THE LEVEL MARKET (TLM) Terms and Conditions

Last Updated: Faburary 19, 2016

Introduction

Hello, welcome to the conditions governing your experience on our site (our lawyers made us do this!). If you visit, shop, or list products on this website, you accept these conditions. Please read them carefully and have a great day!

This User Agreement, our Privacy Policy, any other agreements you may execute with TLM and all policies posted on our sites set out the terms on which The Level Market (“TLM”) offers you access to and use of our site, services, applications and tools (collectively "Services"). Please also review other policies and notices, including but not limited to the Privacy Notice, posted out our sites. You agree to comply with all the above when accessing or using our Services.

Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration (see Legal Disputes, Section B ("Agreement to Arbitrate").

About TLM

TLM is a marketplace that allows users to offer, sell and/or buy certain products in a variety of pricing formats and locations. The actual contract for sale is directly between the sellers and buyers. TLM is not an auctioneer.

While we may provide pricing, shipping, listing, reviews, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, TLM has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.

Using TLM

In connection with using or accessing the Services you will not:

If we believe you are abusing TLM in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.

We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate our Services to anyone for any reason at our discretion.

Policy Enforcement

When a buyer or seller issue arises we may consider the user's performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.

Fees

The fees we charge for using our Services are as published by TLM from time to time. We may change our fees from time to time by posting the changes on the TLM site 14 days in advance, but with no advance notice required for temporary promotions.

Users shall pay fees as set forth in separate agreements with TLM if applicable.

Under no circumstances will TLM be responsible for any refund or proposed cancellation of an order. All cancellations and/or refunds will be discussed and handled directly between buyer and seller. Once TLM has received a payment from a buyer of products, TLM will only allow the cancellation of an order or pay a refund if the seller has agreed.

Escrow

Buyer and seller hereby appoint TLM as escrow agent to receive, hold and disburse funds paid for products purchased through our Services (the “Funds”), and TLM hereby accepts its appointment as escrow agent on the terms described herein. TLM will receive from buyers all funds due to seller pursuant to any order made through our Services and shall deposit the same in a safe bank account. TLM shall escrow such funds until such time as the products have been delivered to buyer, at which point TLM will initiate payment for such products to seller; provided, however, that TLM shall disburse funds earlier in accordance with any custom payment terms agreed to by buyer and seller. TLM shall be responsible only for the safekeeping of the Funds and the delivery of the Funds in accordance with these terms and conditions. TLM shall have no responsibility for the performance by buyer or seller of any of their obligations or be bound in any way by any agreement between buyer and seller. Upon the disbursement of the Funds in full, TLM’s role as escrow agent shall terminate. In the event of a breach by either the seller or buyer, which results in a lawsuit of any sort, TLM shall either: (a) hold the Funds (or the balance thereof) until TLM receives written notice of resolution of court case; or (b) deposit the Funds with the clerk of the applicable court. TLM undertakes to perform only such duties as are expressly set forth herein, and no additional duties or obligations shall be implied hereunder. In performing its duties, or upon the claimed failure to perform any of its duties, TLM shall not be liable to anyone for any damages, losses or expenses that may be incurred as a result of TLM so acting or failing to so act; provided, however, that TLM shall not be relieved from liability for damages arising out of its gross negligence or willful misconduct. TLM shall in no event incur any liability with respect to (a) any action taken or omitted to be taken in good faith upon advice of its legal counsel given with respect to any question relating to the duties and responsibilities of TLM hereunder, or (b) any action taken or omitted to be taken in reliance upon any instrument delivered to TLM and believed by TLM to be genuine and to have been signed or presented by the proper party or parties. TLM shall have no obligation to take any legal action in connection with the Services, or to appear in, prosecute or defend any action or legal proceeding which would or might involve it in any cost, expense, loss or liability, unless security and indemnity shall be furnished by buyer and seller equally. Buyer and seller jointly and severally agree to indemnify TLM and its officers, directors, employees and agents and save TLM and its officers, directors, employees and agents harmless from and against any and all Escrow Agent Claims (as hereinafter defined) and Escrow Agent Losses (as hereinafter defined) that may be incurred by TLM or any of its officers, directors, employees or agents as a result of Escrow Agent Claims asserted against TLM or any of its officers, directors, employees or agents as a result of or in connection with TLM’s capacity as such by any person or entity, except to the extent such Escrow Agent Losses are directly attributable to TLM’s gross negligence or willful misconduct. For the purposes hereof, (i) the term “Escrow Agent Claims” shall mean all claims, lawsuits, causes of action or other legal actions and proceedings of whatever nature brought against (whether by way of direct action, counterclaim, cross action or impleader) TLM or any of its officers, directors, employees or agents, even if groundless, false or fraudulent, so long as the claim, lawsuit, cause of action or other legal action or proceeding is alleged or determined, directly or indirectly, to arise out of, result from, relate to or be based upon, in whole or in part: (a) the acts or omissions of buyer or seller, (b) the appointment of TLM as escrow agent, or (c) the performance by TLM of its powers and duties; and (ii) the term “Escrow Agent Losses” shall mean losses, costs, damages, expenses, judgments and liabilities of whatever nature (including but not limited to attorneys’, accountants’ and other professionals’ fees, litigation and court costs and expenses and amounts paid in settlement), directly or indirectly resulting from, arising out of or relating to one or more Escrow Agent Claims. Upon the written request of TLM or any of its officers, directors, employees or agents (each referred to hereinafter as an “Indemnified Party”), buyer and seller jointly and severally agree to assume the investigation and defense of any Escrow Agent Claim, including the employment of counsel acceptable to the applicable Indemnified Party and buyer and seller, agree to assume the payment of all expenses related thereto and, notwithstanding any such assumption, the Indemnified Party shall have the right, and buyer and seller jointly and severally agree to pay the cost and expense, to employ separate counsel with respect to any such Escrow Agent Claim and participate in the investigation and defense thereof in the event that such Indemnified Party shall have been advised by counsel that there may be one or more legal defenses available to such Indemnified Party which are different from or additional to those available to either buyer or seller. If at any time a dispute shall exist as to the duty of TLM under the terms hereof, the right to possession, title or proceeds of any item in escrow or as to any dispute arising between the parties as to any matter, TLM may deposit the items in escrow with the Clerk of the District Court of Denver County, State of Colorado, and may interplead the buyer and seller. Upon so depositing such items in escrow and filing its complain in interpleader, TLM shall be released from all liability

International Buying and Selling; Translation

Many of our Services are accessible to international sellers and buyers. We may offer certain programs, tools, and site experiences of particular interest to international sellers and buyers, such as estimated local currency conversion and international shipping calculation tools. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items.

If you are a seller you authorize us to use automated tools to translate your TLM content, in whole or in part, into local languages where such translation solutions are available. If you are a buyer, you may have access to tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed and you should check your translated listing for accuracy.

Cancellations

By Seller

If you are unable to complete a transaction, you must notify the buyer and cancel the transaction. If the buyer already submitted payment, you must issue a full refund. You are encouraged to keep proof of any refunds in the event a dispute arises.

You may cancel a transaction under the following circumstances:

  1. The buyer did not pay. (The seller may flag a buyer for a payment not received, chargeback, or canceled payment.)
  2. Both you and the buyer agree to cancel the transaction prior to shipment, and you have issued the buyer a full refund.
  3. You have decided to refuse service to the buyer, and if the buyer has already paid, you have issued a full refund, including shipping.
  4. The buyer did not receive the item(s) ordered, even though you provided proof of shipping, and you have issued a refund for the item.
  5. Both you and the buyer agreed that the buyer could return the item for a refund, you have received the returned item and issued a refund to the buyer for the item. (Refunding shipping is optional, unless the buyer paid with Direct Payments, in which case you will need to refund in full.)

By Buyer

Once TLM has received payment for products ordered through our Services, the order for such products cannot be canceled.

Content

When providing us with content or causing content to be posted using our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademark and database rights and other intellectual property rights you have in the content, in any media known now or developed in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.

You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph: your provision of content to us, your causing content to be posted using the Services, and use of any such content (including of works derived from it) by us, our users, or others in contract with us that is done in connection with the Services and in compliance with this User Agreement.

We may offer catalogs including stock images, descriptions and product specifications that are provided by third-parties (including users). You may use catalog content solely in connection with your TLM listings. That permission is subject to modification or revocation at any time at TLM's sole discretion.

While we try to offer reliable data, we cannot promise that the catalogs will always be accurate and up-to-date, and you agree that you will not hold our catalog providers or us responsible for inaccuracies in the catalogs. The catalog may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included within the catalogs or create any derivative works based on catalog content (other than by including them in your listings).

Authorization to Contact You; Recording Calls

You consent to receive autodialed or prerecorded calls and text messages from TLM at any telephone number that you have provided us or that we have otherwise obtained. We may place such calls and texts to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; (vii) contact you with offers and promotions; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Standard telephone minute and text charges may apply.

TLM may share your telephone numbers with our service providers who we have contracted with to assist us in pursuing our rights or performing our obligations under this User Agreement, our policies, applicable law, or any other agreement we may have with you. You agree these service providers may also contact you using autodialed or prerecorded calls and text messages, only as authorized by us to carry out the purposes we have identified above, and not for their own purposes.

TLM may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with TLM or its agents for quality control and training purposes or for its own protection.

Privacy of Others; Marketing

If TLM provides you with information about another user you agree you will use the information only for the purposes it is provided to you. You may not disclose, sell, rent, or distribute a user's information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.

Disclaimer of Warranties; Limitation of Liability

We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Update and other notification functionality in TLM's applications may not occur in real time. Such functionality is subject to delays beyond TLM's control.

You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. Any warranties that might be applicable to products purchased using our Services will be provided by the supplier of the products, if at all. TLM shall not be responsible for any customer service or other inquiries relating to products sold through our Services. TLM shall not be responsible for, and will not accept, any returns of products sold through our Services.

In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:

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

Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (b) $100.

Release

If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.

Indemnity

You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, your improper use of TLM's Services or your breach of any law or the rights of a third party.

Legal Disputes

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND TLM HAVE AGAINST EACH OTHER ARE RESOLVED.

You and TLM agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the TLM User Agreement your use of or access to the Services, or any products or services sold or purchased through the Services will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
  1. A. Applicable Law

    You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Colorado, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and TLM, except as otherwise stated in the User Agreement.

  2. B. Agreement to Arbitrate

    You and TLM each agree that any and all disputes or claims that have arisen or may arise between you and TLM relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to TLM's Services, or any products or services sold, offered, or purchased through TLM's Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
    1. Arbitration Procedures

      Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.

      The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration: rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.

      A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). The Notice to TLM should be sent to TLM Inc., Attn: Chief Executive Officer. TLM will send any Notice to you to the physical address we have on file associated with your TLM account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.

      If you and TLM are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or TLM may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to TLM at the following address: P.O. Box 75, Golden, Colorado 80401. In the event TLM initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your TLM account. Any settlement offer made by you or TLM shall not be disclosed to the arbitrator.

      The arbitration hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or TLM may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and TLM subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or TLM may attend by telephone, unless the arbitrator requires otherwise.

      The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same TLM user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

    2. Costs of Arbitration

      Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000 or less, at your request, TLM will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by TLM should be submitted by mail to the AAA along with your Demand for Arbitration and TLM will make arrangements to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse TLM for all fees associated with the arbitration paid by TLM on your behalf that you otherwise would be obligated to pay under the AAA's rules.

    3. Severability

      If an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. The remainder of the Agreement and its Legal Disputes Section will continue to apply.

    4. Future Amendments to the Agreement to Arbitrate

      Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against TLM prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and TLM. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.TLM.com at least 30 days before the effective date of the amendments and by providing notice through the TLM Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.

  3. C. Judicial Forum for Legal Disputes

    Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt-out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and TLM must be resolved exclusively by a state or federal court located in Denver, Colorado. You and TLM agree to submit to the personal jurisdiction of the courts located within Denver, Colorado for the purpose of litigating all such claims or disputes.

General

Except as otherwise provided in this Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.  In our sole discretion, we may assign this User Agreement, by providing notice of such assignment in accordance with the Notices Section.

Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.

We may amend this User Agreement at any time by posting the amended terms on www.thelevelmarket.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days' notice by posting the amended terms. Additionally, we will notify you through the TLM Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and an TLM representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.

The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the TLM site.

If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.

The User Agreement, the User Privacy Notice, and all polices set forth the entire understanding and agreement between you and TLM and supersede all prior understandings and agreements of the parties.

The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Indemnity, and Legal Disputes.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.