Terms and Conditions
Last Updated: March 1, 2023
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND CLASS ACTION WAIVER. IT AFFECTS YOUR LEGAL RIGHTS AS DETAILED IN THE ARBITRATION AND CLASS ACTION WAIVER SECTION BELOW. PLEASE READ CAREFULLY.
ACCEPTANCE OF THESE TERMS
PLEASE READ THE TERMS THOROUGHLY AND CAREFULLY. BY USING THE PLATFORM OR OUR LINKEDIN OR OTHER SOCIAL MEDIA PAGES, YOU AGREE TO BE BOUND BY THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, THEN YOU MAY NOT ACCESS OR USE THE PLATFORM OR OUR LINKEDIN OR OTHER SOCIAL MEDIA PAGES.
All references to “you” or “your,” as applicable, mean the person who accesses, uses, and/or participates in the Platform in any manner, and each of your heirs, assigns, and successors. If you use the Platform on behalf of an entity, you represent and warrant that you have the authority to bind that entity, your acceptance of the Terms will be deemed an acceptance by that entity, and “you” and “your” herein will refer to that entity, its directors, officers, employees, and agents.
ADDITIONAL TERMS AND POLICIES
“Collective Content” means User Content and Overstock Trader’s Content together.
“Content” means text, graphics, images, music, software, audio, video, information or other materials, including but not limited to product requests, quotes, message threads, reviews, scheduling and calendar information, and other information or materials available on or through the Platform.
“Consumer” means any user who is using the Platform to either sell products or buy products on the Platform or via connections made on the Platform.
“Fee” means any amount charged by Overstock Trader to a User in connection with the Platform.
“Platform” means all Overstock Trader websites, mobile or other applications, software, processes, video consultations, subscription services, and any other services that are or may become provided by or through Overstock Trader.
“Product” or “Products” means any item or items that a consumer is looking to either buy or sell.
ELIGIBILITY, SERVICE PROFESSIONAL REPRESENTATIONS, WARRANTIES, AND USE OF THE PLATFORM
Access to and use of the Platform is available only to individuals who are at least 18 years old and can form legally binding contracts under applicable law. By accessing or using the Platform, you represent and warrant that you meet these requirements.
By using the Platform to offer or sell Products, Consumers represent and warrant that they, and the employees and agents who are selling the Products legally and wholly own the Products and have the rights to sell such Products and they are in the condition and quantity they warrant they are in. They represent and warrant that they are in compliance with all applicable laws, regulations, and licenses.
Overstock Trader does not vet the Consumers, nor warrant nor guarantee the condition of the Products. Overstock Trader facilities transactions only. Consumers understand that any such facilitation does not constitute a warranty in relation to the Consumers or Products.
Consumers understand and agree that they are customers of Overstock Trader, and are not Overstock Trader employees, contractors, consultants, joint venturers, partners, or agents. Consumers acknowledge that they provide their own products, make their own decisions about whether to buy or sell products, schedule their own shipping, and make their own payment agreements. Overstock Trader does not control any aspects of the sales agreement other than the introduction.
YOUR LICENSE TO USE THE PLATFORM
Subject to your compliance with these Terms, Overstock Trader grants you a limited, non-exclusive, revocable, non transferable, and non-sublicensable license to reproduce and display Collective Content (excluding any software source code) solely for your personal and non-commercial use and only in connection with your access to and participation in the Platform. You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast or otherwise exploit the Platform or Collective Content, except as expressly permitted in these Terms. The Platform and Collective Content are provided to you as is. If you download or print a copy of Collective Content for personal use, you must retain all copyright and other proprietary notices contained thereon. No licenses or rights are granted to you by implication or otherwise regarding any intellectual property rights owned or controlled by Overstock Trader or our licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit User Content. By making available any User Content on or through the Platform, you hereby grant to Overstock Trader a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, copy, adapt, modify, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise utilize such User Content on, through, by means of or to promote, market or advertise the Platform or Pro Services, or for any other purpose in our sole discretion. In the interest of clarity, the license granted to Overstock Trader will survive termination of the Platform. Overstock Trader does not claim ownership rights in your User Content and nothing in these Terms will be deemed to restrict rights that you may have to use and exploit any such User Content submitted, posted, uploaded, published, or transmitted on or through the Platform by you.
You acknowledge and agree that you are solely responsible for all User Content that you make available on or through the Platform. Accordingly, you represent and warrant that: (a) you either are the sole and exclusive owner of all User Content that you make available on or through the Platform or you have all rights, licenses, consents and releases that are necessary to grant to Overstock Trader the rights in such User Content, as contemplated under these Terms; and (b) neither the User Content nor your posting, uploading, publication, submission or transmittal of the User Content or Overstock’s use of your User Content (or any portion thereof) on, through or by means of the Platform will infringe, misappropriate or violate a third-party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
Overstock Trader reserves the right, at any time and without prior notice, to remove or disable access to User Content that we, in our sole discretion, consider to be objectionable, in violation of these Terms or otherwise harmful to the Platform or Consumers, or for any other reason.
As a User of the Platform, you may not:
- Misrepresent yourself or the products you sell or other information in a quote or quote request or post Content in any inappropriate category or areas on the Platform;
- Use any automated system including but not limited to robots, spiders, offline readers, or scrapers to access the Platform for any purpose.
- Copy text, or otherwise misuse or misappropriate Platform information or Content in any manual or automated manner including but not limited to, for use on a mirrored, competitive, or third-party site;
- Take any action that (a) may unreasonably encumber the Platform’s infrastructure; (b) interferes or attempts to interfere with the proper working of the Platform or any third-party participation; (c) bypasses measures that are used to prevent or restrict access to the Platform; (d) circumvents, disables or otherwise interferes with security features of the Platform; (e) distributes viruses or any other technologies that may harm Overstock Trader or our Users; (f) uses the Platform in a way that violates any copyrights, trade secrets, or other rights of any third-party, including privacy or publicity rights; or (g) circumvents or manipulates the Fee structure, billing, or Fees owed;
- Use the Platform in any manner that circumvents, or that may be intended to circumvent, your obligation to pay Overstock Trader for access to services provided by the Platform or by Service Professionals;
- Notwithstanding anything to the contrary contained in these Terms, collect, harvest, publish, or “sell” any personal information, including but not limited to information related to Users for any reason not explicitly authorized by these Terms, including commercial solicitation purposes;
- Violate any applicable laws or regulations;
- Take any inappropriate or unlawful actions, including the submission of inappropriate or unlawful Content to or through the Platform, including Content that is harassing, hateful, illegal, profane, obscene, defamatory, threatening, or discriminatory, or that advocates, promotes, or encourages inappropriate activity, conduct that would be considered a criminal offense, or conduct that would give rise to civil liability or violate any law.
OVERSTOCK FEES AND CONSUMER PAYMENTS
In connection with the use of Overstock Trader’s Platform, Overstock Trader may charge Fees. The Overstock Trader platform does not facilitate payments between Consumers and is not a party to any such payments. Overstock Trader does not warrant or guarantee payment between Consumers. Overstock Trader is a marketplace and buyer/seller connector only.
Overstock Trader may publicly display advertisements, paid content, and other sponsored information. The manner, mode, and extent of such advertising are subject to change without specific notice to you.
DISPUTES BETWEEN OR AMONG USERS
Overstock Trader values our Consumers, and we understand that occasionally disputes may arise between or among them. You acknowledge and agree that Overstock Trader is under no obligation to become involved in or impose resolution in any dispute between or among Users or any third-party. Consumers understand that they are responsible for any actions or attorney or court fees that may arise from disputes arising between Consumers.
NO ENDORSEMENT OR WARRANTY
Overstock Trader does not endorse, warrant or make any representation concerning any Consumer or Products, and Overstock Trader is not a party to any agreements between or among Consumers. Overstock Trader does not sell or buy Products and disclaims all liability with respect thereto. No agency, partnership, joint venture, or employment is created as a result of the Terms or any Consumer’s use of any part of the Platform. Users are required by these Terms to provide accurate information, and although Overstock Trader may undertake additional checks and processes designed to help verify or check the identities or backgrounds of Users, we do not make any representations about, confirm, or endorse any User or their purported identity or background.
By using the Platform, you understand and agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Users or other third-parties will be limited to a claim against those particular Users or other third-parties. You agree not to attempt to impose liability on or seek any legal remedy from Overstock Trader with respect to such actions or omissions.
SANCTIONS FOR VIOLATIONS OF THESE TERMS
Without limiting any other rights, Overstock Trader may, in our sole discretion, take any action permitted by law for any violation of these Terms or any other policy or agreement between you and Overstock Trader, including but not limited to removing User Content you posted, limiting or terminating your access, assessing monetary penalties or costs, notifying other Users of the termination of your use and/or the violation of these Terms, blocking access, investigating you, and/or cooperating with law enforcement agencies in investigation or prosecution.
ACCOUNT SUSPENSION OR TERMINATION
We may, in our discretion, with or without cause, with or without prior notice and at any time, limit, block, suspend, deactivate or cancel your Overstock Trader access in whole or in part. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your use will be blocked and you will not be able to access the Platform or your User Content, or receive assistance from Overstock Trader support teams; and (b) if appropriate in our sole discretion, we may communicate to other Users that your access has been blocked or otherwise penalized in any way, and why this action has been taken. You may stop using the Platform at any time by not accessing the site.
ARBITRATION AND CLASS ACTION WAIVER
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR LEGAL RIGHTS, INCLUDING YOUR RIGHT TO FILE A LAWSUIT IN COURT.
You and Overstock Trader agree that these Terms affect interstate commerce and that the Federal Arbitration Act governs the interpretation and enforcement of these arbitration provisions.
This Section is intended to be interpreted broadly and governs any and all disputes between you and Overstock Trader, including but not limited to claims arising out of or relating to any aspect of the relationship between you and Overstock Trader, whether based in contract, tort, statute, fraud, misrepresentation or any other legal theory; claims that arose before this Agreement or any prior agreement (including, but not limited to, claims related to advertising); and claims that may arise after the termination of this Agreement. The only disputes excluded from this broad prohibition are the litigation of certain intellectual property and small court claims, as provided below.
By agreeing to these Terms, you agree to resolve any and all disputes with Overstock Trader as follows:
Initial Dispute Resolution: Most disputes can be resolved without resort to litigation. For intellectual property and small claims court claims, the parties agree to use their best efforts to settle any dispute, claim, question, or disagreement directly through consultation with Overstock Trader representatives, and good faith negotiations will be a condition to either party initiating a lawsuit or arbitration.
Binding Arbitration: If the parties do not reach an agreed-upon solution within a period of thirty (30) days from the time informal dispute resolution is initiated under the Initial Dispute Resolution provision above, then either party may initiate binding arbitration as the sole means to resolve claims, subject to the terms set forth below. Specifically, all claims arising out of or relating to these Terms or previous versions of these Terms (including the Terms’ formation, performance, and breach), the parties’ relationship with each other, and/or your use of the Platform will be finally settled by binding arbitration, as described below.
Where the relief sought by you is $10,000.99 or less and you do not wish to bring the claim in small claims court, the arbitration will be conducted online by an online arbitration provider of our choosing in accordance with their applicable arbitration rules & procedures effective at the time a claim is made. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
Where the relief sought is $10,001.00 or more, resolution will be in accordance with the JAMS Streamlined Arbitration Procedure Rules for claims that do not exceed $250,000.00 and the JAMS Comprehensive Arbitration Rules and Procedures for claims exceeding $250,000.00 in effect at the time the arbitration is initiated, excluding any rules or procedures governing or permitting class actions. To initiate an arbitration with JAMS, you must do the following: (a) write a Demand for Arbitration that includes a description of the claim and the amount of damages you seek to recover (you may find a copy of a Demand for Arbitration at www.jamsadr.com); (b) send three copies of the Demand for Arbitration, plus the appropriate filing fee, to JAMS, and (c) send one copy of the Demand for Arbitration to Overstock Trader. You will be required to pay $250 to initiate an arbitration against us. You are responsible for your own attorneys’ fees unless the arbitration rules and/or applicable law provide otherwise.
The arbitrator, and not any federal, state, or local court or agency, will have exclusive authority to resolve all disputes arising out of or relating to the interpretation, applicability, enforceability, or formation of these Terms, including but not limited to any claim that all or any part of these Terms is void or voidable, whether a claim is subject to arbitration, or the question of waiver by litigation conduct. The arbitrator will be empowered to grant whatever relief would be available in a court under law or in equity. The arbitrator’s award will be written and will be binding on the parties and may be entered as a judgment in any court of competent jurisdiction.
The parties understand that, absent this mandatory arbitration provision, they would have the right to sue in court and have a jury trial. They further understand that, in some instances, the costs of arbitration could exceed the costs of litigation and the right to discovery may be more limited in arbitration than in court.
If you are a resident of the United States, arbitration may take place in the county where you reside at the time of filing. For individuals residing outside the United States, arbitration will be initiated in the state of Massachusetts. You and Overstock Trader further agree to submit to the personal jurisdiction of any federal or state court in Massachusetts in order to compel arbitration, to stay proceedings pending arbitration, or to confirm, modify, vacate, or enter judgment on the award entered by the arbitrator.
Class Action Waiver The parties further agree that the arbitration will be conducted in their individual capacities only and not as a class action or other representative action, and the parties expressly waive their right to file a class action or seek relief on a class basis. YOU AND OVERSTOCK TRADER AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR OUR INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING. If any court or arbitrator determines that the class action waiver set forth in this paragraph is void or unenforceable for any reason or that an arbitration can proceed on a class basis, then the arbitration provisions set forth above will be deemed null and void in their entirety and the parties will be deemed to have not agreed to arbitrate disputes.
Exception: Litigation of Intellectual Property and Small Claims Court Claims: Notwithstanding the parties’ decision to resolve all disputes through arbitration, either party may bring enforcement actions, validity determinations or claims arising from or relating to theft, piracy or unauthorized use of intellectual property in state or federal court or in the U.S. Patent and Trademark Office to protect your or our intellectual property rights (“intellectual property rights” means patents, copyrights, moral rights, trademarks, trade dress, and trade secrets, but not privacy or publicity rights). Either party may also seek relief in a small claims court for disputes or claims within the scope of that court’s jurisdiction.
30-Day Right to Opt Out: You have the right to opt out and not be bound by the arbitration and class action waiver provisions set forth above by sending written notice of your decision to opt with the subject line, “ARBITRATION AND CLASS ACTION WAIVER OPT-OUT.” The notice must be sent within thirty (30) days of the later of the Effective Date of these Terms or your first use of the Platform; otherwise, you will be bound to arbitrate disputes in accordance with the terms of those paragraphs. If you opt out of these arbitration provisions, Overstock Trader also will not be bound by them.
Changes to this section will otherwise apply prospectively only to claims arising after the 30th day. If a court or arbitrator decides that this subsection on “Changes to This Section” is not enforceable or valid, then this subsection will be severed from the section entitled “Arbitration and Class Action Waiver,” and the court or arbitrator will apply the first Arbitration and Class Action Waiver section in existence after you began using the Platform.
Survival: This Arbitration and Class Action Waiver section will survive any termination of your use or the Platform.
The Terms and the relationship between you and Overstock Trader will be governed in all respects by the laws of the state of Massachusetts without regard to its conflict of law provisions. You agree that any claim or dispute you may have against Overstock Trader that is not subject to arbitration must be resolved by a court located in Massachusetts, except as otherwise agreed by the parties. You agree to submit to the personal jurisdiction of the courts located therein, for the purpose of litigating all such claims or disputes that are not subject to arbitration. You hereby waive any and all jurisdictional and venue defenses otherwise available.
YOUR USE OF THE PLATFORM IS SOLELY AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT OVERSTOCK TRADER DOES NOT HAVE AN OBLIGATION, BUT RESERVES THE RIGHT FOR ANY REASON, TO MONITOR OR REVIEW USER CONTENT. THE PLATFORM IS PROVIDED “AS IS,” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, OVERSTOCK TRADER AND OUR AFFILIATES AND SUBSIDIARIES, AND RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS EXPLICITLY DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT; ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF OR IN TRADE; ANY WARRANTIES, REPRESENTATIONS, OR GUARANTEES IN CONNECTION WITH THIS PLATFORM; AND ANY WARRANTIES RELATING TO THE QUALITY, SUITABILITY, TRUTH, ACCURACY OR COMPLETENESS OF ANY INFORMATION OR MATERIAL CONTAINED OR PRESENTED ON THE PLATFORM, INCLUDING WITHOUT LIMITATION ALL COLLECTIVE CONTENT. OVERSTOCK TRADER MAKES NO WARRANTY THAT THE PLATFORM OR PRODUCTS WILL MEET YOUR REQUIREMENTS. OVERSTOCK TRADER ASSUMES NO RESPONSIBILITY, AND WILL NOT BE LIABLE FOR ANY DAMAGES TO YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO OR USE OF THE PLATFORM. OVERSTOCK TRADER WILL NOT BE LIABLE FOR ANY DEFAMATORY, OFFENSIVE, OR ILLEGAL CONDUCT OF ANY THIRD-PARTY, OR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF ANY DATA, INFORMATION, MATERIALS, SUBSTANCE, OR COLLECTIVE CONTENT POSTED, TRANSMITTED, OR MADE AVAILABLE VIA THE PLATFORM. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM OVERSTOCK TRADER OR THROUGH THE PLATFORM, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OR CONSUMERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM. YOU UNDERSTAND THAT OVERSTOCK TRADER DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE PLATFORM OR TO REVIEW OR VET ANY CONSUMERS. OVERSTOCK TRADER MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE PLATFORM OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE PLATFORM. YOU AGREE TO TAKE REASONABLE PRECAUTIONS IN ALL COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE PLATFORM AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON. OVERSTOCK TRADER EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY USERS OR THIRD-PARTIES.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE PLATFORM AND COLLECTIVE CONTENT, YOUR OFFERING OR PURCHASE OF PRODUCTS THROUGH THE PLATFORM OR CONNECTIONS MADE VIA THE PLATFORM, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF OVERSTOCK TRADER OR THIRD-PARTIES, WHETHER IN PERSON OR ONLINE, REMAINS WITH YOU. NEITHER OVERSTOCK TRADER NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE PLATFORM WILL BE LIABLE (WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT OVERSTOCK TRADER HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE) FOR: (A) ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL; (B) SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE; (C) THE COST OF SUBSTITUTE PRODUCTS OR SERVICES; (D) ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH THESE TERMS; (E) THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT; (F) ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE PLATFORM OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE PLATFORM; OR (G) YOUR OFFERINGS OR REQUESTS OF/FOR PRODUCTS THROUGH THE PLATFORM OR IN CONNECTION WITH SOMEONE MET AS A RESULT OF THE PLATFORM.
IN NO EVENT WILL THE TOTAL, AGGREGATE LIABILITY OF OVERSTOCK TRADER AND OUR AFFILIATES AND SUBSIDIARIES, AND RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS, ARISING FROM OR RELATING TO THE TERMS, PLATFORM, AND/OR COLLECTIVE CONTENT, OR FROM THE USE OF OR INABILITY TO USE THE PLATFORM OR COLLECTIVE CONTENT OR IN CONNECTION WITH ANY INTERACTIONS WITH ANY OTHER USERS EXCEED THE TOTAL AMOUNT OF FEES ACTUALLY PAID TO OVERSTOCK TRADER BY YOU HEREUNDER, OR ONE HUNDRED U.S. DOLLARS IF NO SUCH PAYMENTS HAVE BEEN MADE, AS APPLICABLE. SOME JURISDICTIONS DO NOT ALLOW LIMITATIONS OF LIABILITY, SO THE FOREGOING LIMITATION MAY NOT APPLY TO YOU. IN JURISDICTIONS THAT DO ALLOW LIMITATIONS OF LIABILITY, THE LIMITATION DESCRIBED ABOVE WILL APPLY FULLY TO RESIDENTS OF THOSE JURISDICTIONS.
INDEMNIFICATION AND RELEASE
You agree to release, defend, indemnify, and hold Overstock Trader and our affiliates and subsidiaries, and respective officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with (a) your violation of these Terms; (b) your User Content; (c) your interaction with any User; and (d) the request or receipt or offer or provision of products by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with such transactions.
Notwithstanding the foregoing paragraph, if you are a resident of a jurisdiction where the foregoing is prohibited, you only agree to release, defend, indemnify, and hold Overstock Trader and our affiliates and subsidiaries, and respective officers, directors, employees and agents, harmless from and against any third-party claims, liabilities, damages, losses, and expenses, including without limitation reasonable legal and accounting fees, arising out of or in any way connected with your violation of these Terms.
If you are a California resident, you waive California Civil Code Section 1542, which provides:
A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party.
If you are not a California resident, you waive your rights under any statute or common law principle similar to Section 1542 that governs your rights in the jurisdiction of your residence.
Force Majeure: Other than payment obligations, neither Overstock Trader nor you will be liable to the other for any delay or failure in performance under the Terms arising out of a cause beyond your or our control and without your or our fault or negligence. Such causes may include but are not limited to fires, floods, earthquakes, strikes, unavailability of necessary utilities, blackouts, epidemics, acts of declared or undeclared war, acts of regulatory agencies, or other disasters.
No Third-Party Beneficiaries: You agree that, except as otherwise expressly provided in these Terms, there will be no third-party beneficiaries to these Terms.
Entire Agreement: These Terms and any other legal notices or additional terms and conditions or policies published by Overstock Trader on the Platform, will constitute the entire agreement between you and Overstock Trader concerning the Platform or Products obtained through the Platform. Except as explicitly stated herein, if any provision of the Terms is deemed invalid by a court of competent jurisdiction, the invalidity of such provision will not affect the validity of the remaining provisions of the Terms, which will remain in full force and effect.
Waiver: No waiver of any provision of these Terms will be deemed a further or continuing waiver of such term or any other term, and Overstock Trader’s failure to assert any right or provision under these Terms will not constitute a waiver of such right or provision.
Statute of Limitations: You agree that regardless of any statute or law to the contrary, any claim arising out of or related to the Platform or the Pro Services offered therein must commence within one (1) year after the cause of action accrues. Otherwise, such cause of action is permanently barred. Notwithstanding the foregoing, this statute of limitations will not apply to residents of New Jersey.
Section Headings: The section headings in these Terms are for convenience only and have no legal or contractual effect.
Contact Information: If you have any questions about these Terms or the Platform, please contact us by sending an email at firstname.lastname@example.org.