Terms & Conditions
Last modified: May 1, 2021Purple Creek, Inc., a North Carolina Corporation, www.purplecreek.com, and its services, applications, domain names, and tools (collectively, the “Site”) are owned and operated by Purple Creek, Inc. (as used herein, “Purple Creek ,” “us” or “we”). These terms and conditions explains the terms by which you may use the Site and our online and/or mobile services and software provided or in connection with the services (collectively, the " Service"), including by purchasing items as a " Buyer" and (ii) submitting an item description and any other related information as a “Seller” in connection with the listing of an item for sale on the Site. These terms and conditions (the “Terms of Service”) apply to all Buyers, Sellers, visitors, users and others who register for or otherwise access or use the Service (collectively, “Users”). Buyers, Sellers, and Users may also be referred to herein as “you”.
Situs of Transactions - By using the Site, you are electing to do business with a North Carolina business, and are availing yourself of the consumer laws applicable to sales within said State in the same manner as if you visited a physical location located in North Carolina. All transactions conducted on the Site are transactions which are offered, negotiated, accepted, and for which consideration is given, in the State of North Carolina. No portion of any transaction shall be deemed to have occurred in another jurisdiction, and by accepting these Terms of Service, you are expressly waiving the application or protection of the laws of any other State or jurisdiction and consenting to the application of the laws of North Carolina.
These Terms of Service are effective upon acceptance by new Users and from the Last Updated date first set forth above for existing Users.
Please read these Terms of Service prior to using the Site and the Services. Purple Creek provides you with access to and use of the Site and the Services expressly and exclusively subject to your compliance with these Terms of Service and Privacy Policy. Your use of the Site and/or the Services constitutes your express agreement to these Terms of Service. If you do not agree to these Terms of Service or if you are not legally competent to agree to them, then you may not access or use the Site or the Services. These Terms of Service are in addition to the terms or conditions of any other written executed agreement (an “Additional Agreement”) you may have with us. Consignors are further bound by the Consignment Terms set forth here. In the event of a conflict between these Terms of Service and any Additional Agreement, these Terms of Service will apply unless expressly set forth otherwise in the Additional Agreement.
Please be advised that this these Terms of Service contain provisions that govern how claims you and we have against each other are resolved (see the Disclaimer provisions and the 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 or our agents to binding and final arbitration (see Agreement to Arbitrate provision below) pursuant to which (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1. ELIGIBILITY TO USE THE SITE AND OTHER SERVICES
While using the Site and/or the Services, you agree that you will not:
● Use the Site or Services if you are not able to form a legally binding contract or if you are under the age of eighteen (18) years old;
- Use the Site or the Services if you have been previously suspended or removed from the Site or Services or engaged in any activity that could result in suspension or removal from the Site or Services;
- Circumvent or manipulate our fee structure, the billing process, any fees owed to Purple Creek, or any technical measures we use to provide the Site or Services;
- Fail to deliver payment for items purchased by you and associated fees or shipping costs;
- Transfer or share your account with a third party without our consent;
- Create accounts that misrepresent your identity or use the personal information of others;
- Use any robot, spider, scraper, data mining tools, data gathering and extraction tools automated means to access or use the Site or Services;
- Access data not intended for you or log into a server or account which you are not authorized to access;
- Use the Site or Services in any manner that would interfere with, disrupt or inhibit other users from fully enjoying the Site or Services or that could damage, disable or impair the functionality of the Site or Services or otherwise interfere with the working of the Site or Services, or impose an unreasonable or disproportionately large load on our infrastructure;
- Breach or circumvent any laws, third-party rights or Purple Creek's systems, or policies;
- Conduct, enable, or be complicit with any fraudulent activities;
- Infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to Purple Creek. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Purple Creek or someone else;
- Infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services;
- Harvest or otherwise collect information about Users without their consent; or
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Site and/or our Services. Additionally, we reserve the right to refuse or terminate all or part of our Site or Services to anyone for any reason at our discretion.
2. SALES
Purple Creek is a listing, information and purchasing website that serves both Buyers and Sellers. Items may be sold either directly by Purple Creek or one of its affiliates, or by a third-party Seller through a consignment arrangement with Purple Creek (" Consignment Items"). For Consignment Items, Purple Creek will assist Seller in preparing a listing on the Site pursuant to the terms of a separate Agreement. For the purposes of privacy, the identity of Buyers and Sellers are not disclosed on the Site, unless otherwise expressly agreed.
Item Descriptions – All items are sold “as is-where is” and you are aware that, unless otherwise stated, some of the items sold on the Site are not new nor in perfect condition, may have patent and/or latent defects, may require touch-up or repairs prior to use, and the available information about these items may be limited.
Purple Creek will not list every flaw associated with each item as these are to be expected in pre-owned items. In the case of obvious faults (chips, cracks, significant damage, etc.), if Purple Creek is aware of a fault, it will endeavor to list the fault within the description. Purple Creek will provide descriptions based on its assessment of an item. However, Buyers should not assume that our assessment of condition will be the same as your assessment. It is the Buyer’s responsibility to read and review all descriptions and images of an item before purchasing.
Affiliated Entities. Purple Creek reserves the right to do business with affiliated entities which are wholly or partially owned by Members of Purple Creek (collectively, “Affiliated Entities”). All parties are deemed on notice of the existence of Affiliated Entities. By using the Site, you explicitly acknowledge said disclosure, waive any claim of conflict of interest and agree to hold harmless Purple Creek from any and all such claims. Sellers are advised that any offer to purchase by an Affiliated Entity may be accepted or rejected at Seller's sole option, and an independent third party appraisal prior to sale is not only welcomed but is in fact recommended when an offer is made by an Affiliated Entity.
DISCLAIMERS: All items and item descriptions are provided “AS IS” and “WHERE IS” and Purple Creek expressly disclaims all warranties as to the condition, suitability, or genuineness of items sold on its site, pursuant to the terms of Paragraph 12 hereof.
Format of Sales - All purchases must be placed through the Site. Purple Creek reserves the right to withdraw any item from the Site or to amend any content on the Site at any time in its sole discretion. Purple Creek will not be liable to Buyers, Sellers or any third party if we withdraw an item, amend any content on the Site, or deny you access to the Site or the Services.
Transfer of Title – Uniform Commercial Code § 2-401(2) applies to determine the time and place of transfer of title to all items to the Buyer.
3. PURCHASING
Buyer’s Contract — Your purchase on the Site represents an irrevocable contract and you are responsible for paying all amounts due to Purple Creek. If you cannot pay for the items or agree to the shipping terms and costs, please do not agree to purchase the items. No exceptions or rescission terms apply unless otherwise expressly stated.
4. PAYMENT
Maintenance of Payment Information — Purple Creek utilizes a third-party payment processing service and does not maintain any payment information on its Site. While Purple Creek strives to maintain relationships with reputable third-party providers, it can not guarantee the policies and practices of third-parties. A separate agreement is required between the user and the third-party provider, and you are directed to those third-party terms for protections and assurances regarding privacy of information. Purple Creek does not make any representations or guarantees concerning the use or privacy of any information provided to third parties.Sales Tax — All sales are subject to appropriate state sales and use tax laws, including, any state sales tax laws applicable to Seller. Tax exempt buyers must provide the appropriate state sales tax exemption certificate prior to the end of the sale. Upon acceptance and validation of such information by Purple Creek, your future purchases will not be taxed, provided that you are still eligible for tax exemption. You may be required to update certificates on file periodically as deemed necessary by Purple Creek. Purple Creek requires a sales tax exemption certificate for each state in which an exemption is claimed.
Failure to Pay — Any items not paid for in accordance with the Terms of Service within seven (7) days of the purchase (or upon a later applicable payment due date as may be provided herein) will be forfeited by you and, as to Consignment Items, Purple Creek may, in its sole and absolute discretion, resell the items. Purple Creek reserves the right to charge any payment option you have on file and/or to report your account to collections for the combined total of the original invoice amount and any moving or disposal charges and you will be responsible for any charges incurred by Purple Creek in collecting your payment.
Gift Cards and Promotions — Subject to the terms and conditions of the applicable gift card or promotional discount, Purple Creek may accept payment via e-gift card and may discount invoices in accordance with certain promotions from time to time.
5. PURCHASE AND SALE FULFILLMENT
Upon purchase of an item, an invoice will appear in your “Purchased” list. By selecting the invoice and clicking “Checkout” you will be able to designate your final fulfillment method.
Delivery — Purple Creek utilizes third party shipping agencies for delivery of items. The final shipping cost is subject to insurance cost based on the purchase price Purple Creek will use reasonable efforts to ship the Purchased Items within five (5) business days after the payment date.
Title and Risk of Loss — Subject to these Terms of Service, title and risk of loss to purchased items will transfer to Buyer upon the completed processing and receipt of your payment by Purple Creek made in accordance with these terms. Purple Creek is not responsible for insuring items while in Purple Creek’s possession, and its liability is limited as set forth below and in the Consignment Terms. Seller agrees to maintain appropriate insurance on items and ensure its insurance covers the items while in Purple Creek’s possession. Further, upon the transfer of risk of loss from Seller to Buyer, Buyer agrees to maintain adequate insurance coverage on such items while in Purple Creek’s possession.
Liquidated Damages — You acknowledge and agree that the remedies afforded to Purple Creek in the “Failure to Pay” paragraph of these Terms of Service and any separate Consignment Terms or agreements (the “Liquidated Damages”) constitute compensation and not a penalty. The parties acknowledge and agree that, due to the nature of Purple Creek’s Service, the harm caused by your breach as contemplated in the aforementioned paragraphs and/or agreements would be impossible or very difficult to accurately estimate, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from your breach. Your payment of the Liquidated Damages is Purple Creek’s exclusive remedy for the breaches contemplated in the “Failure to Pay” provisions of paragraph 4 of these Terms of Service.
6. RETURNS
Returns are governed exclusively by Purple Creek's Return Policy, as set forth on the Site. The terms of the Return Policy may change from time to time, and by using the Site you are responsible for ensuring familiarity with the terms of said policy.
7. SELLER ADDITIONAL OBLIGATIONS
If you sell any items on the site, you expressly warrant that you have full authority to transfer all title and property rights to items listed for sale as Consignment Items and that there are no reserved or hidden liens, encumbrances, or security interests in the items.
Your items are not insured by Purple Creek against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts of others, or any other cause. Purple Creek recommends that you carry or obtain insurance to protect the items from any loss or damage. You agree to look to its own insurance for recovery of any loss resulting from casualty and release and waive any claims against Purple Creek. This release and waiver remains in effect if you fail to obtain insurance, and in that case you will bear the full risk of your own loss.
8. EMBARGOED GOODS AND PROHIBITED COUNTRIES POLICY
Various US agencies have restrictions in place that regulate or ban all trade with certain countries. Purple Creek does not allow the sale of embargoed or restricted items from these countries. Under US law, buying or selling certain items made in restricted countries may not be lawful, depending on the nature of the item, when it was manufactured, and when it left that specific country. Federal agencies also ban or regulate trade between people in the US and certain organizations, businesses, and individuals. Purple Creek does not allow those organizations, businesses, or individuals to use our website. Under US law, buying or selling certain items made in restricted countries may not be lawful, depending on the nature of the item, when it was manufactured, and when it left that specific country. When submitting items for sale on Purple Creek, you attest that the items that you are submitting do not violate any US laws, policies or restrictions on items from countries that have restrictions and regulations in place with the US government. Make sure you follow these guidelines. If you do not, you may be subject to a range of actions, including limits on your buying and selling ability and suspension of your account.
9. INTELLECTUAL PROPERTY
By submitting items of sale with Purple Creek directly or indirectly through the Site or the Service, you hereby grant to Purple Creek and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable, fully paid up, royalty-free, and transferable right and license to use, copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, publicly display and perform, transmit, publish, broadcast, host. archive, store, cache, use or otherwise exploit any likeness or image of any Items listed for sale on the Site in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity, regardless of subsequent assignment, will have the right to (i) receive any royalty or consideration of any kind for the use of the images pursuant to these Terms of Service nor (ii) inspect or approve the editorial copy or other material that may be used in connection with any image or likeness. . Subject to the licenses granted in these Terms of Service, you retain ownership of any copyright and other rights you may have in the any image or likeness. To the fullest extent permitted under applicable law, you waive your right to enforce against Purple Creek, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in any item or likeness in connection with our, those assignees’, and those sublicensees’ use of those images or likenesses in connection with our provision, expansion, and promotion of the Services. By submitting items for sale, you represent and warrant that (i) you own or control any and all intellectual property rights in and to said items, and you have all rights required to grant the licenses granted herein to Purple Creek , and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the rights and licenses to Purple Creek herein without the need for payment to you or any other person or entity; (ii) you are 18 years of age or older; and (iii no items listed for sale infringe upon or otherwise violate or misappropriate the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party. Upon request by Purple Creek, you will furnish Purple Creek any documentation, substantiation or releases necessary to verify your compliance with these Terms of Service.
10. REFERRAL PROGRAMS
Participants in the Refer-a-Friend Program, or any other similar programs (a “Referral Program”) which provide for a sharing of sales revenue with a referral partner will be governed by the terms of each such program, and by using the Site, you acknowledge that you have read and understand the terms of any such program in which you choose to participate. Additionally, unless otherwise expressly set forth with respect to a particular program, payments will be made for referrals at the same time, and only when, payment is made to the Seller for any item sold for which a referral is due. In no event shall a referral fee be deemed earned under any Referral Program unless and until a payment is earned by the Seller of said item.
11. COPYRIGHT COMPLAINTS
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify Purple Creek’s copyright agent as set forth in the DMCA.
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees.
Please note that this procedure is exclusively for notifying Purple Creek and its affiliates that our copyrighted material has been infringed. The preceding requirements are intended to comply with Purple Creek’s rights and obligations under the DMCA, including 17 U.S.C. §512©, but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. In accordance with the DMCA and other applicable law, Purple Creek has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. Purple Creek may also at its sole discretion limit access to the Service and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
12. INDEMNITY
By using the Site you agree to indemnify and hold harmless Purple Creek and its affiliates and their respective employees, contractors, agents, officers, licensors, managers and directors, from and against any and all claims, damages, suits, proceedings, investigations, actions, demands, obligations, losses, damages, settlement amounts, fines, penalties, costs, expenses and any and all other liabilities (including but not limited to reasonable attorneys’ fees and court costs) arising from or related to: (i) your use of and access to the Site and/or the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms of Service. including without limitation your breach of any of the representations and warranties set forth herein; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity or intellectual property ; (iv) your violation of any applicable law, rule, regulation or guideline;; (v) any other party’s access and use of the Service with your unique username, password or security code and any failure by you to properly secure your password and security codes and (vi) your items, including without limitation any product liability claims, claims for damage to person or property, including death, or otherwise arising out of or relating in any way to the items purchased or sold by you through the Site and/or the Services, including, but not limited to, in the case of Consigned Items, the shipment from, and/or handling and/or moving of such items on, the Purple Creek premises, except to the extent such losses are caused by the gross negligence or willful misconduct of Purple Creek.
13. DISCLAIMER OF WARRANTIES
ALL CONTENT, PRODUCTS, AND SERVICES ON THE SITE, OR AVAILABLE THROUGH THE SERVICE, OR OBTAINED FROM A WEBSITE TO WHICH THE SITE IS LINKED (A “LINKED SITE”) ARE PROVIDED TO YOU “AS IS” WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, GENUINENESS, NON-INFRINGEMENT, SECURITY OR ACCURACY. PURPLE CREEK DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE THROUGH THE SITE OR SERVICE BY ANY PARTY, (B) ANY CONTENT PROVIDED ON LINKED SITES OR (C) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. UNDER NO CIRCUMSTANCE WILL PURPLE CREEK BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER’S RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE, FROM ANOTHER USER OR OTHERWISE, OR A LINKED SITE, OR USER’S RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A LINKED SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT.
In addition to the other disclaimers of warranties contained herein, Purple Creek expressly disclaims all representations and warranties with respect to site and the service, all of which is provided on an “AS IS” and “AS AVAILABLE” basis. Use of the site and the service is at your own risk. To the maximum extent permitted by applicable law, the site and the service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. No advice or information, whether oral or written, obtained by you from Purple Creek, a seller, a third party or through the service will create any warranty not expressly stated herein.
Without limiting the foregoing, Purple Creek, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the site or the service will meet your requirements; that the site or services will be available at any particular time or location, or will be uninterrupted or secure; that any defects or errors in the site or the service will be corrected; of that the site or the services is free of viruses, security vulnerabilities or other harmful or malicious components.
Any content downloaded or otherwise obtained through the use of the site or the service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the site or service. Purple Creek does not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a seller or by a third party through the service or any hyperlinked website or service, and Purple Creek will not be a party to or in any way monitor any transaction between you and a seller or a third party providers of products or services. Purple Creek is not responsible for the acts or omissions of carriers in packing or shipping of purchased items, whether or not such carrier is recommended or used by Purple Creek.
Some states do not allow exclusion of implied warranties, so these exclusions may not apply in individual cases. You may have additional rights that vary from state to state. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty, the scope and duration of such warranty will be the minimum permitted under such applicable law.
14. LIMITATION OF LIABILITY; RELEASE
Consequential Damages Disclaimer – To the maximum extent permitted by applicable law, Purple Creek and its affiliates and their respective officers, directors, employees, agents, managers, successors and assigns shall have no liability to you for any consequential, indirect, incidental, exemplary, special or punitive damages or other pecuniary damages, including without limitation lost profits, loss or corruption of data, loss of use, costs to procure substitute goods or services, or other similar damages, whether in contract, tort or otherwise, and whether or not Purple Creek has been advised of the possibility of such damages or if such damages were reasonably foreseeable.
Direct Damages Limitation – To the maximum extent permitted by applicable law, Purple Creek’s total aggregate liability to you for all claims shall be limited to, and shall not exceed the total fees which you paid to us in the 3 months prior to the action giving rise to the liability.
Consigned Items Disclaimer – To the maximum extent permitted by law, Purple Creek shall not be liable to any Seller for any loss or damage to items or any other items tendered, stored or handled or for any other property of Seller however caused unless such loss or damage directly and proximately results from the gross negligence or willful misconduct of Purple Creek. If the foregoing limitations are not enforceable for any reason, the Consignor agrees that Purple Creek’s maximum total aggregate liability for any damage to any item shall be limited to the current market value of the item, not to exceed $50 per item.
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.
15. LEGAL DISPUTES
Please read this section carefully. It affects your rights and will have a substantial impact on how claims you and Purple Creek have against each other are resolved. You and Purple Creek agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Purple Creek (including any claim or dispute between you and a third-party agent of Purple Creek) that relates in any way to or arises out of this or previous versions of these Terms of Service, your use of or access to the Services and/or the Site, the actions of Purple Creek or its agents, or any products or services sold or purchased through the Services and/or Site, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
Expiration of Claims — You agree that any claim or cause of action you may have with respect to Purple Creek or the Service must be commenced within one hundred eighty (180) days after the date the claim or cause of action arose.
Governing Law – You agree that: (i) the Service, Site and these Terms of Service shall be deemed solely based in North Carolina; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than North Carolina. These Terms of Service shall be governed by the internal substantive laws of the State of North Carolina, without respect to its conflict of laws principles. The parties acknowledge that these Terms of Service evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms of Service shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
Informal Dispute Resolution - Except for any controversy or claim relating to or arising from your representations, warranties, and indemnity obligations set forth herein, you and Purple Creek agree that, with respect to any matters, disputes, or claims between you and Purple Creek arising from or related to this Agreement or your relationship with Purple Creek, you and Purple Creek shall negotiate in good faith to informally resolve the problem or dispute. If the problem or dispute is not resolved satisfactorily within 60 days after you or Purple Creek receives actual notice of a claim, you or Purple Creek can submit the dispute to binding arbitration in accordance with the arbitration provisions below.
Arbitration - Except for any controversy or claim (i) relating to your obligation to indemnify Purple Creek, set forth elsewhere herein or (ii) properly filed and pursued in small claims court on an individual basis, any claim, dispute, or controversy between you and Purple Creek arising from or relating to this Agreement or the relationships which result from this Agreement that remains unresolved after you and Purple Creek attempt to resolve them informally shall be resolved by binding arbitration brought on an individual basis as a "Business to Business Dispute" before the National Arbitration Forum (NAF) pursuant to the Code of Procedure then in effect (or such other arbitration provider as is mutually agreeable to you and Purple Creek) in a manner consistent with the terms in this Agreement. You and Purple Creek shall submit all available documents that support all claims, counterclaims, or defenses at the time of submission of the initial claim or response thereto. Formal discovery will only be permitted upon a showing of good cause and subject to the arbitrator’s approval. In the event the arbitrator requires an in-person proceeding, you agree that such proceeding shall take place in the County of Wake, City of Raleigh. You and Purple Creek shall each pay our own arbitration and hearing fees, costs, and expenses, including but not limited, to fees, costs, and expenses for attorneys, experts, discovery, and witnesses (as applicable). The arbitration shall be conducted by a single arbitrator. The arbitration may be held by telephone or by written submissions if you and Purple Creek so elect. The arbitrator shall issue a written award. Any award of the arbitrator may be entered as a judgment in any court having jurisdiction. Information may be obtained at www.adrforum.com and claims may be filed electronically at file@adrforum.com. After an arbitration is commenced, if the initiating party (the "Claimant") makes a written offer of settlement that is rejected by the other party ("Respondent"), and Claimant is the prevailing party in arbitration and recovers an amount equal to or greater than Claimant’s offer of settlement, Claimant shall recover his, her, or its reasonable attorneys’ fees and expenses incurred in investigating, preparing for, and pursuing the claim in arbitration up to $25,000. After an arbitration is commenced, if Respondent makes a written offer of settlement that is rejected by Claimant, and Claimant either does not prevail in arbitration or does not recover more in the arbitration than Respondent’s offer of settlement (exclusive of attorneys’ fees or costs awarded to Claimant by the arbitrator), then Respondent shall recover his, her, or its reasonable attorneys’ fees and expenses incurred in investigating, preparing for, and defending the claim in arbitration up to $25,000. This agreement shall be governed by and interpreted under the Federal Arbitration Act, 9 U.S.C. Sections 1-16.
Exceptions - This agreement to arbitrate does not apply to claims filed on an individual basis in small claims court properly within that court’s jurisdiction and proceeding on an individual (non-class) basis. You and Purple Creek expressly agree that arbitration shall proceed solely on an individual basis without the right for any claims to be arbitrated on a class-action basis or on bases involving claims brought in a purported representative capacity on behalf of others. The arbitrator’s authority to resolve and make written awards is limited to claims between you and Purple Creek. Claims may not be joined or consolidated unless agreed to in writing by all parties. No arbitration award or decision will have any preclusive effect as to issues or claims in any dispute with anyone who is not a named party to the arbitration. Notwithstanding any other provision in this Agreement, if any portion of this "Exceptions" provision is deemed invalid or unenforceable, then the entire Arbitration Provision (other than this sentence) shall not apply.
Voluntary and Knowing Waiver.
BY USING THE SITE, YOU ACKNOWLEDGE AND AGREE THAT YOU ARE WAIVING THE RIGHT TO TRIAL BY JURY FOR ANY CLAIM SUBJECT TO ARBITRATION. YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU MAY ONLY BRING A CLAIM IN YOUR INDIVIDUAL CAPACITY, AND NOT IN ANY REPRESENTATIVE CAPACITY. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT, SUCH AS DISCOVERY OR THE RIGHT TO APPEAL, MAY BE MORE LIMITED OR MAY NOT EXIST.
16. MISCELLANEOUS
Changes to the Terms of Service — Purple Creek reserves the right, at its sole discretion, to change, modify, add or remove any portion of the Terms of Service, in whole or in part, at any time, and we will post the revised version on the Site. Changes to the Terms of Service will be effective when posted. Your continued use of the Site and/or the Services after any changes to the Terms of Service are posted will be considered acceptance of those changes. Further, the policies applicable to our Services may be changed from time to time and changes take effect when we post the revised policies on the Site.
Notices to You — We may provide any notice to you under these Terms of Service by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current and keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption. You hereby (i) consent to receive all communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if they were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-savable rights.
Notices to Us — To give us notice under these Terms of Service, you must contact us as follows: Purple Creek Attn: info@purplecreek.com. We may update the contact information for notices to us by posting a notice on the Site or amending these Terms of Service. Notices will be effective when received by Purple Creek.
Independent Contractors – No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms of Service.
No Waiver — Any waiver of any provision of the Terms of Service by Purple Creek must be made in writing and signed by an authorized representative of Purple Creek specifically referencing the Terms of Service and the provision to be waived.
Cumulative Remedies — All rights and remedies provided to Purple Creek are cumulative and not exclusive, and the exercise by Purple Creek of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
Severability — If any term or provision of these Terms of Service is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify these Terms of Service to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
Force Majeure — We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms of Service, for any failure or delay in our performance hereunder when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, quarantine, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
Survival – The following Sections survive any termination of these Terms of Service: Payment, Fulfillment, Intellectual Property, Disclaimers, Disclaimer of Warranties, Indemnity, Limitation of Liability, Legal Disputes, and General.
Assignment — You will not assign any of your rights or delegate any of your obligations under these Terms of Service without our prior written consent. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Service. Purple Creek may assign or transfer these Terms of Service and/or its rights and/or obligations hereunder.
Entire Agreement — These Terms of Service, and our Privacy Policy and any Additional Agreement between us will be deemed the final and integrated agreement between you and us on the matters contained in these Terms of Service.
Trademarks – The name “Purple Creek” and other Purple Creek marks, logos, designs, and phrases that we use in connection with the Site and Service are trademarks, service marks, or trade dress of Purple Creek in the U.S. and other countries. They may not be used without the express written prior permission of Purple Creek.