Terms and Conditions Nearly out of Date provides access to its services ("Service") to individuals, sole proprietors, partnerships, businesses and corporations ("User", "Seller", "Buyer" or "you")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 provide online services. As a condition of using the Site and Services, the Company requires that you review and accept this User Agreement. 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. Nearly out of Date OBJECTIVE 1.1. Nearly out of Date Objective Nearly out of Date objective is to provide Sellers with a solution to convert Nearly out of date products into cash efficiently and reliably, and to provide Registered Buyers with a venue to source Nearly out of date goods, on a global scale, at attractive prices. 1.3. Confidentiality & Security Nearly out of date objective is to preserve the confidentiality of your information and your anonymity Nearly out of date has made a firm commitment to maintain your privacy and the confidentiality of your specific information: 2. USER OBLIGATIONS Nearly out of date reserves the right to review and verify the information provided in your registration application and to, at its sole discretion, postpone or reject your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. When Nearly out of date has notified a User that their registration form has been approved, the User will become a "Registered User" and shall be permitted to use the Site and Services. Nearly out of date reserves the right, at its sole discretion, to review the status and compliance of any User with the terms of this User Agreement and to suspend or terminate a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 Upon the approval of your registration, you will select a username and a password. You agree that you are solely responsible for preserving the confidentiality of your username and your password and all activities. 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. You agree to notify Nearly out of date immediately of any unauthorized use of your personal password or username and any other breach of security regarding the Services. 2.2.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, address, phone number, fax number, e-mail address, and other personal and business information. You agree to promptly notify Nearly out of date should the User information provided need to be updated, changed or deleted. User understands that email will be the primary medium for Company to communicate information about the auctions. Nearly out of date may, in its discretion, but is not obligated to, monitor material, content and information on the Site, to determine compliance with the terms and conditions of this User Agreement and current and future operating procedures and rules of conduct established by Nearly out of date. Nearly out of date 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 Nearly out of date, for mechanical or service quality control as permitted by law, or to comply with any law, Nearly out of date regulation, information, or court order submitted or transmitted to Nearly out of date. reserves the right, at its sole discretion, to amend, edit, remove or otherwise block any material posted by a User which may, in Nearly out of date’s sole discretion, violate any state, federal or local law or violate any aspect of this User Agreement or in order to limit Nearly out of date liability. However Nearly out of date 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. 3. SELLER OBLIGATIONS Users who use the Nearly out of date Site to sell goods or merchandise of any kind agree that: Sellers can submit information about goods or merchandise by using the online "Submit tool. This tool enables you to include all the relevant information regarding the goods and merchandise that will be necessary to sell (e.g. description, price, quantity, lot size, 3.1 Listing Information Sellers are solely responsible for the accuracy, completeness and validity of all the information describing the goods listed for sale (the "Listing Information"). Sellers, who post merchandise for sale on Nearly out of date Site, represent and warrant that they are the lawful owners of the listed goods. Each Seller represents and warrants that all Listing Information provided is accurate and truthful regarding, without limitation, the type, quantity and condition of the Listed goods posted by the Seller on Nearly out of date Site. Sellers understand and agree that Nearly out of date, at its sole discretion, may take any action it deems necessary to review, edit or remove any listing information provided with respect to any goods posted by a Seller. 3.2. No Unlawful goods Sellers agree that they will not attempt to sell any illegal goods 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, Nearly out of date, in its sole discretion, deems to be unlawful. 3.3. Offer to Sell Upon posting an asset for sale, Seller represents, warrants and agrees that it is irrevocably offering to sell the listed goods to any Buyer Seller represents, warrants and covenants that (1) it has good and marketable legal title to the offered goods, 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 goods for sale and to sell the offered goods, 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 propriety rights. Sellers acknowledge that despite Nearly out of date 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. 8. MISCELLANEOUS 8.1. Interruption of Service User understands that Nearly out of date shall take all commercially reasonable efforts to make its Site and Service available. However, Nearly out of date is not responsible for any damages or losses related to any system errors or interruptions 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 which may disrupt Nearly out of date Site and Services, including transmitting any virus-infected files or software routines, bulk e-mail solicitations, or reverse engineering of any of Nearly out of date programs or infrastructure. 8.2. Changes to Site and Services Nearly out of date 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, news and information, and product categories without notice. 8.5. No Agency The relationship between Users and Nearly out of date 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. 8.6 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 Nearly out of date is not a broker or agent and has no fiduciary duty to the User with regard to transactions through the Services. Unless otherwise stated, Nearly out of date is not a party to the transactions between Buyers and Sellers. Nearly out of date 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 USER AGREES NOT TO HOLD Nearly out of date, ITS AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES, ATTORNEYS OR AGENTS LIABLE FOR ANY LOSS OR DAMAGE OF ANY SORT INCURRED AS THE RESULT OF ANY OF USER'S DEALINGS WITH ANY OTHER USERS. 8.7. 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 the information was posted on the Site. If Nearly out of date receives a message that the User's e-mail is disconnected or is no longer valid, notice shall be deemed to have been provided 72 hours following the mailing of a letter to the User's address contained in their registration application. 8.8. Indemnification In the event Buyer has a dispute with Seller, Buyer releases Nearly out of date, directors, officers, 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 Nearly out of date. Buyers agree to defend, indemnify and hold harmless the Nearly out of date, 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 fees), as a consequence of any acts by Seller undertaken in connection with Nearly out of date Site and Services, including without limitation, those arising out of any breach of any User representation or warranty, 8.9. Third Party Links The Site may contain links to other websites or resources for the convenience of Buyers in locating related information and services. User acknowledges and agrees that Nearly out of date 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 inclusion of any link on the Site does not imply that Nearly out of date endorses the linked site. User uses the links at User's own risk. . 8.11. Severability 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. 8.12. Termination The terms and conditions of this User Agreement constitute a binding agreement between Nearly out of date and each Seller/Buyer until terminated by the Seller/Buyer or Nearly out of date. Seller/Buyer may discontinue use of the Site and Services at any time upon notice to Nearly out of date. Upon termination, Seller/Buyer is obligated to immediately cease using the Site and Services. Nearly out of date 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 Nearly out of date, for any reason and without notice. 8.13. 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. Nearly out of date 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. Nearly out of date 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 Nearly out of date SHALL CREATE ANY WARRANTY BY Nearly out of date NOT EXPRESSLY MADE HEREIN. Nearly out of date 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. 8.14. Limitation of Liability IN NO EVENT SHALL Nearly out of date, NOR ANY SELLER/Buyer BE LIABLE FOR ANY DAMAGES OR ANY KIND ARISING FROM (a) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY A LISTED ASSETS OR (b) DEFECTS IN SUCH LISTED ASSETS ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY. IN ADDITION, IN NO EVENT SHALL Nearly out of date 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 OR 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 Nearly out of date TOTAL LIABILITY TO A USER FOR ALL DAMAGES, LOSSES AND CAUSES OF ACTION 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. 8.15. Waiver 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. 8.16. Intellectual Property Nearly out of date intellectual property ("Nearly out of date 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. Nearly out of date IP may be created by one of more of Nearly out of date 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 Nearly out of date IP shall belong to Nearly out of date and shall be subject to the conditions of this User Agreement. User hereby irrevocably assigns to Nearly out of date all right, title and interest User may acquire in any Nearly out of date IP. Nearly out of date may, at its option, file an application for intellectual property protection for Nearly out of date. If any such Nearly out of date IP is created with Seller/Buyers participation, Seller/Buyer agrees to cooperate with Nearly out of date 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. Nearly out of date IP is the sole and exclusive property of Nearly out of date, unless otherwise stated and may not be used without the prior written consent of the Nearly out of date. 8.17. Trademarks The Site and the Nearly out of date tradenames, domain names and logos found on the Site are trademarks or service marks of. No display or use of such marks may be made without the express written permission of Nearly out of date 8.18. Assignment 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. 8.19. Entire Agreement This User Agreement constitutes the entire agreement between the Seller/Buyer and the Nearly out of date, and it super-cedes any previous agreements, whether oral or in writing, between Seller/Buyers and the Nearly out of date. Nearly out of date may, at its sole discretion, remove or change any aspect of this User Agreement. Any change to this Agreement will be communicated to the users before its enforcement. 9.1 Site Regulations (For All Users) The technology, software, and data underlying the Site are the property of Nearly out of date or Nearly out of date affiliates or partners. As a Seller/Buyer 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: (a) Defame, abuse, harass, stalk, threaten or otherwise violate the legal right of others; (b) Publish, post, upload, email, distribute or disseminate (collectively, "Transmit") any inappropriate, profane, defamatory, infringing, obscene, indecent or unlawful content; (c) 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; (d) Advertise or offer to sell any goods or services for any commercial purpose unless you have our written consent to do so; (e) Transmit surveys, contests, pyramid schemes, spam, unsolicited advertising or promotional materials, or chain letters; (f) Download any file that you know or reasonably should know, cannot be legally obtained in such manner; (g) 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; (h) Restrict or inhibit any other user from using and enjoying any public area within our sites; (i) COLLECT, STORE OR TRY TO GAIN ACCESS TO PERSONAL INFORMATION ABOUT OTHER END USERS, CUSTOMERS, SUPPLIERS OR ENTITIES THAT HAVE USED THE SITE; (j) USE DATA ABOUT END USERS, CUSTOMERS, SUPPLIERS FROM THIS SITE FOR PERSONAL GAIN; (k) Interfere with or disrupt our sites, servers or networks; (l) Impersonate any person or entity, , or falsely state or otherwise misrepresent your affiliation with a person or entity; (m) 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; (n) Take any action that imposes an unreasonably or disproportionately large load on our infrastructure. (o) 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 Nearly out of date 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 disparagement or scorn, Nearly out of date reserves the right, without prior notice to you, to automatically change your username, delete your posts from Nearly out of date sites, deny you access to Nearly out of date sites, or any combination of these options. Unauthorized access to Nearly out of date sites is a breach of this User Agreement and a violation of the law. You agree not to access Nearly out of date sites by any means other than through the interface that is provided by Nearly out of date 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 Nearly out of date sites except those automated means that have been approved in advance and in writing by Nearly out of date Use of t Nearly out of date sites is subject to existing laws and legal process. Nothing contained in this User Agreement shall limit Nearly out of date right to comply with governmental, court and law enforcement requests or requirements relating to your use of Nearly out of date sites. 9.2.2 DISCLAIMERS EXCEPT AS OTHERWISE STATED HEREIN, Nearly out of date MAKES NO WARRANTIES OF ANY KIND, AND SPECIFICALLY DISCLAIMS ANY WARRANTIES, EXPRESS OR IMPLIED, AS TO THE ASSETS SOLD HEREUNDER, OR ITS MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE. NO IMPLIED WARRANTY ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE IS GIVEN BY COMPANY, AND NONE SHALL ARISE BY OR IN CONNECTION WITH THIS USER AGREEMENT AND/OR COMPANY'S CONDUCT IN RELATION HERETO, AND IN NO EVENT SHALL Nearly out of date BE LIABLE ON ANY SUCH WARRANTY WITH RESPECT TO ANY ASSETS SOLD HEREUNDER. Seller/Buyer accepts all assets sold to it in accordance with this User Agreement on an "AS IS" basis. Unless otherwise agreed in writing by Nearly out of date