Terms & Conditions
Last modified: July 13, 2018
EBTH.com and its related sites, services, applications, mobile applications, domain names, and tools (collectively, the “Site”) are owned and operated by EBTH Inc. and its subsidiaries dba Everything But The House (collectively, “EBTH ,” “us” or “we”). These terms and conditions explains the terms by which you may use the Site and our online and/or mobile services and software provided or in connection with the services (collectively, the " Service"), including by (i) submitting bids as a " Buyer" for the purchase of items posted for auction by EBTH and (ii) submitting an item description and any other related information as a “Seller” in connection with the listing of an item for sale on the Site. These terms and conditions (the “EBTH Terms and Conditions”) apply to all Buyers, Sellers, visitors, users and others who register for or otherwise access or use the Service (collectively, “Users”). Buyers, Sellers, and Users may also be referred to herein as “you”.
These EBTH Terms and Conditions are effective upon acceptance by new Users and from the Last Updated date first set forth above for existing Users. The previous EBTH Terms and Conditions was effective prior to the Last Updated date first set forth above.
Please be advised that this these EBTH Terms and Conditions contain provisions that govern how claims you and we have against each other are resolved (see the Disclaimer provisions and the Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration (see Agreement to Arbitrate provision below) pursuant to which (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.
1. Eligibility to Use the Site and the Services
While using the Site and/or the Services, you agree that you will not:
● Use the Site or Services if you are not able to form a legally binding contract or if you are under the age of eighteen (18) years old;
● Use the Site or the Services if you have been previously suspended or removed from the Site or Services or engaged in any activity that could result in suspension or removal from the Site or Services;
● Directly or indirectly manipulate the price of any item or interfere with other Seller’s offerings;
● Circumvent or manipulate our fee structure, the billing process, any fees owed to EBTH, or any technical measures we use to provide the Site or Services;
● Post, list or upload content or items in inappropriate categories or areas on the Site;
● Fail to deliver payment for items purchased by you and associated fees or shipping costs;
● Fail to deliver items sold by you;
● Post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
● Transfer or share your account and bidder number with a third party without our consent;
● Create accounts that misrepresent your identity or use the personal information of others;
● Use any robot, spider, scraper, data mining tools, data gathering and extraction tools automated means to access or use the Site or Services;
● Access data not intended for you or log into a server or account which you are not authorized to access;
● Use the Site or Services in any manner that would interfere with, disrupt or inhibit other users from fully enjoying the Site or Services or that could damage, disable or impair the functionality of the Site or Services or otherwiseinterfere with the working of the Site or Services, or impose an unreasonable or disproportionately large load on our infrastructure;
● Breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
● Conduct fraudulent activities;
● Infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, “Intellectual Property Rights”) that belong to or are licensed to EBTH. Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to EBTH or someone else;
● Infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post content that does not belong to you;
● Harvest or otherwise collect information about Users without their consent; or
● Bid on any items that may be sold only to persons at least twenty-one (21) years old if you are under the age of twenty-one (21) years old.
If we believe you are abusing the Site or the Service in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Site and 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 Site and Services.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Site and/or our Services. Additionally, we reserve the right to refuse or terminate all or part of our Site or Services to anyone for any reason at our discretion.
Overview — EBTH is a listing, information and auction website that brings together Buyers and Sellers. Items may be sold by a Seller through a consignment arrangement with EBTH (a " Consignment Items"). For Consignment Items, EBTH will assist Seller in preparing a listing on the Site.
DISCLAIMER: EBTH is not a broker or dealer and 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. EBTH does not hold or possess title for any item listed for sale on the service.
Item Descriptions – All items are sold “as is-where is” and you are aware that, unless otherwise stated, the items sold on the Site are not new nor in perfect condition, may have patent and/or latent defects, may require touch-up or repairs prior to use, and the available information about these items may be limited.
For Consignment Items, EBTH will not list every flaw associated with each item as these are to be expected. In the case of obvious faults (chips, cracks, significant damage, etc.), if EBTH is aware of a fault, it will endeavor to list the fault within the description. EBTH will provide descriptions based on its assessment of an item. However, Buyers should not assume that our assessment of condition will be the same as your assessment. It is the Buyer’s responsibility to read and review all descriptions and images of an item before bidding, and the Buyer acknowledges that in posting such descriptions, EBTH solely relies on information provided by the Seller.
DISCLAIMER: All items and item descriptions are provided “AS IS” and “WHERE IS” and EBTH and sellers make no, and expressly disclaim any and all, guarantees, warranties and representations, express or implied, to buyers with respect to any item or the accuracy or completeness of any item description or the abilit of a seller to sell an item, and EBTH and Sellers expressly disclaim the implied warranties of merchantability, fitness for a particular purpose title and noninfringement. Further, for the avoidance of doubt, EBTH and Sellers make no warranties, express or implied, with respect to an item’s quality, safety, legality, rarity, importance, historical relevance, or condition.
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.
Sales Format — All bids must be placed through the Site. Absentee bidding 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 Service 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 Site or to amend any content on the Site at any time in its sole discretion. EBTH will not be liable to Buyers, Sellers or any third party if we withdraw an item, amend any content on the Site, or deny you access to the Site or the Services.
Transfer of Title – We do not transfer legal ownership of items from the Seller to the Buyer. Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the Buyer and the Seller, unless the Buyer and the Seller agree otherwise.
3. Bidding and Auction
Buyer’s Contract – Your winning bid placed on the Site represents an irrevocable contract and you are responsible for paying all amounts due to EBTH. If you cannot pay for the items or agree to the shipping terms and costs, please do not bid on the items. For motor vehicles, a bid or offer initiates a non-binding transaction representing a Buyer’s serious expression of interest in buying the Seller’s item and does not create a formal contract between the Buyer and the Seller.
Placing a Bid — You agree and acknowledge that, in exchange for valuable consideration (including but not limited to the rights to use the Site, 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 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.
Minimum and Maximum 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 minimum by entering a higher bid in the “Your Minimum Bid” box. If you enter a higher minimum 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 “Your Maximum Bid” box. If you enter a maximum bid, the system will automatically raise your bid by the specified increments if you are subsequently outbid, up to your designated maximum bid amount (“Maximum Bid”). Maximum Bids are not disclosed. Maximum and/or Minimum Bids do not include any taxes, shipping or handling fees.
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 maximum bid without increasing the current bid, you must use the “Edit Max” function.
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.
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 Site at the close of the auction are both accepted means of acceptance of your bid by the Seller. The bid history reflected on the EBTH system supersedes any e-mail, push or SMS communication in dispute resolutions.
Bidding Instructions — For additional information and a step by step walkthrough of the bidding process, follow this link-
Shill Bidding — You represent and warrant that you will not 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.
Maintenance of Payment Information – In order to place a bid or list an item, you must have valid payment information stored in your profile. 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 plus any fees associated with the sale of the item, including but not limited to taxes, shipping and handling fees and restocking fees, as applicable. You also agree and acknowledge that you will maintain valid credit card information within your user profile so long as you maintain an account with EBTH and that you are authorized to use the designated payment method. 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. If your payment method fails or your account is past due, we may collect amounts owed by charging other payment methods on file with us, and/or retain collection agencies and legal counsel. In addition, you may be subject to late fees and interest in EBTH’s discretion which will not exceed the maximum amount permitted by applicable law.
Payment Forms Accepted – All invoices under five thousand dollars ($5,000) that are shipped must be paid with a credit card and/or valid gift card (if applicable). Purchases over five thousand dollars ($5,000) will require payment via cashier’s check, ACH or wire. Winning bidders with questions of how to make payment should submit a question via our Contact Form located here . If you do not elect a fulfillment method and you do not pick the item up during the scheduled pickup time outlined on the “Sale Details” section or “Item” pages, EBTH reserves the right to charge your payment method on file for the greater of the total purchase price of the item plus any applicable handling and shipping charges or a $25.00 restocking fee, and may ship the item to your address of record. You hereby expressly grant EBTH the right to hold a winning item until confirmation of cleared funds has been received by EBTH.
Sales Tax — All sales are subject to appropriate state sales and use tax laws, including, any state sales tax laws applicable to Seller. 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 .
Failure to Pay — Any items not paid for in accordance with the EBTH Terms and Conditions within seven (7) days of the sale closing (or upon a later applicable payment due date as may be provided herein) will be forfeited by you and, as to Consignment Items, EBTH may, in its sole and absolute discretion, resell or dispose of the items as well as donate the items to a charity of EBTH’s choosing. EBTH reserves the right to charge any payment option you have on file and/or to report your account to collections for the combined total of the original invoice amount and any moving or disposal charges and you will be responsible for any charges incurred by EBTH in collecting your payment.
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 “I’ve Won” list. By selecting the invoice and clicking “Checkout” you will be able to designate your final fulfillment method.
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).
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 Consigned 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.
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.
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 ten dollars ($10.00) per lot. You agree that EBTH may charge a higher handling fee, in its reasonable discretion, for certain items which are difficult to transport.
Title and Risk of Loss — Subject to these EBTH Terms and Conditions, 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. In the event that Buyer take possession of any purchased item before the completed processing and receipt of your payment by EBTH, the risk of loss will transfer to you upon your taking possession. EBTH is not responsible for insuring items while in EBTH’s possession. Seller agrees to maintain appropriate insurance on items and ensure its insurance covers the items while in EBTH’s possession. Further, upon the transfer of risk of loss from Seller to Buyer, Buyer agrees to maintain adequate insurance coverage on such items while in EBTH’s possession.
Failure to Pickup – In the event that buyer fails to pickup or designate shipping for the items purchased by buyer in accordance with the EBTH Terms and Conditions, you hereby authorize EBTH to charge your credit card the greater of the purchase amount of the item plus any taxes, shipping costs and handling fees or a $25.00 restocking free. When pick-up is selected by buyer or is the only option, if buyer fails to pickup any items at the specified time or designate a shipping or fulfillment option within seven (7) days of the close of bidding, buyer will be considered to have abandoned and forfeited the items. Buyer agrees that title to abandoned items with automatically transfer to EBTH without any further action by buyer or EBTH. Buyer hereby appoints EBTH as its attorney-in-fact to execute any documents required to effect the transfer of title from buyer to EBTH. Buyer expressly agrees that failure to receive any item in the event of abandonment does not relieve buyer of its obligation to pay for the item or any other fees. At a minimum, buyer will be charged the amount of its bid to satisfy payment obligations to the seller. EBTH may, in its absolute and sole discretion, resell the items, dispose of or donate the items to a charity of EBTH’s choosing. EBTH reserves the right to charge buyer’s credit card on file for any moving, restocking or disposal charges and will not refund payment for the items.
Liquidated Damages — You acknowledge and agree that the remedies afforded to EBTH in the “Failure to Pay” and “Failure to Pickup” paragraphs of these EBTH Terms and Conditions (the “Liquidated Damages”) constitute compensation and not a penalty. The parties acknowledge and agree that, due to the nature of EBTH’s Services and online auction sales generally, the harm caused by your breach as contemplated in the aforementioned paragraphs would be impossible or very difficult to accurately estimate, and that the Liquidated Damages are a reasonable estimate of the anticipated or actual harm that might arise from your breach. Your payment of the Liquidated Damages is EBTH’s exclusive remedy for the breaches contemplated in the “Failure to Pay” and “Failure to Pickup” paragraphs of these EBTH Terms and Conditions.
All items on the Site are sold “as is — where is”. EBTH may accept returns in cases of material errors in the item description made by EBTH, or ( by Seller, as determined by EBTH in its absolute and sole discretion. Any return claims submitted for review by User 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 absolute and sole discretion may accept or reject a return under this policy.
7. Seller Additional Obligations
Seller warrants that Seller has full authority to transfer all title and property rights to items it lists for sale as Consignment Items and that there are no reserved or hidden liens, encumbrances, or security interests in the items. At the time any Iiem that is a motor vehicle is listed by Seller with EBTH, Seller will provide EBTH with a legible copy of a “clean” certificate of title with respect to each such motor vehicle.
Seller’s 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 Seller carry or obtain insurance to protect the items from any loss or damage. Seller will look to its own insurance for recovery of any loss resulting from casualty and releases and waives any claims against EBTH. This release and waiver remains in effect if Seller fails to obtain insurance, and in that case Seller will bear the full risk of its own loss.
8. Seller Content
By providing Seller-generated content and material provided to us in connection with the Services (the “Seller Content”) to EBTH directly or indirectly through the Site or the Service, 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 Seller Content, as well as your name, persona and likeness included in any Seller Content and your social media account handle, username, real name, profile picture and/or any other information associated with the Seller 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 (i) receive any royalty or consideration of any kind for the use of the Seller Content pursuant to these EBTH Terms and Conditions or (ii) inspect or approve the editorial copy or other material that may be used in connection with the Seller Content. EBTH retains the right, in its sole discretion and without prior notice, to remove, revise or refuse to post any Seller Content for any reason or no reason. Subject to the licenses granted in these EBTH Terms and Conditions, you retain ownership of any copyright and other rights you may have in the Seller 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 Seller Content in connection with our, those assignees’, and those sublicensees’ use of that Seller Content in connection with our provision, expansion, and promotion of the Services. By submitting Seller Content, you represent and warrant that (i) you own or control any and all rights in and to the Seller Content, and you have all rights required to provide the Seller 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 an) individuals that appear in the Seller 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 Seller 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 EBTH Terms and Conditions. You are solely responsible for the Seller Content. EBTH does not guarantee the truthfulness, accuracy or reliability of any Seller Content or endorse any opinions expressed by any User or anyone else. By submitting the Seller 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 a Buyer or one or more users or any other person or entity, or (ii) the use by EBTH or you of the Seller Content, including, without limitation, any and all claims that use of the Seller Content pursuant to these EBTH Terms and Conditions 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 Seller Content. EBTH acts as a passive conduit for Seller Content and has no obligation to modify, screen or monitor Seller Content. If EBTH becomes aware of any Seller Content that allegedly may not conform to these EBTH Terms and Conditions. EBTH may investigate the allegation and determine in its sole discretion whether to take action in accordance with these EBTH Terms and Conditions. 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 Seller 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 Seller Content or other content, information or materials you transmit through the Service. You should take measures to preserve copies of any data, material, content or information you post on the Service or any other sites or platforms.
9. Copyright Complaints
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, EBTH, Inc.
Address: 697 Wilmer Avenue
Cincinnati, Ohio 45226
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 Service 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 Site and/or the Service, including any data or content transmitted or received by you; (ii) your violation of any term of these EBTH Terms and Conditions. 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 Seller 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, including without limitation any product liability claims, 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 Site and/or the Services, including, but not limited to, in the case of Consigned 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.
11. Disclaimer of Warranties
In addition to the other disclaimers of warranties contained herein, EBTH expressly disclaims all representations and warranties with respect to site and the service, all of which is provided on an “AS IS” and “AS AVAILABLE” basis. Use of the site and the service is at your own risk. To the maximum extent permitted by applicable law, the site and the service is provided without warranties of any kind, whether express or implied, including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, title and non-infringement. 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.
Without limiting the foregoing, EBTH, its subsidiaries, its affiliates, and its licensors do not warrant that the content is accurate, reliable or correct; that the site or the service will meet your requirements; that the site or services will be available at any particular time or location, or will be uninterrupted or secure; that any defects or errors in the site or the service will be corrected; of that the site or the services is free of viruses, security vulnerabilities or other harmful or malicious components.
Any content downloaded or otherwise obtained through the use of the site or the service is downloaded at your own risk and you will be solely responsible for any damage to your computer system or mobile device or loss of data that results from such download or your use of the site or service. EBTH does not warrant, endorse, guarantee or assume responsibility for any product or service advertised or offered by a seller or by a third party through the service or any hyperlinked website or service, and EBTH will not be a party to or in any way monitor any transaction between you and a seller or a third party providers of products or services. EBTH is not responsible for the acts or omissions of carriers in packing or shipping of purchased items, whether or not such carrier is recommended or used by EBTH.
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.
12. Limitation of Liability; Release
Consequential Damages Disclaimer – To the maximum extent permitted by applicable law, EBTH and its affiliates and their respective officers, directors, employees, agents, managers, successors and assigns shall have no liability to you for any consequential, indirect, incidental, exemplary, special or punitive damages or other pecuniary damages, including without limitation lost profits, loss or corruption of data, loss of use, costs to procure substitute goods or services, or other similar damages, whether in contract, tort or otherwise, and whether or not EBTH has been advised of the possibility of such damages or if such damages were reasonably foreseeable.
Direct Damages Limitation – To the maximum extent permitted by applicable law, EBTH’s total aggregate liability to you for all claims 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) $50.
Consigned Items Disclaimer – To the maximum extent permitted by law, EBTH shall not be liable to any Seller for any loss or damage to items or any other items tendered, stored or handled or for any other property of Seller 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 Consignor 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 $50 per item.
Release – If you have a dispute with one or more Users, you release us (and our affiliates and subsidiaries, and our 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.
13. Legal Disputes
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 and EBTH agree that any claim or dispute at law or equity that has arisen, or may arise, 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 theses Terms of Service, your use of or access to the Services and/or the Site, the actions of EBTH or its agents, or any products or services sold or purchased through the Services and/or Site, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
Expiration of Claims — You agree that any claim or cause of action you may have with respect to EBTH or the Service must be commenced within one hundred eighty (180) days after the date the claim or cause of action arose.
Governing Law – You agree that: (i) the Service, Site and these Terms and Conditions shall be deemed solely based in Ohio; and (ii) the Service shall be deemed a passive one that does not give rise to personal jurisdiction over us, either specific or general, in jurisdictions other than Ohio. These Terms and Conditions shall be governed by the internal substantive laws of the State of Ohio, without respect to its conflict of laws principles. The parties acknowledge that these Terms and Conditions 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 and Conditions 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.
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 EBTH Inc., Attention: Legal, 697 Wilmer Avenue, Cincinnati, OH 45226 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, we each agree to resolve any claim, dispute, or controversy (excluding any claims for injunctive or other equitable relief as provided below) arising out of or in connection with or relating to these Terms, or the breach or alleged breach thereof (collectively, " Claims"), by binding arbitration by JAMS, under the Optional Expedited Arbitration Procedures then in effect for JAMS, except as provided herein. JAMS may be contacted at www.jamsadr.com. The arbitration will be conducted in Hamilton County, Ohio, unless you and EBTH agree otherwise. Each party will be responsible for paying any JAMS filing, administrative and arbitrator fees pursuant to and in accordance with JAMS rules, and the award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees and reasonable costs for expert and other witnesses; provided, that if you are an individual, you may apply for and successfully obtain a fee waiver from JAMS; and you may sue in a small claims court of competent jurisdiction without first engaging in arbitration, but this does not absolve you of your commitment to engage in the informal dispute resolution process. 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 Agreement to Arbitrate and Legal Disputes 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.
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(s). 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.
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 Arbitration provision 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.
14. Mobile Device Terms
If you’re accessing the Site or EBTH from a mobile device using an EBTH Mobile Application (the “Application”), your use of the Application confirms your agreement to these EBTH Terms and Conditions. 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 an 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).
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.
Changes to the EBTH Terms and Conditions — EBTH reserves the right, at its sole discretion, to change, modify, add or remove any portion of the EBTH Terms and Conditions, in whole or in part, at any time, and we will post the revised version on the Site. Changes to the EBTH Terms and Conditions will be effective when posted. Your continued use of the Site and/or the Services after any changes to the EBTH Terms and Conditions 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 on the Site.
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.
Notices to You — We may provide any notice to you under these EBTH Terms and Conditions by: (i) sending a message to the e-mail address you provide or (ii) by posting to the Site. Notices sent by e-mail will be effective when we send the e-mail and notices we provide by posting will be effective upon posting. It is your responsibility to keep your e-mail address current and keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption. You hereby (i) consent to receive all communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if they were in writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-savable rights.
Notices to Us — To give us notice under these EBTH Terms and Conditions, you must contact us as follows: EBTH Inc. Attn: Legal, 697 Wilmer Avenue, Cincinnati, OH 45226. We may update the contact information for notices to us by posting a notice on the Site or amending these EBTH Terms and Conditions. Notices will be effective when received by EBTH.
Independent Contractors – No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these EBTH Terms and Conditions.
No Waiver — Any waiver of any provision of the EBTH Terms and Conditions by EBTH must be made in writing and signed by an authorized representative of EBTH specifically referencing the EBTH Terms and Conditions and the provision to be waived.
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.
Severability — If any term or provision of these EBTH Terms and Conditions is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of these EBTH Terms and Conditions 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 EBTH Terms and Conditions 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.
Force Majeure — We will not be liable or responsible to you, nor be deemed to have defaulted or breached these EBTH Terms and Conditions, 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), 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.
Survival – The following Sections survive any termination of these EBTH Terms and Conditions: Payment, Fulfillment, Seller Content, Disclaimers, Disclaimer of Warranties, Indemnity, Limitation of Liability, Legal Disputes, and General.
Assignment — You will not assign any of your rights or delegate any of your obligations under these EBTH Terms and Conditions 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 EBTH Terms and Conditions. EBTH may assign or transfer these EBTH Terms and Conditions and/or its rights and/or obligations hereunder.
Trademarks – The name “EBTH” and other EBTH marks, logos, designs, and phrases that we use in connection with the Site and Service 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: July 13, 2018