This Agreement is effective on June 13, 2016 for current users and as of the first use of the Website or Services by new users. This Agreement is between you and Tradesy, Inc. Any user who is found to be in violation of the following Agreement and any other policies posted on the Website may be banned, at the sole discretion of Tradesy, from using the Website or any Services.
Introduction & Scope
If you have any questions, please refer to the Help & FAQs section on our Website.
Changes to the Agreement and Additional Terms
We may change the terms of this Agreement from time to time, with or without notice to you and at our sole discretion, and your continued use of the Website or any Services after such changes to this Agreement have been posted constitutes acceptance of ALL SUCH changes. It is your responsibility to REGULARLY review this Agreement when using the Website or our Services.
Tradesy reserves the right to modify or terminate the Website and Service for any reason, without notice and at any time. Tradesy reserves the right to alter this Agreement or other policies at any time, so please review the policies frequently. If Tradesy makes a material change, then Tradesy will notify you here by posting updates to this Agreement or by means Tradesy deems appropriate. What constitutes a "material change" will be determined at Tradesy’s sole discretion, in good faith, and using common sense and reasonable judgment.
1. Tradesy is a Marketplace
Tradesy is an online marketplace that allows users who comply with Tradesy’s policies to offer, sell, and buy certain goods within a fixed-price format. Tradesy is not directly involved in the transaction between buyers and sellers, unless you purchase from one of the in-house accounts managed by Tradesy. Our in-house accounts include Penny Lane, Strawberry Fields, Abbey R, Lady Madonna, and Jaclyn’s Closet. Outside of these in-house accounts, Tradesy has no control over the quality, safety, morality, or legality of any aspect of the items listed, the truth or accuracy of the listings, the ability of sellers to sell items, or the ability of buyers to pay for items. Except as stated in the Verified Sellers Program (see Section 4) or certain services that may require an application or business verification, Tradesy does not pre-screen users or the content or information provided by users. Tradesy cannot ensure that a buyer or seller will actually complete a transaction.
Legal ownership of items purchased on Tradesy is transferred by the seller to the buyer after a sale is completed. Tradesy does not transfer nor is it involved in the transfer of legal ownership of items from the seller to the buyer, except for items being sold from Tradesy in-house accounts.
Tradesy cannot guarantee the true identity, age, nationality, or other features disclosed in a user’s profile. Tradesy encourages you to communicate directly with potential transaction partners through the tools available on the Website or mobile application. You agree that Tradesy is a marketplace and as such is not responsible or liable for any content, including but not limited to data, text, information, usernames, graphics, images, photographs, profiles, audio, video, items, and links posted by you, other users, or outside parties on Tradesy. You use our Services at your own risk.
2. Membership Eligibility
Tradesy may, in its sole discretion, refuse to offer access to or use of the Services to any person or entity and change its eligibility criteria at any time. This provision is void where prohibited by law and the right to access the Services is revoked in such jurisdictions.
Our Services are only available to, and may only be used by, individuals who are 18 years and older who can form legally binding contracts under applicable law. By using our Services, registering with our Website, or creating an account to use our Services, you represent and warrant that: (a) you are at least 18 years old, (b) you are located and reside in the United States or Canada; (c) all registration information you submit is accurate and truthful; and (d) if you are acting on behalf of a legal or business entity, you are authorized to bind that entity to the Agreement.
Individuals under the age of 18 must at all times use our Services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In all cases, the adult is the user and is responsible for any and all activities of any minors.
You agree to comply with all laws including all laws applicable in the jurisdiction from which you are accessing the Website or any Services regarding acceptable content and online conduct. You are responsible for all applicable taxes. In addition, you must abide by our policies as stated in the Agreement and other policy documents available via hyperlink in this Agreement (as applicable to your activities on or use of the Services) as well as all other operating rules, policies, and procedures that may be published from time to time on our Website, each of which is incorporated herein by reference and each of which may be updated by Tradesy from time to time without notice to you.
In addition, some Services offered by Tradesy may be subject to additional terms and conditions circulated by Tradesy from time to time; your use of these Services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference.
Account Information and Password
You acknowledge and agree that you are fully responsible for all activity, liability, and damage resulting from your failure to securely maintain your Tradesy account information and password. You acknowledge and agree that you will protect your account information and password, ensure this information is current and accurate, and bear full responsibility for any activities conducted through your account.
Your account information, particularly your email address and password, authenticates your identity as a Tradesy Member, and Tradesy is entitled to act on any transaction instructions received from your account information, regardless of whether it is being used with authorization from you. You agree to notify Tradesy of any unauthorized use of your password or any breach of security. You also agree that Tradesy cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your user login and password information in combination to any other party other than Tradesy without Tradesy’s explicit written permission.
You must keep your account information up-to-date and accurate at all times, including a valid email address. To sell items on Tradesy and withdraw funds from seller earnings, you must also provide and maintain valid payment information, such as valid credit card information or a valid PayPal account.
You may not transfer, sell, rent, assign, sublicense, or otherwise allow another party to access or use your Tradesy account. You are responsible for all activity of the user account and user ID. If you are registering as a business entity, you personally guarantee that you have the authority to bind the entity to this Agreement.
Right to Refuse Service
Our Services are not available to temporarily or indefinitely suspended Tradesy users. Tradesy reserves the right, in its sole discretion, to cancel unconfirmed or inactive accounts. Tradesy reserves the right to refuse service to anyone, for any reason, at any time.
Joining and setting up a new account on the Website and Services is free. However, Tradesy charges a sales commission calculated as a percentage of the sale price of a completed transaction on the Website and Services. When you spend your earnings on Tradesy, the Tradesy commission is 9%. If you choose to cash out your earnings via PayPal, a debit card, or a bank account, the Tradesy commission is 9% plus a 2.9% cash transfer fee. We may temporarily change our fees or the fees for our Services for promotional events (for example, reduced seller commission days); such changes are effective when Tradesy posts the temporary promotional event on the Website or features the promotion event in our mobile application. Additionally, Tradesy may change some or all of our Services at any time, without notice and in our sole discretion, and any changes to our fees are effective upon the posting of such changes. Tradesy also reserves the right to cancel any promotion, discount, coupon, or similar incentive before its originally stated expiration date. In the event Tradesy introduces a new service, the fees for that service are effective at the launch of the service. Unless otherwise stated, all fees are quoted in US Dollars (USD).
You are responsible for paying all fees and applicable taxes associated with using our Website and our Services in a timely manner with a valid payment method.
Fees and Termination
If Tradesy terminates a listing or your account, if you close your account, or if the payment of your Tradesy fees cannot be completed for any reason, you remain obligated to pay Tradesy for all unpaid fees plus any penalties, if applicable. If the seller's account is not paid in full and becomes past due, the seller risks penalties such as the suspension of privileges and/or termination of the account and other collection mechanisms (including retaining collection agencies and legal counsel or charging any payment method associated with your account). If you have a question or wish to dispute a charge, please email Tradesy at email@example.com.
4. Listing and Selling
You may list and sell new and gently used women's fashion and accessories (such as clothing, shoes, handbags, and jewelry) and wedding items on the Website or on our mobile applications. You may not list or sell designer replicas or derivatives, including but not limited to items that are counterfeit, inauthentic, or not manufactured for retail sale by the designer whose name, logo, trademark, or design is represented in or on the item.
By listing an item for sale on the Website, you warrant and represent that (a) you are in compliance with all aspects of this Agreement, including in respect of all items); (b) you have the legal right to sell the item and to post all of the descriptions, graphics, photos, images and any other content related to your listing of the item; (c) the description and depiction of the item, including any damage, is complete, truthful, and accurate; and (d) the item is listed in the appropriate category. Your listings may only include text descriptions, graphics, photos, images, and other content relevant to the sale of that item. All items must be listed in an appropriate category with relevant tags. Each unique item must have its own listing. In addition, certain items may be prohibited or restricted; you also need to make sure the sale of your item complies with all laws. If your listing does not comply, it may be removed.
All sales are binding. The seller is responsible for accurately listing their items, and the buyer is responsible for reading the item description before making a purchase. The seller is obligated to ship the order to complete the transaction with the buyer in a prompt manner, unless there is an exceptional circumstance. The buyer is obligated to deliver the appropriate payment for items purchased, unless there is an exceptional circumstance. Our Cancellation Policy is available via the following link: http://help.tradesy.com/article/63-cancellation-policy.
If you do not complete a sale or purchase, your account and all listings may be suspended and removed from the Website at Tradesy’s sole discretion. You may request your account and listings be reinstated, which Tradesy may do in its sole discretion.
The price stated in each item listing description must be an accurate representation of the selling price. Sellers may not alter the item’s price after a sale for the purpose of avoiding Tradesy transaction fees, misrepresent the item’s location, or use another user’s account without permission.
Offers to buy or sell outside of the Website are a potential fraud risk for both buyers and sellers and are not protected by the Tradesy Trust Promise, the Agreement, or other buyer/seller protection programs. Additionally, these offers may be an attempt to avoid Tradesy transaction fees. This is unfair to other sellers, violates the Agreement, and will result in account termination. You may not exchange personal information or engage in any other activities to transact with another in any manner to avoid any transaction fee or the Tradesy Secure Checkout process. You may not manipulate the price of any item or fees owed to Tradesy when using the Website or any Services.
When you sell an item on Tradesy (except for certain categories such as wedding items or any items valued at $2,500 USD or more), the seller has the option to receive a Tradesy shipping kit with prepaid postage and pre-addressed to the buyer in order to mail the item sold to the buyer. Seller also has the option to handle shipping on her own by adding reasonable shipping and handling fees to the sale price in order to cover the costs for packaging and mailing the item sold to the buyer. Tradesy requires “Delivery with Signature Required” for any packages of items valued at $500 USD or more.
Upon completing a sale, sellers will have access to the buyer’s full physical address. As a seller, you are strictly prohibited from using this personal information for anything other than completing the sale.
Verified Sellers Program
In order to cash out seller earnings, you may be required to complete our Verified Seller process to verify your identity and grant Tradesy certain rights and privileges . At any time, Tradesy may require a seller to re-verify his or her identify. As part of our Verified Sellers Program, and as enforced by regulatory requirements relating to online payments, you will be required to provide your Social Security Number (SSN) or Employer Identification Number (EIN). This information is transmitted securely and will not be stored by Tradesy.
Additional information related to our Verified Sellers Program is available via the following link: http://help.tradesy.com/article/167-verifying-your-identity
Tradesy, in its sole discretion, may hold seller earnings for up to 21 days after the sold item has been been delivered to the buyer, based on its own risk and security policies. The date of delivery is determined by the date upon which the package is delivered to the buyer, according to the shipping carrier’s tracking system. Seller earnings will be available after the 21-day hold period (usually sooner), except in cases wherein it is determined that the item has been misrepresented by the seller. In the event that an item misrepresentation issue arises during the holding period, Tradesy reserves the right to hold seller earnings beyond the 21-day period, and for as long as necessary to review and resolve the issue. As per the Prohibited and Restricted Items and Activities section of Tradesy’s Terms of Service, the Company also strictly prohibits the listing and sale of replica and misrepresented items, and reserves the right to withhold seller earnings in perpetuity when the Company determines, at its sole discretion, that a replica or misrepresented item has been sold through its platform.
Tradesy’s Resale of Returned Items
When you return an item purchased on the Website or using our Services, Tradesy may relist and resell it on one of Tradesy’s in-house accounts, including Penny Lane, Strawberry Fields, Abbey R, Jaclyn’s Closet and Lady Madonna. In exchange for the right to resell, for Tradesy’s own account, items that the seller sells and the buyer returns to Tradesy, the seller will retain her/his earnings from the sale and the buyer will receive site credit for the item returned to Tradesy. During special promotions, some items from Tradesy's in-house accounts may be marked Final Sale or Non-returnable.
When purchasing an item, you agree that: (a) you are responsible for reading the full item listing before committing to purchase; (b) you enter into a legally binding contract with the seller to purchase his or her items when you commit to purchase the item; and (c) Tradesy is not a party to the contract and does not transfer legal ownership of the item from seller to you (unless you have purchased an item from one of Tradesy’s in-house accounts).
6. User Submitted Content
You may submit items (including images, artwork, text, graphics, logos, and similar items) in connection with the Website or Services (“User Submissions”).
Tradesy does not claim ownership rights of User Submissions. You grant Tradesy a non-exclusive, worldwide, perpetual, royalty-free, irrevocable, fully paid-up license to use, reproduce, create derivative works of, excerpt, reformat, distribute, perform, and display the User Submission (in whole or part) and to incorporate the User Submission in other works in any form, media, or technology now known or later developed, including without limitation (a) on the Website (including a mobile version of the Website); (b) on any application designed or developed to allow others to view your User Submission; (c) in materials created to promote the Website and its contents, and (d) in connection with online and offline events conducted in connection with the Website.
You represent and warrant that the User Submission (a) is your own original work and you own all rights in the User Submission or that you have all rights in the User Submission necessary to grant the license to the User Submission contained in this Agreement; (b) will not violate any third party rights, including any third party intellectual property rights, privacy rights, moral rights, or other proprietary rights; (c) does not violate any law or regulation; and (d) does not contain any virus or other malicious software, including any software which could interfere with the performance of the Website or collect user data from users of the Website.
Re-Posting User Submissions
By posting User Submissions on Tradesy, it is possible for an outside website or a third party to re-post your User Submissions. You agree to hold Tradesy harmless for any dispute concerning this use. If you choose to display your own Tradesy-hosted image on another website, the image must provide a link back to its listing page on Tradesy.
Ideas & Feedback
Tradesy considers any unsolicited ideas, suggestions, proposals, feedback, or any other materials submitted to the Company via the Website or Services to be non-confidential and non-proprietary. You acknowledge and agree that any questions, comments, suggestions, ideas, feedback, business models or plans, or other information about the Website or Services (“Ideas & Feedback”) provided by you to Tradesy are non-confidential. Any communication by you to Tradesy is subject to this Agreement, and Tradesy shall be entitled to the unrestricted use and dissemination of the Ideas & Feedback for any purpose without acknowledgment or compensation to you. Tradesy shall not be liable for the disclosure or use of any Ideas & Feedback. You acknowledge and hereby grant to Tradesy, under all of your rights in the Ideas & Feedback, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, modify, publish, display and exploit such Ideas & Feedback for any purpose Tradesy chooses, commercial or otherwise, including but not limited to incorporating it in future products or new services, documentation, or any other method, without notice or compensation to you and without further recourse by you.
7. Prohibited and Restricted Items and Activities
You are solely responsible for your conduct and activities on the Website and interactions with Tradesy or Tradesy’s Services, and all User Submissions that you submit, post, and display on Website.
Without notice, Tradesy reserves the right to remove, block access to, or otherwise make unavailable any User Submission or other content that is (a) in violation of the Agreement; (b) the subject of a court order or request from a governmental agency or law enforcement; or (c) otherwise unlawful, unethical, immoral, or improper for the Tradesy community, as determined by Tradesy in its sole discretion. Further, we may block users that repeatedly violate the Agreement or engage in other behavior necessitating a removal of a User Submission.
User Submissions and your use of Tradesy shall not:
- be false, inaccurate, or misleading;
- misrepresent your identity or your affiliation with any other person or entity;
- be fraudulent or involve the sale of illegal, replica, or stolen items;
- infringe upon any third-party's rights, including any third party copyright, patent, trademark, trade secret or other proprietary or intellectual property rights, privacy rights, moral rights or other proprietary rights;
- list or sell any item that is illegal to sell under any applicable law, statute, ordinance, or regulation, including but not limited to counterfeit, replica, or stolen items; child pornography; obscene materials; drugs; trade secrets; or items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) or any other governmental agency in any country as hazardous to consumers and therefore subject to a recall;
- arrange to swap or trade items with other members on Tradesy;
- advertise or otherwise promote any goods or services other than items or User Submissions that are for viewing or for sale via the Website or Services;
- violate this Agreement, any site policy or community guidelines, or any applicable law, statute, ordinance, or regulation (including, but not limited to, those governing consumer protection, unfair competition, anti-discrimination, or false advertising);
- harass, annoy, stalk, harm, threaten, or otherwise engage in abusive behavior towards others, including contacting, advertising to, or soliciting any other user without prior explicit consent or using an automated system to send comments or messages to others;
- impersonate or intimidate any person (including Tradesy team members or other users), or falsely state or otherwise misrepresent your affiliation with any person through the use of similar email address, nicknames, or creation of false account(s) or any other methods of deceit;
- Interfere with a seller’s business or online profile;
- Take any action that may undermine online reviews or feedback;
- access (or attempt to access) any portion of the Website or other personal information through any automated means (including use of scripts, scraping, or web crawlers) or violate any instructions set out in any robots.txt files present on the Website;
- obtain or attempt to obtain unauthorized access to computer systems, materials, or information, including attempting to obtain, use, or access any materials or information that is not intentionally made publicly available via the Website;
- send mass unsolicited messages, “flood” servers with requests, or perform similar actions;
- interfere with or disrupt the Services or Website or servers or networks connected to the same;
- manipulate, display, or access the Website or any materials or information found thereon using "framing," "deep linking." or similar techniques that bypass or circumnavigate the intended architecture and layout of the Website;
- contain or transmit any code or malicious software of a destructive nature, including any software that may collect user data or personal information from users of the Website or Services;
- upload, store, distribute, or disseminate electronic files that are corrupted or contain viruses, "trojans," "spyware," "adware," "malware," or any other malicious components, or take any measures, such as implementing "denial of service" attacks, "email bombs," or other techniques that impose an unreasonable or disproportionately large burden on the Website or any other Tradesy system or network, or that are otherwise connected to or interface such systems or networks;
- appear to create liability for Tradesy or cause Tradesy to lose (in whole or in part) the services of Tradesy’s internet service provider or other vendors;
- Link directly or indirectly, or reference or contain descriptions of goods or services that are prohibited under this Agreement and any other policy documents posted on Tradesy; or
- copy, modify, create a derivative work of, reverse engineer, reverse assemble, or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Service.
In the event of a replica or misrepresented listing, Tradesy will pull funds from the seller if the seller has already cashed out seller earnings from that sale. Furthermore, you may not list any item on Tradesy (or consummate any transaction that was initiated using our Services) that could cause Tradesy to violate any applicable law, statute, ordinance, regulation, or that violates this Agreement.
8. Information Control
Tradesy does not control the User Submissions provided by users that are made available on the Website and Services. You may find some User Submissions to be offensive, harmful, inaccurate, or deceptive. There are also risks of dealing with underage persons or people acting under false pretense.
By using the Website and Services, you agree to accept such risks and that Tradesy (and Tradesy’s officers, directors, agents, subsidiaries, joint ventures and employees) is not responsible for any and all acts or omissions of users on Tradesy. Please use caution, common sense, and practice safe buying and selling when using Tradesy.
Tradesy is not responsible for the availability of outside websites or resources linked to or referenced on the Website or Services. Tradesy does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such websites or resources. You agree that Tradesy shall not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on any such content, goods or services available on or through any such websites or resources.
Tradesy may restrict, suspend, or terminate your use of or access to the Website or Services, without notice or liability to you and in its sole discretion, and without refunding any fees, if Tradesy suspects (by information, investigation, conviction, settlement, or otherwise) that (a) you are in breach of, are attempting or threatening to breach, or are acting inconsistently with the terms and spirit of this Agreement; (b) you are in breach of, are attempting or threatening to breach, or are acting inconsistently with the terms and spirit of any Tradesy policy; (c) your activities on or in relation to the Website may violate applicable law; (d) you are unable to verify or authenticate any of your personal information or User Submissions; (e) you have failed to pay a fee; (f) you may cause legal liability or financial loss to Tradesy’s users or to Tradesy; or (g) for any other reason at any time. This includes cancelling any unverified accounts or inactive accounts, warning Tradesy’s community of a user’s actions, temporarily or indefinitely suspending a user’s account privileges, terminating a user’s account, or prohibiting access to the Website or Services, and taking technical or legal steps to keep a user off the Website and refusing to provide Services to a user. Further, any suspected fraudulent, abusive, or illegal activity, including violations of the Agreement and any additional Tradesy policy, may be referred to appropriate law enforcement authorities or other appropriate third parties.
Tradesy reserves the right to suspend and/or terminate a user’s account or any accounts held by that user by virtue of association, including all usernames under which that user operates on the Website or Services.
10. Personal Information and Privacy
11. Intellectual Property
All content on the Website is owned by or licensed to Tradesy. Subject to the Agreement, Tradesy grants to you a non-exclusive, non-transferable, non-sublicensable license to access and view the Website and to make a reasonable number of copies of the content on the Website solely for your own personal and non-commercial use. All rights not expressly granted herein are reserved to Tradesy and its licensors. Other than as expressly provided above, you may not display, reproduce, distribute, modify, sell, or otherwise use any materials or content on the Website, and all such content is provided on an AS IS basis.
The trademarks, logos, service marks, trade names, graphics, page headers, button icons, scripts and other designs that are displayed on the Website and Services are owned by Tradesy and/or its affiliates or their third party licensors and may not be used unless authorized by the trademark owner. Nothing in this Agreement or the Services should be construed as granting, by implication, estoppel, or otherwise, any license or right to use any of Tradesy’s Trademarks displayed on the Service, without our prior written permission in each instance. Tradesy’s intellectual property may not be used, including as part of trademarks and/or as part of domain names or email addresses, in connection with any product or service in any manner that is likely to cause confusion. All goodwill generated from the use of Tradesy intellectual property will inure to our exclusive benefit.
12. Complaint Procedures and DMCA Takedown Requests
Tradesy respects the legal rights of others and complies with the Digital Millennium Copyright Act. It expects you to do the same. If you believe another user has violated the Agreement or your intellectual property rights, please complete the following procedure.
Verified Rights Owners Program (VRO): To enforce the intellectual property rights of owners, Tradesy engages in a Verified Rights Owners program that allows owners to request Tradesy to remove certain listings that offer items or contain images or other materials that infringe on their intellectual property rights. These rights can include trademark, copyright, and/or other legal rights. For example, a Verified Rights Owner may ask Tradesy to remove an item being sold that uses the rights owner's registered trademark (such as a logo on a designer handbag) if the item is not an authentic product of the rights owner. This VRO program helps protect Tradesy members from buying or selling items that may be replica or otherwise unauthorized under state and/or federal laws. Before a listing is removed, a Verified Rights Owner must provide to Tradesy information that ensures that the person or company reporting the item is authorized to do so. If a Verified Rights Owner believes a listing violates their intellectual property rights, please provide Tradesy with a written notice containing (where applicable) the following information:
- a notarized request letter certifying that you are the owner of the intellectual property;
- a description of the intellectual property that you claim has been infringed, including details on any registration that protects the same;
- a description of the material that you claim is infringing and where it is located on the Website;
- hyperlinks to the listings with the suspected item;
- your name, address, telephone number, and email address;
- a statement by you that you have a good-faith belief that the disputed use is not authorized by the intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the intellectual property owner or authorized to act on their behalf; and
- an electronic or physical signature of the person authorized to act on behalf of the intellectual property owner.
Written notice should be delivered to Tradesy at:
1217 2nd Street FL 3
Santa Monica, CA 90401
If a copyright notice is received by Tradesy’s Copyright Agent, Tradesy may send a copy of the notice to the user who posted the material at issue.
If your item is reported, you may receive an email notifying you that a Verified Rights Owner participant requested your listing to be removed from the Website or Services. We require the rights owner to provide us with an email address so you can contact them directly for more information about why your listing infringes their intellectual property rights. You can find the Verified Rights Owner's email address in the email you received when your listing was removed.
At Tradesy's sole discretion, users who infringe on intellectual property rights of Verified Rights Owners will have their user accounts and/or access to the Services removed or disabled. If Tradesy disables or removes your user account, or any content or other materials you have posted, and you believe this was done in error, please forward a written notice stating the same and providing any supporting documentation necessary to establish your rights to the agent referenced above.
If you have concerns or questions about why your listing was reported or removed, please contact the VRO participant directly using the email address we provided.
You can also contact our Member Care team at firstname.lastname@example.org if the Verified Rights Owner has not replied after 10 days or if you have any other questions.
13. Counter Notification Procedures for Copyright Notices
If your material has been removed, disabled, or otherwise restricted due to a copyright infringement notification, and you believe that your material is not infringing or you were authorized by the copyright owner, the copyright owner's agent, or pursuant to the law to post and use the material, you may send a counter-notice containing the following information to Tradesy’s Agent for Infringement Claims:
- your name, address, telephone number, and e-mail address;
- identification of the material at issue, including its location before it was removed, disabled, or otherwise restricted;
- a statement that you have a good faith belief that the material was removed or disabled as a result of mistake or a misidentification of the material;
- a statement that you consent to the jurisdiction of the federal court in San Francisco, California;
- a statement that you will accept service of process from the person who provided notification of the alleged infringement; and
- your physical or electronic signature.
If a counter-notice is received by our Copyright Agent, Tradesy may send a copy of the counter-notice to the original complaining party informing it that we may replace the removed material or cease disabling it in the next 30 business days at our sole discretion unless the original complaining party files an action seeking a court order against Tradesy or the applicable member/user.
Tradesy is not involved in the actual transaction between Buyers and Sellers. While Tradesy may help facilitate the resolution of disputes through various programs, and may provide guarantees which are backed by the Tradesy Return Policy, we have no control over and do not guarantee: (a) the existence, quality, safety, or legality of items advertised; (b) the truth or accuracy of users' content or listings; (c) the ability of Sellers to sell items; (d) the ability of Buyers to pay for items; (e) that a Buyer or Seller will actually complete a transaction or return an item; (f) the legal transfer of item from the Seller to the Buyer; or (g) that a buyer or seller will actually complete a transaction.
Rather, our goal at Tradesy is to maintain our Website, Services, and related tools, in a manner that is safe, secure, and functioning properly. You acknowledge that we cannot guarantee the continuous operation of or access to our Website, Services, or tools. You further acknowledge that operation of and access to our Website, Services, or tools may be interfered with as a result of technical issues or numerous factors outside of our control. You agree that you are making use of our Website, Services, and tools 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.
15. Limitation of Liability
YOU EXPRESSLY UNDERSTAND AND AGREE THAT TRADESY SHALL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR LOSS OF PROFITS, INCLUDING BUT NOT LIMITED TO: DAMAGES FOR LOSS OF GOODWILL, USE, DATA, OR OTHER INTANGIBLE LOSSES (EVEN IF TRADESY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, DIRECTLY OR INDIRECTLY RESULTING FROM OR RELATED TO YOUR USE OF THE SERVICES OR WEBSITE, INCLUDING BUT NOT LIMITED TO ANY THIRD-PARTY ACTION RELATED TO THE SERVICES OR WEBSITE.
SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU.
IF TRADESY IS FOUND LIABLE TO YOU OR ANY THIRD PARTY, SUCH LIABILITY IS LIMITED TO THE GREATER OF (A) ANY AMOUNTS DUE UNDER THE TRADESY TRUST PROMISE UP TO THE PRICE THE ITEM SOLD FOR ON THE WEBSITE (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 TRADESY IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY, OR (C) $100 USD.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
You agree to defend, indemnify, and hold harmless Tradesy and its affiliates, and their directors, officers, employees, parents, subsidiaries, stockholders, and agents, from and against all claims, demands, liabilities, costs, losses, and expenses, including reasonable attorneys’ fees, arising from your use of the Services or Website or your breach of the Agreement, including any dispute with another user or claim from a third party. Tradesy may elect to assume the defense and control of such claim and, in such case, you agree to cooperate with Tradesy in the defense of such claim and to reimburse Tradesy for all reasonable expenses and fees incurred in the course of defending such claim.
17. No Guarantee
Tradesy does not guarantee continuous, uninterrupted access to the Website or Services, and operation of the Website or Services may be interfered with by numerous factors outside Tradesy's control.
18. Disputes with Other Users or Third Parties
In the event a dispute arises between you and another user or a third party, Tradesy encourages you to contact the user or third party to resolve the dispute amicably.
You may also report user-to-user disputes to your local law enforcement, postmaster general, or a certified mediation or arbitration entity, as applicable.
19. Disputes with Tradesy
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND HOW CLAIMS THAT YOU AND TRADESY HAVE AGAINST EACH OTHER ARE RESOLVED.
This Section is deemed to be a “written agreement to arbitrate” pursuant to the Federal Arbitration Act. You and Tradesy agree that we intend that this Section satisfies the “writing” requirement of the Federal Arbitration Act. This Section can only be amended by mutual agreement.
- (a) Single Arbitrator. The Arbitration shall be conducted before a single arbitrator selected in accordance with the Applicable Rules or by mutual agreement between you and Tradesy (the “Arbitrator”);
- (c) Location of Arbitration. The Arbitration shall be held either: (i) at a location determined by JAMS (or, if applicable, AAA) pursuant to the Applicable Rules (provided that such location is reasonably convenient for you and does not require travel in excess of 100 miles from your home or place of business); or (ii) at such other location as may be mutually agreed upon by you and Tradesy; or (iii) at your election, if the only claims in the arbitration are asserted by you and are for less than $10,000 in aggregate, by telephone or by written submission.
- (d) Governing Law. The Arbitrator (i) shall apply internal laws of the State of California consistent with the Federal Arbitration Act and applicable statutes of limitations, or, to the extent (if any) that federal law prevails, shall apply the law of the U.S., irrespective of any conflict of law principles; (ii) shall entertain any motion to dismiss, motion to strike, motion for judgment on the pleadings, motion for complete or partial summary judgment, motion for summary adjudication, or any other dispositive motion consistent with California or federal rules of procedure, as applicable; (iii) shall honor claims of privilege recognized at law; and (iv) shall have authority to award any form of legal or equitable relief;
- (e) No Class Relief. The Arbitration can resolve only your and/or Tradesy’s individual claims, and the Arbitrator shall have no authority to entertain or arbitrate any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated;
- (f) Written Award. The Arbitrator shall issue a written award supported by a statement of decision setting forth the Arbitrator’s complete determination of the dispute and the factual findings and legal conclusions relevant to it (an “Award”). Judgment upon the Award may be entered by any court having jurisdiction thereof or having jurisdiction over the relevant party or its assets;
- (g) Arbitration Costs. In the event that you are able to demonstrate that the costs of Arbitration will be prohibitive as compared to the costs of litigation, Tradesy will pay as much of your filing and hearing fees in connection with the Arbitration as the Arbitrator deems necessary to prevent the arbitration from being cost-prohibitive, regardless of the outcome of the Arbitration, unless the Arbitrator determines that your claim(s) were frivolous or asserted in bad faith;
- (h) Reasonable Attorney’s Fees. In the event you recover an Award greater than Tradesy’s last written settlement offer, the Arbitrator shall also have the right to include in the Award Tradesy’s reimbursement of your reasonable and actual out-of-pocket attorneys’ fees associated with the Arbitration, but Tradesy shall in all events bear its own attorneys’ fees; and
- (i) Interpretation and Enforcement of Arbitration Clause. With the exception of subpart (e) above, if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Applicable Rules, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, subpart (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Tradesy shall be entitled to arbitrate their dispute, and must instead bring any claims in a court of competent jurisdiction.
- (j) Modification of Arbitration Clause With Notice. Tradesy may modify these arbitration provisions, but such modifications shall only become effective thirty (30) days after Tradesy has given notice of such modifications and only on a prospective basis for claims arising from Tradesy Transactions and Relationships occurring after the effective date of such notification.
- (k) Small Claims Matters are Excluded. No Class Relief or Joinder of Claims. Notwithstanding the foregoing arbitration provisions, at your option, you may bring any claim you have against Tradesy in your local small claims court within the U.S., if your claim is within such court’s jurisdictional limit; provided that such court does not have the authority to entertain any claims on a class or representative basis, or to consolidate or join the claims of other persons or parties who may be similarly situated in such proceeding.
20. Legal Compliance; Taxes
You shall comply with all applicable domestic and international laws, statutes, ordinances, and regulations regarding your use of the Website and Services and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make using the Website and Services.
If any provision of this Agreement is held unenforceable, then such provision will be modified to reflect the parties' intention. All remaining provisions of this Agreement shall remain in full force and effect.
22. No Agency
You and Tradesy are independent contractors, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
Sections 3 (Fees), 4 (Listing and Selling), 6 (User Submitted Content, License). 8 (Information Control), 9 (Termination), 10 (Personal Information and Privacy), 11 (Tradesy’s Intellectual Property), 14 (Disclaimers), 15 (Limitation of Liability), 16 (Indemnification), 17 (No Guarantee), 18 (Disputes with Other Users), 19 (Disputes with Tradesy), 21 (Severability), 22 (No Agency), and 25 (General Terms) shall survive any termination or expiration of this Agreement.
Unless expressly provided elsewhere in the Agreement, any notice, demand, claim, or communication related to the Agreement may be provided by: (a) electronic mail transmission; (b) first class mail or certified mail, postage prepaid; or (c) express courier, cost prepaid; and sent to the following:
- Tradesy Inc., Attention: Legal Department, 1217 2nd Street, Floor 3, Santa Monica, CA 90401
- The email or physical address associated with your user account.
Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid, or 72 hours after delivery by mail or courier. The parties agree that service of process and service of a summons related to any disputes arising under this Agreement between the parties can be served via this notice provision.
25. General Terms
This Agreement, and any rights and licenses granted hereunder, may not be transferred, assigned, or sublicensed by you without Tradesy’s express written consent. On the other hand, Tradesy may assign, sublicense, or otherwise transfer any rights or licenses under the Agreement, without restriction and without prior notice to you.
Following termination of this Agreement and/or your commercial relationship with Tradesy, any term of the Agreement logically extended beyond such termination shall survive to the fullest extent necessary to allow you and Tradesy to enforce any rights obtained or obligations incurred hereunder.
No term or provision of this Agreement is meant or intended to benefit any third party.
You agree that this Agreement will be governed by the laws of the State of California and applicable United States federal law without regard to conflicts of law principles and you submit to the exclusive jurisdiction of the Courts in the State of California for all matters related to this Agreement.
This Agreement represents the entire agreement and understanding between you and Tradesy and it supersedes any other agreement or understanding (written, oral or implied) between you and Tradesy. No other agreements, promises, representations, or understandings shall be binding upon Tradesy with respect to the Website or Tradesy’s Services unless contained in this Agreement, or separately agreed to in writing and signed by an authorized representative of Tradesy.
Neither you nor Tradesy will be deemed to have any liability whatsoever to the other or to any third party for any failure of performance hereunder occasioned by an act of God, force of nature, war or warlike activity, insurrection or civil commotion, labor dispute, transportation delay, governmental regulatory action whether or not with proper authority or other cause similar or dissimilar to the foregoing and beyond its reasonable control, provided the affected party gives prompt notice to the other party.
If any part of this Agreement shall be determined to be illegal, invalid, or unenforceable: (a) that part shall nevertheless be enforced to the extent permissible in order to effect the intent of the parties; and (b) the remaining parts of the Agreement shall be deemed valid and enforceable, so long as the remaining parts continue to fulfill the original intent of the parties.
26. Notice for California Users
Under California Civil Code Section 1789.3, users of the Service from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California, Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210.
Updated: July 20, 2016