PLEASE NOTE THAT YOUR USE OF AND ACCESS TO OUR SERVICES (DEFINED BELOW) ARE SUBJECT TO THE FOLLOWING TERMS; IF YOU DO NOT AGREE TO ALL OF THE FOLLOWING, YOU MAY NOT USE OR ACCESS THE SERVICES IN ANY MANNER.
Term of Use
1.1 Passfeed Inc. and its corporate affiliates: (i) operate online Marketplaces, including Passfeed, which includes services such as, by, or from PayLater and Passfeed Financial. (ii) develop and provide other services and products. In this policy we refer to Passfeed and its corporate affiliates as "Passfeed" or "we" or "us." We refer to end users as "you" and the entities that list and sell items as "Merchant(s).
1.2 The Passfeed entity you contract with may change as we expand our business.
1.3 The Marketplace Apps allows Passfeed and its sellers ("Merchants") to set up stores that list and sell items to end users. That means that when you purchase an item on or through Passfeed, you are making a purchase from the Merchant who listed the item and the Merchant is responsible for fulfilling your order.
2.1 Passfeed operates marketplaces that allow Merchants and users to share information and complete purchases. Merchants are responsible for their items listed, their item prices, and fulfillment of your order. Merchants may be located in your country or region or elsewhere. If they are located elsewhere, this may have an effect on taxes, customs or the applicability of consumer protection rules
2.2 We may assist with payment processing, returns, refunds, and other customer service for our Merchants. Passfeed does not guarantee (i) the existence, quality, safety, suitability, or legality of Merchant items or item listings; (ii) the truth or accuracy of any item listing, description or other content provided by Merchants; (iii) the truth or accuracy of ratings, reviews, or other user submissions; or (iv) the performance or conduct of Merchants or other third parties. Except if we clearly indicate otherwise, Please read labels, warnings and directions provided with a purchased item before using it and consider doing your own research prior to making a purchase.
2.3 You should make whatever investigation you feel necessary or appropriate before making a purchase from any Merchant.
3. User Requirements
3.1 In order to use the Services, you must be 13 years old or older (or the age of consent set by applicable law) and be of legal age to form a binding contract (or if not, you've received your parent's or guardian's permission to use the Services and gotten your parent or guardian to agree to these Terms on your behalf). Products for children's use may be sold by Merchants; however, these Products are intended for sale to adults. Certain products may be intended for individuals of certain ages or "mature audiences" only. By ordering such items, you certify that you are old enough to view, use or own such mature items. Passfeed has no liability to you for third party content that you find to be offensive, indecent, or objectionable.
3.2 You are not permitted to use the Services if: (a) You cannot enter into a binding contract with Passfeed; (b) You are located in a country embargoed by the United States or if you are on a U.S. Agency list of prohibited persons or entities, such as the Treasury Department's list of Specially Designated Nationals; or (c) you have previously been banned from using any of our Services, unless we have reversed that ban, in our sole discretion.
3.3 You may be required to create an account, and select a password and username. You promise to provide us with accurate, complete, and updated registration information about yourself. You may not select as your username a name that you don't have the right to use, or another person's name with the intent to impersonate that person. You may not transfer your account to anyone else without our prior written permission.
3.4 The Marketplace Apps may allow you to sign in using a social network account and its credentials. The settings on the Marketplace App and the social network may allow certain activity to be published.
4. Rules and Restrictions
4.1 You agree to use the Services for your own internal and personal use, and not on behalf of or for the benefit of any third party, and only in a manner that complies with these Terms, applicable marketplace policies and all laws that apply to you. If your use of the Services (including a purchase of any items on the Services) is prohibited by any applicable laws, then you aren't authorized to use the Services. We are not responsible if you use the Services in a way that breaks the law.
4.2 You will not share your account or password with anyone, and you must protect the security of your account and your password. You will notify Passfeed immediately of any unauthorized use of your password or any other breach of the security of your account. You're responsible for any activity associated with your account.
4.3 You must not create multiple accounts and you must not let others use your account.
4.5 When accessing or using the Services, you agree to:
4.6 When accessing or using the Services, you agree not to:
In addition to any other remedies available to us, including without limitation monetary and nonmonetary damages, a violation of any of the foregoing is grounds for: adjustment of prices/amounts due; cancellation of one or more purchases; suspension or termination of your right to access or use the Services.
5.2 Your purchases are fulfilled by Merchants. In order to fulfill your purchases, Merchants need information about the purchaser, such as mailing address. Merchants may be located in your country or region or elsewhere. You acknowledge that when you make a purchase, Passfeed treats it as a request (from you) to share your information, including name, street address and phone number, with the relevant Merchant to, for example facilitate shipping, and that such sharing may cause a transfer of personal data from one region to another.
6.1 Passfeed may communicate with you using email or autodialed or prerecorded calls and text messages, at any telephone number or email address that you provide us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce these Terms, our policies, applicable law, or any other agreement we may have with you.
6.2 Passfeed may route these communications through a third party service provider, and we or the service provider may record telephone conversations you have with Passfeed or its agents for quality control and training purposes, or for our own protection.
7. User Submissions
7.1 Anything you post, upload, share, store, or otherwise provide through the Services is a "User Submission." User Submissions may include suggestions, comments, ideas, improvements, or other feedback or materials, and may be viewable by other users. In order to display your User Submissions on the Services, and to allow other users to enjoy them (where applicable), you grant us certain rights in those User Submissions.
7.2 For all User Submissions, you hereby grant Passfeed a royalty-free, perpetual, non-exclusive, transferable, sublicensable, worldwide license to use, store, display, reproduce, save, modify (e.g. for technical purposes, such as making sure your submission is viewable on an Apple device/computer as well as a Windows device/computer), create derivative works, perform, distribute, translate or otherwise act with respect to such User Submissions as we determine is necessary to operate, market and advertise the Services, including to present, display or perform such User Submission in accordance with your preferences.
7.3 If you choose to submit User Submissions, Passfeed will consider such Submissions to be non-confidential and non-proprietary. Passfeed shall have no obligations concerning the User Submissions, and Passfeed will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit the User Submissions in any manner, without any restriction or compensation to you.
8. Ratings, Reviews and other User Feedback
8.1 Ratings and reviews and photos, videos or other content about items and stores ("Feedback") generated by users on our Services are User Submissions that are not endorsed by Passfeed and do not represent the views of Passfeed. Passfeed does not assume liability for Feedback or for any claims for economic loss resulting from such ratings and reviews. Because we expect users to maintain a high level of integrity with respect to ratings and reviews posted through the Services, you agree: (i) to base any rating or review you post only on your first-hand experience with the applicable Merchant, product, or service; (ii) you will not provide a rating or review for any Merchant, product, or service with respect to which you have a competitive, ownership or other economic interest, employment relationship or other affiliation; (iii) you will prominently indicate if your review was sponsored or paid for in any way; and (iv) your review will comply with these Terms. We reserve the right to exclude such Feedback for any reason or no reason, without notice to you. For example, we may exclude Feedback if we determine, in our sole discretion, that any rating or review could diminish the integrity of the ratings and reviews.
8.2 You agree that if you participate in a Passfeed community or group and get special access to features or items or receive free items directly from Passfeed, and you want to post publicly about those free items and your experiences with them, then you shall comply with the Passfeed Endorsement Guidelines, including without limitation that you shall (a) write honestly about your actual experience with the product; and (b) disclose all material information, such as (where applicable) that you received the item for free.
9. Content; License
9.1 The materials displayed or performed or available on or through the Services, including, but not limited to, text, graphics, data, articles, photos, images, illustrations, User Submissions, Feedback (all of the foregoing, the "Content") may be protected by copyright and/or other intellectual property laws. You promise to abide by all copyright notices, trademark rules, information, and restrictions contained in any Content you access through the Services, and you won't use, copy, reproduce, modify, translate, publish, broadcast, transmit, distribute, perform, upload, display, license, sell or otherwise exploit for any purpose any Content not owned by you: (i) without the prior consent of the owner of that Content or (ii) in a way that violates someone else's rights (including Passfeed's).
9.2 Passfeed and the P logo are trademarks of Passfeed Inc., registered in the U.S. Patent and Trademark Office and in other countries. All rights reserved.
9.3 You understand that Passfeed owns or licenses the Services. You may not modify, publish, transmit, participate in the transfer or sale of, reproduce, create derivative works based on, or otherwise exploit any of the Services, except as expressly provided in this section 9.
9.4 Subject to your compliance with these Terms and applicable policies, rules or guidelines, and your payment of any applicable fees, Passfeed or its content providers grant you a limited, non-exclusive, non-transferable, non-sublicensable license to access and make personal and non-commercial use of the Services. All rights not expressly granted to you in these Terms or any policies or guidelines are reserved and retained by Passfeed or its licensors, suppliers, publishers, rightsholders, or other content providers. The licenses granted by Passfeed terminate if you do not comply with these Terms or the applicable policies, rules or guidelines.
10.1 We respect others' intellectual property rights, and we reserve the right to delete or disable Content alleged to be infringing, and to terminate the accounts of repeat alleged infringers. To learn more about the DMCA, click here.
11.1 Any information or Content publicly posted or privately transmitted through the Services is the sole responsibility of the person from whom such information or Content originated. You access all such information and Content at your own risk, and we aren't liable for any errors or omissions in that information or Content or for any damages or loss you might suffer in connection with it. We cannot control and have no duty to take any action regarding how you may interpret and use the Content or what actions you may take as a result of having been exposed to the Content, and you hereby release us from all liability for you having acquired or not acquired Content through the Services. We can't guarantee the identity of any users with whom you interact in using the Services and are not responsible for which users gain access to the Services.
11.2 You are responsible for all Content you contribute, in any manner, to the Services, and you represent and warrant you have all rights necessary to do so, in the manner in which you contribute it.
11.4 Passfeed has no control over, and assumes no responsibility for, the content, accuracy, privacy policies, or practices of or opinions expressed in any third party websites or by any third party that you interact with through the Services. In addition, Passfeed will not and cannot monitor, verify, censor or edit the content of any third party site or service. By using the Services, you release and hold us harmless from any and all liability arising from your use of any third party website or service.
11.5 Your interactions with organizations and/or individuals found on or through the Services, including payment and delivery of goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such organizations and/or individuals. You should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any of these third parties. You agree that Passfeed shall not be responsible or liable for any loss or damage of any sort incurred as the result of any such dealings.
11.6 If there is a dispute between participants on this site, or between users and any third party, you agree that Passfeed is under no obligation to become involved. In the event that you have a dispute with one or more other users, including a Merchant, you release Passfeed, its officers, employees, agents, and successors from claims, demands, and damages of every kind or nature, known or unknown, suspected or unsuspected, disclosed or undisclosed, arising out of or in any way related to such disputes and/or our Services.
IF YOU ARE A CALIFORNIA RESIDENT YOU WAIVE CALIFORNIA CIVIL CODE SECTION 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." IF YOU ARE NOT A CALIFORNIA RESIDENT, YOU WAIVE YOUR RIGHTS UNDER ANY STATUTE OR COMMON LAW PRINCIPLE SIMILAR TO SECTION 1542 THAT GOVERNS YOUR RIGHTS IN THE JURISDICTION OF YOUR RESIDENCE
12. Changes to the Services
12.1 We're always trying to improve the Services, so they may change over time. We may suspend or discontinue any part of the Services, or we may introduce new features or impose limits on certain features or restrict access to parts or all of the Services. We'll try to give you notice when we make a material change to the Services that would adversely affect you, but this isn't always practical. Similarly, we reserve the right to remove any Content from the Services at any time, for any reason (including, but not limited to, if someone alleges you contributed that Content in violation of these Terms), in our sole discretion, and without notice.
13. Costs and Fees
13.1 It is currently free to access and browse the Marketplace and sites and other aspects of the Services. However, you may choose to purchase items through the Services, and you alone will be responsible for paying the purchase price of any items you buy, in addition to any taxes and shipping costs. Passfeed may limit or cancel quantities of items purchased, and it reserves the right to refuse any order. In the event Passfeed needs to make a change to an order, it will attempt to notify you by contacting the email address, billing address, and/or phone number provided at the time the order was made. Prices are subject to change at any time. Due to separate and applicable tax jurisdictions, your purchases may be subject to specific sales, use, customs or value-added taxes, and the shipping time and associated cost may increase accordingly. As tax rules evolve, Passfeed may calculate and collect taxes applicable to some purchases.
13.2 Passfeed reserves the right to require payment of fees for certain or all Services, in addition to the fees charged for the purchase of items. You shall pay all such fees, as described on the website or Marketplace app in connection with such Services selected by you. Passfeed reserves the right to change prices and to institute new charges at any time, upon notice to you, which may be sent by email or posted on the Services. Your use of the Services following such notification constitutes your acceptance of any new or increased charges.
14. Purchases; Pricing
14.1 You are responsible for reading the full item listing before purchasing an item. By confirming your purchase at the end of the checkout process, you agree to accept and pay for the item(s), as well as all shipping and handling charges and applicable taxes. When a transaction is made pursuant to a shipping contract, the risk of loss and title for products pass to you upon delivery of the products to the carrier, Except as otherwise set forth herein, the risk of loss for and title to products purchased on the Site passes to the purchaser upon delivery to the carrier.
14.2 You must timely pay all fees or amounts associated with your use of the Services, including for any purchases. YOUR PAYMENTS ARE NON-REFUNDABLE EXCEPT AS EXPRESSLY PROVIDED IN APPLICABLE POLICIES.
14.3 In order to make purchases, you must provide accurate and complete information for a valid payment method, such as a credit card, debit card, bank account, as well as in your PayLater account for PayLater customers, that you are authorized to use. You must promptly update your account with any changes related to your payment method. BY PROVIDING INFORMATION FOR A PAYMENT METHOD, YOU AUTHORIZE PASSFEED OR ITS AGENTS TO CHARGE THE PAYMENT METHOD FOR: (A) PRE-AUTHORIZATIONS OF YOUR PAYMENT METHOD (B) AMOUNTS DUE FOR PURCHASED ITEMS; (C) ANY AND ALL APPLICABLE TAXES; AND (D) ANY OTHER CHARGES INCURRED IN CONNECTION WITH YOUR USE OF THE SERVICES.
14.5 Pricing or availability errors may occur from time to time. Passfeed reserves the right to cancel any orders containing pricing or availability errors, with no further obligations to you, even after your receipt of an order confirmation or shipping notice. Pricing for products may be different in different apps or platforms that we operate and also vary based on other factors, including location, time, purchase patterns.
15. Refunds, Exchanges and RelatedPassfeed’s Return & Refund Policy
15.1 We want you to be satisfied with your purchase on the Services. If you have a problem with an order or purchase, please contact us as described in the Return & Refund Policy. You agree that: (i) Passfeed may, in accordance with its Return and Refund Policy, issue a refund to resolve any problems with your order, and (ii) If you accept a refund, your ability to seek another remedy from the applicable Merchant may be affected.
15.2 Except as described in the Refund & Returns Policy, Passfeed cannot refund, reimburse, cover, or otherwise be responsible for any fees, including without limitation those not paid to Passfeed, such as customs, taxes as well as any return shipping costs you may incur in the refund process.
16. Rewards, Credits and PayLater
16.1 Your account may contain rewards, credits, or virtual currency in one of our marketplace apps. These may be used for discounts on or payment for eligible purchases made on the Services. Rewards and/or credits, cannot be redeemed for cash, except in jurisdictions where required by law. PayLater is an additional service offered by Passfeed and may be used as described in the PayLater Purchase Payment Agreement and PayLater Terms of Service.
17. Ending Our Relationship
17.1 You're free to stop using the Services at any time. Any unpaid amounts you owe Passfeed or Merchants for items purchased will remain due. Passfeed is also free to terminate (or suspend access to) your use of the Services or your account, for any reason in our discretion, including your breach of these Terms. Passfeed has the sole right to decide whether you are in violation of any of the restrictions set forth in these Terms. Even after your right to use the Services is terminated, these Terms will remain enforceable against you and unpaid amounts you owe to Passfeed or Merchants for items purchased will remain due.
17.2 Account termination may result in destruction of any Content associated with your account, so keep that in mind before you decide to terminate your account
17.3 Provisions that, by their nature, should survive termination of these Terms shall survive termination. By way of example, all of the following will survive termination: any obligation you have to pay us or indemnify us, any limitations on our liability, any terms regarding ownership or intellectual property rights, and terms regarding arbitration and class action waiver.
19. Changes to Terms
19.1 We're constantly trying to improve our Services, so these Terms may need to change along with the Services. We reserve the right to change the Terms at any time, but if we make any material changes, we will bring it to your attention by placing a notice on the Services, updating the date of the applicable documentation for the Services, by sending you an email, or by some other means. If you don't agree with the new Terms, you are free to reject them; unfortunately, that means you will no longer be able to use the Services. If you use the Services in any way after a change to the Terms is effective, that means you agree to all of the changes.
20. WARRANTY DISCLAIMER. THIS DISCLAIMER SECTION IS AN ESSENTIAL PART OF THESE TERMS.
20.1 NEITHER PASSFEED NOR ITS LICENSORS OR SUPPLIERS MAKES ANY REPRESENTATIONS OR WARRANTIES CONCERNING ANY CONTENT CONTAINED IN OR ACCESSED THROUGH THE SERVICES, AND WE WILL NOT BE RESPONSIBLE OR LIABLE FOR THE ACCURACY, INTELLECTUAL PROPERTY COMPLIANCE, LEGALITY, OR DECENCY OF MATERIAL CONTAINED IN OR ACCESSED THROUGH THE SERVICES. WE (AND OUR LICENSORS AND SUPPLIERS) MAKE NO REPRESENTATIONS OR WARRANTIES REGARDING SUGGESTIONS OR RECOMMENDATIONS OF SERVICES OR PRODUCTS OFFERED OR PURCHASED THROUGH THE SERVICES.
20.2 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, THE SERVICES, PRODUCTS OFFERED AND PURCHASED ON THE SERVICES, OR OTHER CONTENT ARE MADE AVAILABLE TO YOU IS ON AN "AS-IS" AND "AS-AVAILABLE" BASIS, WITHOUT WARRANTIES OR ANY KIND. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PASSFEED EXPRESSLY DISCLAIMS ALL WARRANTIES, REPRESENTATIONS, AND CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, OR THAT USE OF THE SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE.
20.3 YOU ACKNOWLEDGE AND AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOU ASSUME FULL RESPONSIBILITY FOR YOUR USE OF THE SERVICES AND THAT ANY INFORMATION YOU SEND OR RECEIVE DURING YOUR USE OF THE SERVICES MAY NOT BE SECURE AND MAY BE INTERCEPTED OR OTHERWISE ACCESSED BY UNAUTHORIZED PARTIES. YOU AGREE THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, PASSFEED IS NOT RESPONSIBLE FOR ANY LOSS OR DAMAGE TO YOUR PROPERTY OR DATA THAT RESULTS FROM ANY MATERIALS YOU ACCESS OR DOWNLOAD FROM THE SERVICES.
20.4 IF YOU RELY ON ANY DATA OR INFORMATION OBTAINED THROUGH THE SERVICES, YOU DO SO AT YOUR OWN RISK. YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE OR LOSS THAT RESULTS FROM YOUR USE OF SUCH DATA OR INFORMATION.
20.5 CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
21. LIMITATION OF LIABILITY
21.1 TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, UNDER NO CIRCUMSTANCES AND UNDER NO LEGAL THEORY (INCLUDING, WITHOUT LIMITATION, TORT, CONTRACT, STRICT LIABILITY, OR OTHERWISE) SHALL PASSFEED (OR ITS LICENSORS OR SUPPLIERS) BE LIABLE TO YOU OR TO ANY OTHER PERSON FOR (A) ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF GOODWILL, WORK STOPPAGE, ACCURACY OF RESULTS, OR COMPUTER FAILURE OR MALFUNCTION ARISING OUT OF OR IN ANY WAY RELATED TO THE SERVICES OR (B) YOUR USE OF THE SERVICES INCLUDING, WITHOUT LIMITATION, ANY INABILITY TO ACCESS OR USE OR THE PURCHASE AND USE OF ITEMS OFFERED FOR SALE WITHIN THE SERVICES, EVEN IF PASSFEED, ITS SUPPLIERS, OR ANY OTHER PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES.
21.2 THIS DISCLAIMER APPLIES, WITHOUT LIMITATION, TO ANY DAMAGES OR PERSONAL INJURY ARISING FROM ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECTS, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUSES, FILE CORRUPTION, COMMUNICATION-LINE FAILURE, NETWORK OR SYSTEM OUTAGE, YOUR LOSS OF PROFITS, ANY THEFT, DESTRUCTION, UNAUTHORIZED ACCESS TO, ALTERATION OF, LOSS OR USE OF, ANY RECORD OR DATA, AND ANY OTHER TANGIBLE OR INTANGIBLE LOSS.
21.3 YOU SPECIFICALLY ACKNOWLEDGE AND AGREE THAT PASSFEED SHALL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY MERCHANT OR USER OF THE SERVICES.
21.4 UNDER NO CIRCUMSTANCES WILL THE TOTAL AGGREGATE AMOUNT THAT PASSFEED IS LIABLE TO YOU EXCEED THE GREATER OF (I) $100.00 OR (II) THE AMOUNTS PAID BY YOU TO PASSFEED IN CONNECTION WITH THE SERVICES IN THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENT ON WHICH YOUR CLAIM IS BASED. THESE LIMITATIONS WILL APPLY EVEN IF THE HEREIN STATED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
21.5 THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN PASSFEED AND YOU.
22. Indemnity22.1 (a) You are responsible to Passfeed and any related companies of Passfeed to the extent they are involved in the provision of the Services for any loss, costs (including reasonable legal fees), expense or damage they suffered or incurred: (i) in connection with any claim or demand made by any third party due to or arising out of your breach of this Agreement, or your breach of any law or of the rights of a third party relating to your use of our Services or App/Website; and (ii) as a direct or indirect consequence of unauthorized users accessing your account as a result of your negligence. To the extent that gives a non-party rights, Passfeed contracts as trustee of the rights given under that clause.
(b) Your liability under clause 22.1(a) will be reduced proportionately to the extent that Passfeed, its contractors or agents: (i) caused or contributed to the relevant claim, demand, loss or damage; or (ii) failed to take reasonable steps to mitigate the relevant claim, demand, loss or damage.
(c) You agree to release, indemnify and hold harmless us, our affiliates, and our and their respective officers, directors, employees and agents and Passfeed and its respective officers, directors, employees and agents from and against any liability arising out of or related to your use of our services or violation of the terms of this Agreement.
22.2 You agree that the provisions in this section will survive any termination of your account, these Terms or your access to the Services, including the purchase of any items on the Services.
22.3 Notwithstanding the foregoing paragraph, if you are a resident of New Jersey, you only agree to release, defend, indemnify, and hold Passfeed and its affiliates, and its officers, agents, employees, and partners, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
22.4 If you are a California resident, you waive California Civil Code Section 1542, which provides: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.
22.5 If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
23.1 Electronic CommunicationsYou agree to receive communications from Passfeed electronically, such as emails, texts, mobile push notices, or notices and messages on the Services, and to retain copies of these communications for your records. You agree that all terms and conditions, agreements, notices, disclosures, and other communications and documents that Passfeed provides to you electronically will have the same legal effect that such communications or documents would have if they were set forth in "writing."
23.2 AssignmentYou may not assign, delegate or transfer these Terms or your rights or obligations hereunder, or your Services account, in any way (by operation of law or otherwise) without Passfeed's prior written consent. We may transfer, assign, or delegate these Terms and our rights and obligations without consent.
23.3 Force MajeurePassfeed shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials.
23.4 Choice of LawThese Terms and any dispute of any sort that might arise between you and Passfeed will be interpreted in accordance with the law of the State of Delaware and the United States of America, consistent with the Federal Arbitration Act, without regard to any conflict-of-law or other principles that provide for the application of the law of another jurisdiction.
23.5 Exclusive VenueAny claim or dispute that between you and Passfeed that arises out of or is related to the Services and is not subject to arbitration or eligible for small claims action, shall be decided exclusively by a court of competent jurisdiction located in Delaware, and you hereby consent to, and waive all defense of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of Delaware.
23.6 Statute of LimitationsYou agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Services must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations shall not apply to residents of New Jersey.
23.7 NoticeWhere Passfeed requires that you provide an email address, you are responsible for providing Passfeed with your most current email address. In the event that the last e-mail address you provided to Passfeed is not valid, or for any reason is not capable of delivering to you any notices required/ permitted by these Terms, Passfeed's dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Passfeed at the following address: Passfeed Inc., 750 Lexington Ave, 9th Floor, New York, NY 10022. Such notice shall be deemed given when received by Passfeed by letter delivered by nationally recognized overnight delivery service or first class postage prepaid mail at the above address.
23.8 Export ControlYou may not use, export, import, or transfer the Services, including the purchase of any products on the Services except as authorized by U.S. law, the laws of the jurisdiction in which you used the Services or purchased any products on the Services, and any other applicable laws. In particular, but without limitation, the Services, including any products purchased on the Services, may not be exported or re-exported (a) into any United States embargoed countries, or (b) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce's Denied Persons List or Entity List. By using the Services or purchasing products on the Services, 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 also will not use the Services nor the products purchased on the Services for any purpose prohibited by U.S. law.
23.9 Consumer ComplaintsIn accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
23.10 Entire AgreementThese Terms and all policies posted through our Services set forth the entire understanding and agreement between you and Passfeed, and supersede all prior understandings and agreements of the parties. These Terms shall not be modified by any of: (i) course of performance between the parties; (ii) course of conduct or dealing between the parties; or (iii) applicable trade practice.
23.11 WaiverOur failure to respond to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
23.13 MiscellaneousYou will be responsible for paying, withholding, filing, and reporting all taxes, duties, and other governmental assessments associated with your activity in connection with the Services, provided that the Passfeed may, in its sole discretion, do any of the foregoing on your behalf or for itself as it sees fit. The failure of either you or us to exercise, in any way, any right herein shall not be deemed a waiver of any further rights hereunder. Subject to Section 24 (Arbitration), if any provision of these Terms is found to be unenforceable or invalid, that provision will be limited or eliminated, to the minimum extent necessary, so that these Terms shall otherwise remain in full force and effect and enforceable. You hereby acknowledge and agree that you are not an employee, agent, partner, or joint venture of Passfeed, and you do not have any authority of any kind to bind Passfeed in any respect whatsoever. Except as expressly set forth herein, you and Passfeed agree there are no third party beneficiaries intended under these Terms.
PLEASE READ THE FOLLOWING ARBITRATION AGREEMENT IN THE SECTION ("ARBITRATION AGREEMENT") CAREFULLY. IT REQUIRES YOU TO ARBITRATE MOST DISPUTES WITH PASSFEED AND MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
YOU AND PASSFEED AGREE THAT ANY DISPUTE, CONTROVERSY, OR CLAIM ARISING OUT OF, OR RELATING TO YOUR USE OF THE SERVICES, INCLUDING WITHOUT LIMITATION THE MARKETPLACE APPS, ANY PRODUCTS OR SERVICES SOLD OR DISTRIBUTED BY OR THROUGH THE MARKETPLACE APPS, THESE TERMS, OR CONTENT (A "DISPUTE" AS DEFINED BELOW) SHALL BE RESOLVED ONLY BY FINAL AND BINDING, BILATERAL ARBITRATION, subject to the exceptions below.
You and Passfeed agree that these Terms affect interstate commerce and the Federal Arbitration Act, 9 U.S.C. § 1, et seq., and federal arbitration law apply to this agreement and govern all questions as to whether a dispute is subject to arbitration.
"Disputes" shall include, but are not limited to, any claims or controversies between you and Passfeed against each other related in any way to or arising out of in any way from the Service, the Content, User Submission (Public, Personal, and/or Limited Audience), including but not limited to sales, returns, refunds, cancellations, defects, policies, privacy, advertising, or any communications between you and Passfeed, even if the claim arises after you or Passfeed has terminated use of Services or a user account or these Terms. Disputes also include, but are not limited to, claims that: (a) you bring against our employees, agents, affiliates, or other representatives; (b) that Passfeed brings against you; (c) claims in any way related to or arising out of any aspect of the relationship between you and Passfeed, whether based in contract, tort, statute, fraud, misrepresentation, advertising claims, or any other legal theory; (d) claims that arose before these Terms or out of a prior set of Terms with Passfeed; (e) claims that are subject to ongoing litigation where you are not a party or a class member; and/or (f) claims that arise after the termination of these Terms. Disputes does not include disagreements or claims concerning patents, copyrights, moral rights, trademarks, and trade secrets and claims of piracy or unauthorized use of intellectual property, which shall not be subject to arbitration or the notice and good faith negotiation requirement described below.
24.2 Binding Arbitration Agreement, Process, and Procedure
24.2.1 THIS SECTION CONTAINS A BINDING ARBITRATION CLAUSE AND CLASS ACTION WAIVER. THEY AFFECT EACH PARTY’S RIGHTS CONCERNING THE RESOLUTION OF ANY DISPUTE (DEFINED BELOW) BETWEEN THE PARTIES. TO REITERATE: ONCE THIS AGREEMENT HAS BEEN ASSIGNED TO PASSFEED, ALL REFERENCES TO “WE,” “US,” OR “THE PARTIES” IN THIS SECTION 24.2 WILL MEAN OR INCLUDE REFERENCE TO PASSFEED.
(a) To expedite resolution and to minimize the cost of any dispute, controversy or claim between you and us related to any dispute or controversy arising from or relating to this Agreement, your use of any part of the Passfeed websites, apps, and/or services or the enforcement of any provision of this Agreement (a “Dispute”), you and we agree to first attempt to negotiate any Dispute (except those Disputes expressly excluded below) informally for at least thirty (30) days before initiating any arbitration or court proceeding. Such informal negotiations will commence upon receipt of a written notice (each, a “Notice”). Your address for such Notices is the email address you have provided in your Account. Our address for such Notices is: Passfeed, 750 Lexington Ave, 9th Floor, New York, NY 10022, Attention: Legal, or by email to email@example.com. Any Notice from you must include your name, pertinent account information, a brief description of the Dispute, and your contact information, so that we may evaluate the Dispute and attempt to informally resolve the Dispute. Any Notice from us will include pertinent account information, a brief description of the Dispute, and our contact information, so that you may evaluate the Dispute and attempt to informally resolve the Dispute. If the informal negotiations are successful, no further action is necessary.
(b) IF THE PARTIES ARE UNABLE TO RESOLVE A DISPUTE THROUGH INFORMAL NEGOTIATIONS, AFTER 30 DAYS FROM THE DATE OF THE FIRST NOTICE, THE PARTIES AGREE THAT ANY PARTY TO THE DISPUTE MAY ELECT TO HAVE THE DISPUTE (EXCEPT THOSE DISPUTES EXPRESSLY EXCLUDED BELOW) FINALLY AND EXCLUSIVELY RESOLVED BY BINDING ARBITRATION. ANY ELECTION TO ARBITRATE BY ONE PARTY WILL BE FINAL AND BINDING ON THE OTHER. YOU UNDERSTAND THAT IF EITHER PARTY ELECTS TO ARBITRATE, NEITHER PARTY WILL HAVE THE RIGHT TO SUE IN COURT OR HAVE A JURY TRIAL. The arbitration will be commenced and conducted under the Commercial Arbitration Rules (the “AAA Rules”) of the American Arbitration Association (“AAA”) and, where appropriate, the AAA’s Supplementary Procedures for Consumer Related Disputes (“AAA Consumer Rules”), both of which are available at the AAA website www.adr.org. Your arbitration fees and your share of arbitrator compensation will be governed by the AAA Rules (and, where appropriate, limited by the AAA Consumer Rules). If such costs are determined by the arbitrator to be excessive, we will pay all arbitration fees and expenses. The arbitration may be conducted in person, through the submission of documents, by phone or online. The arbitrator will make a decision in writing, but need not provide a statement of reasons unless requested by a party. The arbitrator must follow applicable law, and any award may be challenged if the arbitrator fails to do so. Except as otherwise provided in this Agreement, you and we may litigate in court to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator.
(c) The parties agree that the following Disputes are not subject to the above provisions concerning information negotiations and binding arbitration: (1) any suit to compel arbitration, stay proceeding pending arbitration or to confirm, modify, vacate or enter judgment on the award entered by the arbitrator; (2) any suit to seek temporary injunctive relief that will remain in place only until an arbitrator can determine whether the relief should be continued, modified or removed; or (3) any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. In addition, either party may assert claims, if they qualify, in small claims court in the State of Delaware or any United States county where you live or work.
(d) The parties agree that any arbitration will be limited to the Dispute between us and you individually. TO THE FULL EXTENT PERMITTED BY LAW,
(1) NO ARBITRATION SHALL BE JOINED WITH ANY OTHER; (2)THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE ARBITRATED ON A CLASS-ACTION BASIS OR TO UTILIZE CLASS-ACTION PROCEDURES; AND (3) THERE IS NO RIGHT OR AUTHORITY FOR ANY DISPUTE TO BE BROUGHT IN A PURPORTED REPRESENTATIVE CAPACITY ON BEHALF OF THE GENERAL PUBLIC OR ANY OTHER PERSONS.
(e) You may opt out of the foregoing arbitration and class action/jury trial waiver provision of this Agreement by NOTIFYING US IN WRITING WITHIN 30 DAYS OF THE DATE YOU LAST PLACED AN ORDER. To opt out, you must send a written notification to Passfeed at 750 Lexington Ave, 9th Floor, New York, NY 10022, Attention: Legal, that includes (i) your Account identification, (ii) your name, (iii) your address, (iv) your telephone number, (v) your email address and (vi) a clear statement indicating that you do not wish to resolve claims through arbitration and demonstrating compliance with the 30-day time limit to opt out of the above arbitration and class action/jury trial waiver sections.
24.3 Authority of ArbitratorThe arbitrator, and not any federal, state or local court or agency shall have exclusive authority to resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to any claim that all or any part of this Arbitration Agreement is void or voidable. The arbitrator will decide the rights and liabilities, if any, of you and Passfeed. The arbitration proceeding will not be consolidated with any other matters or joined with any other proceedings or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum's rules, and these Terms (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which any award (or decision not to render an award) is based, including the calculation of any damages awarded. The arbitrator shall follow the applicable law. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
24.4 Waiver of Jury TrialYOU AND PASSFEED HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO RESOLVE DISPUTES IN COURT (OTHER THAN AS PERMITTED HEREIN) AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Passfeed are instead electing that all covered claims and disputes shall be resolved by arbitration under this Arbitration Agreement, except as specified in above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow these Terms as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
24.5 Parents, Subsidiaries, AffiliatesThis Arbitration Agreement will also apply to any claims asserted by you against any present or future parent, subsidiary, or affiliated company of Passfeed, or any employee, officer, director, or investor of Passfeed, and to any claims asserted by any of them against you, to the extent that any such claims arise out of or relate to these Terms (such as with respect to their validity or enforceability), the Services, any person's access to and/or use of the Services, and/or the provision of content, products, services, and/or technology on or through the Services.
24.6 Changes to This Section
24.6.1 Passfeed will provide any notice of changes to this section by posting on the marketplace websites or apps with an updated date, by email, or any other means we may choose. Amendments will become effective immediately once they are posted on the applicable website or sent to you.
24.6.2 Changes to this section will otherwise apply to claims arising after the updated date. If a court or arbitrator decides that this subsection on "Changes to This Section" is not enforceable or valid, then this subsection shall be severed from the sections entitled "Arbitration" and "Class Waiver" and the court or arbitrator shall apply the first Arbitration and Class Action Waiver sections in existence after you began using the Services.
24.7 SeverabilitySubject to the section title "Waiver of Class or Consolidated Actions," if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
24.8 Survival of AgreementThis Arbitration Agreement will survive the termination or expiration of these Terms or your relationship with Passfeed.
24.9 WAIVER OF CLASS OR CONSOLIDATED ACTIONS PLEASE READ THIS SECTION CAREFULLY. IT MAY SIGNIFICANTLY AFFECT YOUR LEGAL RIGHTS.
24.9.1 Passfeed and you agree to resolve any dispute in an individual capacity, and not on behalf of, or as part of, any purported class, consolidated, or representative proceeding. Passfeed and you further agree to not participate in any consolidated, class, or representative proceeding (existing or future) brought by any third party arising out of or relating to any dispute with a third party.
24.9.2 The arbitrator cannot combine more than one person's or entity's claims into a single case, and cannot preside over any consolidated, class or representative proceeding (unless we agree otherwise). And, the arbitrator's decision or award in one person's or entity's case can only impact the person or entity that brought the claim, not other Passfeed users, and cannot be used to decide other disputes with other users.
24.9.3 If any court or arbitrator determines that the class/consolidated/representative action waiver set forth in this section is void or unenforceable for any reason or that arbitration can proceed on a class, consolidated, or representative basis, then the disputes, claims, or controversies will not be subject to arbitration and must be litigated in federal court located in Delaware.
24.9.4 If any clause within this Waiver of Class or Consolidated Actions Section is found to be illegal or unenforceable, that specific clause will be severed from this section, and the remainder of its provisions will be given full force and effect.
24.9.5 This Waiver of Class or Consolidated Actions Section will also apply to any claims asserted by you against any present or future parent, subsidiary or affiliated company of Passfeed, or any employee, officer, director, or investor of Passfeed, and to any claims asserted by any of them against you, to the extent that any such claims is a dispute.
24.9.6 This Waiver of Class or Consolidated Actions Section shall survive any termination of your account or the Services.