EurekaSpot is a service enabling the sale of items directly between sellers and buyers, in which TestMart acts only as a venue and payment processor. The legal terms applicable to your use of EurekaSpot and the sale of items through EurekaSpot are set forth on this page in two parts: the “EurekaSpot User Agreement” applies to your use of EurekaSpot, and the “Terms of Sale for Items Sold via EurekaSpot” applies to the sale of items between buyers and sellers on EurekaSpot.
EurekaSpot User Agreement
You act as a "seller" when you list equipment for sale through EurekaSpot. You act as a "buyer" when you purchase equipment through EurekaSpot. The terms in this Agreement applicable to seller and buyer apply to you to the extent you are a seller and/or a buyer on EurekaSpot. The seller of each item on EurekaSpot enters into a separate agreement of sale (which is comprised of standard Terms of Sale provided by TestMart and the item order to which the seller and buyer agree) with the buyer of that item. TestMart is not a party to that agreement although it does act as a payment processor as described in this Agreement.
Venue. EurekaSpot is a venue, enabling users to offer, sell, and buy items. TestMart is not involved in the actual transaction between buyers and sellers. Without limiting the foregoing:
TestMart has no control over the quality of the items listed or the ability of buyers to pay for items. TestMart cannot ensure that a buyer or seller will actually complete a transaction.
The seller – and not TestMart – is responsible for delivering and transferring title in the item to the buyer. The seller is responsible for providing a warranty (if any) for the item and the buyer is responsible for demanding a warranty (if any) from the seller.
TestMart does not authenticate the identity of any user and you assume all risk that the party with whom you may enter into a transaction is not who he purports to be. TestMart does not review, control, or confirm the accuracy of any information provided by another user.
Registering with TestMart. You represent and warrant that the information you provide in your registration is true, accurate, current, and complete. You will promptly update your registration information with TestMart whenever it is no longer current. You will maintain the confidentiality of your user name and password and you will be solely responsible and liable for any and all access to and use of EurekaSpot (including all activities, orders, and transactions) through the use of your username and password. You will immediately notify TestMart if you become aware of any activity indicating that your account is being used without authorization.
Payment Processor. TestMart acts as a payment processor to hold payment from a buyer until the seller delivers the item and the buyer confirms that the item meets the seller’s description (See the Terms of Sale below). TestMart is not otherwise involved in the transaction between buyer and seller. TestMart is not the agent of either the buyer or the seller.
Sales Fees. Listing items on TestMart is free. However, as a seller, you agree to pay TestMart an 8% transaction fee of the final pre-tax sale price agreed to between you and a buyer, and only when an item is sold.
Listed Price : EurekaSpot enables the seller to offer an item for sale at a specified fixed price, which offer will be deemed to incorporate to the Terms of Sale. The seller will sell the item to the first eligible buyer that accepts the offer.
Buyer Offer : A buyer may send the seller an offer through EurekaSpot, which offer will be deemed to incorporate the Terms of Sale and a representation that the buyer is an eligible buyer.
An “eligible buyer” is a company or government agency that (1) agrees to pay for the item prior to shipping, as described in the “Payment”: “Up-Front Payment” subsection of the Terms of Sale, or (2) for any item of $5,000 or more, agrees to pay for the item as described in the “Payment”: “Purchase Order” subsection of the Terms of Sale and (a) is a U.S. federal government or military agency or (b) is a company with a U.S. billing address and has a PAYDEX rating above 70 (as reported by Dun & Bradstreet Corporation to TestMart) at the time of the buyer’s first purchase with TestMart and/or EurekaSpot (Testmart will not have any obligation of updating any buyer’s PAYDEX rating unless and until the buyer fails to timely pay for an item purchased through EurekaSpot).
Right of Return. As provided in the Terms of Sale, the buyer may return an item for any reason or no reason, by notifying TestMart by e-mail at email@example.com of such return within five (5) days after buyer’s receipt of the item. TestMart will forward the notice to the seller and the buyer will promptly return the item to the seller, as provided in the Terms of Sale. If the buyer returns the item (1) without sending notice within the time period set forth above, or (2) even though it meets the specifications and condition represented by the seller on EurekaSpot: TestMart will retain (or buyer will pay) 1.5% of the price of the returned item; TestMart will remit to the buyer 98.5% of the original payment in U.S. dollars (less any difference due to currency conversion, if any) by check within 14 days of confirmation the item was received by the seller.
Unauthorized Returns. Buyer will not return any item to TestMart. If any item is returned to TestMart, it will be forwarded to the applicable seller and the buyer and seller will be jointly liable to TestMart for the costs of shipping and insuring the item.
Payments. As provided in the Terms of Sale, buyer will make payments to TestMart. TestMart will hold the payments in escrow. TestMart will send the buyer an invoice for the item once the buyer or the seller (as applicable) has accepted the offer to purchase an item.
If the buyer and seller have agreed to buyer’s use of a purchase order as provided in the “Payment”: “Purchase Order” subsection of the Terms of Sale and the buyer has not paid TestMart within 45 days the date the invoice was issued, TestMart will send the buyer a notice of the delinquency. If such buyer has not paid TestMart within 75 days after the date the invoice was issued: TestMart may continue to pursue payment from the buyer for the fees owed to TestMart (as well as any collection costs); TestMart will disclose all buyer information held by TestMart that is necessary or helpful to seller in collecting the amount owed to seller. However, TestMart will have no obligation to pursue any collection efforts for the seller and TestMart will have no liability to seller for any amounts not paid by any buyer.
Fourteen (14) days after TestMart has verified the item sold was delivered to the ship-to address provided by the buyer, the right of return period has expired, and TestMart has received payment from the buyer, TestMart will pay seller the amount received from buyer minus the retained 8% transaction fee and any other fees described in this Agreement, via company check or electronic transfer. TestMart passes on to the seller, and the seller agrees to pay, any fees charged by third parties for electronic transfers and/or currency conversions. TestMart will not pay any U.S.-based seller until TestMart receives a completed W-9 form applicable to the transaction from the seller. If a transaction is not completed for any reason, buyer and seller will be jointly liable to TestMart for any costs incurred (including electronic transfer fees) by TestMart. If seller collects payment from buyer directly, seller will pay TestMart the 8% transaction fee and any other fees described in this Agreement. Buyer and seller will be jointly liable to TestMart for the fees owed to TestMart for any transaction.
Seller Ratings and Feedback. Once a buyer offers payment information to complete the purchase of an item, TestMart will send the buyer an invitation to leave "Seller Feedback" in which the buyer rates and provide comments about the seller. Users will not take any actions that may undermine the integrity of the feedback system. Users will use feedback rating in relation to any transaction that is not conducted through EurekaSpot. The displayed rating is an average rounded up to the nearest whole number. For example, a seller with a “3.5” rating will display as a “4.”
Site Interference. Users agree they will not take any action that imposes, or may impose in TestMart sole discretion an unreasonable or disproportionately large load on TestMart infrastructure, or interfere or attempt to interfere with the proper working of EurekaSpot or any activities conducted on EurekaSpot.
Warranty Disclaimer. EurekaSpot is provided “as is,” “as available,” and “with all faults.” TESTMART DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, AND CONDITIONS, INCLUDING THOSE OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, ACCURACY, AND QUIET ENJOYMENT.
Limitation of Liability. IN NO EVENT WILL TESTMART’S TOTAL CUMULATIVE LIABILITY IN CONNECTION WITH THIS AGREEMENT EXCEED THE AMOUNT OF FEES PAID TO TESTMART BY BUYER UNDER THIS AGREEMENT DURING THE TWELVE (12) MONTH PERIOD PRECEDING THE EVENTS FIRST GIVING RISE TO SUCH LIABILITY. IN NO EVENT WILL TESTMART BE LIABLE TO BUYER FOR ANY CONSEQUENTIAL, INDIRECT, EXEMPLARY, SPECIAL, OR INCIDENTAL DAMAGES, EVEN IF IT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Release. In the event that users have a dispute with one or more users, user releases TestMart (and its officers, directors, agents, subsidiaries, joint ventures and employees) from any and all 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 any dispute user has with another user.
With respect to such disputes, users hereby waive any right under California Civil Code § 1542 (or any similar law in your jurisdiction), which states: "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."
Compliance with Laws. User agrees to comply with all applicable laws, including all export control laws. Test and measurement equipment is generally classified Category 3 under the U.S. Department of Commerce export laws. When exporting test equipment from the United States or exporting test equipment manufactured in the United States from any country, seller must comply with U.S. Department of Commerce guidelines. Should TestMart become aware of any violation of this policy, TestMart reserves the right to cancel a transaction and/or directly contact the relevant U.S. Government authority. The majority of test equipment is subject to export controls by any number of the following agencies: U.S. Department of State, U.S. Department of Justice, U.S. Department of the Interior, U.S. Department of Treasury, U.S. Department of Energy, Nuclear Regulatory Commission, U.S. Department of Commerce. In addition to these agencies, TestMart will not allow transactions from Cuba, Iran, Libya, North Korea, Sudan and Syria, as well as any persons on the Department of Treasury Denied Persons List.
Seller Disqualification. TestMart reserves the right to restrict user from listing products at www.testmart.com or any of our affiliated sites or services at any time, for any reason or no reason. Reasons for restriction include, but are not limited to: lack of performance to posted condition, price, warranty or delivery terms; poor ratings from the buyer community, any instance of potential fraud, or posting untrue of misleading statements in the posting of products.
Termination. TestMart may terminate this Agreement with user at any time for its convenience by sending notice to the email address included in your registration information. User may terminate this Agreement with TestMart at any time by sending notice to TestMart at firstname.lastname@example.org. Upon termination of this Agreement, user’s right to access and use EurekaSpot will terminate immediately. TestMart will have no liability to user for its termination of this Agreement. The following sections will survive termination of this Agreement: “Venue,” “Listing your Products,” “Transaction Process,” “Right of Return,” “Payments,” “Warranty Disclaimer,” “Limitation of Liability,” “Release,” “Compliance with Laws,” “Unauthorized Returns,” “Governing Law,” “General,” and “Entire Agreement.”
Governing Law. This Agreement will be governed by the laws of the State of California without giving effect to any principles that may provide for the application of the law of another jurisdiction. You hereby submit to the personal jurisdiction of the state and federal courts located in California. Any disputes arising under this Agreement will be resolved by final, binding arbitration in San Francisco, CA, under the rules of the American Arbitration Association. Notwithstanding the foregoing, TestMart may bring suit related to its intellectual property rights in any court of appropriate jurisdiction. In any action between the parties, the losing party shall bear the expenses and attorneys’ fees for both parties. No action by user arising under this Agreement may be brought at any time more than twelve (12) months after the facts occurred upon which the cause of action arose.
General. User and TestMart are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. There are no third-party beneficiaries intended under this Agreement, except that each other user with whom you enter into a transaction through TestMart will be a third-party beneficiary of your obligations under this Agreement. User may not assign any of user rights, or delegate any of user duties, under this Agreement and any attempted assignment will be null and void. If any provision of this Agreement is held to be invalid or unenforceable by any court, arbitration tribunal or regulatory or self-regulatory agency or body, such provision will be deemed modified so as to be valid and enforceable to the greatest extent possible under applicable law, and the validity of the remaining provisions hereof shall not be affected thereby. As used herein, the term “including” means “including without limitation.” The failure of either party to enforce at any time, or for any period, any one or more of its rights or remedies conferred by this Agreement, or the single or partial exercise of any such right or remedy, shall not be construed as an amendment or waiver of any such rights or remedies or of the right at any time subsequently to enforce any of the terms and conditions of this Agreement.
Modifications to User Agreement and form of Terms of Sale. TestMart reserves the right to update or modify this Agreement and the Terms of Sale at any time by posting the amended version to this page. Notice of any material modifications will be sent to the e-mail address provided by you. User acknowledges that user will be bound by any modified terms once TestMart has sent such notification. Any change to the fee structure of this Agreement will only apply to items listed by user after the notification has been sent.
Entire Agreement. This Agreement incorporates any additional rules posted on EurekaSpot and constitutes the entire agreement between the parties regarding the subject matter hereof and supersedes all prior or contemporaneous agreements, understandings, and communications, whether written or oral.
Terms of Sale for Items Sold via EurekaSpot
These Terms of Sale (the “Agreement,” last revised 10/05), along with the applicable item order (which includes the identification of the item to be sold, the price, the condition of the item, etc.) agreed to by the buyer and seller through the EurekaSpot site, constitutes the entire agreement between the buyer and the seller for the sale of the applicable item and supersedes all prior or contemporaneous agreements, understandings, and communication, whether written or oral.
PRICES. All prices are in US dollars and do not include shipping and insurance costs. Buyer will pay all shipping costs for the item(s). Any tax, fee, or other charge imposed by any public authority applicable to the sale of the item(s) shall be paid by buyer, or in lieu thereof, buyer shall provide seller with an exemption certificate acceptable to the public authority.
PAYMENT. Up-Front Payment . Unless the parties agree (via EurekaSpot) that the seller will sell the item on credit via buyer’s purchase order (see #2 below): promptly upon buyer’s receipt of notice that the offer to purchase or sell has been accepted, buyer will pay TestMart (which acts as a payment processor under this Agreement) all charges stated in the applicable invoice (including the price for the item, shipping, applicable taxes, and electronic transfer fees).
Purchase Order . If the parties agree (via EurekaSpot) that the seller will sell the item on credit via buyer’s purchase order, buyer will pay TestMart (which acts as a payment processor under this Agreement) all charges stated in the applicable invoice (including the price for the item, shipping, applicable taxes, and electronic transfer fees) within thirty (30) days after receiving the item. Any payments that are not made when due shall be subject to late charges of 1.5% per month, or the maximum allowed by law, whichever is less.
DELIVERY. Delivery will be EX WORKS (EXW, Incoterms) seller’s designated facility, using a common carrier that tracks the shipment. The seller will arrange for shipping and insurance with a well-known common carrier (unless otherwise instructed by buyer), and buyer will pay for shipping and insurance. Upon delivery of product to a common carrier, title to the products and all risk of loss shall pass to buyer. All products ship in commercial packaging unless otherwise noted and will be suitably packaged for airfreight shipment. Delivery time is indicated on the item order. All products are shipped via ground unless otherwise specified by buyer at time of order.
CANCELLATION. If seller does not ship item(s) within the "Ships in" time specified in seller’s EurekaSpot listing for the item(s), the buyer will have the right to cancel the purchase without any liability. If buyer exercises that right, seller will pay for all related return shipping costs if the item(s) have been shipped. If buyer has made payment to TestMart by electronic transfer prior to delivery and seller breaches its obligation to deliver the item, seller will pay buyer’s electronic transfer fees and will reimburse buyer for any loss due to differences in exchange rates for any currency conversion.
Seller will have the right to cancel the order and terminate this Agreement if delivery of the item would violate applicable export law or any other applicable law.
RIGHT OF RETURN. Upon receipt of the item, buyer shall promptly inspect the item to confirm that it meets the specifications and condition represented by seller on EurekaSpot. The buyer may return an item for any reason or no reason, by notifying TestMart by e-mail at email@example.com of such return within five (5) days after buyer’s receipt of the item. If buyer fails to provide notice within that period, Buyer will be deemed to have irrevocably accepted the item.
If the item is returned because it fails to meet the specifications and condition represented by the seller on EurekaSpot, the seller will pay for shipping and insurance costs of shipping the item back to seller. If the item is returned even though it meets the specifications and condition represented by the seller on EurekaSpot, the buyer will pay for shipping and insurance costs of shipping the item back to seller. Buyer will use the original packing material and include all materials that were delivered with the item. Buyer has sole discretion as to which commercial carrier to use, but must ship using similar service and delivery options (including insurance) that the seller used to ship the item originally. If buyer exercises this right of return, the buyer’s only liability to the seller is to promptly return the item in the same condition as received by the buyer.
SECURITY INTEREST. To secure buyer’s obligation to pay all fees and charges required under this Agreement, buyer hereby grants to seller a first priority, purchase money security interest in the item shipped to buyer under this Agreement and all proceeds thereof (if the item is resold by the buyer). At seller’s request, buyer will execute and deliver any documents, and take any other action, that seller deems necessary or advisable to perfect this security interest and maintain the first priority thereof, including, without limitation, the filing of UCC-1 financing statements. Buyer hereby appoints seller and its authorized agents as buyer’s agent and attorney-in-fact to execute, deliver and file any such document and take any such action in buyer’s name and on behalf of buyer if buyer refuses or for any reason fails to do so. This appointment is coupled with an interest and is irrevocable.
WARRANTY. Seller warrants the item in accordance with the separate warranty statement included in the order or the listing for the item. THIS WARRANTY IS IN LIEU OF ALL OTHER WARRANTIES EXPRESSED, STATUTORY, OR IMPLIED, WHETHER ORAL OR WRITTEN, INCLUDING THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, SYSTEM INTEGRATION, NON-INFRINGEMENT, AND QUIET ENJOYMENT.
LIMITATION OF LIABILITY. IN NO EVENT SHALL EITHER PARTY BE LIABLE FOR SPECIAL, CONSEQUENTIAL, INCIDENTAL, OR INDIRECT DAMAGES ARISING OUT OF THIS AGREEMENT, EVEN IF SUCH PARTY WAS AWARE OF THE POSSIBILITY OF SUCH DAMAGES.
GOVERNING LAW AND DISPUTES. In order to provide certainty and simplicity to the choice of law by the parties, the parties agree as follows. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement.
(a) If the seller and buyer are both domiciled the U.S.: (1) the law of the jurisdiction in which the buyer is located will govern this Agreement (without giving effect to any principles that may provide for the application of the law of another jurisdiction), and (2) any disputes arising under this Agreement will be resolved by final, binding arbitration in San Francisco, CA, under the rules of the American Arbitration Association.
(b) If either the seller or the buyer (but not both) is domiciled in the U.S.: (1) the law of jurisdiction in which the U.S.-based party is domiciled will govern this Agreement (without giving effect to any principles that may provide for the application of the law of another jurisdiction), and (2) any disputes arising under this Agreement will be resolved by final, binding arbitration in San Francisco under the rules of the American Arbitration Association.
(c) If neither the seller nor the buyer is domiciled in the U.S.: (1) the law of England will govern this Agreement (without giving effect to any principles that may provide for the application of the law of another jurisdiction), and (2) any disputes arising under this Agreement will be resolved by final, binding arbitration in London, England under the rules of the International Chamber of Commerce.
GENERAL. (a) Buyer will not export the products furnished hereunder except in full compliance with all laws and regulations of the United States relating to such export. (b) Failure of either party to enforce any of the provisions hereof shall not be construed to be a waiver of the right of such party thereafter to enforce any such provisions. (c) If any provision of this agreement is held to be invalid, such provision will be enforced to the maximum extent permissible and the remaining provisions will remain in full force and effect.