The purpose of this Agreement is to set forth the terms and conditions under which, among other things, EMK will license to You use of certain of EMK’s technology, software and/or services such you can make use of the Website and/or Application for purposes of selling metalworking machinery, locating equipment for purchase and/or learning about machine tools, tooling and/or related topics. References to “Website” shall mean the website currently located at www.indumek.com and references to “Application” shall mean any mobile application made available by EMK either in the iTunes Store, within the Google Play store or any other similar store where mobile applications can be purchased and/or downloaded. In addition, InduMEK has entered into various arrangements with third parties to offer other products and services at the Web site, including, without limitation, financing, lubricants and metals. EMK’s services (the “Services“) are described within various pages of the Website and/or Application. You should review these pages to gain a better understanding of the Services and the goals behind the Website and/or Application. Access to the Website and/or Application for the purposes described above is sometimes reference to herein as the “Purpose“.
EMK is not a manufacturer, retailer or re-seller with respect to machinery, equipment or any other products or services listed on the Website or within the Application. Rather, EMK is merely an online and/or mobile resource for buyers and sellers of these goods and services to locate one another. EMK does not endorse or recommend the products or services of any particular company or manufacturer. EMK is not your agent, nor is EMK an agent for any of the companies which list products and/or services at the Website or within the Application. EMK’s services are administrative only. EMK, in this regard, is providing nothing more than a listing service where such products and/or services can be purchased directly from such third party vendors or resellers, and EMK shall not be liable in any way for the condition of any such product, the performance of any such service or any other action taken by any of these third party vendors. You agree that EMK shall not be liable for any damages or costs of any type arising out of or in any way connected with your purchase and/or use of any machine, tooling, equipment or other item or service at the Website or via the Application.
More specifically, EMK provides the Services and the Web site so that sellers may offer assets for sale and buyers may place offers to purchase these assets directly with the seller. As such, EMK is neither a principal interested in the transactions, nor an agent of buyer or seller. EMK does not have the power to transfer title to any assets offered by sellers at the Web site. Because EMK is not a party to any transaction, EMK does not make, and should not be construed as having made, any representation or warranty of any kind concerning any of the offered assets, including without limitation any representation or warranty regarding the quality, safety or legality of the offered assets, or the truth or accuracy of any offerings. Additionally, EMK makes no representation or warranty of any kind as to the willingness or ability of either a buyer or seller to complete a sale. Buyers and sellers are solely responsible for independently verifying the background and credit-worthiness of those parties with whom they enter into, or with whom they prospectively will enter into, a transaction, as well as the condition or any description of an asset involved in a prospective transaction.
Further to your release above, in the event of any controversy or dispute regarding any transaction conducted through use of the Services, the Website or the Application (a “Dispute“), you hereby release EMK, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (the “Released Parties“), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys’ fees, which you may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a Dispute. If you are a California resident, you hereby waive your rights under Section 1542 of the California Civil Code, which states: “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.”
EMK expressly reserves the right to discontinue, suspend or terminate the offering of one or all of its Services at any time.
EMK hereby grants You a non-transferable, non-exclusive, revocable, limited license to access and use EMK’s software platform (the “Application”) as made available at the Website and/or via mobile application during the Term (as defined below) solely for the Purpose. EMK may, from time to time, update or modify the Application, release new versions of the Application or create new modules related thereto, each of which may, at EMK’s discretion, be included within the license described above. You shall not be permitted to sublicense or transfer any of Your rights hereunder including, without limitation, access to the Application or password-protected portions of the Website
- Certain Restrictions.
You shall not directly or indirectly copy or reproduce all or any part of the Application or the Website, whether electronically, mechanically or otherwise, in any form including, but not limited to, the copying of presentation, style or organization. You shall use the Application and Website solely for its intended purposes and shall not use the Application or Website for the benefit of any third party except as specifically contemplated under this Agreement. You shall not use the Application or Website to post, transmit, convey, submit, distribute, store or destroy any content, photographs, video, descriptions, drawings, content, audio materials, text, messages or other information (collectively, “Posted Information“): (a) in violation of any applicable law, statute, ordinance or regulation; (b) in a manner that will infringe the intellectual property rights of others; (c) that is defamatory, obscene or trade libelous; (d) that contains any viruses, Trojan horses, worms, time bombs, cancel bots or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (e) that is false, misleading or inaccurate in any way; or (f) in violation of the any acceptable use policy or other policy posted at the Website or within the Application from time to time. You shall not violate or attempt to violate the security of the Application or the Website. You shall not reverse engineer, decompile, disassemble or otherwise attempt to derive source code or other trade secrets from the Application or Website, including, without limitation, any of the software comprising or in any way making up a part of the Application or Website. You shall defend and indemnify EMK, at Your sole cost and expense, from and against any claims, damages, liabilities and/or expenses arising out of Your breach of any of Your obligations or representations set forth in this Section 3.
- Certain Responsibilities.
You shall be solely responsible for: (i) all Posted Information you post at the Website and/or input into the Application; (ii) ensuring that all Posted Information is appropriate in tone and is accurate; (iii) complying with all applicable laws, rules and regulations at all times; and (iv) maintaining all passwords and access codes to the Application and/or Website, and refraining from sharing or otherwise permitting third parties to use any such passwords and/or access codes to access the Application and/or Website. You acknowledge that once a message, content or any Posted Information is submitted or posted to the Website or the Application, You may not be able to withdraw or delete it.
- EMK Rights.
EMK shall be entitled, at its sole discretion, to: (i) remove or cancel any Posted Information that EMK deems to be offensive, illegal, inaccurate, contrary to any agreement or contract or inappropriate in any way, and EMK shall not be liable to You or any other party on account of any such decision; (ii) review all Posted Information to ensure that it complies with all applicable rules and policies; or (iii) suspend, restrict and/or terminate, without notice of any kind, Your access to the Application or Your EMK Website account for any reason. Notwithstanding the foregoing, EMK shall not be required to review or monitor any Posted Information entered into the Application or otherwise posted by You at the Website, and You shall be solely responsible for the veracity and accuracy of all such data, content and information.
Fees charged for the various products and/or services offered at the Website or through the Application, including fees for listing machines and accessing the MM Service (as defined below), are set forth in various locations throughout the Website, within the Application or in a separate document. In consideration for providing the Services, you agree to pay all such fees which are due and owing on account of the selections you have made at the Website, within the Application or through a EMK representative (collectively, the “Fee”). Fees are payable as set forth in the applicable portion of the Website or Application, and you hereby agree to pay all costs and expenses incurred by EMK (including attorneys’ fees) in collecting past due Fees. In addition, past due Fees shall accrue interest at the lesser of 15% per annum or the maximum rate allowed by law. By checking the “I Accept” box at the end of this Agreement, downloading the Application or otherwise using any Services, you hereby agree to pay all Fees due and owing to EMK (and, if applicable, authorize InduMEK to charge the credit card you have on file with EMK for all Fees due and owing hereunder). All fees described herein (including, without limitation, the Fees) are non-refundable once paid.
- Term and Termination.
This Agreement shall continue in full force until the earlier to occur of (i) either party providing written or electronic notice of termination to the other party (at which point You shall no longer be entitled to access non-public portions of the Website or use the Application), or (ii) EMK electing to terminate Your access to the Application or Website, with or without notice (the “Term”). Upon termination of this Agreement for any reason, You shall no longer be entitled to access or use the Application or any other non-public portions of the Website. In addition to the foregoing, in the event that EMK determines, in its sole and absolute discretion, that You have breached this Agreement, threatened to breach this Agreement, committed any fraud or deception, breached any EMK policy in effect from time to time or otherwise failed to perform to the standards required of EMK, EMK shall be entitled, at its discretion and in addition to any other remedies it may have hereunder and/or at law, to terminate, cancel or suspend Your access to the Application and/or eliminate Your access to submit Posted Information within the Website or Application, in each of the foregoing cases at any time and for any period of time. EMK shall not be responsible for the return of any Posted Information of any kind to You upon any termination of this Agreement or suspension of Your access to the Application or Website, including without limitation any information input into the Application or Website by You. Sections 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 of this Agreement shall survive any termination of this Agreement.
- Intellectual Property.
- General Ownership.
All trademarks, patents, copyrights and other intellectual property rights owned by either party on the date hereof shall continue to be owned solely by such party, and except as set forth herein, nothing in this Agreement shall be deemed to confer any rights to any such intellectual property on the other party. For purposes of clarity: (i) as between You and EMK, You shall be deemed to be the sole owner of all Posted Information entered into the Application or otherwise posted by You; and (ii) EMK is the sole owner of the name “InduMEK.com” as well as the Website, the Application, and all source code, object code, software, content, copyrights, trademarks, patents and other intellectual property related thereto or included therein. All suggestions, recommendations, bug-fixes, error-fixes or other communications from You to EMK regarding the Application or the Website shall, upon submission to EMK, be owned solely and exclusively by EMK. In addition, EMK shall be entitled to post feedback at the Website and within the Application (and/or allows others to do so), both positive and negative, regarding any user. You acknowledge and agree that the applicable supplier(s) of any third party software included within the Application shall own all worldwide rights, title and interest in and to such third party software (and any intellectual property rights therein), subject to such suppliers’ license, if any, of such third party software to EMK.
- Use of Posted Information.
In exchange for Your use of the Website and/or the Application, You hereby grant to EMK an unlimited, perpetual, irrevocable, fully-paid, transferable, assignable, sub-licensable, worldwide license to use, reproduce, modify, publish, edit, translate, distribute, commercially exploit, repurpose, perform and display any and all Posted Information You post to the Website, submit to EMK or post through the Application, alone or as part of other works in any form, media or technology whether now known or hereafter developed, and to sublicense such rights through multiple tiers of sublicensees, in connection with EMK performing the services described herein. You also irrevocably grant the users of the Application and/or the Website the right to access and review Your Posted Information in connection with their use of the Application and/or Website. Finally, You irrevocably waive, and cause to be waived, against EMK and its users any claims and assertions of moral rights or attribution with respect to Your Posted Information. EMK shall be entitled to display advertising and/or any other content at locations of its choosing within the Website and/or Application, including without limitation adjacent to Your Posted Information.
- Confidentiality; Non-Solicitation.
You agree to treat as confidential all confidential information of EMK, not to use such confidential information for any purpose other than to the limited extent necessary to use the Application and not to disclose such confidential information to any third party except as may be reasonably required pursuant to this Agreement and subject to confidentiality obligations at least as protective as those set forth herein. Without limiting the generality of the foregoing, You shall use at least the same degree of care which You use to prevent the disclosure of Your own confidential information of like importance to prevent the disclosure of confidential information disclosed by EMK, provided, however, that in no event shall such degree of care be less than reasonable in light of general industry practice. In addition, during the Term and for a period of one year thereafter, You shall refrain from directly or indirectly soliciting, enticing, persuading or inducing any individual who is then, or has been within the 1-year period prior to the applicable date, an employee of EMK to terminate employment with EMK or to become employed by or enter into contractual relations with any other individual or entity.
- No Warranties.
Except as explicitly set forth herein, neither EMK, its affiliates or any of any such party’s equity holders, directors, officers, employees, agents, suppliers, licensors nor the like, makes any warranties of any kind, either expressed or implied, including, without limitation, (a) warranties of merchantability or fitness for a particular purpose, (b) that the Website or the Application will be error-free, (c) as to a minimum level of uptime for the Application or the Website, (d) as to the condition, utility or potential uses of any piece of machinery, equipment or tooling listed at the Website and/or within the Application, (e) as to the integrity of any potential buyer or seller or any items listed at the Website and/or Application, or (f) as to the results that may be obtained by You by entering into this Agreement and/or using the Application or Website. You agree and acknowledge that the Application and Website are licensed and/or provided hereunder on an “as is” basis. In addition, You hereby agree and acknowledge that: (i) EMK shall not be responsible for any actions taken by any other party using the Application or Website or reviewing any of Your Posted Information; (ii) EMK does not recommend or endorse any third parties hereunder, and makes no representations or warranties whatsoever regarding any such third party; (iii) EMK is not responsible for any other party’s compliance with applicable laws, rules or regulations; (iv) EMK’s services are administrative in nature and EMK is not responsible for verifying the accuracy or veracity of any Posted Information; (v) EMK shall not, under any set of circumstances, be responsible or liable for an content, text, photographs and/or other Posted Information, including any Posted Information which may violate applicable law and/or a third party’s intellectual property rights; and (vi) the Application and/or Website may not function properly or as intended at times.
- Unavailability of Website or Application.
You are responsible, at your sole cost and expense, for providing all equipment necessary to access the Internet, the Website and/or the Application. While it is EMK’s objective to make the Website and Application accessible at all times, the Website and/or Application may be unavailable from time to time for any reason including, without limitation, routine maintenance. In addition, various portions of the Website or Application may operate slowly from time to time. You understand and acknowledge that due to circumstances both within and outside of the control of EMK, access to the Website and/or the Application may be interrupted, suspended or terminated from time to time. In particular, and not in limitation of the foregoing, EMK shall not be liable in any way for any delay in responding to an inquiry or question forwarded by You or the effects any delay or unavailability may have on You. YOU AGREE THAT EMK SHALL NOT BE LIABLE FOR ANY DAMAGES ARISING FROM ANY SUCH INTERRUPTION, SUSPENSION OR TERMINATION OF THE WEBSITE AND/OR APPLICATION AND THAT YOU SHALL PUT IN PLACE CONTINGENCY PLANS TO ACCOUNT FOR SUCH PERIODIC INTERRUPTIONS OR SUSPENSIONS OF THE WEBSITE AND/OR APPLICATION.
- Limitation on Liability.
EMK SHALL NOT, UNDER ANY SET OF CIRCUMSTANCES, BE LIABLE TO YOU FOR ANY SPECIAL, INCIDENTAL, INDIRECT, PUNATIVE OR CONSEQUENTIAL DAMAGES, INCLUDING, BUT NOT LIMITED TO, LOST PROFITS OR DATA, ARISING OUT OF THIS AGREEMENT OR YOUR USE OF THE APPLICATION OR WEBSITE, WHETHER BASED IN CONTRACT, TORT OR ANY OTHER LEGAL THEORY, EVEN IF ADVISED OF THE POSSIBLITY OF SUCH DAMAGES. IN ANY EVENT, EMK’S TOTAL LIABILITY TO YOU FOR ANY CLAIM ARISING HEREUNDER OR RELATED HERETO SHALL NOT EXCEED $50.
- Force Majeure.
EMK shall not be liable to You for failure or delay in performing any obligations hereunder if such failure or delay is due to circumstances beyond its reasonable control.
- General Terms.
The following terms and conditions govern general use of the Website:
- You agree to abide by all restrictions displayed on the Website and/or within the Application, as and when they are updated from time to time, including, without limitation, the rules in this Section 13. EMK reserves the right to remove any content You post to the Website or within the Application, block the sending of any inquiry or other content EMK deems inappropriate in its sole discretion, and may terminate all access to the Website and/or Application at any time in its sole discretion for any or no reason. While EMK reserves the right to monitor all postings and/or content posted at the Website and/or within the Application, it has no obligation to do so.
- Permitted Uses.
You may use the Website only in good faith for the purposes described herein. You may download and print out portions of the content from the Website for non-commercial purposes provided that You follows the rules in this Agreement. You may not use the Website or Application to promote another business or commercial venture, except to the extent EMK elects to offer business accounts or subscriptions and you take all actions necessary to subscribe.
Except as expressly permitted under other provisions of this Agreement, You may not modify, reproduce, duplicate, copy, photocopy, print, republish, display, translate, transmit, distribute, sell, resell, rent, lease, loan, exploit, reduce to any electronic medium or machine-readable form, or otherwise make available in any form or by any means all or any portion of the Website, the content or any information or materials retrieved from either of them, including, without limitation, graphics and logos, in whole or in part, for any purpose.
- Derivative Works.
You may not create compilations or derivative works of the Website or the Application, the Website or Application content or any other materials from the Website or Application.
- Proprietary Notices.
You may not use the Website, Application, the Website and/or Application content or any other materials from the Website or Application in any manner that may infringe upon any copyright or other intellectual property right, proprietary right, or property right of EMK or any third party.
- Information Distribution.
You may not use the Website and/or Application or any communications service, chat room, message board, blog, forum, newsgroup, or other interactive service that may be available to You on or through the Website or Application to transmit, upload, post, distribute or facilitate distribution of, or otherwise make available any information or content, including text, communications, software, images, sounds, data or other information, that:
- is false;
- contains explicit or graphic descriptions or accounts of sexual acts, including, without limitation, sexual language of a violent or threatening nature directed at another individual or group of individuals;
- includes any inside information and/or proprietary or confidential information learned or disclosed under nondisclosure agreements;
- You are restricted from using under any law;
- infringes upon the intellectual property rights of any third party; or
- contains software viruses or any other computer code, files or programs that are designed or intended to disrupt, damage, or limit the functions of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any data or other information of any other party.
- Other Prohibited Uses.
You may not use the Website or Application for any purpose that:
- is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another’s privacy, tortious, or otherwise violates EMK’s rules or policies;
- victimizes, harasses, degrades, or intimidates an individual or group of individuals on the basis of religion, gender, sexual orientation, race, ethnicity, age, disability, or any other classification protected by law;
- invades any person’s or entity’s privacy or other rights;
- constitutes unauthorized or unsolicited advertising, junk or bulk e-mail (also known as “spamming”), chain letters, any other form of unauthorized solicitation, or any form of lottery or gambling;
- misidentifies You or impersonates any person or entity, including, without limitation, any employee or representative of EMK, or falsely states, implies, or otherwise misrepresents Your affiliation with a person or entity by, for example, pretending to be someone other than You or pretending to represent a company or organization that You are not affiliated with or authorized to represent; or
- could otherwise reasonably be deemed or viewed to be unethical, illegal or offensive.
- Others’ Personal Information.
You may not knowingly solicit or collect personal information from a child 12 years old or younger without appropriate prior verifiable parental consent.
- Harm to Minors.
You may not take any action on the Website or within the Application or use the Website and/or Application content to harm minors in any way.
You may not use the Website or Application or any Website or Application content in a manner that violates any state or federal law regulating commercial e-mail, facsimile transmissions or telephone solicitations.
You may not (i) use any manual or automated software, devices, scripts robots, other means or processes to access, “scrape,” “crawl” or “spider” any web pages or other services or information contained within the Website or Application, (ii) use bots or other automated methods to access the Website or Application, add or download machine or other information, send or redirect messages, or perform other similar activities, unless explicitly permitted by the Company, (iii) engage in “framing,” “mirroring,” or otherwise simulating the appearance or function of Website or Application, or (iv) otherwise post any machinery or other information contained within the Website or Application within any other website or mobile application.
- The Website, the Application and the Website and Application content contains and/or provides access to content provided by third parties, including, without limitation, information, dialogue, opinions, stories, advice, statistical data, text, software, music, sound, photographs, graphics, video, messages, and other materials, whether publicly or privately posted to or e-mailed or otherwise transmitted through the Website or Application (“Third Party Content”) that may include content You finds to be offensive, indecent or objectionable. The third party from whom any such Third Party Content originates is solely responsible for it and EMK assumes no responsibility to verify, has no control or influence over, makes no representations regarding, and does not guarantee the accuracy, integrity or quality of any Third Party Content. Accordingly, EMK has no liability of any kind to You or any other person relating to any Third Party Content, including, without limitation, mistake, misstatement of law, omission, falsehood, defamation, obscenity, pornography, profanity, opinion, representation and any other content contained in the Third Party Content or for any loss or damage of any kind incurred as a result of the use of any Third Party Content. Statements of opinion and commentary in Third Party Content are those of the third party and, unless EMK expressly states in writing to the contrary, EMK neither endorses nor adopts as its belief any such statements. EMK may provide information in articles EMK posts or links to through the Website only for educational and general informational purposes and not as professional advice. EMK has made no attempt to verify any information contained in any such articles.
- As a convenience to You and other Website visitors, the Website may contain links to websites that are owned and operated by third parties that are not affiliated with EMK. When You uses these links, You will leave the Website and EMK will have no ability to protect Your interests. You visits linked websites at Your own risk and it is Your responsibility to take any protective measures to guard against viruses and other destructive elements. EMK is not responsible for and, unless it expressly states otherwise in writing, makes no warranty or representation regarding and does not endorse any linked website or any service, product or information provided on or through the linked website.
- Copyright Infringement.
If You believe that Your intellectual property or work has been copied in a way that constitutes copyright infringement, or that your intellectual property rights have been otherwise violated, please provide EMK’s Agent for Notice with the following information in English (Your “Notice“):
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property interest;
- a description of the copyrighted work or other intellectual property that You claim has been infringed;
- a description of where the material that You claim is infringing is located on the Website or within the Application;
- Your address, telephone number, and email address;
- a statement by You that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;
- a statement by You, made under penalty of perjury, that the above information in Your Notice is accurate and that You are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner’s behalf.
In some circumstances, in order to notify the individual or entity who or which provided the allegedly infringing content to which EMK has disabled access, EMK may forward a copy of a valid Notice including name and email address to such individual or entity. EMK’s Agent for Notice of claims of copyright or other intellectual property infringement can be reached as follows:
Each party shall pay its own costs and expenses in connection with this Agreement and its activities hereunder. The rights and obligations of the parties under this Agreement shall be governed by the laws of the State of Michigan, without reference to conflict of law principles, and all disputes arising hereunder or in connection with this Agreement, the Website and/or the Application shall be resolved in the appropriate Federal or state court located solely and exclusively in Michigan. You hereby consent to exclusive jurisdiction in Michigan, and agree not to raise any defense of forum non conviens or any similar defense. The relationship between the parties under this Agreement is that of independent contractors and neither shall be, nor represent itself to be, the joint venture, franchiser, franchisee, partner, agent or representative of the other party for any purpose whatsoever. This Agreement shall inure to the benefit of and be binding upon the parties hereto and their respective successors and assigns, but shall not be assignable by You without EMK’s prior written consent. If any provision of this Agreement is held to be unenforceable or invalid for any reason, or if any governmental agency rules that any portion of this Agreement is illegal or contrary to public policy, the remaining provisions, to the extent feasible, will continue in full force and effect with such unenforceable or invalid provision to be changed and interpreted to best accomplish its original intent and objectives.