TERMS & CONDITIONS
Last Updated: June 4, 2019
Thank you for using the website and associated content (hereinafter “Website”), which is owned, operated, or licensed by LIST Company, Inc. (“Company”). Company provides you with a limited license to use the Website subject to the terms and conditions contained within this Terms of Service Agreement (hereinafter “Agreement”).
YOU HAVE A DUTY TO READ THIS TERMS OF SERVICE AGREEMENT.
By using the Website, you manifest your assent and agree to be bound by this Agreement. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. Company reserves the right to suspend, replace, modify, amend, or terminate this Agreement at any time and within its sole and absolute discretion. In the event Company replaces, modifies, or amends this Agreement, the Last Updated date, located at the top of this Agreement, will change. Your continued use of the Website after a change in the Last Updated date above will constitute your manifestation of assent to and agreement with any replacement, modification, or amendment herein.
THIS TERMS OF SERVICE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND A CLASS ACTION WAIVER THAT AFFECT YOUR LEGAL RIGHTS. YOU HAVE A DUTY TO READ THIS AGREEMENT AND THE ARBITRATION PROVISION AND CLASS ACTION WAIVER CONTAINED WITHIN. IF YOU DO NOT AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT, ITS ARBITRATION PROVISION, OR ITS CLASS ACTION WAIVER, YOU MUST IMMEDIATELY DISCONTINUE YOUR USE OF THE SERVICES.
a. User Warranties
By using the Website, you warrant that you are age eighteen (18) or above the age of majority within your legal jurisdiction, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you have actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity.
b. Limited License
You acknowledge and agree that the Website is the property of or is licensed by Company and is protected under United States and international law, including, but not limited to, intellectual property laws and other personal and proprietary rights. You acknowledge and agree that your use of the Website is limited by the license granted under the terms of this Agreement, and you expressly agree that you will not use the Website in any manner not expressly authorized under the terms of this Agreement. Company reserves all of rights not expressly granted through this Agreement.
Company provides you with limited, non-exclusive, non-sublicensable, non-assignable, revocable, and royalty free license to use the Website for its customary and intended purposes. You are expressly prohibited from reproducing, preparing derivative works of, distributing copies of, publicly performing, and publicly displaying the Website.
c. Acceptable Use Policy
You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. Additionally, you are expressly prohibited from scraping, crawling, aggregating, hacking, performing denial of service attacks on, reverse engineering, or circumventing technological protection measures of the Website.
d. Ordering and Payment
Payment for all orders placed through the website must be made at the time of ordering. You understand and agree that the prices quoted on the Website are an invitation to deal and that no contract will be formed between you and Company until Company accepts your invitation to deal by performance, specifically, by shipping the ordered goods. You agree that you will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your use of the Website or purchase of goods through the Website. All costs and fees are quoted and payable in United States Dollars and you acknowledge and agree that Company is not responsible for any foreign transaction fees or other fees charged to you by your financial institution or by Company’s payment processor. You agree that you will not initiate any chargebacks to Company unless otherwise authorized by Company in writing. You understand and agree that you will be responsible and required to pay for any costs associated with any chargebacks that you have initiated against Company.
All purchases made through the Website are subject to Company’s Return and Shipping Policies, which are posted on the Website, are hereinafter incorporated by reference, and may be modified at any time and within Company’s sole and absolute discretion.
e. Product Availability and Pricing
While Company strives to carry or have regular access to sufficient inventory, it is possible high volume or rare products are out of stock at the time of your order. Similarly, though Company strives to display accurate pricing on the Website, from time to time pricing may be inaccurate or subject to change due to mistake or availability. If this is the case, Company will contact you in a reasonable time frame and before shipping your order to advise you of the unavailability of a product or a change in price.
All shipments will be made consistent with Company’s Shipping Policy, which is hereinafter incorporated by reference and may be changed at any time and within Company’s sole and absolute discretion.
To return products, you must comply with Company’s Return Policy and Procedure, which is listed on the Website and may be changed at any time and within Company’s sole and absolute discretion. You may return any item, for any reason, at any time, up to one year from your order date. Company will replace damaged items free of charge. All returned items must be unused, in brand-new condition and returned in the original packaging. You are responsible for all shipping charges to return the product. Upon accepting your return, Company may issue a refund in the full amount of the product. Shipping and handling charges, along with customized and engraved items, are not refundable. Failure to comply with Company’s Return Policy and Procedure may result in the denial or reduction of your request for a return or refund.
h. Changed and Cancelled Orders
Should you wish to change or cancel an order, you must do so prior to shipping. Any change or cancellation requests that occur after shipping will be processed as a return or refund and handled consistent with Company’s Return Policy and Procedure.
You agree that you will pay all applicable taxes or charges imposed by any governmental entity anywhere in the world in connection with your purchase of products through the Website, including, but not limited to, all sales and use taxes. You understand and agree that you may be responsible for the payment of use taxes depending on the taxing jurisdiction in which you live, typically, but not necessarily, when Company does not charge you sales tax. You are advised to review the tax laws applicable to your purchase of products through the Website and you warrant that you will pay all applicable taxes when due.
j. User Accounts
Company may provide you with the ability to create a user account, which may provide you with the ability to view messages, view order status, and see recently viewed and purchased items through the Website (hereinafter “User Account”).
You acknowledge and agree that you control access to your User Account. Your User Account may only be used by you or by third parties with your express written consent. Company will not be held responsible or liable for any unauthorized access to your User Account, and you are under a continuing duty to promptly provide Company with notice of any unauthorized or unusual access to your User Account. You are advised to keep the username and password associated with your User Account secure and secret. By creating a User Account and providing your personal information to Company, you acknowledge and agree that Company may use your personal information to contact you.
Company reserves the right to suspend or terminate your User Account at any time and in its sole and absolute discretion, including, but not limited to, for a violation of any term or condition of this Agreement.
k. ADA Website Accessibility Policy
We are happy to accommodate users with special needs or requirements. Company is committed to providing its employees and the public, including persons with disabilities, with access to the Website and its related information and services. In designing the website, Company makes reasonable efforts to comply with the WCAG 2.0 Level AA web accessibility standards. The Website has been designed to reach the widest audience possible, but, if you have difficulty viewing the Website, using the Website, or performing any transaction through the Website, you are encouraged to contact Company at 800-928-6175.
l. Third Party Links
You acknowledge and agree that the Website may contain links to third party websites or content that Company does not own or control. You are advised to review the terms and conditions of any third-party websites or content linked to through the Website, and you agree that Company will not be responsible for websites not under the ownership or control of Company.
m. Term and Termination
The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) Company terminates your access to the Website; or (ii) you cease using the Website and terminate your User Account. Company reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice.
You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on the Website by Company are common law or registered trademarks owned by or licensed to Company. You are expressly prohibited from using the trademarks of Company to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of your goods or services. You are further prohibited from using the trademarks of Company in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.
o. Disclaimer of Warranties and Limitation of Liability
YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT COMPANY WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT COMPANY’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1,000, WHICHEVER IS LESS.
COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY DAMAGE, INJURY, HARM, COST, EXPENSE, OR LIABILITY ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE. EXCEPT FOR THE WARRANTIES SPECIFICALLY STATED IN THIS AGREEMENT, PRODUCTS PURCHASED THROUGH THE WEBSITE ARE PROVIDED WITHOUT EXPRESS, IMPLIED, OR STATUTORY WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PUPOSE, TITLE, ACCURACY, NON-INFRINGEMENT, OR QUALITY. SOME JURISDICTIONS DO NOT ALLOW AN EXCLUSION OF IMPLIED WARRANTIES. IF YOU ARE LOCATED IN SUCH A JURISDICTION, YOU ARE ADVISED TO SEEK LEGAL ADVICE TO DETERMINE IF THIS EXCLUSION APPLIES TO YOU.
COMPANY WILL NOT BE LIABLE TO YOU UNDER ANY LEGAL THEORY, WHETHER IN WARRANTY, CONTRACT, STRICT LIABILITY, TORT, OR NEGLIGENCE, FOR ANY DAMAGES, CLAIMS, INJURIES, JUDGMENTS, COSTS, OR LIABILITIES OF ANY KIND ARISING OUT OF OR RELATED TO YOUR USE OR MISUSE OF PRODUCTS PURCHASED THROUGH THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, PERSONAL INJURY, DAMAGE TO PROPERTY, LOSS OF BUSINESS, LOSS OF INCOME, SPECIAL DAMAGES, INCIDENTAL DAMAGES, CONSEQUENTIAL DAMAGES, PUNATIVE DAMAGES, OR EXEMPLARY DAMAGES, WHETHER FORESEEABLE OR UNFORESEEABLE. YOU ACKNOWLEDGE THAT YOUR USE OF PRODUCTS PURCHASED THROUGH THE WEBSITE IS AT YOUR SOLE RISK AND THAT COMPANY’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID FOR THE PRODUCTS OR $1,000, WHICHEVER IS LESS.
You agree to indemnify, defend, and hold harmless Company, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys’ fees, arising out of or related to (i) your use of the Website, (ii) your purchase of products through the Website; (iii) your use or misuse of products obtained through the Website; (iv) your violation of any representation, warranty, term, or condition of this Agreement; (v) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (vi) your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Company will not provide you with the ability to control Company’s defense, and Company reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.
q. Choice of Law and Stipulation to Jurisdiction
You and Company agree that any dispute, claim or controversy arising out of or in relation to your use of the Website, this Agreement, or the applicability, breach, termination, validity, enforcement, or interpretation thereof, will be settled by binding individual arbitration. If there is a dispute about whether this arbitration clause can be enforced or applies to the dispute between you and Company, you and Company agree that the arbitrator will decide that issue. Notwithstanding the foregoing, you and Company each agree that any claim related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights will not be subject to this arbitration clause or arbitration. However, all claims related to actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or intellectual property rights will be interpreted under South Carolina law and will be heard exclusively in the state and federal courts located in Greenville, South Carolina.
You and Company agree that the Federal Arbitration Act will govern the interpretation and enforcement of this arbitration provision. The arbitration will be administered under American Arbitration Association’s most recent Commercial Arbitration Rules then in effect except where as modified herein. The arbitration will be conducted in Greenville, South Carolina and will be decided by a single arbitrator randomly selected from a list of neutral arbitrators maintained by the American Arbitration Association. Judgment on any award rendered by the arbitrator may be entered in any court having jurisdiction. The arbitrator will be provided with the right to award costs and attorneys’ fees to the prevailing Party. This arbitration will be held in Greenville, South Carolina and both parties agree that they will be required to be present in Greenville, South Carolina for arbitration under the terms of this Agreement and hereby submit to exclusive personal jurisdiction in Greenville, South Carolina. The arbitrator will apply the laws of the State of South Carolina and the federal laws of the United States in deciding any controversy or claim pursuant to this arbitration clause.
You and Company acknowledge and agree that each are waiving the right to a trial by jury as to all arbitrable disputes.
You and Company acknowledge and agree that, to the fullest extent permitted under the law, each are waiving the right to participate as a plaintiff or class member in any class action lawsuit, class arbitration, or private attorney general action. If this class action waiver is held unenforceable with respect to the dispute between the Parties, the Parties agree that the entirety of the arbitration clause will be deemed void with respect to such dispute and the dispute must proceed in court
r. Force Majeure
Company will not be responsible for any delay or failure in performance of the Website or its associated products arising out of any cause beyond Company’s control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.
The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your User Account, or the Website, including, but not limited to, your duty to indemnify and defend Company.
In the event any term or condition of this Agreement is deemed invalid or unenforceable, the remaining terms and conditions of this Agreement will remain in full force and effect.
This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
You are expressly prohibited from assigning your rights and duties under this Agreement. Company reserves the right to assign its rights and duties under this Agreement, including in a sale of Company or its Website.