1.
1.1
“Agreement ” means the most current version of this terms of service agreement between us and you.
1.2
“Licensed Materials ” means our intellectual property, including but not limited to, our logos, trade names, service marks, trademarks, and trade dress.
1.3
“Profile ” means the membership information, including but not limited to your legal name, address, telephone, fax, email.
1.4
“Profile Page ” means the page of the same name on the Site where your membership information is shown.
1.5
“Services ” means each and every service we offer.
1.6
“Site ” means www.goldbar.net and all other Uniform Resource Identifier we use to provide our Services.
1.7
“System ” means all of our software and hardware.
1.8
“We ,” “us ,” and “our ” means Goldbar Enterprises, LLC, a New York limited liability company.
1.9
“You, ” “your, ” and “yourself ” means any person, organization or business entity that seeks to use our Services, Site or System, as well as their agents, assigns, and successors.
2.
2.1
Please direct any questions not answered by reading this Agreement to us at support@goldbar.net .
2.2
You may not access the Site or utilize our Services if you are under eighteen (18) years of age or otherwise not competent to enter into a binding contract.
2.3
Before you may use any of our Services, you must:
2.3.1
read and agree to comply with this Agreement and
2.3.2
understand and accept that this Agreement:
2.3.2.1
takes effect the moment you access the Site;
2.3.2.2
may only be amended or modified by us, unless we agree otherwise in writing with you;
2.3.2.3
may be amended or modified by us at any time and all such changes shall take full effect as soon as they are posted on the Site and your continued use of our Services shall be irrefutable proof of your consent to the terms and conditions of the most current version of this Agreement;
2.3.2.4
is the entire and only agreement between you and us;
2.3.2.5
contains all terms and conditions of your relationship with us and your use of our Services; and
2.3.2.6
shall only terminate under the conditions provided for herein.
2.4
This Agreement shall in no way create an agency, employee-employer, franchisor-franchisee, joint enterprise, joint venture, or partnership relationship between you and us.
2.5
Our failure to require your performance of any provision of this Agreement shall not affect our right to require subsequent performance at any time of the same provision.
2.6
Should we determine, in our sole discretion, that you have violated any provisions of this Agreement or applicable laws, we may, with subsequent notice to you:
2.6.1
immediately cancel your account and membership with us;
2.6.2
use your personal information to collect all pending and applicable fees and other amounts due;
2.6.3
charge you for all administrative costs in connection with any violation by you of any provision of this Agreement; and
2.6.4
bring legal action to enjoin violations and/or to collect all damages caused by your violations of this Agreement.
2.7
We cooperate with law enforcement and all other appropriate authorities and organizations.
2.8
Unless otherwise provided herein, you agree that:
2.8.1
all notices from us to you shall be sent to your current email address on file with us and will be deemed immediately delivered even if such email address is no longer valid and
2.8.2
all notices from you to us shall be:
2.8.2.1
sent to notice@goldbar.net and deemed immediately delivered or
2.8.2.2
in writing and delivered by courier or registered mail to Goldbar Enterprises, LLC, 6538 Collins Ave. #133, Miami Beach, FL 33141, and shall only be deemed delivered once the letter arrives at our office.
3.
3.1
Protecting your privacy is very important to us; so we do not sell your personal information and will only use it for obvious, legitimate business purposes.
3.2
You agree that we may use your personal information to enforce this Agreement, and when complying with an order of a court or other government entity of competent jurisdiction.
3.3
When you establish an account with us, you are required to provide us with your name, address, telephone and email address. We use this information to contact you when necessary and to confirm your identity when you contact us.
3.4
We use cookies, log files, and third parties to create a profile of our users and the information gathered is personally identifiable as belonging to you so that we can better determine what Services and System adjustments will optimize your experience at the Site.
3.5
The System allows you to purchase our Services online.
3.6
We may offer you opportunities to communicate with third parties. Please remember that we do not control or guarantee in any way the accuracy or safety of the content on websites not operated by us.
3.7
Any information you disclosed to third parties on our Site or other websites becomes public information, and you should exercise caution when deciding to disclose any personal information.
3.8
We follow established security procedures to keep your personal information safe from unauthorized third parties.
3.9
You alone are responsible for maintaining the security of your account access information—i.e., username, password, hints and email address. You must inform us immediately of any unauthorized use of our System, Services or Site.
3.10
You alone are responsible for confirming the accuracy of your personal information that we use to contact you. Any email messages we receive that appear to be from the email address we have on file for you shall be deemed to have been sent by you or your duly authorized agent with full authority to act on your behalf.
4.
4.1
Our automated billing procedure advance bills your credit card or PayPal account, on file with us, on a recurring monthly basis for your use of our Services during the upcoming month.
4.2
You agree to provide us with complete, current and accurate payment information for you, including but not limited to your credit card or PayPal account and billing address.
4.3
You agree to make timely payment of all amounts you owe us when they come due, and this obligation shall survive termination of this Agreement.
4.4
We may change our fees at any time, and the new fees shall take immediate effect.
4.5
Interest at a rate of twelve percent (12%) per year, or the highest rate allowed by law, shall be applied to fees and other amounts more than thirty (30) calendar days past due.
4.6
Acceptance by us of a partial payment does not release you from the obligation to make full payment of the remaining amounts due under this Agreement.
4.7
A $100 administrative fee shall be applied to every chargeback you make on charges for payment to us.
5.
5.1
No fees shall be refunded and all sales are final.
5.2
You shall not chargeback any fees paid to us, unless you have been the victim of identity theft and provide us with a valid police report. Your failure to comply with this section may result in immediate termination of your use of our Services and your obligation to pay an administrative cost recovery fee of $100.00 to us for each charge back you make.
6.
6.1
We may review and delete any content you post on the Site or elsewhere utilizing our Services or System if we determine, in our sole discretion, that the content violates the rights of others, is not appropriate for the Site, or otherwise violates this Agreement.
7.
7.1
You may not copy or otherwise attempt to benefit or assist others to benefit, directly or indirectly, from use of our Licensed Materials other than through normal use of the Site.
7.2
You hereby grant us full rights to copy, display, distribute and otherwise use all content that you post on the Site or otherwise through the use of our Services and System.
8.
8.1
There shall be no third-party beneficiaries to this Agreement. All assignments are void unless consented to by us in writing.
9.
9.1
You agree that we will not be liable for any harm or loss that may occur in connection with:
9.1.1
any act or omission by you or your agent, whether authorized or unauthorized;
9.1.2
your use or inability to use our Services;
9.1.3
public or private information, whether accurate or inaccurate or fraudulent, provided by you or a third party;
9.1.4
access delays or access interruptions to our Services;
9.1.5
the failure to deliver or erroneous delivery of information;
9.1.6
any breach of contract you have with a third party, such as an employer;
9.1.7
any breach of a 3rd party’s intellectual property as a result of information posted by you;
9.1.8
your failure to pay us any applicable fees;
9.1.9
the actions, orders and judgments of administrative, judicial and other governmental bodies.
9.2
We shall not be liable to you or anyone else for delays in or failures to perform our obligations under this Agreement that directly or indirectly result from events or causes beyond our reasonable control including, but not limited to: hardware or software failures, other equipment failures, electrical power failures, labor disputers, strikes, riots, hurricanes, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or administrative bodies, or the non-performance of third parties.
9.3
We shall not be liable for any direct, indirect, consequential, incidental, special or exemplary damages of any kind, including but not limited to lost: profits, goodwill, use, data or other intangibles whether in contract, tort or negligence even if we are aware of the possibility or probability of such damages.
9.4
If we are deemed liable to you by a competent court, our maximum possible liability to you for any reason shall not exceed $100.
10.
10.1
YOU AGREE TO DEFEND, INDEMNIFY AND HOLD US AND OUR MEMBERS, OFFICERS, EMPLOYEES, AFFILIATES AND AGENTS HARMLESS, REGARDLESS OF WHETHER WE HAD ADVANCE NOTICE OF THE RISK, FROM AND AGAINST ANY AND ALL LIABILITIES, LOSSES, DAMAGES OR COSTS, INCLUDING ALL ATTORNEY FEES, COLLECTION FEES AND COURT COSTS, RELATED TO ANY DEMAND OR LITIGATION IN ANY WAY RELATED TO:
10.1.1
YOUR USE OF OUR SERVICES;
10.1.2
YOUR BREACH OF THIS AGREEMENT;
10.1.3
INACCURATE OR FRAUDULENT INFORMATION PROVIDED BY YOU OR A THIRD PARTY;
10.1.5
THE CANCELLATION OR LIMITATION OF YOUR ABILITY TO USE OUR SYSTEM AND SERVICES, INCLUDING BUT NOT LIMITED TO OUR SITE; OR
10.1.6
INFRINGEMENT OF ANY THIRD-PARTY RIGHTS ARISING FROM YOUR USE OF OUR SYSTEM OR SERVICES.
11.
11.1
You represent and warrant that:
11.1.1
all Profile information you provide to us is accurate and none of the Profile information or documents you provide to us contain fraudulent or otherwise inaccurate information.
11.1.2
you will update your Profile information within ten (10) calendar days after it becomes inaccurate;
11.1.3
you will not directly or indirectly infringe the legal rights of third parties or our Licensed Materials;
11.1.4
you will not use our Site for any activity that could constitute a criminal offense, statutory or administrative violation or civil, including but not limited to the sending of chain letters, junk mail, “spam,” solicitations (commercial or otherwise), or other use of distribution lists without the advance consent of each recipient.
11.1.5
you have not entered into this Agreement and will not enter into any additional agreements with us in bad faith; and
11.1.6
you are at least legally competent to enter into a binding contract with us.
11.2
We make no representations or warranties of any kind in connection with this Agreement.
11.3
With regard to the Site and our Services
11.3.1
We expressly disclaim all warranties, express or implied, including, but not limited to, the implied warranties of merchantability and fitness for a particular purpose.
11.3.2
We do not warrant that our Services will meet your requirements, be uninterrupted or error free.
11.3.3
We do not make any warranties or representations regarding use, correctness, accuracy, or reliability.
11.4
You agree that:
11.4.1
you use the Site and our Services at your own risk;
11.4.2
you use the Site and our Services on an “as-is” and “as-available” basis and at your own risk and discretion;
11.4.3
you alone are responsible for any damage to your hardware and software or loss of data in any way related to your use of the Site or our Services;
11.4.4
neither we nor our members, officers, employees or agents shall have any liability to you; and
11.4.5
no advice or information, whether oral or written, obtained by you from us shall create any warranty not expressly stated in this Agreement.
12.
12.1
Unless otherwise provided herein, any breach of this Agreement by you must be remedied within five (5) calendar days after we send email notice of the breach to you.
12.2
Such notice shall be deemed delivered when sent to the e-mail address then on record with us.
12.3
If you fail to cure the breach within such period, we will have no further obligation to you and may terminate your membership and/or seek any other remedy available at law or in equity including but not limited to obtaining an injunction or specific performance.
12.4
Except as otherwise specified in this Agreement, notice of our actions pursuant to this Agreement will usually be provided to you within fifteen (15) calendar days following the taking of such action.
12.5
In the event that you breach any provision of this Agreement, you agree that we may immediately terminate your use of our Services and System if we determine, in our sole discretion, that the breach is sufficiently serious.
12.6
In the event such a breach occurs by you, we may post on the Site that you have violated this Agreement.
12.7
In the event we determine that you have or continue to violate this Agreement:
12.7.1
We reserve the right to prosecute civil and/or criminal actions against you for any abusive behavior you engage in regarding your use of our Services and System; and
12.7.2
You will also be subject to legal ($200 per hour), administrative ($75 per hour), and technical ($150 per hour) fees in a reasonable amount for damages incurred by us for any violations of this Agreement.
12.8
You may only cancel your membership by properly completing and submitting the online form available on the member area page of our Site. Cancellation by you shall take effect on the third business day following submission of a properly completed form, and you shall remain responsible for timely payment of all amounts you owe us as of the date your membership is cancelled.
12.9
You alone are responsible for terminating any automated payments scheduled through PayPal.
13.
13.1
In the event that one or more provisions of this Agreement is deemed unenforceable or invalid, the unaffected provisions of this Agreement shall continue in effect, and the unenforceable or invalid provisions shall be amended or replaced by us with a provision that is valid and enforceable and which achieves, to the greatest extent possible, the objectives and intent of the original provisions.
14.
14.1
This Agreement shall be governed by the federal laws of the United States and the laws of the State of New York, without regard to any conflict of laws provisions.
15.
15.1
Any actions relating to or arising out of this Agreement or any use of our Services that include us as a party shall be brought exclusively in the federal and state courts for Westchester County, White Plains, New York, and you consent to the exercise of personal jurisdiction over you by these courts in all such actions.
15.2
You agree that you shall submit, without prejudice to other potentially applicable jurisdictions, to the jurisdiction of the courts of your domicile and Westchester County, White Plains, New York.
16.
16.1
Any legal controversy or legal claim arising out of or relating to this Agreement or your use of our System, Services or Site shall be settled by binding arbitration before the American Arbitration Association. Each controversy or claim shall be arbitrated on an individual basis, and shall not be consolidated in any arbitration with any other claim or controversy, whether raised or belonging to you or a third party. The arbitration shall be conducted in Westchester County, White Plains, New York.
16.2
Either party may seek any interim or preliminary relief from a court of competent jurisdiction under Section 15 above, necessary to protect the rights or property of party pending the completion of arbitration.
16.3
The prevailing party from arbitration shall be entitled to reasonable attorney’s fees, which shall be set forth by the arbitrator(s). Judgment upon the award rendered may be entered in any court of competent jurisdiction under Section 15 above.
16.4
The decision of the arbitrator shall be final and binding on the parties. The parties shall bear equally all fees, costs and expenses of the arbitration, and each party shall bear its own legal expenses, attorneys fees, and costs of all experts and witnesses, provided, however, the arbitration panel may apportion between the parties, as said arbitrator may deem equitable, the cost incurred by either party.
16.5
Should either party file an action contrary to this provision, the other party may recover attorneys’ fees and costs up to one thousand ($1,000) dollars.
17.
17.1
If we reasonably decide to retain an attorney or collection agency to enforce this Agreement, the prevailing party will be entitled to an award of all reasonable fees and costs, regardless of whether a judgment is rendered or suit is ever filed.
