eSurplus Network, LLC - Terms of Use
These Terms of Use, as amended from time to time explain the contractual agreement between you ("you" or "user") and eSurplus Network, LLC ("us", "we" or "eSurplus Network") regarding your use of our website currently located at esurplusnetwork.com and any other domain names we use from time to time for our website (collectively the "website") and our facilitation of your activities and transactions conducted through the website or through other interaction with us (the "Services"). All users of the Web Site and our Services are required to accept and comply with these Terms of Use. The Web Site is an electronic marketplace that will connect businesses, and individuals that provide and/or own ("Sellers") services and new or used surplus material and equipment ("Items") to potential purchasers ("Buyers") of such Items. Non- compliance with these Terms of Use may result in the termination of your registration with, and your right to use the Services or the Web Site.
By registering to use this Web Site, you agree that you have read, understand and accept all of the terms and conditions of these Terms of Use.
A. Amendment of Terms.
We may amend these Terms of Use at any time without notice, by posting such changes on the Web Site. Your continued use of the Web Site and the Services after such changes are posted will constitute your agreement to such changed Terms of Use. We may also add, delete or modify the Services at our discretion, at any time.
B. Eligibility and Participation.
The Services are available only to individuals or entities that can form legally binding contracts under applicable law. In the case of entities, the individual that reads and determines whether to accept these Terms of Use hereby represents that he or she is an authorized officer or agent acting in such capacity on behalf of the business he or she represents, and references to the term "you" or "user" in these Terms of Use refer both to the individual user and the business that the user represents. eSurplus Network, LLC may refuse the Services to anyone or any entity at any time, in its sole discretion.
Without limitation to any other remedies,
eSurplus Network, LLC may (i) exclude any user from participating in
any transaction or potential transaction facilitated by or through the
Web Site for any reason and (ii) block any registration if the user
has breached or threatens to breach these Terms of Use or engages in
any behavior which eSurplus Network, LLC in its sole discretion regards
as likely to have an adverse effect on Web Site or the reputation of
eSurplus Network, LLC.
C. Registration, User ID and Password.
Users of the Web Site are not required to register however some services are not available without registration. After the registration is complete, eSurplus Network, LLC will send you an email containing an activation link which is required to activate your account. Once you have activated your account, you will be able to log in to your account. You may use each user ID and password individually or on behalf of the business you represent, as determined during the registration process. You will be responsible for the confidentiality and use of your user ID and password, and you will be held solely responsible for all communications made through the Web Site using your user ID and password. You must immediately notify eSurplus Network, LLC if you become aware of any loss or theft of your password or if you detect any unauthorized use of your password, user ID, or of the Web Site. eSurplus Network, LLC reserves the right to modify your user ID and/or password at any time and from time to time for security or other purposes as deemed necessary or appropriate. By registering, you consent to have eSurplus Network, LLC send you critical account information by fax, email, or standard mail.
By submitting any information during registration, the user represents and warrants that all such information is true and accurate, is not fraudulent, does not violate any law, statute, ordinance or regulation, is not defamatory or libelous, and does not contain any information or data that is intended to damage or interfere with any system, data, or information. eSurplus Network, LLC reserves the right to refuse registration and may revoke any Seller's privileges to use the Web Site and/or the Service at any time for any reason.
D. Transaction Process
The actual purchase and sale transactions between Buyers and Sellers do not occur on the Web Site, and eSurplus Network, LLC is not a party to those transactions. The Web Site enables Buyers and Sellers to buy and sell Items directly from each other, and each entity must facilitate the final transaction including arrangements for packaging, shipping, delivery, and pick up. Each Seller is obligated to sell Items based on the posted/Advertised price. Sellers will have several tiered price structures to select from when listing items for sale. Prices are determined based on the value of the advertised Item(s) and the preferred marketing choice. Once the listing fee has been processed and collected, the Item(s) will be advertised on the Web Site for the specified duration.
Any individual item advertised with a value greater than $200,000.00 will be listed on the Web Site free for an agreed upon duration from the listing date. The seller agrees to enter into a separate non-exclusive agreement with eSurplus Network, LLC for a negotiated commission. These items will generate a unique identifier during the registration process.
E. Release.
Because we are not involved in the actual
transaction between Buyers and Sellers, if you have a dispute with one
or more Sellers, you release eSurplus Network, LLC, 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, arising out of or in any
way connected with such disputes. If you are a California resident,
you waive California Civil Code section 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."
F. Information Relating to Items.
Correct documentation, specification, and other information relating to Items are the exclusive responsibility of the Seller. Although eSurplus Network, LLC encourages Sellers to include as much Information relating to Items as possible, such Information is not verified or substantiated by eSurplus Network, LLC, and we cannot be held responsible in any way for any inaccuracies or omissions in such Information, regardless of its source. Unless the Seller expressly discloses otherwise, Seller will be deemed to represent and warrant to Buyer that Seller has good and marketable title to any Item advertised on the Web Site, free and clear of any lien or other encumbrance (other than statutory liens or other encumbrances arising in connection with Seller's ordinary course of business securing payments not yet due and payable and which will not have a material adverse effect on the Seller's ability to complete the transaction on the agreed-upon terms).
G. Item Labeling.
Sellers should provide detailed information
related to the Item advertised on the Web Site, including size, color,
serial and model numbers, and manufacturer name. Sellers warrant that
such Information is accurate. Sellers are encouraged to provide all
applicable details. Advertised items that can be sold individually should
also be identified as being sold "per item", or otherwise so that
each potential Buyer can properly purchase only those items wanted.
H. User Information.
"Information" includes any information you provide to eSurplus Network, LLC or other users during the registration or listing process, and any other information you provide to or through the Web Site. eSurplus Network, LLC accepts the Information supplied by various Sellers and Buyers, but does not assume responsibility for testing or verifying the accuracy of such Information, and does not endorse or approve of any product, service or other Item, of any Seller or Buyer. With respect to the Information you supply, you agree that:
1. You are solely responsible for notifying us of any changes to Information provided by you, so that such Information is current, complete, truthful and accurate at all times. eSurplus Network, LLC acts only as a passive conduit for online publication of your Information.
2. You warrant and represent that your Information and the advertising of an Item(s) on the Web Site or through the Service: (a) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary or contract rights or rights of publicity or privacy; (b) will not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, discrimination false advertising, transportation or release of hazardous material, or use of pesticides); (c) will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) will not knowingly contain any viruses, Trojan horses, worms, time bombs or other computer programming codes or routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal Information; (e) will not link directly to or include descriptions of Items that: (i) are concurrently advertised for sale or requested for purchase anywhere other than the Web Site in a manner that inhibits your ability to fulfill your obligations under these Terms of Use or (ii) you do not have a right to link to or include; and (f) will not be fraudulent or involve the sale of counterfeit or stolen Items. Furthermore, you agree not to claim that by allowing you to post an Item on the Web Site, or by charging you any fee, eSurplus Network, LLC violated any applicable law, statute, ordinance or regulation.
A. Buyers' Duty to Inspect Material.
Sellers will post the Item for sale on the Web Site. Each Item will include the location of the Item for Sale. All Items are advertised as accurately as possible; however, all descriptions and representations of Items on the Web Site serve as merely a guide, subject to change. Neither eSurplus Network, LLC, the Sellers, nor any third party making claims as to the description of Items on the Web Site, shall be liable for any errors on the Web Site. All Items will be sold ‘AS IS, WHERE IS, WITH ALL FAULTS' and without guarantee or warranty of any kind, unless otherwise expressly provided in the Item details. Buyers are solely responsible for the inspection of all Items, and accept such Items with any faults or defects.
B. Purchased Items
Payment transactions for all Items sold are the sole responsibility of the Buyer and Seller. The Seller must deactivate any items from the Web Site, once the item has been sold and the transaction process between Buyer and Seller has been completed. This action will prevent unnecessary inquiries pertaining to sold equipment.
C. Technical Issues.
Neither eSurplus Network, LLC nor any of its service providers or other business partners is responsible for any technical problems experienced by users of the Web Site or otherwise in connection with any proposed purchasing transactions between Buyers and Sellers.
D. Right to Re-Open or Remove an Item.
Notwithstanding any other provision of these Terms of Use, eSurplus Network, LLC may, in its sole discretion or at the request of the Seller of a particular Item, re-list any Item for sale if for any reason eSurplus Network, LLC deems a proposed listing invalid, including without limitation, where any of the following occurred: (i) a material change in the Item, (ii) technical issues that eSurplus Network, LLC identifies affected a significant number of Buyers, (iii) eSurplus Network, LLC identifies a non-legitimate Buyer, or (iv) a mistake or error occurs on the part of eSurplus Network, LLC in connection with the posting or terms for any Item. In addition, eSurplus Network, LLC reserves the right to remove any Item at any time for any reason, without any liability for eSurplus Network whatsoever.
E. System Integrity.
You agree not to use any device, software or routine to knowingly or intentionally interfere or attempt to interfere with the proper working of the Web Site, any listing being conducted on the Web Site, or our Services. You may not knowingly or intentionally take any action that imposes an unreasonable or disproportionately large load on our equipment or infrastructure, with the intent of disrupting the Web Site. You may not disclose or share your password to any third parties or use your password for any unauthorized purpose.
F. General Compliance with Laws.
You will comply with all applicable laws,
statutes, ordinances and regulations regarding your use of the Services
and listing, purchase and sale of Items.
A. Links to Third Parties' Sites.
This Web Site may contain links to sites maintained by third parties. eSurplus Network, LLC does not operate or control, in any respect, any software, hardware, information, products or services received on or through such third-party sites. Third-party links are included solely for the convenience of users, and do not constitute any endorsement, representation, warranty or guarantee by eSurplus Network, LLC of such third-party sites. You assume sole responsibility and risk for use of such third-party links.
B. Application Service Providers.
This Web Site may contain pages that are maintained or hosted by third parties, including application service providers (ASPs). eSurplus Network, LLC does not operate or control, in any respect, any software, hardware, information; products or services associated with or received on these pages of the Web Site, and cannot guarantee the privacy or security associated with these pages.
IV. INTELLECTUAL PROPERTY
A. eSurplus Network, LLC Property.
The Web Site, its content and all intellectual property included therein (including but not limited to copyrights, trademarks and service marks) are owned or licensed by eSurplus Network, LLC, and all right, title and interest therein will remain the property of eSurplus Network and/or its licensees, successors, and assigns. You agree not to use the Information made available on the Web Site for any purposes other than in connection with the Services and in compliance with these Terms of Use. You also agree not to remove or copy any copyright, trademark or other intellectual property or any proprietary notice or legend contained on the eSurplus Network Web Site or its content, including the Information.
B. Limited License.
eSurplus Network, LLC hereby grants you a revocable, nontransferable, nonexclusive, worldwide license to use the Services solely for your internal, commercial use, including use by contractors, consultants and other agents that you have authorized to act on your behalf in accordance with these Terms of Use. Without limiting the foregoing or expanding any of your rights hereunder, you agree that you will not republish, reproduce, or distribute any of the Information or make any use of the Information that would allow a third party to have access to the Information or to the Services. In addition, you will be responsible for providing all communication lines, telephone/transmission services and all equipment and technology necessary for you to access and use the Services. The foregoing license has been granted to you subject to your agreement to purchase by these Terms of Use as well as with any other rules, procedures, terms, and conditions that may be published or displayed from time to time by eSurplus Network, LLC on the Web Site.
C. User Information.
You enable eSurplus Network, LLC to use your Information, and to prevent violation of any rights you might have in that Information. You agree to grant eSurplus Network, LLC a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sub-licensable (through multiple tiers) right to use the Information solely in connection with the Services and the Web Site, and at all times subject to these Terms of Use.
V. DISCLAIMERS, LIMITATIONS OF eSURPLUS NETWORK, LLC LIABILITY AND INDEMNIFICATION
A. Disclaimers.
YOU AGREE YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE SERVICES ARE PROVIDED, "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR THE INFORMATION, SERVICES, UNINTERRUPTED ACCESS, OR ITEMS PURCHASED THROUGH OR IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION INFORMATION ON ITEMS PURCHASED, ADVERTISED, OR SOLD OR INTENDED TO BE PURCHASED, ADVERTISED, OR SOLD BY ANY BUYER OR SELLER BASED, IN ANY PART, ON INFORMATION OBTAINED THROUGH THE SERVICES. IN SOME CASES, ITEMS ADVERTISED ON THE SITE MAY CONTAIN HAZARDOUS SUBSTANCES OR MATERIALS - IT IS SOLELY THE OBLIGATION OF THE SELLER TO NOTIFY YOU OF SUCH SUBSTANCES OR MATERIALS AND YOUR SOLE RESPONSIBILITY TO MAKE APPROPRIATE ARRANGEMENTS IN HANDLING SUCH MATERIALS.
SPECIFICALLY, ESURPLUS NETWORK, LLC DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: 1) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, OR CONTENT OF THE INFORMATION, ITEMS, OR THE SERVICES; 2) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, 3) ANY WARRANTIES CONCERNING THE ABILITY OF A USER TO PROVIDE OR DELIVER ANY PRODUCT, SERVICE OR ITEM OR TO PAY A USER FOR ANY PRODUCT, SERVICE OR ITEM, AND 4) ANY WARRANTIES OF CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO ESURPLUS NETWORK, LLC 'S SERVICES.
THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY ITEM, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
eSurplus Network, LLC is committed to protecting the privacy of the users of the Web Site. However, eSurplus Network, LLC cannot guarantee the security of any information you disclose online, and you assume sole and complete risk for using this Web Site. eSurplus Network, LLC is not responsible for the security of any information transmitted via the Internet or any error or delay in transmitting any information over the Internet, including limitations as to authentication and privacy protection measures. You further acknowledge that data or information provided to or by the Web Site may be subject to eavesdropping, sniffing, spoofing, forgery, spamming, tampering, breaking passwords, harassment, fraud, electronic trespassing, hacking, phishing, system contamination (including, without limitation, viruses, worms, and Trojan horses) causing unauthorized, damaging or harmful access and/or retrieval of information and data on your computer, may be subject to other security or privacy hazards or may not reach its destination or may reach an erroneous address or recipient.
B. Limitation of Liability.
Our Web Site serves as a venue for Sellers to list and sell Items and for Buyers to purchase for and enter contracts to purchase Items Advertised by Sellers. eSurplus Network, LLC 's role in any transaction is limited to providing the Services described in the preceding sentence and it is not involved in the actual transaction between Buyers and Sellers. As a result, eSurplus Network, LLC has no control over the quality, safety or legality of the Items advertised, the truth or accuracy of the listings or other related content, and the ability of Sellers to sell Items or the ability of Buyers to buy Items. We cannot and do not control whether Sellers will complete the sale of Items they offer or whether Buyers will complete the purchase of Items.
Because we do not and cannot control the actions of users of the Web Site, in the event that you have a dispute with one or more users, you hereby release eSurplus Network, LLC and its employees, agents, successors, officers, directors, assigns and affiliates (collectively, the "eSurplus Network, LLC Affiliates") from any and all claims, demands and damages (actual, consequential and punitive) 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. To the extent allowed, you waive the provisions of any state law limiting or prohibiting a general release. IF YOU ARE A CALIFORNIA RESIDENT, YOU EXPRESSLY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, 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 THIS RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
IN NO EVENT WILL eSURPLUS NETWORK, LLC OR THE eSURPLUS NETWORK, LLC AFFILIATES BE LIABLE FOR ANY INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST GOODWILL, and OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES). IN NO EVENT WILL eSURPLUS NETWORK, LLC'S LIABILITY AND THE LIABILITY OF THE eSURPLUS NETWORK, LLC AFFILIATES, ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE SERVICES OR YOUR USE THEREOF, HOWEVER ARISING, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE GREATER OF (1) ONE THOUSAND DOLLARS ($1,000) , OR(2) THE TRANSACTION FEE ASSOCIATED WITH THE TRANSACTION IN QUESTION, REGARDLESS OF WHETHER eSURPLUS NETWORK, LLC OR THE eSURPLUS NETWORK, LLC AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THESE LIMITATIONS APPLY TO ANY THIRD-PARTY CLAIMS AGAINST BUYER OR SELLER. SOME STATES LIMIT DISCLAIMERS OF CERTAIN LIABILITIES, SO CERTAIN OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
C. Indemnification.
YOU WILL INDEMNIFY, DEFEND, AND HOLD HARMLESS eSURPLUS NETWORK, LLC AND ITS AFFILIATES, FROM AND AGAINST ANY SUITS, LOSSES, CLAIMS, DEMANDS, LIABILITIES, COSTS AND EXPENSES (INCLUDING ATTORNEY AND ACCOUNTING FEES) ARISING OUT OF OR RELATING TO ANY CLAIM OR ACTION BASED UPON (A) YOUR BREACH OF THESE TERMS OF USE; OR (B) YOUR SALE, DELIVERY, PURCHASE OR USE OF ANY ITEM; PROVIDED THAT ESURPLUS NETWORK, LLC : (I) PROVIDES YOU WITH PROMPT WRITTEN NOTICE OF SUCH CLAIM; (II) PERMITS YOU TO CONTROL THE DEFENSE AND SETTLEMENT OF SUCH CLAIM; AND (III) DOES NOT ENTER INTO ANY SETTLEMENT OR COMPROMISE OF ANY SUCH CLAIM.
A. eSurplus Network, LLC Right to Terminate.
eSurplus Network, LLC reserves the right in its sole discretion to refuse the Services to any user at any time. Further, eSurplus Network, LLC reserves the right to terminate the listing of any Item at any time with no liability to the Seller or prospective Buyer of such Item.
WE MAY IMMEDIATELY ISSUE A WARNING, TEMPORARILY SUSPEND, OR TERMINATE YOUR USE AND/OR ACCESS TO THE WEB SITE OR THE SERVICES, AND ANY OF YOUR CURRENT LISTINGS, AND ANY OTHER INFORMATION YOU PLACE ON THE WEB SITE IF YOU BREACH THESE TERMS OF USE OR IF WE ARE UNABLE TO VERIFY OR AUTHENTICATE ANY INFORMATION YOU PROVIDE TO US.
B. Your Right to Terminate.
You may terminate your right to engage Services pursuant to these Terms of Use upon 30 days written notice to eSurplus Network, LLC; provided, however, that such termination will not relieve you of any obligations, including financial obligations, occurring prior to such termination, and immediately upon such termination, you will no longer be authorized to use the Services.
C. Arbitration.
Any controversy or claim between you and eSurplus Network, LLC arising out of or relating to these Terms of Use or any transaction related to the same will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Midland, Texas before a single arbitrator, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or eSurplus Network, LLC may seek any interim or preliminary relief from a court of competent jurisdiction in Midland, Texas, pending the completion of arbitration. Both parties submit to jurisdiction in Texas and further agree that any cause of action arising under these Terms of Use will be brought exclusively in any state or federal court located in Midland, Texas.
If any provision of these Terms of Use is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. 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. These Terms of Use set forth the entire understanding and agreement between you and eSurplus Network, LLC with respect to the subject matter hereof.
D. Governing Law.
These Terms of Use will be governed in all respects by the laws of the State of Texas, without respect to its conflict of law rules.
Questions? Please call us (432) 559-0506 or email us using the form at the contact us page.
