Effective: OCTOBER 20, 2020
IMPORTANT -- PLEASE READ THESE TERMS CAREFULLY. THESE TERMS SET FORTH THE LEGALLY BINDING TERMS AND CONDITIONS BETWEEN YOU AND GOLDUNE GOVERNING YOUR USE OF THE SERVICES. BY USING OR ACCESSING THE SERVICES IN ANY MANNER, INCLUDING, BUT NOT LIMITED TO, VISITING OR BROWSING THE SITE AND/OR MARKETPLACE OR PURCHASING PRODUCTS YOU: (1) ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS SET FORTH IN THESE TERMS; (2) REPRESENT THAT YOU MEET THE ELIGIBILITY REQUIREMENTS IN SECTION 1 BELOW; AND (3) YOU AGREE THAT YOU ARE ENTERING INTO THESE TERMS (INCLUDING ALL OF THE TERMS AND CONDITIONS SPECIFIED OR REFERENCED BELOW) WITH GOLDUNE, INC.
NOTICE OF AGREEMENT TO ARBITRATE: THESE TERMS CONTAIN AN AGREEMENT TO ARBITRATE WHICH WILL REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION AND A WAIVER OF YOUR RIGHT TO PARTICIPATE IN CLASS ACTIONS AS SET FORTH IN, AND SUBJECT TO, SECTION 17.
NOTICE OF WARRANTY & LIABILITY DISCLAIMERS: PLEASE BE ADVISED THAT GOLDUNE DOES NOT PROVIDE ANY WARRANTIES TO YOU AND THESE TERMS LIMIT OUR LIABILITY TO YOU. PLEASE SEE SECTIONS 11, 12 AND 15 FOR FURTHER INFORMATION.
YOU MAY NOT ACCESS OR USE THE SERVICES (OR ANY PART THEREOF) OR PURCHASE ANY PRODUCTS IF YOU DO NOT AGREE TO THESE TERMS.
ELIGIBILITY. To create an account for the Services (an “Account”) and/or to purchase Products through the Services, you must be at least 18 years old or the age of majority in your jurisdiction. Minors under 18 and at least 13 years of age are permitted to use the Services and/or purchase Products only if they have the appropriate permission and are under the direct supervision of their parent or legal guardian who meets the eligibility requirements above. You affirm and represent and warrant: (a) that you are 18 years old or the age of majority in your jurisdiction, and fully able and competent to enter into the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms, and (b) if applicable, that you are the parent or legal guardian of a minor user that is 13 years of age or older and you are directly supervising the use of the Services and/or purchase of Products by such user.
ADDITIONAL TERMS; MODIFICATIONS TO THESE TERMS
Additional Terms. When using particular services or materials through or in connection with the Services, you will be subject to any posted rules applicable to such services or materials that may contain terms and conditions or other operating rules, policies and procedures in addition to those in these Terms (“Additional Terms”). All such Additional Terms are hereby incorporated by reference into these Terms. In the event the provisions of any Additional Terms conflict with these Terms, the Additional Terms shall control solely with respect to the subject matter covered by such Additional Terms.
Modifications to these Terms. Goldune reserves the right to update or modify these Terms at any time. All updates and modifications to these documents will be effective from the day they are posted online (except as otherwise stated in this Section 2.2). If we make any material changes to these Terms, we will post a notice of the changes on the Site, and if we have an email address on file for you, we may notify you of these changes by sending a notification to the applicable email address. It is your responsibility to regularly visit and review these Terms. If you do not agree to any updates or modifications to these Terms, simply do not use or access the Services and terminate your Account (if applicable). Your continued use of the Services after we have posted the revised Terms, or, in the event of material changes, ten (10) days following the date Goldune first notified you of such material changes either through the Site and/or via email, as applicable, signifies to us that you acknowledge and agree to be bound by the revised Terms.
PRIVACY. If you provide us any personal information in connection with your access and/or use of the Services, Goldune will process such personal information as described in these Terms and the Goldune Privacy Notice. By using our Services, you acknowledge and agree that Goldune can process your information in accordance with these Terms and as set forth in the Privacy Notice.
ACCESS AND USE OF THE SERVICES
Accounts. To access and use certain features of the Services you may need to create and register an Account. In registering an Account, you agree to provide and maintain up to date information that is true, accurate, current, up to date, and complete. You agree that you will not (a) create an Account using a false identity or information, and (b) create an Account or use the Services if you have been previously removed or banned by us from use of the Services, or any part thereof. You understand and agree that you are solely responsible for maintaining the confidentiality of and protecting your password to your Account. You are solely responsible for any activity originating from your Account, regardless of whether such activity is authorized by you. You agree to notify us immediately of any unauthorized use of your Account. Goldune reserves the right to limit the number of Accounts that can be created from any one computer or mobile device and the number of computer or mobile devices that can access an individual Account.
Access to the Services. Subject to your compliance with these Terms, Goldune hereby grants you a personal, non-exclusive, non-transferable, non-sublicensable, revocable, limited right to access and use the Services, over the internet, and view the Content (defined in Section 9.1), made available through the Services, in each case on a non-commercial basis, and otherwise in accordance with these Terms.
Prohibited Use. By using the Services, you agree that you will not, and will not permit any other person to:
User Submissions. Subject to the licenses you grant us in these Terms, as between Goldune and you, you will retain ownership of any messages, photos, video, audio, images, data, information, text and/or any other content or materials that you post, submit, transmit, and/or upload, or otherwise provide us, in connection with the use of the Services (collectively, “User Submissions”). Please be advised that, any User Submissions posted to public forums, message boards, or other communication tools through the Site and/or Marketplace will be considered non-confidential and non-proprietary.
Goldune’s Use of User Submissions. By providing User Submissions, you grant Goldune a worldwide, non-exclusive, royalty-free, fully paid, transferable right and license (including through the use of subcontractors) to copy, reproduce, use, host, store, transfer, publicly display, publicly perform, transmit, reproduce, modify (for the purpose of formatting for display), and distribute your User Submissions, in whole or in part, in connection with your use of the Services, and as reasonably necessary to provide the Services to you and other users of the Services. Goldune will not review, share, distribute, or reference any User Submissions except as provided in these Terms, the Privacy Notice, or as may be required by law.
Responsibility for User Submissions. You acknowledge and agree that you, and not Goldune, are solely responsible for any User Submissions submitted, transmitted and/or contributed by you, including the legality, reliability, accuracy and appropriateness of such User Submissions. By providing User Submissions, you represent and warrant that: (a) you own or control all rights in and to User Submission, and have the necessary rights to grant the licenses granted to Goldune in Sections 4.5 above; (b) you have obtained all permissions and/or approvals as may be necessary or required to transmit User Submissions, or any personally identifiable information therein, in connection with the use of the Services; and (c) all User Submissions do and will comply with these Terms.
Changes and Modifications. Goldune reserves the rights to either temporarily or permanently modify, suspend or discontinue the Services (or any part thereof) with or without notice. You agree that Goldune will not be liable to you or to any third party for any modification, suspension or discontinuance of the Site and/or Goldune Service (or any part thereof).
PURCHASE AND PAYMENT TERMS FOR THE PRODUCTS
Transactions. When you purchase Products through the Services (each such purchase, a "Transaction"), you will be asked to supply certain information relevant to your Transaction including, without limitation, your credit card number, the expiration date of your credit card (and CCV#), your billing address, and your shipping information. You represent and warrant that you have the legal right to use any credit card(s) or other payment method(s) utilized in connection with any Transaction. By submitting such information, you grant Goldune the right to provide such information to our third party service providers for purposes of facilitating the completion of Transactions initiated by you or on your behalf. Verification of your information may be required prior to the acknowledgment or completion of any Transaction.
Orders. You agree that by placing an order on the Site, you are entering into a binding contract with Goldune and agree to pay all charges that may be incurred by you or on your behalf in connection with your Transactions, at the price(s) in effect when such charges are incurred including, without limitation, all shipping and handling charges. In addition, you remain responsible for any taxes that may be applicable to your Transactions. It is your responsibility to ascertain and obey all applicable local, state, federal, and international laws (including minimum age requirements) in regard to the receipt, possession, use, and sale of any Products purchased. By placing an order, you represent that the Products ordered will be used only in a lawful manner.
Order Acceptance; Cancellation. We reserve the right to accept or reject any order in our own discretion. Should we elect to accept your order, you will receive a confirming email at the email address that you provide at such time. Notwithstanding, we reserve the right to cancel any order once accepted by us at any time in our sole discretion. Additionally, you have the option of cancelling your order (in its entirety only) at any time prior to our having sent to you the confirming email referenced herein. Without limiting the foregoing, Goldune reserves the right, with or without prior notice, to do any one or more of the following: (a) limit the available quantity of or discontinue any Product; (b) impose conditions on the honoring of any coupon, coupon code, promotional code, or other similar promotion; (c) bar any user from making or completing any or all Transaction(s); and (d) refuse to provide any user with any Product.
Delivery; Refunds. Products will be shipped by a third party carrier to the shipping address provided by you in connection with the applicable Transaction. As a result, title and risk of loss for such merchandise will pass to you upon our delivery to (or pick up by) the carrier. EXCEPT AS EXPRESSLY PROVIDED IN OUR RETURN POLICY, PRODUCTS, AND THE FEES PAID BY YOU FOR SUCH PRODUCTS, ARE NON-RETURNABLE AND NON-REFUNDABLE.
Payment Terms. If you have purchased Products through the Services, you agree to, and shall, pay Goldune the fees specified in the electronic or written purchase order submitted by you to Goldune for such Products, in accordance with the payment terms specified therein. The fees are exclusive of all applicable sales, use, value-added and other taxes, or other similar charges, and you will be responsible for payment of all such taxes (other than taxes based on Goldune’s income), and any related penalties and interest, arising from the payment of the fees, the delivery of the Products, Services, or performance of any services by Goldune.
INFRINGEMENT POLICY. If you believe that any Products and/or Content made available through the Services violates your copyright and/or trademark rights, please see Goldune’s Infringement Policy for instructions on sending us a notice of copyright and/or trademark infringement.
ELECTRONIC COMMUNICATIONS. By using the Services, you consent to receiving electronic communications from Goldune. These electronic communications may include notices about applicable fees and charges, transactional information and other information concerning or related to your use of the Services. These electronic communications are part of your relationship with Goldune and you receive them as part of your purchase. You agree that any notices, agreements, disclosures or other communications that we send you electronically will satisfy any legal communication requirements, including that such communications be in writing.
INDEMNIFICATION – OR WHAT HAPPENS IF WE GET SUED. We hope this never happens, but if Goldune gets sued because of something that you did, you agree to defend and indemnify us. This means that you agree to defend Goldune, its employees, contractors, and/or agents, and hold us harmless from and against any and all claims, actions, demands, liabilities, losses, damages, expenses, and costs (including reasonable attorney fees) arising from (a) your breach of these Terms, (b) your use or misuse of the Services, (c) your use of the Products you purchase (including without limitation your resale or personal consumption), or (d) your breach of any law or the intellectual property and/or privacy rights of a third party. We reserve the right, at our own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you hereunder, in which case, you agree to cooperate with us in the defense of the claim. Some jurisdictions limit consumer indemnities, so some portions or all of this indemnity provision may not apply to you.
GOLDUNE’S PROPRIETARY RIGHTS
Goldune Proprietary Rights. As between you and Goldune, Goldune and its licensors retain all right, title and interest in and to (a) any and all content, messages, data, text, graphics, images, photos, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services, including, without limitation, any Product Information (defined in Section 11 below), but excluding your User Submissions (collectively, the “Content”), (b) the Services, and (c) any and all modifications, enhancements and updates to the items listed in clause (a) and (b). All Goldune trademarks are strictly owned by Goldune, and nothing in these Terms will be construed to transfer ownership rights or grant any permission, license or other rights to any Goldune trademark without written authorization from Goldune. The trademarks, service marks, logos, and/or names of individuals, companies and/or products mentioned through the Services or within the Products and/or Content may be the trademarks of their respective owners. Goldune reserves all rights and licenses not expressly granted to you in these Terms and no implied license is granted by Goldune. The Services (and its underlying technology) and Content, are protected by copyright, trademark, patent, intellectual property, and other laws of the United States and foreign countries.
Feedback. You acknowledge that any ideas, inventions, suggestions for improvement or discussions submitted by you regarding any aspect of the Services, including, without limitation, the functioning, features, and other characteristics thereof (or any component thereof) (“Feedback”) may be used by Goldune without compensation or attribution to you, and you hereby grant Goldune, its subsidiaries, affiliates and partners a worldwide, irrevocable, royalty free, non-exclusive, sublicensable and transferable license under all your intellectual property rights in and to such Feedback, for Goldune to use and exploit for any purpose.
TERM; TERMINATION. These Terms will remain in full force and effect as long as you continue to access or use the Services (or any part thereof), or until terminated in accordance with the provisions of these Terms. At any time, Goldune may (a) suspend or terminate your rights to access or use the Services (or any part thereof), or (b) terminate these Terms with respect to you if Goldune, in good faith, believes that you have used the Services (or any part thereof) in violation of these Terms, including any incorporated guidelines, terms or rules. Upon termination of these Terms, your Account and your right to use the Services will automatically terminate.
- Modify, adapt, translate or create derivative works based on the Services (or any part thereof), Content, or any related documentation;
- Reverse engineer, decompile, disassemble, or otherwise derive or determine or attempt to derive or determine the source code (or the underlying ideas, algorithms, structure or organization) of the Marketplace, except as expressly permitted by applicable law;
- Distribute, license, sublicense, assign, transfer or otherwise make available to any third party the Services, Content, or any related documentation;
- Remove, alter, or obscure in any way any proprietary rights notices (including copyright notices) of Goldune or its suppliers on or within the Services, Content, or related documentation;
- Use the Services to store or transmit malicious code or infringing, libelous, or otherwise unlawful or tortious material, or to store or transmit material in violation of third-party privacy rights;
- Interfere with or disrupt the integrity or performance of the Services or any system, network or data;
- Attempt to gain unauthorized access to the Services or its related systems or networks;
- Frame or utilize framing techniques to enclose the Services, Content, or any portion thereof;
- Use any meta tags, "hidden text", robots, spiders, crawlers, or other tools, whether manual or automated, to collect, scrape, index, mine, republish, redistribute, transmit, sell, license or download the Services, Content (except caching or as necessary to view the Site), or the personal information of others without our prior written permission or authorization;
- Impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with any person or entity;
- Use the Services or provide any User Submissions other than in accordance with these Terms and/or any Additional Terms (if applicable); or
- Use the Services in violation of any applicable local, state, national or international law, including, without limitation, any and all applicable export laws.
THE SERVICES (AND ANY PART THEREOF), CONTENT, PRODUCTS (SUBJECT TO THE RETURN POLICY), AND/OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY GOLDUNE, ARE PROVIDED "AS IS" AND "AS AVAILABLE". GOLDUNE AND ITS LICENSORS AND SUPPLIERS HEREBY EXPRESSLY DISCLAIM ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR ANY PARTICULAR PURPOSE, SATISFACTORY PURPOSE, ACCURACY, OR NON-INFRINGEMENT.
GOLDUNE AND ITS LICENSORS AND SUPPLIERS DO NOT WARRANT OR MAKE ANY GUARANTEE THAT DEFECTS WILL BE CORRECTED OR THAT THE SERVICES (OR ANY PART THEREOF), CONTENT, PRODUCTS (SUBJECT TO THE RETURN POLICY), OR ANY OTHER MATERIALS OR SERVICES PROVIDED BY GOLDUNE: (A) WILL MEET YOUR REQUIREMENTS; (B) WILL BE COMPATIBLE WITH YOUR HOME NETWORK, COMPUTER OR MOBILE DEVICE, OR ANY THIRD PARTY PRODUCTS OR SERVICES; (C) WILL BE AVAILABLE ON AN UNINTERRUPTED, TIMELY, SECURE OR ERROR-FREE BASIS; OR (D) WILL BE ACCURATE OR RELIABLE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GOLDUNE, ANY THIRD PARTY, OR THROUGH THE SERVICES, SHALL CREATE ANY WARRANTY.
ALL INFORMATION PROVIDED AND/OR MADE AVAILABLE THROUGH THE SERVICES REGARDING THE PRODUCTS, INCLUDE WITHOUT LIMITATION, ANY INFORMATION INCLUDED IN PRODUCT LISTINGS, AND/OR ANY NUTRITIONAL INFORMATION ABOUT PRODUCTS, FOOD HANDLING AND PREPARATION METHODS (COLLECTIVELY, “PRODUCT INFORMATION”) IS PROVIDED FOR INFORMATIONAL PURPOSES AND PERSONAL USES ONLY. SUCH INFORMATION IS NOT INTENDED TO BE COMPREHENSIVE AND SHOULD NOT BE SUBSTITUTED FOR INFORMATION AVAILABLE FROM APPLICABLE GOVERNMENTAL SOURCES. ON OCCASION, THE MANUFACTURES AND/OR MERCHANTS OF THE APPLICABLE PRODUCTS MAY ALTER THEIR LABELS OR INGREDIENT LISTS, AND ACTUAL PRODUCT PACKAGING AND MATERIALS MAY CONTAIN MORE AND/OR DIFFERENT INFORMATION THAN THAT SHOWN THROUGH THE SERVICES. ACCORDINGLY, YOU SHOULD NOT RELY SOLELY ON THE PRODUCT INFORMATION PRESENTED THROUGH THE SERVICES, BUT SHOULD ALWAYS READ CAREFULLY THE LABELS, WARNINGS, AND DIRECTIONS BEFORE USING OR CONSUMING A PRODUCT. GOLDUNE ASSUMES NO LIABILITY WHATSOEVER FOR INACCURACIES, MISSTATEMENTS, OR OMISSIONS RELATED TO ANY PRODUCT INFORMATION. YOUR USE OF OR RELIANCE UPON ANY PRODUCT INFORMATION IS ENTIRELY AT YOUR OWN RISK, FOR WHICH WE WILL NOT BE LIABLE.
LIMITATION OF LIABILITY. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GOLDUNE BE LIABLE OR OBLIGATED, WITH RESPECT TO THESE TERMS, THE SERVICES (OR ANY PART THEREOF), CONTENT, PRODUCTS, AND ANY OTHER MATERIALS AND/OR SERVICES PROVIDED BY GOLDUNE, WHETHER UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER LEGAL OR EQUITABLE THEORY AND EVEN IF GOLDUNE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITY OR OBLIGATION: (A) IN THE AGGREGATE, FOR ANY AMOUNTS IN EXCESS OF THE GREATER OF THE FEES PAID TO GOLDUNE BY YOU HEREUNDER WITH RESPECT TO THE APPLICABLE PRODUCT PURCHASED BY YOU GIVING RISE TO THE CLAIM OR LIABILITY, OR ONE HUNDRED DOLLARS ($100.00); (B) FOR ANY COST OF PROCUREMENT OF SUBSTITUTE GOODS, TECHNOLOGY, SERVICES OR RIGHTS; (C) FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, RELIANCE, OR CONSEQUENTIAL DAMAGES; (D) FOR INTERRUPTION OF USE OR LOSS OR CORRUPTION OF DATA; OR (E) FOR ANY MATTER BEYOND GOLDUNE’S REASONABLE CONTROL. THE PARTIES AGREE THAT THESE LIMITATIONS SHALL APPLY EVEN IF THESE TERMS OR ANY LIMITED REMEDY SPECIFIED HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. GOLDUNE DISCLAIMS ALL LIABILITY OF ANY KIND OF GOLDUNE’S LICENSORS AND SUPPLIERS.
APPLICATION OF LIMITATIONS AND DISCLAIMERS TO CONSUMERS. Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental or consequential damages with respect to consumers (i.e., a person acquiring goods otherwise than in the course of a business), so the disclaimers, exclusions and limitations set forth in Sections 11 and 12 above may not apply to you if you are a consumer. The limitations or exclusions of warranties and liability contained in these Terms do not affect or prejudice the statutory rights of a consumer. The limitations or exclusions of warranties and remedies contained in these Terms shall apply to you as a consumer only to the extent such limitations or exclusions and remedies are permitted under the laws of the jurisdiction where you are located.
BASIS OF THE BARGAIN. The warranty disclaimer and limitation of liability set forth above in Section 11 and 12 are fundamental elements of the basis of the agreement between Goldune and you. Goldune would not be able to provide the Services on an economic basis without such limitations. The warranty disclaimer and limitation of liability inure to the benefit of Goldune’s suppliers.
THIRD PARTY LINKS AND WEBSITES. The Site may contain links to other third party websites which are not controlled or owned by Goldune (“Linked Sites”). If you decide to access and use such Linked Sites, be advised that your use is governed solely by the terms and conditions of such Linked Sites. GOLDUNE DOES NOT ENDORSE, IS NOT RESPONSIBLE FOR, AND MAKES NO REPRESENTATIONS AS TO SUCH LINKED SITES, THEIR CONTENT OR THE MANNER IN WHICH THEY HANDLE YOUR DATA. GOLDUNE IS NOT LIABLE FOR ANY DAMAGE OR LOSS CAUSED OR ALLEGED TO BE CAUSED BY OR IN CONNECTION WITH YOUR ACCESS OR USE OF ANY SUCH LINKED SITES, OR YOUR RELIANCE ON THE PRIVACY PRACTICES OR OTHER POLICIES OF SUCH LINKED SITES.
AVAILABILITY OF THE SERVICES. Information describing the Services is accessible worldwide but this does not mean the Services, or certain portions thereof, are available in your country. Goldune may restrict access to the Services, or portions thereof, in certain countries in its sole discretion. It is your responsibility to make sure your use of the Services is legal in your country of residence. The Services may not be available or accessible in all languages.
GOVERNING LAW AND DISPUTE RESOLUTION
Governing Law. These Terms shall be governed in all respects by and construed in accordance with the laws of the State of California, without regard to its conflicts of laws principles.
Disputes. Except as otherwise set forth in these Terms, you agree that any dispute between you and Goldune arising out of or relating to these Terms, the Services, Content, Products, and/or any services provided by Goldune hereunder (or any part thereof) (collectively, “Disputes”) shall be governed by the provisions set forth in this Section.
Agreement to Arbitrate. In the interest of resolving Disputes between you and Goldune in the most expedient and cost-effective manner, and except as described in Section 17.8, you and Goldune agree that every dispute arising in connection with these Terms will be resolved by binding individual (not class) arbitration (the “Agreement to Arbitrate”). Arbitration is less formal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, may allow for more limited discovery than in court, and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This Agreement to Arbitrate includes all claims arising out of or relating to any aspect of these Terms, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the termination of these Terms. THIS AGREEMENT TO ARBITRATE MEANS YOU AND GOLDUNE WAIVE YOUR/ITS RESPECTIVE RIGHTS TO A JURY TRIAL. THERE IS NO JUDGE OR JURY IN ARBITRATION, AND COURT REVIEW OF AN ARBITRATION AWARD IS LIMITED.
Opting-Out of Arbitration. If you do not wish to resolve disputes by binding arbitration, you may opt out of the Agreement to Arbitrate within 30 days after the date that you agree to these Terms by sending a letter to Goldune, Inc., Attention: Arbitration Opt-Out, P.O. Box 93_, 7615 Stage Road, San Gregorio, California 94074, that specifies: your full legal name, the email address used to register an Account (if applicable), and a statement that you wish to opt out of arbitration (“Opt-Out Notice”). Once Goldune receives your Opt-Out Notice, the Agreement to Arbitrate will be void and the parties agree that the exclusive jurisdiction and venue described in Section 17.10 will govern any action arising out of or related to these Terms. The remaining provisions of this Section 17 will not be affected by your Opt-Out Notice.
Arbitration. Any arbitration between you and Goldune will be settled under the Federal Arbitration Act and administered by the American Arbitration Association (“AAA”) under its Consumer Arbitration Rules (collectively, “AAA Rules”) as modified by this Section 17.5. You and we agree that the following rules will apply to the proceedings: (a) the arbitration will be heard and determined by a single, neutral arbitrator selected in accordance with the AAA Rules; (b) the arbitration will be conducted by telephone, online, or based solely on written submissions (at the choice of the party seeking relief); (c) the arbitration must not involve any personal appearance by the parties or witnesses (unless we and you agree otherwise); and (d) any judgment on the arbitrator’s rendered award may be entered in any court with competent jurisdiction. All arbitration proceedings between the parties will be confidential unless otherwise agreed by the parties in writing. During the arbitration, the amount of any settlement offer made by you or Goldune must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the arbitrator awards you an amount higher than the last written settlement amount offered by Goldune in settlement of the dispute prior to the award, Goldune will pay to you the higher of: (i) the amount awarded by the arbitrator; or (ii) $1,000 USD.
Notice of Arbitration; Instituting Proceedings. A party who intends to seek arbitration must first send a written notice of the dispute to the other party by certified U.S. Mail or by Federal Express (signature required) or, only if that other party has not provided a current physical address, then by electronic mail (“Notice”). Goldune’s address for Notice is: Goldune, Inc., P.O. Box 93, 7615 Stage Road, San Gregorio, California 94074. The Notice must: (a) describe the nature and basis of the claim or dispute; and (b) set forth the specific relief sought (“Demand”). You and Goldune agree to use good faith efforts to resolve the claim directly, but if we do not reach an agreement to do so within 30 days after the Notice is received, you or Goldune may commence an arbitration proceeding, as set forth above. A party electing arbitration must initiate proceedings by filing an arbitration demand with the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Goldune. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.
Fees. If you commence arbitration in accordance with these Terms, Goldune will reimburse you for your payment of the filing fee, unless your claim is for more than $10,000 USD, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Santa Clara County, California, but if the claim is for $10,000 USD or less, the Dispute must be resolved exclusively through binding non-appearance-based arbitration. Disputes that involve a claim of more than $10,000 USD must be resolved per the AAA’s rules about whether the arbitration hearing has to be in-person. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Goldune for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within fourteen (14) days of the arbitrator’s ruling on the merits.
Exception to Arbitration. Notwithstanding anything in these Terms to the contrary to the extent you have in any manner violated or threatened to violate any of Goldune’s intellectual property rights, Goldune may seek injunctive or other appropriate relief in any state or federal court with competent jurisdiction in any country, including in the State of California, United States of America, without first engaging in arbitration or the informal dispute process set forth in this Section, and you hereby consent to the personal jurisdiction and exclusive venue in such courts. In addition, despite the Agreement to Arbitrate, nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (a) bring an individual action in small claims court; (b) pursue an enforcement action through the applicable federal, state, or local agency if that action is available; or (c) seek injunctive relief in a court of law in aid of arbitration.
No Class Actions. YOU MAY ONLY RESOLVE DISPUTES WITH GOLDUNE ON AN INDIVIDUAL BASIS, AND MAY NOT BRING A CLAIM AS A PLAINTIFF OR A CLASS MEMBER IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION. CLASS ARBITRATIONS, CLASS ACTIONS, PRIVATE ATTORNEY GENERAL ACTIONS, AND CONSOLIDATION WITH OTHER ARBITRATIONS AREN'T ALLOWED UNDER THESE TERMS.
Enforceability; Venue. If the Agreement to Arbitrate is found not to apply to your or our claim, you and Goldune agree that any judicial proceeding will be brought in the federal or state courts located in Santa Clara County, California. Both you and Goldune consent to venue and personal jurisdiction there.
Time Limitation to Bring Claims. Notwithstanding any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site, Marketplace and/or any services provided by Goldune hereunder must be filed within one (1) year after such claim or cause of action arose, otherwise that claim or cause of action will be barred forever.
GENERAL. Neither the rights nor the obligations arising under these Terms are assignable by you, and any such attempted assignment or transfer shall be void and without effect. Any waiver of any provision of these Terms must be in writing and executed by both parties. The failure of either party to exercise any right provided for by these Terms shall not be deemed a waiver of that right. If any term or provision of these Terms is determined to be illegal, unenforceable, or invalid in whole or in part for any reason, that provision shall be stricken from these Terms and shall not affect the legality, enforceability or validity of the remainder of the provisions set forth in these Terms. The parties acknowledge and agree that they are dealing with each other as independent contractors and nothing in these Terms and/or its performance shall be construed as creating a joint venture or agency between Goldune and you. Goldune may delegate the performance of any services hereunder to its affiliates and contractors. These Terms, the Privacy Notice, any Additional Terms and any other policies or terms and condition referenced herein, constitute the entire agreement between the parties regarding the subject matter, and supersedes all prior oral or written agreements or communications with regard to the subject matter described. Any notice to you may be provided by email. The headings of Sections of these Terms are for convenience and are not to be used in interpreting these Terms. As used in these Terms, the word “including” means “including but not limited to.” You agree that these Terms will not be construed against Goldune by virtue of having drafted them. The official text of these Terms (and any notice submitted hereunder) will be in English. The parties acknowledge that they require that these Terms be drawn up in the English language only. In the event of any dispute concerning the construction or meaning of these Terms, reference will be made only to these Terms as written in English and not to any translation into another language. Any delay in performance of any duties or obligations of either party will not be considered a breach of these Terms if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, telecommunications or Internet failure, plague, epidemic, pandemic, outbreaks of infectious disease or any other public health crisis, including quarantine or other employee restrictions, or any other event beyond the reasonable control of such party.
QUESTIONS AND ADDITIONAL INFORMATION. Please feel free to contact us at email@example.com if you have any questions about these Terms.
©2020 GOLDUNE, INC. ALL RIGHTS RESERVED.