1. ACCEPTANCE OF TERMS #
1.2 MachineryGenie.com may amend this Agreement at any time by posting the amended Agreement on the Site. The amended Agreement shall be effective immediately upon posting. Posting by MachineryGenie.com of the amended Agreement and your continued use of the Services shall be deemed to be acceptance of the amended terms.
2. THE SERVICES #
2.1 The Services will have the following core features, which may be added to or modified, or suspended for scheduled or unscheduled maintenance purposes, from time to time at the sole discretion of MachineryGenie.com and notified to you (“Core Member Benefits“):
1. Company Profile – allows each Seller Member to display and edit basic information about its business, products, Services offered, etc.
2. Products – allows each Seller Member to list items for sale including displaying and editing descriptions, specifications, and images, and to sell such items through the platform.
3. Purchase – allows each Buyer Member to purchase items listed for sale by Seller Members
4. Review/Feedback – each Seller and Buyer Member may publish reviews and/or feedback about the transaction, including products and other parties.
2.2 MachineryGenie.com may suspend or terminate all or part of the above Core Member Benefits at any time at its sole discretion. MachineryGenie.com reserves the right to charge for the Services or any feature or functionality of the Services at any time in its sole discretion.
2.3 Benefits, features, and functions available to a Member may vary for different countries and regions. No warranty or representation is given that a particular feature or function or the same type and extent of features and functions will be available to all members.
2.4 The availability of any transactional features and functions on the Site to any Member may be conditional on verification of the Member’s identity and/or its designated bank account by MachineryGenie.com and/or its approved independent third parties.
2.5 MachineryGenie.com shall issue a Username and Password to each Member to access the Services through such Member’s Account. Each Member shall be solely responsible for maintaining the confidentiality of its Username and Password and for all activities that occur under the Username and Password. A set of Username and Password is unique to a single Account and no Member shall share, assign or permit the use of its Account, Username, or Password to or by another person outside of the Member’s business entity. Each Member acknowledges that sharing of its Account with other persons, or allowing multiple users outside of its business entity to use its Account (collectively, “multiple uses”), may cause irreparable harm to MachineryGenie.com and each Member shall indemnify MachineryGenie.com against any loss or damages (including but not limited to loss of profits) suffered by MachineryGenie.com as a result of such multiple uses of an Account. Each Member hereby undertakes to notify MachineryGenie.com immediately of any unauthorized use of its Account, Username or Password, or any other breach of security. Each Member hereby agrees that MachineryGenie.com shall not be liable for any loss or damage arising from the Member’s failure to comply with this clause.
2.6 MachineryGenie.com reserves the right to change, upgrade, modify, limit or suspend the Services or any of its related functionalities or applications at any time temporarily or permanently without prior notice. MachineryGenie.com further reserves the right to introduce new features, functionalities, applications, or conditions to the Services or future versions of the Services. All new features, functionalities, applications, conditions, modifications, upgrades, and alterations shall be governed by this Agreement unless otherwise stated by MachineryGenie.com.
2.7 Each Member hereby agrees that in no circumstances shall MachineryGenie.com be liable to the Member or any third parties for any inability to use the Services (whether due to disruption, changes to or termination of the Services or otherwise), any delays, inaccuracies, errors or omissions concerning any communications or transmission or delivery of all or any part thereof, or any damage (direct, indirect, consequential or otherwise) arising from the use of or inability to use the Services or any Account.
3. MEMBER RESPONSIBILITIES #
3.1 Each Member hereby represents, warrants, and agrees to:
(a) provide true, accurate, current, and complete information about itself and its business, references, products, and services as may be required by MachineryGenie.com, including accurate address information; and
(b) maintain and promptly amend all information to keep it true, accurate, current, and complete.
3.2 Each Member hereby grants an irrevocable, perpetual, worldwide and royalty-free, sub-licensable (through multiple tiers) license to MachineryGenie.com to display and use all information provided by such Member and to exercise the copyright, publicity, and database rights such Member has in such material or information, in any media now known or not currently known.
3.3 Each Member hereby represents, warrants and agrees that the use by such Member of the Services and the Site, and any material displayed on the Site by such Member does not:
1. contain fraudulent information or make fraudulent offers of items or involve the sale or attempted sale of counterfeit or stolen items or items whose sales and/or marketing is prohibited by any applicable law, or otherwise promote other illegal activities;
2. form part of a scheme to defraud other Members or other users of the Site or for any other unlawful purpose;
3. infringe or otherwise abet or encourage the infringement or violation of any third party’s copyright, patent, trademarks, trade secret, or other proprietary right or rights of publicity and privacy or other legitimate rights;
4. impersonate any person or entity, misrepresent yourself or your affiliation with any person or entity;
5. violate any applicable law, statute, ordinance, or regulation (including without limitation those governing export/import control, consumer protection, unfair competition, anti-discrimination, or false advertising);
6. contain information that is defamatory, libelous, unlawfully threatening, or unlawfully harassing;
7. contain information that is obscene or contain or infer any pornography or sex-related merchandising or any other content or otherwise promotes sexually explicit materials or is otherwise harmful to minors;
8. promote discrimination based on race, sex, religion, nationality, disability, sexual orientation, or age;
9. contain any material that constitutes unauthorized advertising or harassment (including but not limited to spamming), invades anyone’s privacy, or encourages conduct that would constitute a criminal offense, give rise to civil liability, or otherwise violate any law or regulation;
10. involve attempts to copy, reproduce, exploit or expropriate MachineryGenie.com’s various proprietary directories, databases, and listings, or achieve such copies, reproductions, exploitation, or expropriation;
11. involve any computer viruses or other destructive devices and codes that have the effect of damaging, interfering with, intercepting, or expropriating any software or hardware system, data, or personal information;
12. involve any scheme to undermine the integrity of the computer systems or networks used by MachineryGenie.com and/or any user of the Services or attempts to gain or the gaining of unauthorized access to such computer systems or networks;
13. link directly or indirectly to or include descriptions of goods or Services or other materials that violate any law or regulation or are prohibited under this Agreement or the Terms of Services; or
14. otherwise, create any liability for MachineryGenie.com or its affiliates.
3.4 Each Member represents, warrants and agrees that about information about or posted on behalf of any other business or entities, it has obtained all necessary consents, approvals, and waivers from such businesses or entities to post and publish all such information on their behalf and/or act as their agent in doing so, and that third parties may contact such businesses to support claims or statements made about the Member. Each Member further warrants that all reference letters and comments are true and accurate and hereby waives all requirements for such Member’s consent to be obtained before third parties may contact the business referees.
3.5 Members shall not take any action which may undermine the integrity of MachineryGenie.com’s feedback system, such as leaving positive feedback for themselves using secondary Usernames or through third parties or by leaving unsubstantiated negative feedback for another Member.
3.6 Each Member acknowledges and agrees that MachineryGenie.com shall not be required to actively monitor nor exercise any editorial control whatsoever over the content of any message or other material or information created, obtained, or accessible through the Services. MachineryGenie.com does not endorse, verify or otherwise certify the contents of any comments or other material or information made by any Member. Each Member is solely responsible for the contents of their communications and acknowledges that they may be held legally liable or accountable for the content of their comments or other material or information which they publish on the Site or through the Services.
3.7 Each Member represents, warrants and agrees that it has obtained all necessary third-party licenses and permissions and shall be solely responsible for ensuring that any material or information it posts on the Site or provides to MachineryGenie.com or authorizes MachineryGenie.com to display does not violate the copyright, patent, trademark, trade secrets or any other personal or proprietary rights of any third party or is posted with the permission of the owner(s) of such rights. Each Member further represents, warrants and agrees that it has the right and authority to sell, distribute or offer to sell or distribute the products described in the material or information it posts on the Site or provides to MachineryGenie.com or authorizes MachineryGenie.com to display.
1. any Member breaches the representations, warranties, and covenants of paragraphs 3.1, 3.2, 3.3, 3.4, 3.5, 3.6, or 3.7 above; or
2. MachineryGenie.com has reasonable grounds to believe that such Member is in breach of such representations, warranties, and covenants; or
3. upon complaint or claim from any other Member or third party, MachineryGenie.com has reasonable grounds to believe that such Member has willfully or materially failed to perform its contract with a such third party including without limitation where the Member has failed to deliver any items ordered by a such third party after receipt of the purchase price, or where the Member has delivered the items that materially fail to meet the terms and descriptions outlined in its contract with a such third party; or
4. MachineryGenie.com has reasonable grounds to believe that such Member has used a stolen credit card or other false or misleading information in any online transaction
3.8 MachineryGenie.com reserves the right to cooperate fully with governmental authorities, private investigators, and/or injured third parties in the investigation of any suspected criminal or civil wrongdoing. Further, MachineryGenie.com may disclose the Member’s identity and contact information, if requested by a government or law enforcement body, an injured third party, or as a result of a subpoena or other legal action, and MachineryGenie.com shall not be liable for damages or results thereof and Member agrees not to bring any action or claim against MachineryGenie.com for such disclosure. In connection with any of the foregoing, MachineryGenie.com may suspend or terminate the Account of any Member as MachineryGenie.com deems appropriate in its sole discretion.
4. TRANSACTIONS BETWEEN BUYERS AND SELLERS #
4.1 Through the Site, MachineryGenie.com provides an electronic web-based platform for exchanging information and concluding sale and purchase transactions of products and Services between buyers and sellers. MachineryGenie.com reserves the right to limit certain features and functions of the platform to prescribed Members. Despite the provision of the platform through the Site, MachineryGenie.com does not represent the seller or the buyer in specific transactions whether or not such transactions are made on or via the Site. MachineryGenie.com does not control and is not liable to or responsible for the quality, safety, lawfulness, or availability of the products or Services offered for sale on the Site or the ability of the Members to complete any transaction.
4.2 Members are hereby made aware that there may be risks of dealing with people acting under pretenses. MachineryGenie.com cannot and does not confirm each member’s purported identity shown on the Sites. MachineryGenie.com recommends that you verify the identity of any other member before transacting with them.
4.3 Each Member acknowledges that it is fully assuming the risks of purchase and sale transactions when using the Site to conduct transactions. Such risks shall include, but not be limited to, misrepresentation of products and Services, fraudulent schemes, unsatisfactory quality, failure to meet specifications, defective products, delay or default in delivery or payment, cost miscalculations, breach of warranty, breach of contract and transportation accidents (“Transaction Risks“). Each Member agrees that MachineryGenie.com shall not be liable or responsible for any damage, liability, cost, harm, inconvenience, business disruptions, or expenditure of any kind that may arise as a result of or in connection with any Transaction Risk or any other risk associated with using the Services.
4.4 Members are solely responsible for all of the terms and conditions of the transactions conducted on, through, or as a result of the use of the Site, including, without limitation, terms regarding payment, returns, warranties, shipping, insurance, fees, taxes, title, licenses, fines, permits, handling, transportation, and storage.
4.5 Each Member agrees to provide all information and materials as may be reasonably required by MachineryGenie.com in connection with its transactions made via the transactional platform on the Site. MachineryGenie.com has the right to suspend or terminate any Member’s Account if the Member fails to provide the required information and materials.
4.6 If any Member has a dispute with any party to a transaction, such Member agrees to release and indemnify MachineryGenie.com (and our agents, affiliates, directors, officers, and employees) from all claims, demands, actions, proceedings, costs, expenses and damages (including without limitation any actual, special, incidental or consequential damages) arising out of or in connection with such transaction.
5. INFORMATION POSTED ON AND OBTAINED FROM THE SITE #
5.1 MachineryGenie.com encourages open, honest, and respectful communication between Members.
5.2 Each Member acknowledges that all data, text, software, music, sound, photographs, graphics, video, messages, or other materials (“Content”), whether publicly posted or privately transmitted through the Site, are the sole responsibility of such Member from whom the content originated. This means that the posting Member, and not MachineryGenie.com, is entirely responsible for all content that is uploaded or posted via the Site. MachineryGenie.com does not control the content posted and therefore does not guarantee the accuracy, integrity, or quality of such content.
5.3 MachineryGenie.com reserves the right to delete or edit any postings at its sole discretion without prior notice. MachineryGenie.com may monitor the posting activities of any Member and may restrict their ability to post messages on the Site. Under no circumstances will MachineryGenie.com be liable in any way for any content, including (without limitation) any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of the Site by such Member. Each Member agrees to evaluate and bear all risks associated with the use of any content including any reliance on its accuracy or completeness. Each Member understands that by using the Site, such Member may be exposed to content that is offensive, indecent, or objectionable.
5.4 Without prejudice to each Member’s responsibilities under Clause 3 of this Agreement, each Member agrees not to use the Site to:
1. upload, post, or e-mail any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically, or otherwise objectionable;
2. harm minors in any way;
3. impersonate any person or entity, falsely state or otherwise misrepresent your affiliation with a person or entity or disguise the origin of any content;
4. “stalk” or otherwise harass another;
5. collect or store personal data about other users;
6. upload, post, or e-mail any content that you do not have a right to transmit under any law or contractual or fiduciary relationships;
7. upload, post, or e-mail any content that infringes any intellectual property rights or other legitimate rights of any party;
8. upload, post, or e-mail any unsolicited or unauthorized advertising, promotional materials, “junk mail”, “spam”, “chain letters”, or any other form of solicitation;
9. upload, post, or e-mail any content that contains computer viruses or any other computer code, files, or programs designed to interrupt, destroy or limit the functionality of any computer software, hardware, or telecommunications equipment;
10. upload, post, or e-mail any content that contains a complaint regarding MachineryGenie.com’s Services or refers to such a complaint on the Site or any other Members – any such complaint must be directed to the customer service e-mail on the Site; or
11. violate any applicable national or international laws or regulations.
5.5 Each Member acknowledges that MachineryGenie.com does not pre-screen content but that MachineryGenie.com shall have the right (though not the obligation) in its sole discretion to move, modify or remove any content that is posted or uploaded on the Site.
5.6 Each Member grants to MachineryGenie.com a perpetual, worldwide, royalty-free irrevocable, non-exclusive license (including the right to sub-license through multiple tiers) to use, reproduce, modify, adapt, publish, translate, create derivative works from, distribute, perform and display any content (in whole or part) such Member uploaded, posted or supplied to MachineryGenie.com for posting on the Sites and/or to incorporate such content in other works in any form, media or technology now known or developed.
5.7 Each Member shall indemnify and hold MachineryGenie.com and its subsidiaries, affiliates, employees, officers, agents, or partners harmless from and against any direct or indirect loss or damage (including consequential loss and loss of profits, goodwill, or business opportunities) arising from any third party claim about any content such Member uploaded, posted or e-mailed on or through the Site, or such Member’s breach of the provisions set out in Clause 5.4.
5.8 On being made aware of any such breaches, MachineryGenie.com may ban, delete or prohibit any content that relates to those breaches or that MachineryGenie.com in its sole discretion considers to be harmful to the public or the rights of MachineryGenie.com or any of its affiliates, licensors, partners or Members.
5.9 MachineryGenie.com reserves the right to take whatever action it deems necessary to prevent a Member’s breach of Clause 5.4 including the following:
1. issuing a warning letter to the relevant Member (where the breaches are deemed by MachineryGenie.com to be minor); or
2. banning the relevant Member from the Site (where the breaches are deemed by MachineryGenie.com to be major).
All incidents will be logged and MachineryGenie.com’s decision shall be final in all such cases.
5.10 All information and/or other content posted on the Site by the MachineryGenie.com team or by Members or third-party partners is supplied for information purposes only and shall not under any circumstances be construed as legal and/or business advice or a legal opinion. Members are encouraged to seek independent professional advice where appropriate.
6. LIMITATION OF LIABILITY #
6.1 To the fullest extent permitted by law, the Services are provided on an ‘as is and ‘as available basis, and MachineryGenie.com hereby expressly disclaims any warranties, express or implied, including but not limited to any warranties of condition, quality, durability, performance, accuracy, reliability, merchantability, or fitness for a particular use, or non-infringement. All such warranties, representations, conditions, undertakings, and terms are hereby excluded.
6.2 To the fullest extent permitted by law, MachineryGenie.com makes no representations or warranties about the validity, accuracy, reliability, quality, stability, completeness, or currentness of any information provided on or through the site.
6.3 Any material downloaded or otherwise obtained through the use of the Services is done at each Member’s sole discretion and risk and each Member is solely responsible for any damage to its computer system or loss of data that results from the download of any such material. No advice or information, whether oral or written, obtained by any Member from MachineryGenie.com or through or from the Services shall create any warranty not expressly stated in this Agreement.
6.4 The Site may make available to Users Services or products provided by independent third parties. No warranty or representation is made about such Services or products. In no event shall MachineryGenie.com and its affiliates be held liable for any such Services or products.
6.5 Under no circumstances shall MachineryGenie.com be held liable for a delay or failure or disruption of the Services resulting directly or indirectly from acts of nature, forces, or causes beyond its reasonable control, including without limitation, Internet failures, computer, telecommunications, or any other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, flood, storms, explosions, Acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals or non-performance of third parties.
6.6 MachineryGenie.com shall not be liable for any special, direct, indirect, punitive, incidental, or consequential damages or any damages whatsoever (including but not limited to damages for loss of profits or savings, business interruption, loss of information), whether in contract, negligence, tort or otherwise or any other damages resulting from any of the following:
1. the use or the inability to use the Services;
2. any defect in goods, samples, data, information, or Services purchased or obtained from a Member or a third-party Services provider through the Site;
3. unauthorized access by third parties to data or private information of any
4. statements or conduct of any user of the Site; or
5. any other matter relating to the Services however arising, including negligence.
6.7 Notwithstanding any of the foregoing provisions, the aggregate liability of MachineryGenie.com, its employees, agents, affiliates, representatives or anyone acting on its behalf concerning each Member for all claims arising from the use of the Services or the Site shall be limited to AUD$1000. The preceding sentence shall not preclude the requirement by the Member to prove actual damage. All claims arising from the use of the Services must be filed within either one (1) year from the date the cause of action arose or such longer period as prescribed under any applicable law governing this Agreement.
7. INTELLECTUAL PROPERTY RIGHTS #
7.1 MachineryGenie.com is the sole owner or lawful licensee of all the rights to the Services. The Services embodies trade secrets and intellectual property rights protected under worldwide copyright and other laws. All title, ownership, and intellectual property rights in the Services shall remain with MachineryGenie.com or its affiliates. All rights not otherwise claimed under this Agreement or by MachineryGenie.com are hereby reserved.
7.2 “MachineryGenie.com” and related icons and logos are registered trademarks or trademarks or Service marks of Capital Machinery Sales Pty Ltd, in various jurisdictions and are protected under applicable copyright, trademark, and other proprietary rights laws. The unauthorized copying, modification, use, or publication of these marks is strictly prohibited.
8. GENERAL #
8.2 MachineryGenie.com and the Member are independent, and no agency, partnership, joint venture, employee-employer, or franchiser-franchisee relationship is intended or created by this Agreement.
8.3 If any provision of this Agreement is held to be invalid or unenforceable, such provision shall be struck out and the remaining provisions shall be enforced.
8.4 Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section.
8.5 MachineryGenie.com’s failure to enforce any right or failure to act concerning any breach by a Member under this Agreement will not waive that right nor waive MachineryGenie.com’s right to act concerning subsequent or similar breaches, nor create any liability for any loss or damage to any party.
8.6 MachineryGenie.com shall have the right to assign this Agreement (including all of its rights, titles, benefits, interests, and obligations and duties in this Agreement) to any person or entity (including any affiliates of MachineryGenie.com). The Member may not assign, in whole or part, this Agreement to any person or entity.
8.7 This Agreement shall be governed by the laws of the State of Victoria, Australia and the parties to this Agreement hereby submit to the exclusive jurisdiction of the Courts of that State.
8.8 If there is any conflict between the English version and another language version of this Agreement, the English version shall prevail.
8.9 The term “User” when used in this agreement means any person or entity that uses the Site, whether or not such person or entity purchases or sells any goods or services, and includes a Member.
In this agreement “MachineryGenie.com” means Capital Machinery Sales Pty Ltd ACN 113 895 097.