Rick's iStock LLC, an Arizona limited liability company, ("Company") and the website of Company, operated by Company, ("Website") presents the below terms ("Terms") as an agreement between you ("You") and Company (the "Agreement"). You should read this Agreement carefully before participating in any transaction with Company.
By participating in any transaction with Company, (1) You acknowledge that You have read, understand, accept, agree to, and are legally bound by this Agreement; (2) You are of legal age and competency to form a binding contract with Company; and (3) You have the authority to enter into this Agreement personally or on behalf of the company You have named as the purchaser or recipient of any Service (defined below) and to bind that You or the company to the Agreement. IF YOU DO NOT AGREE TO BE BOUND BY THIS AGREEMENT, YOU MAY NOT UTILIZE ANY SERVICE OF COMPANY.
The Terms of Service includes (1) Your agreement that Company has no liability regarding its performance of Services; (2) Your agreement that the Services are provided "As Is" and without warranty unless specifically provided herein; (3) Your consent to release Company from liability based on claims between users and generally; and (4) Your agreement to indemnify Company for Your use or inability to use the Services.
This Agreement limits the remedies that may be available to You in the event of a dispute. By means of illustration, without being a limit, this Agreement includes a class action waiver and a waiver of jury trials and requests binding arbitration on an individual basis to resolve disputes.
Please note that this Agreement is subject to change by Company at its sole discretion at any time. When changes are made, Company will make a new copy of this Agreement available at the Website, and any new supplemental terms will be made available from within, or through, the affected Service on the Website. Company will also update the "Last Revised" date at the top of this Agreement. If You do not agree to any change(s) upon any revision of this Agreement, You shall cease using any Services.
Article 1 – Definitions
1. Definitions. Each term defined above has its assigned meaning, and each of the following terms has the meaning assigned to it.
"Action" means any claim, action, cause of action, demand, lawsuit, arbitration, inquiry, audit, notice of violation, proceeding, litigation, citation, summons, subpoena or investigation of any nature, civil, criminal, administrative, regulatory or otherwise, whether at law or in equity, including reasonable attorney's fees resulting thereof.
"Agreement" has the meaning assigned to it above. Additionally, "Agreement" means this Agreement and its attached exhibits, as any one or more is amended from time to time in writing.
"Blacklisted Device" means a Device that has been reported lost, stolen, or due to an unpaid bill by the network, the Device was locked to originally.
"Buyer" means a Member who has indicated their acceptance of an offer from Company for the purchase of a Device.
"Company" has the meaning assigned to it above. The definition of Company includes "Website" and "Content" owned by Company.
"Content" means any information, data, text, software, music, sound, photographs, graphics, video, messages, tags, and/or other materials accessible through Company.
"Customer Information" means, without limitation, Your first and last name, email address at which You receive mail, phone number, billing address, and a valid postal address at which You are able to receive mail (if different from the billing address).
"Device" means any physical product that is bought or sold by Company, including, but not limited to, mobile telephones, tablets, watches, Wi-Fi products, and related accessories.
"Refurbished" means previously used Device and/or parts that have been restored to like-new working condition.
"Service(s)" means, but is not limited, the purchase, sale, trade-in, exchange, or other transactions of Devices, use of the Website or any Service Company may provide from time to time.
"Terms" means the rights, prohibitions, benefits, and obligations described herein.
Article 2 – Scope and Format
2. Scope. This Agreement governs (i) any and all Services between You and Company; and (ii) any and all supplemental terms or policies that accompany a specific transaction, feature or application, collectively, that is related to or reasonably related to Services between You and Company.
3. Format of Agreement. You expressly acknowledge, understand, and agree that this Agreement, whether in electronic form or in print form, is legally binding between You and Company. Furthermore, You expressly acknowledge, understand, and agree that in the event this Agreement was revised via either electronic format or print format, the most recent revision is controlling. By way of illustration, if this Agreement has been revised, and the revised, electronic version is on the Website, but the print version You executed is not the most recent revision of the Agreement, the most recent revised electronic version is controlling, and You are bound to that most recent revised electronic version despite executing the unrevised print agreement.
Article 3 – Purchase of Device from Company
4. No affiliation with Apple®. You acknowledge and understand that Company is in no way an Apple® Reseller or affiliated with Apple® in any other way. Therefore, Company does not contact Apply® for support regarding any Device.
5. Required Information. You shall provide to Company valid, up-to-date Customer Information prior to the purchase of any Device from Company.
6. Purchase Terms. The following additional Terms apply to any Device purchase from Company:
· Credit Card – Your credit card will be charged by Company when Your order is placed;
· Sales Tax – You shall pay all applicable states' sales taxes; and
· Shipping – You shall pay for the cost of shipping.
7. Accessories and Packaging. The purchase of a Device from Company shall be accompanied by a third-party cable charger and the packaging shall be packaging with Company's branding.
8. Defected Device. If any defect of a Device occurs within 12 months following the purchase of a Device from Company, You shall immediately inform Company upon discovery of the defect, and in no event after 12 months and 1 days of the purchase of the Device, in writing. After Company confirms that the Device is defected and that the defect was in occurrence at the time of purchase from Company, Company shall change the defected Device with an identical or near-identical Device.
9. Blacklisted Devices. In the event that You purchase a Blacklisted Device from Company, Company shall replace the Blacklisted Device with an identical or near-identical Device, provided that the Device was a Blacklisted Device at the time of purchase from Company and You return the Blacklisted Device to Company.
Article 4 – Sale of Device to Company
10. Required Information. You shall provide to Company, valid, up-to-date Customer Information prior to the sale of any Device to Company.
11. Defected Device. If You sold a defected Device to Company, You shall buy the Device from Company within ten calendar days of Company discovering the defect, and You shall be responsible for the costs of shipping or delivering the defected Device to You.
12. Blacklisted Device. If You sold a Blacklisted Device to Company, You shall buy the Device from Company within ten calendar days of Company discovering that the Device is Blacklisted, and You shall be responsible for the costs of shipping or delivering the Blacklisted Device to You.
Article 5 – Trade-in Device
13. Cash Credit. Company may at its sole discretion permit You to participate in its trade-in program as described: Company shall determine the value of Your Device in the form of a "credit" to be used towards the purchase of a newer Device from Company. Additionally, Company may discount the listed sale price of the newer Device. In event the Device You sold to Company is defected or Blacklisted, the provisions of Article 4 shall apply.
Article 6 – General
14. Remove Your Data and Unlock Your Phone. You MUST unlock and remove all data, including confidential and personal data, from Your Device before delivering the Device to Company. In doing so, You should factory reset Your Device according to manufacturer instructions. It is Your sole responsibility to back up any files or data from Your Device that You wish to retain prior to performing a factory data reset and before sending or delivering Your Device to Company. In addition, ensure that You remove all accessories, chargers, covers, cases, locks, SIM cards and memory cards before sending or delivering the Device to Company.
15. Shipping Your Device. Company will provide shipping instructions; however, You are solely responsible for the costs of shipping. You are solely responsible for ensuring Your Device is not damaged during shipping to Company. Company shall not be responsible for Devices lost or damaged during shipping. If Your Device is damaged in transit, You may receive less than the agreed-upon purchase price, or nothing, for Your Device. You must ship Your Device to Company within three business days of the date You accept a purchase offer for that Device from Company. Devices shipped more than three business days after the date You accept a purchase offer for that Device may result in You receiving less than the Purchase Price, or nothing, for Your Device.
16. Title and Ownership. You represent and agree that You are authorized to sell Your Device to Company and that You have the ownership, title, and interest in any Device offered for sale to Company. By shipping the Device to Company, You agree to transfer title and ownership of the Device to Company. You disclaim any and all right, title or interest in and to the Device, including the right to sell, dispose, or otherwise collect, where applicable, its value. You should ship only the Device to Company. Discard accessories You no longer need in accordance with Your local trash and recycling regulations. The purchase price is offered on the Device only, and not any Device accessory or case.
17. Condition of Device. You expressly agree if Company purchases a Device from You, Company reserves the right, in its sole discretion, to reduce its offer to reflect any differences in condition, description, or specifications.
18. Damaged Battery. You may not include a damaged battery when shipping Your Device. If Your Device exhibits a damaged battery (for example, is leaking fluid, is too hot to touch or the Device case is swollen), You must remove the damaged battery and dispose of it properly before shipping the Device to Company. Failure to strictly comply with these conditions may result in You receiving less than the agreed-upon purchase price, or nothing, for Your Device.
19. Remaining Payment. If You bought Your Device under an equipment installment plan or other financing plan or if You entered into a service contract with Your wireless service provider, You will be responsible for any and all remaining payments under such plan or contract, including any contract termination fees. Company assumes no such liabilities.
20. Miscellaneous Additional Terms. You acknowledge and agree:
· You must be at least 18 years old to utilize any Service;
· Notices shall be deemed effective upon electronic delivery to the email address You provided;
· Company reserves the right to decline or cancel Your use of its Services with or without advance notice if Company believes that Your participation in Services is enabling a fraudulent or illegal purpose;
· By utilizing any Service, You understand and agree that it may be necessary for Company, its affiliates and agents, to collect, process, transmit, maintain, share, and use certain Customer Information to perform the Service.
21. Waiver of Construction Against Drafter. Each of the parties to this Agreement acknowledges that this Agreement has been negotiated at arm's length between Persons knowledgeable in the matters contemplated herein, and each party participated in its drafting. Accordingly, any rule of law, statute, legal decision or common law principle that would require the interpretation of any ambiguities in this Agreement against the drafter thereof is of no application and is expressly waived. The provisions of this Agreement shall be interpreted in a reasonable manner to effectuate the intentions of the parties hereto.
22. No Waivers. No failure or delay by Company in exercising any right, power, or privilege pursuant to this Agreement shall operate as a waiver thereof nor shall any single or partial exercise thereof preclude any other or further exercise thereof or the exercise of any other right, power, or privilege. The rights and remedies herein provided shall be cumulative and not exclusive of any rights or remedies provided by law.
23. Confidentiality. Each party agrees, in the performance of this Agreement, to keep the information furnished by the other party or acquired or developed by the other party in the performance of this Agreement, in the strictest confidence. Each party also agrees not to publish or otherwise divulge such information, in whole or in part, in any manner or form, nor to authorize or permit others to do so, and shall take reasonable measures to restrict access to such information while in such party's possession, to those employees or third-parties needing such information to perform the work described in this Agreement, i.e., on a "need to know" basis. Each party agrees to immediately notify the other party in writing in the event that such party determines or has reason to suspect a breach of this requirement has occurred. Upon termination or expiration of this Agreement or upon request of the disclosing party of confidential information, the receiving party shall return to the disclosing party all confidential information of such disclosing party, all documents and media containing such confidential information and any and all copies or extracts thereof; provided, that the receiving party may retain one copy of any such tangible embodiments for archival purposes. Upon written request by the disclosing party, the receiving party shall promptly cease, and shall cause its recipients to cease, use of such confidential information as well as any information or materials that contain, incorporate, or are derived from such confidential information.
24. Indemnification. Each party agrees to release, indemnify, defend and hold the other party harmless from and against any and all Actions by a third party to the extent that such Action results from any: (a) breach of warranty or covenant by the indemnifying party contained within this Agreement; (b) breach of the Agreement or applicable law by such indemnifying party; (c) negligence or willful misconduct of the indemnifying party, its subcontractors, employees or other agents in the performance of the Agreement; and/or (d) breach of a contractual or fiduciary obligation owed by it to a third party.
25. Governing Law. The laws of Arizona govern all matters arising under or relating to this Agreement, including torts.
26. Jurisdiction and Venue. The jurisdiction and venue are exclusive to courts in Maricopa County.
27. Amendments. All amendments to this Agreement and its Exhibits must be agreed to in writing by both parties.
28. Merger. This Agreement sets forth the entire agreement and understanding between the parties relating to the subject matter hereof, superseding and merging all prior and contemporaneous discussions, proposals, agreements (oral or written), and all other communications between the parties relating to this Agreement.
29. Counterparts. This Agreement may be executed in more than one counterpart with the same effect as if all executing parties had executed the same document. Each such counterpart shall be deemed an original, and such counterparts, taken together, shall constitute one and the same agreement.
30. Successors and Assigns. This Agreement shall be binding upon and shall inure to the benefits of the parties hereto and their respective successors and permitted assigns. Neither party may assign its rights or obligations hereunder without the prior written consent of the other party.
31. Severability. If any provision of this Agreement is illegal or unenforceable, that provision is severed from this Agreement and other provisions remain in force.
32. Arbitration. All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration in the state of [insert state in which parties agree to arbitrate] or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys' fees. Any such arbitration shall be conducted by an arbitrator experienced in [insert industry or legal experience required for arbitrator] and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
33. Attorney Fees. If either party brings Action to enforce its rights under this Agreement, the prevailing party will be entitled to recover its expenses (including reasonable attorney's fees) incurred in connection with the action and any appeal.
34. Force Majeure. If a force majeure event occurs and is continuing, the affected party is excused from the performance to the extent prevented from performing.