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User
Agreement
The following list the
terms and conditions for using the SMTDADDY website at
www.smtdaddy.com. If you do not agree to be bound by the
terms and conditions of this agreement, do not use or
access our services. You must read, agree with and
accept all of the terms and conditions contained in this
User Agreement and the Privacy Policy, which include
those terms and conditions expressly set out below and
those incorporated by reference, before you may become a
member of SMTDADDY. We may amend this Agreement at any
time by posting the amended terms on the website. This
Agreement is effective upon acceptance in registration
for new registering users.
1. Membership Eligibility.
Our services are available only to, and may only be used
by individuals who can form legally binding contracts
under applicable law. Without limiting the foregoing,
our services are not available to children (persons
under the age of 18) or to temporarily or indefinitely
suspended SMTDADDY members. If you are under the age of
18, you can use this service only in conjunction with,
and under the supervision of your parents or guardians.
If you do not qualify, please do not use our Site.
Further, your SMTDADDY account (including feedback) and
User ID may not be transferred or sold to another party.
If you are registering as a business entity, you
represent that you have the authority to bind the entity
to this Agreement.
2. Fees and Services.
Joining
SMTDADDY is FREE. We do not charge fees
for listing items for sale through our Site. We do not charge fees for buyer's and Seller's to use the Auction. You are
responsible for paying all fees associated with your state's and country's applicable taxes.
3.
SMTDADDY is a Venue.
3.1 SMTDADDY is not an Auctioneer.
Although we are commonly referred to as an online
auction web site, it is important to realize that we are
not a traditional "auctioneer." Instead, the
Site acts as a venue to allow anyone to offer, sell, and
buy SMT and PCB manufacturing equipment, at anytime,
from anywhere, in an auction-style format commonly
referred to as "online auctions" or
"auctions." We are not involved in the actual
transaction between buyers and sellers. As a result, we
have no control over the quality, safety or legality of
the items advertised, the truth or accuracy of the
listings, the ability of sellers to sell items or the
ability of buyers to pay for items. We cannot ensure
that a buyer or seller will actually complete a
transaction.
3.2 Identity Verification. We use many
techniques to verify the accuracy of the information our
users provide us when they register on the Site.
However, because user verification on the Internet is
difficult, SMTDADDY cannot and does not confirm each
user's purported identity. Thus, we have established a
user-initiated feedback system to help you evaluate with
whom you are dealing. We also encourage you to
communicate directly with potential trading partners
through the tools available on the Site.
3.3 Release.
Because we are a venue, in the event that you have a
dispute with one or more users, you release SMTDADDY
employees from claims, demands and damages (actual and
consequential) of every kind and nature, known and
unknown, suspected and unsuspected, disclosed and
undisclosed, arising out of or in any way connected with
such disputes. If you are a California resident, you
waive California Civil Code ?1542, which says: "A
general release does not extend to claims which the
creditor does not know or suspect to exist in his favor
at the time of executing the release, which if known by
him must have materially affected his settlement with
the debtor."
3.4 Information Control. We do not
control the information provided by other users that is
made available through our system. You may find other
user's information to be offensive, harmful, inaccurate,
or deceptive. Please use caution, common sense, and
practice safe trading when using the Site. Please note
that there are also risks of dealing with underage
persons or people acting under false pretense.
Additionally, there may also be risks dealing with
international trade and foreign nationals. By using this
Site, you agree to accept such risks and SMTDADDY is not
responsible for the acts or omissions of users on the
Site.
4. Bidding and Buying.
As a buyer, you are
obligated to complete the transaction with the seller.
If you are the highest bidder at the end of an auction
(meeting the applicable minimum bid or reserve
requirements) and your bid is accepted by the seller. By
bidding on an item you agree to be bound by the
conditions of sale included in the item's description so
long as those conditions of sale are not in violation of
this Agreement or unlawful. Bids are not retractable
except in exceptional circumstances, such as: when the
seller materially changes the item's description after
you bid; a clear typographical error is made; you cannot
authenticate the seller's identity.
5. Listing and Selling.
5.1 Listing Description. You must be legally able to
sell the item(s) you list for sale on the Site. You must
describe your item and all terms of sale on the listing
page of the Site. Your listings may only include text
descriptions, graphics, pictures and other content
relevant to the sale of that item. All listed items must
be listed in an appropriate category. All items in
multiple item listings must be identical.
5.2 Binding
Bids. Except for items listed in a category under the
Non-binding Bid Policy, if you receive at least one bid
at or above your stated minimum price (or in the case of
reserve auctions, at or above the reserve price), you
are obligated as the seller to complete the transaction
with the highest bidder upon the auction's completion,
unless there is an exceptional circumstance, such as:
(a) the buyer fails to meet the terms of your listing
(such as payment method), or (b) you cannot authenticate
the buyer's identity.
5.3 Fraud. Without limiting any
other remedies, SMTDADDY may suspend or terminate your
account if we suspect that you (by conviction,
settlement, insurance or escrow investigation, or
otherwise) have engaged in fraudulent activity in
connection with the Site.
5.4 Manipulation. Neither you,
bidders or sellers may manipulate the price of any item
nor may you interfere with other user's listings or
transactions.
6. Your Information.
6.1 Definition.
"Your Information" is defined as any
information you provide to us or other users in the
registration, bidding or listing process, in any public
message area (including the feedback area) or
through any email feature. You are solely responsible
for Your Information, and we act as a passive conduit
for your online distribution and publication of Your
Information.
6.2 Restricted Activities. Your Information
(or any items listed) and your activities on the Site
shall not: (a) be false, inaccurate or misleading; (b)
be fraudulent or involve the sale of counterfeit or
stolen items; (c) infringe any third party's copyright,
patent, trademark, trade secret or other proprietary
rights or rights of publicity or privacy; (d) violate
any law, statute, ordinance or regulation (including,
but not limited to, those governing export control,
consumer protection, unfair competition, discrimination
or false advertising); (e) be defamatory, trade
libelous, unlawfully threatening or unlawfully
harassing; (f) be obscene or contain child pornography
or, if otherwise adult in nature or harmful to minors,
shall be posted only in the Mature Audiences section and
shall be distributed only to people legally permitted to
receive such content; (g) contain any viruses, Trojan
horses, worms, time bombs, cancelbots, easter eggs or
other computer programming routines that may damage,
detrimentally interfere with, surreptitiously intercept
or expropriate any system, data or personal information;
(h) create liability for us or cause us to lose (in
whole or in part) the services of our ISPs or other
suppliers; and (i) link directly or indirectly to or
include descriptions of goods or services that: (aa) are
prohibited under this Agreement; (bb) are identical to
other items you have up for auction but are priced lower
than your item's reserve or minimum bid amount; (cc) are
concurrently listed for sale on a web site other than
SMTDADDY's (this does not prevent linking to or
advertising an SMTDADDY item from another web site); or
(dd) you do not have a right to link to or include.
Furthermore, you may not list any item on the Site (or
consummate any transaction that was initiated using our
service) that, by paying to us the listing fee or the
final value fee, could cause us to violate any
applicable law, statute, ordinance or regulation.
6.3
License. Solely to enable SMTDADDY to use the
information you supply us with, so that we are not
violating any rights you might have in that information,
you agree to grant us a non-exclusive, worldwide,
perpetual, irrevocable, royalty-free, licensable
(through multiple tiers) right to exercise the
copyright, publicity, and database rights (but no other
rights) you have in Your Information, in any media now
known or not currently known, with respect to Your
Information. SMTDADDY will only use Your Information in
accordance with our Privacy Policy.
7. Access and
Interference.
You agree that you will not use any robot,
spider, scraper or other automated means to access the
Site for any purpose without our express written
permission. Additionally, you agree that you will not: (i)
take any action that imposes, or may impose in our sole
discretion an unreasonable or disproportionately large
load on our infrastructure; (ii) copy, reproduce,
modify, create derivative works from, distribute or
publicly display any content (except for Your
Information) from the Site without the prior expressed
written permission of SMTDADDY and the appropriate third
party, as applicable; (iii) interfere or attempt to
interfere with the proper working of the Site or any
activities conducted on the Site; or (iv) bypass our
robot exclusion headers or other measures we may use to
prevent or restrict access to the Site.
8. Feedback.
8.1
Integrity. You may not take any actions that may
undermine the integrity of the feedback system. We may
limit the number of bids and listings you may place on
the Site based upon the level of your feedback. If you
earn a net feedback rating of -4 (minus four), your
membership may be suspended, and you may be unable to
list or bid.
8.2 Export. You acknowledge that your
feedback consists of comments left by other users and a
composite feedback number compiled by SMTDADDY, and that
the composite number without the comments does not
convey your full user profile. Because feedback ratings
are not designed for any purpose other than for
facilitating trading between SMTDADDY users, you agree
that you shall not market or export your SMTDADDY
feedback rating in any venue other than an SMTDADDY
operated website.
8.3 Import. We do not provide you the
technical ability to import feedback from other (non-SMTDADDY
operated) websites to SMTDADDY because a composite
number, without the corresponding feedback does not
reflect your true online reputation within our
community.
9. Breach.
Without limiting other remedies,
we may limit your activity, immediately remove your bids
or item listings, warn our community of your actions,
issue a warning, temporarily suspend, indefinitely
suspend or terminate your membership and refuse to
provide our services to you if: (a) you breach this
Agreement or the documents it incorporates by reference;
(b) we are unable to verify or authenticate any
information you provide to us; or (c) we believe that
your actions may cause financial loss or legal liability
for you, our users or us.
10. Privacy.
We do not sell or
rent your personal information to third parties for
their marketing purposes without your explicit consent
and we only use your information as described in the
Privacy Policy. We view protection of users' privacy as
a very important community principle. We understand
clearly that you and your information is one of our most
important assets. We store and process your information
on computers located in the United States that are
protected by physical as well as technological security
devices. We use third parties to verify and certify our
privacy principles. Our current Privacy Policy is
available at http://www.smtdaddy.com/membership/XUDPrivacy.asp.
If you object to your Information being transferred or
used in this way please do not use our services.
11. No
Warranty.
OUR EMPLOYEES OUR SUPPLIERS AND WE PROVIDE OUR
WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY
WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY.
OUR SUBSIDIARIES OFFICERS DIRECTORS EMPLOYEES OUR
SUPPLIERS AND WE SPECIFICALLY DISCLAIM ANY IMPLIED
WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do
not allow the disclaimer of implied warranties, so the
foregoing disclaimer may not apply to you. This warranty
gives you specific legal rights and you may also have
other legal rights that vary from state to state.
12.
Liability Limit.
IN NO EVENT SHALL WE, OUR SUBSIDIARIES,
OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE
LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION
WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER
ARISING, INCLUDING NEGLIGENCE).
OUR LIABILITY, AND THE
LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS,
EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN
ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE
AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO
THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some
States do not allow the exclusion or limitation of
incidental or consequential damages, so the above
limitation or exclusion may not apply to you.
13.
Indemnity.
You agree to indemnify and hold us and (as
applicable) our parent, subsidiaries, affiliates,
officers, directors, agents, and employees, harmless
from any claim or demand, including reasonable
attorneys' fees, made by any third party due to or
arising out of your breach of this Agreement or the
documents it incorporates by reference, or your
violation of any law or the rights of a third party.
14.
Legal Compliance.
You shall comply with all applicable
domestic and international laws, statutes, ordinances
and regulations regarding your use of our service and
your bidding on, listing, purchase, solicitation of
offers to purchase, and sale of items.
15. No Agency.
You and SMTDADDY are independent contractors, and no
agency, partnership, joint venture, employee-employer or
franchiser-franchisee relationship is intended or
created by this Agreement.
16. Notices.
Except as
explicitly stated otherwise, any notices shall be given
by postal mail to SMT Daddy, Inc. Attn: Legal Department PO Box
66, North Hampton, NH 03862 (in the case of
SMTDADDY) or to the email address you provide to
SMTDADDY during the registration process (in your case).
Notice shall be deemed given 24 hours after email is
sent, unless the sending party is notified that the
email address is invalid. Alternatively, we may give you
notice by certified mail, postage prepaid and return
receipt requested, to the address provided to SMTDADDY
during the registration process. In such case, notice
shall be deemed given 3 days after the date of mailing.
17. Resolution of Disputes.
In the event a dispute
arises between you and SMTDADDY, our goal is to provide
you with a neutral and cost effective means of resolving
the dispute quickly. Accordingly, you and SMTDADDY agree
that any claim or controversy at law or equity that
arises out of this Agreement or our services
("Claims") shall be resolved in accordance
with one of the subsections below or as otherwise
mutually agreed upon in writing by the parties. Before
resorting to these alternatives, we strongly encourage
you to first contact us directly to seek a resolution
and we will consider reasonable requests to resolve the
dispute through alternative dispute resolution
procedures, such as mediation, as an alternative to
litigation.
17.1 Binding Arbitration. For any Claim
(excluding Claims for injunctive or other equitable
relief) where the total amount of the award sought is
less than $10,000, you or SMTDADDY may elect to resolve
the dispute through binding arbitration conducted by
telephone, on-line and/or based solely upon written
submissions where no in-person appearance is required.
In such cases, the American Arbitration Association or
JAMS shall administer the arbitration in accordance with
their applicable rules, or any other established ADR
provider mutually agreed upon by the parties. Any
judgment on the award rendered by the arbitrator may be
entered in any court having jurisdiction thereof.
17.2
Court. Alternatively, any Claim may be adjudicated by a
court of competent jurisdiction located in Rockingham
County, New Hampshire or where the defendant is located (in
our case Portsmouth, New Hampshire, and in your case your
home address or principal place of business). You and
SMTDADDY agree to submit to the personal jurisdiction of
the courts located within the county of Rockingham, New
Hampshire.
17.3 Alternative Dispute Resolution.
Alternatively, SMTDADDY will consider use of other
alternative forms of dispute resolution, such as binding
arbitration to be held in Rockingham County, New
Hampshire
or another location mutually agreed upon by the parties.
All Claims (excluding requests for injunctive or
equitable relief) between the parties must be resolved
using the dispute resolution mechanism that is selected
in accordance with this Section by the first party to
file a Claim. Should either party file an action
contrary to this Section 17, the other party may recover
attorneys' fees and costs up to $1000, provided that the
party seeking the award has notified the other party in
writing of the improperly filed Claim, and the other
party has failed to withdraw the Claim.
Disputes between
you and SMTDADDY regarding our services may be reported
to Customer Support by writing to support@smtdaddy.com.
We encourage you to report all user-to-user disputes to
your local law enforcement, postmaster general, or a
certified mediation or arbitration entity. Additionally,
you may report complaints to the Complaint Assistance
Unit of the Division of Consumer Services of the
Department of Consumer Affairs may be contacted in
"NEED ADDRESS".
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