THIS AGREEMENT REQUIRES THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS AND ALSO LIMITS THE REMEDIES AVAILABLE TO YOU IN THE EVENT OF A DISPUTE.
b. Third Party Accounts. You may also link your Account with certain third party provider sites, including, but not limited to, Facebook and Amazon, (a “Third Party Account”) by either (i) providing your Third Party Account login information to us; or (ii) allowing us to access your Third Party Account, if permitted under the applicable terms and conditions that govern your use of each Third Party Account. You represent that you are entitled to disclose your Third Party Account login information to us and/or grant us access to your Third Party Account without breach by you of any of the terms and conditions that govern your use of the applicable Third Party Account and without obligating us to pay any fees or making us subject to any usage limitations imposed by such third party service providers. You have the ability to disable the connection between your Account and your Third Party Accounts at any time by accessing the “Settings” section of the App. PLEASE NOTE THAT YOUR RELATIONSHIP WITH THE THIRD PARTY SERVICE PROVIDERS ASSOCIATED WITH YOUR THIRD PARTY ACCOUNTS IS GOVERNED SOLELY BY YOUR AGREEMENT(S) WITH SUCH THIRD PARTY SERVICE PROVIDERS.
2. Using Gone
a. How the App Works. After registering for an Account, you can list your personal items for sale, by uploading photos and/or videos of the items you wish to sell via the App. If we determine that we can resell your item, the App will make you an contingent offer (as described in further detail below) for your item (each, an “Offer”). If you accept the Offer and send us the applicable item in the box provided by PG, we will pay you the full amount of the Offer, if we are able to sell your item within 30 days (the “Offer Period”), and PG will retain all other amounts actually collected by PG from the sale of your item. If we are unable to sell your item during the Offer Period, we may either make you a new Offer or return the item to you. If you accept the new Offer, PG will re-attempt to sell your item subject to a new Offer Period. If you reject any new Offer, we will return the applicable item to you. All Offers are contingent on PG actually selling your item to a third party.
However, we may not be able to resell all of the items you list on our Service. In such cases, we may offer you the option to donate or dispose of your items, depending on the condition of the item and the preferences of our third party donation partners. If you do decide to sell, donate or dispose of your item and make your item “gone”, the App will prompt you for certain information, such as your physical address, so that we can send you a box for your item and/or schedule a pick up time for your item.
b. Listing Conditions. When listing an item (via photo or video), you agree that you are responsible for the accuracy and content of the item offered. If you choose to list an item via a video, you must include a voiceover that accurately describes the item, including brand names, model numbers, and similar information that will aid us in determining the value of your item and whether it can be resold.
3. Licenses and Restrictions.
a. License and Restrictions. PG grants you a personal, revocable, limited, non-transferable license to use the App on any iPhone, iPad or iPod Touch as permitted by the Usage Rules set forth in the App Store Terms and Conditions (the “Usage Rules”). This license does not allow you to copy, disassemble, attempt to derive the source code of, modify, create derivative works of, rent, lease, lend, sell, redistribute or sublicense the App (either in whole or in part).
b. Updates. All updates and upgrades to the App will be governed by the version of these Terms published by PG as of the date you install such update or upgrade. You agree, however, that we are not obligated to create or provide any support, corrections, updates, upgrades, bug fixes and/or enhancements of the App or for the Service. Any rights not expressly granted herein are reserved.
4. User Content
a. User Content. “User Content” means any and all information and content that a user submits to, or uses with, the App or Services (e.g., photos of items you wish to sell). You are solely responsible for your User Content. You assume all risks associated with use of your User Content, including any reliance on its accuracy, completeness or usefulness by others, or any disclosure of your User Content that makes you or any third party personally identifiable. You hereby represent and warrant that your User Content does not violate the Acceptable Use Policy (defined below). You may not state or imply that your User Content is in any way provided, sponsored or endorsed by PG. Because you alone are responsible for your User Content (and not PG), you may expose yourself to liability if, for example, your User Content violates the Acceptable Use Policy. PG is not obligated to backup any User Content and User Content may be deleted at anytime. You are solely responsible for creating backup copies of your User Content if you desire. The Website may include areas that enable you to post information, provide feedback, recommendations, reviews and comments, and otherwise interact with other users (“ Community Forums”). You acknowledge that any opinions, statements, recommendation, offers, advice or other information presented or disseminated on the Community Forums are those of their respective authors who are solely responsible and liable for their content. PG reserves the right, in its sole discretion, to refuse to post or remove any material submitted or posted on the Community Forums.
b. License. You hereby grant, and you represent and warrant that you have the right to grant, to PG an irrevocable, nonexclusive, royalty-free and fully paid, worldwide license to reproduce, distribute, publicly display and perform, prepare derivative works of, incorporate into other works, and otherwise use your User Content, and to grant sublicenses of the foregoing, solely for the purposes of including your User Content in the Website, App and Services. You agree to irrevocably waive (and cause to be waived) any claims and assertions of moral rights or attribution with respect to your User Content.
c. Acceptable Use Policy. The following sets forth PG’s “Acceptable Use Policy”:
1. You agree not to use the Website, App or Services to collect, upload, transmit, display, or distribute any User Content (i) that violates any third-party right, including any copyright, trademark, patent, trade secret, moral right, privacy right, right of publicity, or any other intellectual property or proprietary right; (ii) that is unlawful, harassing, abusive, tortious, threatening, harmful, invasive of another’s privacy, vulgar, defamatory, false, intentionally misleading, trade libelous, pornographic, obscene, patently offensive, promotes racism, bigotry, hatred, or physical harm of any kind against any group or individual or is otherwise objectionable; (iii) that is harmful to minors in any way; or (iv) that is in violation of any law, regulation, or obligations or restrictions imposed by any third party.
2. In addition, you agree not to use the Website, App or Services to: (i) upload, transmit, or distribute any computer viruses, worms, or any software intended to damage or alter a computer system or data; (ii) send unsolicited or unauthorized advertising, promotional materials, junk mail, spam, chain letters, pyramid schemes, or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) harvest, collect, gather or assemble information or data regarding other users, including e-mail addresses, without their consent; (iv) interfere with, disrupt, or create an undue burden on servers or networks connected to the Website, App or Services or violate the regulations, policies or procedures of such networks; (v) attempt to gain unauthorized access to the Website, App or Services, other computer systems or networks connected to or used together with the App or Services, through password mining or other means; (vi) harass or interfere with another user’s use and enjoyment of the Website, App or Services; or (vi) introduce software or automated agents or scripts to the Website, App or Services so as to produce multiple accounts, generate automated searches, requests and queries, or to strip, scrape, or mine data from the Website, App or Services (except that we grant the operators of public search engines revocable permission to use spiders to copy materials from the Website and App for the sole purpose of and solely to the extent necessary for creating publicly available searchable indices of the materials, but not caches or archives of such materials).
d. Prohibited Items. Upon installation of the App and successful registration for the Service, you can use the Service to list, sell, donate and dispose of your personal items subject to the following restrictions:
i. You will not use the Service to sell, resell, donate or dispose of any of the following items (“Prohibited Items”):
· Alcohol, tobacco, drugs and drug paraphernalia
· live or dead animals and wildlife products, including ivory
· credit cards or currency
· illegal electronics equipment, such as TV de-scramblers, radar scanners, electronic surveillance equipment, wiretapping devices and telephone bugging devices
· embargoed goods from prohibited countries
· firearms, weapons, and knives
· government documents, IDs, and licenses
· hazardous materials
· human remains and body parts
· items encouraging illegal activity
· stolen property and property with removed serial numbers
ii. You shall provide bona fide, genuine addresses for the delivery at your place of residence or place of work.
iii. PG reserves the right to refuse service or delivery at any time to any location for any reason.
e. Enforcement. We reserve the right (but have no obligation) to review any User Content, investigate, and/or take appropriate action against you in our sole discretion if you violate the Acceptable Use Policy or any other provision of this Agreement or otherwise create liability for us or any other person. Such acts may include removing or modifying your User Content, terminating your PG Account in accordance with Section 19, and/or reporting you to law enforcement authorities.
f. Feedback. If you provide PG any feedback or suggestions regarding the App or Services (“Feedback”), you hereby assign to PG all rights in the Feedback and agree that PG shall have the right to use such Feedback and related information in any manner it deems appropriate. PG will treat any Feedback you provide to PG as non-confidential and non-proprietary. You agree that you will not submit to PG any information or ideas that you consider to be confidential or proprietary.
5. Payment and Charges
b. Fees. Joining the Service and listing an item for sale, donation or disposal is free. We do charge fees for using other services, such as disposing of your personal property. If you do decide to dispose of an item via the Service, we will charge your Account those fees listed in the Service for such disposal.
c. Payment. You agree to pay all fees or charges to your Account in accordance with the fees, charges and billing terms in effect at the time a fee or charge is due and payable. You must provide PG with a valid credit card (Visa, MasterCard, or any other issuer accepted by us) (“Payment Provider ”). Your Payment Provider agreement governs your use of the designated credit card, and you must refer to that agreement and not to these Terms to determine your rights and liabilities. By providing PG with your credit card number and associated payment information, you agree that PG is authorized to immediately invoice your Account for all fees and charges due and payable to PG hereunder and no additional notice or consent is required. You agree to immediately notify PG of any change in your billing address or the credit card used for payment hereunder.
d. Taxes. PG’s fees are net of any applicable Sales Tax. If any Services, or payments for any Services, under the Terms are subject to Sales Tax in any jurisdiction and you have not remitted the applicable Sales Tax to PG, you will be responsible for the payment of such Sales Tax and any related penalties or interest to the relevant tax authority, and you will indemnify PG for any liability or expense we may incur in connection with such Sales Taxes. Upon our request, you will provide us with official receipts issued by the appropriate taxing authority, or other such evidence that you have paid all applicable taxes. For purposes of this section, “Sales Tax” shall mean any sales or use tax, and any other tax measured by sales proceeds, that PG is permitted to pass to its customers, that is the functional equivalent of a sales tax where the applicable taxing jurisdiction does not otherwise impose a sales or use tax
6. Returns. PG allows returns for most items sold via the App within thirty (30) days of the date delivered according to tracking information, or if no tracking number was assigned to the shipment, thirty five (35) days from the date the item was shipped (the “Return Period”). In general you will be responsible if an item is returned to PG during the Return Period. For example, without limiting the generality of the foregoing, if an item sold by you is returned to PG during the Return Period because: (a) the item did not match the description you provided; (b) the item you sold was noted as damaged by the domestic carrier when received; (c) the package contains the wrong or no item associated with the applicable sale made via the App; or (d) the item you sold requires destruction (e.g. contraband). If PG finds against you in a claim stemming from the buyer’s purchase of an item sold by you, then you will and agree to pay the shipping costs incurred by PG in returning the item to you, in addition to those amounts previously paid by PG to you for such item.
7. Ownership Rights and License
a. As between you and PG, the Website and App, including any design, layout, logo, text, code, and graphics contained within the App (the “ PG Content”) is, and shall remain, the sole property of PG and is subject to protection under U.S. and foreign copyright laws. Other trademarks, logos, and images that are available in connection with our Service are the property of their respective owner (each an “Owner”), which may or may not be affiliated with, connected to, or sponsored by PG.
b. You agree to indemnify and hold PG and PG’s Representatives harmless from and against any third-party claim, cause of action, demand or damages related to or arising out of: (a) the items that you list on the App; or (b) activity that occurs through or by use of your Account. This indemnification obligation includes payment of any attorneys' fees and costs incurred by PG.
8. Transaction Restrictions. We do not take, assume, or transfer legal ownership of any items listed you request that we hold and deliver. You acknowledge that we are not a consignee, bailee, agent, or auctioneer but merely an interactive service provider.
9. Termination. These Terms are effective until terminated by you or PG. Your rights under these Terms will terminate automatically without notice from PG if you fail to comply with any term(s) of this license. Upon termination of these Terms you shall cease all use of the Website and App, and destroy all copies, full or partial, of the App.
10. No Warranty. YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOUR USE OF THE WEBSITE, APP AND THE SERVICE IS AT YOUR SOLE RISK AND THAT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE WEBSITE, APP, the SERVICE, AND ANY PG content, ARE PROVIDED “AS IS” AND “AS AVAILABLE”, WITH ALL FAULTS AND WITHOUT WARRANTY OF ANY KIND, AND PG HEREBY DISclAIMS ALL WARRANTIES AND CONDITIONS WITH RESPECT TO THE APP, the SERVICE, AND ANY PG content, EITHER EXPRESS, IMPLIED OR STATUTORY, INPGUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES AND/OR CONDITIONS OF MERCHANTABILITY, OF SATISFACTORY QUALITY, OF FITNESS FOR A PARTICULAR PURPOSE, OF ACCURACY, OF QUIET ENJOYMENT, AND NON-INFRINGEMENT OF THIRD PARTY RIGHTS. PG DOES NOT WARRANT THAT THE APP, the SERVICE, AND ANY PG content or user content, WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE APP WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE APP WILL BE CORRECTED, or that the service will be available. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PG OR ITS AUTHORIZED REPRESENTATIVES SHALL CREATE A WARRANTY.
11. Limitation of Liability. TO THE EXTENT NOT PROHIBITED BY LAW, IN NO EVENT SHALL PG BE LIABLE FOR PERSONAL INJURY, OR ANY INCIDENTAL, SPECIAL, PUNITIVE, EXEMPLARY, DIRECT, INDIRECT OR CONSEQUENTIAL DAMAGES WHATSOEVER, INclUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA, BUSINESS INTERRUPTION OR ANY OTHER COMMERCIAL DAMAGES OR LOSSES, ARISING OUT OF OR RELATED TO YOUR USE OR INABILITY TO USE THE WEBSITE, APP, the SERVICE, AND ANY PG content, HOWEVER CAUSED, REGARDLESS OF THE THEORY OF LIABILITY (CONTRACT, TORT OR OTHERWISE) AND EVEN IF PG HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall PG’s total liability to you for all damages (other than as may be required by applicable law in cases involving personal injury) exceed the amount of ONE HUNDRED dollars ($100.00). The foregoing limitations will apply even if the above stated remedy fails of its essential purpose.
12. Arbitration; Applicable Law
PLEASE READ THIS CAREFULLY. IT AFFECTS YOUR RIGHTS.
a. Except for a claim by PG against you, any and all disputes between you and PG arising under or related in any way to these Terms must be resolved through binding arbitration as described in this section. This agreement to arbitrate is intended to be interpreted broadly. It includes, but is not limited to, all claims and disputes relating to your use of the App.
b. YOU AGREE THAT BY ENTERING INTO THIS AGREEMENT, YOU AND PG ARE EACH WAIVING THE RIGHT TO TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION. YOU AND PG AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. ANY ARBITRATION WILL TAKE PLACE ON AN INDIVIDUAL BASIS; CLASS ARBITRATIONS AND CLASS ACTIONS ARE NOT PERMITTED.
c. The arbitration will be governed by the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes of the American Arbitration Association (“AAA”), as modified by this section. For any claim where the total amount of the award sought is $10,000 or less, the AAA, you and PG must abide by the following rules: (a) the arbitration shall be conducted solely based on written submissions; and (b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties. If the claim exceeds $10,000, the right to a hearing will be determined by the AAA rules, and the hearing (if any) must take place in San Francisco, California. The arbitrator’s ruling is binding and may be entered as a judgment in any court of competent jurisdiction. In the event this agreement to arbitrate is held unenforceable by a court, then the disputes that would otherwise have been arbitrated shall be exclusively brought in the state or federal courts located in California. Claims of infringement or misappropriation of PG’s patent, copyright, trademark, or trade secret shall be exclusively brought in the state and federal courts located in San Francisco, California.
d. The laws of the State of California, excluding its conflicts of law rules that would result in the laws of a State other than California, govern this license and your use of the App.
13. Application Store Additional Terms and Conditions. The following additional terms and conditions apply to you if you are using an App from the Apple App Store. To the extent the other terms and conditions of this Agreement are less restrictive than, or otherwise conflict with, the terms and conditions of this Section, the more restrictive or conflicting terms and conditions in this Section apply, but solely with respect to Apps from the Apple Application Store.
a. Acknowledgement. PG and you acknowledge that this Agreement is concluded between PG and you only, and not with Apple, and PG, not Apple, is solely responsible for App and the content thereof. To the extent this Agreement provides for usage rules for App that are less restrictive than the Usage Rules set forth for App in, or otherwise is in conflict with, the Application Store Terms of Service, the more restrictive or conflicting Apple term applies, as applicable.
b. Scope of License. The license granted to you for App is limited to a non-transferable license to use App on either an iOS device that you own or control and as permitted by the Usage Rules.
c. Maintenance and Support. PG is solely responsible for providing any maintenance and support services with respect to App, as specified in this Agreement (if any), or as required under applicable law. PG and you acknowledge that Apple has no obligation whatsoever to furnish any maintenance and support services with respect to App.
d. Warranty. PG is solely responsible for any product warranties, whether express or implied by law, to the extent not effectively disclaimed. In the event of any failure of App to conform to any applicable warranty, you may notify the Application Store, and the Application Store may refund the purchase price for App to you; and to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to App, and any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty will be PG’s sole responsibility.
e. Product Claims. PG and you acknowledge that PG Apple is not responsible for addressing any claims of you or any third party relating to App or your possession and/or use of App, including, but not limited to: (i) product liability claims; (ii) any claim that App fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation. This Agreement does not limit PG’s liability to you beyond what is permitted by applicable law.
f. Intellectual Property Rights. PG and you acknowledge that, in the event of any third party claim that App or your possession and use of App infringes that third party’s intellectual property rights, PG, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
g. Legal Compliance. You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a “terrorist supporting” country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
h. Developer Name and Address. PG’s contact information for any end-user questions, complaints or claims with respect to App is set forth below.
i. Third Party Terms of Agreement. You must comply with applicable third party terms of agreement when using App.
j. Third Party Beneficiary. You agree that the Application Store provider (and its subsidiaries) is a third party beneficiary of this Agreement and will have the right to enforce this Agreement.
14. PG Name and Address. PG’s contact information for any end-user questions, complaints or claims with respect to App is Nicolas Bayerque (firstname.lastname@example.org)
15. Indemnification. You agree to indemnify, defend, release, and hold harmless PG, its partners, licensors, affiliates, contractors, officers, directors, employees and agents from all damages, losses and expenses arising directly or indirectly from (a) any negligent acts, omissions or willful misconduct by you, (b) your use of the Website, App or the Service, (c) any breach of these Terms by you, and/or (d) your violation of any law or of any rights of any third party.
16. Equitable Remedies. You hereby agree that if the terms of this Agreement are not specifically enforced, PG will be irreparably damaged, and therefore you agree that PG shall be entitled, without bond, other security, proof of damages, to appropriate equitable remedies with respect any of this Agreement, in addition to any other available remedies
17. Digital Millennium Copyright Act. PG is committed to respecting and protecting the legal rights of copyright owners. As such, PG adheres to the following notice and take down policy, in full compliance with Section 512(c)(3) of the DMCA (17 U.S.C. § 512 et seq.). If you believe infringements upon your intellectual property rights is taking place on or through the Service, please submit a notification alleging such infringement (hereafter a “ DMCA Takedown Notice”). To be valid, a DMCA Takedown Notice must (i) be provided to PG’s designated agent, (“Copyright Agent”), as set forth below, and (ii) include the following:
· A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed;
· Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works;
· Identification of the material claimed to be infringing or to be the subject of infringing activity and that is to be removed or access disabled and information reasonably sufficient to permit the service provider to locate the material;
· Information reasonably sufficient to permit the service provider to contact you, such as an address, telephone number, and, if available, an electronic mail;
· A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and
· A statement that, under penalty of perjury, the information in the notification is accurate and you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed.
19. Termination. PG may cancel, suspend or block your use of the Service without notice if there has been a violation of these Terms. Your right to use the Service will end once your registration is terminated, and any data you have stored on the Service, including any User Content may be unavailable later, unless PG is required to retain it by law. You may terminate your registration at any time. PG is not responsible or liable for any records or information that is made unavailable to you as a result of your termination of registration. YOU AGREE THAT PG WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SERVICE Any limitations on liability that favor PG will survive the expiration or termination of these Terms for any reason.
20. Miscellaneous. PG’s failure to enforce any provision of these Terms shall not be deemed a waiver of such provision nor of the right to enforce such provision. If any part of these Terms is determined to be invalid or unenforceable pursuant to applicable law, including, but not limited to, the warranty disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed superseded by a valid, enforceable provision that most closely matches the intent of the original provision and the remainder of these Terms shall continue in effect. A printed version of these Terms and of any notice given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating to these Terms to the same extent and subject to the same conditions as other business documents and records originally generated and maintained in printed form.
All contracts completed electronically will be deemed for all legal purposes to be in writing and legally enforceable as a signed writing.
Last Updated: May 23, 2014