Terms of Use

Last updated: October 10, 2023

1661, Inc. and its affiliates (collectively, the "Company", "we", "us", or "our") provides curated products and other services through our website www.alias.org ("Site"), our mobile application ("App"), and any other properties that link to these Terms of Use (collectively, the "Service"). Through the Service, users can submit items for sale on the Service by taking and uploading photos and entering a sale price, as well as the size and condition of the item ("Sellers").

 

Please carefully read these Terms of Use (these "Terms"), including the binding arbitration provision contained below under "Dispute Resolution", which will require you to submit claims you have against us to binding and final arbitration, unless you opt out of the binding arbitration provision by following the opt-out procedures described below under "Dispute Resolution" or unless a limited exception described in these Terms applies. If you do not opt out of the binding arbitration provision, you will only be permitted to pursue claims against us on an individual basis, and not as a plaintiff or class member in any class or representative action or proceeding, and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis. These Terms govern your access to and use of the Service and, except as otherwise provided in these Terms, all Collective Content (as defined below). These Terms constitute a legally binding agreement between you and the Company.

 

In addition, when using certain parts of the Service, you will be subject to additional terms, policies or guidelines applicable to such parts of the Service that may be posted on the Site or the App from time to time, including our Privacy Policy, our Fee Policy, and our Seller Policy. All such terms, policies and guidelines are incorporated by reference into these Terms. Please read all such terms, policies and guidelines carefully.

 

KEY TERMS RELATED TO CONTENT

"Collective Content" means Registered User Content and Company Content.

 

"Company Content" means all Content that the Company makes available on or through the Service, including any Content licensed from a third party, but excluding Registered User Content.

 

"Content" means text, graphics, images, music, software, audio, video, information or other materials.

 

"Registered User" means a person who completes the Company's account registration process, as described under "Account Registration" below.

 

"Registered User Content" means all Content that a Registered User posts, tags on their social media accounts, uploads, publishes, submits, or transmits to be made available on or through the Service or related social media.

 

Certain areas of the Site and App, and your access to or use of parts of the Service or Collective Content, may have different terms and conditions posted or may require you to agree with and accept additional terms and conditions. If there is a conflict between these Terms and terms and conditions posted for a specific area of the Site, App, Service or Collective Content, the latter terms and conditions will take precedence with respect to your use of or access to that area of the Site, App, Service or Collective Content.

 

YOU ACKNOWLEDGE AND AGREE THAT, BY ACCESSING OR USING THE SERVICE OR BY POSTING ANY CONTENT ON OR THROUGH THE SERVICE, YOU ARE INDICATING THAT YOU HAVE READ, UNDERSTAND AND AGREE TO BE BOUND BY THESE TERMS, WHETHER OR NOT YOU HAVE REGISTERED WITH THE SERVICE. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU HAVE NO RIGHT TO ACCESS OR USE THE SERVICE OR COLLECTIVE CONTENT.

 

MODIFICATION

We reserve the right, in our sole discretion and to the fullest extent permitted by law, to modify, discontinue or terminate the Service and to modify these Terms, at any time. If we modify these Terms, we will update the Terms on the Site and will provide you with notice of the modification, either by email or through a general notice on the Site. We will also update the date following "Last updated" at the top of these Terms. Please review this page and these Terms from time to time so you are aware of any changes. By continuing to access or use the Service after we have modified the Terms, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, please cease using the Service.

 

ELIGIBILITY

You must be at least 16 years old to access or use the service. If you are under the age of 18 (or the age of legal majority where you live), you may only use the Service under your parent or legal guardian's supervision and you may not list items for sale through the service. If you are a parent or legal guardian of a user under the age of 18 (or the age of legal majority), you agree to be fully responsible for their use of the Service. By using the Service, you also represent, warrant and agree that you are able to form a legally binding contract with the Company, you are not a person who is barred from using the Services under the laws of the United States or any other applicable jurisdiction (including, for example, that you do not appear on the U.S. Treasury Department’s list of Specially Designated Nationals or face any other similar prohibition), you will comply with these Terms and all applicable local, state, national, and international laws, rules and regulations, and will promptly assist the Company in its compliance with applicable laws, rules, and regulations, as requested by the Company.

 

ACCOUNT REGISTRATION AND SECURITY

In order to access certain features of the Service and to post any Registered User Content on or through the Service, you must register to create an account ("Account") and become a "Registered User". You will be required to provide certain information during the registration process, and you agree to provide accurate, current, and complete information during the registration process and to update such information to keep it accurate, current, and complete. Where you have provided your phone number or email address during or after the registration process, you agree to us sending you security codes by text message or email to verify your identity as a Registered User. We reserve the right to suspend or terminate your Account for any reason at our discretion, including failure to provide certain information or to verify your identity when prompted, or if any information provided during the registration process or thereafter proves to be inaccurate, not current, or incomplete. You are responsible for safeguarding your password. You agree not to disclose your password to any third party and to take sole responsibility for any activities or actions under your Account, whether or not you have authorized such activities or actions. You will immediately notify us of any unauthorized use of your Account by contacting us here.

 

INTELLECTUAL PROPERTY

You acknowledge and agree that the Service and Collective Content may contain images and descriptions of fashion items and other content that are protected by copyright, trademark, or other laws of the United States and foreign countries. Except as expressly provided in these Terms, the Company and its licensors exclusively own all right, title and interest in and to the Service and Collective Content, including all associated intellectual property rights. You agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute, remove, obscure, or create derivative works based on any copyright, trademark, service mark, or other proprietary right contained on, incorporated in, or accompanying the Service or Collective Content. Any violation of the foregoing will constitute a breach of these Terms and can result in immediate termination of your right to use the Service.

 

All trademarks, service marks, logos, trade names, and other proprietary designations of the Company (the "Company Trademarks") displayed on the Service or Collective Content are trademarks or registered trademarks of the Company. Any other trademarks, service marks, logos, trade names, and other proprietary designations displayed on the Service or Collective Content may be the trademarks or registered trademarks of their respective owners. Nothing in these Terms should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of the Company Trademarks, without our prior written permission in each instance. All goodwill generated from the use of Company Trademarks will inure to the Company's exclusive benefit.

 

Subject to your compliance with these Terms, the Company grants you a limited, non-exclusive, non-transferable license, without the right to sublicense, to access, view, and print any Collective Content solely for your personal and non-commercial purposes. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, or otherwise exploit the Service or Collective Content, except as expressly permitted by these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by the Company or its licensors, except for the licenses and rights expressly granted in these Terms.

 

REGISTERED USER CONTENT

By becoming a Registered User, you hereby grant the Company the right to display certain account information including, but not limited to, your account username and location. Subject to the Company’s sole discretion, Registered Users may post, tag, upload, publish, submit, and transmit Registered User Content. By making any Registered User Content available on or through the Service or social media tag, you hereby grant to the Company and its licensees a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, create derivative works of, and otherwise exploit such Registered User Content. You acknowledge and agree that such license is not subject to compensation for use of name, image, or likeness, or any right of attribution or other moral rights. The Company does not claim any ownership rights in any such Registered User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit any such Registered User Content. You acknowledge and agree that you are solely responsible for all Registered User Content that you make available on or through the Service. Accordingly, you represent and warrant that: (i) you are the sole and exclusive owner of all Registered User Content that you make available on or through the Service or you have all rights, licenses, consents, and releases that are necessary to grant the rights in such Registered User Content, as contemplated under these Terms; and (ii) neither the Registered User Content nor your posting, tagging, uploading, publication, submission, or transmittal of the Registered User Content, or the Company's or its users' use of the Registered User Content (or any portion thereof), will infringe, misappropriate, or violate a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation. To the fullest extent permitted by law, the Company is not responsible or liable for the removal or deletion of (or the failure to remove or delete) any of your Registered User Content. 

 

FEEDBACK

We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Service ("Feedback"). You may submit Feedback by contacting us here. You acknowledge and agree that all Feedback will be the sole and exclusive property of the Company and you hereby irrevocably assign to the Company, and agree to irrevocably assign to the Company, all of your right, title, and interest in and to all Feedback, including without limitation all worldwide patent rights, copyright rights, trade secret rights, and other proprietary or intellectual property rights therein. At our request and expense, you will execute documents and take such further acts as we may reasonably request to assist us to acquire, perfect, and maintain the Company's intellectual property rights and other legal protections for the Feedback.

 

GENERAL PROHIBITIONS

You agree not to do any of the following:

We will have the right to investigate and prosecute violations of any of the above to the fullest extent of the law. We may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms. You acknowledge that we have no obligation to monitor your access to or use of the Service or Collective Content or to review or edit any Registered User Content, but that we have the right to do so for the purpose of operating the Service, to ensure your compliance with these Terms, or to comply with applicable law or the order or requirement of a court, administrative agency, or other governmental body. We reserve the right, at any time and without prior notice, to remove or disable access to any Collective Content, including any Registered User Content, that we, in our sole discretion, consider to be objectionable, in violation of these Terms, or otherwise harmful to the Service.

 

LINKS

The Service may contain links to third-party websites or resources. You acknowledge and agree that we are not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the text, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by us of such websites or resources or the text, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.

 

ADDITIONAL RIGHTS AND TERMS FOR APPS 

If you comply with the Terms, the Company grants to you a limited non-exclusive, non-transferable, revocable, license, with no right to sublicense, to download and install the App on your personal computers, mobile devices, tablets, wearable devices, and/or other devices and to run the App solely for your own personal purposes. Except as expressly permitted in the Terms, you may not: (i) copy, modify or create derivative works based on the App; (ii) distribute, transfer, sublicense, lease, lend or rent the App to any third party; (iii) reverse engineer, decompile or disassemble the Apps (unless applicable law permits, despite this limitation); or (iv) make the functionality of the App available to multiple users through any means.

 

Additional Information: Apple App Store. This section applies to any App that you acquire from the Apple App Store or use on an iOS device. Apple has no obligation to furnish any maintenance and support services with respect to the App. In the event of any failure of the App to conform to any applicable warranty, you may notify Apple, and Apple may refund the App purchase price to you (if applicable) and, to the fullest extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App. Apple is not responsible for addressing any claims by you or any third party relating to the App or your possession and use of it, including, but not limited to: (i) product liability claims; (ii) any claim that the App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third-party claim that your possession and use of the App infringe that third party’s intellectual property rights. Apple and its subsidiaries are third-party beneficiaries of these Terms, and upon your acceptance of the Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third-party beneficiary thereof. You represent and warrant that (i) 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 (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. You must also comply with any applicable third-party terms of service, including these Terms, when using the App.

 

FEES

Registering for the Service is free, but we charge certain fees based on various transactions on the Service. Our fee structure is outlined in our Fee Policy and is incorporated by reference into these Terms.

 

We reserve the right to change, or discontinue, temporarily or permanently, some or all of such fees (including for promotional events), and such changes are effective when we post information about the changes on or through the Service. We may also change our Fee Policy at any time and in our sole discretion, and any changes to the Fee Policy are effective upon the posting of such changes to the Site or upon written notice to any user.

 

SELLERS

When submitting an item for sale on the Service, you agree to our rules and policies for Sellers described in our Seller Policy and our FAQ, each of which are incorporated by reference into these Terms. You further agree that you have the legal authority to provide each item that you are submitting for sale on the Service and that the photos you upload of the item, name of the item, and SKU of the item will be accurate to the item you ship to us. We are the seller of record for purchases made by buyers shopping from the United States.  

 

Listed items may remain in a Seller’s physical possession until a purchase is completed. For this reason, while we may help facilitate the resolution of disputes, we do not otherwise guarantee, to the fullest extent permitted by law, (i) the ability of buyers to pay for items; (ii) that a buyer will actually complete a transaction or return an item; or (iii) the legal transfer of an item from the Seller to the buyer (or from Seller to us to buyer).

In addition, there may be times when certain information contained on the Service may be incorrect, incomplete, inaccurate, or appear inaccurate because of the browser, hardware, or other technology that you use. For example, we cannot guarantee that your computer monitor's display of any color will be accurate. We reserve the right to correct errors or to update information at any time without notice. We have the right to refuse or limit any orders or quantities, extend the delivery timeline for any reason after the order has been placed and accepted, and/or refuse to ship an item to you for any reason. We will not be liable if an item is unavailable or if shipment is delayed.

TERMINATION AND ACCOUNT CANCELLATION

If you breach any of these Terms, we will have the right to suspend or disable your Account or terminate these Terms as they apply to you, at our sole discretion and without prior notice to you. We reserve the right to revoke your access to and use of the Service and Collective Content at any time, with or without cause. When you register to join the Service and create an Account, you are free to choose any name to identify yourself to other Registered Users. However, any complaints to us by Registered Users arising out of or in connection with your use of a false name may result, in our sole discretion and without prior notice to you, in the suspension or disabling of your Account or the termination of these Terms. In the event we terminate these Terms for your breach, revoke your access to and use of the Service, or terminate or discontinue the Service and consequently these Terms, you will remain liable for all amounts due under these Terms. You may delete your Account at any time by contacting us here.

 

SURVIVAL

NOTWITHSTANDING ANY OTHER PROVISION OF THESE TERMS, ANY PROVISION OF THESE TERMS THAT IMPOSES OR CONTEMPLATES CONTINUING OBLIGATIONS ON YOU OR THE COMPANY WILL SURVIVE THE TERMINATION OF THESE TERMS.

 

DISCLAIMERS

YOU EXPRESSLY AGREE THAT USE OF THE SERVICE AND RELIANCE ON THE COLLECTIVE CONTENT IS AT YOUR OWN RISK. THE SERVICE AND COLLECTIVE CONTENT ARE PROVIDED "AS IS" AND "AS AVAILABLE", WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, THE COMPANY EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY THAT THE SERVICE OR COLLECTIVE CONTENT WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SERVICE IS FREE OF VIRUSES OR OTHER DISABLING DEVICES OR HARMFUL COMPONENTS. THE COMPANY MAKES NO REPRESENTATION OR WARRANTY REGARDING THE QUALITY OF ANY SERVICES, COLLECTIVE CONTENT, OR ANYTHING ELSE PURCHASED OR OBTAINED ON OR THROUGH THE SERVICE OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS, OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED ON OR THROUGH THE SERVICE.

 

THE COMPANY PERIODICALLY AMENDS, CHANGES, UPDATES, AND ALTERS THE SERVICE WITHOUT NOTICE. THE COMPANY ASSUMES NO LIABILITY OR RESPONSIBILITY FOR ANY ERRORS OR OMISSIONS IN THE CONTENT OF THE SERVICE. THE COMPANY SPECIFICALLY DISCLAIMS ANY DUTY TO UPDATE THE CONTENT OF, OR ANY OTHER INFORMATION ON, THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE COMPANY OR THROUGH THE SERVICE OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.

 

INDEMNITY

You agree to defend, indemnify, and hold the Company and its officers, directors, employees, agents, and representatives harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with your access to or use of the Service or Collective Content or your violation of these Terms. We reserve the right to assume all or any part of the defense of any such claims and negotiations for settlement, and you agree to fully cooperate with us in doing so.

 

LIMITATION OF LIABILITY

YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SERVICE AND COLLECTIVE CONTENT REMAINS WITH YOU. TO THE FULLEST EXTENT PERMITTED BY LAW, NEITHER THE COMPANY NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SERVICE OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY COMPENSATORY, CONSEQUENTIAL, INCIDENTAL, INDIRECT, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE, OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS, ARISING OUT OF OR IN CONNECTION WITH: (I) THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR COLLECTIVE CONTENT; (II) THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SERVICE OR COLLECTIVE CONTENT; (III) ANY COMMUNICATIONS, INTERACTIONS, OR MEETINGS WITH OTHER USERS OF THE SERVICE OR COLLECTIVE CONTENT OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SERVICE OR COLLECTIVE CONTENT; (IV) YOUR VISIT TO A VENUE RESULTING FROM YOUR USE OF THE SERVICE OR COLLECTIVE CONTENT; (V) PRICING, SHIPPING, FORMAT, OR OTHER GUIDANCE PROVIDED BY THE COMPANY; (VI) DELAYS OR DISRUPTIONS IN THE SERVICE; (VII) VIRUSES OR OTHER MALICIOUS SOFTWARE OBTAINED BY ACCESSING THE SERVICE OR THOSE OF ANY SITE, SERVICES, OR TOOLS LINKED TO THE SERVICE; (VIII) GLITCHES, BUGS, ERRORS, OR INACCURACIES OF ANY KIND IN THE SERVICE; (IX) DAMAGE TO YOUR HARDWARE DEVICE FROM THE USE OF THE SERVICE; (X) THE CONTENT, ACTIONS, OR INACTIONS OF THIRD PARTIES, INCLUDING ITEMS LISTED USING THE SERVICE OR THE DESTRUCTION OF ALLEGEDLY FAKE ITEMS; (XI) A SUSPENSION OR OTHER ACTION TAKEN WITH RESPECT TO YOUR ACCOUNT; (XII) THE DURATION OR MANNER IN WHICH ITEMS YOU LIST APPEAR ON THE SERVICE; OR (XIII) YOUR NEED TO MODIFY PRACTICES, CONTENT OR BEHAVIOR, OR YOUR LOSS OF ABILITY TO DO BUSINESS, AS A RESULT OF CHANGES TO THESE TERMS OR OUR POLICIES, IN EACH CASE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT THE COMPANY HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.

 

WITHOUT LIMITING ANY OF THE FOREGOING, IN NO EVENT WILL THE COMPANY'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OR FROM THE USE OF OR INABILITY TO USE THE SERVICE OR COLLECTIVE CONTENT EXCEED THE AMOUNTS YOU HAVE PAID TO THE COMPANY FOR USE OF THE SERVICE OR COLLECTIVE CONTENT IN THE TWELVE (12) MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY OR ONE HUNDRED DOLLARS ($100.00), WHICHEVER IS GREATER. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN YOU AND THE COMPANY.

 

SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OF WARRANTIES OR EXCLUSION OF DAMAGES. IN A JURISDICTION THAT DOES NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, THE AGGREGATE LIABILITY OF THE COMPANY SHALL BE LIMITED IN ACCORDANCE WITH THESE TERMS TO THE FULLEST EXTENT PERMITTED BY LAW.

 

CONTROLLING LAW AND JURISDICTION

These Terms and any action related to these Terms will be governed by the laws of the State of California without regard to its conflict of laws provisions. The exclusive jurisdiction and venue of any action to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents or other intellectual property rights will be the state and federal courts located in the Central District of California, and each of you and the Company waives any objection to jurisdiction and venue in such courts. If the agreement to arbitrate set forth below under the heading "Dispute Resolution" is found not to apply to you or to a particular dispute, claim or controversy, either as a result of your decision to opt out of the agreement to arbitrate or as a result of a decision by the arbitrator or a court order, the exclusive jurisdiction and venue for the resolution of such dispute, claim or controversy will be the state and federal courts located in the Central District of California, and each of you and the Company waives any objection to jurisdiction and venue in such courts.

 

NOTICE FOR CALIFORNIA USERS

Under California Civil Code Section 1789.3, California users of the Service are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1020 N Street, #501, Sacramento, California 95814, or by telephone at 1-916-445-1254.

 

ENTIRE AGREEMENT

These Terms constitute the entire and exclusive understanding and agreement between you and the Company regarding the Service and Collective Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between you and the Company regarding the Service and Collective Content.

 

ASSIGNMENT

You may not assign or transfer these Terms, by operation of law or otherwise, without our prior written consent. Any attempt to assign or transfer these Terms without such consent will be null and of no effect. We may assign or transfer these Terms at our sole discretion and without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of you, the Company, and the respective successors and permitted assigns of you and the Company.

 

NOTICES

Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by the Company: (i) via email to the address that you provide to us or (ii) by posting to the Site. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.

 

DISPUTE RESOLUTION

 

PLEASE READ THIS SECTION CAREFULLY. EXCEPT AS THE TERMS OTHERWISE PROVIDE, YOU WAIVE YOUR RIGHT TO TRY ANY CLAIM IN COURT BEFORE A JUDGE OR JURY AND TO BRING OR PARTICIPATE IN ANY CLASS, COLLECTIVE, OR OTHER

REPRESENTATIVE ACTION. Other rights that you would have if you brought a claim to court, such as access to discovery or appeals, also might be unavailable or limited in arbitration.

 

Agreement to Binding Arbitration; Class Action Waiver. Except as these Terms otherwise provide and to the fullest extent permitted by law, you and the Company acknowledge and agree that you are each waiving the right to a trial by jury and to the litigation of disputes in state or federal courts of general jurisdiction. The parties further agree that any arbitration shall be conducted in their individual capacities only and not as a class action/class arbitration or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. You and the Company may not be plaintiffs or class members in any purported class, collective, private attorney general, or representative proceeding, or otherwise make or proceed with any claim on a collective or consolidated basis, and may each bring claims against the other only in your or its individual capacity. As referenced above, the arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the individual claim. Any dispute, claim or controversy between you and the Company, its subsidiaries or affiliates and their respective agents, employees, officers, directors, principals, successors, assigns (collectively for purposes of this Dispute Resolution section, the "Company") arising from or relating in any way to: (i) these Terms (including previous versions of these Terms) and their interpretation or the breach, termination, enforcement, or validity thereof, and the relationships which result from these Terms; (ii) your use of or access to the Service; or (iii) the action of the Company or its agents, or any products or services listed, offered, sold, purchased, or distributed by the Company on or through the Service or through any website or mobile application owned or operated by the Company (collectively, “Covered Disputes”) will be resolved by binding arbitration, rather than in court. Covered Disputes shall be interpreted broadly.

 

Initiating Arbitration. You and the Company agree that any Covered Dispute between you and the Company shall be settled by final and binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

 

Arbitration Rules and Governing Law. Except for certain complaints regarding the handling of personal data of EU, UK and Swiss individuals (which is addressed in the section below titled "Arbitration Regarding Personal Data of EU, UK and Swiss Individuals"), any arbitration between you and the Company will be administered by National Arbitration and Mediation ("NAM") in accordance with NAM's operative Comprehensive Dispute Resolution Rules and Procedures (the "NAM Rules") in effect at the time any demand for arbitration is filed with NAM, as modified by this “Dispute Resolution” section. For a copy of the NAM Rules, please visit this link or contact NAM at NAM's National Processing Center at 990 Stewart Avenue, 1st Floor, Garden City, NY 11530. If you have a question about the NAM Rules, please contact NAM via email at [email protected]. If NAM is unavailable or unwilling to administer the arbitration, the parties will select an alternative private neutral arbitrator to conduct the arbitration in accordance with the NAM Rules. If the parties are unable to agree, they will petition a court of competent jurisdiction to appoint an arbitration administrator that will do so. Any arbitration will be held before a single neutral arbitrator. The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution” section.

 

Arbitration Process and Selection of Arbitrator. A party who desires to initiate arbitration must provide NAM with a written demand for arbitration or arbitration notice form made available from the arbitration administrator and supplement that form with a detailed description of your claim. You must personally sign your demand for arbitration. You agree to also send the Company a copy of your demand for arbitration by email to [email protected]. If the Company initiates arbitration, the Company will send a copy of its demand for arbitration to your email address on file. Unless you and the Company otherwise agree, the arbitration will be conducted in the county you reside in within a reasonable time, without undue delay. All parties participating in arbitration shall have the right, at their own expense, to be represented by a spokesperson of their own choosing. If your claim does not exceed $10,000, then you or the Company may elect to have the arbitration be conducted by telephone or solely on the basis of documents you and the Company submit to the arbitrator, unless either you or the Company requests a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, or seeks declaratory or injunctive relief, either party may request to hold an in-person or virtual hearing from the arbitrator. In-person hearings will take place in the county where you reside or at another location reasonably convenient for you, or at a mutually agreed upon location. The right to a hearing will be determined by the NAM Rules. Subject to the NAM Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration. Unless otherwise prohibited by law, all arbitration proceedings will be confidential and closed to the public and any parties other than you and the Company, and all records relating thereto will be permanently sealed, except as necessary to obtain court confirmation of the arbitration award (provided that the party seeking confirmation shall seek to file such records under seal to the extent permitted by law).

 

Arbitrator's Decision. The arbitrator has the sole authority to address all claims or arguments by both parties concerning the formation, legality, and enforceability of this arbitration clause, the scope of this clause, and the arbitrability of any claim or issue arising between you and the Company. Provided the parties have not agreed otherwise, the arbitrator will have the same powers as a court of competent jurisdiction would to administer the arbitration and will administer the arbitration according to these Terms. The arbitrator will render an award within the timeframe specified in the NAM Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. The arbitrator's award shall be final and binding only between you and the Company and shall have no preclusive effect in any other arbitration or proceeding involving a different party, provided that the arbitrator may consider rulings in other arbitrations involving different arbitrations. The arbitrator's award may be subject to review in accordance with applicable statutes governing arbitration awards. Judgment on the arbitration award may be entered in any court having competent jurisdiction thereof. The arbitrator may award fees and costs as provided by the NAM Rules or to the extent such fees and costs could be awarded in court of competent jurisdiction or if the arbitrator determines that a claim, proceeding, or defense was frivolous, brought for harassment, for improper purpose, or in bad faith. The arbitrator shall apply the provisions of Federal Rule of Civil Procedure 68 after entry of the award. The prevailing party in arbitration will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law.

 

Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the NAM Rules. You will be responsible for payment of the then-current filing fee as required by NAM Rules at the time the demand is filed. the Company will be responsible for payment of the balance of such filing fee and other administrative and arbitrator fees associated with the arbitration in accordance with the NAM Rules. If you are able to demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, the Company will pay as much of your share of the filing fee as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive.

 

Special Additional Procedures for Mass Arbitration. If 25 or more individuals seek to initiate arbitrations with the Company raising similar claims, and counsel for the individuals bringing the claims are the same or coordinated or the claims are otherwise coordinated ("Mass Claims"), you and the Company agree that these additional procedures shall apply, along with the applicable NAM Rules. You understand and agree that if you choose to initiate your claim as part of Mass Claims, the adjudication of your claim might be delayed. To increase the efficiency of administration and resolution of any such Mass Claims, you and the Company also agree that in the event that there are one hundred (100) or more individual arbitrations of a substantially similar nature filed against the Company by or with the assistance of the same law firm, group of law firms, or organizations, within a ninety (90) day period, NAM shall (1) administer the arbitration demands in batches of 100 claims per batch (plus, to the extent there are less than 100 claims left over after the batching described above, a final batch consisting of the remaining claims); (2) appoint one arbitrator for each batch; and (3) 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”). To the extent the parties disagree on any issue arising out of or relating to the Batch Arbitration, the disagreeing party shall advise NAM, and NAM shall appoint a sole standing arbitrator to determine the applicability of the Batch Arbitration process (“Procedural Arbitrator”). The Procedural Arbitrator’s fees shall be paid by the Company. This 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. All parties agree that arbitrations 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. A court of competent jurisdiction shall have the authority to enforce these mass arbitration procedures and, if necessary, to enjoin the filing or prosecution of arbitrations that are not consistent with the terms of these mass arbitration procedures.

 

Opt-Out Right. YOU MAY OPT OUT OF THIS AGREEMENT TO ARBITRATE. IF YOU DO SO, NEITHER YOU NOR THE COMPANY CAN REQUIRE THE OTHER TO PARTICIPATE IN AN ARBITRATION PROCEEDING. TO OPT OUT, YOU MUST NOTIFY US IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU FIRST BECAME SUBJECT TO THIS ARBITRATION PROVISION BY EMAILING [email protected]. You must include your name and residence address, the email address for your Account, and a clear statement that you want to opt out of this arbitration agreement.

 

Severability of Arbitration Provisions. If a court of competent jurisdiction decides that applicable law precludes enforcement of any portion of this ”Dispute Resolution” section’s limitations as to a particular claim for relief, then such claim (and only such claim) must be severed from the arbitration and may be litigated in a civil court of competent jurisdiction, and the parties agree that litigation of those claims shall be stayed pending the outcome of any individual claims in arbitration. All other claims will be arbitrated, and the arbitrator (and not any federal, state, or local court or agency) shall have exclusive authority to resolve any dispute arising out of or relating to the breach, termination, enforcement, interpretation, validity, scope, applicability or formation of this agreement to arbitrate (including previous versions of this agreement to arbitrate), any part thereof, or of these Terms (including previous versions of these Terms), including, but not limited to, any claim that all or any part of this agreement to arbitrate or the Terms are void or voidable. Further, if any part of this “Dispute Resolution” section is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this “Dispute Resolution” section will be enforceable.

 

Arbitration Regarding Personal Data of EU, UK and Swiss Individuals. In compliance with the EU-U.S. Data Privacy Framework (DPF), the UK Extension to the EU-U.S. DPF and the Swiss-U.S. DPF, we commit to refer any unresolved complaints about our collection and handling of personal data received in reliance on the EU-U.S. DPF, the UK Extension to the EU-U.S. DPF and the Swiss-U.S. DPF to Judicial Arbitration and Mediation Services, Inc. (“JAMS”), an alternative dispute resolution provider based in the United States. Please see Annex 3 of our Privacy Policy for more information.

 

Changes. Notwithstanding the provisions of the “Modification” section above, if we materially change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice by emailing [email protected] within 30 days of the date such change becomes effective, as indicated by the date following “Last Updated” above or in our email to you notifying you of such change, or cancel your Account. By rejecting any change or canceling your Account, you are agreeing that you will arbitrate any Covered Dispute between you and the Company in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms). If you reopen your canceled Account or create a new Account, you agree to be bound by the then current version of the Terms.

 

WAIVER; SEVERABILITY

Our failure to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of the Company. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise. If for any reason a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the fullest extent permissible and the other provisions of these Terms will remain in full force and effect.

 

COPYRIGHT AND INTELLECTUAL PROPERTY POLICY

We respect the intellectual property rights of others and expect our users to do the same. It is our policy, in appropriate circumstances and at its discretion, to disable and/or terminate the accounts of users who repeatedly infringe or are repeatedly charged with infringing the copyrights or other intellectual property rights of others.

 

Notification of Copyright Infringement. In accordance with the Digital Millennium Copyright Act of 1998, the text of which may be found on the U.S. Copyright Office website ("DMCA"), the Company will respond expeditiously to claims of copyright infringement committed using the Service that are reported to the Company's Designated Copyright Agent identified below.

 

If you are a copyright owner, or are authorized to act on behalf of one, or authorized to act under any exclusive right under copyright, please report alleged copyright infringements taking place on or through the Service by providing the Company's Designated Copyright Agent (specified below) a DMCA Notice of Alleged Infringement ("Notice") containing the following information:

 

Deliver this Notice, with all items completed, to the Company's Designated Copyright Agent - Copyright Agent c/o 1661, Inc., 3433 W. Exposition Pl., Los Angeles, CA 90018, [email protected]. Upon receipt of the Notice, the Company will take whatever action, in its sole discretion, it deems appropriate, including removal of the challenged material from the Service.

 

Notification of Trademark Infringement. If you believe that your trademark ("Mark") is being used on the Service by a user in a way that constitutes trademark infringement, please provide the Company's Designated Copyright Agent (specified above) a notice containing the following information:

 

Upon receipt of notice as described above, the Company will seek to confirm the existence of the Mark on the Service, notify the Registered User who posted the content including the Mark, and take whatever action, in its sole discretion, it deems appropriate, including temporary or permanent removal of the Mark from the Service.

 

Notification of Other Intellectual Property ("IP") Infringement. If you believe that some other IP right of yours is being infringed by a user, please provide the Company's Designated Copyright Agent (specified above) a notice containing the following information:

 

Upon receipt of notice as described above, the Company will seek to confirm the existence of the IP on the Service, notify the user who posted the content including the IP, and take whatever action, in its sole discretion, it deems appropriate, including temporary or permanent removal of the IP from the Service.

 

Counter Notification. Counter notification, as permitted by applicable law and, in particular, the DMCA, may be sent to the Company's Designated Copyright Agent. All counter notifications must include:

 

It is our policy in appropriate circumstances to disable and/or terminate the accounts of users who are repeat infringers.

 

QUESTIONS

If you have any questions about these Terms or the Service, please contact us here.