In the terms and conditions set forth below (the "Terms and Conditions"), the terms "you" and "your" refer to, as applicable, (i) the person or persons sending a watch or other item or items containing gold, platinum, silver, titanium, other precious metals, gemstones (including but not limited to diamonds, rubies, sapphires and emeralds), or any combination thereof (hereinafter referred to as "Merchandise") to HODINKEE, Inc. or Crown & Caliber, LLC ("HODINKEE") for sale to, and purchase by, HODINKEE or a third-party purchaser (referred to herein as a "Third-Party Purchaser"), for whom HODINKEE will act as a facilitator of such sale and purchase or using shop.hodinkee.com or CrownandCaliber.com (the "Site"), (ii) the person or persons purchasing a watch or other Merchandise from HODINKEE, for whom HODINKEE will act as a facilitator of such sale (each such purchase or sale transaction hereinafter referred to as "Transaction") or (iii) the person or persons using the Site. "We," "our," and "us" refer to HODINKEE and its successors and assigns.
PLEASE READ THESE TERMS OF SERVICE CAREFULLY, AS THEY CONTAIN AN AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES, AND OBLIGATIONS. THE AGREEMENT TO ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING, (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS, AND (3) YOU MAY NOT BE ABLE TO HAVE ANY CLAIMS YOU HAVE AGAINST US RESOLVED BY A JURY OR IN A COURT OF LAW.
These Terms and Conditions are binding on every HODINKEE customer and shall apply to all business dealings between you and HODINKEE, and any Third-Party Purchaser, including, but not limited to, your use of the Site, the Transaction, and any other services provided to you by HODINKEE. You hereby make representations and warranties to HODINKEE (regardless of whether a Transaction is consummated and whether HODINKEE is the purchaser or seller of the Merchandise) and any Third-Party Purchaser (if a Third-Party Purchaser is the purchaser of the Merchandise), and agree to the terms and conditions, in each case as set forth in the Terms and Conditions, by your use of the Site and/or by sending Merchandise to or receiving Merchandise from HODINKEE.
Terms Applicable to the Purchase of Merchandise.
The following terms and conditions govern any Transaction relating to the purchase, or attempted purchase, of Merchandise by HODINKEE or a Third Party Purchaser.
Ownership of Merchandise
If you are attempting to sell Merchandise, you hereby represent and warrant to HODINKEE and any Third-Party Purchaser that (i) you are at least eighteen (18) years of age; (ii) you have good and marketable title to the Merchandise; (iii) you have full authority to sell, transfer, and convey the Merchandise; (iv) you are the legal and equitable owner of any and all Merchandise offered to be sold to HODINKEE; (v) you are acting on your own behalf, and not as another’s agent or representative; (vi) the Merchandise is sold free of all liens, encumbrances, liabilities, and adverse claims of every nature and description whatsoever; (vii) you will NOT send in materials containing the following: arsenic, beryllium, bismuth, cadmium, mercury, nickel, lead, antimony, selenium, tin, tellurium or any other harmful, toxic, or poisonous elements; (viii) the Merchandise is not from, or the result of, illegal activity, including theft or fraud; (ix) any transaction initiated by you will not cause HODINKEE to be in violation of any anti-money laundering, anti-terrorism, or other applicable state or federal law of the United States of America any state or any foreign country; and (x) HODINKEE reserves the right and you hereby agree to provide additional documentation and/or information concerning yourself and/or any Merchandise, including all documentation or information necessary for HODINKEE to comply with local, state and federal law (which includes Crown& Caliber reporting all Merchandise received to the proper authorities as required by applicable law.)
Describing your Merchandise
You hereby agree that any description of the Merchandise that you provide to us, whether on the quote form, packing slip included in the shipping materials or otherwise, will be true, complete, and accurate at the time you submit such description to us. If we determine, in our sole discretion, that there are significant discrepancies between the Merchandise as described by you and the Merchandise we receive, or if no description of the Merchandise was included in the package used by you to ship the Merchandise, we may suspend or terminate the Transaction without notice to you. We will not repair or replace any replica watch even if the damage occurred during our normal testing and valuation procedures. Notwithstanding anything in these Terms and Conditions to the contrary, in the event that we terminate the Transaction because the Merchandise shipped by you is determined by HODINKEE, in our sole discretion, to have an altered/mutilated serial number or to be a counterfeit or a replica copy, we will notify you in writing (which may include notification via email, text message, or other electronic means) and will ship your Merchandise to you, at your cost, within 5 business days of our receipt of your shipping instructions and payment therefore (if a valid account number with the designated shipper is not provided); provided, however, that you hereby agree that HODINKEE may dispose of the Merchandise if we do not receive shipping instructions and payment for all shipping costs from you within 30 days of the date on which HODINKEE sends you written notice that the Transaction has been terminated. In the event that HODINKEE terminates the Transaction due to any other breach of the representations and warranties made by you in connection with your description of the Merchandise, HODINKEE will ship your Merchandise to you within 10 business days at our cost by the Shipper shipping method of our choosing, and you agree that we will only be responsible for insuring the value of your Merchandise up to $100.
Inbound Shipping; Costs; Loss or Damage Guarantee
If HODINKEE desires to receive your Merchandise for further inspection we may provide you with a shipping label; however, HODINKEE is not obligated to provide you with a shipping label. If you send us the Merchandise using the shipping label we provide, we will purchase insurance to cover your Merchandise in the event it is lost damaged for the cash value of your quote, once it is processed by the national courier selected by us to ship your Merchandise (the "Shipper"). Once your watch is received, it will remain insured for the value of your cash quote. In the event that your package is lost we will require that you provide proof of shipping receipt, provide receipt of proof that goods are lost, and file a claim within 30 days of loss. In the event your package is damaged we will require that you: provide proof of shipping receipt, provide receipt of proof that goods are damaged, demonstrate that the package was not damaged prior to shipping, and file a claim within 30 days of loss. If you believe that you need additional coverage, then it is your responsibility to contact us so that we can provide such additional coverage at our expense before sending us your Merchandise. You can contact us at email@example.com with additional questions or for shipping instructions.
For Merchandise shipped from a jurisdiction outside the U.S. or in territories of the U.S. that require importing to the U.S., you can select to send your Merchandise to us using the shipping label we provide, and we will pay for the costs of such shipment, including duties, VAT, etc. You are responsible for abiding by all relevant export and import laws and restrictions. If HODINKEE receives your Merchandise, makes you an offer to purchase such Merchandise, and you decline such offer, it will be your responsibility to arrange for and pay for the necessary shipping to return your Merchandise.
Notwithstanding the foregoing, you shall bear the risk of loss with respect to all Merchandise until such Merchandise is actually received by HODINKEE.
Receipt of Merchandise
We record the opening and the contents of each package of Merchandise we receive. We will retain the video for at least 30 days after we receive your Merchandise. You may make arrangements with us to order a copy of the video of the receiving and unpacking of your merchandise for an additional fee. We reserve the right, at our sole discretion and without notice to you, to reject any inbound package. For purposes of these Terms and Conditions, any inbound package that we reject will not be deemed to have been "received" by us.
Any non-OEM (Original Equipment Manufacturer) extras (including, but not limited to generic boxes, aftermarket straps, and third-party materials) will not increase the offer for your watch. They will not be inventoried and will be disposed of when they arrive at our facility.
Determining Our Offer
We will determine our estimate of the value of your Merchandise using factors that we deem to be appropriate. In order to value your Merchandise, we may need to open the watch and remove gemstones and other items from the watch. You hereby authorize us to open the watch, remove gemstones and other items from the watch, and take such other actions as we deem reasonably necessary to accurately value your Merchandise, including without limitation sending your Merchandise, at no cost to you, to a potential Third-Party Purchaser. You hereby further authorize us to perform our standard preparation service (which may consist of cleaning, basic repairs (as we deem appropriate), accuracy calibration, lubrication and pressure testing), and to photograph your Merchandise. You hereby authorize us to communicate with any potential Third-Party Purchaser regarding you and your Merchandise and to disclose all information provided to or obtained by us relating to you and/or your Merchandise to any potential Third-Party Purchaser. Upon processing your Merchandise, we will notify you by email or other electronic means (an "Offer Notice") of our offer or of an offer from a potential Third-Party Purchaser of payment for your Merchandise ("Offer").
Accepting or Rejecting Our Final Offer
You may accept the Offer via the seller portal, which you can access via the link provided in the Offer Notice, within 7 days of the date you receive the Offer Notice. HODINKEE may, in its sole discretion, extend the time for acceptance of an Offer. In order to reject the Offer, you must do so via the seller portal. If you reject the Offer, and do not authorize us to hold your Merchandise for a longer period in order to make you another offer, we will ship your Merchandise to you at the address indicated in our records within fifteen (15) business days, at no cost to you, and will insure your Merchandise for the full value of the Offer.
Payment for Your Merchandise
We will issue payment for the Merchandise in the amount stated in the Offer, less any fees owed to HODINKEE as stated in the Offer (the "Purchase Price"), via the method of payment you selected on the seller portal at the address you provided on or before the later of (i) six (6) business days of your acceptance of the Offer or (ii) fifteen (15) days following our receipt of available funds from a Third Party Purchaser (if a Third-Party Purchaser is the purchaser of the Merchandise).
ALL SALES FINAL
ALL SALES ARE FINAL. NO REFUNDS, RETURNS OR CREDITS ARE PERMITTED. If you have elected to receive the Purchase Price by check, the transaction is final once HODINKEE has sent a check to the address you provided. If you have elected to receive the Purchase Price by Gift Card, the transaction is final once HODINKEE has sent the electronic Gift Card to the email address you provided.
Returned Merchandise; Outbound Insurance; Costs; Insurance
In the event that your Merchandise is returned to you in accordance with these Terms and Conditions, we will ship your Merchandise to you at your address as it appears in our records via the Shipper shipping method of our choosing at our expense and will purchase insurance coverage through the Shipper for the Merchandise for the full value of the rejected Offer. If a package containing your Merchandise is lost in transit while being returned to you in accordance with these Terms and Conditions, we will file a claim with Shipper and pay you the full amount received by us from the Shipper.
TERMS APPLICABLE TO THE SALE OF MERCHANDISE.
The following terms and conditions govern any Transaction relating to the sale, or attempted sale, of Merchandise by HODINKEE.
Risk of Loss; International Shipments
All Merchandise sold by HODINKEE is sold pursuant to a shipment contract. This means that the risk of loss and title for such items pass to you upon our delivery to the carrier. For Merchandise shipped to a jurisdiction outside the U.S. or in territories of the U.S., you, as the purchaser, are required to pay customs charges, as well as any associated import tax, VAT, or duties. HODINKEE is unable to provide specific customs charges for each purchase as policies vary greatly by country. You are encouraged to contact your local customs office for pricing estimates. HODINKEE will include a copy of the invoice for the Merchandise with every purchase, and each country will determine applicable fees based upon such invoice. HODINKEE will not label an item as a gift or declare a lesser value on the invoice than the purchase price paid. HODINKEE will issue a refund of the purchase price actually received by HODINKEE, minus all shipping and customs charges incurred as well as a restocking fee in such amount as reasonably determined by HODINKEE, for any Merchandise returned to HODINKEE by customs officials due to you, as the purchaser, refusing such Merchandise at customs.
Returns, Refunds and Title
All returns and refunds are governed by our Return Policy . HODINKEE does not take title to returned items until the item arrives at our location.
We attempt to be as accurate as possible. However, we do not warrant that Merchandise descriptions or other content on our site, including, without limitation, pricing information, is accurate, complete, reliable, current, or error-free.
Prices for Merchandise sold by us are subject to change at any time, without notice. With respect to items sold by us, we cannot confirm the price of an item until you order. Despite our best efforts, a small number of the items in our inventory may be mispriced. If the correct price of an item sold by us is higher than our stated price, we will, at our discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. We generally do not charge your credit card until after your order has entered the shipping process.
We provide links to the sites of affiliated companies and certain other businesses. We have no control over such sites and resources and we are not responsible for and do not endorse such sites and resources. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these businesses or individuals or the content of their web sites. You further acknowledge and agree that we will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties links are between you and the third party, and you agree that we are not liable for any loss or claim that you may have against any such third party. HODINKEE does not assume any responsibility or liability for the actions, product, and content of all these and any other third parties. You should carefully review their privacy statements and other conditions of use.
Accuracy of Billing and Account Information
We reserve the right to refuse any order you place with us. We may, in our sole discretion, limit or cancel quantities purchased per person, per household or per order. These restrictions may include orders placed by or under the same customer account, the same credit card, and/or orders that use the same billing and/or shipping address. In the event that we make a change to or cancel an order, we may attempt to notify you by contacting the e-mail and/or billing address/phone number provided at the time the order was made.
You agree to provide current, complete and accurate purchase and account information for all purchases made from us. You agree to promptly update your account and other information, including your email address and credit card numbers and expiration dates, so that we can complete your transactions and contact you as needed.
Terms Applicable to All Transactions.
Rules Governing Your Use of the Site
You are entirely responsible for any harm resulting from your use of the Site. HODINKEE does not warrant that the function or operation of the Site will be error free, that the Site or the server that makes it available will be free of viruses or other harmful elements. As a user, you assume full responsibility for any costs, expenses, losses, or damages incurred by you in connection, resulting from, or arising out of the use of the Site.
You represent and warrant that: (i) you will not use the Site for any unauthorized purpose including collecting user names and/or email addresses of other users by electronic or other means for the purpose of sending unsolicited email or other electronic communications; (ii) you will not access the Site through the use of scripts, bots or other automated means; (iii) you will not access the Site through any means other than through the interface that we provide to you or engage in unauthorized framing of, or linking to, the Site unless otherwise specifically authorized by us in a separate written agreement; (iv) you will not transmit chain letters, bulk or junk email or interfere with, disrupt, or create an undue burden on the Site or the networks or services connected to the Site, including, without limitation, hacking into the Site; (v) you will not impersonate any other person or entity, provide false or misleading identification or address information, or invade the privacy, or violate the personal or proprietary right, of any person or entity; (vi) you will not circumvent, disable or otherwise interfere with security related features of the Site or features that prevent or restrict use or copying of any Intellectual Property (as defined in "Our Intellectual Property Rights" below) or enforce limitations on use of the Site or the Materials on the Site; and (vii) you will not cause to appear any pop-up, pop-under, exit windows, expanding buttons, banners, advertisements or anything else that minimizes, covers or inhibits the full display of the Site.
Accuracy, Completeness and Timeliness of Information
We are not responsible if information made available on this site is not accurate, complete or current. The material on this site is provided for general information only and should not be relied upon or used as the sole basis for making decisions without consulting primary, more accurate, more complete or more timely sources of information. Any reliance on the material on this site is at your own risk.
This site may contain certain historical information. Historical information, necessarily, is not current and is provided for your reference only. We reserve the right to modify the contents of this site at any time, but we have no obligation to update any information on our site.
Except where noted otherwise, the list price, estimated retail price, suggested retail price, or similar price information displayed for Merchandise represents the full retail price listed on the product itself, suggested by the manufacturer or supplier, or estimated in accordance with standard industry practice; or the estimated retail value for a comparably featured item offered elsewhere. These prices are a comparative price estimate and may or may not represent the prevailing price in every area on any particular day. We make no representations or warranties as to accuracy or completeness of any pricing or other information included in this Site, and you should not rely on this information. Actual retail prices may vary greatly from those shown in this site. We reserve the right to modify any information from time to time without notice, including, but not limited to, information regarding prices, models, and specifications. We do not assume any responsibility for the accuracy, completeness or authenticity of any information contained in this site, including the estimated retail prices.
You agree that it is your responsibility to monitor changes to our site.
Our Intellectual Property Rights
The Site, all materials on the Site, including, but not limited to the logos, sales copy, images, navigational aids, illustrations, and all of such items that are provided to you in tangible form (the "Intellectual Property"), are owned by and the property of us or our affiliates and licensors and are protected from unauthorized use, distribution and copying by United States trademark law and copyright law, foreign laws and international conventions and other intellectual property laws. In order to use any Intellectual Property, you must obtain our written consent prior to your use. We reserve all rights not expressly granted by these Terms and Conditions.
FOR PURPOSES OF THE TRANSACTION, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, RECEIPT OF NOTICES BY E-MAIL OR OTHER ELECTRONIC MEANS, USE OF ELECTRONIC CONTRACTS, AND TO ACCEPT THESE TERMS AND CONDITIONS BY ELECTRONIC MEANS.
Limitation of Liability
EXCEPT AS EXPRESSLY SET FORTH IN OUR LIMITED WARRANTY, ALL INFORMATION, CONTENT, MATERIALS, MERCHANDISE AND OTHER SERVICES INCLUDED ON OR OTHERWISE MADE AVAILABLE TO YOU BY US OR THROUGH THE SITE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, UNLESS OTHERWISE SPECIFIED IN WRITING.
EXCEPT AS EXPRESSLY SET FORTH IN OUR LIMITED WARRANTY, TO THE FULL EXTENT PERMISSIBLE BY APPLICABLE LAW, HODINKEE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, RELATING TO MERCHANDISE, TRANSACTIONS, AND THE SERVICES PROVIDED BY HODINKEE TO YOU, INCLUDING ANY CLEANING, MAINTENANCE OR REPAIR OF YOUR MERCHANDISE.
IN ALL EVENTS THROUGHOUT THESE TERMS AND CONDITIONS, YOU AGREE THAT THE LEGAL LIMIT OF OUR LIABILITY TO YOU FOR ANY CLAIMS OR ACTIONS FOR LOST, DAMAGED, OR DESTROYED MERCHANDISE THAT YOU SENT TO US OR A THIRD-PARTY PURCHASER SHALL NOT EXCEED THE LESSER OF OUR OFFER TO YOU OR $1,000 PER TRANSACTION. NOTWITHSTANDING THE FOREGOING, IF THE MERCHANDISE WE RECEIVE FROM YOU (I) IS MATERIALLY DIFFERENT FROM THE DESCRIPTION OF THE MERCHANDISE YOU PROVIDED TO US, (II) HAS AN ALTERED OR MUTILATED SERIAL NUMBER, OR (III) IS A COUNTERFEIT OR A REPLICA COPY, THEN THE LEGAL LIMIT OF OUR LIABILITY TO YOU FOR ANY CLAIMS OR ACTIONS FOR LOST, DAMAGED, OR DESTROYED MERCHANDISE THAT YOU SENT TO US SHALL NOT EXCEED $100 WITH RESPECT TO SUCH MERCHANDISE.
YOU AGREE THAT WE WILL NOT BE LIABLE FOR (a) INCIDENTAL, SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, SPECULATIVE, OR PUNITIVE DAMAGES, OR LOSS OF PROFIT OR OPPORTUNITY; OR (b) ANY CLAIMS, DEMANDS, OR ACTIONS FOR ANY SUBROGATION CLAIM BROUGHT BY YOUR INSURANCE CARRIER, IN EACH CASE RELATING TO ANY TRANSACTIONS, THE MERCHANDISE, THE SITE, OR ANY OTHER SERVICES PROVIDED BY HODINKEE TO YOU, AND YOU EXPRESSLY AND SPECIFICALLY WAIVE ANY SUBROGATION CLAIM ON YOUR BEHALF AS WELL AS ON BEHALF OF YOUR INSURANCE CARRIER.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY TO YOU, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
You agree to indemnify, defend, and hold harmless HODINKEE, its officers, managers, members, employees, agents, affiliates, licensors and suppliers (collectively the "Indemnified Parties") from and against any and all losses, expenses, damages, fines, penalties, and costs, including, but not limited to, reasonable attorneys' fees, incurred by any of the Indemnified Parties resulting from or arising out of any breach or violation of these terms and conditions by you or anyone acting on your behalf, or as a result of any false or materially misleading information provided by you to HODINKEE (including, without limitation your representations and warranties to HODINKEE regarding ownership of Merchandise and your authority to sell Merchandise to HODINKEE).
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms and Conditions as the “Arbitration Agreement.” You agree that any and all disputes or claims that have arisen or may arise between you and HODINKEE, whether arising out of or relating to these Terms and Conditions (including any alleged breach thereof), Merchandise, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms and Conditions, you and Company are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND HODINKEE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND HODINKEE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S), EXCEPT THAT YOU MAY PURSUE A CLAIM FOR AND THE ARBITRATOR MAY AWARD PUBLIC INJUNCTIVE RELIEF UNDER APPLICABLE LAW TO THE EXTENT REQUIRED FOR THE ENFORCEABILITY OF THIS PROVISION.
Pre-Arbitration Dispute Resolution
HODINKEE is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer’s satisfaction by emailing customer support firstname.lastname@example.org. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute (“Notice”). The Notice to Company should be sent to HODINKEE, Inc., ATTN: Legal, 255 Centre Street, 4th Floor, New York, NY 10013 (“Notice Address”). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Company and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Company may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Company or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Company is entitled.
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association’s (“AAA”) rules and procedures, including the AAA’s Consumer Arbitration Rules (collectively, the “AAA Rules”), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA’s consumer arbitration page, http://www.adr.org/consumer_arbitration . If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms as Conditions as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Arbitration shall take place in Sandy Springs, GA, USA, and you hereby waive all defenses of lack of personal jurisdiction and forum non-convenience. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons. The arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.
Costs of Arbitration
Payment of all filing, administration, and arbitrator fees will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. Any payment of attorneys’ fees will be governed by the AAA Rules.
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled “Prohibition of Class and Representative Actions and Non-Individualized Relief” are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void, unless such provisions are deemed to be invalid or unenforceable solely with respect to claims for public injunctive relief. The remainder of these Terms and Conditions will continue to apply.
Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms and Conditions to the contrary, HODINKEE agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the services, you may reject any such change by sending HODINKEE written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms and Conditions (or accepted any subsequent changes to these Terms and Conditions).
You hereby acknowledge and agree that you provided to us the email address, physical address, and telephone numbers that are in our records, and it is your responsibility to provide us with any current or updated contact information. You further acknowledge and agree that: (i) any email message that we send to you is deemed to have been effectively received by you and constitutes due notice to you by email; and (ii) any phone message we leave with you, anyone answering your phone, or on your answering machine or service is effectively received by you and constitutes due notice to you by telephone. In the event of any strike, disruption of service, or any other problems that we might encounter with Shipper, we reserve the right in our discretion to replace Shipper with another shipping carrier. These Terms and Conditions will be governed by the laws of the State of Georgia without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and HODINKEE agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within Sandy Springs, GA. All references to days shall refer to business days. Saturdays, Sundays, and federal legal holidays are not included as business days, and if the expiration of any time frame set forth above falls on a Saturday, Sunday, or federal legal holiday, performance will be due on the next business day. Merchandise received after 2:00 p.m., or on any Saturday, Sunday, or federal legal holiday will be considered to have been received on the next business day. All business days will begin at 9:00 a.m. and end at 5:00 p.m. in Georgia on the appropriate day. Notwithstanding any other provision herein to the contrary, we reserve the right to suspend or enlarge any time frame specified above, and/or request additional documents or information from you, in order to comply with any applicable local, state, or federal law, ordinance, or regulation. Furthermore, any time frame set forth above may be suspended or extended in our discretion with or without notice to you in the event that we encounter technical difficulties concerning our website or otherwise, or encounter any other delays attributable to acts of God, including but not limited to fires, hurricanes, and other storms.
In the event that any provision hereof is found to be invalid or unenforceable, the remainder of these Terms and Conditions shall remain valid and enforceable according to their terms. It is expressly understood and agreed that each provision of these Terms and Conditions that provides for a disclaimer of warranties, limitation on liability, or exclusion of damages is intended by the parties to be severable and independent of any other provision and to be enforced as such. The failure of a party to enforce any applicable provision of these Terms and Conditions, or to require at any time performance by the other party of any provision or obligation hereof, shall in no way be construed to be a waiver of such provision, nor in any way affect the validity of these Terms and Conditions or any part hereof, or the right of such waiving party.
** Terms and Conditions are subject to change. You must go to our website to read the full terms & conditions or contact us and we will send you a copy of the Terms & Conditions free of charge.