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Effective Date: November 1st, 2022
These terms of service (these “Terms”) governs your use of our Worry-Free Purchase (the “Service”). “We” or “us” or “our” or “Seel” means Seel, Inc., a Delaware corporation. “You” or “your” means the person indicating acceptance of these Terms or using the Service.
NOTE: THESE TERMS INCLUDE YOUR AGREEMENT TO ARBITRATE MOST DISPUTES AS WELL AS A CLASS ACTION WAIVER, WHICH EACH AFFECT YOUR RIGHTS. PLEASE SEE SECTION 8.
YOUR PURCHASE OF THE SERVICE INDICATES YOUR ACCEPTANCE OF THESE TERMS.
1. USE OF THE SERVICE.
1.1 General.
The Service predicts the delivery date of the order from the merchant who made the Service available to you for purchase (each, a “Merchant”) and entitles you to a lump-sum compensation in the case of the delivery of order later than the predicted date pursuant to the standard set out in an applicable instruction.
1.2 Instructions.
In the event that you wish to get compensated, you will follow the instructions made available by the applicable Merchant for the Service.
2. CHANGE TO THE TERMS.
We may add to, change or remove any part of these Terms, at any time without prior notice to you other than listing of a later effective date than the one set forth at the top of these Terms. Such modification shall be effective immediately upon posting a notification within the Service or by contacting you via email at the address you provided. As your next use of the Service may be governed by different Terms, we encourage you to look for a new effective date on these Terms when you use the Service. It is your responsibility to check these Terms periodically for changes. Your use or continued use of the Service following the posting or notice of any changes to these Terms shall constitute your acceptance of the changed Terms.
3. FEES.
The fee for using the Service will be displayed when you are making your purchase of the Goods from the Merchant, and you shall timely pay such fee. We reserve the right to charge for or change the fees associated with use of the Service at any time subject to these Terms.
4. DATA.
We use your data in accordance with our privacy policy. Please consult the applicable Merchant’s privacy policies for how it collects, stores and uses your data. You acknowledge that use of the Service involves transmission of Your Data and other communications over the Internet and other networks, and that such transmissions could potentially be accessed by unauthorized parties.
5. DISCLAIMERS.
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. DO NOT MAKE ANY ADDITIONAL REPRESENTATION OR WARRANTY OF ANY KIND WHETHER EXPRESS, IMPLIED (EITHER IN FACT OR BY OPERATION OF LAW), OR STATUTORY, AS TO ANY MATTER WHATSOEVER. WE EXPRESSLY DISCLAIM ALL IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUALITY, ACCURACY, TITLE, AND NON-INFRINGEMENT. WE DO NOT WARRANT AGAINST INTERFERENCE WITH THE ENJOYMENT OF THE SERVICE. WE DO NOT MANUFACTURE THE GOODS AND HAVE NO CONTROL OVER THE GOODS OR THE MERCHANT. WE EXERCISE NO CONTROL OVER AND EXPRESSLY DISCLAIM ANY LIABILITY ARISING OUT OF OR BASED UPON THE RESULTS OF USE OF THE SERVICE.
6. INDEMNIFICATION.
You agree to defend, indemnify and hold us, our affiliate companies, and each of our respective directors, officers, employees, contractors, agents, successors and assigns harmless from any claim or demand, including reasonable attorneys’ fees, arising out of or relating to (i) any violation of these Terms by you; (ii) any information, content or material you provide as part of receiving the Service, including but not limited to any inaccuracies or fraudulent information; (iii) your violation of any applicable laws or rights of another; (iv) your negligent or more culpable conduct; (v) a dispute between you and the Merchant; or (vi) your use of the Service. We may, at our own expense, elect to assume the exclusive defense and control of any third party claim otherwise subject to defense by you. You may not settle or compromise any claim subject to this section without our prior written consent in our sole discretion.
7. LIMITATIONS OF LIABILITY
7.1 Disclaimer of Indirect Damages.
UNDER NO CIRCUMSTANCES WILL WE, OUR AFFILIATES, EMPLOYEES, OFFICERS, AGENTS, REPRESENTATIVES, LICENSORS OR OTHER THIRD PARTY PARTNERS (“SEEL PARTIES”) BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF THE SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY; INCLUDING WITHOUT LIMITATION DAMAGES RESULTING FROM PERSONAL INJURY, DEATH, LOST PROFITS, LOST DATA, LOSS OF BUSINESS OR BUSINESS INTERRUPTION, WHETHER DIRECT OR INDIRECT, ARISING OUT OF THE USE, INABILITY TO USE, OR THE RESULTS OF USE OF OUR SERVICE, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR ANY OTHER LEGAL THEORY.
7.2 Cap on Liability.
TO THE EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES WILL ANY SEEL PARTIES’ TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS (INCLUDING BUT NOT LIMITED TO WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, EXCEED THE GREATER OF (A) TOTAL AMOUNTS PAID BY YOU FOR THE SERVICE OR (B) ONE HUNDRED DOLLARS ($100).
7.3 Claims Period Limitation.
You agree any cause of action arising out of or related to the use of our Service must be commenced within one (1) year after the cause of action accrues, or such action will be permanently barred.
7.4 Exception.
Some states or jurisdictions may not allow the exclusion or the limitation of liability. In such states or jurisdictions, the Seel Parties’ liability to you shall be limited to the full extent permitted by law.
7.5 Independent
Allocations of Risk. Each provision of these terms that provides for a limitation of liability, disclaimer of warranties, or exclusion of damages is to allocate the risks of these terms between the parties. This allocation is reflected in the pricing offered by us to you and is an essential element of the basis of the bargain between the parties. Each of these provisions is severable and independent of all other provisions of these terms. The limitations in this section 7 will apply notwithstanding whether certain damages or losses were foreseeable or the failure of essential purpose of any limited remedy in these terms.
8. ARBITRATION AGREEMENT
8.1 Mandatory Arbitration; Exceptions and Opt-Out.
You agree that any dispute, claim or controversy arising out of or relating to these Terms or the Service (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). You will also have the right to litigate any other Dispute if you provide us with written notice to opt out of arbitration (“Arbitration Opt-out Notice”) by email at support@seel.com within thirty (30) days following the date you first accept these Terms, or if you have not registered for an account, then within thirty (30) days following the date you first use our Service. If you don’t provide us with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide us with an Arbitration Opt-out Notice, will be the state and federal courts located in the Northern District of Georgia and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide us with an Arbitration Opt-out Notice, you acknowledge and agree that you are waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
8.2 No Class Actions.
Further, unless we otherwise agree in a writing signed by an authorized representative, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If a decision is issued stating that applicable law precludes enforcement of any limitations set forth in this agreement to arbitrate on the right to arbitrate claims on a class or representative basis, or as part of a consolidated proceeding, as to a given claim for relief, then that claim (and only that claim) must be severed from the arbitration and brought in the state or federal courts located in the Northern District of California. All other claims will be arbitrated.
8.3 Rules.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Arbitration Agreement” section. (The AAA Rules are available at https://www.adr.org/Rules or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
8.4 Arbitration Process.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. AAA provides a general form for a Demand for Arbitration and may provide a separate form for Demand for Arbitration for residents of a particular state, such as California. The arbitrator will be either a retired judge or an attorney licensed to practice law with at least 15 years of experience and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
8.5 Arbitration Location and Procedure.
Unless you agree with us otherwise, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that are submitted to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
8.6 Arbitrator’s Decision.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses to the extent provided under applicable law. We will not seek, and hereby waive all rights we may have under applicable law to recover, attorneys’ fees and expenses if we prevail in arbitration.
8.7 Fees.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, we will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
8.8 Changes.
Notwithstanding anything to the contrary in these Terms, if we change this “Arbitration Agreement” section after the date you accepted these Terms or access our Service, you may reject any such change by sending us written notice (including by email to support@seel.com) within 30 days of the date such change became effective, as indicated in the “Effective Date” listed at the beginning of these Terms or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and us in accordance with the provisions of this “Arbitration Agreement” section as of the date you accepted these Terms, or accessed our Service.
9. CONSENT TO ELECTRONIC COMMUNICATIONS
9.1 Consent.
You agree that Seel may send the following to you by email or by posting them on our website and mobile application: legal disclosures; these Terms; Privacy Policy; future changes to any of the foregoing; and other notices, policies, communications or disclosures and information related to the Services. You agree that Seel may contact you via email, phone, text, or mail regarding the Service. You consent to receive such communications electronically. You agree to update your contact information to ensure accuracy. Your consent to conduct actions electronically covers all interactions between you and Seel.
9.2 Updating your Consent.
If you later decide that you do not want to receive certain future communications electronically, please send an email to support@seel.com. You may also opt out of certain electronic communications through your account or by following the unsubscribe instructions in any communication you receive from Seel. Your withdrawal of consent will be effective within a reasonable time after we receive your withdrawal notice described above. Seel will need to send you certain communications electronically regarding the Service. You will not be able to opt out of those communications – e.g., communications regarding updates to the Terms or information about billing. Your withdrawal of consent will not affect the legal validity or enforceability of the Terms provided to and accepted by, you. If you withdraw your consent to receive communications electronically, aspects of the Service may become unavailable to you.
10. GENERAL PROVISIONS
10.1 Relationship.
We will be and act as an independent contractor (and not as the agent or representative of you) in the performance of these Terms.
10.2 Assignment and Delegation.
You may not assign any of your rights or delegate any of your obligations under these Terms (in whole or in part) without our prior written consent. We may voluntarily, involuntarily, or by operation of law assign any of our rights or delegate any of our obligations under these Terms without your consent. Any purported assignment or delegation in violation of this Subsection will be null and void.
10.3 Notices.
Any notice required or permitted to be given in accordance with these Terms will be effective if it is in writing and sent by certified or registered mail, or overnight courier, return receipt requested, to the appropriate party at the address at the address provided by the other party and with the appropriate postage affixed. Either party may change its address for receipt of notice by notice to the other party in accordance with this Subsection. Notices are deemed given two business days following the date of mailing or one business day following delivery to a courier.
10.4 Force Majeure.
We will not be liable for, or be considered to be in breach of or default under these Terms on account of, any delay or failure to perform as required by these Terms as a result of any cause or condition beyond our reasonable control.
10.5 Governing Law.
These Terms will be interpreted, construed, and enforced in all respects in accordance with the local laws of the State of California, U.S.A., without reference to its choice of law rules and not including the provisions of the 1980 U.N. Convention on Contracts for the International Sale of Goods.
10.6 No Third-Party Beneficiaries.
There are no third-party beneficiaries to these Terms.
10.7 Waiver.
Failure, neglect, or delay by a party to enforce the provisions of these Terms or its rights or remedies at any time, will not be construed as a waiver of the party’s rights under these Terms and will not in any way affect the validity of the whole or any part of these Terms or prejudice the party’s right to take subsequent action. Exercise or enforcement by either party of any right or remedy under these Terms will not preclude the enforcement by the party of any other right or remedy under these Terms or that the party is entitled by law to enforce.
10.8 Severability.
If any part of these Terms is found to be illegal, unenforceable, or invalid, the remaining portions of these Terms will remain in full force and effect. If any material limitation or restriction on the use of the Service under these Terms is found to be illegal, unenforceable, or invalid, your right to use the Service will immediately terminate.
10.9 Headings; Drafter.
Headings are used in these Terms for reference only and will not be considered when interpreting these Terms. No presumption against the drafter of these Terms shall apply.
10.10 Entire Agreement.
These Terms contain the entire agreement of the parties with respect to the subject matter of these Terms and supersede all previous communications, representations, understandings, and agreements, either oral or written, between the parties with respect to said subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, supplement, or alter the terms of these Terms.