Shophype - Terms of Use
Last updated: January 02, 2025
Thank you for using Shophype. These Terms of
Use ("Terms") contain the rules and restrictions that govern your use of our applications, products, services and websites ("Services").
These Terms form a binding agreement between you and us. By completing the
registration process and/or browsing the Services, you represent that (1) you
have read, understand and agree to be bound by the Terms; (2) you are of legal
age and have the capacity to form a binding contract with us; (3) you have the
authority to enter into the Terms personally; and (4) if you are using the
Services on behalf of a company or other entity, (a) you agree that “you”
includes you and that entity, (b) you are an authorized representative of the
entity with the authority to bind the entity to these Terms, and (c) you agree
to these Terms on the entity’s behalf. You should not access or use the
Services unless you agree to be bound by all of these Terms.
1. Overview
1.1 These Terms are between you and
Shophype.com.au
1.2 Shophype and/or its affiliates are referred
to in these Terms and Policies (as defined below) as "we" or
"us." For purposes of these Terms and Policies, we also refer to:
1.3 We and our affiliates provide technical and
operational support for our app. You may pay for multiple orders in one
transaction on Shophype. Multiple orders may be delivered together in one
package.
1.4 Your use of, and participation in, certain
Services are also subject to additional policies, rules and guidelines we may
publish from time to time (“Policies”), including our Privacy Policy and our Cookie and Similar Technologies Policy reflecting the practices of Services’ data
controller. If the Terms are inconsistent with the Policies, the Policies shall
control with respect to the relevant subject matter.
1.5 PLEASE BE AWARE THAT SECTION 19 BELOW
CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN YOU AND US WILL BE RESOLVED,
INCLUDING WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO
THE EFFECTIVE DATE OF THE TERMS. SECTION 19 CONTAINS, AMONG OTHER THINGS, AN
AGREEMENT TO ARBITRATE WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL
DISPUTES BETWEEN YOU AND US BE RESOLVED BY BINDING AND FINAL ARBITRATION. IN SOME COUNTRIES YOU MAY HAVE ADDITIONAL
RIGHTS AND/OR ELEMENTS OF THE ARBITRATION AGREEMENT MAY NOT APPLY TO YOU AS
REQUIRED BY LAW.
1.6 PLEASE NOTE THAT THESE TERMS
ARE SUBJECT TO CHANGE BY US IN OUR SOLE DISCRETION AT ANY TIME. When changes
are made, we will publish a copy of the current Terms and any updated Policies
available on Shophype, and we will also
update the “Last Updated” date at the top of the Terms. We will notify you of
any changes to the Terms (including the Policies) that are materially adverse
to you. We encourage you to periodically review Terms and Policies for the
latest version. Unless otherwise stated in such update, any changes to the
Terms will be effective immediately for users of the Services with or without
an Account. We may require you to provide consent to the updated Terms in a
specified manner before further use of the Services is permitted. If you do not
agree to any change(s) after receiving notice of such change(s), you shall stop
using the Services. Otherwise, your continued use of the Services constitutes
your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE OR
APPLICATION TO VIEW THE THEN-CURRENT TERMS.
2. User Requirements and
Registration
2.1 To use the Services, you
represent that you are at least eighteen (18) years old and of legal age to
form a binding contract. Minors under 18 and at least 13 years of age are only
permitted to use our Services through an Account owned by a parent or legal
guardian with their appropriate permission and under their direct supervision. Children under 13 years are not permitted to
use Shophype or the Services. Products for children’s use may be sold on Shophype.
However, these products are intended for sale to adults. Certain products may
be intended for individuals of certain ages or "mature audiences"
only. By ordering such products, you certify that you are old enough to view,
use, own, or receive them. We are not responsible for third-party content that
you may find offensive, indecent, or objectionable.
2.2 You may not use the Services if: (1) you
cannot enter into a binding contract with us; (2) you are located in a country embargoed by your country
of residence or other relevant country; (3) you are on any agency list of
prohibited persons or entities, such as the U.S. Treasury Department's list of
Specially Designated Nationals; or (4) you are banned from using the Services
by us, in our sole discretion.
2.3 To access
or use some of our Services, you may be required to create an account with us.
When creating your account on Shophype (“Account”), you agree to provide true,
accurate, complete, and updated information about yourself, including contact
details. You are responsible
for keeping your registration information with us up to date. You are
responsible for all activities that occur under your Account. You agree that
you shall monitor your Account to restrict use by minors, and you will accept
full responsibility for any unauthorized use of the Services by minors. You may
not select as your user name a name that you don't have the right to use, or
another person's name with the intent to impersonate that person. You may not
transfer your Account to anyone else without our prior written permission. You
agree not to create an Account or use the Services if you have been permanently
banned from any of the Services. You may not share your Account or password
with anyone, and you agree to notify us immediately of any unauthorized use of
your password or any other breach of security and to exit from your Account at
the end of each session.
2.4 You may also register an Account by
connecting through a social networking service (“SNS”) account and its
credentials (an “SNS Account”). If you access the Services through an SNS as
part of the functionality of the Services, you may link your Account with SNS
Accounts by allowing us to access your SNS Account, as is permitted under the
applicable terms and conditions that govern your SNS Account. You represent
that you are entitled to grant us access to your SNS 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 SNS Account and without
obligating us to pay any fees or making us subject to any usage limitations
imposed by such SNS. “SNS Content” is any Content (as defined below) that you
have provided to and stored in your SNS Account. Unless otherwise specified in
the Agreement, all SNS Content shall be considered to be User Submissions for
all purposes of the Terms. Depending on the SNS Accounts you choose and subject
to the privacy settings that you have set in such SNS Accounts, personal
information that you post to your SNS Accounts may be available on and through
your Account on the Services. Please note that if an SNS Account or associated
service becomes unavailable, or our access to such SNS Account is terminated by
the SNS, then SNS Content will no longer be available on and through the
Services. You have the ability to disable the connection between your Account
and your SNS Accounts at any time by accessing the “Settings” section of the
Services. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE SNS PROVIDERS ASSOCIATED
WITH YOUR SNS ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH SNS
PROVIDERS, AND WE DISCLAIM ANY LIABILITY FOR PERSONAL INFORMATION THAT MAY BE
PROVIDED TO US BY SUCH SNS PROVIDERS IN VIOLATION OF THE PRIVACY SETTINGS THAT
YOU HAVE SET IN SUCH SNS ACCOUNTS. We make no effort to review any SNS Content
for any purpose, including but not limited to, for accuracy, legality or
noninfringement, and we are not responsible for any SNS Content.
3. Rules and
Restrictions
3.1 You agree to use the Services for your own
use, and not on behalf of or for the benefit of any third party, and only in a
manner that complies with these Terms, the Policies, and all laws and
regulations applicable to you. If your use of the Services is prohibited by any
applicable laws, then you are not authorized to use the Services. We are not
responsible if you use the Services in a way that breaks the law.
3.2 You are responsible for all activity
associated with your Account. Therefore, you must protect the security of your
Account and password and not share them with any third party. You must notify
us immediately of any unauthorized use or security breach of your Account.
3.3 You must not create multiple accounts.
3.4 Any sweepstakes, contests, raffles, surveys,
games, or similar promotions (each, a “Promotion” and collectively,
"Promotions") made available through the Services may be governed by
separate rules. If the rules for a Promotion conflict with these Terms, the
Promotion rules will govern.
3.5 When using the Services, you agree and
undertake not to take any action or make available any User Submissions through
the Services that may:
(1) infringe or
violate another person’s rights, including intellectual property rights;
(2) violate any of
these Terms, the Policies, or applicable laws and regulations;
(3) engage in any
unlawful, harmful, abusive, misleading, false, fraudulent, deceptive,
threatening, harassing, defamatory, libelous, pornographic, obscene, profane or
otherwise objectionable or discriminatory conduct;
(4) circumvent or
attempt to circumvent any of these Terms, the Policies or other rules relating
to the Services including the Promotions;
(5) constitute
unauthorized or unsolicited advertising, or junk or bulk email;
(6) collect personal
data from other users or use any such information collected from the Services;
(7) engage in any
conduct that is likely to cause a security breach of your Account;
(8) obtain another
user’s password, account, or other security information;
(9) use a third
party's credentials, conceal your true IP address, or otherwise impersonate or
misrepresent your identity or your affiliation with any person or entity;
(10) violate or
interfere with the proper functioning or security of any computer network;
(11) run any form of
auto-responder or "spam" on the Services, any process that runs or is
activated while you are not logged into the Services, or any process that
otherwise interferes with the proper functioning of the Services (including by placing
an unreasonable load on the Services' infrastructure through overloading,
“flooding,” “mail bombing” or crashing the Services);
(12) potentially harm
the Services, including but not limited to the violation of any security
features of the Services, use of manual or automated software or other means to
access, "crawl," "scrape," or "spider" any page, data,
or portion of or relating to the Services or the introduction of viruses, worms
or similar harmful code into the Services;
(13) copy or store any
significant portion of the content on the Services without written consent from
us;
(14) decompile,
reverse engineer, or otherwise obtain the source code or underlying ideas or
information of or relating to the Services;
(15) buy any products
which you are not legally allowed to purchase or use;
(16) abuse any
promotions, discounts, or other benefits offered by us, or manipulate the price
of any listed products or interfere with listings; or
(17) attempt to do
anything, or permit, encourage, assist, or allow any third party to do
anything, prohibited in this list.
In addition to any
other remedies available to us, a violation of any of the foregoing is grounds
for:
(1) removal or refusal
to post any User Submission for any or no reason;
(2) cancellation of
your purchases and refund of your relevant payment;
(3) cancellation of
Rewards; and/or
(4) suspension or
termination of your access or use of the Services.
If we become aware of any possible violations
by you of the Terms, we reserve the right to investigate such violations. If,
as a result of the investigation, we believe that criminal activity has
occurred, we reserve the right to refer the matter to, and to cooperate with,
any and all applicable legal authorities. We are entitled, except to the extent
prohibited by applicable law, to disclose any information or materials on or in
the Services, including User Submissions, in our possession in connection with
your use of the Services, to (i) comply with applicable laws, legal process or
governmental request; (ii) enforce the Terms and Policies, (iii) respond to any
claims that a User Submission violates the rights of third parties, (iv)
respond to your requests for customer service, or (v) protect the rights,
property or personal safety of us, our users or the public, and all enforcement
or other government officials, as we believe to be necessary, reasonable and
appropriate.
4. Privacy
4.1 Our Privacy Policy provides information about
how we collect, use, and disclose your personal information when you access,
visit or use the Services. In connection with your use of the Services, you
acknowledge and agree that we may collect, access, use, preserve and disclose
your personal information (including your
Account and user information) as described in our Privacy Policy and our Cookie and Similar Technologies Policy. The Privacy Policy is part of and is governed by these Terms and
by agreeing to these Terms, you agree to be bound by the terms of the Privacy Policy and Cookie and Similar Technologies Policy.
5. Communications
5.1 You consent to receive
communications from us electronically, such as emails, texts, mobile push
notices, and notices and messages on or through the Services (“Push Messages”),
and where required by law, we will obtain your opt-in consent to deliver such
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. Please check with your wireless service provider to
determine what fees apply to your access to and use of the Services, including
your receipt of Push Messages from us. You are solely responsible for any fee,
cost or expense that you incur to download, install and/or use the Services on
your mobile device, including for your receipt of Push Messages. You also
acknowledge and agree that all terms and conditions, agreements, notices,
disclosures, and other communications and documents that we provide to you
electronically constitute and shall have the same legal effect as “in writing.”
5.2 You agree that we may
communicate with you at any email address or telephone number that you provide
us, to: (i) notify you regarding your Account; (ii) troubleshoot problems with
your Account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or
questionnaires; (vi) notify you regarding order, payment and delivery updates;
(vii) send you authentication texts; or (viii) as otherwise necessary to
service your Account or enforce these Terms, the Policies, applicable laws and
regulations, or any other agreement we may have with you. Standard text
messaging charges applied by your cell phone carrier will apply to text
messages that we send.
5.3 If you would like to receive
our marketing materials via mobile texts and alerts, you may sign up to do so.
By signing up, you acknowledge that we may send you promotional messages or
other mobile messages from or on behalf of us ,
including one-time passcodes, notifications regarding your orders, our
promotional messages, and abandoned cart reminders (enabled by using cookies we
collect as described in these Terms) at the mobile number you provide us.
Opting in for a program does not entail automatic opt-in for another. Message
frequency varies and carriers are not liable for any delays or undelivered
messages. Message and Data Rates may apply. You acknowledge that you are not
required to consent to receive marketing texts as a condition of using the
Services. If you wish to opt out of SMS texts from us, you can reply “STOP” to
the corresponding number from your mobile device receiving the messages.
However, you acknowledge that opting out of receiving texts may impact your use
of the Services. If you would like to resume the subscription, reply “UNSTOP”
to the corresponding number. We will not share your consent, opt-in and opt-out
records with any third parties other than text messaging service providers and
aggregators. You may also reply “HELP” for assistance. For further assistance,
please contact us (1) if you are using a Shophype website, at the appropriate
email address on the “Contact us” page linked in the website footer, and (2) if
you are using a Shophype application, through the “Customer support” section in
the “You” menu at the bottom of the home page.
5.4 If you wish to opt out of marketing emails,
you can unsubscribe from our marketing email list by following the unsubscribe
options in the marketing email itself.
5.5 Our communications with you may be through a
third-party service provider. You acknowledge and consent that, subject to our Privacy Policy, your communications with us and our agents
may be recorded, monitored and stored for quality control and training
purposes, or to protect your and our interests.
6. User Submissions
6.1 “User Submission” means anything posted,
uploaded, shared, submitted, stored, or otherwise provided by you through the
Services, including suggestions, comments, reviews, ratings, photos, videos, or
other feedback or materials, and may be viewable by other users. Any User
Submission posted by you in your Account must not contain nudity, violence,
sexually explicit, or offensive subject matter as reasonably determined by us
in our sole discretion.
6.2 For all User Submissions, you grant us a
fully-paid, royalty-free, perpetual, irrevocable, non-exclusive, transferable,
sublicensable, worldwide right (including any moral rights) and license to use,
license, store, display, reproduce, save, modify (e.g. to make sure the User
Submission is viewable on different systems and devices), create derivative
works, publicly perform, publicly display, distribute, translate, or otherwise
act with respect to such User Submissions as we determine is necessary to operate,
market, and advertise the Services, including to present, display, or perform
such User Submissions in accordance with your preferences.
6.3 You acknowledge and agree that all User
Submissions (including the user name under which you made them) are
non-confidential and non-proprietary. We may freely display, disclose,
reproduce, modify, license, transfer, distribute and otherwise use the User
Submissions in any manner, without any restriction or compensation to you.
6.4 You warrant that you own or otherwise control
all rights to the User Submissions and that our use of any User Submission will
not infringe upon or violate the rights of any third party or violate any of
the rules and restrictions contained in these Terms (including those included
in Section 3 herein).
6.5 We do not endorse User Submissions, and they
do not represent our views. We expressly disclaim any liability for User
Submissions or damages resulting from them. We expect users to maintain a high
level of integrity when submitting User Submissions that are viewable by other
users, especially with respect to ratings and reviews of products. You
undertake that the User Submissions that are viewable by other users are made
truthfully in good faith and based only on your first-hand experience. You
further undertake that you will prominently indicate if a User Submission was
sponsored or paid for in any way. You acknowledge that we have no obligation to
pre-screen User Submissions, although we reserve the right to pre-screen,
refuse, exclude or remove any User Submission for any reason or no reason and
without notice to you. By entering into these Terms, you hereby provide your
irrevocable consent to such monitoring. You acknowledge and agree that you have
no expectation of privacy concerning the transmission of your User Submissions.
In the event that we pre-screen, refuse, exclude or remove any User
Submissions, you acknowledge that we will do so for our benefit, not yours.
Without limiting the foregoing, we shall have the right to remove any User
Submissions that violate the Terms or are otherwise objectionable.
7. Ownership
7.1 You acknowledge and agree that all materials
displayed, performed, or available on or through the Services, including, but
not limited to, text, graphics, data, articles, photos, images, illustrations
and User Submissions (collectively, "Content") are protected by
copyright and/or other intellectual property laws throughout the world. You
undertake to comply with all copyright notices, trademark rules, information,
and restrictions contained in the Content, and not to copy, reproduce, modify,
translate, publish, broadcast, transmit, distribute, perform, upload, display,
license, sell, or otherwise use for any purpose any Content not owned by you
without the prior consent of the owner of that Content.
7.2 We respect others' intellectual property
rights, and we reserve the right to delete or disable Content alleged to be
infringing upon another person’s intellectual property rights and to terminate
the accounts of the alleged infringers. See our Intellectual Property
Policy to learn how to
report potentially infringing content.
7.3 You acknowledge and agree that we own or
license the Services. You undertake not to modify, publish, transmit,
participate in the transfer or sale of, reproduce, create derivative works
based on, or otherwise exploit any of the Services, except as expressly
provided in this Section 7.
7.4 Subject to your compliance with these Terms
and the Policies, and your payment of any applicable fees, including purchase
prices of products, shipping costs, customs, taxes, processing fees (if
applicable) and other agreed fees associated with your purchase, we or our
content providers grant you a limited, non-exclusive, non-transferable,
non-sublicensable license to access and make personal and non-commercial use of
the Services for the sole purpose of using Shophype. All rights not expressly
granted to you in these Terms or any Policies are reserved and retained by us
or our licensors, suppliers, publishers, rightsholders, or other content
providers. The licenses granted by us terminate if you do not comply with these
Terms or any Policies.
7.5 You may not make any commercial use of any of
the information provided on the Services or make any use of the Services for
the benefit of another business unless explicitly permitted by us in advance.
You may not solicit, advertise for, or contact in any form users for
employment, contracting or any other purpose not related to the Services
facilitated through Shophype. If you violate this provision, we reserve the
right to refuse service, terminate accounts, and/or cancel purchase
transactions and refund relevant payment in our discretion.
8. Responsibilities;
Third Party Risks
8.1 You acknowledge and agree that any Content
publicly posted or privately transmitted through the Services is the sole
responsibility of the person that posted or transmitted such Content. You
access and use the Content, and interact with other users, at your own risk. We
are not responsible for any errors, mistakes, omissions, inaccuracies in the
Content. We do not control the Content and have no duty to take any action
regarding how you may interpret, use or react to the Content. We have no
obligation to review or monitor, and do not approve, endorse, or make any
representations or warranties with respect to Content. You also understand that
we cannot guarantee the identities of the users with whom you interact while
using the Services and are not responsible for which users gain access to the
Services.
8.2 You are responsible for all Content you
contribute, in any manner, to the Services, and you represent and warrant you
have all rights to contribute such Content to the Services in such manner.
8.3 The Services may contain links or connections
to third-party websites or services that are not owned or controlled by us. We
have no control over, and assume no responsibility for, the content, accuracy,
privacy policies, or practices of or opinions expressed in any third-party
websites or services. In addition, we will not and cannot monitor, verify,
censor, or edit the content of any third-party websites or services. You
acknowledge and agree that we are not responsible for any risks resulting from
your access or use of any third-party websites or services. We encourage you to
be aware when you leave the Services and to read the terms of use and privacy
policy of each third-party website or service that you visit or use.
8.4 Your interactions with other users, other
entities or individuals as a result of your use of the Services, including
communications, payments, performances and deliveries, are solely between you
and such third parties; provided, however, that we reserve the right, but has
no obligation, to intercede in such interactions. You should make whatever
investigation and/or seek whatever professional advice as you feel necessary or
appropriate before proceeding with any interaction with any of these third parties.
You acknowledge and agree that we are not responsible for any loss or damage
incurred as the result of such interactions. You agree that we will not be
responsible for any liability incurred as the result of such interactions.
8.5 It is a material breach of these Terms to
arrange for the sale of listed items from, or the payment of fees to third
parties outside the context of Shophype for the purposes of circumventing the
obligation to pay the fee for products purchased through the Services.
9. Release
9.1 We expressly disclaim any
liability that may arise between users of Shophype. If there is a dispute
between you and another user or any third party on Shophype, we are under no
obligation to become involved.
To the fullest extent permitted under applicable law, you release us, our
parents, subsidiaries, affiliates, directors, officers, employees, agents and
successors from all claims, demands, and damages of every kind or nature, known
or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of
or in any way related to such disputes.
IN ENTERING INTO THIS RELEASE, YOU EXPRESSLY
WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD LIMIT THE
COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR
SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
10. Purchases
10.1 You are responsible for
reading the full product listing before purchasing a product. By confirming
your purchase, you agree to pay all applicable fees including purchase prices
of products, shipping costs,
customs, taxes, processing fees (if applicable) and other agreed fees
associated with your purchase. Further, to the extent applicable, you
acknowledge your responsibility for sales tax, VAT and customs duties. When you
place an order and the order is being shipped to you, the title for product
pass to you upon delivery of the product to the carrier. You agree that, where
applicable, you will act as the importer of the products purchased and you
hereby authorize us to appoint a freight forwarding agent to act as your direct
representative and pay any sales tax, VAT and customs duties on your behalf.
Please note that sales tax, VAT, customs duties, and similar charges collected
at the time of purchase are estimated values and may be subject to change
depending on applicable laws. If additional amounts are assessed, you are
responsible for them. We will not be liable if a product is delayed or denied
customs clearance as a result of your failure to pay such amounts.
10.2 While we strive to provide accurate
information on Shophype, typographical errors, inaccuracies, or omissions that
relate to pricing, product descriptions, availability, and offers may occur.
Subject to applicable law, we reserve the right to correct any errors,
inaccuracies, or omissions and to change or modify information or cancel orders
or parts of orders if any information on Shophype is inaccurate at any time
without prior notice, including after your order has been submitted or your
receipt of an order confirmation or shipping notice. If comparing prices is
important to your purchase decision, you should do your own comparison before
making a purchase.
10.3 Please check all descriptions and
restrictions regarding the product you are interested in thoroughly before you
place your order. If you have any special circumstance (e.g., a medical or
health condition and/or special need) that may affect or be affected by the
product you wish to purchase, it is your sole responsibility to inform us
before you place your order.
10.4 We make reasonable efforts to ensure the
color display of the products on Shophype is as accurate as possible. However,
we cannot guarantee that your monitor’s display of any color will be an
accurate depiction of the color of the product you selected to purchase.
10.5 You acknowledge that the products are in
conformity with the transaction or intended purchase if they: (i) comply with
the description provided on Shophype and possess the qualities presented on Shophype,
at the time of purchase; (ii) are fit for the purposes for which goods of such
kind are normally used; and (iii) are of the quality and performance which are
normal in goods of the same type and which can reasonably be expected.
10.6 In order to make purchases, you must provide
accurate and complete information for a valid payment method, such as a credit
card, that you are authorized to use. You must promptly update your account
with any changes related to your payment method. BY PROVIDING INFORMATION FOR A
PAYMENT METHOD, YOU AUTHORIZE US OR OUR AGENTS OR PAYMENT SERVICE PROCESSORS TO
CHARGE THE PAYMENT METHOD FOR: (1) AMOUNTS DUE FOR PURCHASED PRODUCTS; AND (2)
ANY AND ALL APPLICABLE CUSTOMS, TAXES, AGREED FEES AND SHIPPING COSTS. YOUR
PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN APPLICABLE
POLICIES. We may decline, freeze or hold your transaction for any reason,
including for suspected fraud, anti-money laundering and sanctions compliance,
or if we believe your transaction poses a risk to us or any third party.
10.7 Payment Processors may charge you fees for
your purchases made through Shophype. Such processing fees will be disclosed to
you via Shophype. Your use of the Services and the payment processing provided
by the Payment Processor is subject to your agreement with the Payment
Processor, as may be modified from time to time. As a condition of using the
payment services, you must provide accurate and complete information, and you
authorize us to share this information with the Payment Processor.
10.8 Your payment obligations are fully fulfilled
once your payment of the agreed price is received.
10.9 In partnership with Payment Processors, funds
acquired from you for the relevant transactions will be handled through our
local entity WHALECO AUSTRALIA PTY LTD, located at UNIT 60 2 O'CONNELL ST,
PARRAMATTA NSW 2150.
customer services 11. Refunds, Exchanges and Related Matters
11.1 We assist you with support
involving payment, return, refund and other areas in connection with your
purchase of products.
11.2 We want you to be satisfied with your
purchases through the Services. For all the products purchased on Shophype, you
may be entitled to a return and refund. For details of return and refund,
please visit our Return and Refund
Policy. Please follow the
instructions in the policy If you want to request a refund. You acknowledge and
agree that we may issue a refund to you in accordance with the Return and Refund
Policy.
Unless otherwise
described in the Return and Refund
Policy, the refund will not
cover customs, taxes, or any return shipping costs you may incur in the refund
process.
12. Rewards
12.1 You may receive credits, coupons, cash, gifts
or other kinds of reward by use of the Services (collectively, “Rewards”). Some
rewards may only be used for discounts on or payment for eligible purchases on
or through the Services (but note that not all products may be eligible) and
cannot be redeemed for cash, except in jurisdictions where required by law. You
should read carefully the information and applicable rules regarding different
kinds of rewards.
13. Ending Our
Relationship
13.1 You are free to stop using
the Services at any time. We are also free to terminate or suspend your use of
the Services or your Account, for any reason in our discretion, including your
breach of these Terms . Even after your use of the Services is
terminated or suspended, these Terms will remain enforceable against you and
any unpaid amount you owe to us will remain due.
13.2 If your Account is terminated for any reason,
all Content and non-cash Rewards associated with your Account will be destroyed
and cancelled. You should try to use any remaining non-cash Rewards before the
date on which such termination becomes effective. Any cash rewards you are
entitled to receive will be paid out to your account within thirty (30) days
after termination becomes effective.
13.3 All provisions of the Terms which by their
nature should survive, shall survive termination of these Terms, including
without limitation, ownership provisions, warranty disclaimers, and limitations
of liability. All accrued rights or remedies of a party are not affected on
termination of these Terms.
14. WARRANTY DISCLAIMER
14.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW WE EXPRESSLY DISCLAIM ALL REPRESENTATIONS OR WARRANTIES OF ANY KIND,
EXPRESS OR IMPLIED, RELATING TO THE SERVICES, ANY CONTENT OR ANY PRODUCT
OFFERED OR PURCHASED ON OR THROUGH THE SERVICES, INCLUDING WITHOUT LIMITATION
ANY WARRANTIES OF PRODUCTS’ CONDITION, QUALITY, DURABILITY, PERFORMANCE,
ACCURACY, RELIABILITY, MERCHANTABILITY. FITNESS FOR A PARTICULAR PURPOSE OR
NON-INFRINGEMENT, OR ANY WARRANTIES OF THE CONTENT’S ACCURACY, CORRECTNESS,
COMPLETENESS, OR LEGALITY. ALL SUCH WARRANTIES, REPRESENTATIONS, CONDITIONS,
AND UNDERTAKINGS ARE HEREBY EXPRESSLY EXCLUDED. NO COMMUNICATION OR
INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OR THROUGH THE SERVICES
SHALL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN. IN ADDITION, WE MAKE NO
REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF
PRODUCTS OFFERED OR PURCHASED ON OR THROUGH THE SERVICES. THIS SECTION 14 DOES
NOT AFFECT IN ANY WAY OUR RETURN AND REFUND
POLICY FOR PRODUCTS
PURCHASED ON THE SERVICES.
14.2 YOUR USE OF THE SERVICES AND YOUR USE OF ANY
PRODUCT OFFERED AND PURCHASED ON OR THROUGH THE SERVICES ARE AT YOUR OWN RISK.
TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, UNLESS EXPRESSLY PROVIDED
OTHERWISE, THE SERVICES, PRODUCTS OFFERED AND PURCHASED ON OR THROUGH THE
SERVICES, AND THE CONTENT ARE MADE AVAILABLE TO YOU ON AN "AS-IS" AND
"AS-AVAILABLE" BASIS, WITH ALL FAULTS AND WITHOUT WARRANTIES OF ANY
KIND.
14.3 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, YOU ACKNOWLEDGE AND AGREE THAT THE SHOPHYPE PARTIES (AS DEFINED IN SECTION
16.1) ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD THE SHOPHYPE PARTIES
LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL
SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH
YOU. WE MAKE NO PROMISES WITH RESPECT TO, AND EXPRESSLY DISCLAIM ALL LIABILITY
FOR: (1) PRODUCTS, SERVICES, INFORMATION, PROGRAMMING, AND/OR ANYTHING ELSE
PROVIDED BY A THIRD PARTY THAT IS ACCESSIBLE TO YOU ON OR THROUGH THE SERVICES;
OR (2) THE QUALITY OR CONDUCT OF ANY THIRD PARTY YOU ENCOUNTER IN CONNECTION
WITH YOUR USE OF THE SERVICES.
14.4 YOU ACKNOWLEDGE AND AGREE THAT, TO THE
FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR
YOUR USE OF THE SERVICES, INCLUDING YOUR INTERACTIONS WITH OTHER USERS OF THE
SERVICES, AND THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE
SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY
UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY
APPLICABLE LAW, WE ARE NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY
OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE
SERVICES.
14.5 IF YOU RELY ON ANY DATA OR INFORMATION
OBTAINED ON OR THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY
RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR
INFORMATION.
15. LIMITATION OF
LIABILITY
15.1 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT
LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL SHOPHYPE
PARTIES BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (1) ANY INDIRECT,
INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY OR PUNITIVE DAMAGES OF ANY KIND,
INCLUDING DAMAGES FOR LOSS OF DATA, PROFITS, REVENUE OR GOODWILL, REPUTATIONAL
HARM, BUSINESS INTERRUPTION, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR
MALFUNCTION ARISING OUT OF OR IN CONNECTION WITH THE SERVICES OR (2) YOUR USE
OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY INABILITY TO ACCESS OR USE
THE SERVICES OR THE PURCHASE AND USE OF PRODUCTS OFFERED ON OR THROUGH THE
SERVICES, EVEN IF WE OR ANY OTHER PERSON HAS FORESEEN OR BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES. THE FOREGOING LIMITATION OF LIABILITY SHALL NOT
APPLY TO LIABILITY OF A SHOPHYPE PARTY FOR (A) DEATH OR PERSONAL INJURY CAUSED
BY OUR GROSS NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY OUR FRAUD OR
FRAUDULENT MISREPRESENTATION.
15.2 THIS DISCLAIMER APPLIES, WITHOUT LIMITATION,
TO THE MAXIMUM EXTENT PERMITTED UNDER LAW, TO ANY DAMAGES OR PERSONAL INJURY
ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION,
DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, FILE
CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, ANY THEFT,
DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD
OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
15.3 YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT
WE SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT BY ANY
USER OF THE SERVICES.
15.4 TO THE FULLEST EXTENT PERMITTED BY APPLICABLE
LAW, UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT FOR WHICH THE SHOPHYPE
PARTIES ARE LIABLE TO YOU EXCEED THE GREATER OF: (1) THE TOTAL AMOUNT PAID TO
US BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE
GIVING RISE TO SUCH LIABILITY; (2) $100.00; OR (3) THE REMEDY OR PENALTY
IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON
LIABILITY SHALL NOT APPLY TO LIABILITY OF A SHOPHYPE PARTY FOR (A) DEATH OR
PERSONAL INJURY CAUSED BY OUR GROSS NEGLIGENCE; OR FOR (B) ANY INJURY CAUSED BY
OUR FRAUD OR FRAUDULENT MISREPRESENTATION. THE PRECEDING SENTENCE SHALL NOT
PRECLUDE THE REQUIREMENT FOR YOU TO PROVE ACTUAL DAMAGES.
15.5 CERTAIN JURISDICTIONS DO NOT ALLOW THE
EXCLUSION OR LIMITATION OF CERTAIN DAMAGES OR IMPLIED WARRANTIES. IF THESE
LAWS, INLCUDING THE COMPETITION AND CONSUMER ACT 2010 (CTH), APPLY TO YOU, SOME
OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU
MIGHT HAVE ADDITIONAL RIGHTS.
15.6
IF THE COMPETITION AND
CONSUMER ACT 2010 (CTH) OR ANY OTHER LEGISLATION PROVIDES THAT THERE IS A
GUARANTEE IN RELATION TO ANY GOOD OR SERVICE SUPPLIED BY US IN CONNECTION WITH
THESE TERMS AND OUR LIABILITY FOR FAILING TO COMPLY WITH THAT GUARANTEE CANNOT
BE EXCLUDED BUT MAY BE LIMITED, THEN SECTION 15 DOES NOT APPLY TO THAT
LIABILITY AND INSTEAD OUR LIABILITY FOR SUCH FAILURE IS LIMITED TO (AT OUR
ELECTION):
15.6.1 IN THE CASE OF A SUPPLY OF GOODS, US
REPLACING THE GOODS OR SUPPLYING EQUIVALENT GOODS, REPAIRING THE GOODS, PAYING
THE COST OF REPLACING THE GOODS OR OF ACQUIRING EQUIVALENT GOODS, OR PAYING THE
COST OF HAVING THE GOODS REPAIRED; OR
15.6.2
IN THE CASE OF A
SUPPLY OF SERVICES, US SUPPLYING THE SERVICES AGAIN OR PAYING THE COST OF
HAVING THE SERVICES SUPPLIED AGAIN.
15.7 THE LIMITATIONS OF DAMAGES SET FORTH ABOVE
ARE ESSENTIAL TO THE AGREEMENT BETWEEN YOU AND US.
16. Indemnity
16.1 To the fullest extent permitted by applicable
law, you agree to indemnify and hold us, our parents, subsidiaries, affiliates,
directors, officers, agents and employees (each, a “Shophype Party” and
collectively, the “Shophype Parties”) harmless from and against any and all
claims, liabilities, damages, losses, and expenses (including reasonable
attorneys' fees ) arising from or in connection with any third-party claims
relating to: (1) your violation of these Terms; (2) your violation of any
rights of another party, including without limitation any copyright, property,
or privacy right or any third-party agreement; or (3) your violation of any
applicable laws, rules, or regulations. In the event of such a claim, suit, or
action ("Claim"), we will attempt to provide notice of the Claim to
the contact information we have for your Account (provided that failure to
deliver such notice shall not eliminate or reduce your indemnification
obligations under these Terms).
16.2 We reserve the right, at our own cost, to
assume the exclusive defense and control of any matter otherwise subject to
indemnification by you, in which case you will fully cooperate with us in
asserting any available defenses.
16.3 You agree that the provisions in this section
will survive any termination of your Account, the Terms and/or your access to
the Services.
17. App Stores
17.1 Application License. Subject to your compliance with the Terms, we
grant you a limited non-exclusive, non-transferable, non-sublicensable,
revocable license to download, install and use a copy of the Shophype mobile
application (“Application”) on a device or computer that you own or control
solely for your personal or non-commercial use. Furthermore, with respect to
any Application accessed through or downloaded from the Apple App Store (an
“App Store Sourced Application”), you will only use the App Store Sourced
Application (1) on an Apple-branded product that runs the iOS (Apple’s
proprietary operating system) and (2) as permitted by the “Usage Rules” set
forth in the Apple App Store Terms of Service. Notwithstanding the first
sentence in this section, with respect to any App Store Sourced Application or
any Application accessed through or downloaded from the Google Play store (a
“Google Play Sourced Application”), you may have additional rights with respect
to access to and use of the Application applicable to volume purchasing or via
Family Sharing on Apple-branded Products or a shared basis within your
designated family group subject to the applicable Apple or Google terms and
your associated settings.
17.2 App Stores. You acknowledge and agree that the availability of the
Application and the Services is dependent on the third party from whom you
received the Application license, e.g., the Apple App Store or Google Play
(each, an “App Store”). You acknowledge that the Terms are between you and us
and not with the App Store. We, not the App Store, are solely responsible for
the Services, including the Application, the content thereof, maintenance,
support services, and warranty therefor, and addressing any claims relating
thereto (e.g., product liability, legal compliance or intellectual property
infringement). In order to use the Application, you must have access to a
wireless network, and you agree to pay all fees associated with such access.
You also agree to pay all fees (if any) charged by the App Store in connection
with the Services, including the Application. You agree to comply with, and
your license to use the Application is conditioned upon your compliance with
all terms of agreement imposed by the applicable App Store when using any
Service, including the Application. You acknowledge that the App Store (and its
subsidiaries) are third-party beneficiaries of the Terms and will have the
right to enforce it.
17.3 Accessing and Downloading the Application from
the Apple App Store. The following applies
to any App Store Sourced Application accessed through or downloaded from the
Apple App Store:
17.3.1 You acknowledge and agree that (i) the Terms
are concluded between you and us only, and not Apple, and (ii) we, not Apple,
are solely responsible for the App Store Sourced Application and content
thereof. Your use of the App Store Sourced Application must comply with the App
Store Terms of Service.
17.3.2 You acknowledge that Apple has no obligation
whatsoever to furnish any maintenance and support services with respect to the
App Store Sourced Application.
17.3.3 In the event of any failure of the App Store
Sourced Application to conform to any applicable warranty, you may notify
Apple, and Apple will refund the purchase price for the App Store Sourced
Application to you and to the maximum extent permitted by applicable law, Apple
will have no other warranty obligation whatsoever with respect to the App Store
Sourced Application. As between Apple and us, any other claims, losses,
liabilities, damages, costs or expenses attributable to any failure to conform
to any warranty will be our sole responsibility.
17.3.4 You and we acknowledge that, as between Apple
and us, Apple is not responsible for addressing any claims you have or any
claims of any third party relating to the App Store Sourced Application or your
possession and use of the App Store Sourced Application, including, but not
limited to: (i) product liability claims; (ii) any claim that the App Store
Sourced Application fails to conform to any applicable legal or regulatory
requirement; and (iii) claims arising under consumer protection, privacy, or similar
legislation.
17.3.5 You and we acknowledge that, in the event of
any third-party claim that the App Store Sourced Application or your possession
and use of that App Store Sourced Application infringes that third party’s
intellectual property rights, as between Apple and us, we, not Apple, will be
solely responsible for the investigation, defense, settlement and discharge of
any such intellectual property infringement claim to the extent required by the
Terms.
17.3.6 You and we acknowledge and agree that Apple,
and Apple’s subsidiaries, are third-party beneficiaries of the Terms as related
to your license of the App Store Sourced Application, and that, upon your
acceptance of the terms and conditions of the Terms, Apple will have the right
(and will be deemed to have accepted the right) to enforce the Terms as related
to your license of the App Store Sourced Application against you as a
third-party beneficiary thereof.
17.3.7 Without limiting any other terms of the
Terms, you must comply with all applicable third-party terms of agreement when
using the App Store Sourced Application.
18. General
18.1
Assignment. You may not assign,
delegate, or transfer these Terms, or your rights and obligations hereunder, to
any other person in any way (by operation of law or otherwise) without our
prior written consent, and any attempted assignment, subcontract, delegation, or
transfer in violation of the foregoing will be null and void. We may transfer,
assign, or delegate these Terms and our rights and obligations hereunder to any
other person without your consent, provided that we give you reasonable prior
notice of any such transfer, assignment or delegation.
18.2
Force Majeure. We shall not be
liable for any delay or failure to perform resulting from causes outside our
reasonable control, including, but not limited to, acts of God, war, terrorism,
riots, embargos, acts of civil or military authorities, fire, floods,
accidents, pandemics, strikes, or shortages of transportation facilities, fuel,
energy, labor, or materials.
18.3
Choice of Law. These Terms and any
dispute of any sort that might arise between you and us hereunder will be
governed by the laws of the State of New York and applicable federal laws of
the United States of America, consistent with the Federal Arbitration Act,
without regard to any principle of conflict-of-laws. The United Nations
Convention on Contracts for the International Sale of Goods does not apply to
these Terms.
18.4
Exclusive Venue. Any dispute of any
sort between you and us that arises out of or in connection with the Services
and is not subject to arbitration or eligible for small claims action, shall be
decided exclusively by a court of competent jurisdiction located in Singapore.
18.5
Notice. You acknowledge and
agree that we may give notice to you through email using the latest email
address you provided to us, which constitutes effective notice. Therefore, you
are responsible for keeping your email address information with us up to date.
You may give notice to us by emailing us at legal@Shophype.com.
18.6
Export Control. You undertake to use
the Services and products purchased on or through the Services in compliance
with all applicable U.S. or other export and re-export restrictions of relevant
jurisdictions. In particular, you acknowledge and agree that the Services, including
any products purchased on or through the Services, may not be exported or
re-exported (1) into any embargoed countries by your country of residence or
other relevant countries, or (2) to anyone on the U.S. Treasury Department's list
of Specially Designated Nationals or the U.S. Department of Commerce's Denied
Person's List or Entity List. You represent and warrant that (1) you are not
located in a country that is subject to a U.S. Government embargo, or that has
been designated by the U.S. Government as a "terrorist supporting"
country and (2) you are not listed on any U.S. Government list of prohibited or
restricted parties. You also will not use the Services nor the products
purchased on the Services for any purpose prohibited by any applicable law.
18.7
Waiver. Our failure to
respond to a breach by you or others does not waive our right to act with
respect to subsequent or similar breaches.
18.8
Severability. Except as provided in
Section 19.9, if any provision of these Terms is found to be unenforceable or
invalid, that provision will be limited or eliminated, to the minimum extent
necessary, so that these Terms shall otherwise remain in full force and effect
and enforceable.
18.9
Third-Party Beneficiaries.
There are no third-party beneficiaries intended under these Terms, except for
those included in Section 17 of These Terms.
18.10
Entire Agreement. These Terms are the
final, complete and exclusive agreement of the parties with respect to the
subject matter hereof and supersede and merge all prior discussions between the
parties with respect to such subject matter.
19. ARBITRATION
AGREEMENT
PLEASE
READ THIS SECTION 19 ("ARBITRATION AGREEMENT") CAREFULLY. PLEASE BE
AWARE THAT THIS SECTION CONTAINS PROVISIONS GOVERNING HOW DISPUTES BETWEEN YOU
AND US WILL BE RESOLVED. AMONG OTHER THINGS, THIS SECTION 19 INCLUDES AN
AGREEMENT TO ARBITRATE, WHICH REQUIRES, WITH LIMITED EXCEPTIONS, THAT ALL
DISPUTES BETWEEN YOU AND US BE RESOLVED BY BINDING AND FINAL ARBITRATION. IN
SOME COUNTRIES YOU MAY HAVE ADDITIONAL RIGHTS AND/OR ELEMENTS OF THIS
ARBITRATION AGREEMENT MAY NOT APPLY TO YOU AS REQUIRED BY LAW.
19.1
Applicability of Arbitration Agreement. Subject to the terms of this Arbitration Agreement, you and we
agree that any dispute, claim, or disagreement arising out of or relating in
any way to your access to or use of the Services, any communications you
receive, any products sold or distributed through the Services, or the Terms,
including claims and disputes that arose between us before the effective date
of the Terms (each, a “Dispute”) will be resolved by binding arbitration, using
the English language, rather than in court, except that: (1) you and we may
assert claims or seek relief in small claims court if such claims qualify and
remain in small claims court; (2) you or we may seek equitable relief in court
for infringement or other misuse of intellectual property rights (such as
trademarks, trade dress, domain names, trade secrets, copyrights, and patents);
and (3) you or we may seek urgent interlocutory relief. For purposes of this
Arbitration Agreement, “Dispute” will also include disputes that arose or
involve facts occurring before the existence of this or any prior versions of
the Terms as well as claims that may arise after the termination of the Terms.
19.2
Informal Dispute Resolution. There may be instances when a Dispute arises between you and us.
If that occurs, we are committed to working with you to reach a reasonable
resolution. You and we agree that good faith informal efforts to resolve
Disputes can result in a prompt, low-cost and mutually beneficial outcome. You
and we therefore agree that before either party commences arbitration against
the other (or initiates an action in small claims court if a party so elects),
we will personally meet and confer telephonically or via videoconference, in a
good faith effort to resolve informally any Dispute covered by this Arbitration
Agreement (“Informal Dispute Resolution Conference”). If you are represented by
counsel, your counsel may participate in the conference, but you also agree to
participate in the conference. The party initiating a Dispute must give notice
to the other party in writing of its intent to initiate an Informal Dispute
Resolution Conference (“Notice”), which shall occur within forty-five (45) days
after the other party receives such Notice, unless an extension is mutually
agreed upon by the parties in writing. Notice to us that you intend to initiate
an Informal Dispute Resolution Conference should be sent by email to the
applicable address set forth in Section 18.5. The Notice must include: (1) your
name, telephone number, mailing address, email address associated with your
Account (if you have one); (2) the name, telephone number, mailing address and
email address of your counsel, if any; and (3) a description of your Dispute.
The Informal Dispute Resolution Conference
shall be individualized such that a separate conference must be held each time
either party initiates a Dispute, even if the same law firm or group of law
firms represents multiple users in similar cases, unless all parties agree;
multiple individuals initiating a Dispute cannot participate in the same
Informal Dispute Resolution Conference unless all parties agree. In the time
between a party receiving the Notice and the Informal Dispute Resolution
Conference, nothing in this Arbitration Agreement shall prohibit the parties
from engaging in informal communications to resolve the initiating party’s
Dispute. Engaging in the Informal Dispute Resolution Conference is a condition
precedent and requirement that must be fulfilled before commencing arbitration.
The statute of limitations and any filing fee deadlines shall be tolled while
the parties engage in the Informal Dispute Resolution Conference process
required by this section.
19.3
Rules and Forum. The Terms evidence a
transaction involving interstate commerce; and notwithstanding any other
provision herein with respect to the applicable substantive law, the Federal
Arbitration Act, 9 U.S.C. § 1 et seq., will govern the interpretation and
enforcement of this Arbitration Agreement and any arbitration proceedings. If
the informal dispute resolution process described above does not resolve
satisfactorily within sixty (60) days after receipt of Notice, you and we agree
that either party shall have the right to finally resolve the Dispute through
binding arbitration. The arbitration will be conducted by American Arbitration
Association (“AAA”), an established alternative dispute resolution provider,
under its rules, including Consumer Arbitration Rules (“AAA Rules”), then in
effect, unless otherwise required by law. The AAA Rules are also available at
https://adr.org/consumer. For all actions under the AAA Rules, the proceedings
may be filed where your residence is, or in New York, New York, and any
in-person hearings will be conducted at a location which is reasonably
convenient to both parties taking into account their ability to travel and
other pertinent circumstances. If AAA is not available to arbitrate, the
parties will select an alternative arbitral forum. Your responsibility to pay
any AAA fees and costs will be solely as set forth in the applicable AAA Rules.
If the Parties are not able to resolve the
Dispute through the mandatory informal dispute resolution process referenced
above, either party may initiate an arbitration proceeding by sending a demand
to the other party that describes the nature and basis for the claim and
includes all of the information required in the arbitration notice
(“Arbitration Notice”). The Party initiating arbitration must include as part
of the demand a personally signed certification of compliance with the informal
dispute resolution process. The Arbitration Notice must include: (1) the name,
telephone number, mailing address, email address of the party seeking
arbitration and the account username (if applicable) as well as the email
address associated with any applicable account; (2) a statement of the legal
claims being asserted and the factual bases of those claims; (3) a description
of the remedy sought and an accurate, good-faith calculation of the amount in
controversy in United States Dollars; (4) a statement certifying completion of
the informal dispute resolution process as described above; and (5) evidence
that the requesting party has paid any necessary filing fees in connection with
such arbitration. If the party requesting arbitration is represented by
counsel, the Arbitration Notice shall also include counsel’s name, telephone
number, mailing address, and email address. Such counsel must also sign the
Arbitration Notice. By signing the Arbitration Notice, counsel certifies to the
best of counsel’s knowledge, information, and belief, formed after an inquiry
reasonable under the circumstances, that: (1) the Arbitration Notice is not
being presented for any improper purpose, such as to harass, cause unnecessary
delay, or needlessly increase the cost of dispute resolution; (2) the claims,
defenses and other legal contentions are warranted by existing law or by a
nonfrivolous argument for extending, modifying, or reversing existing law or
for establishing new law; and (3) the factual and damages contentions have
evidentiary support or, if specifically so identified, will likely have
evidentiary support after a reasonable opportunity for further investigation or
discovery. Unless you and we otherwise agree, or the Batch Arbitration process
discussed in Section 19.7 is triggered, the arbitration will be conducted in
the county where you reside. Subject to the applicable AAA Rules, the
arbitrator may direct a limited and reasonable exchange of information between
the parties, consistent with the expedited nature of the arbitration. If the
AAA is not available to arbitrate, the parties will select an alternative
arbitral forum. Your responsibility to pay any AAA fees and costs will be
solely as set forth in the applicable AAA Rules. You and we agree that all
materials and documents exchanged during the arbitration proceedings shall be
kept confidential and shall not be shared with anyone except the parties’
attorneys, accountants, or business advisors, and then subject to the condition
that they agree to keep all materials and documents exchanged during the
arbitration proceedings confidential. During the arbitration, the amount of any
settlement offer made by you or us must not be disclosed to the arbitrator
until after the arbitrator makes a final decision and award, if any.
19.4
Arbitrator. The arbitrator will
be either a retired judge or an attorney licensed to practice law in the State
of New York, and will be selected by the parties from the AAA roster of
consumer dispute arbitrators. If the parties are unable to agree upon an
arbitrator within thirty-five (35) days of delivery of the Arbitration Notice,
then AAA will appoint the arbitrator in accordance with the applicable AAA
Rules, provided that if the Batch Arbitration process under Section 19.7 is
triggered, AAA will appoint the arbitrator for each batch.
19.5
Authority of Arbitrator.
The arbitrator shall have exclusive authority to resolve any Dispute,
including, without limitation, disputes arising out of or related to the
interpretation or application of the Arbitration Agreement, including the
enforceability, revocability, scope, or validity of the Arbitration Agreement
or any portion of the Arbitration Agreement, except for the following: (1)
except as expressly contemplated in Section 19.7, all Disputes about the
payment of arbitration fees shall be decided only by a court of competent
jurisdiction and not by an arbitrator; (2) all Disputes about whether either
party has satisfied any condition precedent to arbitration shall be decided
only by a court of competent jurisdiction and not by an arbitrator; and (3) all
Disputes about which version of the Arbitration Agreement applies shall be
decided only by a court of competent jurisdiction and not by an arbitrator. The
arbitration proceeding will not be consolidated with any other matters or
joined with any other cases or parties, except as expressly provided in Section
19.7. The arbitrator shall have the authority to grant motions dispositive of
all or part of any Dispute. The arbitrator shall issue a written award and
statement of decision describing the essential findings and conclusions on
which the award is based, including the calculation of any damages awarded. The
award of the arbitrator is final and binding upon you and us. Judgment on the
arbitration award may be entered in any court having jurisdiction.
19.6
Attorneys’ Fees and Costs.
The parties shall bear their own attorneys’ fees and costs in arbitration
unless the arbitrator finds that either the substance of the Dispute or the
relief sought in the Arbitration Notice was frivolous or was brought for an
improper purpose (as measured by the standards set forth in Federal Rule of
Civil Procedure 11(b)). If you or we need to invoke the authority of a court of
competent jurisdiction to compel arbitration, then the party that obtains an
order compelling arbitration in such action shall have the right to collect
from the other party its reasonable costs, necessary disbursements, and
reasonable attorneys' fees incurred in securing an order compelling
arbitration. The prevailing party in any court action relating to whether
either party has satisfied any condition precedent to arbitration, including
the informal dispute resolution process, is entitled to recover their
reasonable costs, necessary disbursements, and reasonable attorneys’ fees and
costs.
19.7
Batch Arbitration. To increase the
efficiency of administration and resolution of arbitrations, you and we agree
that in the event that there are twenty-five (25) or more individual
Arbitration Notices of a substantially similar nature filed against us by or
with the assistance of the same law firm, group of law firms, or organizations,
within a thirty (30) day period, AAA shall (1) administer the arbitration
demands in batches of 100 Arbitration Notices per batch (plus, to the extent
there are less than 100 Arbitration Notices left over after the batching
described above, a final batch consisting of the remaining Arbitration
Notices), or in a single batch if there are fewer than 100 Arbitration Notices
in total; (2) appoint one arbitrator for each batch; (3) administer the batches
concurrently; (4) provide for the resolution of each batch as a single
consolidated arbitration with one set of filing and administrative fees due per
side per batch, one procedural calendar, one hearing (if any) in a place to be
determined by the arbitrator, and one final award (“Batch Arbitration”).
Arbitration awards in one batch of arbitration demands shall have no
precedential effect on subsequently administered batches.
All parties agree that Arbitration Notices are
of a “substantially similar nature” if they arise out of or relate to the same
event or factual scenario and raise the same or similar legal issues and seek
the same or similar relief. To the extent the parties disagree on the
application of the Batch Arbitration process, the disagreeing party shall
advise AAA, and AAA shall appoint a sole standing arbitrator to determine the
applicability of the Batch Arbitration process (“Administrative Arbitrator”).
In an effort to expedite resolution of any such dispute by the Administrative
Arbitrator, the parties agree the Administrative Arbitrator may set forth such
procedures as are necessary to resolve any disputes promptly. The
Administrative Arbitrator’s fees shall be paid by us. You and we agree to
cooperate in good faith with AAA to implement the Batch Arbitration process
including the payment of single filing and administrative fees for batches of
Arbitration Notices, as well as any steps to minimize the time and costs of
arbitration, which may include: (1) the appointment of a discovery special
master to assist the arbitrator in the resolution of discovery disputes; and
(2) the adoption of an expedited calendar of the arbitration proceedings. This
Batch Arbitration provision shall in no way be interpreted as authorizing a
class, collective and/or mass arbitration or action of any kind, or arbitration
involving joint or consolidated claims under any circumstances, except as
expressly set forth in this provision.
19.8
30-Day Right to Opt Out.
You have the right to opt out of the provisions of this Arbitration Agreement
by sending written notice of your decision to opt out to the email address set
forth in Section 18.5, within thirty (30) days after first becoming subject to
this Arbitration Agreement. Your notice must include your name and address, the
email address you used to set up your Account (if you have one), and an
unequivocal statement that you want to opt out of this Arbitration Agreement.
If you opt out of this Arbitration Agreement, all other parts of these Terms
will continue to apply to you. Opting out of this Arbitration Agreement has no
effect on any other arbitration agreements that you may currently have, or may
enter in the future, with us.
19.9
Invalidity, Expiration.
Except as provided in Section 19.7, if any part or parts of this Arbitration
Agreement are found under the law to be invalid or unenforceable, then such
specific part or parts shall be of no force and effect and shall be severed and
the remainder of the Arbitration Agreement shall continue in full force and
effect. For the avoidance of doubt, this means that, if Section 19.7 is found
under the law to be invalid or unenforceable to any extent, then you agree that
the entire Arbitration Agreement shall be of no force and effect. You further
agree that any Dispute that you have with us as detailed in this Arbitration
Agreement must be initiated via arbitration within the applicable statute of
limitation for that claim or controversy, or it will be forever time barred.
Likewise, you agree that all applicable statutes of limitation will apply to
such arbitration in the same manner as those statutes of limitation would apply
in the applicable court of competent jurisdiction.
19.10
Modification. Notwithstanding any
provision in the Terms to the contrary, we agree that if we make any future
material change to this Arbitration Agreement, we will notify you. Unless you
reject the change within thirty (30) days of such change becoming effective by writing
to us at the email address set forth in Section 18.5, your continued use of the
Services, including the acceptance of products and services offered on or
through the Services, following the posting of changes to this Arbitration Agreement
constitutes your acceptance of any such changes. Changes to this Arbitration
Agreement do not provide you with a new opportunity to opt out of the
Arbitration Agreement if you have previously agreed to a version of the Terms
and did not validly opt out of arbitration. If you reject any change or update
to this Arbitration Agreement, and you were bound by an existing agreement to
arbitrate Disputes arising out of or relating in any way to your access to or
use of the Services, any communications you receive, any products sold or
distributed through the Services or the Terms, the provisions of this
Arbitration Agreement as of the date you first accepted the Terms (or accepted
any subsequent changes to the Terms) remain in full force and effect. We will
continue to honor any valid opt outs of the Arbitration Agreement that you made
to a prior version of the Terms.
