OUR TERMS

Cloutor Terms of Use

Last Updated July 21st, 2020

A. Terms of Use

These Term of Service create a legally binding contract agreement between you and Cloutor LLC, its subsidiaries, affiliates, parents, representatives, officers and directors (collectively, “Cloutor”,”we”,”us”, or “our”) governing your use of the Cloutor online marketplace.

Please read these Terms of Use and Cloutor’s Privacy Policy carefully.  By using our service or acknowledging that you have read and agree to the Terms & Conditions, you agree to these terms of use, and you consent to the collection, use and disclosure of information as described in these Terms of Use and our Privacy Policy.  If you do not agree to these Terms of Use or Cloutor’s Privacy Policy, you must exit the site immediately and discontinue any use of our services.  Cloutor can change these Terms of Use at anytime.  We will notify you by updating the date at the top of the Privacy Policy and, in some cases; we will send additional notice via a statement on our homepage or a direct notification.

1. The Cloutor Platform

Cloutor operates an online marketplace for users to buy and sell certain consumer goods.  Users list items for sale by stating what items they have, what size they are and how much they are willing to sell them for.  Cloutor facilitates a buy and sell function facilitating the purchase transaction between a contract created directly and exclusively between the buyer and seller. Cloutor does not set prices for the items and Cloutor is not an auctioneer.  Cloutor acts as a commercial agent to conclude the sale on behalf of each buyer and seller involved in each transaction.

B. Buyers

When you are a buyer on Cloutor, you are required to pay for any item(s) in which you purchase out right or when a seller accepts your offer.  When you Make An Offer, you are committing to the purchase of the item(s) as soon as the seller accepts your offer.  All sales are final once Cloutor has authenticated the item(s) and it has been delivered. No refunds will be honored regardless of the value of the item(s).  If there is an issue with one of the items, you must get in contact with us in writing with in 3 days of the delivery.  You must include your username and a description of the problem.  If any Confirmed Cloutor tag is removed from any item in the collection then all refunds and exchanges on that item are null and void and will not be accepted even if there was damage incurred during transit.  To qualify as an eligible buyer, you must provide a shipping address that is with in the US.  Any shipping address provided that is outside the US will be unable to complete a transaction. 

1. Payments

In general, Cloutor will charge your payment method upon purchase of the item(s).  The funds will then sit in escrow until the item(s) has been confirmed authentic.  Once the item has been confirmed authentic, the item will be shipped and funds will be released to the seller.  If the payment method gets rejected or fails for any reason, Cloutor reserves the right to any or all of the following in its sole discretion: 1. Temporarily or permanently suspend the buyers account; 2. Charge the buyers credit card for and expenses, costs and fees incurred by Cloutor as a result of the buyers action or inaction; 3. Remove all offers or orders from the service; 4. charge the buyers credit card up to 25$ as a service fee.

If there are any issues with your purchase, please contact our support team via e-mail at [email protected].

Sellers

When selling on Cloutor, you agree that you have the legal authority to sell each item that you have posted for sale through the platform and are confirming that all photos, names of items and claims are accurate to items you ship to us.  Buy listing an item(s) for sale, you are making a binding offer to sell all items contained in your post to the buyer who either purchases your item(s) out right or has a bid that you accept.  As a seller, you are obligated to monitor your item(s) post and ensure that all listings are correct.  ONCE AN ITEM(S) IS MARKED SOLD, UNDER NO CIRCUMSTANCE CAN A SELLER CANCEL THE LISTING. Failure to fulfill orders will result in additional service charges.  These charges will be equal to 15% of the total transaction amount as a service fee.  If a seller does not deliver their item(s) to Cloutor in accordance with these guidelines listed in the Terms of Service, Cloutor has the right to any of the following at its sole discretion: 1. Charge a sellers credit card an additional 15% of the total transaction amount; 2. Charge the seller’s payment method for any costs, expenses, or fees incurred as a result of the sellers actions; 3. Cancel any or all orders or temporarily or permanently remove the sellers account from the platform; 4. Withhold any payments due to the seller; 5. Limit certain privileges given to the seller.

1. Commission Fee

We charge a commission fee of 7.5% for all users selling on our platform. 

2. Items not accepted

Items are defined as a dead stock (completely new and unworn) pair(s) of sneakers, street wear or collectibles.  If your item(s) does not match this description, the item(s) will not be accepted and will not qualify as a publishable collection. 

3. Counterfeits and Fraud

If by any means the items listed by a seller do not match what was posted because they are damaged or counterfeit, Cloutor will charge your payment method for 15% of the transaction total.  If any one of the items is found to be counterfeit and the seller wishes to have the other items in the collection returned, the seller must pay for all charges incurred during the transaction including 1. shipping; 2. labor; 3. other expenses fees incurred. 

4. Shipping

Sellers must ship the item(s) with the carrier that is posted on the free shipping label provided.  The seller must provide a box is big enough to hold all items safely and securely.  To view further details on how to ship items, visit our FAQ’s page.

5. Seller fee

We will charge you a seller fee of 5$ in US dollars upon completion of each sale on the Cloutor platform.  The amount charged can vary depending on what country you are selling from.

Additional Information about Sellers can be found on our FAQ’s page.

Boosted Items

As a way to increase the chances of getting your item(s) getting noticed, you can “Boost” your item(s) and have it featured on the Home Page for an ‘x’ number of days. Each day featured costs 1$.  You will be charged for the full amount at purchase and there will be no refunds (including if there are days remaining on the boost after the item(s) has been sold). 

Promotional Codes

From time to time, Cloutor will issue promotional codes for a reduction of commission fees incurred by sellers or a reduction of shipping fees incurred by buyers. 

Authentication and Shipping

As part of facilitating the purchase transaction, it is required that the seller ship the items to Cloutor HQ for employees of Cloutor LLC to physically inspect the item(s) to confirm that the items included are authentic.  It can take between one to two days to confirm authenticity. Once Cloutor determines that the item(s) is authentic, Cloutor will ship the items to the buyer.  If Cloutor cannot determine authenticity or if the items are damaged, then we will notify both the buyer and seller and the buyer will receive a refund. In order to adhere to Cloutor’s Policy, it is necessary to ship the items listed in the sold item post within the specified timeframe.  You can find the specified timeframe in the e-mail notification sent to the seller after the collection has been purchased.  Because it is out of Cloutor’s control when the item(s) is shipped to the HQ, we cannot guarantee a specific time the item(s) will arrive.  If the item is not shipped within the specified timeframe, the buyer is not permitted to cancel the purchase.  As a company, Cloutor has the right to refuse to accept returns or other refund and/or charge restocking fees for returned or abandoned items.

E-mail

Where Cloutor requires that you provide an e-mail address, you are responsible for providing Cloutor with your most current e-mail address. In the event that the last e-mail address you provided to Cloutor is not valid, or for any reason is not capable of delivering to you any notices required or permitted by this Agreement, Cloutor’s dispatch of the e-mail containing such notice will nonetheless constitute effective notice and will adhere to the terms written out in this Terms of Service.

Indemnity

You agree to indemnify and hold Cloutor and its affiliates and their officers, directors, employees, and agents harmless from any and all claims, demands, losses, liabilities, and expenses (including attorneys’ fees), arising out of or in connection with: (i) your use of the Services or services or goods obtained through your use of the Services; (ii) your breach or violation of any of these Terms; (iii) your violation of any applicable laws, rules or regulations through or related to the use of the Software or Services; (iv) federal, state, county, city, or other tax obligation or amounts due or owing under any tax regulation, law, order or decree; (v) any misrepresentation made by you. This means that you will be responsible for any loss of damage we suffer as a result of your breach of these Terms of Use.

Limitation of Liability

CLOUTOR AND ITS, OFFICERS, DIRECTORS, EMPLOYEES, AND THIRD PARTY SUPPLIERS WILL NOT BE LIABLE FOR ANY INDIRECT, SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY, MULTIPLIED OR CONSEQUENTIAL DAMAGES, LOST PROFITS OR REVENUES OR FAILURE TO REALIZE EXPECTED SAVINGS, OR ANY DAMAGES WHATSOEVER, WHETHER OR NOT SUCH PARTY HAS BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, WHETHER UNDER CONTRACT, TORT (INCLUDING NEGLIGENCE) OR ANY OTHER THEORY, INCLUDING, WITHOUT LIMITATION, ARISING OUT OF OR IN CONNECTION WITH ANY LOSS OR OTHER DAMAGES IN CONNECTION WITH ANY UNAVAILABILITY OR NONPERFORMANCE OF THE SITE, APPS, ERRORS, OMISSIONS, VIRUSES AND MALICIOUS CODE, UNLESS SUCH LOSS OR DAMAGES ARE CAUSED DIRECTLY BY CLOUTOR’S FRAUD, RECKLESSNESS, GROSS NEGLIGENCE OR NEGLIGENCE. THESE LIMITATIONS WILL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.

You agree that any claim you may have arising out of or related to your relationship with Cloutor must be filed within one year after such claim arose; otherwise, your claim is permanently barred.

Arbitration Agreement

You and Cloutor agree that any dispute, claim or controversy that have arisen, or may arise, between you and Cloutor out of or relating to these Terms (including previous versions of these Terms) or the breach, termination, enforcement, interpretation, or validity thereof, your use of or access to the Service, the actions of Cloutor or its agents, or any products or services sold, offered, or purchased through the Service (collectively, “Disputes”) shall be settled by final and binding arbitration, except that each party retains the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation, or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights.

Prohibition of Class and Representative Actions and Non-Individualized Relief. YOU AND CLOUTOR AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR ONE PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CLASS, CONSOLIDATED, REPRESENTATIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER THIRD PARTIES. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Cloutor’s right to appeal the court’s decision. All other claims will be arbitrated.

Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/rules or by calling the AAA at 1-800-778-7879.) The use of the word “arbitrator” in this “Dispute Resolution” section shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA Rules will govern the number of arbitrators that may preside over an arbitration conducted under this “Dispute Resolution” section. The Federal Arbitration Act will govern the interpretation and enforcement of this “Dispute Resolution” section.

Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The AAA provides a form Demand for Arbitration at www.adr.org/ConsumerForms. Unless you and otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then you or Cloutor may elect to have the arbitration be conducted by telephone or solely on the basis of documents you and Cloutor submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.

Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. If you prevail in arbitration you will be entitled to an award of attorneys’ fees and expenses, to the extent provided under applicable law.

Fees. Payment of all AAA filing, administrative and arbitrator fees will be governed by the AAA Rules, unless otherwise stated in this “Dispute Resolution” section. However, if your claim for damages does not exceed $10,000, at your request, we will pay all filing, administrative and arbitrator fees associated with the arbitration. Any request for payment of fees by Cloutor should be submitted by mail to the AAA along with your Demand for Arbitration and we will make arrangements to pay all necessary fees directly to the AAA. If (i) you willfully fail to comply with the Notice of Dispute requirement discussed above, or (ii) in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse us for all fees associated with the arbitration paid by us on your behalf that you otherwise would be obligated to pay under the AAA’s rules.

Changes. Notwithstanding the provisions of the “Modification” section above, if we change this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice within 30 days of the date such change became effective, as indicated in the “Last Updated Date” above or in the date of our email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Cloutor in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).

Severability. With the exception of any of the provisions under the Prohibition of Class and Representative Actions and Non-Individualized Relief subsection of this “Dispute Resolution” section, if an arbitrator or court decides that any part of this “Dispute Resolution” section is invalid or unenforceable, the other parts of this “Dispute Resolution” section will still apply.

Opt-Out. You may opt out of this agreement to arbitrate. If you do so, neither you nor Cloutor can require the other to participate in an arbitration proceeding. To opt out, you must notify us in writing within 30 days of the date that you first became subject to this arbitration provision. You must use this address to opt out:

Cloutor Attn: Legal Dept. – Arbitration Opt-out 1228 Ridgecliff Dr. Cincinnati, OH 45215

You must include your name and residence address, the email address you use for your Account, and a clear statement that you want to opt out of this arbitration agreement.

DMCA

Notification:

Cloutor respects the intellectual property rights of others, and we ask you to do the same. Cloutor may, in appropriate circumstances and at our discretion, terminate service and/or access to the Sites and Apps for users who infringe the intellectual property rights of others. If you believe that your work is the subject of copyright infringement and/or trademark infringement and appears on our Sites or Apps, please provide Cloutor’s designated agent the following information required by the Online Copyright Infringement Liability Limitation Act of the Digital Millennium Copyright Act, 17 U.S.C. §512 (“DMCA”):

A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Identification of the copyrighted and/or trademarked work claimed to have been infringed, or, if multiple works at a single online site are covered by a single notification, a representative list of such works at that site.

Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled at the Sites or Apps, and information reasonably sufficient to permit Cloutor to locate the material.

Information reasonably sufficient to permit Cloutor to contact you as the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.

A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright and/or trademark owner, its agent, or the law.

A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

Intellectual Property

Using the Cloutor Services does not give you ownership of any intellectual or other property rights or interests in the Services or the content you access. You must not use any branding or logos used in the Services unless we have given you separate explicit written permission. You may not remove, obscure, or alter any legal notices displayed in or along with the Services. Unless you have explicit written permission, you must not reproduce, modify, rent, lease, sell, trade, distribute, transmit, broadcast, publicly perform, create derivative works based on, or exploit for any commercial purposes, any portion or use of, or access to, the Services (including content, advertisements, APIs, and software).

Survival

Any provision of these Terms that by its nature is reasonably intended to survive beyond termination of these Terms shall survive.

Eligibility

The service provided by Cloutor is only for person over the age of 16 years of age or older.  Any access to or use of the Service provided by Cloutor by any person under the age of 16 years of age is prohibited.  By accessing or using the Service you are acknowledging that you are 16 years of age or older. 

Entire Agreement

This Terms of Use, Cookies Policy and Private Policy is the final, complete and exclusive agreement between you and Cloutor with respect to the subject matter hereof and supersedes all previous understandings and agreements between the parties, whether oral or written.

Questions

If you have any questions about these Terms of Use, please contact us via e-mail at [email protected]

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