Please Note: The Service (defined below) is a beta product. This means that it is a work-in-progress, not a final product, and you may encounter some bugs, glitches or other non-final features and experiences in using it. We are delighted to have you use the Service during this temporary beta phase, but please do not use it unless you are comfortable with using it in beta form. By using the Service during this beta phase, you also agree to the Non-Disclosure clause in this Agreement, below.
This Service is offered and available to users who are 18 years of age or older (or any higher age that may be required to form a legally binding agreement in the user’s jurisdiction). By using the Service, you represent and warrant that meet these eligibility requirements. If you register an Account on behalf of a corporation or other legal entity, then you represent and warrant that you are authorized by that entity to act on its behalf and agree on its behalf to each term of this Agreement.
We may revise and update this Agreement from time to time in our sole discretion. All changes are effective immediately when we post them and apply to all access to and use of the Service thereafter. Your continued use of the Service after the posting of a revised Agreement means that you accept and agree to the changes.
We operate an online platform (the “Service”) that allows people to buy and sell personal possessions (“Products”) owned by Owners (as defined below). People who use the Service can use the Service as:
This Agreement describes ways that people use the Service, meaning that any person can act as an Owner, Seller, Buyer, and/or PS. We refer to Owners, Sellers, Buyers and PSs collectively as “Pro Users.” We refer to all users of the Service in any way (including Pro Users, Ambassadors and Visitors) together as Users.”
A Visitor may visit, access and browse the Service, but if and when he or she joins as a Pro User or Member, which he or she does by registering and creating an Account with the Service, he or she will be deemed a Pro User or Member and not a Visitor.
All Users are bound by this Agreement. PSs are also bound by the separate Professional Seller Agreement, and Ambassadors are also bound by the separate Ambassador Agreement.
We reserve the right to withdraw or amend this Service and any service or material we provide on it in our sole discretion without notice. We will not be liable if for any reason all or any part of the Service is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Service, or the entire Service, to users, including registered users.
If you choose, or are provided with, a user name, password or any other piece of information as part of our security procedures, you must treat such information as confidential, and you must not disclose it to any other person or entity. You also acknowledge that your Account is personal to you and agree not to sell or transfer your Account to any other person or provide any other person with access to this Service or portions of it using your user name, password or other security information. You agree to notify us immediately of any unauthorized access to or use of your user name or password or any other breach of security.
We have the right to disable any user name, password or other identifier, whether chosen by you or provided by us, at any time in our sole discretion for any or no reason, including if, in our opinion, you have violated any provision of this Agreement.
All purchases, sales, listings and any other transactions made through the Service are governed by this Agreement (and, to the extent that you are a Professional Seller, your Professional Seller Agreement).
A Seller may create listings for any Products that he or she is offering for sale, whether those Products are owned by the Seller or by a different Owner (“Listings”). Sellers pay no fees to list Products. Sellers are solely responsible for preparing a Product’s Listing (including either taking photographs of Products or securing photographs of Products from their Owners and gathering all appropriate Listing information from Owners), setting Products’ prices and packaging and shipping Products once sold. Sellers in their sole discretion may decide whether to incur shipping costs or to require Buyers to pay shipping costs. Owners will not pay shipping costs in any event.
Sellers must promptly respond to any questions from potential Buyers about Products the Sellers list. In case of Third-Party Sales (see below), Sellers may seek information from Owners about the listed Products, and Owners must promptly reply to those questions.
Owners have the option to sell their Products themselves (in which case they act as both Owners and Sellers, for purposes of this Agreement). This sales transaction is called a “Direct Sale.”
Alternatively, Owners may agree that another Seller may sell their Products on their behalf. This sales transaction is called a “Third-Party Sale,” and the Service provides tools allowing Owners and Sellers to identify, search for and contact each other to discuss possible Third-Party Sale arrangements with each other. In a Third-Party Sale, Sellers create one or more dedicated pages within the Service for each Owner where the Sellers sell that Owner’s Products (“Stores”) A Seller has the option to sell all of a given Owner’s Products in one Store or to separate them into multiple Stores with the goal of improving sales through differentiated marketing strategies. In a Third-Party Sale, the Seller will be entitled to a fee ("Consignment Fee") and will receive the Consignment Fee once the Buyer’s payment has cleared through Stripe, which can take several days.
Owners and Sellers must link their Open A accounts to a third-party payment account with Stripe or any other third-party payment solutions that we support from time to time (“Payment Accounts”). Sellers have the option to ship Products to Buyers via UPS, FedEx or U.S. Postal Service (“Shipping Services”). Buyers have the option to provide ratings or comments about Sellers from whom they have purchased Products (together, “Seller Feedback”).
When a Buyer makes a purchase through the Service, the Product’s Owner receives the funds through the Owner’s Payment Account, the Seller is notified that the Product has sold and the Seller’s Consignment Fee is held in escrow until the Seller ships the Product to the Buyer (as determined by a notification from the Seller’s Shipping Service indicating that Product is en route to the Buyer). If the Seller has excessively poor Seller Feedback (as we determine in our sole discretion), we may hold their Consignment Fee in escrow until the Buyer has confirmed receipt of the Product.
For convenience, we use the language of “consignment” in this Agreement, in the Service and in our marketing materials. This terminology is not intended to suggest, and does not mean, that any transactions made through the Service will be deemed “consignments” under the laws of the various states and territories of the United States of America or under federal law. Depending on the law in your state, these transactions may be deemed “consignments” or may be deemed other types of transactions. This distinction could determine whether you need to pay taxes on them either as an Owner, Seller or Buyer.
We understand that Sellers may seek to use marketplace services other than the Service (“Third-Party Platforms”) to provide additional sales channels. In Direct Sales, Sellers have the option at any time to sell their Products on Third-Party Platforms. In a Third-Party Sales relationship, if a Product’s Owner has authorized the PS to sell the Product on a Third-Party Platform (as provided in a Consignment Form, described below), then the PS will have sole discretion as to whether and when to sell that Product on any Third-Party Platforms that the PS in his or sole discretion chooses and the PS will be liable for any fees that the Third-Party Platform may charge to the PS in addition to the Open A Service’s fees.
You are responsible for your own compliance with any local, state, federal or international tax obligations that may apply to your use of the Service. If you act as a Seller and sell Products through the Service, your sales of Products are made using one or more third-party tools that we use to assist Sellers with their obligations relating to sales tax (“Tax Tools”). Tax Tools currently include TaxJar and may include additional or different tools in the future, which we may adopt or substitute at any time with or without prior notice to you. While we offer Tax Tools for your convenience, we cannot and do not promise that your use of Tax Tools alone will ensure your own compliance with applicable laws relating to sales tax. To the extent you are entitled to a warranty relating to a Tax Tool, it will be the warranty or warranties offered by the provider of that Tax Tool. If you act as a Seller and sell Products through a Third-Party Platform, we do not offer any Tax Tools or other services that related to your sales tax obligations.
Tax laws can vary by jurisdiction, and we recommend consulting a tax professional in your jurisdiction to determine the extent of any tax obligations that you may have relating to the Service or any other product that we offer.
In Third-Party Sales, PSs have the option to use the Service to generate Consignment Forms. Consignment Forms are documents generated by the Service, using information supplied by both PSs and Owners, to define certain terms of their Third-Party Sales relationship. Consignment Forms are addenda to this Agreement and incorporate it.
PSs may use the Service to transmit proposed Consignment Forms to Owners, who may then digitally accept them through the Service if they agree to their terms. PSs and Owners may agree to use one Consignment Form to govern all of their Third-Party Sales or they may choose to use separate Consignment Forms for each of multiple Stores that the PS uses for the Owner in cases where they agree that different terms (e.g., Consignment Fees) will apply to the different Stores. Once a PS and an Owner have agreed to a Consignment Form, the Service stores it and makes it available at all times to that PS and Owner.
In Third-Party Sales relationships, pending a Product’s sale, PSs and Owners may agree either that the PS will take custody and possession of it or that the Owner will retain custody and possession of it (we recommend the latter approach, which allows PSs to avoid inventory storage costs and risks). If the Owner retains custody pending sale, then the Owner:
7.1must make arrangements with the PS allowing the PS to promptly take possession of the Product and ship it once a Buyer has purchased it;
7.2must immediately notify the PS, through the Service, if the Product becomes lost, stolen or damaged or otherwise incurs a change in its status rendering the Product’s Listing materially incorrect (such change in status may include, without limitation, the Owner learning new information that materially changes the value of the Product); and
7.3may deactivate the Product’s Listing at any time, for any reason, by communicating directly to the PS the Owner’s intention to deactivate the Listing or by using their Owner Dashboard in the Service to deactivate the Listing.
We reserve the right at any time to do any of the following, in addition to exercising our other rights in this Agreement, with the goal of improving the experience and enjoyment of the Service for Users:
The Service may contain Listings, message boards, chat rooms, personal web pages or profiles, forums, bulletin boards and other interactive features (collectively, "Interactive Services") that allow Pro Users and Members to post, submit, publish, display or transmit to other Users or third parties (hereinafter, "post") content or materials (collectively, "User Content") on or through the Service.
All User Content must comply with the Content Standards below and is subject to this Agreement. Any User Content you post to the site will be considered non-confidential and non-proprietary. You represent and warrant that you own or control all rights in and to the User Content, you have the right to grant the license granted above to us and our licensees, successors and assigns, and all of your User Content will comply with this Agreement.
You are responsible for any User Content you submit, including its legality, reliability, accuracy and appropriateness. We are not responsible, or liable to any third party, for the content or accuracy of any User Content posted by you or any other user of the Service.
These content standards apply to any and all User Content and use of Interactive Services. User Content must comply with all applicable laws. Without limiting the foregoing, User Content must not:
You may use the Service only in accordance with this Agreement. You agree that in using the Service you will not:
If you observe violations of any of these standards by other Users, we invite you to report them to us by emailing [email protected] for our review and possible enforcement action. OpenA will work best when we all take steps to ensure it’s not abused, and we hope you will join us in this effort.
When you use the Service as a Buyer, you:
When you use the Service as a Seller, you represent and warrant that:
When you use the Service as an Owner, you:
The Service and its entire contents, features and functionality (including but not limited to all information, software, text, displays, images, video and audio, and the design, selection and arrangement thereof), are owned by the Company, its licensors or other providers of such material and are protected by intellectual property laws.
The Company name and logo and all related names, logos, product and service names, designs and slogans used in the Service are trademarks of the Company or its affiliates or licensors. You must not use such marks without the prior written permission of the Company. All other names, logos, product and service names, designs and slogans on this Service are the trademarks of their respective owners.
By providing any User Content on the Service, you (a) grant us and our affiliates and service providers, and each of their and our respective licensees, successors and assigns, a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right and license to use, reproduce, modify, perform, display, distribute and otherwise disclose to other Users and other third parties any such User Content for any purpose, without compensation to you, in any media known now or developed in the future and (b) waive your right to enforce against Open A, our affiliates, our assignees, our sublicensees, and their assignees any Intellectual Property Rights in that content in connection with our, those assignees', and those sublicensees' use of that content in connection with our provision, expansion, and promotion of the Services.
We reserve the rights in our sole discretion to:
We assume no liability for any action or inaction regarding transmissions, communications or content provided by any user or third party. We have no liability or responsibility to anyone for performance or nonperformance of the activities described in this section.
We will respond to notices that allege that User Content in the Service constitutes copyright infringement so long as those notices comply with applicable law and are properly provided to us. If you believe that any User Content accessible through the Service infringes on your intellectual property rights, you may provide our designated copyright agent (“Designated Agent”) with the following information (a Notice of Claimed Infringement, or “NOCI”) in accordance with the Digital Millennium Copyright Act:
Our Designated Agent is:
Open A Marketing Inc
PO Box 160
Limon, CO 80828
If you fail to comply with all of these notice requirements, your NOCI is not valid. When the Designated Agent receives a proper NOCI, we will promptly investigate the claim and take the action that we in our sole discretion deem appropriate. This may include, without limitation: (1) removing or disabling access to the User Content identified in the NOCI; (2) notifying the applicable User that we have removed or disabled access to such material; or (3) terminating that User’s Account.
Only notices of suspected intellectual property rights infringement should be sent to the Designated Agent. For all other requests for technical support, feedback, comments, and other communications, please contact [email protected].
If you as a User receive notice from us that we have removed or disabled access to your User Content pursuant to the Digital Millennium Copyright Act, and you believe that that User Content was not infringing, or if you believe you have obtained all required rights from their owners, the owners’ agent, or pursuant to the law, you may send a counter-notice to the Designated Agent containing:
If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing the complaining party that we may replace the removed User Content following receipt of the counter-notice unless the complaining party notifies the Designated Agent that it has filed an action seeking a court order to restrain the Service user from engaging in infringing activity relating to the Content that was the subject of the NOCI.
Buyers of Products should be aware that Sellers are solely responsible for the accuracy of Listings and their other User Content. Open A may from time to time take steps to encourage accuracy in Sellers’ User Content, but cannot and does not promise that Open A has confirmed the accuracy of such User Content. Any reliance you place on such information is at your own risk.
This Service includes User Content provided by Users and may include content provided by third parties. All statements and/or opinions expressed in all of these materials, other than the content provided by the Company, are solely the opinions and the responsibility of the person or entity providing those materials. These materials do not necessarily reflect the opinion of the Company. We are not responsible, or liable to you or any third party, for the content or accuracy of any materials provided by any third parties.
If the Service contains links to other sites and resources provided by third parties, these links are provided for your convenience only. This includes links contained in advertisements, including banner advertisements and sponsored links. We have no control over the contents of those sites or resources and accept no responsibility for them or for any loss or damage that may arise from your use of them. If you decide to access any of the third party websites linked to the Service, you do so entirely at your own risk and subject to the terms and conditions of use for such websites.
YOUR USE OF THE SERVICE, ITS CONTENT AND PRODUCTS PURCHASED THROUGH THE SERVICE IS AT YOUR OWN RISK. THE SERVICE, ITS CONTENT AND PRODUCTS PURCHASED THROUGH THE SERVICE ARE PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. WE MAKE NO WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY OR AVAILABILITY OF THE SERVICE, ITS CONTENT OR PRODUCTS PURCHASED THROUGH THE SERVICE. NEITHER THE COMPANY NOR ANYONE ASSOCIATED WITH THE COMPANY REPRESENTS OR WARRANTS THAT THE SERVICE, ITS CONTENT OR PRODUCTS PURCHASED THROUGH THE SERVICE WILL BE ACCURATE, RELIABLE, ERROR-FREE OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT THE SERVICE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS OR THAT THE SERVICE OR PRODUCTS PURCHASED THROUGH THE SERVICE WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
THE COMPANY HEREBY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO ANY WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR PARTICULAR PURPOSE. THE FOREGOING APPLIES TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
THE COMPANY, ITS AFFILIATES AND THEIR LICENSORS, SERVICE PROVIDERS, EMPLOYEES, AGENTS, OFFICERS OR DIRECTORS WILL NOT IN ANY EVENT BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE OF, OR INABILITY TO USE, THE SERVICE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE SERVICE, OR ANY PRODUCTS PURCHASED THROUGH THE SERVICE OR THROUGH LINKED WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, EVEN IF FORESEEABLE. THE FOREGOING APPLIES TO THE GREATEST EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
IF WE ARE FOUND LIABLE TO YOU OR TO A THIRD PARTY NOTWITHSTANDING THE FOREGOING PARAGRAPH, OUR LIABILITY TO YOU OR THAT PARTY WILL NOT EXCEED THE GREATER OF (A) $100 OR (B) IN THE CASE OF A DISPUTE WITH US REGARDING THE PURCHASE OF A PRODUCT THROUGH THE SERVICE, THE PRICE PAID BY THE BUYER FOR THAT PRODUCT.
AS ANY TYPE OF USER OF THIS WEBSITE, INCLUDING AS A VISITOR, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS THE COMPANY AND ITS AFFILIATES AND ANY PARENT OR SUBSIDIARY COMPANIES AND ALL OF ITS AND THEIR RESPECTIVE OFFICERS, OWNERS, DIRECTORS, EMPLOYEES, CONTRACTORS, AGENTS, LICENSORS, SUPPLIERS, SUCCESSORS AND ASSIGNS (ALL OF THE FOREGOING,“COMPANY INDEMNITEES”) FROM AND AGAINST ANY CLAIMS, LIABILITY, DAMAGES, JUDGMENTS, AWARDS, LOSSES, COSTS, EXPENSES OR FEES (INCLUDING REASONABLE ATTORNEYS’ FEES (ALL OF THE FOREGING, “COVERED LOSSES”) ARISING FROM OR RELATING TO (A) ANY BREACH OF THIS AGREEMENT BY YOU OR (B) ANY USE BY YOU OF THE SERVICE’S CONTENT OR PRODUCTS THAT YOU PURCHASE THROUGH THE SERVICE IN ANY WAYS NOT EXPRESSLY AUTHORIZED BY THIS AGREEMENT.
IN ADDITION TO YOUR OTHER INDEMNIFICATIONS UNDER THIS AGREEMENT, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS (A) THE COMPANY INDEMNITEES AND (B) EACH OWNER IN A THIRD-PARTY SALES RELATIONSHIP FROM AND AGAINST ALL COVERED LOSSES ARISING FROM OR RELATING TO ANY VIOLATION BY YOU OF SECTION 13 OF THIS AGREEMENT.
IN ADDITION TO YOUR OTHER INDEMNIFICATIONS UNDER THIS AGREEMENT, YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS (A) THE COMPANY INDEMNITEES AND (B) EACH SELLER IN A THIRD-PARTY SALES RELATIONSHIP FROM AND AGAINST ALL COVERED LOSSES ARISING FROM OR RELATING TO YOUR VIOLATION OF SECTION 14.1 OF THIS AGREEMENT (YOUR REPRESENTATIONS TO SELLERS ABOUT PRODUCTS).
In some cases, your violation of certain terms of this Agreement could cause actual damages to us that are difficult to calculate or prove. You therefore agree that the following amounts are reasonable estimates of our damages resulting from the actions shown, are not penalties, and do not otherwise limit our ability to recover from you under any legal theory, including statutory damages or other equitable relief: (a) violating the Content Standards: $5,000 per violation; (b) transferring your Account to a third party without our consent: $500; violating any laws or infringing on any rights of any third parties: $5,000; distributing (with or without compensation) the Service, or any of its content, without our permission: $5,000; collecting and storing information about other Users without their and our prior consent: $5,000; introducing viruses, malware and other harmful material or software to the Service: $20,000; violating the Additional Terms for Buyers: $1,000; violating the Additional Terms for Sellers: $1,000; violating the Additional Terms for Owners: $1,000.
This is a beta version of the Service, likely to contain bugs, glitches, experimental features, less-than-ideal functionality, and other that are not intended to serve as final product features. To protect our ability to test and improve the Service in its beta phase, you agree not to disclose to anybody other than us how the Service works, what you love or don’t love about it, how your experience with the beta Service has been, or anything that you see, read or experience in the beta Service. In particular, this means that you won’t write blog posts or reviews of it, you won’t discuss it with anybody other than us (and other Users, to the extent you must communicate with other Users to use the Service in the ways authorized in this Agreement).
Sellers may not sell, and Owners may not authorize PSs to sell on their behalf, any of the following (“Prohibited Products”):
This Agreement will be governed by the laws of Delaware without regard to its conflict-of-law rules. Before taking any legal action against us, you will contact us in a good faith effort to resolve your dispute. If you do take legal action, the Company in its sole discretion may require You to submit any disputes arising from the use of the Service or this Agreement, including disputes arising from or concerning the Agreement’s interpretation, violation, invalidity, non-performance, or termination, to final and binding arbitration taking place in Colorado with a mutually agreeable arbitrator under the rules of the JAMS arbitration service applying Delaware law. You agree to arbitrate only on an individual basis, and you agree that this Agreement does not permit class arbitration or any claims brought as a plaintiff or as a class member in any class or representative arbitration proceeding. The arbitral tribunal may not consolidate more than one person’s claims, and may not otherwise preside over any form of a representative or class proceeding. If this prohibition on class arbitration is deemed invalid or unenforceable, then the remaining portions of this Section 29 will remain in force. You have the right to opt out of this agreement to arbitrate by providing the Company with written notice of your intention to opt out (by email to [email protected]referencing this Section 29 and making clear that you opt out of it) within 60 days of your first use of the Service in any way.
Any appeals from an award by the arbitrator must be brought in any court of competent jurisdiction in Colorado, and you hereby consent irrevocably to the personal jurisdiction and venue of such court or courts.
ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE SERVICE MUST BE COMMENCED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.
No waiver by the Company of any term or condition set forth in this Agreement shall be deemed a further or continuing waiver of such term or condition or a waiver of any other term or condition, and any failure of the Company to assert a right or provision under this Agreement shall not constitute a waiver of such right or provision.
If any provision of this Agreement is held by a court or other tribunal of competent jurisdiction to be invalid, illegal or unenforceable for any reason, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of this Agreement will continue in full force and effect.
This Agreement is the entire agreement between us and you about the Service. They replace any other prior oral or written agreements between us and you about the Service. No amendment to this Agreement has effect unless it is in writing and executed by you and the Company.
Under California Civil Code Section 1789.3, California web users are entitled to the following specific consumer rights notice:
The Service is provided by Open A Marketing Inc., a Delaware corporation with its principal place of business at Open A Marketing Inc., PO Box 160, Limon, Colorado, 80828.
If you have a question or complaint about the Service, please contact our User Support Team at [email protected] California residents may reach the Department of Consumer Affairs Consumer Information Division at 1625 N. Market Blvd., Suite S-202, Sacramento, California 95834, or by telephone at (916) 445-1254 or (800) 952-5210 or Hearing Impaired at TDD (800) 326-2297 or TDD (916) 322-1700.
The Service is free for Visitors to browse, and Sellers do not pay fees to list Products. Buyers pay purchase prices stated in Product Listings. The Company reserves the right to change fees, surcharges or renewal fees or to institute new fees at any time.
All other feedback, comments, requests for technical support and other communications relating to the Service should be directed to [email protected].
All notices of copyright infringement claims should be sent to the copyright agent designated in our Copyright Infringement section above in the manner set forth therein.