TERMS AND CONDITIONS
Effective Date: June 28, 2012
Last Modified: September 24, 2012
Before utilizing the Site, please read the Terms. As stated above, these documents shall govern Your use of the Site and any services provided to You. You may only use and access this Site in accordance with these Terms. If You do not agree to be bound by these Terms, You may NOT enter this Site and must exit this Site immediately. Your sole and exclusive option if You do not desire to be bound by these Terms is to not use this Site.
Company retains the right to change the content of the Site or these Terms at any time. Any changes made to these Terms shall be effective immediately upon posting. Your continued use of the Site constitutes acceptance of those changes.
General Disclaimer. Nothing contained on the Site shall be construed as a representation to be reasonably relied upon. In no event shall anything on the Site be construed either to create a duty of care or to constitute a representation by Company of any sort to be relied upon by You in any manner whatsoever.
As further set forth herein, Company takes no responsibility for the information contained on any website to which this one may be linked. Furthermore, Company takes no responsibility for any transactions between You and another user that may transpire, if any, via the Site. Moreover, Company takes no responsibility for any communications between users or posted by any user or for actual transactions between users, such as, without limitation, interaction that occurs through the Site or offline. You acknowledge and agree that Your participation in and on the Site, including participation in any Listings (as defined below) or engaging in any private communications with other users is at Your own risk. Company is similar to an Internet Service Provider or Internet message board in that it is simply serving as a passive conduit and does not control the quality, safety or legality of such transactions, nor does it endeavor to determine the truth or accuracy of information posted on the Site, a user’s ability of to sell items or perform services, or a user’s ability to purchase items or services. Company does not guarantee that any transaction will be completed.
Company is not responsible for the conduct of business utilizing information from its Site. You must use caution and be responsible for the inherent risks in dealing with other users or third-parties, whose identities have not been verified, may be under age, may be acting under false pretenses or attempting to defraud others. You agree to accept and assume such risks and acknowledge that Company is not responsible for the acts or omissions of other users or third-parties on the Site.
Content. Company is not responsible for the communications or information contained in any Listings, posts, classified sections or other forum where Members (as defined below) or third-parties may submit the same on the Site. Any content You place on the Site including, without limitation, Member Content, Auction Listings (as defined below) and/or Classified Listings (as defined below) may be publicly available to view by any user or third-party including, without limitation, persons that are not Members of the Site. Company has no obligation to screen in advance, nor is Company responsible for screening or monitoring, the Listings or other content posted on the Site. Furthermore, Company does not endorse any opinions or views expressed by any user of the Site or other third party. Company may, but undertakes no duty to, modify or delete any Listings or other content submitted to the Site for any reason, in its sole discretion. Company may expel You and prevent Your further access to parts of, or the entire, Site for any reason, including without limitation, violating the Terms, applicable law, rule or regulation, engaging in conduct that is abusive, illegal or disruptive, or otherwise posing a potential liability for Company.
MEMBERSHIP OF SITE
Membership. You may elect to create an account with the Site, whereby You become a member. In order to place Auction Listings or Classified Listings on the Site, or bid on Auction Listings (as those terms are defined herein), You must be a member of the Site. Moreover, members posting on Auction Listings or Classified Listings must accept the terms and conditions of the Seller Agreement.
Membership Account. To become a member of the Site, You may have to provide Company with certain information including, without limitation: name, username, email and password (collectively, the “Membership Account”). You will not use a username or undertake any other action or communication that would tend to give the impression that You are another person or entity or are acting on their behalf. The Site reserves the right to prohibit or terminate Your Membership Account because of the use of usernames that the Site, in its sole discretion, deems inadvisable.
You are responsible for maintaining the confidentiality of Your Membership Account information. You acknowledge and agree that in order to become a Member, Company, in its sole discretion, may require You to provide it with Your mailing address as a pre-condition to becoming a member and participating in the Site. Company reserves the right, in its sole discretion, to verify Your mailing address. You shall be responsible for all uses of the Membership Account on the Site, whether or not authorized by You. Notwithstanding the foregoing, if You learn of any unauthorized use of Your Membership Account, You shall immediately notify Company thereof.
Without limitation, Company may cancel a Membership Account and/or other access to the Site at any time, for any or no reason.
Fees. There is currently no membership fee (“Membership Fee”) for the use of this Site, nor a fee to bid on Auction Listing. There are fees associated with the placement of Auction Listings or Classified Listings (“Listing Fee”) on the Site, which are further outlined in the Seller Agreement. Company maintains the right to change any of its fees, or implement new fees, at any time and in its sole discretion.
Moreover, if You utilize the Site or the Listings to purchase an item You may utilize an independent, third party service provider for the processing of payments, such as PayPal and/or Google Checkout (“Payment Processor”). You shall be responsible for reviewing the terms and conditions of the user agreement with the Payment Processor, which may include, but not be limited to, the way the Payment Processor collects information, the manner in which they process payments and the duties and obligations that You have with the Payment Processor.
If You believe that You have been mistakenly billed, You have the duty and obligation to notify the Payment Processor immediately of such error, or otherwise follow the applicable protocols outlined within the Payment Processor’s terms. You hereby acknowledge and agree that Company is not liable or responsible for any act or omission of Payment Processor or any other user of the Site and You release the Site and Company from all liabilities and claims of loss resulting from any error or discrepancy in billing and from any other act or omission of the Payment Processor or the Seller.
Any complaints or disputed sales shall strictly be handled through the Payment Processor’s complaint procedures. Without limitation, You acknowledge and agree that Company has no obligation in this regard, and need not intercede in any such transaction on Your behalf. Moreover, You specifically release and waive any claim against Company arising out of or otherwise related (whether directly or indirectly) to a dispute between You and the Payment Processor.
Content Posted on the Site. You grant an irrevocable, perpetual, non-exclusive, fully compensated, sublicensable, worldwide license to use any content You include on the Site including all copyright and trademarks. This includes any and all information contained within a Listing. You represent to Company that You have all rights in and to the material You include on the Site or within a Listing.
You promise and affirm that You will not post on this Site or send to any Site user defamatory, inaccurate, offensive, obscene, profane, threatening, harassing or illegal materials, or materials that infringe upon another party’s rights (including, but not limited to, intellectual property rights). If Company finds that any content You provide falls into one of the above categories, it may, but shall not be obligated to, modify or delete the content or the Listing it is contained within, in whole or in part, at any time, in our sole discretion.
Your use of any other images displayed on the Site is strictly prohibited. Any unauthorized use of the images may violate copyright laws, trademark laws, the laws of privacy and publicity and communications regulations and statutes. Notwithstanding the foregoing, Company does not claim any ownership rights in the text, images, photos or other materials (“Member Content”) that are posted by You. Rather, all such rights shall be retained by You, to the extent that You have such rights under applicable law. You acknowledge and agree that Company’s acknowledgement of Your right to the intellectual property rights in Your Member Content does not constitute a legal opinion or legal advice, but rather, is intended solely as an expression of Company’s intention to not require You to forego certain rights or assign certain rights to Company with regard to the Member Content, subject to these Terms. However, by submitting suggestions, ideas, comments or questions, or displaying, posting or publishing any Member Content on the Website, You are expressly granting the Company a non-exclusive, worldwide, fully-paid, royalty-free, perpetual, irrevocable and fully sublicensable and transferable, limited license to modify, use, adapt, translate, create derivative works from, publicly perform, publicly display, republish, rebroadcast, transmit, retransmit, promote, reproduce, exploit and distribute Your Member Content in any form, media or technology now known or hereinafter discovered or created. Moreover, as otherwise set forth herein, by submitting or posting Member Content to the Site, You represent and warrant that You have the right or authority to submit said content, and that no aspect of the Member Content, or the posting thereof, shall violate the rights of any third party. This shall include, without limitation, copyrights, contract rights, trademark rights, rights of privacy, rights of publicity or any other rights of any third party. Without limitation, Company takes no responsibility and assumes no liability for any of the Member Content. Company shall have the right, but not the obligation to remove any and all Member Content for any or no reason, and without notice to You. You further grant all other Members or third-party users of the Site non-exclusive access to Your Member Content through the Site, and to use, reproduce, distribute, display and perform such Member Content as permitted through the functionality of the Site and under these Terms. Moreover, as otherwise set forth herein, You represent and warrant that You have all right and title in and to the Member Content, and that no aspect of the Member Content, or the posting thereof, shall violate the rights of any third party. This shall include, without limitation, copyrights, contract rights, trademark rights, rights of privacy, rights of publicity or any other rights of any third party. Without limitation, Company has no responsibility and assumes no liability for any Member Content.
Termination. You may cancel Your Membership Account at any time, by following the links to Customer Support and providing a notice of Your intent to cancel the Membership Account along with Your username and the e-mail address on record.
However, Your Membership Account shall not be terminated until any Listings upon which You have bid are closed. If You are awarded a bid after You send notice terminating Your account, You must still complete the purchase of the awarded product. All bids are binding and irrevocable offers to purchase. Once, Company has determined that all of Your bids have been awarded and Listings on which You have bid have closed, Company will terminate Your Membership Account.
Once Your Membership Account is terminated, You will not be able to log into the Site, bid on any Auction Listings or post any Listings. If You change Your mind and would like to reactivate Your Membership Account, You should email Company at email@example.com and Company may then reactivate Your account at its sole discretion. You should only utilize one username on the Site. If Your Membership Account has been terminated, You should not open a new Membership Account with a new username. In order to utilize all aspects of the Site, You must reactivate Your Membership Account.
In the event that You cancel Your Membership Account, these Terms and the agreement created hereunder, including, without limitation, the grant of rights incorporated herein, will nevertheless remain in full force and effect.
An auction listing (“Auction Listing”) is an announcement for the sale of a product, which shall act as a platform where buyers can bid on the product, with the highest bidder generally, but with exceptions, being awarded the product. Sellers may place an Auction Listing, which may include a product listing, a minimum bid that will be accepted by the seller, product transfer information, the time period for which the bid will be open and the seller’s preferred payment method. If a buyer would like to bid on the product, the buyer may place a bid that is greater than the highest previous bid, by entering the price they would pay for the product. At any time the buyer may enter a new bid with a greater purchase price. A buyer may bid as many times as he likes until the close of the Auction Listing.
A bid shall be considered a binding and irrevocable offer to purchase. This means that if You win an auction or are awarded the product, You must purchase the product for the price You bid. You must conduct any investigations or due diligence that You deem necessary or recommended to evaluate the Auction Listing, the fairness of the price, the quality of the product being offered in the Auction Listing, and the reliability of the proposed seller, before submitting Your bid. You will not be allowed to renegotiate the purchase price, cancel the agreement or decline to purchase the product. By placing a bid, You are agreeing to comply with any and all of the terms conveyed by the Seller in connection with the Auction Listing, even if these terms were not dictated by the Seller in the Auction Listing, but were later articulated by the Seller. These terms may include, but are not limited to, all specifics regarding payment including, without limitation, whether or not all or part of the payment must be paid immediately after the Auction Listing closes and/or prior to shipment; the time-frame within which payment is to be received by Seller; shipping terms; and any other terms that Seller dictates in the Auction Listing. By placing a bid, You are accepting all the terms of the Auction Listing.
Before placing a bid or agreeing to buy a product, You should carefully review all of the seller’s terms contained within that Listing and understand the product description. Many disputes occur because the parties misunderstand what is being transferred. In order to prevent any confusion it is important to carefully review and understand the entire Listing. If You do not understand part of an Auction Listing or have a question about the Auction Listing, You should contact the seller before placing a bid.
As set forth above, by entering a bid, You are agreeing to pay the amount You have bid and are deemed to have accepted any terms and conditions listed in the Auction Listing. If You disagree with a term or cannot comply with one of the terms listed in the Auction Listing, You should not place a bid. Without limiting Company’s general right to terminate a Member, You acknowledge that, as a buyer, Your Membership Account may be suspended or terminated if You fail to pay for a product or otherwise meet the standards articulated in an Auction Listing.
You may not retract a bid. When You place a bid, You form a binding, irrevocable offer to buy the product.
Notwithstanding the foregoing, You acknowledge that the Seller has the unfettered right to accept or reject a bid, including, without limitation, the highest bid. In other words, Sellers shall not be obligated to finalize a sale pursuant to an Auction Listing, including with the highest bidder. Moreover, Sellers may elect to extend the Auction Listing and/or terminate it early. Sellers may also reject a bid and relist the product that is subject to that bid in the same or different Auction Listing. You hereby consent to the same, even if it prejudices Your rights to purchase the product featured in the Auction Listing.
You shall not knowingly bid on an item You are selling, or bid on an item Listed by family members, employees, agents, representatives or any companies owned or controlled by You. You should not assist, request or entice others to do so on Your behalf. Company may elect, in its sole discretion, to terminate or suspend your Membership Account and use of the Site if You are found to have placed a Fraudulent Bid (as defined below). Without limitation, Company considers a bid on a product made with the intent of trying to raise the selling price of the product without the intention to purchase the product and to be a fraudulent bid (“Fraudulent Bid”). Further, these types of bids are illegal in many places and may result in criminal charges.
A classified listing (“Classified Listing”) is an announcement for the sale of a product, which shall be used to connect buyers and sellers. A buyer may review the Classified Listing; and if he is interested in purchasing the product described in the Classified Listing, contact the seller. A seller may include within the Classified Listing a description of the product, a price for the product, the preferred payment method and a way to contact the seller. Once contacted, the buyer and seller will negotiate the terms and conditions of the sale of the product. It will be up to the buyer and seller to come to an agreement regarding the terms of the sale. Until the buyer and seller mutually determine that an agreement to purchase the product has been reached, neither party is bound to purchase or sell the product. Buyer acknowledges that a seller may negotiate with several buyers at once.
Buyer may send any questions or inquiries to the sellers regarding any Auction Listings or Classified Listings (collectively herein “Listings”) through the Site. You, in your capacity as a buyer may select to have its question or inquiry displayed publicly or privately. If You select to have Your question or inquiry displayed publicly, You acknowledge and agree that the question or inquiry and the seller’s response to same may be displayed on the Website in connection with the Listing.
Company is not a party to any Auction Listings or Classified Listings or any of the resulting transactions. As such, Company will not assist in resolving any disputes between the parties. Your participation in the Site or in purchasing an item through a Listing is at Your own risk, and is solely between You and the seller. Company does not endorse, warrant, guarantee or assume responsibility for any product or service advertised or offered by a seller or any third party, including, without limitation through a Listing. Company shall not be a party to, or in any way responsible for, monitoring transactions between You and other Site users. Moreover, and without limitation, Company assumes, and has, no liability, obligation or responsibility for any part of such communications, including without limitation, where a Site user perpetuates fraud through a Listing. You hereby waive and release Company from any and all claims that You may have against Company arising out of a Listing or other communication or business dealing with another Site user. Without limitation, and without limiting any limitation of liabilities otherwise provided herein, You acknowledge and agree that Company shall have no liability whatsoever for any damages, direct, special, incidental, special, treble, exemplary, indirect, consequential or otherwise, loss of profits, anticipated revenue, savings, clients or goodwill, or other economic loss arising out of Your response to a Listing or Your other use of the Site.
In light of the international scope of the Internet, You agree to comply with all local laws, rules and regulations, including but not limited to those applicable to online conduct and acceptable Internet content when using the Site, including when bidding on an Auction Listing or responding to a Classified Listing. Without limitation, You acknowledge and agree that You shall comply with all applicable laws and regulations regarding the transmission of technical data from the United States or the country in which You may reside. In the event that You are located outside the United States, You acknowledge and agree that You, and not Company, are responsible for ensuring that any products or services that You may purchase through or in connection with the Site are permitted to be imported into the country in which You are located.
Company will not assist You with the negotiations of a transaction or help You resolve a dispute with a seller. All refunds and returns must be coordinated between the buyer and the seller. Further, if a seller fails to deliver You the product You bought, Your suggested recourse is to attempt to recover Your payment for the product from the seller and/or adhere to the protocols set forth by the applicable Payment Processor. Company will not reimburse You for any payments You make for a product You do not receive. Company is not a party to the transaction and will not help You resolve any issues resulting from the transaction.
Buyers and Sellers will be permitted to rate one another via the Site’s rating system. A rating should be based upon a transaction or attempted transaction with the other person or entity that You are rating. You acknowledge and agree to rate the other party honestly. The rating system will be based on a five (5) star rating system, with one (1) star being the poorest rating, and a five (5) star being the best rating. Each participating user will be notified regarding the transaction upon which another party has rated it. In addition, You further agree that you will not utilize the rating system in a manner that is inaccurate, untruthful, fraudulent and/or in bad-faith including, without limitation, rating Yourself and/or rating competitors with whom you were not involved in a transaction. By entering into a transaction, You acknowledge and agree that You make Yourself available to be rated via the star-rating system, and You fully authorize anyone involved in a transaction with You to provide a star-rating about You. You forego all standing to make a claim of defamation or raise any other related issues with respect to the manner in which you were rated. If You choose to rate another Site user via the star-rating system or provide comments based upon your interactions with that user, You must do so within one hundred and twenty (120) days from the date of Your transaction with that user. If You fail to do so within this period of time, You will no longer have the opportunity to rate or otherwise comment upon the user involved in that transaction. You covenant and agree, represent and warrant that all information provided, and any information that You will provide, is and will be truthful and accurate to the best of Your knowledge. You agree not to represent any other user in a false light. By providing ratings and any comments, You waive any and all privacy expectations that You may have in and to that rating or comment, and authorize the Site to freely use the same.
Moreover, in connection with the ratings, You shall not (a) trade reviews or positive ratings with other businesses; (b) accept compensation, in the form of monetary or non-monetary compensation, for providing or removing a certain rating; or (c) rate any other Site user unless you engaged in business with that user through the Website.
Furthermore, by entering into a transaction on the Site, You agree to make yourself subject and susceptible to other users providing other feedback and/or comments regarding You, which may or may not be public and viewed by other users and/or Members of the Website. Further, You may also provide feedback and/or comments about a particular Buyer or Seller, which may or may not be public and viewed by other users and/or members of the Website. You acknowledge and agree that Company may, in its complete and sole discretion, delete and/or remove any Your feedback and/or comments. You further acknowledge that Company is not responsible for the ratings You may receive. You further acknowledge that Company is not responsible to improve the ratings. You acknowledge that You are solely responsible for any damage caused by the users’ ratings, feedback and/or comments and You accept this risk of such damage. You further acknowledge and agree to forego any standing to make a claim of defamation, libel or any other related issues in connection with the ratings, feedback and/or comments provided by other users.
RESTRICTIONS ON USE OF SITE
You may not, without the express prior written authorization of Company:
(a) access the Site more than ten (10) times a day.
(b) restrict any other visitor from properly using the Site, including without limitation, by way of “computer hacking” or otherwise altering the software or functionality of the Site and its underlying programs;
(c) imply that any of Your statements are endorsed by Company, or that You are otherwise associated with Company in any manner;
(d) solicit, buy, sell, share or otherwise disseminate any of information relating to Your Member Account, including, without limitation, Your username, password, or other personal information or of any other user;
(e) use the Site if You are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from the Site;
(f) transmit any content or information that is unlawful, fraudulent, threatening, abusive, libelous, defamatory, indecent, obscene, pornographic or otherwise objectionable (as judged in the discretion of Company);
(g) use the Site to initiate or further any illegal activity, which includes but is not limited to, the sale of stolen goods or money laundering;
(h) transmit any non-public information about any person or entity without the proper authorization to do so or with regard to the Listings and the specific advertisements allowed therein based on the terms of the Seller Agreement;
(i) transmit any advertisements, solicitations or any unsolicited communication without Company’s express permission to do so;
(j) revise, modify, reverse engineer or in any way alter any portion of the Site or its contents;
(k) “frame” or “mirror” any part of the Site;
(l) utilize any device to enable You to circumvent the structure of the Site and/or spam or flood the site;
(m) collect or store any information about visitors to the Site;
(n) deliver, or provide links to any postings without the prior written permission of Company, including, without limitation, to any materials which are deemed, in Company’s sole discretion to be harmful, lewd, obscene, violent, insulting, threatening, hateful or otherwise objectionable;
(o) impersonate any other person and/or falsely state or otherwise misrepresent that You have an affiliation with any other person or entity, or otherwise mislead, deceive or defraud Company or any other party or any other party, including without limitation, utilizing another person’s username, password Member Account information or another person or entity’s name, brand indicia, logo, likeness, voice, image or photograph;
(p) create a database utilizing any information found within the Site.
(q) duplicate, create derivative works of or otherwise violate the copyright of this Site;
(r) utilize the Site in an unauthorized manner, or in a manner which violates any legal or regulatory proscription or requirement, any third party rights or the policies outlined in these Terms;
(s) utilize the Site in a manner that is harmful to Company or any other person or entity;
(t) utilize any information that You gain as a resulting of using the Site to illegally or improperly violate another person’s or entity’s privacy rights;
(u) utilize any of the Company’s trademarks as metatags on other websites or otherwise use the Company’s trademarks for Your own advertising or pecuniary gain, including without limitation utilization as Google® AdWords;
(v) remove, alter or amend any copyright or other proprietary notices from this Site;
(w) infringe upon the intellectual property rights of Company or a third party;
(x) circumvent any encryption or other security tools used anywhere on this Site (including but not limited to the theft of usernames and passwords or using another person's username and password in order to gain access to any area of this Site);
(y) sell, rent, lease, license, sublicense, transfer, distribute, re-transmit, time-share, use or otherwise assign to any third party any of Your rights to access and use the Site or services as granted in these Terms;
(z) interfere with an Auction Listing or Classified Listing, including but not limited to forging or otherwise manipulating the price listed for an item, any prices listed in bids or the sale terms in a Listing;
(aa) circumvent, undermine or interfere with the rating system; and
(bb) use any robot, spider or other intelligent agent software or device to access or monitor the Site in any manner.
As part of the Company community, You agree to cooperate with the Company in preventing any unauthorized use of the Site. If You recognize or incur any problems using the Site, any violations of these Terms or any offensive content, please contact the Company.
Abuse of the SITE
If, in Company’s sole discretion, it determines that You are creating potential liabilities, or acting inconsistently with these Terms, Company may, without limitation, limit, suspend or terminate Your Membership Account, prohibit access to the Site, remove any of Your Listings and/or take technical and legal steps to keep You off the Site. You otherwise acknowledge and agree that Company may or may not take these actions in Company’s sole discretion and that it shall not be obligated to do so. Company reserves the right to investigate and take appropriate legal action against any violation of these Terms. Notwithstanding the foregoing, You acknowledge and agree that Company can terminate Your right to use this Site or any portion thereof at will, without notice and without cause. Such termination may be exercised by Company in addition to any other rights and remedies that Company may have available to it, and without any liability whatsoever.
You further understand and agree that if Your Membership Account is suspended or terminated, You may not create a new Membership Account or use another Membership Account to avoid the restrictions or limitations.
You acknowledge and agree that Company shall not be liable to You or to any other person or entity for any claims related to the termination or suspension of Your or any other party’s use of the Site. You hereby make the material representation, upon which You agree Company may and will rely, that: (i) You are at least 18 years of age; (ii) You are a resident of the United States; (iii) You are authorized to register with the Site and/or provide information to the Site; and (iii) You are bound to that registration and Company’s applicable cancellation policies.
From time to time the Site may undergo maintenance or become unavailable due to unforeseen reasons (“Down Time”). You acknowledge and agree that Company assumes no responsibility and shall not be liable for any loss or damage, including but not limited to loss of profits, anticipated revenue, savings or goodwill, or other economic loss arising out of or in any way connected with the Down Time.
Company Ownership. You acknowledge that Company has common ownership with and/or is otherwise related to T&R Electric Supply, Inc. (“T&R Electric”), Colman Transportation, Inc. (“Colman”), and Colman Logistics, Inc. (“Colman Logistics”) and may be users of the Site. T&R Electric specializes in rewinding and reconditioning power and distribution transformers and selling the same. Company will operate as an open marketplace for the buying and selling of transformers and surplus electrical equipment for purposes including but not limited to direct sales, reselling, brokered sales, surplus inventory and scrap/salvage operations. Colman provides transportation services and is one of the shipping options offered to Site users. Colman Logistics is a brokerage company that is used to hire other companies’ trucks to haul freight. You consent to T&R Electric, Colman and Colman Logistics being users and members of the Site and further acknowledge and agree that (a) such use and membership does not conflict and/or contradict with any representations of Company; and (b) Company is not a party to any Auction Listings or Classified Listings or any of the resulting transactions. As such, You further acknowledge and agree that Company shall not in any way be liable for the acts or omissions of T & R Electric, Colman and/or Colman Logistics and T & R Electric, Colman and/or Colman Logistics shall not in any way be liable for the acts or omission of Company.
California Residents. Pursuant to California Civil Code Section 1789.3, California residents are hereby advised of the following: (a) Company is located at 301 South Florence Avenue, PO Box 174, Colman, South Dakota 57017 and can be reached via telephone at 605-684-2104; (b) these Terms have provided you with advance notice of any applicable charges resulting from or related to Your use of the Site or its services; (c) consumers may contact Company at the address or telephone number indicated above to resolve a complaint or receive further information regarding any aspect of the services provided by the Site; and (d) 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 Boulevard, Suite N 112, Sacramento, California 95834 or via telephone at 800-952-5210.
Member Disputes. You are solely responsible for Your interactions with other users. Company reserves the right, but shall have no obligation, to monitor or otherwise involve itself in any disputes among users.
Copyrights; Restrictions on Use. With the limited exception of Your Member Content, the Site and the materials contained in it are copyrighted by Company, its affiliates or its licensors under United States and international copyright laws, are subject to other intellectual property and proprietary rights and laws, and are owned by, or licensed to, Company, its affiliates or its licensors. Neither, the Site nor any of the materials contained in it may be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale or redistributed in any way without the prior written permission of Company and its applicable licensors.
Copyright Infringement. It is the policy of Company to respond expeditiously to claims of copyright infringement. Company will promptly process and investigate notices of alleged infringement and will take appropriate action under the Digital Millennium Copyright Act (“DMCA”) and other applicable intellectual property laws. Company may elect to terminate access for any user who it believes in its sole discretion to be an infringer, regardless of whether proven or not.
The sole and exclusive protocol for notifying Company of an infringement upon a third party’s intellectual property is to provide written notice (“DMCA Notice”) to Company as set forth herein or as otherwise provided by the DMCA, as it may be amended from time to time. The DMCA Notice must include (i) the signature of a person authorized to act on behalf of the owner of the copyright interest (“Copyright Owner”); (ii) a description of the copyrighted work that is believed to have been infringed upon; (iii) a description of precisely where the alleged infringing work is located on the Site; (iv) the Copyright Owner’s mailing address, telephone number and email address; (v) a statement by the Copyright Owner that it has a good-faith belief that the disputed use is not authorized by the Copyright Owner, its agent, or the law, or is not otherwise being conducted by another authorized owner or licensee of the work; and (vi) a statement by the Copyright Owner, made under penalty of perjury, that the information set forth in the submitted written notice is accurate and that it is the Copyright Owner or is authorized to act on the Copyright Owner's behalf. The DMCA Notice should be immediately delivered to Company by certified mail return receipt requested or by commercial carrier at the address set forth below in the “Notices” provision and directed to the attention of the “Copyright Agent.” You acknowledge and agree that Your failure to properly comply with the requirements of the law and/or this provision may make Your DMCA Notice invalid.
Trademarks. Certain names, logos and materials displayed on the Site constitute trademarks, tradenames, service marks or logos of Company or other related entities ("Marks"). You are not authorized to use any such Marks or any variations thereof. Ownership of all such Marks and the goodwill associatedtherewith remains with Company or other related entities.
It is the policy of Company to respond expeditiously to claims of trademark infringement. Company will promptly process and investigate notices of alleged infringement and will take appropriate action under the protocol set forth herein and applicable intellectual property laws. Company may elect to terminate access for any user who it believes in its sole discretion to be an infringer, regardless of whether proven or not.
The sole and exclusive protocol for notifying Company of an infringement upon a third party’s Marks is to provide written notice to Company as set forth herein, as this document may be amended from time to time. The written notice must include (i) the signature of a person authorized to act on behalf of the owner of the Mark (“Mark Owner”); (ii) a description of the Mark that is believed to have been infringed upon; (iii) a description of precisely where the alleged infringing Mark is located on the Site; (iv) the Mark Owner’s mailing address, telephone number and email address; (v) a statement by the Mark Owner (a) that it has a good-faith belief that the disputed use is not authorized by the Mark Owner, its agent, or the law, or is not otherwise being conducted by another authorized owner or licensee of the Mark and (b) setting forth in detail how the Mark is being utilized in an infringing manner; and (vi) a statement by the Mark Owner, made under penalty of perjury, that the information set forth in the submitted written notice is accurate and that it is the Mark Owner or is authorized to act on the Mark Owner's behalf. The written notice should be immediately delivered to Company by certified mail return receipt requested or by commercial carrier at the address set forth below in the “Notices” provision and directed to the attention of the “Mark Agent.” You acknowledge and agree that Your failure to properly comply with the requirements of this provision may make Your written notice invalid.
Communications. Company MAKES NO GUARANTEE OF CONFIDENTIALITY OR PRIVACY WITH REGARD TO ANY COMMUNICATION MADE BY OR THROUGH THE SITE, WHETHER TO Company, THROUGH A POST TO THE SITE OR TO ANOTHER USER. Company specifically reserves the right, and You hereby authorize Company, to monitor transmissions over the Site and its related networks for maintenance, service, quality control assurance or any other purpose permitted by the Electronic Communications Privacy Act, 18 U.S.C. §2701, et. seq. Company takes no responsibility for information sent to it that is intercepted by third-parties.
Notices. All notices or other communications to Company, if any, that are to be given under these Terms must be in writing in English, which shall be delivered to the address set forth below by way of either personal delivery, certified mail, return receipt requested, two-day mail or overnight mail by a commercial carrier. Notices to Company shall be deemed given only upon receipt. Notices to Company shall be addressed as set forth below unless it changes the address in writing by updating these Terms.
The address for giving notice to Company is as follows:
KVA Network, Inc.
301 South Florence Avenue
PO Box 174
Colman, South Dakota 57017
Notices to You may be provided by Company via email or any other address which Company reasonably believes to be associated with You. Notice shall be deemed effective upon sending of the same by Company. Moreover, and without limiting the foregoing, by using the Site, You acknowledge and agree that You are communicating with Company electronically, and consent to receive communications from Company electronically. Company may communicate, and provide effective notice to You, by sending You emails or by posting notices on the Site. You acknowledge and agree that all agreements, notices, disclosures and other communications that Company may provide to You electronically are effective; satisfy any legal requirement that such communication be in writing; and shall be deemed delivered to You.
Indemnification. You agree to indemnify, hold harmless and defend Company, its parent companies, subsidiaries, related entities and affiliates, and any of their members, shareholders, directors, officers, employees, attorneys, representatives or agents of any of the foregoing (collectively with Company, the “Company Parties”) with respect to any claim, demand, cause of action, debt, liability, damages, costs or expenses, including reasonable attorneys’ fees and expenses of the Company Parties’ selected attorney(s), relating directly or indirectly to (i) Your infringement of any intellectual property of any person or entity, including without limitation, patents, trade secrets, copyrights, trademarks, service marks, trade names or similar proprietary rights; (ii) any failure by You to comply with these Terms; (iii) Your use of the Site; (iv) Your defamation, libel, slander or other tortious act against a third party; (v) a breach of any representations, guarantees, covenants and/or warranties provided by You to another user; and/or (vi) any act or omission or willful misconduct by You that results in a claim for breach of any representations, warranties or covenants made herein against any of the Company Parties. You acknowledge and agree that the Company Parties may select and utilize their own attorneys in their sole discretion.
Attorneys’ Fees. If any of the Company Parties undertake any action to enforce these Terms, such party will be entitled to recover from You, and You hereby agree to pay, any and all attorneys’ fees and any costs of litigation, in addition to any other relief at law or in equity to which such party may be entitled. In such event, Company Parties shall be entitled to recover all costs including both actual pre-judgment and post-judgment attorneys’ fees and costs, involved directly or indirectly in its enforcement efforts, whether or not it does so through institution of formal legal proceedings.
Protection of Children. No one under the age of eighteen (18) is permitted to use the Site without the involvement of a parent or guardian. If You are a parent and believe Company may have inadvertently collected such information from Your child, please notify Company immediately by sending an email to firstname.lastname@example.org. Moreover, You should be aware of the fact that parental control protections (such as computer hardware, software or filtering services) are commercially available that may assist You in limiting access to material that it considers to be harmful to minors. For convenience sake only, examples of some such protections are listed below. However, as otherwise set forth herein, Company does not accept any liability for the products and services provided by any third parties. Nor does the following listing constitute, in any way, an endorsement of these products by Company. Rather, it is being provided only as an example and for Your convenience.
· Net Nanny – available at http://www.netnanny.com
· SafeEyes – available at http://www.internetsafety.com/safe-eyes
· Bsecure Online – available at http://www.bsecure.com
Communications Decency Act. As a user of the Site, You acknowledge and agree that Your participation in and on the Site is at Your own risk. Company takes no responsibility for the Listings posted by You or other Site users or for any communications about You or between You and other users of the Site. You acknowledge that Company in its operation of the Site is simply serving as a passive conduit and does not control the quality, safety or legality of any interactions between users of the Site, or any information posted by any persons or entities on the Site, nor does it endeavor to determine the truth or accuracy of any messages posted by third parties or any other information. Accordingly, You agree that Company shall be entitled to the immunities afforded to an Interactive Computer Service under the Communications Decency Act, 47 USC § 230, as it may be amended.
DISCLAIMER. You explicitly agree that use of the Site including without limitation, the Listings is at Your own and sole risk. The Site and all materials contained therein are provided "AS IS," without warranty of any kind, either express or implied, including but not limited to, any implied warranties of merchantability, fitness for a particular purpose, title or non-infringement. Neither the Site nor Company make any representations or warranties that the Site will operate in a timely, secure or error free manner; nor does the Site or Company make any representations or warranties as to the quality, fitness, truth, accuracy, currency, reliability or wholeness of the Site or any of the materials contained herein, including without limitation, the Listings. The Site may be modified or discontinued at any time with or without reason and with or without notice to You, without liability to You or any third party. Furthermore, neither does the Site nor Company make any warranty as to the results that may be obtained from the use of the Site. You also understand and agree that any material and/or data downloaded or otherwise obtained through the use of the Site or any of the Listings contained therein is done at Your own discretion and risk. You will be solely responsible for any damage to Your computer system or loss of data that results from the download of such material and/or data. You understand that Company cannot and does not guarantee or warrant that files available for downloading from the Internet will be free of viruses, worms, Trojan horses or other code that may manifest contaminating or destructive properties. Company makes no warranty regarding any use or disclosure of confidential or private information You may provide. Company may change any of the Terms found on the Site at any time without notice. Company makes no commitment to update or keep current the information found on the Site. The warranties and representations set forth in these Terms, IF ANY, are the only warranties and representations with respect to your use of the site AND THE TRANSACTIONS conducted as a result of your use of the site. There are no other warranties, written or oral, express or implied, that may arise either by agreement between You and Company or by operation of law, including without limitation warranties of merchantability and fitness for a particular purpose, all of which are hereby specifically disclaimed. Some jurisdictions do not allow the elimination of certain warranties, so some of the above exclusions may not apply to You. However, this shall be limited and only those prohibited by that jurisdiction shall be excluded and severed from the remainder of the other warranties, limitations and exclusions which shall remain in full force and effect to the maximum extent permitted by law.
Further, Company is not responsible for Your conduct or the conduct of any other users, whether online or offline. Under no circumstances shall Company be responsible for any loss or damage, including, without limitation loss of profits, anticipated revenue, savings or goodwill, or other economic loss, emotional distress, other personal injury or death, resulting from the use of the Site or the conduct of You or any other users, whether online or offline.
Limitation of Liability. Company ASSUMES NO RESPONSIBILITY, AND SHALL NOT BE LIABLE FOR, ANY DAMAGES TO, OR VIRUSES THAT MAY INFECT, YOUR COMPUTER EQUIPMENT OR OTHER PROPERTY ON ACCOUNT OF YOUR ACCESS TO, USE OF OR BROWSING IN THE SITE OR YOUR DOWNLOADING OF ANY MATERIALS, DATA, TEXT, IMAGES, VIDEO OR AUDIO FROM THE SITE. EXCEPT WHERE SPECIFICALLY REQUIRED BY LAW, IN NO EVENT SHALL Company BE LIABLE FOR ANY INJURY, LOSS, CLAIM, DAMAGE OR ANY SPECIAL, EXEMPLARY, PUNITIVE, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, BUT NOT LIMITED TO LOST PROFITS OR LOST SAVINGS), WHETHER BASED IN CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR OTHERWISE, WHICH ARISE OUT OF OR ARE IN ANY WAY CONNECTED WITH (I) ANY USE OF THIS SITE OR CONTENT FOUND HEREIN, (II) ANY FAILURE OR DELAY (INCLUDING, BUT NOT LIMITED TO THE USE OF OR INABILITY TO USE ANY COMPONENT OF THIS SITE FOR COMMUNICATING WITH OTHER USERS, PlACING A LISTING, RESPONDING TO A LISTING OR THE INTERRUPTION OF SITE ACCESS OR AN AUCTION LISTING), OR (III) THE PERFORMANCE OR NON-PERFORMANCE BY Company, INCLUDING, BUT NOT LIMITED TO, NON-PERFORMANCE RESULTING FROM BANKRUPTCY, REORGANIZATION, INSOLVENCY, DISSOLUTION OR LIQUIDATION, EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF DAMAGES TO SUCH PARTIES OR ANY OTHER PARTY.
If, notwithstanding the foregoing, Company should be found liable for any loss or damage which arises out of or is in any way connected with any of the above described functions or uses of the Site, or any of Company’s goods or services, Company’s liability shall in no event exceed US$100.00. Some states do not allow limitations of liability, so the foregoing limitation may not apply to You.
Release. BY UTILIZING THE SITE, YOU HEREBY RELEASE, REMISE AND FOREVER DISCHARGE AND GIVE UP ANY AND ALL CLAIMS AND RIGHTS WHICH YOU MAY HAVE AGAINST Company, ANY OF THE COMPANY PARTIES, AND THEIR AFFILLIATES, PARTNERS, SERVICE PROVIDERS, VENDORS AND CONTRACTORS AND EACH OF THEIR RESPECTIVE AGENTS, ATTORNEYS, SHAREHOLDERS, DIRECTORS, OFFICERS, MEMBERS, EMPLOYEES, AND ALL OTHER RELATED PERSONS OR ENTITIES BASED ON ANY ACT, EVENT OR OMISSION, AND FROM ANY AND ALL MANNER OF RIGHTS, CLAIMS, COMPLAINTS, DEMANDS, CAUSES OF ACTION, PROCEEDINGS, LIABLITIES, OBLIGATIONS, LEGAL FEES, COSTS AND DISBURSEMENTS OF ANY NATURE WHATSOEVER, WHETHER KNOWN OR UNKNOWN, WHICH NOW OR HEREAFTER ARISE FROM, RELATE TO OR ARE CONNECTED WITH THE USE OF THE SITE, THE LISTINGS, AND any and all GOODS AND SERVICES RELATED THERETO. YOU FURTHER WAIVE, RELEASE AND GIVE UP ANY AND ALL CLAIMS AND DEFENSES ARISING FROM OR RELATING TO ANY ACT, EVENT OR OMISSION DIRECTLY OR INDIRECTLY RELATED TO THE USE OF THE SITE. WITHOUT LIMITATION, YOU FURTHER UNCONDITIONALLY AND IRREVOCABLY FOREVER RELEASE, DISCHARGE AND HOLD HARMLESS THE Company PARTIES FROM ANY AND ALL LIABILITY, CLAIMS, ACTIONS, DAMAGES, LIABILITIES, LOSSES, COSTS AND EXPENSES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, UNLESS required to be PROVIDED BY STATUTE), INCLUDING, WITHOUT LIMITATION, THOSE BASED ON SLANDER, LIBEL, DEFAMATION, INVASION OF PRIVACY, VIOLATION OF RIGHTS OF PUBLICITY, PERSONALITY AND/OR CIVIL RIGHTS, DEPICTION IN A FALSE LIGHT, INTENTIONAL OR NEGLIGENT INFLICTION OF EMOTIONAL DISTRESS, PERSONAL INJURY, COPYRIGHT INFRINGEMENT AND/OR ANY OTHER TORT AND/OR DAMAGES ARISING FROM OR IN ANYWAY RELATING TO YOUR USE OF THE SITE OR ANY OF THE PRODUCTS AND SERVICES OFFERED THEREIN. THIS FURTHER INCLUDES, WITHOUT LIMITATION, ANY CLAIM WHICH COULD BE ASSERTED NOW OR IN THE FUTURE UNDER (I) THE COMMON LAW; (II) ANY OF THE PARTIES’ POLICIES, PRACTICES OR PROCEDURES; AND/OR (III) ANY FEDERAL, STATE or local STATUTES OR REGULATIONS. If You are a California resident, You hereby waive California Civil Code § 1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” You hereby acknowledge, agree and stipulate that this waiver is being made consciously and with full understanding of the rights that You may be giving up.
Notwithstanding any termination of the Your access to the Site or any termination of a Membership Account, You acknowledge and agree that Your representations and obligations, as well as the disclaimer of warranties, limitation of liability and release of liability hereunder shall survive and continue in perpetuity.
Successors and Assigns. Whenever the term “Company” is used in connection with these Terms regarding its use with respect to a right, protection or benefit, it shall be construed to encompass Company, its related entities, successors, assigns, shareholders, officers, directors, members, officers, employees, attorneys and agents. Further, the term “You” used in connection with these Terms shall include his/her/its heirs, related entities, successors, assigns, shareholders, directors, officers, members, employees and agents.
Authorized Permission for Use. You shall be considered an entity if the individual accessing the Site is doing so on behalf of an entity or is utilizing that entity’s computer system in connection with a task (either paid or unpaid) for that entity. If You are an entity, the person using the Site on Your behalf hereby makes the material representation, personally and on Your behalf, upon which You wish Company to rely that such person is authorized to bind You to the Terms, as well as any other obligations imposed or undertaken through use of the Site.
Dispute Resolution. Subject to the exception set forth herein, You may not institute a suit at law or equity regarding any dispute, whether directly or indirectly related or collateral to these Terms or to the use of this Site or any of Company’s products or services. All such claims or disputes, whether between or among You and Company, shall be submitted binding arbitration administered by a single arbitrator. In that regard and to the greatest extent permitted under the law, You may not submit all such claims or disputes as a plaintiff or class member in any purported class or representative proceeding and You acknowledge that you are not permitted to instate class-wide arbitration. Without limitation, any dispute over the arbitrability of a matter shall be specifically reserved for the arbitrator to exclusively hear, and shall not be submitted to the court. However, notwithstanding the foregoing, either prior to, during or after the arbitration process, either Company or You may institute a suit in equity for a temporary injunction (a) to preserve the status quo; (b) to enjoin a breach or threatened breach of these Terms; (c) to obtain specific performance; (d) to compel the arbitration or further its purposes and/or to enforce a settlement or award of such arbitration; and/or (e) for any other equitable relief.
Arbitration Demand Procedure. A claim or dispute by You or Company may only be submitted to binding arbitration if the opposing party is first served with a written demand for same. The party requesting arbitration (the “Requesting Party”) shall provide the opposing party (the “Opposing Party”) with a recommendation for a suggested arbitrator (the “Suggested Arbitrator”) in conjunction with the written demand for arbitration. If the Opposing Party objects to the Suggested Arbitrator, such objection must be set forth in writing and submitted to the Requesting Party within ten (10) days, or the objection shall be waived and the Suggested Arbitrator will be deemed appointed. The objection shall be accompanied by the Opposing Party’s recommendation for an arbitrator. The Requesting Party shall have ten (10) days to submit his objection to the Opposing Party’s recommendation. Thereafter, should the parties be unable to agree upon an arbitrator, the arbitrator shall be chosen by a determination of a court of competent jurisdiction. Either party may make a motion for this determination.
Conference, Discovery and Motions. The arbitrator shall conduct an initial telephone or in-person conference, in the form of a pre-hearing conference to discuss arbitration procedure, within ten (10) days of the arbitrator’s appointment. Both parties to the arbitration shall submit and serve on the other party arbitration statements no later than two (2) days prior to the conference. Company and You shall each have the following procedures available to them, in any order or all at once, with regard to the arbitration: (a) they may each serve up to thirty (30) interrogatories inclusive of subparts which shall be answered within ten (10) days; (b) they may each serve twenty (20) document requests inclusive of subparts which shall be answered within ten (10) days; (c) they may each serve up to thirty (30) requests for admissions which shall be answered within ten (10) days; (d) they may each take up to five (5) depositions, which may be scheduled upon ten (10) days’ notice, as to which all parties shall cooperate in producing and locating witnesses (third party witness attendance may be compelled by issuance of a subpoena); (e) they may each serve a summary judgment motion(s) or motion(s) to dismiss on the basis that the matter should be disposed of in whole or in part as a matter of law; and (f) either party to the arbitration may serve a motion(s) to dismiss or suppress based upon a failure to respond to discovery. Such motions may be served at any time twenty (20) days after the arbitrator is appointed. The responding party will have ten (10) days to respond to the motions. The motions shall be heard by the arbitrator and disposed of within ten (10) days thereafter and the arbitrator may allow replies and sur-replies in his discretion. Notwithstanding anything to the contrary herein, service under this Dispute Resolution clause shall be deemed complete upon mailing to a party’s counsel, or if pro se, to the party directly with an additional three (3) day period for service by regular mail. Time shall be deemed of the essence in regard to any procedures set forth herein and any requests for extension shall be considered by the arbitrator only upon a showing of good cause. Oral argument shall not be required unless a party requests it. The standards for deciding motions shall be those set forth under the case law of the court having competent jurisdiction over this matter.
Determination, Award and Costs. The arbitrator shall have the authority to award any remedy or relief that a court of competent jurisdiction could order or grant, including, without limitation, specific performance of any obligation created under these Terms, or the issuance of injunctive relief. The award rendered by the arbitrator in any arbitration under these Terms is final and binding on the parties. Judgment upon the award rendered by the arbitrator may be entered in any court having competent jurisdiction thereof. Each party to the arbitration shall perform all acts, including the execution and delivery of further documents, as the arbitrator determines is necessary or desirable to confirm and carry out the terms of the award rendered. Each party shall initially bear its own costs, expenses and administrative fees and an equal share of the arbitrator’s fees until such time, if at all, a party is awarded its costs, expenses and fees by the arbitrator pursuant to the provision of these Terms relating to the allocation of attorneys’ fees. In the event that there is a disproportionate ratio of plaintiffs, defendants or other parties, the arbitrator may consider a reallocation of arbitrator’s fees and expenses in his sole discretion. If either party needs a translator they shall equally bear that expense. If a third party witness requires a translator, the party calling the witness shall bear the expense. Each party shall bear their own travel costs and those of any party or witness they bring. If a party or his attorney does not appear at the arbitration hearing the arbitrator shall strike its claims and/or suppress its defenses and conduct a proof hearing. The arbitration award may be appealed to a court of competent jurisdiction solely on the basis that the award was arbitrary or capricious.
Jurisdiction. You agree that the laws of the State of South Dakota shall govern these Terms and any dispute, controversy or claim directly or indirectly related to such use without regard to its principles of conflict of laws. Further, You consent to the exclusive jurisdiction of the Third Judicial Circuit in South Dakota or, if federal jurisdiction exists, at the option of either party, to the exclusive jurisdiction of the United States District Court for the District of South Dakota, Sioux Falls Vicinage, to compel an arbitration and/or enforce an arbitrator’s award. Nevertheless, the Company shall have the right to institute an action for equitable relief against You in any court, anywhere in the world, as Company deems necessary. The jurisdiction provisions of these Terms shall not be deemed to limit that right. Any arbitration shall be conducted in Minnehaha County, South Dakota. Service of the written notice to initiate the aforementioned arbitration shall be deemed complete when sent either as required by Court procedure or by (i) electronic mail to any of Your current or future electronic mail addresses; (ii) ordinary mail or ordinary or two-day mail by a commercial carrier, in the event a regular mailing address has been provided by the party upon which service is being effected or is otherwise determined by the serving party; or (iii) otherwise in accordance with the laws and procedures of the State of South Dakota.
Further Assurances. You covenant and agree to perform all further acts and execute all supplementary instruments or documents which may be requested by Company to carry out the provisions and effectuate the intent of these Terms.
Assignment. Company may freely assign its rights and obligations in and to these Terms. You acknowledge that You may not assign, transfer or sell Your rights or delegate Your obligations under these Terms without Company’s advance written consent, which may be unreasonably withheld at Company’s sole discretion. Any purported assignment in violation hereof shall be null and void and of no force and effect, and furthermore shall constitute a breach of these Terms.
Severability. One or more provisions of these Terms may be legally prohibited or otherwise unenforceable in certain jurisdictions and not others. In such event, these Terms shall be construed in a manner that is consistent with prevailing law in the jurisdiction in which it is enforced. Therefore, if any provision of these Terms are prohibited or otherwise unenforceable in a jurisdiction where it is being enforced, (a) it shall nevertheless be enforced to the fullest extent allowed by that prevailing law and (b) all other provisions of these Terms shall remain in full force and effect and shall not be invalidated or rendered unenforceable. This section is not intended to and does not limit or qualify the “Jurisdiction” section above.
Links to Other Sites. You acknowledge and agree that Company has no responsibility for the accuracy or availability of information provided by websites to which the Site may be linked (“Linked Sites”). Links to Linked Sites are provided as a convenience to You, and do not constitute an endorsement by or association of such sites or the content, products, advertising or other materials presented on such sites. Company does not author, edit or monitor these Linked Sites. You acknowledge and agree that Company is not 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 such content, goods or services available on such Linked Sites. If You access any Linked Sites, You do so at Your own risk. The sole exception to the foregoing, is that You acknowledge that certain Linked Sites are owned and operated by T & R Electric and Colman. Notwithstanding the foregoing and without limitation, Company is not liable in any manner for any act, event or omission and from any and all manner of rights, claims, complaints, demands, causes of action, proceedings, liabilities, obligations, legal fees, costs and disbursements of any nature whatsoever, whether known or unknown, which now or hereafter arise from, relate to or are connected with the use of the Linked Sites owned and operated by T & R Electric and Colman, or any business conducted by either of them.
No Third Party Beneficiaries. These Terms are not intended to be for the benefit of, and shall not be enforceable by any unaffiliated third party, except as may be specifically provided herein. Nothing herein, express or implied, is intended to nor shall it confer on any third party any rights (including third party beneficiary rights), remedies, obligations or liabilities under or by reason of these Terms or otherwise set forth in the Site, except as may be specifically provided herein. These Terms shall not provide third parties with any remedy, claim, liability, reimbursement, cause of action or other right in excess of those specifically outlined herein.
Prohibited by Law. Company does not represent that the Site, the Listings or Company’s services, are appropriate or available for use in any particular geographic location. You are accessing the Site on Your own initiative. In the event that any aspect of the Site or these Terms is prohibited by law in Your jurisdiction, You agree not to use the Site or any of Company’s products or services. It is solely Your responsibility to determine whether You are allowed by law to participate in the Site. Without limitation, You release Company from all liability that could arise from Your prohibited participation in the Site, prohibited purchase of products or services or acceptance of these Terms. Moreover, and without limiting the indemnification otherwise provided herein, You shall indemnify, defend and hold Company Parties harmless for any and all damages relating to a violation of this paragraph or any violation of the law by You.
Without limiting the foregoing, aspects of this Site or the Listings may be subject to U.S. export controls and may not be downloaded, exported or re-exported: (a) into or to a national or resident of Cuba, Iran, North Korea, Sudan, Syria or any other country with respect to which the United States maintains trade sanctions prohibiting the shipment of goods (collectively, “Prohibited Countries”); or (b) to anyone who is on, or who may be acting on behalf of an entity that is on, the U.S. Treasury Department’s list of Specially Designated Nationals and Blocked Persons or the U.S. Commerce Department’s Denied Persons List or Entities List or otherwise included in General Order 3 (15 C.F.R. Part 736, Supplement 1), which prohibits exports to Mayrow General Trading, affiliated entities and persons and specified persons involved in the manufacture or sale of Improvised Explosive Devises (collectively, the “Lists of U.S. Prohibited Parties”). By using the Site, You make the material representation and warranty upon which You seek Company to reasonably rely that You are not (a) located in any of the Prohibited Countries; (b) a national or resident of any of the Prohibited Countries; (c) on any of the Lists of U.S. Prohibited Parties; or (d) acting on behalf of any person or entity that is on any of the Lists of U.S. Prohibited Parties.
By Your use of the Site, You represent that You have had the opportunity to review these Terms with counsel of Your choosing, if You wished to do so. You further acknowledge that You have thoroughly read these Terms; understand that You are giving up certain legal rights that may otherwise exist; have asked any questions You desire to clarify its meaning; and believe it is in Your interest to nevertheless utilize the Site and agree to these Terms.