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THE
FOLLOWING DESCRIBES THE TERMS UNDER WHICH YOU WILL
BE GRANTED ACCESS TO THE EXCHANGE SERVICES OF GENTLY-USED.COM
Welcome to the User Agreement (the "Agreement"
or "User Agreement") for Gently-Used.com.
The laws and regulations of the State of California
and the United States govern the terms of this Agreement.
This Agreement describes the terms and conditions
applicable to your use of our services available
under the domain and sub-domains of www.Gently-Used.com.
If you do not agree to be bound by these terms and
conditions, do not use or access our services.
If you have any questions, please contact agreement@Gently-Used.com
You must read, agree with and accept all of the
terms and conditions contained in this User Agreement,
the Terms
of Use 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 Gently-Used.com
We strongly recommend that, as you read this User
Agreement, you also access and read the information
contained in the other pages and Websites referred
to in this document, as they may contain further
terms and conditions that apply to you.
We may amend this Agreement at any time by posting
the amended terms on the Site. Except as stated
below, all amended terms shall automatically be
effective 30 days after they are initially posted
on the Site.
This Agreement is effective upon acceptance in registration
for new registering users, and is effective on August
15, 2004.
| 1. |
Membership
Eligibility is Limited to Age 18 and Older.
Our services are available only to, and may
only be used by individuals who are age 18
or older. Our services are not available to
children (persons under the age of 18) or
emancipated minors. Breach of this requirement
will result in temporarily or indefinitely
suspended membership in Gently-Used.com.
If you are a 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 Gently-Used.com
account (including feedback) and User ID may
not be transferred or sold to another party.
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| 2. |
Fees
and Services.
We do not
accept payment for goods from Buyers or Sellers,
or intervene in disputes between Buyers and
Sellers. |
| 3. |
Gently-Used.com
is a venue only.
Gently-Used.com is a venue for advertising
only used baby, child or maternal goods. 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 offer items or the ability of Buyers
to receive the goods. We cannot ensure that
a buyer or seller will actually complete a
transaction. Consequently, we do not transfer
legal ownership of items from the Seller to
the Buyer, and nothing in this agreement shall
modify the governing provisions of Ca. Com.
Code § 2401(2) and Uniform Com. Code
§ 2-401(2), under which the Seller transfers
legal ownership of an item upon physical delivery
of the item to the Buyer. |
| 4. |
Identify
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,
Gently-Used.com 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. You may also
wish to consider using a third party escrow
service or services that provide additional
user verification. |
| 5. |
Release.
Because we are a venue, in the event that
you have a dispute with one or more users,
you release Gently-Used.com (and our officers,
directors, agents, subsidiaries, joint ventures
and 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." |
| 6. |
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 Gently-Used.com
is not responsible for the acts or omissions
of users on the Site. |
| 7. |
Sales
Transactions.
Seller's Responsibilities
Once a Seller opens an account, you are bound
to accept the sales transaction as posted.
Gently-Used.com is not responsible for any
agreements regarding price or shipping between
the Seller and Buyer.
Seller is responsible for notifying Gently-Used.com
if the goods advertised are sold through another
venue and requesting that the goods be removed
from Gently-Used.com.
Buyer's Responsibilities
By clicking on the acceptance button on the
Exchange Shopping Cart, Buyer agrees to be
bound by the conditions of exchange included
in the item's description so long as those
conditions of sale are not in violation of
this Agreement or unlawful. Unless the Seller
and the Buyer agree otherwise in a separate
written agreement, the Buyer will become the
item's lawful owner at the price agreed upon
and with physical receipt of the item from
the Seller, in accordance with Ca. Com. Code
§ 2401(2) and Uniform Com. Code §
2-401(2). Exchanges are not retractable unless
a clear typographical error has been made,
you cannot authenticate the Seller's or Buyer's
identity; or when the Seller does not conform
to the terms of delivery agreed upon for the
item. Once delivered, the sale is final.
Gently-Used.com is not responsible if items
listed for sale are no longer available, are
not in good working order, for variations
in price resulting from agreements made between
Buyer and Seller outside of the terms listed
on Gently-Used.com, or for resolving any disputes
that arise between Buyer and Seller. |
| 8. |
Listing
Goods for Sale.
You must be legally able to sell the item(s)
you list for exchange on the Site, implying
that you are currently the true and rightful
owner of the goods. You must describe your
item and all terms of exchange on the listing
page of the Site. Your listings may only
include text descriptions, graphics, pictures
and other content relevant to the exchange
of that item. All listed items must be listed
in an appropriate category. All items in
multiple item listings must be identical
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| 9. |
Fraud.
Without limiting any other remedies, Gently-Used.com
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 |
| 10. |
Your
Information.
Definition. "Your Information" is
defined as any information you provide to
us or other users in the registration or exchange
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. |
| 11. |
Information
About Others.
As a user of this Site, you agree not to disclose
any information that is part of Your Information
about an exchange partner to any third party
for marketing purposes. |
| 12. |
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, anti-discrimination
or false advertising); (e) be defamatory,
trade libelous, unlawfully threatening or
unlawfully harassing; (f) be obscene or contain
child pornography; (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. Your goods and
listings may not link directly or indirectly
or include descriptions of goods or services
that are prohibited under this Agreement or
that you do not have a right to link to or
sell. Furthermore, you may not list any item
on the Site (or consummate any transaction
that was initiated using our service) that
could cause us to violate any applicable law,
statute, ordinance or regulation, or that
violates our current Prohibited, Questionable
and Infringing Items. |
| 13. |
License.
You license Gently-Used.com to post your listing
solely to enable 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, sublicensable
(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. Gently-Used.com
will only use Your Information in accordance
with our Privacy Policy. |
| 14. |
Access and
Interference.
The Site contains robot exclusion headers.
Much of the information on the Site is updated
on a real time basis and is proprietary
or is licensed to Gently-Used.com by our
users or third parties. 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 written permission of Gently-Used.com
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.
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| 15. |
Cancellation
of Membership.
Without limiting other remedies, we may limit
your activity, immediately remove your exchange
requests 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. |
| 16. |
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. |
| 17. |
No
Warranty.
THE OFFICERS, DIRECTORS, SUPPLIERS AND EMPLOYEES
OF GENTLY-USED.COM PROVIDE OUR WEB SITE AND
SERVICES "AS IS" AND WITHOUT ANY
WARRANTY OR CONDITION, EXPRESS, IMPLIED OR
STATUTORY. WE, OUR OFFICERS, DIRECTORS, EMPLOYEES
AND OUR SUPPLIERS 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. |
| 18. |
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 $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. |
| 19. |
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. |
| 20. |
Legal
Compliance.
You agree to comply with all applicable domestic
and international laws, statutes, ordinances
and regulations regarding your use of our
service and your exchange of goods, listing,
solicitation of offers to exchange and shipping.
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| 21. |
No
Agency.
You and Gently-Used.com are independent contractors,
and no agency, partnership, joint venture,
employee-employer or franchiser-franchisee
relationship is intended or created by this
Agreement. |
| 22. |
Notices.
Except as explicitly stated otherwise, any
notices shall be given by postal mail to Gently-Used.com,
41750 Rancho Las Palmas Drive, Building D,
Suite 1, Rancho Mirage, CA 92270 or to the
Site user at the address provided in the registration
process. 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 Gently-Used.com
in Your Information. In such case, notice
shall be deemed given 3 days after the date
of mailing. |
| 23. |
Resolution
of Disputes between Buyers and Sellers.
Gently-Used.com disclaims any responsibility
for resolving disputes between Buyers and
Sellers of goods to be exchanged. All exchange
agreements are made at your own risk. Buyers
and Sellers must resolve disputes independently
of Gently-Used.com. |
| 24. |
Resolution
of Disputes with Gently-Used.com.
You agree that any disputes with Gently-Used.com
regarding the Site must be resolved by binding
arbitration. Administered by the American
Aribitration Association or JAMS according
to their recent applicable rules, or in mediation
provided by any other mutually agreed upon
ADR provider. Any judgment or agreement reached
shall be binding on both parties. Any judgment
on the award rendered by an arbitrator may
be entered in any court having jurisdiction
over the dispute. If any disputes cannot be
resolved through mediation, each party will
be responsible for his or her own attorney's
fees as required to complete the process of
binding arbitration. |
| 25. |
Any terms of this agreement
that are found invalid or unenforceable by
a court of law having jurisdiction shall not
affect the rest of the agreement. That provision
shall be struck and the rest of the agreement
shall remain in effect. This agreement shall
be governed by the laws of the State of California. |
| 26. |
Gently-Used.com does
not guarantee uninterrupted or secure access
to our services, and operation of this Site
may be interrupted or interfered with by factors
outside our control. |
| 27. |
This Agreement shall be considered set
forth in its entirety. No oral agreements
or writings other than those named in this
document shall be considered part of this
Agreement.
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