1. ACCEPTANCE OF TERMS
Backflip, Inc. (“Backflip”) provides technology-enabled services, including the website at https://www.backflip.com, any Mobile Apps (as defined below), and other related software, content, and services, including all versions and upgrades thereto (collectively, the “Services”). Your use of the Services is subject to and governed by the terms and conditions in this Terms of Service (“TOS”). Backflip may, at its discretion, update this TOS at any time. You can access and review the most current version of this TOS at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Backflip.
PLEASE REVIEW THIS TOS CAREFULLY. BY REGISTERING FOR AN ACCOUNT OR OTHERWISE ACCESSING OR USING THE SERVICES, YOU AGREE TO BE BOUND BY THIS TOS, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS TOS, YOU MAY NOT ACCESS OR USE THE SERVICES.
THIS TOS REQUIRES FINAL AND BINDING ARBITRATION TO RESOLVE ANY DISPUTE OR CLAIM ARISING OUT OF OR RELATING IN ANY WAY TO THIS TOS, OR YOUR ACCESS TO OR USE OF THE SERVICES, INCLUDING THE VALIDITY, APPLICABILITY OR INTERPRETATION OF THIS TOS, AND YOU AGREE THAT ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION, ARBITRATION OR OTHER SIMILAR PROCESS. PLEASE REVIEW SECTION 13 CAREFULLY TO UNDERSTAND YOUR RIGHTS AND OBLIGATIONS WITH RESPECT TO THE RESOLUTION OF ANY CLAIM.
You represent and warrant that you: (a) are of legal age to form a binding contract; (b) have the right, authority, and capacity to agree to and abide by this TOS; and (c) are not a person barred from using the Services under the laws of any applicable jurisdiction. THE SERVICES ARE NOT INTENDED FOR USERS UNDER THE AGE OF 18, AND SUCH USERS ARE EXPRESSLY PROHIBITED FROM SUBMITTING ANY PERSONAL DATA OR USING ANY ASPECT OF THE SERVICES, AND BY TAKING SUCH ACTIONS YOU AGREE, REPRESENT, AND WARRANT THAT YOU ARE 18 YEARS OF AGE OR OLDER.
- (a)Grant. Subject to and conditioned on your compliance with this TOS, Backflip hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable license solely to use the Services only for your personal, non-commercial use. Your access to and use of the Services must further comply in all material respects with all usage guidelines posted by Backflip.
- (b)Mobile Apps. Backflip may make available mobile software applications for access to and use of certain components of the Services (collectively, “Mobile Apps”). Your access to and use of Mobile Apps is subject to and governed by this TOS. If any Mobile App is downloaded by you from the iTunes App Store (each, an “iOS Mobile App”), your use of such iOS Mobile App is further subject to your compliance in all material respects with the terms and conditions of the Usage Rules set forth in the iTunes App Store Terms of Service. This TOS is between you and Backflip only, and not with Apple Inc. (“Apple”) or any other app store provider, and Apple is not responsible for iOS Mobile Apps and the contents thereof; however, Apple and Apple's subsidiaries are third-party beneficiaries of this TOS with respect to iOS Mobile Apps.
- (c)Trademarks. You may not use the Backflip names, brands, trademarks, service marks and logos that Backflip makes available on the Services (“Marks”). Backflip claims trademark protection over all such Marks and you will not use the Marks except as expressly authorized herein. You will not remove or alter the Marks or any proprietary notices on the Services. The Marks may not be included in or as part of any registered corporate name, any other logo, or service or product name. You may not create any derivative works of the Marks or use the Marks in a manner that creates or reasonably implies an inaccurate sense of endorsement, sponsorship, or association with Backflip. You will not otherwise use business names or logos in a manner that can mislead, confuse, or deceive any third party. All use of the Marks and all goodwill arising out of such use, will inure to Backflip's benefit.
4. PROPRIETARY RIGHTS
- (a)You grant Backflip and its service providers a perpetual, irrevocable, worldwide, royalty-free, fully-paid-up, non-exclusive, sublicensable, transferable license to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make and have made all content (in any form and any medium, whether now known or later developed) that you provide in connection with the Services. You acknowledge and agree that the technical processing and transmission of data associated with the Services, may require: (i) transmissions over various networks and across borders; and (ii) modifications to conform, connect, and adapt to technical requirements of networks or devices.
- (b)The Services provided to you hereunder or available to you through the Services are licensed, not sold, and Backflip retains and reserves all rights not expressly granted in this TOS. You acknowledge and agree that, as between you and Backflip, Backflip and its licensors owns all rights, title and interest (including all intellectual property rights) in the Services and all data, content, and other materials within the Services. The Services are protected by U.S. and international copyright and other intellectual property laws and treaties. Backflip reserves all rights not expressly granted to you in this TOS.
- (c)You may not share your account or password with anyone. You are fully responsible for all activities that occur under your account. You agree to notify Backflip immediately of any unauthorized use of your account or password or any other similar breach of security. If your account remains inactive for three months or longer, Backflip reserves the right to suspend or terminate your account, with or without notice to you, and delete your content all without liability.
5. USER CONDUCT AND RESTRICTIONS
- (a)In your use of the Services, you will not:
- (i) use, reproduce, modify, adapt, create derivative works from, sublicense, publicly perform, publicly display, distribute, sell, lease, rent, make, have made, assign, pledge, transfer or otherwise grant rights to the Services, except as expressly permitted under this TOS;
- (ii) reverse engineer, disassemble, decompile, translate, or otherwise attempt to derive trade secrets, algorithms, or the source code, architectural framework, or data records, within or associated with the Services;
- (iii) interfere with or disrupt the integrity or performance of the Services, including by disrupting the ability of any other person to use or enjoy the Services;
- (iv) provide use of the Services on a service bureau, rental or managed services basis, provide or permit other individuals or entities to create Internet "links" to the Services or "frame" or "mirror" the Services on any other server, or wireless or Internet-based device;
- (v) access the Services for the purpose of developing, marketing, selling or distributing any product or service that competes with or includes features substantially similar to the Services;
- (vi) violate any applicable local, state, provincial, federal or international law or regulation, or use the Services for any illegal, unauthorized or otherwise improper purposes, including to store or transmit malicious code, or to store or transmit material in violation of third-party privacy rights;
- (vii) remove or obscure any proprietary notice that appears within the Services;
- (viii) impersonate any person or entity, including Backflip personnel, or falsely state or otherwise misrepresent your affiliation with Backflip, or any other entity or person;
- (ix) forge headers or otherwise manipulate identifiers in order to disguise the origin of any content transmitted through the Services;
- (x) take any action that imposes an unreasonable or disproportionately heavy load on the Services or its infrastructure; or
- (xi) use spiders, crawlers, robots, scrapers, automated tools or any other similar means to access the Services; or download, reproduce, or archive any substantial portion of the Services.
- (b)You will not: upload, post, email, store, transmit, or otherwise make available any content that:
- (i) is illegal, harmful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or otherwise objectionable;
- (ii) may not be made available under any law or under contractual or fiduciary relationships (such as confidential or proprietary information learned as part of an employment relationship or under a non-disclosure agreement);
- (iii) infringes any patent, trademark, trade secret, copyright, or other proprietary right of any party;
- (iv) consists of unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, commercial electronic messages, or any other form of solicitation;
- (v) contains software viruses or any other code, files or programs designed to interrupt, destroy or limit the functionality of any software or hardware;
- (vi) contains infringing, libelous, or otherwise unlawful or tortious material; or
- (vii) consists of information that you know or have reason to know is false or inaccurate.
- (c)Backflip's failure to enforce any of these restrictions or guidelines shall not act as a waiver for any future enforcement, will not be considered a breach of this TOS by Backflip, and does not create a private right of action for any other party.
6. SELLER TERMS
In order to sell items to Backflip or offer any items for sale through the Services on a consignment basis (“Consignment”), you (“Seller”) must either schedule a pickup time or drop-off such items to Backflip in accordance with the terms of this TOS.
- (a)Pickup Scheduling. If you elect for Backflip to pick up your items for sale or Consignment, you must schedule a pickup time via the Services. Backflip reserves the right to refuse pickups at its discretion. Once a pickup has been scheduled, any cancellation or changes must be made before the start of the designated pickup window as selected by the Seller. If the pickup is canceled any time after the start of the pickup window, an additional fee may apply at Backflip's sole discretion. It is your sole responsibility to provide Backflip with accurate pickup information, including the correct destination address and contact information. By scheduling a pickup, you hereby consent to receiving SMS messages to confirm your identity and to coordinate pickup, and you understand and agree that standard messaging and data rates will apply.
- (b)Dropoff. You may drop off items for sale or Consignment at any of Backflip's qualifying locations and during the applicable hours during which such location accepts drop-offs (as may be posted at such location or communicated via the Services or otherwise to you from time to time). You agree to comply with any instructions posted by Backflip at such location or via the Services, or communicated to you by any of Backflip's personnel. Backflip reserves the right to refuse drop-offs at its discretion. While at a Backflip location, you hereby agree and understand that you are responsible for your own actions and the actions of your invitees, licensees, agents, employees, directors, officers, contractors, subcontractors, guests, pets, children or anyone else in your custody, within your vehicle or under your control. You hereby agree and understand that neither Backflip nor the Backflip parties (as defined herein) shall be liable or responsible for damages to items or other property or any injury or death to any person which occur during a drop-off or otherwise at a Backflip location unless solely and directly caused by the gross negligence or willful misconduct of Backflip. In no event will Backflip or the Backflip Parties be liable in any manner to any party as the result of your acts or omissions, or those of your invitees, licensees, agents, employees, directors, officers, contractors, subcontractors, guests, pets, children or anyone else in your custody, within your vehicle or under your control. All items and personal property at a Backflip location which are not owned or leased by Backflip shall be at the risk of you only and neither Backflip nor the Backflip parties will be liable for any loss or damage, or for any loss, casualty, theft or damage thereto, regardless of the cause thereof.
- (c)Package Requirements. You hereby acknowledge and agree to adhere to the guidance posted at: https://www.backflip.com/list. All packages must be ready for collection or dropoff at the designated pickup or dropoff times. Backflip may discontinue the Services to you for failure to adhere to this Section 6(c). Packages left unattended for collection at either a pickup or a dropoff are left at your own responsibility. Backflip does not assume any liability for any loss or damage that occurs to unattended packages.
- (d)Right to Reject. Backflip. Its Couriers and its personnel reserve the right to refuse, hold or return a package at any time and for any reason. Furthermore, Couriers reserve the right to decline to enter any premises or assist with any dropoff that they deem to be dangerous or unsafe. If this occurs, it is up to you to contact Backflip and make alternative arrangements.
- (e)Device Data. As between Backflip and you, it is your sole responsibility to (i) wipe all data and restrictions from a device, (ii) log out of all services and applications, and (iii) clear all passwords from the device before delivery to Backflip. You acknowledge and agree that failure to comply with this Section 6(e) may limit the applicable device's value and may result in an amended Offer (as defined below) or rejection of Consignment from Backflip with respect to such device.
- (f)Offers and Returns. Once Backflip receives your items via pickup or dropoff, Backflip will process such items and send you an offer for the purchase of such items (“Offer”) and/or a Consignment price for such items within a commercially reasonable timeframe. Backflip reserves the right, in its sole and absolute discretion, to determine any and all pricing with respect to the Services, including but not limited to, pricing included in any Offer, Consignment pricing, modifying any fees applicable with respect to any Offers or Consignment, and implementing alternative pricing structures, including progressive pricing. You will have 7 days to either accept or reject an Offer or choose Consignment, which shall be governed by the Consignment Terms Addendum. Once an Offer has been accepted, Backflip will assume all rights, interest and title in and to the applicable items and any returns subsequent to an accepted offer shall be processed in the sole and absolute discretion of Backflip.
If you reject an offer, Backflip will return the items included in the rejected offer. Backflip reserves the right to offer free returns or charge a fee, at its sole and absolute discretion. Backflip will return the items to the address you provided upon scheduling the pickup, or, if you dropped off the items, to the address you provided to Backflip otherwise. Backflip has no obligation to verify such address in advance. If you do not respond to an Offer within 7 days of Backflip sending you the Offer, the Offer will automatically be deemed accepted and Backflip will assume all rights, interest and title in and to the items included in the offer and process payment to you. Backflip reserves the right to refuse to return any items, in its reasonable discretion, notwithstanding a rejected Offer or Consignment, in the following cases: (i) a device is received in “faulty” condition (e.g., device does not power on, device is not fully functional); (ii) you unintentionally shipped device accessories with device (e.g., chargers, device cases); (iii) the device is reported as “blacklisted” or “lost/stolen” by Apple, a major carrier, or an insurance company, or is otherwise suspected to potentially be stolen; (iv) item(s) are determined in Backflip's discretion to have no intrinsic value and are considered to be waste; and (v) item(s) are determined to be potentially harmful or dangerous to the public, Backflip employees or Backflip facilities and require immediate disposal. You understand and agree that Backflip may require additional time and/or resources to authenticate and evaluate whether an item falls under (i) – (v) above (“Authentication”) and that Backflip shall have no liability for any delays caused by such Authentication. You further understand and agree that Backflip may incorporate any costs of such Authentication into any Offer or Consignment price in its discretion.
- (g)Resale of Items. You acknowledge and agree that once you have accepted an Offer, all right, title and interest in and to the items included in such Offer shall be Backflip's and that Backflip may resell, dispose of, commercialize, or act in any manner it wishes with respect to such items, including listing such items for resale on a third party marketplace or on Backflip's own website.
- (h)Termination of Services. Backflip reserves the right at any time to terminate the use of its Services (or any portion thereof) with or without notice. Reasons for termination may include and are not limited to users who have: (i) attempted to sell stolen property using Backflip; (ii) displayed inappropriate behavior or are otherwise hostile towards Backflip employees or contractors; (iii) created three or more pickup reservations that resulted in a failed pickup; (iv) created multiple accounts in order to attempt to circumvent our user authentication processes; or (v) have otherwise attempted to abuse the Services.
- (a)Payment. Sellers and anyone buying items directly from Backflip shall pay any and all fees for the Services as set forth in the Services and/or any confirmation page (“Fees”) in accordance with the terms set forth herein and any additional terms set forth on the Services or otherwise communicated to you by Backflip. You hereby authorize Backflip to charge your credit card on file for all Fees that have become due and payable. Backflip shall automatically deduct a service fee of $9.00, or another amount communicated by Backflip from time to time, from the purchase price of any items sold by a Seller or on behalf of a Seller via Consignment or otherwise through the Services (the “Seller Fees” and, together with the Purchaser Fees, the “Fees”). You hereby authorize Backflip to charge your credit card on file for all applicable Fees that have become due and payable. For the avoidance of doubt, Seller Fees shall be automatically deducted at the time of sale of any items to Backflip or through Consignment. If the purchase price of any such items is not equal to or greater than the Seller Fees, you hereby authorize Backflip to charge your credit card on file for any remaining Seller Fees which are due and payable.
- (b)Taxes on Items Sold by Backflip. Unless otherwise noted, items sold by Backflip are subject to state and local sales tax in accordance with applicable laws. Backflip may not collect sales or use taxes in all states. For states imposing sales or use taxes, your purchase is subject to use tax unless it is specifically exempt from taxation. Your purchase is not exempt merely because it is made over the Internet or by other remote means. Many states require purchasers to file a sales/use tax return at the end of the year reporting all of the taxable purchases that were not taxed and to pay tax on those purchases. Details of how to file these returns may be found at the websites of your respective taxing authorities. The sales tax indicated on the checkout page is an estimate. The sales tax ultimately charged to your credit card will be calculated when your credit card charge is authorized and will reflect applicable state and local taxes.
- (c)Taxes on Items Sold by Seller. When a Seller sells items pursuant to an Offer or via Consignment, that Seller is responsible for complying with all applicable tax laws. The pricing provided to you in an Offer or as a Consignment price excludes applicable taxes and it is up to you confirm and pay any and all applicable taxes.
If you elect to provide or make available to Backflip any suggestions, comments, ideas, improvements or other feedback relating to the Services (“Feedback”), Backflip shall own and be free to use, reproduce, modify, adapt, create derivative works from, publicly perform, publicly display, distribute, make, have made, assign, pledge, transfer or otherwise grant rights in your Feedback in any form and any medium (whether now known or later developed), without credit or compensation to you.
9. DEALINGS WITH ADVERTISERS AND OTHER THIRD PARTIES
You shall indemnify and hold Backflip and its affiliates, and each of their officers, directors, employees, agents, personnel, partners and licensors (collectively, “Backflip Parties”) harmless from and against all losses, damages, costs, liabilities, and expenses, including reasonable attorneys' fees, to extent resulting from or arising out of any third party claim, demand, or action due to (a) content you provide to Backflip; (b) your violation of the rights of any third party, including Couriers and/or Backflip personnel; (c) your provision of inaccurate or untrue information to Backflip; (d) the contents or the insufficient or improper packaging, labeling or marking of a package; (e) your violation of this TOS, any law or regulation, or any rights (including intellectual property rights) of another party; (f) your failure to (i) wipe all data and restrictions from a device, (ii) log out of all services and applications, and (iii) clear all passwords from a device before delivery to Backflip; or (g) your use of the Services, except as expressly permitted in this TOS.
11. DISCLAIMER OF WARRANTIES
- (a)YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK. THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, Backflip PARTIES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED OR ARISING FROM STATUTE, COURSE OF DEALING, USAGE OF TRADE OR OTHERWISE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, QUALITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT.
- (b)BACKFLIP PARTIES MAKE NO WARRANTY OR REPRESENTATION THAT: (i) THE SERVICES WILL MEET YOUR REQUIREMENTS; (ii) ACCESS TO THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, VIRUS-FREE, OR ERROR-FREE; OR (iii) THE INFORMATION AND ANY RESULTS THAT MAY BE OBTAINED FROM ACCESS TO OR USE OF THE SERVICES WILL BE ACCURATE, RELIABLE, CURRENT, OR COMPLETE.
- (c)ALL CONTENT MADE AVAILABLE THROUGH THE SERVICES IS MADE AVAILABLE FOR INFORMATIONAL PURPOSES ONLY. YOU ARE SOLELY RESPONSIBLE FOR CONFIRMING THE ACCURACY OF ALL CONTENT BEFORE TAKING OR OMITTING ANY ACTION.
- (d)THIS DISCLAIMER OF WARRANTY MAY NOT BE VALID IN SOME JURISDICTIONS AND YOU MAY HAVE WARRANTY RIGHTS UNDER LAW WHICH MAY NOT BE WAIVED OR DISCLAIMED. ANY SUCH WARRANTY EXTENDS ONLY FOR THIRTY (30) DAYS FROM THE EFFECTIVE DATE OF THIS AGREEMENT (UNLESS SUCH LAW PROVIDES OTHERWISE).
12. LIMITATION OF LIABILITY
- (a)BACKFLIP PARTIES SHALL NOT BE LIABLE FOR ANY LOST PROFITS, LOSS OF DATA OR GOODWILL, OR COST OF COVER, OR FOR ANY INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR CONSEQUENTIAL DAMAGES, INCLUDING DAMAGES ARISING FROM ANY TYPE OR MANNER OF COMMERCIAL, BUSINESS, OR FINANCIAL LOSS, EVEN IF BACKFLIP PARTIES HAD ACTUAL OR CONSTRUCTIVE KNOWLEDGE OF THE POSSIBILITY OF SUCH DAMAGES AND REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE. IN NO EVENT SHALL BACKFLIP PARTIES' TOTAL LIABILITY TO YOU FOR ANY AND ALL CLAIMS ARISING FROM OR RELATING TO THIS TOS OR YOUR ACCESS TO OR USE OF (OR INABILITY TO ACCESS OR USE) THE SERVICES OR CONTENT EXCEED $200.00.
- (b)THE FOREGOING LIMITATIONS, EXCLUSIONS AND DISCLAIMERS SHALL APPLY REGARDLESS OF WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT THE PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE. INSOFAR AS APPLICABLE LAW PROHIBITS ANY LIMITATION ON LIABILITY HEREIN, THE PARTIES AGREE THAT SUCH LIMITATION WILL BE AUTOMATICALLY MODIFIED, BUT ONLY TO THE EXTENT SO AS TO MAKE THE LIMITATION COMPLIANT WITH APPLICABLE LAW. THE PARTIES AGREE THAT THE LIMITATIONS ON LIABILITIES SET FORTH HEREIN ARE AGREED ALLOCATIONS OF RISK AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
13. SUSPENSION AND TERMINATION
- (a)Either party may terminate this TOS at any time.
- (b)If you violate this TOS, Backflip may, with or without notice to you, immediately suspend or terminate your access and use of the Services.
- (c)Backflip reserves the right at any time to modify, suspend, or discontinue the Services (or any portion thereof) with or without notice, and Backflip shall not be liable to you or any third party for any such modification or discontinuance;
- (d)Upon termination of this TOS for any reason: (i) Backflip, in its sole discretion, may remove and discard your content and information; (ii) you will immediately cease your use of the Services; and (iii) any provision that, by its terms, is intended to survive the expiration or termination of this TOS shall survive such expiration or termination. Further, you agree that that Backflip shall not be liable to you or any third party for any termination of your account or access to the Services.
14. GOVERNING LAW
This TOS shall be governed by and construed and enforced in accordance with the United States Federal Arbitration Act, other applicable federal laws and the laws of the State of Texas, without regard to conflict of laws principles. The parties agree that neither the United Nations Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act (UCITA) shall apply to this TOS, regardless of the states in which the parties do business or are incorporated.
15. BINDING ARBITRATION AND CLASS ACTION WAIVER
- (a)ALL CLAIMS ARISING IN CONNECTION WITH THIS AGREEMENT SHALL BE RESOLVED BY FINAL AND BINDING ARBITRATION RATHER THAN IN COURT, EXCEPT THAT YOU MAY ASSERT CLAIMS IN SMALL CLAIMS COURT (DEFINED FOR THE PURPOSES OF THIS TOS AS A COURT OF LIMITED JURISDICTION THAT MAY ONLY HEAR CLAIMS NOT EXCEEDING $5,000) IF YOUR CLAIMS ARE WITHIN THE COURT'S JURISDICTION. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
- (b)The arbitration shall be conducted by the American Arbitration Association (AAA) under its then-applicable Commercial Arbitration Rules or, as appropriate, its Consumer Arbitration Rules. The AAA's rules are available at https://www.adr.org/. Payment of all filing, administration and arbitrator fees shall be governed by the AAA's rules. The arbitration shall be conducted in the English language by a single independent and neutral arbitrator. For any hearing conducted in person as part of the arbitration, you agree that such hearing shall be conducted in Austin, Texas or, if the Consumer Arbitration Rules apply, another location reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances, as determined by the arbitrator. The decision of the arbitrator shall be final and binding. Judgment on the arbitral award may be entered in any court of competent jurisdiction.
- (c)WE EACH AGREE THAT ALL CLAIMS SHALL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION OR OTHER SIMILAR PROCESS (INCLUDING ARBITRATION). IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WE EACH WAIVE ANY RIGHT TO A JURY TRIAL AND AGREE THAT SUCH CLAIM SHALL BE BROUGHT ONLY IN A COURT OF COMPETENT JURISDICTION IN AUSTIN, TEXAS. YOU HEREBY SUBMIT TO THE PERSONAL JURISDICTION AND VENUE OF SUCH COURTS AND WAIVE ANY OBJECTION ON THE GROUNDS OF VENUE, FORUM NON-CONVENIENS OR ANY SIMILAR GROUNDS WITH RESPECT TO ANY SUCH CLAIM.
- (d)Notwithstanding anything to the contrary, you and Backflip may seek injunctive relief and any other equitable remedies from any court of competent jurisdiction to protect its intellectual property rights, whether in aid of, pending, or independently of the resolution of any dispute pursuant to the arbitration procedures set forth in this Section 13.
- (e)If Backflip implements any material change to this Section 13, such change shall not apply to any Claim for which you provided written notice to Backflip before the implementation of the change.
16. LEGAL COMPLIANCE
You represent and warrant that you will comply with all applicable foreign, federal, state, and local laws, rules and regulations, including without limitation, U.S. export laws and import and use laws of the country where Licensed Material is delivered or used and you are not: (a) located in a country that is subject to a U.S. Government embargo, or designated by the U.S. Government as a “terrorist supporting” country; and (b) listed on any U.S. Government list of prohibited or restricted parties, including the Specially Designated Nationals List.
17. U.S. GOVERNMENT ENTITIES
This section applies to access to or use of the Services by a branch or agency of the United States Government. The Services includes “commercial computer software” and “commercial computer software documentation” as such terms are used in 48 C.F.R. 12.212 and qualifies as “commercial items” as defined in 48 C.F.R. 2.101. Such items are provided to the United States Government: (a) for acquisition by or on behalf of civilian agencies, consistent with the policy set forth in 48 C.F.R. 12.212; or (b) for acquisition by or on behalf of units of the Department of Defense, consistent with the policies set forth in 48 C.F.R. 227.7202-1 and 227.7202-3. The United States Government shall acquire only those rights set forth in this TOS with respect to the such items, and any access to or use of the Services by the United States Government constitutes: (i) agreement by the United States Government that that such items are “commercial computer software” and “commercial computer software documentation” as defined in this section; and (ii) acceptance of the rights and obligations herein.
18. PROCEDURE FOR MAKING CLAIMS OF COPYRIGHT INFRINGEMENT
If you believe that your work has been made available through the Services in a way that constitutes copyright infringement, please provide Backflip's Agent for Notice of Copyright Claims the following information: (a) a physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed; (b) a description of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works are covered by a single notification, a representative list of such works; (c) a description of the material that you claim is infringing and where that material may be accessed within the Services; (d) your address, telephone number and email address; (e) a statement by you that you have a good-faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law; and (f) a statement from you that the information in the notification is accurate and, under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. If you believe in good faith that a notice of copyright infringement has been wrongly filed against you, please contact Backflip's Agent for Notice of Copyright Claims. Backflip's Agent for Notice of Copyright Claims can be reached as follows:
Agent for Notice of Copyright Claims
548 Market St., PMB 80813
San Francisco, CA 94104-5401
19. CALIFORNIA USERS & RESIDENTS
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 such unit in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (800) 952-5210.
20. GENERAL PROVISIONS
CONSIGNMENT TERMS ADDENDUM
This Consignment Terms Addendum (this “Addendum”) supplements and is incorporated into the Terms of Service of Backflip, Inc. (“Backflip”) (the “TOS”) and governs your offering for sale of items through the Services on a consignment basis (“Consignment”). Any capitalized and undefined terms contained herein shall have the meanings set forth in the TOS. In the event of any conflict between this Addendum and the TOS, the terms of this Addendum shall control with respect to Consignment only. Backflip may, at its discretion, update this Addendum at any time. You can access and review the most current version of this Addendum at the URL for this page or by clicking on the “Terms of Service” link within the Services, or as otherwise made available by Backflip.
PLEASE REVIEW THIS ADDENDUM CAREFULLY. BY OFFERING ITEMS FOR CONSIGNMENT, YOU AGREE TO BE BOUND BY THIS ADDENDUM, INCLUDING ANY UPDATES OR REVISIONS POSTED HERE OR OTHERWISE COMMUNICATED TO YOU. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THIS ADDENDUM, YOU MAY NOT OFFER ANY ITEMS FOR CONSIGNMENT ON THE SERVICES.
1. CONSIGNMENT PROCESS
- (a)If you choose to offer any items for Consignment on the Services (“Consigned Items”), Backflip will list the Consigned Items for sale either on the Services or another avenue at its sole discretion. If the Consigned Items are sold by Backflip during the Consignment Period (defined below), you will receive the Consignment price that was communicated to you by Backflip at the time you chose Consignment (the “Consignment Price”). Backflip may list the Consigned Items for sale at the price it determines in its sole discretion and may update such price at any time during the Consignment Period for any or no reason, so long as Backflip uses commercially reasonable efforts to sell the Consigned Items.
- (b)Subject to the termination of this Addendum as may be set forth herein, the Consigned Items will be listed for sale for a period of ninety (90) days after you choose Consignment (the “Consignment Period”). You may not request a return or the sale of a Consigned Item at the Consignment Price during the Consignment Period.
- (c)If the Consigned Items have not been sold by Backflip by the end of the Consignment Period, you have the option of either requesting a return of the Consigned Items or accepting the Instant Price offered to you by Backflip at the end of the Consignment Period. Backflip may, at its sole and absolute discretion, offer you a subsequent Consignment Period, but such option is not guaranteed. If Backflip does not receive a response from you within seven (7) days after the end of the Consignment Period, you acknowledge, understand and agree that you relinquish all right, title and interest to such Consigned Items and you hereby agree that such right, title and interest to such Consigned Items shall automatically vest with Backflip to use, sell, donate, or take any other actions in its sole discretion.
- (d)Notwithstanding anything contained herein or the TOS, you hereby acknowledge, agree, and authorize Backflip to share your name and address with marketplaces it may sell Consigned Items on, as needed and as applicable in order for Backflip to sell such Consigned Item on any such marketplace. You hereby understand and agree that such name and address provided to any such marketplace shall be governed by the privacy terms and policies of any such marketplace and that Backflip shall have no liability for any such name and address after it has been provided to any such marketplace.
2. RISK OF LOSS
- (a)All Consigned Items will remain your property and title to the Consigned Items will be vested in you and will pass directly from you to Backflip's end customer. The Consigned Items shall be stored at Backflip's facilities (“Backflip Locations”). Backflip shall use commercially reasonable efforts to provide security for the Consigned Items at the Backflip Locations; however, you accept and agree that Backflip shall not be responsible for any loss or damage, or for any loss, casualty, theft, or damage to the Consigned Items, regardless of the cause thereof.
- (b)If a Consigned Item is damaged, stolen or lost while in Backflip's possession, Backflip will determine in its discretion if the Consigned Item can still be offered for Consignment and whether and in what amount it will issue you a credit for the value of such Consigned Item or the value of such damage.
- (c)If, after the Consignment Period, you request the return of the Consigned Items to you, you shall be responsible for the costs of such return and you hereby authorize Backflip to charge your payment method provided to Backflip for the cost of such return.
- (a)Backflip will strive to process Consignment payments within thirty (30) days of the sale of each Consigned Item and such payments will be processed via the payment method you provide to Backflip on the Services. You may, in Backflip's sole discretion, be charged a processing fee.
- (b)You agree that any and all information you provide to Backflip, including contact, payment, billing and other information, will be true, accurate and complete. In order to receive payment for the Consigned Items, you must provide Backflip with all information required for Backflip to process such payments. Backflip shall not be responsible for any misapplied payments, payment sent to the wrong address, unclaimed funds or insufficient funds in your account.
4. TERMINATION; SUSPENSION OF SERVICES
- (a)Upon termination of your access to the Services for any reason, you hereby agree that any Consigned Items which are listed for sale during any applicable Consignment Period on the effective date of such termination shall remain offered for Consignment until the end of such Consignment Period in accordance with the terms set forth herein.
- (b)Backflip reserves the right, in its sole discretion, to deny or terminate your access to the Services or Consignment option for any reason.