Terms of Service
Date of Last Revision: June 14, 2017
BY CLICKING “I ACCEPT”,OR BY VISITING THE SERVICE AND CONTINUING TO ACCESS OR USE ANY ASPECT OF THE SERVICE, YOU ARE ENTERING INTO A LEGALLY BINDING CONTRACT AND AGREE TO BE BOUND BY THESE TERMS, INCLUDING THE WARRANTY DISCLAIMERS, ARBITRATION, INDEMNITY AND LIMITATION OF LIABILITY PROVISIONS BELOW. IF YOU DO NOT UNDERSTAND OR AGREE TO THESE TERMS, DO NOT ACCESS OR USE THE SERVICE, AND PLEASE EXIT THE SERVICE NOW.
Please review the Legal Disputes section below for the details regarding your agreement to arbitrate any disputes with Cosmunity.
Article 1. Description of the Service
The Service is a digital media sharing platform and online consumer-to-consumer marketplace. While Cosmunity may help facilitate transactions, Users that list and sell items through the Service (“Sellers”) and Users that purchase items through the Service (“Purchasers”) are entirely responsible for the transactions between them, including the listing of goods and any applicable product warranties. Individuals or entities who access or use the Service, including Sellers and Purchasers, are referred to in these Terms as “Users.”
As a Seller, you commit to including accurate descriptions of any items you list or sell through the Service and ensure that each of your listings does not include misleading, or what may reasonably be construed to be misleading, information and complies with these Terms. As a Purchaser, you agree that Cosmunity is not responsible in any manner for verifying that Seller has a valid right to offer or sell the items listed by Seller.
Article 2. User Registration; Account Information
You must be an individual (i.e., a natural person) who is at least thirteen (13) years of age to use the Service. By agreeing to these Terms, you represent and warrant to us: (i) that you are at least thirteen (13) years of age; (ii) that you have not previously been suspended or removed from the Service; and (iii) that your registration and your use of the Service is in compliance with any and all applicable laws and regulations. The Service is available only to individuals who can form legally binding contracts under applicable laws and regulations.
2.2 Accounts and Registration
(i) you refuse to provide required Account registration information or User information;
(ii) Cosmunity is unable to verify your User information;
(iii) you have previously engaged in any of the prohibited conduct outlined in Article 9;
(iv) you have had a previous Cosmunity Account suspended or restricted; or
(v) Cosmunity otherwise determines that your Account registration would be inappropriate.
2.3 Handling Payments
Article 3. Scope of License to the Service
The Service is licensed, not sold, to you for use only under the terms of this license. Cosmunity reserves all rights not expressly granted to you. Subject to your complete and ongoing compliance with these Terms, Cosmunity hereby grants you a personal, limited, revocable, non-transferable, non-sublicensable license to use the Service on compatible devices that you own or control, solely for your own use. You may not modify, alter, reproduce, distribute or make the Service available over a network where it could be used by multiple devices at the same time. You may not rent, lease, lend, sell, redistribute or sublicense the Service. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, distribute, transmit, publish, sell, transfer or create derivative works of the Service, any updates, or any part thereof (except as and only to the extent any foregoing restriction is prohibited by applicable law or regulation or third party terms), nor attempt to disable or circumvent any security or other technological measure designed to protect the Service or any content available through the Service. If you breach these license restrictions, or otherwise exceed the scope of the licenses granted herein, you may be subject to prosecution and damages, as well as liability for infringement of intellectual property rights. These Terms will govern any updates provided to you by Cosmunity that replace and/or supplement the original Service, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Article 4. Third Party Services and Linked Websites
Article 5. Account Suspension
If your account is suspended by Cosmunity, you: (i) remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to suspension; (ii) remain responsible for any incomplete transactions including the shipment of items that were paid for prior to termination; and (iii) remain obligated to resolve any disputes with other Users that are instigated or result from purchases or sales of goods occurring prior to suspension. Cosmunity has no obligation to make refunds or other payments to you during any such suspension, except as required by applicable law or regulation.
Article 6. User Content
6.1 User Content Generally
6.2 Limited License Grant to Cosmunity
Cosmunity does NOT claim ANY ownership rights in the User Content that you post on or through the Service. By displaying or publishing any User Content on or through the Service, you hereby grant to Cosmunity a non-exclusive, fully paid and royalty-free, worldwide, sublicensable and transferable license to use, modify, distribute, create derivative works of, publicly perform, publicly display, reproduce and translate such User Content when operating or providing the Service, including distributing part or all of the User Content in any media formats through any media channels. You acknowledge that Cosmunity is not responsible for any User Content you provide and that Cosmunity may reject or delete such User Content in Cosmunity’s sole discretion. Cosmunity and its affiliates also assume no responsibility for loss of information, howsoever such information is lost, including information which is permanently deleted either through the action of an employee or consultant or other who has access to the information, through failure of a computer network, or through any policy or directive of Cosmunity or any of its affiliates for destruction of data. You shall be solely responsible for keeping a duplicate copy of all User Content.
6.3 Advertising Grant to Cosmunity
Some aspects of the Service are supported by advertising revenue and may display advertisements and promotions, including personalized advertisement and promotions, and you hereby agree that Cosmunity may place such advertising and promotions on the Service or on, about, or in conjunction with your User Content.
6.4 Limited License Grant to Other Users
By posting and sharing User Content with another User of the Service, you grant that User a non-exclusive license to access and use that User Content as permitted by these Terms and the functionality of the Service.
6.5 User Content Representations and Warranties
You are solely responsible for your User Content and the consequences of posting or publishing User Content. By posting or publishing User Content, you affirm, represent, and warrant that:
- you are the creator and owner of, or have the necessary licenses, rights, consents, and permissions, to use and to authorize Cosmunity and Users of the Service to use and distribute your User Content as necessary to exercise the licenses granted by you in this Article 6 and in the manner contemplated by Cosmunity, the Service, and these Terms; and
- your User Content and the use of your User Content does not and will not:
(i) infringe, violate, or misappropriate any third party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right;
(ii) slander, defame, libel, or invade the right of privacy, publicity or other property rights of any other person;
(iii) violate any law or regulation or any provisions of these Terms; or
(iv) cause Cosmunity to violate any law or regulation.
If Cosmunity determines that you breached any of these representations and warranties, or your User Content is otherwise inappropriate, in addition to taking the actions provided in Article 10, Cosmunity may, at its discretion, remove the User Content with or without notice to you.
Article 7. Digital Millennium Copyright Act
7.1 DMCA Notification
We comply with the provisions of the Digital Millennium Copyright Act (“DMCA”) applicable to Internet service providers (17 U.S.C. § 512, as amended). If you have an intellectual property rights-related complaint about material posted on the Service, you may contact our Designated Agent at the following address: Cosmunity, Inc. Attn: Copyright Agent Email: firstname.lastname@example.org You may send a notice (“DMCA Notice”) alleging that materials hosted by or distributed through the Service infringe intellectual property rights by sending an email notice to our Designated Agent. Any such notice must include the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- a description of the material that you claim is infringing and where it is located on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the use of those materials on the Service is not authorized by the copyright owner, its agent, or the law; and
- a statement by you that the above information in your notice is accurate, and that, under penalty of perjury, you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
If you believe that any DMCA Notice received regarding content you posted is in error, and that your posting was not infringing, you may contact our Designated Agent to submit a written counter notification under the DMCA that must include the following information:
- your physical or electronic signature;
- an identification of the material that was removed and the location at which the material appeared before it was removed;
- a statement under penalty of perjury that you have a good faith belief that the material was removed as a result of mistake or misidentification of the material to be removed; and
- your name, address, and telephone number, and a statement that you consent to the jurisdiction of Federal District Court for the judicial district in which your address is located (or, if you live outside the United States, the U.S. District Court for the Northern District Texas in Dallas, Texas) and that you will accept service of process from the person who provided the DMCA Notice or an agent of such person.
7.2 Repeat Infringers
Cosmunity may suspend, without notice, the Accounts of Users that are determined by Cosmunity to be "repeat infringers." A repeat infringer is a user who has been notified of infringing activity or has had content they posted removed from the Service at least twice. However, nothing in these Terms obligates Cosmunity to monitor any User Content or make any final determinations regarding whether any content is infringing or misappropriating the rights of others.
Article 8. Third Party Materials
Certain portions of the Service may include, display, or make available content, data, information, applications or materials from third parties (“Third Party Materials”). You understand that by using the Service, you may encounter Third Party Materials and other content, such as third party advertisements and promotional content, that may be deemed offensive, indecent, or objectionable, which content may or may not be identified as having explicit language, and that may automatically and unintentionally contain links or references to objectionable material. Nevertheless, you agree to use the Service at your sole risk and agree that Cosmunity shall not have any liability to you for Third Party Materials or other third party content, including Third Party Materials and third party content that may be found to be offensive, indecent, or objectionable, or that is inaccurate, incomplete, untimely, invalid, illegal, or of poor quality. In addition, Third Party Materials and other third party content that may be accessed from, displayed on or linked to or from your device may not be available in all languages or in all countries. Cosmunity makes no representation that such Third Party Materials and other third party content are appropriate or available for use in any particular location. To the extent you choose to access such Third Party Materials or other third party content, you do so at your own initiative and are responsible for compliance with any applicable laws or regulations, including applicable local laws and regulations.
Article 9. Prohibited Conduct
By using the Service you agree not to:
use the Service for any illegal purpose or in violation of any local, state, national, or international law or regulation;
violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
post, upload, or distribute any User Content or other content that is unlawful, defamatory, libelous, inaccurate, or that a reasonable person could deem to be objectionable, profane, indecent, pornographic, obscene, harassing, threatening, embarrassing, hateful, offensive or otherwise inappropriate;
interfere with security-related features of the Service, including by: (a) disabling or circumventing features that prevent or limit use or copying of any content; or (b) reverse engineering or otherwise attempting to discover the source code of any portion of the Service except to the extent that the activity is expressly permitted by applicable law or regulation;
interfere with the operation of the Service or any User’s enjoyment of the Service, including by: (a) uploading or otherwise disseminating any virus, adware, spyware, worm, or other malicious code; (b) making any unsolicited offer or advertisement to another User of the Service; (c) attempting to collect, personal information about another User or third party without consent; or (d) interfering with or disrupting any network, equipment, or server connected to or used to provide the Service, or violating any regulation, policy, or procedure of any network, equipment, or server;
use any robot, spambot, spider, intelligent agents, avatars, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
perform any fraudulent activity including impersonating any person or entity (including another User), claiming a false affiliation, accessing any other Service Account without permission, or falsifying your age, date of birth or other information;
sell or otherwise transfer the access granted under these Terms or any Materials (as defined in Article 19.1) or any right or ability to view, access, or use any Material;
if you are a Seller, engage in any of the prohibited conduct listed in Article 11;
access the Service for the purpose of competing with Cosmunity or its affiliates; or
attempt to do any of the acts described in this Article 9, or assist or permit any person in engaging in any of the acts described in this Article 9. Cosmunity may contact Users or utilize a third party verification service to verify User information if Cosmunity suspects such prohibited conduct has occurred. Cosmunity may refuse a User access to or suspend a User from all or part of the Service until the completion of such verification. Cosmunity may prohibit a User who has had a suspended Account for engaging in any prohibited conduct from using and accessing any future services provided by Cosmunity. Cosmunity will not be obligated to refund any payments or provide any compensation in connection with acts taken by Cosmunity in accordance with this Article, except as required by applicable law or regulation.
Article 10. Suspension of Use; Termination of License; Restriction of Access; Discontinuation and Modification of the Service
If you violate any provision of these Terms, your license use the Service under this Agreement will terminate automatically. In addition, Cosmunity may, in its sole discretion, suspend your Account on the Service, restrict access to your Account or balances in your Account, or suspend your access to the Service at any time, with or without notice. Reasons for such suspension or restriction of access include:
(i) you become insolvent, or file for bankruptcy;
(ii) you suspend your payments, or are unable to pay fees or other payments to Cosmunity or other users as they become due;
(iii) the Payment Instrument you use to conduct transactions on the Service is not in good standing, closed, seized, or frozen;
(iv) you do not provide User information requested by Cosmunity or Cosmunity is unable to verify User information you have provided;
(v) Cosmunity suspects suspicious activity in connection with your Account or your use of the Service;
(vi) you violate any law or regulation or any provisions of these Terms or Cosmunity suspects such violation has occurred;
(vii) such suspension or restriction of access is required by applicable law or regulation; or
(viii) it would be a violation of law or regulation or Cosmunity suspects it would be a violation of law or regulation for Cosmunity to provide the Service to you.
We also reserve the right to modify, suspend or discontinue the Service at any time for any reason (including by limiting or discontinuing certain features of the Service) with or without notice to you.
Article 11. Prohibited Items
Cosmunity prohibits the listing or sale of any item that is set forth in the list of prohibited items described below. If a Seller lists a prohibited item, it will be deemed to be a violation of these Terms regardless of whether the Seller acted intentionally or not. If Cosmunity determines that a listing violates these Terms or is otherwise inappropriate, in addition to taking the actions provided in Article 10, Cosmunity may, at its discretion, remove the listing and cancel any related transactions.
Seller shall not use the Service to list or sale any of the following items:
Article 12. Purchasing Procedures
When purchasing an item using the Service, YOU AGREE TO THE FOLLOWING:
A Purchaser shall not (i) place an order without the intent to purchase, (ii) purchase goods for a commercial purpose (e.g., resale), or (iii) place any order that is determined by Cosmunity or applicable law to be fraudulent or illegal. You agree that the Service may only be used for bona fide purchases of goods, and may not be used to transfer money between a Purchaser and Seller that is unrelated to a purchase of goods. Cosmunity may cancel or suspend any transaction or Account it suspects is fraudulent, otherwise illegal or is the result of unauthorized access to the Service.
A Seller shall not purchase an item Seller themselves has listed. If a Seller wishes to withdraw a listing, he or she shall do so by deleting their post, or editing the quantity to zero. Sellers are required to print or otherwise acquire their own shipping labels with tracking and upload the tracking number on the corresponding Order Detail page on the Service within 5 days of the sale. If a tracking number is not uploaded in that time period, a Purchaser will be able cancel the transaction, which will result in a refund to the Purchaser. If a Seller does not upload the tracking number before shipping the item and the Purchaser cancels its order as permitted by the Payment Processor or these Terms, then the Purchaser may still receive a refund for the order.
Article 13. Payment and Execution of Transactions
13.1 Formation of a Sales Contract
A sales contract for an item will be formed with the Seller when the Purchaser completes the steps for purchasing an item as prompted on the Service. The Seller and the Purchaser shall not assign to a third party, provide as security, or otherwise dispose of their rights and obligations arising under such sales contract.
13.2 Payments by Purchaser and Shipping
If a sales contract is formed, the Purchaser shall pay the total amount of the item price and any applicable fees. If shipping for an item will be paid by the Seller, it will be included in the listed item price, and if shipping will be paid by the Purchaser, the item will be shipped after the Purchaser pays the item price and shipping fee. A Seller shall promptly ship an item after the Purchaser has completed his or her payment.
13.3 Cancellation of a Transaction
Cancellation of a transaction is not permitted once the item has been ordered by a Purchaser, except as required by applicable law or regulation. However, Cosmunity may allow the cancellation of an order made through the Service (a) by the Seller if the Purchaser does not make a payment or does not pay in time, (b) by the Purchaser if the Purchaser receives an item that is not as described in the listing or is sent the wrong item, the Seller does not upload the tracking information for the order within 5 days, or (c) by either a Seller or Purchaser for other reasons Cosmunity deems appropriate. If a Purchaser receives an item that is not as described in the listing or is sent the wrong item, to open a dispute the Purchaser must report the problem to the Payment Processor within the time frame permitted by the Payment Processor or within such longer time period as required under applicable law or regulation, through the Dispute form on the Order Detail page. In such a case, the Purchaser is encouraged not to rate the Seller regarding that transaction while the dispute is pending.
13.4 Purchases and Payment Procedure
Article 14. User Ratings
Once an item has been received by a Purchaser, the Purchaser is strongly encouraged to rate and review the Seller. Likewise, once the Purchaser has paid for the item, the Seller is strongly encouraged to rate and review the Purchaser. You agree to be honest and accurate in your ratings and reviews, including disclosing whether you have been compensated for your rating or review or were provided the item at no charge. Please refer to the FAQ Section for more information on our rating system.
Article 15. Fees and Redeeming Earnings
15.1 Processing Fees
The Payment Processors may charge fees for processing a Purchaser’s Payment Instrument. Any such fees will be included in your final cost to purchase an item.
15.2 No Interest
The Payment Processors do not pay interest to you on any funds which may be maintained in an Account or otherwise with the Payment Processors. You assign to the Payment Processors the right to earn interest on earnings or other funds maintained with such Payment Processors, in consideration of your use of the Service.
15.3 SMS Fees
You acknowledge that, by accessing or using the Service, certain mobile carrier charges may apply, including SMS messaging charges and data charges. To opt out of SMS notification associated with the Service, please contact the sender of the SMS messaging you which to discontinue.
Article 16. Amendment of these Terms
We reserve the right, at our discretion, to modify these Terms on a going-forward basis at any time, with or without prior notice, and such changes will be effective in accordance with the following: In the case of material changes to these Terms, Cosmunity will make reasonable efforts to notify you of the change, such as through a pop-up window on the Service, through sending an email to any email address you may have used to register for an Account, posting the notice on the App, or other similar mechanism. The modifications to these Terms will be effective upon the earlier of (i) your first use of the Service with actual notice of such change, or (ii) 30 days from the posting of such change. Your use of the Service following the date that any such change becomes effective constitutes your agreement to be bound by the modified Terms. If you do not agree to the modified Terms, your sole and exclusive remedy is to no longer use the Service. Disputes arising under these Terms will be resolved in accordance with the version of these Terms that was in effect at the time the dispute arose.
Article 17. Ownership; Proprietary Rights
The copyrights and other intellectual property in the Service are owned by Cosmunity, its affiliates, and its licensors. The visual interfaces, graphics, design, compilation, information, data, computer code (including source code or object code), products, software, services, and all other elements of the Service (“Materials”) provided by Cosmunity are protected by intellectual property laws and other laws or regulations. These Materials also include the word “Cosmunity,” which is a trademark of Cosmunity. All Materials contained in the Service are the property of Cosmunity or our third party licensors. Except as expressly authorized by Cosmunity, you may not make use of the Materials. Cosmunity reserves all rights to the Materials not granted expressly in these Terms.
While Cosmunity is continually working to develop and evaluate Cosmunity product ideas and features, Cosmunity appreciates feedback, comments, and suggestions from Users. If you send or share with Cosmunity any ideas or feedback related to any products, services, features, modifications, enhancements, refinements, or other materials (collectively “Feedback”), then regardless of what your accompanying communication may say, you agree that:
- Cosmunity has no obligation to review, consider, or implement Feedback, or to return all or part of any Feedback to you for any reason;
- Feedback is provided on a non-confidential basis, and Cosmunity is not under any obligation to keep any Feedback confidential or to refrain from using it in any way; and
- You irrevocably grant Cosmunity and its successors and assigns perpetual and unlimited permission to use, reproduce, modify, and distribute, display, and perform Feedback and create derivatives thereof for any purpose and without restriction, free of charge and without attribution of any kind, including by making, using, selling, offering for sale, importing, and promoting commercial products and services which incorporate or embody Feedback whether in whole or in part, and whether as provided or as modified.
Article 18. User’s Responsibilities
18.1 Provision of Required Equipment
A User shall provide and maintain, at their own cost and responsibility, the computers, smartphones, and other devices, software, communication lines, and any other communication environment that are required to receive the Service. Cosmunity makes no representation or warranty that the Service is compatible with any particular device or network, and does not provide any support to Users with regards to the provision, installation, and operation of any such devices.
18.2 Disputes Between Users
If there is a dispute between Users, or between a User and a third party in connection with the Service, the problem shall be resolved by such Users at their own cost, provided that Cosmunity may join the discussion at its discretion and that Cosmunity shall not bear any liability related to such disputes. If Cosmunity incurs any damages due to such disputes, the parties shall jointly and severally compensate Cosmunity for such damages. If you have a dispute with one or more Users, you release Cosmunity (and its officers, directors, employees, consultants, affiliates, subsidiaries and agents (together, the “Cosmunity Entities”) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. IF YOU ARE A CALIFORNIA RESIDENT, YOU WAIVE CALIFORNIA CIVIL CODE §1542, WHICH SAYS: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
18.3 Transaction Records and Customer Service
Records of your payment transactions through the Service and your Account balance transactions will be reflected in the “Purchases” and “Sales” sections in your Cosmunity Account. You are responsible for reviewing your payment transaction history to determine if there are any errors or unauthorized transactions, and for alerting Cosmunity of such events by reporting the order to Cosmunity at email@example.com. It is your obligation to print or save a copy of your transaction history if desired. If your Cosmunity Account or your access to the Service is suspended s, you may not be permitted to access your transaction history. Please refer to the Electronic Communications policy in Section 21.2 below for additional information.
Article 19. Indemnity; Disclaimer of Warranties; Exclusion of Liability
You agree that you will be responsible for your use of the Service, and you agree to defend and indemnify the Cosmunity Entities from and against every claim, liability, damage, loss, and expense, including reasonable attorneys’ fees and costs, arising out of or in any way connected with:
(i) your access to, use of, or alleged use of, the Service;
(ii) your violation of any portion of these Terms, any representation, warranty, or agreement referenced in these Terms, or any applicable law or regulation;
(iii) your violation of any third party right, including any intellectual property right or publicity, confidentiality, other property, or privacy right; or
(iv) any dispute or issue between you and any third party, including other Users. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you (without limiting your indemnification obligations with respect to that matter), and in that case, you agree to cooperate with our defense of that claim.
19.2 Disclaimer of Warranties
Cosmunity provides information through the Service. While Cosmunity has undertaken efforts to provide accurate information, it is not comprehensive and Cosmunity makes no commitment to update the information at any particular time, and the information on the Service may be out of date. Information on the Service may also be changed at any time without notice. As a result, the information may not be accurate, up to date or applicable to the circumstances of any particular case. Any decisions you make based on information contained in the Service are solely your responsibility.
THE SERVICE AND ALL MATERIALS AND CONTENT MADE AVAILABLE THROUGH THE SERVICE BY COSMUNITY ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. THE COSMUNITY ENTITIES DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, RELATING TO THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE, INCLUDING: (I) ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, OR NON-INFRINGEMENT; AND (II) ANY WARRANTY ARISING OUT OF COURSE OF DEALING, USAGE, OR TRADE. THE COSMUNITY ENTITIES DO NOT WARRANT THAT THE SERVICE OR ANY PORTION OF THE SERVICE, OR ANY MATERIALS OR CONTENT OFFERED THROUGH THE SERVICE, WILL BE UNINTERRUPTED, AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, ACCURATE, 100% SECURE, SATISFACTORY FOR YOUR PARTICULAR PURPOSE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. YOUR SOLE REMEDY IN THE EVENT OF ANY DEFICIENCY, ERROR, OR INACCURACY IN THE SERVICE SHALL BE TO REQUEST THAT COSMUNITY CORRECT THE MATTER OR, IF COSMUNITY FAILS TO DO SO, TO DISCONTINUE YOUR USE OF THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE WILL CREATE ANY WARRANTY REGARDING ANY OF THE COSMUNITY ENTITIES OR THE SERVICE THAT IS NOT EXPRESSLY STATED IN THESE TERMS. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE SERVICE, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE COSMUNITY ENTITIES ARE NOT RESPONSIBLE FOR THE ACCURACY OF ANY PAYMENT INSTRUMENT INFORMATION, INCLUDING WHETHER SUCH INFORMATION IS UP-TO-DATE. THE COSMUNITY ENTITIES HAVE NO RESPONSIBILITY TO DETERMINE IF YOUR OR ANOTHER USER’S PAYMENT INSTRUMENT IS IN GOOD STANDING OR IF YOU OR ANOTHER USER HAVE AN AVAILABLE BALANCE WITH WHICH TO MAKE A TRANSACTION THROUGH THE SERVICE. YOU MAY INCUR FEES, SUCH AS OVERDRAFT FEES OR OTHER CHARGES AS A RESULT OF SUCH TRANSACTIONS, PER YOUR AGREEMENT WITH YOUR PAYMENT INSTRUMENT ISSUER, OR YOUR REQUESTED TRANSACTION THROUGH THE SERVICE MAY BE UNSUCCESSFUL. COSMUNITY DOES NOT WARRANT, ENDORSE, GUARANTEE, OR ASSUME RESPONSIBILITY FOR ANY PRODUCT, ITEM OR SERVICE ADVERTISED OR OFFERED BY A THIRD PARTY OR SELLER THROUGH THE SERVICE, OR ANY HYPERLINKED WEBSITE OR SERVICE, OR FEATURED IN ANY BANNER OR OTHER ADVERTISING.
19.3 Limitation of Liability
IN NO EVENT WILL THE COSMUNITY ENTITIES BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, OR ANY OTHER INTANGIBLE LOSS) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF, OR YOUR INABILITY TO ACCESS OR USE, THE SERVICE OR ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), STATUTE, OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT ANY COSMUNITY ENTITY HAS BEEN INFORMED OF THE POSSIBILITY OF DAMAGE. EXCEPT AS EXPRESSLY PROVIDED IN THE FOLLOWING PARAGRAPH, YOU AGREE THAT THE AGGREGATE LIABILITY OF THE COSMUNITY ENTITIES TO YOU FOR ALL CLAIMS ARISING OUT OF OR RELATING TO THE USE OF OR ANY INABILITY TO USE ANY PORTION OF THE SERVICE OR OTHERWISE UNDER THESE TERMS, WHETHER IN CONTRACT, TORT, OR OTHERWISE, IS LIMITED TO THE GREATER OF: (I) THE AMOUNT YOU HAVE PAID TO COSMUNITY FOR ACCESS TO AND USE OF THE SERVICE IN THE 12 MONTHS PRIOR TO THE CLAIM; OR (II) $100. FOR ALL CLAIMS ARISING OUT OF OR RELATING TO TRANSFERS OF FUNDS FROM YOUR COSMUNITY ACCOUNT BALANCE, THE SOLE REMEDY AGAINST COSMUNITY SHALL BE LIMITED TO THE AMOUNT OF THE MONEY TO BE TRANSMITTED PLUS FEES AND CHARGES. IN NO EVENT SHALL COSMUNITY BE LIABLE FOR DAMAGES FOR DELAY, NONDELIVERY, NONPAYMENT OR UNDERPAYMENT OF A PAYMENT TRANSACTION, WHETHER CAUSED BY AN ACT OR OMISSION OF COSMUNITY ENTITIES OR OTHERWISE, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW OR REGULATION. COSMUNITY SHALL HAVE NO LIABILITY FOR SUSPENDING YOUR ACCOUNT, RESTRICTING ACCESS TO YOUR ACCOUNT OR BALANCES IN YOUR ACCOUNT, OR SUSPENDING OR RESTRICTING YOUR ACCESS TO THE SERVICE PURSUANT TO THESE TERMS. THE COSMUNITY ENTITIES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT PURCHASES OR SALES, THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS, BANK DIRECT DEPOSIT TRANSFERS, OR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS ARTICLE 19.3 WILL APPLY EVEN IF ANY LIMITED REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
19.4 Force Majeure
No Cosmunity Entity shall have any liability for any failure or delay resulting from any condition beyond its reasonable control, including governmental action or acts of terrorism, earthquake, fire, flood or other acts of God, labor conditions, power failures and Internet disturbances.
Article 21. Miscellaneous
If Cosmunity determines that there is a need to notify or contact a User, it will do so by sending a text message, direct message, email, or letter to the email address or address provided by the user or by displaying notice on the Service or by other reasonable means. Cosmunity shall not be liable for any damages incurred due to the fact that Cosmunity’s notice or communication was not received or was delayed. You may contact us by emailing us at firstname.lastname@example.org, or by sending a message through the Instabug interface which you can access by shaking your mobile device while you have the App in the foreground.
21.2 Electronic Communications
You are solely responsible for the reporting and payment of any applicable taxes arising from the use of the Service. You hereby agree to comply with any and all applicable tax laws and regulations in connection with your use of the Service, including reporting and payment of any taxes arising from a payment transaction or income received through sales made through the Service.
21.4 Prohibition on Assignment
You may not assign or transfer these Terms or your rights under these Terms, in whole or in part, by operation of law or otherwise, without our prior written consent. We may assign these Terms to a successor or affiliate at any time without notice to you or your consent.
The failure to require performance of any provision will not affect our right to require performance at any other time after that, nor will a waiver by us of any breach or default of these Terms, or any provision of these Terms, be a waiver of any subsequent breach or default or a waiver of the provision itself. Use of Article headers in these Terms is for convenience only and will not have any impact on the interpretation of any provision. If any part of these Terms is held to be invalid or unenforceable by a court of competent jurisdiction, the unenforceable part will be given effect to the greatest extent possible, and the remaining parts will remain in full force and effect.
21.6 Governing Law and Jurisdiction
These Terms shall be governed and construed under the laws of Texas. Any dispute that arises between you and Cosmunity that may not be subject to arbitration under Article 22 below shall be submitted to the exclusive jurisdiction of the state and federal courts in Dallas, Texas. The following Articles survive any termination of the agreement formed by your acceptance of these Terms: 2, 4 through 25. If you are a California resident, California Civil Code Section 1789.3 allows you to contact the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs in writing at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (800) 952-5210, in order to resolve a complaint regarding the Service or to receive further information regarding use of the Service.
21.7 Entire Agreement
21.8 Third Party Beneficiaries
Other than the Cosmunity Entities, no other person or company will be third party beneficiaries to the Terms.
21.9 Headings and Construction
The headings used in these Terms are for convenience only and have no legal meaning or effect. Terms defined in the singular have the corresponding meanings in the plural, and vice versa. Unless the context of these Terms clearly requires otherwise, words importing the masculine gender include the feminine and neutral genders and vice versa. The terms “include,” “includes” or “including” mean “including without limitation.” The words “hereof,” “hereto,” “hereby,” “herein,” “hereunder” and words of similar import, when used in these Terms, refer to these Terms as a whole and not to any particular section or article in which such words appear. The word “or” will not be construed as exclusive.
Article 22. Legal Disputes
Please read this section carefully. It affects your rights and access to courts.
Many User concerns can be resolved quickly and to your satisfaction by contacting Cosmunity at email@example.com. In the unlikely event that your concern is not resolved by this method, You and Cosmunity each agree that any and all such disputes or claims that have arisen or may arise between you and Cosmunity relating in any way to or arising out of this or previous versions of these Terms, these Terms, your use of or access to the Service, any goods sold, offered, or purchased through the Service, or any payments processed for goods sold, offered or purchased through the Service, shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, allows for more limited discovery than in court, and is subject to very limited review by courts. You and Cosmunity agree that the Federal Arbitration Act governs the interpretation and enforcement of this Article.
This Section 22 does not preclude you from bringing issues to the attention of federal, state, or local agencies, including, for example, the Federal Communications Commission. Such agencies can, if the law allows, seek relief against us on your behalf.
You agree that, by entering into these Terms, you and Cosmunity are each waiving the right to a trial by jury.
22.1 Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND COSMUNITY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND COSMUNITY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS.
22.2 Arbitration Procedures
The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Article, any part of it, or of the Agreement including any claim that all or any part of this Article or Agreement is void or voidable.
A form for initiating arbitration proceedings is available on the American Arbitration Association (“AAA”) site at http://www.adr.org and here. In addition to filing this form with the AAA in accordance with its rules and procedures, you must send a copy of the completed form to us at the following address to initiate arbitration proceedings: Cosmunity, Inc. Attn: Copyright Agent, 8330 LBJ Freeway, Ste B565, Dallas, TX 75243 (the “Notice Address”).
The arbitration will be conducted by the American Arbitration Association under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Section 22. The AAA’s rules are available at http://www.adr.org, by calling the AAA at 1-800-778-7879, or by sending a written request for the rules to the Notice Address.
For claims under $10,000, you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a non-appearance based telephonic hearing, or by an in-person hearing as established by the AAA Rules. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Any arbitration hearings will take place at a mutually-agreeable location or, if User and Cosmunity are unable to agree, in Dallas County, Texas.
During the arbitration, the amount of any settlement offer made by Cosmunity or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Cosmunity is entitled.
Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Texas, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Cosmunity user to the extent required by applicable law or regulation.
The arbitrator’s award will be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
22.3 Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Article.
After Cosmunity receives notice that you have commenced arbitration, it will promptly reimburse you for your payment of the filing fee, unless your claim is for greater than $75,000. (The filing fee for consumers currently is $200 for claims under $10,000, but is subject to change by the arbitration provider. If you are unable to pay this fee, Cosmunity will pay it directly upon receiving a written request at the Notice Address.)
Cosmunity will pay the costs for the arbitration, provided that User’s claim is not frivolous. If you receive an arbitration award that is more favorable than any offer Cosmunity makes to resolve the claim before an arbitrator was selected, then Cosmunity will also pay your reasonable attorneys’ fees (not to exceed the actual amount of attorneys' fees incurred by you) in addition to any substantive award. The right to attorneys’ fees and expenses discussed in this Section 22.3 supplements any right to attorneys’ fees and expenses you may have under applicable law. Thus, if you would be entitled to a larger amount under the applicable law, this provision does not preclude the arbitrator from awarding you that amount. However, you may not recover duplicative awards of attorneys’ fees or costs. Cosmunity will not seek its attorneys’ fees and costs for arbitration unless the arbitrator determines that your claim is frivolous.
Note: If you are a California consumer, you may be entitled to have certain fees and costs waived. A form detailing the eligibility requirements for this waiver can be found here https://adr.org/sites/default/files/AAA%20Affidavit%20for%20Waiver%20of%20Fees%20Notice%20California%20Consumers.pdf.24]
With the exception of any of the provisions in Section 24.1 ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Article is invalid or unenforceable, the other parts of this Article shall still apply. If an arbitrator or court decides that any of the provisions in Section 24.1 ("Prohibition of Class and Representative Actions and Non-Individualized Relief") is invalid or unenforceable, then the entirety of this Article shall be null and void.
22.5 Opt-Out Procedure
IF YOU ARE A NEW USER, YOU CAN CHOOSE TO REJECT THIS ARTICLE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE TERMS FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO THE NOTICE ADDRESS.
Notwithstanding any provision in these Terms to the contrary, we agree that if Cosmunity makes any future change to this arbitration provision (other than a change to the Notice Address) during the term in which your Account is active, you may reject any such change by sending us written notice of your rejection to the Notice Address within 30 days of such change. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the version of this Section 22 you previously agreed to.
Article 23. Notice Regarding Apple
To the extent that you are using our Service on an iOS device, you further acknowledge and agree to the terms of this Article 23. You acknowledge that these Terms are between you and Cosmunity only, not with Apple, and Apple is not responsible for the Service and the content thereof. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Service. In the event of any failure of the Service to conform to any applicable warranty, you may notify Apple and Apple will refund any applicable purchase price for the App to you; and, to the maximum extent permitted by applicable law, Apple has no other warranty obligation whatsoever with respect to the Service. Apple is not responsible for addressing any claims by you or any third party relating to the Service or your possession and/or use of the Service, including: (i) product liability claims; (ii) any claim that the Service fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. Apple is not responsible for the investigation, defense, settlement and discharge of any third party claim that the Service and/or your possession and use of the App infringes that third party’s intellectual property rights. You agree to comply with any applicable third party terms when using the Service. Apple and Apple’s subsidiaries are third party beneficiaries of these Terms, and upon your acceptance of these Terms, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms against you as a third party beneficiary of these Terms. You hereby 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.