Welcome to YourEarthNow.com's Broadcast On line Marketplace
(YEN the "Site"). Any person who wishes to access YEN to
buy or bid for goods or to use the other services provided on YEN
(collectively, YEN "Services") must accept the terms and
conditions of this User Agreement, without change. PLEASE REVIEW
THE FOLLOWING TERMS OF SERVICE CAREFULLY BEFORE USING YEN. BY
REGISTERING FOR AND USING THE SERVICES, YOU AGREE TO BE BOUND BY ALL
TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL POLICIES AND
GUIDELINES INCORPORATED BY REFERENCE.
Your Earth Now, Inc. (hereinafter "Your Earth Now" or
"YourEarthNow.com") reserves the right to change any of the
terms and conditions contained in this Agreement or any policies or
guidelines governing YEN or Services, at any time and in its sole
discretion. Any changes will be effective upon posting of the
revisions on YEN. You are responsible for reviewing the notice and
any applicable changes. Changes to referenced policies and guidelines
may be posted without notice to you. You can review the most current
version of this Agreement at any time at http://www.YourEarthNow.com.YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING Your
Earth Now's POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF
SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO
THIS AGREEMENT, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE.
Use of YEN and its Services is limited to parties that lawfully can
enter into and form contracts under applicable law. Without limiting
the generality of the foregoing, minors may not use the Services.
Every person who uses the Services hereby represents to Your Earth
Now that he or she is not a minor, is at least over the age of
eighteen (18) and may otherwise enter into and form binding
contracts under applicable law. To register, you must provide your
real name, address, phone number and e-mail address, along with
other information that may be required from time to time.
Your Earth Now is not an Auctioneer.
Although Your Earth Now is commonly referred to as an online auction
web site, it is important to realize that we are not a traditional
"auctioneer." Instead, YEN acts as a venue to allow
certain persons to sell and buy certain products at anytime, from
anywhere, in a variety of pricing formats, including a fixed price
format and an auction-style format commonly referred to as "online
auctions" or "auctions."
Policies and Guidelines.You
agree to abide by the procedures and guidelines for conducting and
participating in transactions on YEN, which are contained in the
Help Pages and are incorporated by reference into, and made part of,
this Agreement. The policies, procedures and guidelines contained in
the Help Pages explain the processes and set out acceptable conduct
and prohibited practices. These policies, procedures and guidelines
may be changed by Your Earth Now in the future, and will be
effective immediately upon posting, without notice to you. You
should regularly refer to the Help Pages to understand the current
procedures and guidelines related to YEN.
Earth Now's Role and Responsibilities. YourEarthNow.com
features two types of marketplaces, and Your Earth Now's role and
responsibilities vary in each such marketplace.
Your Earth Now's Direct Marketplace. Your Earth Now
itself is the seller of the products offered in the Your Earth Now
Direct Marketplace. Your Earth Now undertakes responsibility for
all aspects of the transaction and the product listing, including
product descriptions, identification of quantities, establishment
of starting and maximum bid prices, establishment of reserve
requirements (if any) and shipping.
Your Earth Now Earth Merchant
Marketplace. Your Earth Now earth merchants are Your Earth Now
approved third-party merchants who sell products on YEN. In this
program, the earth merchant is the seller of the product. To ensure
Your Earth Now buyers the ability to shop in a private and secure
environment, every Your Earth Now earth merchant must go through a
thorough application process including verification of bank and
trade references before they are approved to list products on YEN.
Your Earth Now earth merchants are established businesses (both
small and large) whose performances are monitored to ensure that
buyers receive the appropriate Your Earth Now service levels. These
earth merchants list their items directly and assume responsibility
for all aspects of their product listings including product
descriptions, identification of quantities, establishment of
starting and maximum bid prices, and shipping. Although Your
Earth Now does not own, warehouse, ship or otherwise manage any
inventory or goods offered by Your Earth Now earth merchants, those
merchants who do not meet Your Earth Now's service standards can
and will be removed from listing products on YEN. Your Earth Now
handles all payment processing for orders from these merchants and
Your Earth Now's Customer Care department provides assistance for
all issues to ensure a positive Your Earth Now experience.
Your Earth Now currently accepts credit card/debit card payments for
orders in the Your Earth Now Direct Marketplace and the Your Earth
Now Earth Merchant Marketplace. Your Earth Now honors Visa,
MasterCard, Discover and American Express. You warrant that any
payment method selected by you when placing a bid shall enable you
to make full and immediate payment for the item(s) chosen, if your
bid becomes the winning bid. In the event that the chosen payment
method does not enable you to make full and immediate payment for
any reason, including without limitation insufficient funds or
credit decline, Your Earth Now may in it sole and absolute
discretion cancel your bid. In such case, Your Earth Now may in it
sole and absolute discretion (but shall not be required to)
designate the next highest bidder (meeting the applicable minimum
bid or reserve requirements) as the winning bidder. At Your Earth
Now's sole discretion, but without any obligation, alternate payment
methods may be arranged with the product purchaser(s) in the case
where a payment method has been declined.
Your Earth Now Reservation of
Rights. Your Earth Now retains the right, but does not
have the obligation, to immediately halt any auction or product
sale, prevent or restrict access to YEN or the Services or take any
other action in case of technical problems, objectionable material,
inaccurate listings, inappropriately categorized items, auction
inaccuracies, product inaccuracies, unlawful items, items,
procedures, or actions otherwise prohibited by the procedures and
guidelines contained on YEN, or for any other reason in the sole and
absolute discretion of Your Earth Now, and to correct any inaccurate
listing, auction inaccuracies, product inaccuracies, inappropriately
categorized items or technical problems on YEN.
Transactions and Obligations. Bidders and buyers create
different obligations by accessing YEN and using the Services.
In the Earth Merchant Marketplace, the seller must sell the
product to the highest bidder that meets or exceeds the minimum
Each transaction in the Your Earth Now Direct Marketplace
will indicate whether a reserve price has been established.
By entering into this Agreement and bidding on a product,
you agree to complete the transaction as described by this
Agreement. You acknowledge that by not fulfilling these
obligations, your action or inaction may be legally actionable.
If an item purchased in the Your
Earth Now Direct Marketplace or Your Earth Now Earth Merchant
Marketplace is being shipped to Kansas, Your Earth Now must charge
sales/use tax on the transaction. Your Earth Now will accept Kansas
resale certificates only if submitted before the transaction
closes. In the Earth Merchant Marketplace, you agree that it is the
seller's and the buyer's responsibility to determine whether sales
or use taxes apply to the transactions and to collect, report and
remit the correct tax to the appropriate tax authority. You also
agree that Your Earth Now is not obligated to determine whether
sales or use taxes apply and is not responsible to collect, remit
or report any sales or use taxes arising from any transaction.
Password Security. Your
password may be used only to access YEN, use the Services,
electronically sign your transactions and review your completed
transactions. You are solely responsible for maintaining the
security of your password. You may not disclose your password to any
third party (other than third parties authorized by you to use your
account) and are solely responsible for any use of or action taken
under your password on this Site. If your password is compromised
you must change your password.
Access and Interference.
YEN contains robot exclusion headers. Much of the information on YEN
is updated on a real time basis and is proprietary of or is licensed
to Your Earth Now. You agree that you will not use any robot,
spider, scraper or other automated means to access YEN for any
purpose. Additionally, you agree that you will not: (a) take any
action that imposes, or may impose in our sole discretion an
unreasonable or disproportionately large load on our infrastructure;
(b) copy, reproduce, modify, create derivative works from,
distribute or publicly display any content (except as otherwise
provided herein); (c) interfere or attempt to interfere with the
proper working of YEN or any activities conducted on YEN; or (d)
bypass our robot exclusion headers or other measures we may use to
prevent or restrict access to YEN.
Compliance with Laws; Fraud. YEN and Services only
may be used for lawful purposes and in a lawful manner. You agree
to comply with all applicable laws, statutes and regulations
regarding use of the Services, including in regard to bidding, and
purchasing items. You may not register under a false name or use an
invalid or unauthorized credit card. You may not make bids under a
false name, impersonate any participant, or use another
participant's password(s). Such fraudulent conduct is a violation
of federal and state laws. Fraudulent conduct may be reported to
law enforcement, and Your Earth Now will cooperate to ensure that
violators are prosecuted to the fullest extent of the law.
Shill Bidding. You are
strictly prohibited from placing bids or causing bids to be placed
on any product for the purpose of artificially increasing or
otherwise manipulating the bidding process on YourEarthNow.com or
the bid price of any product listed on YEN, or influencing user
behavior on YourEarthNow.com.
Breach. Without limiting
other remedies, Your Earth Now may immediately issue a warning,
temporarily suspend, indefinitely suspend or terminate your
membership and refuse to provide our services to you: (a) if you
breach this Agreement or the documents it incorporates by reference;
(b) if Your Earth Now or any earth merchant is unable to verify or
authenticate any information you provide to Your Earth Now; or (c)
if Your Earth Now believes that your actions may cause legal
liability for you, other Your Earth Now users or Your Earth Now.
Monitoring and Disclosure.
Your Earth Now is committed to protecting your privacy.
Click here http://www.YourEarthNow.com for our general Privacy
Policy, which is incorporated by reference into, and made part of,
Except as authorized herein and unless otherwise authorized or
consented, you agree not to use any information regarding other
participants which is accessible from YEN or disclosed to you by
Your Earth Now except to enter into and complete transactions. You
agree not to use any such information for purposes of solicitation,
advertising, unsolicited e-mail or spamming, harassment, invasion
of privacy, otherwise objectionable conduct or otherwise
Disclosure of Information.
As permitted by applicable law, Your Earth Now also reserves the
right to report any activity that it suspects violates any law or
regulation to appropriate law enforcement officials, regulators, or
other third parties. In order to cooperate with information
requests, to protect Your Earth Now's systems and customers, to
allow users to resolve disputes, or to ensure the integrity and
operation of Your Earth Now's business and systems or other
purposes deemed reasonable by Your Earth Now, Your Earth Now may
access and disclose any information it considers necessary or
appropriate, including, without limitation, user contact details,
IP addressing and traffic information, usage history and posted
Your Earth Now has the right, but not the obligation, to monitor
any activity and content associated with this Site. Your Earth Now
may investigate any reported violation of its policies or
complaints and take any action that it deems appropriate. Such
action may include, but is not limited to, issuing warnings,
suspension or termination of service, denying access and/or removal
of any materials on YEN, including listings and bids. Your Earth
Now reserves the right and has absolute discretion, to remove,
screen or edit any content that violates these provisions or is
Warranties. YEN AND
THE SERVICES ARE PROVIDED ON AN "AS IS" BASIS. CUSTOMER'S
USE OF AND RELIANCE THEREON ARE AT CUSTOMER'S OWN AND SOLE RISK.
Your Earth Now MAKES NO OTHER REPRESENTATIONS OR WARRANTIES OF ANY
KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION:
THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A
PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT;
THAT YEN OR THE SERVICES WILL MEET YOUR REQUIREMENTS, WILL
ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, TIMELY, SECURE OR
OPERATE WITHOUT ERROR;
THE INFORMATION, CONTENT, MATERIALS OR PRODUCTS INCLUDED ON
YEN WILL BE AS REPRESENTED BY SELLERS, AVAILABLE FOR SALE AT THE
TIME OF OFFER, LAWFUL TO SELL, OR THAT Earth Merchants WILL PERFORM
ANY IMPLIED WARRANTY ARISING FROM COURSE OF DEALING OR USAGE
OF TRADE; AND
ANY OBLIGATION, LIABILITY, RIGHT,
CLAIM OR REMEDY IN TORT, WHETHER OR NOT ARISING FROM THE NEGLIGENCE
OF Your Earth Now.
TO THE FULL EXTENT PERMISSIBLE UNDER APPLICABLE LAW, Your
Earth Now DISCLAIMS ANY AND ALL SUCH WARRANTIES. NO ADVICE OR
INFORMATION, WHETHER ORAL OR WRITTEN, WHICH YOU OBTAIN FROM Your
Earth Now OR THROUGH THE USE OF SERVICES SHALL CREATE ANY WARRANTY
NOT EXPRESSLY STATED IN THIS AGREEMENT.
General Release.BECAUSE Your Earth Now IS NOT THE SELLER IN TRANSACTIONS
BETWEEN BUYERS AND earth merchants, IF A DISPUTE ARISES BETWEEN ONE
OR MORE PARTICIPANTS, EACH OF YOU RELEASE Your Earth Now (AND ITS
AFFILIATES, AGENTS AND EMPLOYEES) FROM CLAIMS, DEMANDS AND DAMAGES
(ACTUAL AND 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. IF YOU
ARE A CALIFORNIA RESIDENT, YOU 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." YOU, BEING
AWARE OF SAID CODE SECTION, HEREBY EXPRESSLY WAIVE ANY RIGHTS YOU
MAY HAVE THEREUNDER, AS WELL AS UNDER ANY OTHER STATUES OR COMMON
LAW PRINCIPLES OF SIMILAR EFFECT. YOU ACKNOWLEDGE AND AGREE THAT
THIS WAIVER IS AN ESSENTIAL AND MATERIAL TERM OF THIS AGREEMENT, AND
THAT WITHOUT SUCH WAIVER, THIS AGREEMENT WOULD NOT HAVE BEEN ENTERED
INTO BY Your Earth Now.
Indemnity.YOU AGREE TO DEFEND, INDEMNIFY AND HOLD Your Earth Now AND
OUR SUBSIDIARIES, PARENTS, AFFILIATES, OFFICERS, DIRECTORS, AGENTS,
AND EMPLOYEES HARMLESS FROM AND AGAINST ANY AND ALL CLAIMS, LOSSES,
LIABILITIES, COSTS AND EXPENSES (INCLUDING BUT NOT LIMITED TO
ATTORNEYS' FEES) ARISING FROM OR IN CONNECTION WITH (A) YOUR BREACH
OF THIS AGREEMENT, INCLUDING THE DOCUMENTS INCORPORATED BY
REFERENCE; (B) YOUR VIOLATION OF ANY STATE, FEDERAL FOREIGN OR
INTERNATIONAL LAWS, CODES OR REGULATIONS; AND/OR (C) YOUR VIOLATION
OF ANY THIRD PARTY'S RIGHTS, INCLUDING, BUT NOT LIMITED TO,
INFRINGEMENT OF ANY COPYRIGHT, VIOLATION OF ANY PROPRIETARY RIGHT
AND INVASION OF ANY PRIVACY RIGHTS. THIS OBLIGATION WILL SURVIVE THE
TERMINATION OF THIS AGREEMENT.
Limitation of Liability.Your
Earth Now WILL NOT BE LIABLE FOR ANY DAMAGES OF ANY KIND INCLUDING
WITHOUT LIMITATION DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE
AND CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT, YEN, THE SERVICES, THE INABILITY TO USE THE SERVICES OR
THOSE RESULTING FROM ANY GOODS OR SERVICES PURCHASED OR OBTAINED OR
MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH THE SERVICES
WHETHER SUCH DAMAGES ARISE UNDER THEORY OF CONTRACT, TORT (INCLUDING
NEGLIGENCE), STRICT LIABILITY OR OTHERWISE.
Applicable Law. The laws
of the State of Kansas govern this Agreement and all of its terms
and conditions, without giving effect to any principles of conflicts
Arbitration. YOU AGREE
THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR OUR SERVICES SHALL BE SETTLED BY BINDING ARBITRATION IN
ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN
ARBITRATION ASSOCIATION. ANY SUCH CONTROVERSY OR CLAIM SHALL BE
ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN
ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY.
THE ARBITRATION SHALL BE CONDUCTED IN WICHITA, KANSAS AND JUDGMENT
ON THE ARBITRATION AWARD MAY BE ENTERED INTO ANY COURT HAVING
JURISDICTION THEREOF. EITHER YOU OR Your Earth Now MAY SEEK ANY
INTERIM OR PRELIMINARY RELIEF FROM A COURT OF COMPETENT JURISDICTION
IN WICHITA, KANSAS IF NECESSARY TO PROTECT THE RIGHTS OR PROPERTY OF
YOU OR Your Earth Now PENDING THE COMPLETION OF ARBITRATION AND YOU
HEREBY IRREVOCABLY AND UNCONDITIONALLY CONSENT AND SUBMIT TO THE
EXCLUSIVE JURISDICTION OF SUCH COURTS OVER ANY SUIT, ACTION OR
PROCEEDING ARISING OUT OF THESE TERMS AND CONDITIONS.
Earth Merchant Disputes.
Because Your Earth Now is not the seller in the actual transaction
between earth merchants and buyers and is not the agent of either
for any purpose, Your Earth Now does not have the duty to resolve
and will not be involved in resolving any disputes between
participants related to or arising out of any such transaction.
Licenses.YourEarthNow.com grants a limited license to each participant
to make personal use only of YEN and the Services in accordance with
this Agreement. This license expressly excludes, without limitation,
any reproduction, duplication, sale, resale or other commercial use
of YEN and the Services (other than the buying and selling of items
in accordance with this Agreement), making any derivative of YEN or
the Services, the collection and use of participant e-mail addresses
or other participant information, ratings or listings, or any data
extraction or data mining whatsoever.
Termination.Your Earth Now, in its sole discretion, may terminate or
modify this Agreement, access to YEN or the Services, or any current
transaction immediately without notice for any reason.
Copyright. If you believe
that you have been defamed in some manner by the Your Earth Now Web
site or your own work has been copied in a way that constitutes
copyright infringement, please provide Your Earth Now's Copyright
Agent the following information in writing: (a) an electronic or
physical signature of the person authorized to act on behalf of the
owner of the copyright interest or the person defamed, along with
your address, phone number, and email address; (b) a description of
the defamatory material, or the copyrighted work that you believe
has been infringed, and a description of where the material that you
claim is defamatory or infringing your rights is located on the Your
Earth Now Web site; (c) a statement by you that you have a bona
fide, good faith belief that the defamatory activity has occurred or
that the use by a third party of your proprietary rights is not
permitted by the copyright owner or by law; and (d) a statement that
the information provided is accurate and that, under penalty of
perjury, you are the allegedly defamed party or the copyright owner
or authorized agent to at on the copyright owner's or allegedly
defamed person's behalf.
No Agency; Third-Party Beneficiary. Your Earth Now is
not the agent, fiduciary, trustee or other representative of you.
Nothing expressed or mentioned in or implied from this Agreement is
intended or shall be construed to give to any person other than the
parties hereto any legal or equitable right, remedy or claim under
or in respect to this Agreement. This Agreement and all of the
representations, warranties, covenants, conditions and provisions
hereof are intended to be and are for the sole and exclusive
benefit of Your Earth Now, its earth merchants and you.
Severability. If any provision of this Agreement
shall be deemed unlawful, void, or for any reason unenforceable,
then that provision shall be deemed severed from these terms and
conditions and shall not affect the validity and enforceability of
any remaining provisions.
Entire Agreement. This Agreement and the general
terms, conditions set forth on YEN, including but not limited to
constitute the entire agreement of the parties with respect to the
subject matter hereof and supersedes and cancels all prior and
contemporaneous agreements, claims, representations and
understandings of the parties in connection with the subject matter
No Waiver. Your Earth
Now's failure to enforce the strict performance of any provision of
this Agreement will not constitute a waiver of Your Earth Now's
right to subsequently enforce such provision or any other
provisions of this Agreement.