The Terms are a legally binding contract between you and DiveThings (this contract is between you and Sapient Shopping, Inc. which shall be referred to as “DiveThings” for the purposes of this document).
This contract sets out your rights and responsibilities when you use DiveThings.com. By using any of our Services (including browsing our websites), you’re agreeing to the Terms. If you don’t agree with the Terms, you may not use our Services.
1. DiveThings is a Marketplace
(A) Age: DiveThings is fully committed to compliance with the Children’s Online Privacy Protection Rule (“COPPA”) as well as applicable contract law. Accordingly, DiveThings's services are available only to, and may only be used by, individuals who are 18 years of age and older who can form legally binding contracts. You represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. DiveThings may, in its sole discretion, refuse to offer access to, or use of the Site to, any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Site is revoked in such jurisdictions. Individuals under the age of 18 must at all times use DiveThings's services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In all such cases, the adult is the User and is responsible for any and all activities.
(C) Password: Your password is your responsibility. Keep your password secure. You are fully responsible for all activity, liability, and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify DiveThings of any unauthorized use of your password or any breach of security. You also agree that DiveThings cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than DiveThings without DiveThings's express written permission.
(D) Account Information: You must keep your account information up-to-date and accurate at all times, including a valid email address. To sell items on DiveThings you must provide and maintain valid payment information such as valid credit card information and a valid Stripe account.
(E) Account Transfer: You may not transfer or sell your DiveThings account and User ID to another party. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
(F) Right to Refuse Service: ACCESS TO DIVETHINGS’ SERVICES AND THE SITE IS A PRIVILEGE GRANTED AT DIVETHINGS’ SOLE DISCRETION. YOU HAVE NO RIGHT TO ACCESS DIVETHINGS’ SITE. DiveThings will terminate any user who it determines is providing services competitive to DiveThings through the Site. DiveThings's services, and all accesses to the Site, are not available to temporarily or indefinitely suspended DiveThings members. Additionally, DiveThings reserves the right, in DiveThings's sole discretion, to cancel unconfirmed or inactive accounts or to disable, deactivate or terminate your account for any reason, without notice, and without any right to cure.
3. Fees and Services
Joining and setting up a shop on DiveThings is free. DiveThings does not charge fees to list an item for sale. DiveThings does charge a percentage of the sale price when the item sells. When you list an item you have an opportunity to review and accept the fees that you will be charged. DiveThings’s Billing Policy, which is subject to change, is incorporated into this Agreement by reference. Changes to the Billing Policy and the fees for DiveThings's services are effective immediately after posting the changes on the Site. DiveThings may also choose to temporarily change the Billing Policy and the fees for DiveThings's services for promotional events (for example, free listing days); such changes are effective when DiveThings posts the temporary promotional event on the Site.
Fees and Termination: If DiveThings terminates a listing or your account, if you close your account, or if the payment of your DiveThings fees cannot be completed for any reason, you remain obligated to pay DiveThings for all unpaid fees plus any penalties, if applicable. If the seller's account is not paid in full and becomes past due, the seller risks penalties such as the suspension of privileges and/or termination of the account and other collection mechanisms (including retaining collection agencies and legal counsel). YOU HEREBY EXPRESSLY AGREE THAT DIVETHINGS MAY CHARGE YOUR CREDIT CARD, OR ANY OTHER METHOD OF PAYMENT, ON FILE FOR ANY AND ALL OUTSTANDING OR DELINQUENT FEES AND WAIVE ANY AND ALL CLAIMS AGAINST DIVETHINGS FOR EXERCISING THIS RIGHT. If you have a question or wish to dispute a charge, contact DiveThings.
4. Content License
(A) Your Content: DiveThings does not claim ownership rights in content you place on the Site or in your listings (the “Content”). You grant DiveThings a license solely to enable DiveThings to use any information or Content you supply DiveThings with, so that DiveThings is not violating any rights you might have in that Content. You grant DiveThings a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the Content, in any media now known or not currently known, with respect to your Content. You agree to allow DiveThings to store or re-format your Content on DiveThings and display your Content on DiveThings in any way as DiveThings chooses. DiveThings can also use any transactional information including sale date and final price for sales completed on DiveThings as it sees fit.
(C) Re-Posting Content: By posting Content on DiveThings, it is possible for an outside website or a third party to re-post that Content. You agree to hold DiveThings harmless for any dispute concerning this use. If you choose to display your own DiveThings-hosted image on another website, the image must provide a link back to its listing page on DiveThings.
(D) Idea Submissions: DiveThings considers any unsolicited suggestions, ideas, proposals or other material submitted to it by users via the Site or otherwise (other than the Content and the tangible items sold on the Site by users) (collectively, the "Material") to be non-confidential and non-proprietary, and DiveThings shall not be liable for the disclosure or use of such Material. If, at DiveThings's request, any member sends Material to improve the site (for example through the Forums or to customer support), DiveThings will also consider that Material to be non-confidential and non-proprietary and DiveThings will not be liable for use or disclosure of the Material. Any communication by you to DiveThings is subject to this Agreement. You hereby grant and agree to grant DiveThings, under all of your rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in any product or service, without compensation or accounting to you and without further recourse by you.
5. Information Control
DiveThings does not control the Content provided by users that is made available on DiveThings. You may find some Content to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using DiveThings, you agree to accept such risks and expressly agree that DiveThings (and DiveThings' officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on DiveThings.
Other Resources: DiveThings is not responsible for the availability of outside websites or resources linked to or referenced on the Site. DiveThings does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that DiveThings shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.
6. Disputes, Arbitration, Class Waiver, Waiver of Claims and Venue
(A) JAMS: In the event a dispute arises between you and DiveThings, please contact DiveThings. Any dispute arising from or relating to the subject matter of this Agreement shall be finally settled by arbitration in Denton County, Texas, using the English language in accordance with the Arbitration Rules and Procedures of Judicial Arbitration and Mediation Services, Inc. ("JAMS") then in effect, by one commercial arbitrator with substantial experience in resolving intellectual property and commercial contract disputes, who shall be selected from the appropriate list of JAMS arbitrators in accordance with the Arbitration Rules and Procedures of JAMS. The prevailing party in any arbitration or other proceeding arising under this Agreement shall be entitled to receive reimbursement of its reasonable expenses (including reasonable attorneys' fees, expert witness fees and all other expenses) incurred in connection therewith.
(B) Class Action and Collective Action Waiver: The parties agree to arbitrate solely on an individual basis, and this Agreement does not permit class arbitration or any claims brought as a plaintiff or class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person's claims, and may not otherwise preside over any form of a representative or class proceeding. Notwithstanding the tribunal's power to rule on its own jurisdiction and the validity or enforceability of the agreement to arbitrate, the tribunal has no power to rule on the validity or enforceability of the agreement to arbitrate solely on an individual basis.
(C) Enforcement of Arbitration Judgment: Judgment upon the award so rendered may be entered in a court having jurisdiction or application may be made to such court for judicial acceptance of any award and an order of enforcement, as the case may be. Notwithstanding the foregoing, each party shall have the right to institute an action in a court of proper jurisdiction for injunctive or other equitable relief pending a final decision by the arbitrator.
(D) Jurisdiction and Venue: For all purposes of any injunctive or equitable proceeding, the parties consent to exclusive jurisdiction and venue in the United States Federal Courts or state courts located in the Northern District of Texas. Use of the Site is not authorized in any jurisdiction that does not give effect to all provisions of the Agreement, including without limitation, this section.
(E) Limitations Period: You and DiveThings agree that any cause of action arising out of or related to the Site, Services or this Agreement must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred.
(F) Intra-User Disputes and EU Dispute: Should you have a dispute with one or more users, or an outside party, you release DiveThings (and DiveThings officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. DiveThings encourages users to report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
DiveThings, for the benefit of users, may try to help users resolve disputes. DiveThings does so at DiveThings sole discretion, and DiveThings has no obligation to resolve disputes between users or between users and outside parties. To the extent that DiveThings attempts to resolve a dispute, DiveThings will do so in good faith based solely on DiveThings policies. In the event DiveThings involves itself in a dispute between customers, you expressly waive and release DiveThings (and DiveThings officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the dispute.
For disputes located in the EU, the European ADR Directive ( EU Directive 2013/11 / EU) on Alternative Dispute Resolution may be used.
(G) Full Waiver: You expressly waive and release DiveThings (and DiveThings' officers, directors, agents, subsidiaries, joint ventures and employees) from any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with the Site, Services or your use of the same.
7. Financing Vendors
From time to time DiveThings may offer financing options and alternatives through third party vendors (“Financing Vendors”). You acknowledge that Financing Vendors are not agents of DiveThings and DiveThings is not bound by the representations, promises, warranties or guarantees provided by any Financing Vendors. By using the Site you hereby waive and release any and all claims against DiveThings that arise out of your use of, or the services of, any Financing Vendors.
8. Email, Text and Fax Communications
By using the Site and services available on the Site, you agree that you have an established business relationship (EBR) with DiveThings and hereby waive any and all claims under the Telephone Consumer Protection Act (TCPA) as they relate to email, text message or fax communications from DiveThings. You hereby expressly consent to communications of any kind from DiveThings.
9. DiveThings's Intellectual Property
DiveThings, and other DiveThings graphics, logos, designs, page headers, button icons, scripts, and service names are registered trademarks, trademarks or trade dress of DiveThings or its affiliated companies in the U.S. and/or other countries. DiveThings trademarks and trade dress may not be used, in any manner, without the prior express written consent of a duly authorized representative of DiveThings.
10. Access and Interference
DiveThings may contain robot exclusion headers which contain internal rules for software usage. Much of the information on DiveThings is updated on a real-time basis and is proprietary or is licensed to DiveThings by DiveThings's users or third-parties. You agree that you will not use any robot, spider, scraper or other automated means to access DiveThings for any purpose whatsoever, except to the extent expressly permitted by DiveThings's with prior express written permission. Additionally, you agree that you will not take any action that imposes, or may impose, in DiveThings's sole discretion, an unreasonable or disproportionately large load on DiveThings infrastructure. You will not copy, reproduce, modify, create derivative works from, distribute or publicly display any user Content. You will not interfere or attempt to interfere with the proper working of the Site or any activities conducted on the Site. And you will not bypass DiveThings robot exclusion headers or other measures DiveThings may use to prevent or restrict access to DiveThings.
12. No Warranty
DIVETHINGS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS PROVIDE DIVETHINGS SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY, OF ANY KIND. DIVETHINGS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AGENTS AND SUPPLIERS EXPRESSLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, PERFORMANCE, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN ADDITION, NO ADVICE OR INFORMATION (ORAL OR WRITTEN) OBTAINED BY YOU FROM DIVETHINGS SHALL CREATE ANY WARRANTY.
13. Limitation of Liability
IN NO EVENT SHALL DIVETHINGS, AND (AS APPLICABLE) DIVETHINGS SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS BE LIABLE FOR ANY DAMAGES WHATSOEVER, WHETHER DIRECT, INDIRECT, GENERAL, SPECIAL, COMPENSATORY, CONSEQUENTIAL, AND/OR INCIDENTAL, ARISING OUT OF OR RELATING TO THE CONDUCT OF YOU OR ANYONE ELSE IN CONNECTION WITH THE USE OF THE SITE, DIVETHINGS’ SERVICES, OR THIS AGREEMENT, INCLUDING WITHOUT LIMITATION, LOST PROFITS, BODILY INJURY, EMOTIONAL DISTRESS, OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES. DIVETHINGS’ LIABILITY, AND (AS APPLICABLE) THE LIABILITY OF DIVETHINGS’ SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AGENTS AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE AMOUNT OF FEES YOU PAY TO DIVETHINGS IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100.
15. No Guarantee of Continuous Service
DiveThings does not guarantee continuous, uninterrupted access to the Site and no SLA representations or guarantees are included herein. Operation of the Site may be interfered with by numerous factors outside DiveThings control.
The Digital Millennium Copyright Act of 1998 (the “DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. Copyright law. You may not post, distribute, or reproduce in any way any copyrighted material, trademarks, or other proprietary information without obtaining the prior written consent of the owner of such proprietary rights. If you do so repeatedly on the Site, you will be removed as a user. Without limiting the foregoing, if you believe that your work has been copied and posted on the Website in a way that constitutes copyright infringement, please contact DiveThings's DMCA agent.
17. DiveThings Sites
By utilizing DiveThings Sites, you acknowledge that DiveThings is providing the infrastructure and platform for your website, but maintenance, design, content and compliance with federal, state and local laws remains your responsibility as the DiveThings Sites user. You acknowledge that you are responsible for compliance with federal, state and local laws applicable to your DiveThings Site.
18. Your Responsibility for Legal Compliance and Taxes
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any DiveThings service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make on the Site (excluding any taxes on DiveThings net income). This includes sales taxes applicable in each state, depending on the threshold required for collection. DiveThings cannot provide tax advice. Please contact your tax professional to determine whether or not you have sales tax liability. This responsibility includes applicable customs and fees for import and export sales; DiveThings assumes no responsibility for any losses, fees, or confiscations related to importing and exporting products purchased through DiveThings. If you complete 200 transactions or more and receive over $20,000 in gross income from the site, exclusive of DiveThings fees, you will receive a Form 1099 from DiveThings and be obligated to pay income tax on your earnings. DiveThings is not responsible, in any manner, for paying taxes on your earnings or your use of the Site.
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.
21. No Agency
You and DiveThings are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
22. Modification of Service or Terms and Policies
23. Choice of Law
This Agreement shall in all respects be interpreted and construed with and by the laws of the State of Texas, excluding its conflicts of laws rules, and the United States of America.
All Sections which are intended by their terms to survive the expiration of this Agreement shall survive any termination or expiration of this Agreement.
Except as explicitly stated otherwise, any notices shall be given by postal mail to DiveThings; Attn: Legal Department; 5800 N. I-35 #308, Denton, TX 76207 (in the case of DiveThings) or, in your case, to the email address you provide to DiveThings (either during the registration process or when your email address changes), by notice posted to your user dashboard or by notice posted to the Site. Notice shall be deemed given 24 hours after email is sent or notice is posted. Alternatively, DiveThings may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to DiveThings. In such case, notice shall be deemed given three days after the date of mailing.
The services hereunder are offered by Sapient Shopping Inc located at 800 N. I-35 #308, Denton, TX 76207.