USER AGREEMENT FOR THE NEW YORK GIANTS PSL MARKETPLACE
THE OFFICIAL PSL TRANSFER SITE FOR GIANTS PSLs AND SEASON TICKETS
As a condition of any use of the Website (as defined below) as a Buyer or Seller or otherwise, You agree to the terms of this User Agreement (this “Agreement”).
In addition to such terms as are defined in this Agreement, the following definitions shall apply:
1.1. “Account Numbers” means unique designations issued by the Giants for each PSL or PSL account upon approval of a Transaction; assignment of an Account Number indicated Transaction Completion as defined in this Agreement.
1.2. “Binding Acceptance” is defined in Section 3.2.6.
1.3. “Buyer” means a person or entity seeking to purchase or purchasing a Personal PSL (“PSL”) through the Website, and who is approved by the Giants prior to the completion of a Transaction, as defined herein.“Buyer” includes You when You seek to purchase or have purchased a PSL through the Website.“Buyer” means the person purchasing from You when You are acting as a Seller.
1.4. “Buyer’s Transfer Fee” is a fee that Buyer pays to Marketplace, and is currently one hundred dollars ($100) plus an amount equal to the greater of (a) ten percent (10%) of the final PSL Transaction price agreed by a Buyer and Seller for a Listing or (b) two hundred fifty dollars ($250); the one hundred dollar fee shall not apply for Transactions over seven thousand five hundred dollars ($7,500).
1.5. “Giants” means either or both of Giants Stadium LLC with respect to PSLs, and the New York Football Giants, Inc. with respect to Ticket Agreements,
1.6. “Warranty” means the obligations and guarantees of Marketplace provided in Section 2.3.
1.7. “Seller” means a PSL holder who has been pre-qualified by the Giants as eligible to post a Listing, offer to sell, sell and transfer his, her or its rights under a PSL .“Seller” includes You when You seek to sell or have sold a PSL through the Website.“Seller” means the person selling to You when You are acting as a Buyer.
1.8. “Seller’s Transfer Fee” means a fee that Seller pays to Marketplace, and is currently one hundred dollars ($100) plus an amount equal to the greater of (a) ten percent (10%) of the final PSL Transaction price agreed by a Buyer and Seller for a Listing or (b) two hundred fifty dollars ($250); the one hundred dollar fee shall not apply for Transactions over seven thousand five hundred dollars ($7,500).
1.9. “Transaction” means (a) that a binding contract has been created between a Buyer and Seller for the sale and transfer of one or more PSLs, conditioned upon approval of the Transaction by the Giants, (b) the Giants have approved of the Transaction based upon completed Transfer Forms, (c) Marketplace has collected all payments from the Seller and Buyer, and (d) a new PSL and Season Ticket Agreement have been duly signed and fully paid for.A Transaction excludes the separate PSL contract with the Giants,, and the separate PSL contract that a Buyer executes with the Giants as a result of a Transaction.
1.10. “Transaction Fee”means the price that a Buyer and Seller agree upon in a Transaction.
1.11. “Transaction Completion” is defined in Section 3.2.9, and requires payment of Transfer Fees and Transaction Fees in full, execution of all required forms and agreements, approval of the Giants and assignment of Account Numbers.
1.12. “Transfer Fee” means Seller’s Transfer Fee and Buyers Transfer Fee.
1.13. “Listing” means a Seller’s individual post of the offer of a PSL on the Website, to which Marketplace shall assign a unique number (“Listing Number”) to identify the Listing and Transactions regarding that Listing.
1.14. “Marketplace” means STR Marketplace, LLC.
1.15. “PSL”means one or more Personal Seat License Agreements between GSLLC and a Seller or an approved Buyer, and for the purposes of this Agreement shall include the Ticket Agreement with the New York Giants that a Seller has signed, or a successful Buyer signs, associated with and part of each PSL, and the parking passes held by the PSL owner.
1.16. “Website” means the website at http://nygiants.strmarketplace.com/.
1.17. “You” means you, the user of this Website.
2. MARKETPLACE RIGHTS, DUTIES, AND EXCLUSION OF DUTIES
2.1. Your Use of the Website:
2.1.3. You agree that Marketplace, in its sole discretion, may prohibit You or any other person from use of the Website.
2.2. Modification or Deletion of Listings: Marketplace may modify or delete any Listing on the Website if:
2.2.1. You violate any term of this Agreement or any rule or requirement on the Website;
2.2.2. Marketplace cannot verify any information that You provide;
2.2.3. Marketplace determines, in its sole discretion, that a Listing must be modified or deleted to avoid liability for Marketplace or You or any other person.
Neither Marketplace nor the Giants shall have any liability to You for modifying or deleting a Listing, and You expressly agree that you have no rights with respect to or arising from the modification or deletion of a Listing.
2.3. The Marketplace Warranty:Marketplace warrants to You the following:
2.3.1. SellerSecure Warranty: Marketplace guarantees that, after Transaction Completion, Seller will receive from Marketplace the final sales price less the Seller’s Transfer Fee.
2.3.2. BuyerSecure Warranty:Marketplace guarantees that (a) if Marketplace receives Buyer’s payment and if Transaction Completion does not occur, then Buyer will receive from Marketplace a refund of Buyer’s payment, and (b) if Marketplace receives Buyer’s payment, executed Transfer Forms and executed PSL, and if the Transaction is approved by the Giants, Buyer will receive the purchased PSL, Season Tickets and (if applicable parking passes).
2.3.3. THE FOREGOING WARRANTIES ARE THE SOLE AND EXCLUSIVE WARRANTIES MADE UNDER THIS AGREEMENT OR OTHERWISE BY OPERATION OF LAW, AND MARKETPLACE HEREBY DISCLAIMS ALL OTHER WARRANTIES, EXPRESS OR IMPLIED.THE GIANTS MAKE NO WARRANTIES, GUARANTEES, OR REPRESENTATIONS OF ANY KIND WITH RESPECT TO THE WEBSITE AND YOUR USE THEREOF,AND YOU SHALL HAVE NO RIGHTS AGAINST THE GIANTS UNDER THIS AGREEMENT OR ANY OTHER AGREEMENT BETWEEN YOU AND MARKETPLACE, OR BETWEEN YOU AND THE OTHER PARTY TO A TRANSACTION.
2.3.4. Notwithstanding the foregoing, Marketplace may suspend any payments to You pending any investigation permitted under this Agreement.
2.4. Website Maintenance and Interruption: Marketplace at any time may modify, suspend, or discontinue, temporarily or permanently, the Website or any part of the Website without notice. Marketplace shall not be liable for any modification, suspension or discontinuance of the Website or any services relating to this Agreement.Marketplace does not warrant continuous, uninterrupted or secure access to the Website.
2.5. Reports to Government: Marketplace may report to any governmental agency or authority or to the Giants any activity that Marketplace believes may violate any law or regulation.
2.6. No Enforcement Obligations: Buyer and Sellers are entering into their own, contract in a Transaction, separate from the Seller’s PSL and from the Buyer’s new PSL with the Giants.Neither Marketplace nor the Giants is a party to a Transaction.If You are a Buyer or a Seller You may enforce any rights you may have under a Transaction directly against the other party to the Transaction (the Buyer or the Seller).Neither Marketplace nor the Giants has any obligations with respect to a Transaction or the separate contract between a Buyer and Seller; You agree that You shall not seek to enforce any rights from a Transaction against either Marketplace or the Giants, or to seek any remedies against them as a result of any alleged violation of Your rights under a Transaction.Nothing in this paragraph affects any rights that Marketplace may have under this or other Agreements with You, or the rights of the Giants under PSLs.
2.7. Assignment and Release of Rights to Interest on Money:You agree that Marketplace may earn or accrue interest on any money held by Marketplace during any Transaction under this Agreement, and you assign to Marketplace (and agree to assign) all rights that You may have now or in the future to any earned or accrued interest on any money held by Marketplace during any Transaction under this Agreement, and You release any claim that You may have, now or in the future, to any such earned or accrued interest.
3. YOUR DUTIES AND CONDITIONS OF YOUR USE OF THE WEBSITE
3.1. In addition to other obligations You have under this Agreement or other Agreements with Marketplace, each of the following is Your obligation and is a condition of Your use or continued use of the Website:
3.1.1. Registration, Name and Password: You shall register and provide all required information for registration as a condition to any use of the Website.You shall not register under a false name or use any other false or misleading information.All of the information You provide shall be true and accurate, and You are providing that information with the intent that Marketplace and the Giants can rely on it. You assume all obligations for any Transaction relating to Your registration, user name, or password. You shall protect the security of Your user name and password.
3.1.2. Sales Must be through the Website:So long as You have Listed a PSL on the Website, You agree that you shall conduct business with respect to the PSL exclusively through the Website; that You shall not sell PSLs offered on the Website to any person or entity who has contacted You through this Website or to any person or entity identified through information provided by this Website, except in a Transaction through the Website.You shall not complete any Transaction begun on the Website without paying to Marketplace the required Buyer’s Transfer Fee or Seller’s Transfer Fee, as the case may be, and complying with the other requirements for a Completed Transaction.
3.1.3. Information: You shall provide accurate and complete information for any Transaction using the Website.You shall not provide any information to Marketplace or list any information on the Website that is false, inaccurate, misleading, fraudulent, obscene or defamatory.You shall promptly provide to Marketplace all information required on the Website or by any communication from Marketplace.You shall promptly remove, correct or modify all information when any information becomes incorrect, incomplete, or misleading and Marketplace may remove any such information if it so elects. IN ADDITION , YOU EXPRESSLY COVENANT, WARRANT AND REPRESENT TO MARKETPLACE AND THE GIANTS THAT ALL INFORMATION YOU PROVIDE IS GENUINE, ACCURATE AND MAY BE RELIED UPON BY MARKETPLACE AND THE GIANTS, AND IF YOU ARE A SELLER, YOU FURTHER COVENANT, WARRANT AND REPRESENT TO MARKETPLACE AND THE GIANTS THAT YOU ARE THE OWNER OF THE PSL OR THE DULY AND LEGALLY AUTHORIZED REPRESENTATIVE OF THE PSL OWNER.
3.1.4. Availability of the Website; Time Periods for Approval of Transactions by the Giants:
(a) No PSL shall be transferred or part of any Transaction more than once in any 365 day period, without the Giants’ express prior approval, which it may grant or withhold in its sole discretion; and
(b) The Website will be available and accessible all year, but (unless otherwise provided by the Giants in their sole discretion), the Giants will review, approve and process Transactions only during the period from February 1 through and including May 1, and from October 1 through and including October 31 of any year
3.2. Transactions and Your Additional Obligations.
3.2.1. Your Obligations, Generally:Buyer and Seller each shall be responsible for reviewing all materials and information to ensure that all transfer documents are correct and to ensure that the Giants transfer the correct PSLs.Buyer and Seller should constantly verify all information relating to the PSLs from the creation and posting if a Listing until Transaction Completion, including, but not limited to, any description given by Buyer, Seller, or Marketplace regarding the location of the PSLs or any amenities or benefits associated with the PSLs.Verification of the transfer and verification of all information relating to the PSLs is the duty of both Buyer and Seller, and not Marketplace or the Giants.Buyer and Seller each shall cooperate with Marketplace, the other party (Buyer or Seller), and the Giants to complete and to verify the transfer of the PSLs, including execution and delivery of any documents and participation in telephone calls if requested by Marketplace.
3.2.2. Required Forms For Transactions; Your Agreement To Those Forms.
(a) Required Transfer Forms: Every Transaction requires the use and full completion of a Transfer Form, one for the Buyer and one for the Seller, which shall be provided to you by the Marketplace during a Transaction.
(b) Required PSL Agreement Forms:Every Transaction requires the Buyer (and the Seller, if it is retaining any PSL rights) to sign a new PSL with the Giants.The required PSL is available on the Website for viewing, and also can be viewed by clicking here: http://nygiants.strmarketplace.com/Images/library/new-york-giants/psl-agreement.pdf
(c) You agree that you will NOT proceed with Listings or Offers to Buy (as those terms are defined in this Agreement) until and unless you understand and agree to all of the terms and conditions of the PSL.If you do proceed with Listings or Offers to Buy, you are agreeing to all of the terms and conditions of the PSL.
3.2.3. Listing a PSL.If You have registered on the Website and you are a Seller, then, You may submit to Marketplace Listings for posting on the Website.You agree that, before posting any Listing on the Website, Marketplace is required to submit the requested Listing to the Giants for confirmation of eligibility for transfer; if the Giants approve, Marketplace will post the Listing on the Website; if the Giants disapprove, Marketplace will communicate with Your and may seek additional information.You have no right to the posting of a Listing without the approval of the Giants. You shall not submit a Listing unless You have full authority to assign and transfer the rights in the PSL if the Transaction is approved by the Giants. If the Giants approve a Listing, neither Marketplace nor the Giants waives any other rights it may have under this Agreement. You may withdraw a Listing before Binding Acceptance, as defined in Section 3.2.5, occurs; Marketplace has sole discretion to determine whether You have withdrawn a Listing before Binding Acceptance.If Binding Acceptance has occurred before You withdraw a Listing, You are obligated to proceed with a Transaction for that Listing.No Listing shall be accepted that is for, or involves a renewal or waiting list positions with the Giants, and no Transaction shall involve only tickets to Giants games and/or parking passes.
3.2.4 .Offer to Buy:If You have registered on the Website and You are a Buyer, then You may submit through the Website offers to purchase PSLs identified in Listings (an “Offer to Buy”). Subject to the discretion
of the Marketplace, a buyer may submit an Offer to Buy on a maximum of
three (3) listings at any one time. If any one of a Buyer's Offers to
Buy reaches Binding Acceptance all of the Buyer's remaining Offers to
Buy will terminate, unless otherwise determined by the Marketplace. Buyer’s Offer to Buy shall be binding upon Buyer until the offer terminates.An Offer to Buy shall terminate forty-eight (48) hours after Buyer submits the offer or earlier if Buyer provides notice to Marketplace of termination of the Offer to Buy before Binding Acceptance has occurred.Marketplace shall have sole discretion to determine whether a termination of an Offer to Buy has occurred before Binding Acceptance has occurred.If Marketplace determines that Binding Acceptance has occurred before termination of an Offer to Buy, then Buyer shall be bound to proceed with the Transaction.Buyer shall provide an Offer to Buy only in the form and manner prescribed by the Website.Under the process adopted by Marketplace, Seller may not make a price offer.Seller may only suggest a price that Buyer might offer.
3.2.5 Counter Offer: A Seller may, in the process of rejecting an Offer to Buy, submit a Counter Offer to a Buyer (a “Counter Offer”). Seller’s Counter Offer will be binding upon a Seller until the Counter Offer terminates. A Counter Offer shall terminate forty-eight (48) hours after Seller submits the Counter Offer or earlier if Seller provides notice to Marketplace of termination of the Counter Offer before Binding Acceptance has occurred. Marketplace shall have sole discretion to determine whether a termination of a Counter Offer has occurred before Binding Acceptance has occurred. If Marketplace determines that Binding Acceptance has occurred before termination of a Counter Offer, then Seller shall be bound to proceed with the Transaction. Seller shall provide a Counter Offer only in the form and manner prescribed by the Website.
3.2.6. Binding Acceptance: “BINDING ACCEPTANCE” OCCURS WHEN SELLER PROVIDES TO MARKETPLACE, THROUGH SELLER’S ACCOUNT INTERFACE ON THE WEBSITE, ELECTRONIC NOTICE THAT SELLER ACCEPTS BUYER’S OFFER TO BUY OR WHEN A BUYER PROVIDES TO
MARKETPLACE, THROUGH BUYER’S ACCOUNT INTERFACE ON THE WEBSITE, ELECTRONIC
NOTICE THAT BUYER ACCEPTS SELLER’S COUNTER OFFER. UPON THE OCCURRENCE OF BINDING ACCEPTANCE, EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, BUYER AND SELLER ARE OBLIGATED TO COMPLETE THE TRANSACTION UNDER THE TERMS AND CONDITIONS OF THE TRANSFER FORM AND PSL (IF THE GIANTS APPROVE AFTER SUBMISSION OF ALL REQUIRED DOCUMENTATION), AND TO USE REASONABLE EFFORTS TO ACHIEVE TRANSACTION COMPLETION, SUBJECT TO THE ADDITIONAL STEPS REQUIRED BY THIS AGREEMENT OR THE WEBSITE, AND SUBJECT TO THE GIANTS’ FINAL APPROVAL. ACCEPTING A BUYER’S OR SELLER'S WRITTEN
OFFER OR COUNTER OFFER THROUGH WRITTEN COMMUNICATION ON THE WEBSITE’S MESSAGE CENTER DOES NOT
CONSTITUTE BINDING ACCEPTANCE.
3.2.7. Completion and Submission of Required Transfer Forms and PSL:Within ten (10) days after Binding Acceptance, Marketplace will complete the required Transfer Form and PSLs for the Transaction, and You are obligated to complete any additional information on the required Transfer Forms or PSLs for the Transaction.Buyer and Seller agree that proper, timely and accurate completion of Transfer Forms and applicable PSLs is required for Transaction Completion and approval of the Giants.
3.2.8. Payments After Binding Acceptance:
(a) Within ten (10) days after Binding Acceptance, the Buyer and Seller shall pay the following amounts to Marketplace:
(i) Buyer shall pay the Transaction Fee, the Buyer Transfer Fee and Marketplace may charge You, and if You are a Buyer You agree to pay, an additional fee for debit and credit card transactions up to three percent (3%) of the final Transaction Fee ;
(ii) Seller agrees to pay the Seller Transfer Fee and may charge You, and if You are a Seller You agree to pay, an additional reasonable charge for specific shipping methods.
(b) You agree to pay all Transaction Fees, Transfer Fees and charges before Marketplace submits a Transaction to the Giants for approval, and Marketplace has no obligation to submit a Transaction to the Giants for approval until and unless all Transaction Fees, Transfer Fees and charges are paid in full by both a Buyer and Seller in a Transaction.
(c) The Website provides You with multiple secure payment options, including traditional credit cards (Visa, MasterCard, Amex) and alternate options such as ACH, check and wire transfer. Marketplace will deposit, or cause to be deposited, all payments made and funds received for a Transactions in a segregated and separate demand deposit account maintained by Marketplace with a bank (the “Depository Bank”) (the “Escrow Account”).Marketplace agrees that any funds in the Escrow Account are held by it in escrow as agent for the benefit of Sellers and Buyers until such time as a Transaction is approved by the Giants and Transaction Completion occurs.Marketplace acknowledges and agrees that it has no property interest in the funds in the Escrow Account, and that the monies in the Escrow Account shall not be earned by Marketplace or become property of any Marketplace estate until released to Marketplace in accordance with this Agreement after Transaction Completion.
3.2.9. Approval of the Giants.Once Marketplace has received all properly completed Transfer Forms and PSLs and all payments, Marketplace will submit the Transaction to the Giants for approval.Neither Marketplace nor the Giants warrants or guarantees that any Transaction will be approved.
(a) If a Transaction is approved by the Giants, the giants will assign Account Numbers for the new PSLs involved in a Transaction, and the Giants will notify You and Marketplace.
(i) When the Giants notify You and Marketplace of an approval and assign Account Numbers, then Transaction Completion has occurred.Upon Transaction Completion, the monies You have paid into the Escrow Account will be released: Marketplace will withdraw all Transfer Fees and other charges to which it is entitled, Marketplace will pay the Transaction Fee to the Seller, and will pay the Giants the PSL fees.After payment, Marketplace has no further obligations to You, and if You are a Buyer, or a Seller who has retained PSLs, you agree to deal directly with the Giants as to the PSLs.
(ii) If the Giants disapprove of a Transaction or require additional information, the Giants will notify Marketplace, which then will communicate with You.You agree to provide additional information, if requested.If the Transaction is disapproved, the Transaction shall be at an end, and Marketplace will refund all monies paid by You and held in the Escrow Account.
(iii) The Giants' approval of a Transaction does not waive any of the rights of Marketplace or the Giants under this Agreement.
3.2.10. Correction of Errors: Before Transaction Completion has occurred, if Buyer or Seller discovers any issues or errors regarding the PSLs or the transfer of the PSLs then Buyer and Seller each shall provide notice to Marketplace of the issues or errors, and Buyer and Seller shall work together in good faith to attempt to correct the issues or errors for a reasonable period of time not to exceed ten (10) days.If any issue or error is not resolved to the reasonable satisfaction of both Buyer and Seller, then
(a) Buyer or Seller may request that Marketplace exercise its discretion to terminate the Transaction if it has not yet been approved by the Giants as indicated by the Giants’ assignment of Account Numbers; and
(b) If Transaction Completion has occurred as indicated by the Giants’ assignment of Account Numbers, then Buyer or Seller agree to communicate with the Giants to seek corrections.MARKETPLACE SHALL HAVE NO RESPONSIBILITY FOR ASSISTING THE PARTIES TO CORRECT ERRORS DISCOVERED AFTER TRANSACTION COMPLETION.However, as between You and the other party (Buyer or Seller), You shall cooperate with the other party and the Giants to correct any errors discovered after Transaction Completion.
3.3. Termination of a Transaction:A Buyer or Seller may terminate a Transaction only as provided in this Section, and only before Buyer’s payment of all or any part of the amounts required by Section 3.2.8, which addresses Buyer’s payment of Transaction Fees, Transfer Fees and other charges.IF BUYER HAS MADE ALL OR ANY PART OF ITS PAYMENTS, THERE IS NO RIGHT TO TERMINATE A TRANSACTION AND YOU ARE OBLIGATED TO FULFILL THE TRANSACTION.If termination of a Transaction occurs, then You shall no longer have any rights under the proposed Transaction, and the Listing may be returned to the Website or de-listed (in the sole discretion of Marketplace).You shall be deemed to agree to terminate a Transaction (a) if You provide written or electronic notice of your agreement to terminate or (b) if You fail to respond (within the time required or requested by Marketplace) to a request by Marketplace for notice whether you agree to terminate the Transaction.
3.3.1. Termination by Seller Before Approval of a Listing:Seller may terminate at any time before approval of a Listing by the Giants and before Marketplace posts the approved Listing on the Website.
3.3.2. Termination by Seller Before Binding Acceptance:Seller may withdraw a Listing at any time before Binding Acceptance, but once a Listing is approved by the Giants and posted on the Website, Seller is obligated to pay Marketplace all Transfer Fees that apply to any sale or other transfer of the PSLs in the Listing.
3.3.3. Termination by Buyer or Seller After Binding Acceptance But Before Buyer’s Payment:Either Seller or Buyer can terminate a Transaction After Binding Acceptance but before payment by Buyer to Marketplace of all or any part of the amounts required by Section 3.2.8, which addresses Buyer’s payment of Transaction Fees, Transfer Fees and other charges.MARKETPLACE SHALL HAVE SOLE DISCRETION TO DECIDE WHETHER CANCELLATION HAS OCCURRED PRIOR TO BUYER’S PAYMENT.
3.3.4. No Right of Termination After Buyer’s Payment:Neither Buyer nor Seller have any right of termination or rejection after Buyer makes payment to Marketplace of all or any part of the amounts required by Section 3.2.8, which addresses Buyer’s payment of Transaction Fees, Transfer Fees and other charges.
3.3.5. Termination by Marketplace:At any time before Transaction Completion, for reasons relating to allegations or concerns of misconduct, breach, or fraud, or for reasons relating to the integrity of the Website, or for any other reason, Marketplace, in its sole discretion, may:
(a) terminate the Transaction by notice to Buyer and Seller;
(b) revoke the privilege of the use of the Website by Buyer or Seller; and
(c) release Buyer and Seller from the prohibition against completing the Transaction outside the Website.
3.3.6.Rights Upon and After Termination:Upon any termination of a Transaction in accordance with this Section 3.3:
(a) Buyer and Seller no longer shall have any obligations or liabilities to each other with respect to the terminated Transaction; and
(b) Neither Marketplace nor the Giants shall have any obligations or liabilities to Buyer or Seller with respect to the terminated Transaction; and
(c) Marketplace shall refund to Buyer or Seller, respectively, amounts each has paid to Marketplace, if any.
4. OTHER PROVISIONS OF THIS AGREEMENT
4.1. Rules and Requirements: You shall comply with all rules and conditions contained in this Agreement or elsewhere on the Website.
4.2. Illegal Activities:You shall not use the Website in any way that would involve the sale of counterfeit or stolen items or that would involve any illegal activities or otherwise violate any law, statute, ordinance or regulation.You shall not use the Website for any illegal purposes.
4.3. Intellectual Property: You shall not use the Website in any way or engage in any activities relating to the Website that infringes any intellectual property of any third party, including, without limitation, patents, copyrights, trademark, trade secret rights, rights of publicity, and rights of privacy.
4.4. Viruses: You shall not provide any communication to the Website, directly or indirectly, that contains any virus, “time bomb”, phishing, or any programming intended to damage, interfere with, intercept or expropriate any system, data or personal information.
4.5. Other Agreements:You shall execute all consents and similar agreements required for any Transaction.
4.6. Obscene materials:You shall not use the Website in any way in connection with pornography or obscene materials.
4.7. Investigations:You shall cooperate with any investigation by Marketplace concerning any activities related to the Website and shall promptly provide to Marketplace any information required for any investigation.
4.8. Indemnity, Exclusions, Release:You shall indemnify, defend, and hold Marketplace, the Giants, and their owners, affiliates, officers, owners, directors, attorneys, agents and employees, harmless from any and all threatened and actual claims (irrespective of merit) damages and expenses, including the reasonable fees and costs of attorneys, expert witnesses and litigation support personnel, arising from or relating to: (a) to any claim by any third party relating to Your use of the Website; or (b) Your breach of any term or condition of this Agreement or any other agreement between You and Marketplace; or (c) to any taxes of any kind, including, without limitation, sales, income and ad valorem taxes due for any purchase or sale of a PSL relating to this Agreement.As the parties intend complete indemnification, you also shall reimburse all attorneys fees and costs incurred to enforce this Agreement and this Section.
4.9. Exclusion of Warranties: Marketplace excludes any warranty that You or Buyer or Seller will complete any single Transaction.EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, MARKETPLACE PROVIDES THE WEBSITE AND ALL SERVICES “AS IS” AND “AS AVAILABLE”.MARKETPLACE MAKES NO WARRANTY WITH RESPECT TO ANY PSLs LICENSES, THE WEBSITE, OR ANY SERVICES RELATING TO THE WEBSITE.MARKETPLACE MAKES NO WARRANTY THAT SELLER OR BUYER WILL PERFORM AS PROMISED.MARKETPLACE EXPRESSLY EXCLUDES AND DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS.Some jurisdictions do not allow exclusions of implied warranties or limitations on how long an implied warranty lasts, so the above exclusion may not apply to you.
4.10. Exclusion of Certain Damages:Marketplace shall not be liable for any lost profits or special, consequential, incidental, indirect, special, punitive, or exemplary damages relating to any PSLs, the sale of any PSLs, the failed sale of any PSLs, the Website or any services relating to the Website. Marketplace’s liability to You or anyone else in any circumstance is limited to the payments made by You.Some jurisdictions do not allow the exclusion or limitation of incidental or consequential damages, so the above exclusions or limitations may not apply.
4.11. Intellectual Property Ownership and Enforcement:Nothing in this agreement confers to You any right in any Marketplace intellectual property except the permission expressly granted in this Agreement to purchase or sell PSLs through the Website.All intellectual property shall remain the sole property of Marketplace or the other lawful owners thereof.In addition to any other rights and remedies Marketplace may have, Marketplace may seek injunctive relief from any court of competent jurisdiction for any violation or infringement of its intellectual property.You consent to the exclusive personal jurisdiction and venue of the federal and state courts in Houston, Texas for any such action.
4.13. Modification:Marketplace may modify this Agreement by posting the modified Agreement on the Website.The modified Agreement shall be effective when posted on the Website for any transactions begun after the posting.The modified Agreement shall be effective for any ongoing transactions if You continue to use the Website after the modified Agreement has been posted.No amendment, modification or supplement of any provision of this Agreement shall be valid except as provided in this section.
4.14. Independent Relationship:You and Marketplace are independent contractors.Nothing in this Agreement creates any relationship between You and Marketplace of agency, partnership, joint venture, employer-employee, or franchisor-franchisee.
4.15. Notices: Except as expressly provided, to provide any notice to Marketplace under this Agreement, You must provide notice by email, addressed as provided on the Website, or by certified mail, return receipt requested, addressed as follows:
550 Westcott St., Suite 500
Houston, TX 77007
Except as expressly provided, Marketplace shall provide notice to You under this Agreement by posting on the Website or to the email address that You provide during registration.
4.16. Governing Law and Venue:This Agreement shall be governed by and interpreted in accordance with the laws of the State of Texas, notwithstanding its conflicts of law rules.All disputes relating to this Agreement (including any disputes relating to any transactions conducted using the Website) shall be resolved in the state or federal courts in Harris County, Texas, unless the parties to the dispute agree otherwise.
4.17. Severability: If any provision of this Agreement is held to be invalid or unenforceable, the remaining provisions shall not be affected.
4.18. Assignability: You may not assign or transfer this Agreement or any of Your rights or obligations under this Agreement without the prior written consent of Marketplace, which Marketplace can refuse in its sole discretion.
AGREEMENT FOR RESOLUTION OF DISPUTES
ARBITRATION AND WAIVER OF CERTAIN RIGHTS
BY ENTERING THIS AGREEMENT, YOU AGREE THAT ANY AND ALL DISPUTES WHICH CANNOT BE RESOLVED BETWEEN THE PARTIES, AND ALL CAUSES OF ACTION ARISING OUT OF OR CONNECTED WITH THE WEBSITE, SHALL BE RESOLVED INDIVIDUALLY, WITHOUT RESORT TO ANY FORM OF CLASS ACTION.
ALL DISPUTES THAT CANNOT BE RESOLVED BETWEEN THE PARTIES SHALL BE RESOLVED BY ARBITRATION, UNDER THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION FOR COMMERCIAL DISPUTES. ARBITRATION SHALL BE BEFORE A SINGLE ARBITRATOR, WHOSE DECISION SHALL BE FINAL, BINDING AND ENFORCEABLE IN ANY COURT. THE ARBITRATOR SHALL HAVE NO AUTHORITY TO AWARD PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES.
IN ANY SUCH DISPUTE, UNDER NO CIRCUMSTANCES WILL PARTICIPANT BE PERMITTED TO OBTAIN AWARDS FOR, AND HEREBY WAIVES ALL RIGHTS TO CLAIM PUNITIVE, INCIDENTAL OR CONSEQUENTIAL DAMAGES, OR ANY OTHER DAMAGES, INCLUDING ATTORNEYS' FEES, OTHER THAN ENTRANT'S ACTUAL OUT-OF-POCKET EXPENSES, AND ENTRANT FURTHER WAIVES ANY RIGHT TO HAVE DAMAGES MULTIPLIED OR OTHERWISE INCREASED.