Seller Terms of Service
Effective Date: July 8, 2022
These Seller Terms of Service (this “Agreement”) is a contract between you (“you”) and IronTek Solutions LLC, an Ohio limited liability company (“IronTek”, “we” or “us”). You must read, agree with and accept all of the terms and conditions contained in this Agreement in order to use our website located at www.fleetupmarketplace.com (the “Site”) and related software and services (collectively, the “FleetNow” or “FleetNow Platform”). IronTek may amend this Agreement at any time by posting changes to the Site. Your continued use of the FleetNow Platform after the effective date of a revised version of this Agreement constitutes your acceptance of its terms.
YOU UNDERSTAND THAT BY USING THE FLEETNOW PLATFORM, YOU ARE AGREEING TO BE BOUND BY THIS AGREEMENT. IF YOU DO NOT ACCEPT THIS AGREEMENT IN ITS ENTIRETY, YOU MAY NOT ACCESS OR USE THE FLEETNOW PLATFORM. IF YOU AGREE TO THIS AGREEMENT ON BEHALF OF AN ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY TO THIS AGREEMENT. IN THAT EVENT, “YOU” AND “YOUR” WILL REFER AND APPLY TO THAT ENTITY.
THE FLEETNOW PLATFORM.
1.1 Purpose of the FleetNow.
The FleetNow Platform is the means for IronTek to offer services (the “Services”) for equipment sellers and equipment dealers (where applicable) (collectively, “Sellers”) to post and/or have posted by IronTek equipment for the sale of such equipment to actual or potential buyers (each, a “Buyer”). Under this Agreement, IronTek provides access to the Site and use of the FleetNow Platform to you in your capacity as a Buyer, including all functionality made available to Buyer users.
One of the Services that IronTek may make available to Seller users may include allowing Seller users to invite Buyer users to use the Services that are provided to Buyer users. Those Buyers which a Seller user invites to access the Services as a Buyer user must first agree to the Buyer Terms of Service prior to being provided access to the Services made available to Buyers.
One of the Services that IronTek may make available to Seller users (where applicable) may include allowing Seller users to access analytical tools and data (collectively, “Analytical Tools”). IronTek may charge you additional Fees for any Analytical Tools access provided to Seller users (where applicable).
The use of the Site is available only to legal entities and persons who are at least eighteen (18) years old and are otherwise capable of forming legally binding contracts under applicable law.
1.3 IronTek’s Proprietary Rights.
IronTek and its licensors reserve all rights, title, ownership and interest in and to copyrights, trademarks, service marks, trade names, trade secrets, patents and any other rights to intellectual property, recognized in any jurisdiction, whether or not perfected, in and to the FleetNow Platform. You may not use the FleetNow Platform except as necessary for the purposes of discharging your obligations or exercising your rights under this Agreement. IronTek reserves the right to withdraw, expand and otherwise change the FleetNow Platform, including at least the Services provided thereby, at any time in IronTek’s sole discretion.
IRONTEK GENERAL POLICIES.
2.1 Content Transmitted Through the FleetNow Platform.
With respect to the content or other materials (including without limitation code, video, images, information, data, text, software, music, sound, photographs, graphics or messages, commercial equipment and other equipment specifications, equipment availability and pricing information, visualization information [3D virtual equipment tours, 2D photos], seller requirements information, viewing information and feedback information, proposed terms information, offer information, negotiation information, acceptance information, sales document information, sale execution information, post-sale delivery information, post-sale warranty information, post-sale servicing information ancillary services information), you upload, post, publish, engage in, negotiate, offer, accept, or display to and/or through the FleetNow Platform or share with or email, communicate or otherwise distribute to other users or recipients in connection with any of these actions to and/or through the FleetNow Platform or otherwise provide (all inclusively “transmit”) to and/or through IronTek and/or the FleetNow Platform (collectively, such content and materials, “Content”), you represent and warrant that you own all right, title and interest in and to such Content, including, without limitation, all copyrights, rights of publicity, and trade secrets contained therein. By transmitting any Content you hereby irrevocably assign to IronTek, and agree to further assign as requested by IronTek, the entire right, title and interest in and to all such Content and all intellectual property rights therein, without requirement of any further compensation. However, you may replicate, duplicate, or copy any Content which you upload or post, to the FleetNow Platform, and you may share such Content you upload of post with third parties. Otherwise, you agree that you will not replicate, duplicate, or copy any other Content or other content that is uploaded, posted, published, used, viewed, engaged in, negotiated, offered, accepted, or displayed to and/or through the FleetNow Platform, and you may share such other Content or content, or in any way share with any third parties such other Content or content which is uploaded, posted, published, used, viewed, engaged in, negotiated, offered, accepted, or displayed to and/or through the FleetNow Platform. By entering into this Agreement, you acknowledge and agree that IronTek may keep records of, store, recall, use, and disseminate the Content, and/or combine and/or display in any way the Content with any other Content and/or with any other content referred to herein.
(b) You acknowledge and agree that any questions, comments, suggestions, ideas, feedback or other information about the FleetNow Platform, or reviews you post with respect to the FleetNow Platform or any property posted on the Site are non-confidential and IronTek is entitled to their unrestricted use and dissemination for any purpose, commercial or otherwise, without acknowledgment or compensation to you. Notwithstanding the foregoing, you acknowledge and agree that any feedback or ratings or other similar content posted by a Buyer in connection with you or any Services performed by or in connection with you will not be deemed to be libel, slander or otherwise unlawful.
2.2 Identity and Account Security.
IronTek reserves the right to validate your information at any time, including but not limited to validation against third party databases or the verification of one or more official government or legal documents that confirm your identity. You authorize IronTek, directly or through third parties, to make any inquiries necessary to validate your identity and confirm your ownership of your email address or financial accounts. You are solely responsible for ensuring and maintaining the secrecy and security of your IronTek account password. You agree not to disclose this password to anyone and will be solely responsible for any use of or action taken through the use of such password on IronTek or the FleetNow Platform. You must notify IronTek support immediately if you suspect that your password has been lost or stolen. By using your FleetNow Platform account, you acknowledge and agree IronTek’s account security procedures are commercially reasonable and appropriate.
- Unauthorized Actions. You will not access (or attempt to access) the Site by any means other than the interface provided, and you will not use information from the Site for any purpose other than the purpose for which it was made available. You are solely responsible for all Content you transmit.
- No Reverse Engineering. The technology and software underlying the FleetNow Platform or distributed in connection therewith (the “Software”) is the property of IronTek, our affiliates and our partners. You will not, and will not attempt to, copy, modify, create a derivative work of, reverse engineer, reverse assemble or otherwise attempt to discover any source code, sell, assign, sublicense, or otherwise transfer any right in the Software. Any rights not expressly granted herein are reserved by IronTek.
- Enforcement of Agreement and Policies. IronTek has the right, but not the obligation, to monitor your use of the FleetNow Platform and any Content that you transmit to determine your compliance with the terms and conditions of this Agreement and to suspend or cancel your access to the FleetNow Platform if IronTek believes that you have violated or acted inconsistently with the letter or spirit of this Agreement or violated our rights or those of another party. Without limiting IronTek’s other remedies, we may suspend or terminate your account, use self-help in connection with our rights to reclaim any available funds, and refuse to provide any further access to the FleetNow Platform to you if: (i) you breach any terms and conditions of this Agreement or other written policies and procedures posted on the Site; (ii) we are unable to verify or authenticate any information you provide to us; or (iii) we believe that your actions may cause legal liability for you, our other users or for IronTek.
2.4 Copyright and DMCA Policy
We respect the intellectual property rights of others and expect users to do the same. In appropriate circumstances and at our sole discretion, we may terminate and/or disable the access of users suspected to be infringing the copyrights (or other intellectual property rights) of others. Additionally, in appropriate circumstances and in our sole discretion, we may remove or disable access to material on any of our websites or hosted on our systems that may be infringing or the subject of infringing activity.
In accordance with the Digital Millennium Copyright Act of 1998, Title 17 of the United States Code, Section 512 (“DMCA”), we will respond promptly to claims of copyright infringement that are reported to the agent that we have designated to receive notifications of claims of infringement (“Designated Agent”). Our Designated Agent may be reached:
via email: email@example.com; or
James P. Muraff
McDonald Hopkins LLC
300 North LaSalle Street
Chicago, Illinois 60654
via phone: (312) 642-1480
If you are a copyright owner (or authorized to act on behalf of the copyright owner) and have a good faith belief that your work’s copyright has been infringed, please report your notice of infringement to us by providing our Designated Agent with a written notification of claimed infringement that includes substantially the following:
- A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
- Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site.
- Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material, such as a specific URL address.
- Information reasonably sufficient to permit us to contact you, such as an address, telephone number, and, if available, an electronic mail address at which you may be contacted.
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law.
- A statement that the information in the notification is accurate, and under penalty of perjury, that you are authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.
Please note that Section 512(f) of the Digital Millennium Copyright Act may impose liability for damages on any person who knowingly sends meritless notices of infringement. Please do not make false claims.
Any information or correspondence that you provide to us may be shared with third parties, including the person who provided us with the allegedly infringing material.
Upon receipt of a bona fide infringement notification by the Designated Agent, it is our policy to remove or disable access to the infringing material, notify the user that it has removed or disabled access to the material, and, for repeat offenders, to terminate such user’s access to the service.
If you believe that your content should not have been removed for alleged copyright infringement, you may send our Designated Agent a written counter-notice with the following information:
- Identification of the copyrighted work that was removed, and the location on this Site where it would have been found prior to its removal;
- A statement, under penalty of perjury, that you have a good faith belief that the content was removed as a result of a mistake or misidentification; and
- Your physical or electronic signature, together with your contact information (address, telephone number and, if available, email address).
If a counter-notice is received by the Designated Agent, we may send a copy of the counter-notice to the original complaining party informing that person that it may replace the removed material or cease disabling it in 10 business days. Unless the copyright owner files an action seeking a court order against the user, the removed material may be replaced or access to it restored in 10 to 14 business days or more after receipt of the counter-notice, at our discretion.
PAYMENT TERMS, INVOICES AND PAYMENT METHODS.
3.1 IronTek Fees.
You will pay to IronTek the fees that are identified on the order form (the “Order Form”) between you and IronTek for the applicable Services identified on the Order Form (the “Fees”). You will pay the fees at the time and in the manner specified on the Order Form. In addition to all remedies identified on the Order Form or in this Agreement, in the event you fail to pay the Fees when due and such failure continues for a period of fifteen (15) days after IronTek provides you notice of such failure, IronTek may suspend its provision of the Services applicable to such unpaid Fees. You agree that time is of the essence with respect to the performance of your obligations under this Agreement. You also agree you will pay to IronTek all other fees that are described on the Site (“Fees”) for the Services you have requested.
The Order Form, together with the Seller Terms of Service (as the same may be amended, modified or supplemented from time to time) and any applicable attachments, addenda, schedules and exhibits hereto or thereto, each of which is expressly incorporated herein by reference, constitute an agreement (collectively, the “Agreement”) between the customer identified (“Customer”) and IronTek, relating to the products and services ordered by Customer as set forth on the Order Form. Customer acknowledges and agrees that the Seller Terms of Service and any applicable attachments, addenda, schedules and exhibits shall apply to and govern all transactions between Customer and IronTek. IronTek may amend, modify or supplement the Seller Terms of Service from time to time without notice to Customer. Customer further acknowledges and agrees that, if, during the term of this Agreement, any additional or supplemental order form is submitted to and accepted by IronTek, that additional or supplemental order form shall constitute an addendum to this Agreement and shall likewise be subject to the Seller Terms of Service.
Basic monthly plans will be billed monthly at $349. Annual plans must be paid up front at $3,588 ($299/month). Each payment shall be due and payable in full within thirty (30) days after the invoice date in United States dollars. Customer agrees to pay a late fee computed at a rate equal to the lesser of 1.5% per month or the highest rate permitted under applicable law for any amount not paid in full within thirty (30) days following the invoice date. No cancellation or early termination of this Agreement shall relieve Customer of its obligation to pay IronTek the full Total Price identified.
3.2 Tax Reporting.
IronTek will have no responsibility for determining the necessity of or for issuing any tax forms, or for determining, remitting, or withholding any taxes applicable to Fees and you will be solely responsible for determining whether you are required by applicable law to file any tax forms or remit to the appropriate authorities any taxes or similar charges applicable to the Fees, and filing any such tax forms and remitting any such taxes or charges to the appropriate authorities. IronTek will have the right, but not the obligation, to audit and monitor your compliance with applicable tax laws as required by this Section 3.2. Further, in the event of an audit of IronTek, you will promptly cooperate with IronTek and provide copies of your tax returns, and other documents as may be reasonably requested for purposes of such audit.
3.3 Special Payment Terms
In the event IronTek offers you a no-charge trial period to use the Services, you will be obligated to provide your payment information to IronTek upon commencement of the Services, in the manner provided on the Order Form. At the end of such no-charge trial period, you will commence paying Fees in the manner provided in Section 3.1 above unless you provide written notice of termination of the Services no later than five (5) days prior to the end of the no-charge trial period.
Unless an End Date is specifically indicated on the order form for a particular Ordered Product/Service, the term of this Agreement with regard to the Ordered Product/Service shall (i) be an initial term of one (1) month or one (1) year following the Begin Date set forth on the order form, and (ii) following such initial one (1) month or one (1) year term, thereafter continue indefinitely for successive one (1) month terms unless and until terminated by Seller in writing to in accordance with the Seller Terms of Service attached to this Order Form. The “evergreen” nature of this Agreement, as described in the previous sentence, may also be memorialized via an “N/A” in the End Date column on the order form.
You represent, warrant and covenant that:
4.1 you are not (a) a citizen or resident of a country in which use or participation in the FleetNow Platform is prohibited by law, decree, regulation, treaty or administrative act; (b) a citizen or resident of, or located in, a country or region that is subject to U.S. or other sovereign country sanctions or embargoes; or (c) an individual or an individual employed by or associated with an entity identified on the U.S. Department of Commerce’s Denied Persons or Entity List, the U.S. Department of Treasury’s Specially Designated Nationals or Blocked Persons Lists, or the Department of State’s Debarred Parties List or otherwise ineligible to receive items subject to U.S. export control laws and regulations, or other economic sanction rules of any sovereign nation.
4.2 you will not transmit any Content that: (A) infringes any intellectual property or other proprietary or privacy rights of any party; (B) you do not have a right to transmit under any law or under contractual or fiduciary relationships; (C) contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (D) poses or creates a privacy or security risk to any person; (E) is unlawful, harmful, threatening, abusive, harassing, tortuous, excessively violent, defamatory, vulgar, obscene, pornographic, libelous, invasive of another’s privacy, hateful racially, ethnically or otherwise objectionable; or (F) in the sole judgment of IronTek, is objectionable or which restricts or inhibits any other person from using or enjoying the FleetNow Platform, or which may expose IronTek or its users to any harm or liability of any type;
4.3 you will not interfere with or disrupt the FleetNow Platform or servers or networks connected to the FleetNow Platform, or disobey any requirements, procedures, policies or regulations of networks connected to the FleetNow Platform;
4.4 you will not violate any applicable local, state, national or international law, or any regulations having the force of law;
4.5 you will not impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity;
4.6 you have the right to market and lease any equipment you post on the Site on the terms offered through the Site, and the information regarding any such equipment that you provide is true and correct;
4.7 your performance of your obligations and exercise of your rights under this Agreement will not breach any agreement to which you are party, including with respect to keeping in confidence proprietary content, information, knowledge or data acquired by you in confidence or in trust outside of your engagement with IronTek;
4.8 you are responsible for ensuring that all equipment that you sell or lease is installed and used according to manufacturers’ specifications and meets all safety requirements of local, state, and federal laws and regulations;
4.9 you shall be responsible for all equipment transportation costs, loading and unloading costs, installation costs, and costs associated with operating the equipment;
4.10 you will enter into a separate agreement for the sale of equipment that you post or have posted on the FleetNow Platform with Buyer in compliance with all of the terms and conditions, including but not limited to all of IronTek’s warranty disclaimers, set forth in this Agreement;
4.11 you shall not remove equipment that has been posted to the FleetNow Platform prior to an actual contract being entered into between Seller and Buyer, once the Buyer and Seller have entered into discussions for the purchase of such equipment; and,
4.12 you shall comply with all payment processes set forth and /or required within the FleetNow Platform
5.1 “Confidential Information” means, subject to the exceptions set forth in the following sentence, any information or data, regardless of whether it is in tangible form, disclosed by IronTek or you (the “Disclosing Party”) that the Disclosing Party has either marked as confidential or proprietary, or has identified in writing as confidential or proprietary within thirty (30) days of disclosure to IronTek or you (as applicable) (the “Receiving Party”) or which would be apparent to a reasonable person, familiar with Disclosing Party’s business and the industry in which it operates, to be of a confidential or proprietary nature; provided, however, that the details of the Services (including at least the pricing and Fees pertaining thereto), reports and/or information related to or regarding the Services, or a Disclosing Party’s business plans, strategies, technology, research and development, current and prospective customers, billing records, and products or services will be deemed Confidential Information of the Disclosing Party even if not so marked or identified, unless such information is the subject of any of the exceptions set forth in the following sentence. Information and data will not be deemed Confidential Information hereunder if such information: (a) is known to the Receiving Party prior to receipt from the Disclosing Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (b) becomes known (independently of disclosure by the Disclosing Party) to the Receiving Party directly or indirectly from a source other than one having an obligation of confidentiality to the Disclosing Party; (c) becomes publicly known or otherwise ceases to be secret or confidential, except through a breach of this Agreement by the Receiving Party; or (d) is independently developed by the Receiving Party.
YOUR ACKNOWLEDGMENT OF IRONTEK’S ROLE.
6.1 Third Party Websites.
The FleetNow Platform may provide, or third parties may provide, links or other access to other sites and resources on the Internet. IronTek has no control over such sites and resources and IronTek is not responsible for and does not endorse such sites or resources. You further acknowledge and agree that IronTek will not be responsible or liable, directly or indirectly, for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any content, events, goods or services available on or through any such site or resource. Any dealings you have with third parties found while using the FleetNow Platform are between you and the third party, and you agree that IronTek is not liable for any loss or claim that you may have against any such third party.
6.2 Social Networking Services
In addition, IronTek is not responsible for the accuracy, availability or reliability of any information, content, goods, data, opinions, advice or statements made available in connection with Social Networking Services. As such, IronTek is not liable for any damage or loss caused or alleged to be caused by or in connection with use of or reliance on any such Social Networking Services. IronTek enables these features merely as a convenience and the integration or inclusion of such features does not imply an endorsement or recommendation.
6.3 Irontek May Connect a Buyer with Another Seller
Seller acknowledges that time is of the essence in relation to all inquiries, actions, or other communications which any Buyer, Irontek, or any other party causes to be communicated or taken in relation to Seller or which Buyer, Irontek, or any third party reasonably expects that Seller should communication or take, through or outside of the FleetNow Platform, and Seller has an obligation to promptly, thoroughly, and completely respond and/or take action in relation to any such inquiries, actions, or other communications by Buyer, Irontek, or any other party, including but not limited to Seller promptly, thoroughly, and completely responding to inquiries from a Buyer regarding Seller listed equipment and Seller promptly and completely delivering any equipment expected by a Buyer, to name only two examples, and Irontek may, at its complete and sole discretion, put Buyer in contact with another Seller in any way or manner should Seller not comply with these obligations in any way, shape or form, without any recourse by Seller against IronTek or Buyer.
ALL EQUIPMENT IS SOLD “AS IS” AND “WHERE IS” UNLESS AGREED TO OTHERWISE AS BETWEEN SELLER AND BUYER.
ALL SALES BETWEEN SELLER AND BUYER ARE CONTINGENT ON AND SUBJECT TO BUYER’S APPROVAL AND AGREEMENT.
CANCELLATIONS BY SELLER OR BUYER SHALL BE BY MUTUAL AGREEMENT IN WRITING BETWEEN THE BUYER AND SELLER.
DEPOSITS ARE NON-REFUNDABLE. ANY REFUNDS ARE SUBJECT TO IRONTEK’S EXPENSES AND COSTS OF OVERHEAD AND PROVIDED SERVICES.
ANY MATERIAL, EQUIPMENT, AND/OR INFORMATION INCLUDED IN ANY ESTIMATE OR QUOTE PROVIDED BY SELLER THROUGH THE IRONTEK SITE ARE SOLELY BASED ON SELLER’S INTERPRETATION OF ANY BUYER REQUIREMENTS AND ARE SUBJECT TO VERIFICATION BY SELLER. NO ACCESSORIES ARE INCLUDED UNLESS SPECIFICALLY LISTED IN ANY ESTIMATE OR QUOTE.
ALL EQUIPMENT AND SHIPMENTS SHALL BE QUOTED EX WORKS POINT OF SHIPMENT. TITLE SHALL PASS TO BUYER UPON AVAILABILITY TO A COMMON CARRIER OR SHIPPING SERVICE. FREIGHT CLAIMS ARE SUBJECT TO AGREEMENT BETWEEN THE BUYER AND THE SELLER, AND NOT IRONTEK’S RESPONSIBILITY.
IRONTEK ONLY REPORTS THE CONDITION OF LISTED EQUIPMENT AS IT WAS REPORTED OR LISTED BY THE SELLER AND PROVIDES NO GUARANTEES OR ANY IMPLIED WARRANTIES AS TO THE CONDITION OF THE EQUIPMENT OR THAT THE EQUIPMENT HAS BEEN INSPECTED OR THAT THE EQUIPMENT HAS PASSES ANY QUALITY TESTS. ANY AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED.
LIKEWISE, IRONTEK ONLY REPORTS INFORMATION FROM THE BUYER AS INPUT BY THE BUYER AND PROVIDES NO GUARANTEES OR ANY IMPLIED WARRANTIES AS TO SUCH INFORMATION PROVIDED BY THE BUYER. ANY AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED.
IRONTEK PROVIDES NO GUARANTEES OR ANY IMPLIED WARRANTIES THAT THE FLEETNOW SITE WILL GENERATE ANY BUYERS, THAT ANY BUYERS WILL BE INTERESTED IN OR MAKE ANY REASONABLE OFFERS FOR ANY EQUIPMENT LISTED ON THE SITE, OR THAT ANY BUYERS WILL HAVE ANY CREDIT NEEDED TO FINANCE ANY OFFERS FOR OR ATTEMPTED PURCHASES OF ANY EQUIPMENT LISTED ON THE SITE. ANY AND ALL SUCH WARRANTIES ARE HEREBY DISCLAIMED.
IRONTEK IS NOT RESPONSIBLE NOR LIABLE IF SELLER REMOVES EQUIPMENT FROM THE IRONTEK SITE. IN THE EVENT THAT EQUIPMENT IS REMOVED FROM THE IRONTEK SITE AFTER IRONTEK RECEIVES A PAYMENT OR DEPOSIT FROM BUYER, IRONTEK IS ONLY RESPONSIBLE FOR REFUNDING TO BUYER ANY PAYMENT(S) WHICH IRONTEK ACTUALLY RECEIVED FROM BUYER FOR THE SPECIFIC EQUIPMENT ATTEMPTED TO BE PURCHASED BY BUYER. IRONTEK IS NOT RESPONSIBLE FOR REFUNDING ANY PAYMENTS MADE DIRECTLY TO SELLER, OR ANY SUCH BUYER PAYMENTS WHICH IRONTEK HAS ALREADY CREDITED AND TRANSFERRED TO SELLER.
IRONTEK MAKES NO EXPRESS REPRESENTATIONS OR WARRANTIES WITH REGARD TO THE SERVICES, SITE, FLEETNOW PLATFORM, INFORMATION OR ANALYTICS PROVIDED BY THE SERVICES, SITE, OR FLEETNOW PLATFORM, OR ANY ACTIVITIES OR ITEMS RELATED TO THIS AGREEMENT, INCLUDING AT LEAST ANY DEAL OR TRANSACTION TAKING PLACE OR NOT TAKING PLACE. FOR AVOIDANCE OF DOUBT, YOU ACKNOWLEDGE AND AGREE THAT ALL INFORMATION OR ANALYTICS PROVIDED BY THE SERVICES, SITE, OR FLEEUP PLATFORM, WHETHER PROVIDED BY OR ACQUIRED FROM THIRD PARTIES OR NOT, IRONTEK MAKES NO WARRANTIES, EXPRESS OR IMPLIED, WITH RESPECT TO THE ACCURACY OR RELIABILITY OF ANY SUCH INFORMATION OR ANALYTICS. YOU RELY ON ANY SUCH INFORMATION AND ANALYTICS AT YOUR OWN RISK, AND HEREBY RELEASE IRONTEK FROM ALL LIABILITY WITH RESPECT TO SUCH INFORMATION AND ANALYTICS, AND IN ADDITION YOU HEREBY RELEASE IRONTEK FROM ALL LIABILITY WITH RESPECT TO ANY DEAL OR TRANSACTION TAKING PLACE OR NOT TAKING PLACE. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IRONTEK DISCLAIMS ALL EXPRESS AND IMPLIED CONDITIONS, REPRESENTATIONS AND WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. SECTION 10.2 STATES YOUR SOLE AND EXCLUSIVE REMEDY AGAINST IRONTEK WITH RESPECT TO ANY DEFECTS, NON-CONFORMANCES OR DISSATISFACTION.
LIMITATION OF LIABILITY.
IN NO EVENT WILL IRONTEK BE LIABLE FOR ANY SPECIAL, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY OR INDIRECT COSTS OR DAMAGES, LITIGATION COSTS, REPLACEMENT COSTS, INSTALLATION AND REMOVAL COSTS, OR LOSS OF DATA, PRODUCTION OR PROFIT. THE LIABILITY OF IRONTEK TO ANY USER FOR ANY CLAIM ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT WILL NOT EXCEED THE GREATER OF: (A) US$2,500; AND (B) ANY FEES PAID TO IRONTEK BY YOU IN CONNECTION WITH THIS AGREEMENT DURING THE SIX (6) MONTH PERIOD PRECEDING THE DATE OF THE CLAIM. THESE LIMITATIONS WILL APPLY TO ANY LIABILITY, ARISING FROM ANY CAUSE OF ACTION WHATSOEVER, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH COSTS OR DAMAGES AND EVEN IF THE LIMITED REMEDIES PROVIDED HEREIN FAIL OF THEIR ESSENTIAL PURPOSE.
You will indemnify, defend and hold harmless IronTek and Buyer and its and their subsidiaries, affiliates, officers, agents, employees, representatives and agents (each, an “Indemnified Party”) from any and all claims, actions, damages, liabilities, costs, and expenses (including, but not limited to, reasonable attorneysʼ fees and all related costs and expenses) arising from or relating to (whether directly or indirectly) your use of the FleetNow Platform, the purchase and/or use of any equipment you sell or distribute through or in relation to the IronTek Site, receipt of Services by you or on your behalf, or any Content, your breach or violation of these Terms of Service, or your violation of any rights of another, including any claim that the performance, distribution or receipt of Services, of any equipment, or any Content, or any use thereof, infringe, misappropriate or otherwise conflict with any intellectual property or other proprietary rights of any third party.
TERM AND TERMINATION.
The term of this Agreement is as provided in the applicable Order Form unless earlier terminated in accordance with Section 10.2 below.
You may terminate this Agreement at any time, with or without cause, upon five (5) days advance written notice to the other party. In addition to such other rights provided in this Agreement, IronTek may terminate this Agreement or suspend the provision of Services to you immediately upon written notice to you in the event you breach any term of this Agreement, and may immediately suspend your account upon such notice to you.
10.3 Consequences of Termination.
Termination of this Agreement will not relieve you of any outstanding payment obligations to IronTek or any other party pursuant to this Agreement. No cancellation, suspension, or early termination of this Agreement shall relieve you of your obligation to pay IronTek the full amount of Fees identified in the Order Form and such other fees identified on the Site. Upon expiration or termination of this Agreement for any reason, you shall immediately cease use of the FleetNow Platform. To the extent that any or all Fees have been paid you, you will not be entitled to any refund as a result of any termination of this Agreement by any party for any reason.
Sections 1.3 through 13 will survive expiration or termination of this Agreement for any reason.
11.1 Entire Agreement.
This Agreement, together with the other agreements and policies referenced herein, sets forth the entire agreement and understanding of the parties relating to its subject matter and cancels and supersedes any prior or contemporaneous discussions, agreements, representations, warranties, and other communications between them. No modification or amendment to this Agreement will be binding upon IronTek unless in a written instrument signed by a duly authorized representative of IronTek. For the purposes of this Section 11.1, a written instrument will expressly exclude electronic communications such as email and electronic notices but will include facsimiles.
11.2 No Waiver.
The failure or delay of either party to exercise or enforce any right or claim does not constitute a waiver of such right or claim and will in no way affect that partyʼs right to later enforce or exercise it, unless such party issues an express written waiver, signed by a duly authorized representative of each party.
You may not assign this Agreement, or any of its rights or obligations hereunder, without IronTek’s prior written consent in the form of a written instrument signed by a duly authorized representative of IronTek. IronTek may freely assign this Agreement without your consent. Any attempted assignment or transfer in violation of this Section will be null and void ab initio. Subject to the foregoing restrictions, this Agreement will inure to the benefit of the successors and permitted assigns of the parties.
If and to the extent any provision of this Agreement is held illegal, invalid, or unenforceable in whole or in part under applicable law, such provision or such portion thereof will be ineffective as to the jurisdiction in which it is illegal, invalid, or unenforceable to the extent of its illegality, invalidity, or unenforceability, and will be deemed modified to the extent necessary to conform to applicable law so as to give the maximum effect to the intent of the parties. The illegality, invalidity, or unenforceability of such provision in that jurisdiction will not in any way affect the legality, validity, or enforceability of such provision in any other jurisdiction or of any other provision in any jurisdiction.
11.5 Choice of Law.
This Agreement and any controversy, dispute or claim arising out of or relating to this Agreement will be governed by and construed in accordance with the laws of the State of Illinois, without regard to its conflict of law provisions and excluding the United Nations Convention on Contracts for the International Sale of Goods (CISG).
11.6 Our Relationship.
This Agreement and any registration for or use of this Site will not be construed as creating or implying any relationship of agency, franchise, partnership or joint venture between you and IronTek, except and solely to the extent expressly stated in this Agreement.
NOTICE FOR CALIFORNIA USERS.
Under California Civil Code Section 1789.3, users of the FleetNow Platform from California are entitled to the following specific consumer rights notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 1625 North Market Blvd., Suite N 112, Sacramento, CA 95834, or by telephone at (916) 445-1254 or (800) 952-5210. You may contact us at IronTek at (833) 476-6835.