Terms and Conditions

MercadoMagico Terms of Service Agreement

Last Updated: September 26, 2012

Thank you for using the MercadoMagico website and associated content (hereinafter "Website"), which is owned, operated, or licensed by NeoMagic, Inc. ("NeoMagic"). NeoMagic provides you with a limited license to use the Website subject to the terms and conditions contained within this Terms of Service Agreement (hereinafter "Agreement").

YOU HAVE A DUTY TO READ THIS TERMS OF SERVICE AGREEMENT.

By using the Website, you manifest your assent and agree to be bound by this Agreement. If you do not agree to the terms and conditions contained within this Agreement, you must discontinue your use of the Website immediately. NeoMagic reserves the right to suspend, replace, modify, amend, or terminate this Agreement at any time and within its sole and absolute discretion. In the event NeoMagic replaces, modifies, or amends this Agreement, the Last Updated date, located at the top of this Agreement, will change. Your continued use of the Website after a change in the Last Updated date above will constitute your manifestation of asset to and agreement with any replacement, modification, or amendment herein.

YOU UNDERSTAND AND AGREE THAT NEOMAGIC PROVIDES THE WEBSITE AS A SERVICE AND CANNOT BE HELD RESPONSIBLE OR LIABLE FOR TRANSACTIONS ENTERED INTO AS A RESULT OF YOUR USE OR A THIRD PARTY'S USE OF THE WEBSITE. YOU ARE ADVISED TO USE COMMON SENSE AND EXERCISE CAUTION WHEN USING AND ENTERING INTO TRANSACTIONS THROUGH THE WEBSITE. YOU UNDERSTAND AND AGREE THAT NEOMAGIC DOES NOT CONTROL THE GOODS OR SERVICES SOLD BY THIRD PARTIES THROUGH THE WEBSITE, AND NEOMAGIC MAKES NO WARRANTIES OR GUARANTEES WITH RESPECT TO THE GOODS OF THIRD PARTY SELLERS.

a. User Warranties

By using the Website, you warrant that you are age eighteen (18) or above, are of sound mind, and have the capacity to agree to and uphold the terms and conditions contained within this Agreement. If you use the Website on behalf of a business entity or other third party, you warrant that you express actual authority to act as an agent of that business entity and third party and, as a component of that agency, have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity.

b. Limited License

You acknowledge and agree that the Website is the property of or is licensed by NeoMagic and is protected under United States and international law, including, but not limited to, intellectual property laws and other personal and proprietary rights. You acknowledge and agree that your use of the Website is limited by the license granted under the terms of this Agreement, and you expressly agree that you will not use the Website in any manner not expressly authorized under the terms of this Agreement. NeoMagic reserves all of rights not expressly granted through this Agreement.

NeoMagic provides you with limited, non-exclusive, non-sublicensable, non-assignable, revocable, and royalty free license to use the Website for its customary and intended purposes. You are expressly prohibited from reproducing, preparing derivative works of, distributing copies of, publicly performing, and publicly displaying the Website.

c. Acceptable Use Policy

You are expressly prohibited from using the Website to violate any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or to violate the rights of a third party, including, but not limited to, intellectual property rights, privacy rights, rights of publicity, or other personal or proprietary rights. You acknowledge and agree that you will not falsely advertise the prices of your goods on the Website and that you will comply with all application minimum advertised price policies applicable to your sale of goods through the Website. Additionally, you are expressly prohibited from scraping, crawling, framing, posting unauthorized links to, aggregating, hacking, performing denial of service attacks on, reverse engineering, or circumventing technological protection measures of the Website. You are also prohibited from using the Website to transmit unsolicited commercial emails to third parties or users of the Website, obtaining or mining the personal data of third parties or users of the Website, harassing or defaming third parties or users of the Website, posting obscene, sexually explicit, or pornographic content to the Website, or using the Website to promote bodily harm or emotional distress to third parties or users of the Website.

You are expressly prohibited from selling items consisting of or containing the following through the Website:

1. Explosives, firearms, weapons, knives, fireworks, pyrotechnic devices;
2. Engines;
3. Used clothing;
4. Used cosmetics;
5. Counterfeit goods, including currency and stamps;
6. Drugs or drug paraphernalia
7. Embargoed goods from prohibited countries, including, but not limited to, Cuba;
8. Government documents;
9. Hazardous materials;
10. Medical devices;
11. Lockpicking devices;
12. Pesticides;
13. Plants;
14. Slot machines or other gambling devices;
15. Stolen property;
16. Tobacco;
17. Devices used to circumvent or disable technology protection measures, such as mod chips, jailbreaking tools, or DRM disabling devices; and
18. Adult, pornographic, obscene, lewd, or lascivious materials.

As a seller, it is your responsibility to comply with all laws and regulations and with MercadoMagico.com policies. We encourage you to consult with an attorney and to carefully review all policies and documents in the Sellers' section of the website.

d. Trademarks

You acknowledge and agree that any and all trademarks, trade names, design marks, or logos displayed on the Website by NeoMagic, including but not limited to NEOMAGIC and MERCADOMAGICO, are common law or registered trademarks owned by or licensed to NeoMagic. You are expressly prohibited from using the trademarks of NeoMagic to cause confusion in, to cause mistake in, or to deceive consumers, or from falsely designating the origin of, the source of, or the sponsorship of your goods or services. You are further prohibited from using the trademarks of NeoMagic in domain names, in keyword advertisements, to trigger keyword advertisements, or in meta tags. All other trademarks, trade names, design marks, or logos are the property of their respective owners.

e. User Accounts

NeoMagic may provide you with the ability to create a user account, which may provide you with the ability to access and use additional Website functions, such as the ability to sell or purchase goods through the Website (hereinafter "User Account"). User Accounts may be either Vendor Accounts, which allow you to list and sell goods through the website (hereinafter Vendor Accounts"), or Consumer Accounts, which allow you to purchase goods through the Website (hereinafter "Consumer Accounts").

In registering a Vendor Account, you warrant and represent that you have all right, title, and interest in and to any goods sold through your Vendor Account or express written authorization from the owner of all right, title and interest in and to any goods sold through your Vendor Account from the owner of those goods. You warrant and agree that you will accurately describe the qualities and characteristics of the goods sold through your Vendor Account. Specifically, owners of Vendor Accounts may only use accurate and legally-compliant descriptions of the goods sold through their Vendor Accounts. Owners of Vendor Accounts are expressly prohibited from selling intangible items, namely, items that cannot be shipped to the online shopper's physical address, through Vendors Accounts.

In registering a Consumer Account, you understand and agree that you may be subject to third party return policies not under the control of NeoMagic. In the event you purchase goods from NeoMagic, you may return defective goods to NeoMagic in accordance with the stated return policy. You are directed to review NeoMagic's return policy for more details. In registering a Consumer Account, you understand and agree that the prices listed on the Website are an invitation to deal. No contract will be formed between you and the owner of a Vendor Account until your offer to purchase goods through the Website is accepted. You expressly agree that NeoMagic and owners of Vendor Accounts may not be held liable or responsible for any pricing errors contained within the Website, and both NeoMagic and its Vendor Account owners reserve the right to correct, modify, or amend the price charged for a good sold through the Website at any time.

You acknowledge and agree that you control access to your User Account. Your User Account may only be used by you or by third parties with your express written consent. NeoMagic will not be held responsible or liable for any unauthorized access to your User Account, and you are under a continuing duty to promptly provide NeoMagic with notice of any unauthorized or unusual access to your User Account. You are advised to keep the username and password associated with your User Account secure and secret. By creating a User Account and providing your personal information to NeoMagic, you acknowledge and agree that NeoMagic may use your personal information to contact you.

Through registering a User Account, NeoMagic may also provide you with the ability to submit text, graphics, videos and other content to the Website for display in a goods listing (hereinafter "Listing(s)"). By registering and using a User Account to post a Listing on the Website, you grant NeoMagic a limited, non-exclusive, sublicenseable, non-revocable, assignable, and royalty free license to reproduce, prepare derivative works of, distribute, display publicly, and perform publicly, whether by means of digital transmission or otherwise, your Listing for the customary and intended purposes of the Website, including, but not limited to, to display your Listing on and within the Website. This limited license will terminate upon the voluntary or involuntary termination of your User Account. By posting a Listing on the Website, you warrant and agree that your Listing will be accurate, truthful, non-deceptive, and complete. Additionally, you warrant and agree that your Listing will not violate the terms or conditions of this Agreement, any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international, or the rights of a third party.

NeoMagic reserves the right to suspend or terminate your User Account at any time and in its sole and absolute discretion, including, but not limited to, for a violation of any term or condition of this Agreement.

f. Third Party Links

You acknowledge and agree that the Website may contain links to third party websites or content that NeoMagic does not own or control. You are advised to review the terms and conditions of any third party websites or content linked to through the Website, and you agree that NeoMagic will not be responsible for websites not under the ownership or control of NeoMagic. NeoMagic specifically disclaims any responsibility for the content available on any other websites linked to the Website. Your use of or access to any other websites linked to the Website is at your own risk.

g. Term and Termination

The term of this Agreement will begin upon your first accessing of the Website and will continue until the earlier of the following: (i) NeoMagic terminates your access to the Website; or (ii) you cease using the Website and terminate your User Account. NeoMagic reserves the right to terminate the Website or your access to the Website in its sole and absolute discretion and without prior notice.

h. Payment

When you register and use a Vendor Account to list goods for sale through the Website, you may be charged a monthly fee by NeoMagic (hereinafter "Monthly Fee"). You may also be charged shipping fees should you purchase postage or shipping supplies from NeoMagic (hereinafter "Shipping Fee"). When you register and use a Vendor Account, you may also be charged a transaction fee, which will consist of a percentage of the sale price of any good sold through your Vendor Account (hereinafter "Transaction Fee"). These fees will be payable at the times specified by NeoMagic on the Website. All payments for services offered through the Website are non-refundable. You represent and warrant that you will timely pay all fees and charges, and NeoMagic reserves the right to terminate your User Account and access to the Website for your failure to timely pay. All fees and charges will be quoted and payable in United States Dollars.

You agree that you will pay all taxes assessed by governmental bodies, whether local, state, provincial, national, or international, associated with your use of the Website, including, but not limited to, sales tax, use tax, value added tax, and income tax. You recognize and agree that NeoMagic will not be held responsible for the collection of taxes or the payment of fees, including international wire transfer fees, arising out of or related to your use of the Website, including, but not limited to, your sale of goods through the Website. You agree that you will not initiate any chargebacks against NeoMagic unless approved in writing. You understand and agree that you will be responsible for any costs or fees associated with any unauthorized chargebacks. Any disputes as to payment must be brought to NeoMagic's attention in writing within thirty (30) days or will otherwise be barred.

i. Section 230 Compliance

You acknowledge and agree that the Website is an interactive computer service as those terms are defined under Section 230 of the Communications Decency Act. NeoMagic will not be considered a speaker or publisher of any information provided by a third party to the Website, regardless of whether NeoMagic chooses to remove, suspend, change, or amend such information.

j. Copyright Policy

The Website is copyright 2012 NeoMagic, Inc. NeoMagic will expeditiously respond to all duly issued notifications of copyright infringement that are sent to NeoMagic's designated copyright agent pursuant to 17 U.S.C. § 512. All notices of copyright infringement must contain the following:

1. The physical or electronic signature of the copyright holder or a person authorized to act on his or her behalf;

2. Identification of the copyrighted work alleged to have been infringed;

3. Specific identification of the allegedly infringing material, including, if applicable, a link to the allegedly infringing material;

4. Contact information of the complaining party;

5. A statement that the complaining party has a good faith belief that the use of the material complained of is not authorized by the copyright holder, its agent, or the law; and

6. A statement that the information in the notice is accurate, and, under penalty of perjury, that the complaining party is authorized to act on behalf of the copyright owner.

Upon receipt of a notice of infringement, NeoMagic will undertake reasonable steps to contact the poster of the allegedly infringing content so that the poster may issue a counter-notification. All counter-notifications must contain the following:

1. The physical or electronic signature of the subscriber;

2. Identification of the material that has been removed or the location where the material previously appeared;

3. A statement, under penalty of perjury, that the subscriber has a good faith belief that the material was removed due to mistake or misidentification; and

4. The subscriber's name, address, and telephone number and a statement that the subscriber consents to the jurisdiction of the federal district court in which the subscriber is located or, if the subscriber is located outside of the United States, in San Jose, California.

All notices of infringement and counter-notifications may be sent to [email protected].

k. Disclaimer of Warranties and Limitation of Liability

YOU ACKNOWLEDGE AND AGREE THAT THE WEBSITE IS PROVIDED ON AN "AS-IS" BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF TITLE, MERCHANTABILITY, ACCURACY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, AND NON-INFRINGEMENT. WHEREVER PERMITTED BY LAW, YOU ACKNOWLEDGE THAT NEOMAGIC WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO THE WEBSITE, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS' FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE WEBSITE OR DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE WEBSITE IS AT YOUR SOLE RISK AND THAT NEOMAGIC'S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR $1000, WHICHEVER IS LESS.

l. Indemnification

You agree to indemnify, defend, and hold harmless NeoMagic, its officers, shareholders, directors, employees, subsidiaries, affiliates, and representatives from any and all losses, including, but not limited to, costs and attorneys' fees, arising out of or related to (i) your use of the Website, (ii) your violation of any term or condition of this Agreement; (iii) your violation of the rights of third parties, including, but not limited to, intellectual property rights or other personal or proprietary rights; and (iv) violation of any law, statute, ordinance, regulation, or treaty, whether local, state, provincial, national or international. Your obligation to defend NeoMagic will not provide you with the ability to control NeoMagic's defense, and NeoMagic reserves the right to control its defense, including its choice of counsel and whether to litigate or settle a claim subject to indemnification.

m. Arbitration

YOU ACKNOWLEDGE AND AGREE THAT ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT, INCLUDING ANY CLAIM OR CONTROVERSY CONCERNING INTERPRETATION OF THIS AGREEMENT, OR YOUR USE OF THE WEBSITE WILL BE SETTLED BY ARBITRATION PURSUANT TO THE MOST RECENTLY EFFECTIVE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. THIS ARBITRATION PROCEEDING WILL BE DECIDED BY A SINGLE ARBITRATOR RANDOMLY SELECTED FROM A LIST OF NEUTRAL ARBITRATORS MAINTAINED BY THE AMERICAN ARBITRATION ASSOCIATION. JUDGMENT ON ANY AWARD RENDERED BY THE ARBITRATOR MAY BE ENTERED IN ANY COURT HAVING JURISDICTION. THE ARBITRATOR WILL BE PROVIDED WITH THE RIGHT TO AWARD COSTS AND ATTORNEYS' FEES TO THE PREVAILING PARTY. THIS ARBITRATION WILL BE HELD IN SAN JOSE, CALIFORNIA AND BOTH PARTIES AGREE THAT THEY WILL BE REQUIRED TO BE PRESENT IN SAN JOSE, CALIFORNIA FOR ARBITRATION UNDER THE TERMS OF THIS AGREEMENT AND HEREBY SUBMIT TO EXCLUSIVE PERSONAL JURISDICTION IN SAN JOSE, CALIFORNIA. THE ARBITRATOR WILL APPLY THE LAWS OF THE STATE OF CALIFORNIA AND THE FEDERAL LAWS OF THE UNITED STATES IN DECIDING ANY CONTROVERSY OR CLAIM PURSUANT TO THIS ARBITRATION CLAUSE.

n. Force Majeure

NeoMagic will not be responsible for any delay or failure in performance of the Website arising out of any cause beyond NeoMagic's control, such as acts of God, war, riots, fire, terrorist attacks, power outages, severe weather, or other accidents.

o. Survivability

The representations, warranties, duties, and covenants made by you under this Agreement will survive the termination of this Agreement, your User Account, or the Website, including, but not limited to, your duty to indemnify and defend NeoMagic.

p. Severability

In the event any term or condition of this Agreement is deemed invalid or unenforceable, the remaining terms and conditions of this Agreement will remain in full force and effect.

q. Interpretation

This Agreement will be deemed to have been drafted by both parties, and the terms and conditions of this Agreement will not be interpreted against its drafter.

r. Assignment

You are expressly prohibited from assigning your rights and duties under this Agreement. NeoMagic reserves the right to assign its rights and duties under this Agreement, including in a sale of NeoMagic or its Website.

s. Waiver, Privacy Policy, and Integration

No term or condition of this Agreement or breach of this Agreement will be deemed to have been waived or consented to unless said waiver is writing and signed by the party to be charged. This Agreement is the entire agreement between the parties and supersedes all previous agreements or representations between the parties. NeoMagic incorporates by reference its Privacy Policy as if fully stated herein.