Who we are
Our website address is: https://www.rarityfinder.com
This User agreement (“User Agreement”), and all policies and additional terms posted on and in our site, applications, tools, and services (collectively, “Services”) set out the terms which Rarity Finder Auctions, LLC (“Rarity Finder” or “We”) offers you access to and use of our Services. You agree to comply with all terms of this User Agreement when accessing or using our Services.Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see “Limitation of Liability” and “Legal Disputes” provisions below). It also contains an Agreement to Arbitrate which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Section b (“Agreement to Arbitrate”)). If you do not opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding, and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
1.About Rarity Finder
Rarity Finder is a leading collectible buyer for trading cards, collectibles, memorabilia and more. Rarity Finder buys these items on behalf of item sellers in order to obtain for customers (buyers).
2.Using Rarity Finder
In connection with using or accessing our Services, you agree to comply with this User Agreement, our policies, our terms, and all applicable laws, rules, and regulations, and you will not:
◦breach or circumvent any laws, regulations, or third-party rights or our systems, Services, policies, or determinations of your account status;
◦use our Services if you are not able to form a legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our Services;
◦transfer your Rarity Finder account and user ID to another party without our consent;
◦share your login credentials with any third parties;
◦distribute viruses or any other technologies that may harm Rarity Finder or the interests or property of users;
◦use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purposes, except with the prior express permission of Rarity Finder;
◦circumvent any technical measures used to provide our Services;
◦interfere with the functioning of our Services, such as by imposing an unreasonable or disproportionately large load on our infrastructure;
◦export or re-export any Rarity Finder application or tool, except in compliance with export control laws, and rules and policies of any relevant jurisdictions;
◦infringe on the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to Rarity Finder. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Rarity Finder or someone else;
◦infringe on any Intellectual Property Rights that belong to third parties affected by your use of our Services;
◦commercialize any Rarity Finder application or any information, data, or software associated with such application, except with the prior express permission of Rarity Finder; or
◦harvest or otherwise collect information about users without their consent.
If we believe you are violating this User Agreement or any of our policies, or abusing Rarity Finder and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, remove any special status associated with your account(s), reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.We may cancel unconfirmed accounts or accounts that have been inactive for a substantial period of time. Additionally, we reserve the right to refuse, modify, or terminate all or part of our Services to anyone for any reason at our discretion.
3.Conditions of Sale
By buying an item, you agree to the following:
a.
Registration
i.You must be a registered user of Rarity Finder in order to buy and have an existing subscription active. You must register online at https://www.rarityfinder.com, accept this User Agreement, and provide an email address, a shipping address, and a valid credit card. Rarity Finder reserves the right, in its sole discretion, to refuse your participation before, during, or after any sale.
ii.Rarity Finder may request a government-issued identification containing a photograph, such as a passport, identity card, or driver’s license, or comparable documents in the case of an entity, including evidence of beneficial ownership of the entity, in order for you to register to bid or following the sale. Rarity Finder will use this information as permitted under the Rarity Finder User Privacy Notice. This includes using your information to verify your identification and screen for regulatory and financial risk. Rarity Finder may also conduct other screening for due diligence purposes. Please review our User Privacy Notice for more information about how Rarity Finder uses your personal information.
b.
By buying, you represent, warrant, and agree that:
i.You are financially sound and know when and how you will pay for the lot if you are the winning bidder; and or buyer.
ii.Your bidding/buying is consistent with federal and state antitrust law and is not the product of any collusive, anticompetitive, or other illegal agreement, arrangement, or conduct.
c.
Bidding and Offers
i.Rarity Finder has absolute discretion in all matters relating to bidding and purchases on auction sites, including, but not limited to, identifying the winning bidder, handling mistakes or errors in bidding, re-opening bidding, canceling the sale, and re-offering the property for sale.
ii.Neither Rarity Finder nor the Seller is liable for any errors in the bidding/buying process.
iii.ALL BIDS/SALES AND OFFERS ARE FINAL and are legally binding commitments on the part of the bidder or buyer.
iv.At the closing time designated on the Rarity Finder website, bidding/buying will be extended for an additional period of time (“Extended Bidding”). If the purchase is made in an auction site, we will adhere to the terms and agreements of said auction site. If the purchase is made on a traditional site, escrow will determine transfer of funds which may take up to 30 days depending on the agreement.
v.Rarity Finder reserves the right, in its sole discretion, to execute written or telephonic bids, but shall have no obligation to do so and shall not be liable for any errors or omissions in executing such bids should it agree to do so.
vi.Rarity Finder may place bids below the reserve on behalf of the buyer, either consecutively or in response to other bids.
ix.Rarity Finder reserves the right, in its sole discretion, to postpone any auction or withdraw any lot before, during, or after the sale; we shall have no liability whatsoever for such withdrawal. Rarity Finder may also, in its sole discretion, extend the closing time for any item.
x.The officers, directors, and employees of Rarity Finder and its parent company and affiliates, including eBay, Inc., may bid in an auction (so long as such individual does not know the reserve, if any) or consign items on the Rarity Finder website as an individual collector outside the scope of their employment or corporate role.
d.
Limited Guarantee and Lot Information
i.Graded and authenticated items – All sales of ungraded items and graded and authenticated items (including, but not limited to, trading cards, comics, video games, memorabilia, and game tickets) encapsulated or certified by a Third-Party Grading or Authentication company (“TPG”) (including, but not limited to, PSA, Beckett (BGS, BVG and BCCG), CGC, WATA, VGA, and SGC) are final and not subject to return.
ii.Representations concerning authenticity or grade on encapsulated or certified items, including any related third-party guarantee, are made by the TPG companies themselves, not by Rarity Finder. Unless otherwise expressly stated to you, you understand that Rarity Finder does not independently test, confirm, verify, or make its own representations concerning authenticity, grade, or the quality or condition of any TPG’s encapsulation services.
iii.Rarity Finder does not guarantee that a TPG’s authentication or certification of an item as genuine is correct or accurate. Neither a difference of opinion between TPG companies about authenticity, nor a TPG’s subsequent reversal of its earlier authentication or certification of an item, is a basis for rescinding a sale of the lot. Any dispute with a TPG relating to the authenticity of an item must be resolved directly with the TPG.
iv.Rarity Finder does not guarantee that a lot graded by a specific TPG will receive the same grade from another TPG. A difference in opinion between TPG companies is not a basis for rescinding a sale of the lot. Any dispute with a TPG relating to the grading of an item must be resolved directly with the TPG.
v.Rarity Finder does not guarantee the TPG’s encapsulation services in general or the quality or condition of any TPG’s case, slab, or holder in particular. Any claims that an item (i) has been improperly encapsulated by a TPG, (ii) is loose or not centered in a TPG’s slab, or (iii) may have been damaged or experienced a reduction in grade due to a TPG’s improper encapsulation, is not a basis for rescinding a sale of the lot. Rather, any dispute with a TPG relating to the encapsulation of an item must be resolved directly with the TPG.
vi.Population reports – Population report information and other lot information listed in the description is accurate up to the time in which a lot is posted for auction and is subject to change. Rarity Finder is not liable if information changes during the auction. Some lots may contain incomplete sets, and the contents listed or described comprise the full extent of the items presented for sale. Potential bidders are encouraged to ask questions prior to bidding, as the sale of each lot is on an “as-is” basis, and all sales are final.
vii.
For all lots other than trading cards, game tickets, comics and video games, and other lots authenticated by a TPG, we guarantee that a lot is accurately described as set out in CAPITALIZED or Bold type in the initial heading in the catalog description of the lot. If, in our reasonable opinion, the CAPITALIZED or Bold type description of the lot is incorrect, and the conditions specified below have been satisfied, we will refund to the original purchaser of record the hammer price paid and any applicable buyer’s premium. This guarantee (“Rarity Finder Guarantee”) is provided to the original purchaser for a period of ninety (90) days from the date of the auction, is solely for the benefit of the original purchaser of record at the auction and may not be transferred to any third party. To claim under the Rarity Finder Guarantee, the original purchaser must:
1.Within five working days of receiving the lot, provide to us via email the details relating to the doubt of accuracy of the CAPITALIZED or Bold type description of the lot and attach and include all related documentation;
2.Return the lot to us by certified mail or trackable delivery, at your expense, in the same condition as at the closing date of the sale and be able to transfer good title to the lot, free of any third-party claims arising after the date of such sale;
3.Provide Rarity Finder with reports regarding the authorship of the lot from two (2) independent and recognized experts in the field, who are reasonably acceptable to Rarity Finder; and
4.Sign a customary settlement and release agreement provided by Rarity Finder. Rarity Finder has the sole discretion to waive any of the above requirements.
viii.
DISCLAIMER OF WARRANTIES. We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation or access to our Services. Bid update and other notification functionality in Rarity Finder’s applications may not occur in real time. Such functionality is subject to delay beyond Rarity Finder’s control.
OTHER THAN THE Rarity Finder GUARANTEE, AS A BIDDER OR PURCHASER OF A LOT, YOU AGREE THAT EACH LOT IS SOLD “AS IS” AND IN THE CONDITION THAT IT IS IN AT THE TIME OF THE AUCTION. AS IT RELATES TO Rarity Finder’S SERVICES AND ANY ITEMS SOLD, NEITHER Rarity Finder NOR THE SELLER MAKES ANY REPRESENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED, INCLUDING AS IT RELATES TO MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, CORRECTNESS OF THE CATALOG OR OTHER IMAGES, OR DESCRIPTIONS OF THE AUTHENTICITY, PHYSICAL CONDITION, GRADE, SIZE, QUALITY, RARITY, IMPORTANCE, MEDIUM, PROVENANCE, EXHIBITIONS, LITERATURE, OR HISTORICAL RELEVANCE OF ANY LOT. ANY AND ALL IMPLIED WARRANTIES, INCLUDING THE IMPLIED WARRANTY OF MERCHANTABILITY AND IMPLIED WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE, HEREBY ARE DISCLAIMED AND EXCLUDED. NO STATEMENT ANYWHERE, WHETHER ORAL OR WRITTEN, WHETHER MADE IN THE CATALOG, AN ADVERTISEMENT, A BILL OF SALE, ONLINE, OR ELSEWHERE, CAN BE RELIED ON BY YOU OR OTHERS TO BE A WARRANTY OR REPRESENTATION, AND SHALL NOT GIVE RISE TO THE LIABILITY OF Rarity Finder OR THE SELLER. IMAGES AND CONDITION REPORTS ARE NOT MEANT TO BE COMPLETE OR A SUBSTITUTE FOR ASSESSING THE CONDITION OF THE LOT YOURSELF OR THROUGH AN AGENT YOU MAY ENGAGE; THEY ARE FOR GUIDANCE ONLY. NOTHING IN ANY WRITTEN OR ORAL DESCRIPTION OF A LOT CONSTITUTES A REPRESENTATION OF FACT; THEY REPRESENT THE OPINIONS HELD BY Rarity Finder.
e.
Winning Bidder’s Obligations
i.Subject only to these Conditions of Sale, the closing of the lot establishes a binding contract between Rarity Finder, on behalf of the Seller, and the winning bidder. Rarity Finder will email an invoice in the name of, and with the address registered for the bid, to the winning bidder, which cannot be transferred to other accounts, names, or addresses without Rarity Finder’s explicit agreement in writing.
f.
Payment
i.Buyer’s Premium – A buyer’s premium will be added to the hammer price and is payable by the purchaser as part of the total purchase price for the benefit of Rarity Finder. The hammer price is the winning bid for an item. This buyer’s premium is calculated as twenty-two percent (22%) of the hammer price (with a minimum of $19).
ii.Unless otherwise agreed by Rarity Finder in writing, the winning bidder must pay the full price invoiced (including buyer’s premium, applicable tax, and other amounts due), so that it is received by Rarity Finder in good, cleared funds by the invoice due date. Rarity Finder will email the invoice to the buyer after the close of the auction, with invoices due seven (7) days after the date of the invoice or such other time communicated to you in writing by Rarity Finder.
iii.
The following payment processing fees may apply:
1.For debit or credit card payments, a payment processing surcharge of three percent (3.0)% of the invoice total for all invoices paid by card
2.For payments by ACH, wire, cash, check, money orders, or credit balance, no fee
iv.Rarity Finder has the right to refuse to accept payment if, in its sole discretion, it has concerns about the accuracy of any of the representations and warranties applicable to bidder, payment comes from a source other than the registered winning bidder identified by Rarity Finder as the purchaser of record, or if Rarity Finder believes that accepting the payment would be unlawful or may subject Rarity Finder to any liability.
v.
Without prejudice to any rights the Seller may have, if you fail to pay the full purchase price or other amount invoiced (including buyer’s premium, applicable tax, and other amounts due) for a lot or other outstanding balance due to Rarity Finder or its affiliates in good, cleared funds by the invoice due date or other applicable due date, we may, in our sole discretion, exercise one or more of the following remedies:
1.Apply a late fee of three percent (3.0%) of the outstanding hammer price(s) and buyer’s premium. One point five percent (1.5%) simple interest may be charged on the outstanding hammer price(s) and buyer’s premium monthly until the outstanding balance has been completely paid, provided that we will use good faith efforts to notify if we charge such additional interest payment;
2.Pay the full purchase price or other amount invoiced (including buyer’s premium, applicable tax, and other amounts due) for the lot in full using the credit or debit card that you provided us at the time you registered to bid;
3.Cancel the sale of the lot, retaining any partial payment as liquidated damages;
vi.To the extent you have an existing balance owed to Rarity Finder or any of its affiliates at the time that you make a payment, Rarity Finder will have the right to determine in its sole and absolute discretion how any payments received will be applied, including to decide which payments apply to which balances, obligations, or associated lots and the order and amounts of any such payment applications.
g.
Taxes
i.Purchaser will be required to pay applicable sales tax on the total purchase price, including the buyer’s premium, shipping, handling, and insurance on any property delivered to the state or country in which the purchaser resides or does business unless the purchaser provides a valid resale/exemption certificate. In addition, unless the purchaser provides Rarity Finder with a valid resale/exemption certificate prior to shipment, the purchaser will be required to pay applicable sales tax where Rarity Finder determines, in its sole discretion, that it is legally obligated to collect such tax.
ii.If the lot is delivered to a state or country where Rarity Finder is not required to collect sales tax, it is the responsibility of the buyer to self-assess any sales tax, use tax, or valued-added tax (VAT) and remit it to the taxing authorities in that state or country.
h.
Title and Record of Sale
i.The record of sale kept by Rarity Finder is absolute and final in all disputes. In the event of a discrepancy between any records or messages provided to you and the record of sale kept by Rarity Finder, the record of sale will govern. Rarity Finder reports the results of its auctions on its website. Such reported sales results may not reflect promotional or other discounts that apply against the amount due for a lot.
ii.Title to, and right to possess, a lot will not pass until Rarity Finder has received the full purchase price (inclusive of the buyer’s premium, taxes, and any other costs identified by Rarity Finder) in good, cleared funds. Rarity Finder is not obligated to release a lot to the winning bidder unless he, she, or they have paid the full purchase price (inclusive of the buyer’s premium, taxes, and any other costs identified by Rarity Finder).
i.
Shipping and Collection of Property
i.No lot will be released or shipped to a purchaser until Rarity Finder has received full payment (inclusive of purchase price, the buyer’s premium, taxes, and any other costs identified by Rarity Finder, as well as the payment of any other amounts owed to Rarity Finder or its affiliates) in good, cleared funds. For the avoidance of doubt, a purchase with Rarity Finder shall be considered a separate and distinct transaction from any other transaction that may occur between a consignor of goods under an agreement with Rarity Finder.
ii.For those lots that are shipped to the purchaser, Rarity Finder will include in the invoice costs for packing, shipping, and insuring the lot(s). Where the applicable invoice is greater than one thousand USD ($1,000.00), an adult signature will be required in order to accept delivery of the lot(s). Shipped lots shall be insured and charged at ninety cents ($0.90) per one hundred USD ($100) of the price realized (hammer price plus buyer’s premium) for loss or damage to a lot during transit and prior to delivery. You acknowledge that Rarity Finder shall not insure or otherwise be liable for any other loss or damage to the lots, including, without limitation, any loss arising out of theft during transit or after delivery. Buyers are responsible for filing any claims with carriers for damaged or lost shipments.
iii.Extremely large or heavy items may require special shipping arrangements; Rarity Finder recommends that bidders contact us before bidding on such items to determine the approximate shipping cost.
iv.Following purchase of a lot and transfer of title, you may elect to have the item maintained for you at the PSA Vault facility or sent to the PSA Vault facility. All items maintained and/or sent to the PSA Vault facility at your direction are subject to the PSA Vault Terms of Service available at https://www.collectors.com/vault-terms and you are responsible for any costs PSA Vault charges for such storage. You may also choose to have your items sent to a different vault of your choice. In which case, that vault provider’s terms and conditions apply and you are responsible for any costs that vault provider charges for storage. For the avoidance of doubt, Rarity Finder (including its parent, eBay, Inc., and other affiliates) does not own or operate the PSA Vault or any other vault and will not be liable for any claims or disputes arising out of those vaulting services. You must resolve any dispute relating to the vaulting of an item directly with the third party providing your vaulting services.
v.Purchasers who have completed full payment in good, cleared funds may arrange to pick up the lot at Rarity Finder’s Colorado location by appointment only, at least twenty-four (24) hours in advance. In such instances, Rarity Finder will collect Colorado sales tax from the purchaser unless the purchaser has a valid Colorado resale/exemption certificate. Please note that lots cannot be picked up in person at or immediately after the conclusion of a live auction.
4.Notice of Claims of Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
You can report alleged copyright infringements via a Digital Millennium Copyright Act (DMCA) notification sent to the Rarity Finder designated agent (contact information below) by providing ALL of the following information:
◦A physical or electronic signature of the person authorized to act on behalf of the owner of the copyright that is allegedly infringed.
◦Identification or description of the copyrighted work that you claim has been infringed.
◦Identification or description of where the material that you claim is infringing is located on the Rarity Finder site, with enough detail that we may find it on the Rarity Finder site.
◦Your address, telephone number, and email address
◦A statement by you that you have a good-faith belief that the use of the allegedly infringing material isn’t authorized by the copyright owner, its agent, or the law.
◦A statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Pursuant to the DMCA, in appropriate circumstances, Rarity Finder may suspend and/or terminate the accounts of repeat copyright infringers.Contact the designated Rarity Finder agent by mail at Rarity Finder Auctions, LLC, 916 McClure Way, Erie, CO 80516, Attention: Copyright Notice Agent, by email at sales@rarityfinder.com
5.Content
The names “Rarity Finder,” “Rarity Finder Auctions,” and other Rarity Finder marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Rarity Finder in the U.S. and other countries. They may not be used without the express written prior permission of Rarity Finder.
6.Authorization to Contact You; Recording Calls; Analyzing Message Content
Rarity Finder may contact you using autodialed or prerecorded calls and text messages at any telephone number you have provided to us, to (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Rarity Finder may also contact you using autodialed or prerecorded calls and text message for marketing purposes (i.e., offers and promotions), if you consent to such communications. Our collection, use, disclosure, retention, and protection of your personal information is governed by our User Privacy Notice. As described in our User Privacy Notice, Rarity Finder may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and autodialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits. You may change your marketing communications preferences for calls at any time by unchecking the “Receive transactional and marketing” SMS checkbox on your Account Details page. You may also opt-out of a specific text marketing campaign by replying “STOP” to such marketing text message.Rarity Finder may share your telephone number with its authorized service providers as stated in our User Privacy Notice. These service providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by Rarity Finder to carry out the purposes identified above.Rarity Finder may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Rarity Finder or its agents for quality control and training purposes, or for its own protection.
7.Sanctions Compliance
By bidding or consigning with Rarity Finder, you represent and warrant that:
a.Neither you individually nor any person who owns, partly owns, or controls the entity (if “you” are an entity) are subject to trade sanctions, embargoes, or any other restriction on trade in the jurisdiction in which you or it does business, including but not limited to the laws of the European Union, the laws of England and Wales, or the laws and regulations of the United States (collectively, “Sanctioned Person(s)”);
b.If you have Rarity Finder’s prior written consent to act as agent, your principal is not a Sanctioned Person(s), nor owned (in whole or in part) by a Sanctioned Person(s), nor controlled by a Sanctioned Person(s);
c.None of the purchase price will be funded by any Sanctioned Person(s), nor will any party involved in the transaction, including, but not limited to, financial institutions, freight forwarders or other forwarding agents, or any other party, be a Sanctioned Person(s), nor owned (in whole or in part) by a Sanctioned Person(s), nor controlled by a Sanctioned Person(s), unless such activity is authorized in writing by the government authority having jurisdiction over the transaction or in applicable law or regulation; and
d.If you are the consignor, you will not direct Rarity Finder to make payment to any Sanctioned Person.
8.Limitation of Liability
TO THE EXTENT PERMITTED BY APPLICABLE LAW, IN NO EVENT WILL Rarity Finder (INCLUDING OUR PARENT, SUBSIDIARIES, AND AFFILIATES, AND OUR AND THEIR OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY CLAIM AT LAW OR IN EQUITY FOR ANY CONSEQUENTIAL DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO, LOSS OF MONEY, INTEREST, GOODWILL, REPUTATION, OR PROFITS, OTHER INTANGIBLE LOSSES, ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR PUNITIVE DAMAGES), AND ALL SUCH DAMAGES OR LOSSES ARE EXPRESSLY EXCLUDED BY THIS USER AGREEMENT WHETHER OR NOT THEY WERE FORESEEABLE OR Rarity Finder WAS ADVISED OF SUCH DAMAGES OR LOSSES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, WE (INCLUDING OUR PARENT, SUBSIDIARIES, AND AFFILIATES, AND OUR AND THEIR OFFICERS, DIRECTORS, AGENTS AND EMPLOYEES) ARE NOT LIABLE, AND YOU AGREE NOT TO HOLD US RESPONSIBLE, FOR ANY DAMAGES OR LOSSES (INCLUDING, BUT NOT LIMITED TO LOSS OF MONEY, INTEREST, GOODWILL, REPUTATION, OR PROFITS, OTHER INTANGIBLE LOSSES, OR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES, OR PUNITIVE DAMAGES) RESULTING DIRECTLY OR INDIRECTLY FROM:
◦your use or inability to use our Services;
◦delays or disruptions in our Services
◦any errors or failures to execute bids or any errors or failures caused by (i) a loss of connection to the internet or to Rarity Finder’s online platform or website by either Rarity Finder or a bidder; (ii) a breakdown or problem with Rarity Finder’s online platform software or website; (iii) a breakdown or problem with a bidder’s internet connection, mobile network or computer; or (iv) non-internet related issues;
◦viruses or other malicious software obtained by accessing or linking to our Services;
◦glitches, bugs, errors, or inaccuracies of any kind in our Services;
◦damage to your hardware device from the use of any Rarity Finder Service;
◦a suspension or other action taken with respect to your account or breach of the Using Rarity Finder section above;
◦your need to modify practices or behavior, or your loss or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer or warranties or the exclusion of damages, so such disclaimers and exclusions may not apply to you.REGARDLESS OF THE PREVIOUS PARAGRAPHS, IF WE ARE FOUND LIABLE, OUR LIABILITY AND THE SELLER’S LIABILITY TO YOU OR TO ANY THIRD PARTY SHALL NOT EXCEED THE PURCHASE PRICE ACTUALLY PAID.
9.No Investment Advice; Risk of Loss
Rarity Finder does not provide, and neither our Services nor the content in our lots or marketing materials constitutes legal, tax, investment, financial, professional, or other advice. You alone assume sole responsibility of evaluating the merits and risks associated with your use of our Services and any of the content in our lots or marketing materials before making any decisions based on such content.There are risks associated with buying, selling, trading, holding, or otherwise engaging with collectible items. These risks include risk of loss. A collectible’s past financial performance is not a guarantee of future financial performance.
10.Release
If you have a dispute with one or more users, you release us (and our affiliates and parent company, and our and their respective officers, directors, employees, and agents) from claims, demands, and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering this release, you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect in your favor at the time of agreeing to this release.
11.Indemnity
You will indemnify and hold us (including our parent, affiliates, and subsidiaries, as well as our and their respective officers, directors, employees and agents) harmless from any claims, costs, losses, damages, fees, fines, penalties and other liabilities and expenses , including reasonable legal fees, made by any third party against us due to or arising out or relating to (a) your breach of this User Agreement; (b) your improper use of our Services or your breach of any law, regulation, or the rights of a third party; (c) any transaction or potential transaction for an item you purchased or bid on through a Rarity Finder auction; (d) any error, fraud, dispute, return, reversal, refund, chargeback, adjustment, or other similar action with respect to any transaction or purported transaction; and (e) your negligence, willful misconduct, or fraud.
12.Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND Rarity Finder HAVE AGAINST EACH OTHER ARE RESOLVED.In this Legal Disputes section, the term “related third parties” includes your and Rarity Finder’s respective, affiliates, subsidiaries, parent companies, predecessors, successors, assigns, as well as your, Rarity Finder’s and these entities’ respective employees and agents.You and Rarity Finder agree that any and all claims or disputes at law or equity that have arisen, or may arise, between you and Rarity Finder (or any related third parties) that relate in any way to or arise out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of Rarity Finder or its agents, or any products or services sold, offered, or purchased through the Services (“Claims”), will be resolved in accordance with the provisions set forth in this Legal Disputes section. Our agreement to arbitrate is retroactive in effect and applies to all Claims regardless of whether they accrued before or after this agreed dispute resolution procedure went into effect.
a.
Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Colorado, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and Rarity Finder.
b.
Agreement to Arbitrate
You and Rarity Finder each agree that any and all disputes or claims that have arisen, or may arise, between you and Rarity Finder (or any related third parties) that relate in any way to or arise out of this or previous versions of the User Agreement or the Rarity Finder Conditions of Sale, your use of or access to our Services, the actions of Rarity Finder or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final, binding, and confidential arbitration, rather than in court, subject to any exemptions listed in this section. Regardless of the forum, the prevailing party shall be entitled to recover reasonable attorneys’ fees and costs from the non-prevailing party in any dispute.The Federal Arbitration Act (“FAA”) and, to the extent not inconsistent with the FAA, the law of the State of Colorado without regard to principles of conflict of laws govern the interpretation and enforcement of this Agreement to Arbitrate.
i.
Exemption – Small Claims Court
Notwithstanding the parties’ agreement to resolve all disputes through arbitration, either party may seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction and on an individual (non-class) basis only and only after attempting to resolve the Claim informally pursuant the “Arbitration Procedures” section below. If a party initiates an arbitration asserting a Claim that falls within the jurisdiction of a small claims court, the other party may, in its discretion, require that the arbitration demand be withdrawn and that the claim be filed in small claims court.Any dispute about whether a claim falls within any given small claims court’s jurisdiction will be resolved by that court, not by an arbitrator. In the event of any such jurisdictional dispute, the arbitration proceeding will remain closed unless and until the small claims court issues a decision that the claim should proceed in arbitration.
ii.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND Rarity Finder AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER (OR ANY RELATED THIRD PARTIES) ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND Rarity Finder AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, 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 SOUGHT BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT BE GRANTED TO OR AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim or a particular request for a remedy (such as a request for injunctive relief), then that claim or that remedy request (and only that claim or that remedy request) must be severed from the arbitration and may be brought in court (pursuant to Section 12(c) below), subject to your and Rarity Finder’s right to appeal the court’s decision. All other claims will be arbitrated.
iii.
Arbitration Procedures
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individualized basis that a court can award to an individual. An arbitrator will apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section b(ii) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide as set forth under Section 12(c) belowThe arbitration will be administered by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Commercial Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. Absent mutual written agreement of the parties, and to the extent the AAA’s Commercial Arbitration Rules do not apply, the AAA shall decide which AAA rules apply to the arbitration. The AAA’s rules are available at www.adr.org and www.icdr.org. In the event that the AAA is unavailable to administer the arbitration, another administrator will be selected by the parties or, if the parties cannot reach agreement, the court (pursuant to Section 12(c) below) shall select the administrator.A party who intends to seek arbitration must first send to the other, by certified mail, a valid Notice of Dispute (“Notice”), which may be downloaded at this link, and attempt to negotiate to resolve any claim in good faith before starting a formal proceeding. The Notice to Rarity Finder must be sent to Rarity Finder Auctions, LLC, Attn: Litigation Department, Re: Notice of Dispute, Rarity Finder will send any Notice to you to the physical address we have on file associated with your Rarity Finder account; it is your responsibility to keep your physical address up to date. To be valid, you must personally sign the Notice and include a description of the nature and basis of the claims you are asserting, the specific relief sought, and the email address and phone number associated with your account.If you and Rarity Finder are unable to resolve the claims described in a valid Notice within 30 (thirty) days after Rarity Finder receives that Notice, you or Rarity Finder may initiate arbitration or small claims proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Rarity Finder at the following address: Rarity Finder Auctions, LLC, 8. For any claim that proceeds in arbitration or small claims court, you waive formal service of process. Instead, papers will be emailed to you at the email address that you used to register with Rarity Finder. You explicitly waive any requirements for or rights to foreign service of process under the Hague Service Convention or other applicable law or treaty.The arbitration shall be held in the State of Colorado or other mutually agreed upon location. Where no disclosed claims or counterclaims exceed $25,000, the dispute shall be resolved by the submission of documents only, subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Rarity Finder may attend remotely, unless the arbitrator requires otherwise. The language of the arbitration will be English.The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but shall be bound by rulings in prior arbitrations involving the same Rarity Finder user to the extent required by applicable law. The arbitrator’s award shall be final and binding, and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
iv.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If you complied with the Notice of Dispute procedures of Section 3 of this Agreement (“Arbitration Procedures”), and the value of the relief sought is $10,000 or less, at your request, Rarity Finder will pay all administration and arbitrator fees associated with the arbitration. Any request for payment of fees by Rarity Finder should be submitted by mail to the AAA along with your Demand for Arbitration and Rarity Finder will make arrangements to pay administration and arbitrator fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Rarity Finder for all fees associated with the arbitration that have been paid by Rarity Finder on your behalf that you otherwise would have been obligated to pay under the AAA’s rules.
v.
Severability
With the exception of any of the provisions in Section b(ii) of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
vi.
Opt-Out Procedure
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (“OPT-OUT NOTICE”). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE AGREEMENT FOR THE FIRST TIME (“OPT-OUT DEADLINE”). YOU MUST MAIL THE OPT-OUT NOTICE TO Rarity Finder AUCTIONS, LLC., ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, 916 McClure Way, Erie, CO 80516.You must include the following information in your Opt-Out Notice: name, address (including street address, city, state, and zip code), and the user ID(s) and email address(es) associated with the Rarity Finder Service account(s) to which the opt-out applies, and a clear statement that you wish to opt out of the Arbitration Agreement. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of this User Agreement and its Legal Disputes section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us. Any Opt-Out Notice postmarked after the Opt-Out Deadline will not be valid and you will be required to pursue your Claim in arbitration.
vii.
Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Rarity Finder prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Rarity Finder. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on Rarity Finder at least thirty (30) days before the effective date of the amendments and by providing notice by email. If you do not agree to these amended terms, you may close your account within the 30-day period and you will not be bound by the amended terms.
c.
Judicial Forum for Legal Disputes; Jury Trial Waiver
If the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute between you and Rarity Finder will be resolved exclusively by a state or federal court located in Runnemede, Colorado. You and Rarity Finder agree to submit exclusively to the personal jurisdiction of the courts located within Camden County, Colorado for the purpose of litigating all such claims, disputes, or matters. If a Claim proceeds in court rather than in arbitration, YOU AND WE EACH WAIVE ANY RIGHT TO A JURY TRIAL.
13.General
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.rarityfinder.com Headings are for reference purposes only and do not limit the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.We reserve the right to update and make changes to this User Agreement at any time by updating this posting or providing notice to you electronically or as otherwise permitted under applicable law. Updates and changes take effect when we post them. Your continued access to or use of your account and your bidding on an item, consigning lots or otherwise using our Services after any updates and/or changes constitutes your acceptance to the User Agreement as modified. It is your responsibility to periodically visit this page and review the User Agreement for updates.Without limiting Rarity Finder’s ability to refuse, modify, or terminate all or part of our Services, Rarity Finder may also terminate this Agreement with anyone at any time for any reason, at our sole discretion, by giving notice of such termination.The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the Rarity Finder Service.If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.Except as otherwise specifically provided for in a separate, fully executed, authorized written agreement between Rarity Finder and you, the User Agreement and all terms and policies posted through our Services set forth the entire understanding and agreement between you and Rarity Finder, and supersede all prior understandings and agreements of the parties.The following sections survive any termination of this User Agreement: Conditions of Sale, Content, Disclaimer of Warranties; Limitation of Liability; No Investment Advice, Risk of Loss; Release, Indemnity, Legal Disputes, and General.If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.