TERMS OF SERVICE
Date of Last Revision: May 26, 2020.
GearUp LLC. (“GearUp,” “we,” “us,” and/or “our”) provides its services (described below) to you through its mobile applications and other software made available by GearUp (“Software”) and its website located at http://www.gearupcamera.com (the “Site”) (collectively, such services, Software and the Site, collectively, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, these “Terms of Service”). We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time without further notice. You should periodically visit this page to review the current Terms of Service so you are aware of any revision to which you are bound. If we do this, we will post the changes to these Terms of Service on this page and will indicate at the top of this page the date these terms were last revised. We will also notify you, either through the Services user interface, in an email notification or through other reasonable means. Any such changes will become effective for existing users no earlier than ten (10) days after they are posted, except that changes addressing new functions of the Services or changes made for legal reasons will be effective immediately. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service.
PLEASE READ THESE TERMS CAREFULLY AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS. PLEASE INDICATE YOUR ACCEPTANCE TO THESE TERMS IN ACCORDANCE WITH THE INSTRUCTIONS PROVIDED BY GEARUP. INDICATING ACCEPTANCE ESTABLISHES A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN YOU AND GEARUP. IF YOU DO NOT ACCEPT THESE TERMS, YOU CANNOT USE THE SERVICE.
Access and Use of the Service
Member Account, Password, and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify GearUp of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. GearUp will not be liable for any loss or damage arising from your failure to comply with this Section.
Modifications to Service: GearUp reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that GearUp shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
General Practices Regarding Use and Storage: You acknowledge that GearUp may establish general practices and limits concerning use of the Service. You agree that GearUp has no responsibility or liability for the deletion or failure to store any data or other content maintained or transmitted by the Service. You acknowledge that GearUp reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that GearUp reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.
Mobile Services: When you access the Service through a mobile device, your wireless service carrier’s standard charges, data rates, and other fees may apply. In addition, downloading, installing, or using certain mobile services may be prohibited or restricted by your carrier, and not all mobile services may work with all carriers or devices. You acknowledge and agree that your use of the Service must be in accordance with the usage rules established by your mobile device platform or service provider.
Conditions of Use
User Conduct: You are solely responsible for all descriptions, pictures of items, listings, information, data, text, software, music, sound, graphics, video, messages or other materials (“content”) that you upload, post, publish or display (hereinafter, “post”) or otherwise transmit via the Service, and for all items that you sell or purchase via the Service. The following are examples of the kind of items, content and/or use that is illegal or prohibited by GearUp. GearUp reserves the right to investigate and take appropriate legal action against anyone who, in GearUp’s sole discretion, violates this provision, including without limitation, removing the offending items or content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:
- sell, post or otherwise transmit any item or content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable; (ii) you do not have a right to sell or transmit under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vii) in the sole judgment of GearUp, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose GearUp or its users to any harm or liability of any type;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services other than those items intended to be sold and purchased through the Service;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- engage in any activities that violate the Telephone Consumer Protection Act, 47 U.S.C. § 227 et seq. and its regulations at 47 C.F.R. § 64.1200; the Do-Not-Call Implementation Act, 15 U.S.C. § 6101 et seq.; or any similar anti-spam, data protection, or privacy legislation in any jurisdiction;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Special Notice for International Use; Export Controls: Software available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No Software may be downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.
Purchase and Sale Transactions
Fees; Transactions: Registering for the Service is free; however, GearUp charges certain fees for various transactions effected through the Service. Unless otherwise stated, all fees are quoted in U.S. Dollars. In addition to the payment of the applicable purchase price for a purchased item, buyers are responsible for paying all shipping costs to GearUp and all applicable sales, excise, import, export, VAT, and other taxes or duties associated with the purchase and sale of any items through the Service. All such shipping costs and taxes are not included in the listed price for any items made available from sellers through the Service, but will be displayed to buyers before confirmation of any purchase. Sellers are responsible for all income taxes associated with the purchase and sale of any items through the Service. For clarity, all shipping costs paid will be retained by GearUp.
Taxes; Shipping Costs; Buyer Responsibility: Items purchased by and shipped to Buyers in locations in the U.S. may be subject to applicable state or local sales or use tax, privilege tax or similar transaction-based taxes (“State Tax”). Items purchased by and shipped to Buyers in locations outside the U.S. may also be subject to applicable taxes, including value added taxes (collectively with State Tax, “Taxes”). The amount of Taxes is based on a number of factors, including but not limited to the type of Items purchased, the Buyer’s designated delivery address, and/or the location of the Seller. Buyers are responsible for paying the applicable purchase price for a purchased Item to the Seller, as well as any shipping costs (which are detailed in the Fee Policy) and paying applicable Taxes and/or duties associated with the purchase and sale of any Items through the Service. For Buyers in the U.S., the rate of Tax applied to purchases of taxable Items is a combined rate based on the state and local rates of the address where the Items are delivered to or shipped from. Tax and shipping costs are not included in the listed price for any Items listed by Sellers through the Service but will be displayed to Buyers before confirmation of any purchase. Estimated Taxes: When a Buyer chooses to make an offer an estimated amount of Tax will be displayed. The estimated amount of Taxes is an estimate of applicable Taxes based on several factors, including the offer price, Buyers designated delivery address and rates of Taxes in effect at that time. If the offer price is accepted, the amount a Buyer is charged will include the amount of estimated Taxes displayed when the offer is submitted. If there is a counteroffer from the Seller, the amount a Buyer is charged will include the amount of estimated Taxes displayed when the counteroffer is accepted. The amount of Taxes may change and be updated when the order is finalized and completed through the Service. Marketplace Collection; Taxes; Commissions; Seller Responsibility: GearUp will collect Taxes from Buyers on behalf of Sellers where we may legally do so. This includes those states that have enacted legislation that requires marketplaces, like GearUp, to collect Taxes on behalf of sellers. In these states, the amount of Taxes collected will be submitted by GearUp to the appropriate taxing authority on behalf of Sellers. Sellers are responsible for paying GearUp’s commission as well as all taxes that are not collected through the Service, which could be separately imposed or measured by Seller’s net income, net profits, income, profits, and/or revenues associated with the sale of any items through the Service. Payments: Buyers may pay for Items using credit cards or other payment methods. If you submit your payment information through the Service, then you authorize GearUp to store that payment information and charge your payment method for any item you purchase.
Fee Modifications: We reserve the right to change or discontinue, temporarily or permanently, some or all of the fees for the Service (including to lower fees for promotional events), and such changes are effective when we post information about the fee change through the Service. Additionally, we may change our Fees at any time and in our sole discretion, and any changes to the Fees are effective upon the posting of such changes to the FAQs.
The Service is only a Venue and GearUp is not affiliated with or endorsed by any manufacturer or brand of the items that users buy or sell on GearUp’s marketplace: The Service acts as an open marketplace for users to interact with other users to buy and sell camera and tech items. GearUp only provides a service, and is not involved in any transaction between buyers and sellers who use the Service, does not obtain title to any purchased items and does not act as the buyer or seller (or agent for buyers or sellers) with respect to any such transactions. GearUp is not affiliated with or endorsed by any manufacturer or brand of the items that users buy or sell on GearUp’s marketplace. There are risks that you assume when dealing with other users (including those who may be acting under false pretenses). You agree that all of these risks are borne by you, and not GearUp. GearUp does not control the behavior of users of the Service or the information or other content provided by other users that is made available through the Service. As a result, GearUp does not guarantee or endorse the authenticity, quality, safety, or legality of any items offered or sold, the truth or accuracy of any listings, or the ability of sellers to sell items or of buyers to buy items. We cannot assure that all transactions will be completed. Additionally, GearUp does not guarantee the ability or intent of users to fulfill their obligations in any transactions. GearUp reserves the right to delay the completion of any transaction for a reasonable period of time for purposes of fraud detection and otherwise protecting GearUp and its users from illegal or wrongful activities.
FOR EVERY TRANSACTION THAT IS COMMENCED THROUGH THE SERVICE, YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION REGARDING THE STATEMENTS, PRODUCT DESCRIPTIONS OR THE REPRESENTATIONS OF THE OTHER PARTY AND THE PARTY’S ABILITY TO PAY FOR OR DELIVER THE ITEM(S) OFFERED. PLEASE USE CAUTION, COMMON SENSE, AND PRACTICE SAFE TRADING WHEN DEALING WITH OTHER USERS OR OTHERWISE USING THE SERVICE.
Listing Restrictions: GearUp prohibits the listing or sale of any item that is illegal to sell under any applicable law, statute, ordinance, or regulation.
Item Comment System: User authentication on the Internet is difficult. GearUp may attempt, but is under no obligation, to independently confirm a user’s purported identity. Therefore, we have established a direct message system to help you evaluate the user with whom you are dealing. We also encourage you to communicate directly with potential buyers or sellers through the features available through the Service.
Selling: You must have the right to sell the items that you are listing for sale through the Service. You must describe your item and all terms of sale in your listing truthfully, accurately, and completely.
Buying: You are responsible for reading the full item listing before making an offer. When you make an offer and your offer is accepted by the Seller, you have a contract with the Seller.
Shipping: Upon the confirmation of any purchase and sale transaction through the Service and payment of the required amount by the buyer, GearUp will send to the seller’s address indicated in the seller’s account information a pre-paid shipping label for seller to ship the purchased item to the buyer. The seller must ship the purchased item to the buyer using the shipping label (and corresponding shipping method) required by GearUp within 3 days after receipt of such shipping label. If the seller does not ship the purchased item within the required time period, then the seller will be notified that the order will be canceled unless it is shipped within the time period required in such notice. Upon receipt of confirmation from the buyer that it has satisfactorily received and accepted the purchased item, GearUp will credit seller’s account in an amount equal to the purchase price received from the buyer, minus a commission to be retained by GearUp, as detailed in the FAQs. The buyer must confirm its acceptance within 3 days after receipt of the purchased item; if the buyer does not respond within such time period, the purchased item will be deemed accepted. Any funds credited to seller’s account may be redeemed by the seller through a permitted third party payment provider (e.g., by ACH from GearUp’s chosen financial institution) or used by seller to purchase items listed by other sellers through the Service.
Returns: We currently only allow returns if the item that was purchased was clearly not accurately described by the seller. If the item you receive is damaged, the wrong item or not as described, or if any items are missing, then you must report the issue in the GearUp Service within 3 days after delivery of the purchased item. Alternatively, you can also email us within 3 days after delivery at email@example.com to let us know.
Roles and Responsibilities
1. Merchant’s Liability for Chargebacks and Returns
Sellers are liable for all chargebacks and returns, whether or not the chargeback or return complies with the Operating Regulations. The amount of a payment may be charged back to you and deducted from your Settlement Account or Designated Merchant Bank if:
- it is disputed by a buyer,
- it is reversed for any reason,
- it was not authorized or we have any reason to believe that the transaction was not authorized, or
- it is unlawful, suspicious, or in violation of the terms of this Agreement.
2. How GearUp Handles Chargebacks and Returns
In the event of a disputed transaction, GearUp will issue a request to the Bank to withdraw funds from your Settlement Account or Designated Merchant Bank Account for the amount of any chargeback or return and any associated Fees, fines, or penalties assessed by the Bank, our processor or the Networks. If you have pending chargebacks or returns, the Bank may delay or reduce payouts to you.
If GearUp reasonably believes that a chargeback or return is likely with respect to any transaction, we may instruct the Bank to withhold the amount of the potential chargeback or return from payments otherwise due to you under this Agreement until such time that:
- a chargeback or return is assessed due to a Customer’s complaint, in which case the Bank will retain and refund the funds;
- the period of time under applicable Law or Operating Regulation by which the Customer may dispute that the transaction has expired; or
- we determine that a chargeback or return on the transaction will not occur.
If we determine that you are incurring an excessive amount of Chargebacks or returns, GearUp or the Bank may establish controls or conditions governing your Settlement Account and Service, including without limitation, by
- assessing additional Fees,
- creating a Reserve in an amount reasonably determined by us to cover anticipated chargebacks and related fees,
- delaying payouts, and
- terminating or suspending the Service or closing your GearUp Payment Account.
We may be required to report your name to one or more of the Networks if you experience excessive chargebacks or excessive returns, and you waive any claims you may have as a result of such reporting. You will assist us when requested, at your expense, in the investigation of any transactions you have processed through the Service. To that end, you permit us to share information about a chargeback or return with the Customer, the Customer’s financial institution, and your financial institution in order to investigate and/or mediate a chargeback. We may request necessary information from you to contest the chargeback or return. If the chargeback or return is contested successfully, we will instruct the Bank to release the reserved funds to you. If a chargeback dispute is not resolved in your favor by the Network or issuing bank or you choose not to contest the chargeback or return, GearUp may recover the chargeback or returned amount and any associated fees as described in this Agreement. Your failure to assist us in a timely manner when investigating a transaction, including providing us the necessary documentation within seven (7) days of our request, may result in an irreversible chargeback. We reserve the right, upon notice to you, to charge a fee for mediating and/or investigating such disputes.
3. Our Set-off and Collection Rights
To the extent permitted by Law, the Bank may set off against any balances in your Settlement Account and your Designated Merchant Bank Account, or against any amounts due to you, for any obligation you owe us under this Agreement, including without limitation any chargebacks or returns. All Fees are charged at the time of transaction processing and are first deducted from the transferred or collected funds and thereafter from your Settlement Account and then from your Designated Merchant Bank Account. If you do not have sufficient funds in such accounts, the Bank may collect from any funding source associated with your Settlement Account, or from any other account under your control, or from any funding source associated with such other account, including but not limited to any funds:
- deposited by you,
- due to you under this Agreement, or
- available in your bank account, or other payment instrument registered with the Bank.
Your failure to pay, in full, amounts that you owe us on demand will be a breach of this Agreement. You will be liable for all costs and expenses incurred by or on behalf of us in association with collection in addition to the amount owed, including without limitation legal fees and expenses, collection agency fees, and interest at the lesser of one-and-one-half percent (1.5%) per month or the highest rate permitted by Law. In its discretion, GearUp may make appropriate reports to credit reporting agencies and law enforcement authorities, and cooperate with them in any resulting investigation or prosecution. All communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided by you to GearUp. Such communication may be made by GearUp or by anyone on its behalf, including but not limited to a third-party collection agent.
Intellectual Property Rights
Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain images and descriptions of camera, tech and camera-related items and other content (collectively, “Service Content”) that is protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by GearUp, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you shall not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology underlying the Service (including the Software distributed in connection therewith) is the property of GearUp, our affiliates, and our partners. You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Service (including the Software). Any rights not expressly granted herein are reserved by GearUp. The GearUp name and logos are trademarks and service marks of GearUp (collectively the “GearUp Trademarks”). Other company, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to GearUp. Nothing in these Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of GearUp Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of GearUp Trademarks will inure to our exclusive benefit.
Apple-enabled Software Applications: GearUp offers Software applications that are intended to be operated in connection with products made commercially available by Apple Inc. (“Apple”). With respect to Software that is made available for your use in connection with an Apple-branded product (such Software, “Apple-Enabled Software”), in addition to the other terms and conditions set forth in these Terms of Service, the following terms and conditions apply:
- GearUp and you acknowledge that these Terms of Service are concluded between GearUp and you only, and not with Apple and that as between GearUp and Apple, GearUp, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iPhone OS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be GearUp’s sole responsibility, to the extent it cannot be disclaimed under applicable law.
- GearUp and you acknowledge that GearUp, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user’s possession and use of that Apple-Enabled Software infringe that third party’s intellectual property rights, as between GearUp and Apple, GearUp, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to GearUp by e-mail to firstname.lastname@example.org
GearUp and you acknowledge and agree that Apple, and Apple’s subsidiaries, are third-party beneficiaries of these Terms of Service with respect to the Apple-Enable Software, and that, upon your acceptance of the terms and conditions of these Terms of Service, Apple will have the right (and will be deemed to have accepted the right) to enforce these Terms of Service against you with respect to the Apple-Enable Software as a third party beneficiary thereof.
Electronic Communications: When you use the Service or send e-mails to us, you are communicating with us electronically. We will communicate with you by e-mail or providing notices via the Service. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing. Any such emails may include marketing and promotional content.
Third Party Material: Under no circumstances will GearUp be liable in any way for any items or content posted by third parties or at the direction of users, including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any items or content posted, sold, purchased or otherwise transmitted via the Service. You acknowledge that GearUp does not pre-screen items or content, but that GearUp and its designees shall have the right (but not the obligation) in their sole discretion to refuse or remove any items or content that is available via the Service. Without limiting the foregoing, GearUp and its designees shall have the right to remove any item or content that violates these Terms of Service or is deemed by GearUp, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any items or content, including any reliance on the safety, condition, accuracy, completeness, or usefulness of such items or content.
User Content Posted on the Site: You are solely responsible for the content you post or transmit on or through the Service (collectively, “User Content”). You will not post any content that you did not create or that you do not own all right, title and interest in and to, including, without limitation, all copyright and rights of publicity contained therein. By posting or otherwise transmitting any User Content you hereby grant and will grant to GearUp and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicenseable, perpetual, irrevocable license to copy, display, transmit, perform, distribute, store, modify, make derivative works of and otherwise use in any manner your User Content in connection with the operation of the Service or any other products or services of GearUp, or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed (including without limitation publishing your User Content on the Internet or on Third Party Services such as Facebook, sharing it with blogs, etc., and allowing other users to share listings that include your User Content). You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Site or the Service (“Submissions”), provided by you to GearUp are non-confidential and GearUp shall be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you. You acknowledge and agree that GearUp may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of GearUp, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.
Infringement Policy: GearUp respects the intellectual property of others, and we ask our users to do the same. GearUp will promptly process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act and other applicable intellectual property laws with respect to any alleged or actual infringement. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide our Copyright Agent with the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner’s agent, or pursuant to the law, to post and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received, GearUp will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion. The above information should be sent to GearUp’s Copyright Agent for Notice of claims of copyright or other intellectual property infringement by email to the following address: email@example.com (Subject line: “DMCA Takedown Request”). You may also contact us by mail at: GearUp LLC.
3080 Main St.
Morro Bay, CA 93442
Third Party Websites
The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. GearUp has no control over such sites and resources and GearUp is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that GearUp 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 use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that GearUp is not liable for any loss or claim that you may have against any such third party.
Indemnity and Release
Disclaimer of Warranties
YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. GEARUP EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. GEARUP MAKES NO WARRANTY THAT (I) YOU WILL BE ABLE TO SELL OR PURCHASE ANY ITEMS THROUGH THE SERVICE OR THAT THE SERVICE WILL OTHERWISE MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY GOODS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT GEARUP SHALL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF GEARUP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE (INCLUDING ANY INJURY OR OTHER BODILY HARM THAT MAY RESULT FROM YOUR USE OF THE SERVICE); (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT SHALL GEARUP’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT OF COMMISSIONS THAT YOU HAVE PAID TO GEARUP AS A SELLER IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100). SOME JURISDICTIONS DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE. IF YOU ARE A USER FROM NEW JERSEY, THE FOREGOING SECTIONS TITLED “DISCLAIMER OF WARRANTIES” AND “LIMITATION OF LIABILITY” ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
- Agreement to Arbitrate This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and GearUp, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and GearUp are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
- Prohibition of Class and Representative Actions and Non-Individualized Relief YOU AND COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S).
- Pre-Arbitration Dispute Resolution GearUp is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support at firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to GearUp should be sent to TBD (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If GearUp and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or GearUp may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by GearUp or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or GearUp is entitled.
- Costs of Arbitration Payment of all filing, administration, and arbitrator fees (collectively, the “Arbitration Fees”) will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, GearUp will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, GearUp will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, GearUp will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys’ fees will be governed by the AAA Rules.
- Confidentiality All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
- Severability If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.
- Future Changes to Arbitration Agreement Notwithstanding any provision in these Terms of Service to the contrary, GearUp agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending GearUp written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
You agree that GearUp, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any items or content within the Service, for any reason, including, without limitation, for lack of use or if GearUp believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. GearUp may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of these Terms of Service may be effected without prior notice, and acknowledge and agree that GearUp may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that GearUp shall not be liable to you or any third-party for any termination of your access to the Service.
You agree that you are solely responsible for your interactions (including any purchase and sale transactions) with any other user in connection with the Service and GearUp will have no liability or responsibility with respect thereto. GearUp reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
These Terms of Service constitute the entire agreement between you and GearUp and govern your use of the Service, superseding any prior agreements between you and GearUp with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service shall be governed by the laws of the State of California without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and GearUp agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within San Francisco County, California. The failure of GearUp to exercise or enforce any right or provision of these Terms of Service shall not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.
Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Proposition 65 – California
The California Safe Drinking Water and Toxic Enforcement Act of 1986 (“Prop 65”) requires manufacturers, producers, packagers, importers, suppliers or distributors (the “Notice Parties”) of products to provide warnings to California consumers about potentially hazardous or cancer-causing materials in those products. On August 30, 2018, Prop 65 will change by encouraging the Notice Parties to include a warning that lists the specific chemicals in the product(s) if they are present in an amount that may be hazardous. Example warnings could read: WARNING: This product can expose you to chemicals, including [name of chemical], which is/are known to the State of California to cause cancer. For more information, go towww.P65Warnings.ca.gov. WARNING: This product can expose you to chemicals, including [name of chemical], which is/are known to the State of California to cause birth defects or other reproductive harm. For more information, go to www.P65Warnings.ca.gov. We encourage all GearUp users who sell to California residents to investigate the requirements and to make independent determinations about whether warnings are necessary when selling items to California residents. You can include warnings in your item descriptions on GearUp. You agree to indemnify and hold GearUp harmless for any violations of Prop 65 or any claims arising out of your violation of Prop 65.
Questions? Concerns? Suggestions?
Please contact us at email@example.com to report any violations of these Terms of Service or to pose any questions regarding these Terms of Service or the Service.