These terms of service are entered into by and between you and High Road Holdings, LLC dba Everything But the House and/or EBTH (“EBTH,” “we,” “us” or “our”). The following terms of service, together with any documents they expressly incorporate by reference (collectively, “Terms of Service”), govern your access to and use of www.ebth.com, its related sites, services, applications, mobile applications, domain names, content, functionality, downloads, associated features, tools, auction services, and other online services controlled or operated by EBTH (collectively, the “Services”), whether as a buyer, seller, guest, registered user or user that otherwise accesses the Services (collectively, “Users”). These Terms of Service are in addition to the terms or conditions of any other written executed agreement (an “Additional Agreement”) you may have with us. In the event of a conflict between these Terms of Service and the Additional Agreement, these Terms of Service will apply unless expressly set forth otherwise in the Additional Agreement. Sellers of items (other than EBTH) on the Services are also subject to the Auction Agreement governing the sale of items on the Services, provided to a seller at the time of contract signing via a third party application or at https://www.ebth.com/consignment-terms if our click-to-agree form was used, incorporated herein by reference (the “Auction Agreement”).
PLEASE BE ADVISED THAT THESE TERMS OF SERVICE CONTAIN PROVISIONS THAT GOVERN HOW CLAIMS YOU AND WE HAVE AGAINST EACH OTHER ARE RESOLVED. THESE TERMS OF SERVICE CONTAIN AN AGREEMENT BY YOU TO ARBITRATE ANY CLAIMS, WHICH WILL, WITH LIMITED EXCEPTION, REQUIRE YOU TO SUBMIT CLAIMS YOU HAVE AGAINST US OR OUR AGENTS TO BINDING AND FINAL ARBITRATION WHEREBY (1) YOU WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST US OR OUR AGENTS ON AN INDIVIDUAL BASIS, NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY CLASS OR REPRESENTATIVE ACTION OR PROCEEDING AND (2) YOU WILL ONLY BE PERMITTED TO SEEK RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ON AN INDIVIDUAL BASIS.
You may not use or access the Services if you (a) do not agree to these terms, (b) are not the older of (i) at least 18 years of age or (ii) legal age to form a binding contract, or © are prohibited from accessing or using the Services by applicable law.
While using the Services, you agree that you will not:
If we believe you are abusing the Services in any way, whether specifically listed above or not, we may, in our sole discretion, without notice and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to the Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using the Services. We will not be liable if for any reason all or any part of the Services are unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Services, or the entire Services, to all or certain Users.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue access to the Services. Additionally, we reserve the right to refuse or terminate all or part of the Services to anyone for any reason at our sole discretion.
a) Auction Items. EBTH is a listing, information and auction website that brings together buyers and sellers. Items for sale on the Services are referred to herein as “Auction Items”. Most Auction Items for sale on the Services are not owned by EBTH, but instead are delivered to EBTH during the auction period and are sold to buyers by sellers using the Services. By using the Services or otherwise allowing EBTH to list Auction Items on the Services, sellers agree to and are bound by these Terms of Service, including the Auction Agreement. For Auction Items, EBTH will assist sellers in preparing a listing on the Site. Some Auction Items for sale on the Services may be owned and sold by EBTH (such Auction Items being “EBTH-Owned Auction Items”). You may inquire as to whether a particular Auction Item is an EBTH-Owned Auction Item by sending a request for such information to [email protected].
EBTH IS NOT A BROKER OR DEALER AND, EXCEPT FOR THE EBTH-OWNED AUCTION ITEMS, EBTH DOES NOT SELL, EXCHANGE, BUY, OR OFFER FOR SALE, NEGOTIATE OR ATTEMPT TO NEGOTIATE, A SALE OR EXCHANGE OF AN INTEREST IN ANY ITEM LISTED FOR SALE ON OUR SERVICE. EXCEPT FOR THE EBTH-OWNED AUCTION ITEMS, EBTH DOES NOT MAINTAIN TITLE FOR ANY ITEM LISTED FOR SALE ON THE SERVICES, AND TITLE PASSES TO BUYER IMMEDIATELY UPON SELLER NO LONGER HOLDING TITLE.
b) Prohibited Items. The following items are prohibited from being sold on EBTH. If you become aware that any of these items are being sold, please contact us immediately at [email protected]. EBTH is not responsible or liable to take any actions beyond what is outlined in these Terms of Service or required by non-waivable law relating to the alleged prohibited items. However, EBTH reserves the right at its sole discretion to terminate the account or Services with respect to any User who violates this policy, to suspend a sale/auction, de-list an item, or take any other action available under law in investigating an alleged prohibited item. EBTH reserves the right to add or remove any items from the prohibited items list below in its sole discretion and without notice, or to otherwise determine an item is prohibited on an individual basis whether or not it falls into an enumerated category on the list below:
c) Item Descriptions. You are aware that, unless otherwise stated, the items sold on the Services are not new nor in perfect condition, may have patent and/or latent defects (including those beyond ordinary wear and tear), may require touch-up or repairs prior to use, and the available information about these items may be limited. EBTH will not list every flaw associated with each item. In the case of obvious faults (chips, cracks, significant damage, etc.), if EBTH is aware of a fault, it will take reasonable measures to list the fault within the photos and/or description. EBTH will provide descriptions based on its assessment of an item, as well as information provided to EBTH by the seller of the item. However, Users should not assume that our assessment of condition will be the same as your assessment, or that the information provided by a seller upon which EBTH relies is accurate. It is your responsibility to read and review all descriptions and images of an item before bidding and to engage subject matter experts where appropriate to determine the reliability of any description. Any brands of Auction Items identified on or through the Services: (i) are not involved in the authentication of the products being sold through the Services, and (ii) do not assume responsibility for any products purchased from or through the Services. Brands of Auction Items sold on or through the Service are not partners or affiliates of EBTH in any manner.
a) Sales Format. All Auction Items sold through the Services are sold using an auction process where all bids must be placed online through the Services. Absentee bidding or bidding outside of the online platforms provided through the Services is not allowed. Unless otherwise explicitly stated in the auction or item description, all sales are conducted without reserve by the seller. Unless otherwise explicitly stated by EBTH in writing, the auction of personal property through the Services is conducted according to the following guidelines: (i) the property is sold to the highest bidder without reserve; (ii) the auction does not require a minimum bid; (iii) the auction does not require competing bids of any type by the seller or an agent of the seller; and (iv) the seller of the property cannot withdraw the property from auction after the auction is opened and there is public solicitation for bids; provided, however, that EBTH reserves the right to withdraw any item from the Services or to amend any content on the Services at any time in its sole discretion. EBTH will not be liable to Users or any third party for any withdrawn item, amendment to any content on the Services, or denial or unavailability of any access to the Services.
b) Extension and Close of Internet Bidding. At the scheduled date and online sale closing period of a sale, items will begin to close at a predetermined number of items per minute. All online sales may be subject to our automatic extension system defined as follows: if an item receives a bid with less than five (5) minutes remaining until closing, the close time will be reset to five (5) minutes from the time the bid is placed and will continue to reset to five (5) minutes with each newly placed bid. The item will not close until five (5) minutes have elapsed with no additional bid activity.
c) Placing a Bid. You agree and acknowledge that, in exchange for valuable consideration (including but not limited to the rights to use the Services and participate in the online auction), all bids placed by you are irrevocable offers to purchase an item that may not be withdrawn by you at any time prior to the close of the auction. You expressly agree that, due to the irrevocable nature of the bids, any cancellation or correction of a bid by EBTH may result in a previous bid being the highest current bid subject to acceptance at the close of the auction. By placing a bid, you expressly agree that if you are the winning bidder you will pay for your item and agree to any additional handling, storage and shipping fees applicable for shipped items. It is your responsibility to read the full item listing and to understand the pickup and delivery options and costs for each item before you place your bid. All bids are shown in US dollars and all taxes, shipping, and handling charges are additional. If you cannot pay for the items or agree to the shipping terms and costs, please do not bid on the items. Notwithstanding the foregoing, for motor vehicles, a bid or offer initiates a non-binding transaction representing a buyer’s serious expression of interest in buying the motor vehicle and does not create a formal contract with EBTH nor between the buyer and the seller.
d) Current and Auto Bids. When submitting a bid, you must raise the bid by a minimum established increment. Bid increments can be found here. You may elect to raise the bid by more than the required current by entering a higher bid in the “Your Bid” box. If you enter a higher current bid and your bid is the winning bid, you agree to be bound to your bid amount, regardless of any other previous bids. You may also elect to enter a proxy bid in the “Auto Bid” box. If you enter an auto bid, the system will automatically raise your bid by the specified increments if you are subsequently outbid, up to your designated auto bid amount (an “Auto Bid”). Auto Bids are not disclosed. All bids, including Auto Bids, do not include any taxes or shipping, storage or handling fees.
e) Increasing Your Own Bid. The system will permit you to raise your own bid by rebidding on the same item. This is to permit you to raise the price of an item out of the reach of other bidders. If you rebid on an item, your new bid is binding. If you are the current high bidder and want to increase your Auto Bid without increasing the current bid, you must use the “Edit Your Bid” function.
f) Bid Correction/Retraction. As stated above, all bids represent irrevocable offers to purchase that may not be withdrawn prior to the close of the auction. It is your sole responsibility not to submit erroneous bids. In the event that you submit an erroneous bid more than twenty-four (24) hours before the scheduled close of a sale, you may request a correction through our Contact Form here. Bid corrections are at the sole discretion of EBTH. Bid correction requests will become part of your user history and are subject to review. Under no circumstances will a bid correction request be honored in the final twenty-four (24) hours of a sale. Notwithstanding any of the foregoing, EBTH reserves the right to cancel any bid at any time if, in our sole discretion, we determine an error was made.
g) Bidding Notices. For your convenience, EBTH provides certain e-mail, push and SMS communications regarding the status of ongoing sales. These communications are provided as a courtesy only and are not official bid status communications. The failure to receive a notification of a winning bid does not relieve you from your contractual obligations as the winning bidder. To confirm the status of your current bids, visit the “I’m Following” page. You expressly agree that the display of the highest bid and the status of your current bid on the Services at the close of the auction are both accepted means of acceptance of your bid by the seller, and forms a binding sale contract in accordance with Section 1302.41(B) of the Ohio Revised Code. The bid history reflected on the EBTH system supersedes any e-mail, push or SMS communication in dispute resolutions.
h) Bidding Instructions. For additional information and a step by step walkthrough of the bidding process, follow this link.
i) No Shill Bidding. You represent and warrant that you will not directly or indirectly engage in shill bidding. Shill bidding happens when anyone (including family, agents, friends, employees, or online acquaintances) bids on an item with the intent to artificially increase its price or desirability, usually on behalf of the seller. You will be held liable for any damages incurred by EBTH due to your related shill bidding.
j) Goods Not for Resale or Export. You represent and warrant that you are buying Auction Items for your own personal or household use only, and not for resale or export.
a) Maintenance of Payment Information. In order to place a bid or list an item, you must have valid payment information stored in your account. By providing your credit card information to EBTH, you irrevocably authorize EBTH to charge your credit card for the listing fee or total purchase amount of any winning bid placed through your account plus any costs and fees associated with the sale of the item, including but not limited to taxes and shipping, storage, handling and restocking fees, as applicable. You represent and warrant that (i) the credit card information you supply to us is true, correct and complete, (ii) you are duly authorized to use such credit card for the purchase, (iii) charges incurred by you will be honored by your credit card company, and (iv) you will pay charges incurred by you at the posted prices, including shipping and handling charges and all applicable taxes. EBTH reserves the right in its sole and absolute discretion to cancel listings or bids or suspend bidding privileges of any User not maintaining valid payment information.
b) Payment Forms Accepted. All invoices under five thousand dollars ($5,000) that are shipped must be paid with a digital check, credit card and/or valid gift card (if applicable). Purchases over five thousand dollars ($5,000) must be paid via cashier’s check or wire. Notwithstanding the foregoing, in the event EBTH accepts an alternate payment method in its sole discretion and said payment method has been transacted, cashed, and cleared as applicable, such acceptance and completion of the payment method will constitute a valid waiver of the preceding term of this section by EBTH only for that transaction, and shall not be deemed a waiver of this section for any other transaction.
Winning bidders with questions of how to make payment should submit a question via our Contact Form located here.
c) Sales Tax. All sales are subject to appropriate state sales and use tax laws, including any state sales tax laws applicable to the seller, which shall be paid by the buyer. Tax exempt buyers must provide the appropriate state sales tax exemption certificate prior to the end of the sale. Upon acceptance and validation of such information by EBTH, your future purchases will not be taxed, provided that you are still eligible for tax exemption. You may be required to update certificates on file periodically as deemed necessary by EBTH. EBTH requires a sales tax exemption certificate for each state in which an exemption is claimed. For more information regarding sales tax exemption, please follow this link.
d) Failure to Pay. If your payment method fails or your account is otherwise past due, we may collect amounts owed by charging other payment methods on file with us, and/or retain collection agencies and legal counsel to collect such fees at your additional cost and expense. In addition, late fees will accrue interest at a rate of 1.5% per month, or such lower rate that is the maximum amount permitted by applicable law. EBTH, in its sole discretion and without notice, may cause any items not paid for in accordance with the Terms of Service within seven (7) days of the sale closing (or upon a later applicable payment due date as may be provided herein) to be deemed forfeited by the buyer and EBTH may, in its sole discretion but subject to the terms of the Auction Agreement, resell or dispose of such items or donate the items to a charity of EBTH’s choosing; provided that such buyer shall remain liable to EBTH to pay any moving or disposal charges, restocking fees, storage fees and any other costs incurred by EBTH in attempting to collect payment, and hereby expressly authorizes EBTH to charge all payment methods on file with respect to such costs.
e) Gift Cards and Promotions. Subject to the terms and conditions of the applicable gift card or promotional discount, EBTH may accept payment via gift card or gift certificate and may discount invoices in accordance with certain promotions from time to time.
Should you place the final winning bid on an item, an invoice will appear in your “Won Items” list. By selecting the invoice and clicking “Checkout” you will be able to designate your final fulfillment method. You hereby expressly grant EBTH the right to hold a winning item until confirmation of cleared funds has been received by EBTH.
a) Pickup Option. Certain sales and items may have a designated pickup time and location. Before bidding, confirm whether you can pick up your item at the designated time and location. You must provide your own tools, labor and transportation to facilitate safe removal of your item(s). Plan accordingly for large or bulky items. Be prepared to show identification to pick up your item(s). Purchases will be released upon presentation of proof of payment. EBTH will not be liable for any damages created or incurred by you upon the pickup or transport of your item(s).
b) Delivery. EBTH and sellers utilize third party shipping agencies for packaging, handling and delivery of items. Please be aware that not all items are eligible for shipping. If shipping is available, you can request a shipping quote when viewing the item. The final shipping cost is subject to insurance cost based on the final bid price and occasional fluctuations in fuel surcharges from common carriers (shipping quote insurance calculations prior to the end of the sale are based on the current bid value). If you intend to have an item delivered, it is your responsibility to understand the potential delivery costs before placing your bid. EBTH will use reasonable efforts to ship the Auction Items within ten (10) business days after the scheduled sale removal and payment date. When you win an item, any shipping times we provide are estimates only and actual delivery dates may vary. You acknowledge that some items may have a longer processing period such as large items which may take six (6) to eight (8) weeks for delivery.
c) Alternate Pickup. In certain locations, EBTH may provide an alternative pickup location. If an alternative pickup location is available, it will be detailed in the item view. Additional fees may apply to have your item available at a designated alternative pickup location. Conditions regarding failure to pay and failure to pick up apply to alternate pickup locations.
d) Handling Fee. Items which must be moved from one location to another in order to make alternate pickup arrangements are subject to a minimum handling fee of fifteen dollars ($15.00) per lot. You agree that EBTH may charge a higher handling fee, in its reasonable discretion, for certain items which are difficult to transport.
e) Title and Risk of Loss. Subject to these Terms of Service, title and risk of loss to purchased items will transfer from the seller to buyer upon the completed processing and receipt of your payment by EBTH made in accordance with these Terms of Service. In the event that a buyer takes possession of any purchased item before the completed processing and receipt of your payment by EBTH, the risk of loss will transfer to the buyer upon its taking possession of the item, but seller will retain title to the item. EBTH is not responsible for insuring items while in EBTH’s possession. Sellers (other than EBTH) agree to maintain appropriate insurance on items and ensure its insurance covers the items so long as seller retains risk of loss as provided in this Section. Further, upon the transfer of risk of loss from seller to buyer as provided in this Section, buyer agrees to maintain adequate insurance coverage on such items until such items are in buyer’s possession. With respect EBTH-Owned Auction Items, EBTH will be deemed the “seller” for purposes of this Section 6(e).
f) Failure to Pickup. In the event that you fail to pickup or designate shipping for items won at auction in accordance with these Terms of Service, you hereby authorize EBTH to select a third party carrier on your behalf, to ship the item to your address of record, and to charge your credit card the purchase amount of the item plus any taxes, shipping costs, insurance costs, and storage and handling fees. It is each buyer’s responsibility to keep their address of record up to date and each User hereby expressly agrees that the shipping of any items in the manner set forth in the previous sentence satisfies all obligations of EBTH and sellers with respect to sold items. Alternatively, if you fail to pickup any items at the specified time or designate a shipping or fulfillment option within seven (7) days of the close of bidding, EBTH may, in its sole discretion and upon payment failure OR notice sent to buyer through the Services or otherwise to buyer’s email address on file with EBTH, cause buyer to be deemed to have abandoned and forfeited the items (an “Abandonment”). In the event of an Abandonment, Users agree that title and risk of loss to such items will automatically transfer to EBTH without any further action by Users or EBTH. Each User hereby appoints EBTH as its attorney-in-fact to execute any documents required to effect the transfer of title to EBTH in the event of an Abandonment. Buyer expressly agrees that failure to receive any item in the event of Abandonment does not relieve buyer of its obligation to pay any fees or expenses, and such buyer shall be responsible to pay to EBTH a restocking fee of $40.00 per lot plus all associated taxes, shipping costs, insurance costs, storage and handling fees, moving or disposal charges, and collections and legal fees incurred prior to and as a result of such Abandonment. Subject to the terms of the Auction Agreement, EBTH may, in its absolute and sole discretion, resell the items, dispose of or donate the items to a charity of EBTH’s choosing.
g) Storage Fees. In addition to all other fees described in these Terms of Service, in the event you fail to pickup any items at the specified time or designate a shipping or fulfillment option within seven (7) days of the close of bidding, you agree to pay EBTH a storage fee per the table below.
|Dimensions||Max Side Length||Weekly Charge|
|≤ 6″ × 6″ × 6″||≤ 18"||$5|
|≤ 12″ × 12″ × 12″||≤ 24"||$10|
|≤ 18″ × 18″ × 18″||≤ 36"||$20|
|≤ 24″ × 24″ × 24″||≤ 48"||$40|
|≤ 48″ × 48″ × 48″||≤ 96"||$80|
|Larger than 48″ × 48″ × 48″||>120"||$120|
EBTH may accept returns in cases of material errors in the item description made by EBTH or by seller on the Services, as determined by EBTH in its absolute and sole discretion. Any return claims submitted for review by Users must be received within thirty (30) days of the earliest of delivery or your taking possession of the item by contacting EBTH at the link here. Notwithstanding any language to the contrary, EBTH in its sole and absolute discretion may accept or reject a return under this policy. Buyer will be responsible for all costs associated with a proposed or accepted return, including, but not limited to, any return shipping costs.
Any costs related to return of items to a consignor will be the sole responsibility of the consignor. If EBTH agrees to facilitate shipping back to a consignor for any items not to be sold, this will be at the consignor’s expense and the insured value of each package as well as EBTH’s financial liability will be capped at $100 per package. Consignors desiring additional insurance coverage for returned items are encouraged to make arrangements for return shipping on their own and work with their EBTH representative to facilitate these arrangements.
a) Auction Items Not Insured. Auction Items, excluding EBTH-Owned Auction Items, are not insured by EBTH against loss or damage due to fire, theft, vandalism, rain, water, criminal or negligent acts of others, or any other cause. EBTH recommends that each User carry or obtain insurance to protect the items from any loss or damage so long as risk of loss remains with such User. Users shall look to their own insurance for recovery of any loss resulting from casualty, and hereby releases and waives any claims against EBTH. This release and waiver remains in effect if any User fails to obtain insurance, and in that case such User will bear the full risk of its own loss.
c) Embargoed Goods and Prohibited Countries Policy. Various US agencies have restrictions in place that regulate or ban all trade with certain countries and EBTH does not allow the sale of embargoed or restricted items from these countries. Under U.S. law, buying or selling certain items made in restricted countries may not be lawful, depending on the nature of the item, when it was manufactured, and when it left that specific country. Federal agencies also ban or regulate trade between people in the U.S. and certain organizations, businesses, and individuals. EBTH does not allow those organizations, businesses, or individuals to use our website. Under U.S. law, buying or selling certain items made in restricted countries may not be lawful, depending on the nature of the item, when it was manufactured, and when it left that specific country. When submitting items for sale on EBTH, you attest that the items that you are submitting do not violate any U.S. laws, policies or restrictions on items from countries that have restrictions and regulations in place with the US government. When purchasing items on EBTH, you attest that you do not reside in any banned country and that you are not, and are not affiliated with, any such banned organizations, businesses, or individuals.
a) ALL AUCTION ITEMS AND AUCTION ITEM DESCRIPTIONS PURCHASED OR PROVIDED THROUGH THE SERVICES ARE PROVIDED “AS IS” AND “WHERE IS” AND EBTH AND SELLERS MAKE NO, AND EXPRESSLY DISCLAIM ANY AND ALL, GUARANTEES, WARRANTIES AND REPRESENTATIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, TO USERS WITH RESPECT TO ANY AUCTION ITEM OR THE ACCURACY OR COMPLETENESS OF ANY AUCTION ITEM DESCRIPTION OR THE ABILITY OF A SELLER OR EBTH TO SELL AN ITEM. EBTH AND SELLERS EXPRESSLY DISCLAIM THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, AND EBTH EXPRESSLY DISCLAIMS ANY WARRANTY OF TITLE WITH RESPECT TO EBTH. FURTHER, FOR THE AVOIDANCE OF DOUBT, EBTH AND SELLERS MAKE NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO AN AUCTION ITEM’S QUALITY, SAFETY, LEGALITY, RARITY, IMPORTANCE, HISTORICAL RELEVANCE, OR CONDITION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM EBTH, A SELLER, A THIRD PARTY OR THROUGH THE SERVICE WILL CREATE ANY WARRANTY NOT EXPRESSLY STATED HEREIN.
YOUR USE OF THE SERVICES, ITS CONTENT, AND ANY ITEMS OBTAINED THROUGH THE SERVICES IS AT YOUR OWN RISK. THE SERVICES, ITS CONTENT, AND ANY DOWNLOADS OR ITEMS OBTAINED THROUGH THE SERVICES ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT ANY WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED. NEITHER EBTH NOR ANY PERSON ASSOCIATED WITH EBTH MAKES ANY WARRANTY OR REPRESENTATION WITH RESPECT TO THE COMPLETENESS, SECURITY, RELIABILITY, QUALITY, ACCURACY, OR AVAILABILITY OF THE SERVICES. WITHOUT LIMITING THE FOREGOING, NEITHER EBTH NOR ANYONE ASSOCIATED WITH EBTH REPRESENTS OR WARRANTS THAT THE SERVICES, ITS CONTENT, OR ANY DOWNLOADS OR ITEMS OBTAINED THROUGH THE SERVICES WILL BE ACCURATE, RELIABLE, ERROR-FREE, OR UNINTERRUPTED, THAT DEFECTS WILL BE CORRECTED, THAT OUR SITE OR THE SERVER THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES WILL OTHERWISE MEET YOUR NEEDS OR EXPECTATIONS.
b) You understand that we cannot and do not guarantee or warrant that files available for downloading from the internet or through the Services will be free of viruses or other destructive code. You are responsible for implementing sufficient procedures and checkpoints to satisfy your particular requirements for anti-virus protection and accuracy of data input and output, and for maintaining a means external to our site for any reconstruction of any lost data. TO THE FULLEST EXTENT PROVIDED BY LAW, WE WILL NOT BE LIABLE FOR ANY LOSS OR DAMAGE CAUSED BY A DISTRIBUTED DENIAL-OF-SERVICE ATTACK, VIRUSES, OR OTHER TECHNOLOGICALLY HARMFUL MATERIAL THAT MAY INFECT YOUR COMPUTER EQUIPMENT, COMPUTER PROGRAMS, DATA, OR OTHER PROPRIETARY MATERIAL DUE TO YOUR USE OF THE SERVICES OR ITEMS OBTAINED THROUGH THE SERVICES OR TO YOUR DOWNLOADING OF ANY MATERIAL POSTED ON THE SERVICES, OR ON ANY WEBSITE LINKED TO THE SERVICES. TO THE FULLEST EXTENT PROVIDED BY LAW, EBTH 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.
c) SOME STATES DO NOT ALLOW EXCLUSION OF IMPLIED WARRANTIES, SO THESE EXCLUSIONS MAY NOT APPLY IN INDIVIDUAL CASES. YOU MAY HAVE ADDITIONAL RIGHTS THAT VARY FROM STATE TO STATE. TO THE EXTENT THAT WE MAY NOT, AS A MATTER OF APPLICABLE LAW, DISCLAIM ANY IMPLIED WARRANTY, THE SCOPE AND DURATION OF SUCH WARRANTY WILL BE THE MINIMUM PERMITTED UNDER SUCH APPLICABLE LAW.
By providing User-generated content and material provided to us in connection with the Services (the “User Content”) to EBTH directly or indirectly through the Services, you hereby grant to EBTH and its affiliates a perpetual, irrevocable, royalty-free, worldwide, sublicensable, fully paid up, royalty-free, and transferable right and license to use, copy, publish, translate, modify, reformat, create derivative works from, distribute, reproduce, sell, publicly display and perform, transmit, publish, broadcast, host. archive, store, cache, use or otherwise exploit all or any portion of the User Content, as well as your name, persona and likeness included in any User Content and your social media account handle, username, real name, profile picture and/or any other information associated with the User Content, in any commercial or noncommercial manner whatsoever, in whole or in part, in any and all distribution channels, forms, media or technology, whether now known or hereafter developed, including but not limited to in stores, printed marketing materials, emails, web pages, social media accounts and for any other marketing, advertising, public relations, sales or promotional purposes with or without attribution and without further notice to you. Neither you, nor any other person or entity will have the right to (x) receive any royalty or consideration of any kind for the use of the User Content pursuant to these Terms of Service or (y) inspect or approve the editorial copy or other material that may be used in connection with the User Content.
EBTH retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any User Content for any reason or no reason. Subject to the licenses granted in these Terms of Service, you retain ownership of any copyright and other rights you may have in the User Content. To the fullest extent permitted under applicable law, you waive your right to enforce against EBTH, our assignees, our sublicensees, and their assignees your Intellectual Property Rights in the User Content in connection with our, those assignees’, and those sublicensees’ use of that User Content in connection with our provision, expansion, and promotion of the Services. By submitting User Content, you represent and warrant that (i) you own or control any and all rights in and to the User Content, and you have all rights required to provide the User Content to EBTH and grant the licenses granted herein to EBTH , and if you are not the holder of such rights, the holder of such rights has completely and effectively waived all such rights and irrevocably granted you the right to grant the rights and licenses to EBTH herein without the need for payment to you or any other person or entity; (ii) you have obtained permission from all individuals that appear in the User Content to use, and grant others the right to use, their name, image, voice and/or likeness without the need for payment to you or any other person or entity; (iii) you are 18 years of age or older; and (iv) the User Content is accurate and complete and does not (a) contain false or misleading information, (b) infringe on or violate or misappropriate the intellectual property, privacy, publicity, statutory, contractual or other rights of any third party, © contain any libelous, defamatory, obscene, offensive, threatening or otherwise harassing or hateful content, (d) contain any addresses, email addresses phone numbers or any contact information or (e) contain computer viruses, security vulnerabilities, worms or other harmful or malicious code.
Upon request by EBTH, you will furnish EBTH any documentation, substantiation or releases necessary to verify your compliance with these Terms of Service. You are solely responsible for the User Content. EBTH does not guarantee the truthfulness, accuracy or reliability of any User Content or endorse any opinions expressed by any User or anyone else. By submitting the User Content you fully and unconditionally release and forever discharge EBTH and its officers, directors, employees and agents from any and all claims, demands and damages (actual or consequential, direct or indirect), whether now known or unknown, of every kind and nature relating to, arising out of or in any way connected: (i) disputes between you and another User or one or more users or any other person or entity, or (ii) the use by EBTH or you of the User Content, including, without limitation, any and all claims that use of the User Content pursuant to these Terms of Service violates any of your intellectual property rights, copyrights, rights of publicity or privacy, “moral rights,” or rights of attribution and integrity. You acknowledge and agree that EBTH has no control over, and shall have no liability for any damages resulting from, the use (including, without limitation, re-publication) or misuse by you or any third party of any User Content. EBTH acts as a passive conduit for User Content and has no obligation to modify, screen or monitor User Content. If EBTH becomes aware of any User Content that allegedly may not conform to these Terms of Service, EBTH may investigate the allegation and determine in its sole discretion whether to take action in accordance with these Terms of Service. EBTH has no liability or responsibility to Users for performance or nonperformance of such activities. EBTH has the absolute right to modify, obfuscate, remove and/or delete, without notice, any User Content that it deems objectionable. You consent to such modification, obfuscation, removal and/or deletion and waive any claim against EBTH for such modification, obfuscation, removal and/or deletion. EBTH is not responsible or liable for any loss of or failure to store User Content or other content, information or materials you transmit through the Services. You should take measures to preserve copies of any data, material, content or information you post on the Services or any other sites or platforms.
Without limiting the foregoing, we have the right to cooperate fully with any law enforcement authorities or court order requesting or directing us to disclose the identity or other information of anyone posting any materials on or through the Services. YOU WAIVE AND HOLD HARMLESS EBTH AND ITS AFFILIATES, LICENSEES, AND SERVICE PROVIDERS FROM ANY CLAIMS RESULTING FROM ANY ACTION TAKEN BY ANY OF THE FOREGOING PARTIES DURING, OR TAKEN AS A CONSEQUENCE OF, INVESTIGATIONS BY EITHER SUCH PARTIES OR LAW ENFORCEMENT AUTHORITIES.
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”). If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the Service, please notify EBTH’s copyright agent as set forth in the DMCA.
The above information must be submitted to the following DMCA Agent:
Attn: DMCA Notice, Everything But The House
Address: 6000 Creek Road
Blue Ash, OH 45242
Email: [email protected]
Under federal law, if you knowingly misrepresent that online material is infringing, you may be subject to criminal prosecution for perjury and civil penalties, including monetary damages, court costs, and attorneys’ fees. Please note that this procedure is exclusively for notifying EBTH and its affiliates that our copyrighted material has been infringed. The preceding requirements are intended to comply with EBTH’s rights and obligations under the DMCA, including 17 U.S.C. §512©, but do not constitute legal advice. It may be advisable to contact an attorney regarding your rights and obligations under the DMCA and other applicable laws. In accordance with the DMCA and other applicable law, EBTH has adopted a policy of terminating, in appropriate circumstances, Users who are deemed to be repeat infringers. EBTH may also at its sole discretion limit access to the Services and/or terminate the accounts of any Users who infringe any intellectual property rights of others, whether or not there is any repeat infringement.
You agree to indemnify and hold harmless EBTH and its affiliates and their respective employees, contractors, agents, officers, licensors, managers and directors, from and against any and all claims, damages, suits, proceedings, investigations, actions, demands, obligations, losses, damages, settlement amounts, fines, penalties, costs, expenses and any and all other liabilities (including but not limited to reasonable attorneys’ fees and court costs) arising from or related to: (i) your use of and access to the Services, including any data or content transmitted or received by you; (ii) your violation of any term of these Terms of Service or any Additional Agreement, including without limitation your breach of any of the representations and warranties set forth herein; (iii) your violation of any third-party right, including without limitation any right of privacy, publicity or intellectual property; (iv) your violation of any applicable law, rule, regulation or guideline; (v) your User Content or any content that is submitted via your account, including, without limitation, any misleading, false, or inaccurate information you submit or otherwise provide; (vi) your acts, omissions, negligence or willful misconduct, including, without limitation, any shill bidding; (vii) any other party’s access and use of the Service with your unique username, password or security code and any failure by you to properly secure your password and security codes and (viii) your items and/or any Auction Items, including without limitation any product liability claims, warranty or quality disputes, claims for damage to person or property, including death, or otherwise arising out of or relating in any way to the items purchased or sold by you through the Services, including, but not limited to, in the case of Auction Items, the shipment from, and/or handling and/or moving of such items on, the EBTH premises, except to the extent such losses are caused by the gross negligence or willful misconduct of EBTH.
a) General Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH THE SERVICES, REGARDLESS OF (A) WHETHER SUCH DAMAGES WERE FORESEEABLE, (B) WHETHER OR NOT WE WERE ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND © THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO, AND SHALL NOT EXCEED, THE GREATER OF (A) THE TOTAL FEES WHICH YOU PAID TO US IN THE 3 MONTHS PRIOR TO THE ACTION GIVING RISE TO THE LIABILITY AND (B) $100.
The limitation of liability set forth above shall not apply to (A) liability resulting from our gross negligence or willful misconduct and (B) death or bodily injury resulting from our acts or omissions.
b) Auction Items Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING ANY OTHER PROVISION OF THESE TERMS OF SERVICE, EBTH SHALL NOT BE LIABLE TO ANY USER FOR ANY LOSS OR DAMAGE TO ITEMS OR ANY OTHER ITEMS TENDERED, STORED OR HANDLED OR FOR ANY OTHER PROPERTY OF USER HOWEVER CAUSED UNLESS SUCH LOSS OR DAMAGE DIRECTLY AND PROXIMATELY RESULTS FROM THE GROSS NEGLIGENCE OR WILLFUL MISCONDUCT OF EBTH. IF THE FOREGOING LIMITATIONS ARE NOT ENFORCEABLE FOR ANY REASON, THE USER AGREES THAT EBTH’S MAXIMUM TOTAL AGGREGATE LIABILITY FOR ANY DAMAGE TO ANY ITEM SHALL BE LIMITED TO THE CURRENT MARKET VALUE OF THE ITEM, NOT TO EXCEED $100 PER ITEM.
c) Release. IF YOU HAVE A DISPUTE WITH ONE OR MORE USERS, YOU RELEASE EBTH (AND ITS AFFILIATES AND SUBSIDIARIES, AND ITS AND THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES AND AGENTS) FROM CLAIMS, DEMANDS AND DAMAGES (ACTUAL AND CONSEQUENTIAL) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, ARISING OUT OF OR IN ANY WAY CONNECTED WITH SUCH DISPUTES. IN ENTERING INTO THIS RELEASE YOU EXPRESSLY WAIVE ANY PROTECTIONS (WHETHER STATUTORY OR OTHERWISE) THAT WOULD OTHERWISE LIMIT THE COVERAGE OF THIS RELEASE TO INCLUDE ONLY THOSE CLAIMS WHICH YOU MAY KNOW OR SUSPECT TO EXIST IN YOUR FAVOR AT THE TIME OF AGREEING TO THIS RELEASE.
YOU FURTHER ACKNOWLEDGE AND AGREE THAT YOU ARE FAMILIAR WITH AND DO HEREBY WAIVE THE PROVISIONS OF SECTION 1542 OF THE CALIFORNIA CIVIL CODE (AND SIMILAR PROVISIONS OF OTHER JURISDICTIONS) WHICH PROVIDES AS FOLLOWS: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY 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.”
a) PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND EBTH HAVE AGAINST EACH OTHER ARE RESOLVED. YOU ARE AGREEING TO GIVE UP ANY RIGHTS TO LITIGATE CLAIMS IN A COURT OR BEFORE A JURY, OR TO PARTICIPATE IN A CLASS ACTION OR REPRESENTATIVE ACTION WITH RESPECT TO A CLAIM. OTHER RIGHTS THAT YOU WOULD HAVE IF YOU WENT TO COURT MAY ALSO BE UNAVAILABLE OR MAY BE LIMITED IN ARBITRATION.
b) FOR ALL MATTERS, DISPUTES, OR CLAIMS BETWEEN YOU AND EBTH (INCLUDING ANY CLAIM OR DISPUTE BETWEEN YOU AND A THIRD-PARTY AGENT OF EBTH) THAT RELATES IN ANY WAY TO OR ARISES OUT OF THIS OR PREVIOUS VERSIONS OF THESE TERMS OF SERVICE, YOUR USE OF OR ACCESS TO THE SERVICES, YOUR RELATIONSHIP WITH EBTH, THE ACTIONS OF EBTH OR ITS AGENTS, OR ANY PRODUCTS OR SERVICES SOLD OR PURCHASED THROUGH THE SERVICES, WHETHER BASED IN CONTRACT, TORT, STATUTE, FRAUD, MISREPRESENTATION OR ANY OTHER LEGAL THEORY, INCLUDING ANY DISPUTE ABOUT THE INTERPRETATION OR APPLICATION OF THIS DISPUTE RESOLUTION PROVISION OR THE ENFORCEABILITY, REVOCABILITY OR VALIDITY OF THIS ARBITRATION PROVISION OR ANY PORTION OF THE ARBITRATION PROVISION (“DISPUTES”), WILL BE RESOLVED BY THE PROCESSES AND PROCEDURES DESCRIBED IN THIS SECTION, FIRST AMICABLY AND THEN THROUGH FINAL AND BINDING ARBITRATION BEFORE A NEUTRAL ARBITRATOR INSTEAD OF IN A COURT BY A JUDGE OR JURY. EACH PARTY WAIVES ITS RIGHTS TO A JURY TRIAL AND TO HAVE ANY DISPUTE ARISING OUT OF OR RELATED TO THESE TERMS OF SERVICE OR THE SERVICE RESOLVED IN COURT.
c) Expiration of Claims. You agree that any Dispute, claim or cause of action you may have with respect to EBTH or the Services must be commenced within one hundred eighty (180) days after the date the Dispute arose.
d) Governing Law. You agree that: (i) the Services and these Terms of Service shall be deemed solely based in Ohio; and (ii) the Services shall be deemed passive that do not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Ohio. These Terms of Service shall be governed by the internal substantive laws of the State of Ohio, without giving effect to any choice or conflict of law provision or rule (whether of the State of Ohio or any other jurisdiction) that would cause the application of the laws of any jurisdiction other than those of the State of Ohio. The parties acknowledge that these Terms of Service evidence a transaction involving interstate commerce. Notwithstanding the preceding sentences with respect to the substantive law, any arbitration conducted pursuant to the terms of these Terms of Service shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1-16). The application of the United Nations Convention on Contracts for the International Sale of Goods is expressly excluded.
e) Amicable Resolution and Agreement to Arbitrate. READ THIS SECTION CAREFULLY BECAUSE IT REQUIRES THE PARTIES TO ARBITRATE THEIR DISPUTES AND LIMITS THE MANNER IN WHICH YOU CAN SEEK RELIEF FROM EBTH. For any Dispute with EBTH, you agree to first contact us at Everything But The House, Attention: Legal, 6000 Creek Road, Blue Ash, OH 45242 and attempt to resolve the Dispute with us informally. In the unlikely event that EBTH has not been able to resolve a Dispute it has with you after sixty (60) days, you and EBTH agree to resolve any Dispute, claim, or controversy (excluding any claims for injunctive or other equitable relief as provided below) by binding arbitration to be administered by the American Arbitration Association in Hamilton County, Ohio (unless the parties both expressly agree on another location) in accordance with the American Arbitration Association’s Commercial Arbitration Rules. Each of the parties to this Agreement hereby agrees and consents to such venue and waives any objection thereto. The arbitrability of any such dispute, claim or controversy shall likewise be determined in such arbitration. Such arbitration proceeding shall be conducted in as expedited a manner as is then permitted by the commercial arbitration rules (formal or informal) of the American Arbitration Association. Both the foregoing agreement of the parties to this agreement to arbitrate any and all such disputes, claims and controversies and the results, determinations, findings, judgments and/or awards rendered through any such arbitration shall be final and binding on the parties hereto and may be specifically enforced by legal proceedings. Notwithstanding any provision of this Agreement relating to which state laws govern this Agreement, all issues relating to arbitrability or the enforcement of the agreement to arbitrate contained herein shall be governed by the Federal Arbitration Act (9 U.S.C. §§ 1 et seq.) and the federal common law of arbitration. Each party will be responsible for paying any filing, administrative and arbitrator fees pursuant to and in accordance with AAA rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Nothing in this paragraph shall be deemed as preventing EBTH from seeking injunctive or other equitable relief from the courts as necessary to prevent the actual or threatened infringement, misappropriation, or violation of our data security, intellectual property rights or other proprietary rights. If an arbitrator or court decides that any part of this agreement to arbitrate is invalid or unenforceable, the other parts of this Section 14 shall still apply. If the value of the relief sought is $10,000 or less, you or EBTH may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and EBTH subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or EBTH may attend by telephone, unless the arbitrator requires otherwise.
You may elect to pursue your claim in small-claims court rather than arbitration if the amount in controversy is less than $2,000 and you provide us with written notice of your intention do so within 60 days of the event giving rise to the claim. The arbitration or small-claims court proceeding will be limited solely to your individual dispute or controversy.
f) Class Action/Jury Trial Waiver. WITH RESPECT TO ALL PERSONS AND ENTITIES, REGARDLESS OF WHETHER THEY HAVE OBTAINED OR USED THE SERVICE FOR PERSONAL, COMMERCIAL OR OTHER PURPOSES, ALL CLAIMS MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITIES, AND NOT AS A PLAINTIFFS OR CLASS MEMBERS IN ANY PURPORTED CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE PROCEEDING. THIS WAIVER APPLIES TO CLASS ARBITRATION, AND, UNLESS WE AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS. YOU AGREE THAT, BY AGREEING TO THESE EBTH TERMS OF SERVICE YOU AND EBTH ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS ACTION, COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION, OR OTHER REPRESENTATIVE PROCEEDING OF ANY KIND. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM. ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. IF A COURT DECIDES THAT APPLICABLE LAW PRECLUDES ENFORCEMENT OF ANY OF THIS PARAGRAPH’S LIMITATIONS AS TO A PARTICULAR CLAIM FOR RELIEF, THEN THAT CLAIM (AND ONLY THAT CLAIM) MUST BE SEVERED FROM THE ARBITRATION AND MAY BE BROUGHT IN COURT, SUBJECT TO YOUR AND EBTH’S RIGHT TO APPEAL THE COURT’S DECISION. ALL OTHER CLAIMS WILL BE ARBITRATED.
g) Jurisdiction. Unless you and we agree otherwise, in the event that the agreement to arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of a decision by the arbitrator or a court order, or for any actions for which we retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights as set forth in the provisions above, including any provisional relief required to prevent irreparable harm, you agree that any claim or dispute that has arisen or may arise between you and EBTH must be resolved exclusively by a state or federal court located in Hamilton County, Ohio. You and EBTH irrevocable agree to submit to the exclusive personal jurisdiction of the courts located within Hamilton County, Ohio for the purpose of litigating all such claims or disputes. You further agree that Hamilton County, Ohio is the proper forum for any appeals of an arbitration award or for trial court proceedings in the event that the arbitration provision below is found to be unenforceable.
a) General. If you’re accessing the Services from a mobile device using an EBTH Mobile Application (the “Application”), your use of the Application confirms your agreement to these Terms of Service. EBTH grants you the right to use the Application only for your personal use. You must comply with all applicable laws and third party terms of agreement when using the Application (e.g. your wireless data service agreement). The Application may not contain the same functionality available on the www.ebth.com site. EBTH owns, or is the licensee to, all right, title, and interest in and to its Applications, including all rights under patent, copyright, trade secret, trademark, or unfair competition law, and any and all other proprietary rights, including all applications, renewals, extensions, and restorations thereof. You agree that you will not, directly or indirectly, modify, adapt, translate, prepare derivative works from, decompile, reverse-engineer, disassemble, or otherwise attempt to derive source code from any Application and you will not remove, obscure, or alter EBTH’s copyright notice, trademarks or other proprietary rights notices affixed to, contained within, or accessed in conjunction with or by any Application. You acknowledge and agree that Applications and their underlying technology may not be downloaded to or exported or re-exported: (a) into (or to a resident or national of) Burma (Myanmar), Cuba, Iraq, Iran, Libya, North Korea, Sudan, Syria, or any other country subject to United States embargo; (b) to anyone on the US Treasury Department’s list of Specially Designated Nationals or on the US Commerce Department’s Denied Party or Entity List; and © to any prohibited country, person, end-user, or entity specified by US Export Laws. When using the Application, you are responsible for complying with trade regulations and both foreign and domestic laws (e.g., you are not located in a country that is subject to a US Government embargo, or that has been designated by the US Government as a “terrorist supporting” country, and you are not listed on any US Government list of prohibited or restricted parties).
b) iOS – Apple. Apple is not responsible for the Application and the content thereof. You may only use the Application an iOS product that you own or control and as permitted by the Usage Rules set forth in the App Store Terms of Service. Apple has no obligation whatsoever to furnish any maintenance and support services with respect to the Application. Apple is not responsible for the investigation, defense, settlement, and discharge of any third party intellectual property infringement claim. Apple is not responsible for addressing any claims by you or any third party relating to the Application or your possession and/or use of the Application, including but not limited to: (a) product liability claims; (b) any claim that the Application fails to conform to any applicable legal or regulatory requirement; and © claims arising under consumer protection or similar legislation. Apple and Apple’s subsidiaries are third party beneficiaries of these Mobile Device Terms, and will have the right (and will be deemed to have accepted the right) to enforce them against you.
c) Updates. EBTH may from time to time in its sole discretion develop and provide Application updates, which may include upgrades, bug fixes, patches, other error corrections, and/or new features (collectively, including related documentation, “Updates”). Updates may also modify or delete in their entirety certain features and functionality. You agree that Company has no obligation to provide any Updates or to continue to provide or enable any particular features or functionality. Based on your mobile device settings, when your mobile device is connected to the internet either: (i) the Application will automatically download and install all available Updates; or (ii) you may receive notice of or be prompted to download and install available Updates. You shall promptly download and install all Updates and acknowledge and agree that the Application or portions thereof may not properly operate should you fail to do so. You further agree that all Updates will be deemed part of the Application and be subject to all terms and conditions of these Terms of Service.
a) Changes to the Terms of Service. EBTH reserves the right, at its sole discretion, to change, modify, add or remove any portion of the Terms of Service, in whole or in part, at any time, and we will post the revised version on [www.ebth.com/terms]. Changes to the Terms of Service will be effective when posted. Your continued use of the the Services after any changes to the Terms of Service are posted will be considered acceptance of those changes. Further, the policies applicable to our Services may be changed from time to time and changes take effect when we post the revised policies.
b) California Residents. If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.
d) Notices to Us. To give us notice under these Terms of Service, you must contact us as follows: Everything But The House Attn: Legal, 6000 Creek Road, Blue Ash, OH 45242. We may update the contact information for notices to us by posting a notice on the Services or amending these Terms of Service. Notices will be effective when received by EBTH.
e) Independent Contractors. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms of Service.
f) No Waiver. Any requested waiver of any provision of the Terms of Service by EBTH must be made in writing and signed by an authorized representative of EBTH specifically referencing the Terms of Service and the provision to be waived. The failure by us to enforce any right or provision of these Terms of Service will not constitute a waiver of future enforcement of that right or provision.
g) Cumulative Remedies. All rights and remedies provided to EBTH are cumulative and not exclusive, and the exercise by EBTH of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise.
h) Severability. If any term or provision of these Terms of Service is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these Terms of Service or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal or unenforceable, the court may modify these Terms of Service to effect the original intent of the parties as closely as possible in order that the transactions contemplated hereby be consummated as originally contemplated to the greatest extent possible.
i) Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms of Service, for any failure or delay in our performance hereunder when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), shortages, delays, or other restrictions in supply chains or workforce/labor shortages, pandemic (including the COVID-19 pandemic), quarantine, breakdown of communication facilities, breakdown of web host, breakdown of internet service provider, natural catastrophes, governmental acts or omissions, changes in laws or regulations, or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage. For the avoidance of doubt, EBTH is not liable or responsible for any interruptions or outages of the Services due to technical issues outside of EBTH’s reasonable control, including but not limiting to web hosts or service providers, that may lead to the interruption or interference with your ability to sell, bid, or buy items, or otherwise use the Services in any capacity.
j) Survival. The following Sections survive any termination of these Terms of Service: Payment, Fulfillment & Certain Fees, Disclaimer of Warranties, User Content, Indemnity, Limitation of Liability; Release, Legal Disputes, Mobile Device Terms and Miscellaneous.
k) Assignment. You will not assign any of your rights or delegate any of your obligations under these Terms of Service without our prior written consent. Any purported assignment or delegation in violation of this paragraph is null and void. No assignment or delegation relieves you of any of your obligations under these Terms of Service. EBTH may assign or transfer these Terms of Service and/or its rights and/or obligations hereunder.
m) Trademarks. The names “Everything But The House” and “EBTH” and other EBTH marks, logos, designs, and phrases that we use in connection with the Services are trademarks, service marks, or trade dress of EBTH in the U.S. and other countries. They may not be used without the express written prior permission of EBTH.
Last Updated: October 2, 2023