Introduction:
Welcome to D. A. Lyman, LLC. By using the services on the D. A. Lyman, LLC websites (overstockelectrical.com, overstockelectrical.net, plctrader.com, plctrader.net, usedequipmentgroup.com, and other
related websites owned by D. A. Lyman, LLC where this agreement appears) (the "Sites"), you are
agreeing to the following terms, including those available by hyperlink,
(the "Agreement" or "User Agreement") with D. A. Lyman, LLC and the general
principles for the websites of our subsidiaries and international
affiliates. If you reside outside of the United States, you are contracting with
D. A. Lyman, LLC If you have any questions, please refer to the Help
section on the Sites.
Before you may become a member of D. A. Lyman, LLC, you must read and accept all of
the terms and conditions in, and linked to, this User Agreement and the
Privacy Policy. D. A. Lyman, LLC strongly recommend that, as you read this User
Agreement, you also access and read the linked information. By accepting this
User Agreement, you also agree that your use of some D. A. Lyman, LLC branded websites
or websites D. A. Lyman, LLC operate may be governed by separate user agreements and
privacy policies. The agreement that applies on any of our domains and
subdomains is always this agreement.
This Agreement is effective on
(current date), for current users,
and upon acceptance for new users. D. A. Lyman, LLC reserves the right to change some or all of this website as it desires without prior notice written or verbal.
Entire Agreement:
This Agreement is made by and between Seller and Buyer for the sale and purchase of goods or services. This Agreement is comprised of this document, Buyer’s Application for Credit, Seller’s Order Acknowledgments and Invoices for the goods or services, and, if Buyer has ordered the goods or services through Seller’s or representative web site, the provisions of that web site to the extent not inconsistent with the provisions of the remainder of this Agreement. This Agreement constitutes the complete and exclusive statement of the understanding and agreement of the parties with respect to the sale and purchase of the goods. No representation, condition, usage of trade, course of dealing or course of performance explain or supplement its terms or conditions Modification, Amendment and Waiver:
Except as otherwise noted, this Agreement may NOT be altered, supplemented, or amended by the use of any other document, including, but not limited to, any acknowledgment, acceptance, contract, or shipping instruction form containing terms or conditions at variance with or in addition to those set forth in this document. Any attempt to alter, supplement or amend this document or to enter an order for goods that are subject to additional or altered terms and conditions will be null and void, unless otherwise agreed to in a written instrument signed by both Buyer and Seller. No waiver by either party with respect to any breach or default or of any right or remedy, and no course of dealing, shall be deemed to constitute a continuing waiver of any breach or default or of any right or remedy unless such waiver is expressed in a writing signed by the party to be bound.
Content License:
When you give us content, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.
Limitation of Liability:
Buyer's exclusive remedy with respect to any claim concerning this Agreement or any goods sold pursuant to this Agreement shall be for damages. Seller's liability with respect to any claim concerning the goods shall not exceed the purchase price of the particular goods with respect to which the claim is made, or, at Seller's option, the repair or replacement of those goods. These amounts are agreed upon as liquidated damages and not as penalties. It is intended and expressly agreed that the purpose of the preceding provisions is to set upper limits to the amount recoverable by Buyer. These liability limitations shall apply whether the claim is based in contract, negligence, strict liability, other tort, or any other cause. In no event shall Seller be liable for indirect, special, incidental, consequential or punitive damages, even if it has been advised of the possibility of such damages. Further, Seller shall not be required to pay transportation charges for the return of any goods unless Seller authorizes such return in advance. If Buyer desires that Seller assume a greater liability than what is provided for in this paragraph, Seller will amend this Agreement by attaching an addendum setting forth the additional liability and an additional amount to be paid by Buyer for Seller’s assumption of that additional liability. No such amendment shall be effective unless signed by Buyer and Seller. Seller is not an insurer, and nothing in such addendum shall be construed to hold Seller as an insurer. No suit shall be brought against Seller more than one (1) year from the date the cause of action accrues.
You will not hold D. A. Lyman, LLC responsible for other users' actions or inactions, including things they post. You acknowledge that D. A. Lyman, LLC are not a traditional auctioneer. Instead, the Sites are a venue to allow anyone to offer, sell, and buy just about anything, at anytime, from anywhere, in a variety of pricing formats and venues, such as stores, fixed price formats and auction-style formats. D. A. Lyman, LLC are not involved in the actual transaction between Buyers and Sellers. D. A. Lyman, LLC have no control over and do not guarantee the quality, safety or legality of items advertised, the truth or accuracy of listings, the ability of Sellers to sell items, the ability of Buyers to pay for items, or that a Buyer or Seller will actually complete a transaction.
D. A. Lyman, LLC do not transfer legal ownership of items from the Seller to the Buyer. Further, D. A. Lyman, LLC cannot guarantee continuous or secure access to our services, and operation of the Sites may be interfered with by numerous factors outside of our control. Accordingly, to the extent legally permitted, D. A. Lyman, LLC exclude all implied warranties, terms and conditions. D. A. Lyman, LLC are not liable for any loss of money, goodwill, or reputation, or any special, indirect, or consequential damages arising out of your use of our Sites. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.
Regardless of the previous paragraph, if D. A. Lyman, LLC are found to be liable, our liability to you or to any third party is limited to the greater of (i) the total fees you paid to us in the 12 months prior to the action giving rise to the liability, and (ii) $100.
Release:
If you have a dispute with one or more users, you release us (and our officers, directors, agents, subsidiaries, joint ventures and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes. If you are a Colorado resident, you waive any and all Colorado Civil Codes, 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."
Assignment:
Buyer shall not assign (by operation of law or otherwise) its rights or delegate its performance under this Agreement to anyone without Seller’s prior written consent. Any attempted assignment or delegation without such consent shall be void.
Attorneys Fees and Costs:
Buyer shall pay to Seller all reasonable attorneys' fees, costs and expenses incurred by Seller in collecting any amounts due with respect to the goods sold under this Agreement or in otherwise enforcing Seller’s rights under this Agreement, whether or not by prosecution of a claim against Buyer in an action at law.
Choice of Law and Forum:
THIS AGREEMENT, AND THE APPLICATION AND INTERPRETATION OF THE TERMS OF THIS AGREEMENT, SHALL BE GOVERNED EXCLUSIVELY BY THE TERMS OF THIS AGREEMENT AND BY THE LAWS OF THE STATE OF COLORADO AND APPLICABLE FEDERAL LAW OF THE UNITED STATES, EXCLUDING ANY CONFLICT-OF-LAWS PRINCIPLE THAT MIGHT REFER THE GOVERNANCE OF THIS AGREEMENT OR THE PARTIES’ RELATIONS WITH EACH OTHER TO THE LAW OF ANOTHER JURISDICTION. Buyer AGREES AND CONSENTS TO THE JURISDICTION OF THE STATE COURTS OF ARAPAHOE COUNTY, COLORADO, AND OF THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLORADO AND ACKNOWLEDGES THAT SUCH COURTS SHALL CONSTITUTE PROPER AND CONVENIENT FORUMS FOR THE RESOLUTION OF ANY ACTION AMONG Buyer AND Seller WITH RESPECT TO THE SUBJECT MATTER HEREOF, AND AGREES THAT SUCH COURTS SHALL BE THE SOLE AND EXCLUSIVE FORUMS FOR THE RESOLUTION OF ANY ACTIONS AMONG Buyer AND Seller WITH RESPECT TO THE SUBJECT MATTER OF THIS AGREEMENT.
Privacy:
D. A. Lyman, LLC does not sell or rent your personal information to third parties for their marketing purposes without your explicit consent. D. A. Lyman, LLC use your information only as described in the D. A. Lyman, LLC Privacy Policy. D. A. Lyman, LLC view protection of users' privacy as a very important community principle. D. A. Lyman, LLC store and process your information on computers located in the United States that are protected by physical as well as technological security devices. You can access and modify the information you provide us and choose not to receive certain communications by signing-in to your account. If you object to your Information being transferred or used in this way please do not use our services. The agreeing user also agrees to the Overstock Electrical Privacy Policy in its entirety listed.
Privacy Policy: http://www.overstockelectrical.com/privacy.cfm
Indemnity:
You will indemnify and hold us (and our officers, directors, agents, subsidiaries, joint ventures and employees), harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement, or your violation of any law or the rights of a third party.
No Agency:
No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
Resolution of Disputes:
If a dispute arises between you and D. A. Lyman, LLC, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and D. A. Lyman, LLC agree that D. A. Lyman, LLC will resolve any claim or controversy at law or equity that arises out of this Agreement or our services (a "Claim") in accordance with one of the subsections below or as D. A. Lyman, LLC and you otherwise agree in writing. Before resorting to these alternatives, D. A. Lyman, LLC strongly encourage you to first contact us directly to seek a resolution by going to the help page. D. A. Lyman, LLC will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures, such as mediation or arbitration, as alternatives to litigation.
Law and Forum for Disputes:
This Agreement shall be governed in all respects by the laws of the State of Colorado as they apply to agreements entered into and to be performed entirely within Colorado between Colorado residents, without regard to conflict of law provisions. You agree that any claim or dispute you may have against D. A. Lyman, LLC must be resolved by a court located in Arapahoe County, Colorado, except as otherwise agreed by the parties or as described in the Arbitration Option paragraph below. You agree to submit to the personal jurisdiction of the courts located within Arapahoe County, Colorado for the purpose of litigating all such claims or disputes.
Arbitration Option:
For any claim (excluding claims for injunctive or other equitable relief) where the total amount of the award sought is less than $10,000, the party requesting relief may elect to resolve the dispute in a cost effective manner through binding non-appearance-based arbitration. In the event a party elects arbitration, they shall initiate such arbitration through an established alternative dispute resolution ("ADR") provider mutually agreed upon by the parties. The ADR provider and the parties must comply with the following rules: i) the arbitration shall be conducted by telephone, online and/or be solely based on written submissions, the specific manner shall be chosen by the party initiating the arbitration; ii) the arbitration shall not involve any personal appearance by the parties or witnesses unless otherwise mutually agreed by the parties; and iii) any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.
Improperly Filed Claims:
All claims you bring against D. A. Lyman, LLC must be resolved in accordance with this Resolution of Disputes Section. All claims filed or brought contrary to the Resolution of Disputes Section shall be considered improperly filed. Should you file a claim contrary to the Resolution of Disputes Section, D. A. Lyman, LLC may recover attorneys' fees and costs up to $1000, provided that D. A. Lyman, LLC has notified you in writing of the improperly filed claim, and you have failed to promptly withdraw the claim.
Title and Risk of Loss:
If the goods sold pursuant to this Agreement are delivered to Buyer at Seller’s premises, title to and risk of loss of the goods shall pass to upon Buyer’s receipt of the goods. Otherwise, title to and risk of loss of the goods shall pass to Buyer upon delivery of the goods to the location specified on the face of this Agreement.
Payments:
Payments shall be made to Seller at the address shown on Seller’s invoice for the goods. Unless otherwise indicated on Seller’s Order Acknowledge or Invoice for the goods, all payments shall be due in full, without any setoff or withholding for any reason, immediately upon Seller’s delivery of the goods sold pursuant to this Agreement.
* - Only applicable if items are purchased from D. A. Lyman, LLC directly. Auctions are not included.
* Payment for Goods and Applicable Taxes:
Buyer represents that any supplied credit card or or similar information is true and correct and Buyer has all proper rights in same, that all charges will be honored by Buyer's credit card company and that it will pay all credit card fees as charged. Buyer shall also pay all applicable sales tax. Buyer shall indemnify, defend and hold D. A. Lyman, LLC and its personnel harmless against any claims against some or all of them in relation hereto.
* Returns:
Contact the Buyer Service Department at 1-303-762-0649 or . Please have your invoice and/or web order number available. Returns will not be accepted without a Return Authorization (RMA) number.
The support staff will attempt to diagnose the problem over the phone. If the problem cannot be resolved over the phone, D. A. Lyman, LLC, will decide on the best course of action.
D. A. Lyman, LLC will not be responsible for consequential damage to items or components caused by either internal or external equipment, shorted equipment, connections or components that were not purchased from D. A. Lyman, LLC or that D. A. Lyman, LLC did not install.
D. A. Lyman, LLC will not be responsible for damages to any components or loss of data inadvertently caused by products, under normal or abnormal use, purchased from D. A. Lyman, LLC. The warranty does not cover damages or defects that may have been caused by: shipment, improper installation or maintenance, misuse, neglect or improper environment, repair, modification, adjustment or options or parts that were not installed by an D. A. Lyman, LLC employee, inadequate or excessive electrical power surges, or other power irregularities. D. A. Lyman, LLC will not repair, replace, or refund any purchase if item serial numbers do not match, or if the product is not sold directly by D. A. Lyman, LLC.
Defective parts covered by warranty will be replaced with a similar or equivalent part at no cost to the Buyer. When replacing a part that is different from the original configuration, the Buyer must purchase the part at cost.
If an item is shipped back for a return and is damaged in shipment, due to Buyer negligence, a refund will not be issued. In the event that the Buyer wishes the now damaged item returned, said party is responsible for that shipping cost.
* 30-day Money Back Guarantee:
In addition to the standard warranty, D. A. Lyman, LLC offers a 30-day money back guarantee on every commodity purchased from D. A. Lyman, LLC directly. If you are not satisfied with your merchandise, you may return it within 30 days for a refund. The refund will only be issued for the amount of the sale and will not include shipping costs. All products will be subject to a 25% restocking fee. To return merchandise, you must obtain an RMA number. Please call the D. A. Lyman, LLC Buyer service department and provide the invoice number, item description, and part number(s) of the merchandise you wish to return. Returned merchandise must be placed in original packaging, and include any product manuals and other accessories, as per original shipment by D. A. Lyman, LLC. Not applicable for auctions where D. A. Lyman, LLC is not the Seller.
* RUSH ORDER STATEMENT:
D. A. Lyman, LLC would like to accommodate your order needs in the best way possible. In order to protect true machine down high priority shipping requests D. A. Lyman, LLC must include a surcharge for same day shipping. If D. A. Lyman, LLC do not then D. A. Lyman, LLC can not effectively guarantee a Buyer in a true crisis situation a priority shipment. Every item leaving D. A. Lyman, LLC must be reviewed and tested by Quality Assurance, packaged and inspected prior to leaving the building. In order to prevent the system from accepting non critical orders as rushes D. A. Lyman, LLC include a 20% surcharge. D. A. Lyman, LLC experience many true same day emergencies everyday. D. A. Lyman, LLC ship thousands of units everyday and all of them go through the same QA system. In order to move a unit to the front of the line and directly to quality control there must be a surcharge. If the unit is not required as a true emergency then D. A. Lyman, LLC will make every attempt to ship within 48 hours of your order at no surcharge.
* RUSH SAME DAY:
Limited to Available Quantity. Can ship same day on orders received prior to 4 p.m. MST (US). Rush Fee is $100 or 20% of order volume whichever is greater.
* RUSH ORDERS RECEIVED AFTER 4 P.M.:
Ship next business day with Rush Fee applied.
* STANDARD SHIPPING:
Average shipping lead time: 2 - 5 business days.
Average delivery time: 8 - 10 business days.
* INTERNATIONAL ORDERS:
Credit Card verification may take up to 72 hours prior to RUSH shipment.
Wire Transfers: Allow 3 - 5 business days for receipt of funds prior to RUSH.
* Deliveries:
Delivery dates, if any are specified in Seller’s Order Acknowledgments or Invoices, are approximate and are based upon prompt receipt of all necessary information concerning packaging, routing and shipping. Each delivery under this Agreement shall be treated, for the purposes of payment only, as a separate contract.
* Taxes and Freight Charges:
Buyer shall reimburse Seller for (i) all taxes and other charges (except franchise or income taxes) that Seller may be required to pay to any governmental entity upon the production, sale, transportation, or delivery of the goods and (ii) all freight charges. Seller may add all such taxes, duties and other charges, if any, to its invoices.
* Buyer's Credit:
If Buyer fails to pay for any one delivery when it becomes due, Seller, in Seller’s sole discretion, may terminate this Agreement or suspend further deliveries under it. Further, should Buyer's financial condition become unsatisfactory to Seller, Seller, in Seller’s sole discretion, may require cash payment or security satisfactory to Seller for future deliveries. Any action taken pursuant to this paragraph shall be without prejudice to any other rights and remedies Seller may have.
* Interest on Late Payments:
Interest shall accrue on all sums due or found to be due under this Agreement at the lower of the rate of 18% per annum or the maximum rate then permitted by applicable law, until such sums are paid.
* Excuse of Performance:
Seller shall not be liable to Buyer for any delay in performance or nonperformance that is caused in whole or part by an event or circumstance beyond Seller’s reasonable control, including, but not limited to, fire, flood, accident, labor trouble, strike, lockout or injunction, compliance with governmental requests, laws, regulations, orders or actions, riot, sabotage, or war. The quantity of goods so effected may be eliminated from this Agreement, but this Agreement otherwise shall not be effected.
* Inspection and Claims:
Within 10 days after receipt of each delivery of the goods, Buyer shall examine the goods for any damage, defect or shortage. All claims for any cause whatsoever (whether based in contract, negligence, strict liability, other tort or otherwise) shall be deemed waived unless made in writing and received by Seller within 30 days after Buyer's receipt of the goods with respect to which the claim is made, or, if the claim is for non-delivery of goods, within 45 days after the date upon which the goods were to be delivered. Buyer’s failure give written notice of any such claim within the applicable time period shall be deemed an absolute and unconditional waiver by Buyer of such claim.
* Third Party Claims:
Buyer shall indemnify, hold harmless and defend Seller for, from and against any and all damages, expenses, costs and attorney fees arising from any demand, claim, allegation or lawsuit made or filed by or on behalf of any third party concerning the goods (whether based in contract, negligence, strict liability, other tort or any other cause), including, but not limited to, any demand, claim, allegation or lawsuit concerning the failure of the goods in any respect.
Additionally, you agree that you will not:
Take any action that imposes or may impose (in our sole discretion) an unreasonable or disproportionately large load on our infrastructure;
Copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for Your Information) from the Sites without the prior expressed written permission of D. A. Lyman, LLC and the appropriate third party, as applicable;
OTHER TERMS:
All sales and services are presumed to have taken place in Colorado and those described warranties provided by D. A. Lyman, LLC shall be construed under Colorado law, without regard to conflict of law provisions. Venue for any dispute arising hereunder shall be in that State or Federal Court nearest to the main office of D. A. Lyman, LLC. The parties hereby agree to personal jurisdiction over them in such Courts. D. A. Lyman, LLC shall be entitled to attorneys' fees and costs including pre and post judgment should it have to enforce its right under this transaction. Buyer warrants that it is and shall remain in full compliance with any applicable United States, State and/or local regulations controlling the sale and delivery of goods for export and is and shall remain solely responsible therefore. The terms set forth herein constitute the entire agreement regarding this transaction, except for product and/or service description and pricing, and subject only to our credit agreement (if any) with you, our invoice and our separate order confirmation (if any). In the event any part of these terms is deemed unenforceable by a court having jurisdiction thereover, such unenforceable term(s) shall be modified to make them as enforceable as possible, and the rest of these terms shall not be affected. Any contrary terms offered by the Buyer are not a part of this transaction. Buyer shall defend, indemnify and hold D. A. Lyman, LLC and its agents harmless from any breach by it of these terms or any misuse or abuse by it of any item sold and/or serviced hereby. The goods sold hereunder shall be at the risk of the Buyer upon delivery by D. A. Lyman, LLC to the carrier F.O.B. shipping point. Title to the goods sold hereunder shall remain in Seller until payment in full by Buyer. D. A. Lyman, LLC shall not be responsible for delays caused by manufacturing plants, transportation, strikes, fires, floods, storms, war, insurrections, riot, any governmental regulation, order, act or instruction, or any other circumstances beyond its control, and Buyer hereby waivers any claims relating to same. Upon transmission of catalog number, description, price, product image, or any other product data to D. A. Lyman, LLC sent through email, mail, or phone contact, fax or any other way, the data becomes immediately available to D. A. Lyman, LLC for use in any way, shape or form including publishing in print and on web. All information about products including catalog number, description, price, user manual, and any other product information is the sole property of the manufacturer of the part and provided as public information.
Using D. A. Lyman, LLC While using the Sites, you will not:
Post content or items in an inappropriate category or areas on the Sites;
Violate any laws, third party rights, or our policies such as the Prohibited and Restricted Items policies;
Use the Sites if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our Sites;
Fail to deliver payment for items purchased by you, unless the Seller has materially changed the item's description after you bid, a clear typographical error is made, or you cannot authenticate the Seller's identity;
Fail to deliver items purchased from you, unless the Buyer fails to meet the posted terms, or you cannot authenticate the Buyer's identity;
Manipulate the price of any item or interfere with other user's listings;
Circumvent or manipulate our fee structure, the billing process, or fees owed to D. A. Lyman, LLC;
Post false, inaccurate, misleading, defamatory, or libelous content (including personal information);
Take any action that may undermine the feedback or ratings systems (such as displaying, importing or exporting feedback information off of the Sites or for using it for purposes unrelated to D. A. Lyman, LLC);
Hold D. A. Lyman, LLC responsible for any auction of any item on our website;
Transfer your D. A. Lyman, LLC account (including feedback) and User ID to another party without our consent;
Distribute or post spam, chain letters, or pyramid schemes;
Distribute viruses or any other technologies that may harm D. A. Lyman, LLC, or the interests or property of D. A. Lyman, LLC users;
Copy, modify, or distribute content from the Sites and D. A. Lyman, LLC's copyrights and trademarks; or harvest or otherwise collect information about users, including email addresses, without their consent.
Abusing D. A. Lyman, LLC and the Online Community work together to keep the Sites working properly and the Community safe. Please report problems, offensive content, and policy violations to us.
Without limiting other remedies, D. A. Lyman, LLC may limit, suspend, or terminate our service and user accounts, prohibit access to our website, remove hosted content, and take technical and legal steps to keep users off the Sites if D. A. Lyman, LLC think that they are creating problems, possible legal
liabilities, or acting inconsistently with the letter or spirit of our policies. D. A. Lyman, LLC also reserve the right to cancel unconfirmed accounts.
All submitted information used when signing up for any services with any website provided by D. A. Lyman, LLC will be reviewed by admin of D. A. Lyman, LLC for content verification. Verification may be made by any contact method provided but not limited to Phone, Fax, Email, and Mail. Information may be used for contacting the user account owner at the will of D. A. Lyman, LLC. If any information provided appears to be fake or false any user account may be terminated at any time WITH NOTICE by our admin. A termination notice will be sent via email to the email address given when signing up. If an email address is not provided or appears false the account will be terminated WITH OUT NOTICE by our admin team.
Site Changes and Exclusion:
D. A. Lyman, LLC reserves the right to change some or all of this web site as it desires without prior notice. D. A. Lyman, LLC also may deny anyone access to this site at any time without prior notice.
Glossary of Terms:
- Buyer - The company, partnership, person or entity purchasing the product(s) and/or services from D. A. Lyman, LLC or on D. A. Lyman, LLC owned websites from auction, buy it now, purchase order, phone call, or fax whether D. A. Lyman, LLC was the Seller or not.
- Seller - D. A. Lyman, LLC or any Seller on D. A. Lyman, LLC owned websites from auction, buy it now, purchase order, phone call, or fax whether D. A. Lyman, LLC was the Seller or not that has or will provide product(s) and/or services to a Buyer directly.
- Us - Defined as D. A. Lyman, LLC
- Business Days - Defined as Monday through Friday only. Excluding Saturday, Sunday and observed holidays.
If you have any questions please Contact Us!
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