TruckMatch.com User Agreement
The TruckMatch World Wide Web Site (the “Site”) and services offered herein are provided to you by TruckMatch.com, Inc. (“TKM”, “we”, “us” or “company”), and is subject to the following terms and conditions set forth in this User Agreement (the “Agreement” of “User Agreement”).
By using the “Site”, you agree to adhere to and abide by all rules and regulations set forth herein.
We may change, modify, add or remove any portion of this Agreement, in whole or in part, from time to time and at any time without notice to you, by posting such changes on the Site. Your continued use of the Site after such changes are posted will constitute your agreement to such changed Agreement.
1. Nature of Site.
The Site is only a venue for Site users (each a “User” and collectively “Users”) to buy, sell and network equipment (hereinafter referred to as “Posted Item” or “Posted Items"). Nothing contained in this Site is to be construed as furnishing advice or providing a recommendation. In addition, this Site shall not constitute a solicitation or offer to buy or sell any Posted Item. The purchase of a Posted Item on the Site involves risk, and Users should be experienced in the trade and hereby assume all risk associated with buying and/or selling Posted Items. Users will be allowed to purchase Posted Items pursuant to the terms contained herein. The items listed and/or purchased are not guaranteed by TKM or by the other “User” who is selling the item (each a “Seller” and collectively "Sellers"). TKM is not involved in the actual transactions between Users and Sellers, and therefore has no control over the quality, safety or legality of the Posted Item advertised, the truth or accuracy of the listings, the ability or authority of Sellers to sell the Posted Item, or the ability or authority of Users to buy the Posted Item. We cannot ensure that a buyer or seller will actually complete a transaction. Consequently, TKM does not transfer legal ownership of items from the seller to the buyer, and nothing in this Agreement shall modify the governing provisions of Section 2-401(2) of the Uniform Commercial Code which provides that the seller transfers legal ownership of an item upon physical delivery of the item to the buyer.
2. Release.
TKM does not own, have title to, or possess any Posted Items. Due to the fact that TKM is a venue and is not involved in dealings between Users, you hereby agree to release TKM, its shareholders, directors, officers, employees and agents, affiliates, successor and assigns from and against any and all claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with any dispute arising from or related to the Site. All Users are solely responsible for any injuries or damages, of any nature, suffered by the User, its employees, agents, directors, officers, and third parties by virtue of the use, operation, or maintenance of any Posted Item purchased using the Site. If you are a California resident, you waive any statutory provision which provides that 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. Registration.
No user will be permitted to use or enter a bid to purchase an item listed for sale on the Site without first registering. Only individuals who are authorized to form legally binding contracts on behalf of a business are eligible to register. As used in this Agreement, the term “you” refers to both the individual user and the business that the user represents. Upon your acceptance of this Agreement, your completed registration form shall be submitted to TKM. TKM reserves the right to disapprove, suspend or terminate your use of the Site for any reason. Without limiting the foregoing, no one under the age of 18 may participate in the Site.
4. User Information.
User will provide information to TKM during the registration process and to TKM and other Users during the course of the use of the Site (the "User Information"). User represents and warrants: (1) that all User Information is accurate and complete at the time of registration, and (2) that User information will be continuously updated such that the User Information shall at all times be current, accurate, and complete. Subject to the terms herein, User grants to TKM a non-exclusive, worldwide, perpetual, royalty-free and irrevocable license to use the User Information, including any associated copyrights, trademarks, or other intellectual property or proprietary rights User may have in the User information, for any purposes in connection with the Site. By entering into this Agreement, you authorize us to perform an investigation to determine your qualifications as a Licensed Dealer. This investigation may include contacting third parties to verify information you have provided to us. In addition, we may provide any information you provide to us to Sellers using this Site. Sellers are also Users of the Site, and are limited by this Agreement.
5. Password and Security.
User is solely responsible for maintaining the confidentiality of its User name and User password. User may not share your User name or your password with any third parties or use such ID or password for any unauthorized purposes. User is obligated to complete those transactions that occur using its User name and User password, whether such transactions are authorized or unauthorized. User agrees to notify TKM immediately of any unauthorized use of any login ID or password or any other breach of security regarding the Site. Failure to follow the rules outlined in this section could result in your immediate termination from the Site.
6. Modifications to Site.
TKM reserves the right, for any reason, in its sole discretion, to terminate, change or suspend any aspect of the Site, including but not limited to content, features or hours of availability. TKM may impose limits on certain features of the Site or restrict your access to part or the entire Site without notice or penalty.
7. Marketing.
TKM is free to market the Site or any site owned by TKM.com, Inc. to you using the user information you provide. Providing false user information is a reason for immediate termination from the Site. You are responsible for making any applicable updates to your profile on the Site. If you need assistance making updates to the Site call technical support at 1-402-697-8777. By using the Site, you consent to an "Established Business Relationship" ("EBR") with TKM, as that term is defined in the regulatory framework of the national "Do Not Call" and "Do Not Fax" legislation, and any subsequent legislation relating to electronic mail. By signing this Agreement you agree TKM may send you facsimile messages and e-mail messages concerning new upcoming features and new programs or sites and the Posted Item(s) listed on the Site and survey contacts from TKM or any of its affiliates.
8. Grant of License.
Subject to the terms and conditions of this Agreement and any other rules or procedures established by TKM from time to time, TKM hereby grants to you a revocable, nonexclusive, nontransferable license, without the right to sublicense, to use this Site solely for your internal business purpose of facilitating the sale or purchase of Assets. Except as expressly set forth herein, you may not modify, copy, distribute, transmit, reproduce, publish, license, transfer, sell, mirror, frame, or otherwise use any information or content obtained from or through the Site. You represent and warrant to TKM that you will not use this Site for any purpose that is unlawful or prohibited by this agreement. You are responsible for providing, at your expense, all communications lines, hardware, software, services and other materials and technology necessary for you to access the Site. TKM shall have no responsibility for any failure of such items or any failure or limitation of the Internet or other computer hardware or software.
9. User Conduct.
User is solely responsible for all conduct and transmissions that take place under its User name and password. Without limiting the foregoing, User represents, warrants and covenants that its use of the Site shall not:
(a) violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. Without limiting the foregoing, User represents, warrants and covenants that it will not sell or buy any assets that may not be lawfully offered for sale or purchase in the United States and that User will not export from the United States any asset in violation of U.S. law. Certain items offered for sale at an auction may constitute "Restricted Technology." Under federal law, such items may not be shipped outside of the United States. TKM makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute Restricted Technology;
(b) interfere with or disrupt computer networks connected to the Site;
(c) impersonate any other person or entity, or make any misrepresentation as to User's employment by or affiliation with any other person or entity;
(d) forge headers or in any manner manipulate identifiers in order to disguise the origin of any User Information;
(e) interfere with or disrupt the use of the Site by any other User, nor "stalk", threaten, or in any manner harass another User;
(f) upload, post, transmit, publish, or distribute any material or information which contains a computer virus, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Site or that of other computer systems;
(g) use the Site in such a manner as to gain unauthorized entry or access to the computer systems of others;
(h) upload, post, transmit, publish or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law;
(i) upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable; or
(j) reproduce, copy, modify, sell, distribute or otherwise exploit for any commercial purposes the Site, or any component thereof (including, but not limited to any materials or information accessible through the Site).
10.1 Buyer's Default.
Bidders who fail to purchase a Posted Item for any reason other than for an inaccurate description of such Posted Item shall be deemed to have engaged in a "Default", if a bidder for an auction fails to fund the purchase price and other fees, this defaulting bidder will be assessed a penalty of $2,000 per unit. TKM reserves the right to use a collection agency to collect any outstanding penalties. Also this buyer shall not be permitted to bid on or purchase other Posted Items on the Site except as follows:
(i) In the sole discretion of TKM, a single Default by a User will result in that User being prohibited from the Site. If the defaulting User provides TKM with a letter of explanation and a letter of credit from a bank or other qualified lending institution, which letter expresses User's ability to pay, the User may, in the sole discretion of TKM, be allowed to use the Site and the letter shall be used to determine User's bid limit.
(ii) In the sole discretion of TKM, a second Default by a User will result in your access and privileges to the Site being permanently revoked. For a first or second Default, Your Winning Bid Deposit attributable to any transaction in which you shall have committed a Default shall not be refunded to you, and shall be retained by the Seller as liquidated damages.
10.2 Postponement and Cancellation.
TKM reserves the right to postpone or cancel any auction in its own discretion, without notice. TKM will have no liability to prospective Buyers or Sellers as a result of any withdrawal, cancellation or postponement of any auction.
10.3 Claims
No claims will be allowed after the 5th business day from auction close date.
11. Freight and Transportation.
The Buyer is responsible for all freight, shipping and other costs related to transporting the Posted Item from the Posted Item location, including but not limited to any costs associated with certificates and/or permits to move the Posted Item within or across state, province and/or country borders. Buyers may arrange transportation of Posted Item on the TKM web site through a third party, but TKM will not be liable for any acts or omissions arising from such third party transportation and claims no responsibility for the actions of any transportation provider. Buyers may not transport the Posted Item until full payment has been received and a release has been issued to Buyer.
12. Where Description Inaccurate.
All disputes related to inaccurate descriptions shall be resolved among the Users who were the seller and buyer of the Posted Item.
13. No Recommendations or Endorsement.
TKM does not sell or take title to the Assets referenced on this Site and does not recommend or endorse the accuracy or reliability of any Listing, Offers or other information, content, or advertisements contained on, distributed through, linked, downloaded, or otherwise accessed from this Site, nor the quality of any of the products, information, or materials displayed, purchased, obtained or otherwise available through this Site.
14. Fees.
TKM fees are available on the standard fee schedule of the site and are herby incorporated by reference. TKM may change its fees, payments and commissions from time to time, but no such change shall apply retroactively to any Posted Item already listed for an Auction.
15. Liability for Posted Item(s).
The Posted Item(s) shall be and remain at the risk of the Seller (and not TKM) until the Posted Item(s) is removed from the Posted Item(s) location by the Buyer or the Buyer's designated transportation provider. The Posted Item(s) shall be and remain at the risk of the Buyer and/or the Buyer's designated transportation provider (and not TKM) while in transport. The Posted Item(s) shall be and remain at the risk of the Buyer once delivered to the designated location.
16. Sales and Use Tax.
You acknowledge and agree that TKM does not take any responsibility to calculate, report or remit sales or use taxes which may be assessed, due or owing to the taxing authorities of any jurisdiction for transactions that arise in connection with your use of the Site. You further acknowledge and agree that you are solely responsible for the calculation, collection and remittance of any applicable taxes, which may be incurred or assessed, in connection with your use of the Site. Each Buyer shall indemnify TKM against any tax, cost or expense relating to the failure of the Buyer to satisfy any sales or use tax liability related to a transaction. Each Seller shall indemnify TKM against any tax, cost or expense relating to the failure of the Seller to satisfy any sales or use tax liability related to a transaction within their jurisdiction.
17. Payment and Payment Schedule.
Full payment from the winning bidder in the amount of the auction closing price and Buyer's fee must post to a secure payment account designated by TKM within two (2) business days after the close of the Auction for the Posted Item. Buyers may send payments via wire transfer or certified bank check.
18. Remittance of Proceeds.
TKM shall remit the total purchase price less any Seller's Fees to Seller for such Posted Item the same day TKM receives funds as long as TKM receives said funds by 2pm central time, otherwise said funds will be distributed the following business day. Payments will be made by electronic wire transfer.
19. Ownership Certification.
Sellers are responsible for providing lien-free Posted Item(s) to TKM marketplace.
20. Removal Penalty Prior to Auction Close.
If, for any reason, the Seller withdraws a Posted Item the Seller agrees to pay TKM all fees related to said Posted Item.
21. Outage Policy.
TKM may occasionally experience service failures termed "outages" during which bidders cannot place bids on Posted Items or effectively locate items on the Site. In an effort to compensate for this inconvenience, we offer the following in the event that you cannot bid or buy (specifically, View Item pages are inaccessible and/or bidding functionality is not available) as a result of unscheduled system downtime for any noticeable and verifiable amount of time, as determined by TKM, in its sole discretion, at the physical location where the Site is hosted. In such an event, TKM offers the following outage policy with respect to such inconveniences:
Posted Items scheduled to terminate (end their listing/display) during an outage (or scheduled to terminate one hour after any outage) shall be de-listed and may be re-listed at a later date. De-listing is the termination of all bidding by removing the content describing or displaying the Posted Item from the Site. Posted Items not scheduled to terminate during a hard outage or one hour after any outage shall automatically be extended for 24 hours. When listings are extended following an outage of one or more hours, bidding on these listings may be impossible while the end times are being reset. After the listing end times have been reset, TKM will update search and listing indexes. Until these index updates are completed, these listings will be unavailable via search or listings. This re-indexing can take a few hours. During an outage updates will be given to each bidder on an effected Posted Item. TKM offers the Outage Policy as a courtesy.
22. Third Party Links.
Where TKM provides links to third party Internet sites, no representations or endorsements are made in connection with such sites. TKM is not liable for any damages or injury arising from use of such sites.
23. Intellectual Property Ownership.
User recognizes that the entire content of the Site is TKM' copyrighted and trademarked intellectual property. User shall not copy or distribute any copyrighted or trademarked material presented on the Site. Title to, ownership of and all proprietary rights are reserved to and will at all times remain the exclusive proprietary property of TKM.
24. Access and Interference.
You agree that you will not use any automatic device or manual process to monitor or copy TKM web pages or the content contained herein. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on TKM infrastructure.
25. Disclaimer.
THE SITE, INCLUDING ALL ASSETS LISTED FOR SALE, CONTENT, FUNCTIONS, MATERIALS, SERVICES AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, ARE PROVIDED ON AN "AS IS", "WHERE IS", "AS AVAILABLE" BASIS "WITH ALL FAULTS" AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TKM DOES NOT WARRANT THAT THE FUNCTIONS, FEATURES OR CONTENT CONTAINED MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY SOFTWARE, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH THE SITE, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. TKM MAKES NO WARRANTY THAT THE SITE WILL MEET USERS' REQUIREMENTS, AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT ANY ASSET FOR SALE THROUGH THE SITE WILL BE SOLD. IF USER IS DISSATISFIED WITH THE SITE, USER'S SOLE REMEDY IS TO DISCONTINUE USING THE SITE. TKM MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM TKM OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THE AGREEMENT. TKM EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY POSTED ITEM SOLD ON OR THROUGH THE SITE, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANONTHER USER.
26. Limitation of Liability.
IN NO EVENT SHALL TKM, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, OR ANY SELLER BE LIABLE FOR DAMAGES OF ANY KIND ARISING FROM (A) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE POSTED ITEM OR (B) DEFECTS IN SUCH POSTED ITEM ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY. IN ADDITION, IN NO EVENT SHALL TKM, OUR SUBSIDIARIES, OFFICES, DIRECTOR, EMPLOYEES, OR ANY SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO OR ARISING FROM THE USE OF, OR THE INABILITY TO USE THE SITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF TKM OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE TOTAL LIABILITY OF TKM TO A USER FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THIS AGREEMENT OR THE USE OF THE SITE EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS ($100.00).
27. Indemnification.
User will defend, indemnify and hold harmless TKM, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, partners, successors and assigns (collectively, "Indemnified Parties"), from and against any claim, loss, damage, liabilities, judgments, fees and expenses related thereto (including, without limitation, reasonable attorney's fees) arising from or related to: (1) the use of the Site by User, (2) any breach or violation of these Terms and Conditions by User, (3) any breach of any of User's representations, warranties and covenants.
28. Relationship of the Parties.
Buyer, Seller, User and TKM are independent contractors. No joint venture, partnership, employment, or agency relationship exists between you and TKM as a result of this Agreement or your use of this Site. You acknowledge and agree that TKM is only an intermediary that only relays information about certain Posted Items to interested parties. You agree that you will assume all responsibility in connection with choosing to sell or purchase and Posted Item, whether or not you posted or obtained information about such a Posted Item through this Site. TKM assumes no responsibility or liability for any claims that may result directly or indirectly from the Buyer/Seller relationship, including, but not limited to, tort, breach of contract or breach of warranty claims. YOU HEREBY RELEASE TKM AND ITS EMPLOYEES, AGENTS, OFFICERS, DIRECTORS AND AFFILIATES FROM ANY AND ALL CLAIMS OR ACTIONS RELATED TO OR ARISING OUT OF A DISPUTE BETWEEN YOU AND ANY OTHER USER OF THE SITE.
29. Termination.
TKM may discontinue, modify or change any presently available service or content on the Site in whole or in part, at anytime for any reason, without prior notice. Either you or TKM may limit or terminate your use of the Site with or without cause at any time and effective immediately. TKM shall not be liable to you or any third party for termination of your, or any third party's, use of the Site. You acknowledge and agree that any termination or limit on your use of the Site may be effected without prior notice, and you acknowledge and agree that TKM may immediately remove, delete or discard any information or content that you have posted.
30. Survival.
If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. The failure by either you or TKM to exercise or enforce any rights or provisions of this Agreement shall not constitute a waiver of such right or provision. You agree that any cause of action arising out of or related to the Site or this Agreement must commence within six (6) months after the cause of action arose; otherwise, such cause of action is permanently barred. This Agreement comprises the entire agreement between you and TKM and supersedes all prior agreements between the parties, regarding the subject matter contained herein. All provisions in this Agreement regarding representations and warranties, indemnification, disclaimers and limitations on liability shall survive any termination of this Agreement. The descriptive headings of the several Sections of this Agreement are inserted for convenience only and do not constitute a part of this Agreement. Use of this Site constitutes complete acceptance of this User Agreement.
31. Choice of Law; Dispute Resolution.
This Agreement shall be governed by and in accordance with the laws of the State of Nebraska, without regard to conflicts of laws provisions. Any controversy involving TKM arising from or in any way related to this Agreement or your use of the Site shall be heard in the appropriate Nebraska State or Federal Court and you irrevocably consent to the jurisdiction of such courts and acknowledge that venue is proper in Nebraska.
32. Entire Agreement.
These terms set out the entire understanding between TKM and customers, users, Sellers, and bidders with respect to the use of this Site. No other terms, whether express or implied, shall apply unless specifically incorporated by reference herein.
Revision Date: March 1, 2008
|