Terms of Service
Date of Last Revision : November 11, 2016
Article 1. Description of the Service The Service is an online consumer-to-consumer marketplace and digital media sharing platform. 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 without limitation the listing of goods and any applicable product warranties. Sellers and Purchasers are collectively referred to herein as “users” of the Service.
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
To access most features of the Service, you must register for an account with us (an “Account” or a “Cosmunity Account”). You may only register for one Account. You may be required to provide us with some information about yourself (such as your name, address, date of birth). We may verify your User Information with a third party vendor. We may additionally request you to send us additional documents or information to help us verify your identity. If we are unable to verify your identity, your use of the Service may be restricted or prohibited. The Personal Data collected are used to provide the User with services or to sell goods, including payment and possible delivery. The Personal Data collected to complete the payment may include the credit card, the bank account used for the transfer, or any other means of payment envisaged. The kind of Data collected by this Application depends on the payment system used. If you make purchases through the Service, you will be asked to provide information about your payment instrument(s) (each a “Payment Instrument”). Payment Instruments may include a credit card, debit card, Account earnings or credits balance, or other payment method permitted by us which may be stored with us for future use. We may validate that your Payment Instrument is in good standing with your Payment Instrument issuer. You agree that the User Information and Payment Instrument information you provide to us is accurate and that you will keep it accurate and up-to-date at all times. When you register for an Account, you will be asked to provide a password. You are solely responsible for maintaining the confidentiality of your Account and password. You agree to accept responsibility for all activities that occur under your Account. You shall not transfer, sell, pledge, lend, rent, or otherwise dispose of your Account information. If you have reason to believe that your Account is no longer secure, then you must immediately notify us by emailing firstname.lastname@example.org. A user shall not use an Account for the purpose of money laundering or any illegal purpose or in violation of any law or regulation or provision of these Terms. If Cosmunity determines that your use of an Account violates any of the foregoing or is otherwise inappropriate, Cosmunity may, at its discretion, take the actions provided for in Article 10 or otherwise in these Terms. Cosmunity may choose in its sole discretion not to approve your Account registration or to terminate your existing Account registration if:
- (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 terminated or suspended; or
- (v) Cosmunity otherwise determines that your Account registration would be inappropriate.
2.3 Handling Payments
The App and Web site 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 license to use the App and Web site on a single compatible device that you own or control, solely for your own use. You may not modify, alter, reproduce, distribute or make the App or Web site 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 App or Web site. You may not copy, decompile, reverse engineer, disassemble, attempt to derive the source code of, modify, or create derivative works of the App or Web site, 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 App or Web site or any content available through the App or Web site. 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 App or Web site, unless such upgrade is accompanied by a separate license in which case the terms of that license will govern.
Article 5. Account Deactivation by User You may deactivate your Account at any time by contacting customer service by contacting email@example.com. If you deactivate your Account, you: (i) remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination; (ii) remain responsible for any incomplete transactions including without limitation the shipment of products 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 termination. Cosmunity has no obligation to make refunds or other payments to you upon or after termination of your Account, except as required by applicable law or regulation.
Article 6. User Content
6.1 User Content Generally.
Certain features of the Service may permit users to upload content to the Service, including messages, reviews, photos, video, images, folders, data, text, and other types of works ("User Content") and to publish User Content on the Service. You retain copyright and any other proprietary rights that you may hold in the User Content that you post to the Service.
6.2 Limited License Grant to Cosmunity. Cosmunity does NOT claim ANY ownership rights in the text, files, images, photos, video, sounds, musical works, works of authorship, applications, or any other materials that you post on or through the Cosmunity Services. By displaying or publishing ("posting") any User Content on or through the Cosmunity Services, you hereby grant to Cosmunity a non-exclusive, fully paid and royalty-free, worldwide, limited license to use, modify, delete from, add to, publicly perform, publicly display, reproduce and translate such Content, including without limitation distributing part or all of the Site in any media formats through any media channels.
6.3 Advertising Grant to Cosmunity Some of the Cosmunity Services are supported by advertising revenue and may display advertisements and promotions, and you hereby agree that Cosmunity may place such advertising and promotions on the Cosmunity Services or on, about, or in conjunction with your User Content. The manner, mode and extent of such advertising and promotions are subject to change without specific notice to you.
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:
- a. 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
- b. 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 breach any of the 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: support@Cosmunity.com 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:
- a. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other right being infringed;
- b. a description of the copyright-protected work or other intellectual property right that you claim has been infringed;
- c. a description of the material that you claim is infringing and where it is located on the Service;
- d. your address, telephone number, and email address;
- e. 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
- f. 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.
- a. your physical or electronic signature;
- b. an identification of the material that was removed and the location at which the material appeared before it was removed;
- c. 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
- d. 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 District of 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 will promptly terminate 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.
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 are not 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 but not limited to applicable local laws and regulations.
Article 9. Prohibited Conduct
By using the Service you agree not to:
- 9.1 use the Service for any illegal purpose or in violation of any local, state, national, or international law or regulation;
- 9.2 violate, or encourage others to violate, any right of a third party, including by infringing or misappropriating any third party intellectual property right;
- 9.3 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, harassing, threatening, embarrassing, hateful, offensive or otherwise inappropriate;
- 9.4 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;
- 9.5 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;
- 9.6 use any robot, spambot, spider, crawler, scraper or other automated means or interface not provided by us to access the Service or to extract data;
- 9.7 perform any fraudulent activity including impersonating any person or entity, claiming a false affiliation, accessing any other Service Account without permission, or falsifying your age, date of birth or other information;
- 9.8 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;
- 9.9 If you are a Seller, engage in any of the prohibited conduct listed in the Seller Terms; or
- 9.10 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 that is terminated 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 or Termination of Use; Restriction of Access; Discontinuation and Modification of the Service
If you violate any provision of these Terms, your permission from us to use the Service will terminate automatically. In addition, Cosmunity may in its sole discretion suspend or terminate your Account on the Service, restrict access to your Account or balances in your Account, or suspend or terminate your access to the Service at any time, with or without notice. Reasons for such suspension or termination or restriction of access include but are not limited to:
- (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 termination 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.
- (i) remain obligated to pay all outstanding fees, if any, relating to your use of the Service incurred prior to termination or suspension;
- (ii) remain responsible for any incomplete transactions including without limitation the shipment of products that were paid for prior to termination or suspension; 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 termination or suspension. Cosmunity has no obligation to make refunds or other payments to you upon or after termination or suspension of your Account or Service access, except as required by applicable law or regulation.
Article 11. Prohibited Items
Cosmunity prohibits the listing or sale of any item that is set forth in the list of prohibited items found in the Seller Terms. 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.
Article 12. Purchasing Procedures
When purchasing a product using the Service, YOU AGREE TO THE FOLLOWING:
12.1 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 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.
12.2 A Seller shall not purchase a product Seller themselves has listed. If a Seller wishes to withdraw a listing, he or she shall do so according to the procedures specified by Cosmunity. Please see the FAQ Section for information on withdrawing a listing.
Article 13. Payment and Execution of Transactions
13.1 Formation of a Sales Contract
A sales contract for a product will be formed with the Seller when the Purchaser completes the steps for purchasing a product as prompted on the Service, but before payment is made by the Purchaser. 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. For more information on our payment procedures, please refer to the Help Center Section.
13.2 Payments by Purchaser and Shipping
If a sales contract is formed, the Purchaser shall pay the total amount of the product price and any applicable fees. If shipping for a product will be paid by the Seller, it will be included in the listed product price, and if shipping will be paid by the Purchaser, the product will be shipped after the Purchaser pays the product price and shipping fee. A Seller shall ship a product after the Purchaser has completed his or her payment.
13.3 Cancellation of a Transaction
Cancellation of a transaction is not permitted once the product has been ordered by a Purchaser, except as required by applicable law or regulation. However, Cosmunity may allow the cancellation of an order if the Purchaser does not make a payment or does not pay in time, the Purchaser receives an item that is not as described in the listing or is sent the wrong item, the Seller does not provide tracking for the order within 5 days, or for other reasons Cosmunity deems appropriate. If a Purchaser receives an item that’s not as described in the listing or is sent the wrong item, the Purchaser must report the problem to us within 2 days of delivery, 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 must NOT rate the Seller.
13.4 Purchases and Payment Procedure
Any payment by a Purchaser in connection with the Service shall be made through Cosmunity and its payment processor and the details of such payment or settlement shall be subject to the rules set forth in the FAQ. Purchases made through the Service are also subject to the terms and conditions of Purchaser’s Payment Instrument between Purchaser and the issuer of the Payment Instrument. By agreeing to these Terms, you authorize Cosmunity and its payment processor to charge or debit your designated Payment Instrument, as applicable, when you make transactions or incur fees for the Service. When Purchaser requests to make a purchase, Cosmunity processes such transaction on behalf of the Seller, and Purchaser authorizes Seller to submit charges or credits (in the case of refunds/reversals), as applicable, to the Purchaser’s Payment Instrument. Seller agrees that Cosmunity and its designated payment processor act as agents for the Seller in processing payments for purchases. A Purchaser’s obligation to a Seller for the purchase price shall be deemed extinguished upon receipt by Cosmunity of the purchase price (except for Purchaser’s obligations in the event of a chargeback or other payment reversal). You agree that Cosmunity shall not have any liability to you for any payments made through Cosmunity’s designated payment processor. Payments to Sellers shall be made through Cosmunity and are further outlined in Article 15 below. When user ratings by both a Purchaser are complete, Cosmunity and its designated payment processor will process the payment to Seller, unless a dispute has been submitted for the order in which case the payment will be held until resolved. Additionally, the payment to the Seller will go through in the case that the Purchaser does not rate the Seller within two days of the package arrival. Cosmunity will make commercially reasonable efforts to credit Seller’s earnings balance with Cosmunity (discussed further in Article 15 below) within ten (10) days of receipt of the settled payment proceeds by Cosmunity. Receipts may not be issued to users for payments made or received on the Service, except as required by applicable law or regulation. A user’s responsibility for bank transfer fees and other costs required to make or receive a payment shall be subject to the rules set forth in the FAQ.
Article 14. User Ratings
Once a product has been received by a Purchaser, the Purchaser shall promptly rate the Seller. Once the Purchaser has rated the Seller, the Seller shall promptly rate the Purchaser. Please refer to the FAQ Section for more information on our rating system.
Article 15. Fees and Redeeming Earnings
15.1 Seller Fees
Sellers agree to pay Cosmunity the applicable "Transaction Fee", which is defined in the FAQ Section, when the transaction for the goods is complete. If applicable, the Transaction Fee amount is displayed when Seller lists a product. Sellers are required to print their own shipping labels with tracking and upload the tracking number on the Order Detail page on the website or application. The Transaction Fee will be subtracted from the Seller’s earnings.
15.2 Redeeming and Using Earnings; Earnings Limitations
After a transaction is complete and goods have been delivered to the Purchaser, and after Purchaser has rated the Seller, the Seller will receive funds for the transaction. Additionally, the seller will receive funds in the case where the Purchaser does not review the Seller within two days of the package arrival. If the Purchaser disputes the order and Cosmunity deems that the item the Purchaser receives is the wrong item or is not as described, the Purchaser will be required to pay to ship the item back to the Seller, and the remaining money for the transaction will be returned to the Purchaser. Cosmunity or its banks or processors may impose additional limitations on the dollar amount or frequency of redemptions or use of earnings; these limitations are subject to change without notice. Ratings need to be provided by the Purchaser (as outlined in Article 14) in order for the Seller to receive his or her earnings. Cosmunity shall transfer earnings to Seller’s bank account on a two day rolling basis. Cosmunity may ask for Seller’s User Information to secure the transfer and the purchasing, and may retain the earnings until Seller’s User Information has been verified and confirmed. A Seller whose User Information has not been verified and confirmed by Cosmunity may not complete a sale through the Service that would result in an Account earnings balance in excess of $1,900 (one thousand nine hundred dollars) on any day, as calculated by Cosmunity in its discretion.
15.3 No Interest.
Cosmunity and its bank do not pay interest to you on earnings or any other funds which may be maintained in an Account or otherwise with Cosmunity. You assign to Cosmunity the right to earn interest on earnings or other funds maintained with Cosmunity and its bank, in consideration of your use of the Service.
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 the Web site, 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 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 terminate your Account and you may 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 Service is owned and operated by Cosmunity. 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 and other laws or regulations. 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 prides itself on paying close attention to feedback, comments, and suggestions from users. If you choose to contribute by sending Cosmunity any ideas for products, services, features, modifications, enhancements, refinements, or other materials (collectively "Feedback"), then regardless of what your accompanying communication may say, you agree that:
- a. Cosmunity has no obligation to review, consider, or implement Feedback, or to return all or part of any Feedback to you for any reason;
- b. 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
- c. You irrevocably grant Cosmunity and its successors and assigns perpetual and unlimited permission to use, reproduce, modify, and distribute, display, and perform Feedback and 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 Cosmunity Account balance transactions will be reflected in the “My Orders” and “My 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 through by reporting the order and/or emailing firstname.lastname@example.org. 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 deactivated or suspended by you or by us, you may not be permitted to access your transaction history. Please refer to the Electronic Communications Policy in Article 23 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. 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
THE SERVICE AND ALL MATERIALS AND CONTENT AVAILABLE THROUGH THE SERVICE ARE PROVIDED "AS IS" AND ON AN "AS AVAILABLE" BASIS, WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. 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, ACCURATE, SECURE, OR FREE OF ERRORS, VIRUSES, OR OTHER HARMFUL COMPONENTS, AND DO NOT WARRANT THAT ANY OF THOSE ISSUES WILL BE CORRECTED. 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 SERVICE USER, AND ANY MATERIALS OR CONTENT AVAILABLE THROUGH THE SERVICE. YOU UNDERSTAND AND AGREE THAT YOU USE THE SERVICE, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAIN MATERIALS OR CONTENT THROUGH THE SERVICE AND ANY ASSOCIATED SITES OR SERVICES, AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICE), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICE OR THE DOWNLOAD OR USE OF THAT MATERIAL OR CONTENT. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OF WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION. THE Cosmunity ENTITIES ARE NOT RESPONSIBLE FOR THE ACCURACY OF ANY PAYMENT INSTRUMENT INFORMATION, INCLUDING, BUT NOT LIMITED TO, 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.
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 OR TERMINATING YOUR ACCOUNT, RESTRICTING ACCESS TO YOUR ACCOUNT OR BALANCES IN YOUR ACCOUNT, OR SUSPENDING OR TERMINATING YOUR ACCESS TO THE SERVICE PURSUANT TO ARTICLE 10. THE Cosmunity ENTITIES SHALL NOT BE RESPONSIBLE FOR ANY SERVICE INTERRUPTIONS, INCLUDING, BUT NOT LIMITED TO, SYSTEM FAILURES OR OTHER INTERRUPTIONS THAT MAY AFFECT PURCHASES OR SALES, THE RECEIPT, PROCESSING, ACCEPTANCE, COMPLETION OR SETTLEMENT OF PAYMENT TRANSACTIONS, BANK DIRECT DEPOSIT TRANSFERS, OR THE SERVICE. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES. ACCORDINGLY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU. EACH PROVISION OF THESE TERMS THAT PROVIDES FOR A LIMITATION OF LIABILITY, DISCLAIMER OF WARRANTIES, OR EXCLUSION OF DAMAGES IS TO ALLOCATE THE RISKS UNDER THESE TERMS BETWEEN THE PARTIES. THIS ALLOCATION IS AN ESSENTIAL ELEMENT OF THE BASIS OF THE BARGAIN BETWEEN THE PARTIES. EACH OF THESE PROVISIONS IS SEVERABLE AND INDEPENDENT OF ALL OTHER PROVISIONS OF THESE TERMS. THE LIMITATIONS IN THIS ARTICLE 21.3 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 but not limited to 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, email, or letter to the email address or address provided by the user or by displaying notice on the App or the Web site 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 email@example.com, or by sending a message through the Instabug interface which you can access by shaking your mobile device while you have the Cosmunity application 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 at any time without notice or 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, 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 California. Any dispute that arises between you and Cosmunity that may not be subject to arbitration under Article 24 below shall be submitted to the exclusive jurisdiction of the state and federal courts in San Francisco, California. 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.
Article 22. Legal Disputes
You and Cosmunity each agree that any and all 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.
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, but not limited to, any claim that all or any part of this Article or Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Article. The AAA’s rules are available at http://www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, you must 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 B688, Dallas, TX 75243 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. 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 shall 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. For claims under $10,000, all arbitration, and filing fees will be the responsibility of each party. 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 pay user’s reasonable attorneys’ fees (not to exceed the actual amount of attorneys' fees incurred by user) in addition to any substantive award. Cosmunity will not seek its attorneys’ fees and costs in arbitration unless the arbitrator determines that user’s claim is frivolous or if arbitration is awarded to Cosmunity.
With the exception of any of the provisions in Article 24.1 of this Article ("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 Article 24.1 of this Article ("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 Cosmunity, INC., 8330 LBJ Freeway, Ste B688, Dallas, TX 75243.
Article 23. Notice Regarding Apple
To the extent that you are using our App 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, but not limited to: (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.