Welcome to Manufacturers’ Inventory. By using Manufacturers’ Inventory (including www.manufacturersinventory.com and www.deadinventorymanagement.com and the related sites, services, applications, and tools), you agree to the following terms and the general principles for the sites of our subsidiaries and affiliates. Use of our site is limited to United States residents and you are contracting with Dead Inventory Management System, LLC dba Manufacturers’ Inventory. This Agreement is effective upon acceptance for new users.
Please be advised: 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 Sections below). It also contains an Agreement to Arbitrate, which will, with limited exception, require you to submit claims you have against us to binding and final arbitration, unless you opt-out of the Agreement to Arbitrate (see Legal Disputes, Section B (“Agreement to Arbitrate”)). You will only be permitted to pursue claims against Company on an individual basis, not as a plaintiff or class member in any class or representative action or proceeding and you will only be permitted to seek relief (including monetary, injunctive, and declaratory relief) on an individual basis.
Dead Inventory Management Systems, LLC dba Manufacturers’ Inventory (the “Company”), operator of the manufacturersinventory.com marketplace, provides access to its services (“Service”) to individuals, sole proprietors, partnerships, businesses and corporations (“User”, “Seller”, “Buyer” or “you”) subject to the following terms and conditions (the “User Agreement”). Our service is comprised of, but not limited to, our network of online marketplaces that include manufacturersinventory.com and deadinventorymanagement.com, online services, account management services, and customer support (“Site and Services”). As a condition of using the Site and Services, the Company requires that you review and accept this User Agreement as a legal contract between you and Company. BY REGISTERING TO USE THE SERVICE, YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. IF YOU DO NOT AGREE TO ACCEPT THIS USER AGREEMENT, YOU MAY NOT ACCESS OR OTHERWISE USE THE SERVICES OR SITE.
1. COMPANY SERVICES
1.1. Company Services
The Company has developed a proprietary technology platform and integrated services to facilitate the sale of physical assets, sometimes commonly known as dead inventory, and to assist the completion of your sales transactions. Services provided by the Company include, but are not limited to: online listing, pricing, marketing, selling, buying, trading, contract work, inventory system integration, shipping assistance, payment services (collectively, the “Services”). These services are described in further detail on the website.
1.2. Confidentiality & Security
2. USER OBLIGATIONS
The Services are available only to individuals, sole proprietors, partnerships, businesses and corporations that can form legally binding contracts. Without limiting the foregoing, minors in any jurisdiction may not participate in the Services. The Company reserves the right to review and verify the information provided in your registration application and to, at its sole discretion, postpone or reject your registration approval; provided, however, that the Company undertakes no formal obligation to investigate individual member application data. When a User registration form has been approved, the User will become a “Registered User” and shall be permitted to use the Site and Services. The Company reserves the right, at its sole discretion, to review the status and compliance of any User with the terms of this User Agreement and to suspend or terminate a User’s use of the Site and Services without notice.
2.1. User Password and Access
Users select a username and a password, which are subject to the approval of the Company. You agree that you are solely responsible for preserving the confidentiality of your username and your password and all activities and charges related to the use of your password, including unauthorized use. You agree not to furnish your username, password or other information to any other party for use of the Site and Services. Company personnel will never ask you for your password for any reason. You agree to notify the Company immediately of any unauthorized use of your personal password or username and any other breach of security regarding the Services. You are solely responsible for access to, use of and/or reliance on any User content. You are responsible for any content and transactions that you post or transmit through your account, and you are also responsible for all content posted or transactions transmitted through or by use of your account.
2.2. User Information
Each User agrees that all of the information provided in their registration application is timely, true and correct, including, but not limited to, the User’s legal name, company name, address, phone number, fax number, e-mail address, tax identification number and other personal and business information. You agree to promptly notify the Company should the User information provided need to be updated, changed or deleted. Any requested changes to the shipping address must be made within 24 hours of the sale transaction and before payment has been applied to the pending transaction. You understand that your failure to provide accurate and complete information may result in actions taken against you, including without limitation, the immediate suspension or termination of your use of the Services. User understands that email will be the primary medium for Company to communicate information about the Site and Services and User consents to such medium of communication.
2.3. Site Regulations (For All Users)
The technology, software, and data underlying the Site are the property of the Company or the Company’s affiliates or partners. As a User, you agree not to copy, modify, rent, lease, loan, sell, assign, distribute, reverse engineer, grant a security interest in or otherwise transfer any right to the technology or software underlying our Site. You agree not to modify the software underlying our sites in any manner or form, or to use modified versions of such software, including (without limitation) for the purpose of obtaining unauthorized access to the Site.
Without limiting the foregoing, you agree that you will not use the Site to take any of the following actions:
- Defame, abuse, harass, stalk, threaten or otherwise violate the legal right of others;
- Publish, post, upload, email, distribute or disseminate (collectively, “Transmit”) any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful content;
- Transmit files that contain viruses, corrupted files, or any other similar software or programs that may damage or adversely affect the operation of another person’s computer, our sites, any software or hardware, or telecommunications equipment;
- Advertise or offer to sell any goods or services for any commercial purpose unless you have our written consent to do so;
- Download any file that you know or reasonably should know, cannot be legally obtained in such manner;
- Falsify or delete any author attributions, legal or other proper notices or proprietary designations or labels of the origin or source of software or other material;
- Restrict or inhibit any other user from using and enjoying any public area within our sites;
- COLLECT, SCRAPE, manually or automatically, STORE OR TRY TO GAIN ACCESS TO PERSONAL INFORMATION ABOUT OTHER END USERS, CUSTOMERS, SUPPLIERS, PRODUCTS LISTED OR ENTITIES THAT HAVE USED THE SITE;
- USE DATA ABOUT END USERS, CUSTOMERS, SUPPLIERS FROM THIS SITE FOR PERSONAL GAIN;
- Interfere with or disrupt our sites, servers or networks;
- Impersonate any person or entity, including, but not limited to, a Company representative, or falsely state or otherwise misrepresent your affiliation with a person or entity;
- Forge headers, manipulate identifiers or other data in order to disguise the origin of any content transmitted through our sites, or to manipulate your presence on our sites;
- Take any action that imposes an unreasonably or disproportionately large load on our infrastructure.
- Engage in any illegal activities
You agree to use the bulletin board services, chat areas, news groups, forums, communities and/or message or communication facilities provided on the Company’s site, if any (collectively, the “Forums”), only to send and receive messages and material that are proper and related to that particular Forum.
If you choose a username that, in our sole discretion, is obscene, indecent, abusive or which might otherwise subject us to public embarrassment or scorn, the Company reserves the right, without prior notice to you, to automatically change your username, delete your posts from the Company’s sites, deny you access to the Company’s sites, or any combination of these options.
Unauthorized access to the Company’s sites is a breach of this User Agreement and a violation of the law. You agree not to access the Company’s sites by any means other than through the interface that is provided by the Company for use in accessing its sites. You agree not use any automated means, including, without limitation, agents, robots, scripts, or spiders, to access, monitor or copy any part of the Company’s sites except those automated means that have been approved in advance and in writing by the Company.
Use of the Company’s sites is subject to existing laws and legal process. Nothing contained in this User Agreement shall limit the Company’s right to comply with governmental, court and law enforcement requests or requirements relating to your use of the Company’s sites.
3. CONTENT AND CONDUCT
The Company may, in its discretion, but is not obligated to, monitor material, content and information on the Site, including, but not limited to listings, text, code, images, video, binary files, account information, emails, messages and any other user communication, to determine compliance with the terms and conditions of this User Agreement and current and future operating procedures and rules of conduct established by the Company. The Company may also intercept and disclose any content, record, use or other information to the extent reasonably necessary to carry out the terms of this User Agreement, to protect the rights of the Company, for mechanical or service quality control as permitted by law, or to comply with any law, regulation, information, or court order submitted or transmitted to the Company. The Company reserves the right, at its sole discretion and without liability to any User, to amend, edit, remove or otherwise block any material posted by a User which may, in the Company’s sole discretion, violate any state, federal or local law or violate any aspect of this User Agreement or in order to limit the Company’s liability. However, the Company does not assume responsibility for verifying the material, content and information on its Site and is not responsible for any damages, losses, expenses or other injuries incurred by any User as a result of relying on any material, content and information posted on the Company’s Site.
When providing us with content or posting content on the Company’s sites, services, applications, and tools, you automatically grant, and represent and warrant that you have the right to grant and assign, to Company a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights you have in the content, in any media known now or in the future. You also expressly grant and assign to Company all rights and causes of action to prohibit and enforce against any unauthorized copying, performance, display, distribution, use or exploitation of, or creation of derivative works from, any content that you post (including but not limited to any unauthorized downloading, extraction, harvesting, collection or aggregation of content that you post).
For the convenience of Sellers, we may offer catalogs of stock images, descriptions and product specifications that are provided by third parties (including DIMS users). You may use catalog content solely in connection with your DIMS listings during the time your listings are on DIMS’ sites. While we try to offer reliable data, we cannot promise that the catalogs will always be accurate and up-to-date, and you agree not to hold our catalog content providers or us responsible for inaccuracies in catalogs. If you choose to include catalog content in your listings, you continue to be fully responsible for your listings and for ensuring that your listings are accurate, do not include misleading information, and comply with this User Agreement and all Company policies. The catalogs may include copyrighted, trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included with the catalogs or create any derivative works based on catalog content (other than by including them in your listings).
Company does not control, is not responsible for and makes no representations or warranties with respect to any User or User conduct. You are solely responsible for your interaction with or reliance on any User or User conduct. You must perform any necessary, appropriate, prudent or judicious investigation, inquiry, research and due diligence with respect to any User or User conduct.
Users may not circumvent any technological measure implemented by Company to restrict the manner in which content may be posted or to regulate the manner in which content (including but not limited to email) may be transmitted to other Users. This prohibition includes, without limitation, a ban on the use of multiple email addresses (created via an email address generator or otherwise); the use of multiple IP addresses (via proxy servers, modem toggling, or otherwise); CAPTCHA circumvention, automation or outsourcing; multiple and/or fraudulent accounts, including phone-verified accounts; URL shortening, obfuscation or redirection; use of multiple phone lines or phone forwarding for verification; and content obfuscation via HTML techniques, printing text on images, inserting random text or content “spinning.”
4. SELLER OBLIGATIONS
Users who use the Company’s Site to sell assets or merchandise of any kind agree that: Sellers can submit information about assets or merchandise by using the online “Seller Tools” tool. These tools enable you to include all the relevant information regarding the merchandise that will be necessary to sell (e.g. description, retail value, price, quantity, lot size, shipping information), promote and facilitate the logistic management. This information may be reviewed to ensure its consistency and accuracy and posted upon agreement of our sales team that will tailor the sales strategy to maximize your returns. Prior to any auction activation, the Seller must have a signed Asset Sales Agreement (“ASA”).
4.1. No Unlawful or Restricted Assets
Sellers agree that they will not attempt to sell any illegal or restricted assets of any kind through the Company’s Site and Services, including, without limitation, all counterfeit goods, drugs, guns, pornography, munitions, hazardous waste, non-metal scrap or any other item, the Company, in its sole discretion, deems to be unlawful or restricted. Restricted assets are those that generally require a special license or permit by a governmental agency or authority in order to sell, such as a federal firearms license or a hazardous materials handling or storage permit.
4.2. Offer to Sell
Upon posting an asset for sale, Seller represents, warrants and agrees that it is irrevocably offering to sell the listed assets to any Buyer who satisfies the requirements of the auction, terms of payment and shipping. Seller represents, warrants and covenants that (1) it has good and marketable legal title to the offered assets, free and clear of any lien, security interest, leasehold interest, co-ownership interest, or any other type of encumbrance or interest of any other person or entity, (2) it has authority to list the offered assets for sale and to sell the offered assets, no listed asset infringes or violates (or contains any parts or components which infringe or violate) any third party’s copyright, patent, trademark, trade secret or other intellectual property or proprietary rights. Failure of a Seller to complete the sale of an asset to a qualified Buyer because of non-delivery or misrepresentation of the merchandise could result in damages payable to the Company. Such damages shall become immediately due and payable by the Seller to the Company upon written demand by the Company. Should any additional shipping costs be incurred because of incorrect shipping information and/or preparation the seller agrees to pay for these costs.
4.3. Service and Transaction Success Fees
Upon the closing of a transaction, Sellers agree to pay the Company a success-based transaction fee for the marketing of their assets, integrated services and identification of qualified Buyers. The amount of this fee will vary based on the size and product type of the transaction and shall be communicated to and agreed by the Seller prior to listing the merchandise with the Company in the Schedule 1. In addition, the Company reserves the right to collect and retain a Buyer’s premium from its customers in order to cover costs specific to any auction. Premium services such as third party inspection and warehousing are optional for Buyers and Sellers and require additional fees. The prices of the services are determined on a case-by-case basis and communicated to you by our Sales Team. A Seller’s obligation to pay transaction fees incorporates by reference the Non-Circumvention clause contained herein.
4.4. Payment of Fees
All fees and other amounts payable pursuant to this User Agreement shall be paid in the listing currency (United States Dollars), free and clear of, and without deduction or withholding on account of, taxes of any kind. All of the Company’s success based fees are deducted from the proceeds of the sales. Other eventual and mutual agreed payments are due within 15 business days of invoice if not otherwise agreed upon in writing.
Sellers acknowledge that despite the Company’s best efforts, Buyers may fail to perform. The Company does not provide any representations or guarantees that Buyers will pay Sellers on their agreed price on a timely basis.
4.5. Listing Conditions
By listing an item on Company’s sites, you agree to pay Company’s fees, to assume full responsibility for the content of the listing and item offered, and to accept the following listing conditions: When you list an item on Company’s sites, your listing will be posted on Company’s sites and can be viewed in your account. Your listing may not be immediately searchable by keyword or category for several hours in some circumstances, so Company can’t guarantee exact listing durations. Company’s duplicate listing policy may also affect whether your listing appears in search results. Company reserves the right to end your listing for any reason. Where and whether your listing appears in search and browse results may be based on certain factors including, but not limited to, listing format, title, bidding activity, end time, keywords, price and shipping cost, feedback, and detailed seller ratings. You can read more about where your listings appear in search and browse results in Company’s Help Pages.
5. BUYER OBLIGATIONS
Users who use the Site to purchase listed assets of any kind (“Buyer” or “Buyers”) represent, warrant and agree that:
5.1. Purchase Activity
5.1. Purchase Activity
5.1.1. Buyer, by making a commitment to purchase assets, is demonstrating Buyer’s intention and financial capability to purchase these assets.
5.1.2. Upon the making a commitment to buy, the Buyer may not retract, amend or modify their offer without prior approval by the Company.
5.1.3. At the close of an transaction, Buyer agrees to make immediate payment for the total amount of the transaction, including the stated shipping costs and all duties and taxes if applicable, using payment methods provided by Company. If the Company does not receive payment within two (2) business days, Buyer will be considered in default and will be responsible for liquidated damages fees of $200 or 15% of the final transaction price, whichever is greater. The Buyer will immediately be placed in a suspended status until fees are paid.
5.2. Asset Receipt and Inspection
5.2.1. After the close of a sale transaction, Buyer is required to make arrangements to pay for the goods and to take delivery of shipment of Seller’s Listed assets. If a buyer refuses shipment of merchandise upon arrival at the Buyer’s location, the Buyer is responsible for the associated shipping charges. Buyer must conduct an inspection of the goods within a reasonable time following receipt, no longer than three (3) business days, or waive any claim for damages or non-conformity of the goods. Except as otherwise stated in writing by the Seller, all assets are sold “as is, where is.”
5.2.2. In the absence of Seller fraud, failure of Buyer to complete the purchase of assets may result in damages against the Buyer, including all damages available at law or equity. Buyer’s failure to pay for assets they committed to purchase will result in suspension or termination of Buyer’s account. In addition, in the event of Buyer’s failure to complete a transaction in the absence of Seller fraud, the Buyer agrees to immediately remit a success fee to the Company equal to the agreed upon commission, defaulting to the total sales commission tiers, of the final sales price on this listing. In the event of Buyer’s default, the right is reserved to Seller to sell or otherwise dispose of the subject property and to charge all losses and expenses incidental thereto to the defaulting Buyer.
5.2.3. When property is sold on a unit price basis, Seller reserves the right to vary the quantity delivered by a percentage explicitly disclosed in the listing. The Buyer agrees to accept any quantity within these limits. Outside these limits, the purchase price paid shall be adjusted upwards and downwards in accordance with the quantity actually delivered and accepted by the Buyer. Buyers seeking price adjustments should follow the dispute process described in Section 9.
5.2.4. The Buyer understands that according to sales tax law, Sellers may be required to tax under any or all of the following circumstances: (i) a Buyer that purchases products on the Site and the products are shipped to a residence and/or business located in a state within which the Seller has a physical presence or (ii) a User that purchases products that are located and the buyer chooses to arrange their own shipping. The Buyer understands that in order to justify and consider waiving the sales tax on any closed transactions and/or future transactions, the company must receive appropriate documentation. Buyer may send us a verified copy of their Reseller certificate.
Any Buyer that attempts to rescind a credit card transaction without the Company’s express written consent (i.e., chargeback), may have their account immediately suspended and/or permanently deactivated. If a Buyer performs a chargeback after receiving the property, Company may file charges with the appropriate law enforcement agency, and reserves the right to pursue all remedies available to us to recover our damages. If a Buyer feels that their merchandise was misrepresented or that the Buyer is owed a refund, they should follow the dispute resolution process outlined herein.
5.4. Purchase Conditions
You are responsible for reading the full item listing, including any instructions the seller provides, before making a commitment to buy an item. Unless otherwise stated, by making a commitment to buy an item, you are committing to buy the item from the Seller listing the item. If you make a commitment to buy, you enter into a legally binding contract with the Seller and are obligated to purchase the item. We do not transfer legal ownership of items from the seller to the buyer. Missouri Revised Statues § 400-002.401(2) and Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the buyer and the seller, unless the buyer and the seller agree otherwise.
6. PAYMENT COLLECTION
Upon the close of a sale, the Company’s payment collection team will use commercially reasonable efforts to contact buyers in order to ensure timely payment. Payment is collected for all costs associated with the transaction including shipping expenses. All payments are processed through PayPal.
6.1. Special Provisions
Failure of a Seller to complete the sale of assets to a qualified Buyer because of non-delivery or misrepresentation of the merchandise could result in damages payable to the Company up to a maximum amount of $20,000. In the event that a Seller is not able to complete the transaction or ship the goods due to unforeseen circumstances, the Buyer cannot hold either the Seller or the Company liable for damages beyond reimbursement of monies paid to the Company or Seller.
Sellers acknowledge that despite the Company’s efforts, Buyers may fail to perform. The Company does not provide any representations or guarantees that Buyers will pay Sellers on their agreed price on a timely basis.
The Company reports instances of credit card fraud to proper law enforcement authorities and prosecutes offenders to the full extent of the law. Credit card fraud includes, but is not limited to, any instance where a buyer has charged back their credit card payment and maintains possession of the merchandise, without the consent of the Seller.
Users agree not to negotiate, communicate, or transmit any information of any kind with any other Registered User (whether or not the User has placed a bid) in an attempt to complete a sale of assets through a means outside of the Company’s online system (a “Circumventing Transaction”). In the event a Seller completes a Circumventing Transaction within 12 months following the expiration of a Seller’s most recent listing, Seller understands and agrees that Seller is obligated to immediately remit a success fee to the Company equal to 30% of the final aggregate gross sale price for the assets or merchandise sold in the Circumventing Transaction. This non-circumvention clause shall apply to Users and their principals, agents and representatives, including but not limited to employees, consultants, bankers, attorneys, accountants, assignees, heirs and transferees. Seller shall indemnify and ensure that Company is fully compensated if an agent or representative of Seller completes a Circumventing Transaction.
8. ACCESS AND INTERFERENCE
Information on our sites and services is subject to constant updates and changes. Much of the information on the sites is also proprietary or is licensed to Company by our users or third parties. You agree that you will not use any robot, spider, scraper, or other automated means to access our sites for any purpose without our prior express written permission.
Additionally, you agree that you will not:
- take any action that imposes or may impose (to be determined in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
- copy, reproduce, reverse engineer, modify, create derivative works from, distribute, or publicly display any content (except for your information) from our sites, services, applications, or tools without the prior express written permission of Company and the appropriate third party, as applicable;
- interfere or attempt to interfere with the proper working of our sites, services, applications, or tools, or any activities conducted on or with our sites, services, applications, or tools; or
- bypass measures we may use to prevent or restrict access to our sites.
9. DISPUTE RESOLUTIONS BETWEEN USERS
Buyers who have a legal dispute with another user and/or feel that their auction was misrepresented (in terms of quality, quantity, or both) must submit an online dispute form to Company. The form can be found by visiting www.manufacturersinventory.com. Users are required to submit support to validate their claims (including manifests or photos) and failure to do so may result in a denied claim. Users must have a dispute on file in order for the Customer Engagement department to conduct any actions on their behalf. To help eliminate the need for disputes, Users should accurately check the manifest, condition, shipping terms, and images of product they wish to purchase. Users who arrange their own shipping agree to waive their right to dispute the merchandise, and assume responsibility at the point of pick-up. Merchandise should be inspected prior to exiting the facility.
In the event of a dispute between Buyer and Seller in connection with a pending or closed transaction, all Users agree to cooperate with the Company’s Customer Engagement department to resolve the dispute before taking any other action. If the Company cannot resolve the dispute within 10 business days of the dispute form receipt, then the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through the American Arbitration Association (“AAA”). The AAA and the parties must comply with the following rules: a) the jurisdiction and venue for any arbitration shall lie in St. Louis, Missouri; provided, however, that each arbitration shall be conducted by telephone, online and/or be solely based on written submissions; the specific manner shall be chosen by the party initiating the arbitration; b) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties, and any such personal appearance shall be within the jurisdiction and venue of St. Louis, Missouri; and c) any judgment on the award rendered by the arbitrator is final and may be entered in any court of competent jurisdiction.
In the event a User has a dispute with another User, User releases Company, its directors, officers, members, advisors, attorneys, employees and agents from claims, demands and damages, whether actual or 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. This release includes any claims brought by any individuals relating to misuse or unauthorized use of data User gives to Company. Users agree to defend, indemnify and hold harmless the Company, its affiliates, directors, officers, employees and agents to the fullest extent lawful against any and all damages (whether direct, consequential or otherwise), claims, liabilities, costs and expenses incurred (including, without limitation, all reasonable attorney fees and costs), as a consequence of any acts by User undertaken in connection with the Company’s Site and Services, including without limitation, those arising out of any breach of any User representation or warranty, User’s obligations hereunder, any User transaction attempted through the Service, or any dispute between User and any other Users. Further, You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, members, advisors, attorneys, employees, and agents) 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 User Agreement, your improper use of Company’s Sites, Services, applications, or tools, and/or your violation of any law or the rights of a third party. 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.
10. DISPUTES WITH COMPANY
You and Company agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the User Agreement (hereafter “User Agreement” in this section entitled “Legal Disputes”), your use of or access to Company’s sites, services, applications, and tools, or any products or services sold or purchased through Company’s sites, services, applications, or tools will be resolved in accordance with the provisions set forth in this Legal Disputes Section. Please read this Section carefully. It affects your rights and will have a substantial impact on how claims you and we have against each other are resolved.
A. Applicable Law
You agree that the laws of the State of Missouri, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and Company, except as otherwise stated in the User Agreement.
B. Agreement to Arbitrate
You and Company each agree that any and all disputes or claims that have arisen or may arise between you and Company relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to Company’s sites, services, applications, and tools, or any products or services sold or purchased through Company’s Sites, Services, applications, or tools shall be resolved exclusively through final and binding arbitration, rather than in court, except that you may assert claims in small claims court, if your claims qualify. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.
YOU AND COMPANY 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 ACTION OR PROCEEDING. UNLESS BOTH YOU AND COMPANY 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, OR CLASS 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 COMPANY USERS.
2. Arbitration Procedures
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 also must follow the terms of the User Agreement as a court would. The arbitrator, and not any federal, state, or local court or agency, shall have exclusive authority to resolve any dispute arising out of or relating to the interpretation, applicability, enforceability or formation of this Agreement to Arbitrate, any part of it, or of the User Agreement including, but not limited to, any claim that all or any part of the Agreement to Arbitrate or User Agreement is void or voidable. The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Supplementary Procedures for Consumer-Related Disputes (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org. A form for initiating arbitration proceedings is available on the AAA’s site at http://www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, you must send a copy of the completed form to us at the following address to initiate arbitration proceedings: Dead Inventory Management System, LLC c/o Corporate Counsel, 106 W. Madison, Suite 200, Kirkwood, MO 63122. The arbitration shall be held in St. Louis, Missouri. If the value of the relief sought is $10,000 or less, you or Company may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and Company subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. Attendance at an in-person hearing may be made by telephone by you and/or Company, unless the arbitrator requires otherwise. The arbitrator will decide the substance of all claims in accordance with the laws of the State of Missouri, 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 Company Users, but is bound by rulings in prior arbitrations involving the same Company 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.
3. 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 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 an arbitrator or court decides that any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the User Agreement and its Legal Disputes Section will continue to apply.
5. Future Changes to the Agreement to Arbitrate
Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any change to this Agreement to Arbitrate (other than a change to any notice address or site link provided herein) in the future, that change shall not apply to any claim that was filed in a legal proceeding against Company prior to the effective date of the change. The change shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Company. We will notify you of changes to this Agreement to Arbitrate by posting the amended terms on www.manufacturersinventory.com at least 30 days before the effective date of the changes and by providing notice through the Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the new terms. Moreover, if we seek to terminate the Agreement to Arbitrate as included in the User Agreement, any such termination shall not be effective until 30 days after the version of the User Agreement not containing the Agreement to Arbitrate is posted to http://www.manufacturersinventory.com, and shall not be effective as to any claim that was filed in a legal proceeding against Company prior to the effective date of termination.
6. 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, 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 Company must be resolved exclusively by a state or federal court located in St. Louis, Missouri. You and Company agree to submit to the personal jurisdiction of the courts located within St. Louis, Missouri for the purpose of litigating all such claims or disputes.
11. REFUND / RETURN POLICY
Company will provide the forum and venue to process returns and refunds of all assets purchased through the Company’s Service. Refunds or returns of merchandise must be approved by the Company’s Customer Engagement team. Any attempt to rescind a payment or return property prior to an authorization by the Company will result in a delay of claim resolution, and may adversely impact the Buyer’s ability to transact on our website. Unauthorized returns will be refused at delivery. When a return is authorized, the Company requires a Seller to do a full inspection of all merchandise upon return and units must be the same as when shipped out to the Buyer – including serial number, included accessories, etc. to be eligible for a full refund. Title to property remains with the Buyer until the returned property is processed by the Company and accepted by the Seller.
12.1. Interruption of Service; No Liability
User understands that the Company shall take all commercially reasonable efforts to make its Site and Service available. However, the Company is not responsible for any damages or losses related to any system errors or interruptions affecting its Site and the processing of any online sales, transactions or communications. User understands that the Site may be unavailable unexpectedly as a result of circumstances beyond its control or routine maintenance. User agrees not to attempt any action that may disrupt the Company’s Site and Services, including transmitting any virus-infected files or software routines, bulk e-mail solicitations, or reverse engineering of any of the Company’s programs or infrastructure.
12.2. Changes to Site and Services
The Company reserves the right, in its sole discretion, to modify, suspend or terminate any aspect of its Site and Services, including, but not limited to, content, sales features, news and information, and product categories without notice. Further, the Company reserves the right to implement system maintenance and system upgrades at such times the Company deems necessary.
12.3. Record Keeping
The Company cannot guarantee the preservation or maintenance of records relating to historical sales transactions and related activity and encourages User to keep individual records and an accounting of all activity conducted through the Company’s Site.
User acknowledges and agrees that the Company does not have any responsibility to report, calculate, determine or anticipate the payment of any taxes, which may be assessed or owed by any User in connection with the use of the Company’s Site and Services. User understands and agrees that User is solely responsible for the calculation and payment of any taxes that may be incurred as a result of using the Company’s Site and Services. User shall indemnify and defend Company from any and all claims with respect to any taxes, withholding or other related matters.
12.5. No Agency
The relationship between Users and the Company is that of an independent contractor. No agency, partnership, joint venture or franchise relationship is implied, intended or created by the terms and conditions of this User Agreement.
12.6. Site is Only a Venue
THE SITE AND ASSOCIATED SITES ARE MERELY A VENUE FOR REGISTERED USERS TO EXCHANGE INFORMATION AND FACILITATE TRANSACTIONS. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT THE COMPANY IS NOT A BROKER OR AGENT AND HAS NO DUTY TO THE USER WITH REGARD TO TRANSACTIONS THROUGH THE SERVICES OTHER THAN THOSE DUTIES EXPRESSLY OUTLINED IN THE TERMS AND CONDITIONS OF THIS USER AGREEMENT. UNLESS OTHERWISE STATED, THE COMPANY IS NOT A PARTY TO THE TRANSACTIONS BETWEEN BUYERS AND SELLERS. THE COMPANY DOES NOT GUARANTEE THE QUALITY, SAFETY, CONDITION, OR OWNERSHIP OF THE ASSETS ADVERTISED FOR SALE ON ITS SITE AND DOES NOT GUARANTEE THE ACCURACY OF THE INFORMATION PROVIDED IN THE DESCRIPTION OF ASSETS ADVERTISED FOR SALE ON ITS SITE. BUYERS ARE ENCOURAGED TO PERFORM THEIR OWN DUE DILIGENCE, INCLUDING, BUT NOT LIMITED TO, USING THE SITE’S DISCUSSION FEATURE AND THE ARRANGEMENT OF AN ON-SITE INSPECTION. THE COMPANY DOES NOT GUARANTEE ANY INDIVIDUAL SELLER’S OR BUYER’S ABILITY TO COMPLETE TRANSACTIONS USING THE COMPANY’S SERVICE AND MAKES NO REPRESENTATION REGARDING THE IDENTITY, CREDITWORTHINESS, OR PERFORMANCE OF ANY USER.
12.7. Export of Property
You acknowledge and agree that certain goods, software, and technology may be subject to the export control laws and regulations of the United States, including but not limited to the Export Administration Regulations (EAR), the International Traffic in Arms Regulations, and regulations of the U.S. Department of Treasury, Office of Foreign Assets Controls. You agree you will comply with all applicable export laws and regulations. You may not, without prior U.S. Government authorization, export, re-export, or transfer any goods, software, or technology, either directly or indirectly, to any country subject to a U.S. trade embargo or sanction or to any resident or national of these countries, or to any person, organization, or entity on any of the restricted parties lists maintained by the U.S. Departments of State, Treasury, or Commerce. In addition, any goods, software or technology may not be exported, re-exported, or transferred to any end-user engaged in activities, or for any end-use, directly or indirectly related to the design, development, production, use, or stockpiling of weapons of mass destruction, e.g. nuclear, chemical, or biological weapons, and the missile technology to deliver them. We do not sell property to persons from the countries that are prohibited from receiving transfers of military equipment or technology. Please check with the appropriate government agency for a current list of prohibited countries. Buyers are advised that purchasing from our Sites and Services and then reselling or attempting to export to these countries is prohibited. The list of prohibited countries is subject to change at the discretion of the U.S. Government. If you purchase property that will be exported outside of the United States, you must obtain proper export licenses prior to our transfer of title and release of goods. We undertake no responsibility to assist Buyers in obtaining export licenses, and you agree to do so at your sole cost and expense associated with obtaining any licenses required. We cannot advise you as to which forms, which licenses, or what agencies may have jurisdiction over the property you purchase. You are encouraged to seek expert legal advice regarding export licensing.
12.8. Notice and Communication
Unless stated otherwise, all notice and communication with User shall be provided by e-mail to the e-mail address provided by the User in their registration application or via posting on the Site. Notice shall be deemed to have been provided 24 hours after the e-mail was transmitted by the Company or at the time the information was posted on the Site. If the Company receives a message that the User’s e-mail is disconnected, is no longer valid, or that the e-mail communication could not be delivered (for whatever reason), notice shall be deemed to have been provided at the time the information was posted on the Site. Any mailed letters sent by the Company to the User shall be considered courtesy copies only, and shall not have any bearing on the determination regarding the date notice was provided as stated above. The Company will contact buyers by phone in instances of pending payment or pickup in an effort to avoid cancellation and penalties.
12.9. Third Party Links
The Site may contain links to other websites or resources for the convenience of Users in locating related information and services. User acknowledges and agrees that Company is not responsible or liable for (i) the availability or accuracy of such sites or resources, or (ii) the content, advertising or products on or available from such sites or resources, the User Agreements that may govern such sites or resources, or the privacy policies and data collection, use or retention practices of such sites. The inclusion of any link on the Site does not imply that the Company endorses the linked site. User uses the links at User’s own risk.
This User Agreement shall be governed by and construed in accordance with the laws of the State of Missouri without regard to the conflicts of law provisions thereof, and, to the maximum extent permissible, without reference to that body of law known as the Uniform Computer Information Transaction Act. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Commercial Arbitration Rules as more further detailed in Section 8 hereof.
If any provision of this User Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible and the remainder of this User Agreement shall continue in full force and effect.
The terms and conditions of this User Agreement constitute a binding agreement between the Company and each User until terminated by the User or the Company. User may discontinue use of the Site and Services at any time with or without notice to Company. The Company may consider any account on which no activity (the User has not logged into the account) has occurred for 365 consecutive days to be abandoned, and may terminate the account without further notice to the User. Upon termination, User is obligated to immediately cease using the Site and Services. The Company expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services and the Website by any person or entity, at the sole discretion of the Company, for any reason and without notice.
12.13. Disclaimer of Warranties
THE SITE AND SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION ON OR ACCESSED THROUGH THE SITE OR SERVICES, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. THE COMPANY DISCLAIMS ANY WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, DATA ACCURACY SYSTEM INTEGRATION OR QUIET ENJOYMENT. COMPANY DOES NOT WARRANT THAT THE SERVICES, FUNCTIONS, FEATURES OR CONTENT WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. COMPANY MAKES NO WARRANTY THAT THE LISTED ASSETS, SITE OR SERVICES WILL MEET USERS’ REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING THE LISTED ASSETS, THE LISTED ASSETS WILL BE SOLD. COMPANY MAKES NO WARRANTY REGARDING ANY LISTED ASSETS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES. NO ADVICE, INSTRUCTIONS OR INFORMATION RECEIVED BY A USER, WHETHER ORALLY OR IN WRITING, FROM THE COMPANY SHALL CREATE ANY WARRANTY BY THE COMPANY NOT EXPRESSLY MADE HEREIN. COMPANY EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY LISTED ASSETS SOLD ON OR THROUGH THE SERVICES, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANOTHER USER.
12.14. Limitation of Liability
IN NO EVENT SHALL COMPANY, NOR ANY SELLER, BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (a) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY A LISTED ASSET OR (b) DEFECTS IN SUCH LISTED ASSET ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY, NEGLIGENCE, BREACH OF CONTRACT OR BREACH OF WARRANTY. IN ADDITION, IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE CONTENT INCLUDING WITHOUT LIMITATION ANY MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF COMPANY OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE. IN NO EVENT SHALL THE COMPANY’S TOTAL LIABILITY TO A USER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION (WHETHER IN CONTRACT OR IN TORT) EXCEED THE AMOUNT OF FEES PAID BY THE USER TO THE COMPANY IN CONNECTION WITH THE DISPUTED ASSET(S).
In addition, to the extent permitted by applicable law, we are not liable, and you agree not to hold Company responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:
- Your use of or your inability to use our sites, services and tools;
- Delays or disruptions in our sites, services, applications, or tools;
- Viruses or other malicious software obtained by accessing our sites, services, applications, or tools or any site, services, applications, or tools linked to our sites, services, applications, or tools;
- Glitches, bugs, errors, or inaccuracies of any kind in our sites, services, applications, and tools or in the information and graphics obtained from them;
- Damage to your hardware device(s) or loss of data that results from the use of our sites, services, applications, and tools;
- The content, actions, or inactions of third parties, including items listed using our sites, services, applications, or tools, feedback provided by third parties, or the destruction of allegedly fake items;
- A suspension or other action taken with respect to your account;
- The duration or manner in which your listings appear in search results as set forth in the Listing Conditions Section;
- Company’s decision to end or remove your listing(s);
- 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; Company reserves the right to modify its policies and this User Agreement at any time consistent with the provisions outlined herein.
The parties have agreed that the limitations of liability set forth will survive and apply even if any limited remedy specified in this User Agreement is found to have failed its essential purpose. Some jurisdictions may not allow the limitation or exclusion of incidental or consequential damages, so the above limitation may not apply to certain Users.
The failure of Company to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision. Any waiver of any right, provision, term or condition must be in writing, signed by our authorized representative, and will be effective only for the instance specified in the writing.
12.16. Oral Representations
Any oral statement or representation by any representative of the Company, changing or supplementing the written description of the offering or the published terms and conditions of this User Agreement, is unauthorized and confers no right on the User and may not be relied on by the User. No interpretation of any provision of the terms and conditions of this User Agreement, including applicable performance requirements, is binding on the Company unless agreed to, in writing by the Company.
12.17. Intellectual Property
Company intellectual property (“Company IP”) is all inventions, know how, improvements, discoveries, methods, processes, concepts, designs, ideas, prototypes, samples, drawings, blueprints, specifications, computer or intellectual property programs, methods of doing business, copyrights, trademarks, trade names, software and/or other works conceived of and/or reduced to practice or writing or otherwise relating to the Site or Services. Company IP may be created by one of more of Company’s employee(s) alone or jointly with a User or Users arising from the use and development of the Services or as a result of User’s feedback regarding the Site or Services (“Feedback”). All right, title and interest in any Company IP shall belong to Company and shall be subject to the conditions of this User Agreement. User hereby irrevocably assigns to Company all right, title and interest User may acquire in any Company IP. Company may, at its option, file an application for intellectual property protection for Company IP. If any such Company IP is created with User’s participation, User agrees to cooperate with Company to assure that such application(s) will cover, to the best of User’s knowledge, all related assets, including all features of commercial interest and importance. Company IP is the sole and exclusive property of the Company, unless otherwise stated and may not be used without the prior express written consent of the Company.
The Site and the Company’s trade names, domain names and logos found on the Site are trademarks or service marks of Dead Inventory Management Systems, LLC. No display or use of such marks may be made without the express written permission of Dead Inventory Management Systems, LLC.
All trademarks, trade names, logos, and service marks featured on this website are the property of the owners of said intellectual property. Company disclaims any associations or endorsements that may be implied through the use of the trademarks, trade names, logos or service marks of others.
Buyer agrees not to use Seller’s name, logo, trademark or service mark, whether known or suspected, nor any photographs, images, illustrations, or other depictions from the Seller’s website in any remarketing or re-selling of the products purchased from this site, which would violate the intellectual property rights of the Seller.
This User Agreement may not be assigned by User or by operation of law to any other person, persons, firms or corporations without the express written approval of the Company.
12.20. Entire Agreement
This User Agreement constitutes the entire agreement between the User and the Company, and it supersedes any previous agreements, whether oral or in writing, between Users and the Company. The Company may, at its sole discretion, remove or change any aspect of this User Agreement. Any change to this Agreement will become effective at the time such change is posted to the Company’s website. No notice will be provided to Users regarding any change to the User Agreement. Users are encouraged to review the terms and conditions of this User Agreement frequently to ensure that they are aware of any changes. The Company will not be liable to the User for any failure to notify the User of a modification to the User Agreement.
12.21. Translation of the User Agreement into Languages Other than English
This User Agreement may be presented to the User in a language or languages other than English. Any presentation or translation of this User Agreement into a language other than English shall be for the User’s convenience, but User will continue to be guided by the English language version of the User Agreement in the event that there is a conflict between the English language version of the User Agreement and any translation into a language other than English.
We may amend this User Agreement at any time by posting the amended terms on www.deadinvetorymanagementsystem.com. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. Except as stated otherwise in this User Agreement or elsewhere, all amended terms shall automatically be effective 30 days after they are initially posted. Additionally, we will notify you through the Company Site and/or by email. This User Agreement may not be otherwise amended except in a writing hand signed by you and us. For purposes of this provision, a “writing” does not include an email message and a signature does not include an electronic signature. Not further agreeing to any such amended terms may result in Company deactivating a User’s account and the removal of any listings, transaction data, reports, orders, etc.
Revised November 2013.