Terms and Conditions
Instacell Sales and Services Agreement (or “Agreement” in the following text)
Effective Date: 08/16/2019
Instacell and all its subsidiaries and affiliates (“Instacell,” “we,” or “us”) provides services (or the “Instacell Services”) allowing you to (i) sell specific electronic devices after receiving an “offer” from Instacell and (ii) purchase specific electronic devices from Instacell. The specific electronic devices bought and sold through the Instacell Services are referred to herein as the “Devices”. In order to use the Instacell Services and/or the Instacell Website You must agree to abide by the following terms (see below).
By creating your Instacell profile, or using the Instacell website or Instacell services, you automatically agree to the following terms, including arbitration of any and all disputes as set forth in section 25 (see below), which may be a subject to change at any time by posting amended terms on the Instacell website. Any amended terms will be considered as effective immediately once they are posted. Instacell reserves the right to terminate or suspend your use of the Instacell Website and/or the Instacell Services if you do not comply with this Agreement or any other Instacell policy or procedure, or for any other reason we determine as reliable, in our discretion.
- Agreement Definitions
This Agreement defines any offer you receive (i) to sell your Device to the website Instacell.com operated by Instacell (the “Instacell Website”) or (ii) to purchase a Device from the Instacell Website. This Instacell Purchase, Sale and Services Agreement and the terms defining your use of the Instacell Website, the Instacell Services and any and all applications included therein, and any supplemental terms or policies that accompany a specific sale, purchase, transaction, feature or offer, collectively, make up an agreement between you and Instacell (the “Agreement”). You agree that this Agreement is in electronic form and has the same force and effect as a written agreement. “You” or “your” refers to an individual/entity entering this Agreement.
- Requirements for Device Sales and Purchases
If you wish to sell your Device to Instacell or to purchase a Device from Instacell, you must open an account and provide current and accurate information about yourself. In the case of selling your Device to Instacell, you agree to accurately identify the Device and its condition when completing transactions on the Instacell Website. You must also accept all of the terms of this Agreement and with all applicable laws and regulations, including all import and export laws as described in Section 13 (see below). You may only buy/sell on your behalf and not on behalf of others. You must be over 18 years old and can legally enter into agreements. To receive payment for any Device you sell to Instacell, you must provide us with your first and last name, a valid email address through which you comply to communicate with Instacell, and a valid physical mailing address where you receive mail.
When purchasing a Device from Instacell, you must provide us with information including first and last name, a valid email address through which you agree to communicate with us, your phone number, your correct billing address, and a valid physical mailing address where you receive mail (if it is different from your billing address). The following applies:
- You – You must agree with all of the terms of this Agreement and with all applicable laws and regulations, including all import and export laws as described in Section 13 (see below). You may only buy/sell on your behalf and not on behalf of others. You must be over 18 years old and can legally enter into agreements.
- Credit Card or PayPal – Your credit card will be charged by Instacell when your purchase is made, unless you choose to pay with your PayPal account.
- Sales Tax – State sales tax will apply in any jurisdiction in which we are obligated to collect sales tax.
- Returns – Instacell has a 30-day return policy starting from the date of purchase, as recorded by Instacell. In the event of a return, Instacell will refund the full amount of the purchase price, plus any applicable sales tax, after confirming receipt of the Device being returned.
- Carrier Services – Please note that the shipping services offered by Instacell are free of charge. If in any case these terms differ, you will be informed in due time.
- Device Pricing – Instacell adjusts the prices based on a variety of factors, including market conditions and individual Device condition, and therefore does not price match other sellers of similar devices and does not provide price adjustments after the payment is complete. Prices for the same or similar devices may vary between the Instacell Website and third-party marketplaces.
- Device Availability – Devices are not guaranteed to be available until the purchase order is accepted by Instacell and confirmed on the Instacell Website. Instacell reserves the right to cancel any purchase order at any time prior to delivery of the Device for any reason.
- Customer Support – Instacell does not provide any technical or other support in connection with any Device offered for sale through the Instacell Website. You are responsible for all Device’s use and set up. Instacell is not responsible for communication errors should your contact information be inaccurate or incomplete. You are responsible for receiving and reading emails from Instacell. You agree that Instacell is not responsible for any payments sent to a wrong person because of incorrect information submitted by you, and that any unclaimed funds may be subject to collection by governmental authorities. You agree that Instacell has no obligation to you if any of your unclaimed funds are provided to those authorities under applicable law.
- Device Eligibility
Instacell determines, in its sole discretion, which Devices are eligible for purchase and sale by Instacell. Instacell may terminate eligibility of certain Devices at any time without notice, but such termination will not affect any Devices for which you have already accepted an offer, which is good for 30 days, except as defined in Section 9 below.
- Condition of Device
As described in Section 9, when you sell a Device to Instacell, we will inspect your Device condition upon receipt and will compare that condition to the answers you provided during the submission process on the Instacell Website. If you are uncertain about your Device’s condition, seek guidance by contacting our customer care.
- Device Valuation
All offers made by Instacell to purchase Devices will be based on Instacell’s determination of Device value and depend on the accuracy of the information you provide to us. Instacell will use its discretion to determine Device value based on, among other things, the Device model, functionality and condition and whether necessary Device accessories have been provided by you. Upon receiving an offer for your Device from Instacell, you have the right to accept or reject it. Acceptance means you agree to provide your Device to Instacell at the offered price. If you do not accept Instacell’s offer and do not send your Device to Instacell, the mentioned transaction will expire after 30 days. If you still want to sell your Device to Instacell after rejecting an offer from Instacell, you must start a new transaction (at which point Device eligibility and offer value may be different from the initial offer).
- Sale Eligibility
You must have all right, title, and interest in any and all Devices you seek to sell to Instacell and all Devices must be able to be activated for new service. Devices and their sale and shipment to Instacell: a) must comply with all applicable laws, statutes, ordinances, including without limitation all import and export laws as described in Section 13 below, b) may not infringe on third party intellectual property rights (including copyrights, trademarks, patents, trade secrets or other proprietary rights), and c) shall not be counterfeit, stolen, or fraudulent. You represent and warrant that any Devices you sell to Instacell are free of any liens or encumbrances, including third-party software which may not be transferred or for which royalties are due. By using the Instacell Services, you agree to indemnify Instacell from all claims or losses sustained by Instacell as a result of any breach of your representations and warranties. It is your responsibility to cancel any wireless service, carrier service contracts and/or data plans on your Device before selling it to Instacell. Instacell is not responsible for any service charge related to your Device, whether you incur such charges before, during or after your use of the Instacell Services. It is also your responsibility to remove any security codes (like Find My iPhone) that would prevent resale or use of any Device you sell to Instacell.
- Shipping Your Device to Instacell
When packaging your Device, you must include all required accessories and materials for your Device. This may include software, accessories, adapters, and manuals. Failure to do so, or if you send us a different Device or something else entirely, may delay the payment of any refund you request from Instacell or result in a lower payment for your Device or rejection of the Device and cancellation of the offer.
- Removing Data from Your Device
You must remove or back up and store any data you wish to keep from your Device, and remove any personal information from the Device, before sending it to Instacell. We remove all data and information from the Devices we purchase, but we make no guarantee that we will do so. By sending Instacell your Device, you agree to release us from any claim regarding or arising from the Device, the data stored in the Device, or any information on any media used in conjunction with the Device you send to Instacell, or for such data’s security, integrity, confidentiality, disclosure or use. Instacell is not responsible for any loss suffered by you due to any data that is not erased from the Device and transferred to a third party, or any loss of data after you submit a Device to Instacell.
- Device Inspection and Final Offer
When selling your Device to Instacell, your Device must be received by Instacell within 30 days once you accept the initial offer provided by Instacell on the Instacell Website (or the “Offer Period”) or the offer will automatically expire. You must use and follow the packing and shipping instructions provided to you by Instacell to avoid possible delays in processing, damage to or loss of the Device. Instacell will inspect all Devices you provide and reserves the right to reject the Device, including without limitation, because the Device does not conform to the description you provided during your communication on the Instacell Website, the Device is modified such that it no longer conforms to the original factory specifications, the Device no longer complies with applicable laws or regulations (such as FCC rules) and/or the Device is damaged or lost in transit. If Instacell rejects the Device for any reason, including the above reason(s), the initial offer will automatically expire. Instacell reserves the right to revoke the initial offer and make an adjusted offer for the Device in the event a) the Device and/or included accessories and materials are not as described, b) the Device is received by Instacell after the Offer Period, and/or c) Instacell receives Device(s) that do not match those described by you in your transaction(s) on the Instacell Website. Instacell makes an adjusted offer for your Device, and you will be given five (5) days from the date of that offer to accept or reject the adjusted offer. If you reject the adjusted offer, or do not accept it during that five (5) day period, the adjusted offer will automatically cancel and the Device will be returned to you. The amount paid to you, if any, will reflect the value of the initial offer or any adjusted offer accepted by you on the Instacell Website.
- Transfer of Device Rights to Instacell
Once you sell/return your Device, Instacell cannot and does not guarantee that it will be able to return the Device (including any information contained in it). If Instacell rejects the Device, your Device will be returned to you; provided, however, that Instacell reserves the right to dispose of, and not return to you, anything you send to Instacell that does not qualify as mobile electronic device as determined by Instacell (such as, a television, set top box, laptop computer, food, clothing or anything else that doesn’t resemble the Device you described during your communication on the Instacell Website). Ownership of the Device passes to Instacell upon Instacell’s acceptance of the Device. If Instacell returns a Device to you, for whatever reason, ownership shall not pass and shall remain with you.
- Loss Risk
When selling a Device to Instacell, you are responsible for the loss risk or damage to any Device until it is received by Instacell. Instacell is responsible for loss risk when it receives your Device at the specified shipping location, and Instacell remains responsible for the loss risk unless/until Instacell returns the Device to you. If you return a Device to Instacell that you purchased from Instacell, you are responsible for the loss risk for the Device until Instacell receives the Device. You are responsible for any damage that may occur to the Device while in transit back to Instacell.
- Non-Transferable Offers
Any offer for your Device made by Instacell is non-transferable and not redeemable for any other consideration other than what is finally paid by Instacell after inspection of your Device.
- Import and Export Laws
You agree to fully comply with all import and export laws, regulations, rules and orders of the United States, or any government agency or authority, and you will not directly or indirectly transfer any Device without authorization. You bear responsibility for and assume all expenses relating to your compliance with governing laws, regulations, rules and orders, and for obtaining all necessary authorizations and clearances in order to convey any Device to Instacell in connection with a sale, including without limitation, valuation, classification and duties applicable with the import of any goods.
*Note: United States trade sanctions administered by the Office of Foreign Assets Control (“OFAC”) generally prohibit the importation into the United States (including United States territories), either directly or indirectly, of most goods, technology or services from, or which originated from, Crimea, Cuba, Iran, North Korea, or Syria; or from persons designated on restricted parties lists administered by OFAC. In addition, under United States export regulations there are restrictions on exports of items to these destinations, and to Sudan, and to restricted parties designated by OFAC or designated on restricted parties lists administered by the Departments of State and Commerce. You may not offer or provide to Instacell, any Device that would violate the provisions of this Section 13.
- Various Promotions
Occasionally and at Instacell’s sole discretion, Instacell may provide promotional offers. Promotions involving payments are applied as an increment to the final payment for your Device, but they are not considered a change in the final offer for the Device or its value. Promotional programs have explicitly defined terms, including, but not limited to, expiration, usage per person and per transaction, and other limitations and restrictions. Unless otherwise stated, promotions must be applied by you before checkout. To avoid doubt, after checkout is completed, promotions cannot be applied to the same transaction. Instacell reserves the right, in its sole discretion, to cancel or refuse any promotions.
- Information Accuracy
Instacell makes full efforts to provide the accuracy of all information you receive regarding your Device. However, there may be occasional typographical errors, technical inaccuracies, pricing or other errors or omissions. As such, Instacell reserves the right, at any time prior to payment, to correct errors or change an offer.
- Electronic Notices and Transactions
You agree to transact with us electronically, and agree to the terms or offering to sell your Device electronically. You authorize Instacell to provide you with terms and important Instacell notices and your transactions to an email address you provide to us or by posting notices on your account area on the Instacell Website. It is your duty to keep your email address accurate and up to date and to maintain a valid email address and to make sure that emails we send you are not filtered or stopped by junk mail and spam filters). If you no longer desire to transact electronically with us, you may no longer use the Instacell Website.
- Services Use
By using the Instacell Website, you agree not to i) access any of the Instacell Services by any means (including, without limitation, by use of scripts, web crawlers or similar methods) other than through the user interface provided by Instacell and ii) engage in any other activity that interferes with or disrupts the Instacell Services or performance of the Instacell Website.
- No Warranties
To the fullest extent permitted by applicable law, the Instacell services and Instacell website are provided “As is,” “With all faults,” and “As available,” without express or implied warranties of any kind. Instacell disclaims any implied warranties of merchantability, accuracy, fitness for a particular purpose, non-infringement and the implied conditions of satisfactory quality. We make no representations that your transactions with Instacell will meet your requirements.
- Limited liability
To the fullest extent permitted by applicable law, in no event shall Instacell or its employees, owners and/or representatives (collectively, the “Instacell parties”) be liable for any compensatory, indirect, incidental, consequential, or special damages, loss of data, income or profit, loss of or damage to property, or any claims of you or other third parties whatsoever with respect to your transactions with Instacell under this agreement regardless of the legal theory on which the claim is based, whether based in contract, tort, negligence, warranty, or otherwise. To the fullest extent permitted by applicable law, in no event shall the maximum aggregate liability of Instacell and the Instacell parties (jointly) arising out of or relating to your access to or use of the Instacell services and Instacell website exceed the greater of (i) the amount paid, if any, by you to us or (ii) $XXXX500. The limitations defined in this agreement will not limit or exclude liability for Instacell’s gross negligence, fraud or intentional, malicious or reckless misconduct, or for personal injury or property damage caused by devices you purchase through the Instacell services.
You agree to indemnify, defend, and hold harmless Instacell and the Instacell Parties from and against any and all claims, liabilities, damages, losses, costs, expenses, or fees (including reasonable attorneys’ fees) that such parties may incur as a result of or arising from your violation or breach of any terms under this Agreement. We reserve the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you and, in such case, you agree to cooperate with our defense of such claim.
- No Waivers
This Agreement constitutes the entire agreement of the parties. The captions are only for convenience and are not part of this Agreement or to be used in determining the intent of the parties. No waiver by Instacell of any breach or default hereunder shall be considered to be a waiver of any preceding or subsequent breach or default. Sections 5, 6, 8, 9, 10, 11, 13, 15, 18, and 19 through 25 shall survive termination of this Agreement.
- Agreement Changes
Instacell reserves the right to amend and/or modify this Agreement at any time. If you do not agree with the modifications, you may stop using the Instacell Website and/or the Instacell Services. Your continued use of any Instacell Website and/or Instacell Services after any such changes take effect represents your acceptance of such changes. Each time you buy or sell a Device using the Instacell Services, you reaffirm your acceptance of this Agreement in effect at the time of your use of the Instacell Services or the Instacell Website. You are responsible for reviewing this Agreement each time you use the Instacell Services and/or the Instacell Website.
- Applicable Law and Venue
This agreement and the terms of the purchase and sale of devices using the Instacell services and the transfer of devices ownership, are governed by and construed in accordance with XXXXXTexas law and to the extent applicable, the laws of the United States. No conflict of laws or provisions of any jurisdiction will apply to this agreement or to such terms.
- Dispute resolution
If there’s an issue that needs to be resolved, this section outlines what’s expected of both of you and Instacell. You and Instacell both agree to resolve disputes only by arbitration or in small claims court. You understand that by this agreement you are giving up the right to bring a claim in court or in front of a jury. While the procedures may be different, an arbitrator can award you the same damages and relief, and must honor the same terms in this agreement, as a court would. If the law allows for an award of attorneys’ fees, an arbitrator can award them too. We both agree that:
(1) The federal arbitration act applies to this agreement. Except for small claims court cases, any dispute that in any way relates to or arises out of this agreement or from any equipment, products and services you receive from us (or from any advertising for any such products or services), including any disputes you have with our employees or agents, will be resolved by one or more neutral arbitrators before the American Arbitration Association (“AAA”) or Better Business Bureau (“BBB”). You can also bring any issues you may have to the attention of federal, state, or local government agencies, and if the law allows, they can seek relief against Instacell for you. This agreement to arbitrate continues to apply even after you have stopped receiving service from Instacell.
(2) Unless you and Instacell agree otherwise, the arbitration will take place in the county of your mailing address provided to us on the Instacell website. For claims over $5,000, the AAA’s consumer arbitration rules will apply. For claims of $5,000 or less, the party bringing the claim can choose either the AAA’s consumer arbitration rules or the BBB’s rules for binding arbitration or, alternatively, can bring an individual action in small claims court. For claims of $5,000 or less, you can choose whether you’d like the arbitration carried out based only on documents submitted to the arbitrator, or by a hearing in person or by phone.
(3) This agreement doesn’t allow class or collective arbitrations even if the AAA or BBB procedures or rules would. Notwithstanding any other provision of this agreement, the arbitrator may award money or injunctive relief only in favor of the individual party seeking relief and only to the extent necessary to provide relief warranted by that party’s individual claim. No class or representative or private attorney general theories of liability may be maintained in any arbitration held under this agreement. Any question regarding the enforcing or interpretation of this paragraph shall be decided by a court and not the arbitrator.
(4) If either of us intends to seek arbitration under this agreement, the party seeking arbitration must first notify the other party of the dispute in writing at least 30 days in advance of initiating the arbitration. Notice to Instacell should be sent to Instacell firstname.lastname@example.org etc.The notice must describe the nature of the claim and the relief demanded. If we are unable to resolve our dispute within 30 days, either party may then proceed to file a claim for arbitration. Instacell will reimburse any filing fee that the AAA or BBB charges you for arbitration of the dispute. If you provide us with signed written notice that you cannot pay the filing fee, Instacell will pay the fee directly to the AAA or BBB. If that arbitration proceeds, we will also pay any administrative and arbitrator fees charged later.
(5) We may, but are not obligated to, make a written settlement offer at any time before the arbitration hearing. The amount or terms of any settlement offer may not be disclosed to the arbitrator until after the arbitrator issues an award on the claim. If you do not accept the offer and the arbitrator awards you an amount of money that’s more than our offer but less than $5,000, or if we don’t make you an offer, and the arbitrator awards you any amount of money but less than $5,000, then we agree to pay you $5,000 instead of the amount awarded. In that case, we also agree to pay any reasonable attorneys’ fees and expenses, regardless of whether the law requires it for your case. If the arbitrator awards you more than $5,000, then we will pay you only that amount.
(6) An arbitration award and any judgment confirming it apply only to that specific case, and it can’t be used in any other case except to enforce the award itself.
(7) If for some reason the prohibition on class arbitrations set forth in subsection (3) cannot be enforced, then the agreement to arbitrate will not apply.
(8) If for any reason a claim proceeds in court rather than through arbitration, you and Instacell agree that there will not be a jury trial. You and Instacell unconditionally waive any right to trial by jury in any action, proceeding or counterclaim arising out of or relating to this agreement in any way. In the event of litigation, this paragraph may be filed to show a written consent to a trial by the court.
If you have any questions, concerns, or suggestions regarding this Agreement, please contact us at 240-778-7713.