Thank you for using the Hammoq e-commerce cross-listing tool, which is made available by which is developed and made available by Hammoq Inc. (the “Company”) through the Hammoq mobile device application (the “App”) and the Hammoq website (the “Site”, and collectively with the App, the “Platform”),. These Terms of Service (“Agreement”) governs your browsing, viewing and other use of the Platform.
Please read this Agreement carefully, as it (among other things) provides in Section 18that you and the Company will arbitrate certain claims instead of going tocourt and that you will not bring class action claims against the Company. Please only create a Platformaccount or otherwise use the Platform if you agree to be legally bound by allterms and conditions herein. Your acceptance of this Agreement creates alegally binding contract between you and the Company. If you do not agreewith any aspect of this Agreement, then do not create a Platform account orotherwise use the Platform.
If you areviewing this on your mobile device, you can also view this Agreement via a web browser on yourcomputer at https:// hammoq.com/termsofservice
1. How it Works. The Platform allows users to quickly list their items for sale on one or more supported third party e-commerce services such as eBay (each, an “E-Commerce Service”). By uploading just a few pictures of the item and minimum required information, the Platform can automatically generate listing content for the user’s approval and then cause those listings to appear on the E-Commerce Services selected by the user through the user’s own account(s) with those E-Commerce Services. When an item is sold on a particular E-Commerce Service, its listing on any other E-Commerce Services will be removed.
2. E-Commerce Services. 2.1 General. You agree to abide by all terms and conditions applicable to the E-Commerce Services in connection with which you use the Platform. You acknowledge and agree that the Company does not operate or control any of the E-Commerce Services and shall have no liability of any kind to you with respect to any use of any E-Commerce Service you make in connection with your use of the Platform.2.2 Listing Content. The Platform, through the use of our proprietary technology and/or the services of our employees and contractors, will provide suggested listing content for items for which you provide information as well as a suggested sale price. THE COMPANY DOES NOT WARRANT THAT ANY SUCH SUGGESTED LISTING CONTENT IS ACCURATE OR COMPLETE, OR THAT ANY SUGGESTED PRICING REFLECTS THE MARKET VALUE OF YOUR ITEM. You, and the not the Company, are at all times responsible for ensuring that any such suggested listing content is accurate, complete and not misleading, and you hereby represent and warrant that you will not to use the Platform to publish any content on any E-Commerce Service that is inaccurate, incomplete or misleading. You further acknowledge and agree that you are solely responsible for determining the price at which you are willing to sell your items, that you are not required to list your items at the prices suggested by the Company, and that you hereby assume all risk of any use of the Company’s suggested pricing which you may choose to make. 2.3 Media. The Platform allows you to upload photographs and other content for inclusion in listings (“Media”). In connection with your Media, you represent and warrant that you will: (i) not provide any Media that you do not own or that is otherwise subject to any third party intellectual property or proprietary rights; (ii) not provide Media that violates the rights of publicity or privacy rights of any person; (iii) to the extent required under applicable law, have obtained valid written permission from each individual person whose likeness is used in your Media sufficient to grant the Company all of the license rights granted herein and sufficient to publish such Media on the E-Commerce Sites on which you choose to publish your Media; (iv) not provide any Media that that is unlawful, defamatory, libelous, threatening, pornographic, obscene, harassing, hateful, racially or ethnically offensive or encourages conduct that would be considered a criminal offense, violate any law or is otherwise inappropriate. You agree you are responsible for all of your Media and all activities that occur under your Platform user account.2.4 License. You hereby grant the Company a perpetual, worldwide, non-exclusive, fully paid-up, royalty-free, irrevocable, license to reproduce, display, transmit and otherwise use your Media in any manner that is necessary or desirable to provide the features and functionality of the Platform and otherwise for the Company’s internal business purposes (e.g., use for developing or testing our products and services). 2.5 Restricted Activities. You agree not to use the Platform in relation to any activities associated with or in connection to: (i) any violation of any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising); (ii) illegal or fraudulent goods or services, including, but not limited to, counterfeit goods, stolen goods, illegal or controlled substances, and substances that pose a risk to consumer safety, illegal online gambling / wagering, escort services, prostitution, pyramid schemes, unlicensed sale of firearms and certain weapons or any type of money laundering; or (iii) any activity that we deem, in our sole discretion, may be associated with a high level of risk, may create liability for us or may cause us to lose the services of any of our third party service providers. In addition, you agree not to use the Platform in connection with any E-Commerce Platform accounts other than your own. 2.6 Taxes. You are solely responsible determining any tax obligations you may have with respect to all transactions you may engage in on the E-Commerce Services.
3. Payments. Your ability to use the Platform is contingent upon your timely payment of all applicable fees, as displayed to you within the Platform user interface. By providing your payment information, you agree to pay us (and authorize our third party payment processor to charge you) all fees you incur in connection with your use of the Platform. You represent and warrant that you have all necessary rights relating to the payment instrument you provide to authorize us to make such charges. Your use of the Platform may be suspended if we are unable to charge such payment instrument for any reason or if your account is otherwise past due. The fees applicable to your use of the Platform are subject to modification from time to time. If there is any credit on your account at the time you cancel your Platform account, such credit shall be refunded to you; all fees are otherwise non-refundable. All fees must be paid in U.S. dollars (or such other currency(ies) which may be accepted by us from time to time, as indicated at the time of payment). Fees displayed to you are exclusive of any taxes that may be due in connection with such fees, and you agree to pay any such taxes that may be due, other than taxes based on the Company’s net income. You also agree to pay the Company any costs and expenses incurred by the Company, including reasonable attorneys fees, in recovering any fees due hereunder.
4. Representations and Warranties. You represent, warrant and covenant that, in connection with this Agreement and the Platform, you will not and will not attempt to: (i) violate any laws, third party rights or our applicable policies; (ii) re-join or attempt to use the Platform if the Company has banned or suspended you; (iii) defraud the Company or any other person or entity; or (v) use another user’s account or allow another person to use your user account. Any illegal activities undertaken in connection with the Platform may be referred to the authorities.
5. License to Use the App. If you have downloaded the App, then, subject to your compliance with all the terms and conditions of this Agreement, the Company grants you a limited, nonexclusive, nontransferable, revocable license to use the App on a compatible mobile device for your personal use, in each case in the manner enabled by the Company. If you are using the App on an Apple, Inc. (“Apple”) iOS device, the foregoing license is further limited to use permitted by the Usage Rules set forth in Apple’s Media Services Terms and Conditions.
6. Ownership; Proprietary Rights. As between you and the Company, the Company owns all worldwide right, title and interest, including all intellectual property and other proprietary rights, in and to the Platform and all usage and other data generated or collected in connection with the use thereof (the “Company Materials”). Except for as expressly set forth herein, you agree not to license, distribute, copy, modify, publicly perform or display, transmit, publish, edit, adapt, create derivative works from, or otherwise make any unauthorized use of the Company Materials. You agree not to reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, algorithm or programs underlying the Company Materials. The Company reserves the right to modify or discontinue the Platform or any version(s) thereof at any time in its sole discretion, with or without notice.
7. Third Party Sites. The Platform may include advertisements or other links that allow you to access web sites or other online services that are owned and operated by third parties. You acknowledge and agree that the Company is not responsible and shall have no liability for the content of such third party sites and services, products or services made available through them, or your use of or interaction with them.
8. Mobile Services. Use of the App requires usage of data services provided by your wireless service carrier. You acknowledge and agree that you are solely responsible for data usage fees and any other fees that your wireless service carrier may charge in connection with your use of the App.
9. Prohibited Uses. As a condition of your use of the Platform, you will not use the Platform for any purpose that is unlawful or prohibited by this Agreement. You may not use the Platform in any manner that in our sole discretion could damage, disable, overburden, impair or interfere with any other party’s use of it. You may not obtain or attempt to obtain any materials or information through any means not intentionally made available through the Platform. You agree not to scrape or otherwise use automated means to access or gather information from the Platform, and agree not to bypass any robot exclusion measures we may put into place. In addition, you agree not to use false or misleading information in connection with your user account, and acknowledge that we reserve the right to disable any user account with a profile which we believe (in our sole discretion) is false or misleading (including a profile that impersonates a third party).
10. Additional Terms. When you use certain features or materials on the Platform, or participate in a particular promotion, event or contest through the Platform, such use or participation may be subject to additional terms and conditions posted on the Platform. Such additional terms and conditions are hereby incorporated within this Agreement, and you agree to comply with such additional terms and conditions with respect to such use or participation.
11. Termination. You may terminate this Agreement at any time, for any reason or for no reason, by deleting your Platform account by contacting us. Note that deleting the App from your device will not terminate your Platform account. You agree that the Company, in its sole discretion and for any or no reason, may terminate this Agreement, your account or your use of the Platform, at any time and without notice. The Company may also in its sole discretion and at any time discontinue providing the Platform, or any part thereof, with or without notice. You agree that the Company shall not be liable to you or any third-party for any such termination. Sections 2, 3, 4, and 6 through 17 (inclusive) will survive any termination of this Agreement.
12. Apple. You hereby acknowledge and agree that Apple, Inc.: (i) is not a party to this Agreement; (ii) has no obligation whatsoever to furnish any maintenance or support services with respect to the Platform; (iii) is not responsible for addressing claims by you or any third party relating to the Platform, including any product liability claims, claims under consumer protection laws or claims under any other law, rule or regulation; (iv) has no responsibility to investigate, defend, settle or discharge any claim that the Platform or use thereof infringes any third party intellectual property rights; and (v) is a third party beneficiary of this Agreement with the right to enforce its terms against you directly.13. Disclaimers; No Warranties. THE PLATFORM AND ANY CHANNELS, MEDIA, INFORMATION OR OTHER MATERIALS MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE PLATFORM ARE PROVIDED “AS IS” AND WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESS OR IMPLIED. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS. THE COMPANY AND ITS LICENSORS, SERVICE PROVIDERS AND PARTNERS DO NOT WARRANT THAT THE FEATURES AND FUNCTIONALITY OF THE PLATFORM WILL BE UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE PLATFORM OR THE SERVERS THAT MAKE AVAILABLE THE FEATURES AND FUNCTIONALITY THEREOF ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE FOREGOING DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
14. Indemnification. You agree to indemnify and hold the Company and its affiliated companies, and each of their officers, directors, employees, contractors, attorneys and agents, harmless from any claims, losses, damages, liabilities, costs and expenses, including reasonable attorney’s fees (any of the foregoing, a “Claim”), arising out of or relating to your use or misuse of the Platform, your listing of any items on any E-Commerce Services, any transactions you enter into in connection with any E-Commerce Services, your breach of this Agreement or infringement, misappropriation or violation of the intellectual property or other rights of any other person or entity, provided that the foregoing does not obligate you to the extent the Claim arises out of the Company’s willful misconduct or gross negligence. The Company reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify us and you agree to cooperate with our defense of these claims.
15. Limitation of Liability and Damages. UNDER NO CIRCUMSTANCES, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, SHALL THE COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU FOR ANY SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES THAT ARISE OUT OF OR RELATE TO THE PLATFORM, INCLUDING YOUR USE THEREOF, OR ANY OTHER INTERACTIONS WITH THE COMPANY, EVEN IF THE COMPANY OR A COMPANY REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. APPLICABLE LAW MAY NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY OR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU, IN WHICH CASE THE COMPANY’S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. IN NO EVENT SHALL THE TOTAL LIABILITY OF COMPANY OR ITS AFFILIATES, CONTRACTORS, EMPLOYEES, OFFICERS, DIRECTORS, AGENTS, OR THIRD PARTY PARTNERS, LICENSORS OR SERVICE PROVIDERS TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION ARISING OUT OF OR RELATING TO THIS AGREEMENT OR YOUR USE OF THE PLATFORM EXCEED THE AMOUNTS PAID BY YOU TO THE COMPANY DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM.16. Arbitration.16.1 Agreement to Arbitrate.
This Section 16 is referred to herein as the “Arbitration Agreement.” The parties that any and all controversies, claims, or disputes between you and Company arising out of, relating to, or resulting from this Agreement or the Platform, shall be subject to binding arbitration pursuant to the terms and conditions of this Arbitration Agreement, and not any court action (other than a small claims court action to the extent the claim qualifies). The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.16.2 Class Action Waiver. THE PARTIES AGREE THAT EACH PARTY MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH PARTIES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).16.3 Procedures. Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures (the “AAA Rules”), as modified by this Arbitration Agreement. If there is any inconsistency between the AAA Rules and this Arbitration Agreement, the terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of this Agreement as a court would, including without limitation, the limitation of liability provisions in Section 15. You may visit http://www.adr.org for information on the AAA and http://www.adr.org/fileacase for information on how to file a claim against the Company.16.4 Venue. The arbitration shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on each party, but subject to the arbitrator’s discretion to require an in-person hearing if the circumstances warrant. Attendance at any in-person hearing may be made by telephone by either or both parties unless the arbitrator requires otherwise.16.5 Governing Law. The arbitrator will decide the substance of all claims in accordance with the laws of the state of California, without regard to its conflicts of laws rules, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different Platform users, but is bound by rulings in prior arbitrations involving you to the extent required by applicable law.16.6 Costs of Arbitration. Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees“) will be governed by the AAA’s Rules. Each party will be responsible for all other fees it incurs in connection with the arbitration, including without limitation, all attorney fees.16.7 Confidentiality. All aspects of the arbitration proceeding, and any ruling, decision or award by the arbitrator, will be strictly confidential for the benefit of all parties.16.8 Severability. If a court decides that any term or provision of this Arbitration Agreement other than Section 16.2 is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court decides that any of the provisions of Section 16.2 is invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of this Agreement will continue to apply.
17. Miscellaneous. The Company may make modifications, deletions and/or additions to this Agreement (“Changes”) at any time. Changes will be effective: (i) thirty (30) days after the Company provides notice of the Changes, whether such notice is provided through the Platform user interface, is sent to the e-mail address associated with your account or otherwise; or (ii) when you opt-in or otherwise expressly agree to the Changes or a version of this Agreement incorporating the Changes, whichever comes first. Under this Agreement, you consent to receive communications from the Company electronically. This Agreement shall be governed by and construed in accordance with the laws of the State of California, without giving effect to any principles of conflicts of law. You agree that any action at law or in equity arising out of or relating to this Agreement or the Platform that is not subject to arbitration under Section 16 shall be filed only in the state or federal courts in California (or a small claims court of competent jurisdiction) and you hereby consent and submit to the personal jurisdiction of such courts for the purposes of litigating any such action. The failure of any party at any time to require performance of any provision of this Agreement shall in no manner affect such party’s right at a later time to enforce the same. A waiver of any breach of any provision of this Agreement shall not be construed as a continuing waiver of other breaches of the same or other provisions of this Agreement. If any provision of this Agreement shall be unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from this Agreement and shall not affect the validity and enforceability of any remaining provisions. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by the Company without restriction. This is the entire agreement between us relating to the subject matter herein and shall not be modified except in a writing, signed by both parties, or by a change to this Agreement made by the Company as set forth herein.
18. More Information; Complaints. The services hereunder are offered by Hammoq Inc., located 2034 N 39TH Pl,Phoenix, AZ 85008, email: email@example.com, telephone: 6232712874. If you are a California resident, note that you may reach the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs via mail at 1625 North Market Blvd., Suite N112, Sacramento, CA 95834 or telephone at (800) 952-5210. Hearing impaired users can call (800) 735-2929 (TTY) or (800) 735-2922 (Voice).