Terms of Service
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This document, referenced documents, and our rules and policies (collectively, the “Terms of Service,” “Terms” or “Agreement”) constitute a legally binding agreement between you and Bidstitch, Inc. and its affiliates (“Bidstitch,” “we,” “us” or “our”) governing your use of www.bidstitch.com, (“the “Site”) affiliated websites, mobile applications, stores, and other services or content available through the foregoing (collectively, with the Site, the “Services”).
1. Acceptance of Terms of Service
By creating an account, purchasing products, using the Services in any manner, including but not limited to visiting or browsing the Site, you agree to be bound by these Terms and represent and warrant that (1) you have read, understand, and agree to be bound by these Terms, (2) you are of the legal age to form a binding contract with us, and (3) you have the authority to enter into the Terms on behalf of yourself or the entity that you represent. If you do not wish to be bound by these Terms, you may not access or use the Services.
PLEASE BE ADVISED: SECTION 22 OF THIS AGREEMENT CONTAINS AN ARBITRATION CLAUSE AND CLASS ACTION WAIVER THAT GOVERNS HOW CLAIMS BETWEEN YOU AND BIDSTITCH CAN BE BROUGHT. BY AGREEING TO THE TERMS, YOU AGREE TO RESOLVE ALL CLAIMS THROUGH BINDING INDIVIDUAL ARBITRATION, TO WAIVE ANY RIGHT TO HAVE THOSE DISPUTES DECIDED BY A JUDGE OR JURY, AND TO WAIVE YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS, CLASS ARBITRATIONS, OR REPRESENTATIVE ACTIONS.
We may amend the Terms at any time by posting a revised version on our website, effective at the time of posting. At our discretion, we may also notify you of changes by sending you an email to the email address associated with your account. You are responsible for reviewing and becoming familiar with any changes regardless of prior notification. Your use of the Services following any such changes or modifications constitutes your acceptance of and willingness to be bound by the updated Terms.
3. Additional Terms and Policies
By using the Service, you agree to comply with the following policies and any additional policies that we may notify you of from time-to-time:
- SMS Terms and Conditions
- Prohibited Items.
- Prohibited Conduct
- Rules for Sellers.
- Rules for Buyers.
4. Your Privacy
5. Marketing Practices
- When you opt in to receive text messages, you understand that our text message programs are separately governed by our SMS Terms and Conditions. You understand and consent that you will receive text messages (“SMS”) from an automated system. You further understand that your consent is not required to make any purchase. To stop receiving text messages from Bidstitch, you agree to reply STOP to the text message. After texting STOP, you may receive additional communications confirming that your request has been received and processed, and you may continue to receive text messages for a short period while Bidstitch processes your request(s). For more information, please see our SMS Terms and Conditions.
- If you have a Bidstitch account, you can opt-out of email or SMS messaging by modifying your privacy settings in your account. Or, if you previously selected to receive marketing communications from us, you can follow the opt out instructions within the SMS Terms and Conditions. Our communications themselves may also include the opportunity to opt out, such as an unsubscribe link.
- You agree that you may need to separately manage your communication preferences for each communication method. For example, if you opt out of receiving marketing emails, you will still receive marketing text messages if you have opted in to receiving them. Even if you have opted out of receiving email marketing messages, you understand and agree that we may continue to send you email messages concerning your orders and your account.
6. Ways You Can Access Our Service and Your Account
Creating an account may be required to access some features of our Services. Here are some of the ways that you can choose to access our Services:
- Guest User. Guest Users refer to individuals or entities that access any portion of our Services without maintaining or logging into a Buyer Account or Seller Account (“Guests”). Guests are permitted to browse the Site free of charge but will be restricted from generating content and making purchases.
- Buyer Accounts. Buyer Accounts may be created free of charge and allow the accountholder to create a public profile, generate certain kinds of content, and make purchases (“Buyers”).
- Seller Accounts. Seller Accounts provide the accountholder with all privileges associated with Buyer Accounts, as well as the permissions to establish and operate your own online shop on our Site. Individuals or entities who operate a Seller Account (“Sellers”) are charged a subscription fee during account registration (see Section 7).
Here are some rules about accounts with Bidstitch:
- You Must Be 18 Years or Older to Use Our Services. You must be 18 years or older or the age of majority in your state of residence to have a Bidstitch account. Minors under 18 and at least 13 years of age are only permitted to use our Services through an account owned by a parent or legal guardian with their appropriate permission and under their direct supervision. Children under 13 years are not permitted to use Bidstitch or the Services. You are responsible for all account activity conducted by a minor on your account, including limiting access to commercial products or services available that you may consider inappropriate.
- You Must Provide Accurate Information. When creating an account, you agree to provide us with complete and accurate information and to keep the information current for communications regarding your account. We may request that you send us additional documents or information to help us verify your identity. We may limit your access to our Services until we are able to verify your account information.
- You Are Responsible for Your Account. You are solely responsible for any activity on your account and personally guarantee that you have the authority to agree to the Terms. If you are sharing an account, the person whose financial information is on record will be responsible for all account activity.
- You Are Responsible for Protecting Your Account. You are solely responsible for protecting your account and keeping your password secure. If you believe your account has been compromised, please contact [email protected]dstitch.com.
- No Additional Accounts. You may only register for and maintain one Account. Payment instruments and bank accounts can only be registered on one Bidstitch account at a time; they cannot be shared on multiple accounts, even if it is a joint account at your financial institution.
- Your Relationship with Bidstitch. These terms do not create an agency, partnership, joint venture, employment, or franchise relationship between you and Bidstitch.
Please visit our Help Center for questions about setting up an account with Bidstitch
7. Seller Memberships
Bidstitch offers subscription-based Seller Memberships which allow users to establish and operate their own online shop on our Site, make purchases, and generate a variety of content. We may offer a number of membership plans, some of which having differing conditions and limitations which will be disclosed at sign-up or in other communications made available to you.
To use Bidstitch’s Seller Membership services, you must register for a Seller account, have internet access, and provide us with one or more Payment Methods. “Payment Method” means a current, valid, accepted method of payment, as may be updated from time to time and which may include payment through your account with a third-party payment provider.
8. Seller Membership Billing and Cancellation
- Payment Authorization. By registering for a Seller Membership, you authorize Bidstitch and or its third-party payment provider to charge or debit your designated Payment Method for amounts owed to Bidstitch for the Service(s). You authorize us and or our third-party payment provider to charge or debit any Payment Method associated with your account in case your primary Payment Method is declined or no longer available to us for the payment of your subscription fees. You remain responsible for any uncollected amounts. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not cancel your account, we may suspend your access to the service until we have successfully charged a valid Payment Method. For some Payment Methods, the issuer may charge you separate fees, such as foreign transaction fees or other fees relating to the processing of your Payment Method. Check with your Payment Method service provider for details.
- Payment Dates. Membership fees for Bidstitch Seller Membership services will be charged to your Payment Method on the specific payment date indicated on your “Account” page. The length of your billing cycle will depend on the type of subscription that you chose when you signed up for the service. Membership fees are fully earned upon payment. Your payment date may change; for example, if your Payment Method has not successfully settled when you change your subscription plan or if your paid membership began on a day not contained in a given month.
- Automatic Renewal. Your Bidstitch seller membership will continue and automatically renew until terminated. You must cancel your membership before it renews to avoid billing of the seller membership fees for the next billing cycle to your Payment Method.
- Membership Cancellation. You can cancel your Bidstitch seller membership at any time and you will continue to have access to the Bidstitch seller services until the end of your billing period. To cancel your Bidstitch seller membership, navigate to the “Account” page on our website and follow the instructions for cancellation. If you cancel your membership, your account will automatically close at the end of your current billing period.
- Modification to Subscription Plans and Pricing. We reserve the right to change our subscription plans or adjust our pricing in any manner and at any time as we may determine in our sole and absolute discretion. Except as otherwise expressly provided for in this Agreement, any price changes or changes to your subscription plan will take effect following notice to you (see Section 24F).
- Payments are Nonrefundable. Payments are nonrefundable and there are no refunds or credits for partially used membership periods. We may, however, choose to provide a refund, discount, or other consideration to some or all of our members at any time, and for any reason. The amount and form of such a refund, discount, or other consideration, and the decision to provide them, is at our sole and absolute discretion.
You may terminate your Account with Bidstitch at any time from the account settings page. Terminating your account will not affect the availability of some listing information, discussion information, and completed transaction information associated with your account. Please be sure to save all needed information prior to terminating your Account.
You are still responsible for all fees, shipping overages, chargebacks, and payment reversals or refunds received by Bidstitch, even after your account is terminated. You remain obligated to resolve any disputes with other users that are the result of purchases or sales of goods occurring prior to termination.
We may terminate or suspend your access, your Bidstitch account, or your Bidstitch account’s access to all or part of our Service should we have reason to believe that (a) you violated this Agreement; (b) we are required to do so to comply with a legal requirement or a court order; or (c) we believe there has been conduct that creates or could create liability or harm to any user, third party, Bidstitch, or affiliates.
We will notify you of the reason for termination or suspension by Bidstitch unless we reasonably believe that doing so: (a) would violate the law or otherwise risk legal liability for Bidstitch or our affiliates; (b) would compromise an investigation or the integrity or operation of the Service; or (c) would cause harm to any user, third party, Bidstitch or our affiliates.
If you or Bidstitch terminates your account, you may lose any or all information and content associated with your account.
10. Scope of License
Bidstitch grants you a personal, non-transferable, non-exclusive, revocable, limited license to use and access the Services solely as permitted by these Terms. We reserve all rights not expressly granted to you by these Terms.
Your license does not include the right to modify, alter, prepare derivative works of, disassemble, decompile, derive the source code of, or reverse engineer any part of the Services or content. You may not attempt to disable or circumvent any security or other technological measure or feature of the Services or Site. You may not access the Services or content to build a similar or competitive website, product, or service. You may not rent, lease, lend, sell, or sublicense the Services or access to the Services.
11. Third Party Services and Linked Websites
12. Your Content
The Services may contain information, text, links, graphics, photos, videos, Listed Items (see Section 16), or other materials (“Content”), including Content created or submitted to the Services by you or through your Account (“Your Content”). We take no responsibility for, and we do not expressly or implicitly endorse, support, or guarantee, the completeness, truthfulness, accuracy, or reliability of any of Your Content.
- Responsibility for Your Content. By submitting Your Content to the Services, you represent and warrant that you have all rights, power, and authority necessary to grant the rights to Your Content contained within these Terms. Because you alone are responsible for Your Content, you may expose yourself to liability if you post or share Content without all necessary rights.
- Permission to Use Your Content. By posting Your Content through our Services, you grant Bidstitch a worldwide, royalty-free, perpetual, irrevocable, non-exclusive, transferable, and sublicensable license to use, copy, modify, adapt, prepare derivative works of, distribute, store, perform, and display Your Content and any name, username, voice, or likeness provided in connection with Your Content in all media formats and channels now known or later developed anywhere in the world. This license includes the right for us to make Your Content available for syndication, broadcast, distribution, or publication by other companies, organizations, or individuals who partner with Bidstitch. You also agree that we may remove metadata associated with Your Content, and you irrevocably waive any claims and assertions of moral rights or attribution with respect to Your Content.
- Reporting Infringing Content. If intellectual property that you own or have rights to has been posted using our Services without your permission and you want it removed, please email [email protected] or flag the content within our Site. If Your Content infringes another person’s intellectual property, we will remove it upon receipt of a valid and complete Takedown notice. We will notify you if that happens.
- Inappropriate, False or Misleading Content. You agree that you will not post any content that is abusive, threatening, defamatory, invasive of privacy, injurious, obscene, vulgar, or otherwise offensive or in violation of our policies or Terms. You also agree not to post any content that is false, misleading or uses the Services in a manner that is fraudulent or deceptive.
- Modifying or Removing Your Content. Although we have no obligation to screen, edit, or monitor Your Content, we may, in our sole discretion, delete or remove Your Content at any time and for any reason. In no event will Bidstitch be liable to you for any indirect, incidental, special, consequential or punitive damages (including damages for loss of profits, goodwill, or any other intangible loss) arising out of or relating to; (1) the modification or removal of Your Content, or (2) any restriction, suspension, or termination of your ability to access or use the Services.
13. Your Use of Our Service
When using or accessing Bidstitch, you must comply with these Terms and all applicable laws, rules, and regulations. Please review the Prohibited Conduct Policy, which is part of these Terms and contains our rules about prohibited content and conduct. In addition to the terms outlined in the Prohibited Conduct Policy, you must comply with the following:
- Abide by all laws. You agree that you will not violate any applicable local, state, federal and international laws in connection with your use of the Service. You may not use Bidstitch to list or sell items that violate any laws, to commit fraud, theft, or any other crimes against Bidstitch or another Bidstitch user or a third party. You may not list, sell, or intentionally purchase any counterfeit or fake items. You may not use Bidstitch to send or transmit items that are illegal or prohibited to ship. Please review our Prohibited Items and Prohibited Conduct policies for more details.
- Do Not Disrupt Services. You agree that you will not interfere with, disable, disrupt, overburden, or otherwise impair the Services or the enjoyment of the Services by other users.
- Agreement to Receive Electronic Communications. By using our Service, you agree to receive electronic communications from us and recognize that your electronic agreement is equivalent to your signature on paper.
- Access to Content. You may come across materials that you find offensive or inappropriate while using our Service. Bidstitch is not responsible for the decency, accuracy, copyright compliance, or legality of content posted by users that you accessed through the Service. You release us from all liability relating to that content. You may report content that you believe violates Bidstitch’s Policies for internal review.
- Interacting With Users. You can use the Service to interact with other individuals. However, you understand that we do not screen users of our Services, and you release us from all liability relating to your interactions with other users. You may report users who you believe are engaging in Prohibited Conduct in the Help Center so we may review their account.
- Account Limitations. Bidstitch, may place limits or restrictions on your use of our Service due to your account activity, limited verified user information available, or to enforce a regulatory limit. You may be required to complete certain actions on your account to remove that limitation.
- Disclaimers of Warranties for Service. Bidstitch makes no representation, warranty, or guaranty as to the reliability, timeliness, quality, suitability, truth, availability, accuracy or completeness of the Service or any content. Bidstitch does not represent or warrant that (a) the use of the service will be secure, timely, uninterrupted or error-free or operate in combination with any other hardware, software, system or data, (b) the service will meet your requirements or expectations, (c) any stored data will be accurate or reliable, (d) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your requirements or expectations, (e) errors or defects will be corrected, or (f) the service or the server(s) that make the service available are free of viruses or other harmful components. The service and all content is provided to you strictly on an “as is” basis. All conditions, representations and warranties, whether express, implied, statutory or otherwise, including, without limitation, any implied warranty of merchantability, fitness for a particular purpose, or non-infringement of third-party rights, are hereby disclaimed to the maximum extent permitted by applicable law by Bidstitch.
14. Limitation, Suspension or Termination
Bidstitch reserves the right to modify, suspend, or discontinue the Services (in whole or in part) at any time, with or without notice to you. Any future release, update, or other addition to functionality of the Services will be subject to these Terms, which may be updated from time to time. You agree that we will not be liable to you or to any third party for any modification, suspension, or discontinuation of the Services or any part thereof.
We may refuse service to anyone and may terminate or suspend your Account and your access to the Service in whole or in part at any time, for any reason, without notice unless required by law.
If we terminate, limit, or suspend your Account or access to our Service:
- You do not have a contractual or legal right to continue to use our Service. We will not be liable to you for the effect that any changes to the Service may have on you, including your income or your ability to generate revenue through the Service.
- You remain responsible for fees, shipping fees, chargebacks/funds reversals, returns or refunds requested and remain obligated to resolve any disputes with other users that are a result of purchases or sales of goods occurring prior to termination/suspension.
- We may require users to verify information including identity. Bidstitch may refuse a user access to or suspend a user from all or part of the Service until the completion of such verification.
- We may obtain reimbursement of any amounts owed by a Seller to Bidstitch by deducting from future payments owed to the Seller, reducing any balance from the Seller’s Bidstitch Account, charging any of the Seller’s Payment Instrument(s) on file, or seeking reimbursement from the Seller by any other lawful means, including by using third-party collections services. You authorize us to use any or all of these methods to seek reimbursement.
Any payment made in connection with the Service shall be made through Bidstitch using its third-party payment provider.
Purchases made with the Buyer’s Payment Method through the Service are subject to these Terms, the terms and conditions between the Buyer and the issuer of the Payment Method, and the terms and conditions between the Buyer and the payment provider or processor.
16. Buying and Selling
Our Service allows Sellers to publish items that are available for purchase in a variety of formats. When a Seller publishes an item through the Service, it is considered a “Listed Item”. When a user purchases a Listed Item through the Service, this is considered a “Transaction”. When participating in a Transaction, (a) Buyers and Sellers must comply with our Prohibited Items and Prohibited Conduct policies, (b) Buyers must not place orders without the intent to purchase the Listed Item(s) ordered, and (c) Buyers and Sellers agree that the Service may only be utilized for bona fide purchases of Listed Item(s).
- Authorized Transactions. Any payment made in connection with the Service shall be made through Bidstitch using our third-party payment provider – PayPal. As such, Sellers will be required to have a PayPal account. Buyers are not required to use a PayPal account during checkout and may instead complete Transactions with PayPal’s “guest services” payment processing service. If you are under 18 and do not have your own PayPal account and plan to use a parent’s or third party’s PayPal account, you undertake that you have express permission to use such parent’s or third party’s PayPal account in relation to each Transaction.
- Prohibited and Unprotected Transactions. You are not permitted to use our Services to discuss, organize, negotiate, or complete the sale or purchase of a Listed Item outside of our Services or with a payment method or processor not supported by Bidstitch. Doing so will result in a suspension or termination of your access to the Services. All purchases and sales of Listed Items made outside of Bidstitch violate these Terms and may not be covered by PayPal’s Buyer or Seller Protection (see below).
- PayPal Buyer Protection. If you purchased a Listed Item with an authorized PayPal account and did not receive the item that you ordered, or the item shows up significantly different from its description, you may qualify for PayPal’s Purchase Protection, and may be reimbursed for the full purchase price plus any original shipping costs, subject to terms and limitations. To determine whether your Transaction is eligible for PayPal protection please visit PayPal’s Safety and Security for Buyers.
- Guest Checkout is Ineligible for Buyer Protection. Transactions completed utilizing guest services will not be eligible for PayPal’s Purchase Protection for Buyers. As such, we highly recommend that all buyers complete Transactions using an authorized PayPal account.
- PayPal Seller Protection. PayPal’s Seller Protection Policy protects your online sales, minimizes claims and chargebacks, and helps prevent merchant fraud. To determine whether your Transaction is eligible for PayPal protection please visit PayPal’s Safety and Security for Sellers.
- Sales Contract. A Sales Contract for a product is formed with the Seller when the Buyer completes the steps for purchasing a Listed Item as prompted on the Service, but before payment is tendered by the Buyer. The Seller and the Buyer shall not assign to a third party, provide as security, or otherwise dispose of their rights and obligations arising under such sales contract.
- User Payment Authorization. By agreeing to these Terms, you authorize Bidstitch and or its payment processor to charge or debit your designated Payment Instrument, as applicable, when you make transactions or if you incur additional fees or amounts owed to Bidstitch for the Service(s).
- Bidstitch’s Role. We do not process payments for Listed Items and do not provide our own Buyer or Seller Protection. The processing of payments will be subject to the terms, conditions, and privacy policies of the applicable third-party payment processor.
- Disclaimer of Warranties for Purchases. Bidstitch does not manufacture, store, or inspect any of the items sold through our Service. The items in our marketplaces are listed and sold directly by independent sellers, so Bidstitch cannot and does not make any warranties about items’ quality, safety, or legality. Any legal claim related to an item you purchase must be brought directly against the Seller of the item. You release Bidstitch from any claims related to items sold through our Service, including for defective items, misrepresentations by Sellers, or items that caused physical injury.
- Fee Processing. Any fees in connection with the Service shall be paid through Bidstitch using our third-party payment provider.
- User Payment Authorization. By agreeing to these Terms, you authorize Bidstitch and or its payment processor to charge or debit your designated Payment Instrument, as applicable, when you make transactions or if you incur additional fees or amounts owed to Bidstitch for the Service(s).
- Fee Disclosure. All fees, taxes, and shipping costs associated with a Transaction are communicated to the Buyer at the time of checkout. Fees are provided to Sellers at the time of listing, but may change subject to shipping costs, tax, other variable rates or changes made by the Seller. Fees will be subtracted from the Seller’s earnings by the payment processor and will be detailed upon transaction completion. It is the Buyer’s responsibility to review the fees prior to accepting the final Sales Contract.
- Transaction Taxes. Items purchased by, and shipped to, Buyers in U.S. locations may be subject to applicable Transaction Taxes (“Tax(es)”). Taxes are not included in the listed price for any Listed Item. Taxes will be separately stated and added to the listed price during checkout, if applicable.
- Tax Amounts. Tax amounts may vary based on a few factors such as the nature of the item(s) purchased, the delivery location and the tax rate in effect at the time of the transaction. The tax rate is a combined rate based on the total state and local rates of the location where the item is delivered. Bidstitch will collect Taxes from Buyers on behalf of Sellers where required, specifically in those states that require marketplaces to collect Taxes on behalf of Sellers. The collected Tax amounts will be reported by Bidstitch and remitted to the appropriate taxing authority on behalf of Sellers. Sellers are responsible for any and all Taxes except to the extent Bidstitch chooses or is required to calculate, collect, report and remit such Transaction Taxes according to applicable law.
- Compliance With Tax and Reporting Laws. You acknowledge that you are solely responsible for all applicable tax laws and regulations in connection with your use of the Service, including but not limited to, sales taxes, import/export charges, customs, or other taxes. You hereby agree to comply with all applicable reporting and payment requirements arising from your use of the Services, including but not limited to, any responsibility to calculate, collect, or remit taxes.
- Tax Information Requests. Bidstitch may request certain information from you to comply with IRS reporting requirements, including but not limited to, completing W-9 taxpayer identification forms and submitting 1099-K sales reports when required to facilitate Bidstitch’s Tax obligations. You hereby agree to cooperate with such inquiries in good faith and to respond to requests within five days’ notice (see Section 24F).
19. Cancellation of a Transaction; Refunds
- Permitted Cancellation. Cancellation of a transaction is not permitted once the product has been ordered by a Buyer, except as required by applicable law or regulation. However, our third-party payment provider may allow cancellation of an order if the Buyer does not make a payment or does not pay on time; the Buyer receives an item that is not as described in the listing, is sent the wrong item, or is sent a damaged item; if the Seller does not ship within the expected time frame; or for other reasons the provider deems appropriate.
- Reporting Transactional Issues and Returns. If a Buyer receives an item that is damaged, not as described in the listing, or if they are sent the wrong item, the Buyer is encouraged to report the problem to PayPal within 3 (three) days of receipt, or within such longer time as required under applicable law. If PayPal allows, items may be returned to the Seller for a refund. Items that are hazardous or illegal shall not be returned.
- Refunds will be issued to the original Payment Method.
- Refund Ineligibility. Transactions where payment is sent outside of the Bidstitch platform are strictly prohibited by Bidstitch’s Terms and may not qualify for refunds. Listings or profiles soliciting such transactions are subject to removal without notice.
20. Transaction Records, Receipts and Customer Service
Receipts may not be issued to users for payments made or received through the Service, except as required by applicable law or regulation.
Records of your payment transactions through the Service will be available through our third-party payment provider. You are responsible for reviewing your payment transaction history to determine if there are any errors or unauthorized transactions.
It is your obligation to print or save a copy of your transaction history if desired.
21. Disputes Between Users
If there is a dispute between users, or between a user and a third party with regard to the Service, the matter shall be resolved by such users at their own cost in accordance with the Terms. Bidstitch may participate in the dispute at its discretion. After a transaction is processed, Bidstitch is the final arbiter of disputes between users and Bidstitch shall not bear any liability related to such disputes.
If you have a dispute with one or more users, you release Bidstitch and its officers, directors, employees, consultants, affiliates, subsidiaries, and agents from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY.”
22. Indemnification; Limitation of Liability
Indemnification. If Bidstitch is sued as a result of an action you took using our Service, you agree to fully indemnify Bidstitch and assist in defending Bidstitch to the best of your ability. You must assist Bidstitch in defending any matter in which you were involved by providing information related to the experience. You must hold us harmless from any legal claim or demand, including reasonable attorney’s fees, that may arise from your actions, your use or misuse of our Service, your breach of the Terms, or your Account’s infringement of someone else’s
You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify Bidstitch from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with: (i) your access to, use of, or alleged use of, the Service; (ii) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation; (iii) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or (iv) any dispute or issue between you and any third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
Disclaimer of Warranties. THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED “AS IS” AND ON AN “AS AVAILABLE” BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. BIDSTITCH DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT.
SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
Limitation of Liability. IN NO EVENT WILL BIDSTITCH BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT BIDSTITCH HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE.
EXCEPT AS EXPRESSLY PROVIDED IN THE FOLLOWING PARAGRAPH, YOU AGREE THAT THE AGGREGATE LIABILITY OF BIDSTITCH TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT YOU HAVE PAID TO BIDSTITCH FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (II) $100.
IN NO EVENT SHALL BIDSTITCH BE LIABLE FOR DAMAGES FOR DELAY, NONDELIVERY, NONPAYMENT OR UNDERPAYMENT OF A PAYMENT TRANSACTION, WHETHER CAUSED BY AN ACT OR OMISSION OF BIDSTITCH OR OTHERWISE, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW OR REGULATION.
BIDSTITCH SHALL HAVE NO LIABILITY FOR SUSPENDING OR TERMINATING YOUR ACCOUNT, RESTRICTING ACCESS TO YOUR ACCOUNT OR BALANCES IN YOUR ACCOUNT, OR SUSPENDING OR TERMINATING YOUR ACCESS TO THE SERVICE.
BIDSTITCH SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT PURCHASES OR SALES, THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS, BANK DIRECT DEPOSIT TRANSFERS, OR THE SERVICE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Force Majeure. Bidstitch shall have no liability for failure or delay resulting from any condition beyond its reasonable control, including but not limited to governmental action or acts of terrorism; plagues or pandemics; acts of nature including but not limited to earthquakes, fire, flood, tornados, hurricanes; labor conditions; and power failures and or internet disturbances.
23. Legal Disputes and Use of Arbitration
You and Bidstitch each agree that any and all disputes or claims that have arisen or may arise between you and Bidstitch relating in any way to or arising out of this or previous versions of these Terms, your use of or access to the Service, any goods sold, offered, or purchased through the Service, or any payments processed for goods sold, offered or purchased through the Service, SHALL BE RESOLVED EXCLUSIVELY THROUGH FINAL AND BINDING ARBITRATION, rather than through other legal proceedings in court, except that you may assert a claim in small claims court, if it meets the criteria for such. Arbitration is more informal than a lawsuit filed in court. It uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to limited review by courts. You and Bidstitch agree that the Federal Arbitration Act governs the interpretation and enforcement of this Article.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND BIDSTITCH AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND BIDSTITCH AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING.
Arbitration Procedures. The assigned independent 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 interpretation, applicability, enforceability or formation of this or any other applicable Terms or Policies, any part thereof, including, but not limited to, any claim that all or any part of these Terms are void or voidable.
All arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable). The AAA’s rules are available at http://www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, you must also send a copy of the completed form to Bidstitch at the following address in order to initiate arbitration proceedings: Bidstitch. Attn: Lundon Attisha; 5742 Meadows Del Mar, San Diego, CA 92130-4868.
The arbitrator will decide the substance of all claims in accordance with the laws of the State of California, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users but is bound by rulings in prior arbitrations involving the same Bidstitch user to the extent required by applicable law or regulation. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules.
IF YOU ARE A NEW USER, YOU CAN CHOOSE TO REJECT THIS ARTICLE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE TERMS FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO 5742 MEADOWS DEL MAR, SAN DIEGO, CA 92130-4868.
- The Terms, including the Policies and other documents incorporated by reference herein, supersede any other agreement between you and Bidstitch regarding the Service.
- If any part of the Terms is found to be unenforceable, that part will be limited to the minimum extent necessary so that the Terms will otherwise remain in full force and effect.
- Non-Waiver. Our failure to enforce any part of the Terms is not a waiver of our right to later enforce that or any other part of the Terms.
- The Terms will remain in effect even after your access to the Service is terminated, or your use of the Service ends.
- You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms, or any of our rights and obligations under the Terms, at any time without consent.
- If Bidstitch determines that there is a need to notify or contact a user, it will do so by sending a text message, email, or letter to the email address or mailing address provided by the user. Alternatively, the notice may be displayed on the App or the website, or by other reasonable means. Bidstitch shall not be liable for any damages incurred due to the fact that Bidstitch’s notice or communication was not received or was delayed. You may print or PDF our policies. If you are a California resident, you may also have these Terms sent to you electronically by emailing us a request for these Terms.
- Complaint Notices. If you are a California resident, California Civil Code Section 1789.3 allows you to contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210, in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
- Governing Law and Jurisdiction. These Terms shall be governed and construed under the laws of California. Any dispute that arises between you and Bidstitch that may not be subject to arbitration and shall be submitted to the exclusive jurisdiction of the state and federal courts in San Diego, California.