ELIGIBILITY FOR USE
POBAGM’s services are available only to, and may only be used by, individuals who are 18 years and older and who can form legally binding contracts under applicable law. In using the Site, you represent and warrant that you are at least 18 years old and that all registration information you submit is accurate and truthful. Individuals under the age of 18 must at all times use POBAGM’s services only in conjunction with and under the supervision of a parent or legal guardian who is at least 18 years of age. In all cases, the adult is the user and is responsible for any and all activities.
You agree to comply with all local laws regarding online conduct and acceptable content. In addition, you must abide by POBAGM’s policies as stated in this Agreement and all other operating rules, policies and procedures that may be published from time to time on the Site by POBAGM, each of which may be updated by POBAGM from time to time without notice to you. In addition, some services offered through the Site may be subject to additional terms and conditions promulgated by POBAGM from time to time; your use of such services is subject to those additional terms and conditions, which are incorporated into this Agreement by this reference. POBAGM reserves the right, in POBAGM’s sole discretion, to cancel unconfirmed or inactive accounts or to refuse service to anyone at anytime. POBAGM reserves the right to refuse service, refuse to offer access to or use of the Site to any person or entity, terminate accounts, remove or edit content, cancel orders, or change its eligibility criteria in its sole discretion at any time.
We are not responsible for any and all acts or omissions of users of POBAGM. Please use caution, common sense, and practice safe buying and selling when using POBAGM.
If you use the Site or any of POBAGM’s services, you are responsible for maintaining the confidentiality of your account and password, and for restricting access to your computer. You are fully responsible for all activity occurring on your account or password, as well as for any liability and damage resulting from your failure to maintain password confidentiality. You agree to immediately notify POBAGM of any unauthorized use of your password or any breach of security. You also agree that POBAGM cannot and will not be liable for any loss or damage arising from your failure to keep your password secure. You agree not to provide your username and password information in combination to any other party other than POBAGM without POBAGM’s express written permission.
You must keep your account information up-to-date and accurate at all times, and notify POBAGM of any changes. To sell items through POBAGM you must provide and maintain valid payment information such as valid credit card information or a valid PayPal account.
AGENCY, FEES AND SERVICES
You and POBAGM are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. Selling goods through POBAGM is free. Seller sets prices for all items sold on the Site and charges the Seller a percentage of the sale price when the item sells. POBAGM may, at POBAGM’s sole discretion, change some or all of POBAGM’s services at any time. In the event POBAGM introduces a new service, the fees for that service are effective at the launch of the service. You are responsible for paying all fees and applicable taxes associated with using the Site. POBAGM keeps accepted payment information on file.
If POBAGM terminates a listing or your account, if you close your account, or if the payment of your POBAGM fees cannot be completed for any reason, you remain obligated to pay POBAGM for all unpaid fees plus any penalties, if applicable.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of the Site and any POBAGM service and, if applicable, your listing, purchase, solicitation of offers to purchase, and sale of items. In addition, you shall be responsible for paying any and all taxes applicable to any purchases or sales of items you make on the Site (excluding any taxes on POBAGM’s net income).
By listing items to sell on our Site, you are agreeing to our Seller’s Agreement.
Buyers have 48 hours after receiving an item to contact POBAGM at firstname.lastname@example.org to initiate a return request. Buyer pays for all shipping associated with the purchase, unless POBAGM determines that the item was damaged in transport or the listing was inaccurate. The return request must include:
- The reason for the return
- Order number
- Multiple photos of the item if Buyer is claiming that the original listing was inaccurate or the item was damaged in transport
- Best contact phone number for coordinating the return
If Buyer received the item via UPS, Buyer is responsible for packaging and shipping the item to return to the Seller. Once the Seller receives the item (in the same condition that the item was originally sent by Seller), POBAGM will process the refund to Buyer.
If the item is delivered to Buyer by our White Glove Delivery Service, we will contact Buyer within 24 hours of receiving the request for return to coordinate pick-up.
If Buyer is using the Local Pick-up Option, Buyer and Seller will communicate an appropriate time for pick-up. If Buyer wishes to return the item to Seller, Buyer must immediately refuse the item at pick-up. Buyer will be responsible for a $100 re-listing fee, deducted from the return of the original purchase price.
In the case of a UPS or White Glove return, Buyer will receive a refund for the original cost of the item, minus the original shipping cost and the return shipping cost.
If POBAGM determines that the item was inaccurately described in the original listing or damaged in transit, Buyer will receive a refund for the full amount paid, including shipping.
Buyer may cancel an order prior to shipment. If the order has been shipped, the Return Policy and $100 restocking fee apply.
If flaws or damage to the item are not disclosed in the listing or if the condition of the item is in any way inaccurate, a Buyer may return the item to Seller. Seller will bear the cost of all outbound and return packaging and shipping. In the case of undisclosed damage, Seller could be responsible for the cost of cleaning and/or repair.
ADDITIONAL TERMS REGARDING PURCHASES
The following terms apply to all purchases by Buyers made through this Site:
By placing an order, you certify that you are able to pay for the item(s) in your order. By placing an order though this Site you agree to be bound by the conditions of sale included in the item’s description (including, without limitation, payment method and acceptable ship-to address). You are responsible for the accuracy of the information provided on your order. We may reject your order at our discretion and reserve the right to cancel any order or refuse service to anyone at any time. If we cancel your order after we have charged you for your order, we will refund your credit card or PayPal account the amount charged as soon as practical. Due to some country, state and county laws, we may not be able to ship certain merchandise to your address. We reserve the right to add and/or remove items from the Site, for any reason, at any time. We reserve the right to limit quantities of items sold. Unless otherwise stated, all prices are quoted in U.S. Dollars (USD). In addition to the shipping and handling charges we add at the time of checkout, you are solely responsible for any and all duties, taxes, tariffs and/or levies, which may be incurred in connection with the shipment of your ordered item(s), regardless of when such additional charges are assessed. We use our best efforts to ensure that the correct price is posted for each item on the Site. If, however, an item’s correct price is lower than our stated price, we will charge the lower amount and ship you the item. If an item’s correct price is higher than our stated price, we will, at our sole discretion, either contact you for instructions before shipping or cancel your order and notify you of such cancellation. Attempts to stop payment on non-returnable items will be vigorously opposed by POBAGM to the fullest extent of the law. In the event that any such action results in a judgment in our favor, we retain the right to recover, and you will be responsible for paying our reasonable attorneys’ fees.
LICENSE AND ACCESS
Our Site includes information, data, text, photographs, graphics, video, messages, tags, or other materials (“Content”) from many people and entities, including you, and such Content is the sole responsibility of the person or entity that provided it. You are entirely responsible for all Content that you email, transmit, upload or otherwise make available while using the Site (including through any third party service integrations you enable through the Service), and for the consequences of your actions (including any loss or damage which POBAGM may suffer).
As part of a transaction, POBAGM may obtain personal information, including email address and shipping information, from another POBAGM user. Without obtaining prior permission from the other user, this personal information shall only be used for that transaction or for POBAGM-related communications. POBAGM considers any unsolicited suggestions, ideas, proposals or other material submitted to it by users via the Site or otherwise (other than the Content and the tangible items sold on the Site) (collectively, the “Material”) to be non-confidential and non-proprietary, and POBAGM shall not be liable for the disclosure or use of such Material. Any communication by you to POBAGM is subject to this Agreement. You hereby grant and agree to grant POBAGM, under all of your rights in the Material, a worldwide, non-exclusive, perpetual, irrevocable, royalty-free, fully-paid, sublicensable and transferable right and license to incorporate, use, publish and exploit such Material for any purpose whatsoever, commercial or otherwise, including but not limited to incorporating it in an API, documentation, or any product or service, without compensation or accounting to you and without further recourse by you.
Your Content and your use of POBAGM shall not:
Be false, inaccurate or misleading. Be fraudulent or involve the sale of illegal, counterfeit or stolen items. Infringe upon any third-party’s copyright, patent, trademark, trade secret or other proprietary or intellectual property rights or rights of publicity or privacy. Violate this Agreement, any site policy or community guidelines, or any applicable law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, anti-discrimination or false advertising). Contain items that have been identified by the U.S. Consumer Products Safety Commission (CPSC) as hazardous to consumers and therefore subject to a recall. Be defamatory, trade libelous, unlawfully threatening, unlawfully harassing, impersonate or intimidate any person (including POBAGM staff or other users), or falsely state or otherwise misrepresent your affiliation with any person, through for example, the use of similar email address, nicknames, or creation of false account(s) or any other method or device. Contain or transmit any code of a destructive nature that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information. Modify, adapt or hack POBAGM or modify another website so as to falsely imply that it is associated with POBAGM. Appear to create liability for POBAGM or cause POBAGM to lose (in whole or in part) the services of POBAGM’s ISPs or other suppliers.
You should be aware that while using this Site you could be directed to other web sites by links and other features found on this Site. If you click on those links or other features, you may be visiting a web site that is not owned or operated by POBAGM and over which POBAGM has no control. This includes links from advertisers, sponsors, content partners and other users that may use our logo(s) as part of a co-branding or affiliate agreement. POBAGM is in no way responsible for the content or availability of information found on any web site owned by a third party that may be linked to this Site by a hyperlink, whether such hyperlink is provided by POBAGM or by a third party. By providing access to third party web sites or advertisements, POBAGM is not endorsing the products or services provided by the owner or operator of such web sites. Consequently, we will not be liable or responsible for the accuracy, relevancy, reliability, copyright compliance, legality or decency of material contained in third party web sites linked to this Site. We cannot ensure that you will be satisfied with any products or services you purchase from a third party web site that links to or from this Site or that you purchase through third party advertising or content on this Site. We do not make any representations or warranties as to the security of any information (including, without limitation, credit card and other personal information) you might be requested to give any third party, and you hereby irrevocably waive any claim against us with respect to any damage or loss caused or alleged to be caused by or in connection with the use of or reliance on the products, services and content of third party web sites.
MONITORING OF WEB SITE
We have the right, but not the obligation, in our sole discretion to pre-screen, refuse, or remove any Buyer, Seller, listing, item or Content from our Site.
Previously Owned by a Gay Man, POBAGM, POBAGM graphics, logos, designs, page headers, button icons, scripts, and service names, and the content of the POBAGM site, may not be used in connection with any product or service that is not POBAGM’s without POBAGM’s authorization, with any product or service in any manner that is likely to cause confusion, or in any manner that disparages or discredits POBAGM.
Use of the POBAGM service is at your own risk. POBAGM has no control over the quality of any aspect of the products sold on the Site. We are not responsible for examining or evaluating, and we do not warrant the offerings of, any of these products. POBAGM attempts to be as accurate as possible in its product descriptions. However, POBAGM does not warrant that product descriptions or other content of any POBAGM service is accurate, complete, reliable, current, or error free.
You agree to indemnify and hold POBAGM and its affiliates, members, officers, agents, employees, partners and licensors harmless from any claim or demand, including reasonable attorneys’ fees, made by any third party due to or arising out of the item, your Content, your use of the Service, your violation of this Agreement, your violation of any applicable law, rule or regulation, or your violation of any rights of another.
TERMINATION AND SUSPENSION
ARBITRATION: WAIVER OF JURY TRIAL AND CLASS ACTION; APPLICABLE LAW/JURISDICTION
(A) Binding Arbitration. Any dispute, controversy or claim arising out of or relating to these Terms, or its breach, which cannot be resolved between the parties through negotiation within thirty (30) days, shall be submitted to the American Arbitration Association (“AAA”) for mandatory binding arbitration in front of a single arbitrator chosen in accordance with the AAA Rules. Discovery shall be permitted, but only to the extent that the documents are directly relevant to and needed for fair resolution of one or more of the issues of importance and can be located and produced at a cost that is reasonable in the context of all surrounding facts and circumstances. When the cost and burden of discovery are disproportionate to the likely importance of the requested materials, the arbitrator may deny the requests or require that the requesting party advance the reasonable cost of production to the other side.
(B) Additional Provisions. The arbitrator may not award non-monetary or equitable relief of any sort, nor award damages inconsistent with these Terms. All aspects of the arbitration shall be treated as confidential. Neither the parties nor the arbitrator may disclose the existence, content or results of the arbitration, except as necessary to enforce the results of the arbitration or to comply with legal or regulatory requirements. The arbitrator shall render its award in writing and will include the findings of fact and conclusion of law upon which the award is based. The result of the arbitration shall bind the parties and judgment on the arbitrators’ award may be entered in any court having jurisdiction. In addition to any and all other relief to which a party may be entitled, the arbitrator shall award reasonable attorneys’ fees and costs, including reasonable expert witness fees and costs, to the prevailing party (should there be one) in any such arbitration.
(C) Waiver of Jury Trial; Individual Basis; Equitable Relief. The parties surrender and waive the right to submit any dispute to a court or jury, or to appeal to a higher court. The parties agree to arbitration on an individual basis. Where enforceable, NEITHER YOU NOR WE SHALL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER DEALERS OR PERSONS, OR ARBITRATE ANY CLAIM AS A CLASS REPRESENTATIVE, CLASS MEMBER OR IN A PRIVATE ATTORNEY GENERAL CAPACITY. UNLESS BOTH YOU AND WE 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 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 SITE USERS/DEALERS.
If any provision of this arbitration agreement is found unenforceable, the unenforceable provision shall be severed, and the remaining arbitration terms shall be enforced (but in no case shall there be a class arbitration).
Notwithstanding the foregoing, nothing in these Terms shall prohibit either party from seeking and obtaining from a court of competent jurisdiction (without necessity of posting bond) injunctive relief in order to preserve the status quo and/or avoid irreparable harm for which monetary damage would be insufficient.
(D) Where Held; Language; Governing Law. The place of arbitration shall be San Francisco, California or its surrounding area and the proceedings shall be conducted in the English language. These Terms shall be governed by the United States Federal Arbitration Act to the exclusion of any inconsistent state laws and the arbitrator shall follow the law and judicial precedents that a United States District Judge sitting in the Northern District of California would apply to the dispute.
If you believe that any content or materials on the Site infringes upon any copyright that you own or control, you shall provide written notice to the Designated Agent set forth below:
Previously Owned by a Gay Man, LLC, 6913 Brookside Avenue, Oakland, CA 94618
The Digital Millennium Copyright Act Requires that such notification must be in writing and include all of the following information:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the material that is claimed to have been infringed or, if multiple copyrighted works of a single online site are covered by a single notification, a representative list of such works on the Site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled and information reasonably sufficient to permit POBAGM to locate the material.
- Information reasonably sufficient to permit POBAGM to contact the complaining party, such as an address, telephone number and, if available, an email address at which the complaining party may be contacted.
- A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly being infringed.
Dated: October 11, 2016