LAST UPDATED: July 10, 2018
TERMS OF SERVICE AGREEMENT
Welcome to Jodys5thavenue.com! This Terms of Service Agreement (“Agreement”) explains how the services available on Jodys5thavenue.com and its subdomains (the “Site”) and as mobile application(s) (together with the Site, the “Service”) work and how you can use them. The Service is brought to you by Jodys5thavenue.com, Inc. (“Jodys5thavenue.com,” “we,” “us,” “our”).
If you are accessing and using Services on behalf of a company, you represent and warrant that you are authorized to bind the company and that you are accepting the Agreement on the company’s behalf. When used in the Agreement, “you” or “your” will refer to you as an individual and to your company if you are accepting the Agreement on behalf of a company. Please contact email@example.com if you represent a corporation or other legal entity that wants to offer items through the Service.
Some parts of the Service may include additional provisions, descriptions of service, or other instructions which you must also comply with in addition to this Agreement. THE SERVICE IS ONLY AVAILABLE TO RESIDENTS OF THE UNITED STATES, EXCLUDING PERSONS AGED 12 OR YOUNGER.YOU AGREE TO THIS AGREEMENT BY ACCESSING THE SITE OR BY USING THE SERVICE IN ANY MANNER (WHETHER VIA PERSONAL COMPUTERS, MOBILE DEVICE, OR OTHERWISE). DO NOT ACCESS OR USE THE SERVICE IF YOU DO NOT AGREE TO THIS AGREEMENT.
WHAT IS THE SERVICE?
The Service enables two or more parties to sell and buy goods (“Items”). We are not a party to the transaction unless you are purchasing an Item from our own inventory.
YOUR USER ACCOUNT
User Account Registration
You can browse through Items in the Service without an account but you must have an account in order to purchase or sell an Item through the Service. You are permitted to have one account for the Service. We may enable registration for the Service using third party services such as Facebook. If you use a third party service to register for an account, you may be required to provide your login information for such third party service. We do not receive or store passwords for such third party services. Please review the privacy notice and your settings for such third party service before using it to log into the Service. Your account is personal to you and you may not share it or allow any other person to utilize your account. You may not use another person’s account, create an account for another person, or create or use an account to impersonate another person. You are responsible for all activities that occur under your account.
Before you’ll be able to sell on the Service, we may require you to submit to a one-time PayPal account verification procedure where we will determine if you are providing a valid PayPal account for use with the Service. We may require this to ensure that you are providing a unique PayPal account for use as a seller on the Service.
Depending on how you configure your web browser or mobile application, you may have the option to store your username and password (i.e. your login credentials) in your web browser or mobile application so that you can be automatically logged in each time you access the Service. The automatic login feature will allow a third party to have access to your account if they have access to your computer or mobile device. You are responsible for all of our damages resulting from unauthorized access to the Service from your account. You must immediately notify us if you learn of, or have reason to suspect, any unauthorized use of your account.
We may limit your ability to use the Service, including terminating your account, if we have reasonable grounds to suspect that the information you provided is untrue, inaccurate, outdated, or incomplete.
Browsing Items in the Service is free of charge but you agree that you must pay for any Item you commit to buy. You are entering into a legally binding contract to purchase the Item when you commit to buy an Item. Payment for an Item may be made by credit card, PayPal, or other method as indicated in the Service. You are solely responsible for paying all shipping charges, applicable taxes, and other governmental charges and fees associated with your purchase of an Item.
You have 14 days from the date on which you purchased an Item to request a refund if you are not satisfied with an Item you obtained through the Service. Please refer to our refund policy located at FAQ page incorporated in this Agreement by reference, for more information regarding our return policy.
Store credit may be added to your account by using, store credit codes, or we may add store credit to your account in certain situations. Store credit can only be used online in the Service. Store credit can only be used on orders associated with your original account and cannot be transferred to another person or account. We are not responsible for stolen store credit codes. Store credit may not be used to purchase Jodys5thavenue.com gift cards except under special promotions. Store credit cannot be used to pay for the Inbound Service Fees or Surcharges. Purchase amounts that exceed the value of your store credit balance will require an additional method of payment for the remaining balance due.
Expiration / Service Fees
Store credit does not expire and we do not assess service fees for non-use.
Compliance With Law
By electing to receive store credit, you are representing that (1) you have not used fraudulent means to obtain such store credit; and (2) the activities in connection with which the store credit will be used will comply with this Agreement and all applicable laws, rules, regulations, and other rules set forth on the Service.
SHIPPING AND DELIVERY
We use third party shipping companies (“Carrier”) to send Items from, and to receive Items at, our Fulfillment Center in accordance with the terms and conditions between us and any such Carrier. You acknowledge and agree that (1) you assume all risk of shipping an Item to our Fulfillment Center using any such Carrier; and (2) we are released from liability for an Item once we deliver the Item to the Carrier.
YOUR INFORMATION AND MATERIAL
You are responsible for the information and material you provide to the Service. You represent and warrant that: (1) you have the right and license to upload the information and material to the Service; (2) the information or material you provide does not infringe the intellectual property or other proprietary rights of any third party; and (3) the information or material does not breach this Agreement or any applicable laws or regulations. By accessing or otherwise using the Service, you grant us a worldwide license to host, copy, transmit, modify, and display the information and material you upload to the Service to the extent necessary or useful for us to provide the Service and our business in accordance with this Agreement. You hereby agree not to assert any claims against us relating to the information or material you have uploaded in the Service. We may make modifications that are necessary or useful to the information and material you have uploaded in the Service and you consent to any modifications we make to the information and material you give to us. We will not be liable for any information or material you have received or accessed from third parties through the Service or otherwise.
YOUR LICENSE TO USE THE SERVICE
We grant to you a limited, non-exclusive, non-assignable, non-transferable license to access and use the Service, subject to your agreement to and compliance with this Agreement. We reserve all rights not otherwise expressly granted by this Agreement. You may not: (1) rent or sell the Service to a third party; (2) copy or reverse engineer the Service; (3) create derivative works of the Service; (4) change or alter information, material, content, or notices in the Service; (5) use a bot or other automatic process to harvest information, material, or content in the Service; (6) introduce a virus or malicious code into the Service; (7) use the Service to violate a third party’s intellectual property rights; (8) send advertisements or spam using or through Service; (9) use any information, material, or content in the Service to create a competing service; (10) engage in any activity, including, but not limited to sales, purchases, or returns that interfere with the ordinary and open operation of the Service, including creating artificial, false, or misleading appearances with respect to the price of, market for, sales proceeds of, or refund of any Item; or (11) engage in any activity that violates this Agreement or any applicable law or regulation.
OUR RIGHTS AND OWNERSHIP
We reserve the right to add new features to the Service and to discontinue offering the Service, or any part thereof, or to suspend, remove, modify, or disable access to the Service, or any part thereof, at any time in our sole discretion and without notice to you. We will attempt to post notifications of any change made to the Service through the Service itself, through your account, or by email prior to making changes to the Service. In no event will we be liable for the removal of or disabling of access to the Service or any part thereof.
The Service and the content provided therein is protected by copyright laws and treaties around the world. All such rights and other intellectual property rights in and to the Service are reserved and all right, title, and interest, including, without limitation, any copyright, patent, trade secret, or other intellectual property rights in the Service, will remain our sole property. The Service is licensed, not sold, to you. You may not use any part of the materials on the Service for commercial purposes without first obtaining a license to do so from us or our licensors. If you print, copy, or download any part of our Service in breach of this Agreement, your right to use our Service will cease immediately and you must, at our option, return or destroy any copies of the materials you have made.
We welcome your comments, feedback, information, or materials regarding the Service or any of our other products or services (collectively, “Feedback”). Your Feedback will become our property once you submit it to us. By submitting your Feedback to us, you agree to assign, and hereby irrevocably assign to Jodys5thavenuee.com, all right, title, and interest in and to the Feedback and all copyrights and intellectual property rights embodied in such Feedback on a worldwide basis. We will be free to use, copy, distribute, publish, and modify your Feedback on an unrestricted basis, without compensation to you. Moreover, you hereby assign or waive, as the case may be, any moral rights that you may have in or to the Feedback.
USAGE & LIMITATIONS
We do not guarantee that the Service will be compatible or operate with your computer, mobile device, Internet provider’s service plan, mobile carrier’s service plan, or any other piece of hardware, software, equipment, or device you use to access or use the Service. You are responsible for providing, maintaining, and ensuring the compatibility of all hardware, software, and other system requirements necessary for your access to and use of the Service. You are also responsible for all third party charges and fees, including to your Internet service provider and mobile carrier, in connection with your access and use of the Service and for complying with any contracts, terms of service agreements, and restrictions associated with such third party services.
The quality and availability of the Service may be affected by factors outside of our control because the Service is provided over the Internet. We will not be liable for damages or losses related to the Service being unavailable.
OUR PRIVACY PRACTICES
Linking to Jodys5thavenue.com
You may link to our website and any listing for an Item, provided you do so in a way that is fair, legal, and does not damage our reputation or take advantage of it. You may not establish a link in a way that suggests any form of association, approval, or endorsement on our part where none exists. Our Service may not be framed on any other website or service. We reserve the right to withdraw linking permission in our sole discretion and without prior notice. If you wish to use any material on the Service other than that set out above, please address your request to firstname.lastname@example.org.
Links to Third Party Websites
The Service may contain links to websites owned and operated by third parties and links to those third party websites are provided for informational purposes only. We are not responsible for any third party websites and do not have control over any materials or content made available therein. Our inclusion of a link to a third party website in the Service does not in any way imply our endorsement, advertising, or promotion of such websites or any materials or content made available therein. We encourage you to familiarize yourself with the terms of service and privacy notice applicable to any third-party website you may access.
DISCLAIMER OF WARRANTIES
YOUR ACCESS TO AND USE OF THE SERVICE IS AT YOUR OWN RISK. WE DO NOT WARRANT THE ACCURACY OF THE DESCRIPTIONS OR PICTURES OF ANY ITEM IN THE SERVICE. WE DO NOT WARRANT THAT THE SERVICE OR CONTENT IN THE SERVICE WILL BE VIRUS FREE OR FREE FROM MALICIOUS CODE OR SOFTWARE. WE DO NOT WARRANT THAT THE QUALITY OF ANY ITEMS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS. YOU UNDERSTAND AND AGREE THAT THE SERVICE AND ALL ITEMS, INFORMATION, AND OTHER PRODUCTS AND SERVICES DELIVERED TO YOU THROUGH THE SERVICE ARE PROVIDED TO YOU ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY REPRESENTATIONS, WARRANTIES OR CONDITIONS OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE DO NOT GUARANTEE THAT WE WILL SELL ANY OF YOUR ITEMS.
WITHOUT LIMITING THE FOREGOING, WE DISCLAIM ANY WARRANTIES, EXPRESS OR IMPLIED, OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, DURABILITY, AND TITLE AND NON-INFRINGEMENT. WE MAKE NO WARRANTY, AND DISCLAIM ALL RESPONSIBILITY AND LIABILITY, FOR THE COMPLETENESS, ACCURACY, AVAILABILITY, TIMELINESS, SECURITY OR RELIABILITY OF THE SERVICE OR ANY CONTENT THEREON. WE WILL NOT BE RESPONSIBLE OR LIABLE FOR ANY HARM TO YOUR COMPUTER SYSTEM, LOSS OF DATA, OR OTHER HARM THAT RESULTS FROM YOUR ACCESS TO OR USE OF THE SERVICE. MOREOVER, YOU AGREE THAT WE DO NOT HAVE RESPONSIBILITY OR LIABILITY FOR THE DELETION OF, OR THE FAILURE TO STORE OR TO TRANSMIT, ANY MATERIAL OR CONTENT AND OTHER COMMUNICATIONS MAINTAINED IN THE SERVICE. WE MAKE NO WARRANTY THAT THE SERVICE WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. WE DO NOT WARRANT THAT THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM THE SERVICE OR OUR REPRESENTATIVES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
LIMITATION OF LIABILITY
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, JODYS5THAVENUE.COM AND OUR SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS, AND LICENSORS WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, LOSS OF DATA, LOSS OF USE, LOSS OF ANTICIPATED SAVINGS, ACCRUED BUT WASTED EXPENDITURE, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, LOSS OF GOOD-WILL, OR OTHER INTANGIBLE LOSSES, RESULTING FROM (I) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICE; (II) ANY CONDUCT OR CONTENT OF ANY THIRD PARTY IN THE SERVICE, INCLUDING WITHOUT LIMITATION, ANY DEFAMATORY, OFFENSIVE, HARMFUL, OR ILLEGAL CONDUCT OF THE USERS OF THE SERVICE OR THIRD PARTIES; (III) ANY CONTENT OR ITEM OBTAINED FROM THE SERVICE; AND (IV) UNAUTHORIZED ACCESS, USE OR ALTERATION OF ANY MATERIAL OR CONTENT, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE. IN SOME JURISDICTIONS THE APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH CASES, OUR LIABILITY WILL BE LIMITED TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW.
UNDER NO CIRCUMSTANCES WILL OUR LIABILITY EXCEED THE GREATER OF: (A) THE AMOUNTS ACTUALLY PAID BY YOU TO US FOR THE SERVICE DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM FOR DAMAGES; OR (B) TEN ($10) DOLLARS.
You agree to indemnify and hold us harmless from any claim or demand, including attorneys’ fees, made by a third party due to or arising out of your breach of this Agreement or your violation of any law or the rights of a third party. Nothing in this Agreement will be deemed to exclude or limit your liability in respect of any indemnity given by you under this Agreement. We reserve the right to assume the exclusive defense and control of any matter, which is subject to indemnification under this section. In such case, you agree to cooperate with any reasonable requests assisting our defense of such matter.
This Agreement is effective until you or Jodys5thavenue.com terminates it. You may terminate this Agreement at any time by discontinuing your use of the Service. We may terminate this Agreement at any time and for any reason without prior notice to you, and accordingly, we may deny you access to the Service. Termination of this Agreement will not affect any right or relief to which we are entitled at law or in equity. Upon termination of this Agreement, you must terminate all use of the Service and any information or materials that have been provided to you. The terms and conditions in this Agreement that by their nature and context are intended to survive any termination of this Agreement will survive such termination and will be fully enforceable thereafter.
We may report your fraudulent activity or a breach of this Agreement to the relevant law enforcement authorities and we will cooperate with those authorities by disclosing your identity to them. In the event of your fraudulent activity or breach of this Agreement, as determined at our sole and absolute discretion, your right to use our Service will cease immediately, and we may modify, reduce or withhold your sales proceeds, if any, and Item until final resolution or adjudication of such an action.
If a dispute arises between you and Jodys5thavenue.com, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. In the event of a dispute we encourage you first to contact us to resolve your problem directly with us. You may contact us regarding any complaints or disputes using the email address provided in the Contact Us section below.
THIS SECTION AFFECTS YOUR RIGHTS. PLEASE READ CAREFULLY BEFORE AGREEING TO THIS AGREEMENT BY USING THE SERVICE.
Except as explicitly provided in this Agreement, any dispute or claim relating in any way to your use of the Services, an Item offered or provided by or through the Services, or otherwise arising out of or relating to this Agreement that cannot be resolved directly between you and Jodys5thavenue.com will be finally and exclusively resolved by non-appearance based binding arbitration, rather than in court. Except as otherwise provided in this Agreement, this includes any claims based in contract, statute, tort, fraud, misrepresentation, strict liability, or any other legal theory. The Federal Arbitration Act and federal arbitration law apply to this Agreement. There is no judge or jury in arbitration and court review of an arbitration award is limited. However, an arbitrator can award an individual the same damages and relief as a court and must apply and follow this Agreement as a court would.
Either you or Jodys5thavenue.com can initiate arbitration through the alternative dispute resolution provider the American Arbitration Association pursuant to the then-current Supplementary Procedures for Consumer-Related Disputes. The arbitration will be conducted by telephone, online, and/or be solely based on written submissions, and the specific manner will be chosen by the party initiating the arbitration. The arbitration will not involve any personal appearance by the parties or witnesses unless the arbitrator determines that an in-person hearing is necessary based on the request of one of the parties and any judgment on the award rendered by the arbitrator will be final and may be entered in any court of competent jurisdiction.
You agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, or representative action. If for any reason a claim proceeds in court rather than in arbitration, you waive any right to a jury trial and agree to proceed only on an individual basis and not in a class, consolidated, or representative action.
You and Jodys5thavenue.com hereby appoint the arbitrator the exclusive power to rule on any challenges to the requirement for the use of alternative dispute resolution process in this Agreement. YOU AND JODYS5THAVENUE.COM ALSO BOTH AGREE THAT YOU OR JODYS5THAVENUE.COM MAY BRING SUIT IN COURT TO OBTAIN INTERIM OR PRELIMINARY INJUNCTIVE RELIEF NECESSARY TO PROTECT THE RIGHTS OR PROPERTY OF YOU OR JODYS5THAVENUE.COM OR JODYS5THAVENUE.COM’S VENDORS OR AFFILIATES PENDING THE COMPLETION OF THE ARBITRATION.
If arbitration is found not to apply to you or to a particular claim or dispute as a result of a decision by the arbitrator or a court order, this Agreement and any claim related thereto will be governed by the laws of the State of Illinois, without reference to its conflicts or choice of law principles. All claims and disputes arising under this Agreement will be brought solely in any court located in Will County, Illinois. You irrevocably submit and consent to the personal jurisdiction of such courts.
We may send notifications to you using the e-mail address you used to register for the Service and we may also publish general notifications in the Service.
We may assign our rights and obligations under this Agreement to a third party without your consent. We have the right to transfer our receivables based on this Agreement to a third party. Upon the receipt of a notification of such a transfer from us, you can effectively pay the transferred receivable only to the transferee. You do not have the right to assign or transfer the rights or obligations of this Agreement either partially or in whole to a third party.
FORCE MAJEURE EVENTS
We will not be liable for any delay or failure to perform any obligation, if such delay or failure is caused by, or if such performance is made impractical or commercially unreasonable by, fire, hurricane, flood, or other act of God, labor dispute or strike, terrorism, war or civil commotion, governmental action, equipment breakdown, inability to obtain the necessary labor, materials or equipment, or any other cause beyond our reasonable control.
This Agreement controls the relationship between Jodys5thavenue.com and you. This Agreement does not create any third party beneficiary rights. Our failure to enforce the provisions of this Agreement does not constitute a waiver of our right to enforce them. If any term or provision of this Agreement is held to be invalid or unenforceable, the remaining terms and provisions of this Agreement will remain in full force and effect, and the invalid or unenforceable term or provision will not be considered to be part of this Agreement. In the event of a conflict between this Agreement and any additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application, the additional policies, procedures, disclaimers, guidelines, rules, terms, or conditions of specific application will control.
DIGITAL MILLENNIUM COPYRIGHT ACT
We respect the intellectual property of others and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please contact our Copyright Agent for Notice of Claims of copyright infringement at email@example.com.
CHANGES TO THIS AGREEMENT
We reserve the right to alter this Agreement or other policies related to the Service at any time. If we do so, we will post any such modifications or changes in the Service. You can tell when changes have been made by referring to the “Last Updated” legend on top of this page. We recommend that you review this Agreement and our policies from time to time for any changes. Your continued use of the Service following such a posting of changes will indicate your acceptance of any such change or modification.
If you have any questions or concerns regarding this Agreement or the Service, please contact us at firstname.lastname@example.org.