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Terms & Conditions

TERMS AND CONDITIONS
HEAVY EQUIPMENT SELLER

 

Last Updated: December 13, 2017

 

THESE TERMS are an Agreement between GC Heavy Equipment, LLC, d/b/a Heavy Equipment Seller, a Limited Liability Company formed under the laws of the State of Texas (“Heavy Equipment Seller”) and each user of www.HeavyEquipmentSeller.com (the “HES Platform”) who lists an item for sale on the HES Platform (a “Seller”), and between Heavy Equipment Seller and each user of the HES Platform who purchases an item that is listed for sale (a “Buyer”). All Sellers and Buyers are required to review and be bound by these Terms in order to participate on the Platform. IF YOU DISAGREE WITH ANY PORTION OF THESE TERMS, YOU CANNOT PARTICIPATE AS A SELLER OR BUYER. PLEASE CAREFULLY REVIEW THESE TERMS BECAUSE THEY IMPACT YOUR RIGHTS, RELIEF, AND LIABILITY.

  1. Scope of Heavy Equipment Seller Services.
    1. The HES Platform is an online marketplace that enables registered users (“Members”) to list and purchase equipment, machinery, and other various products (collectively, “Products”). Members are divided into two categories: Sellers and Buyers. Heavy Equipment Seller allows Sellers to list item for sale on the HES Platform (a “Listing”), allows Buyers to search Listings on the Platform, and allows Members to communicate and transact directly (collectively, Heavy Equipment Seller’s “Services”).
    2. AS THE PROVIDER OF THE HES PLATFORM,HEAVY EQUIPMENT SELLER DOES NOT OWN, CREATE, SELL, RESELL, PROVIDE, CONTROL, MANAGE, OFFER, DELIVER, OR SUPPLY ANY LISTINGS OR PRODUCTS. SELLERS ALONE ARE RESPONSIBLE FOR THEIR LISTINGS AND PRODUCTS.WHEN MEMBERS MAKE A SALE OR PURCHASE, THEY ARE ENTERING INTO A CONTRACT DIRECTLY WITH EACH OTHER. HEAVY EQUIPMENT SELLER IS NOT AND DOES NOT BECOME A PARTY TO OR A PARTICIPANT IN ANY CONTRACTUAL RELATIONSHIP BETWEEN MEMBERS. HEAVY EQUIPMENT SELLER IS NOT ACTING AS AN AGENT IN ANY CAPACITY FOR ANY MEMBER.
    3. While Heavy Equipment Seller may, in limited circumstances described in these Terms, help facilitate the resolution of disputes, Heavy Equipment Seller has no control over and does not guarantee (i) the existence, quality, safety, suitability, or legality of any Listings or Products; (ii) the truth or accuracy of any Listing descriptions, Ratings, Reviews, or other Member Content (as defined below); or (iii) the performance or conduct of any Member or third party. Heavy Equipment Seller does not endorse any Member, Listing, or Product. You should always exercise due diligence and care when deciding whether to purchase a Product, post a Listing, or communicate and interact with other Members, whether online or in person. Images of the Products are intended only to indicate a photographic representation at the time the photograph was taken, and are therefore not an endorsement by Heavy Equipment Seller of any Seller, Listing, or Product.
    4. If you choose to use the HES Platform, your relationship with Heavy Equipment Seller is limited to being an independent, third-party Member, and not an employee, agent, joint venture, or partner of Heavy Equipment Seller for any reason, and you act exclusively on your own behalf and for your own benefit, and not on behalf, or for the benefit, of Heavy Equipment Seller.
    5. The HES Platform may contain links to third-party websites or resources (“Third-Party Services”). Such Third-Party Services may be subject to different terms and conditions and privacy practices. Heavy Equipment Seller is not responsible or liable for the availability or accuracy of such Third-Party Services, or the content, products, or services available from such Third-Party Services. Links to such Third-Party Services are not an endorsement by Heavy Equipment Seller of such Third-Party Services.
    6. Due to the nature of the Internet, Heavy Equipment Seller cannot guarantee the continuous and uninterrupted availability and accessibility of the HES Platform. Heavy Equipment Seller may restrict the availability of the HES Platform or certain areas or features thereof, if this is necessary in view of capacity limits, the security or integrity of our servers, or to carry out maintenance measures that ensure the proper or improved functioning of the HES Platform. Heavy Equipment Seller may improve, enhance and modify the HES Platform and introduce new Services from time to time.

     

  2. Eligibility; Using the HES Platform.
    1. You must be at least 18 years old and able to enter into legally binding contracts to access and use the HES Platform. By accessing or using the HES Platform, you represent and warrant that you are 18 or older and have the legal capacity and authority to enter into a contract. If you are under the age of 18, your use of the HES Platform must be supervised and approved by a parent or guardian. Your parent or guardian is responsible for your activities on the HES Platform.
    2. Heavy Equipment Seller may make access to and use of the HES Platform, or certain areas or features of the HES Platform, subject to certain conditions or requirements, such as completing a verification process, meeting specific quality or eligibility criteria, or meeting Ratings or Review thresholds.

     

  3. Modification of These Terms.Heavy Equipment Seller reserves the right to modify these Terms at any time in accordance with this provision. If we make changes to the Terms, we will post the revised terms on the HES Platform and update the “Last Updated” date at the top of them. We will also provide you with notice of the modifications by email at least 10 days before the date they become effective. If you disagree with the revised Terms, you may terminate your participation in the HES Platform and these Terms with immediate effect by deleting your account and ceasing use of the HES Platform. If you do not terminate your use before the date the revised Terms become effective, your continued access to or use of the HES Platform will constitute acceptance of the revised Terms.
  4. Account Registration.
    1. You must register an account (“Heavy Equipment Seller Account“) to access and use certain features of the HES Platform, such as publishing a Listing, making a purchase, or communicating with other Members. If you are registering a Heavy Equipment Seller Account for a company or other legal entity, you represent and warrant that you have the authority to legally bind that entity and grant us all permissions and licenses provided in these Terms.
    2. You can register Heavy Equipment Seller Account using an email address and creating a password.
    3. You must provide accurate, current and complete information during the registration process and keep your Heavy Equipment Seller Account and profile page information up-to-date at all times.
    4. You cannot register more than one Heavy Equipment Seller Account unless Heavy Equipment Seller authorizes you to do so. You may not assign or otherwise transfer your Heavy Equipment Seller Account to another party.
    5. You are responsible for maintaining the confidentiality and security of your Heavy Equipment Seller Account credentials and may not disclose your credentials to any third party. You must immediately notify Heavy Equipment Seller if you know or have any reason to suspect that your credentials have been lost, stolen, misappropriated, or otherwise compromised or in case of any actual or suspected unauthorized use of your Heavy Equipment Seller Account. You are liable for any and all activities conducted through your Heavy Equipment Seller Account, unless such activities are not authorized by you and you are not otherwise negligent (such as failing to report the unauthorized use or loss of your credentials).

     

  5. Content.
    1. Heavy Equipment Seller may, at its sole discretion, enable Members to: (i) create, upload, post, send, receive and store content, such as text, photos, audio, video, or other materials and information on or through the HES Platform (“Member Content“); and (ii) access and view Member Content and any content that Heavy Equipment Seller itself makes available on or through the HES Platform, including proprietary Heavy Equipment Seller content and any content licensed or authorized for use by or through Heavy Equipment Seller from a third party (“Heavy Equipment Seller Content” and together with Member Content, “Collective Content“).
    2. Heavy Equipment Seller is not responsible for any Member Content on the HES Platform. Member Content is uploaded by Members at their own risk and Members must ensure their postings and messages comply with these Terms.
    3. The HES Platform, Heavy Equipment Seller Content, and Member Content may in its entirety or in part be protected by copyright, trademark, and/or other laws of the United States and other countries. You acknowledge and agree that the HES Platform and Heavy Equipment Seller Content, including all associated intellectual property rights, are the exclusive property of Heavy Equipment Seller and/or its licensors or authorizing third-parties. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the HES Platform, Heavy Equipment Seller Content or Member Content. All trademarks, service marks, logos, trade names, and any other source identifiers of Heavy Equipment Seller used on or in connection with the HES Platform and Heavy Equipment Seller Content are trademarks or registered trademarks of Heavy Equipment Seller in the United States. Trademarks, service marks, logos, trade names and any other proprietary designations of third parties used on or in connection with the HES Platform, Heavy Equipment Seller Content, and/or Collective Content are used for identification purposes only and may be the property of their respective owners.
    4. You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the HES Platform or Collective Content, except to the extent you are the legal owner of certain Member Content or as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by Heavy Equipment Seller or its licensors, except for the licenses and rights expressly granted in these Terms.
    5. Subject to your compliance with these Terms, Heavy Equipment Seller grants you a limited, non-exclusive, non-sublicensable, revocable, non-transferable license to: (i) download and use Heavy Equipment Seller mobile apps, as they become available, on your personal device(s); and (ii) access and view any Collective Content made available on or through the HES Platform and accessible to you, solely for your personal and non-commercial use.
    6. By creating, uploading, posting, sending, receiving, storing, or otherwise making available any Member Content on or through the HES Platform, you grant to Heavy Equipment Seller a non-exclusive, worldwide, royalty-free, irrevocable, perpetual (or for the term of the protection), sub-licensable, and transferable license to such Member Content to access, use, store, copy, modify, prepare derivative works of, distribute, publish, transmit, stream, broadcast, and otherwise exploit in any manner such Member Content to provide and/or promote the HES Platform, in any media or platform. Such voluntarily provided Member Content may also appear in Buyer documents that are requested by Sellers. Unless you provide specific consent, Heavy Equipment Seller does not claim any ownership rights in any Member Content and nothing in these Terms will be deemed to restrict any rights that you may have to use or exploit your Member Content.
    7. You are solely responsible for all Member Content that you make available on or through the HES Platform. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available on or through the HES Platform or you have all rights, licenses, consents and releases that are necessary to grant to Heavy Equipment Seller the rights in and to such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or Heavy Equipment Seller’s use of the Member Content (or any portion thereof) will infringe, misappropriate or violate a third party’s patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
    8. You will not post, upload, publish, submit or transmit any Member Content that: (i) is fraudulent, false, misleading (directly or by omission or failure to update information), or deceptive; (ii) is defamatory, libelous, obscene, pornographic, vulgar or offensive; (iii) promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (iv) is violent or threatening or promotes violence or actions that are threatening to any other person; (v) promotes illegal or harmful activities or substances; or (vi) violates any Heavy Equipment Seller policy. Heavy Equipment Seller may, without prior notice, remove or disable access to any Member Content that Heavy Equipment Seller finds to be in violation of these Terms or Heavy Equipment Seller’s then-current policies or standards, or otherwise may be harmful or objectionable to Heavy Equipment Seller, its Members, third parties, or property.

     

  6. Service Fees.
    1. Heavy Equipment Seller may charge fees to Sellers (“Service Fees“) in consideration for the use of the HES Platform.
    2. Any applicable Service Fees (including any applicable taxes) will be displayed to a Seller prior to publishing a Listing. Heavy Equipment Seller reserves the right to change the Service Fees at any time, and we will provide Members adequate notice of any fee changes before they become effective.
    3. You are responsible for paying any Service Fees that you owe to Heavy Equipment Seller.EXCEPT AS OTHERWISE PROVIDED ON THE HES PLATFORM, SERVICE FEES ARE NON-REFUNDABLE. If you are overdue on any applicable Service Fees, Heavy Equipment Seller reserves the right to withhold the overdue balances from your future transactions or employ any measure allowed by law to collect the balances otherwise.
    4. Service Fees may be processed through an independent, third-party payment service. Heavy Equipment Seller makes no guarantees regarding, and is not liable for error regarding, the security, accuracy, or availability of such third-party payment service.
    5. Current Service Fees are: Service fees and pricing.

     

  7. Ratings and Reviews. Within a certain timeframe after completing sale, Buyers and Sellers can leave a public review (“Review”) and submit a star rating (“Rating”) about each other. Any Ratings or Reviews reflect the opinion of individual Members and do not reflect the opinion of Heavy Equipment Seller. Ratings and Reviews are not verified by Heavy Equipment Seller for accuracy and may be incorrect or misleading. Ratings and Reviews must be fair, truthful and factual and may not contain any offensive or defamatory language. Members are prohibited from manipulating the Ratings and Reviews system in any manner, such as instructing a third party write a positive or negative Review about another Member.
  8. Terms Specific to Sellers.
    1. Terms Applicable to All Listings.
      1. When creating a Listing through the HES Platform you must: (i) provide complete and accurate information about your Product (such as Listing description, location, specifications, model numbers, conditions, and availability, etc.), (ii) disclose any damages and use requirements that apply; and (iii) provide any other pertinent information requested by Heavy Equipment Seller. You are responsible for keeping your Listing information up-to-date at all times.
      2. You are solely responsible for setting a price (including any applicable taxes) for your Listing (“Listing Fee”). Once a Buyer requests to purchase your Product, you may not request the Buyer to pay a higher Listing Fee than what you have set in your Listing.
      3. ANY TERMS AND CONDITIONS INCLUDED IN YOUR LISTING MUST NOT CONFLICT WITH THESE TERMS.HEAVY EQUIPMENT SELLER UTILIZES A STANDARD REFUND POLICY (SEE SECTION X,BELOW.) THAT MUST BE FOLLOWED BY ALL SELLERS.
      4. Pictures, animations, or videos (collectively, “Images“) used in your Listings must accurately reflect the quality and condition of your Product. Heavy Equipment Seller reserves the right to require that Listings have a minimum number of Images of a certain format, size, and resolution.
      5. The placement and ranking of Listings in search results on the HES Platform may vary and depend on a variety of factors, such as Buyer search parameters and preferences, Seller requirements, price, specifications, number and quality of Images, Ratings and Reviews, distance from search area, and type of Product.
      6. When a Buyer purchases your Product, you are entering into a legally binding agreement with the Buyer and are required to provide your Product to the Buyer as described in your Listing and Listing Fee when the purchase was made. You also agree to pay the applicable Service Fee and any applicable taxes.

       

    2. Listing Products.
      1. You may only list one Product per Listing. If your Product requires multiple parts or pieces, and you are selling them as a set, you may place them all in the same Listing.
      2. You represent and warrant that any Listing you post and the Buyer’s purchase thereof will: (i) not breach any agreements you have entered into with any third parties; and (ii) comply with all applicable laws, tax requirements, and other rules and regulations. As a Seller, you are responsible for your own acts and omissions.

       

     

  9. Listing Modifications; Refunds.
    1. Modifications. Sellers may modify and/or amend their Listing at any time prior to purchase of the Product by a Buyer.
    2. Heavy Equipment Seller. All sales are final; there are no refunds, partial or otherwise, for the plan Seller purchases to use the HES Platform.

     

  10. Relationship Between Heavy Equipment Seller, Sellers, and Buyers. The HES Platform connects Sellers and Buyers and allows them to initially communicate.. Heavy Equipment Seller is not itself a provider of Products and is not affiliated with any Seller or Buyer. Heavy Equipment Seller also does not aid Buyers in the selection of Products to purchase. ANY AND ALL DISPUTES OUTSIDE OF THE SERVICES ARE SOLELY BETWEEN SELLER AND BUYER, AND NEITHER PARTY CAN SEEK RELIEF FROM HEAVY EQUIPMENT SELLER. Disputes between Seller and Buyer may include, but are not limited to: (i) Product is not as specified in the Listing, (ii) Damage to the Product, and (iii) manufacturers warranties of any kind.
  11. Currency Used. All transactions on the HES Platform are in United States currency (USD$). Heavy Equipment Seller does not provide currency exchange services.
  12. Prohibited Activities.
    1. You are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the HES Platform. In connection with your use of the HES Platform, you will not and will not assist or enable others to:
      1. Beach or circumvent any applicable laws or regulations, agreements with third-parties, third-party rights, or our Terms, policies, or standards;
      2. Use the HES Platform or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms or in a manner that falsely implies Heavy Equipment Seller endorsement, partnership or otherwise misleads others as to your affiliation with Heavy Equipment Seller;
      3. Copy, store or otherwise access or use any information, including personally identifiable information about any other Member, contained on the HES Platform in any way that is inconsistent with Heavy Equipment Seller’s Privacy Statement or these Terms or that otherwise violates the privacy rights of Members or third parties;
      4. Use the HES Platform in connection with the distribution of unsolicited commercial messages (“spam”);
      5. Offer, as a Seller, any Product that you do not yourself own or have permission to make available for purchase through the HES Platform;
      6. Contact another Member for any purpose other than asking a question related to a Product, Listing, or the Member’s use of the HES Platform, including, but not limited to, recruiting or otherwise soliciting any Member to join third-party services, applications or websites, without our prior written approval;
      7. Use the HES Platform to request, make, or accept a booking independent of the HES Platform, to circumvent any Service Fees or for any other reason;
      8. Request, accept, or make any payment for a Product outside of the HES Platform. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, and (iii) hold Heavy Equipment Seller harmless from any liability for such payment;
      9. Discriminate against or harass anyone on the basis of race, national origin, religion, gender, gender identity, physical or mental disability, medical condition, marital status, age or sexual orientation, or otherwise engage in any abusive or disruptive behavior;
      10. Use, display, mirror, or frame the HES Platform or Collective Content, or any individual element within the HES Platform, Heavy Equipment Seller’s name, any Heavy Equipment Seller trademark, logo, or other proprietary information, or the layout and design of any page or form contained on a page in the HES Platform, without Heavy Equipment Seller’s express written consent;
      11. Dilute, tarnish or otherwise harm the Heavy Equipment Seller brand in any way, including through unauthorized use of Collective Content, registering and/or using Heavy Equipment Seller or derivative terms in domain names, trade names, trademarks or other source identifiers, or registering and/or using domains names, trade names, trademarks or other source identifiers that closely imitate or are confusingly similar to Heavy Equipment Seller domains, trademarks, taglines, promotional campaigns or Collective Content;
      12. Use any robots, spider, crawler, scraper or other automated means or processes to access, collect data or other content from or otherwise interact with the HES Platform for any purpose;
      13. Avoid, bypass, remove, deactivate, impair, descramble, or otherwise attempt to circumvent any technological measure implemented by Heavy Equipment Seller or any of Heavy Equipment Seller’s providers or any other third party to protect the HES Platform;
      14. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the HES Platform;
      15. Take any action that damages or adversely affects, or could damage or adversely affect the performance or proper functioning of the HES Platform;
      16. Export, re-export, import, or transfer the HES Platform except as authorized by United States law, the export control laws of your jurisdiction, and any other applicable laws; or
      17. Violate or infringe anyone else’s rights or otherwise cause harm to anyone.

       

    2. You acknowledge that Heavy Equipment Seller has no obligation to monitor the access to or use of the HES Platform by any Member or to review, disable access to, or edit any Member Content, but has the right to do so to: (i) operate, secure and improve the HES Platform (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes); (ii) ensure Members’ compliance with these Terms; (iii) comply with applicable law or the order or requirement of a court, law enforcement or other administrative agency or governmental body; (iv) respond to Member Content that it determines is harmful or objectionable; or (v) as otherwise set forth in these Terms. Members agree to cooperate with and assist Heavy Equipment Seller in good faith, and to provide Heavy Equipment Seller with such information and take such actions as may be reasonably requested by Heavy Equipment Seller with respect to any investigation undertaken by Heavy Equipment Seller or a representative of Heavy Equipment Seller regarding the use or abuse of the HES Platform.
    3. If you feel that any Member you interact with, whether online or in person, is acting or has acted inappropriately, including but not limited to anyone who: (i) engages in offensive, violent or sexually inappropriate behavior; (ii) you suspect of stealing from you; or (iii) engages in any other disturbing or fraudulent conduct, you should immediately report such person to the appropriate authorities and then to Heavy Equipment Seller by contacting us with your police station and report number (if available); provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.

     

  13. Term and Termination.
    1. This Agreement, and any updates or changes thereto, will be effective indefinitely until such time when you or Heavy Equipment Seller terminate these Terms in accordance with this provision.
    2. You may terminate these Terms at any time by sending us an email or by cancelling your account through the HES Platform. If you cancel your Heavy Equipment Seller Account as a Seller, you remain liable to the Buyer and Heavy Equipment Seller for any of your Products purchased and associated Service Fees. If you cancel your Heavy Equipment Seller Account as a Buyer, you remain liable to the Seller and Heavy Equipment Seller for any Products you have purchased.
    3. Without limiting our rights specified below, Heavy Equipment Seller may terminate these Terms for convenience at any time by giving you ten (10) days’ notice via email to your registered email address.
    4. Heavy Equipment Seller may immediately, without notice, terminate these Terms if:
      1. You have materially breached your obligations under these Terms;
      2. You have violated applicable laws, regulations, or third-party rights, or
      3. Heavy Equipment Seller believes in good faith that such action is reasonably necessary to protect the personal safety or property of Heavy Equipment Seller, its Members, or third parties (for example, in the case of fraudulent behavior of a Member).

       

    5. In addition, Heavy Equipment Seller may take any of the following measures (i) to comply with applicable law, or the order or request of a court, law enforcement or other administrative agency or governmental body; or if (ii) you have breached these Terms, applicable laws, regulations, or third party rights; (iii) you have provided inaccurate, fraudulent, outdated or incomplete information during the Heavy Equipment Seller Account registration, Listing process or thereafter; (iv) you and/or your Listings or Products at any time fail to meet any applicable quality or eligibility criteria; (v) you have repeatedly received poor Ratings or Reviews or Heavy Equipment Seller otherwise becomes aware of or has received complaints about your performance or conduct; (vi) you have repeatedly cancelled purchases; or (vii) Heavy Equipment Seller believes in good faith that such action is reasonably necessary to protect the personal safety or property of Heavy Equipment Seller, its Members, or third parties, or to prevent fraud or other illegal activity:
      1. Refuse to surface, delete, or delay any Listings, Ratings, Reviews, or other Member Content;
      2. Cancel any pending or confirmed purchases;
      3. Limit your access to or use of the HES Platform;
      4. Temporarily or permanently revoke any special status associated with your Heavy Equipment Seller Account; or
      5. Temporarily or permanently suspend your Heavy Equipment Seller Account.

       

    6. In case of non-material breaches and where appropriate, you will be given notice of any intended measure by Heavy Equipment Seller and an opportunity to resolve the issue to Heavy Equipment Seller’s reasonable satisfaction.
    7. When this Agreement has been terminated, you are not entitled to a restoration of your Heavy Equipment Seller Account or any of your Member Content. If your access to or use of the HES Platform has been limited or your Heavy Equipment Seller Account has been suspended or these Terms have been terminated by us, you may not register a new Heavy Equipment Seller Account or access and use the HES Platform through an Heavy Equipment Seller Account of another Member.

     

  14. Disclaimers.
    1. If you choose to use the HES Platform or Collective Content, you do so voluntarily and at your sole risk. The HES Platform and Collective Content are provided “as is,” without warranty of any kind, either express or implied.
    2. You agree that you have had whatever opportunity you deem necessary to investigate the Heavy Equipment Seller Services, laws, rules, or regulations that may be applicable to your Listings and/or your Buyer activities and that you are not relying upon any statement of law or fact made by Heavy Equipment Seller relating to a Listing.
    3. The foregoing disclaimers apply to the maximum extent permitted by law. You may have other statutory rights. However, the duration of statutorily required warranties, if any, shall be limited to the maximum extent permitted by law.

     

  15. Limitation of Liability.
    1. You acknowledge and agree that, to the maximum extent permitted by law, the entire risk arising out of your access to and use of the HES Platform and Collective Content, your publishing of any Listing via the HES Platform, your purchase of any Product, or any other interaction you have with other Members whether in person or online remains with you.
      1. Neither Heavy Equipment Seller nor any other party involved in creating, producing, or delivering the HES Platform or Collective Content will be liable for any incidental, special, exemplary, or consequential damages, including lost profits, loss of data or loss of goodwill, service interruption, computer damage or system failure or the cost of substitute products or services, or for any damages for personal or bodily injury or emotional distress arising out of or in connection with (i) these Terms, (ii) from the use of or inability to use the HES Platform or Collective Content, (iii) from any communications, interactions or meetings with other Members or other persons with whom you communicate, interact or meet with as a result of your use of the HES Platform, or (iv) from your publishing of a Listing or purchase of a Product, whether based on warranty, contract, tort (including negligence), product liability or any other legal theory, and whether or not Heavy Equipment Seller has been informed of the possibility of such damage, even if a limited remedy set forth herein is found to have failed of its essential purpose.
      2. Except for our obligations to pay amounts to applicable Sellers pursuant to these Terms, in no event will Heavy Equipment Seller’s aggregate liability arising out of or in connection with these Terms and your use of the HES Platform including, but not limited to, from your publishing of any Listings via the HES Platform or your purchase of a Product via the HES Platform, or from the use of or inability to use the HES Platform or Collective Content and in connection with any Product, or interactions with any other Members, exceed the amounts you have paid via the HES Platform as a Buyer in the twelve (12) month period prior to the event giving rise to the liability, or if you are a Seller, the amounts paid by Heavy Equipment Seller to you in the twelve (12) month period prior to the event giving rise to the liability, or one hundred U.S. dollars (US$100), if no such payments have been made, as applicable.
      3. The limitations of damages set forth above are fundamental elements of the basis of the bargain between Heavy Equipment Seller and you. Some jurisdictions do not allow the exclusion or limitation of liability for consequential or incidental damages, so the above limitation may not apply to you. If you reside outside of the U.S., this does not affect Heavy Equipment Seller’s liability for death or personal injury arising from its negligence, nor for fraudulent misrepresentation, misrepresentation as to a fundamental matter or any other liability which cannot be excluded or limited under applicable law.

       

    2. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEAVY EQUIPMENT SELLER AND OUR OWNERS, AFFILIATES, LICENSORS AND LICENSEES SPECIFICALLY DISCLAIM ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED BY STATUTE OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.

     

  16. Indemnification. You agree to release, defend (at Heavy Equipment Seller’s option), indemnify, and hold Heavy Equipment Seller and its affiliates and subsidiaries, and their officers, directors, employees and agents, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with:
    1. Your breach of these Terms or our policies or standards;
    2. Your improper use of the HES Platform or any Heavy Equipment Seller Services;
    3. Your interaction with any Member, your publishing of a Listing, or your purchase of a Product, including without limitation any injuries, losses or damages (whether compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of such interaction, publishing, or purchase; or
    4. Your breach of any laws, regulations, or third-party rights.

     

  17. Dispute Resolution.
    1. All claims and disputes arising under or relating to these Terms are to be settled by binding arbitration in the state of Texas or another location mutually agreeable to the parties. The arbitration shall be conducted on a confidential basis pursuant to the Commercial Arbitration Rules of the American Arbitration Association. Any decision or award as a result of any such arbitration proceeding shall be in writing and shall provide an explanation for all conclusions of law and fact and shall include the assessment of costs, expenses, and reasonable attorneys’ fees. Any such arbitration shall be conducted by an arbitrator experienced in business disputes and shall include a written record of the arbitration hearing. The parties reserve the right to object to any individual who shall be employed by or affiliated with a competing organization or entity. An award of arbitration may be confirmed in a court of competent jurisdiction.
    2. Arbitrator’s Decision. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court with proper jurisdiction. The arbitrator may award declaratory or injunctive relief only on an individual basis and only to the extent necessary to provide relief warranted by the claimant’s individual claim.
    3. Jury Trial Waiver. You and Heavy Equipment Seller acknowledge and agree that we are each waiving the right to a trial by jury as to all arbitrable Disputes.
    4. No Class Actions or Representative Proceedings. You and Heavy Equipment Seller acknowledge and agree that we are each waiving the right to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding as to all Disputes. Further, unless you and Heavy Equipment Seller both otherwise agree in writing, the arbitrator may not consolidate more than one party’s claims and may not otherwise preside over any form of any class or representative proceeding. If this paragraph is held unenforceable with respect to any Dispute, then the entirety of the Arbitration Agreement will be deemed void with respect to such Dispute.
    5. Severability. In the event that any portion of this Arbitration Agreement is deemed illegal or unenforceable, such provision shall be severed and the remainder of the Arbitration Agreement shall be given full force and effect.
    6. Survival. This Section XVII will survive any termination of these Terms and will continue to apply even if you stop using the HES Platform or terminate your Heavy Equipment Seller Account.

     

  18. General Provisions.
    1. Governing Law. These Terms will be interpreted in accordance with the laws of the State of Texas and the United States of America, without regard to conflict-of-law provisions.
    2. Entire Agreement. Except as they may be supplemented by additional terms and conditions, policies, guidelines or standards, these Terms constitute the entire Agreement between Heavy Equipment Seller and you pertaining to the subject matter hereof, and supersede any and all prior oral or written understandings or agreements between Heavy Equipment Seller and you in relation to the access to and use of the HES Platform.
    3. Restriction on Assignability or Transfer. These Terms do not and are not intended to confer any rights or remedies upon any person other than the parties. You may not assign, transfer, or delegate these Terms and your rights and obligations hereunder without Heavy Equipment Seller’s prior written consent. Heavy Equipment Seller may without restriction assign, transfer or delegate this Agreement and any rights and obligations hereunder, at its sole discretion, with 30 days prior notice. Your right to terminate these Terms at any time remains unaffected.
    4. Severability. If any provision of these Terms is held to be invalid or unenforceable, such provision will be struck and will not affect the validity and enforceability of the remaining provisions.
    5. Waivers. Heavy Equipment Seller’s failure to enforce any right or provision in these Terms will not constitute a waiver of such right or provision unless acknowledged and agreed to by us in writing. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise permitted under law.
    6. Notices. Unless specified otherwise, any notices or other communications to Members permitted or required under these Terms, will be in writing and given by Heavy Equipment Seller via email or HES Platform notification.
    7. Questions? If you have any questions about these Terms please email us.