USER AGREEMENT
(Buypassdealer.com)
THE FOLLOWING DESCRIBES THE TERMS ON WHICH Buypassdealer.com OFFERS YOU ACCESS TO OUR UNIQUE SERVICES.
WELCOME
TO the User Agreement (hereinafter referred to as “the Agreement” or “User Agreement”)
for Buypassdealer.com. If you reside
outside of the
You must read, agree with and accept all of the terms and conditions contained in this User Agreement. This User Agreement contains further terms and conditions that apply to you as a Buypassdealer.com user. This Agreement may not be otherwise amended except in writing and signed by you and Buypassdealer.com. We may amend this Agreement at any time by posting the amended terms on the Site. Except as stated below, all amended terms shall automatically be effective 30 (THIRTY) days after they are initially posted on the Site. All amended terms will be outlined and highlighted in distinctive lettering during this period of time.
1. Listing
and Selling
1.1 Listing Description: Seller agrees to a listing of the machinery/equipment to be sold on this Website for a minimum period of 30 (THIRTY) days. The Buypassdealer.com Website shall be the sole forum for the advertising/presentation of their machinery/equipment for sale to prospective Purchasers via the internet.
Seller shall be allowed to remove from the Website its listed machinery for sale after 30 (THIRTY) days. However, Seller is required to fill out a questionnaire prior to removing machinery from Website. The questionnaire shall be filled out in full as a prerequisite to de-listing said equipment from our Website. (See “Exhibit A”)
1.2 Fraud: Without limiting any other remedies, Buypassdealer.com may suspend or terminate your account if we suspect that you (by conviction, settlement, insurance or escrow investigation or otherwise) have engaged in fraudulent activity in connection with the Site.
1.3 Manipulation: Sellers may reduce the price of any equipment listed on the Website but may not interfere with other user’s listings or transactions. Seller shall allow 24 (TWENTY FOUR) hour advance notice via e-mail to Buypassdealer.com of the reduced price.
1.4 Title: Seller must be legally able to sell the machinery/equipment it lists for sale on our Website. At point of sale, Seller represents that title to equipment/machinery sold to shall be free and clear of all liens and encumbrances whatsoever and at Purchaser’s request provide a UCC search demonstrating clear title. In the event that Seller is using any of Purchaser’s transaction monies to pay off monies owed to third parties, financial institutions, and any and all lien holders, documentation shall be provided as provided for on this Website demonstrating payment in full of any and all of the above encumbrances. It is Seller’s AND Buyer’s sole responsibility to insure clear title. Buypassdealer.com makes no claims, representations and cannot guarantee condition of title to either party of the property being conveyed.
1.5 Price
Reduction Fee: The Fee due to Buypassdealer.com
(as outlined in Paragraph 3) shall not change and shall be based on the FINAL
SELLING PRICE of the equipment.
2. Restricted Activities
2.1 Information: Your information (or any items listed) and your activities on the Site shall not be (a) false, inaccurate or misleading; (b) be fraudulent or involve the sale of counterfeit or stolen items; (c) infringe any third party’s copyright, patent, trademark, trade secret or other propriety rights or rights of publicity or privacy; (d) violate any law, statute, federal, state and/or local ordinance or regulation.
2.2 License: So that we are not violating any rights you might have in that information, you agree to grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to exercise the copyright, publicity, and database rights (but no other rights) you have in Your Information, in any media now known, or not currently known, with respect to Your Information. Buypassdealer.com will only use Your Information in accordance with our Privacy Policy.
3. Fees and Services
3.1: At the time of consummation of the transaction between Seller and Buyer, Fees for the acquisition by Purchaser of used machine tools and accessories through our site will be immediately due and owing. When Purchaser agrees to purchase said items listed for sale, Purchaser will be charged by Buypassdealer.com a Fee. The Fee to be charged and paid for exclusively by Buyer to Buypassdealer.com is 5% of the FINAL SELLING PRICE.
Seller shall be able to list all machine tool accessories it desires on our Website. In the event of the sale of any machinery tool accessories, NO listing fee or selling fee is charged to the Seller, and a 5% fee will be charged to the Buyer for all machine tool accessories at the FINAL SELLING PRICE.
3.2: Seller further agrees that in the event that after posting its machinery on our Website, if any machinery is pulled off our Website for any reason whatsoever, and the machinery is sold to any visitor of our Website or any affiliated agency or affiliated dealer of said prospective Buyer, that Seller agrees to pay a 20% PENALTY FEE to Buypassdealer.com immediately upon notification.
3.3: Additionally, Seller and Buyer agree that if either consummate a transaction as the direct or indirect use of our Website, while attempting to forego payment related to Fee referenced above, a 20% PENALTY of listing price shall be charged by Buypassdealer.com to both Seller and Buyer. Seller and Buyer agree to pay all attorneys’ Fees and Court costs and any other costs associated with the collection of the Fees and penalties due. Said Fees and penalties shall be paid from Seller’s credit card previously posted to gain access to our Website.
3.4: In the event that Seller disputes said Fees and Penalties, it shall do so in writing within said 10-day time frame. In the event that Buypassdealer.com disagrees, it shall within 10 days thereafter provide written notification of said rejection to Seller. In said event, parties agree to binding arbitration as provided for in Paragraph 13 below.
3.5: The Buyer has multiple choices for payment of their commissions as outlined above as follows:
(a) Credit card/Master Card, Visa, American Express, Discover Card; and
(b) Wire transfer to JP Morgan Chase Bank.
3.6: Said payments are due to Buypassdealer.com and shall be paid at the time that the parties complete the transaction and are bound by the Invoice Page for Buyer and the Finalization of Transaction for Seller Page, samples of which are attached to this Agreement.
3.7: Buypassdealer.com, at its sole option, shall acquire lien rights in an amount equal to Buyer’s fee under the terms of this Agreement. Bypassdealer.com shall release its lien within three (3) days of receipt of payment in full from Buyer and shall further provide appropriate Release of Lien to Buyer.
3.9: Both Seller and Buyer further agree that all transactions are FINAL. There shall be no refunds related to any Fees whatsoever paid to Buypassdealer.com by either Seller or Buyer.
3.10: Any and all taxes related to the transaction between the Seller and Buyer are the sole responsibility of Seller and/or Buyer as appropriate and Buypassdealer.com shall not be legally responsible for any and all federal, state and/or local sales tax, user tax, transfer tax and/or duties, whatsoever.
4. Buypassdealer.com
is a Venue
4.1: Buypassdealer.com is NOT an Auctioneer or a BIDDING RELATED Website. We are not involved in the actual transaction between Buyers and Sellers. As a result, we have no control over the quality, safety or legality of the machinery/equipment advertised, the truth or accuracy of the listing, the ability of Sellers to sell machinery/equipment or the ability of Buyers to pay for machinery/equipment. We cannot ensure that the Buyer or Seller will actually complete a transaction. Consequently, we do not transfer legal ownership of machinery/equipment from the Seller to the Buyer, and nothing in this Agreement shall modify the governing provisions of Uniform Commercial Code § 2-401(2) under which legal ownership of machinery/equipment is transferred upon physical delivery of the machinery/equipment to Buyer by the Seller.
4.2 Release: Because we provide venue related services only, in the event that you have a dispute with one or more users, you release Buypassdealer.com and our officers, directors, agents, subsidiaries, joint ventures and employees from 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 such disputes.
4.3 Information Control: Buypassdealer.com does not control the information provided by other users that is made available through our system. In fact, both Seller and Buyer acknowledge that all machinery is being bought and sold “as is” and “where is” condition. Additionally, there are no warranties given whatsoever, by Buypassdealer.com. Both Seller and Purchaser are encouraged to make arrangements for inspection of equipment to be sold and expressly hold Buypassdealer.com harmless from the failure to adequately, properly or diligently inspect the machinery/equipment. Buypassdealer.com shall not be responsible or liable to either Seller or Purchaser for any loss or damage whatsoever resulting from the transaction between the parties including but not limited to the inspection, sale, purchase, shipment, and delivery of the equipment/machinery.
5. Breach
5.1: Without limiting other remedies, Buypassdealer.com may limit your activity, immediately remove your machinery/equipment listing, issue a warning, temporarily suspend or indefinitely suspend or terminate your membership if you breach this Agreement. Further, in the event Buypassdealer.com suffers and/or sustains any injury and/or damages whatsoever from your breach of these terms and conditions, the breaching party agrees to pay all costs of enforcement including but not limited to litigation costs and attorneys’ Fees.
6. No
Warranties
6.1: Buypassdealer.com, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES AND OUR SUPPLIERS PROVIDE OUR WEBSITE AND SERVICES “AS IS” AND WITHOUT ANY WARRANTY CONDITION, EXPRESS, IMPLIED OR STATUTORY. WE, OUR SUBSIDIARIES, OFFICERS, DIRECTORS, AND EMPLOYEES SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE, 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. This warranty gives you specific legal rights and you may also have other legal rights that vary from state to state.
6.2: FURTHER, BOTH SELLER AND BUYER AGREE THAT BUYPASSDEALER.COM IS NOT ACTING AS AN AGENT AND/OR BROKER FOR EITHER PARTY, AND NO AGENCY RELATIONSHIP EXISTS WHATSOEVER. ADDITIONALLY, BOTH BUYER AND SELLER AGREE THAT BUYPASSDEALER.COM IS NOT RESPONSIBLE FOR THE ACCURACY AND/OR AUTHENTICITY OF THE INFORMATION EXCHANGED BETWEEN SELLER AND BUYER, WHATSOEVER, ON ITS WEBSITE. SELLER AND BUYER ARE SOLELY RESPONSIBLE FOR THEIR OWN DUE DILIGENCE RELATIVE TO ALL INFORMATION PROVIDED ON OUR WEBSITE.
7. Seller/ Buyer Representations
7.1 Seller’s Representations: Seller represents that it has or can provide at the time of transaction, clear title to the equipment/machinery that is being sold on this Website to Purchaser free and clear from any/and all liens (except any liens related to Buypassdealer.com) and will provide proof of ownership to Purchaser of said equipment/machinery as part of its legal responsibilities to complete this transaction. Seller further represents that he shall only conduct business and contact Buyer and complete the transaction on Buypassdealer.com’s secure Website.
Seller further represents that it has made no representations whatsoever as to the condition, quality, and/or quantity of the used machinery sold on our Website.
7.2 Buyer’s Representations: Buyer represents that prior to completing the transaction with Seller, that it has conducted a diligent title search and agrees to be solely responsible for marketable title to the equipment/machinery acquired from Seller. Buyer represents that he shall only conduct business and contact Seller and complete the transaction on Buypassdealer.com’s secure website.
7.3 Joint Representations: Both Seller and Buyer agree that the above representations shall be prominently displayed on their Invoice Page for Buyer and Finalization of Transaction for Seller Page to each other.
8.
Liability Limit
8.1: IN NO EVENT SHALL WE, OR SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES OR OUR SUPPLIERS BE LIABLE FOR LOST PROFITS OR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF OR IN CONNECTION WITH OUR SITE, OUR SERVICES OR THIS AGREEMENT HOWEVER ARISING, INCLUDING NEGLIGENCE.
8.2: FURTHER, SELLER AND BUYER AGREE THAT THEY ARE SOLELY RESPONSIBLE FOR ANY AND ALL DELIVERY CHARGES, PREP CHARGES AND BANK CHARGES RELATED TO ANY AND ALL TRANSACTIONS ON OUR WEBSITE.
9. Indemnity
9.1: Both Seller and Buyer agree to indemnify and
hold us and (as applicable) our parent, subsidiaries, affiliates, officers,
directors, agents, and employees, harmless from any claim or demand, including
reasonable attorneys’ Fees, made by any third party due to or arising out of
your breach of this Agreement or the documents it incorporates by reference,
including but not limited to the attached Invoice Page for Buyer and
Finalization of Transaction for Seller Page, or your violation of any law the
rights of a third party. Additionally,
in addition to other obligations of Purchaser to indemnify as contained herein,
Purchaser agrees to indemnify, hold harmless and defend Buypassdealer.com from
and against any and all claims liabilities or losses arising out of any use
whatsoever of the goods, including but not limited to: (1) claims involving or
alleging improper or negligent design, maintenance construction,
re-construction, repair, alteration or modification of the Goods; (2) the failure of Purchaser, Purchaser’s
officers, agents or employees to comply with federal, state or local laws or
regulations applicable to the use of such Goods, including but not limited to,
the 1970 Occupational Safety and Health Act, as amended and the fair Labor
Standards Act of 1938, as amended; (3) claims involving allegations of failure,
negligent or otherwise, on the part of any person or entity to equip said Goods
with safety devices as required by federal, state, or local government
statutes, rules or regulations, or as is customary in trade; (4) claims
involving or alleging breach of any expressed or implied warranties, including
but not limited to the implied warranty of merchantability, fitness for
purpose, or safety of the Goods; (5)
liability, loss or damages, claims, demands, costs or judgments based
upon or resulting from any legal theory of strict liability or liability
without fault applied to the Purchaser or to Buypassdealer.com or to the original manufacturer of the Goods or
to any other person, firm or entity; (6) claims relating to representations,
specifications, documentation or information provided to Purchaser by the Prior
Owner or obtained by Buypassdealer.com from the Prior Owner and provided to Purchaser; and (7) any and all federal, state and or
local taxes, including but not limited to sales tax, user tax, transfer tax
and/or duties, whatsoever.
10. Legal Compliance
10.1: You shall comply with all applicable domestic and international laws, statutes, ordinances, regulations regarding your use of our service, listing, purchase or solicitation of offers to purchase, and sale of items.
11. No Agency
11.1: You and Buypassdealer.com are separate legal entities, and no agency, dealer, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this Agreement.
12.
Notices
12.1: Except as explicitly stated otherwise, any
notices to Buypassdealer.com shall be given by postal mail to Buypassdealer.com,
Attention: Legal Department P.O. Box
247, Gilberts,
13. Binding
Arbitration
13.1: For any claim by any party to this Agreement, all parties hereto elect to resolve the dispute through binding arbitration conducted by telephone, and based solely upon written submission where no in-person appearance is required. In such cases, the arbitration shall be administered by the American Arbitration Association, in accordance with their applicable rules. Any judgment on the award rendered by the arbitrator may be entered by any Court having jurisdiction thereof. Should either party file an Action contrary to this section, the other party may recover attorneys’ Fees and costs providing the party seeking the award has notified the other party in writing of the improperly filed claim.
13.2 Court: Alternatively,
at the sole option of Buypassdealer.com any Claim may be adjudicated by a court
of competent jurisdiction in
14.
Additional Terms
14.1: The following policies are incorporated into this Agreement by reference and provide additional terms and conditions related to specific services offered on the Site:
A. Seller’s attempt in any manner to market and/or advertise its machinery
and/or
accessories outside of Buypassdealer.com’s Website is never permitted, and is
expressly prohibited. The Seller’s use
of Buyer contact information obtained from Buypassdealer.com’s Website for
transactions excluding Buypassdealer.com, and/or Seller providing information
to Buyer allowing him to contact Seller directly is expressly prohibited. Further, Seller cannot refer to or promote Seller’s
individual Website whatsoever.
15.
General Provisions
15.1: This Agreement shall be governed in all
respects by the laws of the State of
15.2: If any provision of the Agreement is held to be invalid or unenforceable, such provision shall be struck and the remaining provision shall be enforced.
15.3: Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches.
15.4: This Agreement sets forth the entire understanding and Agreement between us with respect to the subject matter hereof.
15.5: There are no Agreements between Buypassdealer.com and Seller with respect to the goods herein except those specifically set forth and made part of this Agreement.
15.6: This Agreement may be modified, cancelled or rescinded only by the written Agreement of both parties executed by their duly authorized agents.
15.7: This Agreement may not be assigned without the express written consent of all of the parties hereto. Any attempt of assignment of rights or delegation of duties shall be void.
16. User
Agreement Acceptance
16.1: The parties hereto agree that by
electronically checking the box they consent to be bound by the terms and
conditions of this User Agreement and further agree that their e-mail indicates
a fully authorized signature on behalf of either party.
EXHIBIT “A”
1. What is your reason for de-listing the machinery from our Website?
2. Has the machinery on our Website been inspected by any prospective Buyers?
If so, please list name and address of Buyers.
3. Has the machinery listed on our Website been inspected by a prospective Purchaser other than from our Website?
4. Has any new dealer offered to take your machinery listed on our Website in on trade? If so, please list name and address of dealer.
5. Has any used dealer offered to purchase the machinery you have listed on our Website? If so, please provide the name and address of this dealer.
6. Is the machinery you listed on our Website still at the original location, or has it been moved during the time it has been listed on our Website? If so, please provide the new location of the machinery.
7. Have any “riggers” picked up and/or moved your machinery listed on our Website at any third parties' request? If so, please provide the “riggers” name, address and delivery destination.