© 2022 Zaffori Ventures, LLC. All rights reserved.
Effective: September 21, 2021
The terms “Zaffori”, “we”, “our”, and “us” refer to Zaffori Ventures, LLC, a Texas limited liability company. The terms “you” and “your” refer to you, our designer/vendor/retailer/seller who applies for a license and/or is licensed to sell a selection of their goods through our Services, customer who purchases items marketed and/or sold through our Services, a visitor to our website, or other user of our Services.
EXCEPT AS OTHERWISE PROVIDED IN SECTION 15 BELOW, ALL OF YOUR CLAIMS AGAINST US MUST BE SUBMITTED TO BINDING ARBITRATION WITHOUT JOINDER OF OTHER CLAIMANTS AND YOU WAIVE YOUR RIGHT TO BRING OR PARTICIPATE IN ANY CLASS, GROUP OR REPRESENTATIVE ACTION OR PROCEEDING AGAINST US AND WAIVE THE RIGHT TO A TRIAL BY JURY.
2. Our Services
Who We Are: Zaffori provides an online retail platform/marketplace through our website and related software and applications and functionalities (“Platform”) on which designers/vendors/retailers/sellers of apparel and accessories can market and sell a selection of their luxury and designer goods and shoppers can view, review and purchase those goods from those sellers. Zaffori is not the designer, owner, manufacturer, or seller of these goods and we are not responsible for the quality or fitness of the goods. Users of our Platform may purchase the listed goods from those approved sellers through the use of our Services and by use of a third-party payment service to process payments for the goods purchased. We provide or facilitate the fulfillment services, including warehousing, packaging and shipping the orders using third-party delivery services chosen by the customers, and processing of returns and refunds.
Services Updates: Our Services will be subject to periodic updates, discontinuance and/or replacements that may become necessary for numerous reasons, including software updates, bug fixes, plug-ins, vulnerability fixes, to improve efficiency, to add new functionalities, to repair or change our website, Platform, fulfillment center, other infrastructure or equipment, and for commercial, compliance and legal reasons (“Updates”). The website, Platform and/or fulfillment center may be temporarily unavailable as a result of said Updates.
Services Modifications: We may modify, suspend, takedown, discontinue, or terminate our Services and information associated with our Services, in whole or in part, at any time with or without notice. We may interrupt the availability of the Services, in whole or in part, at any time, without notice, including for routine or non-routine maintenance, error correction, changes in third-party provider or to incorporate new provider’s requirements, or other changes. We undertake no obligation to furnish any maintenance and support services with respect to third-party services or equipment, your connectivity, device, application or other access to or use of our website, Platform or our other Services.
Services Availability – Void Where Prohibited: Our Services or products or certain components or features of our Services or products may not be available to, or permitted for, all persons or in all geographic locations. We may limit or not offer our Services to any person or geographic area, including where the export or use of our Services is restricted or prohibited by applicable laws. Any offer for any of our Services or products is void where prohibited. If you choose to access our Services from outside the United States, you do so on your own initiative and you are solely responsible for complying with applicable local laws.
3. Eligibility & Consent to Use our Services
Age Eligibility: Any person who desires to establish an account with us to list a selection of their luxury and designer goods for sale on our website must be at least twenty-one (21) years of age. Any person who desires to establish an account with us or to check out as a guest to purchase goods must be at least eighteen
(18) years of age at the time of establishing the account or purchasing any goods or otherwise using our Services. There are laws in certain jurisdictions that require that a person be of a certain age before he/she can be bound to any contract. We do not intend or desire to contract with you unless you are of the age set by applicable law for you to be bound by a contract with us. Children under 13 years of age are not permitted to use our Services. Minors (under 18 years of age, but not younger than 13 years of age) or persons who otherwise do not have the legal capacity to contract to use our Services may only use our Services through an account owned by their parent or legal guardian with said parent or legal guardian’s consent and direct supervision. Said parent or legal guardian is responsible for any and all activity on our Platform conducted by a minor or persons who otherwise do not have the legal capacity to contract.
General Restrictions and Suspended or Removed Persons: We reserve the right to disable, suspend, block, close or remove your account, block you from checking out as a guest, deny your use of your account, set transaction limits, or deny your other use of our Services at any time for any reason or no reason, including for your violation of these Terms, failing to pay for your purchases, abuse or misuse of our Services, fraud, or violation of law. Further, if you were previously suspended, denied or removed from our Services, you are not permitted to use our Services.
Trade Restrictions: If applicable law, regulation, governmental directive or order restricts or prohibits us from doing business with you, we will not knowingly permit you to use our Services and you are not permitted to use our Services. You are not permitted to access or use any of our Services if you are our competitor.
4. Establish a User Account & Profile
All Accounts: To use our Services, each designer/vendor/retailer/seller and each customer must establish a user account, username and password or some customers may check out as a guest. In order to establish your user account, username and password or check out as a guest, you must provide some personal information, including your full name, physical address (street, suite or apartment number, street name, city, state, country, and zip code), email address and/or phone number. In some instances, we may also ask for or you may disclose your date of birth to verify that you are of the required age to use our Services. You are allowed to create only one account. Except as otherwise provided for sellers in the Sellers Agreement, (a) you agree to not create an account for any other person, (b) your account is for your personal use, and (c) your account is not transferrable or assignable, without our prior written consent given by an officer of our company. You agree not to share your account, username or password with others and to not publish or otherwise disseminate your username and password. You represent and agree that the information you provide to us will at all times be your information and accurate. You are solely responsible for all activities and use of your account, username and password and for keeping your account, username and password confidential and protected from unauthorized disclosure and use. You agree to notify us immediately of any unauthorized use of your account or if your account, username or password has been compromised. We may disable, suspend or block your use of our Services and/or your account or close your account at any time for any reason or no reason, including for your violation of these Terms. If we disable, suspend, block or close your account or block you from checking out as a guest, you may be unable to or prevented from accessing our Services, your account details, or any files or other content that is stored with your account. In the event that a company, business entity, organization or association (“Entity”) is authorized to establish an account with us or otherwise use our Services, the term “you”, “your” or “individual” will mean the Entity and the individual representative or representatives of that Entity who is authorized by said Entity to establish an account with us and/or to otherwise use our Services on behalf of that Entity; and the term “personal use” with respect to that Entity shall mean the use of our Services by or on behalf of that Entity.
5. Sellers’ Sale of Goods
Designers, vendors, retailers and sellers who sell their goods on our Platform shall satisfy the requirements for doing so as set forth in their respective Sellers Agreement.
6. Customers Purchase of Goods
The following terms shall apply to all purchases made using our Platform:
Ordering: When placing orders on our Platform, please determine if we deliver to your location, the availability and pricing for the goods, that the product is safe for the intended user and use, the available payment methods, and the other terms and prices related to your order.
Jurisdictional Restrictions: As discussed above under “Services Availability – Void Where Prohibited” and “Trade Restrictions”, our Services may not be available at your location. In addition, we may not be able to sell or deliver goods to certain locations due to limitations in our Services or restrictions placed by third-party service providers, including third-party payment processors and delivery service providers. These restrictions may be based on several factors, including lack of infrastructure, safety and security, or legal prohibitions.
Pricing: The list prices of goods shown on our Platform will be established by the designer/vendor/retailer/seller. The prices may be adjusted from time to time based on several factors, including demand and supply and for discounts and promotions. Fees charged for delivery and other services are subject to change due to change by third-party service providers, change in applicable laws, and other reasons. Please check the prices and fees periodically to determine the current prices and fees. We cannot confirm the price of an item until you complete your order by completing the checkout process on our Platform, which includes designating your delivery address, billing address and payment method, selecting the shipping method or speed of delivery for said order and affirmatively agreeing to pay the list price for the items you are purchasing, the amount for your shipping selection and any applicable taxes and fees and other costs associated with said order. Despite our best efforts, a small number of the items may be mispriced. If we discover that the correct price of any product is higher than the price posted, we reserve the right to either contact you for instructions before shipping or cancel your order and notify you of such cancellation.
Shipping Charges: The shipping charges for your order will be shown at the time you checkout and will be based upon speed of delivery you choose, type of delivery chosen (such as air or ground transportation), delivery location you select, weight, nature of the product purchased, and other factors. You must pay all shipping charges, in addition to the list price for the product purchased. Deliveries to international locations will be subject to tariffs, custom duties, taxes and other charges. You must also pay all tariffs, customs duties, taxes, and other charges applicable in your jurisdiction, including GST, PST, HST. The limits for duty-free packages are established by your local customs authorities. Please check your local customs authorities for more information.
Currency: All prices, charges, fees, taxes and other items to be paid that are posted on our Platform are stated in United States Dollars, unless otherwise expressly stated. The third-party payment processor may try processing your payment in your local currency, subject to limitations and may have to charge your card in USD, in which event you may be subject to, and solely responsible for, any additional costs and fees assessed as a result of said currency conversion, including, but not limited to, any foreign transaction fees assessed by the issuer of your method of payment.
Delivery: You must correctly state your delivery address, select the mode of delivery and delivery service for your order at the time you place your order, which information will be used to process the delivery of your order. We do not have our own delivery vehicles and shipping infrastructure. To the extent that we provide delivery as part of our fulfillment arrangement with our sellers, we partner with third-party delivery service providers to deliver the items you purchase on our Platform. We will make reasonable efforts to deliver your items in accordance with your order, but we will not be responsible or liable for any delays or failure in such delivery. If your chosen delivery method is not readily available or is subject to interruptions, we reserve the right to effect delivery of any order in multiple shipments and to select the modes of transport and carriers. We may not be able to facilitate the delivery of your order as you instruct, if your chosen delivery address is geographically remote or otherwise difficult to make a delivery to. We will not be responsible or liable for any delay or failure to deliver due to any cause which is unavoidable or beyond our reasonable control. In such cases, we reserve the right, at our option, without penalty or any liability for breach, to terminate all or any part of any order or to reschedule delivery within a reasonable time. Deliveries outside the United States of America may be delayed for processing by customs and other regulatory bodies and for you to pay the tariffs, customs, duties and other charges and take other actions required for your shipment to be released to you and we are not responsible or liable for any delay or failure to deliver due to any such cause.
Payment Authorization: You must correctly provide your payment information to pay for your order at the time you place your order, which information will be used to process your payment. You authorize us to charge all sums for the orders that you make, including all applicable list prices, charges, fees, taxes and other specified amounts, to the payment method specified in your account or purchase. We may seek pre-authorization of your credit card account or other payment method prior to your purchase to verify that the payment method is valid, the purchase is within the available credit limit or authorized payment limit, and the payment method can be used for the purchase. We will not be responsible or liable for any delay or failure to deliver your order due to denial of credit or other refusal of your payment method or delay in verifying your method of payment. You authorize us to contact you and discuss with you, via phone, email, text message or other means, the status of your chosen method of payment and any denial, delay or claims.
Delinquent Accounts: We may disable, suspend or block your use of our Services and/or your account or close your account if any amount you owe is due but unpaid. In addition, we reserve the right to charge you and to seek and collect from you all amounts you owe, plus fees and charges that are incidental to any chargeback or collection of any such unpaid amount, including collection fees, attorney’s fees and costs.
Transaction Limits: We may impose transaction limits on some or all sellers or customers relating to the value of any single transaction or cumulative transactions by any seller or customer, if we suspect fraudulent, deceptive or illegal activity or for any transactions in violation of our Terms, our other policies or other applicable agreements.
Returns and Refunds: There are certain customary rules and restrictions relating to returns and refunds that we apply in connection with our Services. All of your purchases are subject to our Return & Refund Policy. We may amend our Return & Refund Policy from time to time and it will be posted on our website. A copy of the most current version of the Return & Refund Policy may be accessed at www.zaffori.com. Please read the Return & Refund Policy before placing an order on our Platform. The listing of certain goods in our eCatalog or elsewhere on our website may specify restrictions on returns and refunds on those goods. Please refer to the product listing, information on our Platform and our Return & Refund Policy at time of purchase and from time to time to see the most updated restrictions on returns and refunds.
Risk of Loss: You assume all risk of loss, damage, and liability for any product purchased from us while you have title, possession, custody or control of the product or from your use or permitted use of the product.
8. Ownership of Our Services and Permitted Use
Our Property Rights: All intellectual property rights and other rights, title and interests throughout the world, including copyrights, patents, trademarks, service marks, trade names, trade dress, trade secrets, moral rights, performance rights, publication rights, attribution rights, registration and renewal rights, authorship rights, goodwill, and economic rights (“Property Rights”) in and to our Platform, Services and infrastructure and each component of our Platform, Services, infrastructure, Updates, logos, content, materials, data, software, computer codes, source codes, object codes, user interfaces, visual interfaces, look and feel, interactive features, graphics, artwork, icons, other elements of our Services, content, compilations (including our selection, arrangement, coordination, aggregation and expression of our content and other content), products, techniques, tools, designs, structure, models, prototypes, texts, drawings, and processes, are owned by us or our respective licensors and reserved exclusively for us or our licensors.
Third-Party Rights: All intellectual property rights and other right, title and interest in and to third-party property, including software, trademarks, tradenames associated with our Platform and other Services are the property of their respective third-party owners. Reference to Capital One® Merchant Services and any third-party products and services are not meant to indicate any partnership, joint venture, or other relationships between us and those companies or any sponsorship of us or our Platform, fulfillment services or other Services by those companies.
No Joint Ownership: Except for the Limited End User License granted herein to you and any seller’s percentage to be transferred to seller pursuant to its Seller’s Agreement, no Property Rights or other right, title or interest shall accrue to you or to any user or users of our Services, by implication, estoppel, or otherwise
(a) in or to our Platform, Services or infrastructure or (b) from our use of any User Content or any other information, product listing information or images generated by any users of our Services. All goodwill and other value accruing from your use of our Services or from derivatives we create or from our use of User Content shall accrue only to us and shall be our property without any compensation payable to you for such value.
Our Restrictions to Limited End User License: The Limited End User License does not give you the license or right to, and you covenant and agree to not, do any of the following (except if and to the extent that the respective restriction is expressly prohibited by applicable law):
(a) use our Services if you are prohibited by law from doing so;
(b) solicit the performance of any illegal activity or use the Services for any purpose that is unlawful or prohibited by these Terms;
(c) forge or manipulate identifiers to disguise the origin of any User Content or any post, message, or transmittal you send or communicate through the Services;
(d) collect, harvest, data mine, post, sell, market, disseminate, distribute, reproduce, copy, broadcast, publish, download, or otherwise use other user’s account information or the personal information, personally identifiable information, or personal data of any other user or other person;
(e) reverse look-up or trace any information or account of other user(s) or visitor(s) to its source or exploit the Services in any way to determine or reveal any personally identifiable information or personal data of any other user or other person;
(f) solicit the performance of any illegal activity or violate the rights of others;
(g) post any content that violates or infringes the rights of others;
(h) tamper with or modify the content posted by others;
(i) disseminate, distribute, reproduce, copy, broadcast, publish, download, or otherwise use your account information for the benefit of any third party;
(j) sell, re-sell, assign, transfer, license, sublicense, or re-license the Limited End User License or any right granted thereunder;
(k) sell, license, disseminate, distribute, reproduce, copy, broadcast, publish, publicly perform or display, network, modify, enhance, supplement, create derivative works or adaptations from, make derivative use from, adapt, translate, disassemble, alter, decompile, reverse engineer or otherwise reduce to human readable form, commercially exploit except as otherwise provided for sellers in the Sellers Agreement, misuse, misappropriate, or infringe, in whole or in part, our Platform, Services or any feature or component of our infrastructure or Services;
(l) take any action that imposes an unreasonably large volume or load on the infrastructure, including our website or associated systems or network;
(m) use any device, software or routine to interfere with the proper working of our Platform or associated systems or network or any transaction being conducted through the Services;
(n) interfere with or circumvent any feature of our Services, Platform, or infrastructure, including any security or access control mechanism;
(o) frame or utilize framing techniques to enclose any trademark, logo, or other proprietary information (including images, text, page layout or form) used in connection with the Services, except as expressly permitted by the respective trademark owner;
(p) use any meta tags or hidden texts using our name or trademark or other third-party trademarks;
(q) use of data mining, robots, deep-link, page-scrape, spider, or similar data gathering and extraction tools or other automatic device, program, algorithm or methodology or similar automatic or manual process to monitor, access, acquire, or copy any aspect of the Services, Platform, infrastructure, our content, or any User Content; and/or
(r) use, upload or transmit any viruses, worms, spyware, malware, Trojan horses, lockout devices, or shutdown devices to our Platform, website, infrastructure or in connection with your use of our Services.
9. Third-Party Services, Fees and Advertising
You are solely responsible for obtaining all third-party services and for the payment of all third-party fees that you incur in connection with your use of our Services, such as fees you may incur for any items you purchase, delivery, taxes, device cost, access and data fees, internet provider and mobile carrier charges, connectivity charges, and peripheral equipment costs. We do not control and have no responsibility for the ads and content that third parties post or permit others to post on their platforms or while you are using our Services and we do not undertake any obligation to monitor or sensor those ads or content. You are solely responsible for setting your user preferences on your devices to control what content is viewed through your devices.
10. User Content & Content Guidelines
10.1. User Content: User-posted ratings, reviews, sentiments, feedback, texts, product description, product availability, product prices, product tags, labels and their content, product pricing, graphics on T-Shirts and other clothing and goods (including artwork, designs, words, phrases, photographs, and other displays), graphics, photos and videos that are made available on our Platform are referred to herein as “User Content”, “user content” or “content”. All User Content, including your user content, is intended for public viewing and consumption with no payment or other compensation to the user and will not be treated as confidential, and no privacy right or protection is granted herein to any User Content. You are responsible for the content you post, including its legality, reliability and appropriateness. Other users of our Platform or our other Services may review or comment on your posts, may reshare your posts, and may create similar posts and share their reviews and comments for other users to see, comment on and/or reshare. You grant us and other users of our Platform or our other Services an irrevocable, royalty-free, worldwide, non-exclusive license and right to use your user content. Based on your activity or lack thereof on our Platform, other users can determine whether you are active or not on our Platform. Because we and others place great importance on your reviews and other User Content, we ask that you provide your reviews with objectiveness and honesty to make our marketplace a healthy and reliable ecosystem. Your User Content must comply with the Content Guidelines set forth in these Terms. These Content Guidelines, including the guidelines on prohibited content in Section 10.3 of these Terms, supplement the Zaffori Ventures, LLC Listing Guidelines and the Zaffori Ventures, LLC Photography Guidelines. A copy of the most current version of these guidelines may be accessed at www.zaffori.com.
10.2. Content Guidelines: Your User Content must satisfy the following content guidelines (“Content Guidelines”) and you represent to us that your User Content satisfies the following Content Guidelines:
(a) your ratings and other content must be unbiased, objective and honest: you should not rate or review any product, service, business or item that is your own or your employer’s and you should not in any way provide ratings or reviews in return for compensation or benefits;
(b) you must respect the privacy of others: in your reviews and other content, do not post personally identifiable information, personal information or private information of others, such as information from which an individual can be identified or from which their location can be determined. Do not post photos, sketches, drawings, or videos of others without their permission, including the permission of the photographer, videographer and the model, actor or other person shown therein;
(c) your content must be your original creation, you must own all rights therein and must be permitted to post the content via our Services. Do not post work product or work made for hire of others without their prior written permission;
(d) to the extent that your user content includes any third-party personal information or proprietary information, you must have duly obtained said third-party’s prior written permission to use their personal information or proprietary information in connection with your use of our Services;
(e) your reviews and other content must not promote or advertise for any business that competes with us, without our prior written consent;
(f) your reviews and other content must not defame or disparage us, our Platform or our other Services;
(g) your content
(i) must not infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
(ii) must not slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person;
(iii) must not cause us to violate any law or regulation or otherwise cause liability for us; and
(iv) should not be deemed by a reasonable person to be objectionable, profane, indecent, pornographic, harassing, threatening, embarrassing, hateful, or otherwise inappropriate; and
(h) your content must not contain any prohibited content as described below.
10.3. Prohibited Content: Do not post any content that is defamatory, inciteful, hateful, violent, obscene, invasive of privacy of others, injurious to others, fraudulent, infringing, profane, indecent, pornographic, harassing, threatening, or otherwise inappropriate, offensive or objectionable, false or misleading, or that is not consistent with these Terms, including, but not limited to, texts, videos, pictures, other imagery, or other content depicting, promoting, containing or relating to any of the following:
(a) child pornography, any pornography, nudity or lewdness;
(b) death, dead or mutilated bodies or body parts of people or animals;
(d) body shaming;
(e) discrimination based on race, religion, gender, sexual orientation, age, national origin, disability, color, income;
(f) unhealthy practices or behavior;
(g) sensitive or inappropriate animal imagery or test;
(h) animal cruelty, abuse or mistreatment;
(i) promotion of use or use of endangered or at-risk species;
(j) stigmatized or trivialized mental health;
(k) illegal drugs;
(l) drug lords;
(m) weapons of violence;
(n) illegal act;
(q) counterfeit goods;
(r) hate or bigotry; and/or
(s) violence, insurrection, mobs, or riot.
10.4. Monitoring & Disclaimer as to User Content: We do not undertake any obligation to monitor, sensor, edit or control user content or use of the Services. We reserve the right to, and from time to time may, monitor content and any and all other information transmitted or received through the Services for operational and other purposes. We do not assume any responsibility or liability for user content or any loss or damage incurred or suffered as a result of user content. We may, at any time and without prior notice, screen, edit, block or take down your posts and other User Content, in whole or in part, deny your access, terminate your account, or turn over your content and account data to law enforcement if required to do so by law, if your User Content violates laws or the legal rights of others, or if your User Content, in our opinion, violates these Terms. When using the Services, you will be exposed to content of other users. You waive any legal or equitable right or remedy you have or may have against us with respect to your or other users’ User Content.
10.5. Permission and License to Use User Content: By posting content on our Platform or submitting goods and other materials to us, you grant us an irrevocable, royalty-free, fully-paid, worldwide, unrestricted, assignable, fully sublicensable, transferrable, perpetual, non-exclusive license and right to use, reproduce, publish, adapt, perform, translate, distribute, display, modify, edit, remove, takedown, suspend, block, delete, make statistical data and other derivative works from, and otherwise commercially exploit said content (including all ratings, sentiments, reviews, feedback, likeness, and moral rights therein) throughout the world and across any and all media, with the right to register and renew registration of copyrights in the derivative works we create, with no attribution to you as the author or co-author or otherwise, and with no obligation to make payment or provide other compensation to you. All ad revenues generated from our Platform and/or our other Services that are paid to us shall be our sole property.
11. Term, Termination & Modification of Terms
Term: These Terms become effective immediately upon your acceptance or deemed acceptance of these Terms. You are deemed to have accepted these Terms immediately upon your first access to or use of our Platform and our other Services and shall remain bound by these Terms, as updated from time to time, for as long as you use our Platform or our other Services or until these Terms are terminated.
Termination: If you violate any of these Terms, the term/duration of the Limited End User License will automatically terminate, you will have no license to use our Platform or utilize our other Services, and you must immediately cease using our Platform and our other Services. We may terminate the Limited End User License, these Terms, your account, your access to our Services, or our Services at any time, for any or no reason, with or without notice. You may cease using our Services at any time, by sending us notice at the email address set forth below. Upon termination, the Limited End User License shall automatically and immediately terminate and you must immediately cease using our Platform and our other Services.
Modification of Terms: These Terms will be updated from time to time and the issuance date of the then current version will be shown at the top of the page and/or in the footer (e.g., v09/21/21 – indicating an issuance date of September 21, 2021). Your continued access to or use of our Platform or our other Services after the issuance date of the updated Terms is evidence of your agreement to the updated Terms; however, if any update to these Terms is unacceptable to you, you agree not to use our Services. These Terms may be made available in multiple languages, but the English language version shall govern your relationship with us and, in the event of any conflict among versions of these Terms, the most recently updated English language version shall govern and control. The most current version of these Terms may be accessed at www.zaffori.com.
You are responsible for your use of our Platform and our other Services, the use of your account, and your user content and, to the fullest extent permitted by applicable law, you shall indemnify, defend (with counsel that we approve) and hold us and our principals, officers, directors, employees, contractors, agents, licensors and affiliates (“Indemnitees”) harmless from and against any and all loss, liability, damages, settlement amounts, demands, claims, causes of action, judgments, awards (whether any of the foregoing is foreign or domestic), costs and expenses, including reasonable attorney’s fees, incurred or suffered by Indemnitees to the extent arising out of or based upon (a) you violating or compromising the privacy rights of any individual, (b) you disparaging or defaming any of our principals, officers, directors, employees, agents or affiliates, (c) your unauthorized use or misuse of our Platform or our other Services, (d) your unlawful act, negligence, fraudulent act, or willful misconduct, (e) your User Content, and/or (f) a claim that your unauthorized use of our Services, including, but not limited to, your use of User Content or the content of others, infringes a patent, copyright, trademark, service mark, trade secret, trade name or other legally protected proprietary right of any person or entity. We reserve the right to assume or control the defense of any claim subject to indemnification pursuant to these Terms, at your cost and expense, without waiving your indemnity or hold harmless obligations hereunder, and you agree to fully and promptly cooperate and participate with us in the defense and resolution of the matter.
13. Disclaimer of Warranties
OUR PLATFORM AND OUR OTHER SERVICES ARE OFFERED “AS IS”, “WHERE IS”, “WITH ALL FAULTS” and “ON AN AS-AVAILABLE BASIS”. WE DISCLAIM ANY AND ALL WARRANTIES FOR OUR SERVICES, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, NON-INFRINGEMENT, COMPATIBILITY WITH YOUR DEVICE, TITLE, QUIET ENJOYMENT, OR ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE OR TRADE. WE DO NOT WARRANT THAT
OTHER USER’S CONTENT WILL BE ALWAYS APPROPRIATE, MONITORED OR SENSORED OR WILL NOT BE OBJECTIONABLE. WE DO NOT PROMISE THAT OUR PLATFORM, OUR WEBSITE OR OUR OTHER SERVICES, FEATURES, FUNCTIONALITIES, OR OUR CONTENT WILL BE SECURE, VIRUS-FREE, ERROR-FREE, FREE OF CONTAMINATION OR DESTRUCTIVE FEATURES, OR UNINTERRUPTED, OR THAT ANY DEFECTS WILL BE CORRECTED, OR THAT YOUR USE OF OUR PLATFORM, OUR WEBSITE OR OUR OTHER SERVICES WILL YIELD ANY SPECIFIC RESULTS. WE DISCLAIM ANY AND ALL LIABILITY FOR THE ACTS, OMISSIONS AND CONDUCT OF ANY THIRD PARTIES IN CONNECTION WITH YOUR USE OF OUR SERVICES. WE DISCLAIM ANY AND ALL DAMAGES TO YOUR DEVICE OR LOSS OF DATA OR USER CONTENT. YOU ASSUME ALL RISKS AND TOTAL RESPONSIBILITY FOR YOUR USE OF OUR PLATFORM, OUR OTHER SERVICES, THE PAYMENT PROCESSOR’S SERVICES AND ANY LINKED SITES. YOUR SOLE REMEDY AGAINST US FOR DISSATISFACTION WITH OUR SERVICES OR ANY CONTENT IS TO STOP USING OUR PLATFORM, OUR WEBSITE AND OUR OTHER SERVICES OR STOP VIEWING OR USING SAID CONTENT. THIS LIMITATION OF RELIEF IS A PART OF THE BARGAIN BETWEEN THE PARTIES.
THE DISCLAIMERS, EXCLUSIONS AND LIMITATIONS PROVIDED ABOVE APPLY TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAWS. WE DO NOT DISCLAIM ANY WARRANTY OR OTHER RIGHT THAT WE ARE PROHIBITED FROM DISCLAIMING UNDER APPLICABLE LAWS.
14. Limitation of Liability
IN NO EVENT WILL WE BE LIABLE TO YOU OR ANYONE CLAIMING THROUGH YOU FOR CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING BUT NOT LIMITED TO, LOSS PROFITS OR INCOME, EVEN IF APPRISED OF
THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. If, notwithstanding the other provisions of these Terms, we are found to be liable to you for any damage or loss which arises out of your use of our Platform, our website or our other Services as permitted under these Terms, our liability shall not exceed ONE HUNDRED AND NO/100 DOLLARS ($100.00 US). This limitation of liability shall not apply where or to the extent it is prohibited by applicable law.
15. Arbitration and Waiver of Class Actions
All disputes arising out of or relating to these Terms, including for breach, termination, enforcement, interpretation and/or validity of these Terms, and for the determination of the scope or applicability of this covenant to arbitrate, (except those matters for which we may seek relief directly in Court as provided below) shall be submitted to and determined by binding arbitration, on an individual basis, under the Federal Arbitration Act, and administered by the American Arbitration Association (“AAA”), which shall be conducted pursuant to the AAA consumer arbitration rules, in Dallas, Texas, USA, before one arbitrator. The AAA’s rules are available at www.adr.org. The party initiating the arbitration must make a written demand for arbitration, in which they describe the dispute and claims, and submit the demand to us at [email protected] and also to our registered agent for service of process and AAA. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. Said arbitration shall be conducted using the AAA’s expedited procedures, in English, and in a confidential manner. The arbitration may be conducted in person, by submission of documents, by phone conference, or by online conference. The arbitration decision will be final and binding on the parties, and the decision may be enforced by any party in any court of competent jurisdiction. Each party shall pay one- half of the arbitrator’s fees and costs, the party’s own costs, the party’s attorney’s fees and other fees and expenses incurred by said party in connection with the arbitration. The AAA shall not award consequential damages or punitive damages against any party.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court but must follow these Terms as a court would.
YOU AND WE AGREE THAT EACH MAY BRING OR PARTICIPATE IN CLAIMS AGAINST THE OTHER ONLY IN OUR RESPECTIVE INDIVIDUAL CAPACITIES AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. UNLESS BOTH YOU AND WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN THE CLAIMS OF OTHER PERSONS OR PARTIES WHO MAY BE SIMILARLY SITUATED AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING.
IN THE EVENT ANY CLAIM PROCEEDS IN COURT, YOU EXPRESSLY WAIVE THE RIGHT TO TRIAL BY A JURY.
We may pursue in court any claim we may have for injunctive relief in aid of arbitration or to enjoin any infringement, misuse or misappropriation of any intellectual property.
16. Intellectual Property Claims
If you believe that your intellectual property rights have been infringed in connection with our Services, including, but not limited to, copyright, trademark, and patent claims, please submit your written claim to us. Any claim concerning copyright infringement must include the following information: (a) a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed upon; (c) a description of where the material that you claim is infringing is located on our Platform; (d) your address, telephone number, and e- mail address; (e) a statement by you that you have a good-faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your claim notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
17. General Terms
Choice of Law: THESE TERMS SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE FEDERAL ARBITRATION ACT, APPLICABLE FEDERAL LAWS, AND THE LAWS OF THE STATE OF TEXAS, WITHOUT REGARD TO ANY CONFLICTS OF LAW PRINCIPLES THAT WOULD REQUIRE THE APPLICATION OF THE LAWS OF ANOTHER JURISDICTION. SUBJECT TO THE ARBITRATION REQUIREMENTS SET FORTH ABOVE, THE PARTIES AGREE TO SUBMIT TO THE EXCLUSIVE JURISDICTION OF THE STATE OR FEDERAL COURTS SITTING IN DALLAS, TEXAS, AND THE VENUE FOR ANY COURT ACTION OR SUIT BROUGHT IN CONNECTION WITH THESE TERMS SHALL BE IN DALLAS, TEXAS.
Notice: All notices shall be in writing and shall be given or made by email and/or certified or registered mail or by a reputable express delivery service to (a) us at the email address and/or address provided in these Terms and/or (b) you at your email address or other address that we have in our records, including the email address you provide through your use of our Services.
Attorney’s Fees: The prevailing party in any court action brought due to the other party’s material breach of these Terms or willful misconduct will be entitled to recover its reasonable attorneys’ fees incurred in the action.
Entire Agreement: These Terms, as modified from time to time by us, constitute the entire agreement between the parties relating to the subject matter of these Terms. Any and all prior written or oral agreements or understandings between you and us with respect to your use of our Platform or our other Services, other than (a) our Sellers Agreement for sellers and/or (b) our other policies, are hereby superseded and cancelled. These Terms shall not be modified by course of conduct. These Terms do not confer any rights or remedies on any third party, except as otherwise expressly provided in these Terms.
Nonwaiver: Our failure or delay at any time to enforce any of the provisions of these Terms or any right or remedy available hereunder shall not be construed as a waiver of such provisions, rights or remedies.
Assignability: Your rights or obligations under these Terms are not assignable or transferrable by you, in whole or in part, and any attempted assignment or transfer by you shall constitute a violation of these Terms and shall be void. We may assign or transfer our rights or obligations hereunder without restriction.
No Partnership: These Terms do not create any partnership, joint venture, agency, master-servant, employer-employee, or any special or fiduciary relationship between you and us, and no such relationship is created as a result of these Terms or your use of our Platform or our other Services.
Severability: In the event that any provision herein is held to be unenforceable by a court of competent jurisdiction or other authorized authority or body, such unenforceability shall not affect any other provision of these Terms, and the provision(s) held to be unenforceable shall be reformed to reflect the intentions of the parties evidenced within these Terms.
Survival: The provisions of these Terms that by their terms are intended to survive the expiration or termination of these Terms shall so survive, including Sections 11, 12, 13, 14, 15 and 17.
All notices, requests, complaints and claims with respect to our Services must be directed to us using the information provided below:
Zaffori Ventures, LLC
Data Security Office
252 West 38th Street
New York, New York, 10018