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	Nov. 08, 2005
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	Nov. 08, 2005
	AUCTION COUNTDOWN BEGINS!

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	Terms of Service
	User Agreement THE FOLLOWING DESCRIBES THE TERMS ON WHICH DEMAAuction.com OFFERS YOU ACCESS TO OUR SERVICES. Welcome to the user agreement (the "Agreement" or "User Agreement") for DEMAAuction.com, an online auction website managed by The Diving Equipment & Marketing Association (“DEMA”). This Agreement describes the terms and conditions applicable to your use of the services available under the domain and sub-domains of www.DEMAAuction.com (the "Site"). Do not use or access our services if you do not agree to be bound by the terms and conditions of this Agreement. You must read, agree with and accept all of the terms and conditions contained in this User Agreement and Privacy Policy, which include those terms and conditions expressly set out below and those incorporated by reference. We strongly recommend that, as you read this User Agreement, you also access and read the information contained in the other pages and websites referred to in this document, as they may contain further terms and conditions that apply to you as a Site user. Please note: underlined words and phrases are links to these pages and websites. By accepting this User Agreement, you also agree that your use of the Site will be governed by the User Agreement and Privacy Policy posted. We may amend this Agreement at any time by posting the amended terms on the Site. Except as stated below, all amended terms shall automatically be effective 30 days after they are initially posted on the Site. In addition, we will notify you in accordance with your Notification Preferences. This Agreement may not be otherwise amended except in a writing signed by you and DEMA. For new users, this Agreement is effective upon acceptance during your registration, and is otherwise effective on November 14, 2005 for all users. 1. Membership Eligibility. Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18). If you are under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our Site. Further, your User ID may not be transferred or sold to another party. If you are registering as a business entity, you represent that you have the authority to bind the entity to this Agreement. 2. Fees and Services. Registering and bidding on items at DEMAAauction.com is free. 3. DEMAAuction.com is a Venue. 3.1 It is important to realize that DEMA is not acting as a traditional "auctioneer." Instead, DEMA has created the Site to enable members of the diving community to donate items to be auctioned to the general public with 100% of the winning bid of each auction item sold through the Site from November 14 to December 16, 2005 to be donated to the American Red Cross to support the organization’s Hurricane Katrina, Hurricane Rita, and Hurricane Wilma relief efforts. DEMA will be involved in each transaction between Donor and Buyer as a clearinghouse for all winning bidders to purchase their item through ONLY. As a result, DEMA has no control over the quality, safety or legality of the items advertised; the truth or accuracy of the listings; the ability of Donors to deliver items; or the ability of Buyers to pay for the items. We cannot ensure that a buyer or Donor will actually complete a transaction. Consequently, we do not transfer legal ownership of items from the Donor to the buyer, and nothing in this agreement shall modify the governing provisions of Ca. Com. Code § 2401(2) and Uniform Com. Code § 2-401(2), under which legal ownership of an item is transferred upon physical delivery of the item to the buyer by the Donor. 3.2 Identity Verification. Because user verification on the Internet is difficult, DEMA cannot and does not confirm each user's purported identity. 3.3 Release. Because we are a venue, in the event that you have a dispute with one or more users, you release DEMA (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, 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." 3.4 Information Control. We do not control the information provided by other users that is made available through our system. You may find other user's information to be offensive, harmful, inaccurate, or deceptive. Please use caution, common sense, and practice safe trading when using the Site. Please note that there are also risks of dealing with underage persons or people acting under false pretense. Additionally, there may also be risks dealing with international trade and foreign nationals. By using this Site, you agree to accept such risks and agree that DEMA is not responsible for the acts or omissions of users of the Site. 4. Bidding and Buying. 4.1 Unless the transaction is prohibited by law or by this Agreement, as a Buyer, you are obligated to complete the transaction with the Donor: A. if you purchase an item through our site; or B. if you are the highest bidder at the end of an auction period. 4.2 By bidding on an item you agree to be bound by the conditions of sale included in the item's description so long as those conditions of sale are not in violation of this Agreement or unlawful. Unless you and the Donor agree otherwise, you will become the item's lawful owner upon physical receipt of the item from the Donor, in accordance with Ca. Com. Code § 2401(2) and Uniform Com. Code § 2-401(2). Bids are not retractable except in exceptional circumstances, such as: when the DONOR materially changes the item's description after you bid; a clear typographical error is made; you cannot authenticate the Donor’s identity; or when the Donor does not confirm your purchase. If you choose to bid on items that are restricted to “Certified” use, you are certifying that you have the legal right to purchase such items. 5. Fraud and Rights of Owner 5.1 Fraud. Without limiting any other remedies, DEMA may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation, or otherwise) have engaged in fraudulent activity in connection with the Site. 5.2 Verified Rights of Owner. Program participants and other rights owners can report listings offering infringing items, and request that such items be removed. Participants and other rights owners may have limited access to some of your personal information. 5.3 Manipulation. Neither you, the bidders, nor Donors may manipulate the price of any item nor may you interfere with other user's listings or transactions. 6. Your Information. 6.1 Definition. "Your Information" is defined as any information you provide to us or other users in the registration, bidding or listing process, in any public message area or through any email feature. You are solely responsible for Your Information, and we act as a passive conduit for your online distribution and publication of Your Information. 6.2 Restricted Activities. Your Information (or any items listed) and your activities on the Site shall not: (a) be false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit or stolen items; (c) infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (d) violate any law, statute, ordinance or regulation (including, but not limited to, those governing export control, consumer protection, unfair competition, antidiscrimination or false advertising); (e) be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (f) be obscene. (g) contain any viruses, Trojan horses, worms, time bombs, “cancelbots,” “easter eggs” or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (h) create liability for us or cause us to lose (in whole or in part) the services of our ISPs or other suppliers; and (i) link directly or indirectly to or include descriptions of goods or services that: (a.a) are prohibited under this Agreement; (b.b) are identical to other items you have up for auction but are priced lower than your item's minimum bid amount; (c.c) are concurrently listed for sale on a web site other than DEMA (this does not prevent linking to or advertising a DEMA item from another web site); or (d.d) you do not have a right to link to or include. Furthermore, you may not list any item on the Site (or consummate any transaction that was initiated using our service) that, by paying to us the Donation fee or the final value fee, could cause us to violate any applicable law, statute, ordinance or regulation, or that violates our current Prohibited, Questionable and Infringing Items. 6.3 License. Solely to enable DEMA to use the information you supply us with, so that we are not violating any rights you might have in that information, you agree to 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 Your Information, in any media now known or not currently known, with respect to Your Information. DEMA will only use Your Information in accordance with our Privacy Policy. 7. Breach. Without limiting other remedies, we may limit your activity, immediately remove your bids or item listings, warn our community of your actions, issue a warning, temporarily suspend, indefinitely suspend or terminate your donation or bidding and refuse to provide our services to you if: (a) you breach this Agreement or the documents it incorporates by reference; (b) we are unable to verify or authenticate any information you provide to us; or (c) we believe that your actions may cause financial loss or legal liability for you, our users or us. 8. Privacy. We do not donate or rent your personal information to third parties for their marketing purposes without your explicit consent and we only use your information as described in the Privacy Policy. We view protection of users' privacy as a very important community principle. We understand clearly that you and your information is one of our most important assets. If you object to your Information being transferred or used in this way please do not use our services. 9. No Warranty. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEB SITE AND SERVICES "AS IS" AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. Some states do not allow the disclaimer of implied warranties, so the foregoing disclaimer may not apply to you. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state. 10. Liability Limit. IN NO EVENT SHALL WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE). OUR LIABILITY, AND THE LIABILITY OF OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO YOU OR ANY THIRD PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE LESSOR OF (A) THE AMOUNT OF FEES YOU PAY TO US IN THE 12 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY, AND (B) $100. Some States do not allow the exclusion or limitation of incidental or consequential damages, so the above limitation or exclusion may not apply to you. 11. Indemnity. You agree to indemnify and hold us and (as applicable) our parent, subsidiaries, affiliates, officers, directors, agents, 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 the documents it incorporates by reference, or your violation of any law or the rights of a third party. 12. Legal Compliance. You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items. 13. No Agency. You and DEMA are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement. 14. Notices. Except as explicitly stated otherwise, any notices shall be given by postal mail to DEMA Attn: Nicole Russell, 3750 Convoy Street Suite 310 San Diego, CA 92111 (in the case of DEMA) or to the email address you provide to DEMA during the registration process (in your case). Notice shall be deemed given 24 hours after email is sent, unless the sending party is notified that the email address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to DEMA during the registration process. In such case, notice shall be deemed given 3 days after the date of mailing. 15. Resolution of Disputes. In the event a dispute arises between you and DEMA, our goal is to provide you with a neutral and cost effective means of resolving the dispute quickly. Accordingly, you and DEMA agree that any claim or controversy at law or equity that arises out of this Agreement or our services ("Claims") shall be resolved in accordance with the Laws of the state of California or as otherwise mutually agreed upon in writing by the parties. Before resorting to this alternative, we strongly encourage you to first contact us directly to seek a resolution and we will consider reasonable requests to resolve the dispute through alternative dispute resolution procedures as an alternative to litigation. In any dispute the prevailing party shall recover all reasonable legal fees incurred in connection with the controversy or claim. The expenses of the witnesses and all other expenses connected with presenting the case shall be borne separately by each party. Other costs and fees shall be borne equally by the parties. 16. Policy Update. Each of these policies may be changed from time to time and are effective immediately after we post the changes on the Site, except for the Privacy Policy for which we will provide you with thirty days prior notice. In addition, when using particular services on the Site, you agree that you are subject to any posted policies or rules applicable to services you use through the Site, which may be posted from time to time. All such posted policies or rules are hereby incorporated into this Agreement. 17. General. This Agreement shall be governed in all respects by the laws of the State of California as such laws are applied to agreements entered into and to be performed entirely within California between California residents. We do not guarantee continuous, uninterrupted or secure access to our services, and operation of the Site may be interfered with by numerous factors outside of our control. If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provisions shall be enforced. You agree that this Agreement and all incorporated agreements may be automatically assigned by DEMA in accordance with Section 16 "Notices", in our sole discretion; Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. This Agreement sets forth the entire understanding and agreement between us with respect to the subject matter hereof. Sections 3.3 (Release), 6.3 (License), 7 (Access and Interference), 12 (Liability Limit), 13 (Indemnity) and 17 (Resolution of Disputes) shall survive any termination or expiration of this Agreement. 18. Disclosures. The services mentioned above are sponsored by DEMA, located at 3750 Convoy Street, Suite 310, San Diego, CA 92111.
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