This document consists of the following parts:
- Policies governing use of website
- Intellectual property
- Disclaimer of warranty; limitation of liability
- Miscellaneous provisions
The terms set forth in this agreement between NB Ventures, inc. ("GEP") and you ("you" or "the member") govern your use of the website and the services provided thereby. If you do not agree to be bound by the terms of this agreement, please cease all further use of the website. If you have any questions concerning this agreement, please contact gep at support [at] gep.com. Please review this agreement carefully before your first use and every subsequent use of the e-commerce website located at www.gep.com or affiliated websites (collectively, the "website").
You agree to permit GEP to amend this agreement in its sole discretion at any time by posting the amended terms of the agreement on the website, and you agree to abide by and be fully bound by such amended terms. The amended terms shall automatically be effective immediately after they are initially posted on the website, and your continued use of the website on or after such date constitutes your acceptance of the amended terms. This agreement may not be otherwise amended except in writing signed by you and GEP.
User ID and password. GEP team will assign a login ID and password for each buyer and seller. These buyers and sellers are collectively known as members. For security reasons, you may be required to enter your user name and password multiple times during a transaction or when undertaking an activity using the website.
You are solely responsible for protecting your user name and password with the same degree of care that a reasonable person uses to protect his or her other confidential information. You may not disclose your password to any third party or share your password with any third party without the prior written consent of GEP. You may not use your password for any unauthorized purpose.
Member information. As a member, you agree that the information that you provided to GEP are subject to the (collectively, "member information"), are subject to the following terms and conditions:
GEP acts solely as a passive conduit for the online distribution and publication of your member information, and you are solely responsible for your member information; provided, however, that GEP reserves the right to use or take action with respect to any member information as GEP deems necessary or appropriate in its sole discretion. We will not be liable to you for any actions that we may take in good faith or upon the advice of our counsel.
You acknowledge and agree that GEP's collection and use of member information, and GEP's operation of the website and the services provided thereby, in accordance with this agreement in no way constitutes an actionable breach of any privacy or other right, whether in equity, law, contract or otherwise, and you hereby waive any and all such claims or rights of action whether foreseen or unforeseen.
If you believe that your member information has been copied in a way that constitutes copyright infringement, please provide GEP with the following information: an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest; a description of the copyrighted work that you claim has been infringed; a description of where the material that you claim is infringing is located on the website; your address, telephone number and email address; a written and signed statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent or applicable law; and a written and signed statement by you, made under penalty of perjury, that the information that you provide pursuant hereto is accurate and that you are the copyright owner or are authorized to act on the copyright owner's behalf.
3. Policies governing use of website
No violation of applicable law: You agree that you will comply at all times with all applicable Laws. You acknowledge that you are solely responsible for ensuring that the manner in which you transmit and receive information and use the website complies with all Laws. You may not post on the website or sell through the website any good or service where such posting or sale could cause GEP or any of its Affiliates to violate any applicable Law.
Prohibited items: In particular, and without limiting the foregoing, GEP does not allow listing, buying, selling or otherwise posting information about any goods or services that may be in any of the following categories ("prohibited items").
This listing is subject to revision on an ongoing basis.
At any time and with or without cause, GEP may immediately terminate this agreement or any or all of rights and privileges granted to you or any of the other members hereunder, and GEP may also suspend your membership or refuse to provide you access to the website or the services provided thereby. You may terminate this agreement upon 60 days' prior written notice to GEP. In no event shall any termination, suspension or refusal to provide access by either GEP or you act to relieve you of any obligations which have accrued under this agreement prior to the date of such termination, suspension or refusal.
5. Intellectual property
Proprietary technology and software. You hereby acknowledge that the proprietary technology and software owned or licensed by GEP or its licensors and used by GEP and its affiliates in the operation of the website and the provision of services thereunder, and any derivative works, error corrections, modifications, enhancements, upgrades, new releases and new versions (collectively, the "proprietary technology"), are and shall continue to be solely owned by GEP or its licensors, as applicable. This agreement grants you the limited right to use the proprietary technology for the express purposes set forth herein, and this use will not result in the transfer of any ownership or other right, title or interest in or to any of the proprietary technology from GEP or its licensors to you or any other party.
Other intellectual property rights. You hereby acknowledge that GEP's trade names, trademarks and service marks (including without limitation "GEP.com," "GEP," 'NB Ventures, Inc." and variations thereof), domain name, logo, graphics, content, configurations, images, displays, screens and other intellectual property and proprietary rights (collectively, "Other intellectual property") are and shall continue to be solely owned by GEP. In addition, GEP makes use of third party trade names, trademarks, service marks, domain names and logos (collectively, "third party marks"), and those third party trademarks are and shall continue to be solely owned by such third parties. You are not permitted to copy, redistribute, use or publish any of the other intellectual property or third party marks except as required to enable you to use the website pursuant to the terms set forth in this agreement.
You agree to indemnify GEP and its affiliates for and from any loss or damages, including reasonable attorneys' fees, arising from or relating to out of: (a) your use of the website, including any alleged or actual violation of any law directly or indirectly arising from such use; (b) any breach or alleged breach by you of the terms of this agreement or of any Sale agreement. (c) the misuse or misappropriation of member information supplied to you; (d) the goods or services offered to be sold or purchased by you, whether arising from the information concerning the goods or services provided by you for posting on the website, the purchase and sale of such goods or services, the sale agreement, the delivery of such goods or services, the payment for such goods or services, or otherwise; and (e) communications sent to you from GEP via electronic mail which are directly or indirectly related in any manner to this agreement.
In particular, and without limiting the foregoing, because GEP does not and cannot control the actions of its members, in the event that you have a dispute with one or more members, you hereby agree to indemnify and release GEP and its Affiliates from any and all claims, demands, liabilities, losses and damages (both actual and consequential) of every kind and nature, whether known or unknown, suspected or unsuspected, and disclosed or undisclosed, arising out of or in any way connected with such dispute. If you are a California resident, you expressly waive California civil code § 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
7. Disclaimer of warranty; limitation of liability
Disclaimer of warranty. You acknowledge that your use of the website and the services provided thereby is entirely at your own risk. GEP disclaims all warranties, express or implied, including without limitation the warranties of title, merchantability, fitness for a particular purpose or noninfringement. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. without limiting the foregoing, you acknowledge and agree that (i) GEP does not warrant that the website and services provided by GEP shall be error-free or operate without interruption, and the website and service are provided "as is" and without warranty of any kind; (ii) GEP does not and cannot control the flow of data and information through the internet, and such flow depends on the performance of third parties whose actions or inactions may produce situations in which connections to the internet (or portions thereof) are impaired or disrupted and for which GEP is not liable; (iii) GEP does not provide any warranty with respect to the goods or services bought or sold via the website; and (iv) GEP does not warrant that the information provided via the website, whether concerning the goods or services or the member information or any other subject, is complete or accurate, including the members ability to deliver or provide the goods or services being sold and to pay for the goods or services being bought.
No consequential damages: In no event shall GEP or any of its affiliates be liable to you for any special, consequential, incidental, indirect, punitive or exemplary damages, or lost profits or for the cost of procurement of substitute goods or services, however caused, including through the use of the website or the provision of services thereby, whether for breach of warranty, contract, tort, negligence, strict liability or otherwise, even if the party has been advised of the possibility of such damages.
In no event shall GEP or any of its affiliates be liable to you for any special, consequential, incidental, indirect, punitive or exemplary damages, or lost profits or for the cost of procurement of substitute goods or services, however caused, including through the use of the website or the provision of services thereby, whether for breach of warranty, contract, tort, negligence, strict liability or otherwise, even if the party has been advised of the possibility of such damages. Notwithstanding anything to the contrary herein, GEP's aggregate liability to you arising out of or related in any way to this agreement shall not exceed the aggregate amount paid by you to GEP under this agreement during the six-month period immediately preceding the date upon which the event giving rise to the claim against GEP arose.
8. Miscellaneous provisions
Notices: All notices, requests, demands or other communications required to be given by GEP to you pursuant to the agreement shall be in writing and shall be deemed to have been given (i) three (3) days after mailing to the your address on file with GEP, if sent by U.S. mail, registered or certified mail, return receipt requested, postage prepaid, (ii) one (1) day after mailing if sent by nationally recognized overnight courier, or (iii) upon transmission if sent by facsimile or electronic mail with a confirmation copy simultaneously sent by U.S. mail, postage prepaid, or (iv) (iii) immediately if posted by GEP on the website. All notices, requests, demands or other communications required to be given by you to GEP shall be deemed given when actually received by GEP.
Equitable Remedies: Both parties acknowledge and agree that money damages and other remedies at law may not provide an adequate remedy in the event of a breach of this agreement. Therefore, in addition to any other remedies that may be available, the nonbreaching party shall be entitled to seek injunctive relief or specific performance or other equitable remedies.
Cumulative remedies: No remedy or election hereunder shall be deemed exclusive but shall, wherever possible, be cumulative with all other remedies at law or in equity.
Force Majeure: Neither party shall be deemed in default of this agreement to the extent that performance of their obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies, or any other causes beyond the control of such party, provided that such party gives the other written notice thereof properly and, in any event, within fifteen (15) days of discovery thereof and uses its best efforts to cure the delay ("Force Majeure"). In the event of such Force Majeure, the time of performance or cure shall be extended for a period equal to the duration of the Force Majeure but in no event shall exceed three (3) months.
Assignment successors and assigns: This agreement and the rights granted by GEP to you hereunder may not be assigned or transferred by you without the prior written consent of GEP. GEP may assign this agreement without obtaining your consent.
Headings: The section headings contained in this agreement are included for convenience only, and shall not limit or otherwise affect the terms of this agreement.
No Custom: It is expressly understood and agreed that, there being no expectation of the contrary between the parties, no usage of trade or custom and practice within the industry, and no regular practice or method of dealing between the parties, will be used to modify, interpret, supplement or alter in any manner the express terms of this agreement.
Waiver: No failure or delay in exercising any right, power or privilege hereunder shall operate as a waiver thereof, and no single or partial exercise thereof shall preclude any other or further exercise thereof or the exercise of any other right, power or privilege hereunder.
Independent contractors: The relationship of the parties shall be that of independent contractors, and nothing in this agreement shall be deemed to create a partnership, joint venture, franchise, representative, agency or employment relationship between said parties. Neither party to this agreement shall have authority, express or implied, to act for or bind or otherwise obligate the other in any manner whatsoever. Persons retained by a party as employees or agents shall not be deemed to be employees or agents of the other party.
Choice of law; jurisdiction and venue: This agreement shall be governed and interpreted in accordance with the substantive law of the state of New Jersey without regard to its conflict of law provisions. The parties irrevocably submit themselves to the non-exclusive jurisdiction of the courts of the state of New Jersey and the United States district court for the district of New Jersey for the purpose of bringing any action that may be brought in connection with this agreement. The parties agree that they shall not assert any claim that they are not subject to the jurisdiction of such courts, that the venue is improper, that the forum is inconvenient or any similar objection, claim or argument. To the maximum extent permitted by law, the notice provision of this agreement shall apply to service of process with respect to any action brought under this agreement. Upon the mutual agreement of both parties, disputes may be settled via arbitration, under the rules of the American Arbitration Association, instead of in the courts of the State of New Jersey and the United States district court for the district of New Jersey.
Entire agreement; amendment: This agreement and the exhibits and other documents incorporated by reference herein constitute the entire understanding and agreement, and supersedes any and all prior or contemporaneous representations, understandings and agreements, between the parties with respect to the subject matter of this agreement. Except as set forth in Section 1, this agreement shall not be altered, amended or supplemented without the prior written consent of the parties.