PLEASE READ THESE TERMS AND CONDITIONS CAREFULLY, AS THEY INCLUDE A BINDING, INDIVIDUAL ARBITRATION REQUIREMENT AND CLASS-ACTION WAIVER, WHICH MEANS YOU AND GAZELLE AGREE TO RESOLVE MOST DISPUTES (INCLUDING DISPUTES RELATING TO GAZELLE’S ADVERTISEMENTS AND DISCLOSURES, EMAIL AND MOBILE SMS MESSAGES SENT BY GAZELLE OR GAZELLE’S COLLECTION OR USE OF YOUR INFORMATION) BY BINDING, INDIVIDUAL ARBITRATION AND NOT BY MEANS OF A CLASS ARBITRATION, A CLASS ACTION, ANY OTHER KIND OF REPRESENTATIVE PROCEEDING, OR A JURY TRIAL. YOU MAY OPT OUT OF THE ARBITRATION REQUIREMENT WITHIN 30 DAYS OF ACCEPTING THESE TERMS – INSTRUCTIONS ON THIS OPT-OUT ARE IN SECTION 30(K) BELOW. IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE OUR SERVICES.
ecoATM, LLC (doing business as Gazelle), and its parent, subsidiaries and affiliates ("Gazelle," "we," or "us") offers services (the "Gazelle Services") through which you can (i) sell certain consumer electronic products (the "Products") after receiving an "offer" from Gazelle by identifying your Product and its condition and completing check-out on the Gazelle Websites (each transaction, a "Trade-In") and (ii) buy Products (each sale, a "Purchase"). You must agree to abide by the following terms in order to use the Gazelle Services and/or the Gazelle Websites.
BY SETTING UP AN ACCOUNT, OR BY USING GAZELLE'S WEB SITES, YOU SIGNIFY THAT YOU AGREE TO THE FOLLOWING TERMS AND CONDITIONS, WHICH MAY BE AMENDED AT ANY TIME BY POSTING THE AMENDED TERMS ON THE GAZELLE WEBSITES. ANY AMENDED TERMS WILL BE AUTOMATICALLY EFFECTIVE IMMEDIATELY AFTER THEY ARE POSTED. Gazelle reserves the right to terminate or suspend your use of the Gazelle Websites and/or the Gazelle Services if you do not comply with this Agreement or any other Gazelle policy or procedure, or for any other reason we determine, in our sole discretion.
About These Terms. These terms govern (i) any offer that you receive to sell your Product to or through Gazelle's Website and (ii) any Product you purchase from Gazelle's Website. These terms, the terms that govern your use of Gazelle's websites, including Gazelle.com and buy.gazelle.com ("Gazelle Websites"), the Gazelle Services and any and all applications included therein, which terms are located at www.gazelle.com/legal, and any supplemental terms or policies that accompany a specific transaction, feature or application, collectively, make up an agreement between you and Gazelle (the "Agreement"). You acknowledge that this Agreement is in electronic form and has the same force and effect as an agreement in writing. In this Agreement, the term "you" or "your" means an individual or entity exercising rights under this Agreement.
Requirements for Trade-In and Purchase. In order to complete a Trade-In or Purchase or to complete any other transaction with Gazelle, you must: (i) Create an account with us (Trade-In transaction only); (ii) Provide true, up to date and accurate account information about yourself and any Product you submit to us or Purchase from us; (iii) Comply with all terms and conditions of this Agreement; (iv) Comply with all applicable laws and regulations, including all import and export laws as described in Section 15 below; (v) Transact on behalf of yourself and not on behalf of others; and (vi) Be over eighteen (18) years of age and have the legal capacity to enter into agreements and to convey title and interest in any Product that you submit to us. Gazelle reserves the right to suspend or terminate any account and/or any transaction at any time in its sole discretion.
In order to receive payments for any Products in connection with a Trade-In, you must provide us with information including a valid email address at which you are able to receive email, a valid postal address at which you are able to receive mail, and your first and last name. In order to receive any Product you Purchase, you must provide us with information including first and last name, email address at which you receive email, phone number, billing address, and a valid postal address at which you are able to receive mail (if different from the billing address). On Gazelle's behalf, PayPal will process your payment for a Purchase and you are required to provide your applicable credit card number, expiration date and CVV code (unless you are paying for the Purchase using your PayPal account). Gazelle will not receive or store your credit card information.
Gazelle shall not be responsible for communication errors should your contact information be inaccurate or incomplete. You are responsible for ensuring that you can receive emails from Gazelle and Gazelle is not responsible for any emails that were not received by you because they were blocked or filtered as spam. You understand and agree that if you fail to provide us with accurate and up to date information about yourself: (a) we will not be responsible for any misapplied Trade-In payments or Trade-In payments sent to a wrong address, and (b) any unclaimed funds may be subject to collection by governmental authorities under applicable unclaimed funds and escheat laws. You agree that we have no obligation to you if any of your unclaimed funds are turned over to governmental authorities in accordance with applicable law.
The following terms also apply to any Purchase transaction:
- Payment – You agree to pay all charges that may be incurred by you or on your behalf through the Website(s), at the prices in effect when such charges are incurred including, without limitation, all shipping and handling charges, and you authorize Gazelle to charge all sums for the order(s) that you make to the payment method specified at the time or your order. In addition, you remain responsible for any taxes, including but not limited to state sales tax, that may be applicable to your order(s). You authorize Gazelle to charge all applicable amounts for the order(s) that you make to the payment method specified at the time of your order.
- Shipping - Shipping is not free. Gazelle provides fixed, leveled prices associated with ground, expedited, and next day shipping. Shipping is based on the number of units being shipped.
- Returns - Gazelle offers a 30-day domestic returns, for up to ten (10) Product returns, per customer, per calendar year. The 30 day return period commences on the delivery date, as reported by the shipping carrier. In the event of a return, Gazelle will refund the full amount of the item(s) being returned minus a $15 restocking fee per Product. If free return shipping applies to a purchase, it is only valid within the 50 United States based on the original delivery address and using the Gazelle provided shipping label.. The cost of any return without a return merchandise authorization or without using the supplied shipping label is your responsibility.
- Consumables - Consumables such as batteries have a limited lifespan and may not function in a like-new manner. Please be aware that some Products require a wireless carrier service contract and/or a data plan in order for the Product to be fully functional. These services and plans are not included in the purchase price and are not provided by Gazelle unless separately offered and purchased.
- Product Pricing - Gazelle regularly adjusts prices based on a variety of factors, including market conditions and individual Product condition, and therefore does not price match with other Product sellers and does not provide price adjustments once a payment is complete. Prices for the same or similar Products may vary between the Gazelle Websites and third-party marketplaces like eBay or Amazon.
- Product Availability – Products are not guaranteed to be available until the order for Purchase is accepted . Notwithstanding the foregoing, Gazelle reserves the right to cancel any order for Purchase at any time prior to delivery of the Product for any reason.
- Maximum Product Quantity – Gazelle does not permit more than five (5) Product purchases per transaction. If you are interested in purchasing a greater quantity, please contact Customer Care.
- Partial Order Fulfillment – If an order can only be partially filled, all currently available Product(s) will ship, in one or multiple shipments, and Gazelle will reimburse the payment of unavailable Product(s) not shipped to the original method of payment.
- Technical Support – Gazelle’s Customer Care is not a trained network or technical support provider, it is your responsibility to work with your wireless carrier or data provider to get the Product set up and functioning on the carrier network, for more information please see https://buy.gazelle.com/pages/how-to-activate.
Product Availability and Eligibility. The availability and eligibility of Products changes frequently. Gazelle determines, in its sole discretion, which Products are eligible for purchase or made available for sale by or through the Gazelle Services and Gazelle Websites and for which eligible Products Gazelle will provide an offer or make available for sell. Gazelle may terminate the eligibility of certain Products at any time and without advanced notice, but such termination will not affect any Products for which you have already accepted an offer, which is good for thirty (30) days, except as set forth in Section 9 below. Gazelle reserves the right to cancel any Purchase and refund any applicable purchase price actually received by Gazelle at any time prior to delivery of the Product to You.
Condition Defined for Trade-In and Purchase. Gazelle uses three (3) basic Product conditions to grade Products for Trade-In, ranging from "Flawless" or "No Noticeable Flaws" to "Broken" or "Functional or physical problems." Conditions can vary widely between categories and types of Products. Broadly, Gazelle's Product definitions are as follows:
- Flawless or No Noticeable flaws: the item looks like it has never been used and is 100% functional.
- Good or Normal wear and tear: the item has visible signs of use, but is otherwise 100% functional.
- Broken or Functional or physical problems: the item does not turn on, one or more Product functions is non-operative or the item has serious physical damage that inhibits use (e.g. broken or cracked screen or missing parts).
The above definitions are broad guidelines. More specific condition definitions specific to the category and/ or type of Product may be included on the Gazelle Trade-In Website offer screen and serve as the effective condition definition for that product. Condition definitions are subject to change at Gazelle's discretion. If you are uncertain about your Product's condition, please seek guidance by contacting Gazelle's customer care.
Gazelle offers three (3) product conditions for purchase:
- "Gazelle Certified Fair", which means all product features work (except for those requiring carrier service or data plans, which must be purchased separately if so desired) and the Product may feature some wear and tear that does not affect the functionality of the Product ;
- "Gazelle Certified Good", which means all Product features work (as noted above) and there may be light scuffs or nicks that do not affect the functionality of the Product ;
- and "Gazelle Certified Excellent", which means the device is in like-new condition with very little or no wear.
Product Valuation. All offers will be based on Gazelle's own determination of the Product value in reliance on the accuracy of the information you supply us. Gazelle will use its discretion to determine the Product value, weighing factors that may include the Product's model, functionality, and condition and whether necessary Product accessories have been provided by you. Upon receiving an offer, you have the option of accepting or rejecting that offer. Acceptance indicates you are willing to provide your Product to Gazelle at the offered price. If you do not accept Gazelle's offer, the specific transaction expires. If after rejecting the offer you change your mind and want to accept the offer, you will need to open another transaction with us at which point, assuming the Product is still eligible for purchase, the new offer may be different as Product prices are subject to change.
Fitness for Sale; Carrier Network and Internet Service. You must have all right, title, and interest in any and all Products you seek to sell to Gazelle and all Products must be able to be activated for new service (unless the Product is incapable of being activated because it is in "Broken" condition). The Products and the sale and shipment of such items to Gazelle: (a) must comply with all applicable laws, statutes, ordinances, including without limitation all import and export laws as described in Section 14 below, (b) may not infringe on third party intellectual property rights (including copyrights, trademarks, patents, trade secrets or other proprietary rights), and (c) shall not be counterfeit, stolen, or fraudulent. You represent and warrant that the Products are free of any liens or encumbrances, including third-party software which may not be transferred or for which royalties are due. By using the Gazelle Services, you agree to indemnify Gazelle from all claims or losses sustained by Gazelle as a result of any breach of your representations and warranties. It is your responsibility to discontinue Carrier, Internet and/or any similar service on your Product prior to selling it to Gazelle. Gazelle is not responsible for any service charges related to your Product, whether you incur such charges before, during or after your use of the Gazelle Services. It is also your responsibility to remove any security codes that would prevent use of any Product.
Sending Gazelle Your Product for Trade-In or Return. When packaging your Product, be sure to include all materials included in your description when we calculated your offer for Trade-In, or, in the case of Purchase, include all materials provided by Gazelle in the package you received. For Trade-In, this may include software, accessories, adapters, and manuals. Failure to include any items you told us about when the offer was calculated,or sending us a Product which does not match your original description, may impact the final value of your Product and may result in a revised offer.
Removing Data From Your Product. For Products involving Products that store files and/or personal data on hard drives, memory chips or the like, you must back up and store any data you wish to keep from your Product and remove any personal information from the Product before you send your Product to us for Trade-In. Likewise for Products you Purchase from Gazelle and returned to Gazelle in accordance with this Agreement, you agree to remove any such data from the Product prior to returning the Product to Gazelle. Gazelle's standard practice is to remove all such data from the Product; however, Gazelle makes no guarantee that it will do so. By sending Gazelle the Product, you agree to release us from any claim as to the Product, the data stored in such Product, or any information on any media used in conjunction with the Product and which you send to Gazelle (whether in connection with a Trade-In or a Purchase), or for such data's security, integrity, confidentiality, disclosure or use. Gazelle is not responsible for: (a) any loss suffered by you due to any data that is not erased from the Product and transferred to a third party, or (b) any loss of data after you submitted the Product to us.
Product Inspection; Offer Recalculation. Your Trade-in Product must be received by Gazelle within thirty (30) days after you accept the original offer provided by Gazelle and complete the check- out process on the Gazelle Website (the "Delivery Period") or the offer shall automatically expire. Packing and shipping recommendations provided to you by Gazelle should be followed in order to avoid possible damage to or loss of the Product in transit. Gazelle will inspect all Products that are received. Gazelle has the option to accept or reject the Product, including without limitation, to reject any Product not conforming to the description you provided to us, any Product modified in such a way that it no longer conforms to the original factory specifications, any Product no longer complying with applicable laws or regulations (e.g., FCC rules, etc.) and/or any Product damaged or lost in transit. If Gazelle rejects the Product for any of these reasons, the original offer automatically expires and is rescinded. Gazelle reserves the right to revoke the original offer and provide a revised offer for the Product if: (a) the Product and/or materials are not as described, (b) the Product is received by Gazelle after the Delivery Period, and/or (c) Gazelle receives Product(s) that are different from those identified when your offer was calculated. As described above, Gazelle typically honors the offer price you receive for your Product on the Gazelle Website for a period of thirty (30 days); sometimes for a longer period of time in connection with a temporary extended price-lock offer (each a “Price-Lock Offer”). Notwithstanding any Price-Lock Offer, Gazelle always reserves the right to recalculate the original offer price and provide a revised offer for the Product if, during the Price-Lock Offer period, the market price for your Product has declined by more than thirty percent. Gazelle shall determine the market price during such applicable period and whether there has been any such decline in its sole discretion. If you elect not to accept the recalculated offer price, your Product will be returned to you.
Recalculated Product Offers after Inspection. In the event Gazelle recalculates the offer it provided for the Product after it has been received and inspected for Trade-In, as described above, you shall have the option of accepting or rejecting the new offer. If you accept the new offer, you will be paid in normal course and in accordance with these service terms. If you reject the new offer, Gazelle will return the Product to you at the address from which it was originally sent. Gazelle will give you a period of fifteen (15) days after Gazelle presents you with a recalculated offer via email at the address you provided to accept or reject the new offer (the “New Offer Period”). Gazelle will also remind you of the outstanding new offer two more times during the New Offer Period. However, if the new offer is neither affirmatively accepted nor rejected by you during the New Offer Period, the new offer will be deemed to have been accepted by you and you will be paid the new offer price in the normal course and in accordance with these service terms. For the avoidance of doubt, your acceptance of the original offer and/or any new offer is final and you may not change your mind later about accepting such offer.
Trade-in Price Promise Promotion. From time to time, Gazelle may choose to run a promotion whereby Gazelle will NOT recalculate your original Trade-In offer after Product inspection (the “Trade-in Price Promise Promotion”). Under the Trade-in Price Promise Promotion, your Product’s original Trade-In offer will only be honored, if you have not violated any of the terms of this Agreement and:
The Product is not reported lost/stolen;
Find My iPhone or find my device feature is turned “off” on the Product;
You accurately represented the make, model, storage capacity, carrier, and condition of the Product when the original Trade-In offer was made;
The Product is in the same condition as when the original Trade-In offer was made;
The value of the Product’s original Trade-In offer and potential recalculated offer, after inspection, is within the greater of fifteen dollars ($15) or fifteen percent (15%) of each other; and
Your Product’s potential recalculated offer after inspection is over $0.
Gazelle reserves the right, in its sole discretion, to refuse, cancel, or modify the Trade-in Price Promise Promotion without notice. Each customer is limited to five (5) Trade-in Price Promise Promotions per calendar year.
Releasing Rights to Product. Once you send Gazelle your Product for Trade-In, Gazelle cannot and does not guarantee that it will be able to honor any request for return of the Product and/or any data or information contained in such Product. Of course, if Gazelle rejects the Product or you do not accept any new offer for the Product pursuant to Sections 9 and 10 (“Return Circumstances”), your Product will be returned to you as set forth in Sections 9 and 10.
Risk-Of-Loss. You remain responsible for the risk-of-loss for the Products sent to Gazelle for Trade-In until delivery of the same to Gazelle. You are responsible for any damages that may occur to your Product while in transit. Gazelle is responsible for risk-of-loss when it opens the packaging containing your Product and ceases in the event Gazelle returns your product to you for any reason. For the avoidance of doubt, in such event, risk of loss will be transferred to you once Gazelle delivers the package to the carrier for return to you and you will bear the risk-of-loss while the Product is in transit.
If you return a Product to Gazelle that you Purchased, you are responsible for the risk-of-loss for the Product until Gazelle receives the Product. You are responsible for any damages that may occur to the Product while in transit back to Gazelle.
Passing of Title. Title to the applicable Product sent to Gazelle for Trade-In passes to Gazelle upon Gazelle’s acceptance of the Product for the original offer or the new offer, as applicable. If there is a Return Circumstance, title shall not pass and shall remain with you.
Non-Transferable. Any offer by Gazelle for your Product for Trade-In is non- transferable and not redeemable for any other consideration other than what is offered by Gazelle.
Import and Export Laws. You agree to comply fully with all import and export laws, regulations, rules and orders of the United States, or any foreign government agency or authority, and that you will not directly or indirectly transfer any Product without proper authorization from the U.S. and/or foreign government. You bear responsibility for and assume all expenses relating to your compliance with the described laws, regulations, rules and orders, and for obtaining all necessary authorizations and clearances in order to convey any Product to Gazelle in connection with a Trade-In, including without limitation, valuation, classification and duties applicable with the import of any goods. Please note: U.S. trade sanctions administered by the Office of Foreign Assets Control (OFAC) generally prohibit the importation into the United States (including U.S. territories), either directly or indirectly, of most goods, technology, or services (except information and informational materials) from, or which originated from Cuba, Iran, Iraq, Libya, North Korea, Serbia, or Sudan; from foreign persons designated by the Secretary of State as having promoted the proliferation of weapons of mass destruction; named Foreign Terrorist Organizations; designated terrorists and narcotics traffickers. You may not offer or provide to Gazelle for sale, any Products that would violate the provisions of this Section 16.
Promotions. From time to time, and at Gazelle’s sole discretion, Gazelle may offer promotional programs as an incentive to customers. Promotions applicable to payments are applied as an increment to the final value of a customer’s Product, but they are not considered a change in that final value. Promotional programs have explicitly defined terms, including but not limited to, expiration, usage per person and per transaction, and other limitations and restrictions. Unless otherwise stated, promotions must be applied by you before checkout. For the avoidance of doubt, once checkout is completed, promotions cannot be applied to the same transaction. Gazelle reserves the right, in its sole discretion, to cancel or refuse promotions.
Accuracy of all Information. Gazelle makes every effort to ensure the accuracy of all information you receive in relation to your Product. From time to time, however, there may be typographical errors, technical inaccuracies, pricing or other errors or omissions. As such, Gazelle reserves the right, at any time prior to payment, to☹a) Correct an error. (b) Change the offer or cancel the Purchase prior to your receipt of the Product. In the event the Product has already been sent to Gazelle for Trade-In, the changed offer will become a New Offer subject to the processes set forth in Section 9 and Section 10. Otherwise, the changed offer will be a re-issued original offer, which you may accept or reject. (c) Void a transaction. If the Product was already sent to Gazelle, Gazelle will be deemed to have rejected the Product resulting in a Return Circumstance subject to Section 12.
Electronic Notices and Transactions. You agree to transact with us electronically, including without limitation, agreeing to terms and conditions or offering to sell your Product by electronic means. You authorize Gazelle to provide you with terms and important notices about Gazelle and your transactions to an email address you provide to us or by posting notices on an applicable page (or my account area) on www.gazelle.com. It is your duty to keep your email address accurate and up to date and to maintain a valid email address and to ensure that emails we send you are not filtered or stopped by spam filters or other types of email blocking functionalities. If you no longer desire to transact electronically with us, you may no longer use the Gazelle Websites. You can retrieve and review this Agreement by clicking on the "Legal" link at www.gazelle.com.
Access. You are responsible for obtaining at your own expense all equipment and services needed to access and use the Gazelle Websites and the Gazelle Services, including all devices, Internet browsers and Internet access. If you access the Gazelle Website and the Gazelle Services through a mobile or wireless device, you are responsible for all fees that your carrier may charge you for data, text messaging and other wireless access or communications services.
Use of Services. By using Gazelle Websites, you agree not to (i) access any of the Gazelle Services by any means (including, without limitation, by use of scripts, web crawlers or similar methods) other than through the user interface provided by Gazelle; and (ii) engage in any other activity that interferes with or disrupts the Gazelle Services or performance of the Gazelle Websites.
No Warranties. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, WE PROVIDE THE GAZELLE SERVICES AND WEBSITES "AS IS," "WITH ALL FAULTS," AND "AS AVAILABLE," WITHOUT EXPRESS OR IMPLIED WARRANTIES OF ANY KIND. WE DISCLAIM ANY IMPLIED WARRANTIES OF MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND THE IMPLIED CONDITIONS OF SATISFACTORY QUALITY. WE MAKE NO REPRESENTATIONS THAT YOUR TRANSACTIONS WITH GAZELLE WILL MEET YOUR REQUIREMENTS.
Gazelle Text Message Terms and Conditions. This section (“Text Message Terms”) applies to your participation in one or more of Gazelle’s text messaging programs (the “Program”). Your participation in the program constitutes your express consent to receive recurring and nonrecurring automated text messages (e.g., SMS and MMS) at the mobile number you provided, including text messages that may be sent using an automatic telephone dialing system.
The Program may include recurring and nonrecurring text messages relating to promotions, products, your orders, cart reminders, transactional communications, requests for customer feedback and customer experience reviews, and information that we think will be of interest to you. Message frequency varies. Gazelle reserves the right to alter the frequency of messages sent at any time, so as to increase or decrease the total number of sent text messages. Consent to receive automated marketing text messages is not a condition of purchase or trade-in. We do not charge for the service, but you are responsible for all charges and fees associated with text messaging imposed by your wireless provider. Message and data rates may apply. Not all mobile phone carriers and not all mobile devices or handsets may be supported, and our text messages may not be deliverable in all areas. Gazelle reserves the right to add or remove mobile phone carriers from the Program from time to time.
You may opt out of the Program at any time. If you wish to unsubscribe, text STOP, UNSUBSCRIBE, CANCEL, END or QUIT to any text message sent from us. After texting us STOP, you will receive one additional message confirming that your request has been processed. You understand and agree that alternative methods of opting out, such as using alternative words or requests, may not be recognized by Gazelle as an unsubscribe request and that Gazelle and its service providers will have no liability for failing to honor such requests.
For any questions, please text HELP to the number you received the messages from. You can also contact us at https://www.gazelle.com/help/contact_us for more information.
We have the right to modify any telephone number or short code we use to operate the service at any time. You will be notified on such occasions. You agree that if we have provided you with such notice, any messages you send to a telephone number or short code we have changed, including any STOP or HELP requests, may not be received, and we will not be liable for honoring requests made in such messages.
To the extent permitted by applicable law, you agree that Gazelle, our service providers and the mobile phone carriers will not be liable for failed, delayed, undelivered or misdirected text messages, including any information contained therein, sent in connection with the Program, any errors in such text messages, and/or any action you may or may not take in reliance on the text messages or Program.
Limited Liability. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL GAZELLE OR ITS DIRECTORS, OFFICERS, EMPLOYEES, AGENTS, DISTRIBUTORS OR CONTRACTORS (COLLECTIVELY, THE "GAZELLE PARTIES") BE LIABLE FOR ANY COMPENSATORY, INDIRECT, INCIDENTAL, CONSEQUENTIAL, OR SPECIAL DAMAGES, LOSS OF DATA, INCOME OR PROFIT, LOSS OF OR DAMAGE TO PROPERTY, OR ANY CLAIMS OF YOU OR OTHER THIRD PARTIES WHATSOEVER WITH RESPECT TO YOUR TRANSACTIONS WITH GAZELLE UNDER THIS AGREEMENT REGARDLESS OF THE LEGAL THEORY ON WHICH THE CLAIM IS BASED, WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, WARRANTY, OR OTHERWISE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT SHALL THE MAXIMUM AGGREGATE LIABILITY OF GAZELLE AND THE GAZELLE PARTIES (JOINTLY) ARISING OUT OF OR RELATING TO YOUR ACCESS TO OR USE OF THE GAZELLE SERVICES AND GAZELLE WEBSITES EXCEED THE GREATER OF (I) THE AMOUNT PAID, IF ANY, BY YOU TO US OR (II) $100. THE LIMITATIONS SET FORTH IN THIS AGREEMENT WILL NOT LIMIT OR EXCLUDE LIABILITY FOR OUR GROSS NEGLIGENCE, FRAUD OR INTENTIONAL, MALICIOUS OR RECKLESS MISCONDUCT, OR FOR PERSONAL INJURY OR PROPERTY DAMAGE CAUSED BY PRODUCTS YOU PURCHASE THROUGH THE GAZELLE SERVICES.
Indemnity. You agree to indemnify, defend, and hold harmless Gazelle and the Gazelle Parties from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys' fees) that such parties may incur as a result of or arising from your violation or breach of any terms under this Agreement. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.
Entire Agreement/No Waiver. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof. The captions are used only as a matter of convenience and are not to be considered a part of this agreement or be used in determining the intent of the parties to it. No waiver by Gazelle of any breach or default hereunder shall be deemed to be a waiver of any preceding or subsequent breach or default. Sections 6, 8, 12, 14, 16, 19, 20 and 23 through 31 shall survive termination of this Agreement.
Correction of Errors and Inaccuracies. The Gazelle Websites and any correspondence related to a transaction may contain typographical errors or other errors or inaccuracies and may not be complete or current. Gazelle therefore reserves the right to correct any errors, inaccuracies or omissions and to change or update the Content at any time without prior notice. Gazelle does not, however, guarantee that any errors, inaccuracies, or omissions will be corrected.
Modification. Gazelle reserves the right to modify this Agreement at any time. If you do not agree to the changes, you may discontinue using the Gazelle Websites and/or the Gazelle Services. Your continued use of any Gazelle Website and/or Gazelle Services after any such changes take effect constitutes your acceptance to such changes. Each time you submit a Product for sale to Gazelle, you reaffirm your acceptance of this Agreement as in effect at the time of such use. You are responsible for reviewing this Agreement each time you use the Gazelle Websites and/or the Gazelle Websites. The Agreement is and will be located at www.gazelle.com/service_terms. The last date this Agreement was revised is set forth below.
Dispute Resolution; Binding Arbitration. PLEASE READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES YOU AND GAZELLE TO ARBITRATE CERTAIN DISPUTES AND CLAIMS AND LIMITS THE MANNER IN WHICH WE CAN SEEK RELIEF FROM EACH OTHER. ARBITRATION PRECLUDES YOU AND GAZELLE FROM SUING IN COURT OR HAVING A JURY TRIAL.
YOU AND GAZELLE AGREE THAT ARBITRATION WILL BE SOLELY ON AN INDIVIDUAL BASIS AND NOT AS A CLASS ARBITRATION, CLASS ACTION, OR ANY OTHER KIND OF REPRESENTATIVE PROCEEDING. GAZELLE AND YOU ARE EACH WAIVING THE RIGHT TO TRIAL BY A JURY.
THE PARTIES ACKNOWLEDGE THAT THE TERMS OF THIS SECTION ARE INTENDED TO REDUCE THE FINANCIAL BURDENS ASSOCIATED WITH RESOLVING THEIR DISPUTES AND ARE NOT INTENDED TO DELAY ADJUDICATION OF ANY PARTY'S CLAIMS.
FOLLOW THE INSTRUCTIONS BELOW, IN SECTION 30(K), IF YOU WISH TO OPT OUT OF THE REQUIREMENT OF ARBITRATION ON AN INDIVIDUAL BASIS. NO CLASS OR REPRESENTATIVE ACTIONS OR ARBITRATIONS ARE ALLOWED UNDER THIS ARBITRATION AGREEMENT.
- Claims This Section Applies To. The dispute resolution and binding arbitration terms in this Section 30 apply to all Claims between you and Gazelle. A “Claim” is any dispute, claim, or controversy (excluding those exceptions listed below) between you and Gazelle, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, that either party wishes to seek legal recourse for and that arises from or relates to this Agreement, the Gazelle Services or Products, including any privacy or data security claims or claims related to the validity, enforceability, or scope of the arbitration requirement or any portion of it.
- Informal Dispute Resolution Prior to Arbitration. If you have a Claim against Gazelle or if Gazelle has a Claim against you, you and Gazelle will first attempt to resolve the Claim informally in order to try and resolve the Claim faster and reduce costs for both parties. You and Gazelle will make a good-faith effort to negotiate the resolution of any Claim for 30 days, or such longer period as mutually agreed in writing (email suffices) by the parties, (“Informal Resolution Period”) from the day either party receives a written notice of a dispute from the other party (a “Claimant Notice”) in accordance with this Agreement.
You will send any Claimant Notice to Gazelle by certified mail addressed to Gazelle, Attn: Chief Legal Officer, 10121 Barnes Canyon Road, San Diego, CA 92121 or by email to firstname.lastname@example.org. Gazelle will send any Claimant Notice to you by certified mail or email using the contact information you have provided to Gazelle. The Claimant Notice sent by either party must (i) include the sender’s name, address, email address, and telephone number; (ii) describe the nature and basis of the Claim; and (iii) set forth the specific relief sought.
The Informal Resolution Period is designed to allow the party who has received a Claimant Notice to make a fair, fact-based offer of settlement if it chooses to do so. You or Gazelle cannot proceed to arbitration before the end of the Informal Resolution Period. If you or Gazelle file a Claim in court or proceed to arbitration without complying with the requirements in Section 30, including waiting until the conclusion of the Informal Resolution Period, the other party reserves the right to seek relief from a court to enjoin the filing and seek damages from the party that has not followed the requirements in this Section to reimburse it for any arbitration fees and costs already incurred as a foreseeable consequence of that breach.
The statute of limitations and any filing fee deadlines for a Claim will be tolled for the duration of the Informal Resolution Period for that Claim so that the parties can engage in this informal dispute-resolution process.
- Claims Subject to Binding Arbitration; Exceptions. Except for individual disputes that qualify for small claims court (provided that the small-claims court does not permit class or similar representative actions or relief) and any disputes exclusively related to the intellectual property or intellectual property rights of you or Gazelle, including any disputes in which you or Gazelle seek injunctive or other equitable relief for the alleged unlawful use of your or Gazelle’s intellectual property or other infringement of your or Gazelle’s intellectual property rights (“IP Claims”), all Claims, including Claims that are not related to intellectual property or intellectual property rights but are jointly filed with IP Claims, that are not resolved in accordance with Section 30(b) will be resolved by a neutral arbitrator through final and binding arbitration instead of in a court by a judge or jury. Such Claims include, without limitation, disputes arising out of or relating to interpretation or application of this arbitration provision, including the enforceability, revocability, or validity of the arbitration provision or any portion of the arbitration provision. The arbitrator will have the authority to grant any remedy or relief that would otherwise be available in court.
- Binding Individual Arbitration. Subject to the terms of this section, Claims may only be settled by binding individual arbitration conducted by National Arbitration and Mediation (“NAM”), https://namadr.com, according to the Federal Arbitration Act, 9 U.S.C. § 1, et seq., (“FAA”) and according to NAM’s Comprehensive Dispute Resolution Rules and Procedures in effect at the time the Claim arose (the “Rules”), as modified by this Agreement.
If NAM notifies the parties in writing (email suffices) that it is not available to arbitrate any Claim, then that Claim may only be settled by binding individual arbitration conducted by American Arbitration Association (“AAA”), https://www.adr.org. For Claims that must be arbitrated by AAA, if you are a “Consumer,” meaning that you only use the Gazelle
Services for personal, family or household purposes, the then-current version of the AAA’s Consumer Arbitration Rules are the Rules applicable to Claims between you and Gazelle as modified by this Agreement. For Claims that must be arbitrated by AAA, if you are not a Consumer, the then-current version of the AAA’s Commercial Arbitration Rules and Mediation Procedures are the Rules applicable to Claims between you and Gazelle as modified by this Agreement.
This Agreement affects interstate commerce, and the enforceability of this Section 30 will be substantively and procedurally governed by the FAA to the extent permitted by law. As limited by the FAA, this Agreement, and the Rules, the arbitrator will have exclusive authority to make all procedural and substantive decisions regarding any Claim and to grant any remedy that would otherwise be available in court, including the power to determine the question of arbitrability. To the fullest extent allowed by applicable law, the arbitrator may only award legal or equitable remedies that are individual to you or Gazelle to satisfy one of our individual Claims (that the arbitrator determines are supported by credible relevant evidence).
- Arbitration Procedure and Location. You or Gazelle may initiate arbitration of any Claim not resolved during the Informal Resolution Period by filing a demand for arbitration with NAM in accordance with the Rules (or with AAA in accordance with the Rules if applicable pursuant to Section 30(d)).
Instructions for filing a demand for arbitration with NAM are available on the NAM website or by calling NAM at 800-358-2550, and instructions for filing a demand for arbitration with AAA are available on the AAA website or by calling AAA at 800-778-7879. You will send a copy of any demand for arbitration to Gazelle by certified mail addressed to Gazelle, Attn: Chief Legal Officer, 10121 Barnes Canyon Road, San Diego, CA 92121 or by email to email@example.com. Gazelle will send any demand for arbitration to you by certified mail or email using the contact information you have provided to Gazelle.
The arbitration will be conducted by a single arbitrator in the English language. You and Gazelle both agree that the arbitrator will be bound by this Agreement.
For Claims in which the claimant seeks less than USD $10,000, the arbitrator will decide the matter solely based on written submissions, without a formal hearing, unless the arbitrator decides that a formal hearing is necessary. For Claims in which the claimant seeks USD $10,000 or more, or smaller matters in which the arbitrator determines a hearing to be necessary, hearings will be conducted by video or telephone, unless the arbitrator determines an in-person hearing to be necessary. If an in-person hearing is required and you reside in the United States, the hearing will take place in New York, New York, unless the arbitrator determines that this would pose a hardship for you, in which case the in-person hearing may be conducted in the claimant’s state and county of residence. If you reside outside the United States, the site of any in-person hearing will be determined by the applicable Rules.
The arbitrator (not a judge or jury) will resolve all Claims in arbitration. Unless you and Gazelle agree otherwise, any decision or award will include a written statement stating the decision of each Claim and the basis for the award, including the arbitrator’s essential factual and legal findings and conclusions.
An arbitration award, and any judgment confirming it, apply only to that specific case; it cannot be used or offered as precedent in any other case except to enforce the award itself unless the parties agree prior to issuance of the award. Any arbitration decision or award may be enforced as a final judgment by any court of competent jurisdiction or, if applicable, application may be made to such court for judicial confirmation of any award and an order of enforcement.
- Arbitration Fees. Each party will be responsible for arbitration fees in accordance with the applicable Rules and this Agreement.
- Frivolous or Improper Claims. To the extent permitted by applicable law, a claimant must pay all costs incurred by the defending party, including any attorney’s fees, related to a Claim if an arbitrator determines that (i) the Claim was not warranted by existing law or by a nonfrivolous argument or (ii) the Claim was filed in arbitration for any improper purpose, such as to harass the defending party, cause unnecessary delay, or needlessly increase the cost of dispute resolution.
- One Year to Assert Claims. To the extent permitted by law, any Claim by you or Gazelle against the other must be filed within one year after such Claim arises; otherwise, the Claim is permanently barred, which means that you or Gazelle will no longer have the right to assert that Claim.
- Confidentiality. If you or Gazelle submits a Claim to arbitration, you and Gazelle agree to cooperate to seek from the arbitrator protection for any confidential, proprietary, trade secret, or otherwise sensitive information, documents, testimony, and other materials that might be exchanged or the subject of discovery in the arbitration. You and Gazelle agree to seek such protection before any such information, documents, testimony, or materials are exchanged or otherwise become the subject of discovery in the arbitration.
- Coordinated Filings. If 25 or more Claimant Notices are received by a party that raise similar claims and have the same or coordinated counsel, these will be considered “Coordinated Claims” and will be treated as mass filings or multiple case filings according to the Rules, if and to the extent Coordinated Claims are filed in arbitration as set forth in this Agreement. You or Gazelle may advise the other of your or Gazelle’s belief that Claims are Coordinated Claims, and disputes over whether a Claim meets the definition of “Coordinated Claims” will be decided by the arbitration provider as an administrative matter. To the extent either party is asserting the same Claim as other persons and are represented by common or coordinated counsel, that party waives any objection that the joinder of all such persons is impracticable.
Coordinated Claims may only be filed in arbitration as permitted by the process set forth below. Applicable statutes of limitations will be tolled for Claims asserted in Coordinated Claims from the time a compliant Claimant Notice has been received by a party until this Agreement permits such Coordinated Claim to be filed in arbitration or court.
Initial Bellwether: The bellwether process set forth in this section will not proceed until counsel representing the Coordinated Claims has advised the other party in writing (email suffices) that all or substantially all the Claimant Notices for the Coordinated Claims have been provided.
After that point, counsel for the parties will select 30 Coordinated Claims to proceed in arbitration as a bellwether to allow each side to test the merits of its arguments. Each side will select 15 claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. The parties acknowledge that resolution of some Coordinated Claims will be delayed by this bellwether process. Any remaining Coordinated Claims shall not be filed or deemed filed in arbitration, nor shall any arbitration fees be assessed in connection with those Claims, unless and until they are selected to be filed in individual arbitration proceedings as set out in this Section 30(j).
A single arbitrator will preside over each Coordinated Claim chosen for a bellwether proceeding, and only one Coordinated Claim may be assigned to each arbitrator as part of a bellwether process unless the parties agree otherwise.
Mediation: Once the arbitrations that are part of the bellwether process have concluded (or sooner if the claimants and the other party agree), counsel for the parties must engage in a single mediation of all remaining Coordinated Claims, with the mediator's fee paid half by Gazelle and half by the other parties. Counsel for the claimants and the other party must agree on a mediator within 30 days after the conclusion of the last bellwether arbitration. If counsel for the claimants and the other party cannot agree on a mediator within 30 days, the arbitration provider will appoint a mediator as an administrative matter. All parties will cooperate for the purpose of ensuring that the mediation is scheduled as quickly as practicable after the mediator is appointed.
Remaining Claims: If the mediation process concludes with 100 or more unresolved Coordinated Claims remaining, any party to a remaining Coordinated Claim may elect to no longer have the arbitration requirement in this Section 30 apply to all remaining Coordinated Claims for which a compliant Claimant Notice was received by the other party but that were not resolved in the bellwether process or global mediation. To be effective, such an election must be communicated in writing (email suffices) to counsel for the opposing party within 30 days of mediation concluding. Coordinated Claims released from the arbitration requirement must be resolved in accordance with Section 31.
If the mediation process concludes with fewer than 100 Coordinated Claims remaining or if no party makes a timely election as provided for in the previous paragraph, the arbitrator will randomly select 50 Coordinated Claims (or the total remaining amount if less than 50) to proceed in arbitration as a second batch. The arbitrator will randomly select eligible claimants who have provided compliant Claimant Notices for this purpose, and only those chosen cases may be filed with the arbitration provider. Once all arbitrations in the foregoing process are complete, the parties will repeat this process until all Coordinated Claims have been arbitrated.
If Coordinated Claims released from the arbitration requirement are brought in court, claimants may seek class treatment, but to the fullest extent allowed by applicable law, the classes sought may comprise only the claimants in Coordinated Claims for which a compliant Claimant Notice was received by the other party. Any party may contest class certification at any stage of the litigation and on any available basis.
A court will have authority to enforce the bellwether and mediation processes defined in this section and may enjoin the filing of lawsuits or arbitration demands not made in compliance with it.
- Opting Out of Arbitration. You have the right to opt out of binding arbitration within 30 days of the date you first accepted this Agreement by emailing firstname.lastname@example.org. To be effective, the opt-out notice must include your full name, mailing address, and email address. The notice must also clearly indicate your intent to opt out of binding arbitration in order to be valid. By opting out of binding arbitration, you are agreeing to resolve disputes in accordance with Section 31.
- Rejection of Future Arbitration Changes. You may reject any change we make to Section 30 (except address changes) by sending us notice of your rejection within 30 days of the change via email at email@example.com or by certified mail addressed to Gazelle, Attn: Chief Legal Officer, 10121 Barnes Canyon Road, San Diego, CA 92121. Changes to Section 30 may only be rejected as a whole, and you may not reject only certain changes to Section 30. If you reject changes made to Section 30, the most recent version of Section 30 that you have not rejected will continue to apply.
- Severability. If any portion of this Section 30 is found to be unenforceable or unlawful for any reason, including but not limited to because it is found to be unconscionable, (i) the unenforceable or unlawful provision will be severed from this Agreement; (ii) severance of the unenforceable or unlawful provision will have no impact whatsoever on the remainder of this Section 30 or the parties’ ability to compel arbitration of any remaining claims on an individual basis pursuant to this Section 30; and (iii) to the extent that any claims must therefore proceed on a class, collective, consolidated, or representative basis, such claims must be litigated in a civil court of competent jurisdiction, in accordance with this Agreement, and not in arbitration. The litigation of those claims will be stayed pending the outcome of any individual claims in arbitration. Further, if any part of this Section 30 is found to prohibit an individual claim seeking public injunctive relief, that provision will have no effect to the extent such relief is allowed to be sought out of arbitration, and the remainder of this Section 30 will be enforceable.
- Applicable Law or Venue. Any dispute arising from this Agreement, or your use of the Gazelle Services will be governed by and construed and enforced in accordance with the laws of California except to the extent preempted by U.S. federal law, without regard to conflict of law rules or principles (whether of California or any other jurisdiction) that would cause the application of the laws of any other jurisdiction. Any dispute between the parties that is not subject to arbitration and cannot be heard in small claims court will be resolved in the state or federal courts in the County of San Diego, California.
If you have any questions, concerns, or suggestions regarding the above Agreement, please feel free to email firstname.lastname@example.org.
Last Updated: Jan. 10, 2024