TERMS OF USE
Thank you for shopping at SmartBargains. This store (the “Store”) is Maintained by SmartBargains.com, a division of Retail Convergence.com, LP (“SmartBargains” or “we”, “us”, “our” and similar references). BY USING THIS STORE, YOU INDICATE YOUR UNCONDITIONAL ACCEPTANCE OF THESE TERMS OF USE (THE “TERMS OF USE”). WE RESERVE THE RIGHT, IN OUR SOLE DISCRETION, TO UPDATE OR REVISE THESE TERMS OF USE. YOUR CONTINUED USE OF THE STORE FOLLOWING THE POSTING OF ANY CHANGES TO THE TERMS OF USE CONSTITUTES ACCEPTANCE OF THOSE CHANGES.
1. Use of the Store. You may use the Store only in accordance with and subject to these Terms of Use and the Store’s Privacy Policy (the “Privacy Policy”) (available at: http://stores.ebay.com/SmartBargains/Privacy-Policy.html). By making a purchase on our Store, you grant SmartBargains permission to contact you at your email address. You may not use the Store for any purpose that is unlawful or prohibited by these Terms of Use, or to solicit the performance of any illegal activity or other activity which infringes the rights of SmartBargains or others. Notwithstanding any other rights or restrictions in these Terms of Use, you may not use this Store to: (a) transmit via or through the Store any information, data, text, images, files, links, or software except in connection with your authorized use of this Store or otherwise in response to specific requests for information by us; (b) introduce to the Store or any other computer or web site viruses, worms, Trojan horses and/or harmful code; (c) obtain unauthorized access to any computer system; (d) impersonate any other person, including but not limited to, a registered user of this Store or an employee of SmartBargains; (e) invade the privacy or violate any personal or proprietary right (including intellectual property rights) of any person or entity; (f) misrepresent the identity of a user or use a false e-mail address; (g) tamper with or obtain access to this Store or any component of this Store; (h) conduct fraudulent activities; or (i) collect or harvest information regarding other users of the Store for any reason whatsoever, including, without limitation, for sending such users unsolicited commercial e-mail.
If applicable, you are responsible for maintaining the confidentiality of your account and password. You agree to accept responsibility for all activities that occur under your account or password. You agree to immediately notify us in the event of any unauthorized use of your account or other breach of security.
2. Additional Terms and Conditions. Additional terms and conditions may apply to specific portions of the Store, which terms are made part of these Terms of Use by reference. You agree to abide by such other terms and conditions. If there is a conflict between these Terms of Use and the terms posted or emailed for, or applicable to, a specific portion of the Store, the latter terms shall control with respect to your use of that portion of the Store.
3. Accuracy of Content; Future Modifications to Store; Limitations on Quantity. The information on this Store is believed to be complete and reliable; however, the information may contain typographical errors, pricing errors, and other errors or inaccuracies. We will use commercially reasonable efforts to correct errors as soon as practicable. We reserve the right to: (i) revoke any stated offer; (ii) correct any errors, inaccuracies or omission; and (iii) make changes to prices, content, promotion offers, product descriptions or specifications, or other information without obligation to issue any notice of such changes (including after an order has been submitted, acknowledged, shipped or received). We also reserve the right to limit quantities (including after an order has been submitted and/or acknowledged). If a product offered by us is not as described, your sole remedy is to return it in unused condition.
4. Proprietary Rights. You acknowledge and agree that the content, software, materials and other components (including but not limited to our logos, graphics, button icons and page headers) available on the Store are the property of Retail Convergence.com, LP and/or its affiliates, subsidiaries or licensors and are protected by copyrights, trademarks, service marks or other proprietary rights and laws. You agree not to sell, license, rent, modify, distributed, copy, reproduce, transmit, publicly display, publicly perform, publish, adapt, edit or create derivative works from content or materials on the Store. Reference to any products, services or other information by trade name, trademark, manufacturer or otherwise does not constitute or imply endorsement, sponsorship or recommendation thereof or any affiliation therewith by SmartBargains. All trademarks not owned by SmartBargains that appear on the Store are the property of their respective owners.Use of the content and materials for any purpose not expressly permitted in these Terms of Use is prohibited. SmartBargains relies upon a network of independent vendors who supply some of the goods advertised on the store and, in some cases, drop ship them directly to our customers. SmartBargains is not liable for any infringement of copyrights, trademarks, trade dress or other proprietary or intellectual property rights arising out of content posted on or transmitted through this store, or items advertised on the Store, by its vendors.
5. Indemnification. By using this Store, you agree to indemnify, hold harmless and defend SmartBargains, its parent, subsidiaries and affiliates, and their respective officers, directors, employees, successors, agents, subsidiaries, partners, contractors, vendors, manufacturers, distributors, representatives and affiliates from any claims, damages, losses, liabilities, and all costs and expenses of defense, including but not limited to, attorneys' fees, resulting directly or indirectly from a claim (including without limitation, claims made by third parties for infringement of intellectual property rights) by a third party that arises in connection with (i) your use or misuse of the Store; (ii) your breach of the Terms of Use; or (iii) your violation of any law or the rights of a third party. You agree to cooperate as fully as reasonably required in the defense of any claim. SmartBargains reserves the right to assume the exclusive defense and control of any matter otherwise subject to indemnification by you.
6. Disclaimers. SmartBargains is not responsible for any problems or technical malfunction of any telephone or cable network or lines, computer systems, servers or providers, computer equipment, software, failure of any email or players due to technical problems or traffic congestion on the Internet or on the Store, including any injury or damage to visitors’ or to any person's computer related to or resulting from participation on or through the Store. THE STORE, ITS CONTENT, AND ALL TEXT, IMAGES, MERCHANDISE AND OTHER INFORMATION ON OR ACCESSIBLE FROM OR AVAILABLE THROUGH THIS STORE ARE PROVIDED ON AN "AS AVAILABLE" AND "AS IS" BASIS WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, SMARTBARGAINS DOES NOT WARRANT THAT: (i) THE INFORMATION AVAILABLE ON THIS STORE IS FREE OF ERRORS; (ii) THE FUNCTIONS CONTAINED ON THIS STORE WILL BE UNINTERRUPTED OR FREE OF ERRORS; (iii) DEFECTS WILL BE CORRECTED, OR (iv) THIS STORE OR THE SERVER(S) THAT MAKES IT AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS.
7. Limitation of Liability. IN NO EVENT SHALL SMARTBARGAINS, ITS PARENT, SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS STORE BE LIABLE TO ANY USER OF THE SMARTBARGAINS STORE OR ANY OTHER PERSON OR ENTITY FOR ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES (INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, LOSS OF DATA OR LOSS OF USE) ARISING OUT OF THE USE OR INABILITY TO USE THE SMARTBARGAINS STORE OR ANY INFORMATION CONTAINED THEREON, WHETHER BASED UPON WARRANTY, CONTRACT, TORT, OR OTHERWISE, EVEN IF SMARTBARGAINS HAS BEEN ADVISED OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES OR LOSSES. IN NO EVENT SHALL THE TOTAL LIABILITY OF SMARTBARGAINS, ITS PARENT, SUBSIDIARIES OR AFFILIATES OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, AGENTS, SUCCESSORS, SUBSIDIARIES, DIVISIONS, DISTRIBUTORS, SUPPLIERS, AFFILIATES OR THIRD PARTIES PROVIDING INFORMATION ON THIS STORE TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION RESULTING FROM YOUR USE OF THIS STORE, WHETHER IN CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE, EXCEED ONE DOLLAR (U.S.$1.00).
You hereby acknowledge that the preceding paragraph shall apply to all content, merchandise and services available through the Store. Because some states do not allow limitations on implied warranties or the exclusion or limitation of certain damages, in such states some or all of the above disclaimers or exclusions may not apply and liability will be limited to the fullest extent permitted by applicable law.
8. Privacy Issues. We are concerned about privacy matters for our customers. Please review our Privacy Policy, which also governs your visit to our Store.
9. Risk of Loss. The items purchased from our Store are shipped by a third party carrier pursuant to a shipment contract. As a result, risk of loss and title for such items pass to you upon our delivery to the carrier.
10. SmartBargains Affiliates. SmartBargains is not affiliated with web sites or third parties that sell or advertise our products without a written agreement with us. SmartBargains reserves the right to void all service, return, and other policies for orders and SmartBargains products that were purchased through unauthorized sellers. SmartBargains is not responsible for any representations by unauthorized sellers.
11. Submission of Ideas, Comments and Questions. We welcome your feedback about our Store and its contents. However, any comments, ideas, notes, messages, suggestions or other communications submitted by you to us (collectively, "Submissions") shall be and remain the exclusive property of SmartBargains with no further compensation to you. As such, we will own exclusively all such rights, titles and interests and shall not be limited in any way in its use, commercial or otherwise, of any Submissions. UNDER NO CIRCUMSTANCES SHALL ANY DISCLOSURE OF ANY SUBMISSION TO SMARTBARGAINS BE SUBJECT TO ANY OBLIGATION OF CONFIDENTIALITY OR EXPECTATION OF COMPENSATION OR ATTRIBUTION. BY SUBMITTING THE SUBMISSION TO SMARTBARGAINS, YOU ARE WAIVING ANY AND ALL RIGHTS THAT YOU MAY HAVE IN THE SUBMISSION AND YOU AGREE THAT ANY SUBMISSIONS BY YOU WILL NOT VIOLATE ANY RIGHT OF ANY THIRD PARTY, INCLUDING COPYRIGHT TRADEMARK, PRIVACY OR OTHER PERSONAL OR PROPRETARY RIGHTS. YOU ALSO AGREE THAT NO SUBMISSION BY YOU WILL BE OR CONTAIN LIBELOUS OR OTHERWISE UNLAWFUL, ABUSIVE OR OBSCENE MATERIAL. YOU ARE AND SHALL REMAIN SOLEY RESPONSIBLE FOR THE CONTENT OF ANY SUBMISSIONS YOU MAKE. YOU REPRESENT AND WARRANT TO SMARTBARGAINS THAT SMARTBARGAINS IS FREE TO IMPLEMENT THE SUBMISSION IF IT SO DESIRES, AS PROVIDED OR AS MODIFIED BY SMARTBARGAINS, WITHOUT OBTAINING PERMISSION OR LICENSE FROM ANY THIRD PARTY. SmartBargains takes no responsibility and assumes no liability for any content submitted or posted by you or any third party.
12. Links to Third-Party Stores; No Implied Endorsements. This Store may contain links to other web sites on the Internet. You acknowledge that we have no control over such web sites and that we are not responsible for the accuracy, content, legality or any other aspect of any linked web site. In no event shall any reference to any third party, third party website or third party product or service be construed as an approval or endorsement by us of that third party, third party website or of any product or service provided by a third party.
13. Unavailability of Store; Termination of Use; Fraud. We may alter, suspend, or discontinue this Store in whole or in part, at any time and for any reason, without notice or cost. In addition, the Store may be temporarily unavailable from time to time for maintenance or other reasons. SmartBargains may, in its sole discretion, terminate or suspend your use or access to all or part of the Store, for any reason, including without limitation, breach of these Terms of Use. If at any time, we notify you that your access to and /or use of the Store is terminated, you must cease and desist from all such access and/or use immediately. SmartBargains reserves the right to cancel, delay, refuse to ship, or recall from the shipper any order if fraud is suspected. In the event these Terms of Use are terminated, the restrictions regarding intellectual property matters, the representations and warranties, indemnities, and limitations of liabilities set forth herein (as well as any other of your obligations which by their nature should survive termination) will survive termination.
14. Copyright Infringement; Notice and Take Down Procedures. If you believe that any materials on this Store infringe your copyright, you may request that they be removed. This request must bear a signature (or electronic equivalent) of the copyright holder or an authorized representative and must: (1) identify the allegedly infringing materials; (2) indicate where an authorized version can be obtained; (3) provide your name and contact information; (4) state that you have a good faith belief that the materials are infringing; (5) state that the information in your claim is accurate; and (6) indicate that "under penalty of perjury" you are the lawful copyright owner or are authorized to act on the owner's behalf. Our contact for copyright issues relating to this Store is: Copyright Agent, SmartBargains, Inc., 10 Milk Street, 10th Floor, Boston, MA 02108, 617-695-7300, copyrightagent@SmartBargains.
15. International Use. We make no representation that information on this Store is appropriate or available for use outside the United States. Those who choose to access this Store from outside the United States do so on their own initiative and are responsible for compliance with local laws, if and to the extent local laws are applicable.
16. Choice of Law and Forum. These Terms of Use and any dispute of any sort that might arise between you and SmartBargains or its parent, subsidiaries or affiliates shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without regard to its conflict of law principles, as it is applied to agreements entered into and performed therein, and excluding the United Nations Convention on Contracts for the Sale of Goods, as amended from time to time. Any action brought to enforce this Agreement or matters related to the Store will be brought in either the state or federal courts in Boston, Massachusetts; provided, however, that notwithstanding anything contained in these Terms of Use to the contrary, we shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in order to enforce our rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief. You consent to the jurisdiction of such courts and irrevocably waive any objection, including without limitation any objection to the laying of venue or based on the grounds of forum non conveniens, which you may now or hereafter have to the bringing of any such action or proceeding in such jurisdiction. Any claim or cause of action you have with respect to use of the Store must be commenced within one (1) year after the claim arises.
17. Miscellaneous. Unless otherwise specified herein, these Terms of Use, together with the Privacy Policy, constitute the entire agreement between you and SmartBargains with respect to the Store and supersede all prior or contemporaneous communications and proposals (whether oral, written or electronic) between you and SmartBargains with respect to the Store. If any part of these Terms of Use is held invalid or unenforceable, that portion shall be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions shall remain in full force and effect. The failure of SmartBargains to act with respect to a breach by you or others does not waive SmartBargains’s right to act with respect to subsequent or similar breaches. SmartBargains’s failure to exercise or enforce any right or provision of these Terms of Use shall not constitute a waiver of such right or provision. These Terms of Use, and any rights and licenses granted hereunder, may not be transferred or assigned by you, but may be assigned by SmartBargains without restriction. The section headings contained in these Terms of Use are included for convenience only and shall not limit or otherwise affect the terms of these Terms of Use.
For Additional Information
If you have any questions about these Terms of Use, please email contactseller@SmartBargains.com.
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