Threecolts Legal Portal

TERMS OF USE AGREEMENT

Threecolts, LLC, a Delaware limited liability company, along with its parents, subsidiaries, or affiliates, provides cloud-based services for e-commerce businesses, including those that sell on the Amazon.com, Shopify, and Walmart platforms (collectively, the “Services”). This Terms of Use Agreement (“Agreement”) is made and entered into by and between you (“You” or “Your”), the user of one or more of these Services, and the relevant business entity providing the Services.

Except as where otherwise more specifically referenced in this Agreement, Threecolts, LLC, along with its parents, subsidiaries, or affiliates, will generally be referred to as the “Company.” The terms of this Agreement are intended to apply to Your use of the Services of each Company. This Agreement will be effective when You select the “I Agree” button, and Your selection of the “I Agree” button constitutes Your manifestation of assent to the terms of this Agreement. If You do not wish to be bound by the terms of this Agreement, You must not select the “I Agree” button or use the Services of any Company. The Company reserves the right to change, modify, rescind, or remove the terms of this Agreement at any time and without prior notice. Your continued use of any of the Services after a change, modification, recission, or removal of the terms of this Agreement constitutes Your manifestation of assent to such change, modification, recission, or removal. If You do not agree with these terms, You must immediately discontinue Your use of the Services.

NOTICE OF ARBITRATION. THIS TERMS OF USE AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER THAT APPLIES TO ALL CLAIMS EXCEPT FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT OR THOSE THAT CAN BE BROUGHT IN SMALL CLAIMS COURT. EXCEPT AS OTHERWISE STATED UNDER THE TERMS OF THIS AGREEMENT, YOU AGREE THAT ANY AND ALL DISPUTES BETWEEN YOU AND THE COMPANY WILL BE RESOLVED BY BINDING, INDIVIDUAL ARBITRATION, AND YOU WAIVE YOUR RIGHT TO BRING OR RESOLVE ANY DISPUTE AS, OR PARTICIPATE IN, A CLASS, CONSOLIDATED, REPRESENTATIVE, COLLECTIVE, OR PRIVATE ATTORNEY GENERAL ACTION OR ARBITRATION. 

NOTICE OF LIMITATION OF LIABILITY. THIS TERMS OF USE AGREEMENT CONTAINS A LIMITATION OF LIABILITY CLAUSE THAT LIMITS THE COMPANY’S TOTAL MONETARY LIABILITY TO THE AMOUNT YOU HAVE PAID TO THE COMPANY FOR ITS SERVICES. YOU ARE INSTRUCTED TO REVIEW THIS LIMITATION OF LIABILITY AND, IF YOU DO NOT AGREE WITH IT, TO DISCONTINUE YOUR USE OF THE SERVICES IMMEDIATELY.

1. Warranties. You warrant and agree that You have the right and legal capacity to enter into this Agreement and to adhere to its terms and conditions. You warrant that You are a human individual that is eighteen (18) years of age or older and that You are not a bot, script, or other computer or machine. You warrant that You are not prohibited from assenting to this Agreement by any preexisting Agreement. If You are using the Website on behalf of a third party, including but not limited to a business entity, You warrant that You are the authorized representative of that third party and have the authority to bind that third party to the terms of this Agreement
2. User Account. The Company may provide You with the ability to register a user account (“User Account”), which will provide access to the Services. Your User Account is protected by a username and password. You recognize that You are solely responsible for maintaining the security and confidentiality of Your username and password and that You are responsible for any unauthorized access to Your User Account. In the event Your User Account is accessed without Your authorization, You agree to notify the Company immediately. The Company reserves the right to restrict access to, suspend, disable, or delete Your User Account at any time, in its sole discretion, and without prior warning.
3. Privacy Notice. The Company has adopted a privacy notice (“Privacy Notice”) to disclose to You its collection, use, and disclosure of personal and personally identifiable information. You are directed to review the Company’s Privacy Notice, which is hereinafter incorporated by reference.
4. License. Subject to the terms of this Agreement and conditional upon timely payment for any Services licensed through Your User Account, Company grants You a limited, non-exclusive, non-transferable, worldwide, non-sublicensable, and revocable license to use the Services in executable form and for their customary and intended purposes.
5. License Conditions. As a condition of the license granted to You under the terms of this Agreement, and except where otherwise expressly allowed under the terms of this Agreement, You expressly agree to the terms of the Company’s Acceptable Use Policy, which is hereinafter incorporated by reference as if fully restated herein, and are expressly prohibited from the following:
   1. Distributing, framing, emulating, cloning, publishing, displaying, selling, assigning, sublicensing, renting, leasing, loaning, modifying, publicly displaying, publicly performing, creating derivative works of, translating, or adapting the Services;
   2. Decompiling, reverse engineering, disassembling, or hacking the Services;
   3. Using the Services for the development of any software program, including, but not limited to, the use of the Services for artificial intelligence training, machine learning, or for training neural networks;
   4. Scraping, caching, or utilizing the Services through a proxy;
   5. Unless otherwise allowed under a group or site license, granting more than one user access to the Services;
   6. Circumventing the Services’ technology protection measures, including measures intended to restrict the use of the Services;
   7. Infringing upon the intellectual property or other proprietary rights of Company;
   8. Exporting the Services in violation of the export controls or regulations of the laws of Your country or any other country’s laws or regulations;
   9. Using the Services to violate any applicable law, statute, regulation, ordinance, or treaty, whether national or international;
   10. Using the Services to violate the policies of any third-party marketplace or platform, including, but not limited to, Amazon.com, Shopify, or Walmart.com;
   11. Using the Services to violate the rights of third parties, including, but not limited to, personal and proprietary rights;
   12. Removing or altering any proprietary notices contained within the Services, including, but not limited to, copyright, patent, and trademark notices; or
   13. Aiding, abetting, or advising another to take any of the foregoing actions.
6. User-Generated Content. To perform the Services, the Company may provide you with the ability to upload, contribute, or transmit user-generated content to the Services through Your User Account, including, but not limited to, listings text, photographs, images, videos, URLs, and other files (collectively “User-Generated Content”). You warrant that your User-Generated Content will not (i) violate any law, statute, regulation, or ordinance, whether local, state, provincial, national, or international, (ii) violate any term or condition of this Agreement, or (iii) violate the rights of third parties, including intellectual property rights and any other personal or proprietary rights. By submitting User Generated Content to the Services, you grant the Company a non-exclusive, irrevocable, royalty free, worldwide, and perpetual license to use your User-Generated Content for the customary and intended purposes of the Services. The customary and intended purposes of the Services may include, but are not limited to, creating or maintaining user profiles, drafting product descriptions, titles, blog posts, and social media posts, as well as archiving or making backup copies of Your User Generated Content. By submitting User-Generated Content to the Services, you waive all moral rights or rights of publicity or privacy with respect to the User-Generated Content submitted to the Services. When providing User-Generated Content to the Services, You warrant that your User Generated Content will be accurate, truthful, non-deceptive, and complete.
7. Proprietary Rights. You understand and agree that the Services, including, but not limited to, their source code, data, selection and arrangement, executable code, structure, and organization, contains the valuable trade secrets and intellectual property of Company. Under the terms of this Agreement, You do not acquire any ownership rights to the Services or the data contained therein. You acquire only a limited license to use the Services subject to the terms of this Agreement. All other rights are reserved by Company.
8. Trademarks. You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on or through the Services by Company, including, but not limited to, THREE COLTS GROUP, DIMETYD, DATASPARK, EXPORTYOURSTORE, FEEDBACKWHIZ, SELLERRUNNING, HEMI, INVENTORYLAB, ONSITE SUPPORT, SCOUTIQ, SMART REPRICER, and TACTICALARBITRAGE, are common law or registered trademarks owned by or licensed to the Company. You are expressly prohibited from using the trademarks of Company to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of Your goods or services. You are further prohibited from using the trademarks of Company in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.
9. Payment. When You register and use a User Account to access the Services, You may be charged a subscription fee (“Subscription Fee”) by Company depending on the services You utilize. The Subscription Fee will be payable at the times specified by Company on the website associated with the Services and may be billed on a reoccurring basis. All Subscription Fee payments for the Services are non-refundable. You represent and warrant that You will timely pay all fees and charges and You agree that the Company will charge Your payment method on a reoccurring basis. The Company reserves the right to terminate Your User Account and access to the Services for Your failure to timely pay. All Subscription Fees will be quoted and payable in United States Dollars. You agree that You will not initiate any chargebacks against the Company unless approved by the Company in writing. You understand and agree that You will be held responsible for any costs or fees associated with any unauthorized chargebacks. Any disputes as to payment must be brought to the Company’s attention in writing within thirty (30) days or will otherwise be barred.
10. Third-Party Services. Through Your use of the Services, You may interact with third party services or websites that are not under the Company’s ownership or control. You understand and agree that the Company cannot be held liable for Your use of third party services and You are directed to review the terms and privacy policies adopted by all third party service providers.
11. Taxes. You agree that You will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with Your use of the Services. The Company will report as income all payments received from You to the Company to all proper taxing authorities. 

12. Consumer Rights Information; California Civil Code Section 1789.3. If the Company charges for services, products, content, or information, pricing information will be posted as part of the ordering process. The Company maintains specific contact information including an e-mail address for notifications of complaints and for inquiries regarding pricing policies in accordance with California Civil Code Section 1789.3. All correspondence should be addressed to the Company’s agent for notice at the following address:

    Threecolts, LLC
    251 Little Falls Drive
    Wilmington, Delaware 19808
    United States of America
    support@threecolts.com 

    You may contact the Company with complaints and inquiries regarding pricing and we will investigate those matters and respond to the inquiries. The Complaint Assistance Unit of the Division of Consumer Services of the Department of Consumer Affairs may be contacted in writing at 1020 N. Street, #501, Sacramento, CA 95814.

13. Notice of Financial Incentive. If You are a California resident, You have a right to receive this Notice of Financial Incentives under the California Consumer Privacy Act (CCPA). This notice is intended to provide You with information regarding any financial incentive, including any difference in the price of Services, that the Company may provide in exchange for personal information. From time to time, the Company may offer You the ability to participate in rewards programs or discounts when you use our Services. This may include discounts on services for signing up for an email newsletter or providing other personal or personally identifiable information to the Company. You can opt out of the Company’s sale or sharing of your personal or personally identifiable information by following the procedures to do so outlined in the Company’s Privacy Notice or in the Company’s Do Not Sell or Share My Personal Information link or by emailing the Company at privacy@threecolts.com. Your participation in any financial incentive program is optional and any terms and conditions applicable to such financial incentive will be provided at the point of opt-in. The Company does not generally assign a monetary value to the personal or personally identifiable information obtained in exchange for a financial incentive, but the Company’s good faith estimate of the value of the personal or personally identifiable information collected at the time of opt-in is approximately $1 per user, which is an estimate performed based on the likelihood that a customer offered a free trial or a discount will convert into a paying customer.
14. Term and Termination. The term of this Agreement will begin upon Your first accessing of the Services and will continue until the earlier of the following: (i) Company terminates Your access to the Services; or (ii) You cease using the Services and terminate Your User Account. The Company reserves the right to terminate the Services or Your access to the Services in its sole and absolute discretion and without prior notice.
15. Disclaimer of Warranties and Limitation of Liability. YOU ACKNOWLEDGE AND AGREE THAT THE SERVICES ARE PROVIDED ON AN “AS-IS” BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT THE COMPANY WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE SERVICES OR DOWNTIME. YOU ACKNOWLEDGE THAT THE COMPANY MAKES NO GUARANTEE OR REPRESENTATION OF ANY KIND CONCERNING THE SERVICES, INCLUDING ANY GUARANTEE OR REPRESENTATION THAT YOU WILL OBTAIN A PARTICULAR OUTCOME THROUGH YOUR USE OF THE USE OF THE SERVICES OR THAT YOU WILL OBTAIN A CERTAIN RESULT THROUGH YOUR USE OF THE SERVICES. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT COMPANY’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE COMPANY SERVICES OR $1,000, WHICHEVER IS LESS.
16. Indemnification. You agree to indemnify, defend, and hold harmless the Company, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives, from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) Your use of the Services, (ii) Your violation of any term or condition of this Agreement; (iii) Your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; (iv) Your violation of the policies or procedures of any third party marketplace, including, but not limited to, Amazon.com; and (v) Your violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend Company will not provide You with the ability to control Company's defense, and Company reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.

17. ARBITRATION. YOU AND THE COMPANY AGREE THAT ANY DISPUTE ARISING OUT OF OR RELATED TO THIS AGREEMENT OR YOUR USE OF THE SERVICES WILL BE GOVERNED BY THE LAWS OF THE STATE OF DELAWARE, WITHOUT REGARD TO ITS CONFLICT OF LAWS RULES. EXCEPT FOR CLAIMS THAT MAY BE BROUGHT IN SMALL CLAIMS COURT, CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT, OR CLAIMS FOR INJUNCTIVE RELIEF BY EITHER PARTY, YOU AND THE COMPANY AGREE THAT ANY DISPUTE OR CONTROVERSY ARISING OUT OF, IN RELATION TO, OR IN CONNECTION WITH THIS AGREEMENT OR YOUR USE OF THE SERVICES, INCLUDING, WITHOUT LIMITATION, ANY AND ALL DISPUTES, CLAIMS (WHETHER IN TORT, CONTRACT, STATUTORY, OR OTHERWISE), OR DISAGREEMENTS CONCERNING THE EXISTENCE, BREACH, INTERPRETATION, APPLICATION, OR TERMINATION OF THIS AGREEMENT, WILL BE RESOLVED BY FINAL AND BINDING ARBITRATION PURSUANT TO THE FEDERAL ARBITRATION ACT. THIS ARBITRATION WILL BE HELD THROUGH THE PLATFORM PROVIDED BY NEW ERA ADR, INC. (https://app.neweraadr.com) (THE “NEW ERA PLATFORM”) IN ACCORDANCE WITH ITS RULES AND PROCEDURES FOR “VIRTUAL EXPEDITED ARBITRATIONS” BY A PROFESSIONAL NEUTRAL WITH SUBSTANTIAL EXPERIENCE IN RESOLVING COMMERCIAL DISPUTES (THE “NEUTRAL”). THE NEUTRAL SHALL BE CHOSEN IN ACCORDANCE WITH THE RULES AND PROCEDURES OF THE NEW ERA PLATFORM.

    THIS ARBITRATION WILL BE CONDUCTED IN THE ENGLISH LANGUAGE. THE DECISION OF THE NEUTRAL WILL BE FINAL AND BINDING ON THE PARTIES AND JUDGMENT ON ANY AWARD(S) RENDERED BY THE NEUTRAL MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF. NOTHING IN THIS SECTION WILL PREVENT EITHER PARTY FROM SEEKING IMMEDIATE INJUNCTIVE RELIEF FROM ANY COURT OF COMPETENT JURISDICTION, AND ANY SUCH REQUEST SHALL NOT BE DEEMED INCOMPATIBLE WITH THE AGREEMENT TO ARBITRATE OR A WAIVER OF THE RIGHT TO ARBITRATE. THE PARTIES UNDERTAKE TO KEEP CONFIDENTIAL ALL AWARDS IN THEIR ARBITRATION, TOGETHER WITH ALL CONFIDENTIAL INFORMATION, ALL MATERIALS IN THE PROCEEDINGS CREATED FOR THE PURPOSE OF THE ARBITRATION, AND ALL OTHER DOCUMENTS PRODUCED BY THE OTHER PARTY IN THE PROCEEDINGS AND NOT OTHERWISE IN THE PUBLIC DOMAIN, SAVE AND TO THE EXTENT THAT DISCLOSURE MAY BE REQUIRED OF A PARTY BY LEGAL DUTY, TO PROTECT OR PURSUE A LEGAL RIGHT OR TO ENFORCE OR CHALLENGE AN AWARD IN LEGAL PROCEEDINGS BEFORE A COURT OR OTHER JUIDICAL AUTHORITY. THE NEUTRAL SHALL AWARD ALL FEES AND EXPENSES, INCLUDING REASONABLE ATTORNEYS’ FEES, TO THE PREVAILING PARTY. ANY JUDGMENT RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT OF COMPETENT JURISDICTION.

    ANY DISPUTE RESOLUTION PROCEEDING ARISING OUT OF OR RELATED TO THIS AGREEMENT OR THE LICENSING OF THE SERVICES, WHETHER IN ARBITRATION OR OTHERWISE, SHALL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED, OR REPRESENTATIVE ACTION, AND YOU AND THE COMPANY EXPRESSLY AGREE THAT CLASS ACTION AND REPRESENTATIVE ACTION PROCEDURES SHALL NOT BE ASSERTED IN NOR APPLY TO ANY ARBITRATION PURSUANT TO THESE TERMS.

    ANY CLAIMS MUST BE BROUGHT WITHIN ONE YEAR OF EACH APPLICABLE LICENSE OR SALE OR WILL OTHERWISE BE BARRED.

18. Force Majeure. The Company will not be responsible for any delay or failure in performance of the Services arising out of any cause beyond Company’s control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.
19. Survivability. The representations, warranties, duties, and covenants made by You under this Agreement will survive the termination of this Agreement, Your User Account, or the Services, including, but not limited to, Your duty to indemnify and defend Company.
20. Interpretation. This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.
21. Assignment. You are expressly prohibited from assigning Your rights and duties under this Agreement. Company reserves the right to assign its rights and duties under this Agreement, including in a sale of Company or the Services.
22. Waiver and Integration. No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties.