User Agreement
This Terms of Use Agreement (this “Agreement”), which is a legal agreement between you (“you”) and EquipmentEngine,
LLC (“EqipmentEngine”), shall govern your use of and access to “EquipmentEngine" Web site located at www.EquipmentEngine.com
(the “Web site”) and all services provided by EquipmentEngine as described therein (the “Services”). By checking
the box or clicking the “I Agree” button at the end of the user sign up process, and/or by accessing and/or using
the Web site or Services, you (x) accept this Agreement and agree to be bound by each of its terms, and (y) represent
and warrant to EquipmentEngine that (i) you have the authority to enter into this Agreement, (ii) this Agreement
is binding and enforceable against you, (iii) if you are signing this Agreement on behalf of an entity, you have
authority to accept this Agreement on behalf of the company for which you work (if applicable), and (iv) you have
read and understand EquipmentEngine’s Privacy Policy (the “Privacy Policy”), the terms of which are posted at
the Web site and incorporated herein by reference, and agree to abide by the Privacy Policy. If you do not agree
with any of the terms contained herein, you should not click the “I Agree” button at the end of the user signup
process and immediately cease any and all activities on the Web site and/or use of any Services.
Please read this Agreement carefully. Even if you fail to accept this Agreement as described above, by accessing
the Web site and any pages thereof, you agree to be bound by the terms and conditions below. If you do not agree
to these terms and conditions or anything contained in this Agreement, do not access or otherwise use the Web
site.
CHANGES TO SERVICES, AGREEMENT AND/OR WEB SITE
EquipmentEngine may amend any part of this Agreement at any time, and the amended terms will be effective 10 days
after initial posting at the Web site. In addition, EquipmentEngine may, without prior notice, add, delete or
modify some or all of the Services and/or content available on the Web site at any time in its sole discretion.
Further, EquipmentEngine may discontinue disseminating any portion of information or category of information,
may change or eliminate any transmission method and may change transmission speeds or other signal characteristics.
IF ANY OF THESE RULES OR ANY FUTURE CHANGES ARE UNACCEPTABLE TO YOU, YOU SHOULD IMMEDIATELY DISCONTINUE USE OF
THE SERVICES AND WEB SITE. YOUR CONTINUED USE OF THE SERVICES OR WEB SITE NOW, OR FOLLOWING THE POSTING OF ANY
CHANGES IN THIS AGREEMENT, WILL INDICATE ACCEPTANCE BY YOU OF SUCH RULES, CHANGES AND/OR MODIFICATIONS. You should
review this Agreement periodically to ensure you become aware of changes which are made to this Agreement by EquipmentEngine
from time to time.
SERVICES AND PARTIES
The Services are described within various pages of the Web site. You should review these pages to gain a better
understanding of the Services and the goals behind the Web site. At a general level, EquipmentEngine serves as
an online directory to list business equipment and services for sale. In addition, EquipmentEngine has entered
into various arrangements with third parties to offer other products and services at the Web site, including,
without limitation, financing, shipping, and more.
EquipmentEngine is not a manufacturer, retailer or re-seller with respect to machinery, equipment or any other
products or services listed on the Web site. Rather, EquipmentEngine is merely an online resource for buyers and
sellers of these goods and services to locate one another. EquipmentEngine does not endorse or recommend the products
or services of any particular company or manufacturer. EquipmentEngine is not your agent, nor is EquipmentEngine
an agent for any of the companies which list products and/or services at the Web site. EquipmentEngine’s services
are administrative only. EquipmentEngine, in this regard, is providing nothing more than a listing service where
such products and/or services can be purchased directly from such third party vendors or resellers, and EquipmentEngine
shall not be liable in any way for the condition of any such product, the performance of any such service or any
other action taken by any of these third party vendors. You agree that EquipmentEngine shall not be liable for
any damages or costs of any type arising out of or in any way connected with your purchase and/or use of any machine,
tooling, equipment or other item or service at the Web site.
More specifically, EquipmentEngine provides the Services and the Web site so that sellers may offer assets for
sale and buyers may place offers to purchase these assets directly with the seller. As such, EquipmentEngine is
neither a principal interested in the transactions, nor an agent of buyer or seller. EquipmentEngine does not
have the power to transfer title to any assets offered by sellers at the Web site. Because EquipmentEngine is
not a party to any transaction, EquipmentEngine does not make, and should not be construed as having made, any
representation or warranty of any kind concerning any of the offered assets, including without limitation any
representation or warranty regarding the quality, safety or legality of the offered assets, or the truth or accuracy
of any offerings. Additionally, EquipmentEngine makes no representation or warranty of any kind as to the willingness
or ability of either a buyer or seller to complete a sale. Buyers and sellers are solely responsible for independently
verifying the background and credit-worthiness of those parties with whom they enter into, or with whom they prospectively
will enter into, a transaction, as well as the condition or any description of an asset involved in a prospective
transaction.
Further to your release above, in the event of any controversy or dispute regarding any transaction conducted
through use of the Services or the Web site (a "Dispute"), you hereby release EquipmentEngine, its affiliates
and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners,
successors and assigns (the "Released Parties"), and each of the foregoing, from any and all manner of action,
claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses,
including without limitation court costs and attorneys' fees, which you may have against the Released Parties,
or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a Dispute.
If you are a California resident, you hereby waive your rights under Section 1542 of the California Civil Code,
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."
EquipmentEngine expressly reserves the right to discontinue, suspend or terminate the offering of one or all of
its services at any time.
FEES
Fees charged for the various products and/or services offered at the Web site, including fees for listing machines,
are set forth in various locations throughout the Web site or in a separate document. In consideration for providing
the Services, you agree to pay all such fees which are due and owing on account of the selections you have made
at the Web site or through a EquipmentEngine representative (collectively, the "Fee"). Fees are payable as set
forth in the applicable portion of the Web site, and you hereby agree to pay all costs and expenses incurred by
EquipmentEngine (including attorneys' fees) in collecting past due Fees. In addition, past due Fees shall accrue
interest at the lesser of 15% per annum or the maximum rate allowed by law. By checking the "I Accept" box at
the end of this Agreement or otherwise using any Services, you hereby agree to pay all Fees due and owing to EquipmentEngine
(and, if applicable, authorize EquipmentEngine to charge the credit card you have on file with EquipmentEngine
for all Fees due and owing hereunder). All fees described herein (including, without limitation, the Fees) are
non-refundable.
OTHER THIRD PARTY SERVICES
In addition to the Services described above, you may be able to search for information and additional service
providers in various portions of the Web site. All content and data included in any such section has been provided
to EquipmentEngine by a third party, and EquipmentEngine does not guarantee the accuracy of any listing generated
by your search. Such service is offered by EquipmentEngine for informational purposes only, and EquipmentEngine
shall not be liable to you or any third party on account of any information posted or displayed in connection
with this service.
COPYRIGHT AND TRADEMARK NOTICES
All contents of the Web site are: Copyright © 2010 EquipmentEngine, LLC. All rights reserved. "EquipmentEngine"
is a service mark of EquipmentEngine, LLC. Other product and company names mentioned herein or within the Web
site may be the trademarks or service marks of their respective owners. To this end, you may not, without the
prior, written consent of EquipmentEngine or the applicable copyright holder, modify, publish, transmit, participate
in the transfer or sale of, reproduce, create new works from, distribute, perform, display, or in any way exploit,
any of the content posted at the Web site or otherwise owned by EquipmentEngine. This Agreement shall not be deemed
to transfer from EquipmentEngine or any licensor to you (i) any of EquipmentEngine's intellectual property (including,
without limitation, patents, trademarks, service marks, trade names, copyrights and licenses), technology, software
programs or any related assets owned by EquipmentEngine, or (ii) any rights to use or license any of the foregoing
except as explicitly set forth in this Agreement.
DISCLAIMERS AND LIMITATIONS
EquipmentEngine intends that the information contained in the Web site be accurate and reliable; however, errors
sometimes occur. In addition, changes and improvements to the information provided herein or on the Web site may
be made by EquipmentEngine at any time. THE WEB SITE AND THE INFORMATION, SOFTWARE, PRODUCTS AND SERVICES ASSOCIATED
WITH IT ARE PROVIDED "AS IS, WHERE IS AND AS AVAILABLE." EQUIPMENTENGINE DISCLAIMS ANY WARRANTY OF ANY KIND, WHETHER
EXPRESS OR IMPLIED, AS TO ANY MATTER WHATSOEVER RELATING TO THE WEB SITE AND ANY INFORMATION, SOFTWARE, PRODUCTS
AND SERVICES PROVIDED WITHIN THE WEB SITE, INCLUDING WITHOUT LIMITATION (I) THE IMPLIED WARRANTIES OF MERCHANTABILITY,
FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NONINFRINGEMENT, AND (II) AS TO THE RESULTS THAT MAY BE OBTAINED
BY USE OF THE WEB SITE OR ANY OF EQUIPMENTENGINE'S SERVICES OR PRODUCTS PURCHASED THROUGH THE WEB SITE. USE OF
THE WEB SITE AND/OR EQUIPMENTENGINE'S SERVICES IS AT YOUR OWN RISK. EQUIPMENTENGINE IS NOT LIABLE FOR ANY DIRECT,
INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES OR OTHER INJURY ARISING OUT OF OR IN ANY WAY
CONNECTED WITH THE USE OF THE WEB SITE AND/OR EQUIPMENTENGINE'S SERVICES OR WITH THE DELAY OR INABILITY TO USE
THE WEB SITE, OR FOR ANY INFORMATION, SOFTWARE, PRODUCTS AND SERVICES OBTAINED THROUGH THE WEB SITE, OR OTHERWISE
ARISING OUT OF THE USE OF THE WEB SITE, WHETHER RESULTING IN WHOLE OR IN PART, FROM BREACH OF CONTRACT, TORTIOUS
BEHAVIOR, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, EVEN IF EQUIPMENTENGINE AND/OR ITS SUPPLIERS HAD BEEN ADVISED
OF THE POSSIBILITY OF DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE
EXCLUSION MAY NOT APPLY TO YOU. IN ALL EVENTS, THE AGGREGATE LIABILITY OF EQUIPMENTENGINE FOR ANY REASON AND UPON
ANY CAUSE OF ACTION, WHETHER IN CONTRACT, TORT OR OTHERWISE, SHALL NOT EXCEED THE AMOUNT OF FEES PAID BY YOU TO
EQUIPMENTENGINE VIA THE WEB SITE.
UNAVAILABILITY OF SERVICE OR WEB SITE
You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet,
the Web site and/or the Services. While it is EquipmentEngine's objective to make the Web site accessible 24 hours
per day, 7 days per week, the Web site may be unavailable from time to time for any reason including, without
limitation, routine maintenance. You understand and acknowledge that due to circumstances both within and outside
of the control of EquipmentEngine, access to the Web site and/or Services may be interrupted, suspended or terminated
from time to time. YOU AGREE THAT EQUIPMENTENGINE SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION,
SUSPENSION OR TERMINATION OF THE WEB SITE AND/OR SERVICE AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO
ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEB SITE AND/OR SERVICE.
INDEMNITY
As a condition of use of the Web site and/or the Services, you agree to indemnify EquipmentEngine from and against
any and all liabilities, expenses (including attorneys' fees) and damages arising out of claims resulting from
your use of the Web site or any of the Services, including without limitation any claims alleging facts that if
true would constitute a breach by you of this Agreement.
LINKS TO THIRD PARTIES
The Web site may contain links to web sites maintained by third parties. Such links are provided for your convenience
and reference only. EquipmentEngine does not operate or control in any respect any information, software, products
or services available on such web sites. EquipmentEngine's inclusion of a link to a web site does not imply any
endorsement of those services or the web site, its contents or its sponsoring organization.
ERRORS AND DELAYS
EquipmentEngine is not responsible for any errors or delays in responding to an inquiry or RFQ or otherwise processing
information submitted by you at the Web site, including, without limitation, those caused by (i) an incorrect
e-mail address or telephone number provided by you, (ii) the failure of a third party to timely respond to any
such inquiry or RFQ, or (iii) technical problems.
DISPUTE RESOLUTION
Any claim or controversy arising out of or relating to the use of the Web site, to the services provided by EquipmentEngine,
or to any acts or omissions for which you may contend EquipmentEngine is liable, including but not limited to
any claim or controversy as to arbitrability ("Dispute"), shall be finally, and exclusively, settled by arbitration.
The arbitration shall be held before one arbitrator under the commercial arbitration rules of JAMS in force at
that time. The arbitration shall be venued in New Hampshire. The arbitrator shall be selected pursuant to the
JAMS rules. Should no JAMS rule regarding the selection of an arbitrator be in effect, you shall select an arbitrator
from a panel of arbitrators acceptable to EquipmentEngine. The costs of arbitration shall be paid by the non-prevailing
party.
Any judgment upon the award rendered by the arbitrators may be entered in any court of competent jurisdiction
in New Hampshire. The arbitrator shall not have the power to award damages in connection with any Dispute in excess
of actual compensatory damages and shall not multiply actual damages or award consequential, punitive or exemplary
damages, and each party irrevocably waives any claim thereto. The agreement to arbitrate shall not be construed
as an agreement to the joinder or consolidation of an arbitration under this Agreement with an arbitration of
disputes or claims of any non-party, regardless of the nature of the issues or disputes involved.
*THIS AGREEMENT PROVIDES THAT ALL DISPUTES BETWEEN YOU AND EQUIPMENTENGINE WILL BE RESOLVED BY BINDING ARBITRATION.
YOU THUS GIVE UP YOUR RIGHT TO GO TO COURT TO ASSERT OR DEFEND YOUR RIGHTS. YOU ALSO GIVE UP YOUR RIGHT TO PARTICIPATE
IN OR BRING CLASS ACTIONS. YOUR RIGHTS WILL BE DETERMINED BY NEUTRAL ARBITRATORS AND NOT A JUDGE OR JURY.* *You
are entitled to a fair hearing, but the arbitration procedures are simpler and more limited than rules applicable
in court. Arbitrator decisions are enforceable and are subject to very limited review by a court. By using the
Services or accessing the Web site, you consent to these restrictions.*
Should a Dispute arise and should the arbitration provisions herein become inapplicable or unenforceable, or in
any instance of any lawsuit between you and EquipmentEngine, the parties agree that jurisdiction over and venue
of any suit shall be exclusively in the state and federal courts sitting in New Hampshire. If either party employs
attorneys to enforce any right in connection with any Dispute or lawsuit the prevailing party shall be entitled
to recover reasonable attorneys' fees from the non-prevailing party.
TERMINATION
You agree that EquipmentEngine may immediately terminate your account and access to the Services. Cause for such
termination shall include, but not be limited to, (a) breaches or violations of any agreements with EquipmentEngine
or guidelines posted by EquipmentEngine, (b) requests by law enforcement or other government agencies, (c) a request
by you (self-initiated account deletions), (d) discontinuance or material modification to the Services (or any
part thereof), (e) unexpected technical or security issues or problems, (f) extended periods of inactivity, (g)
you have engaged in fraudulent or illegal activities, and/or (h) nonpayment of any fees owed by you in connection
with the Services. Termination of your EquipmentEngine account includes (x) removal of access to all offerings
within the Services, and (y) barring further use of the Services. Further, you agree that all terminations shall
be made in EquipmentEngine's sole discretion and that EquipmentEngine shall not be liable to you or any third-party
for any termination of your account or access to the Services.
MISCELLANEOUS
This Agreement, including the Privacy Policy, constitutes the entire agreement between you and EquipmentEngine
and it supersedes all prior or contemporaneous communications, promises and proposals, whether oral, written or
electronic, between you and EquipmentEngine with respect to the Web site and information, software, products and
services associated with it. EquipmentEngine and you are intended to be independent contractors, and nothing in
this Agreement shall be deemed to establish any relationship of partnership, joint venture, employment, franchise
or agency between EquipmentEngine and you. This Agreement shall be subject to and construed in accordance with
the laws of the State of New Hampshire, excluding its conflict of laws principles. If any part of this Agreement
is determined to be invalid or unenforceable pursuant to applicable law including, but not limited to, the warranty
disclaimers and liability limitations set forth above, then the invalid or unenforceable provision will be deemed
superseded by a valid enforceable provision that most closely matches the intent of the original provision, and
the remainder of the Agreement shall continue in effect. A printed version of this Agreement and of any notice
given in electronic form shall be admissible in judicial or administrative proceedings based upon or relating
to this Agreement to the same extent and subject to the same conditions as other business documents and records
originally generated and maintained in printed form. All rights not expressly granted herein are reserved.
EquipmentEngine's contact information, should you need to contact EquipmentEngine for any reason, is:
EquipmentEngine, LLC
1465 Woodbury Avenue #391
Portsmouth, NH 03801
Customer Service: 888-501-6835
E-mail: support@EquipmentEngine.com