These General Terms and Conditions (this “Agreement”) are by and between you (“you”) and Cubby Shop LLC, a Delaware limited liability company d/b/a KidsTrade (“Cubby Shop”, “we”, or “us”).
Your understanding and acceptance of this Agreement is a condition required for your and your children’s (“child” and “children” refer to any and all of your children or legal wards who are minors) use of the Cubby Shop Site and Service, and is binding on you. This Agreement may be modified from time to time by us, and will be binding when posted on the Site. You will receive reasonable notice of any material changes to this Agreement.
Additional definitions applicable to this Agreement are at the end of this Agreement.
You hereby agree to maintain the security of your password and all other information assigned to you for the purpose of verifying the integrity of the Site. You are responsible for maintaining the confidentiality of all passwords and unique identifiers, and are fully responsible for all activities that occur under your password or user name. You agree promptly to notify Cubby Shop of any unauthorized use of your password or account or any other breach of security. Cubby Shop cannot and will not be liable for any loss or damage arising from your failure to comply with this requirement.
You recognize that you are fully responsible for: (i) the online conduct of your child; (ii) controlling your child’s access to and use of the Services; and (iii) the consequences of any misuse of the Services by your child.
Cubby Shop shall not be responsible for monitoring your child’s use of the Site, nor shall we be responsible for Listings on the Site that are, in your opinion, inappropriate for your child’s use. For example: a music album may contain explicit language. A video game may be graphic. A toy may contain dangerous or hazardous elements. Cubby Shop shall have no liability for damages on account of your child’s use of any of the items acquired through the Site. You are solely responsible for the goods that come into your child’s possession.
In concert with your creation of a Profile, Cubby Shop may collect your credit card information and store it on file for use in authentication and for the purpose of processing payments to Cubby Shop for the Services, per the following schedule:
The settings which govern preferences for your child’s access and use of the Site (also referred to as “Boundaries”) are located on the parent’s dashboard page (the “Parent Dashboard”): “LINK”.
Cubby Shop has set the initial default Boundaries to infer your consent and permit certain account activities and Transactions to take place if the parent fails to object within 24 hours after notice. Please be aware, unless you modify the Boundary settings on your Parent Dashboard, your inaction for 24 hours after notified of Listings and Trades will constitute parental approval; provided that your approval shall not be deemed given without your express consent where Cubby Shop collects, uses, or discloses your child’s private information.
You agree to provide Cubby Shop with sufficient information about you to allow Cubby Shop to maintain the security of the Site; and you agree to participate in the setting and maintenance of the Boundaries, which have been constructed to protect your and your child’s privacy, and to maintain the integrity of the Site. The pre-set Boundaries include, but are not limited to:
You may choose to add various additional checkpoints by modifying the default Boundaries established on the Boundaries Page within the Parent Dashboard.
Cubby Shop actively monitors its Listings. If you have a complaint about a Listing, please notify us via the Report action or firstname.lastname@example.org.
Listings shall be subject to the following conditions. If Cubby Shop believes that there may be a violation of these conditions, we reserve the right to remove the Listing at issue or take other action, including but not limited to, terminating a Party’s membership to the Site.
You hereby authorize us to contact you, at the email address(es) and telephone number(s) you provide, regarding the following issues:
We will not share your contact information with any third party, except for the purpose of debt collection regarding any fees owed to us under this or any other agreement between you and Cubby Shop, and if such disclosure is required by law.
You acknowledge and agree that all Content, whether posted or transmitted, is the sole responsibility of the person or owner of the Profile from which such Content originated. This means that you, and not Cubby Shop, are entirely responsible for all Content that you or your children upload, post, e-mail or otherwise transmit via the Service.
The Service may only be used for the intended purpose for which this Service is being made available. The intended purpose of Service is to provide an online marketplace for children.
You agree not to:
Use of any trademark, service mark, or name of Cubby Shop for commercial purposes is forbidden without written consent.
We work hard to keep our Site and Services functioning properly, but we cannot guarantee the availability or sufficiency of our Site or Services. The Services may be subject to interruptions, errors, or delays outside of our control.
You hereby agree that you are making use of the Site and Services at your own risk, and that they are being provided to you on an “AS-IS” and “AS AVAILABLE”basis. To the extent permitted by applicable law, we hereby disclaim all express or implied warranties, including implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
We make no representation or warranty that the Site or Services will be suitable for use by your child.
In addition, neither we nor our affiliates, officers, directors, agents, employees, or assigns shall be liable for:
Notwithstanding the foregoing, if we are found to be liable for damages to you under any theory of liability, our liability to you or any third party shall be limited to the greater of (1) your payments to us in the twelve (12) months preceding the filing of the claim at issue, or (2) $100.
If you have a dispute with one or more Users or third parties, you release us (and our affiliates, officers, directors, agents, employees, shareholders and assigns) from any and all claims, demand, or damages of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections, statutory or otherwise, that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL CUBBY SHOP (NOR OUR AFFILATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SHAREHOLDERS OR ASSIGNS) BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM THE USE OR INABILITY TO USE THE SITE, INCLUDING WITHOUT LIMITATION USE OF OR RELIANCE ON THE SITE, INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, OR ANY OTHER FAILURE OF PERFORMANCE.
YOU HEREBY RELEASE AND WAIVE ANY AND ALL CLAIMS AND/OR LIABILITY AGAINST CUBBY SHOP (AND OUR AFFILATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SHAREHOLDERS AND ASSIGNS) ARISING FROM OR IN CONNECTION WITH YOUR OR YOUR CHILDREN’S USE OF CUBBY SHOP. YOU ALSO AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS, CUBBY SHOP (AND OUR AFFILATES, OFFICERS, DIRECTORS, AGENTS, EMPLOYEES, SHAREHOLDERS AND ASSIGNS), FROM AND AGAINST, ANY AND ALL CLAIMS OR LIABILITY, INCLUDING COSTS AND ATTORNEYS FEES, ARISING FROM OR IN CONNECTION WITH YOUR OR YOUR CHILD’S USE OF THE SITE OR SERVICE OR FAILURE TO ABIDE BY APPLICABLE LAW.
PLEASE READ THIS SECTION CAREFULLY, AS IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS BETWEEN YOU AND CUBBY SHOP WILL BE RESOLVED.
You and Cubby Shop agree that any claim arising from this Agreement, any other agreement between you and Cubby Shop, or your use of the Site or Services will be resolved in accordance with this Section.
Applicable Law: You agree that any claim or dispute arising between you and Cubby Shop shall be governed by the laws of the State of New Jersey, without reference to the conflict of laws principles of the State of New Jersey.
Agreement to Arbitrate: You and Cubby Shop agree that any claim or dispute arising between you and Cubby Shop regarding this Agreement, any other agreement between you and Cubby Shop, or your use of the Site or Services shall be resolved through final and binding arbitration in the State of New Jersey, rather than in court, provided that you may file a qualifying claim in small claims court, so long as such claim stays in small claims court and is advanced on an individual, non-class basis. The Federal Arbitration Act shall govern the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
You and Cubby Shop 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 or representative action or proceeding. Unless both you and Cubby Shop 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, or class proceeding. Also, the arbitrator may award relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief necessitated by such party’s individual claim. No relief awarded may affect other Users.
An arbitrator shall apply the terms of this Agreement and any other agreement between you and Cubby Shop as a court would. A court of competent jurisdiction shall decide the issue of arbitrability, if applicable.
The arbitration shall be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, as modified by this Agreement, including AAA’s Supplementary Procedures for Consumer Related Disputes.
A party seeking arbitration must first send to the other, by certified mail, a completed Notice of Dispute. Notices of Dispute against Cubby Shop must be sent to: Cubby Shop LLC, 301 N. Harrison St., Suite 9F, #177, Princeton, NJ 08540.
The forum of arbitration shall be Mercer County, New Jersey.
If a dispute cannot be resolved within 30 days after a notice is sent, either party may initiate arbitration proceedings. Arbitration forms may be found on the AAA’s website at: www.adr.org. The initiating party must send the initiation form certified mail to the other party.
The arbitrator shall decide the substance of all claims in accordance with the laws of the State of New Jersey, 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 the principles of claim preclusion and issue preclusion.
Severability; Judicial Forum
In the event 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.
In the event an arbitrator or court finds this Agreement to Arbitrate unenforceable such that your case will not be tried by an arbitrator, you agree that all claims brought against Cubby Shop shall be brought in the Federal District Court for the District of New Jersey, or if there be no subject matter jurisdiction in such forum, in the Superior Court of New Jersey, Mercer Vicinage; and you hereby submit to the personal jurisdiction of such court.
Cubby Shop is located at 301 N. Harrison St., Suite 9F, #177, Princeton, NJ 08540.
Except as otherwise provided in this Agreement, if any provision of this 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 Agreement, by providing notice of such assignment.
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 may amend this Agreement at any time by posting the amended terms on www.Cubbyshop.com. Our right to amend this Agreement includes the right to modify, add to, or remove terms in the Agreement. We will provide you 30 days notice by posting the amended terms. Additionally, we will notify you through your Account. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the Agreement through an electronic click-through. This Agreement may not otherwise be amended except through mutual agreement by you and a Cubby Shop representative who intends to amend this Agreement and is duly authorized to agree to such an amendment.
The policies posted on our Sites may be changed from time to time. Changes take effect when we post them on the Cubby Shop Site.
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Indemnity, and Legal Disputes.
“Account” is an account on the Site created and monitored by you for the benefit of your child.
“Circle” means those Users with whom your child has established a virtual connection through the Site, and thereby authorized to view your child’s Profile and other information.
“Content” means information, text, music, sound, photographs, pictures, graphics, video, messages, files, or other materials.
“Counterparty” means a User with whom another User corresponds regarding a Transaction, or any other matter.
“Listing” means any offer to consider or enter into a Transaction.
“Message” means Content delivered to a User through the Site, from Cubby Shop or from another User, or Content sent by a User to Cubby Shop or another User.
“Parent” means parent or legal guardian.
“Party” means an adult parent or legal guardian of a child engaged in a Transaction. The parent or legal guardian is the actual legal party to the Transaction; minors cannot be parties to contracts.
“Profile” means a page and/or personal listing customized by a User and approved by that User’s parent or legal guardian, which page may include the User’s User Name, Listings, requests, wish lists, and interests. Please see Child’s Dashboard.
“Purchase” means a monetary transaction under which one User purchases an item from another User through the Site and in accordance with all applicable Cubby Shop terms and agreements.
“Service” means an online marketplace.
“Site” means “kidstrade.com” or its affiliated websites, mobile apps, web apps and other means established by Cubby Shop for accessing the Service.
“Trade” means a transaction between two (or more) Users where items are exchanged through the Site and in accordance with all applicable Cubby Shop terms and agreements.
“Transaction” means a Purchase or Trade.
“User” means an individual who has access to the Site.
“User Name” means an alias created for use on the Site.