User Agreement Effective 06/22/21
In this User Agreement:
2. About Small Business Barn
3. Using Small Business Barn
4. Policy Enforcement
5. Fees & Taxes
6. Listing Conditions
7. Purchase Conditions
8. International Selling or buying is not supported.
10. Notice for Claims of Intellectual Property Violations and copyright Infringement Pursuant to Section 512© of Title 17 of the United States Code
11. Holds and Restricted Funds
12. Electronic Communication, Authorization to contact you, Recording calls, Analyzing message content
13. Additional Terms
Returns and Cancellations
14. Managed payments
15. Disclaimer of Warranties: limitation of liability
18. Legal Disputes
20. Links to Policy details pages
Thank you for choosing Small Business Barn. Our goal is to enable and encourage small business in America. Small business creates opportunity, jobs, redundancy, innovation, training and a ladder to move up in society based upon performance. We don’t believe in classes in society, we believe in mobility. We believe anyone with a good idea or product should be free to succeed and they have the right to the rewards for their labor.
This User Agreement, and all policies and additional terms posted on and in our sites, applications, tools and services (collectively “Services”) set out the terms on which Small Business Barn and it’s affiliates offers you access to and use of our Services.
All policies and additional terms posted on and in our Services are incorporated into this User Agreement. By using our services you agree on behalf of yourself, all household members and others who use your account, to the entire user agreement.
The entity you are contracting with is: Small Business Barn 120 Madeira Drive NE, STE 220, Albuquerque, New Mexico, 87108. In this User Agreement this entity and it’s affiliates are individually and collectively referred to as “Small Business Barn,” “we,” or “us.”
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see “Disclaimer of Warranties; Limitation of Liability” and “Legal Disputes” provisions below). It also contains an Agreement to Arbitrate which will require you to submit claims you have against us or our agents to binding and final arbitration (see Legal Disputes section B, (“Agreement to Arbitrate”)). You agree that (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.
2. About Small Business Barn
Small Business Barn is a marketplace that allows users to advertise, offer, sell and buy. The actual contract for sale is directly between the seller and buyer. Small Business Barn is not a party to the transaction unless it is the seller. If we are the seller we will compete on a level field and will give no search or other advantage to our products over our customers products. Some will choose us as their distributor and we are grateful for their patronage as we are grateful for our small businesses on our site. Buyers want choices and we wish to provide choices and enable pro-american, pro-liberty businesses.
Any guidance, consulting, or remediation we provide as part of our Services, such as pricing, shipping, listing, and sourcing is solely informational and you may decide to follow it or not. Also, while we may assist with the resolution of disputes through various programs, Small Business Barn has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.
3. Using Small Business Barn
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. You agree that……
a. You will not use our services if you are not for any reason unable to form a binding contract. If you are under the age of majority which is 18 years old, or are suspended from our services, or are prohibited from transactions due to sanctions or legal inability or ineligibility.
b. You will not go around any laws, regulations, our systems, third party rights, our policies, or decisions regarding your account
c. You will not circumvent technical measures taken to provide our services.
d. You will not interfere with our system functions or cause an undue burden on our systems or infrastructure.
e. You will not export or re-export any of our software or tools.
f. You will not use any data gathering or extraction tools such as robots, spiders, scaper, other data mining tools or any automated means to gain access to our services for any purpose, except with the prior written permission of Small Business Barn.
g. You will not distribute viruses or any technology that may harm any interests or property or system of Small Business Barn or it’s members, affiliates, or users.
h. You will not infringe upon the copyright, trademark, moral, publicity, database or other intellectual property rights that belong to or are licensed to Small Business Barn. Infringements may include : reverse engineering, decompiling, reproducing, displaying, copying, distributing, performing, or making derivative works from content that belongs to Small Business Barn, our affiliates or members.
i. You will not infringe on rights of third parties from whom you have taken content that does not belong to you without permission.
j. You will not attempt to interfere with or obstruct in any way another’s postings
k. You will not post inaccurate, false, misleading, deceptive, defamatory, or libelous content
l. You will not attempt to manipulate or interfere with the proper functioning of feedback or acknowledgement systems
m. You will not post or distribute spam, unrequested or bulk communications, pyramid schemes or chain letters
n. You will not transfer your account with Small Business Barn and ID (including awards, feedback, metrics, etc) to another person or party without our express written consent.
Small Business Barn has seller standards. Failure to meet these standards may result in Small Business Barn enforcement actions such as charging you additional fees, and / or suspending, limiting, downgrading, restricting or completely removing and further banning your account from use of our services.
If we believe you are abusing Small Business Barn 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, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
Small Business Barn does not limit where you can sell or buy. We do NOT require that you sell or buy exclusively through us. We work to provide a marketplace you want to use and protect our site for the benefit of all users, vendors and buyers.
We are here to offer convenience and options to customers and additional reach to small sellers. Our goal is to provide a marketplace where our customers and sellers are provided a safe place and an online convenient and cost effective place to transact business or advertise. Our goal is to provide our advertising and administrative services at a rate and quality to be a desired partner to our sellers & buyers. A physical storefront is expensive and we want to encourage business from any location in the U.S.
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.
4. Policy Enforcement
When an issue comes up we may choose to take into consideration user past adherence to good practices and behavior on our site when we apply our policies. If we choose to be more lenient based upon such evidence in our efforts to be fair to all parties these efforts shall not be taken as in any way limiting or impairing of our rights to modify, refuse, or terminate all or part of our services to anyone, for any reason at our sole discretion.
5. Fees & Taxes
We have a list and explanation of our fees for services on our seller fees pages.
We will notify you of any changes in terms which is an increase in fees by alerting you to review those pages 14 days in advance. If we choose to reduce our charges on a temporary or promotional basis we may do so without notice.
As a market we will charge our sellers for sales taxes not collected in error, for commission on sales through our site and for late fees or disciplinary fees as listed on our seller fees pages.
We will contract with and do everything in our power to see that sales taxes are collected and remitted for sales on our site (as is required by most new marketplace legislation) on your behalf but if an error occurs you will be responsible for the payment of any uncollected sales taxes on your sales.
If you are a seller, you are liable for transaction fees arising out of all sales made using some or all of our Services, even if sales terms are finalized or payment is made outside of Small Business Barn. In particular, if product sellers offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Small Business Barn, you may be liable to pay a commission applicable to that item, even if the item doesn’t sell, since you used our services for the introduction to a buyer.
You must have a payment method on file when selling through our Services and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect amounts owed by charging other payment methods on file with us, retain collection agencies and legal counsel, suspend or limit Services, and for accounts over 60 days past due suspend all payments to you until our balance is paid. In addition, you will be subject to late fees. Small Business Barn, or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information Small Business Barn reported to a credit bureau (i.e., Experian, Equifax or TransUnion) please contact us at Small Business Barn LLC 120 Madeira Dr NE, STE 220, Albuquerque, New Mexico, 87108. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Small Business Barn account, you must contact the collection agency directly.
In any jurisdiction where Small Business Barn has an obligation to collect sales taxes on sales you make using our Services, we may collect such sales taxes from you via the payment method on file under the terms of the Billing Agreement or via any other means available to us.
Seller fees don’t purchase exclusive rights to item exposure on our Services. We may display third-party advertisements (including links and references to them) or other content in any part of our Services, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers.
6. Listing Conditions
When listing an item for sale on our Services, you agree to comply with Small Business Barn’s Listing Policies and Seller Standards and also agree that:
• You assume full responsibility for the item offered and the accuracy and content of the listing,
• Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Small Business Barn can’t guarantee exact listing duration,
• Your subscription to our services will continue based upon your subscription and will renew automatically until you have ended your service with us.
• The content you provide complies with all of our listing policies and prohibited items including the no adult content policy
• Content that violates any of Small Business Barn’s policies may be modified, obfuscated or deleted at Small Business Barn’s sole discretion,
• We may revise product data associated with listings to supplement, remove, or correct information,
• So that buyers may find what they are looking for the appearance and placement of listings in search results will vary and depend on many factors which may include:
• Item’s location, buyer’s location, search parameters, buyer history, listing format, terms of service, shipping cost, etc
• Seller’s rating, policy compliance, defective rate, feedback
• To drive a positive user experience, a listing may not appear in some search results regardless of the sort chosen by the buyer
• Small Business Barn’s Listings Policy may also affect whether your listing appears in search results,
• Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results,
• We may display seller information such as seller rating, feedback, and recognition of performance banners or acknowledgement
• For items listed in certain categories, subject to certain programs, and/or offered or sold at certain price points, Small Business Barn may require the use of certain payment methods, subject to our Payment Methods Policy. For example, for inventory covered by authentication services, buyer and sellers may be subject to escrow and/or payment handling requirements. When payment plans are offered some items such as money will not qualify to accept payments.
• You will not sell and will promptly remove all listings for any product recalled by a manufacturer or governmental agency if the sale of the product is prohibited by law or regulation or the product poses a health or safety hazard as specified by any governmental agency. Small Business Barn has no responsibility or liability for the safety or performance of any product that you list or sell through the Services, including any product that is subject to a recall. You are solely responsible for any non-conformity or defect in, or compliance with any public or private recall of any product you list or sell through the Services.
7. Purchase Conditions
When buying an item on our Services, you agree to the Rules for Buyers and that:
• You are responsible for reading the full item listing before committing to buy,
• You enter into a legally binding contract to purchase an item when you commit to buy an item.
• For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer’s serious expression of interest in buying the seller’s item and does not create a formal contract between the buyer and the seller,
• We do not transfer legal ownership of items from the seller to you. Ownership transfers are the sole responsibility of the buyers and sellers.
8. International Selling or Buying is not supported.
Our services are only offered in the United States of America. Both buyer and seller must reside in the United States to use our services.
When you provide content using our Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all Intellectual Property Rights you have in that content in connection with our provision, expansion, and promotion of our Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce your Intellectual Property Rights in that content against Small Business Barn, our assignees, our sublicensees, and their assignees in connection with our, those assignees’, and those sublicensees’ use of that content in connection with our provision, expansion, and promotion of our Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Small Business Barn takes no responsibility and assumes no liability for any content provided by you or any third party.
We may offer product data (including images, descriptions and specifications) that are provided by third parties (including Small Business Barn users). You may use that content solely in your Small Business Barn listings. Small Business Barn may modify or revoke that permission at any time in our sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings).
We try to offer reliable product data, but cannot promise that the content provided through our Services will always be available, accurate, complete, and up-to-date. You agree that Small Business Barn is not responsible for examining or warranting the listings or content provided by third parties through our Services, and that you will not attempt to hold us, our data providers or affiliates liable for inaccuracies.
The name “Small Business Barn” and other Small Business Barn marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Small Business Barn in the U.S. They may not be used without the express written prior permission of Small Business Barn.
10. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. Small Business Barn’s Verified Rights Owner (VeRO) program works to ensure that items and content using our Services do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify us and we will investigate.
11. Holds and restricted funds
To protect Small Business Barn from risk of liability for your actions as a seller, Small Business Barn has at times restricted access to funds in a seller’s account based on certain factors, including, but not limited to, selling history, seller performance, returns, riskiness of the listing category, transaction value, or the filing of a complaint. We may withhold funds until the issue is resolved.
12. electronic communications, authorization to contact you, recording calls, analyzing message content
When you email or communicate with us electronically via your phone, computer, tablet or other device you are communicating electronically. You consent to receive communication from us electronically and such as emails, texts, messages on our site, or through other services we or our affiliates offer and agree that such communications shall satisfy any legal agreement that these communications be in writing.
Small Business Barn may, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Small Business Barn or its agents for quality control and training purposes, or for its own protection.
Small Business Barn’s automated systems scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of Small Business Barn’s User Agreement, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. Small Business Barn may store message contents, including to conduct this scanning and analysis.
Privacy of Others; Marketing
If Small Business Barn provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to our Services. Additionally, you may not use user information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
13. Additional Terms
Returns and Cancellations
Sellers can create rules to automate replacements, returns, and refunds under certain circumstances. For all new sellers, in listings where returns are accepted, Small Business Barn may set a default rule that automates the return process. Sellers may remove or customize their return preferences in their account settings within My Small Business Barn. Where settings have been set to automatically accept requests for returns or replacements, a Small Business Barn-generated return shipping label may be provided to your buyer. You agree to comply with our seller’s standards & policies.
When an item is returned, to refund the buyer, you (as seller) authorize Small Business Barn to retain payment due to you or charge your account for the refund amount, the shipping label if provided, and place the amounts on your invoice, and/or charge your payment method on file.
The cost of return shipping for an item that is not as described is the seller’s responsibility.
You (as seller) authorize Small Business Barn to place the return shipping label cost on your invoice, subject to your automatic payment method on file when:
• An Small Business Barn-generated return shipping label is used, and the seller is responsible for its cost;
• Returns have been automated;
• You fail to send your buyer a return shipping label and, instead, a Small Business Barn-generated shipping label is used; and/or
• A transaction is cancelled, and to refund the buyer, you (as seller) authorize Small Business Barn to charge your account on file for the refund.
Small Business Barn Remediation
Unless Small Business Barn is listed as the seller then Small Business Barn is not a party to the transaction.
Our seller’s have their own return, exchange and/or refund policies. It is the buyer’s responsibility to read the listing completely, and be aware of all pertinent details of their purchase including seller’s return policies before purchasing from a seller.
If a customer has contacted the seller and has not had a response within 3 business days or wants to report that the seller is not in compliance with our user agreement they may use our contact page to inform us of the issue. Small Business Barn will enforce our user agreement and offer possible solutions and best practices to assist with communication and resolution of issues.
14. Managed Payments
Small Business Barn may launch a new managed payments service, where a designated Small Business Barn entity (each, a “payments entity”) manages payments on behalf of sellers (such management described as “managed payments” or similar).
When we enable your account for managed payments, to continue to list and sell on Small Business Barn, as directed by the payments entity, each transitioned Small Business Barn seller must:
• provide the payments entity with information about you and/or your business to meet its compliance requirements, including those involving identity verification, anti-money laundering controls, and sanctions screening as required by applicable laws and policies; and
• pass such verification and screening and otherwise meet the compliance requirements of the payments entity, as determined by the payments entity; and
• provide bank account information for a U.S.-based checking account so that the payments entity can link such checking account to your Small Business Barn account, allowing the payments entity to pay you.
• the payments entity may obtain information about you from third-parties to verify your identity, comply with anti-money laundering and sanctions screening obligations, and for other purposes in connection with managed payments; and
• the payments entity may use third-party payments service providers to assist it in providing managed payments services, including companies that process payments, perform risk assessments (such as credit agencies) or compliance checks, verify identity, and validate payment methods. Small Business Barn, the payments entity, and their affiliates may send personal data associated with you and your account to such third-parties.
The payments entity may, in its sole discretion, manage payments on your behalf even if you haven’t provided all requested information, and the payments entity may withhold payouts pending receipt of such information.
The contract for sale underlying the purchase of goods is directly concluded between seller and the buyer in the same manner as for transactions for which the payments entity does not manage payments.
If you are a buyer completing a purchase from a seller that is using managed payments:
• You may pay for such items using those payment methods that the payments entity makes available, and the payments entity will manage settlement to sellers. By completing purchases from sellers who use managed payments, buyers authorize the payments entity to initiate payments using the buyers’ selected payment method and collect the transaction amounts on behalf of sellers. Accordingly, payments received by the payments entity from buyers satisfy buyers’ obligations to pay sellers in the amount of payments received.
• In certain instances, your transaction may be declined, frozen, or held for any reason including for suspected fraud, AML compliance, compliance with economic or trade sanctions, in connection with Small Business Barn’s internal risk controls or due to potential violations of any policy of Small Business Barn or the payments entity, or a policy of one of the payments entity’s third party payments services providers.
• Small Business Barn, the payments entity or its affiliates may save payment information, such as credit card or debit card numbers, and card expiration dates, entered by you on our Services when you make a purchase, redeem a coupon, or make any other transaction on our Services where card information is entered. Such stored payment information may be used as your default payment method for future transactions on our Services. At any time, you can update your card information or enter new card information, at which point the new card information shall be stored as your default payment method. You may make changes to your default payment method through the Personal Information section under the Account tab in My Small Business Barn. You are responsible for maintaining the accuracy of information we have on file, and you consent to Small Business Barn updating such stored information from time to time based on information provided by you, your bank or other payments services providers. You will only provide information about payment methods that you are authorized to use.
• You may seek returns or cancellations on our Services, or file Small Business Barn Remediation claims on our Services, in the same manner as you do for transactions for which the payments entity does not manage payments. The payments entity refunds amounts paid for successful Small Business Barn Remediation claims and returned or cancelled transactions in cases where the original payment was managed by the payments entity. Refund timing may vary in accordance with the rules of third parties, such as credit and debit card networks.
• You agree to comply with, and not cause a third party to violate, all applicable laws, regulations, rules and terms and conditions in connection with the use of managed payments. You understand that some third parties, such as credit and debit card issuers, credit and debit card networks and payments services providers, may have their own terms and conditions for the payment or settlement methods you choose to use in connection with managed payments transactions. Failure to abide by third party terms and conditions may result in fees assessed to you (for example, currency conversion fees from your credit card issuer if the transaction currency is different from your credit card currency) or other actions taken by such third parties, and you agree that the payments entity has no control over, or responsibility or liability for, such fees or actions.
15. Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Some functionality in Small Business Barn’s applications may not occur in real time. Such functionality is subject to delays beyond Small Business Barn’s control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, in no event will Small Business Barn (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) be liable to you or any third party under any claim at law or in equity for any consequential damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages), and all such damages or losses are expressly excluded by this agreement whether or not they were foreseeable or Small Business Barn 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, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
• the content you provide (directly or indirectly) using our Services;
• your use of or your inability to use our Services;
• pricing, shipping, format, or other guidance provided by Small Business Barn;
• delays or disruptions in our Services;
• 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 Small Business Barn Service;
• the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
• a suspension or other action taken with respect to your account or breach of the Abusing Small Business Barn Section above;
• the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or
• your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies.
Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the price the item sold for on Small Business Barn (including any applicable sales tax) and its original shipping costs, (b) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (c) $100.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, 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 into 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 to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of our Services or your breach of any law or the rights of a third party.
18. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND SMALL BUSINESS BARN HAVE AGAINST EACH OTHER ARE RESOLVED.
In this Legal Disputes Section, the term “related third parties” includes your and Small Business Barn’s respective affiliates, subsidiaries, parent companies, predecessors, successors, assigns, as well as your, Small Business Barn’s, and these entities’ respective employees and agents.
You and Small Business Barn agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Small Business Barn (or any related third parties) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of Small Business Barn or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of New Mexico, 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 Small Business Barn, except as otherwise stated in this User Agreement.
B. Agreement to Arbitrate
You and Small Business Barn each agree that any and all disputes or claims that have arisen, or may arise, between you and Small Business Barn (or any related third parties) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to our Services, the actions of Small Business Barn or its agents, or any products or services sold, offered, or purchased through our Services shall be resolved exclusively through final and binding arbitration, rather than in court.
Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act (“FAA”), and to the extent not inconsistent with the FAA, the laws of the State of New Mexico, without regard to principles of conflict of laws, governs the interpretation and enforcement of this Agreement to Arbitrate.
1. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND SMALL BUSINESS BARN 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 OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND SMALL BUSINESS BARN 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 NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT 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 18.C below), subject to your and Small Business Barn’s right to appeal the court’s decision. All other claims will be arbitrated.
2. 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 should 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 1 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.
All claims and disputes arising under or relating to this Agreement are to be settled by binding arbitration. The arbitration shall be conducted by Arbitration Resolution Services, Inc. (ARS) and the parties shall be bound by any and all rules of ARS and any award/decision rendered. ARS rules can be found at www.arbresolutions.com. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all decisions. Any such arbitration shall be conducted by an arbitrator experienced in Business to Business or Business to Individuals as determined by ARS and shall include a written record of the arbitration hearing. An award of arbitration may be confirmed in a court of competent jurisdiction.
In the event that the ARS is unavailable to administer the arbitration, another administrator will be selected by the parties or, if the parties cannot reach the agreement, the court (pursuant to Section 18.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. The Notice to Small Business Barn must be sent to Small Business Barn Inc., Attn: Litigation Department, Re: Notice of Dispute, 120 Madeira Dr NE, STE 220, Albuquerque, NM 87108. Small Business Barn will send any Notice to you to the physical address we have on file associated with your Small Business Barn account; it is your responsibility to keep your physical address up to date. To be valid, you must personally sign the Notice and complete all information on the Notice form, including 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 Small Business Barn are unable to resolve the claims described in a valid Notice within 30 days after Small Business Barn receives that Notice, you or Small Business Barn may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the ARS’s site at www.arbresolutions.com. In addition to filing this form with the ARS 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 Small Business Barn at the following address: Small Business Barn, 120 Madeira Dr NE, STE 220, Albuquerque, NM 87108. In the event Small Business Barn initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Small Business Barn account. Any settlement offer made by you or Small Business Barn shall not be disclosed to the arbitrator.
If you are a resident of the United States, then the arbitration hearing shall be held in the in Albuquerque, New Mexico, United States, or another mutually agreed 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 Small Business Barn may attend by telephone, 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 is bound by rulings in prior arbitrations involving the same Small Business Barn 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.
3. Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the ARS’s rules, unless otherwise stated in this Agreement to Arbitrate.
4. 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 USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO SMALL BUSINESS BARN LLC., ATTN: Legal, OPT-OUT NOTICE, 120 Madeira Dr NE, STE 220, Albuquerque, NM 87108.
We have created an Opt-Out Notice form for you. You must complete and mail that to us in order to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the Small Business Barn Service account(s) to which the opt-out applies. 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.
With the exception of any of the provisions in Section 1 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.
6. Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User 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 Small Business Barn 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 Small Business Barn. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.SmallBusinessBarn.com at least 30 days before the effective date of the amendments and by providing notice through the Small Business Barn Message Center and/or 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
All claims or disputes that are not subject to the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, and all matters brought pursuant to and in aid of the Agreement to Arbitrate will be resolved exclusively by a state or federal court located in Albuquerque, New Mexico. You and Small Business Barn agree to submit to the personal jurisdiction of the courts located within Albuquerque, New Mexico for the purpose of litigating all such claims, disputes, or matters.
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.SmallBusinessBarn.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 may amend this User Agreement at any time by posting the amended terms on www.Smallbusinessbarn.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we will notify you through the Small Business Barn Message Center and/or by email. 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 User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and a Small Business Barn representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
Without limiting Small Business Barn’s ability to refuse, modify, or terminate all or part of our Services, Small Business Barn 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 Small Business Barn 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.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and Small Business Barn, and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Holds and Restricted Funds, Managed Payments, Additional Terms, Disclaimer of Warranties; Limitation of Liability; 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.
Pursuant to 815 ILCS 414/1.5(c), for transactions involving tickets to events in Illinois, buyers and sellers may elect to submit complaints against one another to the Arbitration Resolution Services (“ARS”) under its rules and procedures. The ARS’s rules are available at www.arbresolutions.com. Such complaints shall be decided by an independent arbitrator in accordance with this User Agreement. Buyers and sellers further agree to submit to the jurisdiction of the State of Illinois for complaints involving a ticketed event held in Illinois.