EquipNet, Inc. General Terms of Service
THIS IS A LEGAL AGREEMENT BETWEEN THE BUSINESS ENTITY FOR WHICH YOU ARE AUTHORIZED TO ACT ("Company") AND EQUIPNET, INC. AND/OR ITS SUBSIDIARIES ("EquipNet") AND THE INDIVIDUAL THAT ACCEPTS THIS AGREEMENT WARRANTS THAT THEY ARE AUTHORIZD TO ACT ON BEHALF OF THE COMPANY. BY USING THE EQUIPNET 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 EQUIPNET BUYER TERMS OF SERVICE AND/OR EQUIPNET 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.
The Service is available only to business entities whose authorized representative completes the registration form. Upon acceptance of the completed registration form by EquipNet, the entity shall be considered a member.
2. Modifications to Terms.
EquipNet 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. EquipNet 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. EquipNet 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 EquipNet (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. EquipNet may receive fees from both Buyer and Seller, but is not acting as agent for either party. EquipNet may receive compensation in the form of the spread between an acceptable sales price by a Seller and the amount offered by a Buyer. EquipNet 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.
EquipNet assigns each member a password to access the Service. Company is responsible for maintaining the confidentiality of each password assigned to it. Company is responsible for all activities occurring under Company's password and will indemnify and hold harmless EquipNet 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 EquipNet of any unauthorized use of the Service or Company's password.
EquipNet may provide links to other Web sites or resources. Company agrees that EquipNet 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. EquipNet 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 EquipNet'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 EQUIPNET'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 EQUIPNET or owner of the information irreparable harm leaving it without an adequate legal remedy and shall therefore entitle EQUIPNET 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, EquipNet will terminate Company's access to the Service in accordance with EquipNet's copyright infringement policy pursuant to the Digital Millennium Copyright Act EquipNet Copyright Policy. EquipNet maintains a special email address for notification of claimed infringement. All correspondence should be addressed to EquipNet's "Designated Agent to Receive Notification of Claimed Infringement" at firstname.lastname@example.org or at EquipNet, Inc., 5 Dan Road, Canton, MA 02021. Members may contact EquipNet with complaints regarding allegedly infringing posted material and EquipNet will investigate those complaints. If posted material is believed by EquipNet to violate any applicable law, EquipNet 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 EquipNet. EquipNet 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 EquipNet without payment of all fees, commissions or other charges that would be payable to EquipNet had the transaction been completed through EquipNet.
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. EQUIPNET 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. EQUIPNET 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 EQUIPNET 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.
EQUIPNET 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 EquipNet, nor any officer, affiliate, director, shareholder, agent or employee of EquipNet 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 EquipNet to perform due to government restriction, strikes, war, any natural disaster or any other condition beyond EquipNet's control. If, notwithstanding the foregoing exclusions and limitations, it is determined that EquipNet or its officers, directors, stockholders, agents, subsidiaries or employees for any liabilities under the Agreement, EquipNet’s aggregate liability will in any circumstances be limited to the amount of fees or commissions collected by EquipNet from Company with respect to the transaction(s) to which the dispute pertains.
Company agrees to indemnify, defend and hold harmless EquipNet, 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.
EquipNet 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 EquipNet may immediately delete the files in Company's account and bar further access to such files or the Service. EquipNet may terminate Company's password or 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 EquipNet 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 EquipNet 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.
All notices shall be in writing and may be delivered via email to email@example.com for notices to EquipNet, 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 EquipNet, Inc., 5 Dan Road, Canton, MA 02021. EquipNet may also broadcast notices or messages on the EquipNet web site, such broadcast shall constitute notice to Company.
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.
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. EquipNet'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 EquipNet Buyer Terms of Service and/or the EquipNet 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.
5 Dan Road
Canton, MA 02021