SlapSale Terms of Use

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The following Terms of Use shall apply to the relationship between Shattuck, LLC dba E-Surplus and dba Slapsale.com (“Slapsale,” “we” or “us”) and the end user (“you” or the “User”).  In the event that you are using our Websites, services or tools on behalf of your employer or another third party, the term “you” or “User” in these Terms of Use includes that employer or third party, and you are agreeing to these Terms of Use on behalf of both yourself and that employer or third party.

ACCEPTANCE OF TERMS

You agree and accept the current version of Terms of Use (which may be found at the following URL: http://www.slapsale.com/terms.aspx) by doing any of the following: registering for a Slapsale account; accessing or using www.slapsale.com, bidding on any auction item, or actively participating on the slapsale.com or Shattuck.com websites (each a “Website”).  Testing

By accepting these Terms of Use, you agree that the current version of the Terms of Use and the Privacy Policy (which may be found at the following URL: http://www.slapsale.com/policies.aspx#PrivacyPolicy) will apply whenever you use a Website or any service offered on a Website, or when you use the tools that are made available to interact with a Website or its related services.

LIMITED LICENSE

We grant you a nonexclusive, limited, revocable license to access and make personal use of the Websites. We further grant you a limited, nonexclusive and revocable right to create a hyperlink to the home page of a Website so long as the link does not portray the Website, us, any seller or other party using a Website, or our or their respective affiliates or products or services in a false, misleading, derogatory, or otherwise offensive matter.    

USING A WEBSITE

While using a Website or any associated services or tools, you will not, and the license granted above does not give you any rights to:

·         violate any laws, third party rights or our policies;

·         use our Websites, services or tools if you are not able to form legally binding contracts or are temporarily or indefinitely suspended from using our Websites, services or tools;

·         fail to pay for items on which you placed a winning bid, unless the seller has materially changed the item’s description after you bid, a clear typographical error is made, or you cannot reach the seller;

·         manipulate the price of any item or listing or interfere with any listing;

·         circumvent or manipulate our fee structure, the billing process, or fees owed to us;

·         post false, inaccurate, misleading, defamatory or libelous content;

·         transfer your user account to a third party without our consent;

·         distribute viruses or any other technologies that might harm the Websites or their associated services or tools, or any other user;

·         use any robot, spider, scraper or other automated means to access the Websites for any purpose without our express written permission;

·         copy, modify, or distribute rights or contents from the Websites or their associated services or tools, or any of our intellectual property; or

·         harvest or otherwise collect information about users, including email addresses, without their consent.

ABUSES OF A WEBSITE

Without limiting any other remedy, we may, in our sole discretion, limit, suspend or terminate any user’s account or access to a Website, prohibit access to a Website, exclude a user from an auction, block registration, delay or remove any content, and take technical and legal steps to keep users from using a Website or its associated services or tools, if we believe that a user is creating problems or potential legal liabilities, infringing the intellectual property rights of third parties, or acting or threatening to act inconsistently with the letter or spirit of these Terms of Use or any other policy affecting a Website.  We also reserve the right to cancel unconfirmed or inactive accounts, to exclude bids or offers, or to modify or discontinue a Website or any associated services or tools at any time and/or from time to time. 

TRADEMARKS

All logos or text displayed on the Websites containing the name or URL of the Website or any variation thereof are all trademarks or service marks of us or our licensors. All rights are reserved. These and other graphics, logos, service marks, trademarks and trade dress of us and our licensors used on the Websites may not be used without our or our licensors’ prior written consent, as the case may be. Without limiting the foregoing, none of the Websites’ trademark or trade dress may be used in connection with any product or service that is not ours, in any manner that is likely to cause confusion among users, or in any manner that disparages or discredits us, the Websites, or our licensors.  All use of and rights in trademarks of any third parties that appear on the Websites inure to the benefit of such third parties.

REGISTRATION

Registration of each buyer is a prerequisite for submitting bids on Slapsale.com.  By registering, you represent and warrant that all information provided in registration is true, accurate and complete.  You further agree to inform us immediately inform of any changes to your registration information.

All information that we collect regarding a buyer is collected and used in accordance with our Privacy Policy.  We strongly recommend that you review the terms of the policy, available here: http://www.slapsale.com/policies.aspx#PrivacyPolicy

ELIGIBILITY

You must be at least 18 years of age to register as a user on a Website.  You are prohibited from signing up using any person’s name other than your own in your registration.  To register as a buyer on the site, you must provide your name, phone number, email address, credit card payment information, and, if applicable, the name and address of the business on behalf of which you are acting.  Slapsale.com reserves the right to reject any registration at its sole discretion for any reason or for no reason.  By registering, the user represents and warrants that it is authorized to act on behalf of the stated business and that all identifying and contact details are true and accurate. 

Please make sure your mail reading program doesn't have filters enabled which would block email from our server.  You will not be able to access the site without the information contained in your confirmation email. 

USER ACCOUNTS

Users are assigned an account name and password upon successful registration. Users are responsible for all actions taken under their account name and password and shall only use the Website using their own account name and password.  Users must keep their password safe, must not disclose their password to any other person, and must not permit any other person to utilize their account details.  Users shall be obligated to complete all transactions that occur using that User’s account name and password, whether such transactions are authorized by that User or not.

AUCTION BIDS AND TRANSFER OF TITLE

All bids are legal and binding.  Each auction constitutes an offer by the seller of that item for the purchase of that item.  By bidding on an item, you are making a commitment to buy the item from the seller listing the item in the event you place the winning bid.  If your bid is the winning bid or otherwise is accepted by the seller, you thereby enter into a legally binding contract with the seller and are obligated to purchase the item for the stated amount.  Once auction closes, all winning bidders are required to pay the associated invoice in accordance with the terms of the auction.  If THE invoice is not paid IN ACCORDANCE WITH ITS terms, WE reserve the right to charge YOUR credit card on file in full for invoiced amount. If you are not prepared to purchase AN item, YOU MUST refrain from bidding. As part of this bidder's contract, you agree to not issue any charge backs for purchases made on the Slapsale site. All inquiries or disputes with purchases must be made to Slapsale directly, with resolution of inquiry made at our sole discretion.

We do not transfer legal ownership of items from the seller to the buyer.  Unless otherwise agreed by the seller and the buyer, applicable Texas law, including without limitation Texas Business and Commerce Code § 2.401, and Uniform Commercial Code § 2-401 apply to the transfer of ownership between the seller and the buyer.

If you submit a bid in error, you must contact us immediately by phone with a request that the bid be rescinded.  We will try to make reasonable accommodations to assist but cannot guarantee that any particular bid can be rescinded.

OUR ROLE; AUCTION DISPUTES

We are not directly involved in the actual transaction between buyers and sellers.  We have no control over and do not review or guarantee the existence, quality, safety, or legality of items advertised, the truth or accuracy of auction listings, the ability of sellers to sell items, ownership and title of items offered for sale, or that a seller actually will complete a transaction. 

We are not and do not become involved in disputes between buyers and sellers.  If you have any concerns about an auction item you have purchased, you agree to raise those concerns and make any claims with respect to such item only with the seller.  If you become involved in a dispute with a seller or with another buyer, 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.  BY PROVIDING 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.

WARRANTIES

You agree that you are making use of our Websites, services and tools at your own risk, and that they are being made available to you on an “AS IS” and “AS AVAILABLE” basis.  Accordingly, to the extent permitted by applicable law, we expressly disclaim all express or implied warranties, terms and conditions including without limitation implied warranties of merchantability, fitness for a particular purposes and non-infringement.

All auction merchandise is sold "AS IS” and “WHERE IS" with all faults.  All sales are FINAL.  We expressly disclaim all express or implied warranties with respect to such merchandise, including without limitation implied warranties of merchantability, fitness for a particular purposes and non-infringement.  A failure or inability to inspect property does not relieve a bidder of responsibility for payment and removal in accordance with an auction’s stated terms.  

Most items offered for sale are used and may contain defects that are not immediately detectable.  Although sellers represent to us that the information and descriptions contained in the auction descriptions are believed to be true and correct, we generally do not review such descriptions, and we assume no responsibility for and make no warranties regarding those descriptions.  It is your responsibility and obligation to verify information and descriptions of property prior to placing a bid.

Any "distressed medical device" or “chemical laboratory apparatus” for auction in the State of Texas will be sold as mandated by Texas law, and you acknowledge and agree that additional terms and conditions may apply to your purchases of such items.  Further, to the extent that purchases and sales of any other types of items are subject to additional terms and conditions required under Texas law, you agree to comply with all such conditions.  We make no representation or warranty regarding the applicability of state laws to transfers of real estate or certificated vehicles or equipment, compliance of which is the sole responsibility of the buyer and the seller.  We do not review auction listings to determine whether such additional terms and conditions may apply; it is your responsibility to determine whether or not you are eligible to purchase or own such items, and what additional terms or conditions may apply to your purchase.    

REMOVAL REQUIREMENTS

Equipment must be removed from the auction by hour and date stated on the invoice for each auction.  All removal is at the complete risk and expense of the bidder. Neither we nor the seller provides personnel for loading. Merchandise becomes the full responsibility of the bidder once he is declared the winner of the auction. Buyer assumes all responsibility for loss and damage of purchased merchandise. Neither we nor the seller shall be responsible for buyer's merchandise. Please note that removal deadlines are strictly enforced!   Merchandise not removed by the stated date and hour will revert to seller's possession, with all rights and title to the equipment forfeited. Failure to remove merchandise does not relieve buyer of responsibility of PAYING FOR THE MERCHANDISE, and refunds will not be given.

It is the buyer's responsibility to secure all safety equipment to meet applicable government safety standards in using or removing items purchased. Certain pieces of equipment may contain residual chemicals. You hereby indemnify and hold harmless both us and the sellers from any and all damages, claims, or liabilities from any injuries to persons or property caused during the sale, your removal, or your or any other person’s use or operation of the purchased items.

INDEMNITY

You agree to indemnify and hold us, our parent companies, subsidiaries and affiliates and ours and their respective officers, directors, agents, partners and employees harmless from and against any and all losses, demands, claims, damages, costs and expenses (including consequential losses or loss of profit, legal costs and expenses) and liabilities suffered or incurred directly or indirectly by slapsale.com arising from or related to:

·         your use of a Website or any related tools or services; or

·         your breach, non-performance or non-observance of the covenants, obligations, warranties, representations and undertakings on your part contained in these Terms of Use or any other policy applicable to your use of a Website or any related tools or services.

DISPUTE RESOLUTION

You agree that any and all claims, disputes, and causes of action arising out of or relating to your use of a Website or arising under these Terms of Use (each a “Dispute”) shall be resolved as set forth in this section.  Before initiating any formal dispute resolution proceedings, you agree to negotiate with Shattuck, LLC (“Shattuck”) regarding any Disputes in good faith on an individual basis, and not as a plaintiff or class member in any purported class or representative proceeding. If Shattuck and you do not reach an agreement regarding a Dispute within 30 days following Shattuck’s receipt of written notice from you identifying the Dispute, you agree to submit such Dispute to binding arbitration, on an individual basis, under the rules of the American Arbitration Association. The proceedings shall be governed by the Federal Arbitration Act, and the award may be enforced in any court of competent jurisdiction. All administrative costs of any arbitration shall be split evenly between the parties. Each party shall be responsible for paying its own attorney fees, expert fees, and litigation expenses and not those of the adversary. To the maximum extent permitted by law, the parties agree that the arbitration award shall not include consequential or punitive damages but shall only award the aggrieved party the actual damages sustained.

LIMITATION OF LIABILITY

UNDER NO CIRCUMSTANCES, INCLUDING WITHOUT LIMITATION OUR NEGLIGENCE, WILL WE BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES THAT MAY RESULT FROM THE USE OR INABILITY TO USE A WEBSITE OR ANY ASSOCIATED SERVICES OR TOOOLS, INCLUDING WITHOUT LIMITATION USE OF OR RELIANCE ON INFORMATION AVAILABLE ON A WEBSITE, INTERRUPTIONS, ERRORS, DEFECTS, MISTAKES, OMISSIONS, DELETIONS OF FILES, DELAYS IN OPERATION OR TRANSMISSION, NONDELIVERY OF INFORMATION, DISCLOSURE OF COMMUNICATIONS, OR ANY OTHER FAILURE OF PERFORMANCE.

Regardless of anything to the contrary in these Terms of Use, or any other document governing your use of the Websites or any associated services or tools, the maximum amount of our liability to you or any third party shall be limited to the greater of (a) $100 or (b) the amount of fees actually paid to us with respect to the auction transaction(s) in question in the twelve (12) months prior to the action or omission giving rise to our liability.

GENERAL

Entire Agreement; Amendments

These Terms of Use (including incorporated policies and rules) sets forth the entire understanding and agreement between you and us with respect to the subject matter hereof.

We may amend these Terms of Use at any time by posting the amended Terms of Use on www.slapsale.com and on www.shattuck.com.  Our right to amend includes the right to modify, add or remove terms in the Terms of Use.  When we amend these Terms of Use, we may require you to agree to the current version of these Terms of Use by providing notice and requiring you to click “I agree” to the amended Terms of Use on one of the pages of a Website the next time you visit.  In such case, amended Terms of Use shall be applicable to you once you click “I agree.”  Otherwise, we will use commercially reasonable efforts to post a notice of the amended Terms of Use on the home page of each Website and will send you a notice of such amendments to the email address that we have on file for you.  In that case, amended Terms of Use shall be applicable to you 30 days after the date the notice is sent to you. These Terms of Use may not otherwise be amended except in a non-electronic writing hand-signed by us.

Governing Law and Venue

This Terms of Use Agreement and your use of slapsale.com shall be governed by the laws of the United States of America and the State of Texas. Without in any way limiting the "Dispute Resolution" requirements set forth above, any court proceeding related to this website or these Terms & Conditions may be brought only in a federal or state court sitting in Austin, TX. You agree to accept the jurisdiction of such courts.

Waiver

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 that we will, and we have no obligation to, take action against all breaches of these Terms of Use.

Severability and Survival

If any of the provisions of these Terms of Use are finally determined to be invalid or unenforceable, the remaining provisions shall continue in full force and effect. 

The following provisions of these Terms of Use survive termination: Our Role; Auction Disputes, Warranties, Removal Requirements, Indemnity, Dispute Resolution, Limitation of Liability, and General.

California Residents

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.

COPYRIGHT INFRINGEMENT AND THE DMCA

It is our policy to expeditiously respond to clear notices of alleged copyright infringement that comply with the United States Digital Millennium Copyright Act (the “DMCA”).  We expect all users to comply with applicable copyright laws.  If, however, we receive proper notification of claimed copyright infringement, our response to such notices will include removing or disabling access to material claimed to be the subject of infringing activity, regardless of whether we may be liable for such infringement under United States law or the laws of another jurisdiction.

If you have a good faith belief that your work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, you can submit a written notice to us at 54 Chicon Street; Austin, TX 78702 (NOTE: YOU MUST SEND THIS NOTICE BY FAX OR BY MAIL; YOU MAY NOT SEND THIS NOTICE BY ELECTRONIC MAIL), which notice must contain the following information:

·         a physical or electronic signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest that is allegedly infringed;

·         identification or description of the copyrighted work or other intellectual property that you claim has been infringed. If you are asserting infringement of an intellectual property right other than copyright, please specify the intellectual property right at issue (for example, trademark or patent);

·         identification or description of where the material that you claim is infringing is located on the relevant Website, with enough detail that we may find it on the Website;

·         your address, telephone number, and email address;

·         a statement by you that you have a good faith belief that the use of the material complained of is not authorized by the copyright or intellectual property owner, its agent, or the law; and

·         a statement by you, made under penalty of perjury, that the information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

In accordance with Section 512(i)(1)(a) of the DMCA, we will, in appropriate circumstances, disable and/or terminate the accounts of users who are repeat infringers.