Terms of service
Last updated, NOV 1, 2016
BY SIGNING THIS Seller’s AGREEMENT (AGREEMENT), REGISTERING FOR OR USING OUR SERVICE(S) THAT ALLOWS YOU TO LIST PRODUCTS/SERVICES FOR SALE ON THE WEBSITE INS.TO OR THE INSTO APP, YOU (ON BEHALF OF YOURSELF OR THE BUSINESS YOU REPRESENT) AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT.
As used in this Agreement, "we," and "us," means Capsule Innovations, LLC., and "you" means the applicant (if registering as an individual), or the business represented by the applicant (if registering as a business). The definition of the Capitalized terms are listed below.
As used in this Agreement, the following terms have the following meanings:
2. Registration Data and Account Security
As part of the application, you must provide us with your, or your business', legal name, address, phone number and e-mail address. In consideration of your use of our site and/or our services, you agree to: (a) provide accurate, current and complete information about you as may be prompted by any registration forms on our site/APP ( here after "Registration Data"); (b) maintain and promptly update the Registration Data, and any other information you provide to us, to keep it accurate, current and complete; (c) maintain the security of your password and identification; (d) notify us immediately of any unauthorized use of your account or other security issues; (e) take full responsibility for any and all activities that occur under your account; and (f) accept all risks of unauthorized access to the Registration Data and any other information you provide to us. We may at any time cease providing the services at our sole discretion and without notice.
3. Stripe Connected
Payment processing services for the account holders on our website are provided by Stripe and are subject to the Stripe Connected Account Agreement, which includes the Stripe Terms of Service(collectively, the “Stripe Services Agreement”). By agreeing to this Agreement or continue using our service, you agree to be bound by the Stripe Services Agreement, as the same may be modified by Stripe from time to time. As a condition of us enabling payment processing services through Stripe, you agree to provide us accurate and complete information about you and your business, and you authorize us to share it and transaction information related to your use of the payment processing services provided by Stripe.
4. Your Product/Service Listings and Orders
5. Sale and Fulfillment
You will: (a) retrieve Order Information at least once each business day; (b) not cancel any of the Transactions except as may be permitted pursuant to your own terms and conditions (which terms and conditions will be in accordance with this Agreement) or as may be required under this Agreement; and (c) provide to us information regarding shipment and order status and tracking (to the extent available), in each case as requested by us using the processes designated by us, and we may make any of this information publicly available.
6. Returns and Refunds
7. Delivery Errors and Nonconformities; Recalls
You are responsible for any non-delivery, misdelivery, theft or other mistake or act in connection with the fulfillment and delivery of your Products. You are also responsible for any non-conformity or defect in, or any public or private recall of, any of your Products. You shall notify the buyer and us promptly as soon as you have knowledge of any public or private recalls of your Products.
In consideration for the use of our site/APP’s service and platform, you will pay us the applicable Service Fees during the term of this Agreement. "Service Fee" means the applicable percentage of the Sales Proceeds from the Transaction through our site/APP. The Service Fees are listed on the Product Page. We may change any of the Service Fees from time to time, and the changes will take effect 14 days after our first posting the changes; provided however that, changes on Service Fees will take effect immediately for temporary promotions or other events with similar nature. Except as provided otherwise, Service Fees are non-refundable.
9. Remittance of Sales Proceeds & Refunds
10. Control of Site/APP
Notwithstanding any provision of this Agreement, we will have the right to determine the content, appearance, design, functionality and all other aspects of our site/APP (including, but not limited to the right to re-design, modify, remove and alter the content, appearance, design, functionality, and other aspects of, and prevent or restrict access to, our site/APP and any element, aspect, portion or feature thereof, from time to time) and to delay or suspend listing of, or to refuse to list, or to de-list, or to require you not to list, any or all Products/Services in our sole discretion.
11. Verification of Your Information
12. ID Verification
As a security measure to avoid the risk of fraud, you hereby knowing and authorized us to verify your ID, using the service provided from our ID verification service provider to assess the risk associated with you. The information received by us from our ID verification service provider will be used solely for the purpose of risk assessment and will not be disclosed to the sellers or any other third parties unless request by courts or other governmental or legal authorities.
13. Private Guarantee
You grant us a royalty-free, non-exclusive, worldwide, perpetual, irrevocable right and license to use, reproduce, perform, display, distribute, adapt, modify, re-format, create derivative works of, and otherwise commercially or non-commercially exploit in any manner, any and all of your Materials; provided, however, that we will not alter any of your Trademarks from the form provided by you (except to re-size trademarks to the extent necessary for presentation, so long as the relative proportions of such trademarks remain the same) and will comply with your removal requests as to specific uses of your Trademarks (provided you are unable to do so using standard functionality made available to you via our site); provided further, however, that nothing in this Agreement will prevent or impair our right to use your Materials without your consent to the extent that such use is allowable without a license from you or your affiliates under applicable law (e.g., fair use under United States copyright law, referential use under trademark law, or valid license from a third party).
You represent and warrant to us that: (a) if you are a business, you are duly organized, validly existing and in good standing under the Laws of the country in which your business is registered and that you are registering for the service(s) within such country; (b) you have all requisite right, power and authority to enter into this Agreement and perform your obligations and grant the rights, licenses and authorizations you grant hereunder; and (c) you and all of your subcontractors, agents and suppliers will comply with all applicable Laws in your performance of your obligations and exercise of your rights under this Agreement.
16.Prohibited Business or Activity
18.Disclaimer & General Release
WE WILL NOT BE LIABLE (WHETHER IN CONTRACT, WARRANTY, TORT (INCLUDING, BUT NOT LIMITED TO NEGLIGENCE, PRODUCT LIABILITY OR OTHER THEORY) OR OTHERWISE) TO YOU OR ANY OTHER PERSON FOR COST OF COVER, RECOVERY OR RECOUPMENT OF ANY INVESTMENT MADE BY YOU OR YOUR AFFILIATES IN CONNECTION WITH THIS AGREEMENT, OR FOR ANY LOSS OF PROFIT, REVENUE, BUSINESS, OR DATA OR PUNITIVE OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR RELATING TO THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES. IN NO EVENT SHALL WE OR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, LICENSORS OR AGENTS BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES WHATSOEVER (INCLUDING, BUT NOT LIMITED TO DAMAGES FOR LOSS OF PROFITS, INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR ANY OTHER PECUNIARY LOSS) IN CONNECTION WITH ANY CLAIM, LOSS, DAMAGE, ACTION, SUIT OR OTHER PROCEEDING ARISING UNDER OR OUT OF THIS SERVICE AGREEMENT, INCLUDING, BUT NOT LIMITED TO YOUR USE OF, RELIANCE UPON, ACCESS TO, OR EXPLOITATION OF THE SITE, THE CONTENT OR ANY PART THEREOF, OR ANY RIGHTS GRANTED TO YOU HEREUNDER, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER THE ACTION IS BASED ON CONTRACT, TORT, INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OR OTHERWISE. FURTHER, OUR AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED WILL NOT, AT ANY TIME, EXCEED THE TOTAL AMOUNTS DURING THE PRIOR SIX MONTH PERIOD PAID BY YOU TO US IN CONNECTION WITH THE PARTICULAR SERVICE GIVING RISE TO THE CLAIM. SOME JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU. IN SUCH JURISDICTIONS, THE LIABILITY OF WE OR ANY OF OUR DIRECTORS, OFFICERS, EMPLOYEES, SHAREHOLDERS, PARTNERS, OR AGENTS SHALL BE LIMITED TO THE GREATEST EXTENT PERMITTED BY THE LAW OF SUCH JURISDICTIONS.
As between the parties, we are not responsible for any withholding tax. You are solely responsible for the collection and payment of any and all of Your Taxes, except to the extent we expressly agree to collect taxes or other transaction-based charges in connection with a collection service made available by us and used by you. All fees payable by you to us under this Agreement are exclusive of any applicable taxes, and you will be responsible for paying us any of Your Taxes imposed on such fees.
22. Force Majeure
We will not be liable for any failure or delay in the performance of any obligation imposed upon it hereunder nor shall such failure or delay be deemed to be a breach of this Agreement if such failure or delay is due to circumstances of any nature whatsoever which are not within our control and are not preventable by reasonable diligence on our part, such as:
23. Relationship of Parties
24. Agent of Payee
25. Suggestions and Other Information
If you or any of your affiliates elect to provide or make available suggestions, comments, ideas, improvements, or other feedback or materials to us in connection with or related to our site or services (including any related Technology), we will be free to use, disclose, reproduce, modify, license, transfer and otherwise distribute, and exploit any of the foregoing information or materials in any manner. In order to cooperate with governmental requests, to protect our systems and customers, or to ensure the integrity and operation of our business and systems, we may access and disclose any information we consider necessary or appropriate, including, but not limited to user contact details, IP addresses and traffic information, usage history and posted content.
We may amend any of the terms and conditions contained in this Agreement at any time and at our sole discretion. Any change will be effective upon the posting of such change on our site, and you are responsible for reviewing these locations and informing yourself of all applicable changes or notices. All notice of changes to the Agreement will be posted for at least 30 days. You should refer regularly to understand the current Agreement. YOUR CONTINUED USE OF OUR SERVICE AFTER OUR POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THIS AGREEMENT, YOU MUST TERMINATE THIS AGREEMENT AS PROVIDED ABOVE.
27. Password Security
Any password we provide to you may be used only during the Term to access our site or other tools we provide and to use our services, electronically accept Your Transactions, and review your completed transactions. You are solely responsible for maintaining the security of your password. You are solely responsible for any use of or action taken under your password. If your password is compromised, you must immediately change your password.
28. Governing Law
The governing law of this Agreement will be the law of the State of California, United States together with the Federal Arbitration Act and other applicable federal law, without reference to rules governing choice of laws or the Convention on Contracts for the International Sale of Goods.
29. Alternative Dispute Resolution
Any dispute with us or our affiliates or claim relating in any way to this Agreement or your use of the services shall be resolved by a binding arbitration as described in this paragraph, rather than in court, except that you may assert claims in a small claims court that is a Governing Court if your claims qualify and you or we may bring suit in the Governing Courts to enjoin infringement or other misuse of intellectual property rights. There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of this Agreement as a court would. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, we will not seek attorneys’ fees and costs from you in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location. We each agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial.
31.Term and Termination
The term of this Agreement will effect on the date of your complete registration for the service(s) and continue until terminated by us or you as provided below (the "Term"). We may terminate or suspend this Agreement or any service immediately by notice to you for any reason at any time. You may terminate this Agreement or any service for any reason at any time by the means then specified by us therefor. Termination or suspension of a service will not terminate or suspend any other service unless explicitly provided. Upon termination, all rights and obligations of the parties under this Agreement will terminate, except that Sections 1, 3, 4, 5, 6, 7, 8, 9, 10, 11, 13, 14, 15, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30 and 31 will survive termination.