Privacy Policy

SuperRare Privacy Notice

SuperRare Privacy Notice

Last Updated: 2/17/2022

Our Platform was built with your privacy in mind. This Privacy Notice (“Notice”) describes how we at SuperRare Labs collect, use, share, and secure your Personal Information when you visit the SuperRare Platform (https://superrare.co, https://superrare.com) (the “Platform”) or create, buy, transfer, or trade unique SuperRare Items in our Marketplace (the “Marketplace”).

By accessing the Site or trading SuperRare Items through the Marketplace, you agree to this Privacy Notice and our Terms of Use.

For all questions or inquiries related to privacy please email us privacy@superrare.com.

I. Personally Identifiable Information We Collect

We may collect information reasonably capable of identifying you as an individual (“Personally Identifiable Information” or PII). PII does not include anonymous or de-identified aggregated information that does not identify you as an individual.

A. Creating a User Account.

If you sign up to use our Platform, we collect your

  • Ethereum wallet address through a supported wallet provider
  • Username, and
  • Email address.

The User may elect to provide their:

  • Full name,
  • Location,
  • Biographical information,
  • Social media handles
  • Other websites
  • User profile picture or avatar, which may contain your likeness

B. Requesting an Invite as an Artist.

If you want to join the world’s rarest digital artist network, we will require:

  • Your first and last name,
  • A link to your artwork portfolio
  • A valid email address,
  • A short application video which may contain aspects of your likeness,
  • Links to a selection of your artwork,
  • Information about you and your art

The Application Process may also collect:

  • Links to your social media handles
  • Other personal information
  • Other websites that you are associated with

C. Visiting and Using the Site.

  • We also collect analytics data when you access or use the Platform.
  • We log and record User activities such as likes, follows, views, and other user session behavior.
  • See our Cookies Policy below for more information about the cookies we use and what data they may collect.

II. What We Do with Personally Identifiable Information We Collect

We use the PII we collect from users to:

  • Maintain Platform functionality;
  • Enable you to list, buy, transfer, or trade unique digital art;
  • Provide you with critical updates, confirmations, or security alerts;
  • Provide support or respond to your comments or questions;
  • Personalize and improve your experience and art activity feed;
  • Inform you about products, services, news, surveys, or promotional opportunities we think might interest you;
  • Provide editorial and newsletter content;
  • Analyze and improve our Platform.

Data collected from Users may be put through algorithms to make decisions about User experiences, create and assign User profiles, and provide other services. No algorithms shall be used to make adverse decisions about Users unless it is to fulfill an affirmative duty to prevent criminal activity.

We use the information from artist applications to:

  • Determine if the applicant meets curation criteria
  • Track application trends
  • Contact artists

III. When We May Share Personal Information

We rely on service providers to make some of the Platform’s features work, including our website providers or the companies that support the chat, intercom, or customer service features. These providers may have access to the PII we collect so they can do this work on our behalf. We work hard to ensure these providers only access and use your information as necessary to perform their functions. We do not guarantee that other platforms follow best privacy practices.

IV. Cookies

We also collect basic analytics data through Cookies when you access or use the Platform. A “Cookie” is a small piece of data or text file stored on the local hard disk of your computer or mobile device. These include our own first-party Cookies and third-party Cookies. Some Cookies are only stored temporarily and destroyed each time you close your web browser. Others may remain on your browser and may collect and store data for a period of time after you have left the Platform.

A. How we use Cookies

  • Functionality: Our Platform uses Cookies to ensure the Platform functions properly, including page loads or our chat feature.
  • Performance and Analytics: Our Platform uses Cookies to gather usage and performance data. This enables us to monitor and improve the Platform’s performance, our services, and your experience.
  • Marketing: We use cookies to better provide more relevant offers and ads to our users. We also keep track of user data to refine our marketing strategies and tactics. Most marketing data is automated and anonymous.
  • Google Analytics: We use Google Analytics to understand how users interact with the Platform and serve you information about products or services we think you may like. You can find out more about Google Analytics and how to opt out here.

B. How you can control Cookies

If you wish to prevent cookies from tracking your activity on our Platform or visits across multiple websites, you can set your browser to block certain cookies or notify you when a cookie is set. For more information on how you can customize your browser’s Cookie setting please visit the link to your web browser below:

You may opt-out of interest-based advertising in general by visiting the Digital Advertising Alliance’s or Network Advertising Initiative’s websites. We are not responsible for the completeness, effectiveness, or accuracy of any third-party opt-out options or programs.

If you block cookies, some features that make the Platform function property may not work and your experience may be affected.

V. On-Chain Data and Metadata

By using SuperRare you acknowledge that your PII, including your Ethereum wallet address, is stored on the publicly searchable Ethereum blockchain and that neither SuperRare Labs, nor any third party, has any power to delete such data published by its User’s to the Ethereum blockchain. You hereby release and indemnify SuperRare Labs Inc. of any data privacy liability associated with data that you published to the Ethereum blockchain by using SuperRare.

  1. Your Ethereum Wallet and Transaction History

No entity, including SuperRare Labs, is capable of modifying or deleting data that is stored on the Ethereum blockchain. The details of your NFT-related transactions are public information and stored on the Ethereum blockchain in association with your Ethereum wallet addresses. Your username is publicly identified with your Ethereum wallet address on the Marketplace. If your account is ever deleted, then any transaction history on the Marketplace will display “anonymous” instead of your username.

  1. Artist Works Minted on SuperRare

By using the SuperRare Platform as an Artist, you may voluntarily embed PII in the Metadata of any minted NFT(s) or in the media content referenced by the NFT. All information embedded in the Metadata will not be available for deletion and there is no reasonable expectation of privacy for any PII put in the Metadata or the media content referenced by the NFT. The Users and Parties associated with the minting, sale, transfer, and use of NFT(s) are solely responsible for ensuring their PII or other sensitive data are properly protected.

VI. Your Rights

A. GDPR

Excluding the limitations discussed in Section V and Section X of this notice, all users of SuperRare.com have the right at any time to the following:

  • Opt-Out. Unsubscribe from all marketing communications.
  • Access. Gain access to the PII we have collected and how we use it.
  • Rectify. You may update or correct any inaccuracies in your PII.
  • Erase. You may have your data controlled by us deleted at any time.
  • Export. You may have a machine-readable copy of your PII to you or a third party of your choice.
  • Restrict. You may request to restrict the processing of your PII.
  • Object. You may object to our reliance on our legitimate interests to justify the processing of your PII in a manner that impacts your rights.

You can unsubscribe from commercial or marketing communications from us by contacting us at privacy@superrare.com or following the instructions at the bottom of any email you receive from us.

B. California Privacy Rights

  • Third-party marketing: We do not provide your information to third parties for their direct marketing purposes. However, we may share aggregate or other information that no longer personally identifies you with other parties for our business purposes, marketing, analytics, research, or other uses.
  • Do not track: In the absence of a uniform industry standard for detecting and regulating these signals, we cannot respond to “Do Not Track” settings from browsers.

VII. Minors and Children

The Platform is not intended for use by children under the age of 18, and we do not knowingly collect Personal Information from children under the age of 13. If we learn we collected Personal Information from a child under 13 we will delete that information from our files.

VIII. Third-Party Links and Services

Our Privacy Notice only applies to our Platform and does not apply to third-party websites or services because we do not control those third parties. We are not responsible for the privacy practices or content of third-party websites. We encourage you to review the privacy policies of those third-party sites to learn about their practices or what rights you may have.

IX. Complaints, Disputes, and Actions

If SuperRare Labs receives any notice of a complaint, dispute, or legal action against an artist, collector, Space, or SuperRare user then we may relay the necessary contact information of that user to the relevant parties. Necessary contact information includes, but is not limited to email addresses, phone numbers, social media handles, real names, usernames, and registered Ethereum addresses. Disputes include, but are not limited to contract, tort, right of publicity, privacy, trademark, copyright, or any other legal, regulatory, or administrative claim. By using the SuperRare platform you waive any privacy expectations for your contact information if SuperRare Labs receives any notices of legal, administrative, or other types of complaint, dispute, or action related to your use of the platform.

In particular, the Digital Millennium Copyright Act (DMCA) sets forth a Notification and Counter-Notification process initiated by a party complaining of alleged copyright infringement on the SuperRare Platform. In addition to DMCA, for trademark disputes, or other intellectual property claims SuperRare Labs reserves the right to share information of the notifying, counter-notifying party, and any involved third parties, such as a Collector, of an allegedly infringing artwork to facilitate communication between the relevant parties for the purposes of complying with or resolving a DMCA dispute or allegation of intellectual property infringement. As stated in our Terms of Service, the SuperRare Labs policy is to allow parties to resolve intellectual property, contract, or any other dispute between those parties without any involvement of SuperRare Labs.

X. Important Limitations

Nothing in this Privacy Notice restricts our ability to:

  • Comply with applicable law, rules, or regulations, including the DMCA, trademark or other IP regulations;
  • Comply with a civil, criminal, or regulatory inquiry, investigation, subpoena, or lawful court order;
  • Cooperate with law enforcement agencies about conduct we reasonably and in good faith believe may violate the law;
  • Protect our rights or our property;
  • Enforce our Terms of Service; or,
  • Prevent behavior that is (or that we have reason to believe may be) illegal or unethical.

XI. Changes to this Notice

Our commitment to preserving your privacy will not change, but our Platform may evolve. The effective date of each version is identified above. If we make material changes to this Privacy Notice, we will use reasonable means to inform you and, where necessary, obtain your consent. This Privacy Notice and the accompanying internal policies are updated annually.

XII. Questions

If you have questions about this Notice or how we treat your Personal Information, please contact us at privacy@superrare.com.

 

Terms of Service

Effective Date: May 9, 2022

These Terms of Service contain an arbitration provision and class action waiver.  Please review the Arbitration section for details.

These Terms of Service (“Terms”) govern your use of the SuperRare https://shop.superrare.com/ website (“Site”) and any related services offered by SuperRare (“Services”).  SuperRare Labs, Inc. (“SuperRare,” “we” or “us”) provides the Site and Services.  “You” refers to you as a user of the Site or Services.

BY USING THE SITE OR SERVICES, YOU ARE AGREEING TO THESE TERMS.  PLEASE READ THEM CAREFULLY.

  1. Eligibility

You must be at least 13 years old to use the Site or the Services.  If you are under the age of majority in your state of residence, a minor, your parent or legal guardian must agree to these Terms on your behalf and you may only access and use the Site and Services with permission from your parent or legal guardian. 

  1. Terms of Sale

Shipping:  When you make a purchase on the Site (an “Order”), you will be required to pay applicable shipping and processing charges and fees (“Fees”).  Fees are intended to compensate us for any relevant costs of processing your Order; costs of handling and packing any products; and costs of delivering or providing the purchased products and services to you.

Inaccuracy Disclaimer:  From time to time, there may be information on the Site that contains typographical errors, inaccuracies, or omissions that may relate to product descriptions, pricing, and availability.  We reserve the right to correct any errors, inaccuracies, or omissions and to change or update information at any time without prior notice (including after you have submitted your Order).  If you do not wish to continue with your Order after pricing or other information has been corrected, please contact us right away and we will work with you to cancel or return your Order.

Order Warranties, Returns and Refunds:  Unworn, unused, and unwashed merchandise accompanied by the original purchase receipt and tags (if applicable) can be exchanged for store credit within 30 days of original delivery. Shipping costs will not be credited or refunded. In the event you need to process a return, please email us at shop@superrare.com and include the first and last name on the order, the order number, and reason for return. Please note, it can take up to 24-48 hours for response.

Special Offers:  Occasionally we will offer special promotions to our customers that we refer to as “special offers.”  This can include a gift with purchase, free shipping, manufacturer offers, or other promotional activity associated with a product purchase.  These offers may be for a limited time only.  

  1. Additional Terms

Some of our Services have additional terms and conditions (“Additional Terms”).  Where Additional Terms apply to a Service, we will make them available for you to read through your use of that Service.  By using that Service, you agree to the Additional Terms.

  1. Acceptable Use of the Site and Services

You are responsible for your use of the Site and Services, and for any use of the Site or Services made using your account.  Our goal is to create a positive, useful, and safe user experience.  To promote this goal, we prohibit certain kinds of conduct that may be harmful to other users or to us.  When you use the Site or Services, you may not:

• violate any law or regulation;

• violate, infringe, or misappropriate other people’s intellectual property, privacy, publicity, or other legal rights;

• post or share anything that is illegal, abusive, harassing, harmful to reputation, pornographic, indecent, profane, obscene, hateful, racist, or otherwise objectionable;

• send unsolicited or unauthorized advertising or commercial communications, such as spam;

• engage in spidering or harvesting, or participate in the use of software, including spyware, designed to collect data from the Site or Services;

• transmit any viruses or other computer instructions or technological means whose purpose is to disrupt, damage, or interfere with the use of computers or related systems;

• stalk, harass, or harm another individual;

• impersonate any person or entity or perform any other similar fraudulent activity, such as phishing;

• use any means to scrape or crawl any Web pages contained in the Site;

• attempt to circumvent any technological measure implemented by us or any of our providers or any other third party (including another user) to protect the Site or Services;

• attempt to decipher, decompile, disassemble, or reverse engineer any of the software or other underlying code used to provide the Site or Services; or

• advocate, encourage, or assist any third party in doing any of the foregoing.

  1. User Content

The Site and some of our Services allow you to upload, submit, store, send, or receive content and data (“User Content”).  You retain ownership of any intellectual property rights that you hold in that User Content.  

When you upload, submit, store, send, or receive User Content to or through the Site or Services, you give us permission to reproduce and use your User Content as follows:  you grant to us and those we work with a license to use, host, store, reproduce, modify, create derivative works (such as translations, adaptations, or other changes we make so that User Content works better with the Site and Services), publicly perform, publicly display, and distribute your User Content.  This license is for the limited purpose of operating, promoting, and improving the Site and Services, and to develop new Services.  Our license to your User Content is non-exclusive, meaning you may use the User Content for your own purposes or let others use your User Content for their purposes.  This license is fully-paid and royalty free, meaning we do not owe you anything else in connection with our use of your User Content.  We may exercise our rights under this license anywhere in the world and in any media.  Lastly, this license is perpetual, meaning that our rights under this license continue even after you stop using the Site and Services.  In general, however, we will only need to use your User Content for as long as you choose to store it with us using the Site or Services.

You promise that:

• you own all rights to your User Content or, alternatively, that you have the right to give us the rights described above; and

• your User Content does not infringe the intellectual property rights, privacy rights, publicity rights, or other legal rights of any third party.

We may refuse to accept or transmit User Content for any reason.  We may remove User Content from the Site or Services for any reason.  

  1. Ownership

Other than User Content, we own or license all right, title, and interest in and to (a) the Site and Services, including all software, text, media, and other content available on the Site and Services (“Our Content”); and (b) our trademarks, logos, and brand elements (“Marks”).  The Site and Services, Our Content, and Marks are all protected under U.S. and international laws.  The look and feel of the Site and Services are copyright © SuperRare Labs, Inc. All rights reserved.  You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts without express written permission from us.

  1. Copyright and Intellectual Property Policy

We respond to notices of alleged copyright infringement and terminate accounts of repeat infringers according to the process set out in the U.S. Digital Millennium Copyright Act.  If you believe that your work has been copied in a way that constitutes copyright infringement, please forward the following information to the Copyright Agent named below:

  • Your address, telephone number, and email address. 
  • A description of the copyrighted work that you claim has been infringed.
  • A description of where the alleged infringing material is located.
  • A statement by you that you have a good faith belief that the disputed use is not authorized by you, the copyright owner, its agent, or the law.
  • An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest.
  • A statement by you, made under penalty of perjury, that the above information is accurate and that you are the copyright owner or authorized to act on behalf of the copyright owner.

Copyright Agent:

Email Address: ip@superrare.com

Subject/Heading of Email: SuperRare DMCA Take Down Notification

 

For clarity, only copyright infringement notices should go to our Copyright Agent.  You acknowledge that if you fail to comply with all of the requirements of this section your notice may not be valid.

If you believe the 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 such content, you may submit a counter-notice to the address listed above containing the following information:

  • 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, physical address, telephone number, and e-mail address, a statement that you consent to the jurisdiction of the federal court in the judicial district in which your physical address is located, or if such physical address is located outside of the United States, then in New York, New York, and a statement that you will accept service of process from the person who provided notification of the alleged infringement. 

After we receive your counter-notification, we will forward it to the party who submitted the original claim of copyright infringement.  Please note that when we forward the counter-notification, it includes your personal information.  By submitting a counter-notification, you consent to having your information revealed in this way.  We will not forward the counter-notification to any party other than the original claimant.

After we send out the counter-notification, the claimant must then notify us within 10 days that he or she has filed an action seeking a court order to restrain you from engaging in infringing activity relating to the content that was removed or disabled.  If we receive such notification we will be unable to restore the material.  If we do not receive such notification, we may reinstate the material.

  1. Privacy

Your privacy is very important to us.  Our Privacy Policy explains how we collect, use, protect, and when we share personal information and other data with others.  You are responsible for maintaining the confidentiality of your account information, including your username and password.  You are responsible for all activities that occur under your account and you agree to notify us immediately of any unauthorized access or use of your account.  We are not responsible or liable for any damage or loss related to any unauthorized access or use of your account.

  1. Links

The Site and Services may contain links to other websites and online resources.  A link to a third party’s website does not mean that we endorse it or that we are affiliated with it.  We are not responsible or liable for any damage or loss related to the use of any third-party website.  You should always read the terms and conditions and privacy policy of a third-party website before using it.  

  1. Changes to the Site or Services

We enhance and update the Site and Services often.  We may change or discontinue the Site or Services at any time, with or without notice to you.

  1. Termination

We reserve the right to not provide the Site or Services to any person.  We also reserve the right to terminate any user’s right to access the Site or Services at any time, in our discretion.  If you violate any of these Terms, your permission to use the Site and Services automatically terminates.

  1. Disclaimer and Limitations on Our Liability

YOU USE THE SITE AND SERVICES AT YOUR OWN RISK.  THE SITE AND SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS.  TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS OFFICERS, EMPLOYEES, DIRECTORS, SHAREHOLDERS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS, AND LICENSORS (“AFFILIATES”) DISCLAIMS ALL WARRANTIES, CONDITIONS, AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY, OR OTHERWISE, INCLUDING THOSE RELATED TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT AND THOSE ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.  

IN PARTICULAR, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR COMPANY AND ITS AFFILIATES MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT THE ACCURACY OR COMPLETENESS OF CONTENT AVAILABLE ON OR THROUGH THE SITE OR SERVICES, OR THE CONTENT OF ANY WEBSITES OR ONLINE SERVICES LINKED TO OR INTEGRATED WITH THE SITE OR SERVICES.  OUR COMPANY AND ITS AFFILIATES WILL HAVE NO LIABILITY FOR ANY:  (A) ERRORS, MISTAKES, OR INACCURACIES OF CONTENT; (b) PERSONAL INJURY OR PROPERTY DAMAGE RESULTING FROM YOUR ACCESS TO OR USE OF THE SITE OR SERVICES; (c) ANY UNAUTHORIZED ACCESS TO OR USE OF OUR SERVERS OR OF ANY PERSONAL INFORMATION OR USER DATA; (d) ANY INTERRUPTION OF TRANSMISSION TO OR FROM THE SITE OR SERVICES; (e) ANY BUGS, VIRUSES, TROJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED ON OR THROUGH THE SITE OR SERVICES BY ANY THIRD PARTY; OR (f) ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY CONTENT POSTED OR SHARED THROUGH THE SITE OR SERVICES. 

YOU UNDERSTAND AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE ARISING FROM DOING SO.  NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US OR THROUGH THE SITE OR SERVICES WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE.

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL WE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, OR CONSEQUENTIAL DAMAGES (INCLUDING FOR LOSS OF PROFITS, REVENUE, OR DATA) OR FOR THE COST OF OBTAINING SUBSTITUTE PRODUCTS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, HOWEVER CAUSED, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, AND WHETHER OR NOT WE’VE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.  

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, OUR TOTAL CUMULATIVE LIABILITY TO YOU OR ANY THIRD PARTY UNDER THESE TERMS, FROM ALL CAUSES OF ACTION AND ALL THEORIES OF LIABILITY, WILL BE LIMITED TO AND WILL NOT EXCEED THE FEES YOU HAVE ACTUALLY PAID US DURING THE TWELVE (12) MONTHS PRECEDING THE CLAIM GIVING RISE TO SUCH LIABILITY.  

You understand and agree that we have set our prices and entered into these Terms with you in reliance upon the limitations of liability set forth in these Terms, which allocate risk between us and form the basis of a bargain between the parties.

  1. Indemnification

To the maximum extent permitted by applicable law, you agree to indemnify and hold harmless our company and its Affiliates from and against any and all claims, costs, proceedings, demands, losses, damages, and expenses (including, without limitation, reasonable attorney’s fees and legal costs) of any kind or nature, relating to, any actual or alleged breach of these Terms by you or anyone using your account.  If we assume the defense of such a matter, you will reasonably cooperate with us in such defense.

  1. Arbitration Agreement & Waiver of Certain Rights

Except as set forth below, you and we agree that we will resolve any disputes between us (including any disputes between you and a third-party agent of ours) through binding and final arbitration instead of through court proceedings.  You and we hereby waive any right to a jury trial of any Claim (defined below).  All controversies, claims, counterclaims, or other disputes between you and us or you and a third-party agent of ours (each a “Claim”) shall be submitted for binding arbitration in accordance with the Rules of the American Arbitration Association (“AAA Rules”).  The arbitration will be heard and determined by a single arbitrator.  The arbitrator's decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction.  You and we agree that the arbitration proceedings will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration proceedings, except as may lawfully be required in judicial proceedings relating to the arbitration, by applicable disclosure rules and regulations of securities regulatory authorities or other governmental agencies, or as specifically permitted by state law.  The Federal Arbitration Act and federal arbitration law apply to this agreement.  However, the Arbitrator, and not any federal, state, or local court or agency, shall have the exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, or formation of this Agreement including, but not limited to, a claim that all or any part of this Agreement is void or voidable.

If you demonstrate that the costs of arbitration will be prohibitive as compared to the costs of litigation, we will pay as much of the administrative costs and arbitrator's fees required for the arbitration as the arbitrator deems necessary to prevent the cost of the arbitration from being prohibitive.  In the final award, the arbitrator may apportion the costs of arbitration and the compensation of the arbitrator among the parties in such amounts as the arbitrator deems appropriate. 

This arbitration agreement does not preclude either party from seeking action by federal, state, or local government agencies.  You and we also have the right to bring qualifying claims in small claims court.  In addition, you and we retain the right to apply to any court of competent jurisdiction for provisional relief, including pre-arbitral attachments or preliminary injunctions, and any such request shall not be deemed incompatible with these Terms, nor a waiver of the right to have disputes submitted to arbitration as provided in these Terms.

Neither you nor we may act as a class representative or private attorney general, nor participate as a member of a class of claimants, with respect to any Claim.  Claims may not be arbitrated on a class or representative basis.  The arbitrator can decide only your and/or our individual Claims.  The arbitrator may not consolidate or join the claims of other persons or parties who may be similarly situated.  The arbitrator may award in the arbitration the same damages or other relief available under applicable law, including injunctive and declaratory relief, as if the action were brought in court on an individual basis.  Notwithstanding anything to the contrary in the foregoing or herein, the arbitrator may not issue a “public injunction” and any such “public injunction” may be awarded only by a federal or state court.  If either party seeks a “public injunction,” all other claims and prayers for relief must be adjudicated in arbitration first and any prayer or claim for a “public injunction” in federal or state court stayed until the arbitration is completed, after which the federal or state court can adjudicate the party’s claim or prayer for “public injunctive relief.”  In doing so, the federal or state court is bound under principles of claim or issue preclusion by the decision of the arbitrator.

If any provision of this Section is found to be invalid or unenforceable, then that specific provision shall be of no force and effect and shall be severed, but the remainder of this Section shall continue in full force and effect.  No waiver of any provision of this Section of the Terms will be effective or enforceable unless recorded in a writing signed by the party waiving such a right or requirement.  Such a waiver shall not waive or affect any other portion of these Terms.  This Section of the Terms will survive the termination of your relationship with us.

THIS SECTION LIMITS CERTAIN RIGHTS, INCLUDING THE RIGHT TO MAINTAIN A COURT ACTION, THE RIGHT TO A JURY TRIAL, THE RIGHT TO PARTICIPATE IN ANY FORM OF CLASS OR REPRESENTATIVE CLAIM, THE RIGHT TO ENGAGE IN DISCOVERY EXCEPT AS PROVIDED IN AAA RULES, AND THE RIGHT TO CERTAIN REMEDIES AND FORMS OF RELIEF.  OTHER RIGHTS THAT YOU OR WE WOULD HAVE IN COURT ALSO MAY NOT BE AVAILABLE IN ARBITRATION.

  1. Other Provisions

Under no circumstances will we be held liable for any delay or failure in performance due in whole or in part to any acts of nature or other causes beyond our reasonable control.

These Terms will be governed by and construed in accordance with the laws of the State of New York, without giving effect to any conflict of laws rules or provisions.  

You agree that any action of whatever nature relating to these Terms, the Site, or Services will be filed only in the state or federal courts located in New York, New York.  You consent and submit to the personal jurisdiction of such courts for the purposes of any such action.  

If any provision of these Terms is found to be unlawful or unenforceable, then that provision will be deemed severable from these Terms and will not affect the enforceability of any other provisions.  

The failure by us to enforce any right or provision of these Terms will not prevent us from enforcing such right or provision in the future.

We may assign our rights and obligations under these Terms, including in connection with a merger, acquisition, sale of assets or equity, or by operation of law.

  1. Changes to these Terms

From time to time, we may change these Terms.  If we change these Terms, we will give you notice by posting the revised Terms on the Site.  Those changes will go into effect on the Revision Date shown in the revised Terms.  By continuing to use the Site or Services, you are agreeing to the revised Terms.  

Please print a copy of these Terms for you records and PLEASE check the Site frequently for any changes to these Terms.