USER AGREEMENT – Last Updated 9/26/2017
This User Agreement, the User Privacy Notice, the Mobile Devices Terms, and all policies posted on our sites set out the terms on which Comicache offers you access to and use of our sites, services, applications and tools (collectively “Services”). All policies, the Mobile Devices Terms, and the User Privacy Notice are incorporated into this User Agreement. You agree to comply with all of the above when accessing or using our Services.
The entity you are contracting with is: Comicache. In this User Agreement, these entities are individually and collectively referred to as “Comicache,” “we,” or “us.”
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved. It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate. Unless you opt out: (1) you will only be permitted to pursue claims against us or our agents 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.
Comicache is a marketplace that allows users to offer, sell and buy comic books, and comic book related media in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer. Comicache is not a traditional auctioneer.
While we may provide pricing, shipping, listing, sourcing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, Comicache has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
In connection with using or accessing the Services you will not:
– post, list or upload content or items in inappropriate categories or areas on our sites;
– breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
– use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
– fail to pay for items purchased by you, unless you have a valid reason as set out in an Comicache policy, for example, the seller has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot contact the seller;
– fail to deliver items sold by you, unless you have a valid reason as set out in an Comicache policy, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;
– manipulate the price of any item or interfere with any other user’s listings;
– post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
– take any action that may undermine the feedback or ratings systems;
– transfer your Comicache account (including Feedback) and user ID to another party without our consent;
– distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
– distribute viruses or any other technologies that may harm Comicache or the interests or property of users;
– use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express permission of Comicache;
– interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
– export or re-export any Comicache application or tool, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
– infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to Comicache. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Comicache or someone else;
– infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post content that does not belongs to you;
– commercialize any Comicache’s application or any information or software associated with such application, except with the prior express permission of Comicache;
– harvest or otherwise collect information about users without their consent; or
circumvent any technical measures we use to provide the Services.
Sellers must meet Comicache’s minimum performance standards. Failure to meet these standards may result in Comicache charging you additional fees, and/or limiting, restricting, suspending, or downgrading your seller account.
If we believe you are abusing Comicache in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are violating the policy on Offers to buy or sell outside of Comicache, you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement. If you are a seller and you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Comicache, you may be liable to pay a final value fee applicable to that item, even if the item does not sell.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
When a buyer or seller issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.
As of 9/26/2017 Comicache does not charge any fees for any transactions between vendors and members of the marketplace.
This will remain effective until we reach the first 50 registered vendors to Comicache’s website. These 50 members will be respectively called “Founding Members”. Once the 50 vendors have been registered, and declared active in the community, Comicache will reinstate a new fee policy based on a 1% commission on the total bill of sale for all items sold within the marketplace. Subject to change.
If you are a seller, you are liable for transaction fees arising out of all sales made using some or all Comicache Services, even if sales terms are finalized or payment is made outside of Comicache. In particular, if you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Comicache, you may be liable to pay a final value fee applicable to that item, even if the item doesn’t sell, given your usage of Comicache Services for the introduction to a buyer.
You must have a payment method (Paypal) on file when selling on Comicache and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect fees owed by charging other payment methods on file with us, retain collection agencies and legal counsel, and, for accounts over 180 days past due, request that PayPal deduct the amount owed from your PayPal account balance. In addition, you will be subject to late fees. Comicache, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information Comicache reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Comicache account, you must contact the collection agency directly.
When listing an item, you agree to comply with Comicache’s rules for listing and Selling Practices policy and that:
– You are responsible for the accuracy and content of the listing and item offered.
– Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Comicache can’t guarantee exact listing durations.
– Content that violates any of Comicache’s policies may be modified, obfuscated or deleted at Comicache’s discretion.
– We may revise data in the Comicache product catalog to supplement, remove, or correct information; if your listing uses catalog data that has been revised, those revisions may modify your listing accordingly.
We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to:
– buyer’s location, search query, browsing site, and history;
– item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query;
– seller’s history, including listing practices, Detailed Seller Ratings, Comicache policy compliance, Feedback, and defect rate; and number of listings matching the buyer’s query.
To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer.
Some advanced listing upgrades will only be visible on certain Services.
Comicache’s Duplicate Listing Policy may also affect whether your listing appears in search results.
Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results.
We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results will vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to other sellers.
When buying an item, you agree to the rules for buyers and that:
You are responsible for reading the full item listing before making a bid or commitment to buy.
You enter into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted).
We do not transfer legal ownership of items from the seller to the buyer.
You may restrict international buyers from purchasing your items if you explicitly exclude international shipping from your listings and apply an exclusion list to your listings.
You authorize us to use automated tools to translate your Comicache content and member-to-member communications, in whole or in part, into local languages where such translation solutions are available. We may provide you with tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed.
When providing content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights (as defined above) you have in that content in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce against Comicache, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in that content in connection with our, those assignees’, and those sublicensees’ use of that content.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Comicache takes no responsibility and assumes no liability for any content provided by you or any third party.
We may offer catalogs including, for example, product images, descriptions and specifications that are provided by third parties (including Comicache users). You may use catalog content solely in your Comicache listings. The permission to use catalog content is subject to modification or revocation at any time at Comicache’s sole discretion.
While we try to offer reliable data, we cannot promise that the catalogs or other content provided through the Services will always be available, accurate, complete, and up-to-date. As a buyer, you agree that Comicache is not responsible for examining or warranting the listings or content provided by third parties through the Services, and that you will not attempt to hold us liable for any inaccuracies. As a seller, it is your responsibility to review the content of your listings for accuracy and that you will not attempt to hold our catalog providers or us responsible for inaccuracies. The catalog may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings included within the catalogs and not to create any derivative works based on catalog content (other than by including them in your listings).
The name “Comicache” and other Comicache marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Comicache in the U.S. and other countries. They may not be used without the express written prior permission of Comicache. A non-exhaustive list of our trademarks and the policy governing their use is available here.
Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. Comicache’s works to ensure that listed items and content on our site or in our apps do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify our team and we will investigate. Learn how to submit a notice to Comicache.
Privacy of Others; Marketing
If Comicache provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
Returns and Cancellations
All returns and cancellations are to be worked out by the seller and buyer. The seller may authorize a refund per the buyers request, or ask for the item to be shipped and returned for a partial or full refund. All refunds will be handled through PayPal. We strongly suggest attempting to work out return or cancellation first with the other party member and resorting to PayPal’s buyer protection program as a last resort.
Sellers can specify specific rules for returns, and refunds in their listings. Buyers will have to accept these on a case by case basis, as specified in the sellers rules. You agree to comply with our returns policy.
When an item is returned, to refund the buyer, you (as seller) authorize Comicache to request that PayPal remove the refund amount (in same or other currency) from your PayPal account, place the amount on your invoice, and/or charge your payment method on file.
The cost of return shipping for an item that is not as described is the seller’s responsibility.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, your improper use of Comicache’s Services or your breach of any law or the rights of a third party.
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND COMICACHE HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Comicache agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Comicache (including any claim or dispute between you and a third-party agent of Comicache) that relates in any way to or arises out of this or previous versions of the Comicache User Agreement, your use of or access to the Services, the actions of Comicache or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Utah, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and Commicache, except as otherwise stated in the User Agreement.
B. Agreement to Arbitrate
You and Comicache each agree that any and all disputes or claims that have arisen, or may arise, between you and Comicache (including any disputes or claims between you and a third-party agent of Comicache) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to Comicache’s Services, the actions of Comicache or its agents, or any products or services sold, offered, or purchased through Comicache’s Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND COMICACHE 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 OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMICACHE 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, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR 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). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Comicache’s right to appeal the court’s decision. All other claims will be arbitrated.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to Comicache should be sent immediately and Comicache will send any Notice to you to the physical address we have on file associated with your account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Comicache are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Comicache may initiate arbitration proceedings. In the event Comicache initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your account. Any settlement offer made by you or Comicache shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Comicache may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Comicache subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Comicache may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same comicache user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $3,000 or less, at your request, Comicache will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Comicache should be submitted by mail to the AAA along with your Demand for Arbitration and Comicache will make arrangements to pay all necessary fees directly to the AAA. If (a) you willfully fail to comply with the Notice of Dispute requirement discussed above, or (b) in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse comicache for all fees associated with the arbitration paid by Comicache on your behalf that you otherwise would be obligated to pay under the AAA’s rules.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
IF YOU ARE A NEW COMICACHE USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO COMICACHE. Contact Administrator for mailing address.
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Comicache prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Comicache. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.comicache.com at least 30 days before the effective date of the amendments. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
C. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Comicache must be resolved exclusively by a state or federal court. You and comicache agree to submit to the personal jurisdiction of the courts or the purpose of litigating all such claims or disputes.
Except as otherwise provided in this Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.comicache.com.
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on www.comicache.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we may or may not notify you through the Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an Comicache representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the Comicache site.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement, the User Privacy Notice, and all polices posted through our Services set forth the entire understanding and agreement between you and Comicache, and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
Pursuant to 815 ILCS 414/1.5(c), for transactions involving tickets to events in Illinois, buyers and sellers may elect to submit complaints against one another to the American Arbitration Association (“AAA”) under its rules and procedures. The AAA’s rules are available at www.adr.org. Such complaints shall be decided by an independent arbitrator in accordance with this User Agreement. Buyers and sellers further agree to submit to the jurisdiction of the State of Illinois for complaints involving a ticketed event held in Illinois.