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Surplus, Inc., DBA Surplus.com®
2. About Surplus, Inc.
3. Using Surplus, Inc.
4. Policy Enforcement
6. Listing Conditions
7. Purchase Conditions
8. International Buying and Selling; Translation
10. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
12. Authorization to Contact You; Recording Calls
13. Additional Terms
Returns and Cancellations
Global Shipping Program
14. Disclaimer of Warranties; Limitation of Liability
17. Legal Disputes
This User Agreement, the Mobile devices terms, and all policies and additional terms posted on and in our sites, applications, tools and services (collectively "Services") set out the terms on which Surplus, Inc. Offers you access to and use of our Services. You can find an overview of our policies here. The Mobile devices terms, all policies and additional terms posted on and in our sites, applications, tools, and services are incorporated into this User Agreement. You agree to comply with all of the terms of this User Agreement when accessing or using our Services.
The entity you are contracting with is: Surplus, Inc. Inc., 1702 S Harbor Lane, Annapolis, MD., 21401, if you reside in the United States; Surplus, Inc. or if you reside in any country (as of June 1, 2018, this entity will be Surplus, Inc. In this User Agreement, these entities are individually and collectively referred to as "Surplus, Inc. and / or Surplus.com® ," "we," or "us."
Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us or our agents to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Section B ("Agreement to Arbitrate")). Unless you opt out: (1) you will only be permitted to pursue claims against us or our agents on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and (2) you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
2. About Surplus, Inc.
Surplus, Inc. is a marketplace that allows users to offer, sell and buy just about anything LEGAL in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer. Surplus, Inc. is not a traditional auctioneer.
While we may provide pricing, shipping, listing, sourcing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, Surplus, Inc. has no control over and does not guarantee: the existence, quality, safety or legality of items advertised; the truth or accuracy of users' content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item. WE will check claims ASAP we receive them.
3. Using Surplus.com® is a dba Surplus, Inc.
In connection with using or accessing the Services you will not:
Use our site if you do not agree with all terms and conditions as posted.
Post, list or upload content or items in inappropriate categories or areas on our sites;
Breach or circumvent any laws, third-party rights or our systems, policies, or determinations of your account status;
Use our Services if you are not able to form legally binding contracts (for example, if you are under 18 years old), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
Fail to pay for items purchased by you, unless you have a valid reason as set out in a Surplus, Inc. policy, for example, the seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot contact the seller (see our Unpaid item policy);
Fail to deliver items sold by you, unless you have a valid reason as set out in a Surplus, Inc. Policy, for example, the buyer fails to comply with the posted terms in your listing or you cannot contact the buyer;
Manipulate the price of any item or interfere with any other user's listings; Post false, inaccurate, misleading, deceptive, defamatory, or libelous content; Take any action that may undermine the feedback or ratings systems (see All about our Feedback policies); Transfer your Surplus.com® account (including Feedback) and user ID to another party without our consent; Distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes; Distribute viruses or any other technologies that may harm Surplus, Inc. and/or Surplus.com® or the interests or property of users; Use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access our Services for any purpose, except with the prior express permission of Surplus, Inc. ; Interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure; Export or re-export any Surplus.com®. Application or tool, except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions; Infringe the copyright, trademark, patent, publicity, moral, database, and/or other intellectual property rights (collectively, "Intellectual Property Rights") that belong to or are licensed to Surplus, Inc. . Some, but not all, actions that may constitute infringement are reproducing, performing, displaying, distributing, copying, reverse engineering, decompiling, disassembling, or preparing derivative works from content that belongs to Surplus, Inc. or someone else; Infringe any Intellectual Property Rights that belong to third parties affected by your use of the Services or post content that does not belong to you;
Commercialize any Surplus, Inc. Application or any information or software associated with such application, except with the prior express permission of Surplus, Inc. ; Harvest or otherwise collect information about users without their consent; or Circumvent any technical measures we use to provide the Services.
Sellers must meet Surplus, Inc.'s minimum performance standards. Failure to meet these standards may result in Surplus, Inc. charging you additional fees, and/or limiting, restricting, suspending, or downgrading your seller account.
If we believe you are abusing Surplus, Inc. and/or our Services in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your account(s), remove, not display, and/or demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
If we believe you are violating the policy on offers to buy or sell outside of Surplus, Inc., you may be subject to a range of actions, including limits on your buying and selling privileges, restrictions on listings and account features, suspension of your account, application of fees, and recovery of expenses for policy monitoring and enforcement. If you are a seller and you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Surplus, Inc., you may be liable to pay a final value fee applicable to that item, even if the item does not sell.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
4. Policy Enforcement
When a buyer or seller issue arises, we may consider the user's performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.
The fees we charge for using our Services are listed on our Standard selling fees page. We may change our seller fees from time to time by posting the changes on the Surplus.com® site, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees. If you are a seller, you are liable for transaction fees arising out of all sales made using some or all Surplus, Inc. Services, even if sales terms are finalized or payment is made outside of Surplus, Inc. In particular, if you offer or reference your contact information or ask a buyer for their contact information in the context of buying or selling outside of Surplus.com® you may be liable to pay a final value fee applicable to that item, even if the item doesn't sell, given your usage of Surplus, Inc. Services for the introduction to a buyer. You must have a payment method on file when selling through Surplus, Inc. Services and pay all fees and applicable taxes associated with our Services by the payment due date. If your payment method fails or your account is past due, we may collect amounts owed by charging other payment methods on file with us, retain collection agencies and legal counsel, and, for accounts over 60 days past due, request that PayPal deduct the amount owed from your PayPal account balance. In addition, you will be subject to late fees. Surplus, Inc., or the collection agencies we retain, may also report information about your account to credit bureaus, and as a result, late payments, missed payments, or other defaults on your account may be reflected in your credit report. If you wish to dispute the information Surplus, Inc. Reported to a credit bureau (i.e., Experian, Equifax or TransUnion, etc.) please contact us at Surplus, Inc. Inc., 1702 S. Harbor Lane, Annapolis, MD 21401. If you wish to dispute the information a collection agency reported to a credit bureau regarding your Surplus.com® account, you must contact the collection agency directly.
Seller fees don't purchase exclusive rights to item exposure on Surplus, Inc., whether on a web page, mobile app, or otherwise. We may, in our sole discretion and without consent from, or payment, fee reduction, or other credit to, sellers, display third-party advertisements (including links and references thereto) or other content in any part of our Services.
6. Listing Conditions
When listing an item, you agree to comply with Surplus, Inc.'s Listing policies and Selling practices policy and that:
You are responsible for the accuracy and content of the listing and item offered; Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Surplus.com® can't guarantee exact listing duration. When you use the consumer seller listing tool to create listings, your fixed-price listings may renew automatically every 30 days, based on the listing terms at that time, until the quantities sell out or until you cancel the listing. Content that violates any of Surplus, Inc.'s policies may be modified, obfuscated or deleted at Surplus, Inc.'s discretion. We may revise product data associated with listings to supplement, remove, or correct information. We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to: Buyer’s location, search query, browsing site, and history; Item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query; Seller’s history, including listing practices, detailed Seller Ratings, Surplus.com®, policy compliance, Feedback, and defect rate; and Number of listings matching the buyer's query. To drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer. Some advanced listing upgrades will only be visible on certain Services. Surplus, Inc.'s Duplicate listings Policy may also affect whether your listing appears in search results.
Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results
We may provide you with optional recommendations to consider when creating your listings. Such recommendations may be based on the aggregated sales and performance history of similar sold and current listings; results will vary for individual listings. To drive the recommendations experience, you agree that we may display the sales and performance history of your individual listings to those of other sellers
7. Purchase Conditions
When buying an item, you agree to the Rules and policies for buyers and that: You are responsible for reading the full item listing before making a bid or commitment to buy. You enter into a legally binding contract to purchase an item when you commit to buy an item, your offer for an item is accepted, or if you have the winning bid (or your bid is otherwise accepted). For motor vehicles and real estate, a bid or offer initiates a non-binding transaction representing a buyer's serious expression of interest in buying the seller's item and does not create a formal contract between the buyer and the seller. Real Estate LIVE auctions are also available at additional terms and conditions and fees. We do not transfer legal ownership of items from the seller to the buyer. 8. International Buying and Selling; Translation.
Many of our Services are accessible to international sellers and buyers. Surplus.com is set up for USA and Canada Users, mainly. We may offer certain programs, tools, and site experiences of particular interest to international sellers and buyers, such as estimated local currency conversion and international shipping calculation tools. Sellers and buyers are responsible for complying with all laws and regulations applicable to the international sale, purchase, and shipment of items. If you purchase an item on a Surplus, Inc. Site other than Surplus, Inc., you are subject to the User Agreement of that other Surplus.com® sites with respect to that particular purchase. Surplus CAN NOT always be perfect to laws in all countries! Surplus.com tries BUT, if you use Surplus.com site, we use laws pertaining to the laws of Maryland in the U.S.A. IF you do not agree to this, YOU CAN NOT USE OUR SITE! Any and all law suits will be limited to $10.00 in all cases, in aggregate.
You may list your items directly on Surplus. com USA, Additionally, you may direct us to display your listing on Surplus, Inc. Sites other than the original Surplus.com® listing site, including where you choose to list an item with an international shipping option (such as worldwide shipping or the Global Shipping Program); the appearance of your listings on these sites is not guaranteed. When you sell your items internationally, you agree to be subject to terms and agreement of Surplus.com's User Agreement, policies, and our Surplus, Inc. You may adjust your account settings within My Surplus.com®. to indicate your preferences on international shipping by excluding international shipping and applying an exclusion list to the applicable countries.
You authorize us to use automated tools to translate your Surplus.com® content and member-to-member communications, in whole or in part, into local languages where such translation solutions are available. We may provide you with tools which will enable you to translate content at your request. The accuracy and availability of any translation are not guaranteed, if available.
When providing content using the Services (directly or indirectly), you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub licensee (through multiple tiers) right to exercise any and all Intellectual Property Rights (as defined above) you have in that content in connection with our provision, expansion, and promotion of the Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, you waive your right to enforce against Surplus, Inc., our assignee's, our sub licensees, and their assignee's your Intellectual Property Rights in that content in connection with our, those assignee's, and those sub licensees' use of that content in connection with our provision, expansion, and promotion of the Services.
You represent and warrant that, for all such content you provide, you own or otherwise control all necessary rights to do so and to meet your obligations under this User Agreement. You represent and warrant that such content is accurate. You represent and warrant that use of any such content (including derivative works) by us, our users, or others in contract with us, and in compliance with this User Agreement, does not and will not infringe any Intellectual Property Rights of any third party. Surplus, Inc. takes no responsibility and assumes no liability for any content provided by you or any third party.
Sellers offer product data (including images, descriptions and specifications) that are provided by third parties. You may use that content solely in your Surplus.com® listings. Surplus, Inc. may modify or revoke that permission at any time in our sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. You agree not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in your listings). NO counterfeited items are allowed on this site. We try to offer reliable product data, but cannot promise that the content provided through the Services will always be available, accurate, complete, and up-to-date. You agree that Surplus, Inc. is not responsible for examining or warranting the listings or content provided by third parties through the Services, and that you will not attempt to hold us or our data providers liable for inaccuracies. As a seller, you agree to ensure that content directly associated with your listings is accurate.
The name "Surplus, Inc." and other Surplus.com® marks, logos, designs, and phrases that we use in connection with our Services are trademarks, service marks, or trade dress of Surplus, Inc. in the U.S. and other countries. They may not be used without the express written prior permission of Surplus, Inc. .
10. Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code
We respond to notices of alleged copyright infringement under the United States Copyright Act. Surplus, Inc. 's Verified Rights Owner (VeRO) program works to ensure that listed items and content on our site or in our apps do not infringe upon the copyright, trademark, or certain other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify our customerservice@Surplus.com® and we will investigate. Learn how to submit a notice to Surplus, Inc.
To protect Surplus, Inc. from risk of liability for your actions as a seller, Surplus, Inc. Has at times recommended, and may continue to recommend, that PayPal and other payment services restrict access to funds in a seller's PayPal account based on certain factors, including, but not limited to, selling history, seller performance, returns, riskiness of the listing category, transaction value, this may result in PayPal and other payment services restricting funds in your accounts.
12. Authorization to Contact You; Recording Calls; Analyzing Message Content
Surplus, Inc. may contact you using auto-dialed or prerecorded calls and text messages, at any telephone number that you have provided us, to: (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; (iv) collect a debt; (v) poll your opinions through surveys or questionnaires; or (vi) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Surplus, Inc. may also contact you using auto-dialed or prerecorded calls and text messages for marketing purposes (e.g., offers and promotions), if you consent to such communications. Our collection, use, disclosure, retention, and protection of your personal information is governed by the User Privacy Notice. As described in our User Privacy Notice, Surplus, Inc. may collect other telephone numbers for you and may place manual non-marketing calls to any of those numbers and auto-dialed non-marketing calls to any landline. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits. If you do not wish to receive such communications, you may change your communications preference at any time, including through the communication preferences
Surplus, Inc. may share your telephone number with its authorized service providers as stated in our User Privacy Notice. These service providers may contact you using auto dialed or prerecorded calls and text messages, only as authorized by Surplus, Inc. to carry out the purposes identified above.
Surplus, Inc. May, without further notice or warning and in its discretion, monitor or record telephone conversations you or anyone acting on your behalf has with Surplus, Inc. or its agents for quality control and training purposes, or for its own protection.
Surplus, Inc.’s manual or/and automated systems scan and analyze the contents of every message sent through its messages platform, including messages between users, to detect and prevent fraudulent activity or violations of Surplus, Inc.’s User Agreement, including the incorporated terms, notices, rules, and policies. This scanning and analysis may occur before, during, or after the message is sent, or while in storage, and may result in your message being delayed or withheld. Surplus, Inc. may store message contents, including to conduct this scanning and analysis.
Privacy of Others; Marketing
If Surplus, Inc. and Surplus.com® provides you with information about another user, you agree you will use the information only for the purposes that it is provided to you. You may not disclose, sell, rent, or distribute a user's information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.
13. Additional Terms
Returns and Cancellations
Sellers can create rules to automate replacements, returns, and refunds under certain circumstances. For all new sellers, in listings where returns are accepted, Surplus, Inc.will set a default rule that automates the return process. Sellers may remove or customize their return preferences in their account settings within My Surplus.com®. Where settings have been set to automatically accept requests for returns or replacements, and Surplus, Inc. generated return shipping label will be provided to your buyer on a collect basis when possible. You agree to comply with our returns policy.
When an item is returned, to refund the buyer, you (as seller) authorize Surplus, Inc. to request that PayPal remove the refund amount (in same or other currency) from your PayPal account, place the amount on your invoice, plus fees incurred, and/or charge your payment method on file.The cost of return shipping for an item that is not as described is the seller's responsibility. You (as seller) authorize Surplus, Inc. to place the return shipping label cost on your invoice, subject to your automatic payment method on file when: A Surplus, Inc. -generated return shipping label is used, and the seller is responsible for its cost; Returns have been automated; You fail to send your buyer a return shipping label and, instead, an Surplus, Inc. -generated shipping label is used; and/or A transaction is cancelled, and to refund the buyer, you (as seller) authorize Surplus, Inc. to request that PayPal and payment services used, remove the refund amount (in same or other currency) from your payment account. See canceling a transaction for more details.
You consent to the disclosure of certain personally identifiable information, as well as listing and order information, by Surplus, Inc. to Pitney Bowes Inc., and by Pitney Bowes Inc. to its affiliates, service providers, and other third parties (such as customs and revenue authorities, as well as other government agencies), in connection with the processing, export and customs clearance, and international transportation of any item. Surplus, Inc.does not control the privacy policies of Pitney Bowes Inc., its affiliates, or its service providers, and you are subject to the privacy policies of those parties, as applicable.
Additional information about the program, including policies governing feedback, the handling of lost, damaged, and undeliverable items, returns, and the resolution of buyer protection claims for items that you sell through the program, can be found on our Global Shipping Program.
Surplus, Inc. Money Back Guarantee, if and when available. Most Surplus.com® sales go smoothly, but if there's a problem with a purchase, the Surplus, Inc. Money Back Guarantee helps buyers and sellers communicate and resolve issues. You agree to comply with the policy and permit us to make a final decision on any Surplus.com®, Money Back Guarantee case. If you (as seller), choose to reimburse a buyer, or are required to reimburse a buyer or Surplus, Inc. under the Surplus, Inc. You authorize Surplus, Inc. to request that PayPal remove the reimbursement amount (in same or other currency) from your PayPal account, place the amount on your invoice, and/or charge your payment method on file. If we cannot get reimbursement from you, we may collect the outstanding sums using other collection mechanisms, including retaining collection agencies. We may suspend the Surplus, Inc. Money Back Guarantee in whole or in part without notice if we suspect abuse or interference with the proper working of the policy.
14. Disclaimer of Warranties; Limitation of Liability
We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services. Bid update and other notification functionality in Surplus, Inc.’s applications may not occur in real time. Such functionality is subject to delays beyond Surplus, Inc.’s control.
You agree that you are making use of our Services at your own risk, and that they are being provided to you on an "AS IS" and "AS AVAILABLE" basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.
In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:
the content you provide (directly or indirectly) using the Services; your use of or your inability to use our Services; pricing, shipping, format, or other guidance provided by Surplus, Inc. ;
delays or disruptions in our Services; viruses or other malicious software obtained by accessing or linking to our Services; glitches, bugs, errors, or inaccuracies of any kind in our Services;
damage to your hardware device from the use of any Surplus, Inc. Service; the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items; A suspension or other action taken with respect to your account or breach of the Abusing Surplus, Inc. Section above; the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or your need to modify practices, content, or behavior, or your loss of or inability to do business, as a result of changes to this User Agreement or our policies. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) any amounts due under the Surplus, Inc. Money Back Guarantee up to the price the item sold for on Surplus, Inc. (including any applicable sales tax) and its original shipping costs, (b) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (c) $100.
If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. In entering into this release you expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release.
You will indemnify and hold us (including our affiliates and subsidiaries, as well as our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this User Agreement, your improper use of Surplus, Inc. 's Services or your breach of any law or the rights of a third party.
17. Legal Disputes
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND SURPLUS, INC./SURPLUS.COM® HAVE AGAINST EACH OTHER ARE RESOLVED.
You and Surplus, Inc. Agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Surplus, Inc. (Including any claim or dispute between you and a third-party agent of Surplus, Inc.) that relates in any way to or arises out of this or previous versions of this User Agreement, your use of or access to the Services, the actions of Surplus, Inc.or its agents, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.
A. Applicable Law
You agree that, except to the extent inconsistent with or preempted by federal U.S. law, the laws of the State of Maryland, without regard to principles of conflict of laws, will govern this User Agreement and any claim or dispute that has arisen or may arise between you and Surplus, Inc. , except as otherwise stated in this User Agreement.
B. Agreement to Arbitrate
G. MANDATORY ARBITRATION
In the event of a dispute over a claim or coverage You agree to file a written claim with Us and allow Us thirty (30) calendar days to respond to the claim. The parties agree to mediate in good faith, before resorting to mandatory arbitration, in the state of Maryland. Except where prohibited, if a dispute arises from or relates to this Agreement or its breach, and if the dispute cannot be settled through direct discussions You agree that:
1. Any and all disputes, claims and causes of action arising out of or connected with this Agreement shall be resolved individually, without resort to any form of class action, multiple plaintiff, representative, or similar proceeding (“Class Action”). The parties expressly waive any ability to maintain any Class Action in any forum. The arbitrator shall not have authority to combine or aggregate similar claims or conduct any Class Action nor make an award to any person or entity not a party to the arbitration. Any claim that all or part of this Class Action waiver is unenforceable, unconscionable, void, or voidable may be determined only by a court of competent jurisdiction and not by an arbitrator. THE PARTIES UNDERSTAND THAT THEY WOULD HAVE HAD A RIGHT TO LITIGATE THROUGH A COURT, TO HAVE A JUDGE OR JURY DECIDE THEIR CASE AND TO BE PARTY TO A CLASS OR REPRESENTATIVE ACTION. HOWEVER, THEY UNDERSTAND AND CHOOSE TO HAVE ANY CLAIMS DECIDED INDIVIDUALLY, THROUGH ARBITRATION.
2. Any and all disputes, claims and causes of action arising out of or connected with this Agreement (including but not limited to whether a particular dispute is arbitrate hereunder) shall be resolved exclusively by the American Arbitration Association in the state of Maryland, USA, under its Commercial Mediation Rules. Controversies or claims shall be submitted to arbitration regardless of the theory under which they arise, including without limitation contract, tort, common law, statutory, or regulatory duties or liability.
3. Any and all claims, judgments and awards , in any State of Country-USA, shall be limited to actual out-of-pocket costs incurred to a maximum of $25.00 per claim, but in no event attorneys’ fees or any Court fees.
4. Under no circumstances will You be permitted to obtain awards for, and You hereby waive all rights to claim, indirect, punitive, incidental and consequential damages and any other damages, other than for actual out-of-pocket expenses, and any and all rights to have damages multiplied or otherwise increased. All issues and questions concerning the construction, validity, interpretation and enforceability of this Agreement, shall be governed by, and construed in accordance with, the laws of the State of Maryland, U.S.A. without giving effect to any choice of law or conflict of law rules (whether of the State of Maryland or any other jurisdiction), which would cause the application of the laws of any jurisdiction other than the U.S.A in the the State of Maryland.
5. Utah Residents: ANY MATTER IN DISPUTE BETWEEN YOU AND US MAY BE SUBJECT TO ARBITRATION AS AN ALTERNATIVE TO COURT ACTION PURSUANT TO THE RULES OF THE AMERICAN ARBITRATION ASSOCIATION, A COPY OF WHICH IS AVAILABLE ON REQUEST FROM US. ANY DECISION REACHED BY ARBITRATION SHALL BE BINDING UPON BOTH YOU AND US. THE ARBITRATION AWARD MAY INCLUDE ATTORNEY’S FEES IF ALLOWED BY STATE LAW AND MAY BE ENTERED AS A JUDGMENT IN ANY COURT OF PROPER JURISDICTION.
6. Wisconsin Residents: Unless You decide to file a claim solely in Your individual capacity in Wisconsin small claims court and notify Us in advance of Your decision to do so, any claim, dispute or controversy, regarding any contract, tort, statute, or otherwise (“Claim”), arising out of or relating to this contract or the relationships among the parties hereto shall be resolved by one arbitrator through binding arbitration administered by the American Arbitration Association (“AAA”), under the AAA Commercial or Consumer, as applicable, Rules in effect at the time the Claim is filed (“AAA Rules”). Copies of the AAA Rules and forms can be located at www.adr.org, or by calling 1-800-778-7879. You may elect to have any arbitration under this Agreement held in the state of Wisconsin or within the jurisdiction in which the covered property is located. The arbitrator’s decision shall be final, binding, and non-appealable. Judgment upon the award may be entered and enforced in any court having jurisdiction. Neither party shall sue the other party other than as provided herein or for enforcement of this clause or of the arbitrator’s award; any such suit may be brought only in Federal District Court for the District or, if any such court lacks jurisdiction, in any state court that has jurisdiction. The arbitrator, and not any federal, state, or local court, shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, unconscionably, arbitrability, enforce-ability or formation of this Agreement including any claim that all or any part of the Agreement is void or voidable. However, the preceding sentence shall not apply to Section G (1) of this contract.
7. Wyoming Residents: At the time of any dispute, the parties hereto may agree to resolve their difference by arbitration in a separate written agreement.
You and Surplus, Inc. Each agree that any and all disputes or claims that have arisen, or may arise, between you and Surplus, Inc. (Including any disputes or claims between you and a third-party agent of Surplus, Inc.) that relate in any way to or arise out of this or previous versions of the User Agreement, your use of or access to the Services, the actions of Surplus, Inc. or its agents, or any products or services sold, offered, or purchased through the Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
Prohibition of Class and Representative Actions and Non-Individualized Relief
YOU AND SURPLUS, INC., dba SURPLUS.COM® AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND SURPLUS, INC. AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON'S OR PARTY'S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A CONSOLIDATED, REPRESENTATIVE, CLASS, OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY'S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph's limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Surplus, Inc. 's right to appeal the court's decision. All other claims will be arbitrated.
Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as a court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), shall be for a court of competent jurisdiction to decide.
The arbitration will be conducted by the American Arbitration Association ("AAA") under its rules and procedures, including the AAA's Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA's rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word "arbitrator" in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA's rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.
A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute ("Notice"). You may download a form Notice
. The Notice to Surplus, Inc. Should be sent to Surplus, Inc. Inc., Attn: Litigation Department, Re: Notice of Dispute, 1702 S. Harbor Lane, Annapolis, MD 21401. Surplus, Inc. Will send any Notice to you to the physical address we have on file associated with your Surplus, Inc. account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party is asserting and the relief sought.
If you and Surplus, Inc. are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Surplus, Inc. may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA's site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Surplus, Inc. at the following address: Surplus, Inc. , Inc. 1702 S. Harbor Lane, Annapolis, MD 21401. In the event Surplus, Inc. Initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Surplus, Inc.account. Any settlement offer made by you or Surplus, Inc. shall not be disclosed to the arbitrator.
The arbitration hearing shall be held in Anne Arundel County, Annapolis, Maryland or at another mutually agreed location. If the value of the relief sought is $10,000 or less, you or Surplus, Inc. May elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Surplus, Inc. subject to the arbitrator's discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Surplus, Inc. may attend by telephone, unless the arbitrator requires otherwise.
The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Surplus, Inc. user to the extent required by applicable law. The arbitrator's award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.
Costs of Arbitration
Payment of all filing, administration and arbitrator fees will be governed by the AAA's rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $1,000 or less, at your request, Surplus, Inc. will NOT pay any or all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Surplus, Inc. Should be submitted by mail to the AAA along with your Demand for Arbitration and Surplus, Inc. YOU, not Surplus, Inc., will make arrangements to pay all necessary fees directly to the AAA. If (a) you willfully fail to comply with the Notice of Dispute requirement discussed above, or (b) in the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Surplus, Inc. for all fees associated with the arbitration paid by Surplus, Inc. if any on your behalf that you otherwise would be obligated to pay under the AAA's rules.
With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate ("Prohibition of Class and Representative Actions and Non-Individualized Relief"), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply.
IF YOU ARE A NEW USER OF OUR SERVICES, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE ("OPT-OUT") BY MAILING US A WRITTEN OPT-OUT NOTICE ("OPT-OUT NOTICE"). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO SURPLUS, INC. INC., ATTN: LITIGATION DEPARTMENT, RE: OPT-OUT NOTICE, Surplus, Inc., 1702 S. Harbor Lane, Annapolis, MD 21401
You must complete and mail that to us in order to opt out of the Agreement to Arbitrate. You must complete the Opt-Out Notice form by providing the information called for in the form, including your name, address (including street address, city, state and zip code), and the user ID(s) and email address(es) associated with the Surplus, Inc. Service account(s) to which the opt-out applies. You must sign the Opt-Out Notice for it to be effective. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of this User Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.
Future Amendments to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Surplus, Inc. prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Surplus, Inc. . We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on www.Surplus, Inc. at least 45 days before the effective date of the amendments and by providing notice through the Surplus, Inc. , email. If you do not agree to these amended terms, you may close your account within the 5-day period and you will not be bound by the amended terms.
C. Judicial Forum for Legal Disputes
Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Surplus, Inc. must be resolved exclusively by a state or federal court located in Anne Arundel County, Maryland. You and Surplus, Inc. Agree to submit to the personal jurisdiction of the courts located within Anna Arundel County, Maryland for the purpose of litigating all such claims or disputes.
Except as otherwise provided in this User Agreement, if any provision of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, and in such event, we will post notice on www.Surplus.com
Headings are for reference purposes only and do not limit the scope or extent of such Section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. We do not guarantee we will take action against all breaches of this User Agreement.
We may amend this User Agreement at any time by posting the amended terms on . Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide/POST to you 30 days' notice by posting the amended terms. Additionally, we will notify you through Surplus.com. Message Center and/or by email. Your continued access or use of our Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you and a Surplus, Inc. Representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
The policies and terms posted on our Services may be changed from time to time. Changes take effect when we post them on the Surplus.com site.
If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.
The User Agreement and all terms and polices posted through our Services set forth the entire understanding and agreement between you and Surplus, Inc. and supersede all prior understandings and agreements of the parties.
The following Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Release, Indemnity, Legal Disputes, and General.
If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210. You must also copy at the same time.
Pursuant to 815 ILCS 414/1.5(c), for transactions involving tickets, buyers and sellers may elect to submit complaints against one another to the American Arbitration Association ("AAA") under its rules and procedures. The AAA's rules are available at www.adr.org. Such complaints shall be decided by an independent arbitrator in accordance with this User Agreement. Buyers and sellers further agree to submit to the jurisdiction of the State of Illinois for complaints involving a ticketed event held in Illinois. You must also copy at the same time
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