We may amend this Agreement at any time by posting the amended Agreement on our MachineryMax INC Website. An amended Agreement shall automatically be effective 15 days after it is initially posted on our MachineryMax INC Website. Your continued use of MachineryMax INC Website after our posting of any changes will constitute your acceptance of such changes. This Agreement may not be otherwise amended except in a writing hand signed by you and the Company. Notwithstanding any other provision of this Agreement, for purposes of this provision, a "writing" does not include an e-mail message and a signature does not include an electronic signature.
1. MACHINERYMAX INC WEBSITE IS ONLY A VENUE OR MARKETPLACE
Each MachineryMax INC website is only a venue or marketplace for our users to offer, sell and buy many different items. Our role is only to provide a venue for listings, bids and acceptances, and facilitate the exchange of information between buyers and sellers. We are not involved in forming the actual transaction between buyers and sellers, we are not an agent of buyer or seller, and we do not take title to the items at any point in the sales process. Any agreement reached by a buyer and seller with respect to the terms of sale for an item is solely between such buyer and seller. As a result, we have no control over and do not guarantee the quality, safety, or legality of items listed for sale, the truth or accuracy of seller's listings, the ability of sellers to sell items, the ability of buyers to pay for items, or that a buyer or seller will actually complete a transaction.
2. DISPUTES BETWEEN USERS; RELEASE OF THE COMPANY
You will not hold MachineryMax INC responsible for any user's actions or inactions relating to the purchase and sale of items listed on MachineryMax INC Website. If you have a dispute with one or more users, you release tMachineryMax INC, its subsidiaries and affiliates, and their respective officers, directors, agents, employees and third party suppliers, from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, including without limitation those claims, demands and damages based in whole or in part upon the Company's negligence, gross negligence, statutory liability or strict liability, arising out of or in any way connected with such dispute. If you are a California resident, you waive California Civil Code 1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
3. LIMITATION OF LIABILITY BETWEEN BUYER AND SELLER
FOR ANY TRANSACTION BETWEEN BUYER AND SELLER ON MACHINERYMAX INC WEBSITE, BUYER AND SELLER AGREE AS FOLLOWS:
(a) ALL ITEMS LISTED ON THE MACHINERYMAX INC WEBSITE ARE SOLD "AS IS, WHERE IS" WITH NO WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, UNLESS OTHERWISE EXPRESSLY SET FORTH IN THE TERMS OF SALE FOR SUCH ITEM AND LABELED AS A "WARRANTY".
(b) IN NO EVENT SHALL BUYER OR SELLER BE LIABLE TO EACH OTHER FOR SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, OR ANY LOST REVENUE OR ANTICIPATED PROFITS, ARISING OUT OF OR IN CONNECTION WITH SUCH TRANSACTION.
(c) IN NO EVENT SHALL THE LIABILITY OF SELLER TO BUYER, OR BUYER TO SELLER, FOR ANY SUCH TRANSACTION EXCEED THE PURCHASE PRICE OF THE PURCHASED ITEMS AND, IF THE PURCHASED ITEMS HAVE ALREADY BEEN RELEASED TO BUYER, THE REASONABLE LOGISTICS COSTS INCURRED BY BUYER FOR THE TRANSPORTATION AND STORAGE OF THE PURCHASED ITEMS.
4. PAYMENT TERMS
After selection of the winning bid on MachineryMax INC website, the winning bidder is required to pay the agreed purchase price and other fees to the Seller.
Payment terms are to be followed as instructed in the Sellers listing instructions. Seller may elect to accept the following payment methods: Paypal, Bank Wire Transfer, Check, Credit Card, or Cash.
The Seller is soley responsible for collecting payment and verifying funds in full before shipping any item unless otherwise specified in Sellers listing instructions.
MachineryMax INC will charge a Buyers Premium and Sellers Premium (unless auction specifies otherwise), which is due in full at the end of business concluding the successful auction. Buyer and Seller both agree to have these fees automatically debited from the Credit Card listed on file at the time of registration. In the event that there are insufficient funds to cover the outstanding amount due, MachineryMax INC reserves the right to pursue legal action which includes, but not limited to collections and or legal action.
Default. If, after five (5) business days (which includes a two (2) business day grace period) following the close of an Auction, you have not made full payment of the Final Selling Price and all other applicable fees, you are in default and shall be subject to a Default Fee Penalty of 10% of the final closing price.
Buyer is responsible for any sales or use tax.
5. LISTING REQUIREMENTS; LICENSE; EXCLUSIVITY
When you list goods for sale on MachineryMax INC Website, you represent and warrant that you have the authority to sell such goods, free and clear of any liens, claims or other encumbrances. You further agree to use commercially reasonable efforts to supply accurate information for each listing, and will be solely responsible for the listing information you provide. When you give us content for a listing of goods, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, trademark, publicity, and database rights (but no other rights) you have in the content, in any media known now or in the future.
When you list an item for sale on MachineryMax INC Website, you agree that during the period in which the item is posted in an online auction on the MachineryMax INC Website (the "Exclusivity Period"), the Company shall have the exclusive right to sell such item. You further agree that during the Exclusivity Period you will solicit and accept offers on the item only through the MachineryMax INC Website on which the item was posted for sale. If you solicit or accept, through any means other than the MachineryMax INC Website on which the item was posted for sale, any offer on any such item during the Exclusivity Period you agree to pay the MachineryMax INC a Commission Fee of 10%, as if such item had been sold through a completed online auction.
6. ELIGIBILITY AND REGISTRATION
The MachineryMax INC Website are available only to individuals and entities that can form legally binding contracts under applicable law, and are not available to minors. You represent and warrant that (i) all user information provided during registration is accurate and complete, and (ii) you will update such user information from time to time so that it is kept current, accurate and complete at all times. If you are registering with the Company as a business entity, you represent that you have the authority to legally bind that entity. You are solely responsible for all conduct and transmissions that take place under your user name and password. The Company may ask for additional information at any time to verify your registration information. The Company may, in its sole and absolute discretion, refuse to accept a party's registration.
7. USER RESPONSIBILITIES
When using MachineryMax INC Website, you agree that you will not do any of the following:
- Violate any laws or the specific Rules or Policies for MachineryMax INC Website
- Violate or infringe, or cause the Company to violate or infringe, the intellectual property or other rights of any third party, including copyright, trademark, trade secret, privacy or other proprietary rights
- Fail to deliver payment for items purchased by you
- Fail to deliver goods purchased from you
- Manipulate the price of any posted item, whether by bidding through a secondary account or other party, by communicating with other buyers, by shill bidding or by any other means
- Copy, reproduce, modify, create derivative works from, distribute, or publicly display any content (except for your information) from any MachineryMax INC Website without the prior express written permission of the Company
Without limiting other remedies, we may limit, suspend or terminate a user's registration and access to the MachineryMax INC Website at any time if we believe, in our sole discretion, that you have breached this User Agreement or otherwise engaged in any inappropriate behavior on any of the MachineryMax INC Website.
THE MACHINERYMAX INC WEBSITE IS PROVIDED BY THE COMPANY ON AN "AS IS", "AS AVAILABLE" BASIS.
TO THE FULLEST EXTENT PERMISSIBLE BY APPLICABLE LAW, THE COMPANY DISCLAIMS ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE OPERATION, ACCESSIBILITY OR SECURITY OF THE MACHINERYMAX INC WEBSITE, AND THE ACCURACY, COMPLETENESS, CURRENCY OR RELIABILITY OF ANY OF THE CONTENT OR DATA FOUND ON THE MACHINERYMAX INC WEBSITE INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SOME STATES DO NOT ALLOW THE DISCLAIMER OF IMPLIED WARRANTIES, SO THE FOREGOING DISCLAIMER MAY NOT APPLY TO YOU.
THE COMPANY DOES NOT WARRANT THAT THE MACHINERYMAX INC WEBSITE OR THE FUNCTIONS, FEATURES OR CONTENT ON THE MACHINERYMAX WEBSITE WILL ALWAYS BE AVAILABLE, ACCESSIBLE, UNINTERRUPTED, AND SECURE OR OPERATE WITHOUT ERROR.
THE COMPANY EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY BUYER OR SELLER.
9. LIMITATION OF LIABILITY OF COMPANY
IN NO EVENT SHALL MACHINERYMAX INC BE LIABLE FOR ANY LOSS, CLAIM, DAMAGE OR EXPENSE, OR ANY SPECIAL, INCIDENTAL, INDIRECT, CONSEQUENTIAL OR PUNITIVE DAMAGES OF ANY KIND, INCLUDING LOST REVENUES OR PROFITS, DIRECTLY OR INDIRECTLY ARISING OUT OF YOUR USE OF OR INABILITY TO USE ANY OF THE MACHINERYMAX INC WEBSITE. SOME JURISDICTIONS MAY NOT ALLOW THE EXCLUSION OR LIMITATION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS SHALL ONLY APPLY TO THE EXTENT PERMISSIBLE UNDER APPLICABLE LAW.
IF, NOTWITHSTANDING THE FOREGOING, THE COMPANY SHOULD BE FOUND LIABLE FOR ANY LOSS OR DAMAGE (WHETHER IN CONTRACT OR TORT) WHICH ARISES OUT OF OR IS IN ANY WAY CONNECTED WITH THIS AGREEMENT OR THE USE OF ANY OF THE MACHINERYMAX INC WEBSITE, THE LIABILITY OF THE COMPANY TO YOU OR ANY THIRD PARTY SHALL IN NO EVENT EXCEED, IN THE AGGREGATE, THE GREATER OF (A) THE FEES PAID TO THE COMPANY WITH RESPECT TO THE PARTICULAR TRANSACTION GIVING RISE TO SUCH LIABILITY, OR (B) US$1,000.
You shall indemnify, defend and hold harmless tMachineryMax INC, its subsidiaries and affiliates, and their respective officers, directors, employees, agents and third party suppliers (collectively, the "Company Group"), from and against any and all claims, losses, damages, liabilities, judgments and fees and expenses related thereto (including, without limitation, reasonable attorneys' fees), brought by or on behalf of any third party against any of the Company Group that arises out of:
(a) Any breach or violation by you of this Agreement, including, without limitation, any breach of your representations, warranties or covenants contained herein,
(b) Any dispute with another user relating to your purchase or sale of items on an MachineryMax INC Website, or
(c) Any personal injury, death or property damage caused by or arising out of the subsequent use of the goods sold or purchased by you on any MachineryMax INC Website.
11. TERMINATION OF USAGE
This Agreement is in force until terminated by either you or Company. If you disagree with this Agreement, your sole remedy is to terminate your use of the MachineryMax INC Website. Upon any termination of this Agreement, all obligations of either party set forth herein which relate to transactions by such party prior to such termination shall survive such termination and continue in effect.
12. APPLICABLE LAW AND VENUE; WAIVER OF JURY TRIAL
This Site is controlled by MachineryMax INC from its offices within the State of California, United States of America. The laws applicable to the interpretation of this Agreement shall be the laws of the State of California, without regard to any conflict of law provisions.
You agree that any action at law or in equity arising out of or relating to this Agreement shall be filed only in the state or federal courts of San Joaquin , California, U.S.A., and that you hereby consent and submit to the exclusive jurisdiction and venue of such courts. No action arising under or relating to this Agreement may be brought by either party more than two years after the cause of action has occurred.
YOU KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY LITIGATION ARISING OUT OF, UNDER, OR IN CONNECTION WITH THIS AGREEMENT, YOUR USE OF MACHINERYMAX INC WEBSITE OR ANY COURSE OF CONDUCT, COURSE OF DEALING, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PERSON. THIS PARAGRAPH IS A MATERIAL INDUCEMENT FOR YOU AND THE COMPANY TO ENTER INTO THIS AGREEMENT.
The scope of this waiver is intended to be all-encompassing of any and all disputes that may be filed in any court and that relate to the subject matter of this Agreement, including without limitation, contract claims, tort claims (including fraud in the inducement), breach of duty claims and all other common law and statutory claims. THIS WAIVER OF JURY TRIAL IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING, AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS OF THIS AGREEMENT. In the event of litigation, this provision may be filed as a written consent to a trial by the court.
13. COMPANY COPYRIGHT AND TRADEMARKS
The trademarks, tradenames and all other material contained on the MachineryMax INC Website, including all portions of the websites, site design, text, graphics, and all intellectual property rights thereto are the sole and exclusive property of the Company or its licensors. Except as expressly permitted hereby, the use of any such intellectual property for any other purpose, or the modification, distribution or republication of such material without the prior written permission from the Company, is strictly prohibited.
14. ELECTRONIC COMMUNICATIONS AND AGREEMENTS
You consent to receive communications from us electronically. We will communicate with you by e-mail or by posting notices on the MachineryMax INC Website. You also consent to the electronic formation of contracts and agreements between you and us and between you and any seller. You agree that all contracts, agreements, notices, disclosures and other communications that we or any seller provides to or forms with you electronically satisfy any legal requirement that such contracts, agreements, notices, disclosures, and communications be in writing, or that any signature to any contract or agreement be in writing. IF AT ANY TIME YOU NOTIFY US THAT YOU REVOKE THE CONSENTS CONTAINED IN THIS PARAGRAPH, YOUR REGISTRATION ON AND ACCESS TO THE MACHINERYMAX INC WEBSITE WILL BE IMMEDIATELY TERMINATED.
Notices shall be given to the Company by e-mail to [email protected] and by certified mail, return receipt requested, to MachineryMax, Inc., Attention: President, PO Box 1332, Ripon Ca 95366, or to such other address as may be designated from time to time. Notices to the Company shall be deemed to have been given five days after the date of mailing by certified mail, return receipt requested.
Notices to you will be sent by e-mail to the e-mail address given to the Company when you registered with the Company, or such other e-mail address as you may provide by e-mail to the Company from time to time. Notices to you shall be deemed to have been received 24 hours after the e-mail is sent.