This document contains important information regarding the terms and conditions which govern your account with thePit.com, Inc., hereinafter referred to as "thePit.com." Your access to and use of your account and thePit.com services are subject to your compliance with all the terms and conditions set forth in this Account Agreement.
You understand that access to and your use of your account constitutes your consent to and agreement to abide by the terms and conditions of this Account Agreement. thePit.com may at any time revise these terms and conditions by updating the Account Agreement. You agree to be bound by subsequent revisions and agree to review the Account Agreement periodically for changes to the terms and conditions of the Account Agreement. The most up to date version of the Account Agreement will always be available for your review on the website.
In this Agreement, "you" and "your" refer to the individuals, corporations or parties who are the account holders, have an interest in the account(s) and sign this Account Agreement. "thePit.com" refers to thePit.com., Inc., its employees, representatives, officers, directors, agents, successors and assigns. The "website" refers to www.thepit.com.
You represent and warrant that the information you supply in your new account documentation requested by thePit.com and provided by you is accurate and truthful.
In consideration of thePit.com accepting and maintaining an account for you, you hereby understand, consent, and agree to all of the terms and conditions of this Agreement.
- Transaction Decisions. Your account with thePit.com is self-directed. You acknowledge that you are solely responsible for any and all orders placed in your account. Any investment or trading decisions you make are unsolicited, done at your sole discretion, and at your own risk. You further understand that while you may be able to access news stories, market reports, analysis reports, research reports, and other data from the website, no such information constitutes a recommendation from thePit.com to buy or sell any of the cards listed on the website.
- Representation as to Capacity to Enter into Agreement. You represent that you have the required legal capacity and that you are of the required legal age (i.e., eighteen years of age) to enter into this Agreement and that no one except you has any interest in your account with us.
- Purchase of Sports Cards. You understand there may be occasions when thePit.com cannot ship cards you have ordered from the website, even if such an order has been executed, because a seller has defaulted on a transaction and/or thePit.com is unable to acquire the card[s] due to market making activities. In these instances, thePit.com will refund your account the purchase price you paid at the time your buy order was executed plus applicable commissions.
- Sales of Sports Cards. When thePit.com executes your order to sell cards that are in your account with thePit.com, thePit.com immediately credits your account with the appropriate funds (sale price minus applicable commissions and fees). While thePit.com will execute an order to sell cards which you have not yet deposited in your account (SNIA), thePit.com must physically receive such cards in proper deliverable condition within 5 days (excluding Sundays) of the date such order was executed. You are responsible for a fee of $25 and five percent (5%) of the sell price at the time of execution and any additional losses or expenses incurred by thePit.com as a result of your failure to make such timely delivery, including but not limited to losses suffered as a result of increases in market value. thePit.com will collect such fees from the credit card number you place on file with thePit.com before you are able to place an order. You further understand thePit.com may halt any and all trading activity of your account if you fail to make timely delivery. Proceeds of the sale cannot be paid to you until the card(s) have been received by thePit.com in proper deliverable condition.
You understand that while you have five days (excluding Sundays) from the sale date for thePit.com to receive cards which you sell to thePit.com that are not in your account at the time of sale, you must own all such cards at the time you place the order and at the time such order is executed by thePit.com. You further understand you must send such cards to thePit.com within five days of the sale date and that purchasing these cards from thePit.com during this five day period will not relieve you of your obligation to send us such cards. Short selling is strictly prohibited.
- Market Makers. You understand that that thePit.com may hold positions in the sports cards listed or otherwise mentioned on the website. You understand that thePit.com may trade for its own account as a market maker and is the party with whom you are making transactions. You understand that thePit.com is under is no obligation to market make or post bids or asking prices for any sports cards listed on the website. You understand that since the launch of ThePit, market makers have and will take a position in most if not all items offered on ThePit. As with any market maker in stock trading, ThePit market makers will take both short and long positions. In the event that ThePit market maker is long, you understand that he/she may look to sell their long positions at a discount on ThePit or through its partners. In the event that ThePit market maker is short, he/she may look to recover their positions at a higher than market value by buying on ThePit or through other partners. You undersand that in the event that there is a call on a short position that ThePit is not able to fulfill, it will attempt to acquire the item(s) elsewhere, deposit the items back into the customer’s account until such item(s) are acquired and/or offer to purchase the item(s) at a fair market value.
- Cards as Commodities. You understand that on the website, thePit.com treats different individual sports cards of the same exact athlete, manufacturer, issue, set, year, grade, and grading agent as fungible, interchangeable sports cards. You understand and agree that if you physically deliver a sports card to be deposited in your account with thePit.com and then subsequently request delivery of that card, thePit.com will more than likely not ship to you the identical serial numbered card you previously delivered but rather a card of the same exact athlete, manufacturer, issue, year, grading agent and grade. Note that thePit.com does not buy or sell cards that have qualifiers of any kind.
- Order Entry. You understand that entering an order with thePit.com does not guarantee execution of the order and you agree that thePit.com shall not be responsible for any order that is not executed. You understand that all orders placed with thePit.com are limit orders which thePit.com's market makers must affirmatively accept before they can be executed. Do not assume that any order has been executed until you have received a transaction confirmation from thePit.com via e-mail or the website. You further understand that thePit.com has the right to break any executed transaction on the grounds that it was, in their opinion, "clearly erroneous." thePit.com shall not be deemed to have received any order electronically transmitted by you until it has actual knowledge of such order.
- Transactions and Settlements. All orders for the purchase and sale of sports cards will be authorized by you and executed with the understanding that an actual purchase or sale is intended. You understand that while you have five days (excluding Sundays) from the day of sale for thePit.com to receive cards which you sell to thePit.com that are not in your account at the time of sale, you must own all such cards at the time you place the order and at the time such order is executed by thePit.com. You further understand that you must send such cards to thePit.com within five days (excluding Sundays) of the sale date and that purchasing these cards from thePit.com during this five day period will not relieve you of your obligation to send us such cards. Short selling is strictly prohibited.
- Order Confirmations, Statements, Notices and Other Communications. You understand that it is your responsibility to review, upon first receipt, whether delivered to you by e-mail, by a posting on the website, or by all other electronic means, all order confirmations, statements of account balances, holdings, transaction history, notices and other communications. All information contained therein shall be binding upon you, if you do not object, either in writing or via electronic mail, within forty-eight hours after any such document or information is sent to you or available on the website. In all cases, thePit.com reserves the right to determine the validity of your objection to the transaction. Such notices, information and other communications from thePit.com shall be deemed to be delivered and available to you whether actually received or not.
You agree that thePit.com fulfills its legal obligation to deliver to you any such document if sent via electronic delivery. Electronic delivery may be in the form of an email, an electronic mail attachment, a posting on the website, or in the form of an available download from the website. You represent that you will download the relevant document promptly after receiving notice of its availability. Should you experience any difficulty opening a document electronically delivered by thePit.com, you will promptly advise thePit.com in order to allow us to make the required delivery by other means. Failure to advise thePit.com of such difficulty within forty-eight hours after delivery shall serve as an affirmation that you were able to receive and open said document.
- Cancellation Requests. When you place a request to cancel an order, the cancellation of that order is not guaranteed. Your order will only be cancelled if your request is received by thePit.com's market makers before they have executed it. During market hours, orders are subject to immediate execution. Do not assume that any order has been cancelled until you have received a transaction confirmation from thePit.com via e-mail or the website.
- Account. You acknowledge and agree that that your purchase from the ThePit allows you the opportunity to request shipment for a shipping and handling fee. You can keep your purchases in ThePit for no storage fees if you remain active on the site (24 months). If you do not remain active you must request delivery or a storage fee will be applied (see Non-Active Account Fees). You understand that thePit.com reserves the right, in its sole discretion, to determine which cards are listed to be traded on thePit.com and may at any time, and in its sole discretion, de-list a card thereby requiring you to request shipment of those cards in your account that are subsequently delisted. You understand that sports cards owned by you that are held in your account at thePit.com are not physically segregated from the sports card inventory of thePit.com or the sports cards owned by customers of thePit.com in their accounts.
Active/Non-Active Account: You understand and acknowledge that thePit.com holds cash balances of its customers in a customer account. You understand and agree that thePit.com is not acting as a trustee, fiduciary, escrow agent, banking service or storage facility with respect to cash and inventory balances of its customers. You understand that ThePit will allow you to keep cash balances and inventory in your account for Free as long as you are an "Active User" (one that enters into a transaction on ThePit over the last 24 months). Any user with holdings (cash or inventory) that doesn't perform a transaction over the last 24 months will be changed to a Non-Active user and their account will be subject to a $19.95 or 10% of total balance monthly fee (which ever is greater).
- Delivery of Sports Cards. To ship cards to you, thePit.com requires your account contain sufficient funds or pay with a credit card or PayPal to both ship and insure your cards at the time of shipment. You understand thePit.com fully insures, at your expense, all cards that it ships to you, that you have deposited with thePit.com, or that you have purchased from thePit.com, for the full value of the card(s) at the time of shipment. You understand that any claim that you did not receive such cards or that they were received in damaged condition will be investigated by both thePit.com and its private insurance carrier. You further understand and agree that in the event of a loss covered by such insurance, thePit.com cannot guarantee it will physically deliver to you the cards but it will credit your account for the payment provided by the insurance carrier. thePit.com will credit your account for alleged loss or damage only if and when the private insurance carrier makes payment to thePit.com.
You understand and agree thePit.com is not responsible for any errors, omissions, claims, or disputes regarding the particular grade of any cards physically delivered to you by thePit.com. All such inquiries and complaints shall be submitted directly to the grading agent that graded the card.
You acknowledge and agree that you are solely responsible for any cost, including but not limited to the payment of insurance, and the delivery of sports cards to thePit.com in proper deliverable condition that you have sold to thePit.com or that you intend to deposit in your account. You acknowledge thePit.com will not accept, for deposit in your account, any sports cards that are not listed to be traded on thePit.com or any sports cards you have sold to thePit.com but that are not received in proper deliverable condition and thePit.com will return all such cards to the mailing address listed on your individual account application. You are responsible for any losses or expenses incurred by thePit.com in sending such cards back to you.
You understand there may be occasions when thePit.com cannot ship cards you have ordered from the website, even if such an order has been executed, because a seller has defaulted on a transaction, thepit market maker has a short position and/or thePit.com is unable to acquire the card[s] on its or one of its partners sites. In these instances, thePit.com will refund your account the purchase price you paid at the time your buy order was executed plus applicable commissions.
- Fees and Charges. You understand that thePit.com may charge commissions and other fees for execution or any other service furnished to you, and you agree to pay such commissions and fees at thePit.com's then prevailing price. You acknowledge and agree that such commission rates and fees are determined and set solely by thePit.com and are subject to change at any time, with reasonable notice by posting such notice on the website, and you agree to be bound thereby. A schedule of fees is available on the website.
- Market Data. You understand that thePit.com asserts a proprietary interest in all of the Market Data it furnishes on its website, including but not limited to the price quotations for sports cards on its website and/or last sale information for completed card transactions. You agree to use such Market Data only for your individual non-business use and shall not furnish such data to any other person or entity. You are not authorized to resell access to any such data or to make copies of such data for sale or use to and by others.
You understand that thePit.com does not guarantee the timeliness, sequence, accuracy, completeness, reliability, or content of market information, or messages disseminated to or by any party. You understand that thePit.com does not warrant that the service will be uninterrupted or error-free. You agree that your use of the website or any service of thePit.com is at your sole risk. thePit.com service is provided on an "as is", "as available" basis without warranties of any kind, either express or implied, including, without limitation, those of merchantability and fitness for a particular purpose, other than those warranties which are implied by and incapable of exclusion, restriction or modification under the laws applicable to this Agreement.
thePit.com is not liable, and you agree to indemnify and hold harmless thePit.com, for any inaccuracy, error or delay in, or omission of, (1) any such data, information or message, or (2) the transmission or delivery of any such data, information or message; or any loss arising from or occasioned by (i) any such inaccuracy, error, delay or omission, (ii) non-peformance, or (iii) interruption in any such data, information or message, due either to any act or omission by thePit.com or any disseminating party or to any "force majeure" (e.g., flood, extraordinary weather condition, earthquake or other act of God, fire, war, insurrection, riot, labor dispute accident, action of government, communications or power failure, equipment or software malfunction) or any other cause beyond the reasonable control of thePit.com or any disseminating party.
- Associated Press. Associated Press ("AP") text, photo, graphic, audio and/or video material shall not be published, broadcast, rewritten for broadcast or publication or redistributed directly or indirectly in any medium. Neither these AP materials nor any portion thereof may be stored in a computer except for personal and non-commercial use. AP will not be held liable in any way to the User or to any third party or to any other person who may receive information in the Service or to any other person whatsoever, for any delays, inaccuracies, errors or omissions therefrom or in the transmission or delivery of all or any part thereof or for any damages arising from any of the foregoing or occasioned thereby.
- Responsibilities and Limitations of Liabilities. You understand that if and when your account application is accepted, we will send you, via the email address you provided, a password which provides access to your account. You represent that you will be the sole and exclusive authorized user of such password and you accept sole responsibility for use, confidentiality and protection of the password as well as for all orders and information changes (i.e., changes of address) entered into your account using such password.
You accept full responsibility for the monitoring and safeguarding of your account. You will immediately notify thePit.com in writing, delivered via e-mail and certified/return receipt requested U.S. mail, if you become aware of any loss, theft or unauthorized use of your password and account number; or any failure by you to receive a message from us indicating that an order was received and executed; or any failure by you to receive an accurate written confirmation of an execution; or any receipt by you of confirmation of an order and/or execution which you did not place; or any inaccurate information in your account balances, positions, or transaction history.
If you fail to notify thePit.com immediately upon your knowledge when any of the above conditions occur, neither thePit.com nor any of its officers, directors, employees, agents, affiliates or subsidiaries can or will have any responsibility or liability to you or to any other person whose claim may arise through you for any claims with respect to the handling, mishandling or loss of any order. Under no circumstances, including negligence, shall thePit.com or anyone involved in creating, producing, delivering or managing thePit.com's services be liable for any direct, indirect, incidental, special or consequential damages that result from the use of or inability to use the service, or out of any breach of any warranty. This exclusion or limitation of liability will not apply to the extent that any applicable statute prohibits such exclusion or limitation of liability. To the extent that any applicable statute applies which modifies the above, thePit.com's liability shall not include any hypothetical gains or losses, and it is agreed that the trier of fact shall only consider the actual facts, or lack thereof, of the parties to this Agreement.
The use and storage of any information, including, without limitation, the password, portfolio information, transaction activity, account balances and any other information or orders available on your personal computer is at your own risk and is your sole responsibility. You are responsible for providing and maintaining the communications equipment (including personal computers and modems) and telephone or alternative services required for accessing and using the website or related services, and for all communications service fees and charges incurred by you in accessing the website or related services.
- Limitations, Restrictions and Termination of thePit.com Services. You are authorized to use materials which are made available by thePit.com's services for your own needs only, and you are not authorized to resell access to any such materials or to make copies of any such materials for sale or use to and by others. You will not delete copyright or other intellectual property rights notices from printouts of electronically accessed materials.
You understand that thePit.com may at any time, at our sole discretion and without prior notice to you, including by reason of its ceasing operations, prohibit or restrict your access to the use of the website or related services or your ability to trade. thePit.com may terminate your account at any time for any reason, including by reason of thePit.com ceasing operations, and without prior notice to you. You are free to terminate your account with thePit.com at any time for any reason without any prior notice. In the event your account is closed, including by reason of thePit.com ceasing operations, thePit.com will promptly notify you, and send all cards then held by thePit.com in your account, and will charge or bill your credit card on file for the cost of shipping, handling and insurance. The closing of an account will not affect the rights and/or obligations of either party incurred prior to the date the account is closed.
- Monitoring and Recording Telephone Conversations and E-Mail. For your protection and for the protection of thePit.com, and as a tool to correct misunderstandings, you understand, agree and authorize thePit.com, at its discretion, and without further prior notice to you, to monitor and record any or all telephone conversations between you and thePit.com and any of thePit.com's employees or agents and to monitor your electronic communications with thePit.com.
- Legally Binding. You hereby agree that this Agreement and all the terms herein shall be binding upon you and your estate, heirs, executors, administrators, personal representatives, successors and assigns.
- Extraordinary Events/Technical Difficulties. You specifically agree to hold thePit.com harmless from any and all claims, and agree that thePit.com shall not be liable for any loss, actual or perceived, caused directly or indirectly by government regulation, exchange or market regulation, suspension of trading, war, strike, equipment failure, communication line failure, system failure, security failure on the Internet, unauthorized access, theft, or any problem, technological or otherwise, that might prevent you from entering or thePit.com from executing an order, or other conditions beyond our control. You further agree and understand that you will not be compensated by thePit.com for "lost opportunity", e.g, for any claim that you were unable to enter an order due to technical difficulties and the sports card you wished to purchase increased in value. Furthermore, in a technical environment, should an error occur with respect to the tracking of any account holding or order entry, the true, actual and correct transaction or position will be restored. It is your responsibility to ensure account correctness and accuracy and to contact thePit.com immediately with any discrepancies.
- The Laws of the State of California Govern. You hereby submit to personal jurisdiction within the State of California, and this Agreement and its enforcement shall be governed by the laws of California and shall cover individually and collectively all accounts you may open with thePit.com and shall be binding upon you and your successors (whether by merger, consolidation or otherwise), heirs, executors, administrators, and assigns. This Agreement shall inure to the benefit of thePit.com and its successors, assigns and agents. thePit.com may assign its rights and duties under this Agreement to any of its subsidiaries or affiliates without giving you notice, or to any other entity upon prior written notice to you.
- Arbitration Disclosure
Agreement to Arbitrate Controversies
- Arbitration is final and binding on the parties.
- The parties are waiving their right to seek remedies in court, including the right to jury trial.
- Pre-arbitration discovery is generally more limited than and different from court proceedings.
- The arbitrators' award is not required to include factual findings or legal reasoning and any party's right to appeal or seek modification or rulings by the arbitrators is strictly limited.
You agree that any and all controversies which may arise between you and thePit.com or any of its officers, directors, employees, agents, subsidiaries or affiliates including but not limited to those involving transactions of any kind made on your behalf by, through or with thePit.com, its officers, directors, employees, agents, subsidiaries or affiliates and the construction, performance or breach of this or any other agreement between you and thePit.com shall be determined by arbitration conducted before the American Arbitration Association ("AAA") in accordance with its arbitration rules then in force. You specifically agree, however, as permitted by statute and/or regulation, to arbitrate all such controversies before the ("AAA") in California, California. Judgement upon any award of the arbitrators may be entered in any court, state or federal, having jurisdiction thereof.
No person shall bring a putative or certified class action to arbitration, nor seek to enforce any predispute arbitration agreement against any person who has initiated in court a putative class action; or who is a member of a putative class who has not opted out of the class with respect to any claims encompassed by the putative class action until:
Waiver. Except as specifically permitted in this Agreement, no provision or condition of this Agreement can be, nor should be deemed to be, waived, altered, modified or amended unless agreed to in writing by an authorized officer of thePit.com.
- the class certification is denied; or
- the class is decertified; or
- the customer is excluded from the class by the court. Such forbearance to enforce an agreement to arbitrate shall not constitute a waiver of any rights under this Agreement except to the extent stated herein
If you are a foreign national, non-resident alien, or if you do not reside in the United States, you affirmatively agree to waive your right to file an action against thePit.com any foreign venue other than with the AAA as set forth above. The laws of the State of California will govern the interpretation and enforcement of the terms of this Agreement, and you further consent to the jurisdiction of the State of California over you individually with respect to this Agreement.
Amendments; Entire Agreement. You understand that access to and your use of your account constitutes your consent to and agreement to abide by the terms and conditions of this Account Agreement. thePit.com may at any time revise these terms and conditions by updating the Account Agreement. You agree to be bound by subsequent revisions and agree to review the Account Agreement periodically for changes to the terms and conditions of the Account Agreement. The most up to date version of the Account Agreement will always be available for your review on the website. Continued use of thePit.com after such changes will constitute acknowledgment and acceptance of such amendment. This Agreement represents the entire agreement between you and thePit.com concerning the subject matter hereof. Certain policies and/or procedures may be further outlined on thePit.com website, and by your use of thePit.com website and services, you agree to be bound by any and all such postings. You may not assign any right or obligations hereunder without first obtaining the prior written consent by an authorized officer of thePit.com.
Separability. If any provision or condition of this Agreement shall be held to be invalid or unenforceable by reason of any law, rule, administrative order or judicial decision by any court, or regulatory or self-regulatory agency or body, such invalidity or unenforceability shall attach only to such provision or condition. The validity of the remaining provisions and conditions shall not be affected thereby and this Agreement shall be carried out as if any such invalid or unenforceable provision or condition were not contained herein.
Headings are Descriptive. The headings of each provision hereof is for descriptive purposes only and shall not be deemed to modify or qualify any of the rights or obligations set forth in each such provision.