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PIMPCOOKIE.COM TERMS AND CONDITIONS OF USE ARE AS FOLLOWS.

 

PLEASE READ THESE TERMS OF USE (“AGREEMENT” OR “TERMS OF USE”) CAREFULLY BEFORE USING THE WEBSITE AND SERVICES OFFERED BY PIMPCOOKIECO. (“PimpCookie”). THIS AGREEMENT SETS FORTH LEGALLY BINDING TERMS AND CONDITIONS FOR YOUR USE OF THE WEBSITE AT HTTP://WWW.PIMPCOOKIE.COM (THE “SITE”) AND ALL SERVICES PROVIDED BY PIMPCOOKIE ON THE SITE.

 

The following terms and conditions govern all use of the Site and all content, services and products available at or through the Site by the user (“user” “you” “your”). The Site is owned and operated by PimpCookie. The Site is offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, PimpCookie’s Privacy Policy, Fee Schedule, and Do’s and Don’ts) and procedures that may be published from time to time on this Site by PimpCookie (collectively, the “Agreement”).

 

Please read this Agreement carefully before accessing or using the Site. By accessing or using any part of the Site, you agree to become bound by the terms and conditions of this Agreement. If you do not agree to all the terms and conditions of this agreement, then you may not access the Site or use any of the services. If these terms and conditions are considered an offer by PimpCookie, acceptance is expressly limited to these terms.

 

This Agreement applies to all users of the Site, including without limitation users who are vendors, customers, merchants, contributors of content, information and other materials or services on the Site.

 

If you have any questions, please refer to the FAQs.

 

  1. PimpCookie is a Marketplace.

 

(a) PimpCookie acts as a venue to allow users who comply with PimpCookie’s policies to offer, sell and buy certain goods within a fixed-price format. PimpCookie is not directly involved in the transaction between buyers and sellers. As a result, PimpCookie has no control over the quality, safety, morality or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items or the ability of buyers to pay for items. PimpCookie does not pre-screen users or the content or information provided by users. PimpCookie cannot ensure that a buyer or seller will actually complete a transaction.  PimpCookie does not transfer legal ownership of items from the seller to the buyer.  PimpCookie cannot guarantee the true identity, age, and/or nationality of a user. PimpCookie encourages you to communicate directly with potential transaction partners through the tools available on the Site. You may also wish to consider using a third-party escrow service or services that provide additional user verification.

 

(b) PimpCookie is not a licensed medical care provider or nutritionist.  PimpCookie does not verify any health claims made by sellers, or any third parties with regards to any of the goods sold on the Site.  PimpCookie does not prevent or give notice of potential allergens.  It is the user’s responsibility to communicate with the seller about any allergies they may have, the ingredients in a particular good or product, and/or the production facility where such goods are made. You should always consult a physician before changing your diet or taking any supplements.   Not all goods or products sold on this Site are suitable for everyone and every age.   In the event of allergies, adverse reactions, inappropriate consumption, or other actions by buyers or sellers, there is the possibility of physical injury and or death.  PimpCookie is not responsible for any health problems that may result from the purchase of goods on the Site or reliance on any Content available on the Site, including but not limited to, products, nutritional advice or effects, allergic reactions, or events you learn about through the Site. If you purchase goods through the Site you agree that you do so at your own risk.

 

(c) You agree that PimpCookie is a marketplace/venue only and therefore is not responsible or liable for any content including, but not limited to, data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on PimpCookie.

 

(d) PimpCookie does not guarantee continuous, uninterrupted access to the Site, and operation of the Site may be interfered with by numerous factors outside PimpCookie’s control. You use the PimpCookie service at your own risk.

 

  1. ACCOUNT REGISTRATION

 

(a) PimpCookie’s services include the buying and selling of goods.  Therefore, PimpCookie’s services are available only to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. You represent and warrant that you are at least 18 years old.  Individuals under the age of 18 must at all times use PimpCookie’s services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In such cases, the adult is the user and is responsible for any and all activities.

 

(b) You represent and warrant that all registration information you submit is accurate and truthful. PimpCookie may, in its sole discretion, refuse to offer access to or use of the Site to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Site is revoked in such jurisdictions.

 

(c)  In addition, you must abide by all PimpCookie’s policies mentioned in this Agreement as well as all other operating rules, policies and procedures that may be published from time to time on the Site by PimpCookie (if applicable to your activities on or use of the Site), each of which is incorporated herein by reference and each of which may be updated by PimpCookie from time to time without notice to you.  In addition, some services offered through the Site may be subject to additional terms and conditions promulgated by PimpCookie from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.

 

(d) To complete your registration, you will provide your full legal name, email address and create a password.  You are responsible for maintaining the confidentiality of your password and account.   You may optionally provide a picture, birthdate, and gender.   You are fully responsible for all activities that occur under your password or account.   You are further responsible for any and all liability and/or damage resulting from your failure to maintain password confidentiality.  It is important for you to protect against unauthorized access to your computer.  Be sure to log off when you finish using a shared computer.  You agree to immediately notify PimpCookie of any unauthorized use of your password or any breach of security. You also agree that PimpCookie cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than PimpCookie without PimpCookie’s express written permission.

 

(e) You must keep your account information up-to-date and accurate at all times, including a valid email address. To purchase or sell items on PimpCookie you must provide and maintain valid payment information such as valid credit card information with the PimpCookie merchant services provider, PayPal.  For information on PayPal and your payment information, please see the PimpCookie Privacy Policy and Fees.

 

(f) You may not transfer or sell your PimpCookie account and User ID to another party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.

 

(g) PimpCookie’s services are not available to cancelled or temporarily or indefinitely suspended PimpCookie users. PimpCookie reserves the right, in PimpCookie’s sole discretion, to cancel unconfirmed or inactive accounts. PimpCookie reserves the right to refuse service to anyone, for any reason, at any time.

 

(h) You may find some Content on the Site to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using PimpCookie, you agree to accept such risks and that PimpCookie (and PimpCookie’s officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on PimpCookie. Please use caution, common sense, and practice safe buying and selling when using PimpCookie.

 

(i) You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any PimpCookie service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make on the Site (excluding any taxes on PimpCookie’s net income).

 

  1. LISTING AND SELLING ITEMS

 

(a) All listings on PimpCookie must be for sale. By listing an item on the Site you warrant that you have the legal right and are authorized to sell such item and sell such item via the Site.  You warrant you, your method of sale, and all aspects of the item comply with PimpCookie’s policies. You must accurately describe your item and all terms of sale in your PimpCookie shop. Your listings may only include text descriptions, graphics, pictures and other content relevant to the sale of that item. All items must be listed in an appropriate category with appropriate tags. Each listing must accurately and completely describe the item/items for sale in that listing. If the “in stock” quantity is more than one, all items in that listing must be identical. Each unique item must have its own listing.

 

(b) All sellers must outline policies for their PimpCookie shop and make such policies available through their PimpCookie shop. These policies may include, for example, shipping, returns, payment and selling policies. Sellers must create reasonable policies in good faith and must abide by such policies. All shop policies must comply with PimpCookie’s site-wide policies. Sellers are responsible for enforcing their own reasonable shop policies. PimpCookie reserves the right to request that a seller modify a shop policy.

 

(c) Sellers are responsible for accurately listing their items. All sales are binding. The seller is obligated to ship the order or otherwise complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance, such as: (a) the buyer fails to meet the terms of the seller’s listing (such as payment method), or (b) the seller cannot authenticate the buyer’s identity.

 

(d) The price stated in each item listing description must be an accurate representation of the sale price. Sellers may charge reasonable shipping and handling fees to cover the costs for packaging and mailing the items. Sellers may not charge excessive shipping or handling fees.  Sellers may not attempt to avoid PimpCookie transaction fees. Sellers may not alter the item’s price after a sale for the purpose of avoiding PimpCookie transaction fees, misrepresent the item’s location, or use another user’s account without permission.

 

(e) The seller understands that there are state and federal restrictions on perishable items being shipped as well as limits on shipping between states, prohibitions on shipping, and requirements for the production, packaging, and handling of food items.  Seller hereby represents and warrants that Seller has the right to package and ship the items listed to the locations and by the means that seller indicates on seller’s shop page.

 

  1. PURCHASING ITEMS

 

Buyer is responsible for paying all fees and applicable taxes associated with using PimpCookie.  Buyers are responsible for reading the description of items before making a purchase.  PimpCookie does not endorse, vet, or take responsibility for any item or seller on the Site and has no liability to Buyer.  Upon placing your order, you acknowledge that PimpCookie may review your order, and the Content it contains, for adherence to our guidelines and compliance with the terms and conditions set forth in this Agreement.  Buyer is obligated to deliver the appropriate payment for items purchased, unless there is an exceptional circumstance.  Any disputes regarding a purchase or item, refund, or shipment shall be resolved between the Buyer and the Seller.

 

  1. FEES AND BILLING

 

(a) Joining and setting up a shop on PimpCookie is free. PimpCookie charges a percentage of the sale price when the item sells. PimpCookie’s Fees Policy, which is subject to change, is incorporated into this Agreement by reference. Changes to the Fees Policy and the fees for PimpCookie’s services are effective after PimpCookie provides you with at least fourteen (14) days’ notice by posting the changes on the Site. However, PimpCookie may choose to temporarily change the Fees Policy and the fees for PimpCookie’s services for promotional events; such changes are effective when PimpCookie posts the temporary promotional event on the Site. PimpCookie may, at PimpCookie’s sole discretion, change some or all of PimpCookie’s services at any time. In the event PimpCookie introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in US Dollars (USD).  In certain situations, including but not limited to a void or invalid transaction, PimpCookie may issue a credit for the applicable fees to a seller’s billing statement.

 

(b) Seller is responsible for paying all fees and applicable taxes associated with using PimpCookie. PimpCookie uses PayPal for its Merchant Services.  If not already done, a Seller must set up an account with PayPal which automatically deducts all PimpCookie fees from the Buyer’s payment at the time of purchase.  All details concerning fees, charges, and payments will be made available to Seller via the Seller’s individual PayPal dashboard.  For a full description of the process and support for your account please see PayPal.com.

 

(c) If PimpCookie terminates a listing or your account, if you close your account, or if the payment of your PimpCookie fees cannot be completed for any reason, you remain obligated to pay PimpCookie for all unpaid fees plus any penalties, if applicable. If the seller’s account is not paid in full within ten (10) days of removal of a listing or termination of the account for any reason, the seller risks penalties such as the suspension of privileges and/or termination of the account and other collection mechanisms (including retaining collection agencies and legal counsel). If you have a question or wish to dispute a charge, contact PimpCookie at admin@pimpcookie.com.

 

  1. PROHIBITED, QUESTIONABLE AND INFRINGING ITEMS AND ACTIVITIES

 

(a) You are solely responsible for your conduct and activities on and regarding to PimpCookie and any and all data, text, information, reviews, posts, usernames, graphics, images, photographs, profiles, audio, video, items, and links (together, “Content”) that you submit, post, and display on PimpCookie.

 

(b) You hereby represent and warrant that your Content and your use of PimpCookie shall not:

 

Upload, download, post, email or otherwise transmit any Content in a fradulent manner/for the purposes of committing a fraud, list for sale, or sell any fraudulent, illegal, counterfeit, or stolen items.

Upload, download, post, email or otherwise transmit any Content that is unlawful, harmful, threatening, trade libelous, abusive, vulgar, harassing, defamatory, obscene, pornographic, profane, indecent, inflammatory, libelous, tortious, hateful, racially, ethnically, socially, politically, legally, morally, religiously objectionable or otherwise objectionable, or invasive of another’s rights including but not limited to rights of celebrity, privacy and intellectual property.

Impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with a person or entity.

Upload, download, post, email or otherwise transmit any Content that may infringe any patent, trademark, trade secret, copyright or other intellectual or proprietary right of any party.

As a guideline, you may contribute only original work that you have created yourself from original elements. This means you can’t use images of celebrities or corporate products, nor images, text, or designs that you’ve copied from a website without written permission from the owner. You cannot create a “new” image using elements from images other people have created. You cannot contribute a quote or a slogan that is substantially the same as something already written by someone else. By uploading any Content, you represent and warrant that you have the lawful right to reproduce and distribute such Content and that the Content complies with all applicable federal, state and local laws, regulations and ordinances.

Upload, download, post, email or otherwise transmit any Content that would constitute or encourage a criminal offense, illegal activity, violate the rights of any party, or that would otherwise create liability or violate any local, state, national, or international law.

Use the Service to harm minors in any way, including, but not limited to, uploading Content that violates child pornography laws, child sexual exploitation laws and laws prohibiting the depiction of minors engaged in sexual conduct, or upload Content that may be seen as condoning or encouraging unsafe practices that would result in the physical, mental or moral harm of children.

Upload, download, post, email or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, or any other form of solicitation.

Upload, download, post, email or otherwise transmit any material that 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 any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information

Upload, download, post, email or otherwise transmit false, inaccurate, or misleading information.

Disrupt or interfere with the security of, or otherwise abuse, the Site, or any services, system resources, accounts, servers, third party sites, seller’s or customer’s sites, or networks connected to or accessible through the Site or affiliated or linked websites.

Access, tamper with or use non-public areas of the Site. Unauthorized individuals attempting to access these areas of the Site may be subject to prosecution.

Disrupt or interfere with any other user’s enjoyment of the Site or affiliated or linked websites.

Frame the Site within another Site or webpage or link to the Site except as permitted in writing by PimpCookie or Host images not part of a listing.

Incorporate images or names that would violate a person’s right of privacy or publicity; or

Incorporate a current or former leader, politician, religious figure, convicted criminal or notorious person, or other famous person’s name or likeness without their express written consent.

Use a manual or automatic device or process to retrieve, index, “data mine” or in any way reproduce or circumvent the navigational structure or presentation of the Service.

Copy, modify or distribute rights or Content from the Site, service or tools or PimpCookie’s copyrights and trademarks.

Harvest or otherwise collect information about users, including email addresses, without their consent.

Violate this Agreement, PimpCookie Guidelines, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising)

Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall.

Interfere with a seller’s business or shop.

Take any action that may undermine online reviews or feedback.

Appear to create liability for PimpCookie or cause PimpCookie to lose (in whole or in part) the services of PimpCookie’s ISPs or other suppliers

Listing any item on PimpCookie (or consummate any transaction that was initiated using PimpCookie’s service) that, by paying to PimpCookie the listing fee or the final value fee, could cause PimpCookie to violate any applicable law, statute, ordinance or regulation, or that violates the Terms of Use.

(c) You acknowledge that PimpCookie does not pre-screen submitted Content, but that PimpCookie and its designees shall have the right (but not the obligation) in their sole discretion to reject or remove any Content that is available via the Site. PimpCookie does not endorse any Content submitted to the Site by any user or other licensor, or any opinion, claim, recommendation, or advice expressed therein, and PimpCookie expressly disclaims any and all liability in connection with any Content. Without limiting the foregoing, PimpCookie and its designees shall have the right to remove, without prior notice, any Content that violates the Agreement or is otherwise objectionable to PimpCookie. You agree that you must evaluate, and bear all risks associated with, the use of any Content, including any reliance on the accuracy, completeness, or usefulness of such Content.

 

(d) You acknowledge and agree that you alone are responsible for the creation and compilation of your Content.

 

(e) You acknowledge and agree that PimpCookie may preserve or store your Content and may also disclose Content if required to do so by law or in the good faith belief that such preservation, storage or disclosure is reasonably necessary and as set forth in our Privacy Policy. You understand that the technical processing and operation of the Site, including your Content, may involve (i) transmissions over various networks; and (ii) changes to conform and adapt to technical requirements of connection networks or devices.

 

(f) You agree that you are responsible for actions and communications undertaken under your account. PimpCookie takes no responsibility and assumes no liability for any Content uploaded or otherwise transmitted by or to you or by or to any third-party, or for any mistakes, defamation, slander, libel, omissions, falsehoods, infringement, obscenity, pornography or profanity you or a third party may encounter. You agree to waive any claims against PimpCookie and its affiliates, contractors, agents and employees for losses, damages and injuries which are based on or relate to communications, Content or materials on the Site. You agree to indemnify PimpCookie and its affiliates from all claims and expenses, including reasonable attorney’s fees, which claims are based on or arise from your violation of any of the provisions of this Agreement.

 

(g) You agree that you will use this Site and items ordered on this Site in accordance with all applicable United States federal, state and local laws, statutes, regulations and ordinances and will not take any action that harms or violates the rights of any person or entity.

 

  1. RIGHTS TO AND USE OF CONTENT

 

(a) PimpCookie does not claim ownership rights in your Content. You grant PimpCookie a license solely to enable PimpCookie to use any information or Content you supply PimpCookie with, so that PimpCookie is not violating any rights you might have in that Content. You grant PimpCookie a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, trademark, and database rights (but no other rights) you have in the Content, in any media now known or not currently known, with respect to your Content. You agree to allow PimpCookie to store, translate, or re-format your Content on PimpCookie and display your Content on PimpCookie in any way PimpCookie chooses. PimpCookie will only use personal information in accordance with PimpCookie’s Privacy Policy.

 

(b) As part of a transaction, you may obtain personal information, including email addresses and shipping information, from another PimpCookie user. Without obtaining prior permission from the other user, this personal information shall only be used for that transaction or for PimpCookie-related communications. PimpCookie has not granted you a license to use the information for unsolicited commercial messages. Without limiting the foregoing, without express consent from the user, you are not licensed to add any PimpCookie user to your email or physical mail list. For more information, see PimpCookie’s Privacy Policy.

 

(c) By posting Content on PimpCookie, it is possible for an outside website or a third party to re-post that Content. You agree to hold PimpCookie harmless for any dispute concerning this use. If you choose to display your own PimpCookie-hosted image on another website, the image must provide a link back to its listing page on PimpCookie.

 

(d) PimpCookie considers any solicited or unsolicited suggestions, ideas, proposals, content of any notes, messages, e-mails, postings, letters, concepts or other material submitted to it by users via the Site or otherwise (other than the Content and the tangible items sold on the Site by users) (collectively, the “Material”) to be non-confidential and non-proprietary, and PimpCookie shall not be liable for the disclosure or use of such Material. If, at PimpCookie’s request, any user sends Material to improve the site (for example through the Forums or to customer support), PimpCookie will also consider that Material to be non-confidential and non-proprietary and PimpCookie will not be liable for use or disclosure of the Material. Any communication by you to PimpCookie is subject to this Agreement.  The intellectual property rights in or relating to the Material  will automatically be deemed to be assigned, granted and transferred by you to PimpCookie upon their submission or communication to PimpCookie, and you do assign all rights therein to PimpCookie and agree that the same will automatically become the property of PimpCookie and that PimpCookie may use, exploit, copy, publish, implement, transfer and in all other ways deal with such materials and all of the intellectual property rights therein in any way and for any purpose, commercial or otherwise, PimpCookie may elect, forever, without compensation or accounting to you and without further recourse by you.

 

(e) YOU REPRESENT AND WARRANT THAT YOU ARE THE OWNER OF THE CONTENT WHICH YOU SUBMIT AND THAT THE CONTENT DOES NOT INFRINGE UPON THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS (COPYRIGHTS AND TRADEMARKS) OR OTHER RIGHTS OF OTHERS. YOU ALSO REPRESENT THAT THERE ARE NO OUTSTANDING DISPUTES IN CONNECTION WITH THE PROPERTY RIGHTS, INTELLECTUAL PROPERTY RIGHTS OR OTHER RIGHTS IN THE CONTENT OR ANY PARTS OF THE CONTENT. YOU HEREBY REPRESENT AND WARRANT TO US THAT THIS AGREEMENT HAS BEEN DULY AND VALIDLY EXECUTED AND DELIVERED BY YOU AND CONSTITUTES YOUR LEGAL, VALID AND BINDING OBLIGATION, ENFORCEABLE AGAINST YOU IN ACCORDANCE WITH ITS TERMS; AND THAT THE EXECUTION, DELIVERY AND PERFORMANCE BY YOU OF THIS AGREEMENT ARE WITHIN YOUR LEGAL CAPACITY AND POWER; HAVE BEEN DULY AUTHORIZED BY ALL REQUISITE ACTION ON YOUR PART; REQUIRE THE APPROVAL OR CONSENT OF NO OTHER PERSONS; AND NEITHER VIOLATE NOR CONSTITUTE A DEFAULT UNDER THE (I) PROVISION OF ANY LAW, RULE, REGULATION, ORDER, JUDGMENT OR DECREE TO WHICH YOU ARE SUBJECT OR WHICH IS BINDING UPON YOU, OR (II) THE TERMS OF ANY OTHER AGREEMENT, DOCUMENT OR INSTRUMENT APPLICABLE TO YOU OR BINDING UPON YOU.

 

  1. THIRD PARTY SITES

 

PimpCookie is not responsible for the availability of outside websites or resources linked to, via widgets, or referenced on the Site. PimpCookie does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources.  PimpCookie does not monitor or investigate such websites and is not responsible for the content, functionality, or practices of such websites or widgets.  You agree that PimpCookie 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 the use of or reliance on any such content, goods or services available on or through any such websites or resources. If you decide to leave the PimpCookie site and access any third party website, you do so at your own risk.  PimpCookie suggests that you read the terms of use and privacy policies (if any) on those third party websites.

 

  1. RESOLUTION OF DISPUTES AND RELEASE

 

(a) In the event a dispute arises between you and PimpCookie, please contact PimpCookie. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Suffolk County, Massachusetts, using the English language in accordance with the Arbitration Rules and Procedures of American Arbitration Association (“AAA”) then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected in accordance with the Arbitration Rules and Procedures of AAA. The arbitrator’s award shall be final and binding.   The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys’ fees, expert witness fees and all other expenses) incurred in connection therewith. Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator. For all purposes of this Agreement, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the District of Massachusetts, Suffolk County. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section. You and PimpCookie agree that any cause of action arising out of or related to the Site (including, but not limited to, any services provided or made available therein) or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.

 

(b) You hereby consent to, and waive all defenses of lack of personal jurisdiction and forum non conveniens with respect to venue and jurisdiction in the state and federal courts of California. You further agree that any dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated or representative action. If for any reason a claim is initiated in court rather than in arbitration you and PimpCookie waive any right to a jury trial.

 

(c) In the event a dispute arises between you and another user or a third party, PimpCookie encourages you to contact the user or third party to resolve the dispute amicably.   If you have a dispute with one or more users or sellers you release PimpCookie (and PimpCookie’s officers, directors, agents, subsidiaries, joint ventures and employees) 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.

 

(d) If a buyer and seller have a dispute resulting from a transaction that occurs on PimpCookie, they must resolve such dispute amongst themselves.  PimpCookie has no obligation to resolve disputes between users or between users and outside parties. To the extent that PimpCookie attempts to resolve a dispute, PimpCookie will do so in good faith based solely on PimpCookie’s policies. PimpCookie will not make judgments regarding legal issues or claims.

 

(e) You may also report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.

 

(f) You release PimpCookie (and PimpCookie’s officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with disputes with one or more users, or an outside party.

 

  1. PimpCookie’s INTELLECTUAL PROPERTY

 

(a) PimpCookie, and other PimpCookie graphics, logos, designs, page headers, button icons, scripts, and service names are copyrights, registered trademarks, trademarks or trade dress of PimpCookie, Inc. in the U.S. and/or other countries. PimpCookie’s trademarks and trade dress may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion to consumers or in any manner that disparages or discredits PimpCookie.  All other trademarks not owned by PimpCookie that appear on this site are the property of their respective owners.  If you desire to use PimpCookie’s trademarks for promotions or advertisements, please email admin@pimpcookie.com.

 

(b) You acknowledge and agree that any Content, including but not limited to text, data, photos, graphics, etc. or other material contained or distributed on or through the Site, by PimpCookie, its advertisers or other third parties, is protected by trademarks, service marks, patents, copyrights, or other proprietary rights and laws. You may not use or distribute any Content received through the Site without the authorization of PimpCookie or the Content owner. You agree not to publish, reproduce, copy, in whole or in part, nor upload, download, post, email, sell, or otherwise distribute Content available through the Site, in violation of applicable copyright and other intellectual property laws.

 

(c) You acknowledge and agree that the Site and any software provided to you or used in connection with the Site, including, for example and without limitation, any PimpCookie API or other scripts (“Software”) contains proprietary and confidential information that is protected by applicable intellectual property and other laws.  Other than as expressly provided under these terms, you agree not to reproduce, duplicate, copy, sell, resell or exploit for other commercial purposes, any portion of the Site, without PimpCookie’s express written consent.

 

  1. PROMOTIONS

 

In addition to the terms and conditions in this Agreement, any contests, sweepstakes, surveys, games or similar promotions (collectively, “Promotions”) made available through the Site may be governed by specific rules that are separate from this Agreement. By participating in any such Promotion, you will become subject to those rules, which may vary from the terms and conditions in this Agreement. We ask you to please review any specific rules applicable to a particular Promotion, which will be linked from such Promotion, and to review our Privacy Policy which, in addition to this Agreement, governs any information you submit in connection with such activities. To the extent that the terms and conditions of such rules conflict with this Agreement, the terms and conditions of such program/promotion shall control.

 

  1. ACCESS AND INTERFERENCE

 

PimpCookie may contain robot exclusion headers which contain internal rules for software usage. Much of the information on PimpCookie is updated on a real-time basis and is proprietary or is licensed to PimpCookie by PimpCookie’s users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access PimpCookie for any purpose whatsoever, except to the extent expressly permitted by and in compliance with PimpCookie’s API Terms of Use or otherwise without PimpCookie’s prior express written permission. Additionally, you agree that you will not:

 

  1.      Take any action that imposes, or may impose, in PimpCookie’s sole discretion, an unreasonable or disproportionately large load on PimpCookie’s infrastructure

 

  1.      Copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content (except for your Content) or other allowed uses as set out in PimpCookie Guidelines or otherwise without the prior express written permission of PimpCookie and the appropriate third party, as applicable

 

  1.      Interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site

 

  1.      Bypass PimpCookie’s robot exclusion headers or other measures PimpCookie may use to prevent or restrict access to PimpCookie

 

  1. BREACH

 

(a) Without limiting any other remedies or abilities, PimpCookie may, without notice, and without refunding any fees, delay or immediately remove Content, warn PimpCookie’s community of a user’s actions, issue a warning to a user, temporarily suspend a user, temporarily or indefinitely suspend a user’s account privileges, terminate a user’s account, prohibit access to the Site, and take technical and legal steps to keep a user off the Site and refuse to provide services to a user if any of the following apply:

 

(b) PimpCookie suspects (by information, investigation, conviction, settlement, insurance or escrow investigation, or otherwise) a user has breached this Agreement, the Privacy Policy, PimpCookie Guidelines, or other policy documents and community guidelines incorporated herein; PimpCookie is unable to verify or authenticate any of your personal information or Content; or PimpCookie believes that a user is acting inconsistently with the letter or spirit of PimpCookie’s policies, has engaged in improper or fraudulent activity in connection with PimpCookie or the actions may cause legal liability or financial loss to PimpCookie’s users or to PimpCookie.

 

(c) PimpCookie reserves the right to suspend and/or terminate a person’s account or any accounts held by that person by virtue of association, including all usernames under which that person operates on PimpCookie.

 

(d) PimpCookie’s failure to act with respect to a breach by you or others does not waive PimpCookie’s right to act with respect to subsequent or similar breaches.

 

  1. NO WARRANTY

 

YOUR USE OF THE SITE IS AT YOUR SOLE RISK.  PimpCookie, PimpCookie’s SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND PimpCookie’s SUPPLIERS PROVIDE PimpCookie’s WEB SITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. PimpCookie, PimpCookie’s SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND PimpCookie’s SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR infoRMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM PimpCookie SHALL CREATE ANY WARRANTY.  PimpCookie DOES NOT CREATE ANY WARRANTY THAT (A) THE SITE OR ITS CONTENT WILL MEET YOUR REQUIREMENTS OR (B) THAT THE SITE OR SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE, OR (C) THE QUALITY OF ANY PRODUCTS, SERVICES, infoRMATION, OR OTHER MATERIAL PURCHASE OR OBTAINED BY YOU THROUGH THE SITE WILL MEET YOUR EXPECTIONS OR (D) THAT DEFECTS, IF ANY WILL BE CORRECTED, OR (E) THERE WON’T BE ANY UNATHORIZED ACCESS TO OR USE OF OUR SECURE SERVERS AND OR ANY AND ALL PERSONAL infoRMATION AND OR FINANCIAL infoRMATION STORED THEREIN, OR (G) ANY BUGS, VIRUSES, TROGJAN HORSES, OR THE LIKE WHICH MAY BE TRANSMITTED TO OR THROUGH OUR SERVICES BY ANY THIRD PARTY WILL BE MONITORED OR PREVENTED.  SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU. THIS WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER LEGAL RIGHTS THAT VARY FROM STATE TO STATE.

 

  1. LIABILITY LIMIT

 

IN NO EVENT SHALL PimpCookie, AND (AS APPLICABLE) PimpCookie’s SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR PimpCookie’s SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, PimpCookie’s SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES.

 

PimpCookie’s LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF PimpCookie’s SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO PimpCookie IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

 

  1. INDEMNITY

 

YOU AGREE TO INDEMNIFY AND HOLD PimpCookie AND (AS APPLICABLE) PimpCookie’s PARENT, SUBSIDIARIES, AFFILIATES, OFFICERS, DIRECTORS, AGENTS, AND EMPLOYEES, HARMLESS FROM ANY CLAIM OR DEMAND, INCLUDING REASONABLE ATTORNEYS’ FEES, MADE BY ANY THIRD PARTY DUE TO OR ARISING OUT OF YOUR USE OF THE SITE, SUBMITTED CONTENT, BREACH OF THIS AGREEMENT, OR THE DOCUMENTS IT INCORPORATES BY REFERENCE, OR YOUR VIOLATION OF ANY LAW OR THE RIGHTS OF A THIRD PARTY.

 

  1. DMCA AND INTELLECTUAL PROPERTY RIGHTS POLICY?

 

As PimpCookie asks that others respect its intellectual property rights, PimpCookie respects the intellectual property rights of others. If you believe that material located on or linked to by the Site violates your copyright or trademark, you are encouraged to notify PimpCookie in accordance with PimpCookie’s Digital Millennium Copyright Act (“DMCA”) Policy (see below). PimpCookie will respond to all such notices, including as required or appropriate by removing the infringing material or disabling all links to the infringing material that are contained on the Site. PimpCookie may terminate a user’s access to and use of the Site at PimpCookie’s sole discretion if PimpCookie determines that the user is or may be infringing on the copyrights or other intellectual property rights of PimpCookie or others.

 

 

 

DMCA/IP Notification Policy:  To notify PimpCookie of infringing or unlawful content, please provide PimpCookie with the following information:

 

Your name, address, telephone number and e-mail address;

A description of the exact location on the Site of the infringing or unlawful content;

A description of the claimed infringing or unlawful content, specifying which parts you belief infringe or are unlawful and which parts you believe should be removed;

In the event that you believe that the content infringes  your rights, please include a detailed statement specifying your asserted rights and why the content infringes them;

In the event that you believe that the content is unlawful, please include a detailed statement specifying why you believe that the content breaches a particular law; and

A sworn and signed statement that the information provided is accurate and that you are directly or indirectly damaged by the content.

PimpCookie takes such notices very seriously.  PimpCookie will evaluate the provided notice and if appropriate, based on PimpCookie’s sole discretion, remove the content or disable access to the content.   Based on PimpCookie’s judgment, PimpCookie may notify the source of the content of your complaint and PimpCookie’s actions in response to your complaint.  PimpCookie reserves the right in PimpCookie’s sole discretion to restore such content if the source of such content provides evidence that the content should not have been removed.  PimpCookie encourages you to seek the advice of an independent attorney before filing an intellectual property notice or responding to a notice filed by another user.

 

PimpCookie may be notified of claims of intellectual property infringement by contacting our designated copyright agent by way of email, providing the above requested information to:

 

PIMPCOOKIECO.

 

Sub: Copyright issue

 

Attn: Copyright Agent

 

Admin@pimpcookie.com.

 

 

Infringement and Third Party Content

 

Because the Site allows content to be posted from third parties and third party websites, there is a chance that the ability to remove any allegedly infringing content will be out of PimpCookie’s control. While PimpCookie will make a good faith effort to remove the allegedly infringing content, once content is posted from PimpCookie to any third-party website, PimpCookie will have no control or ability to remove such content.  If you believe your copyright has been infringed by a PimpCookie user posting content from a third party website or to a third party website, we strongly suggest you contact the third party or third party site directly and request the allegedly infringing material be taken down.

 

  1. SEVERABILITY

 

If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties’ intention. All remaining provisions of this Agreement shall remain in full force and effect.

 

  1. RELATIONSHIP

 

You and PimpCookie are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.

 

  1. PimpCookie SERVICES

 

PimpCookie reserves the right to modify or terminate the PimpCookie service for any reason, without notice, at any time. PimpCookie reserves the right to alter these Terms of Use or other Site policies at any time, so please review the policies frequently. If PimpCookie makes a material change PimpCookie will notify you here, by email, by means of a notice on our home page, or other places PimpCookie deems appropriate. What constitutes a “material change” will be determined at PimpCookie’s sole discretion, in good faith, and using common sense and reasonable judgment.

 

  1. CHOICE OF LAW

 

This Agreement shall in all respects be interpreted and construed with and by the laws of the State of Delaware, excluding its conflicts of laws rules, and the United States of America.

 

  1. SURVIVAL

 

Sections 3 (Listing and Selling Items), 5 (Fees and Billing), 7 (Rights to and use of Content), 9 (Resolution of Dispute and Release), 10 (PimpCookie’s Intellectual Property), 12(Access and Interference), 13 (Breach), 14 (No Warranty), 15 (Liability Limit), 16 (Indemnity), 18 (Severability), 21 (Choice of Law), 22 (Survival) shall survive any termination or expiration of this Agreement.

 

  1. ASSIGNMENT

 

PimpCookie may assign its rights and responsibilities hereunder without notice to you.

 

  1. GENERAL

 

These terms and conditions will inure to the benefit of PimpCookie’s successors, assigns and licensees.  Any heading, caption, or section title contained herein is inserted only as a matter of convenient, and in no way defines or explains any section or provision hereof.  The failure of PimpCookie to exercise or enforce any right or provision of this Agreement will not constitute a waiver of such rights or provisions.

 

  1. NOTICES

 

Except as explicitly stated otherwise, any notices shall be given by postal email to PIMPCOOKIECO; Attn: Legal Department; Admin@pimpcookie.com (in the case of PimpCookie) or, in your case, to the email address you provide to PimpCookie (either during the registration process or when your email address changes). Notice shall be deemed given 48 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, PimpCookie may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to PimpCookie. In such case, notice shall be deemed given three days after the date of mailing.

 

 

Effective Date: June 18th 2015