THE LEVEL MARKET (TLM) Terms and ConditionsLast Updated: June 07, 2016
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!
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").
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.
You and TLM acknowledge that data transfer is necessary to complete transactions on the TLM website for your benefit. In connection with using or accessing the Services you acknowledge that in order to facilitate the transactions between sellers and buyers, you may provide personal information, including without limitation e-mail addresses, telephone numbers, addresses, bank account information, and other identifiable information. You consent to provide this information to third parties in order to facilitate transactions. Subject to the foregoing, TLM may disclose and use your identifiable information as necessary to complete the transaction and to provide customer service. The terms of this Section do not prevent third parties from using information that they collect independently from TLM or information that they acquire without reference to your identifiable information for any purpose, even if such information is identical to identifiable information you provide
In connection with using or accessing the Services you will not:
post, list or upload content or items in inappropriate categories or areas on our sites;
breach or circumvent any laws, third party rights or our systems, policies, or determinations of your account status;
use our Services if you are not able to form legally binding contracts (for example if you are under 18), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
fail to pay for items purchased by you, unless you have a valid reason as set out in TLM policy;
fail to deliver items sold by you, unless you have a valid reason as set out in an TLM policy, for example, the buyer fails to follow the posted terms or you cannot contact the buyer;
interfere with any other user's listings;
post false, inaccurate, misleading, defamatory, or libelous content;
take any action that may undermine the feedback or ratings systems;
transfer your TLM account (including Feedback) and user ID to another party without our consent;
distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
distribute viruses or any other technologies that may harm TLM, or the interests or property of users;
use any robot, spider, scraper or other automated means to access our Services for any purpose;
bypass our robot exclusion headers, interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
export or re-export any TLM application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to TLM, or that comes from the Services and belongs to another TLM user or to a third party including works covered by any copyrights, trademark, patent, or other intellectual property right, except with prior express permission of TLM and/or any other party holding the right to license such use;
commercialize any TLM application or any information or software associated with such application;
harvest or otherwise collect information about users without their consent; or
circumvent any technical measures we use to provide the Services.
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.
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.
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.
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.
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.
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.)
Once TLM has received payment for products ordered through our Services, the order for such products cannot be canceled.
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, sub licensable (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 sub licensees, 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).
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.
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:
your use of or your inability to use our Services;
pricing, shipping or other guidance provided by TLM;
delays or disruptions in our Services;
viruses or other malicious software obtained by accessing, or linking to, our Services;
glitches, bugs, errors, or inaccuracies of any kind in our Services;
damage to your hardware device from the use of any TLM Service;
the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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.
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 a 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.
You may not assign or transfer any rights, obligations, or privileges that you have under this Agreement without our prior written consent. Subject to the foregoing, this Agreement will be binding on each party's successors and permitted assigns. Any assignment or transfer in violation of this section will be deemed null and void.
We will not be considered to have waived any of our rights or remedies, or portion of them, unless the waiver is in writing and signed by us. Our failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of our right to subsequently enforce such provision or any other provisions of this Agreement.
Nothing in this Agreement is intended to or creates any type of joint venture, employee-employer, creditor-debtor, escrow, partnership, or any fiduciary relationship between you, TLM or TLM and its Affiliates. Further, except as expressly provided for the limited purpose of processing payments: (a) neither party shall be deemed to be an agent or representative of the other by virtue of this Agreement, (b) neither party is authorized to, or will attempt to, create or assume any obligation or liability, express or implied, in the name of or otherwise on behalf of the other party, and (c) without limiting the generality of the foregoing, neither party will enter into any contract, agreement, or other commitment, make any warranty or guarantee, or incur any obligation or liability in the name or otherwise on behalf of the other party.
All of our rights and remedies are cumulative, not alternative, and the exercise of any right or remedy by us will not eliminate or limit our ability to exercise any other right or remedy, except to the extent required by law.
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.
Data Transfer Agreement for the transfer of personal data between an EU controller to a Non-EU/EEA processor
For the purposes of Article 26(2) of Directive 95/46/EC for the transfer of personal data to processors established in third countries which do not ensure an adequate level of data protection, the parties have agreed on the following Contractual Clauses (the Clauses) in order to adduce adequate safeguards with respect to the protection of privacy and fundamental rights and freedoms of individuals for the transfer by the data exporter to the data importer of the personal data specified in Appendix 1, the parties agree as follows:
For the purposes of the Clauses:
(a) 'personal data', 'special categories of data', 'process/processing', 'controller', 'processor', 'data subject' and 'supervisory authority' shall have the same meaning as in Directive 95/46/EC of the European Parliament and of the Council of 24 October 1995 on the protection of individuals with regard to the processing of personal data and on the free movement of such data;
(b) 'the data exporter' means the controller who transfers the personal data;
(c) 'the data importer' means the processor who agrees to receive from the data exporter personal data intended for processing on his behalf after the transfer in accordance with his instructions and the terms of the Clauses and who is not subject to a third country's system ensuring adequate protection within the meaning of Article 25(1) of Directive 95/46/EC;
(d) 'the subprocessor' means any processor engaged by the data importer or by any other subprocessor of the data importer who agrees to receive from the data importer or from any other subprocessor of the data importer personal data exclusively intended for processing activities to be carried out on behalf of the data exporter after the transfer in accordance with his instructions, the terms of the Clauses and the terms of the written subcontract;
(e) 'the applicable data protection law' means the legislation protecting the fundamental rights and freedoms of individuals and, in particular, their right to privacy with respect to the processing of personal data applicable to a data controller in the Member State in which the data exporter is established;
(f) 'technical and organisational security measures' means those measures aimed at protecting personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing.
Details of the transfer
The details of the transfer and in particular the special categories of personal data where applicable are specified in Appendix 1 which forms an integral part of the Clauses.
Third-party beneficiary clause
1. The data subject can enforce against the data exporter this Clause, Clause 4(b) to (i), Clause 5(a) to (e), and (g) to (j), Clause 6(1) and (2), Clause 7, Clause 8(2), and Clauses 9 to 12 as third-party beneficiary.
2. The data subject can enforce against the data importer this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where the data exporter has factually disappeared or has ceased to exist in law unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law, as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity.
3. The data subject can enforce against the subprocessor this Clause, Clause 5(a) to (e) and (g), Clause 6, Clause 7, Clause 8(2), and Clauses 9 to 12, in cases where both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, unless any successor entity has assumed the entire legal obligations of the data exporter by contract or by operation of law as a result of which it takes on the rights and obligations of the data exporter, in which case the data subject can enforce them against such entity. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
4. The parties do not object to a data subject being represented by an association or other body if the data subject so expressly wishes and if permitted by national law.
Obligations of the data exporter
The data exporter agrees and warrants:
(a) that the processing, including the transfer itself, of the personal data has been and will continue to be carried out in accordance with the relevant provisions of the applicable data protection law (and, where applicable, has been notified to the relevant authorities of the Member State where the data exporter is established) and does not violate the relevant provisions of that State;
(b) that it has instructed and throughout the duration of the personal data processing services will instruct the data importer to process the personal data transferred only on the data exporter's behalf and in accordance with the applicable data protection law and the Clauses;
(c) that the data importer will provide sufficient guarantees in respect of the technical and organisational security measures specified in Appendix 2 to this contract;
(d) that after assessment of the requirements of the applicable data protection law, the security measures are appropriate to protect personal data against accidental or unlawful destruction or accidental loss, alteration, unauthorised disclosure or access, in particular where the processing involves the transmission of data over a network, and against all other unlawful forms of processing, and that these measures ensure a level of security appropriate to the risks presented by the processing and the nature of the data to be protected having regard to the state of the art and the cost of their implementation;
(e) that it will ensure compliance with the security measures;
(f) that, if the transfer involves special categories of data, the data subject has been informed or will be informed before, or as soon as possible after, the transfer that its data could be transmitted to a third country not providing adequate protection within the meaning of Directive 95/46/EC;
(g) to forward any notification received from the data importer or any subprocessor pursuant to Clause 5(b) and Clause 8(3) to the data protection supervisory authority if the data exporter decides to continue the transfer or to lift the suspension;
(h) to make available to the data subjects upon request a copy of the Clauses, with the exception of Appendix 2, and a summary description of the security measures, as well as a copy of any contract for subprocessing services which has to be made in accordance with the Clauses, unless the Clauses or the contract contain commercial information, in which case it may remove such commercial information;
(i) that, in the event of subprocessing, the processing activity is carried out in accordance with Clause 11 by a subprocessor providing at least the same level of protection for the personal data and the rights of data subject as the data importer under the Clauses; and
(j) that it will ensure compliance with Clause 4(a) to (i).
Obligations of the data importer
The data importer agrees and warrants:
(a) to process the personal data only on behalf of the data exporter and in compliance with its instructions and the Clauses; if it cannot provide such compliance for whatever reasons, it agrees to inform promptly the data exporter of its inability to comply, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(b) that it has no reason to believe that the legislation applicable to it prevents it from fulfilling the instructions received from the data exporter and its obligations under the contract and that in the event of a change in this legislation which is likely to have a substantial adverse effect on the warranties and obligations provided by the Clauses, it will promptly notify the change to the data exporter as soon as it is aware, in which case the data exporter is entitled to suspend the transfer of data and/or terminate the contract;
(c) that it has implemented the technical and organisational security measures specified in Appendix 2 before processing the personal data transferred;
(d) that it will promptly notify the data exporter about:
(i) any legally binding request for disclosure of the personal data by a law enforcement authority unless otherwise prohibited, such as a prohibition under criminal law to preserve the confidentiality of a law enforcement investigation,
(ii) any accidental or unauthorised access, and
(iii) any request received directly from the data subjects without responding to that request, unless it has been otherwise authorised to do so;
(e) to deal promptly and properly with all inquiries from the data exporter relating to its processing of the personal data subject to the transfer and to abide by the advice of the supervisory authority with regard to the processing of the data transferred;
(f) at the request of the data exporter to submit its data processing facilities for audit of the processing activities covered by the Clauses which shall be carried out by the data exporter or an inspection body composed of independent members and in possession of the required professional qualifications bound by a duty of confidentiality, selected by the data exporter, where applicable, in agreement with the supervisory authority;
(g) to make available to the data subject upon request a copy of the Clauses, or any existing contract for subprocessing, unless the Clauses or contract contain commercial information, in which case it may remove such commercial information, with the exception of Appendix 2 which shall be replaced by a summary description of the security measures in those cases where the data subject is unable to obtain a copy from the data exporter;
(h) that, in the event of subprocessing, it has previously informed the data exporter and obtained its prior written consent;
(i) that the processing services by the subprocessor will be carried out in accordance with Clause 11;
(j) to send promptly a copy of any subprocessor agreement it concludes under the Clauses to the data exporter.
1. The parties agree that any data subject, who has suffered damage as a result of any breach of the obligations referred to in Clause 3 or in Clause 11 by any party or subprocessor is entitled to receive compensation from the data exporter for the damage suffered.
2. If a data subject is not able to bring a claim for compensation in accordance with paragraph 1 against the data exporter, arising out of a breach by the data importer or his subprocessor of any of their obligations referred to in Clause 3 or in Clause 11, because the data exporter has factually disappeared or ceased to exist in law or has become insolvent, the data importer agrees that the data subject may issue a claim against the data importer as if it were the data exporter, unless any successor entity has assumed the entire legal obligations of the data exporter by contract of by operation of law, in which case the data subject can enforce its rights against such entity.
The data importer may not rely on a breach by a subprocessor of its obligations in order to avoid its own liabilities.
3. If a data subject is not able to bring a claim against the data exporter or the data importer referred to in paragraphs 1 and 2, arising out of a breach by the subprocessor of any of their obligations referred to in Clause 3 or in Clause 11 because both the data exporter and the data importer have factually disappeared or ceased to exist in law or have become insolvent, the subprocessor agrees that the data subject may issue a claim against the data subprocessor with regard to its own processing operations under the Clauses as if it were the data exporter or the data importer, unless any successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law, in which case the data subject can enforce its rights against such entity. The liability of the subprocessor shall be limited to its own processing operations under the Clauses.
Mediation and jurisdiction
1. The data importer agrees that if the data subject invokes against it third-party beneficiary rights and/or claims compensation for damages under the Clauses, the data importer will accept the decision of the data subject:
(a) to refer the dispute to mediation, by an independent person or, where applicable, by the supervisory authority;
(b) to refer the dispute to the courts in the Member State in which the data exporter is established.
2. The parties agree that the choice made by the data subject will not prejudice its substantive or procedural rights to seek remedies in accordance with other provisions of national or international law.
Cooperation with supervisory authorities
1. The data exporter agrees to deposit a copy of this contract with the supervisory authority if it so requests or if such deposit is required under the applicable data protection law.
2. The parties agree that the supervisory authority has the right to conduct an audit of the data importer, and of any subprocessor, which has the same scope and is subject to the same conditions as would apply to an audit of the data exporter under the applicable data protection law.
3. The data importer shall promptly inform the data exporter about the existence of legislation applicable to it or any subprocessor preventing the conduct of an audit of the data importer, or any subprocessor, pursuant to paragraph 2. In such a case the data exporter shall be entitled to take the measures foreseen in Clause 5 (b).
The Clauses shall be governed by the law of the Member State in which the data exporter is established.
Variation of the contract
The parties undertake not to vary or modify the Clauses. This does not preclude the parties from adding clauses on business related issues where required as long as they do not contradict the Clause.
1. The data importer shall not subcontract any of its processing operations performed on behalf of the data exporter under the Clauses without the prior written consent of the data exporter. Where the data importer subcontracts its obligations under the Clauses, with the consent of the data exporter, it shall do so only by way of a written agreement with the subprocessor which imposes the same obligations on the subprocessor as are imposed on the data importer under the Clauses. Where the subprocessor fails to fulfil its data protection obligations under such written agreement the data importer shall remain fully liable to the data exporter for the performance of the subprocessor's obligations under such agreement.
2. The prior written contract between the data importer and the subprocessor shall also provide for a third-party beneficiary clause as laid down in Clause 3 for cases where the data subject is not able to bring the claim for compensation referred to in paragraph 1 of Clause 6 against the data exporter or the data importer because they have factually disappeared or have ceased to exist in law or have become insolvent and no successor entity has assumed the entire legal obligations of the data exporter or data importer by contract or by operation of law. Such third-party liability of the subprocessor shall be limited to its own processing operations under the Clauses.
3. The provisions relating to data protection aspects for subprocessing of the contract referred to in paragraph 1 shall be governed by the law of the Member State in which the data exporter is established.
4. The data exporter shall keep a list of subprocessing agreements concluded under the Clauses and notified by the data importer pursuant to Clause 5 (j), which shall be updated at least once a year. The list shall be available to the data exporter's data protection supervisory authority.
Obligation after the termination of personal data processing services
1. The parties agree that on the termination of the provision of data processing services, the data importer and the subprocessor shall, at the choice of the data exporter, return all the personal data transferred and the copies thereof to the data exporter or shall destroy all the personal data and certify to the data exporter that it has done so, unless legislation imposed upon the data importer prevents it from returning or destroying all or part of the personal data transferred. In that case, the data importer warrants that it will guarantee the confidentiality of the personal data transferred and will not actively process the personal data transferred anymore.
2. The data importer and the subprocessor warrant that upon request of the data exporter and/or of the supervisory authority, it will submit its data processing facilities for an audit of the measures referred to in paragraph 1.
The data exporter is a buyer on The Level Market (“TLM”)
The data importer is TLM - 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.
The personal data transferred concern the following categories of data subjects: individuals, for-profit businesses, non-profit organizations.
Categories of data
The personal data transferred concern the following categories of data: Email address, Name, Address, Phone. No financial information is stored by TLM.
The personal data transferred will be subject to the following basic processing activities: Basic data processing activities include capturing and storing supplier and customer email identification, name and addresses in Amazon Web Services (AWS) MySql databases. Passwords are encrypted. No financial information is stored by TLM.