Terms of Service
Last updated June 18, 2020
Welcome to the Old Town Model Railroad Depot! We (Old Town Model Railroad Depot LLC, a California limited liability company, “Old Town Model Railroad Depot”) provide the website located at oldtowntrains.com (the “Site”) and the services accessible via our Site. To make these Terms easier to read, the Site and our services are collectively called the “Services.” Please read these Terms of Service (the “Terms”) carefully because they govern your use of our Services.
Agreement to Terms
By using our Services, you agree to be bound by these Terms. If you don’t agree to be bound by these Terms, please do not use the Services.
Changes to Terms or Services
We may modify the Terms at any time, in our sole discretion. If we do so, we’ll let you know either by posting the modified Terms on the Site or through other communications. It’s important that you review the Terms whenever we modify them because if you continue to use the Services after we have posted modified Terms on the Site, you are indicating to us that you agree to be bound by the modified Terms. If you don’t agree to be bound by the modified Terms, then you may not use the Services anymore. Because our Services are evolving over time we may change or discontinue all or any part of the Services, at any time and without notice, at our sole discretion.
Unless you opt out of arbitration within 30 days of the date you first agree to these terms by following the opt-out procedure specified in the “Arbitration” section below, and except for certain types of disputes described in the “Arbitration“ section below, you agree that disputes between you and Old Town Model Railroad Depot LLC will be resolved by binding, individual arbitration and you are waiving your right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding.
Who May Use the Services
You may use the Services only if you are 13 years or older and are not barred from using the Services under applicable law. To make a purchase via the Services (described in the Section titled “Purchases” below), you must be 18 years or older and capable of forming a binding contract.
Registration and Your Information
If you want to use certain features of the Services you’ll have to create an account (“Account”). You can do this via the App or the Site or through your account with certain third-party social networking services such as Facebook (each, an “SNS Account”). If you choose the SNS Account option we’ll create your Account by extracting from your SNS Account certain personal information such as your name and email address and other personal information that your privacy settings on the SNS Account permit us to access.
It’s important that you provide us with accurate, complete and up-to-date information for your Account and you agree to update such information, as needed, to keep it accurate, complete and up-to-date. If you don’t, we might have to suspend or terminate your Account. You agree that you won’t disclose your Account password to anyone and you’ll notify us immediately of any unauthorized use of your Account. You’re responsible for all activities that occur under your Account, whether or not you know about them.
When you purchase a product (each, a “Transaction”), we may ask you to supply additional information relevant to your Transaction, such as your credit card number, the expiration date of your credit card and your address(es) for billing and delivery (such information, “Payment Information”). You represent and warrant that you have the legal right to use all payment method(s) represented by any such Payment Information. The amounts due and payable by you for a Transaction through the Services will be presented to you before you place your order. If you choose to initiate a Transaction via the Services, you authorize us to provide your Payment Information to third party service providers so we can complete your Transaction and agree (a) to pay the applicable fees and any taxes; (b) that Old Town Model Railroad Depot may charge your credit card or third party payment processing account, including, but not limited to, your account with the app store or distribution platform (like the Apple App Store, Google Play or the Amazon Appstore) where the App is made available (each, an “App Provider”), for verification, pre-authorization and payment purposes; and (c) to bear any additional charges that your App Provider, bank or other financial service provider may levy on you as well as any taxes or fees that may apply to your order. You’ll receive a confirmation email after we confirm the payment for your order. Your order is not binding on Old Town Model Railroad Depot until accepted and confirmed by Old Town Model Railroad Depot. All payments made are non-refundable and non-transferable except as expressly provided in these Terms or on the applicable website sales or product page.
If you have any concerns or objections regarding charges, you agree to raise them with us first and you agree not to cancel or reject any credit card or third party payment processing charges unless you have made a reasonable attempt at resolving the matter directly with Old Town Model Railroad Depot.
Old Town Model Railroad Depot reserves the right to not process or to cancel your order in certain circumstances, for example, if your credit card is declined, if we suspect the request or order is fraudulent, or in other circumstances Old Town Model Railroad Depot deems appropriate in its sole discretion. Old Town Model Railroad Depot also reserves the right, in its sole discretion, to take steps to verify your identity in connection with your order. You may need to provide additional information to verify your identity before completing your Transaction (such information is included within the definition of Payment Information). Old Town Model Railroad Depot will either not charge you or refund the charges for orders that we do not process or cancel.
You may edit your Payment Method information by visiting our website and clicking on the “Your Account” link, available at the top of the pages of the Old Town Model Railroad Depot website. If a payment is not successfully settled, due to expiration, insufficient funds, or otherwise, and you do not edit your Payment Method information or cancel your account (see, “Cancellation” below), you remain responsible for any uncollected amounts and authorize us to continue billing the Payment Method, as it may be updated. This may result in a change to your payment billing dates. We may update your Payment Method with information provided by the applicable payment service provider, and you authorize us to continue to charge the membership fee to the updated Payment Method. For certain Payment Methods, the issuer of your Payment Method may charge you a foreign transaction fee or other charges. Check with your Payment Method service provider for details.
We welcome feedback, comments and suggestions for improvements to the Services (“Feedback”). You can submit Feedback by emailing us at email@example.com. You grant to us a non-exclusive, worldwide, perpetual, irrevocable, fully-paid, royalty-free, sublicenseable and transferable license under any and all intellectual property rights that you own or control to use, copy, modify, create derivative works based upon and otherwise exploit the Feedback for any purpose.
Content and Content Rights
For purposes of these Terms, (i) “Content” means text, graphics, images, music, software, audio, video, works of authorship of any kind, and information or other materials that are posted, generated, provided or otherwise made available through the Services; and (ii) “User Content” means any Content that users (including you) provide to be made available through the Services. Content includes without limitation User Content.
Old Town Model Railroad Depot does not claim any ownership rights in any User Content and nothing in these Terms will be deemed to restrict any rights that you may have to use and exploit your User Content. Subject to the foregoing, Old Town Model Railroad Depot and its licensors exclusively own all right, title and interest in and to the Services and Content, including all associated intellectual property rights. You acknowledge that the Services and Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You agree not to remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Services or Content.
Rights in User Content Granted by You
By making any User Content available through Services you hereby grant to Old Town Model Railroad Depot a non-exclusive, transferable, sublicenseable, worldwide, royalty-free license to use, copy, modify, create derivative works based upon, distribute, publicly display, publicly perform and distribute your User Content in connection with operating and providing the Services and Content to you and to other users.
Rights in Content Granted by Old Town Model Railroad Depot
Subject to your compliance with these Terms, Old Town Model Railroad Depot grants you a limited, non-exclusive, non-transferable, non-sublicenseable license to download, view, copy and display the Content solely in connection with your permitted use of the Services and solely for your personal and non-commercial purposes.
You agree not to do any of the following:
- Post, upload, publish, submit or transmit any Content that: (i) infringes, misappropriates or violates a third party’s patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any person or entity; or (vii) promotes illegal or harmful activities or substances;
- Use, display, mirror or frame the Services, or any individual element within the Services, Old Town Model Railroad Depot’s name, any Old Town Model Railroad Depot trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page, without Old Town Model Railroad Depot’s express written consent;
- Access, tamper with, or use non-public areas of the Services, Old Town Model Railroad Depot’s computer systems, or the technical delivery systems of Old Town Model Railroad Depot’s providers;
- Attempt to probe, scan, or test the vulnerability of any Old Town Model Railroad Depot system or network or breach any security or authentication measures;
- Avoid, bypass, remove, deactivate, impair, descramble or otherwise circumvent any technological measure implemented by Old Town Model Railroad Depot or any of Old Town Model Railroad Depot’s providers or any other third party (including another user) to protect the Services;
- Attempt to access or search the Services or download Collective Content from the Services through the use of any engine, software, tool, agent, device or mechanism (including spiders, robots, crawlers, data mining tools or the like) other than the software and/or search agents provided by Old Town Model Railroad Depot or other generally available third party web browsers;
- Send any unsolicited or unauthorized advertising, promotional materials, email, junk mail, spam, chain letters or other form of solicitation;
- Use any meta tags or other hidden text or metadata utilizing a Old Town Model Railroad Depot trademark, logo URL or product name without Old Town Model Railroad Depot’s express written consent;
- Use the Services for any commercial purpose or the benefit of any third party or in any manner not permitted by these Terms;
- Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Services to send altered, deceptive or false source-identifying information;
- Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Services;
- Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Services;
- Collect or store any personally identifiable information from the Services from other users of the Services without their express permission;
- Impersonate or misrepresent your affiliation with any person or entity;
- Violate any applicable law or regulation; or
- Encourage or enable any other individual to do any of the foregoing.
Although we’re not obligated to monitor access to or use of the Services or Content or to review or edit any Content, we have the right to do so for the purpose of operating the Services, to ensure compliance with these Terms, and to comply with applicable law or other legal requirements. We reserve the right, but are not obligated, to remove or disable access to any Content, at any time and without notice, including, but not limited to, if we, at our sole discretion, consider any Content to be objectionable or in violation of these Terms. We have the right to investigate violations of these Terms or conduct that affects the Services. We may also consult and cooperate with law enforcement authorities to prosecute users who violate the law.
Links to Third Party Websites or Resources
The Services and App may contain links to third-party websites or resources. We provide these links only as a convenience and are not responsible for the content, products or services on or available from those websites or resources or links displayed on such websites. You acknowledge sole responsibility for and assume all risk arising from, your use of any third-party websites or resources.
We may terminate your access to and use of the Services, at our sole discretion, at any time and without notice to you. You may cancel your Account at any time by sending an email to us at firstname.lastname@example.org. Upon any termination, discontinuation or cancellation of Services or your Account, all provisions of these Terms which by their nature should survive will survive, including, without limitation, ownership provisions, warranty disclaimers, limitations of liability, and dispute resolution provisions.
The Services and Content are provided “as is,” without warranty of any kind. Without limiting the foregoing, we explicitly disclaim any warranties of merchantability, fitness for a particular purpose, quiet enjoyment or non-infringement and any warranties arising out of course of dealing or usage of trade.
We make no warranty that the Services will meet your requirements or be available on an uninterrupted, secure, or error-free basis. We make no warranty regarding the quality, accuracy, timeliness, truthfulness, completeness or reliability of any Content.
You will indemnify and hold harmless Old Town Model Railroad Depot and its officers, directors, employee and agents, from and against any claims, disputes, demands, liabilities, damages, losses, and costs and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (i) your access to or use of the Services or Content or (ii) your violation of these Terms.
Limitation of Liability
Neither Old Town Model Railroad Depot nor any other party involved in creating, producing, or delivering the Services or Content will be liable for any incidental, special, exemplary or consequential damages, including lost profits, loss of data or goodwill, service interruption, computer damage or system failure or the cost of substitute services arising out of or in connection with these terms or from the use of or inability to use the Services or Content, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Old Town Model Railroad Depot has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you.
In no event will Old Town Model Railroad Depot’s total liability arising out of or in connection with these terms or from the use of or inability to use the Services or Content exceed the amounts you have paid to Old Town Model Railroad Depot for use of the Services or Content or Fifty Dollars ($50), if you have not had any payment obligations to Old Town Model Railroad Depot, as applicable. The exclusion and limitations of damages set forth above are fundamental elements of the basis of the bargain between Old Town Model Railroad Depot and you.
These Terms and any action related thereto will be governed by the laws of the State of California without regard to its conflict of laws provisions.
Agreement to Arbitrate
You and Old Town Model Railroad Depot agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof or the use of the Services or Content (collectively, “Disputes”) will be settled by binding arbitration, except that each party retains the right: (i) to bring an individual action in small claims court and (ii) to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights (the action described in the foregoing clause (ii), an “IP Protection Action”). Without limiting the preceding sentence, you will also have the right to litigate any other Dispute if you provide Old Town Model Railroad Depot with written notice of your desire to do so by email at email@example.com within thirty (30) days following the date you first agree to these Terms (such notice, an “Arbitration Opt-out Notice”). If you don’t provide Old Town Model Railroad Depot with an Arbitration Opt-out Notice within the thirty (30) day period, you will be deemed to have knowingly and intentionally waived your right to litigate any Dispute except as expressly set forth in clauses (i) and (ii) above. The exclusive jurisdiction and venue of any IP Protection Action or, if you timely provide Old Town Model Railroad Depot with an Arbitration Opt-out Notice, will be the state and federal courts located in the Southern District of California and each of the parties hereto waives any objection to jurisdiction and venue in such courts. Unless you timely provide Old Town Model Railroad Depot with an Arbitration Opt-out Notice, you acknowledge and agree that you and Old Town Model Railroad Depot are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and Old Town Model Railroad Depot otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of these Terms.
The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this Section.
A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The arbitrator will be either a retired judge or an attorney licensed to practice law and will be selected by the parties from the AAA’s roster of arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure
Unless you and Old Town Model Railroad Depot otherwise agree, the arbitration will be conducted in San Diego County, California. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of the documents that you and Old Town Model Railroad Depot submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award of damages must be consistent with the terms of the “Limitation of Liability” section above as to the types and amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. Neither party will be entitled to an award of attorney’s fees and expenses and each party hereby waives all rights it may have under applicable law to recover attorneys’ fees and expenses.
Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules. However, if your claim for damages does not exceed $75,000, Old Town Model Railroad Depot will pay all such fees unless the arbitrator finds that either the substance of your claim or the relief sought in your Demand for Arbitration was frivolous or was brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)).
Notwithstanding the provisions of the “Modification” section above, if Old Town Model Railroad Depot changes this “Dispute Resolution” section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email to firstname.lastname@example.org) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of Old Town Model Railroad Depot’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and Old Town Model Railroad Depot in accordance with the provisions of this “Dispute Resolution” section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
These Terms constitute the entire and exclusive understanding and agreement between Old Town Model Railroad Depot and you regarding the Services and Content, and these Terms supersede and replace any and all prior oral or written understandings or agreements between Old Town Model Railroad Depot and you regarding the Services and Content. If any provision of these Terms is held invalid or unenforceable (either by an arbitrator appointed pursuant to the terms of the “Arbitration” section above or by court of competent jurisdiction, but only if you timely opt out of arbitration by sending us an Arbitration Opt-out Notice in accordance with the terms set forth above), that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
You may not assign or transfer these Terms, by operation of law or otherwise, without Old Town Model Railroad Depot’s prior written consent. Any attempt by you to assign or transfer these Terms, without such consent, will be null and of no effect. Old Town Model Railroad Depot may freely assign or transfer these Terms without restriction. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications provided by Old Town Model Railroad Depot under these Terms, including those regarding modifications to these Terms, will be given: (i) by Old Town Model Railroad Depot via email; or (ii) by posting to the Services. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
Old Town Model Railroad Depot’s failure to enforce any right or provision of these Terms will not be considered a waiver of such right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of Old Town Model Railroad Depot. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If you have any questions about these Terms or the Services, please contact Old Town Model Railroad Depot at email@example.com.