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User Agreement and Terms of use.


USER AND PURCHASE AGREEMENT:

 

This User and Purchase Agreement (the "Agreement") applies to merchants (either individuals or companies) desiring to place an order ("Purchase") on the websitewww.SmartBuysOnly.com (hereinafter, such merchant shall be referred to as "you"). The products listed on the website www.SmartBuysOnly.com(the "Site") may include product from different resources, ("SmartBuysOnly Product") as well as product from third party sellers ("Third Party Product"). SmartBuysOnly Product and Third Party Product will be collectively referred to as "Listed Products". With respect to Third Party Product, it is the objective of SmartBuysOnly to provide access to services, including an online marketplace, so that third party sellers that use the Site ("Third Party Sellers") can locate interested buyers. If you are using this website on behalf of a company that you listed in the User Registration process, "you" throughout the remaining sections of this Agreement refers to the company listed in the User Registration and you hereby acknowledge and agree that you are authorized to sign on behalf of the company and hereby bind such company to this Agreement.

You must read/accept and agree to this Agreement before placing an order ("purchase"). This Agreement applies to the checkout process and to any purchase of Listed Products if you are awarded those Listed Products. This Agreement applies to you as of the date you accept this Agreement and on a going-forward basis every time you use the Site or purchase Listed Products on the Site. THE SUBMISSION OF AN ORDER CONSTITUTES AN IRREVOCABLE OFFER TO PURCHASE THE LISTED PRODUCT YOU BUY, WHICH WE MAY ACCEPT OR REJECT IN OUR SOLE DISCRETION, ON THE TERMS AND CONDITIONS OF THE LISTING AND IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU AGREE THAT THIS AGREEMENT AND ITS TERMS AND CONDITIONS APPLY EACH TIME YOU PLACE A BID OR PURCHASE LISTED PRODUCTS FROM THE SITE.

This Agreement will continue until terminated as provided in this Agreement. Notwithstanding anything to the contrary herein, either party will have the right, in its sole discretion, to terminate this Agreement with or without cause upon notice to the other party. SmartBuysOnly ("Smart Buys Only" or "we" or "us") reserves the right, at its sole discretion, to suspend or terminate your use of the Site without notice. You will be bound by this Agreement as soon as you use this website as it will mean that "You" accept this Agreement and you understand and agree that you will be bound by this Agreement even though you will not receive a signed copy from SmartBuysOnly. By using the Site you agree to be bound by its terms of use. If you do not agree to the terms of use listed on the Site, please do not use the Site.

1.    Purchase of Listed Products.  You acknowledge and agree that by placing an order on the Site for Listed Products, you agree to pay to SmartBuysOnly  (the "Purchase Price") for the Listed Products. 

You agree to pay all fees and charges incurred in connection with your purchases (including any applicable taxes) at the rates in effect when the charges were incurred. If SmartBuysOnly does not receive payment from you, you agree to pay all amounts due upon demand by SmartBuysOnly or its agents.

You agree that any of your payments are non-refundable. In the event that we are not able to receive your payments from you, SmartBuysOnly, at its sole option and discretion, may terminate the sale of the Listed Products and/or this Agreement by giving written notice to you, which may be by email. Upon such notice, you shall not have any right, title or interest in or to the Listed Products, and the Listed Products may be marketed and sold to someone else without any liability on SmartBuysOnly's part and without SmartBuysOnly having to refund to you any prior payments made by you.

If the Listed Products are not made available to you for shipment within fourteen (14) days following SmartBuysOnly's receipt of your payment in full for the Listed Products, then you may, at your sole discretion, cancel this Agreement and your obligation to purchase the Listed Products by written notice to SmartBuysOnly. Such termination shall be effective upon SmartBuysOnly's receipt of written notice to cancel. SmartBuysOnly shall return any payment made by you for the unavailable Listed Products under this Agreement within five (5) business days following receipt by SmartBuysOnly of the written notice to cancel without any further liability on SmartBuysOnly's part.

 

2.    Receipt of Listed Products.

  1. a.     Options. Payment for the Listed Products is required as set forth above prior to any shipment or delivery. You are required to make arrangements for any shipment or pick up of the Listed Product based on the options available for a particular listing on the Site. Either or both of the following options may be available for a listing, as determined by SmartBuysOnly in its sole discretion: (a) the option to ship the Listed Products; or (b) the option to pick up the Listed Product at the seller's facility, and pay SmartBuysOnly the fee for pick up, as set forth on the Site. The ship option includes rates based on the origin and destination of the Listed Product and you agree that you are responsible to provide accurate information and to pay any applicable rates when using this option.

 

  1. a.     Appointment for Pick Up. Assuming the option to pick up the Listed Product is available, you will receive an email that provides instructions on how to schedule an appointment to pick up the Listed Product at the seller's facility ("Scheduling Email"). You will be required to pay SmartBuysOnly the pick up fee as set forth on the Site and schedule an appointment with SmartBuysOnly for pick up within seventy-two (72) hours of receiving the Scheduling Email. If you do not schedule an appointment within such time period or fail to pick up your Listed Product at the scheduled appointment, SmartBuysOnly may decide, in its sole discretion, to (1) arrange to ship the Listed Product to you, assuming the Listed Product meets SmartBuysOnly's shipping criteria, using a carrier selected by SmartBuysOnly in its sole discretion, at the physical address you provided in the User Registration and charge your payment method for the shipping, handling, and related charges ("Shipping Charges"); or (2) charge your payment method a fee for SmartBuysOnly having to process and re-stock the Listed Product ("Non-performance Fee"). The Non-performance Fee will be an amount equal to the greater of (i) twenty-five dollars ($25.00); or (ii) ten percent (10%) of the Purchase Price. You agree that we may charge your payment method such Shipping Charges or Non-Performance Fee without prior notification to you, without waiving any other rights or remedies of SmartBuysOnly, and that the Shipping Charges or Non-Performance Fee are non-refundable. You also acknowledge that if you are charged a Non-Performance Fee, SmartBuysOnly will terminate the sale of such Listed Product, credit your payment method in the amount of the Purchase Price if SmartBuysOnly has charged the payment method on file, and may market and sell such Listed Product to someone else without any liability on SmartBuysOnly's part. If you paid for the Listed Product by wire transfer rather than credit card, the preceding sentence still applies, except that rather than a credit, SmartBuysOnly will issue you a refund equal to the amount of the Purchase Price less the Non-performance Fee (Refund = Purchase Price - Non-performance Fee).

 

  1. a.     Title and Risk of Loss. Title and risk of loss of the Listed Products shall pass to you from SmartBuysOnly if SmartBuysOnly Product (or, if Third Party Product, from the Third Party Seller to you) upon tender of such Listed Products to you or the carrier at the seller's facility ("Point of Purchase"). Delivery shall be 'Ex Works - Point of Purchase', as defined in the Incoterms 2010 published by the ICC. SmartBuysOnly (or the Third Party Seller, if applicable) will load the Listed Product. You shall pay all freight charges. Upon pick up of the Listed Product, you shall release SmartBuysOnly of any fault, and shall forfeit any rights to claims against SmartBuysOnly associated with the Listed Products or the delivery of the Listed Products purchased by you.

3.    Waiver of Detail Receipt.
You acknowledge that the number of units of the Listed Products set forth in the listing on the Site is merely an estimate and that the final inventory levels of Listed Product from
 SmartBuysOnly or the Third Party Seller, as applicable, may vary from the number of units set forth in the listing. YOU HEREBY WAIVE ANY OPPORTUNITY TO DETAIL THE RECEIPT OF THE LISTED PRODUCTS DUE TO THE TIME, COST AND OTHER CONSIDERATIONS INVOLVED AS WELL AS THE DEEPLY DISCOUNTED PRICING AT WHICH YOU ARE ACQUIRING THE LISTED PRODUCTS. You agree to the following: (a) you assume the risk that you may not receive all of the Listed Products set forth in the listing; (b) you assume the risk that you may receive more Listed Products than set forth in the listing; and (c) you release SmartBuysOnly from any and all claims, demands, actions and causes of action you may have against SmartBuysOnly as a result of the discrepancy between the items set forth in the listing and the items you actually receive from SmartBuysOnly or the Third Party Seller, as applicable.

4.    Disclaimer of Warranties.
THE LISTED PRODUCTS AVAILABLE OR SOLD TO YOU THROUGH THIS SITE ARE PROVIDED AND ARE PURCHASED BY YOU ON AN "AS IS" AND "WITH ALL FAULTS" BASIS. WE UNDERTAKE NO RESPONSIBILITY FOR THE QUALITY OF THE LISTED PRODUCTS. SmartBuysOnly DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, UNLESS OTHERWISE SPECIFIED IN WRITING BY SmartBuysOnly. THE SITE (INCLUDING ALL CONTENT, FUNCTIONS AND INFORMATION) IS PROVIDED AND ALL LISTED PRODUCTS ARE SOLD THROUGH THE SITE ON AN "AS IS" BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED. THIS DISCLAIMER DOES NOT APPLY TO ANY PRODUCT WARRANTY HONORED BY THE MANUFACTURER OF THE PRODUCT. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU.

You hereby acknowledge that you used your own standards to determine the quality and value of the Listed Products. You acknowledge that the Listed Products may be damaged, defective, or otherwise lacking in merchantability and may not be fit for their usual, otherwise-intended purpose.

In addition, you hereby acknowledge that Third Party Sellers may fail to perform. SmartBuysOnly does not provide any representations or guarantees that Third Party Sellers will complete a transaction. With respect to Third Party Product, it is expressly understood and agreed that SmartBuysOnly has no duty to you with regard to transactions through the Site other than those duties expressly outlined in this Agreement. SmartBuysOnly does not guarantee any individual Third Party Seller's ability to complete transactions using the Site and makes no representation regarding the creditworthiness or performance of any Third Party Seller. You agree not to hold SmartBuysOnly, its affiliates, officers, directors, employees or agents liable for any loss or damage of any sort incurred as the result of your dealing with any Third Party Seller.

You may not return any of the Listed Products to SmartBuysOnly (or the Third Party Seller, if applicable) for refund, exchange or otherwise.

This provision shall survive any termination or expiration of this Agreement.

5.    Removal of Identification Information.  Prior to the transfer, disposal, refurbishing, recycling, sale or any other disposition of the Listed Products, you agree:

(a) to remove from the Listed Products and properly dispose of all identification marks including, but not limited to, labels, trademarks, trade names, service marks, SKU numbers and bar codes ("Identification Marks");

(b) to remove from the Listed Products and properly dispose of all customer information including, but not limited to, sales receipts, addresses, phone numbers, and credit card numbers ("Customer Information"); and

(c) to comply with the requirements of the attached and incorporated Exhibit A.

You agree to comply with all state, federal and local rules and regulations with respect to the disposal of the Identification Marks, the Customer Information, and the deleted files and other information, including, but not limited to, laws relating to privacy.

You acknowledge that monetary damages may not alone be a sufficient remedy for failure to comply with the requirements of Exhibit A and that SmartBuysOnly shall be entitled, without waiving any other rights or remedies, to such injunctive or equitable relief as may be deemed proper by a court of competent jurisdiction. Further, you acknowledge and agree that if there is a breach or threatened breach of the provisions regarding sanitization, SmartBuysOnly shall be irrevocably harmed and entitled to seek a temporary restraining order, injunction, and/or other equitable relief against the commencement or continuance of such breach without the requirement of posting a bond or proving injury as a condition of relief.

In addition, in the event that your performance of obligations under this Section 5 results in the creation of any waste or other material, your handling of that waste or material shall be subject to the requirements of Sections 6 and 7 of this Agreement.

This Section 5 will survive the termination or expiration of this Agreement.

6.    Environmental Indemnification.  All determinations regarding the status and handling of Listed Products after title has passed to you in accordance with this Agreement shall be the responsibility of, and made by, you. You agree to indemnify, defend, and hold SmartBuysOnly harmless from and against any losses, attorneys' fees, costs, liabilities, damages, penalties, third party claims, demands, actions, or causes of action arising out of, or in connection with, your disposal, incineration, or recycling of the Listed Products or components thereof, including, but not limited to, losses, attorneys' fees, costs, liabilities, damages, penalties, claims, demands, actions, or causes of action arising under the Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C. §§ 9601 et seq. (as amended) (CERCLA); arising under Solid Waste Disposal Act (SWDA) (as amended); arising under any federal or state rule or regulation promulgated or approved pursuant to CERCLA or the Resources Conservation and Recovery Act, 42 U.S.C. §§ 6901 et seq. (RCRA); and/or arising under applicable federal, state, provincial or local laws, rules, or regulations of any jurisdiction relating to the disposal, incineration, stewardship or recycling of Listed Products and components thereof. For the purposes of this indemnification, "disposal," "incineration", and "recycling" shall have the meanings set forth in the statute or regulation under which an indemnification obligation under this paragraph arises or is alleged to arise. This provision shall survive the termination or expiration of this Agreement.

7.    Environmental Representations and Warranties.  You represent and warrant to SmartBuysOnly that:

(a) Prior to disposal, incineration, or recycling of any Listed Product or component(s) thereof, you will complete a hazardous waste determination in accordance with 40 C.F.R. § 262.11 and applicable state, provincial or local laws, rules, or regulations of all relevant jurisdictions relating to disposal or recycling of the Listed Product or component(s) thereof. In the event that a Listed Product is classified under any such law, rule or requirement as a hazardous waste, and you undertake to recycle or arrange for the recycling of that Listed Product, and if the recycling of that Listed Product is potentially subject to the provisions of 42 U.S.C. § 9627, then you will comply with all requirements of 42 U.S.C. § 9627 necessary to qualify for the liability exemptions provided in that statutory provision.

(b) You currently comply, and will continue to comply, with all federal, state, provincial and local laws, rules, and regulations of all relevant jurisdictions, governing the disposal, incineration, or recycling of Listed Products or components thereof.

(c) You have not been convicted of, or received a citation for, a violation of any federal, state, provincial or local law, rule, or regulation of any relevant jurisdiction governing the disposal, incineration, or recycling of waste.

For the purposes of these representations and warranties, the terms "disposal", "incineration", and "recycling" shall have the same meaning as defined in Section 6 entitled Environmental Indemnification. This provision shall survive the termination or expiration of this Agreement.

8.    Indemnification.  In addition to your other indemnification obligations set forth in this Agreement or otherwise allowed by law, you shall further indemnify, defend and hold SmartBuysOnly (including its parent and affiliates and their respective officers, directors, employees, contractors, and agents) harmless from and against any and all claims, demands, causes of action, actions, costs, liabilities, and expenses, of any nature, (including, but not limited to court costs, costs of investigation, and attorneys' fees) arising out of or in connection with any actual or alleged: (a) loss, theft or destruction, whether partial or whole, of the Listed Products and other items in the possession or control of you or your agents; (b) the reconditioning, refurbishing, resale, sale, recycling, transfer, disposal, destruction, or repackaging of the Listed Products and other items provided under this Agreement; (c) the labeling, advertising and/or notices placed on the packaging or elsewhere or the lack of notices which should have been placed on the packaging; (d) inaccurate descriptions of the contents of the Listed Products and the package; (e) breach of this Agreement (including but not limited to warranties and representations) by you or your officers, directors, employees, agents or representatives; (f) failure to delete and remove all information or items contained in or on the Listed Products and other items tendered to the freight carrier or sold under this Agreement to you, including but not limited to claims arising from the failure to comply with Exhibit A; (g) the acts or omissions of you or your officers, directors, employees, agents or representatives; (h) your disposal of the Identification Marks, Customer Information, the hard drive of any computer, deleted files and other information; (i) your dispute with a Third Party Seller or another user of the Site; (j) SmartBuysOnly's use of data or information provided by you; or (k) violation of any law, rule, regulation or authority by you or your officers, directors, employees, agents or representatives. The provisions of this Section 8 shall survive the termination or expiration of this Agreement.

9.    Inspection/Audit.  You agree to permit SmartBuysOnly, its parent, subsidiaries or affiliated entities, and its agents (including third parties) the right to visit your warehouse, facility, or place of business at any time in order to monitor compliance with the terms of this Agreement, including but not limited to an unannounced audit of your sanitization processes and inspection of products. SmartBuysOnly, its parent, subsidiaries or affiliated entities, or its designated agents, shall have the right to audit your books and records related to this Agreement, evaluate the Listed Products to ensure they are sanitized as required by Exhibit A, and inspect your facilities and procedures at any time to assure compliance with the terms and conditions of this Agreement. You agree to provide SmartBuysOnly's designated audit or inspection team with access to the relevant records, facilities, and procedures. SmartBuysOnly will pay the cost of any such audit or inspection unless the audit reveals that you are not performing in compliance with the terms of this Agreement, then, in addition to any other legal and equitable remedies available, you will reimburse SmartBuysOnly for the costs of the audit or inspection. In addition, if the inspection or audit reveals a condition that is unsatisfactory to SmartBuysOnly in its reasonable business judgment, you will bear the costs for any re-inspection or re-audit if desired by SmartBuysOnly. The rights set forth in this Section 9 shall survive for a period of three (3) years following the termination or expiration of this Agreement.

10.    Limitation of Liability.
THE ENTIRE RISK ARISING OUT OF ANY PRODUCTS OR SERVICES OFFERED ON OR IN CONNECTION WITH THE SITE, AND ANY CONTENT, USER CONTENT OR DIGITAL DOWNLOADS REMAINS WITH YOU. IN NO EVENT SHALL SMARTBUYSONLY OR ITS AFFILIATES BE LIABLE FOR ANY CONSEQUENTIAL, INCIDENTAL, DIRECT, INDIRECT, SPECIAL, PUNITIVE, OR OTHER DAMAGES WHATSOEVER (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF BUSINESS PROFITS, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, OR OTHER PECUNIARY LOSS) ARISING OUT OF THE AGREEMENT OR THE USE OF OR INABILITY TO USE ANY PRODUCTS, SERVICES, CONTENT, USER CONTENT AND/OR DIGITAL DOWNLOADS, THE PROVISION OF OR FAILURE TO PROVIDE PRODUCTS OR SERVICES, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS, SERVICES, USER CONTENT AND CONTENT OBTAINED THROUGH THE SITE WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. NOTWITHSTANDING ANYTHING ELSE IN THE AGREEMENT OR POSTED ON THE SITE, THE MAXIMUM LIABILITY THAT SMARTBUYSONLY SHALL HAVE IS LIMITED TO ANY AMOUNTS ACTUALLY PAID TO SMARTBUYSONLY BY YOU IN THE IMMEDIATELY PRECEDING THREE (3) MONTHS. YOU ASSUME ALL RISK OF LOSS FOR SHIPPED LISTED PRODUCTS. USER INFORMATION SUCH AS ADDRESS THAT IS INACCURATE OR INCOMPLETE MAY RESULT IN DELAYS THAT SHALL NOT BE THE RESPONSIBILITY OF SMARTBUYSONLY. YOU ACKNOWLEDGE AND AGREE THAT THE LIMITATIONS OF LIABILITY, DISCLAIMERS OF WARRANTIES AND LIMITED REMEDIES SET FORTH HEREIN REPRESENT AN INSEPARABLE ALLOCATION OF RISK (INCLUDING, WITHOUT LIMITATION, IN THE EVENT OF A TOTAL AND FUNDAMENTAL BREACH OF THIS AGREEMENT) THAT IS AN ESSENTIAL BASIS OF THE BARGAIN BETWEEN THE PARTIES. This provision shall survive the termination or expiration of this Agreement.

11.    Confidentiality.  You shall not use or disclose to any individual or entity, including but not limited to any transferee or subsequent purchaser of the Listed Products, the following: (a) that you purchased or received the Listed Products from the Site; (b) the nature or result of any business relationship with SmartBuysOnly; (c) any of the Identification Marks; (d) any Customer Information; (e) any files or information stored within any of the Listed Products that are computers or other consumer electronics containing memory or other storage; and (f) other information of a nature not generally disclosed by SmartBuysOnly to the public. This provision shall survive the termination or expiration of this Agreement.

12.    No Price Collusion.  You represent and warrant that (1) the overall purchase price offered by you for the Listed Products was arrived at independently without consultation, communication or agreement with any competitor or other potential purchaser or seller of the Listed Products; and (2) no attempt has been made to induce any other person to submit or not to submit a proposal to purchase the Listed Products.

13.    Relationship of the Parties.  SmartBuysOnly and you understand and acknowledge that each shall perform its duties and obligations under this Agreement as an independent contractor and that this Agreement does not create a joint venture, partnership, employment or agency relationship between you and SmartBuysOnly.

You represent and warrant to SmartBuysOnly that, other than as specifically set forth in this Agreement, you have not paid any consideration or made any payments of any kind to any person or entity, including but not limited to SmartBuysOnly employees, officers, and directors, to obtain this Agreement or for the purchase of the items being sold under this Agreement. This provision shall survive the termination or expiration of this Agreement.

14.    Taxes.  You will pay SmartBuysOnly or the applicable governmental entity any applicable value added, sales or use taxes or like taxes that are owed by you solely as a result of entering into this Agreement or which SmartBuysOnly is permitted to collect from you under applicable law. If you provide to SmartBuysOnly a valid exemption certificate, SmartBuysOnly will not collect the taxes covered by such certificate. SmartBuysOnly is not liable for any of the taxes that you are legally obligated to pay as a result of your distribution or resale of product purchased under this Agreement. All such taxes (including without limitation, income taxes, withholding taxes, value added, franchise, gross receipt, sales, use, property or similar taxes, duties, levies, fees, excises or tariffs incurred in connection with or related to the distribution of the Listed Products) will be your financial responsibility. You understand and acknowledge that you will be solely responsible for all taxes, your and your employees' wages, benefits, unemployment compensation and workers' compensation and all other costs and expenses relating to your employees and applicable to the performance of this Agreement, whether imposed now or at a later date.

If SmartBuysOnly is audited by a taxing authority or other governmental entity with respect to a tax matter arising from this Agreement, you agree to reasonably cooperate with SmartBuysOnly in order to respond to such audit inquiries in an appropriate and timely manner, so that the audit and any resulting controversy may be resolved expeditiously. Notwithstanding anything herein to the contrary, you additionally agree to retain such records as may reasonably be requested by the taxing authority, and to provide access to such records to SmartBuysOnly in the event of such a request, for the applicable statute of limitations, and upon notice from SmartBuysOnly that such statute has been extended, for any extensions thereof.

15.    Assignment.  You shall not delegate, subcontract, assign or transfer any of your rights, duties, or obligations under this Agreement or the right to purchase the Listed Products without the prior express written consent of SmartBuysOnly. In the event that SmartBuysOnly grants any such consent, you shall be solely responsible for the conduct of such agents and assignees, and the granting of such consent shall in no way modify or affect your duties to SmartBuysOnly under this Agreement. SmartBuysOnly may assign this Agreement to a parent, a subsidiary or an affiliated entity. Subject to the foregoing, this Agreement shall be binding upon and inure to the benefits of the parties, and their respective successors and assigns.

16.    Governing Law.  This Agreement shall be governed by the laws of the State of California without regard to its rule of conflicts of laws, and venue shall be within the State of California. Each party hereby expressly consents to the original and exclusive jurisdiction of the state and federal courts located in Minneapolis, California. The rights and obligations of the parties under this Agreement shall not be governed by the United Nations Convention on Contracts for the International Sale of Goods. This provision shall survive the termination or expiration of this Agreement.

17.    Compliance with Law.  You represent and warrant that you will comply with all laws, rules, and regulations. You agree that all sales are 'Ex Works - Point of Purchase'. Title and risk of loss pass to you, including payment of all transportation and insurance cost, from the Point of Purchase.

You represent and warrant that you will not export any of the Listed Products. Notwithstanding anything else to the contrary herein contained, you shall not export for sale or resell (and shall ensure that contracts for your sales prevent the export for sale or resale of) any Listed Product to or import into any country outside the United States. You shall not directly or indirectly sell any Listed Product within the United States if you have knowledge or have reason to believe that the purchaser or any third party will export the Listed Product for sale or resale or import into any country outside the United States. You shall not remove (and shall ensure that contracts for your sales prevent the removal of) any notices that may appear on the packaging restricting sale of any Listed Product outside of the United States.

In addition to all other requirements contained in this Agreement, you agree to comply with any additional requirements imposed by a seller's vendors and/or the original manufacturers of the Listed Products.

You acknowledge that this assurance and this Section 17 will survive termination or expiration of this Agreement.

SmartBuysOnly may choose not to award Listed Products to you for any reason, including but not limited to SmartBuysOnly's concerns with your ability to comply with law or otherwise meet the terms and conditions of this Agreement

18.    Notices.  All notices, demands and other communications that are required or may be given under this Agreement will be in writing and will be deemed to have been duly given if emailed by SmartBuysOnly or if mailed by either party certified mail, return receipt requested, or by a nationally recognized overnight courier service, receipt confirmed. Notices to you via email will be deemed effective at the time the email is sent. In the case of notices via certified mail or courier service, notices will be deemed effective upon the date of receipt. Notices to you will be addressed to the email or physical address you provided in the User Registration and notices to SmartBuysOnly must be mailed and addressed to SmartBuysOnly, Attn: Legal Department, 7601 Penn Ave. South, Richfield, MN 55423, unless either party notifies the other of a change of address or email address, in which case the latest noticed address or email address will be used. If SmartBuysOnly receives a message that your email address is no longer valid or that the email communication could not be delivered, notice shall be deemed to have been provided to you at the time SmartBuysOnly received notice of non-delivery.

19.    Authority.  You represent and warrant to SmartBuysOnly that if you are signing on behalf of a company or entity that will purchase the Listed Products that such company or entity is duly organized, validly existing and in good standing under the laws of the jurisdiction of its organization, and that you and the company have the requisite power and authority to execute and deliver this Agreement and the requisite power and authority and ability to perform the obligations under this Agreement, including the purchase of the Listed Products. You further represent and warrant that this Agreement has been duly authorized, executed and delivered by you and constitutes a valid and binding obligation of you or the company or entity on whose behalf you are entering into this Agreement enforceable against you or such company or entity according to its terms.

20.    General.  The headings contained herein are for the convenience of reference only and are not of substantive effect. If any provision herein shall be deemed or declared unenforceable, invalid or void by a court of competent jurisdiction, the same shall not impair any of the other provisions contained herein which shall be enforced in accordance with their respective terms. Any of the provisions of this Agreement may be waived by the party entitled to the benefit thereof. Neither party will be deemed, by any act or omission, to have waived any of its right or remedies hereunder unless such waiver is in writing and signed by the waiving party, and then only to the extent specifically set forth in such writing. A waiver with reference to one event will not be construed as continuing or as a bar to or waiver of any other right or remedy, or as to a subsequent event. You understand and agree that the sale of Listed Product by SmartBuysOnly (or Third Party Seller, as applicable) or through the Site is not exclusive. SmartBuysOnly may sell the same type of inventory to other bidders. You further understand and agree that SmartBuysOnly is not guaranteeing any minimum quantity, quality or a certain type of product. This Agreement constitutes the entire agreement and understanding between the parties with respect to the subject matter hereof and supersedes all prior agreements and understandings relating to such subject matter, terms of which can be modified only in writing. No amendment to this Agreement will be effected by the acknowledgement or acceptance of a purchase order, invoice, or other forms stipulating additional or different terms. In the event of any conflict between the terms of use on the Site and this Agreement, the terms and conditions of this Agreement shall govern. The expiration or termination of this Agreement will not terminate vested rights of either party from any liabilities or obligations incurred under this Agreement prior to or which by its express terms or by their nature are intended to survive expiration or termination, including but not limited to provisions relating to confidentiality, payment, sanitization obligations, and indemnification.



EXHIBIT A
Media/Device Data Sanitization Standards - SmartBuysOnly

This Exhibit A is attached to and incorporated within the Agreement.

Media/Device Data Sanitization Standards - SmartBuysOnly
Purpose

SmartBuysOnly has several businesses and capabilities that require the handling of media and/or devices which may contain data. As it relates to these standards, data is defined as any personally identifiable information (e.g., data that can be tied to a specific individual) about a customer or information owned or created by a customer (e.g., photos, videos, movies, documents) and subsequently stored on a product, device or the media contained therein.

This data is valuable to the person to which it belongs and therefore there are inherent risks in handling these units and inadvertently exposing or sharing this information with someone other than the owner of the data.

Standard

Prior to transfer, disposal, refurbishing, recycling, resale or any other disposition, all devices capable of data storage and/or storage media of any kind must be subjected by you to a process where the data is removed from the device (or made inaccessible) whereby it is immune to attack and incapable of being recovered by commercially available tool sets ("sanitized").

Without limiting the foregoing, you will use the sanitization methods defined in the following table with respect to each specific device type identified. Variation from the prescribed sanitization method is permitted only upon written approval by SmartBuysOnly. If you identify a device type that is not included in the table, you will promptly notify SmartBuysOnly of same so that a sanitization method can be identified and approved prior to handling these devices.

Device/Media Type

Sanitization Method

Mobile Computing (e.g., laptops)

Multi-pass secure data removal.

Desktop PCs

Hard Drives (internal and external)

Flash Drives/Memory Cards

Multi-pass secure data removal.

Gaming Systems

Pre-approved, manufacturer-established procedures for secure data removal (e.g., restoring unit to factory default state); or, if such procedures are unavailable, a secure data removal of the internal data storage device followed by the loading of the appropriate software applications.

Digital Cameras

Removable media must be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the testing process requires a picture be taken by [YOUR NAME], a sign will be created that reads "[YOUR NAME]-Tested" so purchaser does not mistake picture for another person's data.

Camcorders

Removable media must be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the testing process requires a picture be taken by [YOUR NAME], a sign will be created that reads "[YOUR NAME]-Tested" so purchaser does not mistake picture for another person's data.

Phones/PDA/PDEDs

Removable media to be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. SIM cards, where applicable, must be removed from the device and physically destroyed. Data contained within the device's internal memory - including, but not limited to, phone logs, pictures, text messages, SMS messages, personal applications, phonebooks, calendars, tasks, and so forth - must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.

MP3 Players

Removable media to be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory - including, but not limited to music, album art, pictures, and so forth - must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. If the device contains an internal hard drive - a low-level secure wipe followed by the loading of the devices appropriate software shall be deemed acceptable.

Digital Picture Viewers

Removable media to be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.

DVRs (Digital Video Recorders)

Removable media to be removed from the device and data sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal. Data contained within the device's internal memory must be sanitized using pre-approved, manufacturer-established procedures for secure data removal; or, if such procedures are unavailable, multi-pass secure data removal.

 

 

 

 

 

SmartBuysOnly.com™ Website

 

Terms of Use

Welcome to the SmartBuysOnly.com™ Website (hereinafter, the "Website"). By using this Website you agree to be bound by its terms of use.

The Website is owned and operated by SmartBuysOnly Stores, L.P. References to "SmartBuysOnly", "SmartBuysOnly.com", "Website", or "SmartBuysOnly" may refer to SmartBuysOnly Stores, L.P. or their affiliates and subsidiaries.

SmartBuysOnly reserves the right to make changes to the terms of use for this Website at any time. It is your responsibility to check the terms of use for updates. If you do not agree to the terms of use listed here, please do not use this Website.

Personal and Limited Commercial Use

SmartBuysOnly grants you the right to use this Website for your personal viewing and limited commercial use.

Commercial users may access the Website to view, bid, and buy product. Personal or commercial users may not copy, reproduce or download content from the Website for the purpose of re-selling or re-distributing the content.

Termination of Use

SmartBuysOnly may, at its sole discretion, terminate your use of this Website at any time. SmartBuysOnly reserves the right to change, suspend, or discontinue all or any aspects of the SmartBuysOnly.com Website at any time.

Intended for Users Over 18

This Website is intended for use by those individual 18 year of age or older. Users under the age of 18 should not use this site.

Intellectual Property Rights

All content on this Website including information, videos, music, graphics, and other material is protected by copyright, trademark, patent, or other rights. Except as expressly authorized or licensed, you may not copy, reproduce, modify, augment, remove, delete, transfer, sell, lease, rent, or create derivative works from any of the content on this Website.

The SmartBuysOnly, SmartBuysOnly.com, and other trademarks on this site are the property of their respective owners.

By using this Website, you agree that any information such as suggestions, ideas, or comments you send to SmartBuysOnly is non-confidential. Furthermore, by submitting any solicited or unsolicited information using this Website, you grant SmartBuysOnly an irrevocable and unrestricted worldwide license to use, modify, reproduce, transmit, display, and distribute such materials, information, suggestions, ideas or comments for any purpose whatsoever to the extent permitted by law.

You are responsible for the suggestions, ideas, or comments that you submit to SmartBuysOnly and you agree to defend, indemnify and hold SmartBuysOnly harmless for any and all claims related to you submission. You also represent and warrant that you own, control, or have permission to use the content that you submit to this Website.

Security

This Website may only be used for lawful purposes. Users of this Website are prohibited from (a) exceeding authorized access (b) tampering with the Website (c) misrepresenting the identity of a user (d) attempting to probe, scan, or test the vulnerability of a system or network or breach security or authentication measures without proper authorization (e) use or launch an automated system including, but not limited to, spiders, bots, readers, or any other automated means of accessing the site that would place a greater burden on our servers than would be possible by a human during the same period of time.

Applicable Law

This Website is created, operated, and controlled, by SmartBuysOnly in the State of California, United States of America. The laws of the State of California will control the terms and conditions without giving effect to any principles of conflict of laws.

Links to Third-Party Sites

This Website contains links to third party sites. These links are provided for your convenience. SmartBuysOnly does not warrant or make any representation about the substance, quality, functionality, accuracy, fitness for a particular purpose, merchantability or any other representation about the third party site or its content. A link to a third party site on this Website does not constitute sponsorship, endorsement, approval or responsibility for the third party site. The conditions of use and privacy policy of any third party site may differ substantially from this Website. Please review the terms of use on the third party site carefully.

Notification of Copyright Infringement Under the Digital Millennium Copyright Act

If you believe that your copyrighted material may have been infringed, please provide SmartBuysOnlys Copyright Agent with the following information in writing:

  • A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
  • Identification of the copyrighted work claimed to have been infringed, or if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
  • Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material.
  • Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and if available, an e-mail address at which the complaining party may be contacted.
  • A statement that the complaining party has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
  • A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

 

SmartBuysOnlys designated agent to receive notifications of claimed infringement can be reached by:

Mail:

SmartBuysOnly or CompuTech

 

12446 Brookhurst Street  Garden Grove, CA 92840

 

E-mail:
Shop@SmartBuysOnly.com

Phone:

(714) 530-5666

For additional information regarding this procedure, please reference 17 USC 512.

Privacy

Please review the separate privacy policy for information on the privacy practices of this Website.

Severability

If any part of these terms is found to be unenforceable, the remainder of these terms will remain in full force and effect.

Disclaimer and Limitation of Liability

By using this Website, you expressly agree that use of this Website is at your sole risk. This Website is provided on an "AS IS" and "as available" basis. SmartBuysOnly does not warrant that use of this Website will be uninterrupted or error-free.

SmartBuysOnly specifically disclaims all warranties, whether expressed or implied, including but not limited to warranties of title, merchantability or fitness for a particular purpose. Furthermore, under no circumstances shall SmartBuysOnly be liable for any direct, indirect, incidental, special, or consequential damages that result for your use or inability to use this Website.

Some states do not allow exclusion of implied warranties or limitation of liability for incidental or consequential damages, so the above limitations or exclusions may not apply to you. In such states, the liability of SmartBuysOnly, third party content providers, and their respective agents, shall be limited to the greatest extent permitted by law.

Owner and Operator of the SmartBuysOnly Website

SmartBuysOnly Stores, L.P., a subsidiary of SmartBuysOnly Co., Inc., owns and operates the Website.

The Website address is www.SmartBuysOnly.com.

The mailing address for SmartBuysOnly is:

SmartBuysOnly or CompuTech

12446 Brookhurst Street  Garden Grove, CA 92840

 

©2012 SmartBuysOnly, Inc. All Rights Reserved.

 

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