Terms and Agreements
TERMS OF USE AGREEMENT FOR FIDIDEL SERVICES
Welcome to the Fididel website (the “Website”), home to the Fididel real time negotiation platform (the “Platform”).
In connection with the Website, Fididel, Inc. (“Fididel”, “us”, or “we”) provides the Platform, which provides a venue in which you can negotiate your own purchases and sales of goods. The “Services” consist of the Platform, the Website, the Fidideler Services, and any other features, content, or, applications that we may offer from time to time in connection with the Platform or the Website.
This Terms of Use Agreement (“Agreement”), which includes the Fididel privacy policy that may be found at Privacy Policy and that is hereby incorporated by reference into the Agreement, sets forth the legally binding terms for your use of the Services. By accessing and using the Services, you agree to comply with and be bound by the Agreement. If you are an individual using the Services on behalf of a company, you represent and warrant that you have all necessary authority to bind your company to the terms and conditions of the Agreement.
If you sign up for additional features and services, those features and services may be governed by additional terms and conditions, in which case we will inform you of those terms and conditions when you sign up. Unless otherwise provided by the additional terms and conditions, they are hereby incorporated by reference into the Agreement.
PLEASE READ THE AGREEMENT CAREFULLY BEFORE USING ANY OF THE SERVICES. THIS AGREEMENT IS A LEGALLY BINDING AGREEMENT BETWEEN YOU (THE INDIVIDUAL USING THE SERVICES, OR THE COMPANY ON WHOSE BEHALF YOU ARE USING THE SERVICES, IF ANY) AND FIDIDEL.
1. YOUR FIDIDEL ACCOUNT
In order to use the Platform, you must become a registered user (“User”) by registering on the Website for a Fididel account (an “Account”).
1.1 Eligibility. By using the Services, you represent and warrant that: (a) all registration information you submit is truthful and
accurate; (b) you will update such information to maintain its accuracy at all times; (c) you are of sufficient legal age in your jurisdiction to create binding legal obligations; and (d) your use of the Services does not and will not violate any applicable law or regulation, or any other obligation (including contractual obligations) that you may have to third parties. Your Account may be deleted without warning if we believe that any of these representations and warranties has been breached or is inaccurate. 1.2 Password. When you sign up to become a User, you will also be asked to choose a password for your Account. You are
entirely responsible for maintaining the confidentiality of your password. You agree not to share your password with others, or to use the Account or password of another User at any time. You agree to notify us immediately if you suspect any unauthorized use of your Account or access to your password. Notwithstanding anything herein to the contrary, you acknowledge and agree that you are responsible for any and all use of your Account (including any transactions conducted through your Account).1.3 Platform Payments and Fees. Buyers are required to pay Sellers the amount agreed upon using the Fididel negotiation
platform. The money is due at the moment the “I Agree Button” is clicked. Consequently the seller is responsible for collecting the money from the Buyer that is due as a result of the transaction. The Seller is also obligated to pay Fididel for its transaction fees. In consideration of our performance of the Services, you agree to pay us the applicable fees set forth on the then-current fee schedule that is available at Customerservices@fididel.com (the “Platform Fees”). We reserve the right to change such Platform Fees from time to time in our discretion and any changes to the Platform Fees will become effective thirty (30) days after being posted in the seller information section of the “My Fididel” webpage tab. You will pay all applicable Platform Fees for transactions made through your Account when due. By providing Fididel with your PayPal account information or credit card number, you agree that Fididel is authorized to immediately charge your PayPal account or credit card account for all Platform Fees when due. If you dispute any Platform Fees charged to you, you must notify us in writing within seven (7) days after receiving your PayPal or credit card statement listing such Platform Fees, or such dispute will be deemed waived. If we do not receive payment from PayPal or your credit card issuer or its agent, you agree to pay all amounts due upon demand by Fididel or its agents. Fididel is not responsible for any expenses or charges (for example for overdrawn accounts or exceeding credit card limits) resulting from the Platform Fees billed by Fididel. Fididel may, in its sole discretion, suspend or cancel your Account, and/or refuse to provide you with access to and/or use of the Services if you fail to pay Platform Fees when due. Fididel may bill an additional charge to reinstate a suspended Account. You agree to immediately notify Fididel of any change in your billing address, or to the PayPal account or credit card used for payment hereunder.
1.4 Term and Termination. This Agreement shall remain in full force and effect while you are using the Services as a User. You
may delete your Account and end your membership with the Platform at any time, for any or no reason by selecting the appropriate option in the settings of your Account. We may terminate your membership for any or no reason at any time by ceasing to provide the Services to you. You understand that termination of the Agreement and the Account you have created with us may involve deletion of your Account information from our databases. We will not have any liability whatsoever to you for any termination of your Account or for the related deletion of your information. 2. BUYING AND SELLING THROUGH THE PLATFORM
2.1 Fididel not a Party. The Platform is only a venue for Users to come together and to negotiate their own purchases and sales
of goods (“Items”) between themselves. Fididel is not a party to any transaction negotiated or executed between Users regardless of the involvement of a Fidideler (as defined in Section 3.1). Furthermore, Fididel has no control over any transaction or any Item (including its legality, quality, and safety). You are solely responsible for (a) all Items offered, negotiated for, sold, bought, or otherwise dealt with through your Account or through the Services; and (b) all of your interactions with other Users. You acknowledge and agree that Fididel is not responsible or liable in any way in connection with any Item you may sell or purchase (or offer to sell or purchase) via the Platform. Users who offer Items for sale are referred to as “Sellers,” and Users who offer to purchase Items are referred to as “Buyers.”2.2 Prohibited Items. You agree that you will not (whether on your own behalf or through any Fidideler) sell or buy, offer to sell
or buy, or otherwise deal in or with Prohibited Items described in this Section 2.2, or that you learn of being Prohibited Items from the Services. A “Prohibited Item” is any Item that Fididel deems in its sole discretion is unfit to be sold or purchased (or offered for sale or purchase) through the Services. Without limiting the foregoing, “Prohibited Items” include any Items that (i) are illegal to sell or buy, offer to sell or buy, or are otherwise prohibited or restricted under any applicable law or regulation, including any international, federal, or state laws and regulations; (ii) may only be sold or bought by, or offered for sale or purchase by or to, a restricted group of people; (iii) may only be sold, or offered for sale, by an authorized person or entity if the Seller is not such an authorized person or entity; (iv) are not legally owned by the Seller and for which the Seller does not have a valid authorization of the legal owner to offer for sale or sell; (v) are stolen or were used in any crime or in preparation for a crime; (vi) are sold, or offered for sale, in violation of any applicable import or export law or regulation; (vii) are considered “adult” or “offensive” items or materials or are otherwise not allowed to be sold, or offered for sale, to minors; (viii) encourage or enable illegal activities; (ix) are considered “alive” or “living”, with the exception of plants; or (x) are known by the Seller to have one or more defects, if each such defect is not clearly and completely described in the Item description. Fididel reserves the right to immediately end any offering of Prohibited Items through the Services, any negotiation for the sale of Prohibited Items through the Services, and any transactions involving Prohibited Items conduct using the Services, without any prior notice to the Seller or Buyer. You acknowledge and agree that the sale or purchase, or the offer to sell or purchase, of Items that you know, or could reasonably know, are Prohibited Items under the Agreement, constitute a material breach of the Agreement.2.3 Description of Items. You agree that it is Seller’s sole responsibility to provide accurate and correct description of Items that
are offered through the Platform and to correct any inaccuracies or errors in such descriptions during the entire time an Item is offered through the Platform.2.4 Inventory of Items. You agree that the Seller is solely responsible for the inventory of Items and for verifying the correct
amount, accuracy of Items that are offered by the Seller before and during Items are offered through the Platform. Fididel at its sole discretion may from time to time use third parties to assist in preparing a seller’s inventory for loading into Fididel’s data base. Seller Items that are missing any required information (including pictures, shipping, etc) will not be allowed onto the Fididel site. 2.5 Selling Items. You agree that the Seller is solely responsible for delivering Items to the Buyer of such Item upon (a)
acceptance of the transaction by the Buyer and the Seller (or a Fidideler acting for the Seller), and (b) payment of the Item Price for such item by the Buyer.2.6 Item Price. You agree that the Seller is solely responsible for setting the guidelines (including pricing guidelines) for the
negotiations of an Item (“Negotiation Guidelines”), including a minimum price for an Item designated by the Seller (“Minimum Price”). Buyer shall pay any consideration for each Item that Buyer purchases from a Seller (and Seller shall receive any consideration for each Item that Seller sells to a Buyer) (in either case, the “Item Price”) directly to the Seller or Buyer, respectively. While Fididel provides a platform to Users to negotiate transactions for the sale of Items, Fididel is not a party to any such transaction and does not receive or process all or any part of any Item Price. Any payments that you may make to any person other than Fididel will not relieve you of your obligations to pay Platform Fees to Fididel. Any fees incurred (including Platform Fees) for transactions that cannot be consummated, or that are canceled or reversed due to Seller’s failure to comply with Seller’s obligations set forth in this Section 2 are, or remain to be, due and payable to Fididel.2.7 Ownership of Items. Fididel does not receive or transfer legal ownership of any Item that is sold or bought through the
Services, and the Agreement shall not modify the governing provisions of California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the Buyer by the Seller. Unless Seller and Buyer expressly agree otherwise, the Buyer will become the lawful owner of an Item bought by the Buyer upon physical receipt of such Item from the Seller, in accordance with California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2).3. FIDIDELERS
3.1 Role of Fididelers. As part of the Services, the Platform offers Sellers the opportunity to use third-party negotiators
(“Fididelers”) for negotiations through the Platform. A Seller will engage Fididelers to perform negotiations for such Seller (“Fidideler Services”) in accordance with the Negotiation Guidelines, including the Minimum Price. For the convenience of Users and subject to the availability of a Fidideler, the Platform may randomly assign an available Fidideler to a negotiation, if the Seller does not respond to a negotiation request of a Buyer within fifteen (15) seconds. Seller and Buyer acknowledge and agree that (a) there may not always be Fididelers available for negotiations, in which case negotiation requests by Buyers will not be answered, and the respective Item will not be negotiated and sold, unless Seller itself responds to the negotiation request within fifteen (15) seconds; and (b) Fididelers may be physically located in any country of the world. FIDIDELERS WILL PERFORM THE FIDIDELER SERVICES AS PART OF THE SERVICES FOR, IN THE NAME OF, AND FOR THE ACCOUNT OF, THE SELLER THAT USES THE FIDIDELER SERVICES AND SELLER EXPRESSLY AUTHORIZES SUCH FIDIDELER TO NEGOTIATE AND CONCLUDE THE SALE OF ITEMS, AND TO ENTER INTO BINDING AGREEMENTS WITH A BUYER FOR, IN THE NAME OF, AND FOR THE ACCOUNT OF THE SELLER FOR THE SALE OF THE RESPECTIVE ITEMS TO THE BUYER UNDER THE CONDITIONS NEGOTIATED BY THE FIDIDELER. Both the Sellers and the Buyers acknowledge and agree that Fididelers are paid based on the price that Fididelers negotiate for an Item.3.2 Fididelers and Buyers. BUYERS ACKNOWLEDGE AND AGREE THAT THEY MAY NEGOTIATE WITH A FIDIDELER, ACTING FOR,
IN THE NAME OF, AND FOR THE ACCOUNT OF THE SELLER, AND NOT WITH THE SELLER DIRECTLY.3.3 Disclaimer. Under no circumstances shall Fididel be responsible for any negligence of a Fidideler in connection with his or her
performance of the Fidideler Services. Fididel does not warrant or represent (a) that the use of the Fidideler Services will result in the sale of any Item, or (b) that the use of the Fidideler Service will result in a specific Item Price for the sale of an Item, provided that the Item Price shall not be lower than the Minimum Price set by the Seller. YOU ACKNOWLEDGE AND AGREE THAT FIDIDEL HAS NO FIDUCIARY DUTIES OR LIABILITIES TO SELLER OR BUYER IN CONNECTION WITH THE SERVICES HEREUNDER.4. IP OWNERSHIP; USE OF SERVICES
4.1 Services - Ownership and Restrictions. You acknowledge that all the intellectual property rights in the Services (excluding
any User Content, as defined in Section 5.1) are owned by Fididel, or Fididel’s licensors. You agree not to (a) reproduce, modify, publish, transmit, distribute, publicly perform or display, sell, or create derivative works based on the Services or (b) rent, lease, loan, or sell access to the Services.4.2 Fididel Platform Content. The Services contain content provided by us and our licensors (“Fididel Platform Content”).
As between you and us, we and our licensors (which may include other Users) own and retain all proprietary rights in the Fididel Platform Content. Subject to the terms and conditions of the Agreement, we hereby grant you a limited, revocable, non-sublicensable license under the intellectual property rights licensable by us to download, view, copy and print Fididel Platform Content from the Services solely for your personal use in connection with using the Services.5. THIRD PARTIES AND OTHER USERS
5.1 Your License Grant. We do not claim ownership in any Item description, Seller feedback, communication, or other text,
pictures, or other content (“Content”) uploaded, provided, made available, or otherwise transferred (“posted”) by Users (“User Content”). To be able to legally provide our Users with the Services, we must have certain rights to use such User Content in connection with the Services, as set forth below. In return, we also grant you certain use rights as set forth in Section 4.2 to the Content that we own and the User Content that is provided by other Users for the use of other Users. Therefore, by posting any Content on the Services, you hereby grant to us an unrestricted, irrevocable, perpetual, non-exclusive, fully-paid and royalty-free license (with the right to sublicense through unlimited levels of sublicensees) to use, copy, perform, display, create derivative works of, and distribute such Content in any and all media (now known or later developed) throughout the world. No compensation will be paid with respect to the Content that you submit, upload, post, transmit or otherwise make available through the Services. You should only post Content to the Services that you are comfortable sharing with others under the terms and conditions set forth herein.5.2 Third Party Content. Content from other Users, advertisers, and other third parties is made available to you through the
Services (including advertising and information about third-party products or services). Because we do not control such Content, you agree that we (a) are not responsible for any such Content; and (b) make no representations or guarantees about the accuracy, currency, suitability, or quality of such Content. Without limiting the foregoing, we assume no responsibility for objectionable, inaccurate, misleading, or unlawful Content made available by other Users, advertisers, or third parties. 5.3 Responsibility. Your interactions with other Users using the Services or with advertisers (including those relating to payment
and delivery of goods) and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third parties. You agree that we are not responsible for any loss or damage incurred as the result of any such dealings or with respect to any other User’s use or disclosure of information about you that you have posted. If there is a dispute between you and any other User or third party, we are under no obligation to become involved; however, we reserve the right, but have no obligation, to monitor disputes between you and other Users.5.4 Fididel Member Interaction. You will not use any information obtained from the Services in order to harass, abuse, or harm
another person, or in order to contact, advertise to, solicit, or sell to any User without their prior explicit consent. In order to protect our Users from such advertising or solicitation, we reserve the right to restrict the number of communications which a User may send to other Users and the sharing of any Content in any twenty-four (24) hour period to a number and amount which we deem appropriate in our sole discretion.5.5 Fididel Rating System. Any rating of a transaction with another User that you post to the Services is subject to the terms
and conditions of the Agreement, including Section 6. Any misuse or abuse of the Fididel rating system, or any attempt to misuse or abuse the rating system, constitutes a material breach of the Agreement. Fididel reserves the right to suspend Users from using the Services, or to terminate the Account of Users, who have accumulated a certain negative rating, as solely determined in Fididel’s sole discretion.6. CONTENT: ACCEPTABLE USE AND CONDUCT
You are solely responsible for any and all Content that is posted through your Account on the Services and for your interactions with other Users. You agree that you will not post any Prohibited Content or use any Prohibited Content for your network profile. “Prohibited Content” is Content that: (i) is offensive or promotes racism, bigotry, hatred or physical harm of any kind against any group or individual, or is pornographic or sexually explicit in nature; (ii) bullies, harasses or advocates stalking, bullying, or harassment of another person; (iii) involves the transmission of “junk mail”, “chain letters,” or unsolicited mass mailing, or “spamming,”; (iv) is false or misleading or promotes, endorses or furthers illegal activities or conduct that is abusive, threatening, obscene, defamatory or libelous; (v) promotes, copies, performs or distributes an illegal or unauthorized copy of another person’s work that is protected by copyright or trade secret law, such as providing pirated computer programs or links to them, providing information to circumvent manufacturer-installed copy-protection devices, or providing pirated music, videos, or movies, or links to such pirated music, videos, or movies; (vi) is involved in the exploitation of persons under the age of eighteen (18) in a sexual or violent manner, or solicits personal information from anyone under eighteen (18); (vii) provides instructional information about illegal activities such as making or buying illegal weapons, violating someone’s privacy, or providing or creating computer viruses and other harmful code; (viii) solicits passwords or personally identifying information for commercial or unlawful purposes from other Users; (ix) except as expressly approved by us, involves commercial activities and/or promotions such as contests, sweepstakes, barter, advertising, or pyramid schemes; (x) contains viruses, Trojan horses, worms, time bombs, cancelbots, corrupted files, or similar software; or (xi) otherwise violates the terms of the Agreement or creates liability for us. You represent and warrant that: (a) you own the Content posted by you on the Service or otherwise have the right to grant the license set forth in the Agreement, and (b) your Content does not violate the privacy rights, publicity rights, copyright rights, or other rights of any person. PLEASE MAKE SURE THAT YOU ONLY PROVIDE INFORMATION TO THE SERVICES THAT YOU ARE ALLOWED TO PROVIDE WITHOUT VIOLATING ANY OBLIGATIONS YOU MIGHT HAVE TOWARDS A THIRD PARTY, INCLUDING ANY CONFIDENTIALITY OBLIGATIONS. PLEASE DO NOT PROVIDE ANY INFORMATION THAT YOU ARE NOT ALLOWED TO SHARE WITH OTHERS, INCLUDING BY CONTRACT OR LAW; PLEASE NOTE THAT ANY INFORMATION YOU PROVIDE MIGHT BE ACCESSIBLE BY EVERY USER OF THE SERVICES AND BY VISITORS OF THE WEBSITE.
7. YOUR RESPONSIBILITIES AND FIDIDEL’S RIGHTS
7.1 Enforcement by Fididel. Any use of the Services in violation of the Agreement may result in, among other consequences,
termination or suspension of your rights to use the Services. In order to cooperate with legitimate governmental requests, subpoenas or court orders, to protect our systems and other Users, or to ensure the integrity and operation of our business, systems, and the Services, we may access and disclose any information and Content we consider necessary or appropriate, including, without limitation, Account information (i.e. name, e-mail address, etc.), IP addressing and traffic information, usage history, posted Content, and Items purchased, sold, or dealt with using the Services. We have the right (but not the obligation) to review any Content or Item offering and delete (or modify) any such Content or Item offering that is Prohibited Content or Prohibited Items, that we believe in our sole discretion violates the Agreement, or that may otherwise harm, violate the rights of, or threaten the safety of any User or any other person, or create liability for us or any User. We reserve the right (but have no obligation) to investigate and take appropriate legal action in our sole discretion against you if you violate this provision or any other provision of the Agreement, including without limitation, removing Content and Item Offerings from the Services (or modifying it), terminating your membership and Account, reporting you to law enforcement authorities, and taking legal action against you. You are solely responsible for creating backup copies of and replacing any Content you post on the Services at your sole cost and expense.7.2 Lawful Use. You will solely use the Services in a manner consistent with any and all applicable laws and regulations and solely
for lawful purposes. You will not attempt to impersonate another User or person, including any of our employees.7.3 No Disruption. You will not: (i) cover or obscure any banner advertisements on the Services, or any Fididel page via
HTML/CSS, scripting, or any other means, (ii) interfere with, disrupt, or create an undue burden on the Services or the networks or services connected to the Services; (iii) introduce software or automated agents to the Services, or access the Services through such software or agents, whether for producing multiple accounts, generating automated messages, stripping or mining data from the Services, or for any other purpose; or (iv) interfere with, disrupt, or modify any data or functionality of the Services.8. THIRD-PARTY WEBSITES
The Services may contain links to third-party websites (“Third-Party Websites”) that are (a) placed by us as a service to those interested in this information; or (b) posted by other Users. You use all such links to Third-Party Websites at your own risk. We do not monitor or have any control over, and makes no claim or representation regarding Third-Party Websites. To the extent such links are provided by us, they are provided only as a convenience, and such link to a Third-Party Website does not imply our endorsement, adoption or sponsorship of, or affiliation with, such Third-Party Website. We accept no responsibility for reviewing changes or updates to, or the quality, content, policies, nature or reliability of Third-Party Websites, or websites linking to the Website. When you leave the Website, our terms and policies no longer govern. You should review applicable terms and policies, including privacy and data gathering practices, of any Third-Party Website, and should make whatever investigation you feel necessary or appropriate before proceeding with any transaction with any third party.
9. DISCLAIMERS
Under no circumstances shall we be responsible for (a) any errors or inaccuracies in the Content (including any information in profiles) posted on the Services, whether caused by Users or by any of the equipment or programming associated with or utilized in the Services; (b) any Item offered, negotiated, sold, or bought, or otherwise traded through the Services; (c) the conduct, whether online or offline, of any User of the Services, including any interaction, communication, transactions, or other dealings between Users; (d) any error, omission, interruption, deletion, defect, delay in operation or transmission, communications line failure, theft or destruction or unauthorized access to, or alteration of, any communication with other Users; (e) any problems or technical malfunction of any hardware or software due to technical problems on the Internet or at the Website or combination thereof, including any injury or damage to Users or to any person’s computer related to or resulting from participation or downloading materials in connection with the Services; (f) any loss or damage, including personal injury or death, resulting from use of the Services or from any Content posted on the Website or transmitted to Users, any interactions between Users of the Services, and any interactions and dealings between Users in connection with the sale or purchase of Items, whether online or offline, and (g) the performance of the Services (or the lack thereof).
THE SERVICES ARE PROVIDED “AS-IS” AND “AS-AVAILABLE.” WE EXPRESSLY DISCLAIM ANY WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, QUIET ENJOYMENT, ACCURACY, OR NON-INFRINGEMENT. WE MAKE NO WARRANTY THAT: (A) THE SERVICES WILL MEET YOUR REQUIREMENTS; (B) THE SERVICES WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE BASIS; OR (C) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES WILL BE ACCURATE OR RELIABLE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU.
10. LIMITATION ON LIABILITY
IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOST PROFITS OR ANY INDIRECT, CONSEQUENTIAL, EXEMPLARY, INCIDENTAL, SPECIAL OR PUNITIVE DAMAGES ARISING FROM YOUR USE OF THE SERVICES, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY CONTAINED HEREIN, OUR LIABILITY TO YOU FOR ANY DAMAGES ARISING FROM OR RELATED TO YOUR USE OF THE SERVICES (FOR ANY CAUSE WHATSOEVER AND REGARDLESS OF THE FORM OF THE ACTION), WILL AT ALL TIMES BE LIMITED TO THE GREATER OF (A) FIFTY U.S. DOLLARS ($50) AND (B) THE PLATFORM FEES YOU PAID TO US IN THE TWELVE (12) MONTHS PRIOR TO THE OCCURRENCE OF THE FIRST CLAIM TO GIVE RISE TO LIABILITY UNDER THE AGREEMENT.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OF CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
11. MISCELLANEOUS
11.1 Amendments. This Agreement may be modified by us from time to time. If we make material changes to the Agreement,
we will notify you by sending an e-mail to your e-mail address, as specified in your Account. You agree that such amended Agreement will be effective thirty (30) days after being sent to you, and your continued use of the Services after that time shall constitute your acceptance of the amended Agreement.11.2 Force Majeure. Any delay in the performance of any duties or obligations of either party will not be considered a breach of
the Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, war, terrorism, governmental act, failures of common carriers (including Internet service providers), acts of God, or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.11.3 Release. To the maximum extent permitted by applicable law, you hereby release each of us, our officers, employees,
agents and successors from all claims, demands any and all losses, damages, rights, claims, and actions of any kind including personal injuries, death, and property damage, that is either directly or indirectly related to or arises from any interaction, dealing, or transaction with another User, whether online or offline. If you are a California resident, you waive your rights, whether known or unknown, under California Civil Code § 1542, which states, "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." Residents of other states and nations similarly waive their rights under applicable and/or analogous laws, statutes, or regulations.11.4 Survival. The provisions under Sections 2, 4.1, 5, 6, 7.1, 9, 10, and 11 will survive expiration or termination of the
Agreement for any reason.11.5 Indemnity. You agree to defend, indemnify, and hold each of us, our subsidiaries, affiliates, officers, agents, and other
partners and employees, harmless from any loss, liability, claim, or demand, including reasonable attorney’s fees, made by any third party arising from or related to (a) your acts or omissions in connection with your use of the Services (including any disputes that may arise between you and other Users, (b) if you are a Seller, any breach of Section 2.3, Section 2.4, or Section 2.5, or (c) your breach of any provision of the Agreement. 11.6 Severability. If any provision of this Agreement is found or held to be invalid or unenforceable by any tribunal of competent
jurisdiction, then the meaning of such provision will be construed, to the extent feasible, so as to render the provision enforceable, and if no feasible interpretation would save such provision, it will be severed from the remainder of this Agreement, which will remain in full force and effect.11.7 Notice. Any notice to Fididel must be delivered in writing to Fididel at the address listed below by courier, by certified or
registered mail (postage prepaid and return receipt requested), or by a nationally-recognized express mail service. Notice will be effective upon receipt by Fididel.Fididel, Inc.
2 West Santa Clara St.
4th floor
San Jose, CA 95113
U.S.A.
2 West Santa Clara St.
4th floor
San Jose, CA 95113
U.S.A.
11.8 Governing Law and Arbitration. This Agreement shall be governed by the laws of the State of California without giving
effect to any conflict of laws principles that may provide the application of the law of another jurisdiction. You agree to submit to the personal jurisdiction of the state courts located within Santa Clara County and the federal courts in the Southern District of California a for the purpose of litigating all such claims or disputes. Any claim or dispute in connection with the Agreement shall be resolved in a cost effective manner through binding non-appearance-based arbitration. The arbitration shall be initiated through an established alternative dispute resolution provider mutually agreed upon by the parties. The alternative dispute resolution provider and the parties must comply with the following rules: a) 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; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Notwithstanding the foregoing, we may seek injunctive or other equitable relief to protect its intellectual property rights in any court of competent jurisdiction.11.9 Other. This Agreement constitutes the entire agreement between you and us regarding the use of the Services. Our failure
to exercise or enforce any right or provision of the Agreement shall not operate as a waiver of such right or provision. The section titles in the Agreement are for convenience only and have no legal or contractual effect; as used in the Agreement, the word “including” means “including but not limited to”. Please contact us with any questions regarding the Agreement by e-mailing us at: Customerservices@fididel.com11.10 Disclosures. Under California Civil Code Section 1789.3, Users who are residents of California are entitled to the following
specific consumer rights information: the Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA, 95814, or by telephone at (916) 445-1254. 11.11 Copyright/Trademark Information. Copyright 2008, Fididel. All rights reserved. The trademarks, logos and service
marks ("Marks") displayed on the Services are our property or the property of other third parties. You are not permitted to use these Marks without our prior written consent or the consent of such third party which may own the Mark.
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