HarvestPort Terms of Service
Last updated: March 10, 2016
Terms of Service
THESE TERMS OF SERVICE GOVERN YOUR ACCESS TO AND USE OF THE SITE, APPLICATIONS, SERVICES AND ALL COLLECTIVE CONTENT (DEFINED BELOW), AND CONSTITUTE A BINDING LEGAL AGREEMENT BETWEEN YOU AND HARVESTPORT EXCHANGE, INC., A DELAWARE CORPORATION. YOU AGREE TO READ THESE TERMS OF SERVICE CAREFULLY AS THEY CONTAIN IMPORTANT INFORMATION REGARDING YOUR LEGAL RIGHTS, REMEDIES AND OBLIGATIONS. THESE INCLUDE MANY AGREEMENTS YOU ARE MAKING WITH HARVESTPORT EXCHANGE, INC., VARIOUS LIMITATIONS AND EXCLUSIONS, A CLAUSE THAT GOVERNS THE JURISDICTION AND VENUE OF DISPUTES, AND OBLIGATIONS TO COMPLY WITH APPLICABLE LAWS AND REGULATIONS.
When not found within the body of these Terms of Service, capitalized words shall have the definitions found here:
"Collective Content" means Member Content and HarvestPort Content.
"Content" means text, graphics, images, music, software (excluding the Applications), audio, video, information, data, other materials or any other intellectual property. Deposit means the sum collected and held by HarvestPort as a deposit during the term of any rental of Assets.
"HarvestPort Content" means all Content that HarvestPort makes available through the Site, Applications, or Services, including any Content licensed from a third party, but excluding Member Content.
"Lender" means a Member who offers to loan Assets to a Renter via the Site, Applications, or Services.
"Lender Fee" means the fee that HarvestPort charges a Lender for the use of the Services. The Lender Fee will be displayed to the Lender when the Lender is asked whether to make an Offer to a potential Renter.†
"Member" means a person who completes HarvestPort's account or profile setup process, including but not limited to Renters and Lenders, as described under, "Account Registration" below.
"Member Content" means all Content that a Member posts, uploads, publishes, submits or transmits through, into or on the Site, Applications or Services, including but not limited to Content included in a Request, Offer, Member profile or otherwise.
"Opportunity" or Opportunities means a Request that may represent a rental opportunity for one or more Lenders via the Site, Applications, and Services.
"Offer" or Offers means an offer made by a Lender to fulfill one or more Requests.
"Rental Fee" means the amounts that are due and payable by a Renter to a Lender in exchange for that Renter's lease of one or more Assets from a Lender. The Lender and Renter, and not HarvestPort, are responsible for determining an acceptable Rental Fee for the Lender's Assets. The Lender and Renter may agree, in their discretion, to include in the Rental Fee (i) any additional fees, whether for cleaning and maintenance of the Assets or otherwise, or (ii) Taxes that the Lender determines he, she or it has to collect in connection with the transaction.† HarvestPort is released from any and all liability and responsibility in connection with determining an appropriate Rental Fee, additional fees or Taxes to be included.
"Renter" means a Member who requests to rent Assets from a Lender via the Site, Applications or Services.
"Request" means a request or requests to rent Assets which request(s) has or have been added or uploaded to the Site, Applications or Services by one or more potential Renters.
"Tax" or "Taxes" mean any sales taxes, value added taxes (VAT), goods and services taxes (GST) or other fees or taxes that Lenders or Renters may be required by law to collect and remit to governmental agencies, and other similar municipal, state, federal and national agencies, whether indirect or other withholding, and personal or corporate income taxes.
"Total Fees" means collectively the Rental Fee and any Taxes.
THE SERVICES AND YOUR CONTRACTUAL AGREEMENT
HarvestPort Exchange, Inc., a Delaware corporation (hereinafter referred to as "HarvestPort", "we", "us", or "our"), provides an online platform and marketplace that connects Lenders who have seasonally used resources, supply chain assets, machinery and other assets (Assets) that they desire to monetize when not in use, with opportunities to lease those Assets to Renters, and conversely, provides Renters in need of such Assets with opportunities to identify Lenders who can fulfill their seasonal Asset needs (collectively, the "Services"), which Services are accessible at https://harvestport.com and any other websites through which HarvestPort makes the Services available (collectively, the "Site") and through applications for mobile devices (the "Applications"). The Assets are included in Requests, Opportunities or Offers on the Site, Applications and Services. You may view Requests, Opportunities or Offers as an unregistered visitor to the Site, Applications and Services; however, if you wish to rent or lease one or more Assets, you must first register to create a HarvestPort Profile (defined below).
If you are using the Site, Applications or Services, you are contracting with HarvestPort in accordance with the terms and conditions of these Terms of Service (Terms) with respect to your use of the Site, Applications or Services and with respect to any payments or payouts by, from or to you conducted through the Site, Applications or Services. By using the Site, Applications or Services, or by downloading, uploading or posting any Content from or on the Site, Applications or Services, you are indicating that you have read, understand and agree to comply with and be legally bound by these Terms, whether or not you become a registered user of the Services. If you do not agree to these Terms, you have no right to use, obtain information from or otherwise interact with the Site, Applications or Services. Failure to use the Site, Applications or Services in accordance with these Terms may subject you to civil and criminal penalties.
If you accept or agree to these Terms on behalf of a company or other legal entity, you represent and warrant that you have the authority to bind that company or other legal entity to these Terms and, in such event, "you" and "your" will refer and apply to that company or other legal entity.
YOU UNDERSTAND AND AGREE THAT HARVESTPORT IS NOT A PARTY TO ANY AGREEMENTS OR TRANSACTIONS ENTERED INTO BETWEEN YOU AND ANY LENDERS,RENTERS OR OTHER USERS OF THE SITE, APPLICATIONS OR SERVICES, NOR IS HARVESTPORT A BROKER, AGENT OR INSURER IN ANY SUCH AGREEMENTS OR TRANSACTIONS. YOU UNDERSTAND THAT YOU HAVE THE RIGHT TO ENTER INTO WRITTEN AND ORAL AGREEMENTS WITH RENTERS OR LENDERS THAT YOU CONNECT WITH WHILE USING THE SERVICES, AND THE CONSEQUENCES OF YOUR FAILURE TO ENTER INTO ANY SUCH AGREEMENTS TO PROVIDE SUFFICIENT PROTECTION OF YOUR RIGHTS, WHETHER RELATING TO PROPERTY, MONEY, LIABILITY OR OTHERWISE, SHALL BE YOUR SOLE AND EXCLUSIVE RESPONSIBILITY TO ADDRESS. YOU RELEASE HARVESTPORT FROM ANY AND ALL LIABILITY RESULTING FROM SUCH FAILURE. HARVESTPORT MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING THE SUFFICIENCY OF OR CONTRACTUALLY BINDING NATURE OF AGREEMENTS TO RENT OR LEASE ASSETS WHILE USING THE SERVICES, AND YOU AGREE TO SEEK AND OBTAIN LEGAL ADVICE REGARDING THE SAME.YOU UNDERSTAND AND AGREE THAT HARVESTPORT HAS NO CONTROL OVER THE CONDUCT OF LENDERS, RENTERS AND OTHER USERS OF THE SITE, APPLICATIONS AND SERVICES NOR DOES HARVESTPORT HAVE ANY CONTROL OVER ANY ASSETS OFFERED, LEASED, RENTED OR OTHERWISE EXCHANGED THROUGH THE SITE, APPLICATIONS OR SERVICES,WHETHER WITH RESPECT TO THEIR QUALITY, CONDITION OR EXISTENCE,AND HARVESTPORT DISCLAIMS ALL LIABILITY IN THIS REGARD TO THE MAXIMUM EXTENT PERMITTED BY LAW. YOU AGREE TO CONDUCT A PROPER AND COMMERCIALLY REASONABLE INVESTIGATION AS TO THE QUALITY, CONDITION AND EXISTENCE OF ANY ASSETS, RENTERS OR LENDERS PRIOR TO INCURRING ANY FORM OF LIABILITY OR LIABILITIES REGARDING THE SAME AND YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARVESTPORT HARMLESS FROM ANY LIABILITIES OR CLAIMS ARISING AS A RESULT OF YOUR AGREEMENTS AND TRANSACTIONS WITH LENDERS, RENTERS OR OTHER USERS OF THE SERVICES.
HarvestPort reserves the right, at its sole discretion, to modify the Site, Applications or Services or to modify these Terms, including the Lender Fees, at any time and without prior notice. If we modify these Terms, we will either post the modification on the Site or via the Applications or otherwise provide you with notice of the modification. We will also update the "Last Updated Date" at the top of these Terms. By continuing to access or use the Site, Applications or Services after we have posted a modification on the Site or via the Applications or have provided you with notice of a modification, you are indicating that you agree to be bound by the modified Terms. If the modified Terms are not acceptable to you, your only recourse is to cease using the Site, Applications and Services.
The Site, Applications and Services are intended solely for persons who are 18 or older. Any access to or use of the Site, Applications or Services by anyone under 18 is expressly prohibited. By accessing or using the Site, Applications or Services you represent and warrant that you are 18 or older.
HARVESTPORT DOES NOT OWN ASSETS; YOUR RESPONSIBILITY
HarvestPort is not an owner or operator of any Assets, nor is it a provider of Assets. HarvestPort does not own, sell, resell, furnish, provide, rent, re-rent, manage and/or control Assets. HarvestPort only makes available an online platform or marketplace with related technology for Lenders and Renters to meet online and arrange for the renting and leasing of Assets directly with each other. You understand and agree that HarvestPort's responsibilities are limited to: (i) facilitating the availability of the Site, Applications and Services to the extent that it is able and (ii) serving as the limited payment collection agent of each Lender and Renter for the purpose of collecting and accepting HarvesPort's fees, payments from Renters on behalf of the Lender, and collecting deposits and holding such deposits on terms determined by HarvestPort on behalf of Renters and Lenders as further described below.
PLEASE NOTE THAT, AS STATED ABOVE, THE SITE, APPLICATIONS AND SERVICES ARE INTENDED TO BE USED TO FACILITATE LENDERS AND RENTERS CONNECTING AND LEASING ASSETS DIRECTLY WITH EACH OTHER. HARVESTPORT CANNOT AND DOES NOT CONTROL THE CONTENT UPLOADED OR ADDED BY LENDERS OR RENTERS IN ANY REQUESTS, OPPORTUNITIES OR OFFERSNOR DO WE CONTROL THE CONDITION, LEGALITY OR SUITABILITY OF ANY ASSETS FOR ANY PARTICULAR PURPOSE. HARVESTPORT IS NOT RESPONSIBLE FOR AND DISCLAIMS ANY AND ALL LIABILITY ARISING FROM ANY AND ALL REQUESTS, OPPORTUNITIES, OFFERS AND ASSETS AND YOU HEREBY RELEASE HARVESTPORT FROM ANY SUCH LIABILITY AND AGREE TO DEFEND, INDEMNIFY AND HOLD HARVESTPORT HARMLESS FROM AND AGAINST SUCH LIABILITY WITH RESPECT TO YOUR TRANSACTIONS AND USE OF THE SERVICES. ANY RENTING OR LENDINGWILL BE MADE OR ACCEPTED AT THE MEMBER'S OWN RISK AND EACH MEMBER HEREBY REPRESENTS AND WARRANTS TO HARVESTPORT THAT HE, SHE OR IT WILL CONDUCT ALL COMMERCIALLY REASONABLE DUE DILIGENCE ON ANY MEMBER OR MEMBER'S ASSETS WITH WHOM HE, SHE, IT, OR THEY CONDUCT BUSINESS THROUGH THE SITE, SERVICES, OR APPLICATIONS PRIOR TO INCURRING ANY POTENTIAL LIABILITIES WITH RESPECT TO ANY MEMBER, LENDER OR RENTER.
ACCESS TO THE SERVICES; REGISTRATION
In order to access certain features of the Services, Site and Applications, and to rent or lendAssets, you must register to create a profile ("HarvestPort Profile") and become a Member. You may register to join the Services directly via the Site or, when available, the Applications.
Your HarvestPort Profile and your HarvestPort Profile page will be created for your use of the Site, Services and Applications based upon the personal and Asset-related information you provide to us. You may not have more than one (1) active HarvestPort Profile. You agree to provide accurate, current and complete information during the registration process and to update such information to keep it accurate, current and complete.
HarvestPort reserves the right to suspend or terminate your HarvestPort Profile and your access to the Site, Applications and Services if you create more than one (1) HarvestPort Profile, or if any information provided during the registration process or thereafter proves to be inaccurate, fraudulent, not current or incomplete.
You are responsible for safeguarding your password. You agree that you will not disclose your password to any third party and that you will take sole responsibility for any activities or actions under your HarvestPort Profile, whether or not you have authorized such activities or actions. You will immediately notify HarvestPort of any unauthorized use of your HarvestPort Profile and will defend, indemnify and hold HarvestPort harmless from any claims or losses arising out of the use or misuse of your HarvestPort Profile and account.
REQUESTS, OPPORTUNITIES AND OFFERS; YOUR POSTED CONTENT
As a Member, you may use the Services to create and make Requests, review Opportunities and make Offers. To carry out those actions, you will be asked a variety of questions or be required to enter a variety of data, including Content, about the Assets you desire to rent or lend, including, but not limited to, the location, capacity, size, features, and availability of the Assets, and the pricing, financial terms and other requirements you will impose on a Renter or Lender prior to renting or lending an Asset. Failure to provide all requested information may result, in HarvestPort's sole discretion, in a refusal to add your HarvestPort Profile to the Site, Services or Applications, or a refusal to add or provide access to your Request, Opportunity or Offer. Requests, Opportunities and Offers may be made publicly available via the Site, Applications and Services, in HarvestPort's sole discretion.
When you make a Request or an Offer, you will have the option of including additional requirements which must be met to accept your Request or Offer, such as requiring a Member to sign a separate agreement with respect to Renting or Lending the Assets, having and providing pictures of the Assets, having and providing a verified address and location of the Assets, having and providing details about the business for which the Assets will be rented, having and providing a profile picture or verified phone number, and any other requirements that would be commercially reasonable with respect to the proposed transaction. You agree to consult with legal and other appropriate professional counsel regarding the requirements that should be in place prior to your entering into any potential transaction for the renting or lending of any Assets via the Services. You additionally agree to defend, indemnify and hold HarvestPort harmless from and against any and all claims, costs or liabilities arising from your failure to consult with appropriate professional counsel or to include additional commercially reasonable requirements which must be met to accept your Request or Offer.
You acknowledge and agree that you alone are responsible for any and all Asset-related information and Member Content you post on the Site, Services or Applications. Accordingly, you represent and warrant to HarvestPort and the other Members that any Asset-related information or Member Content you post, and your actual renting or lending, as applicable, of Assets (i) will not breach any intellectual property rights or other rights of others, (ii) will not breach any agreements you have entered into with any third parties, including but not limited to other lease or rental agreements with respect to the Assets, agreements with co-owners of the Assets, or agreements with third parties who had a right to be consulted and to approve any transactions you engaged in using the Site, Services or Applications and (iii) will (a) be in compliance with all applicable laws and regulations, tax requirements, and rules and regulations that may apply to any Assets (including having all required permits, licenses and registrations to rent, lend or use such Assets), and (b) not conflict with the rights of third parties.
You agree that HarvestPort assumes no responsibility for a Lender's, Renter's or other Member's compliance with any agreements with or duties to other Members or third parties, or compliance with applicable laws, rules and regulations. HarvestPort reserves the right, at any time and without prior notice, to remove or disable access to any Request, Offer, Opportunity or HarvestPort Profile for any reason, including due to breaches of the representations and warranties discussed above, or due to Requests, Offers, Opportunities or HarvestPort Profiles that HarvestPort, in its sole discretion, considers to be objectionable for any reason, in violation of these Terms, or otherwise harmful to the Site, Applications or Services.
DUE DILIGENCE AND INSURANCE
You understand and agree that HarvestPort does not act as an insurer, broker or as your contracting agent. If you rent or lend Assets, any agreement you enter into with a Lender, Renter or other Member is between you and such Lender, Renter or Member and HarvestPort is not a party to it.
HarvestPort strongly recommends that all Members obtain appropriate insurance to cover all losses of Assets, losses caused by Assets, and loss of the foods, goods, and other products that will be stored in, on or around Assets. You hereby agree to defend, indemnify and hold HarvestPort harmless for any losses, liabilities, claims or damages that would have been covered by commercially reasonable insurance policies obtained by you to protect against reasonably foreseeable losses arising out of your lending or renting of Assets, your use of Assets, or out of the transactions or exchanges entered into by you on the Site or through the Services or Applications.
LIMITED PAYMENT COLLECTION AGENT
Notwithstanding anything to the contrary contained in these Terms, you agree that HarvestPort shall serve as your limited authorized payment collection agent for the purpose of accepting, on behalf of Lenders and Renters, payments and deposits of such amounts stipulated in Requests or Offers and for collecting HarvestPort's fees.
NO ENDORSEMENTS OR REPRESENTATIONS FROM HARVESTPORT
HarvestPort does not endorse any Member or any Request, Offer or Opportunity. Members are required, and hereby represent to HarvestPort and the other Members that they will, provide accurate and truthful information on the Site and when using the Services, and although HarvestPort may undertake additional checks and processes in its sole discretion designed to help verify or check the identities or backgrounds of Members, HarvestPort does not make any representations about, or confirm, or endorse or provide any guarantees about any Member or the Member's purported identity, background, trustworthiness, suitability, Assets, Requests, Offers or Opportunities.
By using the Site, Applications or Services, you agree that any legal remedy or liability that you seek to obtain for actions or omissions of other Members or other third parties will be limited to a claim against the particular Members or other third parties who caused you harm. You agree not to attempt to impose liability on or seek any legal remedy from HarvestPort with respect to such actions or omissions. Accordingly, we encourage you to communicate directly with other Members on the Site and Services regarding any Requests or Offers made by you. This limitation shall not apply to any claim by a Lender against HarvestPort regarding the remittance of payments received from a Renter by HarvestPort on behalf of a Lender, which instead shall be subject to the limitations described in the section below entitled "Limitation of Liability".
TRANSACTIONS AND FINANCIAL TERMS
Financial Terms for Lenders
If you are a Lender you will be presented with Opportunities to lend your Assets to Renters via the Site, Applications or Services and will be required to click an onscreen button entitled, Make an Offer, with respect to a selected Opportunity in order to proceed into a transaction with a Renter. When you select an Opportunity via the Site, Applications or Services, we will share with you (i) the name of the Renter who has provided the Opportunity, (ii) a link to the Renter's HarvestPort Profile page, and (iii) an indication of whether or not the Renter has provided other information to HarvestPort, such as a verified email address or physical address, pictures or official forms of identification.
When you make an Offer, HarvestPort will send you an email, text message or message via the Site, Services or Applications confirming such Offer, depending on the selections you make via the Site, Applications and Services. If you are unable to confirm or for any reason cancel or do not follow through with an Offer after it has been accepted by a Renter, you hereby grant HarvestPort the right, in its sole discretion, to refund any amounts collected by HarvestPort in connection with your Offer to the applicable Renter's credit card or account and any pre-authorization of such credit card or account will be released. You understand that your failure to follow through with an Offer after it has been made to a Renter may result in the loss of the Lender Fee at HarvestPort's sole discretion.
HarvestPort will collect the Deposit and Lender Fees concurrently with the Renter's acceptance of an Offer (i.e. when the Renter accepts the Offer via the Site, Services or Applications) and will facilitate payment of the Rental Fees (less Lender Fees and any Taxes in respect of the Rental Fees and Lender Fees where HarvestPort determines it is required to withhold such Taxes) to the Lender in regular intervals in accordance with the terms of the agreement between Renter and Lender (i) assuming that the Renter delivers payment of the Rental Fees to HarvestPort on the dates and times that the Renter agreed to so deliver payment and (ii) except to the extent that a refund is due to the Renter. You understand and agree that HarvestPort cannot control or predict whether Renters will honor their payment agreements and you hereby release HarvestPort from any liability for a Renters' failure to make timely payments or any payments in accordance with the terms of your agreement with any one or more Renters.
If you owe or agree to pay any amount to HarvestPort (whether as a result of your Offers or otherwise) via the Site, Services or Applications, then HarvestPort may (but is not obligated to) withhold the amount owing to HarvestPort from any payout amounts due to you as a Lender (including withholding from any and all Deposits), and use the withheld amount to offset the amount owed by you to HarvestPort. If HarvestPort does so, then your obligation to pay HarvestPort will be extinguished to the extent of the amount withheld by HarvestPort, and HarvestPort will cease to owe to you any obligations (including, but not limited to, any obligation to pay you) with respect to the amount withheld. In addition to the amount due, if your account is delinquent or you otherwise have charge backs on your account, you may be charged fees that are incidental to our collection of these delinquent amounts and charge backs. Such fees or charges may include collection fees, convenience fees, legal fees or other third party charges. You hereby explicitly agree that all communication in relation to delinquent accounts will be made by electronic mail or by phone, as provided to HarvestPort by you. Such communication may be made by HarvestPort or by anyone on its behalf, including but not limited to a third party collection agent.
Appointment of HarvestPort as Limited Payment Collection Agent for Lender. Each Lender hereby appoints HarvestPort as the Lender's limited payment collection agent solely for the purpose of accepting the Rental Fees and Deposits from Renters, and collecting HarvestPort's Lender Fees.
Each Lender agrees that payment made by a Renter through the Site, Services or Applications, shall be considered the same as a payment made directly to the Lender, and the Lender will make the Assets available to the Renter(and shall not attempt to repossess or take back possession of the Assets) in the agreed-upon manner, as if the Lender has received the Rental Fees. Each Lender agrees that HarvestPort may (i) permit the Renter to cancel the transaction and (ii) refund to the Renter that portion of the Rental Fees that HarvestPort determines to be reasonable and fair in its sole discretion in connection with the circumstances in which the Renter's cancellation occurs, whether before or after the Renter takes possession of the Assets.
Each Lender understands that HarvestPort accepts payments from Renters as the Lender's limited payment collection agent and that HarvestPort's obligation to pay the Lender is subject to and conditional upon successful receipt of the associated payments from Renters. HarvestPort does not guarantee payments to Lenders for amounts that have not been successfully received by HarvestPort from Renters. In accepting appointment as the limited authorized agent of the Lender, HarvestPort assumes no liability for any acts or omissions of Lenders or Renters.
Financial Terms for Renters
You agree that the Lenders, not HarvestPort, are solely responsible for following through with and honoring any Offers you accept and for making the Assets available to you in accordance with terms that you agree upon with the Lender, regardless of the fact that such Assets are being rented through your use of the Site, Applications and Services. If you, as a Renter, choose to enter into a transaction with a Lender, you agree and understand that you will be required to enter into an agreement with the Lender and you agree to accept and be bound by any terms, conditions, rules and restrictions that you agree upon, whether through the Site, Services and Applications or by separate agreement with the Lender.
You acknowledge and agree that you, and not HarvestPort, will be responsible for performing the obligations of any such agreements, that HarvestPort is not a party to such agreements, and that, with the exception of its payment obligations hereunder, HarvestPort disclaims, and you release HarvestPort from, all liability arising from or related to any such agreements.
You acknowledge and agree that, notwithstanding the fact that HarvestPort is not a party to the agreement between you and the Lender, HarvestPort acts as the Lender's payment collection agent for the limited purpose of accepting payments from you on behalf of the Lender and collecting HarvestPort's Lender Fees out of the monies you transmit through the Site, Services or Applications. You additionally agree that should you transmit monies to the Lender outside of the Site, Services or Applications, which would be a breach of these Terms and your obligations to HarvestPort, you will be liable to HarvestPort for any uncollected Lender Fees in addition to being subject to all other remedies available to HarvestPort at law or in equity.
Upon your payment of the Total Fees to HarvestPort, your payment obligation to the Lender for the Rental Fees is extinguished, and HarvestPort is responsible for remitting the Rental Fees (less the Lender Fees and any Taxes in respect of the Lender Fees that HarvestPort determines it is required to withhold), in the manner described in these Terms. In the event that HarvestPort does not remit any monies that you pay to HarvestPort as described in these Terms, the Lender will have recourse only against HarvestPort.
The Total Fees payable will be displayed to a Renter before the Renter accepts an Offer. As noted above. If an Offer is cancelled by a Lender, any amounts collected by HarvestPort will be refunded to such Renter, depending on the selections the Renter makes via the Site and Applications, any additional agreements with respect to cancellations made by and between you and any Lender, and HarvestPort's discretionary decision with respect to the circumstances surrounding the cancellation. Any pre-authorization of such Renter's credit card or accounts will be released, if applicable.
You as a Renter agree to pay HarvestPort for the Total Fees associated with an Offer that is made in connection with, and that meets the terms of, your Requests. You understand and agree that HarvestPort, on behalf of the Lenders, reserves the right, in its sole discretion, to (i) obtain a pre-authorization via your credit card(s), bank account(s) or other accounts for the Total Fees, (ii) make recurring charges against your credit card(s) or bank account(s) up to the amount of the Total Fees, and (iii) charge your credit card(s) or bank account(s) a nominal amount, not to exceed one dollar ($1), or a similar sum in the currency in which you are transacting, to verify your credit card(s) or bank account(s). Charges that are strictly imposed for verification purposes shall be credited back to the charged credit card(s) or other account(s).
HarvestPort will collect from your credit card(s), bank account(s) or other accounts the Deposit and Lender Fees once HarvestPort receives confirmation that a Lender has made an Offer that satisfies the terms of your Request, and HarvestPort will subsequently collect from your credit card(s), bank account(s) or other accounts the required recurring payments associated with your rental agreement or lease agreement with one or more Lenders as those payments become due. You understand and agree that HarvestPort cannot control any fees that may be charged to a Renter by his or her credit card company, bank or other financial institution related to HarvestPort's collection of the Total Fees, and you release HarvestPort from, and HarvestPort disclaims, all liability for such fees.
In connection with your Requests, you will be asked to provide customary billing information such as name, billing address and credit card or bank account information to HarvestPort. You agree to pay HarvestPort the Total Fees in accordance with these Terms by one of the methods described on the Site, Services or Applications. You hereby authorize the collection of such amounts by charging the credit card(s), bank account(s) or account(s) provided by HarvestPort. You also authorize HarvestPort to charge your credit card(s), bank account(s), other account(s) provided, or your Deposit in the event of damage caused to any Assets, costs incurred by HarvestPort or a Lender should you cancel a transaction after Assets have already been taken into your possession or after Assets have been put in transit to you.
Renters will be required to pay a Deposit that will be held by HarvestPort during and after the term of any lease or rental agreement with respect to a Lender's Assets. If a Lender makes a claim against a Deposit, whether due to non-payment of a recurring rental or lease payment, damage to the Assets or otherwise, HarvestPort will, in its capacity as the payment collection agent of the Lender, use its commercially reasonable efforts and discretion to charge the Renter for the amount of such claim against the Deposit. HarvestPort will also use its commercially reasonable efforts to address Lenders' requests and claims related to Deposits and Renter payments, but HarvestPort is not responsible for administering or accepting any claims by Lenders related to Deposits, and disclaims and is released from any and all liability in this regard.
Renters, Lenders and all Members agree that HarvestPort shall have the right to refrain from the distribution of any amount of a Deposit, to refrain from charging a Renter's accounts and to refrain from taking any action whatsoever with respect to a claim or dispute between a Renter and a Lender, until such time as the dispute has been adjudicated in a court of law between the disputing parties, by arbitration, settlement or otherwise, and you hereby release HarvestPort from any and all liability with respect to such disputes, including but not limited to any and all liability associated with a decision by HarvestPort to refrain from allocating or transferring control of Deposits or other monies in satisfaction of any purported claims or losses. You further agree not to name HarvestPort in any such disputes, and to refrain from taking any action adverse to HarvestPort in connection with such disputes absent HarvestPort's express written permission and agreement to participate in such disputes.
All Renters and Lenders further agree that HarvestPort shall have the right to apply or return Deposits in such manner as and when HarvestPort deems appropriate to account for a Renter's failure to pay a Lender, a Renter's failure to return Assets to a Lender, a Lender's failure to provide Assets as and when represented, or other circumstances, and all Renters and Lenders release HarvestPort from any and all liability they might incur in connection with our exercise of such right.
In consideration for the use of HarvestPort's Services, online marketplace and platform, HarvestPort charges the Lender Fees. Where applicable, Taxes that arise from the Lender Fees may also be charged and withheld by HarvestPort out of the sums we receive in connection with any transaction that occurs through our Services. HarvestPort deducts the Lender Fees before remitting the balance of Rental Fees to the Lender as described in these Terms.
Balances and recurring payments will be remitted by HarvestPort to Lenders via check, direct deposit or other payment methods selected by HarvestPort, in U.S. dollars.
Except as otherwise provided herein, Lender Fees are non-refundable.
Cancellations and Refunds
If a Renter cancels a Request before HarvestPort has collected the Deposit and before Assets have left a Lender's possession, HarvestPort will cancel any pre-authorization to the Renter's credit card or account and/or refund any nominal amounts charged to a Renter's credit card or account in connection with the Request within a commercially reasonable time. If, as a Renter, you wish to cancel a transaction after the Deposit has been received by HarvestPort or after the Assets have left a Lender's possession, the terms of cancellation that you agreed upon with the Lender, if any, or if none, then HarvestPort's discretion regarding the charging of any fees, including Lender Fees or charges against your Deposit and other penalties, will apply to such cancellation. Notwithstanding the foregoing, you understand and agree that such a cancellation will cause HarvestPort to incur costs, including time spent unwinding the transaction and accordingly, the Lender Fee is non-refundable in HarvestPort's sole and exclusive discretion regardless of the terms of cancellation or other terms that you agreed upon with the Lender.
If a Lender cancels an Offer made via the Site, Services, or Applications before the Assets have left the Lender's possession, HarvestPort will refund the Rental Fees for such transaction to the applicable Renter within a commercially reasonable time of the cancellation. If a Lender cancels an Offer after the Assets have left the Lender's possession, HarvestPort reserves the rights described in these Terms to refrain from taking any action whatsoever with respect to a claim or dispute between a Renter and a Lender, until such time as the dispute has been adjudicated as described above.
If, as a Lender or Renter, you cancel one or more Requests or Offers, you agree that HarvestPort may apply penalties or consequences to you or your HarvestPort Profile, including (i) publishing an automated review on your HarvestPort Profile indicating that one or more Offers have been cancelled, (ii) blocking future Requests, Opportunities or Offers, or (iii) imposing a cancellation fee (to be withheld from your future payouts or charged to the†credit card or account on file in your HarvestPort Profile).
In certain circumstances, HarvestPort may decide, in its sole discretion, that it is necessary or desirable to cancel an Offer, Opportunity or Request made via the Site, Applications or Services. Such cancellations are in HarvestPort's sole and exclusive discretion, and you hereby release HarvestPort from any and all liability, including but not limited to consequential damages, that may arise from such a cancellation and agree to defend, indemnify and hold HarvestPort harmless from any and all liability arising from such a cancellation. HarvestPort may also determine, in its sole discretion, to refund to Renters part or all of the amounts charged to the Renter and you hereby release HarvestPort from any and all liability arising from such a refund.
If, as a Lender, your Renter cancels a Request or HarvestPort determines in its sole discretion that it is necessary to cancel a Request or Offer, and HarvestPort issues a refund to the Renter in connection with such cancellation, you agree that in the event you have already been paid, HarvestPort shall be entitled to recover the amount of any such Renter refund from you, including by subtracting such refund amount out from any Rental Fees due to you.
Tax regulations may require us to collect appropriate tax information from our Lenders or Renters, or to withhold taxes from payouts to Lenders or Renters, or to do both. You as a Member are solely responsible for keeping the information in your tax forms current, complete and accurate. If you as a Member fail to provide us with documentation that we determine to be sufficient to alleviate our obligation (if any) to withhold taxes from payments to you, we reserve the right in our sole discretion to freeze all payouts to you until resolution, to withhold such amounts as required by law, or to do both.
You as a Member understand and agree that you are solely responsible for determining (i) your applicable tax reporting requirements, and (ii) the Taxes that should be included, and for including Taxes to be collected or obligations relating to applicable Taxes in your Offers or Requests. You are also solely responsible for remitting to the relevant authority any Taxes included or received by you. HarvestPort cannot and does not offer Tax-related advice to any Members.
You understand and acknowledge that appropriate governmental agencies, departments or authorities (the "Tax Authority") where your Assets are located or where they are used, may require Taxes to be collected from Renters or Lenders on the amount paid for the right to use and/or lend the Assets, and to be remitted to the respective Tax Authority. The laws in jurisdictions may vary, but these taxes may be required to be collected and remitted as a percentage of the Rental Fees set by Lenders, a set amount per day, or other variations (hereafter, "Rental Taxes").
Damage to Assets
As a Renter, you are responsible for returning the Assets to the Lender in the condition they were in when you received them or in accordance with the agreement you make with any given Lender. You acknowledge and agree that, as a Renter, you are responsible for your own acts and omissions and are also responsible for the acts and omissions of any individuals who have or gain access to the Assets after they have been transferred into your possession, or, as agreed between you and the Lender (for example, an agreement that all responsibility for care of the Assets transfers to the Renter at the time the Assets leave the Lender's possession, even if in the hands of a carrier).
In the event that a Lender claims that a Renter has caused damage to Assets or allowed damage to occur and provides evidence of such damage, including but not limited to photographs, all Renters hereby agree to pay the cost of replacing or repairing the damaged Assets or to otherwise work to resolve the claim. Renters further authorize HarvestPort to charge its reasonable estimate of the cost to repair or replace the Assets against the Renters credit card or other account on file with HarvestPort, or against the Deposit. However, HarvestPort is not obligated to carry out such actions and all Lenders, Renters and Members agree that HarvestPort reserves the right to refrain from taking any action whatsoever until any related disputes are formally adjudicated to HarvestPort's satisfaction. You hereby release HarvestPort from any and all liability with respect to such disputes, including but not limited to any and all liability associated with a decision by HarvestPort to refrain from allocating or transferring control of Deposits in satisfaction of any purported claims or losses. You further agree not to name HarvestPort in any such disputes, and to refrain from taking any action adverse to HarvestPort in connection with such disputes absent HarvestPort's express written permission and agreement to participate in such disputes.
Both Renters and Lenders agree to cooperate with and assist HarvestPort in good faith, and to provide HarvestPort with such information and take such actions as may be reasonably requested by HarvestPort, in connection with any complaints or claims made by Members relating to Assets or disputes between Members or with respect to any investigation undertaken by HarvestPort or a representative of HarvestPort regarding use or abuse of the Site, Applications or the Services.
Lenders and Renters understand and agree that HarvestPort may make a claim under your insurance policies relating to any damage or loss that you may have caused or been responsible for with respect to Assets, property stored in Assets or other property or persons. You agree to cooperate with and assist HarvestPort in good faith, and to provide HarvestPort with such information as may be reasonably requested by HarvestPort, in order to make a claim under your insurance policies, including, but not limited to, executing documents and taking such further acts as HarvestPort may reasonably request to assist HarvestPort in accomplishing the foregoing.
Retaining Assets Beyond Return Date
Renters agree that Offers are made by Lenders for limited durations in accordance with the terms set forth on the Site or Applications. Renters further agree to return the Assets to Lenders no later than the last day set forth in the terms agreed upon between Renter and Lender. If a Renter holds the Assets longer than the agreed upon return date, all Renters agree that Lenders are authorized to take back possession of the Assets immediately through any legal methods. In addition, Renters agree that the Lender can charge the Renter, for each 24 hour period that the Renter retains the Assets beyond the agreed return date, two times the daily fee paid by the Renter during the term of the rental agreement to cover the inconvenience suffered by the Lender, plus all applicable Lender Fees, Taxes, and any legal expenses incurred by the Lender or HarvestPort in connection with securing a return of the Assets (collectively, "Additional Sums"). Renters agree that HarvestPort, in its role as limited collection agent for the Lender, shall have the right to charge the Renter's credit card or other payment methods it has on file to collect these Additional Sums. In addition, HarvestPort may recover any costs and expenses it incurs in collecting the Additional Sums by charging the Renter's credit card or other payment method on file.
You understand and agree that you are solely responsible for compliance with any and all laws, rules, regulations, and tax obligations that may apply to your use of the Site, Applications, Services and Collective Content. In connection with your use of the Site, Applications, Services and Collective Content, you may not and you agree that you will not:
- violate any local, state, provincial, national, or other law or regulation, or any order of a court, including, without limitation, agricultural regulations and tax regulations;
- use manual or automated software, devices, scripts, robots, backdoors or other means or processes to access, "scrape," "crawl" or "spider" any web pages or other services contained in the Site, Applications, Services or Collective Content;
- access or use our Site, Applications, or Services to use, expose, or allow to be used or exposed, any HarvestPort Content: (i) that is not publicly displayed by HarvestPort; (ii) in any way that is inconsistent with the Terms; or (iii) in any way that otherwise violates the privacy rights or any other rights of HarvestPort's users or any other third party;
- use the Site, Applications, Services or Collective Content for any commercial or other purposes that are not expressly permitted by these Terms;
- copy, store or otherwise access or use any information contained on the Site, Applications, Services or Collective Content for purposes not expressly permitted by these Terms;
- infringe the rights of any person or entity, including without limitation, their intellectual property, privacy, publicity or contractual rights;
- interfere with or damage our Site, Applications or Services, including, without limitation, through the use of viruses, cancel bots, Trojan horses, harmful code, flood pings, denial-of-service attacks, backdoors, packet or IP spoofing, forged routing or electronic mail address information or similar methods or technology;
- use our Site, Applications or Services to transmit, distribute, post or submit any information concerning any other person or entity, including without limitation, photographs of others without their permission, personal contact information or credit, debit, calling card or account numbers;
- use our Site, Applications, Services or Collective Content in connection with the distribution of unsolicited commercial email ("spam") or advertisements;
- "stalk" or harass any other user of our Site, Applications, Services or Collective Content, or collect or store any personally identifiable information about any other user other than for purposes of transacting as a Renter or Lender;
- offer, as a Lender, any Assets that you do not yourself own or have permission to offer for rent (without limiting the foregoing, you will not list Assets as a Lender if you are serving in the capacity of a leasing agent for a third party);
- offer, as a Lender, any Assets that may not be rented due to the terms and conditions of an agreement with a third party;
- register for more than one HarvestPort Profile or register for a HarvestPort Profile on behalf of an individual other than yourself;
- unless HarvestPort explicitly permits otherwise in writing, make a Request if you are not the party that will take possession of and use the Assets;
- contact a Lender for any purpose other than asking a question related to Assets, Requests, Opportunities or Offers;
- contact a Renter for any purpose other than asking a question related to Assets, Requests, Opportunities or Offers;
- recruit or otherwise solicit any Lender or other Member to join third-party services or websites that are competitive to HarvestPort, without HarvestPort's prior written approval;
- impersonate any person or entity, or falsify or otherwise misrepresent yourself or your affiliation with any person or entity;
- use automated scripts to collect information from or otherwise interact with the Site, Applications, Services or Collective Content;
- use the Site, Applications, Services or Collective Content to find a Lender or Renter and then complete a leasing or renting transaction independent of the Site, Applications or Services, in order to circumvent the obligation to pay any Lender Fees related to HarvestPort's provision of the Services or for any other reasons;
- submit any Offer or Request with false or misleading information, or with a price or terms that you do not intend to honor;
- post, upload, publish, submit or transmit any Content that: (i)†infringes, misappropriates or violates a third party's patent, copyright, trademark, trade secret, moral rights or other intellectual property rights, or rights of publicity or privacy; (ii) violates, or encourages any conduct that would violate, these Terms, any applicable law or regulation or would give rise to civil liability; (iii) is fraudulent, false, misleading or deceptive; (iv) is defamatory, obscene, pornographic, vulgar or offensive; (v)†promotes discrimination, bigotry, racism, hatred, harassment or harm against any individual or group; (vi) is violent or threatening or promotes violence or actions that are threatening to any other person; or (vii) promotes illegal or harmful activities or substances;
- systematically retrieve data or other content from our Site, Applications or Services to create or compile, directly or indirectly, in single or multiple downloads, a collection, compilation, database, directory or the like, whether by manual methods, through the use of bots, crawlers, or spiders, or otherwise;
- use, display, mirror or frame the Site, Applications, Services or Collective Content, or any individual element within the Site, Applications, Services or Collective Content, HarvestPort's name, any HarvestPort trademark, logo or other proprietary information, or the layout and design of any page or form contained on a page in the Site, Applications or Services, without HarvestPort's express written consent;
- access, tamper with, or use non-public areas of the Site, Applications or Services, HarvestPort's computer systems, or the technical delivery systems of HarvestPort's providers;
- attempt to probe, scan, or test the vulnerability of any HarvestPort system or network or breach any security or authentication measures;
- avoid, bypass, remove, deactivate, impair, descramble, or otherwise circumvent any technological measure implemented by HarvestPort or any of HarvestPort's providers or any other third party (including another user) to protect the Site, Services, Applications or Collective Content;
- forge any TCP/IP packet header or any part of the header information in any email or posting, or in any way use the Site, Services, Applications or Collective Content to send altered, deceptive or false source-identifying information;
- attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, Services, Applications or Collective Content;
- advocate, encourage, or assist any third party in doing any of the foregoing; or
- accept or make a payment for Assets, or to or from a Lender or Renter, outside of the HarvestPort Site and Services. If you do so, you acknowledge and agree that you: (i) would be in breach of these Terms; (ii) accept all risks and responsibility for such payment, (iii) will still be liable for the Lender Fees, and (iv) hold HarvestPort harmless from any liability for such payment.
In the event that you violate any of the foregoing, you understand and agree that HarvestPort has the right, in its sole discretion, to immediately terminate your access to the Site, Services or Applications, cancel any of your ongoing transactions, lending or renting of Assets and make refunds or allocations of Deposits and other monies as we see fit, and that HarvestPort shall additionally have all remedies available at law or in equity, including the right to seek damages, specific performance or an injunction.
DISCLOSURE OF INFORMATION; MONITORING
HarvestPort may access, preserve and disclose any of your information if we are required to do so by law, or if we believe in good faith that it is reasonably necessary to (i) respond to claims asserted against HarvestPort or to comply with legal processes (for example, subpoenas or warrants), (ii) enforce or administer our agreements with users, such as these Terms, (iii) for fraud prevention, risk assessment, investigation, customer support, product development and de-bugging purposes, or (iv) protect the rights, property or safety of HarvestPort, its users, or members of the public.
You acknowledge that HarvestPort has no obligation to monitor your access to or use of the Site, Applications, Services or Collective Content or to review, remove, modify, move or edit any Member Content, but has the right to do so for the purpose of operating and improving the Site, Applications and Services (including without limitation for fraud prevention, risk assessment, investigation and customer support purposes), to ensure your compliance with these Terms, to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body, to respond to content that it determines is otherwise objectionable or as set forth in these Terms. HarvestPort reserves the right, at any time and without prior notice, to remove or disable access to any Collective Content that HarvestPort, at its sole discretion, considers to be objectionable for any reason, in violation of these Terms or otherwise harmful to the Site, Applications or Services.
OWNERSHIP OF THE SITE AND SERVICES
The Site, Applications, Services, and Collective Content are protected by copyright, trademark, and other laws of the United States and foreign countries. You acknowledge and agree that the Site, Applications, Services and Collective Content, including all associated intellectual property rights, are the exclusive property of HarvestPort and its licensors. You will not remove, alter or obscure any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Applications, Services, or Collective Content.
LICENSE TO THE APPLICATIONS
Subject to your compliance with these Terms, HarvestPort grants you a limited, non-exclusive, non-transferable license to download and install a copy of the Applications on each mobile device or computer that you own or control and run such copy of the Applications solely for your own personal use. Furthermore, with respect to any App Store Sourced Applications (defined below), you will only use the App Store Sourced Applications (i) on an Apple-branded product that runs the iOS (Apple's proprietary operating system) and (ii) as permitted by the "Usage Rules" set forth in the Apple App Store Terms of Service. HarvestPort reserves all rights in the Applications not expressly granted to you by these Terms.
HARVESTPORT CONTENT AND MEMBER CONTENT LICENSE
Subject to your compliance with the terms and conditions of these Terms, HarvestPort grants you a limited, non-exclusive, non-transferable license, to (i) access and view any HarvestPort Content solely for your personal and non-commercial purposes (other than those commercial purposes specifically permitted by these Terms) and (ii) access and view any Member Content to which you are permitted access, solely for your personal and non-commercial purposes(other than those commercial purposes specifically permitted by these Terms). You have no right to sublicense the license rights granted in this section.
You will not use, copy, adapt, modify, prepare derivative works based upon, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Site, Applications, Services, or Collective Content, except as expressly permitted in these Terms. No licenses or rights are granted to you by implication or otherwise under any intellectual property rights owned or controlled by HarvestPort or its licensors, except for the licenses and rights expressly granted in these Terms.
We may, in our sole discretion, permit you to post, upload, publish, submit or transmit Member Content. By making available any Member Content on or through the Site, Applications or Services, you hereby grant to HarvestPort, together with its owners, shareholders, members, managers, officers, parents, directors, employees, agents, affiliates and subsidiaries, a worldwide, irrevocable, perpetual, non-exclusive, transferable, royalty-free license, with the right to sublicense, to use, view, copy, adapt, modify, edit, move, distribute, license, sell, transfer, publicly display, publicly perform, transmit, stream, broadcast, access, view, and otherwise exploit such Member Content on, through, by means of or to promote or market the Site, Applications and Services. You understand and agree that you shall not be compensated for any Member Content or otherwise by HarvestPort.
You acknowledge and agree that you are solely responsible for all Member Content that you make available through the Site, Applications or Services. Accordingly, you represent and warrant that: (i) you either are the sole and exclusive owner of all Member Content that you make available through the Site, Applications or Services or you have all rights, licenses, consents and releases that are necessary to grant to HarvestPort the rights in such Member Content, as contemplated under these Terms; and (ii) neither the Member Content nor your posting, uploading, publication, submission or transmittal of the Member Content or HarvestPort's use of the Member Content (or any portion thereof) on, through or by means of the Site, Applications or the Services will infringe, misappropriate or violate a third party's patent, copyright, trademark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
The Site, Applications and Services may contain links to third-party websites or resources. You acknowledge and agree that HarvestPort is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by HarvestPort of such websites or resources or the content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources or the Content, products or services on or available from such websites or resources.
PROPRIETARY RIGHTS NOTICE
All trademarks, service marks, logos, trade names and any other proprietary designations of HarvestPort used herein are trademarks or registered trademarks of HarvestPort. Any other trademarks, service marks, logos, trade names and any other proprietary designations are the trademarks or registered trademarks of their respective parties.
You may submit feedback by emailing us, through the contact section of the Site and Applications, or by other means of communication. You acknowledge and agree that all feedback you give us will be the sole and exclusive property of HarvestPort and you hereby irrevocably assign to HarvestPort and agree to irrevocably assign to HarvestPort all of your right, title, and interest in and to all feedback.
SUSPENSION OR TERMINATION OF HARVESTPORT PROFILE
We may, in our discretion and without liability to you, with or without cause, with or without prior notice and at any time, decide to limit, suspend, deactivate or cancel your HarvestPort Profile. If we exercise our discretion under these Terms to do so, any or all of the following can occur with or without prior notice or explanation to you: (a) your HarvestPort Profile will be deactivated or suspended, your password will be disabled, and you will not be able to access the Site, Applications, Services, your HarvestPort Profile, your Member Content, or receive assistance from HarvestPort (b) any pending or accepted future rental or lending of Assets will be immediately terminated, (c) we may communicate to your Renters or Lenders that a potential or confirmed transaction has been cancelled, (d) we may refund your Renters in full for any and all confirmed transactions, irrespective of preexisting cancellation policies, or may hold your deposit for or transmit all or a portion thereof to, your Lenders, and (e) you may not, in HarvestPort's sole discretion, be entitled to any compensation for the transaction or transactions that were ongoing or confirmed that were cancelled as a result of a suspension, deactivation or termination of your HarvestPort Profile. Please note that if your HarvestPort Profile is cancelled, whether by your actions or by ours, we do not have an obligation to delete or return to you any Content you have posted to the Site, Applications or Services, including, but not limited to, any reviews or feedback.
IF YOU CHOOSE TO USE THE SITE, APPLICATIONS, SERVICES OR COLLECTIVE CONTENT, YOU DO SO AT YOUR OWN RISK. YOU ACKNOWLEDGE AND AGREE THAT HARVESTPORT DOES NOT†HAVE AN OBLIGATION†TO CONDUCT BACKGROUND OR CRIMINAL CHECKS ON ANY MEMBER, INCLUDING, BUT NOT LIMITED TO, RENTERS AND LENDERS, BUT MAY CONDUCT SUCH BACKGROUND OR CRIMINAL CHECKS IN ITS SOLE DISCRETION, WITH NO LIABILITY TO YOU FOR ITS FAILURE TO CONDUCT SUCH CHECKS.†THE SITE, APPLICATIONS, SERVICES, AND COLLECTIVE CONTENT ARE PROVIDED "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, HARVESTPORT EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, QUIET ENJOYMENT OR NON-INFRINGEMENT, AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.HARVESTPORT MAKES NO WARRANTY THAT THE SITE, APPLICATIONS, SERVICES, OR COLLECTIVE CONTENT, INCLUDING, BUT NOT LIMITED TO, THE ASSETS WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. HARVESTPORT MAKES NO WARRANTY REGARDING THE QUALITY OR TRUTHFULNESS OF ANY ASSETS, LENDERS OR RENTERS, THE SERVICES OR COLLECTIVE CONTENT OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY COLLECTIVE CONTENT OBTAINED THROUGH THE SITE, APPLICATIONS, OR SERVICES.
YOU UNDERSTAND AND HEREBY AGREE THAT ANY ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HARVESTPORTOR ANY OF ITS AGENTS OR REPRESENTATIVES, OR THROUGH THE SITE, APPLICATIONS, SERVICES OR COLLECTIVE CONTENT, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
YOU ARE SOLELY RESPONSIBLE FOR ALL OF YOUR COMMUNICATIONS AND INTERACTIONS WITH OTHER USERS OF THE SITE, APPLICATIONS OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATIONS OR SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY LENDERS OR RENTERS. YOU UNDERSTAND THAT HARVESTPORT DOES NOT MAKE ANY ATTEMPT TO VERIFY THE STATEMENTS OF USERS OF THE SITE, APPLICATIONS OR SERVICES OR TO REVIEW OR CONFIRM THE EXISTENCE OR QUALITY OF ANY ASSETS.HARVESTPORT MAKES NO REPRESENTATIONS OR WARRANTIES AS TO THE CONDUCT OF USERS OF THE SITE, APPLICATIONS OR SERVICES OR THEIR COMPATIBILITY WITH ANY CURRENT OR FUTURE USERS OF THE SITE, APPLICATIONS OR SERVICES. YOU AGREE TO TAKE REASONABLE PRECAUTIONS, AND TO DEFEND, INDEMNIFY AND HOLD HARVESTPORT HARMLESS FROM ANY AND ALL LIABILITY ARISING OUT OF, ALL COMMUNICATIONS AND INTERACTIONS YOU HAVE WITH OTHER USERS OF THE SITE, APPLICATIONS OR SERVICES AND WITH OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATIONS OR SERVICES, INCLUDING, BUT NOT LIMITED TO, RENTERS AND LENDERS, PARTICULARLY IF YOU DECIDE TO MEET OFFLINE OR IN PERSON REGARDLESS OF WHETHER SUCH MEETINGS ARE ORGANIZED BY HARVESTPORT. NOTWITHSTANDING HARVESTPORT'S APPOINTMENT AS THE LIMITED PAYMENT COLLECTION AGENT OF THE LENDERS AND RENTERS FOR THE PURPOSE OF ACCEPTING PAYMENTS AND DEPOSITS FROM RENTERS ON BEHALF OF THE LENDERS, HARVESTPORT EXPLICITLY DISCLAIMS ALL LIABILITY FOR ANY ACT OR OMISSION OF ANY RENTER, LENDER OR OTHER THIRD PARTY AND YOU AGREE TO SUCH DISCLAIMER AND RELEASE HARVESTPORT FROM ANY SUCH LIABILITY.
LIMITATION OF LIABILITY
YOU ACKNOWLEDGE AND AGREE THAT, TO THE MAXIMUM EXTENT PERMITTED BY LAW, THE ENTIRE RISK ARISING OUT OF YOUR ACCESS TO AND USE OF THE SITE, APPLICATIONS, SERVICES AND COLLECTIVE CONTENT, YOUR LENDING OR RENTING OF ANY ASSETS VIA THE SITE, APPLICATIONS AND SERVICES, AND ANY CONTACT YOU HAVE WITH OTHER USERS OF HARVESTPORT WHETHER IN PERSON OR ONLINE REMAINS WITH YOU. NEITHER HARVESTPORT NOR ANY OTHER PARTY INVOLVED IN CREATING, PRODUCING, OR DELIVERING THE SITE, APPLICATIONS, SERVICES, OR COLLECTIVE CONTENT WILL BE LIABLE FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES, INCLUDING LOST PROFITS, LOSS OF DATA OR LOSS OF GOODWILL, SERVICE INTERRUPTION, COMPUTER DAMAGE OR SYSTEM FAILURE OR THE COST OF SUBSTITUTE PRODUCTS OR SERVICES, OR FOR ANY DAMAGES FOR PERSONAL OR BODILY INJURY OR EMOTIONAL DISTRESS ARISING OUT OF OR IN CONNECTION WITH (i) THESE TERMS, (ii) FROM YOUR OR ANY OTHER PERSON OR ENTITY'S USE OF OR INABILITY TO USE THE SITE, APPLICATIONS, SERVICES OR COLLECTIVE CONTENT, (iii) FROM ANY COMMUNICATIONS, INTERACTIONS OR MEETINGS WITH OTHER USERS OF THE SITE, APPLICATIONS, OR SERVICES OR OTHER PERSONS WITH WHOM YOU COMMUNICATE OR INTERACT AS A RESULT OF YOUR USE OF THE SITE, APPLICATIONS, OR SERVICES, OR (iv) FROM YOUR LENDING OR RENTING OF ANY ASSETS VIA THE SITE, APPLICATIONSOR SERVICES, WHETHER BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), PRODUCT LIABILITY OR ANY OTHER LEGAL THEORY, AND WHETHER OR NOT HARVESTPORT HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A LIMITED REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE.
EXCEPT FOR OUR OBLIGATIONS TO PAY AMOUNTS TO APPLICABLE LENDERS PURSUANT TO THESE TERMS, IN NO EVENT WILL HARVESTPORT'S AGGREGATE LIABILITY ARISING OUT OF OR IN CONNECTION WITH THESE TERMS AND YOUR USE OF THE SITE, APPLICATIONS AND SERVICES INCLUDING, BUT NOT LIMITED TO, FROM YOUR LENDING OR RENTING OF ANY ASSETS VIA THE SITE, APPLICATIONS AND SERVICES, OR FROM THE USE OF OR INABILITY TO USE THE SITE, APPLICATIONS, SERVICES, OR COLLECTIVE CONTENT AND IN CONNECTION WITH ANY ASSETS OR INTERACTIONS WITH ANY OTHER MEMBERS, EXCEED THE AMOUNTS YOU HAVE PAID OR OWE AS A RENTER IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR IF YOU ARE A LENDER, THE AMOUNTS PAID BY HARVESTPORT TO YOU IN THE SIX (6) MONTH PERIOD PRIOR TO THE EVENT GIVING RISE TO THE LIABILITY, OR ONE HUNDRED U.S. DOLLARS (US$100) IF NO SUCH PAYMENTS HAVE BEEN MADE. THE LIMITATIONS OF DAMAGES SET FORTH ABOVE ARE FUNDAMENTAL ELEMENTS OF THE BASIS OF THE BARGAIN BETWEEN HARVESTPORT AND YOU. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
You agree to release, defend, indemnify, and hold HarvestPort and its owners, shareholders, members, managers, officers, parents, directors, employees, agents, affiliates and subsidiaries, harmless from and against any claims, liabilities, damages, losses, and expenses, including, without limitation, reasonable legal and accounting fees, arising out of or in any way connected with (a) your access to or use of the Site, Applications, Services, or Collective Content or your violation of these Terms; (b) your Member Content; (c) your (i) interaction with any Member, (ii) lending or renting of any Assets, or (iii) creation of a HarvestPort Profile, Request or Offer; or(d) the use, condition, renting or lending of Assets by you, including but not limited to any injuries, losses, or damages (compensatory, direct, incidental, consequential or otherwise) of any kind arising in connection with or as a result of your renting or lending Assets or using the Services. In all cases in these Terms, any requirement that a Member, Renter or Lender defend, indemnify or hold HarvestPort harmless shall include a requirement that the Member, Renter or Lender also defend, indemnify, and hold all of HarvestPort's owners, shareholders, members, managers, officers, parents, directors, employees, agents, affiliates and subsidiaries, harmless.
If you feel that any Renter, Lender or other Member or user of the Site, Services or Applications is acting or has acted inappropriately, including but not limited to anyone who (i) engages in offensive, criminal or violent behavior, (ii) you suspect of stealing from or making material misrepresentations to you, or (iii) engages in any other disturbing conduct, you should immediately report such person to the appropriate authorities and then to HarvestPort by contacting us with your police station and report number; provided that your report will not obligate us to take any action beyond that required by law (if any) or cause us to incur any liability to you.
These Terms constitute the entire and exclusive understanding and agreement between HarvestPort and you regarding the Site, Applications, Services, Collective Content, and any renting or lending of Assets made via the Site, Applications and Services, and these Terms supersede and replace any and all prior oral or written understandings or agreements between HarvestPort and you regarding renting or lending of Assets, the Site, Applications, Services, and Collective Content.
You may not assign or transfer these Terms, by operation of law or otherwise, without HarvestPort's prior written consent. Any attempt by you to assign or transfer these Terms without such consent will be null and of no effect. HarvestPort may assign or transfer these Terms, at its sole discretion, without restriction and without your consent. Subject to the foregoing, these Terms will bind and inure to the benefit of the parties, their successors and permitted assigns.
Any notices or other communications permitted or required hereunder, including those regarding modifications to these Terms, will be in writing and given by HarvestPort (i) via email (in each case to the address that you provide) or (ii) by posting to the Site or via the Applications. For notices made by e-mail, the date of receipt will be deemed the date on which such notice is transmitted.
CONTROLLING LAW; AGREED JURISDICTION
These Terms and your use of the Services will be interpreted and governed in accordance with the laws of the State of California, without regard to its conflict-of-law provisions. You and we agree to submit to the exclusive personal jurisdiction of a state court located in San Francisco County, San Francisco, California or a United States District Court in the Northern District of California located in San Francisco, California for any actions for which the parties†retain the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights,†as set forth in the Dispute Resolution provision below.
Disputes between Members. If any Member has a dispute with another Member related to his or her use of HarvestPort Services, before pursuing other dispute resolution remedies, the Member shall proceed as follows:
Step 1: The Member must first attempt to resolve the dispute directly with the other Member. These efforts must include a written attempt at resolution, with evidence of the date it was transmitted.
Step 2: If the Member is unable to resolve the dispute within 72 hours of the written attempt described in Step 1, the Member shall contact HarvestPort regarding the dispute and request that HarvestPort intervene and make a determination. HarvestPort shall have no responsibility or obligation to assist Renters, Lenders, or other Members in dispute resolution; notwithstanding, HarvestPort may choose, in its sole and absolute discretion, to assist Renters, Lenders or other Members in dispute resolution. If HarvestPort exercises its discretion to assist, it will notify the Member that it has accepted the request to intervene, and the HarvestPort community manager will investigate the dispute and may require additional information from the Members.
Step 3: If HarvestPort exercises its discretion to assist, as provided in Step 2, above, HarvestPort will, within a reasonable time, issue a written determination regarding the dispute.
Step 4: The Members shall promptly comply with HarvestPort’s written determination regarding the dispute. Failure to comply with the determination may result in the restriction or deletion of the Member’s HarvestPort Account and/or discontinuance of HarvestPort’s Services to that Member.
Disputes between Member and HarvestPort. You and HarvestPort agree that any dispute, claim or controversy arising out of or relating to these Terms or the breach, termination, enforcement, interpretation or validity thereof, or to the use of the Services or use of the Site or Applications (collectively, "Disputes") will be settled by binding arbitration, except that each party retains the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party's copyrights, trademarks, trade secrets, patents, or other intellectual property rights. You acknowledge and agree that you and HarvestPort are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action or representative proceeding. Further, unless both you and HarvestPort otherwise agree in writing, the arbitrator may not consolidate more than one person's claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this "Dispute Resolution" section will be deemed void. Except as provided in the preceding sentence, this "Dispute Resolution" section will survive any termination of these Terms.
Arbitration Rules and Governing Law. The arbitration will be administered by the American Arbitration Association ("AAA") in accordance with the Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes (the "AAA Rules") then in effect, except as modified by this "Dispute Resolution" section. (The AAA Rules are available at†www.adr.org/arb_med or by calling the AAA at 1-800-778-7879.) The Federal Arbitration Act will govern the interpretation and enforcement of this section.
Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. The AAA provides a form Demand for Arbitration†and a separate form for California residents. The arbitrator will be either a retired judge or an attorney licensed to practice law in the state of California and will be selected by the parties from the AAA's roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
Arbitration Location and Procedure. Unless you and HarvestPort otherwise agree, the arbitration will be conducted in the county where you reside. If your claim does not exceed $10,000, then the arbitration will be conducted solely on the basis of documents you and HarvestPort submit to the arbitrator, unless you request a hearing or the arbitrator determines that a hearing is necessary. If your claim exceeds $10,000, your right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
Arbitrator's Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator's decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator's award of damages must be consistent with the terms of the "Limitation of Liability" section above as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant's individual claim. If you prevail in arbitration you will be entitled to an award of attorneys' fees and expenses, to the extent provided under applicable law. HarvestPort will not seek, and hereby waives all rights it may have under applicable law to recover, attorneys' fees and expenses if it prevails in arbitration.
Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
Changes. Notwithstanding the provisions of the "Modification" section above, if HarvestPort changes this "Dispute Resolution" section after the date you first accepted these Terms (or accepted any subsequent changes to these Terms), you may reject any such change by sending us written notice (including by email) within 30 days of the date such change became effective, as indicated in the "Last Updated Date" above or in the date of HarvestPort's email to you notifying you of such change. By rejecting any change, you are agreeing that you will arbitrate any Dispute between you and HarvestPort in accordance with the provisions of this "Dispute Resolution" section as of the date you first accepted these Terms (or accepted any subsequent changes to these Terms).
The failure of HarvestPort to enforce any right or provision of these Terms will not constitute a waiver of future enforcement of that right or provision. The waiver of any such right or provision will be effective only if in writing and signed by a duly authorized representative of HarvestPort. Except as expressly set forth in these Terms, the exercise by either party of any of its remedies under these Terms will be without prejudice to its other remedies under these Terms or otherwise.
If for any reason an arbitrator or a court of competent jurisdiction finds any provision of these Terms invalid or unenforceable, that provision will be enforced to the maximum extent permissible and the other provisions of these Terms will remain in full force and effect.
THIRD PARTY BENEFICIARY
These Terms do not and are not intended to confer any rights, remedies or obligations upon any person other than the parties specifically mentioned with respect to any rights or remedies.
If you have any questions about these Terms, please contact HarvestPort at [email protected]
CDMS EXHIBIT A
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