TERMS OF SERVICE
PLEASE BE ADVISED THAT THIS AGREEMENT CONTAINS AN ARBITRATION PROVISION AND CLASS ACTION WAIVER WHICH LIMIT YOUR RIGHT TO HAVE A DISPUTE HEARD IN COURT. PLEASE READ THIS AGREEMENT AND THE ARBITRATION PROVISION AND CLASS ACTION WAIVER BELOW CAREFULLY.
DESCRIPTION OF SERVICES
In the Site, CelSell provides users with access to sales of luxury resale items and art online and related services ("the Service"). You are responsible for obtaining access to the Site, and that access may involve third-party fees (such as Internet service provider or airtime charges). In addition, you must provide and are responsible for all equipment necessary to access the Site.
LICENSE AND SITE ACCESS
CelSell grants you a limited license to access the Site and Service for personal use. This license does not include any downloading or copying of account information for the benefit of another vendor or any other third party; caching, unauthorized hypertext links to the Site and the framing of any Content (defined below) available through the Site, uploading, posting, or transmitting any content that you do not have a right to make available (such as the intellectual property of another party); uploading, posting, or transmitting any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; any action that imposes or may impose (in CelSells sole discretion) an unreasonable or disproportionately large load on CelSell"s infrastructure; or any use of data mining, robots, or similar data gathering and extraction tools. You may not bypass any measures used by CelSell to prevent or restrict access to the Site or Service. Any unauthorized use by you shall terminate the permission or license granted to you by CelSell.
You are not permitted to access the Service or Site if you are under the age of 18 or if your account has been suspended or removed by CelSell for any reason. You may not have more than one active account. Additionally, you are prohibited from selling, trading, or otherwise transferring your RealReal account to another party. If you do not meet the foregoing eligibility requirements, you may not use the Service or the Site.
You represent and warrant that you are of legal age to form a binding contract and are not a person barred from receiving services under the laws of the United States or any other applicable jurisdiction. You also agree to provide true, accurate, current and complete information about yourself as prompted by the Site's registration form. If you provide any information that is untrue, inaccurate, not current or incomplete (or becomes untrue, inaccurate, not current or incomplete), or CelSell has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, CelSell has the right to suspend or terminate your account and refuse any and all current or future use of the Site and Service (or any portion thereof). If you use the Site or Service, you are responsible for maintaining the confidentiality of your account and password, and for restricting access to your computer. You agree to accept responsibility for all activities that occur under your account or password. Because of this, we strongly recommend that you exit from your account at the end of each session. You agree to notify CelSell immediately of any unauthorized use of your account or any other breach of security. CelSell reserves the right to refuse service, terminate accounts, or remove or edit content in its sole discretion for any reason or no reason.
The Site and Service may provide you and other users with the ability to send messages or post content (together, "Postings") to or for other users and non-users. CelSell is under no obligation to review any Postings and assumes no responsibility or liability relating to any such Postings. Notwithstanding the above, CelSell may from time to time monitor the Postings on the Site or Service and may decline to accept and/or remove any Postings. You acknowledge that you are responsible for any Postings you may submit through the Site or Service, including the legality, reliability, appropriateness, originality and copyright of any such Postings. You may not upload to, distribute or otherwise publish through this Site any Posting that:
- is confidential, proprietary, invasive of privacy or publicity rights, infringing on intellectual property rights, unlawful, harmful, threatening, false, fraudulent, libelous, defamatory, obscene, vulgar, profane, abusive, harassing, hateful, racially, ethnically or otherwise objectionable, including, but not limited to any content that encourages conduct that would constitute a criminal offense, violates the rights of any party or otherwise gives rise to civil liability or otherwise violates any applicable U.S. or foreign laws;
- may contain software viruses or malware;
iii. contains advertisements or solicitations of any kind, or other commercial content;
- is designed to impersonate others;
- contains personal information (such as messages that include phone numbers, Social Security numbers, payment card numbers, account numbers, addresses or employer references), except where we expressly ask you to provide such information;
- contains messages by non-spokesperson employees of CelSell purporting to speak on behalf of CelSell or containing confidential information or expressing opinions concerning CelSell;
vii. contains messages that offer unauthorized downloads of any copyrighted, confidential or private information;
viii. contains multiple messages placed within individual folders by the same user restating the same point;
- contains chain letters of any kind; or
- contains identical (or substantially similar) messages to multiple recipients advertising any product or service, expressing a political or other similar message, or any other type of unsolicited commercial message; this prohibition includes but is not limited to (a) using the invitation functionality that may be available on the Site to send messages to people who do not know you or who are unlikely to recognize you as a known contact; (b) using the Site to connect to people who do not know you and then sending unsolicited promotional messages to those direct connections without their permission; or (c) sending messages to distribution lists, newsgroup aliases or group aliases.
AUTHENTICATION AND BRANDS
Brands identified on the Site are not involved in the authentication of the products being sold, and none of the brands sold assumes any responsibility for any products purchased from or through the website. Brands sold on the Site are not partnered or affiliated with CelSell in any manner. However, CelSell fully cooperates with brands seeking to track down the source of counterfeit items, which includes revealing the contact information of consignors submitting counterfeit goods. See www.therealreal.com/authenticity.
DISCLAIMER OF WARRANTY
ALL CONTENT, PRODUCTS, AND SERVICES ON THE SITE, OR AVAILABLE THROUGH THE SERVICE, OR OBTAINED FROM A WEBSITE TO WHICH THE SITE IS LINKED (A "LINKED SITE") ARE PROVIDED TO YOU "AS IS" WITHOUT WARRANTY OF ANY KIND EITHER EXPRESS OR IMPLIED INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, SECURITY OR ACCURACY. CELSELL DOES NOT ENDORSE AND IS NOT RESPONSIBLE FOR (A) THE ACCURACY OR RELIABILITY OF ANY OPINION, ADVICE OR STATEMENT MADE THROUGH THE SITE OR SERVICE BY ANY PARTY, (B) ANY CONTENT PROVIDED ON LINKED SITES OR (C) THE CAPABILITIES OR RELIABILITY OF ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. OTHER THAN AS REQUIRED UNDER APPLICABLE CONSUMER PROTECTION LAW, UNDER NO CIRCUMSTANCE WILL CELSELL BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A USER'S RELIANCE ON INFORMATION OBTAINED THROUGH THE SITE OR A LINKED SITE, OR USER'S RELIANCE ON ANY PRODUCT OR SERVICE OBTAINED FROM A LINKED SITE. IT IS THE RESPONSIBILITY OF THE USER TO EVALUATE THE ACCURACY, COMPLETENESS OR USEFULNESS OF ANY OPINION, ADVICE OR OTHER CONTENT AVAILABLE THROUGH THE SITE, OR OBTAINED FROM A LINKED SITE. PLEASE SEEK THE ADVICE OF PROFESSIONALS, AS APPROPRIATE, REGARDING THE EVALUATION OF ANY SPECIFIC OPINION, ADVICE, PRODUCT, SERVICE, OR OTHER CONTENT.
LIMITATION OF LIABILITY
YOU EXPRESSLY UNDERSTAND AND AGREE THAT CelSell AND ITS SUBSIDIARIES, AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, PARTNERS AND LICENSORS SHALL NOT BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF CelSell HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM USE OF THE SITE, CONTENT OR ANY RELATED SERVICES.
You will indemnify and hold harmless CelSell from and against any and all fines, penalties, liabilities, losses and other damages of any kind whatsoever (including attorneys’ and experts’ fees), incurred by CelSell and such parties, and shall defend CelSell and such parties against any and all claims arising out of (1) your breach of these Terms and Use; (2) your breach of the Terms of Service; (4) fraud you commit, or your intentional misconduct or gross negligence; or (5) your violation of any applicable U.S. of foreign law or the rights of a third party. CelSell will control the defense of any claim to which this indemnity may apply, and in any event, you shall not settle any claim without the prior written approval of CelSell.
CelSell shall be excused from performance under these TOS, to the extent it is prevented from or delayed from performing, in whole or in part, as a result of an event or series of events caused by or resulting from (1) weather conditions or other elements of nature or acts of God, (2) acts of war, acts of terrorism, insurrection, riots, civil disorders or rebellion, (3) quarantines or embargoes, (4) labor strikes, or (5) other causes beyond the reasonable control of CelSell. In the event that CelSell is temporarily unable to ship to you a purchased item because of such an event, CelSell will give you the option of deferring shipment or receiving a refund of your charges.
MANDATORY ARBITRATION AGREEMENT AND CLASS ACTION WAIVER
PLEASE READ THIS ARBITRATION PROVISION CAREFULLY TO UNDERSTAND YOUR RIGHTS. BY ELECTING ARBITRATION, YOU AGREE THAT ANY CLAIM THAT YOU MAY HAVE IN THE FUTURE MUST BE RESOLVED THROUGH BINDING ARBITRATION. YOU WAIVE THE RIGHT TO HAVE YOUR DISPUTE HEARD IN COURT AND WAIVE THE RIGHT TO BRING CLASS CLAIMS. YOU UNDERSTAND THAT DISCOVERY AND APPEAL RIGHTS ARE MORE LIMITED IN ARBITRATION.
Any dispute or claim relating in any way to your use of CelSell Service, the Site, or to any products or services sold or distributed by CelSell or through TheRealReal.com will be resolved by binding arbitration, rather than in court, except that you may assert claims in small claims court if your claims qualify. The Federal Arbitration Act and federal arbitration law apply to this agreement.
There is no judge or jury in arbitration, and court review of an arbitration award is limited. However, an arbitrator can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages), and must follow the terms of these TOS as a court would.
To begin an arbitration proceeding, you must send a letter requesting arbitration and describing your claim to our registered agent Corporation Service Company, CT Corporation,Inc. The arbitration will be conducted by the American Arbitration Association (AAA) under its rules, including the AAA's Supplementary Procedures for Consumer-Related Disputes. The AAA's rules are available at adr.org/consumer or by calling 1-800-778-7879. Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules. We will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. Likewise, CelSell will not seek attorneys' fees and costs in arbitration unless the arbitrator determines the claims are frivolous. You may choose to have the arbitration conducted by telephone, based on written submissions, or in person in the county where you live or at another mutually agreed location.
We each agree that any arbitration will be conducted only on an individual basis between You and The Real Real and not in a class, consolidated or representative action or arbitration. If for any reason a claim proceeds in court rather than in arbitration we each waive any right to a jury trial. We also both agree that you or we may bring suit in court to enjoin infringement or other misuse of intellectual property rights. If part of this provision is unenforceable, the remainder remains in effect.
Please read these terms and conditions carefully. By signing up for CelSell text messaging program, you expressly consent to receive non-marketing and marketing text messages from CelSell Inc. (“Company”) and others texting on its behalf, including text messages made with an auto-dialer, at the telephone number(s) that you provide. You may opt-out of these communications at any time, and consent to receive marketing text messages is not required to purchase any goods or services.
Company and its service providers may use an automatic telephone dialing system (“auto-dialer”) to deliver Company text messages to you. Company text messages are intended to provide you with information about orders, consignments and Company’s goods and services (e.g., Company-sponsored events, promotions and product launches).
You will receive a maximum of 10 messages per week per Company text messaging program.
Message and data rates may apply to each text message sent or received in connection with Company text messages, as provided in your mobile telephone service rate plan (please contact your mobile telephone carrier for pricing plans), in addition to any applicable roaming charges. Company does not impose a separate fee for sending Company text messages.
CelSell text messaging program is currently supported for US phone numbers only. Supported carriers may change from time to time, but currently include AT&T, Verizon Wireless, Sprint, T-Mobile, U.S. Cellular, Boost Mobile, MetroPCS, Virgin Mobile, Alaska Communications Systems (ACS), Appalachian Wireless (EKN), Bluegrass Cellular, Cellular One of East Central, IL (ECIT), Cellular One of Northeast Pennsylvania, Cricket, Coral Wireless (Mobi PCS), COX, Cross, Element Mobile (Flat Wireless), Epic Touch (Elkhart Telephone), GCI, Golden State, Hawkeye (Chat Mobility), Hawkeye (NW Missouri), Illinois Valley Cellular, Inland Cellular, iWireless (Iowa Wireless), Keystone Wireless (Immix Wireless/PC Man), Mosaic (Consolidated or CTC Telecom), Nex-Tech Wireless, NTelos, Panhandle Communications, Pioneer, Plateau (Texas RSA 3 Ltd), Revol, RINA, Simmetry (TMP Corporation), Thumb Cellular, Union Wireless, United Wireless, Viaero Wireless, and West Central (WCC or 5 Star Wireless).
T-Mobile is not liable for delayed or undelivered messages.
As always, message and data rates may apply for any messages sent to you from us and to us from you. If you have any questions about your text plan or data plan, it is best to contact your wireless provider.
How to Opt-In
To opt-in to receive text messages from a Company text messaging program(s), you may opt in on the website and on the iOS app (gradual rollout in October 2019) in My Account, Purchase Confirmation, and Consignment Request.
How to Opt-Out
To stop receiving text messages, text STOP to 47325. You will then receive confirmation of your opt-out of the text messaging program. You can also opt out via My Account.
Your Mobile Telephone Number
You represent that you are the account holder for the mobile telephone number(s) that you provide. You are responsible for notifying Company immediately if you change your mobile telephone number. You may notify Company of a number change by updating on My Account.
You agree to indemnify Company in full for all claims, expenses, and damages related to or caused in whole or in part by your failure to notify Company if you change your telephone number, including, but not limited to, all claims, expenses, and damages related to or arising under the Telephone Consumer Protection Act.
The Site, Service or third parties may provide links to other websites or resources. Because CelSell has no control over such sites and resources, you acknowledge and agree that CelSell is not responsible for the availability of such external sites or resources, and does not endorse and is not responsible or liable for any content, advertising, products or other materials on or available from such websites or resources. You further acknowledge and agree that CelSell shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such content, goods or services available on or through any such website or resource.
MODIFICATION AND NOTIFICATION OF CHANGES
The trademarks, logos and service marks (“Marks”) displayed on the Site are the property of CelSell and other parties. You are prohibited from using any Marks for any purpose including, but not limited to use as metatags on other pages or sites on the Internet without the written permission of CelSell or such third party which may own the Marks. Information and content including any software programs available on or through the Service or Site (“Content”) may protected by copyright. Users are prohibited from modifying, copying, distributing, transmitting, displaying, publishing, selling, licensing, creating derivative works or using any Content available on or through the Site for any purpose.
PROCEDURE FOR CLAIMS OF INTELLECTUAL PROPERTY INFRINGEMENT
CelSell respects the intellectual property of others, and we ask our users to do the same. CelSell may, in appropriate circumstances and at its discretion, disable and/or terminate the accounts of users who may be infringing the intellectual property of a third party. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been otherwise violated, please provide CelSell’s Copyright Agent the following information:
- i. an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- ii. a description of the copyrighted work or other intellectual property that you claim has been infringed;
iii. a description of where the material that you claim is infringing is located on the Site;
- iv. your address, telephone number, and email address;
- v. a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
- vi. a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.
By email: email@example.com
CelSell may update these addresses from time to time.
SURVIVAL OF TERMS AFTER AGREEMENT ENDS
Notwithstanding any other of this TOS, or any general legal principles to the contrary, any provision of this TOS that imposes or contemplates continuing obligations on a party will survive the expiration or termination of this TOS.
If any of these conditions are deemed invalid, void, or for any unenforceable, the parties agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and the unenforceable condition shall be deemed severable and shall not affect the validity and enforceability of any remaining condition. From time to time CelSell may offer special promotional offers which may or may not apply to your CelSell account. Headings are for reference purposes only and do not limit the scope or extent of such section. These TOS and the relationship between you and CelSell will be governed by the laws of the State of California without regard to its conflict of law provisions. You and CelSell agree to submit to the personal jurisdiction of the federal and state courts located in the County of San Francisco in the State of California with respect to any legal proceedings that may arise in connection with these TOS. The failure of CelSell to act with respect to a breach by you or others does not waive its right to act with respect to subsequent or similar breaches. CelSell does not guarantee it will take action against all breaches of these TOS. Except as otherwise expressly provided in these TOS, there shall be no third-party beneficiaries to these TOS. These TOS constitute the entire agreement between you and CelSell and governs your use of the Site and Service (other than applicable Additional Terms), superseding any prior agreements between you and CelSell with respect to the Site or Service.
FINE ART CONDITIONS OF SALE
CONDITION REPORTS AND DESCRIPTIONS OF PROPERTY
The knowledge of CelSell in relation to each work of art is partially dependent on information provided to us by the Consignor, and CelSell is not able to and does not carry out exhaustive due diligence on each work of art. We shall exercise reasonable care when making express statements in descriptions or condition reports as is consistent with our role as vendor in this sale and in light of (i) the information provided to us by the Consignor, (ii) scholarship and technical knowledge and (iii) the generally accepted opinions of relevant experts, in each case at the time any such express statement is made.
As a courtesy to buyers, CelSell may prepare and provide condition reports on each work of art. Prospective buyers should note that descriptions of property are not warranties and that each work of art is sold "as is."
All representations or statements made by CelSell as to the authorship, origin, date, age, size, medium, attribution, genuineness, provenance, condition or estimated selling price of any artwork, is a statement of opinion only. All photographic representations and other illustrations presented online or elsewhere are solely for guidance and are not to be relied upon in terms of tone or color or necessarily to reveal any imperfections in the artwork. Many works are of an age or nature that precludes their being in pristine condition and some make reference to damage and/or restoration. Such information is given for guidance only and the absence of such a reference does not imply that a work is free from defects nor does any reference to particular defects imply the absence of others.
LIMITATION OF LIABILITY
We agree to refund the purchase price in the circumstances of a breach of the Authorship Warranty set out below. Apart from that, neither the Consignor nor we, nor any of our officers, employees or agents, are responsible for the correctness of any statement of whatever kind concerning any piece whether written or oral nor for any other errors or omissions in description or for any faults or defects in any piece. Except as stated in the Authorship Warranty below, neither the Consignor, ourselves, our officers, employees or agents, give any representation, warranty or guarantee or assume any liability of any kind in respect of any piece with regard to merchantability, fitness for particular purpose, description, size quality, condition, attribution, authenticity, rarity, importance, medium, provenance, exhibition history, literature, or historical relevance. Except as required by local law any warranty of any kind whatsoever is excluded by this paragraph.
CelSell warrants the authorship of art works sold on this website described in headings in bold type for a period of five years from the date of sale by CelSell, subject to the exclusions and limitations set forth below.
- a) The benefits of this warranty are not assignable and shall apply only to the original buyer of the work as shown on the order confirmation originally issued by CelSell when the work was sold.
- b) In any claim for breach of the Authorship Warranty, CelSell reserves the right, as a condition to rescind any sale under this warranty, to require the buyer to provide to us at the buyer's expense the written opinions of two recognized experts in the field, mutually acceptable to CelSell and the buyer, before CelSell determines whether or not to cancel the sale under the warranty. We shall not be bound by any expert report produced by the buyer and reserve the right to consult our own experts at our expense.
- c) Subject to the exclusions set forth in subparagraph (a) above, a buyer may bring a claim for breach of the Authorship Warranty provided that (i) he or she has notified CelSell in writing within three months of receiving any information which causes the buyer to question the authorship of the piece, specifying the sale in which the property was included, the item number on the order confirmation and the reasons why the authorship of the piece is being questioned and (ii) the buyer returns the piece to CelSell in the same condition as at the time of the sale and is able to transfer good and marketable title in the piece free from any third party claim arising after the date of the sale. CelSell has discretion to waive any of the foregoing requirements.
- d) The buyer understands and agrees that the exclusive remedy for any breach of the Authorship Warranty shall be rescission of the sale and refund of the original purchase price paid. This remedy shall constitute the sole remedy and recourse of the buyer against CelSell, and any of our affiliated companies and the seller and is in lieu of any other remedy available as a matter of law or equity. This means that none of CelSell, any of our affiliated companies or the seller shall be liable for loss or damage beyond the remedy expressly provided in this Authorship Warranty, whether such loss or damage is characterized as direct, indirect, special, incidental or consequential, or for the payment of interest on the original purchase price.
Purchases may be subject to sales, use, excise and other tax in some jurisdictions. It is the buyer's responsibility to ascertain and pay all taxes due. Buyers claiming exemption from sales tax must have the appropriate documentation on file with CelSell prior to the release of the property.
PACKING AND SHIPPING
Buyers are responsible for all shipping costs and fees. We will, at the buyer's expense, either provide packing, handling, insurance and shipping services or coordinate with shipping agents instructed by the buyer in order to facilitate such services for property purchased from CelSell. As a courtesy to buyers, CelSell will, without charge, wrap purchased items for hand carry only. Any such instruction, whether or not made at our recommendation, is entirely at the buyer's risk and responsibility and we will not be liable for acts or omissions of third party packers or shippers. CelSell will require presentation of government issued identification prior to release of a piece to the buyer or the buyer's authorized representative.
CelSell respects copyright law and expects its users to do the same. It is the Company's policy to terminate access in appropriate circumstances of Members who repeatedly infringe or are believed to be repeatedly infringing on the rights of copyright holders. Please see CelSell's Submitted Content Policy at www.celsell.com/terms for further information.
These terms and conditions of sale are subject at all times to CelSell’s Terms of Service.
HOW TO CONTACT US
If you have any questions or comments about these TOS or this Site, please contact us by email at firstname.lastname@example.org.