VENDOR/LISTING & TERMS OF USE AGREEMENT
THESE ARE THE TERMS AND CONDITIONS GOVERNING YOUR USE OF THE GEARSOURCE.COM™ WEBSITE(S) AND OUR SERVICES.
WELCOME to the Gear-Source, Inc. website(s) available at and under www.gearsource.com and/or under other uniform resource locator(s) and the related or linked portals, information management systems, intranets, password protected information systems, e-mail or wireless websites of our or our affiliates businesses (collectively, “gearsource.com”) – developed, hosted, maintained or operated by Gear-Source, Inc. (“Gear-Source,” “we,” “us,” or “our”) or our designees.
This Vendor/Listing Agreement (this “Agreement”) sets forth the terms and conditions governing your use of gearsource.com and your access to and use of our transaction facilitation services, our Intellectual Property Rights, and other webpages, sub-pages, URLs, links, trademarks, trade names, trade dress, slogans, logos, copyrights, information, other content, wireless services, portals, e-mail functionalities, operating systems, and electronic communications or data management systems and services offered on or through gearsource.com (which, collectively with gearsource.com, constitute the “Services”).” This Buyer Agreement is incorporated into and is an integral part of our general Terms of Use Agreement, which is also binding on Buyer.
You wish to, via Gearsouce.com, as a seller (the “Vendor”) list items for sale and purchase that are entertainment-related equipment or items like audio, video, lighting and effects, rigging, trussing and staging, instruments and amplification, cables, cases, PD and/or other miscellaneous equipment of the type displayed or listed on gearsource.com (collectively, the “Equipment”).
“You” “your” or “Vendor” means the person and/or entity accessing this site and availing itself of the Services, or otherwise clicking on “I Accept” below. “Vendor,” “You” or “Your” includes your employer or your business entity if you are an employee or business owner, or your principal if you are an agent. “Buyer” is any actual or potential purchaser of the Equipment you list via gearsource.com.
By accessing, using or availing yourself of gearsource.com or any of the Services, including Logging in, Registering or placing any advertisement or listing of any Equipment on gearsource.com (a “Listing”), you accept and agree to be legally bound by this Agreement, as it may be amended or supplemented from time to time by us (as further described below), and agree to all of our operating rules and/or policies and the Services that may be approved by us and published by us on gearsource.com. All these rules and policies including, without limitation, the answers to our Frequently Asked questions (“FAQs”) and our purchase policies and rules in our price catalogue are incorporated into the Rules and this Agreement by this reference. They, together with this Agreement, the Terms of Use Agreement, and any rules or policies we publish for the use of gearsource.com and the Services constitute the “Rules”. You agree to be bound by all of the Rules as well. IF YOU DO NOT ACCEPT THIS AGREEMENT, INCLUDING THE RULES, YOU ARE NOT AUTHORIZED TO ACCESS GEARSOURCE.COM OR AVAIL YOURSELF OF OR USE GEARSOURCE.COM OR SERVICES IN ANY MANNER.
Vendor’s Code of Conduct
As a Vendor, you agree to this Vendor’s Code of Conduct, as amended by us from time to time. However, the Vendor’s Code of Conduct does not limit in any way, nor is in lieu of any of the other Rules, representations, warranties or promises contained in this Agreement or any other Rules. The Vendor’s Code of Conduct is in addition to any other terms of this Agreement and the Rules and may be modified by changes to the Rules. Under the Vendor’s Code of Conduct, Vendor agrees that:
a. Vendor has and will provide complete, truthful and non-misleading information to us during our “Registration” and/or our “Listing” process;
b. Vendor will comply with all of the answers to our FAQs at www.gearsource.com/faq.cfm;
c. Vendor will comply with all of our listing policies and procedures we designate in the Rules from time to time;
d. Vendor covenants that it is the lawful owner of all Equipment listed by Gear-Source, Inc. on the gearsource.com website; that the Equipment is free from all encumbrances; that Vendor has good right to sell the same and shall defend against the lawful claims and demands of persons whomsoever;
e. Vendor will not engage in the offer or sale of any illegal, counterfeit, stolen or the like Equipment through the gearsource.com website and/or the Services;
f. By clicking on the Listing feature of gearsource.com (and clicking on “Agree” under the “Listing” feature), Vendor indicates that Vendor agrees to the terms and conditions we impose for Listing of the Equipment for the offer or purchase of the Equipment, as well as the indicated Advertised Sales Price listed on gearsource.com;
g. Vendor agrees to pay Gear-Source, Inc. the then current fees designated on Gear-Source, Inc.’s Vendor fee payment schedule as compensation for Gear-Source, Inc. listing Equipment via the gearsource.com website and otherwise providing Services to Vendor. Vendor is also responsible for paying any and all applicable governmental surcharges, taxes and the like associated with the purchase and sale of the Equipment (like state sales tax). Vendor agrees to timely pay fees pursuant to the fee schedule via a valid payment method which may be designed by Gear-Source, Inc. from time to time. Gear-Source, Inc. may deduct all such fees from any pre-payment made by Buyer;
h. Unless otherwise stated in Gear-Source, Inc.’s fee schedule, all fees payable to Gear-Source, Inc. are payable in U.S. Dollars. Vendor’s requirement to pay Gear-Source, Inc. in U.S. Dollars applies, notwithstanding the location of any Vendor or Buyer for the Equipment, or the location of the Equipment;
i. Vendor will indemnify, defend and hold harmless Gear-Source, Inc., Inc. from any and all sales and use taxes or excise taxes of any kind or nature associated with the sale of the Equipment to Buyer;
j. Each time Vendor lists an item via the gearsource.com website, Vendor will have an opportunity to review and accept, via the Listing confirmation, the fee schedule charged to Vendor, which may change from time to time. Changes to the fee schedule are effective upon Gear-Source, Inc. providing Vendor at least 48 hours notice, or by Gear-Source, Inc. otherwise posting such changes to the gearsource.com website. Gear-Source, Inc. may choose, in its sole discretion, to increase or decrease fees from time to time, provided Gear-Source, Inc. provides the requisite notice to Vendor;
k. Vendor further agrees not to list, advertise or make available any Equipment for offer or sale with any other agent, re-seller service, online vendor service, online marketplace or broker or the like while the item is advertised on a Listing on the gearsource.com website;
l. The Advertised Sales Price (“Advertised Sales Price”) that Gear-Source, Inc. will list the Equipment for via any Listing shall be based upon Gear-Source, Inc.’s discretion. The Advertised Sales Price will be either the “Listing Price” or “Dealer Price” based on our then current criteria for obtaining a Listing at a Dealer Price or a Listing Price. However, the Advertised Sales Price will not be less than the amount designated by Vendor in the “Listing Confirmation” as the minimum listing Advertised Sale Price (“MLP”). If no such MLP is listed in the Listing Confirmation, Gear-Source, Inc. may list the Equipment at whatever price it chooses;
m. Vendor agrees that gearsource.com and/or any Vendor may list Advertised Sales Prices for Equipment at our or the Vendor’s cash discount price, which may be up to 3% less than the price charged for the purchase of Equipment when credit card payment is utilized. If a cash discount price is applicable, it will be noted on the “Listing” at “Checkout” or on the “Purchase Order” for the Equipment. Otherwise, the non-cash discount price will be indicated on the Purchase Order and will apply. We also reserve the right not to allow cash payment;
n. Vendor agrees not to offer for sale or sell any piece of Equipment to any person, partnership, agent, independent contractor, production company or any other company or person or entity which/who is directly or indirectly, itself or through any agent, in the business of reselling any Equipment at a price below the Advertised Sales Price;
o. Vendor will complete and acknowledge the Listing Confirmation for each item/Equipment listed and in doing so reaffirms its agreement to the Rules as well as the Advertised Sales Price and any MLP;
p. At times, Gear-Source, Inc. will advise Vendor, based upon Gear-Source, Inc.'s judgment and experience that the Advertised Sales Price has been set will be too low or high. In these circumstances, Gear-Source, Inc. will notify Vendor of its recommendation to modify the Advertised Sales Price for use upon mutual agreement by Vendor. Vendor will respond to such communication from Gear-Source, Inc. within 24 hours;
q. Vendor shall provide Gear-Source, Inc. with a list of prices on all Equipment to be listed. In the event Vendor wishes for Gear-Source, Inc. to change any Advertised Sales Price in a Listing, Vendor must do so by making such request via logging onto Vendor's administrative page at www.gearsource.com or such other page of the gearsource.com website as Vendor may designate from time to time or by sending an e-mail to info@gearsource.com. Upon Gear-Source, Inc.'s approval of the price change request, new Advertised Sales Prices will be uploaded to the gearsource.com website to take effect within 48 hours;
r. Vendor agrees that in the course of negotiation and finalization of the sale of any piece or pieces of Equipment, Vendor agrees not to contact the potential Buyer directly for the purpose of offering for sale any piece or pieces of Equipment or any other item or equipment. Vendor also agrees that once it has received a notice from us that we have a Buyer interested in acquiring the Equipment; Vendor will not offer or sell such Equipment to any other Buyer for a period of 7 business days (the “Hold Period”). We, upon notice to Vendor, may extend the Hold Period for a period of 7 additional business days if we believe negotiations are ongoing and progressing to a potential sale. Any breach of this covenant shall entitle Gear-Source, Inc. to its damages, attorneys’ fees and costs, including, without limitation, the fee it otherwise would have received for the sale of the Equipment listed and any other equipment or items sold to such Buyer, had Vendor not breached this covenant and such item or Equipment being listed on the gearsource.com website if not previously listed;
s. If Additional Charges apply to the purchase of the Equipment after Buyer places an order for Equipment (Adds to the Cart), Buyer will be notified within 2 days of the Additional Charges and will be required to confirm its acceptance of the same within 2 days of our notice to Buyer. If Buyer does not confirm agreement to those Additional Charges, if any, within the time period indicated in our notification to Buyer, we will cancel the order for that Equipment without liability to Vendor;
t. Vendor will, within 24 hours of our notification to Vendor that we have a Buyer who is willing to purchase the Equipment listed, execute/confirm our “Purchase Order” agreeing to be bound by the specific terms and conditions contained in it and confirming its agreement to the “Order Price.” The “Order Price” is the agreed sales price of the Equipment. This Order price will be indicated in the Order Confirmation or other communication we send to Buyers and you during or after the “Checkout” process;
u. VENDOR ACKNOWLEDGES THAT ALL SALES ARE PREPAID BY BUYER. Once Buyer confirms Buyer’s agreement to the Order Price (plus any Additional Charges), Buyer will be required to PRE-PAY the Order Price plus all Additional Charges (the “Total Due”) via a payment method approved on the gearsouce.com Checkout Feature, and in according to our then current Rules. By making such Pre-Payment, Buyer will be making timely pre-payment to the Vendor (by pre-payment through us) via our payment procedures posted in the “Checkout” portion of gearsource.com. (We accept Buyer’s pre-payment of the Total Due and then (once the order is Accepted) forward such pre-payment of the Total Due to the Vendor, less our fees, shipping fees, and taxes paid by Buyer);
v. Gear-Source, Inc. generally accepts only Credit Card Payment for the Order Price and any Additional Charges. If Buyer or Vendor seek to pay by another method or Gear-Source, Inc. agrees to accept another method of payment, Buyer and/or Vendor must contact us to arrange for another pre-payment option. Buyer and/or Vendor must contact us for such pre-payment option at phone number +1 (561) 296-9555. Vendor agrees to accept any payment method approved by us;
w. In the event that Gear-Source, Inc. approves utilization of PayPal or similar services, Gear-Source, Inc. may deduct any amounts due (e.g., the total due or any portion thereof) from the PayPal or similar service balance maintained by Vendor;
x. In the event Gear-Source, Inc. designates a payment method such as electronic funds transfer, or credit card payment, Vendor agrees to maintain such payment system in good standing throughout the term of this Agreement. If Vendor ceases or cancels such bank account or credit card or we decide not to accept that credit card or payment type for any reason, Vendor will provide an alternative acceptable payment or payment acceptance method to Gear-Source, Inc. within the time period specified in such notice to Vendor. In the event Vendor fails to timely pay Gear-Source, Inc. any monies due, Gear-Source, Inc. may collect such fees or other amounts due via other collection mechanisms, including, without limitation, charging such payments to any other payment mechanism on file or previously on file with Gear-Source, Inc., and retaining collection agencies and legal counsel for accounts over 90 days past due;
y. Vendor understands that, despite PRE-PAYMENT by Buyer, no purchase and sale of Equipment is final until the purchase and sale is “Accepted” by both Buyer and Vendor and the Equipment is delivered to Buyer;
z. Buyer or Vendor, pursuant to our Rules, may only refuse to consummate the transaction to purchase the Vendor’s Equipment in the event that there is a mutual mistake between Buyer and Vendor, or that we or Buyer and/or Vendor are unable to verify that the Vendor and/or Buyer is able to fulfill its obligations under its agreement to purchase or sell the Equipment; provided that such inability is not due to the non-performing party’s breach. Otherwise Buyer is only permitted to receive, and Vendor must pay a refund, pursuant to our Return Policy and/or “Charge-Back Policy” and Vendor must consummate the sale following receipt of confirmation of the Purchase Order;
aa. Upon receipt and confirmation of the Purchase Order of the sale of the Equipment, Vendor will timely ship the Equipment to the Buyer;
bb. Prior to shipping, Vendor will sufficiently prep and package the item(s) for shipment. Any damage or loss due to insufficient packaging or preparation may result in a holdback of some or all of the Vendor proceeds. Any freight claim denied due to insufficient packaging will become the responsibility of the Vendor. Vendor and Gear-Source, Inc. hereby agree that all delivery costs shall be borne by the Buyer and/or Vendor unless otherwise agreed between Vendor and us. In no event shall any delivery costs be the responsibility of Gear-Source, Inc.;
cc. Vendor will deliver the Equipment to the Buyer in the condition represented to Buyer in connection with the Listings;
dd. Vendor will act in good faith to resolve any disputes between Buyer and Vendor and will indemnify, defend and hold gearsource.com harmless from any and all claims, controversies, causes of action or damages associated with the offer or sale of the Equipment;
ee. Vendor will accept/provide refunds in accordance with the Rules for refunds. Upon receipt of the returned item by Buyer, Vendor agrees to return all monies paid by Gear-Source, Inc. to Vendor within 3 business days;
ff. Vendor must comply with all of our Rules in connection with our “Return Policies.” Our then current Return Policy, if different from the one described in this Vendor’s Code of Conduct, will be published to Vendor at the time of the latter of Vendor’s listing or sale of any Equipment or otherwise will be posted on gearsource.com at the time of purchase. Unless otherwise modified at such time of your Acceptance of the purchase, our Return Policy is as follows: If, according to our Rules, any piece of Equipment is not accepted by Buyer, then Buyer will have the right to receive a full refund, less shipping costs, provided Buyer complies with our Return Policy and returns the item to Vendor, at Buyer's expense. We allow any Buyer to, if such purchase of the Equipment is according to our Rules not Accepted by Buyer, return that Equipment for a full refund within 2 business days of their receipt of that Equipment. Our Refund Policy requires Buyer to notify us within 24 hours of Buyer’s receipt of the Equipment that Buyer will return the Equipment. All returned Equipment must be repacked in their original shipping boxes or cases, and returned at Buyer’s expense to the location specified by us on the Purchase Order which will be included with the Equipment. All returned shipping costs are the responsibility of the Buyer. Further, any damage by Buyer or use of the item/Equipment purchased will result in the item or Equipment being unable to be returned. If a return is requested in accordance with our Return Policy, we or the Vendor will re-ship the Equipment back to the Buyer, and the Total Due, plus any additional return shipping charges, will be added to the Additional Charges and will become the responsibility of the Buyer. If a refund is authorized under our Rules, Buyer will receive the amount to be refunded from Vendor within 14 days after Vendor’s receipt of the returned Equipment. Our Refund Policy may be changed at any time via changes to the Rules. We reserve for ourselves the sole right to determine any dispute relating to whether any return of Equipment meets our Return Policies and if any refund is warranted;
gg. Without limiting our Return Policy, if Vendor has a dispute, claim, or controversy of any kind or nature with one or more other vendors utilizing the gearsource.com website, or any of their Buyers, Vendor fully and unconditionally releases, indemnifies, will defend, and hold harmless Gear-Source, Inc. (and all of its agents, officers, directors, affiliates, subsidiaries, joint venturers and employees) from any and all claims, demands, causes of action, controversies, suits, damages (actual and consequential) of every kind and nature (“Claims”), known and unknown arising out of or in any way connected with such Claims. If Vendor is a California resident or corporation, or other entity, Vendor fully and unconditionally waives the California Civil Code § 1542, which says: “a general release does not extend to claims that the creditor does not know or suspect to exist in his favor at the time of creditor’s executing the release, which if known by him must have materially affected his settlement with the debtor”;
hh. Vendor will comply with all of our rules for addressing and dealing with charge-backs. We may change or amend our Charge-Back Policies and procedures at any time. While we work cooperatively with Vendors to investigate and in some instances challenge/dispute charge-backs, we are not responsible for obtaining/disputing any charge-back commenced by any Buyer or Vendor;
ii. Without limiting the foregoing, unless a different “Dispute Resolution Policy” is posted to gearsource.com, the dispute / Charge-Back Policies in this Agreement shall apply. In the event Vendor has a dispute/Claim with Buyer, Vendor must in good faith seek to resolve that dispute/Claim with the Buyer and/or indemnify, defend and hold us harmless in connection with any and all such disputes. Vendor must engage in good faith dispute resolution procedures in accordance with our Rules, if any, prior to seeking to challenge any charge-back or litigation relating to such Claim. In the event any Claim is not resolved with good faith efforts of Buyer and Vendor, Vendor will notify Gear-Source, Inc. in writing of the nature and subject of any such Claims at least 10 business days before Vendor files any lawsuit, arbitration or demands mediation of any kind or nature in connection with any such Claim. While Gear-Source, Inc.’s customer service department may provide information to or facilitate information among Buyer and/or other buyers or Vendors in connection with such Claim, Gear-Source, Inc. is not responsible for and is not liable to Vendor for, the outcome of any such Claim. Gear-Source, Inc.’s dispute resolution procedures may, from time to time, require that all Claims of the nature identified in such dispute resolution procedures by Gear-Source, Inc. be resolved by a decision rendered by Gear-Source, Inc.’s customer service department;
jj. Our “Charge-Back Policy” is as follows: in order for a Vendor to obtain Gear-Source, Inc.’s assistance in disputing a “charge-back” to any credit card or the like, Vendor must provide Gear-Source, Inc. appropriate evidence of the reason the charge-back should be denied. Vendor may do so by e-mailing our customer service department at www.gearsource.com or call our customer service department. In order for any Vendor to dispute a charge-back, it must do so within 10 calendar days of being notified by us of the attempted charge-back. Vendor must provide information to us in order to evaluate the sought denial of the charge-back and communicate that information to the credit card company. This information includes:
i. proof of delivery, such as online tracking numbers,
ii. copies of the original item description, and any photos,
iii. proof that the Buyer was already refunded,
iv. proof that the Buyer was provided a replacement product,
v. correspondence between Vendor and Buyer regarding the Equipment,
vi. any other agreements signed or accepted by Buyer and/or Vendor at the time of purchase of the Equipment, and
vii. any other return terms or policies that were communicated to Buyer at the time of purchase.
We reserve the right not to dispute any charge-back, even if you have provided evidence to us, for reasons including, without limitation, if we believe the dispute is unlikely to be successful or unwarranted. Vendor will pay to Gear-Source, Inc. an administrative fee of $25 for all charge-backs, regardless of the outcome;
kk. Vendor will also not seek to challenge a charge-back or the like from any credit card or electronic funds processor without first exhausting good faith dispute resolution efforts with Buyer, submitting its Claim in connection such charge-back to Gear-Source, Inc.’s customer service department, providing Gear-Source, Inc.’s customer service department written notice of the reasons for denial of such desired charge-back or refund, and providing Gear-Source, Inc. time to resolve such dispute, pursuant to the time period specified in Gear-Source, Inc.’s customer service policies and procedures. Further, prior to initiating a challenge to charge-back with your credit card company, you must:
i. call our customer service department at 1-866-669-GEAR and/or e-mail our customer service department at info@gearsource.com and obtain or be notified of the applicable charge-back/returned item authorization number (“RMA”); and
ii. provide a written reason for challenging the return of the Equipment and the RMA number to our customer service department.
ll. If, for any reason, Vendor seeks to challenge a charge-back from its credit card company or other electronic funds payment provider and such charge-back is issued (the challenge is denied), Vendor will pay to us an Additional Fee/fraudulent charge-back challenge fee in the amount of $75 to compensate Gear-Source, Inc. for our research and effort incurred in investigating the charge-back and responding to Buyer’s credit card company or other electronic funds authorization provider. Vendor is also responsible to Gear-Source, Inc. and to Buyer for any damages to us or Buyer caused by such fraudulent or unwarranted challenge to the charge-back. Vendor agrees that it will not seek to challenge Buyer’s efforts to obtain a charge-back from its credit card company or other electronic funds payment provider if Buyer has not used the item and Vendor has failed to comply with our Return Policies.
Agreement and Service Modification and Termination Policy
a. Agreement Modification Policy. Gear-Source, Inc. reserves the right, at any time and from time-to-time, to update, revise, supplement and to otherwise modify this Agreement and the Rules, and to impose new or additional rules, policies, terms or conditions on your use of gearsource.com and the Services. Such updates, revisions, supplements, modifications and additional rules, polices, terms and conditions are deemed part of the Rules will be effective immediately and incorporated into this Agreement upon our publishing them on gearsource.com, which may be given by any means we designate, including by our posting to gearsource.com. Vendor’s continued use of or availing itself of any of gearsource.com or Services following such notice will be deemed to conclusively indicate your acceptance of any and all such existing or newly created Rules. All existing and future Rules are incorporated into this Agreement by this reference.
b. Service Modification Policy. Vendor agrees that Gear-Source, Inc. reserves the right, at any time and from time-to-time, to modify or discontinue, temporarily or permanently, gearsource.com or the Services, with or without notice to you. This includes the right to modify, discontinue or remove any content, postings, links, pages, services, or other materials at any time and for any reason. Vendor agrees that we will not be liable to Vendor for any modification, general suspension or discontinuance of gearsource.com or the Services. We may refuse or restrict anyone from access to any or all of gearsource.com or the Services at any time.
c. Termination Policy. We may terminate Vendor’s Listing of any Equipment, Vendor’s use and/or access to the Services and/or access to gearsource.com immediately if we believe that Vendor’s conduct fails to conform to this Agreement. Without limiting our rights and Vendor’s limitations under this Agreement, if Vendor makes unauthorized use of our Intellectual Property Rights during this Agreement or if Vendor uses, or attempts to use our Intellectual Property Rights (including our Services or Marks or our copyrighted materials) after such termination and/or for any purposes other than its intended purposes (including without limitation by tampering, hacking, modifying or otherwise corrupting the security or functionality of the Services), Vendor may also be subject to civil and criminal liability and penalties.
Warranty and Title Policy
a. Equipment and Information Warranty Representations. We do not provide warranties on the Equipment you purchase, but we will require you, the Vendor, to pass along to the Buyer any applicable vendor’s or manufacturer’s warranty. As part of our Rules for Vendors, Vendor (not Gear-Source, Inc.) will, unless specified on gearsource.com or a Purchase Order, warranty to Buyer that the Equipment being sold is free from defects of material and workmanship for a period of ninety (90) days. And, Vendor (not Gear-Source, Inc.) will and hereby expressly warrants and represents to Buyer that the Equipment to be delivered is the exact Equipment being advertised by Vendor on gearsource.com and shall be in as good of working order as advertised. But, gearsource.com is also not responsible to Buyer if any Vendor or manufacturer refuses to honor any Vendor or manufacturer warranty or fails to pass it along to Buyer. Gear-Source, Inc. does not warrant the accuracy of any information provided through the “More Info” feature, any information provided through info@gearsource.com or via the “Description” provided with the Equipment on gearsource.com, or through direct correspondence with Gear-Source, Inc. personnel or those of the Vendor. In all such cases, you will indemnify and defend us in connection with all such claims.
b. No Equipment Warranty. If there will be no warranty provided by the Vendor or manufacturer, it will be indicated by Vendor clicking ""no warranty,"" or specified on the purchase or information pages of gearsource.com indicating that such Equipment comes with no warranty. To the extent legally permitted, Gear-Source, Inc. excludes any and all implied warranties, terms and conditions. Gear-Source, Inc. is not liable for any loss of money, goodwill, reputation or any special, indirect or consequential damages arising directly or indirectly out of your use or your inability to use gearsource.com, and any services or tools associated therewith. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so in some instances, these disclaimers and exclusions may be omitted or may not apply to Vendor or Buyer. However, it is the intent of the parties that they will apply to Vendor to the furthest extent permitted by law and/or contract.
c. No Ownership of Equipment by Gear-Source, Inc. While Gear-Source, Inc. may receive, as a convenience for the parties, pre-payment by Buyer from the transaction and remit amounts due to Vendor (less applicable fees, etc.), Gear-Source, Inc. does not transfer legal ownership of items from any seller to any buyer (i.e., from any Vendor to Buyer), does not purchase the item from Vendor and resell the to Buyer, does not take any item on consignment, engages in no bailment and nothing in this Agreement or any of the Rules modifies or shall modify the governing provisions of the Commercial Code of any state, and the Uniform Commercial Code § 2-401(2) unless the Buyer and Vendor expressly agree otherwise, and Gear-Source, Inc. agrees in writing to the same.
d. Limitation of Liability. Vendor agrees that: Gear-Source, Inc. is a listing and sales facilitation service only, unless specifically stated on gearsource.com that the Equipment is a “gearsource.com owned Equipment.” Gear-Source, Inc. does not purchase the Equipment and re-sell the Equipment; Gear-Source, Inc. is not an auction site; Gear-Source, Inc. does not engage in consignment of goods; and no bailment of any kind is created in any way in connection with the Equipment. Only if the applicable Equipment is advertised specifically as a “gearsource.com owned Equipment,” gearsource.com will be treated as the Vendor. Accordingly, except only for Equipment expressly marked as “gearsource.com owned Equipment,” Gear-Source, Inc. does not accept any responsibility for or hold itself out as offering such activities. Also, Vendor will not hold Gear-Source, Inc. responsible for any other gearsource.com users’ content, actions, inactions, or any items or services of any kind or nature that they List or purchase via gearsource.com, or Gear-Source, Inc.’s destruction of, or refusal to offer or sell any allegedly fake, counterfeit, or illegal items. Vendor expressly acknowledges that because Gear-Source, Inc. is not an auctioneer or Vendor’s or Buyer’s agent, Gear-Source, Inc. has no fiduciary duty to Vendor or Buyer and is not responsible for obtaining for Vendor or Buyer the highest or lowest price available for any Equipment listed via gearsource.com. Instead, gearsource.com, and all services associated with it provided by Gear-Source, Inc., serves as a venue to allow Vendors to offer and sell, to facilitate Vendors’ offer and sale of the Equipment, and to facilitate Buyers’ purchase of Equipment from the Vendor(s). To the extent that any Gear-Source, Inc. personnel, or Gear-Source, Inc. are in any way involved with the actual transaction (such as the offer, sale or negotiation of the sale of any Equipment), they do so as a mere convenience to Vendor and/or Buyer and not as the Vendor’s or Buyer’s agent or employee.
e. No Control Over Offers and Sales. While Gear-Source, Inc. may help facilitate the offer and sale of the Equipment and/or may help to facilitate resolutions of disputes among Vendor and buyers, it has no control over the terms offered by buyers or sellers and does not guarantee the quality, safety or legality of any items advertised, offered or sold, the truth or accuracy of any statement made by any party in connection with any Listing, negotiation or transaction process, or the ability of any seller to sell or any buyer to buy, pay for or receive in a timely manner, any items or Equipment listed or offered or sold via gearsource.com, or any related Services, or that any buyer or seller of any kind or nature, will actually complete the transaction for the item, return the item or timely pay for such item.
f. Use Is “As Is”. YOUR USE OF THE SERVICES AND GEARSOURCE.COM IS AT YOUR SOLE RISK. THE SERVICES AND GEARSOURCE.COM ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITHOUT WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR USE, OR ANY WARRANTIES OF TITLE OR NON-INFRINGEMENT. WE DO NOT WARRANT THAT GEARSOURCE.COM WILL BE AVAILABLE OR OPERATE IN AN UNINTERRUPTED OR ERROR-FREE MANNER OR THAT ERRORS OR DEFECTS WILL BE CORRECTED. IN ADDITION, WE DO NOT WARRANT THAT INFORMATION AVAILABLE ON OR THROUGH GEARSOURCE.COM INCLUDING, WITHOUT LIMITATION, ESTIMATED FEES BASED ON USER-PROVIDED INPUT, ANY SALES TRANSACTIONS PAGE OR SIMILAR SOFTWARE FUNCTION, ARE APPROPRIATE, ACCURATE OR AVAILABLE FOR USE IN ANY PARTICULAR JURISDICTION, AND ACCESSING THEM FROM JURISDICTIONS WHERE THEIR CONTENT IS ILLEGAL IS EXPRESSLY PROHIBITED. FURTHER, WE DO NOT WARRANT THAT PUBLISHED FEES BASED ON USER-PROVIDED INPUT IS AN ACCURATE OR TRUE REFLECTION OF THE FEES, TERMS AND CONDITIONS THAT WILL BE BINDING BETWEEN THE CONTRACTING PARTIES.
g. Limitation of Damages. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WE WILL NOT BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, CONSEQUENTIAL OR EXEMPLARY DAMAGES ARISING OUT OF OR IN ANY WAY RELATED TO THIS AGREEMENT OR THE USE OF THE SERVICES OR ANY ASPECT OF GEARSOURCE.COM, INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES). TO THE EXTENT THE FOREGOING LIMITATION OF LIABILITY IS, IN WHOLE OR IN PART, HELD TO BE INAPPLICABLE OR UNENFORCEABLE FOR ANY REASON, THEN THE AGGREGATE LIABILITY OF US FOR ANY REASON AND UPON ANY CAUSE OF ACTION (INCLUDING, WITHOUT LIMITATION, NEGLIGENCE, STRICT LIABILITY AND OTHER ACTIONS IN CONTRACT OR TORT) ARISING OUT OF OR IN ANY WAY RELATED TO GEARSOURCE.COM OR THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED UP TO ONE HUNDRED DOLLARS ($100).
THE LIMITATION OF LIABILITY HEREIN APPLIES TO ALL LIABILITIES IN THE AGGREGATE, INCLUDING, WITHOUT LIMITATION, THOSE RESULTING FROM YOUR USE OR YOUR INABILITY TO USE GEARSOURCE.COM OR SERVICES, OR ANY OTHER MATTER ARISING FROM OR RELATING TO GEARSOURCE.COM. BECAUSE SOME STATES OR JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
h. No Control Over Access. In order to use gearsource.com or the Services, you must obtain access to the World Wide Web (or such technology we may designate) directly or through devices that access content and pay any and all service fees, if any, associated with such access; we are not responsible for such fees or costs.
Acceptable Use Policy
a. Individual Use. Except as provided in (b) below, you agree that you are only authorized to visit, view and to retain a single copy of pages of this gearsource.com website solely for your own use and that you shall not duplicate, download, publish, modify or otherwise distribute any material on this gearsource.com website for any purpose other than for your own individual use unless otherwise specifically authorized by us. Gear-Source, Inc. may post “Legal Notices” (like the ®, SM, or symbols) and various credits on pages of gearsource.com. Your use of gearsource.com is subject to our Legal Notices and you must not remove these Legal Notices or credits, or any additional information contained along with the Legal Notices and credits which may not be removed, even from your permitted copy.
b. Deep Links. You shall not, without the express prior written permission of gearsource.com, “deep-link” to this gearsource.com website, meaning that you will not create, post, display, publish or distribute any link to any page other than the front (home) page of gearsource.com for any purpose, unless specifically authorized in writing by us to do so. You must not create any links from your website to any website which bears the Marks or our copyrighted materials or which offer products or services sales, without our express written consent. If you wish to deep link or any other link to gearsource.com for any reason, you must contact us at info@gearsource.com and obtain our express prior written approval for such deep links or other links.
c. Security, Cracking and Hacking. You shall not violate or attempt to violate the security of gearsource.com or the Services. Accordingly, you shall not: (i) access data or materials not intended for you; (ii) log into a server or account which you are not authorized to access; (iii) attempt to probe, scan or test the vulnerability of a system or network or to breach security or authentication measures without proper authorization; or (iv) attempt to interfere with service to any user, host or network, including without limitation, via means of submitting a virus to the Services, overloading, “flooding,” “mailbombing” or “crashing” gearsource.com or the Services. Violations of system or network security may result in civil or criminal liability. We reserve the right to investigate occurrences which may involve such violations and may involve, and cooperate with, law enforcement authorities in prosecuting users who have participated in such violations. You understand that data and communications, including e-mail and other electronic communications, may be accessed by unauthorized third parties when communicated over the Internet. You agree that it is your responsibility, and not ours, to obtain and use third party software products that support encryption and other security protocols compatible with such protocols (if any) that may be used by us from time to time in connection with gearsource.com or the Services.
d. Spidering. THE USE OF ANY TOOLS, PROGRAMS, ROBOTIC ALGORITHMS OR PRODUCTS TO AUTOMATICALLY DOWNLOAD OR “SPIDER” GEARSOURCE.COM OR ANY OF THE PAGES OF GEARSOURCE.COM INFRINGES ON OUR COPYRIGHTS. DO NOT USE ANY SUCH TOOLS OR PRODUCTS ON OR IN CONNECTION WITH THE SERVICES!
e. You Are Responsible For All of Your Activities and All of The Content You Post. You represent and warrant that any information you post or provide to us by means of gearsource.com, including, without limitation, as part of any Listing or Registration or application or to gain access to gearsource.com or any Services, is truthful, accurate, not misleading and offered in good faith. Any information disclosed to you via the Services including, without limitation, any content in the personalized areas of gearsource.com, if any, may be used only for its intended purpose. We expect that you will exercise caution, good sense and proper judgment in using gearsource.com or the Services. You agree NOT to use gearsource.com or any of the Services for or in connection with any of the following activities:
i. spoofing or otherwise impersonating any person or entity, including, without limitation, any other users or any of our personnel, or falsely stating or otherwise misrepresenting your identity or affiliation in any way, or forging any TCP/IP packet header or any part of the header information in any e-mail or other posting;
ii. any fraudulent or illegal purpose;
iii. e-mailing, uploading, or otherwise transmitting or using the Services in furtherance of the use or distribution of any unlawful, harmful, harassing, defamatory, tortious, libelous, abusive, threatening, vulgar, sexually explicit, obscene, hateful, racially, ethnically or otherwise objectionable material of any kind, or any material that is invasive of another’s privacy or exploits children, or transmitting any sexually explicit materials, including images and other content;
iv. transmitting material that contains viruses, Trojan horses, worms, time bombs, cancelbots or other computer programming routines or engines that are intended to damage, destroy, disrupt or otherwise impair a computer’s functionality or the operation of our (or anyone else’s) Services, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or information, or transmit any materials that otherwise violate our rules or policies;
v. violating our rights in or to our intellectual property; and
vi. to assist you with breaching this Agreement, or agreement between any third party and us.
f. Your Access to Certain Services. As a convenience and courtesy to you, in addition to the Services offered to the general user of gearsource.com, we may provide you access to gearsource.com and other websites operated by our affiliates for purpose of contracting with us or affiliated licensed or franchised businesses to sell products or services to you. If we do so, any offers or sales made in connection with the use of our affiliates’ websites will be subject to our Rules and this Agreement if no other terms of use or the like are posted on those affiliates’ websites. See our Rules which may be published on gearsource.com. In addition, you understand that certain Services on gearsource.com such as a general contents page and a current information page (which provides information that may include, without limitation, news of interest to users of gearsource.com, shipper information and other Services) may include materials and information from third parties, and you acknowledge and agree that we have minimal control over such information. Accordingly, we cannot guarantee, represent or warrant that the content contained in gearsource.com or through the Services is/are accurate, appropriate to you, and/or inoffensive.
g. Compliance with Laws. You may use the Services and gearsource.com only for lawful purposes. The Services and use of gearsource.com are subject to, and you agree that you will at all times comply with, all applicable local, state, national, and international laws, statutes, rules, regulations, ordinances and the like applicable to the use of the Services. This obligation includes your agreement to comply with all applicable laws or industry-specific regulations, and rules relating to the export of technical and other data from the United States (and from your country if you are not located in the United States) and your agreement not to export or re-export any such data or any other content or materials in violation of such laws, rules or regulations without first obtaining all necessary licenses, consents and approvals therefore, as well as authorization from us.
Intellectual Property Policy:
a. Do Not Violate Our or Third Party Intellectual Property Rights. Without any of our rights or your obligations under this Agreement, you may not, and by using the Services or a gearsource.com website you agree not to, use the Services or a gearsource.com website to: (i) transmit material that is copyrighted, unless you are the copyright owner or have obtained the permission of the copyright owner to transmit it; (ii) transmit material that reveals trade secrets, unless you own them or have the permission of the owner to so transmit them; or (iii) transmit material that infringes on any Intellectual Property Rights (as defined below) of others or violates the privacy or rights or publicity of others. For purposes of this Agreement, the term “Intellectual Property Rights” means collectively, rights under patent, trademark, copyright and trade secret laws, and any other intellectual property or proprietary rights recognized in any country or jurisdiction worldwide, including, without limitation, moral rights and similar rights.
b. Ownership. The trademarks, trade names, logos, color schemes, service marks, slogans, and similar means of identifying products or services displayed on any of the pages of gearsource.com, including without limitation, any variation of the terms or phrases “GEAR-SOURCE®” (wordmark) ""GEAR-SOURCE®"" (word and design) (collectively, the “Marks”) as well as all copyrighted or copyrightable material, images, sound, text, graphics, software and source code (“Copyrights”) and other Intellectual Property Rights are our or our licensors’ registered and/or common law marks, Copyrights or other Intellectual Property Rights. All content and materials on gearsource.com including, without limitation, the Marks and Copyrights, button icons, images, audio clips, and software, copyrights, patents and other Intellectual Property Rights included in the Services or on gearsource.com, are our property or our licensors’ and are protected by U.S. and international copyright, patent, trademarks, and other proprietary rights and Intellectual Property Rights laws. The compilation of all content on gearsource.com and/or the Services is our exclusive property and is protected by U.S. and international copyright laws. All software used on gearsource.com is our property or our licensors’ and is protected by U.S. and international copyright laws. Except to the minimum extent otherwise expressly permitted under copyright law, no copying or exploitation of material from the Services is permitted without the express written permission of us and any other applicable copyright owner.
c. Reproduction and Copying. You may not copy, reproduce, republish, upload, post, transmit, sell, distribute, transfer or modify any of the content, data, information or materials found on gearsource.com, but you may download, display and print one (1) copy of the content displayed on our site on a single computer for your personal-non-commercial use or use in connection with your individual purchase or sale of the Equipment purchased or sold by you via gearsource.com.
d. Unauthorized Use. You will not use the Marks, Intellectual Property Rights, or other content on any site, website, web page, portal, or any form of advertisement which you operate, authorize or control without our express written permission. You may not use our Marks or any other of our Intellectual Property Rights (like copyrighted materials) in any search engine descriptions, content, meta-tags, “white lettering,” key words, or other means of directing or influencing web traffic to any website, web page, portal or e-mail operated, controlled or authorized by you without our express written permission and your doing so constitutes a violation of our rights under U.S. Federal law, U.S. States’ laws, and other international laws and a breach of this Agreement.
e. Unauthorized Registration. You will not register or adopt or use any names, URLs, trademarks, slogans, trade names, trademarks, service marks, e-mail addresses, URLs, meta-tags, key words, search descriptions or the like that are the same or are confusingly similar to the Marks or Copyrights. Without our prior written consent, you will not submit or maintain any information submitted to search engines which incorporate any content from gearsource.com, our Intellectual Property Rights, the Marks, our copyrighted materials or any marks that are confusingly similar to the Marks.
f. Resale of Services/Reservation of Rights. You acknowledge that you do not acquire any ownership or license rights by virtue of downloading the Marks, Copyrights, other Intellectual Property Rights or any other copyrighted material from the Services. All rights not expressly granted under this Agreement are expressly reserved to us. If you believe your rights under applicable copyright laws are being infringed, you may notify our designated personnel who assist us with our Copyright notice and takedown policies.
Account Password Policy
When you become a Registered user of gearsource.com and the Services, or access any gearsource.com related website, you must receive or establish one or more passwords and accounts in the manner we designate. Maintaining the confidentiality and security of your passwords and accounts is solely your responsibility. Accordingly, you must maintain the security and confidentiality of your accounts. Do not divulge your password or account information to any third party. You are entirely responsible for all activities that occur on or through your account(s), and you agree to notify us immediately about any unauthorized use of accounts or any breach of security. You agree that we and our affiliates are not and will not be responsible for any losses incurred in connection with any misuse of or failure to secure passwords, nor do or will they have any responsibility whatsoever for your failure to comply with this Section.
Privacy Policy
You agree to the terms of our then current Privacy Policy at www.gearsource.com and as published in the Rules from time to time.
Miscellaneous Terms
a. Merger Clause. Subject to the terms of this Agreement and our other Rules and policies for gearsource.com, this Agreement constitutes the entire agreement between you and us with respect to the subject matter addressed herein, and governs your use of gearsource.com and the Services, superseding any prior agreements between you and us relating to such subject matter, but this Agreement may be supplemented by any other agreement you enter into with us pursuant to a Registration to access certain features of gearsource.com and/or the Services. The failure of us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision. If any provision of this Agreement is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties’ intentions as reflected in the provision, and that the other provisions of this Agreement remain in full force and effect.
b. Section Headings. The section headings used in this Agreement are for convenience only and have no legal or contractual effect.
c. Use by Adults Only. Without limiting the foregoing, our Services at gearsource.com are not intended for use by or availability to minors. IF YOU ARE NOT LEGALLY AN ADULT UNDER THE LAW, ARE LEGALLY UNABLE TO ENTER INTO BINDING CONTRACTS WHERE YOU LIVE OR IF YOU ARE UNDER 18 YEARS OF AGE, YOU MAY NOT REGISTER VIA OUR REGISTRATION FEATURE, USE GEARSOURCE.COM, ACCESS GEARSOURCE.COM OR USE THE SERVICES. IF SO, PLEASE IMMEDIATELY DISCONTINUE USE OF GEARSOURCE.COM AND THE SERVICES AND DO NOT ACCESS GEARSOURCE.COM. IF YOU ARE UNDER 18, DO NOT PROVIDE US ANY BIRTH DATE OR OTHER PERSONALLY IDENTIFIABLE INFORMATION.
d. Choice of Law and Forum. Gearsource.com and the Services are controlled by us from within the State of Florida, USA, although each may be accessed and used throughout the world. Subject to this Agreement, by submitting a Registration or by accessing or using the Services, you and we each agree that the substantive laws of the State of Florida, USA will govern with respect to all matters relating to or arising from this Agreement, or the use (or inability to use) the Services, and that such laws will apply without regard to principles of conflict of laws. Subject to the dispute resolution procedures set forth above, you and we agree and hereby submit to the exclusive jurisdiction and venue of the appropriate State and Federal courts located in Broward County, Florida, USA with respect to such matters. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to the Services must be filed or otherwise commenced within one (1) year after such claim or cause of action arose or be forever barred.
e. Indemnity of Us and Attorneys’ Fees. You agree to indemnify and hold us, our owners, officers, directors, employees, affiliates and agents harmless, and, at our request, to defend us from and against any claim, demand, cause of action, debt, loss or liability, including reasonable attorneys’ fees, to the extent that such action is based upon, arises out of, or relates to your use (or inability to use) gearsource.com or the Services, any aspect of gearsource.com, or any other activities of yours accomplished using the Services or gearsource.com. In the event of any dispute between you and us and we incur attorneys’ fees or costs in connection with enforcing our rights hereunder, you agree to pay all of our attorneys’ fees and costs incurred by us in enforcing our rights hereunder.
f. Order of Precedence. This Agreement governs your use of gearsource.com and use of and access to the Services. This Agreement does not modify, alter or amend any other agreement you have entered or will enter into with us or any of our related or affiliated entities. To the extent that any provision of this Agreement or any supplemental agreement offered as any part of any Registration for additional Services on gearsource.com, conflicts with any provision of your other agreements with us or any of our related or affiliated entities, the terms of such other conflicting term(s) of this Agreement.
g. Assignment. You may not assign this Agreement without our written consent. We may freely assign this Agreement and our right under it without your consent or notice to you. This Agreement is binding on our successors and assigns.
h. Electronic Signature. You acknowledge that your electronic submissions constitute your agreement and intent to be bound by the agreements into which you thereby enter. Pursuant to any applicable statutes, regulations, rules, ordinances or other laws, including without limitation the Electronic Signatures in Global and National Commerce Act, P.L. 106-229 (the “E-Sign Act”) or other similar statutes, YOU HEREBY AGREE TO THE USE OF ELECTRONIC SIGNATURES, CONTRACTS, APPLICATIONS AND OTHER RECORDS AND ELECTRONIC DELIVERY OF NOTICES, POLICIES AND RECORDS OF TRANSACTIONS INITIATED OR COMPLETED THROUGH GEARSOURCE.COM. Further, you hereby waive any rights or requirements under any statutes, regulations, rules, ordinances or other laws in any jurisdiction which require an original signature or delivery or retention of non-electronic records, or to payments or the granting of credits by other than electronic means. You may obtain a copy of this Agreement by printing it now at no additional cost to you or by contacting us later at www.gearsource.com. We may charge you up to $15 per copy of this Agreement if we send a copy to you at a later date.
BY CLICKING THE BUTTON MARKED [I ACCEPT] OR BY ANY OTHER ACT ON YOUR PART TO USE GEARSOURCE.COM OR THE SERVICES IN ANY WAY, YOU ACKNOWLEDGE THAT YOU HAVE READ AND UNDERSTAND AND AGREE TO BE LEGALLY BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL OF THE TERMS AND CONDITIONS, POLICIES AND PROCEDURES INCORPORATED INTO IT.
IF YOU DO NOT UNDERSTAND THE TERMS AND CONDITIONS OF THIS AGREEMENT OR DO NOT AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ALL OF THE AGREEMENTS POLICIES AND PROCEDURES THAT ARE INCORPORATED INTO IT, DO NOT CLICK [I ACCEPT].
