restrict, suspend, or terminate Your access to the Platform,
prescribe limitations on Your transactions;
demand that You make restitution to the account of anyone damaged by the Your conduct; and/or
engage in fraud or bad faith
engage in conduct or proceedings inconsistent with just and equitable marketplace principles
engage in dishonest conduct
create or report a false or fictitious order
extort or attempt extortion
buy or sell any Products with the intent to default on such purchase or sale
to engage in, or attempt to engage in, the manipulation of prices of a Product
make a verbal or written material misstatement to a User or the Company
knowingly disseminate false, misleading or inaccurate information concerning market information or conditions that affect or may affect the price of any Product
3. ACCOUNT INFORMATION In order to access the Platform, You must provide certain account details and other information to the Company (“Account Information“). As deemed necessary by the Company, the Account Information will include information such as, but is not limited to, Your company name, contact information, transportation information, company address, bank account information (sufficient to make ACH transactions), origination location, destination location, Your login and generated password. You shall be responsible for promptly updating the Company with changes to Your Account Information. Forward changes in Account Information to [email protected] It is a condition of Your use of the Platform that the Account Information provided by You is correct, current, and complete at all times.
A. Listing Products. Company shall provide a description of the Products that may be bought and sold with the Platform (“Listed Product(s)”). As deemed necessary by the Company, the Listed Product shall include a description of the Listed Products. By way of example, the Listed Product shall include:
a general description (e.g., lumber)
species (e.g., southern yellow pine)
size (e.g., 2 x 4)
grade (e.g., #2)
length (e.g., 8ft long)
B. Selling Products. If a Seller desires to sell Products on the Platform, the Seller will use the Platform to (1) select the Products to be offered for sale to potential Buyers and also (2) set the price, quantity, and origination location for such Products (“Seller’s Offer”). The Products may include, but are not necessarily limited to, goods (e.g., commodities such as lumber) and services (e.g., coordinating delivery) associated with providing the goods. The Company reserves the right to update or modify a Listed Product from time to time, with written notice. Sellers are required to define the exact amount of Listed Products that may be loaded onto a truck at a specific location, which comprises a full truckload of material (e.g. parts per unit and units per truck). By listing Products for sale on the Platform, the Seller represents and warrants that:
Seller has the authority to sell such Products on the Platform,
Seller has been and remains in compliance in all applicable laws, and
all information submitted by Seller on the Platform, with respect to its Products for sale, shall be accurate and complete in all material respects.
The Company reserves the right to adjust the Seller’s Offer, if requested by the Seller, or with the intent to protect the Seller and integrity of an orderly marketplace. The Company has the right to remove Offer(s) provided by any Seller from the Platform at any time, if The Company has reason to believe the Offer is erroneous or unintentional (e.g. Seller offers $240 when the last transaction was at $420). The Company will take reasonable measures to provide prior notice to the Seller, and provide the Seller written notice after making modifications or deletions. The Company may post Seller’s Offers on behalf of and at the direction of certain Sellers. Any resulting Transactions will be solely for the account of such Seller(s).
C. Buying Products. If a Buyer desires to purchase a Listed Product, the Buyer will (1) select Listed Products that the Buyer desires to purchase and (2) set the applicable price and quantities for such Listed Products along with the destination location (“Buyer’s Order”). The Company reserves the right to update or modify a Listed Product from time to time, with written notice. By placing a Buyer’s Order, the Buyer represents and warrants that:
Buyer has the authority to buy such Products on the Platform,
Buyer has been and remains in compliance in all applicable laws, and
all information submitted by Buyer on the Platform, with respect to its Products for sale, shall be accurate and complete in all material respects.
The Company reserves the right to adjust the Buyer’s Order, if requested by the Buyer, or with the intent to protect the Buyer and integrity of an orderly marketplace. The Company has the right to remove any Buyer or the Order(s) provided by any Buyer from the Platform at any time The Company has reason to believe the Bid is erroneous or unintentional (e.g. Buyer bids $420 when the last transaction was at $240). The Company will take reasonable measures to provide prior notice to the Buyer and written notice after making modifications or deletions. The Company may post Buyer’s Orders on behalf of and at the direction of certain Buyers. Any resulting Transactions will be solely for the account of such Buyer(s).
D. Transactions. A Transaction shall occur when the Platform concludes that a Buyer’s Order matches all or some of a Seller’s Offer. At such time, a “Transaction” shall have occurred, and at that point, Buyer and Seller are committed to carry out the Transaction. The Company shall coordinate logistics for delivery of the Products. This shall include coordinating freight (e.g., notifying any Intermediary Service Providers that the Products are ready to be picked up and delivered) as well as coordinating with certain Sellers that may directly arrange the logistics for delivery of the Product(s) they sold on the Platform.
E. Intermediary Service Providers. Buyer and Seller give permission to the Company to coordinate logistics of delivery (e.g., including freight) of the Products on behalf of the Buyer and Seller. This coordination will include engaging one or more Intermediary Service Providers (defined below) on behalf of the Buyer and Seller solely when the Company takes title to the Product and acts as the Shipper. An Intermediary Service Provider means a Person holding or transporting products in connection with a transaction between Buyer and Seller on the Platform. Additionally, certain Sellers may act as the Shipper and coordinate directly with Intermediary Services Providers in conjunction with the Product they sell on the Platform. In such cases the Buyer and Company give permission to the Seller to coordinate logistics of delivery (e.g., including freight) of the Products on behalf of the Buyer and Company. An Intermediary Service Provider will be contracted for in conjunction with the initiation of a Transaction. Intermediary Service Providers shall assume sole liability for any damage to the Products from the time such Products are picked up and or delivered to its business location(s) until the final delivery of the Products to the buyer. In addition, the Intermediary Service Provider shall be solely responsible for any claims that may arise during the transporting of the Product.
F. Title Transfer. In the event that the Company contracts directly with an Intermediary Service Provider to transport the product, title and risk of loss shall pass as follows: (i) pass from Seller to the Company once the Product is placed with the Intermediary Service and a bill of lading or other shipping documentation has been signed by such Intermediary Service; and (ii) pass from the Company to Buyer as the Product is placed at the disposal of Buyer on the arriving means of transportation ready for unloading at the requested destination set forth in the transaction on the Platform. In the event of a conflict, title to the Product will transfer simultaneously with risk of loss. In the event that a Seller contracts directly with an Intermediary Service Provider, the Seller shall maintain title and ownership while the Product is in transit with and pass from the Seller to Buyer as the Product is placed at the disposal of Buyer on the arriving means of transportation ready for unloading at the requested destination set forth in the transaction on the Platform. In the event of a conflict, title to the Product will transfer simultaneously with risk of loss.
G. Disputes. Any disputes between or among Buyers, Sellers, and Intermediary Service Providers with respect to a Transaction must be resolved through Dispute Resolution (see Section 5 below “Dispute Resolution”).
H. Payments, MX Accounts, Settlement & Company Fee. Regarding Transactions on the Platform, each business day the Company shall notify the Buyer of the total amount due, itemized by Transaction. The amount due will be equal to best estimate for the cost of goods, freight, and any transactions fees. The Company, with prior notice to the Buyer, will initiate an electronic money transfer money from the Buyer’s bank account to the Company’s escrow account for the total amount due. Money deposited into the Company’s escrow account will be recorded as a Credit to the Buyer, in an account (“MX Account”) in the Company’s books and records. Money will be transferred from the Buyer’s MX Account to the Seller’s MX Account after the goods are delivered and the transaction completed. Money in the Seller’s MX Account will be transferred into the Seller’s bank account the following business day by electronic transfer. The Company shall charge a fee to the Buyer and to the Seller. The Company shall have the right to change the fee as deemed necessary from time to time, with prior written notice.
I. Fraudulent, Erroneous or Duplicate Transactions; Chargebacks. The Company reserves the right to seek reimbursement from You, and You will reimburse the Company, if the Company discovers a fraudulent, erroneous, or duplicate transaction not the fault of the Company, or if the Company receives a chargeback or reversal from any Buyer credit card company, bank, or Buyer’s account for any reason.
J. Non-Circumvention. You agree not to take any action directly to circumvent the payment of the Company Fee. You agree to use the Platform to sell, buy or hold Products with or for other users for any transaction that was initiated on the Platform and You shall not circumvent the Platform or the Company to complete the consummation of transactions initiated on the Platform. It is understood by the Company that You may have other sales channels in place for transactions not initiated on the Platform. You agree to notify the Company immediately if a Buyer or Seller seeks to pay or receive payment outside of the Platform for a transaction initiated on the Platform.
K. Default; Non-performance In the event of a material default in the performance of any duty or obligation of a Seller or Buyer, the defaulting party will be subject to a fee not to exceed fees due to the Company, and losses incurred by the opposite side of the Transaction in order to procure a suitable replacement. Should Seller default in whole or in part as to quantity or quality under this Contract, the Company reserves the right to acquire suitable replacement products on behalf of the Buyer and charge or withhold as payment any loss or damage caused by such default to Seller.
5. DISPUTE RESOLUTION Any and all disputes related to use of the Platform, including, without limitation, the quality, delivery of, or payment for the Products, shall be resolved using the dispute resolution process described in this Section 5 (“Dispute Resolution”). You must initiate Dispute Resolution within one (1) business day of when You should have reasonably become aware of the existence of a dispute, but no later than. Within two (2) business days of receiving the Dispute Resolution notice, the Company will provide written documentation of the Dispute Resolution notice to the affected users. If You initiate Dispute Resolution, the Company may contact the applicable users to determine the facts of the dispute. You agree to cooperate with any investigation by the Company including, but not limited to, providing documents, explanations, and records. The Company shall make a final decision on such dispute within 10 days of the initiation of the applicable Dispute Resolution. Within 10 days of the final determination by the Company, the Company shall disburse any funds in its possession to the applicable users, as determined by the Company. You agree to indemnify and hold harmless the Company and any of the Company’s affiliates against any damages or liability that arise in connection with the Company’s resolution of any dispute. If You do not agree with the Company’s decisions with respect to a particular dispute, such dispute will be resolved by non-binding arbitration, conducted by the American Arbitration Association (AAA) under its rules. The AAA’s rules are available at www.adr.org. If unsuccessful, You may submit your dispute to the appropriate court in accordance with Section 19 below (“Governing Law; Jurisdiction; Waiver of Jury Trial”).
6. COMPLIANCE You shall comply fully with all applicable laws and regulations in its performance of this Transaction. Notwithstanding any other provision of this Transaction, neither Buyer nor Seller shall be required to take or refrain from taking any action impermissible or penalized under any applicable laws. Seller represents and warrants that in compliance with the Lacey Act, 16 U.S.C. 3371 et. seq (the “Lacey Act”), all wood, wood fiber, chips, or other plants, plant products or derivatives thereof (collectively, “Plants”) comprising all or part of, or an ingredient in, the Product were harvested, taken, possessed, transported and sold in compliance with the laws of the countries in which the Plants were harvested, taken, possessed, transported or sold. For Plants sourced in the United States, such laws include all federal, state and other applicable laws. If requested by Buyer, Seller shall provide Buyer access to such personnel and/or documentation reasonably necessary to confirm compliance with the Lacey Act.
7. PROHIBITED USES You will not:
violate any applicable federal, state, local or international law or regulation;
use any robot, spider, other automatic device, or manual process to monitor or copy any portion of the Platform without the Company’s prior written permission;
infringe the Company’s, any other party’s copyright, patent, trademark, trade secret, or other intellectual property rights, or rights of publicity or privacy;
introduce any viruses, Trojan horses, worms or other computer programming routines that may damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data, or information of the Platform;
9. TRADEMARKS The Company’s name, the Company’s logo(s) and all related names, logos, product and service names, designs, and slogans are trademarks of the Company. You may not use such items without the prior written consent of the Company. All other logo(s) and trademarks not owned by the Company that appear on the Platform are the property of their respective owners and may not be used without their respective owners’ prior written consent.
10. COPYRIGHT INFRINGEMENT The Company takes claims of copyright infringement seriously. The Company will respond to notices of alleged copyright infringement that comply with applicable law.
11. PLATFORM AVAILABILITY The Company reserves the right to withdraw or amend the Platform, and any function or material provided on the Platform, in its sole discretion without notice. The Company is not liable if, for any reason, all or any part of the Platform is unavailable at any time or for any period. From time to time, the Company may restrict Your access to some parts of the Platform, or the entire Platform.
13. TAXES & DUTIES Seller shall pay and be responsible for all taxes, duties, governmental charges and any other impositions of whatever kind or nature imposed upon the manufacture, handling, transportation or sale of Products (collectively “Taxes”). The Seller is responsible for applying Taxes, when appropriate, on invoices related to purchases and any remittance of applicable Taxes on any fees or other income received by such Sellers in connection with providing Products to Buyers. The Company will process all applied Taxes to invoices on Seller’s behalf and return with invoice payments to Seller. The Company is not obligated to determine the applicability of any Taxes or to remit, collect or report any such applicable Taxes and is only passing through Taxes as a convenience to both Seller and Buyer. Each Seller agrees that it will abide by any and all applicable state and federal tax statutes, regulations and common law.
14. TERMINATION OF ACCOUNT You may terminate Your membership on the Platform by providing written notice to the Company. Notwithstanding the foregoing, no termination shall take effect until all then-current Transactions involving You have been completed.
15. PRIVACY; OWNERSHIP OF DATA Protecting Your privacy is important to the Company. The Company is committed to maintaining your privacy and will not disclose your non-public information to others on the Platform. You agree that any information about another user You receive by or in connection with the Platform or by providing Products must be kept confidential and shall only be used in connection with buying, selling, or holding Products in connection with the use of the Platform. The Company may review any and all communications that You have on the Platform, with or without notice to You. You acknowledge and agree that You have no expectation of privacy concerning the sending or receiving of communications via the Platform. Other than is necessary to setup an account on the Platform, You agree that You will not provide The Company with personally identifiable information (PII) or any other data protected under US privacy laws (“Excluded Data”). The Company is the sole and exclusive owner of all content, data, and information, other than the Excluded Data, that is submitted by You on or through the Platform (the “Data”), including, but not limited to any reviews or feedback received concerning other users. The Company may use, commercialize, or reproduce the Data in any format or venue that the Company deems appropriate, without compensation to any users. You shall not reproduce or otherwise use the Data without the Company’s express written consent, which may be withheld in the Company’s sole discretion. You agree that the Company may use Your business name and trademarks in marketing materials provided to potential users of the Platform.
16. DISCLAIMER OF WARRANTIES YOUR USE OF THE PLATFORM AND INTERACTIONS WITH OTHER USERS THROUGH THE PLATFORM IS YOUR OWN RISK. ALL PRODUCTS AND SERVICES OFFERED ON THE PLATFORM ARE PROVIDED “AS IS” WITHOUT ANY WARRANTY WHATSOEVER, INCLUDING, WITHOUT LIMITATION, ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE. SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU.
17. LIMITATION ON LIABILITY IN NO EVENT SHALL THE COMPANY BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, SPECIAL OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, REVENUE, GOODWILL OR USE, INCURRED BY YOU OR ANY THIRD PARTY, WHETHER IN AN ACTION IN CONTRACT, TORT, STRICT LIABILITY, OR IMPOSED BY STATUTE, OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL THE COMPANY OR ANY OF ITS AFFILIATES, SERVICE PROVIDERS, EMPLOYEES, AGENTS, MEMBERS, MANAGERS, OFFICERS OR DIRECTORS BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE PLATFORM. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, THE COMPANY’S AGGREGATE LIABILITY FOR DAMAGES RELATED TO OR ARISING OUT OF THIS AGREEMENT SHALL BE LIMITED TO THE AGGREGATE AMOUNT PAID BY YOU TO THE COMPANY UNDER THIS AGREEMENT DURING THE TWELVE-MONTH PERIOD ENDING UPON THE DATE OF THE EVENT GIVING RISE TO SUCH DAMAGES.
18. INDEMNIFICATION; SET-OFF Subject to the limitation of liability in Section 17 above (“Limitation On Liability”), the Company agrees to defend, hold harmless and indemnify You from and against any and all losses, costs, expenses, damages, or other liabilities arising from or in connection with the Platform’s actual infringement of a third party’s intellectual property rights; provided, You must immediately notify the Company of any such claim(s) and cooperate with the Company in connection with the defense thereof. The Company shall have full control of the defense of and the authority to settle any such claims. You agree to defend, hold harmless, and indemnify the Company and its directors, officers, managers, members, and assigns from and against any and all losses, costs, expenses, damages, or other liabilities arising from or in connection with:
Your actions or inactions through the Platform or relating to its purchase, sale, or holding of the Products;
breach of contract or other claims made by others with respect to how a You have conducted business through the Platform;
any liability arising from the tax treatment of payments or any portion thereof received by You connection with providing or obtaining Products or otherwise in connection with Your use of the Platform; and/or
any intentional misuse or misconduct by You when using the Platform, or Your violation of any laws.
21. Force Majeure. If, because of Force Majeure, a Party hereto is unable to carry out any of its obligations hereunder (the “Declaring Party”), then the obligations of the Declaring Party shall be suspended to the extent made necessary by and during such Force Majeure’s continuance. “Force Majeure” means any cause(s) not reasonably within the control, and without the fault or negligence, of the Party affected thereby, which wholly or partly prevents or interferes with the performance by that Party of its obligations. Force Majeure includes, without limitation, the event of war, acts of terrorism or sabotage, fire, flood, strike, labor trouble from whatever cause arising and whether or not the demands of the employees are reasonable and within the Party’s power to concede, accident, riots, acts of God, compliance with an order or request of any federal, state or local government unit, or any officer, department, agency, or committee thereof (except to the extent such order or request arises from the failure of the Declaring Party to comply with applicable law), national or regional emergency, a pandemic or widespread disease outbreak (e.g., COVID-19), and any other event or contingencies of like or different character beyond the reasonable control of the Declaring Party, that, in each case, interferes with the ability of the Declaring Party to perform its obligations hereunder. Force Majeure specifically excludes Seller’s ability to sell the Product to a market at a more advantageous price or Buyer’s ability to buy the Product from another party at a more advantageous price. Notwithstanding the foregoing, the non-availability of financing, lack of funds or change(s) in the financial condition of the Buyer or the Seller shall not be considered Force Majeure. The Declaring Party shall give the other Party prompt written notice of such claim with reasonably full particulars concerning it, including its expected duration. The Declaring Party shall not be required to settle strikes, walkouts, or other labor difficulties contrary to its wishes, and the handling of all such difficulties shall be entirely within the discretion of the Party concerned. Any goods not received due to a Force Majeure shall be eliminated from the Contract. If a Party declares Force Majeure, and such Force Majeure lasts for 60 days or more, the non-declaring Party may, at its option, cancel the Contract without any further liability on the part of either Party.