or loss of data and information from any connected device. You acknowledge and agree that all use of any Beta Offering is at your sole risk. You agree that once you use a Beta Offering, your content or data may be affected such that you may be unable to revert back to a prior non-beta version of the same or similar feature. Additionally, if such reversion is possible, you may not be able to return or restore data created within the Beta Offering back to the prior non-beta version. If we provide you any Beta Offerings on a closed beta or confidential basis, we will notify you of such as part of your use of the Beta Offerings. For any such confidential Beta Offerings, you agree to not disclose, divulge, display, or otherwise make available any of the Beta Offerings without our prior written consent.
6.Ownership and Content
6.1Ownership of the Services. The Services, including their “look and feel” (e.g., text, graphics, images, logos), proprietary content, information and other materials, are protected under copyright, trademark and other intellectual property laws. You agree that the Company and/or its licensors own all right, title and interest in and to the Services (including any and all intellectual property rights therein) and you agree not to take any action(s) inconsistent with such ownership interests. We and our licensors reserve all rights in connection with the Services and its content [(other than Your Content)], including, without limitation, the exclusive right to create derivative works.
6.2Ownership of Trademarks. The Company’s name, trademarks, logo and all related names, logos, product and service names, designs and slogans are trademarks of the Company or its affiliates or licensors. Other names, logos, product and service names, designs and slogans that appear on the Services are the property of their respective owners, who may or may not be affiliated with, connected to, or sponsored by us.
6.3Ownership of Feedback. We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You acknowledge and expressly agree that any contribution of Feedback does not and will not give or grant you any right, title or interest in the Services or in any such Feedback. All Feedback becomes the sole and exclusive property of the Company, and the Company may use and disclose Feedback in any manner and for any purpose whatsoever without further notice or compensation to you and without retention by you of any proprietary or other right or claim. You hereby assign to the Company any and all right, title and interest (including, but not limited to, any patent, copyright, trade secret, trademark, show-how, know-how, moral rights and any and all other intellectual property right) that you may have in and to any and all Feedback.
7.Third Party Services and Materials
7.1Use of Third Party Materials in the Services. Certain Services may display, include or make available content, data, information, applications or materials from third parties (“Third Party Materials”) or provide links to certain third party websites. By using the Services, you acknowledge and agree that the Company is not responsible for examining or evaluating the content, accuracy, completeness, availability, timeliness, validity, copyright compliance, legality, decency, quality or any other aspect of such Third Party Materials or websites. We do not warrant or endorse and do not assume and will not have any liability or responsibility to you or any other person for any third-party services, Third Party Materials or third-party websites, or for any other materials, products, or services of third parties. Third Party Materials and links to other websites are provided solely as a convenience to you.
8.Disclaimers, Limitations of Liability and Indemnification
(a)Your access to and use of the Services are at your own risk. You understand and agree that the Services are provided to you on an “AS IS” and “AS AVAILABLE” basis. Without limiting the foregoing, to the maximum extent permitted under applicable law, the Company, its parents, affiliates, related companies, officers, directors, employees, agents, representatives, partners and licensors (the “the Company Entities”) DISCLAIM ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS OR IMPLIED, OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. The Company Entities make no warranty or representation and disclaim all responsibility and liability for: (a) the completeness, accuracy, availability, timeliness, security or reliability of the Services; (b) any harm to your computer system, loss of data, or other harm that results from your access to or use of the Services; (c) the operation or compatibility with any other application or any particular system or device; (d) whether the Services will meet your requirements or be available on an uninterrupted, secure or error-free basis; and (e) the deletion of, or the failure to store or transmit, Your Content and other communications maintained by the Services. No advice or information, whether oral or written, obtained from the Company Entities or through the Services, will create any warranty or representation not expressly made herein.
(b)THE COMPANY ENTITIES TAKE NO RESPONSIBILITY AND ASSUME NO LIABILITY FOR ANY CONTENT THAT YOU, ANOTHER USER, OR A THIRD PARTY CREATES, UPLOADS, POSTS, SENDS, RECEIVES, OR STORES ON OR THROUGH OUR SERVICES.
(c)YOU UNDERSTAND AND AGREE THAT YOU MAY BE EXPOSED TO CONTENT THAT MIGHT BE OFFENSIVE, ILLEGAL, MISLEADING, OR OTHERWISE INAPPROPRIATE, NONE OF WHICH THE COMPANY ENTITIES WILL BE RESPONSIBLE FOR.
8.2Limitations of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, YOU AGREE THAT IN NO EVENT WILL THE COMPANY ENTITIES BE LIABLE (A) FOR DAMAGES OF ANY KIND, INCLUDING INDIRECT SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF USE, DATA OR PROFITS, BUSINESS INTERRUPTION OR ANY OTHER DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE SERVICES), HOWEVER CAUSED AND UNDER ANY THEORY OF LIABILITY, WHETHER UNDER THESE TERMS OR OTHERWISE ARISING IN ANY WAY IN CONNECTION WITH THE SERVICES OR THESE TERMS AND WHETHER IN CONTRACT, STRICT LIABILITY OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) EVEN IF THE COMPANY ENTITIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, OR (B) FOR ANY OTHER CLAIM, DEMAND OR DAMAGES WHATSOEVER RESULTING FROM OR ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR THE DELIVERY, USE OR PERFORMANCE OF THE SERVICES. SOME JURISDICTIONS (SUCH AS THE STATE OF NEW JERSEY) DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSION OR LIMITATION MAY NOT APPLY TO YOU. THE COMPANY ENTITIES’ TOTAL LIABILITY TO YOU FOR ANY DAMAGES FINALLY AWARDED SHALL NOT EXCEED (I) THE LESSER OF (A) ONE HUNDRED DOLLARS ($100.00), OR (B) THE AMOUNT YOU PAID THE COMPANY ENTITIES, IF ANY, IN THE PAST SIX (6) MONTHS FOR THE SERVICES (OR OFFERINGS PURCHASED ON THE SERVICES) GIVING RISE TO THE CLAIM, (II) WITH RESPECT TO CLAIMS RELATING TO YOUR CARDS THAT ARE LOST DURING SHIPPING TO THE COMPANY OR FROM THE COMPANY TO YOU OR LOST AT THE COMPANY’S PREMISES IN CONNECTION WITH THE SERVICES, THE FAIR MARKET VALUE (AS DETERMINED PURSUANT TO THE PROCEDURES DESCRIBED BELOW) OF YOUR CARDS RELATED TO SUCH CLAIM OR (III) WITH RESPECT TO CLAIMS RELATING TO PHYSICAL DAMAGE TO YOUR CARD THAT OCCURS AT THE COMPANY’S PREMISES OR DURING SHIPPING TO THE COMPANY OR FROM THE COMPANY TO YOU, THE GREATER OF (A) ONE HUNDRED DOLLARS ($100.00), OR (B) THE COMPANY’S INSURANCE COVERAGE RELATED TO SUCH CLAIM. THE FOREGOING LIMITATIONS WILL APPLY EVEN IF THE ABOVE STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
You acknowledge and agree that the Company’s insurance coverage, including any insurance related to the shipment of your Cards, does not differentiate cards by value. Further, the fair market value of such card shall be determined by mutual agreement of you and the Company. In the event no agreement may be reached, the fair market value of such card shall be determined, in the Company’s sole discretion, via arbitration pursuant to Section 9 below or by an independent third party valuation company selected by the Company. As a condition to making any claim against the Company that your Card has been lost or damaged by the Company or the shipper, you must retain an image of your Cards immediately prior to shipping such cards to the Company and the failure to do so relieves the Company of any liability stemming from such claim.
8.3Indemnification. By entering into these Terms and accessing or using the Services, you agree that you shall defend, indemnify and hold the Company Entities harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys’ fees and costs) incurred by the Company Entities arising out of or in connection with: (a) your violation or breach of any term of these Terms or any applicable law or regulation; (b) your violation of any rights of any third party; (c) your misuse of the Services; (d) [Your Content], or (e) your negligence or willful misconduct. If you are obligated to indemnify any Company Entity hereunder, then you agree that Company (or, at its discretion, the applicable Company Entity) will have the right, in its sole discretion, to control any action or proceeding and to determine whether Company wishes to settle, and if so, on what terms, and you agree to fully cooperate with Company in the defense or settlement of such claim.
9.ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY – IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT AND TO HAVE A JURY HEAR YOUR CLAIMS. IT CONTAINS PROCEDURES FOR MANDATORY BINDING ARBITRATION AND A CLASS ACTION WAIVER.
9.1Informal Process First. You agree that in the event of any dispute between you and the Company Entities, you will first contact the Company and make a good faith sustained effort to resolve the dispute before resorting to more formal means of resolution, including without limitation, any court action.
9.2Arbitration Agreement. After the informal dispute resolution process, any remaining dispute, controversy, or claim (collectively, “Claim”) relating in any way to your use of the Company’s services and/or products, including the Services, will be resolved by arbitration, including threshold questions of arbitrability of the Claim, except as permitted herein. You and the Company agree that any Claim will be settled by final and binding arbitration, using the English language, administered by JAMS under its Comprehensive Arbitration Rules and Procedures and the JAMS Consumer Minimum Standards (together, the “JAMS Rules”) then in effect (those rules are deemed to be incorporated by reference into this section, and as of the date of these Terms). Because your contract with the Company, these Terms, and this Arbitration Agreement concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit. Arbitration will be handled by a sole arbitrator in accordance with the JAMS Rules. Judgment on the arbitration award may be entered in any court that has jurisdiction. You have a right to have the arbitration conducted via telephone, or as an in-person hearing in Los Angeles County, California. Any arbitration under these Terms will take place on an individual basis – class arbitrations and class actions are not permitted. You understand that by agreeing to these Terms, you and the Company are each waiving the right to trial by jury or to participate in a class action or class arbitration.
9.3Exceptions. Notwithstanding the foregoing, you and the Company agree that the following types of disputes will be resolved in a court of proper jurisdiction:
(a)Disputes or claims within the jurisdiction of a small claims court consistent with the jurisdictional and dollar limits that may apply, as long as it is brought and maintained as an individual dispute and not as a class, representative, or consolidated action or proceeding;
(b)Disputes or claims where the sole form of relief sought is injunctive relief (including public injunctive relief); or
(c)Intellectual property disputes.
9.4Costs of Arbitration. Payment for any and all reasonable JAMS filing, administrative and arbitrator fees will be in accordance with the JAMS Rules, except that if you demonstrate that any such costs and expenses owed by you under those rules would be prohibitively more expensive than a court proceeding, the Company will pay the amount of any such costs and expenses that the arbitrator determines are necessary to prevent the arbitration from being prohibitively more expensive than a court proceeding (subject to possible reimbursement as set forth below). If the value of your claim does not exceed $10,000, the Company will pay for the reasonable filing, administrative and arbitrator fees associated with the arbitration, unless the arbitrator finds that either the substance of your claim or the relief sought was frivolous or brought for an improper purpose. Fees and costs may be awarded as provided pursuant to applicable law. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the JAMS rules. In that case, you agree to reimburse the Company for all monies previously disbursed by it that are otherwise your obligation to pay under the applicable rules. If you prevail in the arbitration and are awarded an amount that is less than the last written settlement amount offered by the Company before the arbitrator was appointed, the Company will pay you the amount it offered in settlement. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator’s ruling on the merits.
9.5Opt-Out. You have the right to opt-out and not be bound by the arbitration and waiver of class provisions set forth in these Terms by sending written notice of your decision to opt-out to firstname.lastname@example.org or to the U.S. mailing address listed in the “How to Contact Us” section of these Terms. The notice must be sent to the Company within thirty (30) days of your registering to use the Services or agreeing to these Terms (or if this Section 9 is amended hereafter, within 30 days of such amendment being effective), otherwise you shall be bound to arbitrate disputes on a non-class basis in accordance with these Terms, and the notice must specify your name and mailing address. If you opt-out of only the arbitration provisions, and not also the class action waiver, the class action waiver still applies. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
9.6WAIVER OF RIGHT TO BRING CLASS ACTION AND REPRESENTATIVE CLAIMS. To the fullest extent permitted by applicable law, you and the Company each agree that any proceeding to resolve any dispute, claim, or controversy will be brought and conducted ONLY IN THE RESPECTIVE PARTY’S INDIVIDUAL CAPACITY AND NOT AS PART OF ANY CLASS (OR PURPORTED CLASS), CONSOLIDATED, MULTIPLE-PLAINTIFF, OR REPRESENTATIVE ACTION OR PROCEEDING (“CLASS ACTION”). You and the Company AGREE TO WAIVE THE RIGHT TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS ACTION. You and the Company EXPRESSLY WAIVE ANY ABILITY TO MAINTAIN A CLASS ACTION IN ANY FORUM. If the dispute is subject to arbitration, THE ARBITRATOR WILL NOT HAVE THE AUTHORITY TO COMBINE OR AGGREGATE CLAIMS, CONDUCT A CLASS ACTION, OR MAKE AN AWARD TO ANY PERSON OR ENTITY NOT A PARTY TO THE ARBITRATION. Further, you and the Company agree that the ARBITRATOR MAY NOT CONSOLIDATE PROCEEDINGS FOR MORE THAN ONE PERSON’S CLAIMS, AND IT MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS ACTION. For the avoidance of doubt, however, you can seek public injunctive relief to the extent authorized by law and consistent with the Exceptions clause above.
IF THIS CLASS ACTION WAIVER IS LIMITED, VOIDED, OR FOUND UNENFORCEABLE, THEN, UNLESS THE PARTIES MUTUALLY AGREE OTHERWISE, THE PARTIES’ AGREEMENT TO ARBITRATE SHALL BE NULL AND VOID WITH RESPECT TO SUCH PROCEEDING SO LONG AS THE PROCEEDING IS PERMITTED TO PROCEED AS A CLASS ACTION. If a court decides that the limitations of this paragraph are deemed invalid or unenforceable, any putative class, private attorney general, or consolidated or representative action must be brought in a court of proper jurisdiction and not in arbitration.
10.2Updating These Terms. We may modify these Terms from time to time in which case we will update the “Last Revised” date at the top of these Terms. If we make changes that are material, we will use reasonable efforts to attempt to notify you, such as by e-mail and/or by placing a prominent notice on the first page of the Website. However, it is your sole responsibility to review these Terms from time to time to view any such changes. The updated Terms will be effective as of the time of posting, or such later date as may be specified in the updated Terms. Your continued access or use of the Services after the modifications have become effective will be deemed your acceptance of the modified Terms.
10.3Termination of License and Your Account. If you breach any of the provisions of these Terms, all licenses granted by the Company will terminate automatically. Additionally, the Company may suspend, disable, or delete your Account and/or the Services (or any part of the foregoing) with or without notice, for any or no reason. If the Company deletes your Account for any suspected breach of these Terms by you, you are prohibited from re-registering for the Services under a different name. In the event of Account deletion for any reason, the Company may, but is not obligated to, delete any of Your Content. the Company shall not be responsible for the failure to delete or deletion of Your Content. In the event that you re-register to use the Services with a new Account, all rights provided to the Company in the terminated Account will survive the termination of these Terms and shall continue in full force and effect subsequent to and notwithstanding the termination of the terminated Account. All sections which by their nature should service the termination of these Terms shall continue in full force and effect subsequent to and notwithstanding any termination of these Terms by the Company or you. Termination will not limit any of the Company’s other rights or remedies at law or in equity.
10.4Injunctive Relief. You agree that a breach of these Terms will cause irreparable injury to the Company for which monetary damages would not be an adequate remedy and the Company shall be entitled to equitable relief in addition to any remedies it may have hereunder or at law without a bond, other security or proof of damages.
10.5California Residents. If you are a California resident, in accordance with Cal. Civ. 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.
10.6Miscellaneous. If any provision of these Terms shall be unlawful, void or for any reason unenforceable, then that provision shall be deemed severable from these Terms and shall not affect the validity and enforceability of any remaining provisions. These Terms and the licenses granted hereunder may be assigned by the Company but may not be assigned by you without the prior express written consent of the Company. No waiver by either party of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. The section headings used herein are for reference only and shall not be read to have any legal effect. The Services are operated by us in the United States. Those who choose to access the Services from locations outside the United States do so at their own initiative and are responsible for compliance with applicable local laws in addition to these Terms. These Terms are governed by the laws of the State of Delaware, without regard to conflict of laws rules, and the proper venue for any disputes arising out of or relating to any of the same will be the arbitration venue set forth in Section 9, or if arbitration does not apply, then the state and federal courts located in Los Angeles County, California.
10.7How to Contact Us. You may contact us regarding the Services or these Terms at: 5300 Beethoven Street, Fl 4, Los Angeles, CA 90066, by phone at (510) 689-1436 or by e-mail at email@example.com.