TERMS OF SERVICE
Last Updated: February 25, 2022
OneOf, Inc. (“Company” or “OneOf”) owns and operates the Site (as defined below) which makes available a digital collectibles marketplace (“Marketplace”) where registered users can acquire, purchase and/or collect (collectively, “Acquire“) and/or sell, auction swap, donate, gift, transfer and/or otherwise dispose of (collectively, “Transfer“) unique non-fungible tokens which are (a) minted, produced, created and initially given away, sold or auctioned (as the case may be) by Company (the “Tokens“), and (b) which are implemented entirely for authentication on the blockchain using smart contracts (such blockchain selected by Company in its discretion).
Each Token made available on the Site is associated with (a) one or more unique authenticated digital copies of distinct digital assets (e.g., a unique authenticated digital copy of a sound recording featuring the performance of a popular music recording artist) (the “Digital Assets“) and/or (b) access to special or curated experiences (the “Experiential Access Rights“), the exact Digital Assets and/or Experiential Access Rights which are associated with a particular Token are more fully described in the sale or auction (as the case may be) materials respecting each such Token in each case (the “Token Descriptions“). For avoidance of doubt, Tokens are not intended to constitute value that is equivalent to or can substitute for currency or money.
Company has made this Site (including the Marketplace) available to registered users for general browsing free of charge.
These Terms of Service apply to (a) the website located at the URL about.oneof.com and those other websites owned and/or controlled by OneOf, Inc. (collectively, the “Company Websites”), (b) those digital properties (including, without limitation, apps) that provide registered users access to the Company Websites (including the Marketplace) (the “Company Digital Properties“), (c) any successor Company Websites or Company Digital Properties and all other web pages interconnected with, and/or forming a part of, such Company Websites and Company Digital Properties, including, without limitation, the home page and all other sub-pages under the same top-level domain name, and (d) all content and all services available thereon, including, without limitation, the Marketplace (collectively, the “Site”).
Notice regarding arbitration and dispute resolution:
You and the Company AGREE THAT Any future DISPUTES BETWEEN YOU AND the company WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, unless you actively opt-out in accordance with Section 11(f), below. Unless you actively opt-out of arbitration, YOU ARE WAIVING YOUR RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS ACTION OR REPRESENTATIVE PROCEEDING, and you will only be permitted to seek relief (including monetary, injunctive, and/or declaratory relief) on an individual basis. IF YOU WISH TO OPT-OUT OF ARBITRATION, FOLLOW THE OPT-OUT PROCEDURE SPECIFIED IN Section 11(f), BELOW.
(a) use the Site (including the Marketplace) for any unauthorized purpose, including accessing and/or collecting usernames and/or email addresses of other users (registered or otherwise) by electronic or other means, including for the purposes of sending unsolicited email or other electronic communications, or engaging in unauthorized framing of, or linking to, the Site (including the Marketplace) without the Company’s express written consent;
(b) interfere with, disrupt, disable, damage, or create an undue burden on or impair the functionality of the Site (including the Marketplace) or the equipment, networks or services connected to the Site (including the Marketplace), including without limitation, hacking into the Site (including the Marketplace), or using the Site (including, but not limited to, any community or other on-line forums made available via the Site) to send unsolicited or commercial emails or bulletins, prohibited comments or other prohibited or illegal communications;
(c.) impersonate any other person or entity, sell or let others use your user credentials or account, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity;
(d) decompile, disassemble, modify, translate, adapt, reverse engineer, or create derivative works from or based on the Site (including the Marketplace) or any Digital Assets, or any portion thereof;
(e) circumvent, disable or otherwise interfere with (i) security related features of the Site (including the Marketplace), (ii) features that prevent or restrict use or copying of any Marketplace Assets (as defined in Section 5, below) or (iii) features that enforce limitations on use of the Site (including Marketplace) or the Marketplace Assets;
(f) engage in any activities regarded as competitive with the Site (including the Marketplace) or interfere with any other party’s use of the Site (including the Marketplace);
(g) attempt to gain access to any portion of the Site (including the Marketplace) other than those for which your access is authorized;
(h) use the Site (including the Marketplace) in order to disguise the origin or nature of illicit proceeds;
(i) utilize the Site (including the Marketplace) for the benefit of a Prohibited Person (as defined below).
(a) Ownership of Site and Marketplace Assets. All legal right, title, and interest in and/or to this Site (including the Marketplace), its content, components, elements, the compilation and collection thereof, and all intellectual property rights associated with any of the foregoing (collectively, the “Marketplace Assets”), resides with the Company or its licensors, as applicable, unless expressly provided otherwise in the Terms. As used in the Terms, the Marketplace Assets do not include the Tokens, the Digital Assets or the Experiential Access Rights, and the rights relating to the Tokens, the Digital Assets and the Experiential Access Rights are described below in Section 5(b), below. All Marketplace Assets are the copyrighted property of the Company or its licensors, and all trademarks, service marks, and trade names associated with or used in the Marketplace Assets are proprietary to the Company or its licensors, unless expressly provided otherwise in the Terms. Use of this Site (including the Marketplace) does not grant ownership of, or any other rights, with respect to any content, code, data, or other Marketplace Assets. You understand and agree that you do not have the right to reproduce, distribute, or otherwise commercialize any element of the Marketplace Assets without prior written consent of the Company, solely except with respect to the Token Descriptions and solely as is expressly permitted in the Terms. You further agree to observe applicable intellectual property and other laws and to refrain from using Marketplace Assets in any manner that infringes or violates the rights of any person or entity. You may not use, reproduce, modify, transmit, display, publish, sell, create derivative works, or distribute Marketplace Assets by any means for commercial profit or gain.
(b) Ownership of Tokens. An “Acquired Token” means a Token that you Own; and “Own” means any Token that you acquired via a valid Acquisition or Transfer on the Marketplace or via a transfer made through other means (a “Third Party Transaction”). You have the right to Transfer your Acquired Tokens at your discretion via the Marketplace or a Third Party Transaction.
i. Digital Assets. For purposes hereof, “Digital Assets” means the aggregate of NFT Media File, Preview Content, and Vault Content, and generally excludes the underlying copyright of such work or files.
ii. NFT Media File on Decentralized Storage. Subject to the terms and conditions of the Terms, each holder of an Acquired Token is granted a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license, solely during that period of time during which such holder Owns an Acquired Token, and to the extent applicable, to obtain permanent downloads of, stream, and/or view the NFT Media File specifically associated with each such Acquired Token, stored on IPFS or other decentralized storage solutions, solely in each case only for individual, personal and noncommercial use(s).
iii. Preview Content. Subject to the terms and conditions of the Terms, each holder of an Acquired Token is also granted a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license, solely during that period of time during which such holder Owns an Acquired Token, to use and display that Preview Content, which may be part of the NFT Media File specifically associated with such holder’s Acquired Token, stored on IPFS or other decentralized storage solutions, solely for individual, personal, noncommercial use(s) in order to (i) promote, in any and all media, a holder’s planned Transfer of the Acquired Token, and/or (ii) promote and showcase, in any and all media, such holder’s ownership of the applicable Acquired Token. For purposes hereof, “Preview Content” means, on a Token-by-Token basis, (i) audio-only or audio-visual promotional clips of less than ninety seconds (:90) in length each which may be derived from Vault Content associated with such Token and/or (ii) promotional descriptions of any Experiential Access Rights applicable to such Token.
iv. Vault Content. Subject to the terms and conditions of the Terms, each holder of an Acquired Token is also granted a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license, solely during that period of time during which such holder Owns an Acquired Token, to use and display certain Vault Content stored on Company centralized server(s), which may be full length or extended length versions of the NFT Media File or Preview Content, specifically associated with such holder’s Acquired Token, solely for individual, personal, noncommercial use(s). Holder may NOT promote, showcase, display, stream, share, list or exhibit Vault Content in any manner that may be deemed public without the express written permission of the underlying copyright owners of the Vault Content. Vault Content may only be accessed on Company Digital Properties, and access may require further verification from such holder through depositing Acquired Token into Company’s custodial wallet for such holder. For purposes hereof, “Vault Content” means, on a Token-by-Token basis, (i) full-length or extended-length audio-only or audio-visual files associated with such Token, subject to additional rules as imposed by the underlying copyright owners of the Vault Content and/or (ii) detailed rules governing any Experiential Access Rights applicable to such Token.
v. Token Descriptions. Subject to the terms and conditions of the Terms, each holder of an Acquired Token is also granted a worldwide, non-exclusive, non-transferable, non-sublicensable, royalty-free right and license, solely during that period of time during which such holder Owns an Acquired Token, to use and display the Token Description specifically associated with such holder’s Acquired Token solely for individual, personal, noncommercial use(s) in order to (i) promote, in any and all media, a holder’s planned Transfer of the Acquired Token, and/or (ii) promote and showcase, in any and all media, such holder’s ownership of the applicable Acquired Token.
(d) License Restrictions. You agree that you may not, nor permit any third party at any time to do or attempt to do any of the foregoing without Company’s express prior written consent in each case: (i) modify, edit or repurpose the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token in any way; (ii) commercialize the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token, including using such Digital Assets, Preview Content, Vault Content or Token Descriptions to advertise, market, or sell any third party product or service; (iii) use the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token in connection with images, videos, or other forms of media that depict hatred, intolerance, violence, cruelty, or anything else that could reasonably be found to constitute hate speech or otherwise infringe upon the rights of others; (iv) use the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token in movies, videos, or any other forms of media, except solely for your own personal, non-commercial use; (v) sell, distribute for commercial gain (including, without limitation, giving away in the hopes of eventual commercial gain), or otherwise commercialize merchandise that includes, contains, or consists of the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token; (vi) attempt to trademark, copyright, or otherwise acquire additional intellectual property rights in or to the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token; or (vii) otherwise utilize the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token not specifically permitted herein. You further agree that you must (1) comply with all applicable laws in your use of the Digital Copies, Preview Content or Token Descriptions; (2) except as is expressly provided herein, you are not granted (x) any commercial, sale, resale, reproduction, distribution or promotional use rights respecting the Digital Copies, Preview Content or Token Descriptions, or (y) any rights for uses that require a synchronization or public performance license with respect to any musical compositions embodied in any Digital Copies, Preview Content or Token Descriptions. You acknowledge and agree that Company (or, as applicable, its licensors (including, without limitation, content owners and providers)) owns all legal right, title and interest in and to the intellectual property embodied in the Digital Assets, Preview Content and/ or Token Descriptions associated with your Acquired Token, and that your rights are limited to utilizing the Digital Assets, Preview Content, Vault Content or Token Descriptions as is specifically set forth herein. The rights that you have in and to the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token are limited to those described in the Terms. Company (or, as applicable, its licensors) reserves all rights in and to the Digital Assets, Preview Content, Vault Content or Token Descriptions associated with your Acquired Token not expressly granted to you in the Terms. Any unauthorized reproduction or distribution of Digital Copies, Preview Content or Token Descriptions is expressly prohibited and may violate applicable law and you are not permitted to infringe the rights of copyright owner(s) of the sound recordings and music compositions embodied in Digital Assets, Preview Content, Vault Content or Token Descriptions. Holders of Acquired Tokens agree to comply with additional restrictions on their use of Tokens as reasonably requested by the Company from time to time and at any time.
(a) Accounts. In order to be eligible to conduct transactions on the Marketplace, users must register and create a personal account associated with the Marketplace (“Marketplace Account”). Registration and creation of a Marketplace Account are both accomplished directly on the Site. You must provide accurate and complete registration information when you create a Marketplace Account. By creating a Marketplace Account, you agree to provide accurate, current and complete account information about yourself, maintain and promptly update your account information as necessary and keep and maintain the security of your account information. Company reserves the right to reclaim usernames without liability to you. You are responsible for the security of the user name and password associated with your Marketplace Account. Once signed-in with a Marketplace Account, registered users will have full access to Marketplace content and features and will be able to view all available Marketplace Token offerings. You accept all liability and risks regarding any unauthorized access to your Marketplace Account.
(c.) Token Transfers. Tokens are initially held in the Company custodial wallet. Company provides enterprise grade custodial services for your Acquired Token for free. You can Transfer any Acquired Token to other registered users through the Marketplace. Initial sales of Tokens will occur either pursuant to a stated sales price or via a bidding process which may take place on the Marketplace [and/or other marketplaces as approved by the Company. Additional Marketplace auction bidding rules and regulations (the “Bidding Rules”) may be disclosed in association with specific Tokens auctions. You may not list any non-fungible token that was not created on the Site by Company for sale in the Marketplace. Any valid payment method for your Marketplace Account can be utilized for purposes of acquiring Tokens, including through the auction bidding process. Bids will be valued on a USD as-converted basis where non-USD denominated assets are converted to their USD value using the market conversion rate at the time the bid is placed. Upon expiration of the time allotted for the bidding process, the highest bid will be selected and entered as part of a binding purchase of the applicable Token. These purchase transactions will be processed for execution and recorded on the Company internal databases. Subsequently to a purchase and subject to an applicable holding period, typically 30 days or less, based on Company’s then-current chargeback and risk-mitigation policies, which may be updated from time to time, and further subject to your compliance with any necessary KYC/AML requirements, settlement and payouts of sales proceeds will be available to you in USD fiat currency provided that you have linked a valid bank account to your Marketplace Account. You may Transfer your Acquired Token to a self-custodied crypto wallet on the applicable blockchain through an export function from the Marketplace. You may use an import function to redeposit your Acquired Token at a later date, in order to take advantage of enterprise grade custodial services provided by the Company for free.
(d) Appointment as Agent for Transfer on the Marketplace of Acquired Tokens. In the event that you effect a Transfer via a sale or auction of any Acquired Token to another registered user through the Marketplace, to the extent applicable you hereby appoint Company as your limited payments agent for the sole purpose of receiving, holding and settling to you payments made for your Acquired Tokens through the Marketplace. Company will settle to you payments that are actually received by Company as good funds, less any amounts owed to Company including fees and secondary resale royalty collected by Company on behalf of the relevant IP holders and other obligations, and subject to these terms. You agrees that any payment received by Company on your behalf in connection with a Transfer on the Marketplace of an Acquired Token shall be deemed a payment to you, and satisfies the obligation of the user that Acquires the Acquired Token to make payment to you, regardless of whether Company actually settles such payment to you. If Company does not settle any such payments as described in this section for a binding purchase of the applicable Acquired Token, you will have recourse only against Company and not the user that Acquires the Acquired Token, as payment is deemed made by that user to you upon receipt of good funds and confirmation of the transaction by Company.
(e) Taxes. In no event shall the Company be responsible for determining the tax implications of your transactions on the Marketplace. You are solely responsible for determining what, if any, taxes apply to your Marketplace Token transactions.
(f) Prohibited Persons. No Prohibited Person may register and create a Marketplace Account or otherwise make use of the Site. “Prohibited Person” shall mean: (i) any resident, the government or a government official of Cuba, Democratic People’s Republic of Korea (North Korea), Iran, Syria or Crimea (a region of Ukraine annexed by the Russian Federation); (ii) any person or entity controlled by a person listed on the “Specially Designated Nationals and Blocked Persons” (“SDN”) List and the Non-SDN List, including the Sectoral Sanctions Identifications List, published by OFAC; the Section 311 Special Measures for Jurisdictions, Financial Institutions, or International Transactions of Primary Money Laundering Concern published by FinCEN; and, any other foreign terrorist organization or other sanctioned, restricted, or debarred party; or, (iii) any person that Company, it is sole discretion, deems to have violated any of the Terms.
(a) Company’s Right to Manage the Marketplace. Company reserves the right, but does not undertake the obligation to: (i) monitor or review the Marketplace for violations of the Terms and for compliance with Company’s policies; (ii) report to law enforcement authorities and/or take legal action against anyone who violates the Terms; (iii) manage the Marketplace in a manner designed to protect Company’s and third parties’ rights and property or to facilitate the proper functioning of the Marketplace; (iv) screen Company’s users (registered or otherwise), or attempt to verify the statements of Company’s users (registered or otherwise); (v) monitor disputes between you and other users (registered or otherwise) or to terminate or block you and other users (registered or otherwise) for violating the Terms; and/or (vi) refuse, restrict access to or the availability of, or remove, delete, edit or disable (to the extent technologically feasible) any Marketplace Assets or any portion thereof.
(b) Company’s Right to Terminate Use. WITHOUT LIMITING ANY OTHER PROVISION OF the TERMS, COMPANY RESERVEs THE RIGHT TO, IN Company’s SOLE DISCRETION, AND WITHOUT NOTICE OR LIABILITY, DENY ACCESS TO AND USE OF the site (including the Marketplace) TO ANY PERSON FOR ANY REASON OR FOR NO REASON AT ALL, INCLUDING WITHOUT LIMITATION, FOR BREACH OF ANY REPRESENTATION, WARRANTY OR COVENANT CONTAINED IN the Terms, OR violation OF ANY APPLICABLE LAW OR REGULATION.
You assume any and all risk arising out of your use of the Site (including the Marketplace). Those risks may include, but are not limited to, the following:
(a) Token Market Risk. Market prices for Tokens can be volatile and highly unpredictable. Whether the future market price for a Token will move up or down or even sustain a market value is a speculation and unknowable. The Site makes no representations or warranties about the future market price of any Token or whether a Token will always be tradable on the Marketplace. In agreeing to the Terms, and in accessing the Site, you disclaim any reliance on Company regarding the future market price or tradability of any Token. Notwithstanding anything contained in any of the Terms to the contrary, any Token is subject to delisting and/or takedown, without or without prior notice, in the sole discretion of the Site.
(b) Liquidity Risk. Markets for Tokens may be illiquid. There is no guarantee that the market for any Token will be active and liquid or permit you to liquidate Tokens when desired or at favorable prices.
(c.) Legal Risk. Although Tokens are intended to be collectables, not investments, the legality of owning Tokens, buying, selling or trading of them may not be clear and may vary under the laws of different jurisdictions throughout the world. The Company is not registered as a broker-dealer or an investment adviser in the United States or anywhere else in the world. Whether and on what basis a Token may constitute property, an asset, a security or a right varies from one jurisdiction to another. You are responsible for knowing and understanding the laws applicable to you or your property, rights or assets and taxes on the Tokens you trade.
(d) Risks of Prepayment. The fiat and cryptocurrency prepaid into your Marketplace Account for prepayment purposes in order to be eligible to bid on certain Marketplace auctions will be considered sales proceeds of the Company and its affiliates at the time of prepayment. The Company and its affiliates are permitted to use any fiat and cryptocurrency received for their own benefit, investment, and use while accounting for them in your Account for purpose of bidding or providing full refund to you in the original fiat or cryptocurrency used, less any 3rd party processing fees, if you do not win a bid. Prepayment of fiat or cryptocurrency exposes your fiat and cryptocurrency to risks of total loss from, among others things, security breaches from cyber-attacks that hack and steal fiat or cryptocurrency, electronic or technological failures that impede or prevent market access and market performance, and any insolvency, bankruptcy, or material financial losses of or incurred by the Company or any of its affiliates.
(e) Risk of Account Freeze. The Company may freeze your Marketplace Account, including any Tokens, in the event that you are believed to be engaged in suspicious activity or to be in breach of any of the Terms. If your Marketplace Account is frozen, you will not be able to make Acquisitions or Transfers to or from your Account. This may result in the closure of your open orders.
(f) Market Default Risk. The Company operates and administers the Site (including the Marketplace) and acts as Agent for Transfer on the Marketplace of Acquired Tokens. There is always a risk that one or more market participants will renege, default, or otherwise fail to honor their financial obligations or will be unwilling or unable to abide by the terms of their agreements.
(g) Conflicts of Interest. The Company charges fees for trading and therefore benefits from secondary trading activity regardless of whether the trading is profitable to you. The Company has no duty to act on your behalf and undertakes no responsibility to do so.
(h) Regulatory Framework. The current regulatory framework governing digital tokens, crypto-currencies and/or blockchain technologies is nascent and uncertain, and new regulations or policies may materially adversely affect the potential value of your Acquired Token(s).
(i) Total Risk of Loss. You are able to bear a total loss in the value of your Acquired Tokens.
(a) Warranty Disclaimers. the Site (including the Marketplace) is provided “as is” and “as available” without warranties of any kind, whether express or implied. Your access and use of the site (including the Marketplace) is at your sole risk. The Company, its parent, its subsidiaries, licensors, officers, directors, suppliers and any other affiliates thereto (“Affiliated Parties”) make no warranties, express or implied, representations or endorsements whatsoever in regard to any products, information or services provided through the site (including the Marketplace). The Company and its Affiliated Parties do not warrant or assume any legal liability or responsibility for the accuracy, completeness, or usefulness of any information contained in or derived from the site (including the Marketplace), nor for the quality, merchantability, or capability of the site (INCLUDING the Marketplace) or any part thereof. While the Company undertakes commercially reasonable efforts to provide a Marketplace which operates smoothly, efficiently, reliably, and securely without error, the Company makes no representation or warranty that the site (including the Marketplace) will function as intended or described. ANY Content accessed through the Site may contain material potentially harmful to your computer or device, which may result in data loss or damage. The site (INCLUDING the Marketplace) may be unavailable for periods of time due to maintenance, repair, troubleshooting, or other unforeseen reasons. Marketplace transactions may fail to process or process incorrectly due to technical blockchain issues with the Tezos Network that ultimately fall outside the Company’s control. The Company disclaims liability and responsibility with respect to the adverse functioning of the Marketplace.
(b) Limitations of Liability. Your use of the Site (including the Marketplace) is entirely at your own risk. The Company and its Affiliated Parties will not be responsible for any damages, losses, or injury occurring in connection with your use of the Site (including the Marketplace), the Marketplace Assets, the tokens, the digital assets, the token descriptions, the Experiential Access rights, or the services provided through the site (INCLUDING the Marketplace) or your reliance on any information with respect thereto provided by the Site. Except as prohibited by applicable law, IN NO EVENT SHALL the Company or its affiliated parties BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES, INCLUDING LOST PROFIT DAMAGES ARISING FROM YOUR USE OF the site (INCLUDING the Marketplace), Marketplace Assets, the tokens, the digital assets, the token descriptions, the Experiential Access rights, OR ANY OTHER CONTENT provided through the Site. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED IN The Terms, except as prohibited by applicable law, company’s LIABILITY TO YOU IN RESPECT OF ANY LOSS OR DAMAGE SUFFERED BY YOU AND ARISING OUT OF OR IN CONNECTION WITH The Terms, the site (including the Marketplace), the marketplace assets, the tokens, the token descriptions, the digital assets, the Experiential Access rights, or the Services provided through the site (including the Marketplace), WHETHER IN CONTRACT, TORT OR FOR BREACH OF STATUTORY DUTY OR IN ANY OTHER WAY SHALL NOT EXCEED one hundred U.S. Dollars ($100).
(c.) Exceptions to Disclaimers and Liability Limitations. SOME STATES OR JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF CERTAIN WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF YOU RESIDE IN ONE OF THESE STATES OR JURISDICTIONS, THE LIMITATIONS OR EXCLUSIONS in Sections 9(a) and 9(b) MAY NOT APPLY TO YOU.
Please Read This Following Clause Carefully – It May Significantly Affect Your Legal Rights, Including Your Right to File a Lawsuit in Court.
(a) Initial Dispute Resolution. The Company is available by email at [email protected] to address any concerns you may have regarding your use of the Site (including the Marketplace). Most concerns may be quickly resolved in this manner. Each of you and the Company agree to use reasonable efforts to settle any dispute, claim, question, or disagreement directly through consultation and good faith negotiations which shall be a precondition to either party initiating a lawsuit or arbitration.
(b) Agreement to Binding Arbitration. If Company and you do not reach an agreed upon solution within a period of thirty (30) days from the time informal dispute resolution is pursued pursuant to Section 11(a) above, then either you or Company may initiate binding arbitration. All claims arising out of or relating to the Terms (including their formation, performance and breach), the parties’ relationship with each other and/or your use of the Site (including the Marketplace) shall be finally and exclusively settled by binding arbitration administered by JAMS, in accordance with the JAMS Streamlined Arbitration Rules and Procedures, excluding any rules or procedures governing or permitting class actions. Each party will have the right to use legal counsel in connection with arbitration at its own expense. The parties shall select a single neutral arbitrator in accordance with the JAMS Streamlined Arbitration Rules and Procedures. The arbitrator, and not any federal, state or local court or agency, shall have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability or formation of the Terms, including, but not limited to, any claim that all or any part of the Terms is void or voidable. You or Company may elect to appear at the arbitration by phone or, if you and Company both agree, to conduct it online, in lieu of appearing live. The arbitrator shall be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award shall be in writing and provide a statement of the essential findings and conclusions, shall be binding on the parties and may be entered as a judgment in any court of competent jurisdiction. The interpretation and enforcement of the Terms shall be subject to the Federal Arbitration Act.
The JAMS rules governing the arbitration may be accessed at https://www.jamsadr.com/adr-rules-procedures. If you initiate arbitration, to the extent the filing fee for the arbitration exceeds Two Hundred and Fifty U.S. Dollars ($250.00), the Company will pay the additional cost. If the Company is required to pay the additional cost of the filing fees, you should submit a request for payment of fees to JAMS along with your form for initiating the arbitration, and the Company will make arrangements to pay all necessary fees directly to JAMS. The Company will also be responsible for paying all other arbitration costs arising in connection with the arbitration, other than costs incurred by you for legal counsel, travel and other out-of-pocket costs and expenses not constituting fees or amounts payable to JAMS. You will not be required to pay fees and costs incurred by the Company if you do not prevail in arbitration. The Company will also pay JAMS to reimburse you for any portion of the $250 filing fee that is more than what you would otherwise have to pay to file suit in a court of law.
The parties understand that, absent this mandatory provision, they would have the right to sue in court and have a jury trial. They further understand that the right to discovery may be more limited in arbitration than in court.
(c.) Class Action and Class Arbitration Waiver. You and the Company each further agree that any arbitration shall be conducted in Company’s respective individual capacities only and not as a class action or other representative action, and you and the Company each expressly waive Company’s respective right to file a class action or seek relief on a class basis. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration cannot proceed on a class basis, then the arbitration provision set forth above in Section 11(b) shall be deemed null and void in its entirety and the parties shall be deemed to have not agreed to arbitrate disputes.
(d) Exception – Small Claims Court Claims. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
(e) Exception – California Private Attorneys General Act (PAGA) Action. Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a court of law for a claim arising under California’s Private Attorneys General Act.
(f) 30 Day Right to Opt-Out. You have the right to opt-out and not be bound by the arbitration and class action waiver provisions set forth in Sections 11(b) and 11 (c ) by sending written notice of your decision to opt-out by emailing the Company at [email protected]. The notice must be sent within thirty (30) days of registering to use the Site (including the Marketplace), otherwise you shall be bound to arbitrate disputes in accordance with the terms of those sections. If you opt-out of these arbitration provisions, the Company also will not be bound by them.
(g) Exclusive Venue for Litigation. To the extent that the arbitration provisions set forth in Section 11(b) do not apply, of if you want to pursue any legal remedies to which you would otherwise be entitled but that are not available to you pursuant to this Section 11, the parties agree that any litigation between them (including, but not limited to small claims court cases) shall be filed exclusively in state or federal courts located in Miami-Dade, Florida (except for small claims court actions which may be brought in the county where you reside). The parties expressly consent to exclusive jurisdiction in Miami-Dade, Florida for any litigation other than small claims court actions. In the event of litigation relating to the Terms or the Marketplace, the parties agree to waive, to the maximum extent permitted by law, any right to a jury trial.