Thanks for using Tradebuilder Corporation (“TBC”) products and services (“Services”).
A reference to “Tradebuilder,” “TBC,” “IMK,” “IMKLOUD,” “we,” “us,” “our,” or the “Company” is a reference to Tradebuilder Corporation.
Fees for Services: You agree to pay to TBC any fees for each Service you purchase or use (including any overage fees), in accordance with the pricing and payment terms presented to you for that Service. Where applicable, you will be billed using the billing method you select through your account management page. Fees paid by you are non-refundable, except as provided in these Terms or when required by law.
Subscriptions: Some of our Services are billed on a subscription basis (we call these “Subscriptions”). This means that you will be billed in advance on a recurring, periodic basis (each period is called a “billing cycle”). Billing cycles are typically monthly or annual, depending on what subscription plan you select when purchasing a Subscription. Your Subscription will automatically renew at the end of each billing cycle unless you cancel auto-renewal through your online account management page, or by contacting our customer support team. While we will be sad to see you go, you may cancel auto-renewal on your Subscription at any time, in which case your Subscription will continue until the end of that billing cycle before terminating. You may cancel auto-renewal on your Subscription immediately after the Subscription starts if you do not want it to renew.
Taxes: Unless otherwise stated, you are responsible for any taxes (other than TBC’s income tax) or duties associated with the sale of the Services, including any related penalties or interest (collectively, “Taxes”). You will pay TBC for the Services without any reduction for Taxes. If TBC is obliged to collect or pay Taxes, the Taxes will be invoiced to you, unless you provide TBC with a valid tax exemption certificate authorized by the appropriate taxing authority or other documentation providing evidence that no tax should be charged. If you are required by law to withhold any Taxes from your payments to TBC, you must provide TBC with an official tax receipt or other appropriate documentation to support such payments.
Price Changes: TBC may change the fees charged for the Services at any time, provided that, for Services billed on a subscription basis, the change will become effective only at the end of the then-current billing cycle of your Subscription. TBC will provide you with reasonable prior written notice of any change in fees to give you an opportunity to cancel your Subscription before the change becomes effective.
Overage Fees: Unless otherwise stated, any overage fees incurred by you will be billed in arrears on a monthly basis. Overage fees which remain unpaid for 30 days after being billed are considered overdue. Failure to pay overage fees when due may result in the applicable Service being limited, suspended, or terminated (subject to applicable legal requirements), which may result in a loss of your data associated with that Service.
Both TBC and its affiliates end client’s personal information (for example, name, email address, and address) and are therefore considered separate and independent data controllers of buyers’ personal information under EU law. That means that each party is responsible for the personal information it processes in providing the Services.
Confidentiality TBC will treat your Content as confidential information and only use and disclose it in accordance with these Terms (including our privacy policies). However, your Content is not regarded as confidential information if such Content: (a) is or becomes public (other than through breach of these Terms by TBC); (b) was lawfully known to TBC before receiving it from you; (c) is received by TBC from a third party without knowledge of breach of any obligation owed to you; or (d) was independently developed by TBC without reference to your Content.
You Retain Ownership of Your Content: You retain ownership of all of your intellectual property rights in your Content. TBC does not claim ownership over any of your Content. These Terms do not grant us any licenses or rights to your Content except for the limited rights needed for us to provide the Services, and as otherwise described in these Terms.
Limited License to Your Content You grant TBC a worldwide, royalty free license to use, reproduce, distribute, modify, adapt, create derivative works, make publicly available, and otherwise exploit your Content, but only for the limited purposes of providing the Services to you and as otherwise permitted by TBC’s privacy policies. This license for such limited purposes continues even after you stop using our Services, though you may have the ability to delete your Content in relation to certain Services such that TBC no longer has access to it. This license also extends to any trusted third parties we work with to the extent necessary to provide the Services to you. If you provide TBC with feedback about the Services, we may use your feedback without any obligation to you.
Copyright Claims (DMCA Notices): Tradebuilder Corporation responds to notices of alleged copyright infringement in accordance with the U.S. Digital Millennium Copyright Act (DMCA). If you believe that your work has been exploited in a way that constitutes copyright infringement, you may notify TBC’s agent for claims of copyright infringement.
Other IP Claims: TBC respects the intellectual property rights of others, and we expect our users to do the same. If you believe a TBC user is infringing upon your intellectual property rights, you may report it through our online form. Claims of copyright infringement should follow the DMCA process outlined in these Terms, or any equivalent process available under local law.
TBC IP: Neither these Terms nor your use of the Services grants you ownership in the Services or the content you access through the Services (other than your Content). Except as permitted by TBC’s Brand and Trademark Use Policy, these Terms do not grant you any right to use TBC’s trademarks or other brand elements.
User Content: The Services display content provided by others that is not owned by TBC. Such content is the sole responsibility of the entity that makes it available. Correspondingly, you are responsible for your own Content and you must ensure that you have all the rights and permissions needed to use that Content in connection with the Services. TBC is not responsible for any actions you take with respect to your Content, including sharing it publicly. Please do not use content from the Services unless you have first obtained the permission of its owner, or are otherwise authorized by law to do so.
Illegal and Inappropriate Content: TBC does not allow illicit or illegal material, including but not limited to: phishing forms, spam, and unlawful pornographic material. Additionally, TBC values diversity and respect for others, and we strive to avoid hosting content which includes: hatred; violence; harassment; racism; sexual, religious, or political intolerance, or organizations with such views content that's exploitative or appears to unfairly capitalize at the expense of others Inappropriate or illegal content will be removed and accounts may be frozen. Please refer to “Acceptable Uses” for further clarity on appropriate user content.
Content Review: You acknowledge that, in order to ensure compliance with legal obligations, TBC may be required to review certain content submitted to the Services to determine whether it is illegal or whether it violates these Terms (such as when unlawful content is reported to us). We may also modify, prevent access to, delete, or refuse to display content that we believe violates the law or these Terms. However, TBC otherwise has no obligation to monitor or review any content submitted to the Services.
Third Party Resources: TBC may publish links in its Services to internet websites maintained by third parties. TBC does not represent that it has reviewed such third party websites and is not responsible for them or any content appearing on them. Trademarks displayed in conjunction with the Services are the property of their respective owners.
Keep Your Password Secure: If you have been issued an account by TBC in connection with your use of the Services, you are responsible for safeguarding your password and any other credentials used to access that account. You, and not TBC, are responsible for any activity occurring in your account (other than activity that TBC is directly responsible for which is not performed in accordance with the Customer’s instructions), whether or not you authorized that activity. If you become aware of any unauthorized access to your account, you should notify TBC immediately. Accounts may not be shared and may only be used by one individual per account.
Keep Your Details Accurate: TBC occasionally sends notices to the email address registered with your account. You must keep your email address and, where applicable, your contact details and payment details associated with your account current and accurate. Accounts are controlled by the entity whose email address is registered with the account.
Remember to Backup: You are responsible for maintaining, protecting, and making backups of your Content. To the extent permitted by applicable law, TBC will not be liable for any failure to store, or for loss or corruption of, your Content.
Account Inactivity: TBC may terminate your account and delete any content contained in it if there is no account activity (such as a log in event or payment) for over 12 months. However, we will attempt to warn you by email before terminating your account to provide you with an opportunity to log in to your account so that it remains active.
Legal Status: If you are an individual, you may only use the Service if you have the power to form a contract with TBC. None of the Services are intended for use by individuals less than 13 years old. If you are under 13 years old or do not have the power to form a contract with TBC, you may not use the Services. We recommend that parents and guardians directly supervise any use of the Services by minors. If you are not an individual, you warrant that you are validly formed and existing under the laws of your jurisdiction of formation and that you have duly authorized your agent to bind you to these Terms.
Embargoes: You may only use the Services if you are not barred under any applicable laws from doing so. If you are located in a country embargoed by United States or other applicable law from receiving the Services, or are on the U.S. Department of Commerce’s Denied Persons List or Entity List, or the U.S. Treasury Department’s list of Specially Designated Nationals, you are not permitted to purchase any paid Services from TBC.
Legal Compliance: You must use the Services in compliance with, and only as permitted by, applicable law.
Your Responsibilities: You are responsible for your conduct, Content, and communications with others while using the Services. You must comply with the following requirements when using the Services: (a) You may not misuse our Services by interfering with their normal operation, or attempting to access them using a method other than through the interfaces and instructions that we provide. (b) You may not circumvent or attempt to circumvent any limitations that TBC imposes on your account (such as by opening up a new account to conduct a survey that we have closed for a Terms violation). (c) Unless authorized by TBC in writing, you may not probe, scan, or test the vulnerability of any TBC system or network. (d) Unless permitted by applicable law, you may not deny others access to, or reverse engineer, the Services, or attempt to do so. (e) You may not transmit any viruses, malware, or other types of malicious software, or links to such software, through the Services. (f) You may not engage in abusive or excessive usage of the Services, which is usage significantly in excess of average usage patterns that adversely affects the speed, responsiveness, stability, availability, or functionality of the Services for other users. TBC will endeavor to notify you of any abusive or excessive usage to provide you with an opportunity to reduce such usage to a level acceptable to TBC. (g) You may not use the Services to infringe the intellectual property rights of others, or to commit an unlawful activity. (h) Unless authorized by TBC in writing, you may not resell or lease the Services. (i) If your use of the Services requires you to comply with industry-specific regulations applicable to such use, you will be solely responsible for such compliance, unless TBC has agreed with you otherwise. You may not use the Services in a way that would subject TBC to those industry-specific regulations without obtaining TBC’s prior written agreement. For example, you may not use the Services to collect, protect, or otherwise handle “protected health information” (as defined in 45 C.F.R. §160.103 under United States federal regulations) without entering into a separate business associate agreement with TBC that permits you to do so.
By You: Refunds are issued for yearly and biennial subscriptions if cancelled within 5 days of initial purchase. Refunds are not available for monthly upgrades. Terminating a subscription mid-billing cycle will not result in a refund, unless you are an annual or biennial subscriber and are cancelling within 5 days after the initial purchase. All users who terminate mid-billing cycle will continue to have full access to their plan features until the end of the cycle when the termination takes into effect. Refunds for upgrades purchased through a third-party cannot be issued by TBC.
The Terms of Service are displayed in the checkout process, and anyone purchasing an upgrade must agree to the terms before being able to buy a TBC upgrade.
Annual and biennial upgrades Refunds can be issued only within the first 5 days of a yearly or biennial upgrade being purchased.
Changes to Terms: TBC may change these Terms at any time for a variety of reasons, such as to reflect changes in applicable law or updates to Services, and to account for new Services or functionality. Any changes will be posted to the location at which those terms appear. TBC may also provide notification of changes on its blog or via email. Changes will be effective no sooner than the day they are publicly posted. In order for certain changes to become effective, applicable law may require TBC to obtain your consent to such changes, or to provide you with sufficient advance notice of them. If you do not want to agree to any changes made to the terms for a Service, you should stop using that Service, because by continuing to use the Services you indicate your agreement to be bound by the updated terms.
Changes to Services: TBC constantly changes and improves the Services. TBC may add, alter, or remove functionality from a Service at any time without prior notice. TBC may also limit, suspend, or discontinue a Service at its discretion. If TBC discontinues a Service, we will give you reasonable advance notice to provide you with an opportunity to export a copy of your Content from that Service. TBC may remove content from the Services at any time in our sole discretion, although we will endeavor to notify you before we do that if it materially impacts you and if practicable under the circumstances.
Disclaimers: While it is in TBC interest to provide you with a great experience when using the Services (and we love to please our customers), there are certain things we do not promise about them. We try to keep our online Services up, but they may be unavailable from time to time for various reasons. EXCEPT AS EXPRESSLY PROVIDED IN THESE TERMS AND TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE SERVICES ARE PROVIDED “AS IS” AND TBC DOES NOT MAKE WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, OR STATUTORY, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OR ANY REGARDING AVAILABILITY, RELIABILITY, OR ACCURACY OF THE SERVICES.
Exclusion of Certain Liability: TO THE EXTENT PERMITTED BY APPLICABLE LAW, TBC, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS WILL NOT BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, OR EXEMPLARY DAMAGES WHATSOEVER, INCLUDING DAMAGES FOR LOST PROFITS, LOSS OF USE, LOSS OF DATA, ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS, AND WHETHER BASED ON CONTRACT, TORT, STRICT LIABILITY, OR ANY OTHER LEGAL THEORY, EVEN IF TBC HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
Limitation of Liability: TO THE EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF EACH OF TBC, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS, AND LICENSORS ARISING OUT OF OR IN CONNECTION WITH THE SERVICES AND THESE TERMS WILL NOT EXCEED THE GREATER OF: (A) THE AMOUNTS PAID BY YOU TO TBC FOR USE OF THE SERVICES AT ISSUE DURING THE 3 MONTHS PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY; AND (B) US$100.00.
Consumers: We acknowledge that the laws of certain jurisdictions provide legal rights to consumers that may not be overridden by contract or waived by those consumers. If you are such a consumer, nothing in these Terms limits any of those consumer rights.
Businesses: If you are a business, you will indemnify and hold harmless TBC and its affiliates, officers, agents, and employees from all liabilities, damages, and costs (including settlement costs and reasonable attorneys’ fees) arising out of a third party claim regarding or in connection with your use of the Services or a breach of these Terms, to the extent that such liabilities, damages and costs were caused by you.
Who you are contracting with: Unless otherwise specified in relation to a particular Service, the Services are provided by, and you are contracting with, Tradebuilder Corporation.
Tradebuilder Corporation: For any Service provided by TBC., the following provisions will apply to any terms governing that Service: Contracting Entity. References to “TBC”, “we”, “us”, and “our” are references to Tradebuilder Corporation, located at 90 Great Oaks Blvd. Suite 205A, San Jose, CA 95119, United States of America. Governing Law. Those terms are governed by the laws of the State of California (without regard to its conflict of laws provisions). Jurisdiction. Except if prohibited by applicable law, each party submits to the exclusive jurisdiction of the state courts located in Santa Clara County, California, and the federal courts located in the Northern District of California with respect to the subject matter of those terms.
Assignment: You may not assign these Terms without TBC’s prior written consent, which may be withheld in TBC’s sole discretion. TBC may assign these Terms at any time without notice to you.
Entire Agreement: These Terms (including the Additional Terms) constitute the entire agreement between you and TBC, and they supersede any other prior or contemporaneous agreements, terms and conditions, written or oral concerning its subject matter. Any terms and conditions appearing on a purchase order or similar document issued by you do not apply to the Services, do not override or form a part of these Terms, and are void.
Independent Contractors: The relationship between you and TBC is that of independent contractors, and not legal partners, employees, or agents of each other.
Interpretation: The use of the terms “includes”, “including”, “such as”, and similar terms, will be deemed not to limit what else might be included.
No Waiver: A party’s failure or delay to enforce a provision under these Terms is not a waiver of its right to do so later.
Precedence: To the extent any conflict exists, the Additional Terms prevail over this TOU with respect to the Services to which the Additional Terms apply.
Severability: If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
Third Party Beneficiaries: There are no third party beneficiaries to these Terms.
Language: These Terms are prepared and written in English. To the extent that any translated version conflicts with the English version, the English version controls, except where prohibited by applicable law.
Customer-Specific Terms: The following amendments automatically apply to you upon acceptance of these
Country-Specific Terms: If you are located in one of the following locations, the terms thereunder apply.
Account Creation and Management
General Account Creation. Certain features and functionalities of the Platform may require you to create a TBC account (the “Account”). In establishing an Account, you agree to provide only true, accurate, current and complete information about yourself (or your Principal; see below) and to update such information as necessary to maintain its truth and accuracy.
Registration on Behalf of Principal. In the event you create an Account as an agent acting on behalf of a business, employer or third party because, you represent and warrant that you have the authority to do so (e.g., you are an authorized employee or agent (collectively, the “Agent”) of such business, employer or third party (collectively, the “Principal”). In creating an Account on behalf of a Principal, you (as Agent) agree to provide such Principal’s full legal name and any applicable fictitious business name(s) (including the proper trade names or “doing business as” names). In all such cases where an Agent creates and/or uses an Account for the Principal, the Agent agrees and acknowledges that he/she undertakes all such activities on behalf of the Principal, and that the Principal shall be the party to this Agreement for all purposes, regardless of whether the Agent had the proper authority to create the Account, maintained the Account, and/or transferred the Account to another Agent. Accordingly, only the Principal is entitled to any rights, remedies or benefits under this Agreement and only the Principal may control or direct the Account and all information related thereto; the Agent does not acquire or retain any personal rights with respect to such Account. The Principal is likewise subject to all of the covenants, restrictions, limitations, representations, warranties, waivers and releases included in this Agreement.
Furthermore, you hereby represent and warrant that you (as the Agent): (i) may be held liable by and to TBC for any misrepresentation made by you in connection with your registration for and use of the Account; (ii) may be held liable by and to the Principal; and (iii) may be held liable by law enforcement, governmental authority or court order. You (as Agent) agree to indemnify, defend, and hold harmless TBC for any breach of the representations, warranties, and covenants contained in this Section 3 in accordance with Section 15 (Indemnification) of this Agreement.
Account Management. Ultimately, the Principal is responsible for all activities that occur under the Account, including, but not limited to, Account and password management, and neither Principal nor Agent will agree to sell, transfer or assign the Account or any Account related rights without the express written consent of TBC. You are also responsible for maintaining the privacy and security of your network settings and systems to ensure that all sensitive or confidential information originating from your systems is properly transmitted and handled.
PayPal Payments. Some payment processing services made available through the Platform to certain Users are provided by PayPal and are subject to the PayPal Terms of Service. By agreeing to this Agreement, you also agree, to the extent applicable, to be bound by these Terms (which may be modified from time to time by PayPal). As a condition of TBC enabling payment processing services through PayPal, you agree to provide only true, accurate, current and complete information about yourself (or your Principal; see above) and to update such information as necessary to maintain its truth and accuracy. You also authorize TBC to share such information and other transaction information related to your use of the payment processing services provided by PayPal.
TBC may require, and you agree to promptly furnish, additional information from you, including, but not limited to, tax identification number, social security number, identity verification, taxpayer information, or other information as the case may be. Failure to promptly provide such additional information to TBC may result in Account suspension and/or termination pursuant to Section 8.
All Physical Products and Services, (and Digital Goods to the extent such Digital Goods are deemed to be "goods," as defined in California Commercial Code §2105) are subject to California Commercial Code §2401(2) and Uniform Commercial Code §2401(2) with respect to the transfer of ownership of goods between the Buyer and you, unless the Buyer and you agree otherwise.
Fees, Balance Redemption, Taxes, and Conversion
The details of the fees with respect to Digital Goods, Physical Products, and Services are as follows:
Digital Goods. With respect to your Digital Goods, you may upload a digital file (including, but not limited to, .mp3, .pdf, .png, .jpeg, .zip files) to the Platform and Promote the Digital Good at a retail price determined by you, and including any applicable taxes and shipping costs, in your sole and absolute discretion (the “Retail Price”). Upon receiving a Buyer’s offer to purchase the Digital Good, TBC will immediately undertake technological efforts to digitally duplicate the Digital Good (with the result, the “Digital Duplicate”) and make the Digital Duplicate available to the Buyer at the Retail Price.
Physical Products and Services. With respect to Physical Products and Services, you may upload a listing of a physical good to the Platform and Promote the Physical Product or Service at a Retail Price. In contrast with the fulfillment and delivery of Digital Goods (as described in Section 5.1.1), you are solely responsible for the fulfillment and delivery of Physical Products and Services to the Buyer in a timely manner. TBC does not ship, handle or take custody of Physical Product or Service at any point.
Taxes. You agree to be solely responsible and liable for the proper administration, imposition, collection, reporting, and remitting of all applicable taxes, including, but not limited to, sales tax and income tax. With respect to sales of applicable Digital Goods made to European Union consumers, you will, collect, report, and remit Value Added Tax governing “telecommunications, broadcasting, and electronic services” in accordance with the applicable European Commission VAT regulations.
TBC Fees. In addition to any and all processing fees charged by our payment processing partners (e.g. PayPal), TBC may charge a fixed or percentage fee on any completed transactions on Physical Products, Service, or Digital Goods, including one time and subscription purchases.
Use of the Platform
When you use the Platform, you assent that:
You will not, or attempt to, make any unlicensed or unauthorized use of, or otherwise infringe violate or misappropriate, any patent, copyright, trademark, trade secret, right of privacy, right of publicity, or other intellectual property or proprietary right (collectively, “IP Rights”) of any entity or individual, including, without limitation, incorporating any original, variation or misspellings of any third-party trademarks, service marks, creative assets, or other brand identifiers without proper authorization;
You will not, or attempt to, Promote or Deliver Digital Goods, Physical Products, or Services that: (i) violates, or may violate, the rules or policies of Card Networks or payment partners; (ii) constitutes illegal activity or is illegal; (iii) promotes or encourages discrimination based upon race, sex, religion, nationality, disability, sexual orientation or age; or (iv) targets, or intends to distribute to, children under the age of thirteen (13) years old;
You will not, or attempt to, defame or impersonate any entity or person, including, without limitation, copying the “look and feel” of any third-party website or branding, or conveying or implying that you are operating a third-party website or entity;
You will not, or attempt to, probe, exploit, disable, avoid, deactivate, remove, circumvent, crawl, scan, penetrate, or test the integrity and vulnerability of the Platform in any manner, including any client or server machine, or other security or authentication measures and safeguards;
You will not, or attempt to, disassemble, reverse engineer, or decompile any part of the Platform;
You will not, or attempt to, embed, insert, include, or disseminate any viruses or other harmful, or potentially harmful, data or technology into or through the Platform, including, without limitation, for the purposes of disrupting, damaging, or interfering with the Platform and/or other users of the Platform;
You will undertake best efforts to ensure that all communications and/or representations you make in connection with your Digital Good(s), Physical Product(s), and Service(s) will: (i) be accurate and contain all disclosures and disclaimers necessary to prevent such communications and/or representations from being false, deceptive, or misleading; and (ii) otherwise comply with all applicable laws, regulations, advisories, and policies related to consumer protection;
You will promptly: (i) respond to inquiries from TBC; (ii) notify TBC of any regulatory or legal complaints, or threats of such complaints, that you receive in connection with or in relation to a Digital Good, Physical Product, or Service; and (iii) in connection with (ii) directly above, assist, at your sole cost and expense, in taking any appropriate or necessary actions reasonably requested by TBC to respond to and/or resolve such complaints; and
You will comply with all applicable laws, regulations, court orders, third party rights, applicable industry requirements (including, but not limited to, any and all applicable provisions of the Visa International Operating Regulations, MasterCard Merchant Rules, and PCI compliance standards), and any TBC policy or standard that may be issued from time to time.
Return and Refund Policy
Requests for returns, refunds, and exchanges of any and all Digital Goods, Physical Products, and Services are the sole responsibility of you, the Buyer, and the payment processing institution. TBC takes no responsibility to enact or assess any such requests or transactions.
It is the Buyer’s sole responsibility to appropriately handle, remove or destroy any Digital Good or Physical Product or Service that may cause Buyer to: (i) incur additional liability, including, but not limited to, criminal and/or civil liability; or (ii) experience additional adverse effects, including, but not limited to, potential privacy, security, or technical vulnerabilities.
Availability of Services, Suspension and Termination
Subject to the terms and conditions of this Agreement and TBC's policies and procedures, TBC shall use commercially reasonable efforts to provide the Platform in a manner that will not disrupt your business. You acknowledge and agree that from time-to-time, the Platform may be inaccessible or inoperable for reasons including, without limitation: (i) equipment malfunctions; (ii) periodic maintenance procedures or repairs; or (iii) causes beyond the reasonable control of TBC or that are reasonably unforeseeable by TBC, including, without limitation, interruption or failure of telecommunication or digital transmission links, hostile network attacks, network congestion or other failures. You acknowledge and agree that TBC is not liable for interruptions to the availability of the Platform and further acknowledge that TBC does not guarantee access to the Platform on a continuous and uninterrupted basis.
TBC may decline, remove or halt sales of any Digital Good or Physical Product or Service, suspend or terminate an Account, and/or suspend or terminate the Platform at any time, in its sole discretion, without cause or notice to you or any penalty or liability for doing so.
TBC, in its sole discretion, may suspend or terminate your Account(s), if TBC suspects or has reason to believe and/or if a person otherwise claims that you have violated the law or breached any term of this Agreement. In addition to the foregoing, and all other rights and remedies available to TBC at law or in equity and notwithstanding anything in the Agreement to the contrary, in the event you breach any term of this Agreement, or your Account becomes dormant, TBC will have the right to immediately suspend or terminate your Account and your rights to access, use and/or otherwise participate in the Platform. Upon such termination, you agree to immediately cease all use of the Platform. Without limiting the foregoing, TBC shall have the right to immediately terminate your access and use of the Platform, or any portion thereof, in the event of any conduct that TBC, in its sole discretion, considers unacceptable. Following suspension or termination of an Account, TBC will review your Account in a manner determined by TBC in its sole discretion. You agree to cooperate with this review if asked.
CAN-SPAM Act. If you send emails, directly or indirectly, in connection with any Digital Good or Physical Product or Service, then you agree, acknowledge, represent and warrant that all such emails, and procurement of email addresses thereto, shall be in compliance with all applicable federal and state laws and regulations regarding the use of electronic messages, including without limitation the Controlling the Assault of Non-Solicited Pornography and Marketing Act and the Children's Online Privacy Protection Act.
Telephone Consumer Protection Act. If you send, initiate or procure a “call” (as that term is defined by the Telephone Consumer Protection Act), directly or indirectly, in connection with any Digital Good or Physical Product or Service, you agree, acknowledge, represent and warrant that you have obtained all necessary consents and authorizations under, and will be in full compliance with, applicable laws and regulations, including without limitation regulations issued by the Federal Trade Commission, Federal Communications Commission, and state laws related to anti-spam, text messages and Do-Not-Call Registries.
Confidentiality and Non-disclosure Obligations
In connection with this Agreement, TBC may disclose to you and/or you may otherwise receive or have access to sensitive, confidential, and/or proprietary information of TBC (collectively, “Confidential Information”). Except as required to perform your obligations under and in accordance with the terms of this Agreement, you shall not disclose or use the Confidential Information, without the express prior written consent of TBC. You may not use any Confidential Information for the purpose of soliciting, or to permit others to solicit, Users to subscribe to any other services or promote the sale of any products that compete, either directly or indirectly, with TBC or the functionality and services offered by the Platform. You agree and acknowledge that TBC may be required to provide to governmental agencies or other third parties information in its possession regarding you or the business you conduct with TBC or via the Platform.
You acknowledge and agree to comply with all applicable export laws, including the U.S. Export Administration Act, the Arms Export Control Act, the International Economic Emergency Powers Act, and the Foreign Corrupt Practices Act; and regulations issued pursuant to these and other U.S. Laws. You hereby represent and warrant that any Digital Good or Physical Product or Service Promoted or Delivered is approved for export from the United States without additional authorization or licensing from the U.S. government. Should the export authorization status of your Digital Good or Physical Product or Service change, you must immediately notify TBC in writing. Information on U.S. export control regulations can be found on the websites of the U.S Department of Commerce, U.S. Department of State and the U.S. Department of the Treasury.
It is your sole responsibility to obtain and maintain all applicable consents, licenses and permits required for the operation of your business.
In the event a third party makes any demand or complaint, or commences any action or files any claim whatsoever (each, a “Claim”) in connection with your use of the Platform, including without limitation your activities to Promote and/or Deliver Digital Goods or Physical Products or Services, you shall defend, indemnify and hold harmless TBC, its related parties and affiliates, and its officers, directors, employees, representatives, agents, licensors, attorneys, heirs, successors, and assignees (each, a “TBC Party”; and collectively, the “TBC Parties”), from and against any and all damages, liabilities, claims or costs (including the costs of investigation, defense, litigation, and reasonable attorneys' fees and costs) (“Losses”) incurred by any TBC Party as a result of such Claim, regardless of whether such Losses are direct, incidental, consequential, punitive or statutory.
Upon receiving notice of a Claim for which TBC is entitled to indemnification by you, TBC shall provide you with written notification and the opportunity to assume sole control over the defense or settlement of the Claim and reasonable assistance to settle and/or defend the Claim at your sole expense; provided, however, that (i) any settlement which would impose a non-monetary obligation on and/or admission or finding of liability or wrongdoing by TBC will require TBC’s prior written consent; (ii) the failure to provide timely notice, control, or assistance shall not relieve you of your indemnification obligations; and (iii) TBC may have its own counsel present at and participating in all proceedings or negotiations relating to a Claim, at TBC's own expense, unless you fail or refuse to secure legal counsel to defend any Claim in a timely manner, in which case you shall pay all expenses related to TBC's use of such counsel.
Limitation of Liability
In no event shall any TBC party, or its heirs, successors and assigns, be liable for any indirect, incidental, special, punitive, or consequential damages whatsoever arising out of, resulting from, or in connection with this agreement and/or any (a) use of or inability to use the platform, (b) personal injury, property damage, or losses of any kind, resulting from your access to and/or use of the platform, (c) unauthorized access to or use of any and all personal information and/or financial information stored therein, (d) interruption or cessation of transmission to or from the platform, and/or (e) bugs, viruses, trojan horses, or the like, which may be transmitted to or through the platform, whether or not TBC is advised of the possibility of such damages. Notwithstanding anything herein to the contrary, the maximum cumulative and aggregate liability of TBC for all costs, losses or damages from claims arising under or related in any way to this agreement, whether in contract, tort or otherwise, shall not exceed an amount equal to the total amounts due and payable by TBC to you under this agreement for the month immediately preceding the date upon which such damages accrue. The limitation of liability herein is a fundamental element of the basis of the bargain and reflects a fair allocation of risk. The platform, and any services or information offered through or in association with the platform, would not be provided without such limitations and you agree that the limitations of liability and disclaimers specified herein will survive and apply even if found to have failed of their essential purpose. Because some jurisdictions do not allow the exclusion or limitation of certain categories of damages, in such jurisdictions, you agree that the liability of TBC shall be limited to the fullest extent permitted by such jurisdiction.
No Guarantee of Validity
TBC does not endorse, approve, or certify any information provided on or through the Platform, nor does it guarantee the accuracy, completeness, efficacy, timeliness, or correct sequencing of such information. Information provided on or through the Platform may or may not be current as of the date of your access, and TBC has no duty to update and maintain such information. Additionally, the information provided on or through the Platform may be changed periodically without prior notice. All content provided on or through the Platform is provided "AS IS." Use of such information is voluntary, and reliance on it should only be undertaken after an independent review of its accuracy, completeness, efficacy, and timeliness. If you have a dispute with one or more users, including any users that has purchased items from you as a Buyer or any user from whom you have purchased a Digital Good or Physical Product or Services, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM. YOU UNDERSTAND THAT TBC DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM.
If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor."
TBC MAKES NO WARRANTY, REPRESENTATION OR CONDITION THAT: (1) THE PLATFORM WILL MEET YOUR REQUIREMENTS; (2) YOUR USE OF THE PLATFORM WILL BE UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE; (3) THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE PLATFORM WILL BE ACCURATE OR RELIABLE; OR (4) ANY ERRORS IN THE PLATFORM WILL BE CORRECTED. ANY CONTENT DOWNLOADED FROM OR OTHERWISE OBTAINED THROUGH THE PLATFORM IS ACCESSED AT YOUR OWN RISK, AND YOU SHALL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY OR PERSON, INCLUDING, BUT NOT LIMITED TO, YOUR COMPUTER SYSTEM AND ANY DEVICE YOU USE TO ACCESS THE PLATFORM, OR ANY OTHER LOSS THAT RESULTS FROM ACCESSING SUCH CONTENT.
If a dispute arises between you and TBC, our goal is to provide you with a neutral and cost-effective means of resolving the dispute quickly. Accordingly, you and TBC agree that we will resolve any claim or controversy at law or equity that arises out of this Agreement or our services in accordance with one of the subsections below or as we and you otherwise agree in writing. Before resorting to these alternatives, we strongly encourage you to first contact us directly by email at email@example.com to seek a resolution. We will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
This Agreement shall be governed in all respects by the laws of the State of California as they apply to agreements entered into and to be performed entirely within California between California residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against TBC must be resolved exclusively by a state or federal court located in San Francisco County, California, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within San Francisco County, California for the purpose of litigating all such claims or disputes.
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost-effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution (“ADR”) provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: (i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; (ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction
All claims you bring against TBC must be resolved in accordance with this Legal Disputes Section. All claims filed or brought contrary to the Legal Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Legal Disputes Section, TBC may recover attorneys' fees and costs up to $1,000, provided that TBC has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
Digital Millennium Copyright Act Notice
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible on or through the Platform, please notify TBC’s at firstname.lastname@example.org, as set forth in the Digital Millennium Copyright Act of 1998 (“DMCA”). For your complaint to be valid under the DMCA, you must provide the following information in writing:
The above information must be submitted to the following address:
Only DMCA notices mailed to the address above or emailed to email@example.com will be accepted. All other inquiries or requests will be discarded. Upon receiving a complaint related to copyright infringement, TBC may remove the content identified as being infringing. In addition, TBC may, but is under no obligation to, terminate the Account of the party that appears to be the infringer.
If any provision of these Terms is determined to be unenforceable by a court of competent jurisdiction, that provision will be severed and the remainder of terms will remain in full effect.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
In accordance with Cal. Civ. 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 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
You may not issue or make any publicity release (including press releases and advertising or solicitation materials) or other public statement: (i) relating to this Agreement; (ii) using TBC's name or referencing the Platform; or (iii) suggesting or implying any endorsement by TBC of you and/or any Digital Goods or Physical Products or Services without the prior written approval of TBC, which TBC may withhold in its sole discretion.
You acknowledge and agree that any breach or threatened breach of this Agreement may cause immediate and irreparable harm to TBC which would not be adequately compensated by monetary damages and that TBC may seek injunctive relief, specific performance, and/or other equitable relief as a remedy for any such breach or anticipated breach without the necessity of posting a bond or other security. Notwithstanding any other provision of this Agreement, any such relief may be sought in the state or federal courts of the State of California or any other court of competent jurisdiction anywhere in the world (at TBC's sole discretion), and, you hereby consent to the jurisdiction of any such court and waive any objection to venue laid therein. Any such relief shall be in addition to and not in lieu of any appropriate relief in the way of monetary damages.
Neither you nor TBC shall be responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, boycotts, changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party.
Any notice, request, approval, authorization, consent, demand or other communication required or permitted pursuant to this Agreement shall be in writing and shall be deemed given on the earliest of: (a) actual receipt, irrespective of the method of delivery; (b) the time of transmission from TBC if sent via email, as date stamped by TBC's systems; (c) on the delivery day following dispatch if sent by express mail (or similar next day air courier service); or (d) on the sixth (6th) day after mailing by registered or certified United States mail, return receipt requested, postage prepaid and addressed to the last address provided by a party.
Notices to TBC shall be delivered to:
90 Great Oaks Blvd. Suite 205 A
San Jose, CA 95119
The section headings are for convenience only and shall not control or affect the meaning or construction of any provision of this Agreement. Any graphics or annotations provided in connection with this Agreement are for illustration purposes only and do not constitute part of the Agreement and changing a graphic does not qualify as a change to this Agreement. The list of Prohibited Products and Activities is separately maintained, and modifications thereto will not qualify as a change to this Agreement.