Terms of Use

Date of Last Revision: January 7, 2013

Welcome Modalyst!

Modalyst, Inc. ("Modalyst," "we," "us," "our") provides its services (described below) to you through its website located at www.modalyst.co (the "Site" and, collectively with such services, including any new features, the "Service(s)"), subject to the following Terms of Service (as amended from time to time, the "Terms of Service"). By accepting these Terms of Service or by accessing or using the Service or Site, you acknowledge that you have read, understood, and agree to be bound by these Terms of Service. If you are entering into these Terms of Service on behalf of a company, business or other legal entity, you represent that you have the authority to bind such entity and its affiliates to these Terms of Service, in which case the terms "you" or "your" shall refer to such entity and its affiliates. If you do not have such authority, or if you do not agree with these Terms of Service you must not accept these Terms of Service and may not use the Service or access the Site. Agreeing to these Terms of Service is a condition to using the Website and the Services.

We reserve the right, at our sole discretion, to change or modify portions of these Terms of Service at any time with thirty (30) day notice to you. If we do this, we will email you at the address you provide to us notifying you about such changes or modifications and we will post the changes to these Terms of Service on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Service after any such changes or modifications and following the applicable notice period constitutes your acceptance of the new Terms of Service. If you do not agree to abide by these or any future Terms of Service, do not use or access (or continue to use or access) the Service.

PLEASE READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. PLEASE INDICATE YOUR ACCEPTANCE TO THESE TERMS OF SERVICE IN ACCORDANCE WITH THE INSTRUCTIONS PROVIDED BY MODALYST. INDICATING ACCEPTANCE ESTABLISHES A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN YOU AND MODALYST. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE, YOU CANNOT USE THE SERVICE.

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at www.modalyst.co/privacy and the Fee Policy. All such terms and policies are hereby incorporated by reference into these Terms of Service.

Access and Use of the Service

In addition, when using certain services, you will be subject to any additional terms applicable to such services that may be posted on the Service from time to time, including, without limitation, the Privacy Policy located at www.modalyst.co/privacy and the Fee Policy. All such terms and policies are hereby incorporated by reference into these Terms of Service.

Access and Use of the Service

Services Description: This Site is operated by Modalyst and has been created to offer a number of web-based services to businesses in their capacity as either boutique buyers ("Buyers") or fashion designers / brands ("Designers") looking to discover each other and transact collectively, online.

Primarily, Modalyst is a platform to connect Buyers with Designers to discover each other and enter into collective wholesale purchase agreements through our platform.

Buyers have the ability to create "retailer profiles," which includes information on the areas they specialize in, the merchandise they carry, and imagery of their physical store. Buyers can also add other Buyers to their "buying circle," as long as the decision is mutual. Retailers in the same "buying circle" can share their discoveries and enter a collective wholesale purchase together to easily meet minimums or receive bulk order discounts.

Designers have the ability to create "designer profiles," which includes a portrait or video of the designer, a link to their press and line sheets, and a gallery of their fashion accessories offered for sale. Designers can only interact with Buyers whom have initiated contact with them. Designers can also reject a collective wholesale order at their discretion.

Your Registration Obligations: You may be required to register with Modalyst in order to access and use certain features of the Service. If you choose to register for the Service, you agree to provide and maintain true, accurate, current and complete information about yourself as prompted by the Service's registration form. Only Designers have the right to use the Designer services, and only Buyers have the right to use the Buyer services. Registration data and certain other information about you are governed by our Privacy Policy. If you are under 13 years of age, you are not authorized to use the Service, with or without registering. In addition, if you are under 18 years old, you may use the Service, with or without registering, only with the approval of your parent or guardian. You acknowledge that Modalyst is not currently a party to any collective bargaining agreement with any union or guild and you are solely responsible for complying with any applicable union or guild rules, including without limitation, those relating to payments.

Member Account, Password and Security: You are responsible for maintaining the confidentiality of your password and account, if any, and are fully responsible for any and all activities that occur under your password or account. You agree to (a) immediately notify Modalyst of any unauthorized use of your password or account or any other breach of security, and (b) ensure that you exit from your account at the end of each session when accessing the Service. Modalyst will not be liable for any loss or damage arising from your failure to comply with this Section.

Modifications to Service: Modalyst reserves the right to modify or discontinue, temporarily or permanently, the Service (or any part thereof) with or without notice. You agree that Modalyst will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.

General Practices Regarding Use and Storage: You acknowledge that Modalyst may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Modalyst's servers on your behalf. You agree that Modalyst has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Modalyst reserves the right to terminate accounts that are inactive for an extended period of time. You further acknowledge that Modalyst reserves the right to change these general practices and limits at any time, in its sole discretion, with or without notice.

Conditions of Use

User Conduct: You are solely responsible for all code, video, images, information, data, text, software, music, sound, photographs, graphics, designs, messages or other goods or materials ("content") that you upload, post, publish or display (hereinafter, "upload"), email, market or sell or otherwise use or distribute via the Service. The following are examples of the kind of content, products and/or use that is illegal or prohibited by Modalyst. Modalyst reserves the right to investigate and take appropriate legal action against anyone who, in Modalyst's sole discretion, violates this provision, including without limitation, removing the offending content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities. You agree to not use the Service to:

a) upload, email, market or sell or otherwise distribute any content or products that (i) infringes any intellectual property or other proprietary rights of any party; (ii) you do not have a right to upload, email, market or sell or otherwise distribute under any law or under contractual or fiduciary relationships; (iii) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (iv) poses or creates a privacy or security risk to any person; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another's privacy, hateful racially, ethnically or otherwise objectionable; or (vii) in the sole judgment of Modalyst, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Modalyst or its users to any harm or liability of any type;

b) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service;

c) violate any applicable local, state, national or international law, or any regulations having the force of law;

d) impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;

e) solicit personal information from anyone under the age of 18;

f) harvest or collect email addresses or other contact information of other users from the Service by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;

g) advertise or offer to sell or buy any goods or services for any business purpose that is not specifically authorized;

h) further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or

i) obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.

Special Notice for International Use; Export Controls: Any products or Software (defined below) made available in connection with the Service and the transmission of applicable data, if any, is subject to United States export controls. No products or Software may be distributed or downloaded from the Service or otherwise exported or re-exported in violation of U.S. export laws. Using the products or downloading or using the Software is at your sole risk. Recognizing the global nature of the Internet, you agree to comply with all local rules and laws regarding your use of the Service, including as it concerns online conduct and acceptable content.

Commercial Use: Unless otherwise expressly authorized herein or in the Service, you agree not to display, distribute, license, perform, publish, reproduce, duplicate, copy, create derivative works from, modify, sell, resell, exploit, transfer or upload for any commercial purposes, any portion of the Service, use of the Service, or access to the Service. The Service is for your personal use.

Purchase and Sale Transactions

Fees; Transactions: Registering for the Service is free during the beta environment; however, Modalyst will charge a subscription fee to register for and access the Service following completion of the beta environment and will charge other certain fees for various transactions made possible through the Service, in addition to certain premium features made available through the Services. Our Fee Policy is incorporated herein by reference. Unless otherwise stated, all fees are quoted in U.S. Dollars. To the extent the Service or any portion thereof is made available for any fee, you will be required to select a payment plan and provide Modalyst information regarding your credit card (as further described below) or other payment instrument. You represent and warrant to Modalyst that such information is true and that you are authorized to use the payment instrument. You will promptly update your account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. You agree to pay Modalyst the amount that is specified in the payment plan in accordance with the terms of such plan and these Terms of Service. Modalyst may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by Modalyst thirty (15) days after the mailing date of the invoice, or the Services may be terminated. Unpaid invoices are subject to late fees as described in the Fee Policy.

In addition to the payment of the applicable purchase price for a purchased item, Buyers are responsible for paying all shipping costs to Designers (which shipping costs are detailed in the Fee Policy) and all applicable sales, excise, import, export, VAT and other taxes or duties associated with the purchase and sale of any items through the Service. All such shipping costs and taxes are not included in the listed price for any items made available from Designers through the Service, but will be displayed to Buyers before confirmation of any purchase. Designers are responsible for all income taxes associated with the purchase and sale of any items through the Service.

Credit Card Transactions: To the extent you effect any transactions using a credit card, you must have a valid credit card on file. Modalyst will verify your credit card information (including expiration date and billing address), but will not charge your credit card unless you conduct an activity through the Service that requires your credit card to be charged. By agreeing to pay for a transaction with your credit card, you authorize us to charge your credit card.

Fee Modifications: We reserve the right to change or discontinue, temporarily or permanently, some or all of the fees for the Service (including to lower fees for promotional events), and such changes are effective when we post information about the fee change through the Service. Additionally, we may change our Fee Policy at any time and in our sole discretion, and any changes to the Fee Policy are effective upon the posting of such changes to the Fee Policy. Your continued use of the Service after the price change becomes effective constitutes your agreement to pay the changed amount.

The Service is only a Venue: The Service acts as an open marketplace for users to interact with other users to buy and sell fashion items. Modalyst only provides a service, does not obtain title to any purchased items and does not act as the buyer or seller (or agent for buyers or sellers) with respect to any such transactions. There are risks that you assume when dealing with other users (including those who may be acting under false pretenses). You agree that all of these risks are borne by you, and not Modalyst. Modalyst does not control the behavior of users of the Service or the information or other content provided by other users that is made available through the Service. As a result, Modalyst cannot assure that all transactions will be completed. Additionally, Modalyst does not guarantee the ability or intent of users to fulfill their obligations in any transactions.

FOR EVERY TRANSACTION THAT IS COMMENCED THROUGH OUR SITE, YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION REGARDING THE STATEMENTS, PRODUCT DESCRIPTIONS OR THE REPRESENTATIONS OF THE OTHER PARTY AND THE PARTY'S ABILITY TO PAY FOR OR DELIVER THE ITEM(S) OFFERED. PLEASE USE CAUTION, COMMON SENSE, AND PRACTICE SAFE TRADING WHEN DEALING WITH OTHER USERS OR OTHERWISE USING THE SITE.

Feedback System: Because Modalyst does not guarantee or endorse the ability of Designers to sell items or of Buyers to buy items, we have established a feedback system to help you evaluate the user with whom you are dealing. We also encourage you to communicate directly with potential buyers or sellers through the features available through the Service.

Selling: You must have the legal authority to sell the items that you are listing for sale through the Service. You must describe your item (including the original price) and all terms of sale in your listing truthfully, accurately and reasonably completely. If you accept an offer, you shall complete the transaction with the Buyer unless the transaction is prohibited by law or these Terms of Service, subject to the return procedure described below. You are also responsible for payment of the commission to Modalyst as set forth in the Fee Policy. An offer to sell may be retracted at any time prior to its acceptance, but not after. With respect to any goods or materials that you market, sell, promote or otherwise make available through the Website, you agree that the Website will be the exclusive venue for marketing, selling, promoting or otherwise making available such goods or materials to Buyers registered with the Website. If, independent of the Services, you transact any business with a Buyer registered with the Website for a good or material that is marketed, sold, promoted or otherwise made available through the Website, you agree to pay the applicable fees described in the Fee Policy to Modalyst for such transaction that otherwise would be due had the transaction occurred directly through the Services.

Buying: If you agree to purchase an item through the Service and confirm the transaction, you are obligated to complete the transaction in accordance with the terms and conditions specified by the Designer (e.g., with respect to the listing price), unless the transaction is prohibited by law or these Terms of Service, subject to the return procedure described below.

Shipping; Returns; Payment: Once the Designer receives a purchase order from the Buyer, the Designer will be responsible for all aspects of order processing and fulfillment. Among other things, the Designer will prepare order forms; process payments, cancellations, returns and refunds; and handle customer service. We will monitor the status of purchase orders made through the Service. The form, content, and frequency of any reports prepared by Modalyst may vary from time to time at our discretion.

Intellectual Property Rights

Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features ("Service Content") that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Except as expressly authorized by Modalyst, you agree not to modify, copy, frame, scrape, rent, lease, loan, sell, distribute or create derivative works based on the Service or the Service Content, in whole or in part, except that the foregoing does not apply to your own User Content (as defined below) that you legally upload to the Service. In connection with your use of the Service you will not engage in or use any data mining, robots, scraping or similar data gathering or extraction methods. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited. The technology and software underlying the Service or distributed in connection therewith is the property of Modalyst, our affiliates and our partners (the "Software"). You agree not to copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by Modalyst.

The Modalyst name and logos are trademarks and service marks of Modalyst (collectively the "Modalyst Trademarks"). Other Modalyst, product, and service names and logos used and displayed via the Service may be trademarks or service marks of their respective owners who may or may not endorse or be affiliated with or connected to Modalyst. Nothing in this Terms of Service or the Service should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Modalyst Trademarks displayed on the Service, without our prior written permission in each instance. All goodwill generated from the use of Modalyst Trademarks will inure to our exclusive benefit.

Third Party Material: Under no circumstances will Modalyst be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Modalyst does not pre-screen content, but that Modalyst and its designees will have the right (but not the obligation) in their sole discretion to refuse or remove any content that is available via the Service. Without limiting the foregoing, Modalyst and its designees will have the right to remove any content that violates these Terms of Service or is deemed by Modalyst, in its sole discretion, to be otherwise objectionable. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.

User Content Transmitted Through the Service: With respect to the content or other materials you upload through the Service or share with other users or recipients (collectively, "User Content"), you represent and warrant that you own all right, title and interest in and to such User Content, including, without limitation, all copyright and rights of publicity contained therein. By uploading any User Content you hereby grant and will grant Modalyst and its affiliated companies a nonexclusive, worldwide, royalty free, fully paid up, transferable, sublicensable, perpetual, irrevocable license to copy, display, upload, perform, distribute, store, modify and otherwise use your User Content in connection with the operation of the Service or the promotion, advertising or marketing thereof, in any form, medium or technology now known or later developed.

You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the Service ("Submissions"), provided by you to Modalyst are non-confidential and Modalyst will be entitled to the unrestricted use and dissemination of these Submissions for any purpose, commercial or otherwise, without acknowledgment or compensation to you.

You acknowledge and agree that Modalyst may preserve content and may also disclose content if required to do so by law or in the good faith belief that such preservation or disclosure is reasonably necessary to: (a) comply with legal process, applicable laws or government requests; (b) enforce these Terms of Service; (c) respond to claims that any content violates the rights of third parties; or (d) protect the rights, property, or personal safety of Modalyst, its users and the public. You understand that the technical processing and transmission of the Service, including your content, may involve (a) transmissions over various networks; and (b) changes to conform and adapt to technical requirements of connecting networks or devices.

Copyright Complaints: Modalyst respects the intellectual property of others, and we ask our users to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify Modalyst of your infringement claim in accordance with the procedure set forth below.

Modalyst will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act ("DMCA") and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to Modalyst's Copyright Agent, Alain Miguel at team@modalyst.co (Subject line: "DMCA Takedown Request"). You may also contact us by mail or facsimile at:

Modalyst, Inc., 530 Seventh Avenue, New York, NY 10018

To be effective, the notification must be in writing and contain the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Counter-Notice:If you believe that your User Content that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload and use the content in your User Content, you may send a written counter-notice containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within New York, New York and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice is received by the Copyright Agent, Modalyst will send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

Repeat Infringer Policy: In accordance with the DMCA and other applicable law, Modalyst has adopted a policy of terminating, in appropriate circumstances and at Modalyst's sole discretion, users who are deemed to be repeat infringers. Modalyst may also at its sole discretion limit access to the Service and/or terminate the memberships of any users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.

Third Party Websites

The Service may provide, or third parties may provide, links or other access to other sites and resources on the Internet. Modalyst has no control over such sites and resources and Modalyst is not responsible for and does not endorse such sites and resources. You further acknowledge and agree that Modalyst will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the Service are between you and the third party, and you agree that Modalyst is not liable for any loss or claim that you may have against any such third party.

Social Networking Services

You may enable or log in to the Service via various online third party services, such as social media and social networking services like Facebook or Twitter ("Social Networking Services"). By logging in or directly integrating these Social Networking Services into the Service, we make your online experiences richer and more personalized. To take advantage of this feature and capabilities, we may ask you to authenticate, register for or log into Social Networking Services on the websites of their respective providers. As part of such integration, the Social Networking Services will provide us with access to certain information that you have provided to such Social Networking Services, and we will use, store and disclose such information in accordance with our Privacy Policy. For more information about the implications of activating these Social Networking Services and Modalyst's use, storage and disclosure of information related to you and your use of such services within Modalyst (including your friend lists and the like), please see our Privacy Policy at www.modalyst.co/privacy. However, please remember that the manner in which Social Networking Services use, store and disclose your information is governed solely by the policies of such third parties, and Modalyst shall have no liability or responsibility for the privacy practices or other actions of any third party site or service that may be enabled within the Service.

In addition, Modalyst is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, Modalyst is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. Modalyst enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.

Indemnity and Release

You agree to release, indemnify and hold Modalyst and its affiliates and their officers, employees, directors and agent harmless from any from any and all losses, damages, expenses, including reasonable attorneys' fees, rights, claims, actions of any kind and injury (including death) arising out of or relating to your use of the Service (including any sale or purchase of any items through the Service), any User Content, your connection to the Service, your violation of these Terms of Service or your violation of any rights of another. If you are a California resident, you waive California Civil Code Section 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor." If you are a resident of another jurisdiction, you waive any comparable statute or doctrine.

Disclaimer of Warranties

YOUR USE OF THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. MODALYST EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.

MODALYST MAKES NO WARRANTY THAT (I) YOU WILL BE ABLE TO SELL OR PURCHASE ANY ITEMS THROUGH THE SERVICE OR THAT THE SERVICE WILL OTHERWISE MEET YOUR REQUIREMENTS, (II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE, (III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OR QUANTITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR EXPECTATIONS.

Limitation of Liability

YOU EXPRESSLY UNDERSTAND AND AGREE THAT MODALYST WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF MODALYST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICE (INCLUDING ANY INJURY OR OTHER BODILY HARM THAT MAY RESULT FROM YOUR USE OF THE SERVICE); (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL MODALYST'S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT OF COMMISSIONS THAT YOU HAVE PAID MODALYST AS A SELLER IN THE LAST SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
Arbitration

At Modalyst's or your election, all disputes, claims, or controversies arising out of or relating to the Terms of Service or the Service that are not resolved by mutual agreement may be resolved by binding arbitration to be conducted before JAMS, or its successor. Unless otherwise agreed by the parties, arbitration will be held in New York, New York before a single arbitrator mutually agreed upon by the parties, or if the parties cannot mutually agree, a single arbitrator appointed by JAMS, and will be conducted in accordance with the rules and regulations promulgated by JAMS unless specifically modified in the Terms of Service. The arbitration must commence within forty-five (45) days of the date on which a written demand for arbitration is filed by either party. The arbitrator's decision and award will be made and delivered within sixty (60) days of the conclusion of the arbitration and within six (6) months of the selection of the arbitrator. The arbitrator will not have the power to award damages in excess of the limitation on actual compensatory, direct damages set forth in the Terms of Service and may not multiply actual damages or award punitive damages or any other damages that are specifically excluded under the Terms of Service, and each party hereby irrevocably waives any claim to such damages. The arbitrator may, in his or her discretion, assess costs and expenses (including the reasonable legal fees and expenses of the prevailing part) against any party to a proceeding. Any party refusing to comply with an order of the arbitrators will be liable for costs and expenses, including attorneys' fees, incurred by the other party in enforcing the award. Notwithstanding the foregoing, in the case of temporary or preliminary injunctive relief, any party may proceed in court without prior arbitration for the purpose of avoiding immediate and irreparable harm. The provisions of this arbitration section will be enforceable in any court of competent jurisdiction.

Termination

You agree that Modalyst, in its sole discretion, may suspend or terminate your account (or any part thereof) or use of the Service and remove and discard any content within the Service, for any reason, including, without limitation, for lack of use or if Modalyst believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. Any suspected fraudulent, abusive or illegal activity that may be grounds for termination of your use of Service, may be referred to appropriate law enforcement authorities. Modalyst may also in its sole discretion and at any time discontinue providing the Service, or any part thereof, with or without notice. You agree that any termination of your access to the Service under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Modalyst may immediately deactivate or delete your account and all related information and files in your account and/or bar any further access to such files or the Service. Further, you agree that Modalyst will not be liable to you or any third party for any termination of your access to the Service.

User Disputes

You agree that you are solely responsible for your interactions (including any purchase and sale transactions) with any other user in connection with the Service and Modalyst will have no liability or responsibility with respect thereto. Modalyst reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.

General

These Terms of Service constitute the entire agreement between you and Modalyst and govern your use of the Service, superseding any prior agreements between you and Modalyst with respect to the Service. You also may be subject to additional terms and conditions that may apply when you use affiliate or third-party services, third-party content or third-party software. These Terms of Service will be governed by the laws of the State of New York without regard to its conflict of law provisions. With respect to any disputes or claims not subject to arbitration, as set forth above, you and Modalyst agree to submit to the personal and exclusive jurisdiction of the state and federal courts located within New York County, New York. The failure of Modalyst to exercise or enforce any right or provision of these Terms of Service will not constitute a waiver of such right or provision. If any provision of these Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of these Terms of Service remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or these Terms of Service must be filed within one (1) year after such claim or cause of action arose or be forever barred. A printed version of this agreement and of any notice given in electronic form will be admissible in judicial or administrative proceedings based upon or relating to this agreement to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form. You may not assign this Terms of Service without the prior written consent of Modalyst, but Modalyst may assign or transfer this Terms of Service, in whole or in part, without restriction. The section titles in these Terms of Service are for convenience only and have no legal or contractual effect. Notices to you may be made via either email or regular mail. The Service may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service.

Your Privacy

At Modalyst, we respect the privacy of our users. For details please see our Privacy Policy. By using the Service, you consent to our collection and use of personal data as outlined therein.

Notice for California Users

Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at Modalyst, Inc., 530 Seventh Avenue, New York, NY, 10018; (917) 376-2265

Questions? Concerns? Suggestions?

Please contact us at info@modalyst.co to report any violations of these Terms of Service or to pose any questions regarding this Terms of Service or the Service.