TERMS OF SERVICE
Please read these Terms of Service (“Terms”) carefully as they contain important information about your legal rights, remedies and obligations. By accessing or using the Banxel Platform, you agree to comply with and be bound by these Terms.
Thank you for using Banxel!
These Terms constitute a legally binding agreement (“Agreement”) between you and Banxel (as defined below) governing your access to and use of the Banxel website, including any subdomains thereof, and any other websites through which Banxel makes its services available (collectively, “Site”), our mobile, tablet and other smart device applications, and application program interfaces (collectively, “Application”). The Site and Application together are hereinafter collectively referred to as the “Banxel Platform”.
When these Terms mention “Banxel,” “we,” “us,” or “our,” it refers to the Banxel company with which you are contracting.
Our collection and use of personal information in connection with your access to and use of the Banxel Platform is described in our Privacy Terms .
Users alone are responsible for identifying, understanding, and complying with all laws, rules and regulations that apply to their Postings and bids.
1. Scope of Banxel Services
1.1 The Banxel Platform is an online marketplace that enables registered users (“Users”) to publish offerings on the Banxel Platform (“Offering(s)”) to sell, purchase, finance, and originate loans and other similar credit products, and to communicate and transact directly with Users that are seeking to make bids on such Offerings (“Bid(s)”). Users that publish Offerings are “Offering Owners”, while Users that Bid on Offerings are “Bidders”.
1.2 As the provider of the Banxel Platform, Banxel does not own, create, sell, resell, provide, control, manage, offer, deliver, or supply any Offerings, or any of the offers, services, or products that may be contained therein. Users alone are responsible for their Offerings and Bids. When Users make and accept a Bid, they are entering into a nonbinding agreement directly with each other. Banxel is not and does not become a party to or other participant in any contractual relationship between Users, nor is Banxel a broker or insurer. Banxel is not acting as an agent in any capacity for any User.
1.3 While we may, in our sole discretion, help facilitate the resolution of disputes, Banxel has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Offerings, (ii) the truth or accuracy of any Offering descriptions, Ratings, Reviews, or other User Content (as defined below), or (iii) the performance or conduct of any User or third party. Banxel does not endorse any User, or Offerings. You should always exercise due diligence when deciding whether to Bid on any Offering, accepting a Bid, or communicate and interact with other Users, whether online or in person.
1.4 If you choose to use the Banxel Platform as an Offering Owner, your relationship with Banxel is not as an employee, agent, joint venturer or partner of Banxel for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Banxel. Banxel does not, and shall not be deemed to, direct or control you generally or in your performance under these Terms specifically, including in connection with your provision of the Offerings. You acknowledge and agree that you have complete discretion whether to list Offerings or otherwise engage in other business or employment activities.
1.5 To assist Users who speak different languages, Offerings and other User Content may be translated, in whole or in part, into other languages. Banxel cannot guarantee the accuracy or quality of such translations and Users are responsible for reviewing and verifying the accuracy of such translations.
1.6 The Banxel Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Banxel is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Banxel of such Third-Party Services.
1.7 Due to the nature of the Internet, Banxel cannot guarantee the continuous and uninterrupted availability and accessibility of the Banxel Platform. Banxel may restrict the availability of the Banxel Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the Banxel Platform. Banxel may improve, enhance and modify the Banxel Platform and introduce new Banxel services and features from time to time.
2. Eligibility, Using the Banxel Platform, User Verification
2.1 In order to access and use the Banxel Platform or register a Banxel Account (as defined below), you must be an individual at least 18 years old or a duly organized, validly existing business, organization or other legal entity in good standing under the laws of the country you are established and able to enter into legally binding contracts.
2.2 Banxel may make access to and use of the Banxel Platform, or certain areas or features of the Banxel Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, meeting Ratings or Reviews thresholds, or a User’s Posting, Bid and cancellation history.
2.3 User verification on the Internet is difficult and we do not assume any responsibility for the confirmation of any User’s identity. Notwithstanding the above, for transparency and fraud prevention purposes, and as permitted by applicable laws, we may, but have no obligation to (i) ask Users to provide a form of government identification or other information or undertake additional checks designed to help verify the identities or backgrounds of Users, (ii) screen Users against third party databases or other sources and request reports from service providers, and (iii) where we have sufficient information to identify a User, obtain reports from public records of criminal convictions or sex offender registrations or an equivalent version of background or registered sex offender checks in your local jurisdiction (if available).
2.4 The access to or use of certain areas and features of the Banxel Platform may be subject to separate policies, standards or guidelines, or may require that you accept additional terms and conditions, before you can access the relevant areas or features of the Banxel Platform. If there is a conflict between these Terms and terms and conditions applicable to a specific area or feature of the Banxel Platform, the latter terms and conditions will take precedence with respect to your access to or use of that area or feature, unless specified otherwise in the latter terms and conditions.
3. Modification of these Terms
Banxel reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to these Terms, we will post the revised Terms on the Banxel Platform and update the “Last Updated” date at the top of these Terms. We will also provide you with notice of the modifications by email at least thirty (30) days before the date they become effective. If you disagree with the revised Terms, you may terminate this Agreement with immediate effect. We will inform you about your right to terminate the Agreement in the notification email. If you do not terminate your Agreement before the date the revised Terms become effective, your continued access to or use of the Banxel Platform will constitute acceptance of the revised Terms.
4. Account Registration
4.1 You must register an account (“Banxel Account”) to access and use certain features of the Banxel Platform, such as publishing, reviewing or bidding on an Offering. If you are registering a Banxel Account as an employee or agent of a business, organization or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
4.2 You must provide accurate, current and complete information during the registration process and keep your Banxel Account and Banxel Account profile page information up-to-date at all times.
4.3 You may not register more than one (1) Banxel Account unless Banxel authorizes you to do so. You may not assign or otherwise transfer your Banxel Account to another party.
4.5 You are responsible for maintaining the confidentiality and security of your Banxel Account credentials and may not disclose your credentials to any third party. You must immediately notify Banxel if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Banxel Account. You are liable for any and all activities conducted through your Banxel Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).
4.6 Banxel may enable features that allow you to authorize other Users or certain third parties to take certain actions that affect your Banxel Account. For example, we may enable Users to link their Banxel Accounts to businesses and take actions for those businesses, we may enable eligible Users or certain third parties to publish Offerings on behalf of other Users, or we may enable Offering Owners to add other Users as Co-Offering Owners (as defined below) to help manage their Offerings. These features do not require that you share your credentials with any other person. No third party is authorized by Banxel to ask for your credentials, and you shall not request the credentials of another User.
5.1 Banxel may, at its sole discretion, enable Users to (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the Banxel Platform (“User Content”); and (ii) access and view User Content and any content that Banxel itself makes available on or through the Banxel Platform, including proprietary Banxel content and any content licensed or authorized for use by or through Banxel from a third party (“Banxel Content” and together with User Content, “Collective Content”).
5.2 The Banxel Platform, Banxel Content, and User Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the Banxel Platform and Banxel Content, including all associated intellectual property rights, are the exclusive property of Banxel and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Banxel Platform, Banxel Content or User Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Banxel used on or in connection with the Banxel Platform and Banxel Content are trademarks or registered trademarks of Banxel in the United States and abroad. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the Banxel Platform, Banxel Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
5.3 You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Banxel Platform or Collective Content, except to the extent you are the legal owner of certain User Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Banxel or its licensors, except for the licenses and rights expressly granted in these Terms.
5.4 Subject to your compliance with these Terms, Banxel grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to (i) download and use the Application on your personal device(s); and (ii) access and view any Collective Content made available on or through the Banxel Platform and accessible to you, solely for your personal and non-commercial use.
5.5 By creating, uploading, posting, sending, receiving, storing, or otherwise making available any User Content on or through the Banxel Platform, you grant to Banxel a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable and transferable license to such User Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such User Content to provide and/or promote the Banxel Platform, in any media or platform. Unless you provide specific consent, Banxel does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your User Content.
5.6 You are solely responsible for all User Content that you make available on or through the Banxel Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all User Content that you make available on or through the Banxel Platform or you have all rights, licenses, consents and releases that are necessary to grant to Banxel the rights in and to such User Content, as contemplated under these Terms; and (ii) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Banxel’s use of the User Content (or any portion thereof) as contemplated under these Terms will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
5.8 You will not post, upload, publish, submit or transmit any User Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information) or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person or animal; (v) or promotes illegal or harmful activities or substances; or (vi) violates any other Banxel policy. Banxel may, without prior notice, remove or disable access to any User Content that Banxel finds to be in violation of applicable law, these Terms, or otherwise may be harmful or objectionable to Banxel, its Users, third parties, or property.
6. Service Fees
6.1 Banxel may charge fees to Offering Owners (“Offering Owner Fees”) and/or Bidders (“Bidder Fees”) (collectively, “Service Fees”) in consideration for the use of the Banxel Platform.
6.2 Any applicable Service Fees (including any applicable taxes) will be displayed to a Post Owner or Bidder prior to publishing, or registering for a Posting. Banxel reserves the right to change the Service Fees at any time, and will provide Users adequate notice of any fee changes before they become effective. Such fee changes will not affect any Postings or Bids made prior to the effective date of the fee change.
6.3 You are responsible for paying any Service Fees that you owe to Banxel. Except as otherwise provided on the Banxel Platform, Service Fees are non-refundable.
Payment and Collection of Credit Card Information
6.4 You agree that you may be required to make payments either to the site, Banxel, other users, or third-party payment facilities installed by the site, whether directly, indirectly, or on an escrow basis. You hereby absolutely agree that the site may collect any and all personal information, Credit Card Information, or any information which is relevant to enable you to potentially or actually make payments to the site, Banxel, or any third-party payment gateways or facilities installed by the site. You also hereby absolutely agree to allow the site to charge and collect payments from you, and from the particular payment method you provided, or on the basis of the payment information you provided, whether directly, indirectly, or on an escrow basis. You agree that your mere use of this site represents your consent and approval to make the site, Banxel, or its third-party Payment Facilities as your authorized representative in order to charge, debit, or collect amounts from your credit card, debit card, Stripe, Paypal, bank accounts or whatever payment method is the case.
You agree that any payments charged by the site, Banxel, or third-party payment facilities on you are absolutely non-refundable in nature.
You therefore expressly allow the site, Banxel, or third-party payment facilities installed by the site to:
a. Charge you directly, indirectly, or in escrow, for any transactions on the site.
b. Charge you directly, indirectly, or in escrow, for any amount required in order to resolve a dispute, as determined by the site or Banxel in its sole discretion, for any transaction.
c. Charge you directly, indirectly, or in escrow, for any amount which Banxel deems to have been paid erroneously to you.
d. Charge you directly, indirectly, or in escrow, for any amount which Banxel deems is necessary for your usage of its site.
7. Terms applicable to all Postings
7.1 When creating an Offering through the Banxel Platform you must (i) provide complete and accurate information about your Offering, (ii) disclose any terms and conditions that apply and (iii) provide any other pertinent information requested by Banxel. You are responsible for keeping your Offering information up-to-date at all times. All applicable fees will be presented to you prior to publishing an Offering. You agree to pay the Offering Fees when you publish your Offering. The Offerings Fees are nonrefundable.
7.2 You are solely responsible for setting terms and conditions for your Offering. Any terms and conditions included in your Offering, must not conflict with these Terms.
7.3 The placement and ranking of Offerings in search results on the Banxel Platform may vary and depend on a variety of factors, such as Bidder search parameters and preferences, Offering Owner requirements, Reviews and Ratings, type of Offering, and/or ease of Bid process.
7.4 When you accept a Bid by a Bidder on the Banxel Platform, it is nonbinding until both you and the Bidder execute a binding agreement.
8. Terms specific for Bidders
8.1 Terms applicable to all bids
8.1.1 Subject to meeting any requirements (such as completing any verification processes) set by Banxel and/or the Offering Owner, you can Bid on an Offering available on the Banxel Platform by following the respective Offering terms and conditions. All applicable fees, including the Bidder Fee will be presented to you prior to registering for a Offering. You agree to pay the Bidder Fees when you register for a Offering. The Bidder Fees are nonrefundable.
8.1.2 Upon receipt of a Bid confirmation from Banxel, a nonbinding offer is submitted to the Offering Owner, subject to any additional terms and conditions of the Offering Owner that apply, including in particular those specified in the Offering.
8.1.3 When an Offering Owner accepts your Bid on the Banxel Platform, it is nonbinding until both you and the Offering Owner execute a binding agreement.
9. Modifications and Cancellations
Offering Owners and Bidders can modify or cancel an Offering or Bid at any time. If an Offering Owner received any Bids for an Offering and subsequently modifies the Offering, there may be instances where those Bids will be automatically withdrawn and the Bidders will be notified that they may resubmit their Bids.
10. Ratings and Reviews
10.1 Within a certain timeframe after completing a transaction, Bidders and Offering Owners can leave a public review (“Review”) and submit a star rating (“Rating”) about each other. Ratings or Reviews reflect the opinions of individual Users and do not reflect the opinion of Banxel. Ratings and Reviews are not verified by Banxel for accuracy and may be incorrect or misleading.
10.2 Ratings and Reviews by Bidders and Post Owners must be accurate and may not contain any offensive or defamatory language.
10.3 Users are prohibited from manipulating the Ratings and Reviews system in any manner.
10.4 Ratings and Reviews are part of a User’s public profile and may also be published elsewhere on the Banxel Platform (such as the Offering or Bid page) together with other relevant information such as number of Offerings, Bids, Bids accepted or rejected, cancellations, withdrawals and other information.
11.1 You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Banxel Platform. In connection with your use of the Banxel Platform, you will not assist or enable others to:
● breach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms; ● use the Banxel Platform or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Banxel endorsement, partnership or otherwise misleads others as to your affiliation with Banxel;
● use the Banxel Platform in connection with the distribution of unsolicited commercial messages (“spam”);
● offer, as a Post Owner, any Posting that you do not yourself own or have permission to make available through the Banxel Platform;
● contact another User for any purpose other than asking a question related to your Bid, Offering, or the User’s use of the Banxel Platform, including, but not limited to, recruiting or otherwise soliciting any User to join third-party services, applications or websites, without our prior written approval;
● misuse or abuse the Banxel Platform, any Offerings or Bids in order to circumvent any fees, or as determined by Banxel in its sole discretion.
● use, display, mirror or frame the Banxel Platform or Collective Content, or any individual element within the Banxel Platform, Banxel’s name, any Banxel trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Banxel Platform, without Banxel’s express written consent;
● dilute, tarnish or otherwise harm the Banxel brand in any way, including through unauthorized use of Collective Content, registering and/or using Banxel or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Banxel domains, trademarks, taglines, promotional campaigns or Collective Content;
● use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the Banxel Platform for any purpose;
● avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Banxel or any of Banxel’s providers or any other third party to protect the Banxel Platform;
● attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Banxel Platform;
● take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the Banxel Platform;
● export, re-export, import, or transfer the Application except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
● violate or infringe anyone else’s rights or otherwise cause harm to anyone.
11.2 You acknowledge that Banxel has no obligation to monitor the access to or use of the Banxel Platform by any User or to review, disable access to, or edit any User Content, but has the right to do so to (i) operate, secure and improve the Banxel Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Users’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to User Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Users agree to cooperate with and assist Banxel in good faith, and to provide Banxel with such information and take such actions as may be reasonably requested by Banxel with respect to any investigation undertaken by Banxel or a representative of Banxel regarding the use or abuse of the Banxel Platform.
11.3 If you feel that any User you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, violent or sexually inappropriate behavior, (ii) you suspect of stealing from you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then Banxel. You agree that any report you make will not obligate us to take any action (beyond that required by law, if any).
12. Termination, Suspension and other Measures
12.1 You may terminate this Agreement at any time by canceling your Banxel Account. Any confirmed Offerings or Bids will then be automatically cancelled.
12.3 Banxel may immediately, without notice, terminate this Agreement and/or stop providing access to the Banxel Platform if (i) you have materially breached your obligations under these Terms, (ii) you have violated applicable laws, regulations or third party rights, (iii) Banxel believes in good faith that such action is reasonably necessary to protect the personal safety or property of Banxel, its Users, or third parties (for example in the case of fraudulent behavior of a User) or (iv) or for no reason at all.
12.4 In addition, Banxel may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body, or if (ii) you have breached these Terms, applicable laws, regulations, or third party rights, (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the Banxel Account registration, Offering or Bid process or thereafter, (iv) you and/or your Offerings or Bids at any time fail to meet any applicable quality or eligibility criteria, (v) you have repeatedly received poor Ratings or Reviews or Banxel otherwise becomes aware of or has received complaints about your performance or conduct, (vi) you have repeatedly canceled Offerings or Bids, or failed to respond to Bids without a valid reason, or (vii) Banxel believes in good faith that such action is reasonably necessary to protect the personal safety or property of Banxel, its Users, or third parties, or to prevent fraud or other illegal activity:
● refuse to publish, delete or delay any Postings, Ratings, Reviews, or other User Content;
● cancel any published Offerings;
● cancel any pending or confirmed Bids;
● limit your access to or use of the Banxel Platform;
● temporarily or permanently revoke any special status associated with your Banxel Account;
● temporarily, or in case of severe or repeated offenses, permanently suspend your Banxel Account and stop providing access to the Banxel Platform.
● in case of non-material breaches and where appropriate, you will be given notice of any intended measure by Banxel and an opportunity to resolve the issue to Banxel’s reasonable satisfaction.
12.6 If we take any of the measures described above, any paid Posting or Bidder Fees are nonrefundable.
12.7 When this Agreement has been terminated, you are not entitled to a restoration of your Banxel Account or any of your User Content. If your access to or use of the Banxel Platform has been limited or your Banxel Account has been suspended or this Agreement has been terminated by us, you may not register a new Banxel Account or access and use the Banxel Platform through a Banxel Account of another User.
12.8 Sections 5 and 11 to 22 of these Terms shall survive any termination or expiration of this Agreement.
IF YOU CHOOSE TO USE THE BANXEL PLATFORM OR COLLECTIVE CONTENT, YOU DO SO VOLUNTARILY AND AT YOUR SOLE RISK. THE BANXEL PLATFORM AND COLLECTIVE CONTENT IS PROVIDED “AS IS”, WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, BANXEL AND ITS SUPPLIERS MAKE NO REPRESENTATIONS, WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED. BANXEL AND ITS SUPPLIERS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES OR CONDITIONS, EXPRESS, STATUTORY AND IMPLIED, INCLUDING WITHOUT LIMITATION: (A) WARRANTIES OR CONDITIONS OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, WORKMANLIKE EFFORT, ACCURACY, TITLE, QUIET ENJOYMENT, NO ENCUMBRANCES, NO LIENS AND NON-INFRINGEMENT; (B) WARRANTIES OR CONDITIONS ARISING THROUGH COURSE OF DEALING OR USAGE OF TRADE; AND (C) WARRANTIES OR CONDITIONS OF UNINTERRUPTED OR ERROR-FREE ACCESS OR USE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU THROUGH THE BANXEL PLATFORM OR COLLECTIVE CONTENT AVAILABLE THROUGH THE BANXEL PLATFORM WILL CREATE ANY WARRANTY REGARDING ANY BANXEL ENTITY OR THE BANXEL PLATFORM THAT IS NOT EXPRESSIVELY STATED IN THESE TERMS OF SERVICE. YOU ASSUME ALL RISK FOR ANY DAMAGE THAT MAY RESULT FROM YOUR USE OF OR ACCESS TO THE BANXEL PLATFORM, YOUR DEALING WITH ANY OTHER USER, AND ANY MATERIALS, INCLUDING ALL USER AND BANXEL CONTENT, AVAILABLE THROUGH THE SERVICES. YOU UNDERSTAND AND AGREE THAT YOUR USE OF THE SERVICES, AND USE, ACCESS, DOWNLOAD, OR OTHERWISE OBTAINMENT OF MATERIALS THROUGH THE BANXEL PLATFORM, ARE AT YOUR OWN DISCRETION AND RISK, AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR PROPERTY (INCLUDING YOUR COMPUTER SYSTEM OR MOBILE DEVICE USED IN CONNECTION WITH THE SERVICES), OR THE LOSS OF DATA THAT RESULTS FROM THE USE OF THE SERVICES OR THE DOWNLOAD OR USE OF THOSE MATERIALS. SOME JURISDICTIONS MAY PROHIBIT A DISCLAIMER OR WARRANTIES AND YOU MAY HAVE OTHER RIGHTS THAT VARY FROM JURISDICTION TO JURISDICTION.
16. Dispute Resolution and Arbitration Agreement
16.1 These Terms provide for a two-part process for individuals to whom Section 19.1 applies: (1) an informal negotiation directly with Banxel’s customer service team, and (2) a binding arbitration administered by JAMS Endispute (“JAMS”).The arbitrator can grant any remedy that the parties could have received in court to resolve the party’s individual claim.
16.2 Pre-Arbitration Dispute Resolution and Notification. Prior to initiating an arbitration, you and Banxel each agree to notify the other party of the dispute and attempt to negotiate an informal resolution to it first. If after a good faith effort to negotiate one of us feels the dispute has not and cannot be resolved informally, the party intending to pursue arbitration agrees to notify the other party via email prior to initiating the arbitration. In order to initiate arbitration, a claim must be filed with JAMS and the written Demand for Arbitration (available at www.jamsadr.com) provided to the other party, as specified in the JAMS Rules.
16.2 Agreement to Arbitrate. You and Banxel mutually agree that any dispute, claim or controversy arising out of or relating to these Terms or the applicability, breach, termination, validity, enforcement or interpretation thereof, or to the use of the Banxel Platform, the Postings, Bids, or the Collective Content (collectively, “Disputes”) will be settled by binding arbitration using a single arbitrator (the “Arbitration Agreement”). If there is a dispute about whether this Arbitration Agreement can be enforced or applies to our Dispute, you and Banxel agree that the arbitrator will decide that issue.
16.3 Exceptions to Arbitration Agreement. You and Banxel each agree that the following claims are exceptions to the Arbitration Agreement and will be brought in a judicial proceeding in a court of competent jurisdiction: (i) Any claim related to actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights; (ii) Any claim seeking emergency injunctive relief based on exigent circumstances (e.g., imminent danger or commission of a crime, hacking, cyber-attack).
16.4 Arbitration Rules and Governing Law. The arbitration will be administered by JAMS in accordance with JAMS arbitration rules determined to be applicable by the JAMS (the “JAMS Rules“) then in effect, except as modified here. By using the Banxel platform, You agree that applicable federal law and the laws of the State of Delaware, without regard to principles of conflict of laws, will govern these Terms and any dispute that might arise between you and Banxel.
16.5 Jury Trial Waiver. You and Banxel acknowledge and agree that we are each waiving the right to a trial by jury as to all Disputes or otherwise.
16.6 No Class Actions or Representative Proceedings. You and Banxel acknowledge and agree that, to the fullest extent permitted by law, we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney general action, or any other representative proceeding as to all Disputes. Further, unless you and Banxel both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If the “class action lawsuit” waiver or the “class-wide arbitration” waiver in this Section 16.6 is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute and the Dispute must proceed in court.
16.7 Severability. Except as provided in Section 16.6, in the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
16.8 Survival. This Section 16 will survive any termination of these Terms and will continue to apply even if you stop using the Banxel Platform or terminate your Banxel Account.
We welcome and encourage you to provide feedback, comments and suggestions for improvements to the Banxel Platform (“Feedback“). Any Feedback you submit to us will be considered non-confidential and non-proprietary to you. By submitting Feedback to us, you grant us a non-exclusive, worldwide, royalty-free, irrevocable, sub-licensable, perpetual license to use and publish those ideas and materials for any purpose, without compensation to you.
18. Applicable Law and Jurisdiction
These Terms will be interpreted in accordance with the laws of the State of Delaware and the United States of America, without regard to conflict-of-law provisions. Judicial proceedings that are excluded from the Arbitration Agreement in Section 16 must be brought in state or federal court in Wilmington, Delaware, unless we both agree to some other location. You and Banxel both consent to venue and personal jurisdiction in Wilmington, Delaware. You also waive any right to claim that such forum is inconvenient.
19. General Provisions
19.1 Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Banxel and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Banxel and you in relation to the access to and use of the Banxel Platform.
19.3 These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties.
19.4 If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
19.5 Banxel’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
19.6 You may not assign, transfer or delegate this Agreement and your rights and obligations hereunder without Banxel’s prior written consent. Banxel may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate this Agreement at any time remains unaffected.
19.7 Unless specified otherwise, any notices or other communications to Users permitted or required under this Agreement, will be provided electronically and given by Banxel via email, or Banxel Platform notification.
19.8 If you have any questions about these Terms please contact us at firstname.lastname@example.org
TERMS OF SERVICE