WEBSITE General Terms of Service
THIS IS A LEGAL AGREEMENT BETWEEN THE BUSINESS ENTITY FOR WHICH YOU ARE AUTHORIZED TO ACT ("Company") AND WEBSITE AND/OR ITS SUBSIDIARIES ("WEBSITE") AND THE INDIVIDUAL THAT ACCEPTS THIS AGREEMENT WARRANTS THAT THEY ARE AUTHORIZD TO ACT ON BEHALF OF THE COMPANY. BY USING THE WEBSITE SERVICE (the "Service") FOR THE PURCHASE AND/OR SALE OF USED INDUSTRIAL AND TECHNOLOGY EQUIPMENT (the "Equipment"), COMPANY IS AGREEING TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. THIS AGREEMENT CONSISTS OF THESE GENERAL TERMS OF SERVICE AND THE WEBSITE BUYER TERMS OF SERVICE AND/OR WEBSITE SELLER TERMS OF SERVICE, AS APPLICABLE DEPENDING ON WHETHER COMPANY IS A BUYER AND/OR A SELLER, EACH OF WHICH ARE INCORPORATED INTO THIS AGREEMENT.
1. Membership. The Service is available only to business entities whose authorized representative completes the registration form. Upon acceptance of the completed registration form by WEBSITE, the entity shall be considered a member.
2. Modifications to Terms. WEBSITE may change this Agreement from time to time. The amended Agreement will become effective upon posting. This Agreement may not otherwise be amended, except in writing signed by both parties. Company's continued use of the Service after the amended Agreement has been posted constitutes Company's agreement to be bound by the amended Agreement.
3. Nature of Services Provided.
A. WEBSITE provides a forum for matching members seeking to sell Equipment ("Sellers") and members seeking to buy Equipment ("Buyers"). All decisions to buy and sell Equipment are made by Company, or by its duly authorized agents or employees, and Company accepts full responsibility for such decisions.
B. WEBSITE has no control over the quality, compatibility, safety or legality of Equipment offered for sale, or the terms and conditions of any transaction between Buyers and Sellers. Company agrees: (a) to release WEBSITE (and its officers, directors, stockholders employees and agents) from any and all claims, demands and damages, of any type and nature, known or unknown, arising out of or in any way connected with use of the Service (including disputes with other members); and (b) to attempt to settle any disputes with other members directly. In the event Company is a resident of California, Company waives California Civil Code §1542, 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."
C. WEBSITE may receive fees from both Buyer and Seller, but is not acting as agent for either party. WEBSITE may receive compensation in the form of the spread between an acceptable sales price by a Seller and the amount offered by a Buyer. WEBSITE may pay remuneration to or receive remuneration from third parties who assist in facilitating transactions. Such remuneration, if any, may take the form of financial credits, monetary payments or reciprocal business.
4. Company Account, Password, and Security. WEBSITE assigns each member a password ***** access the Service. Company is responsible for maintaining the confidentiality of each password ***** to it. Company is responsible for all activities occurring under Company's password ***** will indemnify and hold harmless WEBSITE from and against any and all claims, damages and liabilities arising as a result of the use of Company's password. Company agrees to immediately notify WEBSITE of any unauthorized use of the Service or Company's password.
5. Links. WEBSITE may provide links to other Web sites or resources. Company agrees that WEBSITE is not responsible for such Web sites or resources, does not endorse and is not responsible or liable for any content, advertising, products, or other materials on or available from such sites or resources.
6. Company Conduct.
A. No Illegal or Deceptive Acts. Company agrees: (1) to abide by all applicable laws and regulations; (2) not to impersonate any person or entity or misrepresent Company's affiliation with a person or entity; (3) to comply with all laws regarding the transmission of technical data (including encryption data) exported from the United States through the Service; and (4) not to use the Service to harvest information, including without limitation, financial information, about other members.
B. Company agrees to fully comply with all applicable export control laws, regulations, rules, and orders of the United States and all other applicable jurisdictions, and will not export, re-export, release, or transfer (collectively "export"), directly or indirectly, any Equipment, or enter into any transactions, for any proscribed end-use, or to or with any proscribed country, entity, or person (wherever located), including but not limited to those entities and persons listed on the U.S. Government's Denied Persons List, Unverified List, Entity List, Debarred Parties List or Specially Designated Nationals List, without first obtaining at its own expense written authorization from the U.S. Government. WEBSITE will have the right to cancel any sale at any time in the event it determines, in its sole discretion, that the sale does or may violate applicable U.S. export control or similar laws.
C. System Integrity. Company agrees not to: (1) upload or distribute any files containing viruses, corrupted files or similar software or programs that may damage the operation of another's computer; (2) interfere with or disrupt networks connected to the Service; (3) use any device, software or routine to interfere with the proper functioning of the Service; or (4) impose an unreasonable or disproportionately large load on WEBSITE's infrastructure. COMPANY shall keep all information such as but not limited to drawings, technical specifications, cleaning procedures, sales agreements, internal policies which are either marked as "CONFIDENTIAL" or verbally disclosed as confidential in confidence and will not, without WEBSITE's prior written consent, disclose any information to any person or entity, except those officers, employees, or agents of COMPANY who directly require the information. Each officer, employee, or agent to whom information is to be disclosed shall be advised by COMPANY of the terms of this AGREEMENT and shall be bound by the confidentiality and non-use obligations herein. COMPANY shall take all reasonable precautions to prevent information from being disclosed to any unauthorized person or entity. COMPANY understands and agrees that any use or disclosure of information in violation of this AGREEMENT will cause WEBSITE or owner of the information irreparable harm leaving it without an adequate legal remedy and shall therefore entitle WEBSITE or owner, among all other remedies, to injunctive relief from any court having jurisdiction.
D. Copyright Infringement. In the event that Company posts or makes accessible communications or other materials that infringe the copyrights of a third party, WEBSITE will terminate Company's access to the Service in accordance with WEBSITE's copyright infringement policy pursuant to the Digital Millennium Copyright Act WEBSITE Copyright Policy. WEBSITE maintains a special email address for notification of claimed infringement. All correspondence should be addressed to WEBSITE's "Designated Agent to Receive Notification of Claimed Infringement" at *****@******.*** or at WEBSITE, ********** Canton, MA 02021. Members may contact WEBSITE with complaints regarding allegedly infringing posted material and WEBSITE will investigate those complaints. If posted material is believed by WEBSITE to violate any applicable law, WEBSITE will remove or disable access to such material and will notify the posting member that the material has been blocked or removed.
Company acknowledges that all content presented on the Service ("Content") is protected by copyright, trademark, and other intellectual property rights or laws. Company may not copy, reproduce, distribute, or create derivative works of the Content without the written consent of WEBSITE. WEBSITE owns all Content and data maintained on the Service with unlimited rights to use the Content or data in any way it sees fit.
E. Non Circumvention. Company will not buy any Equipment, parts or other materials that was first made known to Company by means of the Service. Company will not sell any Equipment, parts, other materials or other items that was seen as part of an inspection to any prospective buyer that was introduced by WEBSITE without payment of all fees, commissions or other charges that would be payable to WEBSITE had the transaction been completed through WEBSITE.
F. No Cheating. Company will not engage in bid manipulation, use an alias or decoy, or place false bids. Company agrees to conduct themselves such that all transactions are transparent and are market-based.
7. DISCLAIMER OF WARRANTIES. COMPANY EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT ITS SOLE RISK. THE SERVICE IS PROVIDED ON AN "AS IS", "AS AVAILABLE" BASIS. WEBSITE EXPRESSLY DISCLAIMS ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT, AS WELL AS ALL WARRANTIES ARISING BY USAGE OF TRADE, COURSE OF DEALING OR COURSE OF PERFORMANCE. WEBSITE MAKES NO WARRANTY THAT THE SERVICE WILL MEET COMPANY'S REQUIREMENTS, OR THAT THE SERVICE WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR-FREE; NOR DOES WEBSITE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICE OR AS TO THE ACCURACY OR RELIABILITY OF ANY CONTENT OR INFORMATION OBTAINED THROUGH THE SERVICE OR THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. COMPANY UNDERSTANDS AND AGREES THAT ANY MATERIAL OR DATA DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE SERVICE IS DONE AT COMPANY'S RISK AND COMPANY WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO COMPANY'S SYSTEMS OR LOSS OF DATA RESULTING FROM THE DOWNLOAD OR USE OF SUCH MATERIAL OR DATA.
WEBSITE MAKES NO WARRANTY, AND HEREBY DISCLAIMS ALL WARRANTIES, REGARDING ANY EQUIPMENT, PRODUCTS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO BY MEANS OF OR THROUGH THE SERVICE.
Some jurisdictions do not allow the exclusion of certain warranties, so some of the above exclusions may not apply.
8. LIMITATION OF LIABILITY. Company agrees that neither WEBSITE, nor any officer, affiliate, director, shareholder, agent or employee of WEBSITE will be liable to Company or any third party for any direct, indirect, incidental, special, consequential or punitive damages including, but not limited to, loss of profits, loss of earnings, loss of business opportunities, damages, expenses, or costs ("Losses") resulting directly or indirectly from, Company's use of or inability to use the Service, including without limitation Losses resulting from: (1) mistakes, omissions, interruptions, errors, defects, delays in operation, or any failure of the Service; (2) termination of Company's account pursuant to the terms of this Agreement; (3) disclosure of Company's identity; (4) any allegation, claim, suit or other proceeding based on a contention that use of the Service infringes the copyright, patent, trademark, trade secret or other intellectual property or contractual right of any third party; (5) the failure, or alleged failure, of any Equipment purchased or transferred pursuant to or by use of the Service, or failure of Equipment to perform or conform to any specifications or terms, whether published on the Service or elsewhere; (6) the failure of any Seller to deliver Equipment, failure of any Buyer to pay, any delay in shipment or payment, any breach or alleged breach of any warranty, covenant or other term, express or implied, relating to any transaction; (7) acts or omissions of a third party's performance engaged by Company to perform services, including without limitation removal, shipping and loading; or (8) any delay or failure of WEBSITE to perform due to government restriction, strikes, war, any natural disaster or any other condition beyond WEBSITE's control. If, notwithstanding the foregoing exclusions and limitations, it is determined that WEBSITE or its officers, directors, stockholders, agents, subsidiaries or employees for any liabilities under the Agreement, WEBSITE’s aggregate liability will in any circumstances be limited to the amount of fees or commissions collected by WEBSITE from Company with respect to the transaction(s) to which the dispute pertains.
9. Indemnification. Company agrees to indemnify, defend and hold harmless WEBSITE, its parent(s), subsidiaries, affiliates, directors, officers, shareholders and employees, from any claim or demand, including attorneys' fees, due to or arising out of Company's use of the Service, Company's violation of this Agreement, the infringement, misappropriation or other violation by Company or any other party using Company's password, of any right of any party, Company's possession, purchase, use or transfer of Equipment (including, without limitation, personal injury or property damage related thereto), failure to consummate a sale, the breach of any of Company's warranties, any product or item processed or manufactured with or by Equipment, or any violation of any terms or conditions.
10. Termination and Effect. WEBSITE may modify or terminate access to the Service, with or without cause, at any time without liability to Company or any third party. Termination shall be accompanied by a written or electronic notice to the other party. Should Company object to any of the terms or conditions of this Agreement or any subsequent modification, or become dissatisfied with the Service, Company's sole recourse is to terminate use of the Service. Upon termination, Company's right to use the Service immediately ceases and Company acknowledges and agrees that WEBSITE may immediately delete the files in Company's account and bar further access to such files or the Service. WEBSITE may terminate Company's password ***** use of the Service if Company fails to use the Service at least once during any three (3) month period.
Upon termination, Company will: (1) pay all outstanding fees due to WEBSITE within thirty (30) days of termination; (2) perform its obligations under all outstanding bids, sales, purchases or services commissioned; and (3) not disclose any information WEBSITE has designated as confidential and 4) continue to be obligated on the provisions of this agreement as it relates to transactions conducted via the Service.
11. Notices. All notices shall be in writing and may be delivered via email to *****@******.*** for notices to WEBSITE, or to the email address specified by Company for notices to Company, or to such other email address as a party may specify. Alternatively, notices may be sent by certified mail, postage prepaid to WEBSITE, ********** . WEBSITE may also broadcast notices or messages on the WEBSITE web site, such broadcast shall constitute notice to Company.
12. Arbitration. Any claim or controversy arising out of or relating to this Agreement, or the breach hereof, shall be resolved by final and binding arbitration to be conducted in Boston, Massachusetts, by one (1) arbitrator in accordance with and subject to the Commercial Arbitration Rules of the American Arbitration Association (the "AAA") then in effect. The arbitrators shall have no power or authority to add to or detract from the agreements of the parties or to award punitive, exemplary, consequential, special, indirect or incidental damages except in the case where the Company violates Section 6 of this Agreement. The authority of the arbitrators to award damages in any event is and shall be limited in the aggregate to the amount specified in Section 8 of this Agreement, even if the limited warranty or limitation of liability provisions set forth in this Agreement shall for any reason whatsoever be held unenforceable or inapplicable except in the case where the Company violates Section 6 of this Agreement then no such limitation will apply Judgment upon the award rendered in any arbitration may be entered and enforced in any court of competent jurisdiction. Notwithstanding the foregoing, the parties reserve the right to obtain injunctive or provisional relief to compel arbitration, enforce an arbitration award, and prevent disclosure of its trade secrets or violation of its intellectual property.
13. General. In the event that any provision of this Agreement is determined to be invalid, unenforceable or void, the parties agree to allow a court or arbitrator to replace such provision with a valid provision, which is as similar as possible to the provision replaced. WEBSITE's failure to act with respect to a breach shall not constitute a waiver of its right to act with respect to subsequent or similar breaches. This Agreement shall be governed by and construed in accordance with the laws of the Commonwealth of Massachusetts, without reference to provisions governing choice of law. Company hereby consents to exclusive and personal jurisdiction in the state and federal courts located in Suffolk County, Massachusetts. This Agreement (including the WEBSITE Buyer Terms of Service and/or the WEBSITE Seller Terms of Service, as applicable) and any modifications hereto made in accordance with Section 2 of this Agreement constitute the entire agreement between the parties as to the subject matter hereof. Nothing contained herein shall be deemed to constitute either party as the agent or representative of the other party, or both parties as joint venturers, franchisers or franchisees, or partners for any purpose.
WEBSITE, Seller’s Terms of Service
THESE SELLER’S TERMS OF SERVICE ("Seller’s Terms") ARE PART OF AND INCORPORATED INTO THE WEBSITE, INC. GENERAL TERMS OF SERVICE (“General Terms"), WHICH IS A LEGAL AGREEMENT BETWEEN THE BUSINESS ENTITY FOR WHICH YOU ARE AUTHORIZED TO ACT (“Company") AND WEBSITE, INC. (“WEBSITE"). BY USING THE WEBSITE SERVICE (the “Service") FOR THE SALE OF USED INDUSTRIAL AND TECHNOLOGY EQUIPMENT (the "Equipment"), COMPANY IS AGREEING TO ALL OF THE TERMS AND CONDITIONS OF THESE SELLER’S TERMS AND THE GENERAL TERMS (together, the “Agreement").
All capitalized terms used and not defined in these Seller’s Terms will have the meanings given to them in the General Terms.
By submitting a listing, Company is extending a firm, irrevocable (except as otherwise provided herein) offer to sell the listed Equipment at the price listed (or the highest bid price received at an auction sale), provided that the specified minimum quantity (if any) and reserve price, if applicable, are met.
The sales period ("Sales Period") for a listing for non-exclusive sellers is six months from the date that the listing becomes active on the marketplace.The listing period for exclusive sellers is reflected in their listing contract. Sellers will be notified at least 30 days prior to the end date of their listings and will have the opportunity to relist. Notwithstanding the foregoing, the Sales Period will end: (i) for an auction sale, when the date established for the auction has passed; or (ii) for a bid/ask sale, when Company has either accepted an offer or the Equipment has been removed from the Service by WEBSITE or at Company's request. The Equipment may be removed from the Service only if Company: (i) accepts a bona fide offer to buy the Equipment from an individual or entity who first learned of the Equipment from a source outside the Service; and (ii) notifies WEBSITE in writing (via email or confirmed facsimile) within four (4) hours of accepting the offer. Upon receipt of the notice, WEBSITE will delete the Equipment listing. In the event that Company fails to notify WEBSITE of the removal and WEBSITE receives a reasonable offer for that listing, Company shall pay WEBSITE an amount equal to the seller fee applied against the current asking price on each canceled item. Additionally, if the Company elects to not complete a sale that was previously agreed to, and this decision was made without the buyer's full consent, then the Company is obligated to pay WEBSITE all of the fees it would have earned from this transaction.
Company shall confirm and ensure the accuracy of all information provided by Company with regard to the Equipment. WEBSITE reserves the right to reject any listing or to request modifications to the listing to conform to the requirements of the Service. Unless otherwise agreed, Company will be responsible for providing its terms of sale to the buyer, and ensuring that the buyer accepts Company's terms of sale prior to completing the transaction. Company's Representations/Warranties: Company represents and warrants that: (i) all listing information is complete and accurate; (ii) Company has all right, title and interest in, or the exclusive right to sell, the Equipment; (iii) the Equipment is free from any lien or encumbrance; (iv) the Equipment and listing information does not infringe any third party intellectual property right or violate any law or regulation.
Company authorizes WEBSITE to collect payment on its behalf and to deduct WEBSITE's non-refundable fees based on the fee schedule in effect at the time of sale. Company is solely responsible for the collection and payment of all taxes related to the Equipment sale.
To ensure the successful completion of each sales transaction for both Buyers and Sellers, WEBSITE will act as an intermediary holder of funds until the transaction between Buyer and Seller has been properly completed. Upon receipt of funds from Buyer, WEBSITE will inform the Seller that the Buyer funds have been received, and will instruct the Seller to release the equipment to the Buyer. Once Buyer’s acceptance of the equipment has been received, then WEBSITE will promptly release the funds for the purchased item.
In the event that the buyer does not fulfill its obligations with respect to a bid, Company may elect, within forty-eight (48) hours, to request that WEBSITE: (i) contact the next highest bidder; or (ii) assign a new lot number to the Equipment and begin a new Sales Period; or (iii) withdraw the listing. If Company requests that WEBSITE contact the next highest bidder, the Equipment will be offered at the amount of that bidder's bid. In the event the next highest bidder rejects the Equipment, Company may elect within forty-eight (48) hours to have WEBSITE contact subsequent highest bidder(s) in order of bid amount or, in each instance, proceed in accordance with (ii) or (iii) above.
COMPANY WILL BE SOLELY RESPONSIBLE FOR, AND WILL PROVIDE TO THE BUYER, ALL TERMS AND CONDITIONS OF SALE WITH REGARD TO EQUIPMENT INCLUDING, BUT NOT LIMITED TO, WARRANTY TERMS (IF ANY), SHIPMENT, LOCATION, AVAILABILITY, AND DISCLAIMERS. COMPANY AGREES THAT ALL TERMS AND CONDITIONS GOVERNING ANY TRANSACTION ARE EXCLUSIVELY BETWEEN MEMBERS ACTING AS BUYERS AND SELLERS. COMPANY HEREBY ACKNOWLEDGES THAT WEBSITE AND ITS OFFICERS, DIRECTORS, STOCKHOLDERS, AGENTS, SUBSIDIARIES AND EMPLOYEES ASSUME NO LIABILITY WITH RESPECT TO THE QUALITY OR QUANTITY OF EQUIPMENT SOLD OR OFFERED FOR SALE OR FOR ANY LOSS OR DAMAGE TO ANY EQUIPMENT DURING SHIPMENT. WEBSITE WILL NOT BE RESPONSIBLE FOR ANY BREACH OF THE TERMS OF ANY TRANSACTION. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, COMPANY HEREBY WAIVES, RELEASES AND DISCHARGES WEBSITE (AND ITS OFFICERS, DIRECTORS, STOCKHOLDERS, AGENTS, SUBSIDIARIES AND EMPLOYEES) FROM ANY CLAIMS, LOSSES, DAMAGES AND EXPENSES, WHETHER DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED TO ANY TRANSACTION. In the event Company is a resident of California, Company waives California Civil Code §1542 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."
Company agrees to defend, indemnify, and hold WEBSITE harmless from and against any damages, liabilities, costs and expenses (including attorneys' fees) arising out of or resulting from use of the Services by Company, its employees, agents, customers or independent contractors, or in any way connected with Company's possession, sale, use or transfer of Equipment (including, without limitation, personal injury or property damage related thereto), the failure of Equipment while in a buyer's possession, failure to consummate a sale, the breach of any of Company’s warranties hereunder, any product or item processed or manufactured with or by Equipment, or any violation of any terms or conditions of these Seller’s Terms.