Terms and Conditions of Use
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 November 5, 2007.
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
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).
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.
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
Furthermore, you agree not to post, email, or otherwise make available
any content on the Web Site that:
- Violates any laws, third party rights, or our policies
- 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)
- 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
- Includes personal or identifying information about another person without
that person’s explicit consent
- 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
- Constitutes or contains “affiliate marketing,” “link referral code,” “junk
mail,” “spam,” “chain letters,” “pyramid schemes,” or unsolicited commercial
- Is emailed to Web Site users who have not consented to contact them about
other services, products or commercial interests
- 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
- 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
- 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
- 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).
You agree to do the following things on the Web Site:
- 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
- Immediately pay Atomic Avenue, Inc. the appropriate fee as shown in the
Fee Schedule after the item has been shipped to buyer
- Deliver items purchased from you, unless the buyer fails to meet the posted
terms, or you cannot authenticate the buyer’s identity
- 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);
- Ensure that an item is shipped to the buyer, and arrives in the condition
- Ship items or cancel any non-shipped portion of an order within two (2)
business days of receipt of the order.
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.
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).
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.
We encourage you to provide feedback after you complete a transaction.
Such Feedback must be truthful and must not undermine the feedback or
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
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.
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.
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.
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.”
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.
This Web Site is based in Santa Clara, 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.