Welcome and thank you for your interest in Fleek Commerce Inc. (“Fleek”, “we” or “us”) and our marketplace platform (“Platform”) that connects vintage buyers and sellers from around the world. This Terms of Service Agreement (“Terms of Service”) governs your use of (i) our website available at https://joinfleek.com/ (our “Website”), (ii) any mobile application that we offer that is subject to these Terms of Service, including our mobile application for vintage sellers on the Platform (each, an “Application”), and (iii) the services or other resources available on or enabled via our Website or any Application including our Platform (collectively, with our Applications and Website, the “Services”). Please read these Terms of Service carefully as they affect your rights. You should print a copy of these Terms of Service or save them to your computer for future reference.
BY ACCESSING OR USING OUR WEBSITE, APPLICATIONS, PLATFORM OR SERVICES IN ANY WAY, BY CLICKING ON THE “I ACCEPT” BUTTON, COMPLETING THE REGISTRATION PROCESS, MAKING INVENTORY AVAILABLE ON THE SERVICES AND/OR BROWSING THE WEBSITE OR DOWNLOADING A FLEEK APPLICATION YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS OF SERVICE, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH FLEEK, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS OF SERVICE PERSONALLY OR ON BEHALF OF THE ENTITY YOU HAVE NAMED AS THE USER, AND TO BIND THAT ENTITY TO THESE TERMS OF SERVICE. THE TERM “YOU” REFERS TO YOU AS AN INDIVIDUAL AND ANY LEGAL ENTITY THAT YOU HAVE NAMED AS A USER AT THE TIME OF REGISTRATION FOR THE FLEEK SERVICES. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS OF SERVICE YOU MAY NOT ACCESS OR USE THIS WEBSITE, ANY APPLICATIONS, THE PLATFORM OR THE SERVICES.
Your use of, and participation in, certain Services may be subject to additional terms (“Supplemental Terms”) and such Supplemental Terms will either be listed in these Terms of Service or will be presented to you for your acceptance when you sign up to use the supplemental Service. If these Terms of Service are inconsistent with the Supplemental Terms, the Supplemental Terms shall control with respect to such Service. These Terms of Service and any applicable Supplemental Terms are referred to herein as the “Agreement.”
UK and EU Business Users
If you are a “business user” as defined in Article 2(1) of Regulation (EU) 2019/1150 on promoting fairness and transparency for business users of online intermediation services (the “P2B Regulation”), then the Fleek Supplementary Terms of Service for UK and EU Business Users apply to you (“P2B Terms”). In summary, if (i) you are acting in a commercial or professional capacity or on behalf of a company or other entity that you have named as the User of the Services, and (ii) you offer goods to consumers located in the European Union or the United Kingdom through the Services and (iii) your place of residence or establishment is within the European Union or the United Kingdom you are likely a business user under the P2B Regulation, and will be considered a “Business User” for the purposes of the P2B Terms.
UK and EU Consumer Users
If you are a consumer located in the UK and/or the European Union (i.e., you are not an organization or an individual acting wholly or mainly within your trade, business, craft or profession), these Terms of Service apply to you as amended by the terms contained in Section 26.
Understanding these Terms of Service (for Users other than UK and EU Consumer Users)
THESE TERMS OF SERVICE INCLUDE (1) YOUR AGREEMENT THAT FLEEK HAS NO LIABILITY REGARDING THE SERVICES (SECTION 3 (FLEEK ONLY PROVIDES A VENUE)); (2) YOUR AGREEMENT THAT THE SERVICES ARE PROVIDED “AS IS” AND WITHOUT WARRANTY (SECTION 16 (DISCLAIMER OF WARRANTIES AND CONDITIONS)); (3) YOUR CONSENT TO RELEASE FLEEK FROM LIABILITY (SECTION 14 (RELEASE)); AND (4) YOUR AGREEMENT TO INDEMNIFY FLEEK (SECTION 15 (INDEMNIFICATION)).
NOTICE TO USERS LOCATED IN THE UNITED STATES – IF YOU ARE A USER LOCATED IN THE UNITED STATES, PLEASE BE AWARE THAT SECTION 22 (DISPUTE RESOLUTION) OF THESE TERMS OF SERVICE, BELOW, CONTAINS PROVISIONS GOVERNING HOW TO RESOLVE DISPUTES BETWEEN YOU AND FLEEK, INCLUDING, WITHOUT LIMITATION, ANY DISPUTES THAT AROSE OR WERE ASSERTED PRIOR TO THE EFFECTIVE DATE OF THIS AGREEMENT. IN PARTICULAR, IT CONTAINS AN ARBITRATION AGREEMENT WHICH WILL, WITH LIMITED EXCEPTIONS, REQUIRE DISPUTES BETWEEN US TO BE SUBMITTED TO BINDING AND FINAL ARBITRATION. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT: (1) YOU WILL ONLY BE PERMITTED TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF AGAINST US ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING; AND (2) YOU ARE WAIVING YOUR RIGHT TO PURSUE DISPUTES OR CLAIMS AND SEEK RELIEF IN A COURT OF LAW AND TO HAVE A JURY TRIAL.
ANY DISPUTE, CLAIM OR REQUEST FOR RELIEF RELATING IN ANY WAY TO YOUR USE OF THE SITE WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANY OTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS IS EXPRESSLY EXCLUDED FROM THIS AGREEMENT.
PLEASE BE AWARE THAT SECTION 4.4 (FLEEK COMMUNICATIONS) OF THESE TERMS OF SERVICE, BELOW, CONTAINS YOUR OPT-IN CONSENT TO RECEIVE COMMUNICATIONS FROM US, INCLUDING VIA E-MAIL, POSTAL MAIL, TEXT MESSAGE AND PUSH NOTIFICATION.
Our right to make changes to these Terms of Service
PLEASE NOTE THAT THE AGREEMENT IS SUBJECT TO CHANGE BY FLEEK IN ITS SOLE DISCRETION AT ANY TIME. When changes are made, Fleek will make a new copy of the Terms of Service available at the Website and within the Applications and any new Supplemental Terms will be made available from within, or through, the affected Service on the Website or within the Applications.
We will also update the “Last Updated” date at the top of the Terms of Service or Supplemental Terms. If we make any material changes, and you have registered with us to create an Account (as defined in Section 5.1 (Registering Your Account) below) we will also send an e-mail to you at the last e-mail address you provided to us pursuant to the Agreement. Any changes to the Agreement will be effective immediately for new users of the Website, the Applications and/or Services and will be effective thirty (30) days after posting notice of such changes on the Website for existing Registered Users (defined in Section 5.1 (Registering Your Account) below), provided that any material changes shall be effective for Registered Users upon the later of thirty (30) days after posting notice of such changes on the Website or thirty (30) days after dispatch of an e-mail notice of such changes to Registered Users. Fleek may require you to provide consent to the updated Agreement in a specified manner before further use of the Website, the Applications and/ or the Services is permitted. If you do not agree to any change(s) after receiving a notice of such change(s), you shall stop using the Website, the Applications and/or the Services. Otherwise, your continued use of the Website, the Applications and/or Services constitutes your acceptance of such change(s). PLEASE REGULARLY CHECK THE WEBSITE TO VIEW THE THEN-CURRENT TERMS OF SERVICE.
1. OUR SERVICES CONNECT BUYERS AND SELLERS. Fleek provides a marketplace that allows users of our Services, including our Website, Platform and Applications (“Users”) that have an account with Fleek to offer, sell and buy vintage and secondhand fashion items. As a marketplace, we do not own or sell the items listed on the Services, so the actual contract for sale is directly between the individual or entity seeking to sell items (“Sellers”) and the individual or entity seeking to buy items (“Buyers”). While we may, in our discretion, help facilitate the resolution of disputes through various programs, Fleek has no control over and does not guarantee the existence, quality, safety or legality of any items offered on the Services; the truth or accuracy of Users’ content or listings; the ability of Sellers to sell items; the ability of Buyers to pay for items; or that a Buyer and Seller will actually complete a transaction or return an item.
2. OUR PLATFORM. You may not use the Services to solicit, advertise for, or contact in any form, Users for employment or any other purpose not related to the purchase and sale of items facilitated through the Services. You may not use the Services to collect usernames and/or e-mail addresses of Users by electronic or other means without the express prior written consent of Fleek. As a marketplace, we do not personally provide or deliver any of the items listed on the Services, so the actual contract for the provision of any listed item is directly between the Buyer and the Seller of that item.
3. FLEEK ONLY PROVIDES A VENUE. While Fleek may provide pricing and guidance on our Services, such information is solely informational. We are not obligated to take part in the interaction between Users. We do not have control over the quality, timing, legality, failure to provide, or any aspect whatsoever of any ratings provided by Users, items sold by Sellers, or of the integrity, responsibility, or any actions of any Users. Fleek makes no representations about the suitability, reliability, timeliness or accuracy in public, private or offline interactions. Although Fleek may require that Users provide certain information as part of the registration and onboarding process, we cannot confirm that any User is who they claim to be. Fleek does not assume any responsibility for the accuracy or reliability of this information or any information provided through the Services.
When interacting with other Users you should exercise caution and common sense to protect your personal safety and property, just as you would when interacting with other persons whom you don't know.
NEITHER FLEEK NOR ITS AFFILIATES OR LICENSORS IS RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.
4. USE OF THE SERVICES. The Services, including the Platform, Applications, and Website, are protected by copyright laws throughout the world. Unless otherwise specified by Fleek in a separate license, your right to use any and all Services is subject to the Agreement.
4.1 Application License. Subject to your compliance with the Agreement, Fleek grants you a limited non-exclusive, non-transferable, non-sublicensable, revocable license to download, install and use a copy of any Application on a single mobile device or computer that you own or control and to run such copy of any Application solely for your own personal or internal business purposes. Furthermore, with respect to any Application accessed through or downloaded from the Apple App Store (an “App Store Sourced Application”), you will only use the App Store Sourced Application (a) on an Apple-branded product that runs the iOS (Apple’s proprietary operating system) and (b) as permitted by the “Usage Rules” set forth in the Apple App Store Terms of Service. Notwithstanding the first sentence in this section, with respect to any Application accessed through or downloaded from the Google Play store, you may have additional license rights with respect to use of any Application on a shared basis within your designated family group.
4.2 Updates. You understand that the Services are evolving. As a result, Fleek may require you to accept updates to any Application that you have installed on your computer or mobile device. You acknowledge and agree that Fleek may update the Services with or without notifying you. You may need to update third-party software from time to time in order to use the Services.
4.3 Certain Restrictions. The rights granted to you in the Agreement are subject to the following restrictions: (a) you shall not license, sell, rent, lease, transfer, assign, reproduce, distribute, host or otherwise commercially exploit Services or any portion of the Services, including the Website, Platform or Applications; (b) you shall not frame or utilize framing techniques to enclose any trademark, logo, or other Content (including images, text, page layout or form) of Fleek; (c) you shall not use any metatags or other “hidden text” using Fleek’s name or trademarks; (d) you shall not modify, translate, adapt, merge, make derivative works of, disassemble, decompile, reverse compile or reverse engineer any part of the Services except to the extent the foregoing restrictions are expressly prohibited by applicable law; (e) you shall not use any manual or automated software, devices or other processes (including but not limited to spiders, robots, scrapers, crawlers, avatars, data mining tools or the like) to “scrape” or download data from any web pages contained in the Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials); (f) except as expressly stated herein, no part of the Services may be copied, reproduced, distributed, republished, downloaded, displayed, posted or transmitted in any form or by any means; and (g) you shall not remove or destroy any copyright notices or other proprietary markings contained on or in the Services. Any future release, update or other addition to the Services shall be subject to the Agreement. Fleek, its suppliers and service providers reserve all rights not granted in the Agreement. Any unauthorized use of the Services terminates the licenses granted by Fleek pursuant to the Agreement.
4.4 Fleek Communications.
(a) Generally. By entering into this Agreement or using the Services, you agree to receive communications from us, including via e-mail, postal mail, and push notifications. Communications from us and our affiliated companies may include but are not limited to: operational communications concerning your Account or the use of the Services, updates concerning new and existing features on the Services, recurring communications concerning promotions run by Fleek or our third-party partners, and news concerning Fleek and industry developments. IF YOU WISH TO OPT OUT OF PROMOTIONAL EMAILS, YOU CAN UNSUBSCRIBE FROM OUR PROMOTIONAL EMAIL LIST BY FOLLOWING THE UNSUBSCRIBE OPTIONS IN THE PROMOTIONAL EMAIL ITSELF.
(b) Text Messages. The Fleek mobile messages service (the “Message Service”) allows users to receive SMS/MMS mobile messages by opting-in. Regardless of the opt-in method you use to enroll, you agree that your use of the Message Service is governed by these Terms of Service. We do not charge for the Message Service but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. By enrolling in the Message Service, you authorize us to send recurring SMS and MMS mobile messages to the telephone number you specify and you represent that you are authorized to receive mobile messages at such number. The messages sent through the Message Service may include notifications related to Purchases and marketing or advertising messages, and may be transmitted using an automatic telephone dialing system (“ATDS”) or other automated systems for the selection or dialing of telephone numbers. Your consent to receive mobile messages via an ATDS or other automated system is not required (directly or indirectly) as a condition of purchasing any property, items or services. Message frequency varies. Text the keyword STOP in reply to any message you receive through the Message Service to unsubscribe at any time. When you opt-out, you agree we may send you an opt-out confirmation message. For Message Service support or assistance, text HELP in reply to any message you receive through the Message Service or email us at firstname.lastname@example.org. We may change any short code or telephone number we use to operate the Message Service at any time with notice to you. You acknowledge that any messages, including any STOP or HELP requests, you send to a short code or telephone number we have changed may not be received and we will not be responsible for honoring requests made in such messages. We and the wireless carriers supported by the Message Service are not liable for any failed, delayed or undelivered messages. If you change your mobile phone number, you agree to opt out of the Message Service first.
5.1 Registering Your Account. In order to access certain features of the Services (such as the ability to list or sell as a Seller), you may be required to become a Registered User. For purposes of the Agreement, a “Registered User” is a User who has registered an account on the Services (“Account”).
5.2 Registration Data. In registering an account on the Services, you agree to (a) provide true, accurate, current and complete information about yourself as prompted by the registration form (the “Registration Data”); and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. You represent that you are (i) at least sixteen (16) years old; (ii) of legal age to form a binding contract; and (iii) not a person barred from using the Services under the laws of the United States, your place of residence or any other applicable jurisdiction. You are responsible for all activities that occur under your Account. You agree that you shall monitor your Account to restrict use by minors, and you will accept full responsibility for any unauthorized use of the Services by minors. You may not share your Account or password with anyone, and you agree to (y) notify Fleek immediately of any unauthorized use of your password or any other breach of security; and (z) exit from your Account at the end of each session. If you provide any information that is untrue, inaccurate, not current or incomplete, or Fleek has reasonable grounds to suspect that any information you provide is untrue, inaccurate, not current or incomplete, Fleek has the right to suspend or terminate your Account and refuse any and all current or future use of the Services (or any portion thereof). You agree not to create an Account using a false identity or information, or on behalf of someone other than yourself. You agree that you shall not have more than one Account at any given time. Fleek reserves the right to remove or reclaim any usernames at any time and for any reason, including but not limited to, claims by a third party that a username violates the third party’s rights. You agree not to create an Account or use the Services if you have been previously removed by Fleek, or if you have been previously banned from any of the Services.
5.3 Your Account. Notwithstanding anything to the contrary herein, you acknowledge and agree that you shall have no ownership or other property interest in your Account (save for your Registration Data and Your Content), and you further acknowledge and agree that all rights in and to your Account are and shall forever be owned by and inure to the benefit of Fleek.
5.5 Necessary Equipment and Software. You must provide all equipment and software necessary to connect to the Services, including but not limited to, a mobile device that is suitable to connect with and use the Services, in cases where the Services offer a mobile component. You are solely responsible for any fees, including Internet connection or mobile fees, that you incur when accessing the Services.
6. RESPONSIBILITY FOR CONTENT.
6.1 Types of Content. You acknowledge that any information, data, text, software, music, sound, photographs, graphics, video, livestreams, video conferences, messages, tags and/or other materials facilitated through the Services (collectively, “Content”) is the sole responsibility of the party from whom such Content originated. This means that you, and not Fleek, are entirely responsible for all Content that you upload, post, e-mail, transmit, livestream or otherwise make available (“Make Available”) through the Services (“Your Content”), and that you and other Registered Users of the Services, and not Fleek, are similarly responsible for all Content that you and they Make Available through the Services (“User Content”).
6.2 No Obligation to Pre-Screen Content. You acknowledge that Fleek has no obligation to pre-screen Content (including, but not limited to, User Content), although Fleek reserves the right in its sole discretion to pre-screen, refuse or remove any Content. By entering into the Agreement, you hereby provide your irrevocable consent to such monitoring. Without limitation of any non-waivable privacy rights that you may have under applicable law, you acknowledge and agree that you have no expectation of privacy concerning the transmission of Your Content, including without limitation chat, text, video conference or voice communications. In the event that Fleek pre-screens, refuses or removes any Content, you acknowledge that Fleek will do so for Fleek’s benefit, not yours. Without limiting the foregoing, Fleek shall have the right to remove any Content that violates the Agreement or is otherwise objectionable.
7.1 Fleek Services. Except with respect to Your Content and User Content, you agree that Fleek and its suppliers own all rights, title and interest in the Services (including but not limited to, any computer code, themes, objects, characters, character names, stories, dialogue, concepts, artwork, animations, sounds, musical compositions, audiovisual effects, methods of operation, moral rights, documentation, and Fleek software). You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services. Except with respect to Your Content, you agree that you have no right, title in or to any Content that appears on the Services.
7.2 Trademarks. The name ”Fleek” and all related graphics, logos, service marks and trade names used on or in connection with the Services are the intellectual property of Fleek and may not be used without permission in connection with your, or any third-party, products or services. Other trademarks, service marks and trade names that may appear on or in the Services are the property of their respective owners.
7.3 Your Content. Fleek does not claim ownership of Your Content. However, when you as a Registered User Make Available Your Content on or through the Services, you represent that you own and/or have a royalty-free, perpetual, irrevocable, worldwide, non-exclusive right (including any moral rights) and license to use, license, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, derive revenue or other remuneration from, and communicate to the public, perform and display Your Content (in whole or in part) worldwide and/or to incorporate it in other works in any form, media or technology now known or later developed, for the full term of any worldwide intellectual property right that may exist in Your Content, including the right to place advertisements for and promote any items you may have listed for sale on the Services.
7.4 License to Your Content. Subject to any applicable account settings that you select, you grant Fleek a fully paid, royalty-free, perpetual, irrevocable, worldwide, royalty-free, non-exclusive and fully sublicensable right (including any moral rights) and license to use, license, distribute, reproduce, modify, adapt, publicly perform, and publicly display Your Content (in whole or in part) for the purposes of operating and providing the Services to you and to our other Users, advertising and promoting the Services and items listed for sale on the Services, and our other business purposes. Please remember that other Users may search for, see, use, modify and reproduce any of Your Content that you submit to any “public” area of the Services. You warrant that the holder of any worldwide intellectual property right, including moral rights, in Your Content, has completely and effectively waived all such rights (to the fullest extent permitted by applicable law) and validly and irrevocably granted to you the right to grant the license stated above. You agree that you, not Fleek, are responsible for all of Your Content that you Make Available on or in the Services. Any Content you Make Available in connection with the Services may not contain nudity, violence, sexually explicit, or offensive subject matter as determined by Fleek in its sole discretion. You may not Make Available any photograph or audio or visual recording or livestream of another person without that person’s permission.
7.6 Feedback. You agree that submission of any ideas, suggestions, documents, and/or proposals to Fleek in any form (“Feedback”) is at your own risk and that Fleek has no obligations (including without limitation obligations of confidentiality) with respect to such Feedback. You represent and warrant that you have all rights necessary to submit the Feedback. You hereby grant to Fleek a fully paid, royalty- free, perpetual, irrevocable, worldwide, non-exclusive, and fully sublicensable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all Feedback, and to sublicense the foregoing rights, in connection with the operation and maintenance of the Services and/or Fleek’s business.
8. USER CONDUCT. As a condition of use, you agree not to use the Services for any purpose that is prohibited by the Agreement or by applicable law. You shall not (and shall not permit any third party) to either (a) take any action or (b) Make Available any Content on or in connection with the Services that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any person or entity; (ii) is unlawful, threatening, abusive, harassing, misleading, false, defamatory, libelous, pornographic, deceptive, fraudulent, invasive of another’s privacy, tortious, obscene, offensive, profane or racially, ethnically, or otherwise discriminatory; (iii) constitutes unauthorized or unsolicited advertising, junk or bulk e-mail; (iv) involves commercial activities and/or sales, such as contests, sweepstakes, barter, advertising, or pyramid schemes without Fleek’s prior written consent; (v) impersonates any person or entity, including any employee or representative of Fleek; (vi) interferes with or attempt to interfere with the proper functioning of the Services or uses the Services in any way not expressly permitted by this Agreement; (vii) manipulates the price of any listed item or interferes with a User profile or Seller listings; (ix) transfers your Account and Username to another party without our consent; (x) bypasses our robot exclusion hardware, interferes with the working of the Services, or imposes an unreasonable or disproportionately large load on our infrastructure; (xi) uses the Services to collect, harvest, transmit, distribute or submit any information concerning any other person or entity, including without limitation photographs of others, personal contact information or credit card, debit or calling card or account numbers without their permission; (xii) takes any action that may undermine our feedback or ratings systems; (xiii) breaches or circumvents any laws, third party rights or our systems, policies, or determinations of your account status; or (xiv) attempts to engage in or engages in, any potentially harmful acts that are directed against the Services, including but not limited to violating or attempting to violate any security features of the Services, using manual or automated software or other means to access, “scrape,” “crawl” or “spider” any pages contained in the Services, introducing viruses, worms, or similar harmful code into the Services, or interfering or attempting to interfere with use of the Services by any other user, host or network, including by means of overloading, “flooding,” “spamming,” “mail bombing,” or “crashing” the Services.
9. NO SOLICITATION. The Services may not be used to solicit for any other business, website or services.
10. INVESTIGATIONS. Fleek may, but is not obligated to, monitor or review the Services and Content at any time. Without limiting the foregoing, Fleek shall have the right, in its sole discretion, to remove any of Your Content for any reason (or no reason), including if such Content violates the Agreement or any applicable law. Although Fleek does not generally monitor user activity occurring in connection with the Services or Content, if Fleek becomes aware of any possible violations by you of any provision of the Agreement, Fleek reserves the right to investigate such violations, and Fleek may, at its sole discretion, immediately terminate your license to use the Services, or change, alter or remove Your Content, in whole or in part, without prior notice to you.
11. INTERACTIONS WITH OTHER USERS.
11.1 User Responsibility. You are solely responsible for your interactions with other Registered Users and any other parties with whom you interact; provided, however, that Fleek reserves the right, but has no obligation, to intercede in such disputes. You agree that Fleek will not be responsible for any liability incurred as the result of such interactions.
11.2 Content Provided by Other Users. The Services may contain User Content provided by other Registered Users. Fleek is not responsible for and does not control User Content. Fleek has no obligation to review or monitor, and does not approve, endorse or make any representations or warranties with respect to, User Content. You use all User Content and interact with other Registered Users at your own risk.
11.3 Subverting the Platform. The value of the Services rests in its thriving marketplace for Buyers and Sellers. It is a material breach of this Agreement to initiate the sale and/or purchase of items listed on the Services to then subsequently arrange for the sale of those listed items from, or the payment of fees to, Sellers outside the context of the Services for the purposes of circumventing the obligation to pay the Fees to Fleek’s.
12. PURCHASE AND SALE TRANSACTIONS.
12.1 Risks, No Warranty. You assume certain risks in using a marketplace service such as Fleek. Fleek is not involved with, nor provides a warranty for, any transaction between Buyer and Seller, nor has title to any items, and is not the Buyer or Seller in any transaction. You as a Buyer and/or Seller assume, agree and understand you bear all of the risks in selling or purchasing of items via the Services.
12.2 ProhibitedItems. Fleek prohibits the listing or sale of any item that is illegal to sell under any applicable law, statute, ordinance, regulation or applicable third-party agreement, or for which sales cannot be processed by Fleek’s Payment Processor (as defined in Section 13.1 (Third Party Payment Processors)). Fleek prohibits the listing or sale of counterfeit items.
12.3 Purchases. Sellers may offer to sell items to Users via the Services, and once an offer has been accepted via the Services by a Buyer, this is considered a “Purchase”, and is a binding contract. Upon Purchasing an item, a Buyer is obligated to remit payment for the item to Fleek including any shipping or additional fees listed. Fleek is not a Seller, nor is it an auctioneer or carrier. Although the Services may include pricing, listing, and shipping assistance, Fleek is not a Buyer or Seller of items. Fleek may delay any Purchase for purposes of fraud detection or to protect users from other illegal or wrongful activities. If you indicate that you are purchasing any items in your capacity as a reseller, then you agree to provide us with such proof as we may request to verify that you are a reseller, including any certificate of exemption or similar documentation for tax purposes.
12.4 Shipping. Generally, unless a longer fulfillment period is indicated in the listing and has been pre-approved by Fleek, Sellers must ship item(s) within seven (7) business days after a Buyer makes a Purchase via the Services. If a Seller is not using a prepaid shipping label provided by Fleek, then the Seller must also provide tracking information to Fleek within such period. If Seller does not ship the item or provide any required proof of shipment as described above, we will notify Seller and Buyer and the order may be cancelled. Prepaid shipping labels provided by Fleek may only be used to ship the applicable item for which the label was provided, and Seller is fully responsible for contents of parcel, and must comply with all terms and conditions of the shipping carrier. Title transfers to Buyer upon shipment.
12.5 Returns and Refunds. If an item is lost, damaged, late, or arrives not as expected to Buyer, Buyer must report issue to Fleek within three (3) days of delivery or of the date the shipping carrier indicates that the item was delivered by emailing email@example.com. All Purchases are final, with no returns, refunds, cancellations, or retractions allowed, except where the Purchase is cancelled where explicitly permitted by Fleek or where applicable, a Seller. As between Fleek and Seller, Seller, not Fleek, is solely responsible if any items are not delivered or if the items are delivered in a condition that do not match the description on the Services. Fleek has no obligation to provide refunds or credits, but may grant them in extenuating circumstances. If the item you receive is not as described on the Services, then you should notify us within three (3) days of delivery (as determined by the tracking information on the shipping label of the item) by emailing firstname.lastname@example.org. If a Buyer reports a problem with an item, Fleek may forward the query, complaint or request to the relevant Seller and in such case, the Buyer and Seller agree to allow Fleek to remain involved in their communications with respect to such item. If the Buyer and Seller cannot mutually agree on a resolution, then Fleek will determine, in its sole discretion, whether to issue a full or partial refund, credit or return for any such item. Section 25 below applies to Sellers instead of this Section 12.5 in respect of items sold via the Services to European Consumer Users (as such term is defined at Section 26.1 below). If you are a European Consumer User, Section 26 applies to you.
13. FEES AND PAYMENT POLICY. Unless we have otherwise agreed with you in writing to a different fee arrangement, Fleek will charge the Seller a fee of 15% of the list price for any items sold by the Seller through the Services (“Fee(s)”). We may change our Fees from time to time in accordance with Section “Our right to make changes to these Terms of Service” at the beginning of these Terms of Service.
13.1 Payment. Buyers contract directly with Sellers for the purchase of items on the Services. Fleek is not a party to any such sales. Fleek facilitates these sales through hosting the Services and by facilitating the exchange of money as described below. All payments made through the Services will be held for a period of three (3) days after delivery (as determined by the tracking information on the shipping label of the item). Fleek’s Fee for each Purchase, as well as the cost for any pre-paid shipping labels provided by Fleek and any other Taxes (as defined in 13.3 (Taxes)) collected by Fleek, will be deducted from the purchase price paid by the Buyer, with the remainder remitted to the Seller, subject to any returns, refunds or credits granted in accordance with Section 12.5. You understand and agree that Fleek itself does not process the transmission of funds and thus it is not a separate and discrete service that Fleek provides in addition to the Services.
13.3 Taxes. The amounts paid under this Agreement do not include any Sales Tax, value-added tax, or any other charges such as duties, customs, tariffs, imposts and government imposed surcharges (collectively, “Taxes”) that may be due in connection with any Purchase that is facilitated via the Services under this Agreement. To the extent permitted by applicable law, as between Fleek and the Seller, the Seller is solely responsible for all Taxes in connection with any Purchase that is facilitated via the Services. If Fleek determines it has a legal obligation to obtain a certificate of exemption or similar documentation to proceed with a transaction without collecting Sales Tax from a User, the User agrees to provide such certificate of exemption or similar documentation. If Fleek determines it has a legal obligation to collect Sales Tax from a User in connection with this Agreement, Fleek shall collect such Sales Tax in addition to the amounts required under this Agreement. If any Purchases, Services, or payments for any Services or Purchases, under the Agreement are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to Fleek, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify Fleek for any liability or expense Fleek may incur in connection with such Sales Taxes. Upon Fleek’s request, you will provide it with official receipts issued by the appropriate taxing authority, or such other evidence that you have paid all applicabletaxes. Forpurposesofthissection,“SalesTax”shallmeananysalesorusetax,anyvalueadded tax (or equivalent tax) and any other tax measured by sales proceeds that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax.
14. RELEASE. Fleek expressly disclaims any liability that may arise between Users of its Services. The Services are only a venue for connecting Buyers with Sellers. Because Fleek is not a party to the actual contracts between Buyers and Sellers, in the event that you have a dispute with one or more Users, you release Fleek, its parents, subsidiaries, affiliates, officers, employees, investors, agents, partners and licensors, but excluding any Users (each a “Fleek Party” and collectively, the “Fleek Parties”) from any and all claims, demands, or damages (actual or consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
If you are a California resident, you hereby waive California Civil Code Section 1542, which states, “A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.” The foregoing release does not apply to any claims, demands, or any losses, damages, rights and actions of any kind, including personal injuries, death or property damage for any unconscionable commercial practice by a Fleek Party or for such party’s fraud, deception, false, promise, misrepresentation or concealment, suppression or omission of any material fact in connection with the Services provided hereunder.
15. INDEMNIFICATION. To the fullest extent permitted by applicable law, you agree to indemnify and hold the Fleek Parties harmless from any losses, costs, liabilities and expenses (including reasonable attorneys’ fees) relating to or arising out of any and all of the following: (a) Your Content; (b) your inability to use any Service; (c) your violation of the Agreement; (d) your violation of any rights of another party, including any Registered Users; or (e) your violation of any applicable laws, rules or regulations. Fleek reserves the right, at its own cost, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with Fleek in asserting any available defenses. This provision does not require you to indemnify any of the Fleek Parties for any unconscionable commercial practice by such party or for such party’s fraud, deception, false promise, misrepresentation or concealment, or suppression or omission of any material fact in connection with the Services. You agree that the provisions in this section will survive any termination of your Account, the Agreement and/or your access to the Services.
16. DISCLAIMER OF WARRANTIES AND CONDITIONS.
16.1 As Is. YOU EXPRESSLY UNDERSTAND AND AGREE THAT TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK, AND THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. FLEEK PARTIES (AS DEFINED IN SECTION 14 (RELEASE)) EXPRESSLY DISCLAIM ALL WARRANTIES, REPRESENTATIONS, TERMS AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES, TERMS OR CONDITIONS OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT ARISING FROM USE OF THE SERVICES. IF YOU ARE A RESIDENT OF THE EUROPEAN UNION OR THE UNITED KINGDOM, YOU MAY BENEFIT FROM ADDITIONAL MANDATORY RIGHTS AND WARRANTIES UNDER APPLICABLE CONSUMER LAW, AND NOTHING IN THE AGREEMENT IS INTENDED TO EXCLUDE OR LIMIT SUCH RIGHTS AND WARRANTIES. This Section 16 (Disclaimer of Warranties and Conditions) does not affect in any way alter Section 12.5 (Returns and Refunds) with respect to items purchased on the Services.
(a) FLEEK PARTIES MAKE NO WARRANTY, REPRESENTATION OR CONDITION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) YOUR USE OF THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; OR (iii) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE. WE CANNOT GUARANTEE CONTINUOUS OR SECURE ACCESS TO THE SERVICES, AND OPERATION OF THE SERVICES MAY BE INTERFERED WITH BY NUMEROUS FACTORS OUTSIDE OF OUR CONTROL.
(b) ANY CONTENT DOWNLOADED FROM OR OTHERWISE ACCESSED THROUGH THE SERVICES IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE SERVICES, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
(c) THE SERVICES MAY BE SUBJECT TO DELAYS, CANCELLATIONS AND OTHER DISRUPTIONS. FLEEK MAKES NO WARRANTY, REPRESENTATION OR CONDITION WITH RESPECT TO SERVICES, INCLUDING BUT NOT LIMITED TO, THE QUALITY, EFFECTIVENESS, REPUTATION AND OTHER CHARACTERISTICS OF SERVICES.
(d) NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM FLEEK OR THROUGH THE SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
(e) FROM TIME TO TIME, FLEEK MAY OFFER NEW “BETA” FEATURES OR TOOLS WITH WHICH ITS USERS MAY EXPERIMENT. SUCH FEATURES OR TOOLS ARE OFFERED SOLELY FOR EXPERIMENTAL PURPOSES AND WITHOUT ANY WARRANTY OF ANY KIND, AND MAY BE MODIFIED OR DISCONTINUED AT FLEEK’S SOLE DISCRETION. THE PROVISIONS OF THIS SECTION APPLY WITH FULL FORCE TO SUCH FEATURES OR TOOLS.
16.2 No Liability for Conduct of Third Parties. YOU ACKNOWLEDGE AND AGREE THAT FLEEK PARTIES ARE NOT LIABLE, AND YOU AGREE NOT TO SEEK TO HOLD FLEEK PARTIES LIABLE, FOR THE CONDUCT OF THIRD PARTIES, INCLUDING OPERATORS OF EXTERNAL SITES, AND THAT THE RISK OF INJURY FROM SUCH THIRD PARTIES RESTS ENTIRELY WITH YOU.
16.3 No Liability for Conduct of Other Users. YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SERVICES. YOU UNDERSTAND THAT FLEEK DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SERVICES. FLEEK MAKES NO WARRANTY THAT THE ITEMS OR SERVICES PROVIDED BY OTHER USERS WILL MEET YOUR REQUIREMENTS. FLEEK MAKES NO WARRANTY REGARDING THE AUTHENTICITY, QUALITY, SAFETY OR LEGALITY OR LEGALITY OF ANY SUCH ITEMS, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY USER CONTENT OBTAINED THROUGH THE SERVICES.
(a) We are not involved in the actual transaction between Buyers and Sellers. While we may help facilitate the resolution of disputes through various programs, we have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of listings, the ability of Sellers to sell items, the ability of Buyers to pay for items, or that Buyer or Seller will actually complete a transaction or return all items.
(b) We do not transfer legal ownership of items from the Seller to the Buyer. California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise.
17. LIMITATION OF LIABILITY.
17.1 Disclaimer of Certain Damages. YOU UNDERSTAND AND AGREE THAT, TO THE FULLEST EXTENT PROVIDED BY LAW, IN NO EVENT SHALL FLEEK PARTIES (AS DEFINED IN SECTION 14 (RELEASE)) BE LIABLE FOR ANY LOSS OF PROFITS, REVENUE OR DATA, INDIRECT, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR DAMAGES OR COSTS DUE TO LOSS OF PRODUCTION OR USE, BUSINESS INTERRUPTION, OR PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, IN EACH CASE WHETHER OR NOT FLEEK HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THE AGREEMENT OR ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SERVICES , ON ANY THEORY OF LIABILITY, RESULTING FROM: (a) YOUR ACCESS TO OR USE OF OR INABILITY TO ACCESS OR USE THE SERVICES; (b) ANY ITEMS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED FOR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES; (c) UNAUTHORIZED ACCESS, USE OR ALTERATION OF YOUR ACCOUNT, TRANSMISSIONS, DATA OR CONTENT; (d) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; (e) THE INABILITY TO SELL OR PURCHASE ANY ITEMS THROUGH THE SERVICES OR (f) ANY OTHER MATTER RELATED TO THE SERVICES, WHETHER BASED ON WARRANTY, COPYRIGHT, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY. FLEEK AND ITS AFFILIATES AND LICENSORS WILL NOT BE LIABLE FOR ANY CLAIM, INJURY OR DAMAGE ARISING IN CONNECTION WITH YOUR USE OF THE SERVICES. NOTWITHSTANDING THE FOREGOING, FLEEK DOES NOT IN ANY WAY SEEK TO EXCLUDE OR LIMIT LIABILITY FOR (1) DEATH OR PERSONAL INJURY CAUSED BY A FLEEK PARTY’S NEGLIGENCE; (2) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (3) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EUROPEAN LAW, OR THE LAW OF ANY EUROPEAN UNION MEMBER STATE.
17.2 Cap on Liability. TO THE FULLEST EXTENT PROVIDED BY LAW, FLEEK PARTIES WILL NOT BE LIABLE TO YOU FOR MORE THAN THE GREATER OF (a) THE TOTAL AMOUNT PAID TO FLEEK BY YOU DURING THE ONE-MONTH PERIOD PRIOR TO THE ACT, OMISSION OR OCCURRENCE GIVING RISE TO SUCH LIABILITY; (b) $100; OR (c) THE REMEDY OR PENALTY IMPOSED BY THE STATUTE UNDER WHICH SUCH CLAIM ARISES. THE FOREGOING CAP ON LIABILITY SHALL NOT APPLY TO LIABILITY OF A FLEEK PARTY FOR (i) DEATH OR PERSONAL INJURY CAUSED BY A FLEEK PARTY’S NEGLIGENCE; (ii) FRAUD OR FRAUDULENT MISREPRESENTATION; OR (ii) ANY OTHER LIABILITY THAT CANNOT BE EXCLUDED OR LIMITED BY ENGLISH OR EUROPEAN LAW, OR THE LAW OF ANY EUROPEAN UNION MEMBER STATE.
17.3 Exclusion of Damages. CERTAIN JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
17.4 Basis of the Bargain. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN FLEEK AND YOU.
18. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT. It is Fleek’s policy to terminate membership privileges of any Registered User who repeatedly infringes copyright upon prompt notification to Fleek by the copyright owner or the copyright owner’s legal agent. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please provide our Copyright Agent with the following information: (a) an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; (b) a description of the copyrighted work that you claim has been infringed; (c) a description of the location on the Services of the material that you claim is infringing; (d) your address, telephone number and e-mail address; (e) a written statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or the law; and (f) a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf. Contact information for Fleek’s Copyright Agent for notice of claims of copyright infringement is as follows: email@example.com
19. MONITORING AND ENFORCEMENT. Fleek reserves the right to: (a) remove or refuse to post any of Your Content for any or no reason in our sole discretion; (b) take any action with respect to any of Your Content that we deem necessary or appropriate in our sole discretion, including if we believe that such Content violates this Agreement, infringes any intellectual property right or other right of any person or entity, threatens the personal safety of users of the Services or the public, or could create liability for Fleek; (c) to the extent permitted by applicable law, disclose your identity or other information about you to any third party who claims that material posted by you violates their rights, including their intellectual property rights or their right to privacy; (d) take appropriate legal action, including without limitation, referral to law enforcement, for any illegal or unauthorized use of the Services; and/or (e) terminate or suspend your access to all or part of the Services for any or no reason, including without limitation, any violation of the Agreement.
If Fleek becomes aware of any possible violations by you of the Agreement, Fleek reserves the right to investigate such violations. If, as a result of the investigation, Fleek believes that criminal activity has occurred, Fleek reserves the right to refer the matter to, and to cooperate with, any and all applicable legal authorities. Fleek is entitled, except to the extent prohibited by applicable law, to disclose any information or materials on or in the Services, including Your Content, in Fleek’s possession in connection with your use of the Services, to (i) comply with applicable laws, legal process or governmental request; (ii) enforce the Agreement, (iii) respond to any claims that Your Content violates the rights of third parties, (iv) respond to your requests for customer service, or (v) protect the rights, property or personal safety of Fleek, its Registered Users or the public, and all enforcement or other government officials, as Fleek in its sole discretion believes to be necessary or appropriate.
20. TERM AND TERMINATION.
20.1 Term. The Agreement commences on the date when you accept the Terms of Service (as described in the preamble above) and remain in full force and effect while you use the Services, unless terminated earlier in accordance with the Agreement.
20.2 Prior Use. Notwithstanding the foregoing, you hereby acknowledge and agree that the Agreement commenced on the earlier to occur of (a) the date you first used the Services or (b) the date you accepted the Terms of Service, and that the Agreement will remain in full force and effect while you use any the Services, unless earlier terminated in accordance with the Agreement.
20.3 Termination of Services. We may suspend or terminate the Services or your Account at our discretion without explanation, notice, and liability to Fleek including removing and discarding any items or Content within the Services, for any reason. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. You may terminate the Services provided by closing your Account or by notifying us by e-mail at firstname.lastname@example.org.
20.4 Effect of Termination. Termination of the Services includes termination of access to use the Services, including the Website, Applications and the Platform. Termination of the Services also includes deletion of your password and all related information, files and Content associated with or inside your Account (or any part thereof), including Your Content. Upon termination of the Services, your right to use such Services will automatically terminate immediately. You understand that any termination of the Services may involve deletion of Your Content associated therewith from our live databases. Fleek will not have any liability whatsoever to you for any suspension or termination, including for deletion of Your Content. All provisions of the Agreement which by their nature should survive, shall survive termination of the Services, including without limitation, ownership provisions, warranty disclaimers, and limitation of liability.
20.5 No Subsequent Registration. If your registration(s) with, or ability to access, the Services or any other Fleek community, is discontinued by Fleek due to your violation of any portion of the Agreement or for conduct otherwise inappropriate for the community, then you agree that you shall not attempt to re-register with or access the Services or any Fleek community through use of a different username, business name or otherwise, and you acknowledge that you will not be entitled to receive a refund for fees related to those Services to which your access has been terminated. In the event that you violate the immediately preceding sentence, Fleek reserves the right, in its sole discretion, to immediately take any or all of the actions set forth herein without any notice or warning to you.
21. PLATFORM IS US-BASED. The Services are controlled and offered by Fleek from its facilities in the United States of America. The Services can be accessed from countries around the world and may contain references to Services and Content that are not available in your country. These references do not imply that Fleek intends to announce such Services or Content in your country. Fleek makes no representations that the Services are appropriate or available for use in other locations. Those who access or use the Services from other countries do so at their own volition and are responsible for compliance with local law.
22. DISPUTE RESOLUTION (APPLICABLE TO U.S. USERS ONLY). Please read the following arbitration agreement in this section (“Dispute Resolution”) carefully. It requires U.S. Users to arbitrate disputes with Fleek and limits the manner in which you can seek relief from us.
22.1 Applicability of Arbitration Agreement. You agree that any dispute, claim, or request for relief against Fleek relating in any way to your access or use of the Services or to any aspect of your relationship with Fleek, will be resolved by binding arbitration, rather than in court, except that (1) you may assert claims or seek relief in small claims court if your claims qualify,; and (2) you or Fleek may seek equitable relief in court for infringement or other misuse of intellectual property rights (such as trademarks, trade dress, domain names, trade secrets, copyrights, and patents). This Arbitration Agreement shall apply, without limitation, to all disputes or claims and requests for relief that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement.
22.2 Arbitration Rules and Forum. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your dispute or claim or request for relief to our registered agent Cogency Global Inc. having an address at 850 New Burton Road, Suite 201, Dover, Delaware. The arbitration will be conducted by JAMS, an established alternative dispute resolution provider. Disputes involving claims, counterclaims, or request for relief under $250,000, not inclusive of attorneys’ fees and interest, shall be subject to JAMS’s most current version of the Streamlined Arbitration Rules and procedures available at http://www.jamsadr.com/rules-streamlined-arbitration/; all other disputes shall be subject to JAMS’s most current version of the Comprehensive Arbitration Rules and Procedures, available at http://www.jamsadr.com/rules-comprehensive-arbitration/. JAMS’s rules are also available at www.jamsadr.com or by calling JAMS at 800-352-5267. If JAMS is not available to arbitrate, the parties will select an alternative arbitral forum. If the arbitrator finds that you cannot afford to pay JAMS’s filing, administrative, hearing and/or other fees and cannot obtain a waiver from JAMS, Fleek will pay them for you. In addition, Fleek will reimburse all such JAMS’s filing, administrative, hearing and/or other fees for disputes, claims, or requests for relief totaling less than $10,000 unless the arbitrator determines the claims are frivolous.
You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the country where you live or at another mutually agreed location. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
22.3 Authority of Arbitrator. The arbitrator shall have exclusive authority to (a) determine the scope and enforceability of this Arbitration Agreement and (b) resolve any dispute related to the interpretation, applicability, enforceability or formation of this Arbitration Agreement including, but not limited to, any assertion that all or any part of this Arbitration Agreement is void or voidable. The arbitration will decide the rights and liabilities, if any, of you and Fleek. The arbitration proceeding will not be consolidated with any other matters or joined with any other cases or parties. The arbitrator shall have the authority to grant motions dispositive of all or part of any claim. The arbitrator shall have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under applicable law, the arbitral forum’s rules, and the Agreement (including the Arbitration Agreement). The arbitrator shall issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon you and us.
22.4 Waiver of Jury Trial. YOU AND FLEEK HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Fleek are instead electing that all disputes, claims, or requests for relief shall be resolved by arbitration under this Arbitration Agreement, except as specified in Section 22.1 (Applicability of Arbitration Agreement) above. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration, and court review of an arbitration award is subject to very limited review.
22.5 WaiverofClassorOtherNon-IndividualizedRelief. ALLDISPUTES,CLAIMS,AND REQUESTS FOR RELIEF WITHIN THE SCOPE OF THIS ARBITRATION AGREEMENT MUST BE ARBITRATED ON AN INDIVIDUAL BASIS AND NOT ON A CLASS OR COLLECTIVE BASIS, ONLY INDIVIDUAL RELIEF IS AVAILABLE, AND CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. If a decision is issued stating that applicable law precludes enforcement of any of this section’s limitations as to a given dispute, claim, or request for relief, then such aspect must be severed from the arbitration and brought into the State or Federal Courts located in the State of California. All other disputes, claims, or requests for relief shall be arbitrated.
22.6 30-Day Right to Opt Out. You have the right to opt out of the provisions of this Arbitration Agreement by sending written notice of your decision to opt out to: email@example.com, within thirty (30) days after first becoming subject to this Arbitration Agreement. Your notice must include your name and address, your Fleek username (if any), the email address you used to set up your Fleek account (if you have one), and an unequivocal statement that you want to opt out of this Arbitration Agreement. If you opt out of this Arbitration Agreement, all other parts of this Agreement will continue to apply to you. Opting out of this Arbitration Agreement has no effect on any other arbitration agreements that you may currently have, or may enter in the future, with us.
22.7 Severability. Except as provided in Section 22.5 (Waiver of Class or Other Non- Individualized Relief), if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts shall be of no force and effect and shall be severed and the remainder of the Arbitration Agreement shall continue in full force and effect.
22.8 Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Fleek.
22.9 Modification. Notwithstanding any provision in this Agreement to the contrary, we agree that if Fleek makes any future material change to this Arbitration Agreement, you may reject that change within thirty (30) days of such change becoming effective by writing Fleek at the following address: firstname.lastname@example.org.
23. THIRD-PARTY SERVICES.
23.1 Marketplace Exchange. The Services can be used to facilitate the purchase and sale of items from other persons not affiliated with Fleek. All matters concerning the items and services desired from a Seller, including but not limited to purchase terms, payment terms, warranties, guarantees, maintenance and delivery, are solely between you and the Seller. Fleek makes no warranties or representations whatsoever with regard to any items or services provided by Sellers. You will not consider Fleek, nor will Fleek be construed as, a party to such transactions, whether or not Fleek may have received some form of revenue or other remuneration in connection with the transaction, nor will Fleek be liable for any costs or damages arising out of, either directly or indirectly, you or any other person involved or related to the transaction.
23.2 Third-Party Websites, Applications and Ads. The Services may contain links to third- party websites (“Third-Party Websites”), applications (“Third-Party Applications”) and advertisements for third parties (“Third-Party Ads”). When you click on a link to a Third-Party Website, Third-Party Application or Third-Party Ad, we will not warn you that you have left the Services and are subject to the terms and conditions (including privacy policies) of another website or destination. Such Third-Party Websites, Third-Party Applications and Third-Party Ads are not under the control of Fleek. Fleek is not responsible for any Third-Party Websites, Third-Party Applications or Third-Party Ads. Fleek provides these Third-Party Websites, Third-Party Applications and Third Party Ads only as a convenience and does not review, approve, monitor, endorse, warrant, or make any representations with respect to Third-Party Websites, Third-Party Applications or Third-Party Ads, or any product or service provided in connection therewith. You use all links in Third-Party Websites, Third-Party Applications and Third-Party Ads at your own risk. When you leave our Website, this Agreement and our policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Websites, Third-Party Applications, or Third-Party Ads, and make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
23.3 App Stores. You acknowledge and agree that the availability of the Applications and the Services is dependent on the third party from whom you received an Application license, e.g., the Apple App Store or Google Play (each, an “App Store”). You acknowledge that the Agreement is between you and Fleek and not with the App Store. Fleek, not the App Store, is solely responsible for the Services, including the Applications, the content thereof, maintenance, support services, and warranty therefor, and addressing any claims relating thereto (e.g., product liability, legal compliance or intellectual property infringement). In order to use the Applications, you must have access to a wireless network, and you agree to pay all fees associated with such access. You also agree to pay all fees (if any) charged by the App Store in connection with the Services, including the Applications. You agree to comply with, and your license to use any Application is conditioned upon your compliance with all terms of agreement imposed by the applicable App Store when using the Services, including the Application. You acknowledge that the App Store (and its subsidiaries) are third-party beneficiaries of the Agreement and will have the right to enforce it.
23.4 Accessing and Downloading the Application from iTunes. The following applies to any App Store Sourced Application accessed through or downloaded from the Apple App Store:
(a) You acknowledge and agree that (i) the Agreement is concluded between you and Fleek only, and not Apple, and (ii) Fleek, not Apple, is solely responsible for the App Store Sourced Application and content thereof. Your use of the App Store Sourced Application must comply with the App Store Terms of Service.
(b) You acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the App Store Sourced Application.
(c) In the event of any failure of the App Store Sourced Application to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the App Store Sourced Application to you and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the App Store Sourced Application. As between Fleek and Apple, any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be the sole responsibility of Fleek.
(d) You and Fleek acknowledge that, as between Fleek and Apple, Apple is not responsible for addressing any claims you have or any claims of any third party relating to the App Store Sourced Application or your possession and use of the App Store Sourced Application, including, but not limited to: (i) product liability claims; (ii) any claim that the App Store Sourced Application fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
(e) You and Fleek acknowledge that, in the event of any third-party claim that the App Store Sourced Application or your possession and use of that App Store Sourced Application infringes that third party’s intellectual property rights, as between Fleek and Apple, Fleek, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim to the extent required by the Agreement.
(f) You and Fleek acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of the Agreement as related to your license of the App Store Sourced Application, and that, upon your acceptance of the terms and conditions of the Agreement, Apple will have the right (and will be deemed to have accepted the right) to enforce the Agreement as related to your license of the App Store Sourced Application against you as a third-party beneficiary thereof.
(g) Without limiting any other terms of the Agreement, you must comply with all applicable third-party terms of agreement when using the App Store Sourced Application.
24. GENERAL PROVISIONS.
24.1 Electronic Communications. The communications between you and Fleek may take place via electronic means, whether you visit the Services or send Fleek e-mails, or whether Fleek posts notices on the Services or communicates with you via e-mail. For contractual purposes, you (a) consent to receive communications from Fleek in an electronic form; and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Fleek provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing. The foregoing does not affect your statutory rights, including but not limited to the Electronic Signatures in Global and National Commerce Act at 15 U.S.C. §7001 et seq.
24.2 Assignment. The Agreement, and your rights and obligations hereunder, may not be assigned, subcontracted, delegated or otherwise transferred by you without Fleek’s prior written consent, and any attempted assignment, subcontract, delegation, or transfer in violation of the foregoing will be null and void.
24.3 Force Majeure. Fleek shall not be liable for any delay or failure to perform resulting from causes outside its reasonable control, including, but not limited to, acts of God, war, terrorism, riots, embargos, acts of civil or military authorities, fire, floods, accidents, strikes or shortages of transportation facilities, fuel, energy, labor or materials. If a force majeure event occurs that affects Fleek’s performance of its obligations under the Agreement: (a) Fleek will contact you as soon as reasonably possible to notify you; and (b) Fleek’s obligations under the Agreement will be suspended and the time for Fleek’s performance of its obligations will be extended for the duration of the force majeure event. You may terminate the Services or close your Account in accordance with Section 20.3 (Termination of Services) if the Services are affected by a force majeure event.
24.4 Questions, Complaints, Claims. If you have any questions, complaints or claims with respect to the Services, please contact us at: email@example.com. We will do our best to address your concerns. If you feel that your concerns have been addressed incompletely, we invite you to let us know for further investigation.
24.5 Exclusive Venue. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Fleek agree that, to the fullest extent permitted by applicable law, all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in San Francisco, California.
24.6 Governing Law and Jurisdiction.
THE TERMS AND ANY ACTION RELATED THERETO WILL BE GOVERNED AND INTERPRETED BY AND UNDER THE LAWS OF THE STATE OF CALIFORNIA, CONSISTENT WITH THE FEDERAL ARBITRATION ACT, WITHOUT GIVING EFFECT TO ANY PRINCIPLES THAT PROVIDE FOR THE APPLICATION OF THE LAW OF ANOTHER JURISDICTION. THE UNITED NATIONS CONVENTION ON CONTRACTS FOR THE INTERNATIONAL SALE OF GOODS DOES NOT APPLY TO THE AGREEMENT.
24.7 Choice of Language. It is the express wish of the parties that these Terms of Service and all related documents have been drawn up in English. This Agreement, and any contract between us, are only in the English language.
24.8 Notice. Where Fleek requires that you provide an e-mail address, you are responsible for providing Fleek with your most current e-mail address. In the event that the last e-mail address you provided to Fleek is not valid, or for any reason is not capable of delivering to you any notices required or permitted by the Agreement, Fleek’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice. You may give notice to Fleek at the following address: firstname.lastname@example.org.
24.9 Waiver. Any waiver or failure to enforce any provision of the Agreement on one occasion will not be deemed a waiver of any other provision or of such provision on any other occasion.
24.10 Severability. If any portion of this Agreement is held invalid or unenforceable, that portion shall be construed in a manner to reflect, as nearly as possible, the original intention of the parties, and the remaining portions shall remain in full force and effect.
24.11 Trade Controls. You must conduct your activities under this Agreement in compliance with applicable laws and regulations pertaining to export controls and trade and economic sanctions (collectively, “Trade Controls”), including those of the United States. In particular, but without limitation, you may not: (1) directly or indirectly, export or reexport the Services (a) into any country or territory that is the target of a comprehensive embargo by the United States government (a “Sanctioned Country”), or (b) to an entity or individual (each a “person”) that is the target of sanctions, including, without limitation, persons designated on the United States Department of the Treasury’s Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce’s Entity List or Denied Person’s List (each a “Restricted Party”); (2) directly or indirectly engage in transactions or dealings with Sanctioned Countries or Restricted Parties, including the supply from, sale to, or payment from or to Sanctioned Countries or Restricted Parties; or (3) otherwise violate applicable Trade Controls. By using the Services, you represent and warrant that you are not located in a Sanctioned Country and you are not a Restricted Party. You will promptly notify Fleek in the event that you become a Restricted Party. You understand and acknowledge that Fleek has the right to terminate this Agreement with immediate effect in the event that: (1) you become a Restricted Party; (2) you violate the terms of this clause; or (3) Fleek determines in good faith that compliance with applicable Trade Controls precludes performance. Termination under this clause shall be deemed a termination for just cause, relieving Fleek of any obligation to provide further services under this Agreement.
24.12 Consumer Complaints. In accordance with California Civil Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
24.13 Entire Agreement. The Agreement is the final, complete and exclusive agreement of the parties with respect to the subject matter hereof and supersedes and merges all prior discussions between the parties with respect to such subject matter.
25. REFUNDS AND RETURNS (SALES TO EUROPEAN CONSUMER USERS)
25.1 Scope. This Section 25 applies to Sellers that have sold items via the Services to European
Consumer Users (as this term is defined in Section 26.1 below).
25.2 As between Fleek and Seller, Seller, not Fleek, is solely responsible to the European Consumer Users for any items sold to the European Consumer Users, including in respect of (i) items that are not delivered or are delivered late; (ii) items that are delivered in a condition that does not match the description on the Services; (iii) items that are faulty and (iv) processing any refunds and returns in accordance with these Terms of Service and applicable laws.
25.3 On receipt by Fleek of a query or complaint regarding an order placed by a European Consumer User (including a request to exercise any of the rights in Section 26.9), Fleek shall forward the query, complaint or request to the relevant Seller. The relevant Seller shall comply with these Terms of Services and all applicable laws when dealing with European Consumer Users and processing return and refund requests.
25.4 The Seller is solely responsible for any additional duties or charges made on the import of the returned item back to the Seller.
26. TERMS THAT APPLY TO CONSUMERS LOCATED IN THE UK AND IN THE E.U.
26.1 The amendments made to these Terms of Service by this Section 26 apply to you if you are a consumer who is ordinarily resident in the UK or a member state of the European Union. (“European Consumer Users”). They do not apply to any other person. All references to “you”, “your” or “user(s)” in this Section 26 are references to European Consumer Users. The changes made to the Terms of Service by this Section 26 do not apply to business Users located in the UK or the European Union.
26.2 General. The terms and conditions set out in these Terms of Service will only apply to a European Consumer User if and to the extent that those terms and conditions are fair and enforceable against consumers under the applicable laws of the jurisdiction in which such European Consumer User is ordinarily resident.
26.3 Unamended Sections. If any Sections of these Terms of Service are not amended by this Section 26, they will continue apply to European Consumer Users in accordance with their terms to the extent permitted by applicable law. In the event of any inconsistency between any Sections of these Terms of Service and this Section 26, this Section 26 shall prevail.
26.4 Disapplied Sections. The following Sections of these Terms of Service do not apply to European Consumer Users:
(a) Section “Understanding these Terms of Service” at the beginning of these Terms of Service;
(b) Section 12.5 (Returns and Refunds);
(c) Section 17 (Limitation of Liability);
(d) section 19(e) (Monitoring and Enforcement);
(e) Section 20.3 (Termination of Services);
(f) Section 22 (Dispute Resolution (Applicable to U.S. Users Only));
(g) Section 24.5 (Exclusive Venue);
(h) Section 24.6 (Governing Law and Jurisdiction).
26.6 Pricing and tax.
All prices include applicable value-added tax or similar sales tax at the rate that is in force from time to time. The prices shown however do not include import taxes and any other similar customs duties (if applicable), for which you are responsible.
26.7 Delivery charges. The delivery charges (if any) applicable to your order will be clearly displayed at checkout before you place your order (and are included in the "Total Cost" amount shown on the order summary page).
26.8 Delivery estimates not binding. The items you Purchase via the Services will be delivered by the relevant Seller using a third party courier service. Please note that any estimated delivery dates displayed via the Services, or in any Purchase confirmation email or webpage, are simply estimates – they do not represent a guarantee that the items will arrive by that delivery estimate..
26.9 Returns and your key legal rights.
(a) Our Returns Policy. The contents of this Section 26.9 do not affect any rights you may have at law (the key ones of which are outlined in the rest of this Section 26.9).
(b) Cancelling because You’ve changed Your mind. As you are purchasing the items online, you have a legal right to change your mind within fourteen (14) days from delivery of the items and receive a refund (including costs of standard delivery, but excluding the costs of return) – however please note that these cancellation rights do not apply to items that have been fitted with a tamper seal or a hygiene seal if that seal is broken. If you handle the items in a way which would not be acceptable in- store, your refund may be reduced to compensate the Seller for the reduced value. For example, the Seller may reduce your refund if the price tags have been removed, or accessories are missing. To let us know you want to change your mind, contact our Customer Service Team: email@example.com. The Seller will refund you as soon as possible and within fourteen (14) days of receiving the items back from you (or receiving evidence you've sent them back). You are responsible for the cost of returning the items to the Seller.
(c) Returning faulty Products. The items sold to you must be as described, fit for purpose and of satisfactory quality. This means that (having regard to the expected lifespan of the items you Purchased), you are entitled to the following:
(i) Up to thirty days: if the items you received are faulty, then you can get a full refund (this refund will include costs of delivery and return) provided you return the items within 30 days of receiving them.
(ii) Up to six months: if the items you received are faulty and can’t be repaired or replaced, then you’re entitled to a refund in most cases provided you return the items within 6 months of receiving them.
(d) How to exercise these rights. To exercise the rights described in this Section 26.9 you should email firstname.lastname@example.org.
(e) Refund method. Seller will refund any sums you are due under this Section 26.9 to the same payment method used to for the relevant order.
(a) Liability Scope. If we fail to comply with the Agreement, we are only responsible for loss or damage you suffer that is a foreseeable result of our breaching the Agreement or failing to act with reasonable care and skill; and, to the maximum extent permitted by applicable law, we shall not be liable for any indirect, incidental, special, consequential or punitive damages, any loss of profits or revenues, any loss of data, use, goodwill, or other intangible losses, resulting from (i) your access to or use of or inability to access or use the Services; (ii) any items, data, information or services purchased or obtained or messages received for transactions entered into through the Services; (iii) unauthorized access, use or alteration of your Account, transmissions, data or Content; (iv) statements or conduct of any third party on the Services; (v) the inability to sell or purchase any items through the Services; or (vi) any other matter related to the Services, whether based on warranty, copyright, contract, tort (including negligence), product liability or any other legal theory. The limitations of this subsection shall apply to any theory of liability, whether based on warranty, contract, statute, tort or otherwise, and whether or not the parties have been informed of the possibility of any such damage, and even if a remedy set forth herein is found to have failed its essential purpose.
(b) Liability Cap. Subject to Section 26.10(c) below, Fleek Parties will not be liable to you for more than the greater of (i) the total amount paid to Fleek by you during the one-month period prior to the act, omission or occurrence giving rise to such liability; (ii) one hundred US Dollars (US $100) or the equivalent amount in your local currency; or (iii) the remedy or penalty imposed by the statute under which such claim arises.26.10(c)
(c) Exclusions. Nothing in the Agreement limits or excludes our liability to you for: (i) death or personal injury resulting from our negligence; (ii) our fraud or fraudulent misrepresentation; or (iii) any other liability that cannot be excluded or limited by applicable law.
26.11 Termination of the Services. Fleek has the right to, immediately and without notice, suspend or terminate any Services provided to you (in full or in part): (i) if you have breached any provision of the Agreement; (ii) Fleek is required to do so by law (e.g., where the provision of the Platform, the Website, an Application, or the Services is, or becomes, unlawful); or (iii) unauthorized use of the Services or other fraudulent, abusive or illegal activity. You agree that all terminations for cause shall be made in Fleek’s sole discretion and that Fleek shall not be liable to you or any third party for any termination of your Account. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. You may terminate the Services provided by closing your Account or by notifying us by e-mail at email@example.com.
26.12 Governing law and Jurisdiction.
(a) The Agreement, and its subject matter and its formation, is governed by the laws of your place of residence.
(b) As an individual consumer, you may bring any judicial proceedings relating to the Agreement before the competent court of your place of residence or the competent court of Fleek’s place of business. If Fleek wishes to enforce any of its rights against you as a consumer, we may do so only in the courts of the jurisdiction in which you are a resident.
(c) If you are a resident of the European Union, you may also bring a claim through the European Commission’s online dispute resolution platform, which you can access here: http://ec.europa.eu/consumers/odr/.