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TERMS
OF USE
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Introduction:
Terms and Conditions
I. GENERAL TERMS
All users of the Web Site and our Services are required to accept and comply with these Terms of Use. The Web Site is a venue for access to and use of certain Services of Oiltizer. The Services include subscriptions to its publication and the placement of advertisements in its publication. Non-conformance with these Terms of Use may result in the termination of your right to use Oiltizer's Services or Web Site.
By registering to use or using this Web Site, you agree and ratify that you accept all of the terms and conditions of these Terms of Use. If you do not accept all of the terms and conditions of these Terms of Use, then you are not authorized to use any of the services of Oiltizer.
B. Amendment of Terms.
We may amend these Terms of Use at any time without notice, although we will e-mail a notice of the amended Terms of Use to your e-mail address as reflected in our records. The amended Terms of Use will be effective upon the effective date indicated therein. We may add, delete or modify the Services at our discretion, at any time. These Terms of Use may not be otherwise amended except in writing signed by an officer of Oiltizer and the party requesting the amendment. These Terms of Use were last revised effective July 25, 2001 .
C. Eligibility.
The Services are available only to duly organized businesses that are in good standing under applicable state laws. The Services are limited to those officers or agents who are authorized to form legally binding contracts under applicable law on behalf of a business, and are not available for consumer use. Oiltizer assumes that the individual that reads and determines whether to accept these Terms of Use is an authorized officer or agent acting in such capacity on behalf of the business he or she represents. All references to the term "you" in these Terms of Use refer both to the individual user and the business that the user represents. Oiltizer may refuse the Services to anyone or any entity at any time, in our sole discretion.
D. Information Relating to Assets Advertised.
Correct documentation, specification, and other Information relating to assets advertised are the exclusive responsibility of the users. Although Oiltizer encourages users to include as much Information relating to assets as possible, such Information is not verified or substantiated by Oiltizer and we cannot be held responsible in any way for any inaccuracies or omissions in such Information, regardless of its source. Unless the advertiser expressly discloses otherwise, advertiser will be deemed to represent and warrant that it has good and marketable title to any asset, free and clear of any lien or other encumbrance (other than statutory liens or other encumbrances arising in connection with advertiser's ordinary course of business securing payments not yet due and payable and which will not have a material adverse effect on the advertiser's ability to complete the transaction on the agreed-upon terms).
II. COVENANTS OF USERS
A. User Information.
"Information" includes any information you provide to Oiltizer or other users during the subscription or ad placement process, and any other information you provide to or through the Web Site. Oiltizer accepts the Information supplied by various Sellers and Buyers, but does not assume responsibility for testing or verifying the accuracy of such Information, and does not endorse or approve of any product, service or other Asset, of any Seller or Buyer. With respect to the Information you supply, you agree that:
1. You are solely responsible for notifying us of any changes to Information provided by you, so that such Information is current, complete, truthful and accurate at all times. Oiltizer acts only as a passive conduit for online publication of your Information. Your responsibility includes issuance of all bills of lading and all transportation documents required by the U.S. Department of Transportation, and any other applicable statutes or regulations. Notwithstanding the foregoing, in order to maintain the integrity of the Web Site for the benefit of all of its users and to avoid the harm that may result from the dissemination of statements that are false, malicious, violate the rights of others or are otherwise harmful, Oiltizer reserves the right to monitor all Information and to take any action with respect to such Information we deem necessary or appropriate in our sole discretion, including, without limitation, deleting, restricting or suspending access to such Information, at our sole discretion, for any reason whatsoever.
2. You warrant and represent that your Information and the sale or purchase of an asset(s) through the Services: (a) will not infringe any third party's copyright, patent, trademark, trade secret or other proprietary rights or rights of publicity or privacy; (b) will not violate any law, statute, ordinance or regulation (including without limitation those governing export control, consumer protection, unfair competition, discrimination false advertising, transportation or release of hazardous material, or use of pesticides); (c) will not be defamatory, trade libelous, unlawfully threatening or unlawfully harassing; (d) will not link directly to or include descriptions of assets that: (i) are concurrently listed for sale or requested for purchase anywhere other than the Web Site in a manner that inhibits your ability to fulfill your obligations under these Terms of Use or (ii) you do not have a right to link to or include; and (e) will not be fraudulent or involve the sale of counterfeit or stolen assets. Furthermore, you agree not to claim that by allowing you to post, sell or purchase an Asset on the Web Site, or by charging you a Transaction Fee, Oiltizer violated any applicable law, statute, ordinance or regulation.
B. System Integrity.
You agree not to use any device, software or routine to knowingly or intentionally interfere or attempt to interfere with the proper working of the Web Site, any listing being conducted on the Web Site, or our Services. You may not knowingly or intentionally take any action that imposes an unreasonable or disproportionately large load on our infrastructure, or with the intent of disrupting the Web Site. You may not disclose or share your password to any third parties or use your password for any unauthorized purpose.
C. General Compliance with Laws.
You will comply with all applicable laws, statutes, ordinances and regulations regarding your use of the Services and your bidding on, listing, purchase and sale of assets. III. INTELLECTUAL PROPERTY
A. Oiltizer Property.
The Web Site, its content and all intellectual property included therein (including but not limited to copyrights, trademarks and service marks) are owned or licensed by Oiltizer, and all right, title and interest therein will remain the property of Oiltizer and/or its licensees, successors, and assigns. You also agree not to remove or copy any copyright, trademark or other intellectual property or any proprietary notice or legend contained on the Oiltizer Web Site or its content, including the Information.
B. Limited License.
Oiltizer hereby grants you a revocable, nontransferable, nonexclusive, worldwide license to use the Services solely for your internal, commercial use, including use by contractors, consultants and other agents that you have authorized to act on your behalf in accordance with these Terms of Use. Without limiting the foregoing or expanding any of your rights hereunder, you agree that you will not republish, reproduce, or distribute any of the Information or make any use of the Information that would allow a third party to have access to the Information or to the Services. In addition, you will be responsible for providing all communication lines, telephone/transmission services and all equipment and technology necessary for you to access and use the Services. The foregoing license has been granted to you subject to your agreement to abide by these Terms of Use as well as with any other rules, procedures, terms, and conditions that may be published or displayed from time to time by Oiltizer on the Web Site.
C. Copyrights and Copyright Agent.
Oiltizer expects its users to respect the intellectual property of others. Oiltizer may, in appropriate circumstances and at its discretion, terminate the use of the Web Site and the Services by users who infringe the intellectual property rights of others. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide Oiltizer's Copyright Agent the following information:
1. An electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
2. A description of the copyrighted work that you claim has been infringed;
3. A description of where the material that you claim is infringing is located on the Web Site;
4. Your address, telephone number, and email address;
5. A statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
6. A statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner's behalf.
Please send all notice of claims of copyright infringement on this Web Site to: Oiltizer, Inc., 3555 Timmons Lane, Suite 1500, Houston, Texas 77027, by fax at 713-850-0808, or by e-mail to: help@networkoil.com . IV. LIMITATIONS OF OILTIZER'S LIABILITY
A. Disclaimers.
YOU AGREE YOUR USE OF THE SERVICES IS ENTIRELY AT YOUR OWN RISK. THE SERVICES ARE PROVIDED, "AS IS," WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTY FOR THE INFORMATION, SERVICES, UNINTERRUPTED ACCESS, OR ASSETS PURCHASED THROUGH OR IN CONNECTION WITH THE SERVICES, INCLUDING WITHOUT LIMITATION INFORMATION ON ASSETS PURCHASED OR SOLD OR INTENDED TO BE PURCHASED OR SOLD BY ANY BUYER OR SELLER BASED, IN ANY PART, ON INFORMATION OBTAINED THROUGH THE SERVICES.
SPECIFICALLY, OILTIZER DISCLAIMS ANY AND ALL WARRANTIES, INCLUDING WITHOUT LIMITATION: 1) ANY WARRANTIES CONCERNING THE AVAILABILITY, ACCURACY, OR CONTENT OF THE INFORMATION, ASSETS, OR THE SERVICES; 2) ANY WARRANTIES OF TITLE OR WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, 3) ANY WARRANTIES CONCERNING THE ABILITY OF A USER TO PROVIDE OR DELIVER ANY PRODUCT, SERVICE OR ASSET OR TO PAY A USER FOR ANY PRODUCT, SERVICE OR ASSET, AND 4) ANY WARRANTIES OF CONTINUOUS, UNINTERRUPTED OR SECURE ACCESS TO OILTIZER'S SERVICES.
THIS DISCLAIMER OF LIABILITY APPLIES TO ANY DAMAGES OR INJURY CAUSED BY ANY FAILURE OF PERFORMANCE, ERROR, OMISSION, INTERRUPTION, DELETION, DEFECT, DELAY IN OPERATION OR TRANSMISSION, COMPUTER VIRUS, COMMUNICATION LINE FAILURE, THEFT OR DESTRUCTION OR UNAUTHORIZED ACCESS TO, ALTERATION OF, OR USE OF ANY ASSET, WHETHER FOR BREACH OF CONTRACT, TORTIOUS BEHAVIOR, NEGLIGENCE, OR UNDER ANY OTHER CAUSE OF ACTION.
Oiltizer is committed to protecting the privacy of the users of the Web Site. However, Oiltizer cannot guarantee the security of any information you disclose online, and you assume sole and complete risk for using this Web Site. Oiltizer is not responsible for the security of any information transmitted via the Internet or any error or delay in transmitting any information over the Internet, including limitations as to authentication and privacy protection measures. You further acknowledge that data or information provided to or by the Web Site may be subject to eavesdropping, sniffing, spoofing, forgery, spamming, "impostering", tampering, breaking passwords, harassment, fraud, electronic trespassing, hacking, nuking, system contamination (including, without limitation, viruses, worms, and Trojan horses) causing unauthorized, damaging or harmful access and/or retrieval of information and data on your computer, may be subject to other security or privacy hazards or may not reach its destination or may reach an erroneous address or recipient.
B. Limitation of Liability.
Because we do not and cannot control the actions of users of the Web Site, in the event that you have a dispute with one or more users, you release Oiltizer and its employees, agents, successors, officers, directors, assigns and affiliates (collectively, the "Oiltizer Affiliates") from any and all claims, demands and damages (actual, consequential and punitive) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes. You waive the provisions of any state law limiting or prohibiting a general release. IF YOU ARE A CALIFORNIA RESIDENT, YOU EXPRESSLY WAIVE CALIFORNIA CIVIL CODE SECTION 1542, WHICH PROVIDES THAT: "A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS FAVOR AT THE TIME OF EXECUTING THIS RELEASE, WHICH IF KNOWN BY HIM MUST HAVE MATERIALLY AFFECTED HIS SETTLEMENT WITH THE DEBTOR."
IN NO EVENT WILL OILTIZER OR THE OILTIZER AFFILIATES BE LIABLE FOR ANY DIRECT, INDIRECT, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES (INCLUDING BUT NOT LIMITED TO, LOST PROFITS, LOST GOODWILL, OR COSTS OF PROCUREMENT OF SUBSTITUTE PRODUCTS OR SERVICES). IN NO EVENT WILL OILTIZER'S LIABILITY AND THE LIABILITY OF THE OILTIZER AFFILIATES, ARISING OUT OF OR RELATING TO THESE TERMS OF USE, THE SERVICES OR YOUR USE THEREOF, HOWEVER ARISING, UNDER ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT (INCLUDING WITHOUT LIMITATION NEGLIGENCE AND/OR GROSS NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, EXCEED THE GREATER OF (1) ONE THOUSAND DOLLARS ($1,000) , OR(2) THE TRANSACTION FEE ASSOCIATED WITH THE TRANSACTION IN QUESTION, REGARDLESS OF WHETHER OILTIZER OR THE OILTIZER AFFILIATES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS, AND NOTWITHSTANDING THE FAILURE OF THE ESSENTIAL PURPOSE OF ANY REMEDY. THESE LIMITATIONS APPLY TO ANY THIRD-PARTY CLAIMS AGAINST BUYER OR SELLER. SOME STATES LIMIT DISCLAIMERS OF CERTAIN LIABILITIES, SO CERTAIN OF THESE LIMITATIONS MAY NOT APPLY TO YOU.
C. Indemnification.
You agree to indemnify, defend, and hold harmless Oiltizer and its employees, agents, successors, officers, directors and assigns, from and against any suits, losses, claims, demands, liabilities, costs and expenses (including attorney and accounting fees) arising out of or relating to any claim or action based upon (a) your breach of these Terms of Use; or (b) your sale, delivery, purchase or use of any Asset; provided that Oiltizer: (i) provides you with prompt written notice of such claim; (ii) permits you to control the defense and settlement of such claim; and (iii) does not enter into any settlement or compromise of any such claim. V. RIGHT TO TERMINATE
A. Oiltizer Right to Terminate.
Oiltizer reserves the right in its sole discretion to refuse the Services to any user at any time.
WE MAY IMMEDIATELY ISSUE A WARNING, TEMPORARILY SUSPEND, OR TERMINATE YOUR USE AND/OR ACCESS TO THE WEB SITE OR THE SERVICES, AND ANY OF YOUR CURRENT LISTINGS, AND ANY OTHER INFORMATION YOU PLACE ON THE WEB SITE IF YOU BREACH THESE TERMS OF USE OR IF WE ARE UNABLE TO VERIFY OR AUTHENTICATE ANY INFORMATION YOU PROVIDE TO US.
B. Your Right to Terminate.
You may terminate these Terms of Use upon 30 days notice to Oiltizer; provided, however, that such termination will not relieve you of any obligations occurring prior to such termination, and immediately upon such termination, you will no longer be authorized to use the Services. VI. MISCELLANEOUS
A. No Agency.
You and Oiltizer are independent parties, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms of Use.
B. Privacy.
Our policies with respect to Information and other data concerning users is set forth in our Privacy Statement, which is incorporated by reference to these Terms of Use. By using the Web Site, you consent to the collection and use of Information and other data in accordance with the Privacy Policy and these Terms of Use.
C. Notices.
Except as explicitly stated otherwise, any notices will be sent via e-mail to help@oiltizeronline.com (in the case of Oiltizer) or to the e-mail address you provide to Oiltizer during the registration process (in your case), or such other address specified via e-mail to help@oiltizeronline.com . Notice will be deemed given 24 hours after E-mail is sent, unless the sending party is notified that the e-mail address is invalid. Alternatively, we may give you notice by certified mail, postage prepaid and return receipt requested, to the address provided to Oiltizer during the registration process. In such case, notice will be deemed given three days after the date of mailing.
D. Arbitration.
Any controversy or claim between you and Oiltizer arising out of or relating to these Terms of Use will be settled by binding arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any such controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in Houston, Texas before a single arbitrator, and judgment on the arbitration award may be entered into any court having jurisdiction thereof. Either you or Oiltizer may seek any interim or preliminary relief from a court of competent jurisdiction in Houston, Texas, necessary to protect the respective property rights pending the completion of arbitration. Both parties submit to jurisdiction in Texas and further agree that any cause of action arising under these Terms of Use will be brought exclusively in any state or federal court located in Houston, Texas.
E. General.
If any provision of these Terms of Use is held to be invalid or unenforceable, such provision will be struck and the remaining provisions will be enforced. Headings are for reference purposes only and in no way define, limit, construe or describe the scope or extent of such section. Our failure to act with respect to a breach by you or others does not waive our right to act with respect to subsequent or similar breaches. These Terms of Use set forth the entire understanding and agreement between you and Oiltizer with respect to the subject matter hereof.
F. Governing Law.
These Terms of Use will be governed in all respects by the laws of the State of Texas, without respect to its conflict of law rules. You agree that the exclusive jurisdiction for all disputes involving these Terms of Use will be the federal courts of the State of Texas.
Questions? Please call us toll free at (800) 255-7215 or email help@oiltizeronline.com . |