These Terms of Use, Development Terms, together with the Privacy Policy, and Vendor Terms, collectively represent the Terms of Service (the “TOS,” “Terms of Service,” or “Agreement”) for OverlayMarket.com. Within this document, the term “you,” “your,” and “Vendor,” of the Website, whereby the terms “we”, “our,” “OverlayMarket,” or “us” refers to Overlay Market, LLC, you and Overlay Market, LLC, each a “Party” and collectively, the “Parties” to these TOS. The “Website” as used in this TOS includes OverlayMarket.com and any Websites associated with OverlayMarket.com, or any additional online services (“Services”) utilized or offered in association with the Website.
Terms of Use
You are allowed to use this Website only under the following terms (“Terms”):
Eligibility. In order to use this Website, you must be at least eighteen (18) years old or have explicit permission from a parent, guardian, employer, or supervisor to agree to this TOS, and provide true, complete, and up to date contact information. By using the Website you represent and warrant that you meet all of the requirements listed above, and that you will not use the Website in a way that violates any Laws, regulations, or this TOS. We may refuse service, close accounts of any Users, and change eligibility requirements at any time. For purposes of this TOS, “Law” means all national, federal, state, provincial, and local: (a) laws (including common law), ordinances, regulations, and codes, and (b) orders, requirements, directives, decrees, decisions, judgments, interpretive letters, guidance and other official releases of any government, authority, department or agency, or any judicial or regulatory (including self-regulatory) organization having authority, oversight jurisdiction or similar power over any of the Parties.
Term Period. The Term Period of this TOS begins upon the earlier of: (i) when you visit or utilize the Website or (ii) when you sign up for an account and continues for as long as you use the Website. In addition, each time you log into or utilize the Website you’ve officially “signed” the TOS. If you sign up on behalf of another person, you represent and warrant that you have the authority to accept this TOS on their behalf.
Closing Your Account. You may terminate this Agreement by terminating your use of the Website, and, if you are a Vendor, by closing your account. We may suspend or terminate the Website for a violation or suspected violation of this TOS, or at any time, with or without cause. Once your account is terminated, we may permanently delete it and all of the data associated with it. If you do not log into your account for twelve (12) or more months, we may treat your account as “inactive” and permanently delete it and all the data associated with it.
Changes. We reserve the right to change any of part of the TOS at any time by posting a revised TOS on our Website, and/or by sending an email to the last email address you gave us. The new TOS will become effective immediately and apply to any continued or new use of the Website. We may change the Website, or any features of the Website at any time.
Account Username and Password. You alone are responsible for keeping your Website account Usernames and passwords confidential. You are also responsible for the use of any account that you have access to, whether or not you authorized the use. You will immediately notify us of any unauthorized use of your accounts. We’re not responsible for any losses due to stolen, hacked, lost, or forgotten passwords.
Integration to Third Party Systems. We are not responsible for any maintenance, development, or support related to integration with any third-party system.
Aggregation. We may publish any of your data in an aggregated format in accordance with this TOS.
Privacy Policy. We may access, collect, use, and disclose your information according to our Privacy Policy included in this TOS.
Right to Review. We may view, copy, and internally distribute content from your account to create algorithms and programs that help us spot problem accounts, improve the Websites, offer Services, and aggregate data.
General Rules. You expressly agree to the following rules of use for the Website:
You will not send spam or unauthorized or unlawful messages or communications. Further, you will not use the Website to transmit, disseminate, upload, download, or communicate or interact with, in any way, any: indecent, explicit, unlawful, pornographic, terrorism-related, violent, or incendiary content of any nature.
You will not put into the Website any material, including graphics or other content, that is not created by you or that would violate any third party’s copyrights, trademarks, rights of privacy and publicity, trade secrets, patents, or other proprietary or legal rights.
You will not use any misleading or incorrect names, addresses, email addresses, subject lines, or other information using our Website.
You will not upload or compose content that contains or offers any unlawful or illegal goods or services.
You will not share your Username or password.
You will not use this Website in a way that violates any Law.
By using the Website or Services, you agree and consent to the Privacy Policy, and all information we collect, store, disclose, and share.
You will not try to decipher, decompile, disassemble, or reverse engineer the Website.
You agree to be bound by the Terms and Conditions of any giveaway or sweepstakes, as may be amended from time to time by us and posted on the Website. All giveaways and sweepstakes are open Worldwide except where prohibited by local law, entrants must be twenty-one (21) years of age or older. The winner will be responsible for any duty or import fees related to the prize(s). All giveaways and sweepstakes are subject to all applicable federal, state and local laws and regulations and is void where prohibited by law.
You will not setup multiple accounts for any individual or entity in order to send substantially similar content, unless you are part of a franchise operation or have multiple locations, or unless otherwise authorized by us or within the Website.
You will not import or incorporate Social Security Numbers or sensitive personal information of any kind into the Website.
You will not access or utilize this Website in any way in any of the following countries (or access or utilize any internet service provider (“ISP”) that originates from or routes through any of the following countries in any way: North Korea, Chad, Libya, Iran, Mali, Somalia, Yemen, Syria, or any other country designated by the United States as a state sponsor of terrorism, or any other country or region that we may determine from time to time, in our sole discretion, to be prohibited from accessing the Website.
Any breach of this Section will be considered a material breach of this TOS and may result in temporary or permanent suspension or termination of your access to the Websites and Services.
Compliance with Laws. You represent and warrant that your use of the Website will comply with all applicable Laws and regulations. You are responsible for determining whether the Website is suitable for you to use in light of any regulations like EU Data Privacy Laws, PCI-DSS, or other Laws. If you are subject to your country’s laws and you use our Website, we are not liable if our Website does not meet those regulation legal requirements. You agree to fully and completely indemnify us for any claim or cause of action based on your use of the Website in violation of any federal or regional law in any country.If you are located in the European Economic Area (EEA) or send Messages to anyone in the EEA, you represent and warrant that you:
Will clearly describe in writing how you plan to use any data collected. You will get express consent to transfer data to the Website as part of this process, and you will otherwise comply with whatever privacy policy you have posted.
Have complied, and will comply, with all regulations, as well as data protection, electronic communication, and privacy Laws applicable to the countries where you are sending any messages from the Website.
Have collected, stored, used, and transferred all data relating to any individual in compliance with all data protection Laws and regulations. You have permission to allow the Website to receive and process data and send communications to that individual on your behalf.
Agree to indemnify and hold us harmless from any losses, including attorney fees that result from your breach of any part of these warranties.
US Export Controls. The software that supports the Websites is subject to United States export controls and follows all guidelines of the ECR Initiative. No parts of the Websites may be downloaded or otherwise exported or re-exported in violation of United States export Laws.
Reporting Violations. If you become aware that anyone is in violation of this TOS, please notify us immediately.
Limitation of Liability. IN NO EVENT SHALL WE BE LIABLE TO YOU, OR ANY PERSON OR PARTY SEEKING A CLAIM OR ACTION THROUGH YOU, FOR DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE, BUSINESS INTERUPTION, OR SPECIAL DAMAGES, INCLUDING LOST PROFITS, REGARDLESS OF THE FORM OF THE ACTION OR THE THEORY OF RECOVERY, EVEN IF WE OR THE DEVELOPER OF THE SOFTWARE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN ANY CASE, YOU EXPRESSLY AGREE AND UNDERSTAND THAT OUR LIABILITY UNDER THIS AGREEMENT SHALL NOT EXCEED THE TOTAL AMOUNT OF ANY FEES PAID BY US TO YOU RECEIVED BY YOU THROUGH THE WEBSITE DURING THE PREVIOUS SIX (6) MONTHS.
No Warranties. We do not guarantee the availability, accuracy, completeness, reliability, or timeliness of any data or information displayed by the Website. Further, we do not guarantee or represent any specific result or outcome as a result of you utilizing the Website in any way.ALL WEBSITES, SERVICES, ITEMS SOLD THROUGH THE WEBSITE, AND SYSTEMS ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTY OR OBLIGATION TO UPGRADE OR ENHANCE OF ANY KIND. TO THE MAXIMUM EXTENT PERMITTED BY LAW, WE DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, (I) ANY IMPLIED WARRANTIES AND CONDITIONS OF ACCURACY, END USERABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT AND (II) THAT ANY SOFTWARE, DESIGN, OR SYSTEM WILL FUNCTION WITH ANOTHER SOFTWARE, DESIGN, OR SYSTEM, OR THAT IT WILL FUNCTION UNINTERRUPTED OR ERROR-FREE. WE DO NOT REPRESENT THAT ANY OF OUR WEBSITES, WEBSITES FOR SALE ON OUR WEBSITE, SOFTWARE, SERVICES, OR SYSTEMS OF ANY KIND WILL BE FREE FROM LOSS, CORRUPTION, ATTACK, VIRUS, INTERFERENCE, HACKING OR OTHER SECURITY INTRUSION, AND EXPRESSLY DISCLAIM ANY LIABILITY RELATING THERETO.WE DO NOT GUARANTEE YOU, AND SHALL NOT BE HELD LIABLE FOR, ANY REVENUE (OR LOSS OF REVENUE), LEVEL OF EXPOSURE, DOWNLOADS, SALES, SATISFACTION, SUCCESSFUL IMPLEMENTATION, OR INSTALLATIONS WITH RESPECT TO ANY WEBSITE OR SERVICE.
Arbitration Agreement. PLEASE READ THE FOLLOWING PARAGRAPHS CAREFULLY BECAUSE THEY REQUIRE BOTH PARTIES TO AGREE TO RESOLVE SOME DISPUTES THROUGH BINDING ARBITRATION.
Applicability of Arbitration Agreement. Both Parties agree that all claims and disputes (whether contract, tort, or otherwise), including all statutory claims and disputes, arising out of or relating to this TOS or the use of the Websites or Services (except as prohibited under applicable law) will be resolved by binding arbitration on an individual basis, or any dispute in which either Party seeks equitable relief for the alleged unlawful use of copyrights, trademarks, trade names, logos, trade secrets, or patents. To be clear: The phrase “all claims and disputes” also includes claims and disputes that arose between us before the Effective Date of this TOS.
Arbitration Rules. The Federal Arbitration Act governs the interpretation and enforcement of this dispute-resolution provision. Arbitration will be initiated through the American Arbitration Association (“AAA”) and will be governed by the AAA User Arbitration Rules, available here as of the date of this TOS, or by calling the AAA at 1-800-778-7879. If the AAA is not available to arbitrate, the Parties will select an alternative arbitral forum. The rules of the arbitral forum will govern all aspects of this arbitration, except to the extent those rules conflict with this TOS. The arbitration will be conducted by a single neutral arbitrator. Any claims or disputes where the total amount sought is less than $10,000 USD may be resolved through binding non-appearance-based arbitration, at the option of the party seeking relief. For claims or disputes where the total amount sought is $10,000 USD or more, the right to a hearing will be determined by the arbitral forum’s rules. Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Additional Rules for Non-appearance Arbitration. If non-appearance arbitration is elected, the arbitration will be conducted by telephone, online, written submissions, or any combination of the three; the specific manner will be chosen by the Party initiating the arbitration. The arbitration will not involve any personal appearance by the Parties or witnesses unless the Parties mutually agree otherwise.
Fees. As a general rule, Overlay Market shall be responsible for the fees involved in any arbitration process. Provided, however, that if you prevail, in whole or in part, in any arbitration proceeding, or receive any monetary award (for damages or otherwise) as a result of any arbitration proceeding, you and Overlay Market shall share in all fees incurred during the arbitration process (including attorney’s fees) equally.
Authority of the Arbitrator. The arbitrator will decide the jurisdiction of the arbitrator and the rights and liabilities, if any, of you and us. The arbitrator will have the authority to grant motions dispositive of all or part of any claim or dispute. The arbitrator will have the authority to award monetary damages and to grant any non-monetary remedy or relief available to an individual under Law, the arbitral forum’s rules, and this TOS. The arbitrator will issue a written award and statement of decision describing the essential findings and conclusions on which the award is based, including the calculation of any damages awarded. The arbitrator has the same authority to award relief on an individual basis that a judge in a court of law would have. The award of the arbitrator is final and binding upon both Parties.
Waiver of Jury Trial. Arbitration procedures are typically more limited, more efficient, and less costly than rules applicable in court and are subject to very limited review by a court. In any litigation between the Parties over whether to vacate or enforce an arbitration award, BOTH PARTIES WAIVE ALL CONSTITUTIONAL AND STATUTORY RIGHTS TO A JURY TRIAL, and elect instead to have the dispute be resolved by a judge.
Right to Waive. Any rights and limitations set forth in this arbitration agreement may be waived by the Party against whom the claim is asserted. Such waiver will not waive or affect any other portion of this arbitration agreement.
Opt-out. You may opt out of this arbitration agreement. If you do so, neither Party can force the other to arbitrate. To opt out, you must notify us in writing no later than thirty (30) days after first becoming subject to this TOS. Your notice must include your name and address, your business name, email address you used to set up your provision of the Websites or Services, and an unequivocal statement that you want to opt out of this arbitration agreement. You must e-mail your opt-out notice to this address: Overlay Market, LLC info@overlaymarket.com.
Arbitration Agreement Survival. This arbitration agreement will survive the termination of your relationship with us.
Indemnity. You agree to indemnify and hold us harmless from any losses (including attorney fees) that result from any claim resulting from your use of the Website, and any claims you make that are not permitted under the terms of this TOS due to a “Limitation of Liability” or other provision. You also agree to indemnify and hold us harmless from any losses (including attorney fees) that result from any claims that you or someone using your password or accessing your account behaved in a way that allegedly violated any local, state, federal, or international law, or any of provision of this TOS.
Attorney Fees. If we file an action against you claiming you breached this TOS or any Law and we prevail, we’re entitled to recover reasonable attorney’s fees and any damages or other relief we may be awarded.
Third Parties. We are not responsible for the behavior or accuracy of any advertisers, linked Websites, customers or Users, or other Users of the Websites.
Equitable Relief. If you breach any of your obligations under these Terms, then we may seek injunctive or other equitable relief.
Assignments. You may not assign any of your rights under this agreement to anyone else. We may assign our rights to any other individual or entity at any time, at our discretion.
Choice of Law. The State of Florida’s laws, in the United States of America, except for conflict of laws rules, will apply to any dispute related to this TOS or the Website. Any dispute related to this TOS, the Privacy Policy, or the Website itself, unless provided otherwise by Law, will be decided by the state and federal courts located in Duval County, Florida, United State of America, and each Party will be subject to the jurisdiction of those courts.
Force Majeure. We will not be liable for any delay, failure in performance, loss or damages or for any failure of the Website because of circumstances beyond our control. Such circumstances may include, but are not limited to: a natural disaster, act of war or terrorism, riot, labor condition, governmental action, power outage, or internet disturbance.
Severability. If it turns out that a section of this Agreement is not enforceable, that section will be removed or edited, and the rest of the TOS will remain valid.
Headings. The headers and sidebar text are provided only to make this agreement easier to read and understand.
SMS messages. By using the Website, you agree to receive SMS text messages relating to the Website, Services, our Website properties, and other services, Websites, advertisements, offers, and solicitations offered by our affiliates, customers, from us, and other third parties.
Obligations. You will provide all documents and take any actions necessary to meet your obligations under this TOS.
Notification of Security Breach. In the event of a security breach that may affect you, we will notify you of the breach and provide a description of what happened. If we determine, and notify you, that you need to forward all or part of that description any additional party, you agree to promptly forward such information.
Notices. Any notice to you will be effective when we send it to the last email or physical address you gave us or posted in our Website. Any notice from you to us will be effective when delivered to us along with a copy to our legal department.
Entire Agreement. The TOS and Privacy Policy, and any additional terms from any additional documentation you’ve agreed to, embody the entire agreement and understanding of the Parties, and supersede all prior agreements, representations, and understandings. As it relates to the Websites and Services, in the event of any conflict, ambiguity or inconsistency between this TOS and any other document, the terms of this TOS shall govern, unless otherwise stated therein.
Vendor Terms
If you choose to participate in the Website marketplace as a developer or designer, or as any person who uploads or contributes items, Websites, or services for sale or distribution through our Website (each aa “Vendor”), you agree to the following terms governing your interaction with the Website as a Vendor.
Vendor is not an agent or employee of Overlay Market and has no authority to bind Overlay Market by contract or otherwise. Vendor will supply all tools and instruments and any other materials and services required to sell any items through or on our Websites. Vendor will perform the Services in such a manner that at all times, such Services comply with applicable law.
Payment
Subject to the terms and conditions of this Agreement, regarding the sale of any item on our Websites, you shall retain 51% of the total sale price (the “Revenue Share”), with the remainder of the sale price, 49%, retained by us. By your use of the site you agree that this percentage allocation is good and valuable consideration for our effort to create, develop, maintain, and host the Website and provide you with a platform to sell items on our Websites. This Revenue Share is subject to change by us at any time, and additional Revenue Share models may be available to certain Vendors in our sole discretion. Vendors that agree to exclusively sell items on our Websites may receive additional Revenue Share or a different Revenue Share model, in our sole discretion.
We will remit your Revenue Share within approximately thirty (30) days of receiving payment for any sold item through the Website.
Employment Taxes and Benefits. Vendor will report all compensation received by Vendor pursuant to this Agreement. Vendor will indemnify Overlay Market and Client and hold it harmless from and against all claims, damages, losses and expenses, including reasonable fees and expenses of attorneys and other professionals, relating to any obligation imposed by law on Overlay Market or Client to pay any withholding taxes, social security, unemployment or disability insurance, or similar items in connection with compensation received by Vendor pursuant to this Agreement. Neither Vendor, nor any employee or independent contractor of Vendor will be entitled to receive any vacation or illness payments, or to participate in any plans, arrangements, or distributions by Overlay Market pertaining to any bonus, stock option, profit sharing, insurance or similar benefits for Overlay Market’s or employees. Vendor agrees to indemnify, defend and hold Overlay Market harmless from and against any claims or demands made by any employee or contractor of Vendor claiming an entitlement to any compensation or benefits.
Liability Insurance. Vendor will maintain adequate insurance to protect Vendor from the following: (i) claims under workers’ compensation and state disability acts; (ii) claims for damages because of bodily injury, sickness, disease or death that arise out of any negligent act or omission of Vendor; and (iii) claims for damages because of injury to or destruction of tangible or intangible property, including loss of use resulting therefrom, that arise out of any negligent act or omission of Vendor in performing the Services hereunder.
Manner of Performance. Overlay Market will provide no direction to Vendor as to the manner of performing any services or developing or selling an item through or on our Websites. Vendor will determine, in Vendor’s sole discretion, the manner and means by which all services are accomplished, subject to the requirement that Vendor shall at all times comply with applicable law. Overlay Market has no right or authority to control the manner or means by which the Services are accomplished. Vendor will supply all tools and instruments and any other materials required to perform the Services.
Intellectual Property
Any material or information produced under by you in relation to the Websites shall be of original development or licensable by you, as the case may be, and all such material and information shall not infringe or violate any U.S. patent, copyright, trade secret, trademark, or other third-party U.S. intellectual property right, and you shall perform all services in relation to the Website or any User on a professional best efforts basis in a workmanlike and expeditious manner.
Definition of Innovations. All inventions, Websites, designs, drawings, notes, documents, information, documentation, improvements, works of authorship, processes, techniques, know-how, algorithms, technical and business plans, specifications, hardware, circuits, computer languages, computer programs, databases, User interfaces, encoding techniques, and other materials or innovations of any kind that Vendor may make, conceive, develop or reduce to practice, alone or jointly with others, in connection with performing services related to your use of the Website, whether or not they are eligible for patent, copyright, mask work, trade secret, trademark or other legal protection (“Innovations”).
Vendor Ownership of Innovations. Unless an item or project is a custom job or item specifically requested by a User of the Website and coordinated through Overlay Market (“Custom Work”), Vendor and Overlay Market agree that, to the fullest extent legally possible, all Innovations relating to any item sold through or on the Websites shall be owned by you and shall be your sole property.
If any work is designated as Custom Work, Vendor and Overlay Market agree that, to the fullest extent legally possible, all Innovations shall be owned by the specific User of the Website requesting such Custom Work, as applicable (for the purposes of this Section, all references to Overlay Market’s ownership of all Custom Work Innovations shall also apply to the User of the Website requesting such Custom Work). Vendor hereby irrevocably transfers and assigns to Overlay Market, and agrees to irrevocably transfer and assign to the User, all right, title and interest in and to the Custom Work Innovations, including all worldwide patent rights (including patent applications and disclosures), copyright rights, mask work rights, trade secret rights, know-how, and any and all other intellectual property or proprietary rights therein (collectively, “Intellectual Property Rights”).
Moral Rights. Vendor also hereby irrevocably transfers and assigns to the User, and agrees to irrevocably transfer and assign to the User, and waives and agrees never to assert, any and all Moral Rights (as defined below) that Vendor may have in or with respect to any Custom Work Innovations, during and after the term of this Agreement. “Moral Rights” mean any rights to claim authorship of any Custom Work Innovation, to object to or prevent the modification or destruction of any Custom Work Innovation, to withdraw from circulation or control the publication or distribution of any Custom Work Innovation, and any similar right, existing under judicial or statutory law of any country in the world, or under any treaty, regardless of whether or not such right is called or generally referred to as a “moral right.”
Related Rights. To the extent Vendor owns or controls (presently or in the future) any patent rights, copyright rights, mask work rights, trade secret rights, or any other intellectual property or proprietary rights that block or interfere with the rights assigned to the User under this Agreement (collectively, “Related Rights”), Vendor hereby grants or will cause to be granted to the User a non-exclusive, royalty-free, irrevocable, worldwide license to make, have made, use, offer to sell, sell, import, copy, modify, create derivative works based upon, distribute, sublicense, display, perform and transmit any Websites, software, hardware, methods or materials of any kind that are covered by such Related Rights, to the extent necessary to enable the User to exercise all of the rights assigned to the User under this Agreement.
Rights
Proprietary Rights Owned by Us. You expressly agree to respect our proprietary rights in all components comprising the Website. Proprietary rights include, but are not limited to, any patents, trademarks, service marks, copyrights, trade secrets, trade names, and any other intellectual property.
Proprietary Rights Owned by You. You represent and warrant that you either own or have permission to use all of the material you enter into the Website, including but not limited to, your brand, inventory, content, designs, graphics, photographs, videos, messages, and all other information you enter into the Website.
You will not access or utilize this Website in any way in any of the following countries (or access or utilize any internet service provider (“ISP”) that originates from or routes through any of the following countries in any way: North Korea, Chad, Libya, Iran, Mali, Somalia, South Sudan, Mauritania, Yemen, Syria, or any other country designated by the United States as a state sponsor of terrorism, or any other country or region that we may determine from time to time, in our sole discretion, to be prohibited from accessing the Website.
All sales, use, and other tax information are estimates only, may not be accurate, and should not be relied upon for any purpose. You are responsible for the payment of all local, provincial, state, and federal taxes, and should consult a tax professional when calculating your taxes.
As a Vendor, (in additional to all other Terms of Service), you agree and covenant not to:
Create any headquarters, office locations, or rent buildings on behalf of us or in relation to our Websites or brand.
Hang or display any banners or signage regarding your involvement with us, or our Website(s).
Represent yourself as an employee or representative of us in any way.
Hire employees, contractors, or subcontractors to perform any services relating to your use of our Website(s).
Create or maintain any payroll based on your use of our Website(s).
Enter into any contracts, understandings, or agreements on behalf of us.
English 
Português do Brasil