Terms and Conditions of Use

Updated May 3, 2014

Atomic Avenue, Inc. (referred to as "we," "us," or "our") would like to welcome you, as a potential buyer and/or seller (referred to as "you," "your," "yourself," "buyer," or "seller") to our site, Atomic Avenue (the "Web Site"). The Web Site is open to you, subject to your acceptance of the Terms and Conditions of Use (the "Terms") as set forth below. You agree to abide by the Terms, so please read them carefully. If you do not accept the Terms stated here, please do not use our Web Site. We may revise these Terms, at our sole discretion, at any time by updating this posting. Such modifications shall become effective immediately upon the posting thereof. You must review this agreement on a regular basis to keep yourself apprised of any changes because they are legally binding on you. If you are dissatisfied with the modifications to the Terms, your only recourse is to immediately discontinue use of the Web Site. The Terms are effective as of May 10, 2014.

Site Access

You may only use the Web Site for your personal and noncommercial use (not exclusive of its use to buy and sell items on the system itself). You may; however, link to the Web Site’s home page from a page of your own.

Privacy Notice

We value your privacy, and have developed a pretty darn good Privacy Notice to let you know exactly what we are doing to protect your personal information. When you visit the Web Site, or send us an email, you agree to let us contact you electronically, usually by reply email or via a publicly posted notice (such as a newsletter or Q&A posting).

Product Descriptions

Although we encourage all sellers to accurately describe the general characteristics of the products offered for sale on the Web Site, to the extent that we have created such information, we have made reasonable efforts to accurately describe the general characteristics of the products offered for sale on the Web Site. Notwithstanding the above, we make no representations about the accuracy, reliability, completeness, or timeliness of the products or about the results to be obtained from using the Web Site. We do not warrant that the Web Site will operate error-free or that the Web Site and its server are free of computer viruses and other harmful goods. If your use of the Web Site results in the need for servicing or replacing equipment or data, we are not responsible for those costs as described below. As the lawyers say, use of this Web Site is provided on an "as is" basis, without any warranties of any kind, and at your own risk. We reserve the right to make any changes to the Web Site at any time.

Content

When posting content to the Web Site, you grant Atomic Avenue, Inc. and its affiliates a nonexclusive, royalty-free, paid-up, and perpetual license to reproduce that content, with any modification or translation we deem necessary, in any media. You further grant us the right to use your name as submitted with the posting in conjunction with any such postings. When you post content to the Web Site, you warrant that you otherwise control all rights to it, and that you agree to indemnify Atomic Avenue, Inc. and its affiliates from any use or misuse of our posted content. Therefore, if you make additional notes when posting your products for sale, you are assuming full responsibility that such note is accurate, and if a product is sold on the Web Site that turns out not to be as described, you agree that your sole remedy is to return it in unused condition, within thirty (30) days of purchase for a refund of the purchase price (as further explained below). We reserve the right to edit or delete all user-posted content.

Furthermore, you agree not to post, email, or otherwise make available any content on the Web Site that:

  1. Violates any laws, third party rights, or our policies
  2. Iis false, inaccurate, deceptive, misleading, deceitful, defamatory, libelous (including personal information), harmful, degrading, threatening, intimidating, abusive, obscene, harassing, invasive of another’s privacy, constitutes "bait and switch," or is otherwise inappropriate (in our sole discretion)
  3. Impersonates any person or entity, including, but not limited to, another buyer and/or seller, or falsely states or otherwise misrepresents your affiliation with a person or entity
  4. Includes personal or identifying information about another person without that person’s explicit consent
  5. Infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party, or content that you do not have a right to make available under any law or under contractual or fiduciary relationships
  6. Constitutes or contains "affiliate marketing," "link referral code," "junk mail," "spam," "chain letters," "pyramid schemes," or unsolicited commercial advertisement
  7. Is emailed to Web Site users who have not consented to contact them about other services, products or commercial interests
  8. 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
  9. Disrupts the normal flow of dialogue with an excessive amount of content (flooding attack) to the Web Site, or that otherwise negatively affects other users’ ability to use the Web Site
  10. Employs misleading email addresses, or forged headers or otherwise manipulated identifiers in order to disguise the origin of the content transmitted through the Web Site; or
  11. Attempts to gain unauthorized access to our computer systems or engage in any activity that disrupts, diminishes the quality of, interferes with the performance of, or impairs the functionality of, the Web Site.

Fees and Services

Joining the Web Site and bidding on the products is free. We do charge fees for using other services, such as listing items. When you list an item, you have an opportunity to review and accept the fees that you will be charged based on our Fees Schedule, which we may change from time to time. A copy of our Fee Schedule is available on our Web Site. Changes to our Fees Schedule are effective after we provide you with at least fourteen days' notice by posting the changes on the Web Site. We may choose to temporarily change the fees for our services for promotional events (for example, free listing days) or new services, and such changes are effective when we post the temporary promotional event or new service on the Sites. Unless otherwise stated, all fees are quoted in U.S. Dollars. You are responsible for paying all fees and applicable taxes associated with the Web Site in a timely manner with a valid payment method. If your payment method fails or your account is past due, we may collect fees owed using other collection mechanisms (this includes charging other payment methods on file with us, retaining collection agencies and legal counsel, and for accounts over 180 days past due, deducting the amount owed from your PayPal account balance).

Conduct

You agree to do the following things on the Web Site:

  1. Deliver payment to seller for items purchased by you, unless seller has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot authenticate seller’s identity
  2. Immediately pay Atomic Avenue, Inc. the appropriate fee as shown in the Fee Schedule after the item has been shipped to buyer
  3. Deliver items purchased from you, unless the buyer fails to meet the posted terms, or you cannot authenticate the buyer’s identity
  4. Post accurate accounts of your items for sale (including not misstating or manipulating their content, condition, or availability or interfering with other user’s listings, circumventing or manipulating our fee structure, the billing process, or fees owed to us);
  5. Ensure that an item is shipped to the buyer, and arrives in the condition specified; and
  6. Ship items or cancel any non-shipped portion of an order within two (2) business days of receipt of the order.

Non-System Transactions

As a user of the system, you are prohibited from using information from this system to solicit other users to sell items listed on this system outside of the system. Sellers are likewise prohibited from engaging in transactions initiated either by themselves or another user using information obtained through the system, but completed outside of the system. Engaging in such transactions exposes both buyers and sellers to fraud, circumvents the system’s fee structure, and may cause both buyer and seller to permanently lose their ability to use the system.

Return Policy

At some point, the buyer may receive a product that was not what the buyer thought they ordered. In such a case, buyer must contact seller within 10 days after seller has shipped the item to buyer.

If seller disputes buyer’s contention, seller must notify Atomic Avenue Technical Support () within 5 days of receipt of such buyer’s contention in order to resolve the dispute. This service will notify buyer and seller to ascertain the reasons for such return and make a binding decision on whether such item may be returned. Otherwise, if seller does not dispute buyer’s contention, refunds must occur within 14 days after buyer has notified seller of such return.

Buyer is solely responsible for ensuring the delivery, without damage, of any items being returned to a seller. Buyer must pay all shipping and insurance fees or charges associated with returns and all returns must be made via a reputable shipper (UPS, FedEx), with tracking information.

Sellers have the option to cancel all or part of an order. For partially cancelled orders, seller will refund buyer the price of the items, plus the applicable portion of the shipping charge. For completely cancelled orders, seller will refund the entire charge to buyer, including all shipping fees. Seller may, in its sole discretion, refuse to sell to any buyer.

In all cases where a product is sold by a third party through the Web Site, the buyer’s sole remedy is to return it to the seller for a refund, pursuant to the terms of sale for that item with limited liability from us (as described below).

Adult Content

This site may contain information about, and offers for sale of, items which are not suitable for minors. User agrees that they may not view such material unless are of the legal age required for the viewing of adult content in both their own jurisdiction and that of Atomic Avenue, Inc. Users purchasing or attempting to purchase any such materials warrant that they are eighteen (18) years of age or older,  and legally permitted to purchase adults-only material  in both their own jurisdiction, the seller’s jurisdiction,  and that of Atomic Avenue, Inc. Purchasers of adults-only materials agree to indemnify and hold harmless both the seller and Atomic Avenue, Inc. for the consequences of purchasing adults-only material.

Feedback

We encourage you to provide feedback after you complete a transaction. Such Feedback must be truthful and must not undermine the feedback or ratings systems.

If you receive a feedback rating of –3, you will be automatically banned from the system.

Penalty for Violation of the Terms

Although we have the utmost confidence in you, we must take the necessary precautions to avoid any problems with our Web Site. Without limiting other remedies, we, in our sole discretion, may limit, suspend, or terminate your access to our Web Site, remove your content, and take technical and legal steps to keep you off the Web Site if we think, in our sole discretion, that you are creating problems, possible legal liabilities, or acting inconsistently with the letter or spirit of the Terms. We also reserve the right to cancel unconfirmed accounts. Moreover, any intentional misstatement of an item’s condition or content may constitute fraud, and we will take all necessary measures, including any criminal action to prosecute such offenders.

Termination of the Web Site

You agree that we have the right (but not the obligation) to delete or deactivate your account, block your email or IP address, or otherwise terminate your access to or use of the Web Site (or any part thereof), immediately and without notice, and remove and discard any content within the Web Site, for any reason, without limitation. Further, you agree that we shall not be liable to you or any third-party for any termination of your access to the Web Site. Further, you agree not to attempt to use the Web Site after termination.

Arbitration

You agree to submit any claim related to the Terms or the Web Site to arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by you and the opposing party or parties, if applicable. The ADR provider and the parties must comply with the following rules: a) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and (c) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.

Atomic Avenue, Inc.’s Proprietary Rights

The Web Site is protected to the maximum extent permitted by copyright laws and international treaties. Any content displayed on or through the Web Site is protected by copyright as a collective work and/or compilation, pursuant to copyrights laws, and international conventions. Any reproduction, modification, creation of derivative works from or redistribution of the site or the collective work, and/or copying or reproducing the sites or any portion thereof to any other server or location for further reproduction or redistribution is prohibited without the express written consent of Atomic Avenue, Inc. All software that is made available for downloading from the Web Site ("Software") is protected by copyright and may be protected by other rights.

Limitation of Liability

You agree that you will not hold Atomic Avenue, Inc. responsible for other users’ actions or inactions, including their postings. You acknowledge that we are a venue to allow anyone to offer, sell, and buy comic books. We are not involved in the actual transaction between buyers and sellers. We have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction.

We do not transfer legal ownership of items from the seller to the buyer, and nothing in this agreement shall modify the governing provisions of California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the seller. Unless the buyer and the seller agree otherwise, the buyer will become the item’s lawful owner upon physical receipt of the item from the seller, in accordance with California Commercial Code § 2401(2) and Uniform Commercial Code § 2-401(2). Further, we cannot guarantee continuous or secure access to our Web Site, and operation of it may be interfered with by numerous factors outside of our control.

Accordingly, to the extent legally permitted, we exclude any and all express and implied warranties, including the warranty of merchantability, non-Infringement of third parties, and the warranty of fitness for particular purpose, terms and conditions. We are not liable for any loss of money, goodwill, or reputation, or any special, indirect, incidental, or consequential (lost profits, or damages resulting from lost data or business interruption) damages arising out of your use of the Web Site.

Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.

Regardless of the previous paragraph, if we are found to be liable, our liability to you or to any third party is limited to the lesser of (a) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, and (b) $100.

Release

If you have a dispute with one or more users, you release Atomic Avenue, Inc. (and our officers, directors, agents, subsidiaries, joint ventures and employees) from any 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. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."

Indemnity

You agree to defend, indemnify, and hold harmless Atomic Avenue, Inc., its officers, directors, employees and agents, from and against any claims, actions or demands, including without limitation reasonable legal and accounting fees, alleging or resulting from your use of the Web Site (including Software), your breach of the Terms or your violation of any rights of another relating to the Terms.

General

This Web Site is based in San Jose, California. If you access the Web Site from outside of the United States, you do so at your own risk and are responsible for compliance with the laws of your jurisdiction. The Terms is governed by the internal substantive laws of the State of California, without respect to its conflict of laws principles. If any provision of the Terms is found to be invalid by any court having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of the Terms, which shall remain in full force and effect. No waiver of any term of the Terms shall be deemed a further or continuing waiver of such term or any other term. Except as expressly provided in a particular or Software License or material on particular Web pages, the Terms constitute the entire agreement between you and Atomic Avenue, Inc. with respect to the use of the Web Site. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Except as explicitly stated otherwise, legal notices shall be served on Atomic Avenue, Inc.’s national registered agent or to the email address you provide to us during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you legal notice by mail to the address provided during the registration process. In such case, notice shall be deemed given three days after the date of mailing.