By using the Services in any manner, including but not limited to visiting or browsing the Site, you (the "user" or "you") agree to be bound by this Agreement, including those additional terms and conditions and policies referenced herein and/or available by hyperlink. This Agreement applies to all users of the Services, including without limitation users who are vendors, customers, merchants, contributors of content, information and other materials or services on the Site.
1. ProductGraph is a Venue
ProductGraph acts as a venue to allow users who comply with ProductGraph's policies to offer, sell and buy certain goods within a fixed-price format. ProductGraph is not directly involved in the transaction between buyers and sellers. As a result, ProductGraph has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. ProductGraph does not pre-screen users (except for services that require an application) or the content or information provided by users. ProductGraph cannot ensure that a buyer or seller will actually complete a transaction.
Consequently, ProductGraph does not transfer legal ownership of items from the seller to the buyer.
ProductGraph cannot guarantee the true identity, age, and nationality of a user. ProductGraph encourages you to communicate directly with potential transaction partners through the tools available on the Site. You may also wish to consider using a third-party escrow service or services that provide additional user verification.
You agree that ProductGraph is a venue and as such is not responsible or liable for any content, for example, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on ProductGraph. You use the ProductGraph service at your own risk.
2. Membership Eligibility
Age: ProductGraph's services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. ProductGraph may, in its sole discretion, refuse to offer access to or use of the Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.
Individuals under the age of 18 must at all times use ProductGraph's services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In all cases, the adult is the user and is responsible for any and all activities.
Compliance: You agree to comply with all local laws regarding online conduct and acceptable content. You are responsible for all applicable taxes. In addition, you must abide by ProductGraph's policies as stated in the Agreement and the ProductGraph policy documents listed below (if applicable to your activities on or use of the Services) as well as all other operating rules, policies and procedures that may be published from time to time on the Site by ProductGraph, each of which is incorporated herein by reference and each of which may be updated by ProductGraph from time to time without notice to you:
- Fees and Billing Policy
- Copyright and Intellectual Property Policy
In addition, some services offered by ProductGraph may be subject to additional terms and conditions promulgated by ProductGraph from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.
Password: Keep your password secure. You are fully responsible for all activity, liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify ProductGraph of any unauthorized use of your password or any breach of security. You also agree that ProductGraph cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than ProductGraph without ProductGraph's express written permission.
Account Information: You must keep your account information up-to-date and accurate at all times, including a valid email address. To sell items on ProductGraph you must provide and maintain valid payment information such as valid credit card information or a valid PayPal account.
Account Transfer: You may not transfer or sell your ProductGraph account and User ID to another party. You are responsible for all activity of the account and User ID. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
Right to Refuse Service: ProductGraph reserves the right, in ProductGraph's sole discretion, to cancel unconfirmed or inactive accounts. ProductGraph reserves the right to refuse service to anyone, for any reason, at any time.
3. Fees and Billing
Joining and creating an account with ProductGraph is free. ProductGraph charges a setup fee for each product page created, as well as a percentage of the sale price when the item sells. When you list an item, you have an opportunity to review and accept the fees that you will be charged. ProductGraph's Fees Policy, which is subject to change, is incorporated into this Agreement by reference. Changes to the Fees Policy and the fees for ProductGraph's services are effective after ProductGraph provides you with at least fourteen (14) days' notice by posting the changes on the Site. ProductGraph may, at ProductGraph's sole discretion, change some or all of ProductGraph's services at any time. In the event ProductGraph introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in US Dollars (USD).
In certain situations, including but not limited to a void or invalid transaction, ProductGraph may issue a credit for the applicable fees to a seller's billing statement.
You are responsible for paying all fees and applicable taxes associated with using ProductGraph. ProductGraph will send an invoice to the seller’s email address on file detailing the amount due for the prior month’s fees and charges. The seller must pay the amount due in full within 15 days of the date of the invoice, or the account will be considered past due.
Fees and Termination: If ProductGraph terminates a listing or your account, if you close your account, or if the payment of your ProductGraph fees cannot be completed for any reason, you remain obligated to pay ProductGraph for all unpaid fees plus any penalties, if applicable. If the seller's account is not paid in full and becomes past due, the seller risks penalties such as the suspension of privileges and/or termination of the account and other collection mechanisms (including retaining collection agencies and legal counsel). If you have a question or wish to dispute a charge, contact ProductGraph.
4. Listing and Selling
Listing Description: All listings on ProductGraph must be for sale. By listing an item on the Site you warrant that you and all aspects of the item comply with ProductGraph's published policies. You also warrant that you may legally sell the item. You must accurately describe your item and all terms of sale in your ProductGraph shop. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. Each listing must accurately and completely describe the item/items for sale in that listing.
Shop Policies: All sellers are urged to outline shop policies for their ProductGraph shop. These policies may include, for example, shipping, returns, payment and selling policies. Sellers must create reasonable policies in good faith and must abide by such policies. All shop policies must comply with ProductGraph's site-wide policies. Sellers are responsible for enforcing their own reasonable shop policies. ProductGraph reserves the right to request that a seller modify a shop policy.
Binding Sale: Sellers are responsible for accurately listing their items, and buyers are responsible for reading the description of items before making a purchase. All sales are binding. The seller is obligated to ship the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller's listing (such as payment method), or (b) the seller cannot authenticate the buyer's identity. The buyer is obligated to deliver appropriate payment for items purchased, unless there is an exceptional circumstance.
Fee Avoidance: The price stated in each item listing description must be an accurate representation of the sale. Sellers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the items. Sellers may not charge excessive shipping fees or otherwise avoid fees. You may not alter the item's price after a sale for the purpose of avoiding ProductGraph transaction fees, misrepresent the item's location, or use another user's account without permission.
5. Prohibited, Questionable and Infringing Items and Activities
You are solely responsible for your conduct and activities on and regarding to ProductGraph and any and all data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, "Content") that you submit, post, and display on ProductGraph.
Restricted Activities: Your Content and your use of ProductGraph shall not:
- Be false, inaccurate or misleading
- Be fraudulent or involve the sale of illegal, counterfeit or stolen items
- Infringe upon any third-party's copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy (see also, ProductGraph's Copyright and Intellectual Property Policy)
- Violate this Agreement, any site policy, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)
- Involve any countries, entities, individuals or items prohibited by sanctions, embargoes, regulations or orders administered by the U.S. Department of Treasury’s Office of Foreign Assets Control (“OFAC”) or other government agencies
- Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall
- Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including ProductGraph staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device
- Interfere with a seller’s business or shop
- Take any action that may undermine online reviews or feedback
- Be obscene
- Contain child pornography
- Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information
- Host images not part of a listing
- Modify, adapt or hack ProductGraph or modify another website so as to falsely imply that it is associated with ProductGraph;
- Appear to create liability for ProductGraph or cause ProductGraph to lose (in whole or in part) the services of ProductGraph's suppliers
- Link directly or indirectly, reference or contain descriptions of goods or services that are prohibited under this Agreement or other policy documents as posted on ProductGraph.
As part of a transaction, you may obtain personal information, including email address and shipping information, from another ProductGraph user. Without obtaining prior permission from the other user, this personal information shall only be used for that transaction or for ProductGraph-related communications. ProductGraph has not granted you a license to use the information for unsolicited commercial messages or unauthorized transactions. Without limiting the foregoing, without express consent from the user, you are not licensed to add any ProductGraph user to your email or physical mail list.
Re-Posting Content: By posting Content on ProductGraph, it is possible for an outside website or a third party to re-post that Content. You agree to hold ProductGraph harmless for any dispute concerning this use. If you choose to display your own ProductGraph-hosted image on another website, the image must provide a link back to its listing page on ProductGraph.
Idea Submissions: ProductGraph considers any unsolicited suggestions, ideas, proposals or other material submitted to it by users via the Site, mobile applications, or otherwise (other than the Content and the tangible items sold on the Site by users) (collectively, the "Material") to be non-confidential and non-proprietary, and ProductGraph shall not be liable for the disclosure or use of such Material. If, at ProductGraph's request, any member sends Material to improve the site (for example through the Forums or to customer support), ProductGraph will also consider that Material to be non-confidential and non-proprietary and ProductGraph will not be liable for use or disclosure of the Material. Any communication by you to ProductGraph is subject to this Agreement. You hereby grant and agree to grant ProductGraph, under all of your rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, without compensation or accounting to you and without further recourse by you.
7. Information Control
ProductGraph does not control the Content provided by users that is made available on ProductGraph. You may find some Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.
Additionally, there may also be risks dealing with international trade and foreign nationals. By using ProductGraph, you agree to accept such risks and that ProductGraph (and ProductGraph's officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on ProductGraph. Please use caution, common sense, and practice safe buying and selling when using ProductGraph.
Other Resources: ProductGraph is not responsible for the availability of outside websites or resources linked to or referenced on the Site. ProductGraph does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that ProductGraph shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.
8. Resolution of Disputes and Release
Disputes with ProductGraph: In the event a dispute arises between you and ProductGraph, please contact ProductGraph. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in San Diego County, California, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in San Diego, California. Use of the Services is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. You and ProductGraph agree that any cause of action arising out of or related to the Services (including, but not limited to, any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
Disputes with Users or Third Parties: In the event a dispute arises between you and another user or a third party, ProductGraph encourages you to contact the user or third party to resolve the dispute amicably.
If a buyer and seller are unable to resolve a dispute resulting from a transaction that occurs on ProductGraph, they may choose to engage ProductGraph’s in order to resolve the dispute. Cases are escalated for review and resolution by ProductGraph. ProductGraph provides its dispute resolution process for the benefit of users. ProductGraph does so in ProductGraph's sole discretion, and ProductGraph has no obligation to resolve disputes between users or between users and outside parties. To the extent that ProductGraph attempts to resolve a dispute, ProductGraph will do so in good faith based solely on ProductGraph's policies. ProductGraph will not make judgments regarding legal issues or claims.
You may also report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
You release ProductGraph (and ProductGraph's officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with disputes with one or more users, or an outside party.
9. ProductGraph's Intellectual Property
ProductGraph, and other ProductGraph graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of ProductGraph, Inc. in the U.S. and/or other countries. ProductGraph's trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion.
10. Access and Interference
ProductGraph may contain robot exclusion headers which contain internal rules for software usage. Much of the information on ProductGraph is updated on a real-time basis and is proprietary or is licensed to ProductGraph by ProductGraph's users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access ProductGraph for any purpose whatsoever. Additionally, you agree that you will not:
- Take any action that imposes, or may impose, in ProductGraph's sole discretion, an unreasonable or disproportionately large load on ProductGraph's infrastructure
- Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site
- Bypass ProductGraph's robot exclusion headers or other measures ProductGraph may use to prevent or restrict access to ProductGraph
Without limiting any other remedies, ProductGraph may, without notice, and without refunding any fees, delay or immediately remove Content, warn ProductGraph's community of a user's actions, issue a warning to a user, temporarily suspend a user, temporarily or indefinitely suspend a user's account privileges, terminate a user's account, prohibit access to the Site, and take technical and legal steps to keep a user off the Site and refuse to provide services to a user if any of the following apply:
ProductGraph reserves the right to suspend and/or terminate a person's account or any accounts held by that person by virtue of association, including all usernames under which that person operates on ProductGraph.
13. No Warranty
ProductGraph, ProductGraph'S, OFFICERS, DIRECTORS, EMPLOYEES, AND ProductGraph'S SUPPLIERS PROVIDE ProductGraph'S WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. ProductGraph, ProductGraph'S OFFICERS, DIRECTORS, EMPLOYEES AND ProductGraph'S SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM ProductGraph SHALL CREATE ANY WARRANTY. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.
14. Liability Limit
IN NO EVENT SHALL ProductGraph, AND (AS APPLICABLE) ProductGraph'S OFFICERS, DIRECTORS, EMPLOYEES OR ProductGraph'S SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, ProductGraph'S SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.
ProductGraph'S LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF ProductGraph'S OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO ProductGraph IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.
YOU AGREE TO INDEMNIFY AND HOLD ProductGraph AND (AS APPLICABLE) ProductGraph'S OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS' FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR BREACH OF THIS AGREEMENT OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.
16. No Guarantee
ProductGraph does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside ProductGraph's control.
17. Legal Compliance; Taxes
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any ProductGraph service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make using the Services (excluding any taxes on ProductGraph's net income).
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.
19. No Agency
You and ProductGraph are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
20. ProductGraph Service
21. Choice of Law
This Agreement shall in all respects be interpreted and construed with and by the laws of the State of California, excluding its conflicts of laws rules, and the United States of America.
Except as explicitly stated otherwise, any notices shall be given by postal mail to:
Attn: Legal Department
101 W Broadway, Suite 1120
San Digeo, CA 92109
(in the case of ProductGraph) or, in your case, to the email address you provide to ProductGraph (either during the registration process or when your email address changes). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, ProductGraph may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to ProductGraph. In such case, notice shall be deemed given three days after the date of mailing.
For issues with intellectual property, please provide the notice as specified in ProductGraph's Copyright and Intellectual Property Policy.
The services hereunder are offered by ProductGraph Inc., located at 1251 Emerald Street, San Diego, CA 92109.