Terms of Use

1. Overview

These terms of use (“Terms of Use”) are entered into between you (“you” and “your”) and Rare Candy Auctions, Inc. (“Rare Candy” “we,” or “us”). The Terms of Use govern your access to and use of the Rare Candy website at rarecandy.com, including any content, functionality and services offered on or through it (the “Site”).

By using the Site, you agree to be bound and abide by these Terms of Use. Rare Candy may terminate your ability to use the Site without notice if you do not comply with the Terms of Use. If you do not agree to these Terms of Use, you must not access or use the Site.

Rare Candy reserves the right to make changes to the Site and to the Terms of Use at any time. All changes are effective immediately when posted. Your continued use of the Site following the posting of the revised Terms of Use means that you accept and agree to the changes.

All Information Rare Candy collects on this Site is subject to our Privacy Notice posted here. By using the Site, you consent to all actions taken by us with respect to your Information in compliance with the Privacy Notice. The Privacy Notice is incorporated into and governed by these Terms of Use. To the extent there is a conflict, the Terms of Use supersede the Privacy Notice.

All Site Content (as defined below) is current as of the date it is posted on the Site to the best of Rare Candy’s knowledge.

2. Intellectual Property

The Site and its entire contents, data, features and functionality (including but not limited to text, graphics, video, logos, button icons, databases and images) (“Site Content”) are the property of Rare Candy or its licensors and are protected by copyright, trademark and other intellectual property laws, except as indicated below.

The Rare Candy name and related logos are trademarks and service marks (“Marks”) of Rare Candy. Rare Candy Marks may not be used without advance written permission of Rare Candy, including in connection with any product or service that is not Rare Candy, in any manner that is likely to cause confusion, or in any manner that disparages, discredits, or misrepresents Rare Candy. Other products or company names mentioned on the Site may be trademarks or service marks of their respective owners.

If you believe that any content on the Site violates your intellectual property rights, please notify Rare Candy as described in Section 20.

3. Limited License And Prohibited Uses

Rare Candy grants you a personal, royalty-free, non-assignable, and non-exclusive license to access and use the Site Content only as an informative resource while using the Site. Any other use, including the reproduction, modification, distribution, transmission, republication, framing, display or performance of Site Content without prior permission of Rare Candy is strictly prohibited. You may not download, print, copy, distribute, or otherwise use Site Content for commercial purposes, including publication, sale, or personal gain. You may not remove any Marks or other proprietary notices, including, without limitation, attribution information, credits, and copyright notices that have been placed on or near the Site Content.

You may use the Site only for lawful purposes and in accordance with these Terms of Use. You agree that you will not:

  • Use the Site in any way that violates any applicable law or regulation.
  • Use the Site for the purpose of exploiting, harming or attempting to exploit or harm anyone in any way.
  • Send, knowingly receive, upload, download, use or re-use any material that does not comply with the Terms of Use.
  • Transmit, or procure the sending of, any advertising or promotional material, including any "junk mail", "chain letter" or "spam" or any other similar solicitation.
  • Impersonate or attempt to impersonate Rare Candy, a Rare Candy employee, another user or any other person or entity (including, without limitation, by using e-mail addresses associated with any of the foregoing).
  • Engage in any other conduct that restricts or inhibits anyone's use or enjoyment of the Site, or which, as determined by Rare Candy, may harm Rare Candy or users of the Site or expose them to liability.
  • Use the Site in any manner that could disable, overburden, damage, or impair the Site or interfere with any other party's use of the Site, including their ability to engage in real time activities through the Site.
  • Use any robot, spider or other automatic device, process or means to access the Site for any purpose, including monitoring or copying any of the material on the Site.
  • Use any manual process to monitor or copy any of the material on the Site or for any other unauthorized purpose without Rare Candy prior written consent.
  • Use any device, software or routine that interferes with the proper working of the Site.
  • Introduce any viruses, Trojan horses, worms, logic bombs or other material that is malicious or technologically harmful.
  • Attempt to gain unauthorized access to, interfere with, damage or disrupt any parts of the Site, the server on which the Site is stored, or any server, computer or database connected to the Site.
  • Attack the Site via a denial-of-service attack or a distributed denial-of-service attack.
  • Otherwise attempt to interfere with the proper working of the Site.

This Site is not intended for children under 13 years of age. Rare Candy does not knowingly collect Information from children under 13. If you are under 13, do not use this Site or provide any Information about yourself to Rare Candy, including your name, address, telephone number or email address.

4. Account Registration

To access portions of the Site, you may be asked to provide registration details or other Information. It is a condition of your use of the Site that all Information you provide is complete, current, and accurate. All Information you provide to register with the Site or otherwise is governed by our Privacy Notice, and you consent to all actions Rare Candy takes with respect to your Information consistent with our Privacy Notice.

5. Use and Protection of Login Credentials

You are responsible for maintaining the confidentiality of your user name and password (“Login Credentials”), if applicable. You are responsible for all uses of your account and Login Credentials, whether or not authorized by you. You agree to notify Rare Candy immediately of any unauthorized access to or use of your account or Login Credentials or any other breach of security. Rare Candy reserves the right to disable your Login Credentials at any time in its sole discretion for any or no reason, including if, in Rare Candy opinion, you have violated any provision of these Terms of Use.

6. User Contribution

The Site may contain sections that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials ("User Contributions") on or through the Site or to Rare Candy directly.

The Site may contain sections that allow users to post, submit, publish, display, or transmit to other users or other persons (hereinafter, “post”) content or materials ("User Contributions") on or through the Site or to Rare Candy directly.

Any User Contribution you post to the Site or make available to Rare Candy will be considered non-confidential and non-proprietary. By providing any User Contribution on the Site or to Rare Candy, you grant us and our affiliates and service providers, and each of their and our licensees, successors, and assigns the perpetual right to use, reproduce, modify, perform, display, distribute, and otherwise disclose to third parties any such material for any purpose.

You represent and warrant that:

  • You own or control all rights in and to the User Contributions and have the right to grant the license granted above to us and our affiliates and service providers, and each of their licensees, successors, and assigns.
  • All of your User Contributions do and will comply with these Terms of Use.
  • You understand and acknowledge that you are responsible for any User Contributions you submit or contribute, and you, not Rare Candy, have full responsibility for such content, including its legality, reliability, accuracy, and appropriateness.

We are not responsible or liable to any third party for the content or accuracy of any User Contributions posted by you or any other user of the Site.

7. Copyright Complaints; Digital Millennium Copyright Act

If you believe that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you should notify us of your infringement claim in accordance with the procedure set forth below.

We will process and investigate notices of alleged infringement and will take appropriate actions under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws with respect to any alleged or actual infringement. A notification of claimed copyright infringement should be emailed to info@rarecandy.com (Subject line: “DMCA Takedown Request”).

Our designated copyright agent to receive DMCA Notices is:

Giacomo Zacchia
PO BOX 140396 6120 Swiss Ave, Dallas, TX 75214
info@rarecandy.com

To be effective, the notification must be in writing and contain the following information:

  • an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
  • a description of the copyrighted work or other intellectual property that you claim has been infringed;
  • a description of where the material that you claim is infringing is located on the Site, with enough detail that we may locate it;
  • your address, telephone number, and email address;
  • a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law; and
  • 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.

Counter-Notice: If you believe that your User Contribution that was removed (or to which access was disabled) is not infringing, or that you have the authorization from the copyright owner, the copyright owner's agent, or pursuant to the law, to upload or display the content in your User Contribution, you may send a written counter-notice containing the following information to the above-listed Copyright Agent:

  • your physical or electronic signature;
  • identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
  • a statement that you have a good-faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
  • your name, address, telephone number, and email address, and a statement that you will accept service of process from the person who provided notification of the alleged infringement.

If a counter-notice is received by the Copyright Agent, Rare Candy will send a copy of the counter-notice to the original complaining party, informing that person that it may replace the removed content or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the content provider, member or user, the removed content may be replaced, or access to it restored, in 10 to 14 business days or more after receipt of the counter-notice, at our sole discretion.

We may, at our sole discretion, limit access to the services and/or terminate the account of any user who infringes any intellectual property rights of others.

8. Fees

You are solely responsible for all fees associated with your use of the Site, including purchase and service fees, and for any and all duties, taxes, levies or fees (including sales, use, or withholding taxes) imposed by any authority on you by virtue of your transactions through the Site.

9. Third Party Content

This Site may include content provided by third parties. All statements and opinions expressed by third parties are solely the opinions and the responsibility of the person or entity providing those materials. Those materials do not necessarily reflect the opinion of Rare Candy. Rare Candy is not responsible for the content or accuracy of any materials provided by any third parties.

10. Links To Other Websites

Rare Candy may provide links to external web sites for the convenience of Site users. The inclusion of an external link on this Site does not constitute or imply support or endorsement of any kind. Rare Candy does not control those websites, is not responsible for their content or function, and is not responsible for any loss or damage that may arise from your use of them. If you decide to access the third party Sites linked to this Site, you do so entirely at your own risk and subject to the terms and conditions of use and the privacy notice for such sites.

11. Disclaimer of Warranties

YOU EXPRESSLY AGREE THAT USE OF THE SITE AND CONDUCTING TRANSACTIONS RELATED TO IT ARE AT YOUR SOLE RISK. WHILE RARE CANDY ATTEMPTS TO PRESENT ACCURATE INFORMATION ON THE SITE, THIS SITE IS PROVIDED ON AN “AS-IS” BASIS. RARE CANDY MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION OR CONTENT OF THIS SITE OR ANY OTHER SITE TO WHICH IT IS LINKED. TO THE EXTENT PERMITTED BY LAW, RARE CANDY DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, OR ANY WARRANTIES OF NON-INFRINGEMENT OF ANY PATENT OR OTHER INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY.

12. Limitation of Liability

RARE CANDY, ITS DIRECTORS, AND ITS EMPLOYEES WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM THE USE OF THIS SITE OR ANY SITE FOR WHICH IT PROVIDES LINKS, INCLUDING BUT NOT LIMITED TO DIRECT, INDIRECT, PUNITIVE AND CONSEQUENTIAL DAMAGES. YOUR SOLE REMEDY UNDER THESE TERMS OF USE IS TO STOP USING THE SITE. RARE CANDY WILL NOT BE LIABLE FOR ANY REASON IF ALL OR ANY PART OF THE SITE IS UNAVAILABLE AT ANY TIME OR FOR ANY PERIOD.

RARE CANDY MAXIMUM LIABILITY, WHETHER BY STATUTE, IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, PRODUCT LIABILITY, STRICT LIABILITY, OR OTHER THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF THE SITE OR ITS CONTENT, WILL NOT EXCEED $100.

13. Indemnification

You agree to defend, indemnify and hold harmless Rare Candy, its affiliates, licensors and service providers, and its and their respective officers, directors, employees, contractors, agents, licensors, suppliers, successors and assigns from and against any liabilities, damages, judgments, awards, losses, costs, third party claims, expenses and fees (including reasonable attorneys' fees) arising out of or relating to your violation of these Terms of Use or your use of the Site, including, but not limited to, your content, any use of the Site Content, and services and products other than as expressly authorized in these Terms of Use.

14. Limitation On Time To File Claims

ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS OF USE OR THE SITE MUST BE COMMENCED WITHIN THREE (3) MONTHS AFTER THE EVENT GIVING RISE TO THE ACTION OR CLAIM OCCURRED, REGARDLESS OF WHEN YOU KNEW OR SHOULD HAVE KNOWN ABOUT IT; OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

15. Injunctive Relief

You agree that a breach of these Terms of Use will cause irreparable injury to Rare Candy for which monetary damages would not be an adequate remedy and Rare Candy shall be entitled to seek equitable relief, in addition to any remedies it may have hereunder or at law, without having to post a bond or other security or prove damages.

16. Waiver And Severability

No waiver by Rare Candy of a term or condition set forth in these Terms of Use shall be deemed a continuing waiver of such term or condition or a waiver of any other term or condition. Any failure of Rare Candy to assert a right or provision under these Terms of Use shall not constitute a waiver of such right or provision.

If any provision of these Terms of Use is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of the Terms of Use will continue in full force and effect.

17. Entire Agreement

The Terms of Use and our Privacy Notice constitute the sole and entire agreement between you and Rare Candy with respect to the Site and supersede all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to the Site.

18. Term and Termination

These Terms of Use will remain in full force and effect while you use the Site. Even after you are no longer a user of the Site, certain provisions of these Terms that by their nature are intended to survive will remain in effect, including sections 1, 2, 5, 7, 8, 11-20, and the Privacy Notice.

You agree that Rare Candy, in its sole discretion, may suspend or terminate any account or your access to the Site (or any part thereof) for any reason, with or without notice, and without any liability to you or to any third party for any claims, damages, costs or losses resulting therefrom.

19. Applicable Law, Binding Arbitration, and Class Action Waiver

PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE YOU TO AGREE TO RESOLVE ALL DISPUTES BETWEEN US THROUGH BINDING INDIVIDUAL ARBITRATION.

The laws of the State of Texas will govern these Terms of Use and any disputes under them, without giving effect to any principles of conflicts of laws.

Any controversy or claim arising out of or relating to this agreement, or breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, then in effect. This arbitration provision is governed by the Federal Arbitration Act. The arbitration proceedings shall be held in Dallas County, Texas.

All claims and disputes within the scope of this arbitration agreement must be arbitrated or litigated on an individual basis and not on a class basis. Claims of more than one customer or user cannot be arbitrated or litigated jointly or consolidated with those of any other customer or user.

20. Communications and Contact Information

Rare Candy may contact you regarding these Terms of Use or the Privacy Notice using any Information you provide, or by any other means if you do not provide contact Information. If you no longer wish to receive communications from Rare Candy, you can click on the “unsubscribe link” provided in such communications or contact us at info@rarecandy.com.

For all other feedback, comments, requests for technical support, and other communications relating to the Site, these Terms of Use, and the Privacy Notice, please contact us at info@rarecandy.com or by mail at:

Rare Candy Auctions, Inc.
ATTN: Legal Department
PO BOX 140396 6120 Swiss Ave, Dallas, TX 75214

Effective Date: February 24, 2020