Terms
POSHMARK, INC.
TERMS OF SERVICE
Date of Last Revision: July 13, 2016
Poshmark, Inc.
("Poshmark," "we," "us," and/or "our") provides its
services (described below) to you through its mobile applications and
other software made available by Poshmark ("Software") and its website
located at http://www.poshmark.com (the "Site") (collectively, such
services, Software and the Site, collectively, the "Service(s)"),
subject to the following Terms of Service (as amended from time to time,
these "Terms of Service"). We reserve the right, at our sole
discretion, to change or modify portions of these Terms of Service at
any time without further notice. You should periodically visit
this page to review the current Terms of Service so you are aware of
any revision to which you are bound. If we do this, we will post
the changes to these Terms of Service on this page and will indicate
at the top of this page the date these terms were last revised.
We will also notify you, either through the Services user interface,
in an email notification or through other reasonable means.
Any such changes will become effective for existing
users no earlier than ten (10) days
after they are posted, except that changes addressing new functions of the Services
or changes made for legal reasons will be effective immediately.
Your continued use of the Service after the date any such changes become effective constitutes
your acceptance of the new Terms of Service. If you do not agree
to abide by these or any future Terms of Service, do not use or access
(or continue to use or access) the Service.
PLEASE READ
THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN AN
AGREEMENT TO ARBITRATE AND OTHER IMPORTANT INFORMATION
REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THE AGREEMENT TO
ARBITRATE REQUIRES (WITH LIMITED EXCEPTION) THAT YOU SUBMIT CLAIMS YOU
HAVE AGAINST US TO BINDING AND FINAL ARBITRATION, AND FURTHER (1) YOU
WILL ONLY BE PERMITTED TO PURSUE CLAIMS AGAINST COMPANY 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. PLEASE INDICATE YOUR ACCEPTANCE TO THESE TERMS OF
SERVICE IN ACCORDANCE WITH THE INSTRUCTIONS PROVIDED BY POSHMARK.
INDICATING ACCEPTANCE ESTABLISHES A BINDING AND EXECUTED WRITTEN AGREEMENT BETWEEN
YOU AND POSHMARK. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE,
YOU CANNOT USE THE SERVICE.
In addition,
when using certain services, you shall be subject to any additional
terms, policies or guidelines applicable to such services that may be
posted on the Service from time to time, including, without limitation,
the Privacy Policy at http://www.poshmark.com/
Access and Use of the
Service
Services
Description: The Service provides a mobile and online social
marketplace for fashion items in which consumers and boutiques can upload
photos of, list and sell their fashion items (as well as apply certain
image filters to such photos), and buyers can browse and purchase such
items.
Third
Party Services: You may register for the Service using third
party services (e.g., Facebook Connect) and otherwise enable various
third party services to be directly integrated into your Poshmark experience.
By directly integrating these services into the Service, we make your
online experiences richer and more personalized. To take advantage
of these features, we may ask you to register for or log into such services
on the websites of their respective providers. By enabling third
party services within the Service, you are allowing us to pass your
log-in information to these service providers for this purpose.
For more information about the implications of activating these third
party services and Poshmark's use, storage and disclosure of information
related to you and your use of such services within the Service (including
your friend lists and the like), please see our Privacy Policy at http://www.poshmark.com/
In
addition, Poshmark is not responsible for the accuracy, availability
or reliability of any information, content, goods, data, opinions, advice
or statements made available in connection with third party services.
As such, Poshmark is not liable for any damage or loss caused or alleged
to be caused by or in connection with use of or reliance on any such
third party service. Poshmark enables these features merely as a convenience
and the inclusion of such features does not imply an endorsement or
recommendation.
Your
Registration Obligations: You may also be permitted to register
with the Service directly. In any case, if you choose to register
for the Service (whether directly or through a third party service),
you agree to provide and maintain true, accurate, current and complete
information about yourself. Registration data and certain other
information about you are governed by our Privacy
Policy. The
Service is available only to individuals who can form legally binding
contracts under applicable law. Without limiting the foregoing,
the Service is not available to minors (people under the age of majority
in their state or province of residence) or to temporarily or permanently
suspended members of the Service. If you do not qualify, please do not
use the Service. Additionally, Poshmark reserves the right to
refuse access to, or use of the Service to anyone, and may terminate any account,
at anytime, in its sole discretion. You are only authorized to create and
use one account for the Service and are prohibited from using alter egos or
other disguised identities when using the Service.
Member
Account, Password and Security:
You are responsible for maintaining the confidentiality of your password
and account, if any, and are fully responsible for any and all activities
that occur under your password or account. You agree to (a) immediately
notify Poshmark of any unauthorized use of your password or account
or any other breach of security, and (b) ensure that you exit from your
account at the end of each session when accessing the Service. Poshmark
will not be liable for any loss or damage arising from your failure
to comply with this Section.
Modifications
to Service: Poshmark reserves the right to modify or discontinue,
temporarily or permanently, the Service (or any part thereof) with or
without notice. You agree that Poshmark shall not be liable to you or
to any third party for any modification, suspension or discontinuance
of the Service.
General
Practices Regarding Use and Storage: You acknowledge that Poshmark
may establish general practices and limits concerning use of the Service.
You agree that Poshmark has no responsibility or liability for the deletion
or failure to store any data or other content maintained or transmitted
by the Service. You acknowledge that Poshmark reserves the right to
terminate accounts that are inactive for an extended period of time.
You further acknowledge that Poshmark reserves the right to change these
general practices and limits at any time, in its sole discretion, with
or without notice.
Mobile
Services: When you access the Service through a mobile device, your
wireless service carrier's standard charges, data rates and other
fees may apply. In addition, downloading, installing, or using
certain mobile services may be prohibited or restricted by your carrier,
and not all mobile services may work with all carriers or devices.
You acknowledge and agree that your use of the Service must be in accordance
with the usage rules established by your mobile device platform or
service provider.
Friend Referral Program:
Poshmark may from time to time offer credits to existing users that refer new users to the Service using
the invite code provided by Poshmark to such existing users. Poshmark may also make certain
credits available to such new users using that invite code. The amount and requirements to earn such credits will
be determined, and may change, from time to time in Poshmark's sole discretion and such program
may be terminated by Poshmark at any time, in each case with or without notice to you.
Furthermore, Poshmark reserves the right to limit the number and/or amount of credits that
may be earned with respect to any existing user with or without notice to you.
To be eligible for a credit (whether granted to an existing user or new user), the new
user must be an individual that has never registered for the Service and she must be using a
device (not the web) for sign-up and the device being used must not be associated with an
existing Poshmark account.
You agree that any credit granted: (1) cannot be traded for cash or any other service; (2) may not be sold or transferred
in any manner, or made available to the general public (whether posted to a public forum or otherwise), unless expressly
permitted by Poshmark; (3) cannot be acquired via public distribution where you are a contributor but not the primary
content owner (e.g. coupon websites); (4) may expire prior to your use; (5) may be voided or deducted by Poshmark at any
time for any reason without liability to Poshmark, if Poshmark believes in its sole discretion that such
credits resulted from fraud or other misuse of the Referral program or the Service. If your account has been
suspended (see "Termination" below), you will not be able to use such credits during the duration of your
account suspension.
Conditions of Use
User
Conduct: You are solely responsible for all descriptions,
pictures of items, listings, information, data, text, software, music,
sound, graphics, video, messages or other materials ("content")
that you upload, post, publish or display (hereinafter, "post")
or otherwise transmit via the Service, and for all items that you sell
or purchase via the Service. The following are examples of the
kind of items, content and/or use that is illegal or prohibited by Poshmark.
Poshmark reserves the right to investigate and take appropriate legal
action against anyone who, in Poshmark's sole discretion, violates
this provision, including without limitation, removing the offending
items or content from the Service, suspending or terminating the account
of such violators and reporting you to the law enforcement authorities.
You agree to not use the Service to:
- sell, post or otherwise transmit any item or content that (i) is unlawful, harmful, threatening, abusive, harassing, tortious, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another‘s privacy, hateful racially, ethnically or otherwise objectionable; (ii) you do not have a right to sell or transmit under any law or under contractual or fiduciary relationships; (iii) poses or creates a privacy or security risk to any person; (iv) infringes any intellectual property or other proprietary rights of any party; (v) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, "junk mail," "spam," "chain letters," "pyramid schemes," "contests," "sweepstakes," or any other form of solicitation; (vi) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; or (vii) in the sole judgment of Poshmark, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Poshmark or its users to any harm or liability of any type;
- impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- solicit personal information from anyone under the age of 18;
- harvest or collect email addresses or other contact information of other users from the Service or the Site by electronic or other means for the purposes of sending unsolicited emails or other unsolicited communications;
- advertise or offer to sell or buy any goods or services other than those items intended to be sold and purchased through the Service;
- interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; or
- violate any applicable local, state, national or international law, or any regulations having the force of law;
- further or promote any criminal activity or enterprise or provide instructional information about illegal activities; or
- obtain or attempt to access or otherwise obtain any materials or information through any means not intentionally made available or provided for through the Service.
Special
Notice for International Use; Export Controls:
Software available in connection with the Service and the transmission
of applicable data, if any, is subject to United States export controls.
No Software may be downloaded from the Service or otherwise exported
or re-exported in violation of U.S. export laws. Downloading or
using the Software is at your sole risk. Recognizing the global
nature of the Internet, you agree to comply with all local rules and
laws regarding your use of the Service, including as it concerns online
conduct and acceptable content.
Purchase
and Sale Transactions
Fees;
Transactions: Registering for the Service is free; however,
Poshmark charges certain fees for various transactions effected through
the Service. Our Fee Policy is available at http://www.poshmark.com/fee_
Credit
Card Transactions: To the extent you as a buyer effect any
transactions using a credit card, you must have a valid credit card
on file, and we will (or a third party credit card processor may) store
your credit card information. Poshmark will verify your credit
card information (including expiration date and billing address), but
will not charge your credit card unless you conduct an activity through
the Service that requires your credit card to be charged. By agreeing
to pay for a transaction with your credit card, you authorize us to
charge your credit card.
Fee
Modifications: We reserve the right to change or discontinue,
temporarily or permanently, some or all of the fees for the Service
(including to lower fees for promotional events), and such changes are
effective when we post information about the fee change through the
Service. Additionally, we may change our Fee Policy at any time
and in our sole discretion, and any changes to the Fee Policy are effective
upon the posting of such changes to the Fee Policy.
The
Service is only a Venue and Poshmark is not affiliated with or endorsed by any
designer, manufacturer, retailer or brand of the items that users buy or sell on
Poshmark's marketplace: The Service acts as an open marketplace
for users to interact with other users to buy and sell fashion items.
Poshmark only provides a service, is not involved in any transaction
between buyers and sellers who use the Service, does not obtain title
to any purchased items and does not act as the buyer or seller (or agent
for buyers or sellers) with respect to any such transactions.
Poshmark is not affiliated with or endorsed by any designer, manufacturer,
retailer or brand of the items that users buy or sell on Poshmark's marketplace.
There are risks that you assume when dealing with other users (including those
who may be acting under false pretenses). You agree that all of
these risks are borne by you, and not Poshmark. Poshmark does
not control the behavior of users of the Service or the information
or other content provided by other users that is made available through
the Service. As a result, Poshmark does not guarantee or endorse
the authenticity, quality, safety, or legality of any items offered
or sold, the truth or accuracy of any listings, or the ability of sellers
to sell items or of buyers to buy items. We cannot assure that
all transactions will be completed. Additionally, Poshmark does
not guarantee the ability or intent of users to fulfill their obligations
in any transactions. Poshmark reserves the right to delay the completion
of any transaction for a reasonable period of time for purposes of fraud
detection and otherwise protecting Poshmark and its users from illegal
or wrongful activities.
FOR EVERY TRANSACTION THAT
IS COMMENCED THROUGH OUR SITE, YOU MUST MAKE YOUR OWN INDEPENDENT DETERMINATION
REGARDING THE STATEMENTS, PRODUCT DESCRIPTIONS OR THE REPRESENTATIONS
OF THE OTHER PARTY AND THE PARTY'S ABILITY TO PAY FOR OR DELIVER THE
ITEM(S) OFFERED. PLEASE USE CAUTION, COMMON SENSE, AND PRACTICE SAFE
TRADING WHEN DEALING WITH OTHER USERS OR OTHERWISE USING THE SITE.
Item
Comment System: User authentication on the Internet
is difficult. Poshmark may attempt, but is under no obligation, to
independently confirm a user's purported identity.
Therefore, we have established an item
commenting system to help you evaluate the user with whom you are dealing.
We also encourage you to communicate directly with potential buyers
or sellers through the features available through the Service.
Listing
Restrictions: Poshmark prohibits the listing or sale of any
item that is illegal to sell under any applicable law, statute, ordinance,
or regulation, including without limitation items listed in our Prohibited
Items Policy available at
http://www.poshmark.com/
Selling:
You must have the legal authority to sell the items that you are listing
for sale through the Service. You must describe your item (including
the original price) and all terms of sale in your listing truthfully,
accurately and reasonably completely. If you accept an offer,
you shall complete the transaction with the buyer unless the transaction
is prohibited by law or these Terms of Service, subject to the return
procedure described below. You are also responsible for payment
of the commission to Poshmark as set forth in the Fee Policy.
An offer to sell may be retracted at any time prior to its acceptance,
but not after.
Buying:
If you agree to purchase an item through the Service and confirm the
transaction, you are obligated to complete the transaction in accordance
with the terms and conditions specified by the seller (e.g., with respect
to the listing price), unless the transaction is prohibited by law or
these Terms of Service, subject to the return procedure described below.
Shipping:
Upon the confirmation of any purchase and sale transaction through the
Service and payment of the required amount by the buyer, Poshmark will
send to the seller's address indicated in the seller's account information
a pre-paid shipping label for seller to ship the purchased item to the
buyer. The seller must ship the purchased item to the buyer using
the shipping label (and corresponding shipping method) required by Poshmark
within 3 days after receipt of such shipping label. If the seller
does not ship the purchased item within the required time period, then
the seller will be notified that the order will be cancelled unless
it is shipped within the time period required in such notice.
Upon receipt of confirmation from the buyer that it has satisfactorily
received and accepted the purchased item, Poshmark will credit seller's
account in an amount equal to the purchase price received from the buyer,
minus a commission to be retained by Poshmark, as detailed in the Fee
Policy. The buyer must confirm its acceptance within 3 days after
receipt of the purchased item; if the buyer does not respond within
such time period, the purchased item will be deemed accepted.
Any funds credited to seller's account may be redeemed by the seller
through a permitted third party payment provider (e.g., by ACH from Poshmark's
chosen financial institution) or used
by seller to purchase items listed by other sellers through the Service.
Returns:
We do not currently allow returns of items, but we do strive to make
our customers happy. If the item you receive is damaged, the wrong
item or not as described, or if any items are missing, then you must
report the issue in the Poshmark Service within 3 days after delivery
of the purchased item. Alternatively, you can also email us within
3 days after delivery at
support@poshmark.com
to let us know.
Intellectual Property
Rights
Service
Content, Software and Trademarks:
You acknowledge and agree that the Service may contain images and descriptions
of fashion items and other content (collectively, "Service Content")
that is protected by copyright, patent, trademark, trade secret or other
proprietary rights and laws. Except as expressly authorized by
Poshmark, you agree not to modify, copy, frame, scrape, rent, lease,
loan, sell, distribute or create derivative works based on the Service
or the Service Content, in whole or in part, except that the foregoing
does not apply to your own User Content (as defined below) that you
legally upload to the Service. In connection with your use of
the Service you shall not engage in or use any data mining, robots,
scraping or similar data gathering or extraction methods. Any
use of the Service or the Service Content other than as specifically
authorized herein is strictly prohibited. The technology underlying
the Service (including the Software distributed in connection therewith)
is the property of Poshmark, our affiliates and our partners.
You agree not to copy, modify, create a derivative work of, reverse
engineer, reverse assemble or otherwise attempt to discover any source
code, sell, assign, sublicense, or otherwise transfer any right in the
Service (including the Software). Any rights not expressly granted
herein are reserved by Poshmark.
The Poshmark
name and logos are trademarks and service marks of Poshmark (collectively
the "Poshmark Trademarks"). Other company, product, and service
names and logos used and displayed via the Service may be trademarks
or service marks of their respective owners who may or may not endorse
or be affiliated with or connected to Poshmark. Nothing in these Terms
of Service or the Service should be construed as granting, by implication,
estoppel, or otherwise, any license or right to use any of Poshmark
Trademarks displayed on the Service, without our prior written permission
in each instance. All goodwill generated from the use of Poshmark Trademarks
will inure to our exclusive benefit.
Apple-enabled
Software Applications: Poshmark offers Software applications
that are intended to be operated in connection with products made commercially
available by Apple Inc. ("Apple"). With respect to Software
that is made available for your use in connection with an Apple-branded
product (such Software, "Apple-Enabled Software"), in addition to
the other terms and conditions set forth in these Terms of Service,
the following terms and conditions apply:
- Poshmark and you acknowledge that these Terms of Service are concluded between Poshmark and you only, and not with Apple, and that as between Poshmark and Apple, Poshmark, not Apple, is solely responsible for the Apple-Enabled Software and the content thereof.
- You may not use the Apple-Enabled Software in any manner that is in violation of or inconsistent with the Usage Rules set forth for Apple-Enabled Software in, or otherwise be in conflict with, the App Store Terms of Service.
- Your license to use the Apple-Enabled Software is limited to a non-transferable license to use the Apple-Enabled Software on an iPhone OS Product that you own or control, as permitted by the Usage Rules set forth in the App Store Terms of Service.
- Apple has no obligation whatsoever to provide any maintenance or support services with respect to the Apple-Enabled Software.
- Apple is not responsible for any product warranties, whether express or implied by law. In the event of any failure of the Apple-Enabled Software to conform to any applicable warranty, you may notify Apple, and Apple will refund the purchase price for the Apple-Enabled Software to you, if any; and, to the maximum extent permitted by applicable law, Apple will have no other warranty obligation whatsoever with respect to the Apple-Enabled Software, or any other claims, losses, liabilities, damages, costs or expenses attributable to any failure to conform to any warranty, which will be Poshmark's sole responsibility, to the extent it cannot be disclaimed under applicable law.
- Poshmark and you acknowledge that Poshmark, not Apple, is responsible for addressing any claims of you or any third party relating to the Apple-Enabled Software or your possession and/or use of that Apple-Enabled Software, including, but not limited to: (i) product liability claims; (ii) any claim that the Apple-Enabled Software fails to conform to any applicable legal or regulatory requirement; and (iii) claims arising under consumer protection or similar legislation.
- In the event of any third party claim that the Apple-Enabled Software or the end-user's possession and use of that Apple-Enabled Software infringes that third party's intellectual property rights, as between Poshmark and Apple, Poshmark, not Apple, will be solely responsible for the investigation, defense, settlement and discharge of any such intellectual property infringement claim.
- You represent and warrant that (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties.
- If you have any questions, complaints or claims with respect to the Apple-Enabled Software, they should be directed to Poshmark by e-mail to support@poshmark.com.
Poshmark and
you acknowledge and agree that Apple, and Apple's subsidiaries, are
third party beneficiaries of these Terms of Service with respect to
the Apple-Enable Software, and that, upon your acceptance of the terms
and conditions of these Terms of Service, Apple will have the right
(and will be deemed to have accepted the right) to enforce these Terms
of Service against you with respect to the Apple-Enable Software as
a third party beneficiary thereof.
Poshmark
Credits: Poshmark Credits or Posh Credits are not redeemable for cash or cash equivalents, are
non-transferable and may not be applied toward prior purchases. If your account has been suspended (see
"Termination" below), you will not be able to use Posh Credits during the duration of your account
suspension. Other restrictions may apply. We reserve the right to rescind at any time any credits that you
may receive a result of referral or other promotional programs, subject to reasonable notice to you.
Electronic
Communications: When you use the Service or send e-mails to us,
you are communicating with us electronically. We will communicate
with you by e-mail or providing notices via the Service. You agree
that all agreements, notices, disclosures and other communications
that we provide to you electronically satisfy any legal requirement
that such communications be in writing. Any such emails may include
marketing and promotional content.
Third
Party Material: Under no circumstances will Poshmark be liable
in any way for any items or content posted by third parties or at the
direction of users, including, but not limited to, for any errors or
omissions in any content, or for any loss or damage of any kind incurred
as a result of the use of any items or content posted, sold, purchased
or otherwise transmitted via the Service. You acknowledge that
Poshmark does not pre-screen items or content, but that Poshmark and
its designees shall have the right (but not the obligation) in their
sole discretion to refuse or remove any items or content that is available
via the Service. Without limiting the foregoing, Poshmark and its designees
shall have the right to remove any item or content that violates these
Terms of Service or is deemed by Poshmark, in its sole discretion, to
be otherwise objectionable. You agree that you must evaluate, and bear
all risks associated with, the use of any items or content, including
any reliance on the safety, condition, accuracy, completeness, or usefulness
of such items or content.
User
Content Posted on the Site:
You are solely responsible for the content you post or transmit on or
through the Service (collectively, "User Content"). You will
not post any content that you did not create or that you do not own
all right, title and interest in and to, including, without limitation,
all copyright and rights of publicity contained therein. By posting
or otherwise transmitting any User Content you hereby grant and will
grant to Poshmark and its affiliated companies a nonexclusive, worldwide,
royalty free, fully paid up, transferable, sublicenseable, perpetual,
irrevocable license to copy, display, transmit, perform, distribute,
store, modify, make derivative works of and otherwise use in any manner
your User Content in connection with the operation of the Service or
any other products or services of Poshmark, or the promotion, advertising
or marketing thereof, in any form, medium or technology now known or
later developed (including without limitation publishing your User Content
on the Internet or on Third Party Services such as Facebook, sharing
it with blogs, etc., and allowing other users to share listings that
include your User Content).
You acknowledge
and agree that any questions, comments, suggestions, ideas, feedback
or other information about the Site or the Service ("Submissions"),
provided by you to Poshmark are non-confidential and Poshmark shall
be entitled to the unrestricted use and dissemination of these Submissions
for any purpose, commercial or otherwise, without acknowledgment or
compensation to you.
You acknowledge
and agree that Poshmark may preserve content and may also disclose content
if required to do so by law or in the good faith belief that such preservation
or disclosure is reasonably necessary to: (a) comply with legal process,
applicable laws or government requests; (b) enforce these Terms of Service;
(c) respond to claims that any content violates the rights of third
parties; or (d) protect the rights, property, or personal safety of
Poshmark, its users and the public. You understand that the technical
processing and transmission of the Service, including your content,
may involve (a) transmissions over various networks; and (b) changes
to conform and adapt to technical requirements of connecting networks
or devices.
Infringement
Policy: Poshmark respects the intellectual property of others, and
we ask our users to do the same. Poshmark will promptly process
and investigate notices of alleged infringement and will take appropriate
actions under the Digital Millennium Copyright Act and other applicable
intellectual property laws with respect to any alleged or actual infringement.
If you believe that your work has been copied in a way that constitutes
copyright infringement, or that your intellectual property rights have
been otherwise violated, please provide our Copyright Agent with the
following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Service, with enough detail that we may find it on the Service;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by you, made under penalty of perjury, that the above information in your Notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner‘s behalf.
If you believe
that your User Content that was removed (or to which access was disabled)
is not infringing, or that you have the authorization from the copyright
owner, the copyright owner's agent, or pursuant to the law, to post
and use the content in your User Content, you may send a written counter-notice
containing the following information to the Copyright Agent:
- your physical or electronic signature;
- identification of the content that has been removed or to which access has been disabled and the location at which the content appeared before it was removed or disabled;
- a statement that you have a good faith belief that the content was removed or disabled as a result of mistake or a misidentification of the content; and
- your name, address, telephone number, and email address, a statement that you consent to the jurisdiction of the federal court located within Northern District of California and a statement that you will accept service of process from the person who provided notification of the alleged infringement.
If a counter-notice
is received by the Copyright Agent, Poshmark will send a copy of the
counter-notice to the original complaining party informing that person
that it may replace the removed content or cease disabling it in 10
business days. Unless the copyright owner files an action seeking a
court order against the content provider, member or user, the removed
content may be replaced, or access to it restored, in 10 to 14 business
days or more after receipt of the counter-notice, at our sole discretion.
The above information
should be sent to Poshmark's Copyright Agent for Notice of claims
of copyright or other intellectual property infringement by email to
the following address:
support@poshmark.com
(Subject line: "DMCA Takedown
Request"). You may also contact us by mail at:
Poshmark, Inc.
Attn: Copyright Agent
101 Redwood Shores Pkwy, 3rd Floor
Redwood City,
CA 94065
Third Party Websites
The Service
may provide, or third parties may provide, links or other access to
other sites and resources on the Internet. Poshmark has no control
over such sites and resources and Poshmark is not responsible for and
does not endorse such sites and resources. You further acknowledge
and agree that Poshmark shall not be responsible or liable, directly
or indirectly, for any damage or loss caused or alleged to be caused
by or in connection with use of or reliance on any content, events,
goods or services available on or through any such site or resource.
Any dealings you have with third parties found while using the Service
are between you and the third party, and you agree that Poshmark is
not liable for any loss or claim that you may have against any such
third party.
Indemnity and Release
You agree to
release, indemnify and hold Poshmark and its affiliates and their officers,
employees, directors and agents (collectively, “Indemnitees”) harmless from any from any and all losses,
damages, expenses, including reasonable attorneys' fees, rights, claims,
actions of any kind and injury (including death) arising out of or relating
to your use of the Service (including any sale or purchase of any items
through the Service), any User Content, your connection to the Service,
your violation of these Terms of Service or your violation of any rights
of another. Notwithstanding the foregoing, you will have no
obligation to indemnify or hold harmless any Indemnitee from or against any liability, losses, damages or
expenses incurred as a result of any action or inaction of such Indemnitee. If you are a California resident, you waive California
Civil Code Section 1542, which says: "A general release does not
extend to claims which the creditor does not know or suspect to exist
in his favor at the time of executing the release, which if known by
him must have materially affected his settlement with the debtor."
If you are a resident of another jurisdiction, you waive any comparable
statute or doctrine.
Disclaimer of Warranties
YOUR USE OF
THE SERVICE IS AT YOUR SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS
IS" AND "AS AVAILABLE" BASIS. POSHMARK EXPRESSLY DISCLAIMS ALL
WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY, INCLUDING,
BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS
FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT.
POSHMARK MAKES
NO WARRANTY THAT (I) YOU WILL BE ABLE TO SELL OR PURCHASE ANY ITEMS
THROUGH THE SERVICE OR THAT THE SERVICE WILL OTHERWISE MEET YOUR REQUIREMENTS,
(II) THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE,
(III) THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICE WILL
BE ACCURATE OR RELIABLE, OR (IV) THE QUALITY OF ANY GOODS, SERVICES,
INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH
THE SERVICE WILL MEET YOUR EXPECTATIONS.
Limitation of Liability
YOU EXPRESSLY
UNDERSTAND AND AGREE THAT POSHMARK SHALL NOT BE LIABLE FOR ANY INDIRECT,
INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, OR DAMAGES FOR
LOSS OF PROFITS INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL,
USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF POSHMARK HAS BEEN ADVISED
OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT,
NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE
OR THE INABILITY TO USE THE SERVICE (INCLUDING ANY INJURY OR OTHER BODILY
HARM THAT MAY RESULT FROM YOUR USE OF THE SERVICE); (II) THE COST OF
PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS,
DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED
OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICE; (III) UNAUTHORIZED
ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS
OR CONDUCT OF ANY THIRD PARTY ON THE SERVICE; OR (V) ANY OTHER MATTER
RELATING TO THE SERVICE. IN NO EVENT SHALL POSHMARK'S TOTAL LIABILITY
TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT
OF COMMISSIONS THAT YOU HAVE PAID TO POSHMARK AS A SELLER IN THE LAST
SIX (6) MONTHS, OR, IF GREATER, ONE HUNDRED DOLLARS ($100).
SOME JURISDICTIONS
DO NOT ALLOW THE DISCLAIMER OR EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR
EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY,
SOME OF THE ABOVE LIMITATIONS SET FORTH ABOVE MAY NOT APPLY TO YOU OR BE ENFORCEABLE
WITH RESPECT TO YOU. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICE OR WITH THESE
TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE
OF THE SERVICE.
IF YOU ARE A USER FROM NEW JERSEY,
THE FOREGOING SECTIONS TITLED "DISCLAIMER OF WARRANTIES" AND "LIMITATION OF LIABILITY" ARE
INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY
PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE
OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY
OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.
Dispute Resolution By Binding Arbitration: PLEASE READ THIS SECTION CAREFULLY AS IT AFFECTS YOUR RIGHTS.
a. Agreement to Arbitrate
This Dispute Resolution by Binding Arbitration section is referred to in these Terms of Service as the "Arbitration Agreement." You agree that any and all disputes or claims that have arisen or may arise between you and Poshmark, whether arising out of or relating to these Terms of Service (including any alleged breach thereof), the Services, any advertising, any aspect of the relationship or transactions between us, shall be resolved exclusively through final and binding arbitration, rather than a court, in accordance with the terms of this Arbitration Agreement, except that you may assert individual claims in small claims court, if your claims qualify. Further, this Arbitration Agreement does not preclude you from bringing issues to the attention of federal, state, or local agencies, and such agencies can, if the law allows, seek relief against us on your behalf. You agree that, by entering into these Terms of Service, you and Poshmark are each waiving the right to a trial by jury or to participate in a class action. Your rights will be determined by a neutral arbitrator, not a judge or jury. The Federal Arbitration Act governs the interpretation and enforcement of this Arbitration Agreement.b. Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND COMPANY AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMPANY AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. 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).c. Pre-Arbitration Dispute Resolution
Poshmark is always interested in resolving disputes amicably and efficiently, and most customer concerns can be resolved quickly and to the customer's satisfaction by emailing customer support at support@poshmark.com. If such efforts prove unsuccessful, a party who intends to seek arbitration must first send to the other, by certified mail, a written Notice of Dispute ("Notice"). The Notice to Poshmark should be sent to 101 Redwood Shores Parkway, Floor 3, Redwood City, CA 94065 ("Notice Address"). The Notice must (i) describe the nature and basis of the claim or dispute and (ii) set forth the specific relief sought. If Poshmark and you do not resolve the claim within sixty (60) calendar days after the Notice is received, you or Poshmark may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by Poshmark or you shall not be disclosed to the arbitrator until after the arbitrator determines the amount, if any, to which you or Poshmark is entitled.d. Arbitration Procedures
Arbitration will be conducted by a neutral arbitrator in accordance with the American Arbitration Association's ("AAA") rules and procedures, including the AAA's Supplementary Procedures for Consumer-Related Disputes (collectively, the "AAA Rules"), as modified by this Arbitration Agreement. For information on the AAA, please visit its website, http://www.adr.org. Information about the AAA Rules and fees for consumer disputes can be found at the AAA's consumer arbitration page, http://www.adr.org/consumer_arbitration. If there is any inconsistency between any term of the AAA Rules and any term of this Arbitration Agreement, the applicable terms of this Arbitration Agreement will control unless the arbitrator determines that the application of the inconsistent Arbitration Agreement terms would not result in a fundamentally fair arbitration. The arbitrator must also follow the provisions of these Terms of Service as a court would. All issues are for the arbitrator to decide, including, but not limited to, issues relating to the scope, enforceability, and arbitrability of this Arbitration Agreement. Although arbitration proceedings are usually simpler and more streamlined than trials and other judicial proceedings, the arbitrator can award the same damages and relief on an individual basis that a court can award to an individual under the Terms of Service and applicable law. Decisions by the arbitrator are enforceable in court and may be overturned by a court only for very limited reasons.
Unless Poshmark and you agree otherwise, any arbitration hearings will take place in a reasonably convenient location for both parties with due consideration of their ability to travel and other pertinent circumstances. If the parties are unable to agree on a location, the determination shall be made by AAA. If your claim is for $10,000 or less, Poshmark agrees that you may choose whether the arbitration will be conducted solely on the basis of documents submitted to the arbitrator, through a telephonic hearing, or by an in-person hearing as established by the AAA Rules. If your claim exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator shall issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the award is based.e. Costs of Arbitration
Payment of all filing, administration, and arbitrator fees (collectively, the "Arbitration Fees") will be governed by the AAA Rules, unless otherwise provided in this Arbitration Agreement. If the value of the relief sought is $75,000 or less, at your request, Poshmark will pay all Arbitration Fees. If the value of relief sought is more than $75,000 and you are able to demonstrate to the arbitrator that you are economically unable to pay your portion of the Arbitration Fees or if the arbitrator otherwise determines for any reason that you should not be required to pay your portion of the Arbitration Fees, Poshmark will pay your portion of such fees. In addition, if you demonstrate to the arbitrator that the costs of arbitration will be prohibitive as compared to the costs of litigation, Poshmark will pay as much of the Arbitration Fees as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive. Any payment of attorneys' fees will be governed by the AAA Rules.f. Confidentiality
All aspects of the arbitration proceeding, and any ruling, decision, or award by the arbitrator, will be strictly confidential for the benefit of all parties.g. Severability
If a court or the arbitrator decides that any term or provision of this Arbitration Agreement (other than the subsection (b) titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" above) is invalid or unenforceable, the parties agree to replace such term or provision with a term or provision that is valid and enforceable and that comes closest to expressing the intention of the invalid or unenforceable term or provision, and this Arbitration Agreement shall be enforceable as so modified. If a court or the arbitrator decides that any of the provisions of subsection (b) above titled "Prohibition of Class and Representative Actions and Non-Individualized Relief" are invalid or unenforceable, then the entirety of this Arbitration Agreement shall be null and void. The remainder of the Terms of Service will continue to apply.h. Future Changes to Arbitration Agreement
Notwithstanding any provision in these Terms of Service to the contrary, Poshmark agrees that if it makes any future change to this Arbitration Agreement (other than a change to the Notice Address) while you are a user of the Services, you may reject any such change by sending Poshmark written notice within thirty (30) calendar days of the change to the Notice Address provided above. By rejecting any future change, you are agreeing that you will arbitrate any dispute between us in accordance with the language of this Arbitration Agreement as of the date you first accepted these Terms of Service (or accepted any subsequent changes to these Terms of Service).
Termination
You agree that
Poshmark, in its sole discretion, may suspend or terminate your account
(or any part thereof) or use of the Service and remove and discard any
items or content within the Service, for any reason, including, without
limitation, for lack of use or if Poshmark believes that you have violated
or acted inconsistently with the letter or spirit of these Terms of
Service. Any suspected fraudulent, abusive or illegal activity that
may be grounds for termination of your use of Service, may be referred
to appropriate law enforcement authorities. Poshmark may also in its
sole discretion and at any time discontinue providing the Service, or
any part thereof, with or without notice. You agree that any termination
of your access to the Service under any provision of these Terms of Service
may be effected without prior notice, and acknowledge and agree that
Poshmark may immediately deactivate or delete your account and all related
information and files in your account and/or bar any further access
to such files or the Service. Further, you agree that Poshmark shall
not be liable to you or any third-party for any termination of your
access to the Service.
User Disputes
You agree that
you are solely responsible for your interactions (including any purchase
and sale transactions) with any other user in connection with the Service
and Poshmark will have no liability or responsibility with respect thereto.
Poshmark reserves the right, but has no obligation, to become involved
in any way with disputes between you and any other user of the Service.
General
These Terms
of Service constitute the entire agreement between you and Poshmark
and govern your use of the Service, superseding any prior agreements
between you and Poshmark with respect to the Service. You also may be
subject to additional terms and conditions that may apply when you use
affiliate or third-party services, third-party content or third-party
software. These Terms of Service shall be governed by the laws of the
State of California without regard to its conflict of law provisions.
With respect to any disputes or claims not subject to arbitration, as
set forth above, you and Poshmark agree to submit to the personal and
exclusive jurisdiction of the state and federal courts located within
San Francisco County, California. The failure of Poshmark to exercise
or enforce any right or provision of these Terms of Service shall not
constitute a waiver of such right or provision. If any provision of
these Terms of Service is found by a court of competent jurisdiction
to be invalid, the parties nevertheless agree that the court should
endeavor to give effect to the parties' intentions as reflected in
the provision, and the other provisions of these Terms of Service remain
in full force and effect. You agree that regardless of any statute or
law to the contrary, any claim or cause of action arising out of or
related to use of the Service or these Terms of Service must be filed
within one (1) year after such claim or cause of action arose or be
forever barred. A printed version of this agreement and of any notice
given in electronic form shall be admissible in judicial or administrative
proceedings based upon or relating to this agreement to the same extent
and subject to the same conditions as other business documents and records
originally generated and maintained in printed form. The section titles
in these Terms of Service are for convenience only and have no legal
or contractual effect. Notices to you may be made via either email or
regular mail. The Service may also provide notices to you of changes
to these Terms of Service or other matters by displaying notices or
links to notices generally on the Service.
Your Privacy
At Poshmark,
we respect the privacy of our users. For details please see our Privacy
Policy. By using the Service, you consent to our collection and
use of personal data as outlined therein.
Notice for California Users
Under California
Civil Code Section 1789.3, users of the Service from California are
entitled to the following specific consumer rights notice: The Complaint
Assistance Unit of the Division of Consumer Services of the California
Department of Consumer Affairs may be contacted in writing at 1625 North
Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at
(916) 445-1254 or (800) 952-5210.
Questions? Concerns?
Suggestions?
Please contact us at support@Poshmark.com to report any violations of
these Terms of Service or to pose any questions regarding these Terms
of Service or the Service.
