TERMS OF SERVICE
Last Updated: July 31, 2020
Welcome to Whatnot! To make these Terms of Service (the "Terms") easier to read, we will sometimes refer to WHATNOT INC. (including our directors, officers, members, managers, employees, affiliates, successors and assigns (each, a "Whatnot Representative"), except when acting as a User) as "Whatnot", "our", "we", or "us"; we will refer to you as "you" or a derivative of you; and we will refer to a user who creates an account on Whatnot as a "User(s)". In some instances when describing interactions between Users we will differentiate between "buyer" Users (each, a "Buyer") and "seller" Users (each, a "Seller").
About the App
Whatnot is a platform accessible via website and mobile application (cumulatively, the "App") that connects Buyers and Sellers of certain products (an "Item"), that can result in a purchase of an Item (a "Transaction"). We provide more in-depth information on registering to use the App and Transactions in the sections below.
Eligibility to Use the App
You must be at least 18 years old in order to create an Account or use the App. By using the App, you represent and warrant that you are at least 18 years of age, and meet all of the eligibility requirements of these Terms. If you do not meet these requirements or, if for any reason, you do not agree with all of the terms and provisions of these Terms, you must stop using the App immediately.
The App was created by avid fans who were seeking a marketplace for the Items you can find on the App. For this reason, Whatnot does not prohibit any Whatnot Representatives use of the App. All Whatnot Representatives who are acting as Users must abide by these Terms.
|Account Information and Right to Use the App|
Account Creation and Profiles
The App allows a User to create a Whatnot account ("Account"). A User may create an Account by entering Their first name and last name and selecting a username and password, which, for the purposes of these Terms, will be considered "User Information". Once an Account is created, if the User wishes to sell Items, the User will need to create an Account profile ("Profile") by providing requested information, at which point the User may be allowed, at our discretion, to sell Items on the App.
All Sellers must provide the following information in their Profile: (1) first and last name, (2) email address, (3) physical address, (4) phone number, and (5) a social media account. All Users may provide additional information as requested in your Profile and Account (the foregoing will also be considered "User Information").
Please Note: While Whatnot collects User Information, it makes no effort or attempt to verify or ensure such User Information is correct, accurate, complete and not misleading.
Account and User Information Protection
It is your responsibility to protect your personal data and maintain the confidentiality of your User Information. You agree to notify us immediately if you suspect or become aware of any unauthorized use of your Account or User Information, or any unauthorized breach of your Account or User Information.
You also acknowledge that your Account and User Information is personal to you and agree not to allow any other person to access the App or any portion of it using your User Information. In the event you share your Account or User Information with others, you do so at your own risk and still are liable for all use of your Account and User Information, even if such use was not authorized.
We have the right to disable any Account at any time in our sole discretion, for any or for no reason, including if, in our opinion, you have violated any provision of these Terms.
Unauthorized Use of Your Account
Whatnot will not be liable for any loss that you may incur as a result of someone else using your Account or User Information, either with or without your knowledge. To the extent allowable by law, you shall be liable for any expenses, including usage charges and fines, fees, civil judgments, and reasonable attorney's fees for your failure to safeguard your User Information and/or promptly notify Whatnot about unauthorized use of your Account or breach of your Account information or password.
No Guarantee of Access
We reserve the right to withdraw or amend the App, and any feature or material we provide as part of the App, in our sole discretion without notice. In addition, the App may automatically be upgraded and updated without notice to you. We will not be liable if for any reason if all or any part of the App is unavailable at any time or for any period.
Use and Access Restrictions
We reserve the right to refuse the use of, or access to, the App to anyone, for any reason, at any time. From time to time, we may restrict access to the App, or any portion thereof, to Users, including registered Users. We may, in our sole discretion, terminate your right to use the App with or without cause at any time, and may prevent your future use of the App. You may terminate this Agreement by simply discontinuing use of the App.
Your Responsibilities Before and After Termination
Whatnot has no obligation to retain or provide you with copies of your Account Information (as defined below), User Information, or otherwise. "Account Information" is an encompassing term that is meant to include your User Information as well as Transaction history, Items listed for Transactions, conversations with other Users, if and when such functionality becomes available on the App, Payment Account information and similar information concerning the App and your App usage. This list is meant to be illustrative and not exhaustive. Whatnot shall not be liable to you for any deletion, loss, corruption or withholding of your Account Information or User Information. You are solely responsible to copy and maintain all Account Information and User Information contained in your Account and Profile.
In the event that you terminate your Account, or we terminate your right to use the App, Whatnot may restrict your access to any Account Information, User Information or material that you may have used or stored in the App.
You agree that you will not:
Unauthorized use may result in criminal and/or civil prosecution under Federal, State and local law. If you become aware of misuse of our App, please contact us at [email protected] .
Your Rights to Use the App
These Terms permit you to use the App for your personal use only, in accordance with the terms herein. Subject to these Terms, we hereby grant you a limited, revocable, personal, non-sublicensable, non-transferable, and non-exclusive license to access and use the App. You will use the App in full compliance with all applicable laws and regulations with regard to your use of the Apps, including all applicable laws.
If you breach any of these Terms, your right to use the App will stop immediately and you must, at our option, return or destroy any copies of the materials you have made. No right, title, or interest in or to the App, or any content on the App is transferred to you.
We reserve all rights that are not expressly granted to you under these Terms.
Interactions with other Users
Whatnot has built the App in order to provide Users with the ability to connect with other Users to coordinate Transactions. The degree to which Users may interact and know each other's identity or identifying information and the degree to which Whatnot helps facilitate User interactions may vary from time to time, but at no time shall Whatnot require that Users interact with each other outside of the App.
YOU SHOULD PROTECT YOURSELF AT ALL TIMES, USE YOUR BEST JUDGEMENT AND TAKE GREAT SAFETY PRECAUTIONS WHEN MEETING OR INTERACTING WITH OTHER USERS. YOU ARE SOLELY RESPONSIBLE FOR YOUR SAFETY AND ANY INTERACTION YOU HAVE WITH ANY OTHER USER.
SUBJECT TO APPLICABLE LAW AND AS FURTHER PROVIDED IN THESE TERMS, WHATNOT IS NOT AND SHALL NOT BE LIABLE FOR, AND YOU HEREBY RELEASE AND HOLD HARMLESS WHATNOT FROM, ANY AND ALL LOSS, DAMAGE, HARM, INJURY, OR CLAIMS THAT ARISE FROM OR ARE RELATED TO USER INTERACTIONS, ENGAGEMENTS, OR OTHER USE OF THE APP.
User Legal Compliance
We require that Users comply with all applicable laws regarding Transactions, which may include licensing, business registration and the like. It is solely the responsibility of each User, and not of Whatnot, to determine which laws are applicable to them and ensure that they are in compliance with such laws.
Please Note: While we require all Users to comply with applicable law, we make no effort to verify or ensure such compliance.
|Pricing Billing and Fees|
At this time, it is free to create an Account and use the App. However, Users are required to pay fees related to Transactions. These fees are outlined on our FAQs, which may be updated or amended from time to time (the "Fee Schedule"). Due to the presence of these potential fees, Users may be required, upon registering their Account, to enter a desired payment method as prompted ("Payment Account").
You authorize Whatnot and/or its Billing Agent to bill you in a manner consistent with its fee structure as found in the Fee Schedule. Fees and charges that are due as a result of a Transaction are automatically billed to your Account Balance (as defined below), or if there are not enough funds in your Account Balance, to your Payment Account upon a Transaction.
Current Payment Information
You must provide Whatnot with current Payment Account information upon registration, change of Payment Account information, and at Whatnot's request. You are solely responsible for maintaining and updating your Payment Account information. Whatnot is not liable for any non-sufficient funds or other charges incurred by you as a result of such attempts to charge, and/or place holds on, your Payment Account.
The following shall apply if you sign up for an Account:
If the Payment Account on file is declined or otherwise rejected for any fee or membership charge, the User shall have 7 days to provide updated information and payment. Failure to cure the within the 7-day grace period may, at Whatnot's sole discretion, result in termination of your Account without a refund. If a User wishes to reactivate their Account after deactivation from failure to pay a fee, they will be required to satisfy any debts owed to another User or to Whatnot before a new Account can be created.
Sellers may list an Item for sale in the App. By listing an Item in the App, Sellers create a binding offer to sell that particular Item at a specified price ("Listing Price"). When a Listing Price aligns with a Buyer's specified buying price (an "Offer"), the App processes an automatic purchase Transaction. Buyer's Payment Account is immediately charged the total amount of the Transaction, which includes the purchase price plus all applicable fees. Upon the occurrence of a Transaction, Seller ships the Item to Whatnot. Whatnot then conducts a verification process in which Whatnot determines the accuracy of the Item's description, condition and authenticity. Once Whatnot determines, in its sole discretion, that the Item is authentic and that its description is accurate, Whatnot confirms the Transaction is proper and ships the Item to Buyer. At which time, Whatnot deposits the proper amount into the Seller's Whatnot Account creating an "Account Balance," and upon request by Seller, Whatnot releases the requested amount from the Account Balance to Seller via a PayPal transfer. It is your responsibility to ensure that all information provided is accurate for a proper transfer. Whatnot may be unable to recover money transferred to an improper account based on the information provided by Users. Seller shall be responsible for the cost of fees charged by PayPal for transfers, and Seller should review the PayPal terms and services as rates are subject to change and beyond the control of Whatnot.
If available for a given Transaction, a Buyer may opt out of the verification process (an "Opt-Out"). In the event of an Opt-Out, a Seller ships the Item directly to Buyer with a pre-paid shipping label provided by Whatnot. Buyers and Sellers are subject to Whatnot's Opt-Out guidelines.
A Transaction occurs when a Listing Price and an Offer align. Upon a Transaction, Sellers are responsible to ship the Item in accordance with Whatnot's shipping policy, which is subject to change, and is available at all times on the WhatnotFAQs. To benefit Sellers, Whatnot provides a pre-paid shipping label that Sellers use to ship an Item to Whatnot, or to a Buyer in the event of an Opt-Out. Should, for any reason, the cost to ship an Item exceed the pre-paid label price, Seller shall be responsible for any additional payment necessary to ship the Item. Failure to abide by shipping policies may, at the sole discretion of Whatnot, result in penalties.
Sellers are responsible for the accuracy of an Item's description. Sellers are required to ensure that the Item matches exactly the image that is displayed on the App, and that the described condition of the Item is a true and accurate description of the condition of the Item. Any inaccuracy, whether it be the description, condition or authenticity of an Item, may, at the sole discretion of Whatnot, result in penalties. If Sellers have any questions regarding Whatnot's authentication process or its condition evaluation process, Seller is responsible for reviewing these items on the Whatnot FAQs.
Penalties arising from Seller-related issues may include but are not limited to (i) additional charges of 15% of the total Transaction amount, or $12.00 (USD) for Transaction less than $45.00 (USD), whichever is greater, plus additional amounts that may be necessary to reflect the use of coupons, promotional specials, or gift certificates, and amounts that reflect the cost of a replacement Item; (ii) removal of any or all Seller Items from the App; (iii) cancellation of any or all of Seller's pending Transactions on the App; (iv) withholding of any payments due to Seller; (v) limitations on Seller's ability to buy and/or sell Items; (vi) charges to Seller's Payment Account for costs, expenses, and fees incurred by Whatnot as a result of Seller's failure to properly comply with these Terms and; (vii) temporary or permanent suspensions of Seller's Account.
Whatnot has no obligation to return Items that do not conform to the Seller's description, and Seller is responsible for any fees associated with any return or disposal of the Item(s). Whatnot has no obligation to return any Item that is deemed counterfeit, unauthentic, stolen, unauthorized, b-grade, or similar, but rather, Whatnot may turn those Items over to the proper authorities, and Seller is responsible for any fees associated with this action.
When a Buyer places an Offer, the Buyer is responsible for the completion of payment of the Transaction amount, including all additional fees and taxes. More information regarding fees and taxes can be found in our Fee Schedule. Upon a Transaction, a Buyer authorizes Whatnot to charge Buyer's Payment Account. Buyer is responsible for updating Payment Account information as necessary to ensure sufficient funds and accurate information that will allow the satisfaction of payment obligations arising from a Transaction.
Penalties arising from payment-related issues may include buy are not limited to (i) additional charges of 15% of the total Transaction amount, or $12.00 USD for Transaction less than $45.00 USD, whichever is greater, plus additional amounts that may be necessary to reflect the use of coupons, promotional specials, or gift certificates, and amounts that reflect the cost of a replacement Item; (ii) removal of any or all Buyer's Seller Items if said Buyer also acts as a Seller on the App; (iii) cancellation of any or all of Buyer's Seller pending Transactions on the App; (iv) withholding of any payments due to Buyer in its capacity as Buyer or Seller; (v) place limits on Buyer's ability to buy and/or sell Items; (vi) charges to Buyer's Payment Account or subsequently provided means of payment for costs, expenses, and fees incurred by Whatnot as a result of Buyer's failure to properly comply with these Terms and; (vii) temporary or permanent suspension of Buyer's Buyer and/or Seller Account.
For each Transaction, with the exception of an Opt-Out, Whatnot conducts a verification process using commercially reasonable efforts to determine the authenticity of each Item and the accuracy of the Item's description, including its condition ("Item Verification"). Notwithstanding the foregoing, Whatnot shall not be liable or responsible for any User's damage, loss, costs or expenses arising from any Item Verification, regardless of whether or not such damage, loss, costs or expenses arise from the negligence of Whatnot. In the event that an Item cannot be authenticated, or is determined to be inaccurately described, Whatnot shall notify the Buyer and the Seller of Whatnot's conclusion, which results in an automatic cancellation of the Transaction and a refund to the Buyer's Payment Account. Once Whatnot determines that the Item meets the necessary criteria, Whatnot will issue the proper payment to Seller Account Balance for the Item, deducting the proper fees. Whatnot will issue payment to Seller Account Balance within 10 days of the date Whatnot ships the Item to the Buyer. At any point, if User has a positive Account Balance, a User may request a transfer via PayPal from the User's Whatnot Account to a PayPal account, and Whatnot will conduct the transfer, deducting applicable fees, within 3-5 business days of the date the User requests the transfer. In the event that an Item is authenticated, Whatnot will ship the Item to the Buyer, and will provide shipping notice and tracking information. Whatnot shall not be responsible for any Item that is damaged or lost during shipping. For further information about Whatnot's roles and responsibilities, visit the Whatnot FAQs.
Whatnot shall, at all times, hold Account Balance funds in a non-interest bearing account. Additionally, Seller's Account Balance shall not be interest bearing. Seller may maintain a positive Account Balance for a duration of User's choosing, however, Whatnot may require Seller to request a transfer, and if Seller does not initiate such transfer within 48 hours, Whatnot may initiate transfer to User's designated PayPal account. If User has not provided a PayPal account, then Whatnot, after 30 days, shall not be responsible for Account Balance funds, and User may be unable to recover the Account Balance.
To better accommodate its Users, Whatnot may allow Buyers to choose an Opt-Out. In the event of an Opt-Out, a Seller ships the Item(s) directly to a Buyer. Whatnot does not conduct an Item Verification. Whatnot provides the Seller with a pre-paid shipping label. Whatnot will issue payment to Seller within 10 days of the date of evidence of Buyer's receipt of the Item(s). In the event that a Buyer disputes the Item for any reason, Whatnot may, at its sole discretion, delay the distribution of payment, request the Item be sent to Whatnot, request the Item be returned to the Seller, or issue a refund to the Buyer. This list of actions is meant to be illustrative rather than exhaustive.
Whatnot may provide historical Whatnot sales data as well estimated values for Items. Any such historical sales data for an Item shall be accurate, and shall be updated frequently, but Whatnot is under no obligation to provide such data, but rather may choose to do so for the benefit of its Users. Whatnot's historical sales data and estimated values in no way suggest or guarantee that Items will sell for an amount that is close to or that exceeds the amount of any past Transaction or for estimated value.
The Whatnot return policy can be found on the Whatnot FAQs. If you experience a problem with your purchase or Item, and you cannot find the proper answer on our FAQs page, please contact us at[email protected]atnot.com.
|Intellectual Property and Account Information|
Intellectual Property Ownership
Whatnot and its licensors are the sole owners of all right, title, and interest in and to the App, including all software and technology therein, as well as any and all intellectual property rights arising therefrom. Except as otherwise provided herein or as authorized in writing by Whatnot, you may not modify, copy, distribute, transmit, display, perform, reproduce, publish, license, frame, create derivative works from, transfer, or otherwise use in any other way for commercial or public purposes, in whole or in part, any information, software, products, materials, or services obtained from the App. If you wish to make any use of material provided as part of the App other than as set out in these Terms, please address your request to: [email protected] .
Any use of the App not expressly permitted by these Terms is a breach of these Terms and may violate copyright, trademark, and other laws. We reserve all rights that are not expressly granted to you under these Terms.
Cooperation with Law Enforcement
Without limiting any term or provision of these Terms, we have the right to fully cooperate with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any Items on or through the App. YOU WAIVE AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES, LICENSEES AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
All material or information that you use post to the App must comply with U.S. copyright law, depending on jurisdiction. If you are the copyright owner or an agent thereof and believe, in good faith, that any materials currently being used in connection with the App infringe upon your copyrights, you may submit a notification pursuant to the Digital Millennium Copyright Act (see 17 U.S.C 512) ("DMCA") by sending the following information in writing to Whatnot's designated copyright agent at[email protected]:
|Liability, Indemnification, and Disputes|
Assumption of Risk
You agree and acknowledge the world is a dangerous place and you must use a great deal of care and caution in all interactions with other Users, whether such interactions occur by phone call, electronic communication outside of the App, or in-person interactions. While Whatnot does not encourage and may not even facilitate User communications, in the event that Users do interact, Whatnot encourages all Users to take proper precautions. If the identity of another User is discovered and leads to an interaction that either User considers inappropriate for any reason, Whatnot encourages the User to contact us at[email protected].
BY USING THE APP AND ENTERING INTO A TRANSACTION YOU ARE ACKNOWLEDGING THAT YOU ARE AWARE OF THE RISKS ASSOCIATED WITH USING THE APP AND ENTERING INTO AN TRANSACTION.
THE APP, AND ANY CONTENT OR INFORMATION THEREIN, AS WELL AS ANY ITEM VERIFICATION, WHATNOT HISTORICAL SALES DATA, ESTIMATED VALUE OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY WHATNOT IS PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND. WHATNOT MAKES NO EXPRESS OR IMPLIED WARRANTIES REGARDING THE APP, THE USE OR PERFORMANCE OF THE APP, ITEM VERIFICATION, WHATNOT HISTORICAL SALES DATA, ESTIMATED VALUE OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY WHATNOT. WITHOUT LIMITING THE FOREGOING, WITH RESPECT TO THE APP (INCLUDING ANY CONTENT AND INFORMATION THEREIN), ANY ITEM VERIFICATION, WHATNOT HISTORICAL SALES DATA, ESTIMATED VALUE OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY WHATNOT, WHATNOT EXPRESSLY DISCLAIMS ALL WARRANTIES, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, SECURITY, ACCURACY, AND NON-INFRINGEMENT. WITHOUT LIMITING THE FOREGOING, WHATNOT MAKES NO WARRANTY OR REPRESENTATION THAT ACCESS TO OR OPERATION OF THE APP, ITEM VERIFICATION, WHATNOT HISTORICAL SALES DATA, ESTIMATED VALUE OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY WHATNOT WILL BE UNINTERRUPTED OR ERROR FREE. YOU ASSUME FULL RESPONSIBILITY AND RISK OF LOSS RESULTING FROM YOUR USE OF THE APP OR FROM ANY ITEM VERIFICATION, WHATNOT HISTORICAL SALES DATA, ESTIMATED VALUE OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY WHATNOT.
SOME JURISDICTIONS LIMIT OR DO NOT PERMIT DISCLAIMERS OF WARRANTY, SO THIS PROVISION MAY NOT APPLY TO YOU.
WHATNOT IS NOT RESPONSIBLE FOR THE ACCURACY OF ANY PAYMENT INSTRUMENT INFORMATION, INCLUDING, BUT NOT LIMITED TO, WHETHER SUCH INFORMATION IS UP-TO-DATE. WHATNOT HAS NO DUTY OR RESPONSIBILITY TO ENSURE THAT A USER HAS A SUFFICIENT ACCOUNT BALANCE TO CONDUCT A TRANSACTION, OR TO DETERMINE IF A USER'S PAYMENT INSTRUMENT IS IN GOOD STANDING AND SUFFICIENT TO CONDUCT A TRANSACTION. USERS UNDERSTAND THAT THEY MAY INCUR FEES AND/OR CHARGES AS A RESULT OF WHATNOT TRANSACTIONS UNDER THE TERMS OF AGREEMENTS WITH PAYMENT INSTRUSMENT ISSUERS, OR WHATNOT MAY BE UNABLE TO FACILITATE SOME TRANSACTIONS.
FOR ALL CLAIMS ARISING OUT OF OR RELATING TO TRANSFERS FROM USER'S ACCOUNT BALANCE, THE SOLE REMEDY AGAINST WHATNOT SHALL BE LIMITED TO THE AMOUNT OF FUNDS TO BE TRANSFERRED PLUS FEES AND CHARGES. IN NO EVENT SHALL WHATNOT BE LIABLE FOR DAMAGES FOR DLEALYS, NONPAYMENT, OR UNDERPAYMENT OF A PAYMENT, WHETHER CAUSED BY AN ACT OR OMISSION OF MERCARI OR OTHERWISE, OR INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EXCEPT AS OTHERWISE PROVIDED BY APPLICABLE LAW OR REGULATION.
Disclaimers of Liability
IN NO EVENT SHALL WHATNOT BE LIABLE TO YOU FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, LOSS OF PROFIT, LOSS OF DATA, OR PUNITIVE DAMAGES, HOWEVER ARISING.
WHATNOT SHALL NOT BE RESPONSIBLE TO YOU OR ANY OTHER PARTY FOR ANY LIABILITY OR DAMAGES ARISING FROM OR IN RELATION TO YOUR USE OF THE APP, WHETHER ARISING FROM A TRANSACTION OR OTHERWISE, OR ANY ITEM VERIFICATION, WHATNOT HISTORICAL SALES DATA, ESTIMATED VALUE OR ANY OTHER PRODUCT OR SERVICE PROVIDED BY WHATNOT; THIS DISCLAIMER INCLUDES ANY AND ALL LIABILITY AND DAMAGE ARISING FROM HARM OR LOSS TO YOU, YOUR ITEM(S), YOUR REAL OR PERSONAL PROPERTY. ADDITIONALLY, WHATNOT SHALL NOT BE LIABLE TO YOU FOR ANY LOSSES ARISING FROM ANY SUSPENSION OR TERMINATION OF YOUR ACCOUNT, INABILITY TO ACCESS YOUR ACCOUNT BALANCE, ABILITY TO USE THE APP, OR ANY FAILURE, ERROR, OMISSION, INTERRUPTION, OR DEFECT OF THE APP.
IF YOU ARE IN ANY WAY CONCERNED ABOUT ANOTHER USERS SUITABILITY FOR THIS APP, PLEASE LET US KNOW IMMEDIATELY.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
ANY DISPUTE THAT ARISES BETWEEN YOU AND ANOTHER USER IS TO BE RESOLVED BY YOU AND SUCH USER. WHATNOT HAS NO RESPONSIBILITY TO RESOLVE ANY USER DISPUTE AND SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH USER DISPUTE. AS SUCH, YOU HEREBY RELEASE WHATNOT FROM ANY AND ALL CLAIMS, DEMANDS, DAMAGES AND LOSSES OF EVERY KIND ARISING FROM ANY USER DISPUTE.
Limitation of Liability
WHATNOT'S LIABILITY TO YOU FOR DAMAGES FROM ANY CAUSE WHATSOEVER, AND REGARDLESS OF THE FORM OF ACTION, WHETHER IN CONTRACT (EVEN IF A FUNDAMENTAL BREACH), TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR OTHERWISE, WILL BE LIMITED TO THE TOTAL FEES PAID BY YOU TO WHATNOT IN THE 12 MONTHS IMMEDIATELY PRECEDING THE EVENT THAT GAVE RISE TO SUCH LIABILITY; PROVIDED THAT IF YOU HAVE PAID NO SUCH AMOUNTS, WHATNOT MAXIMUM LIABILITY TO YOU SHALL BE THE GREATER OF USER'S TOTAL FEES TO WHATNOT FOR THE 12 MONTHS PRIOR TO THE CLAIM; OR $100.00.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF CERTAIN DAMAGES, SO SOME OR ALL OF THE EXCLUSIONS AND LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
Indemnification by You
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS WHATNOT (INCLUDING ITS OFFICERS, DIRECTORS, SHAREHOLDERS, EMPLOYEES, AND AGENTS) FROM AND AGAINST ANY AND ALL LIABILITIES, COSTS, EXPENSES, LOSSES, OR OTHER AMOUNTS (INCLUDING REASONABLE ATTORNEYS' FEES) INCURRED BY WHATNOT THAT ARISE FROM ANY CLAIM, DEMAND, OR CAUSE OF ACTION RELATING TO (1) YOUR USE OF THE APP, INCLUDING WITH RESPECT TO ANY TRANSACTION IN WHICH YOU ARE INVOLVED, (2) OUR USE OF YOUR ACCOUNT INFORMATION, (3) YOUR DISPUTES WITH OTHER USERS, (4) ANY OTHER USER'S ACTIONS OR OMISSIONS, AS THEY RELATE TO YOU, (5) YOUR BREACH OF THESE TERMS, (6) YOUR BREACH OF THE OTHER POLICIES, (7) YOUR MISUSE OF THE APP, (8) YOUR VIOLATION OF ANY LAW, OR (9) YOUR VIOLATION OF ANY OTHER USER'S OR THIRD PARTY'S RIGHTS.
AS STATED THROUGHOUT, WHATNOT SHALL NOT BE LIABLE, AND SHALL BEAR NO LIABILITY, IN CONNECTION WITH ANY TRANSACTION. WHATNOT DOES NOT BUY OR SELL ITEMS OR PARTICIPATE IN ANY TRANSACTIONS BETWEEN USERS. ANY TRANSACTION IN WHICH A WHATNOT REPRESENTATIVE IS ACTING AS A USER SHALL BE CONSTRUED AS A USER TO USER TRANSACTION AND NOT AS A TRANSACTION INVOLVING WHATNOT. ANY DAMAGES OR LIABILITIES THAT ARISE FROM OR IN CONNECTION WITH A TRANSACTION WILL BE YOUR SOLE RESPONSIBILITY.
Limitation on Time to File Claims
YOU AGREE THAT ANY CAUSE OF ACTION RELATED TO OR ARISING OUT OF YOUR USE OF THE APP MUST COMMENCE WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION ACCRUES. OTHERWISE, SUCH CAUSE OF ACTION IS PERMANENTLY BARRED.
WHATNOT SHALL HAVE NO LIABILITY FOR DELAYS OR FAILURE TO MEET RESPONSIBILITIES FROM ANY CONDITION OR EVENT THAT IS BEYOND ITS REASONABLE CONTROL, INCLUDING BUT NOT LIMITED TO GOVERNMENTAL ACTION, ACTS OF TERRORISM, ACTS OF NATURE INCLUDING EARTHQUAKES, FIRE, FLOOD, OR OTHER ACTS OF GOD; OR LABOR CONDITIONS. THIS LIST IS MEANT TO BE ILLUSTRATIVE AND IS NOT EXHAUSTIVE.
|Arbitration Agreement, Jury Trial Waiver, Class Action Waiver and Dispute Resolution|
THIS SECTION PROVIDES YOUR AGREEMENT TO ARBITRATE ("Arbitration Agreement") ANY CLAIMS, SUBJECT TO LIMITED EXCEPTIONS, THAT YOU AND WHATNOT HAVE AGAINST EACH OTHER. UNLESS YOU OPT OUT OF THE ARBITRATION AGREEMENT YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AND RELIEF AGAINST WHATNOT THROUGH ARBITRATION, AND NOT THROUGH ANY ACTION IN COURT, BY JURY TRIAL, OR IN ANY CLASS PROCEEDING. PLEASE REVIEW THIS SECTION CAREFULLY.
Except as prohibited by law and subject to any right you have to bring a claim against Whatnot in small claims court in the county in which you reside, or in Los Angeles, CA, you agree and acknowledge that the exclusive means for resolving any dispute or claim arising from the Terms or your use of the App shall be binding arbitration. Any action to enforce an arbitration decision, including any proceeding to confirm, modify, or vacate an arbitration decision, may be commenced in any court of competent jurisdiction, pursuant to the Governing Law and Jurisdiction section below.
You can decline the provisions of this Arbitration Agreement within 30 days of accepting these Terms by emailing Whatnot at:[email protected]. Your opt out email must include your name and a statement manifesting your intent to opt out of the arbitration provisions of this Arbitration Agreement.
By agreeing to arbitration under the Rules, you agree that the arbitrator, and not any federal, state, or local court or agency, shall have the exclusive power to rule on the interpretation, applicability, and enforceability of the Arbitration Agreement, as well as on all substantive and procedural claims involved in the relevant dispute. Additionally, the arbitrator shall have the authority to grant any remedy that would be available if the dispute were instead being resolved in a court of competent jurisdiction.
All arbitration shall be conducted by a neutral arbitrator under the Consumer Arbitration Rules ("Rules") of the American Arbitration Association ("AAA"). Except as limited by applicable law, You and Whatnot each hereby agree to equally share all filings, administrative and arbitrator fees to conduct the arbitration. Notwithstanding the foregoing sentence, Whatnot will reimburse you for filing fees and pay all arbitrator fees if (1) the total amount of your claims against Whatnot is less than $10,000 and (2) the claims arbitrated by you are resolved in your favor, as determined by the arbitrator. Each party will be solely responsible for any and all fees incurred by such party in connection with the arbitration.
Unless you exercise your right to an oral hearing, arbitration shall be conducted by written submissions. To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claims or disputes to Whatnot at the address specified in the Contact Information section of these Terms. If we begin arbitration proceedings against you, we will provide you notice using your User Information. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, except as provided in this Arbitration Agreement. The AAA's Rules and filing instructions are available at www.adr.org or by calling 1-800-778-7879.
If any term or provision of this Arbitration Agreement is held invalid or unenforceable, such term or provision shall be severed from this Arbitration Agreement, and the remainder of the terms and provisions shall remain in full force and effect.
BY ACCEPTING THESE TERMS AND UNLESS OTHERWISE PROVIDED FOR HEREIN, YOU ARE (1) AGREEING TO THE TERMS OF THE ARBITRATION AGREEMENT IN THIS ARBITRATION AGREEMENT, (2) WAIVING YOUR RIGHT TO HAVE ANY DISPUTE OR CLAIM WITH WHATNOT RESOLVED IN COURT BY A JUDGE OR JURY, (3) OPTING TO HAVE ALL DISPUTES OR CLAIMS WITH WHATNOT RESOLVED BY A NEUTRAL ARBITRATOR, AND (4) WAIVING YOUR RIGHT TO PARTICIPATE IN A CLASS PROCEEDING.
Class-Action Waiver and Jury Trial Waiver
YOU AGREE THAT YOU WILL NOT COMMENCE, MAINTAIN, OR PARTICIPATE IN ANY CLASS ACTION, CLASS ARBITRATION, OR OTHER REPRESENTATIVE ACTION OR PROCEEDING AGAINST WHATNOT ("Class Proceeding") . TO THE EXTENT ANY CLAIM OR DISPUTE HEREUNDER PROCEEDS IN COURT RATHER THAN IN ARBITRATION, WHATNOT AND YOU EACH WAIVE ANY RIGHT TO A JURY TRIAL.
Governing Law and Jurisdiction
Any claim relating to the App shall be governed by the laws of the State of California, without regard to any conflict of law provisions; provided, however, that the Arbitration Agreement above shall be governed by the Federal Arbitration Act. In the event that any or all of the arbitration decision is held to be unenforceable, any litigation against Whatnot may be commenced only in the federal or state courts located inLos Angeles, California. You hereby irrevocably consent to the jurisdiction of those courts for such purposes.
From time to time, Whatnot may offer promotional contests (a "Whatnot Drop"). The rules of a Whatnot Drop are subject to change from time to time, and Users are responsible for reviewing these Terms and any other rules, terms, or notices provided to further educate Users with regards to Whatnot Drops. Below is an example of a Whatnot Drop.
Description: Whatnot Drops are giveaways that run for a limited period of time. The duration of a Whatnot Drop may vary, and will be designated for each Whatnot Drop. WHATNOT INC., is the sponsor of each Whatnot Drop. Each User who engages in a Whatnot Drop acknowledges and accepts that Whatnot is responsible for the collection and processing of User entries, and should there be any questions, Users are encouraged to reach out to Whatnot at [email protected].
How to: Whatnot creates various opportunities for Users to enter Whatnot Drops. Users may have the opportunity to enter multiple times, but if Whatnot suspects that any User is attempting manipulate a Whatnot Drop, suspected manipulation may result in (i) the removal of all entries tied to the User; (ii) a ban from current and future Whatnot Drops; (iii) removal of any or all User's Items on the App; (iv) cancellation of any or all of User's pending Transactions on the App; (v) withholding of any payments due to User; and (vi) limitations on User's ability to buy and/or sell Items. For more information regarding the entry of Whatnot Drops see our FAQs.
Prizes: Whatnot Drop prizes shall be determined solely by Whatnot. The value of Whatnot Drops may vary. Whatnot reserves the right to substitute an advertised Whatnot Drop prize with a prize of equal or greater value than the advertised prize. This determination is at Whatnot's sole discretion, is final, and cannot be challenged or appealed.
All state, federal and local taxes, fees, and charges apply and are the sole responsibility of the Whatnot Drop winner. Failure to comply with these Terms may result in forfeiture of a Whatnot Drop prize.
WHATNOT INC. is the official legal name of Whatnot, and we are a Delaware corporation. Please send all feedback, comments, requests for technical support, and other communications relating to the App to: [email protected] .
Even if Whatnot does not require strict compliance with these Terms in each instance, you are still obligated to comply with these Terms. Our failure to enforce, at any time, any of the provisions, conditions, or requirements of these Terms, or the failure to require, at any time, performance by you of any of the provisions of these Terms, will in no way waive your obligation to comply with any of the provisions of these Terms, or our ability to enforce each and every such provision as written.
Any and all waivers by Whatnot of any provision, condition, or requirement of these Terms will only be effective against Whatnot if it is in writing and signed by an authorized officer of Whatnot. No waiver by Whatnot of any term or condition set out herein shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of Whatnot to assert a right or provision under these Terms shall not constitute a waiver of such right or provision.
Links to Third-Party Websites, Applications, Software, or Content
As part of the App, we may provide you with convenient links to third-party website(s) as well as content or items belonging to or originating from third-parties (collectively, "Third-Party Content"). These links are provided as a courtesy to Users. Whatnot has no control over Third-Party Content or the promotions, materials, information, goods or services advertised by or available from Third-Party Content. Such Third-Party Content is not investigated, monitored or checked for accuracy, appropriateness, or completeness by Whatnot.
We are not responsible for any Third-Party Content posted on, available through or installed from the App, including the content, accuracy, offensiveness, opinions, reliability, privacy practices or other policies of or contained in the Third-Party Content. Our inclusion of, linking to, or permitting the use or installation of any Third-Party Content does not imply approval or endorsement by Whatnot. If you decide to leave the App and access or use any Third-Party Content, you do so at your own risk and you should be aware that our terms and policies no longer govern. You should review the applicable terms and policies, including privacy and data gathering practices, of any third-party site or application to which you navigate from the App.
Entire Agreement & Severability
Email and Legal Notice
Communications made through the Whatnot e-mail and messaging system, if and when available, will not constitute legal notice to Whatnot in any situation where notice to Whatnot is required by contract or any law or regulation.
You Consent to Receive Electronic Communications
We May Amend the App and these Terms
We may update the App (including its content, materials, and features) from time to time. Please be advised that any content contained on the App may not necessarily be complete or up-to-date. Any of the material on the App may be out of date at any given time, and we are under no obligation to update such material.
We may revise and update these Terms from time to time in our sole discretion. All changes become effectively immediately when we post them and upon your continued use of the App.