Updated January 1, 2019
Welcome to Wind Aftermarket, an exchange marketplace for new, used and refurbished wind turbines, spare parts and components. Please read this agreement carefully prior to using our marketplace and it’s services as it governs your use of our platform.
Wind Aftermarket (referred to here as “Wind Aftermarket,” “we,” “us,” “our”) provides its services (described below) to you through its website located at windaftermarket.com (the “Website”) and related services (collectively, such services, including any new features and applications, and the Website, the “Service(s)”), subject to the following Terms of Service (as amended from time to time, the “Terms of Service”). The following terms set forth the legally binding terms governing your use of the Website and the Services. Your right to use the Services is expressly conditioned on acceptance of these Terms of Service. Wind Aftermarket reserves the right to modify these terms at any time. If we do this, we will send an email notification and we will post the changes on this page and will indicate at the top of this page the date these terms were last revised. Your continued use of the Service after the date any such changes become effective constitutes your acceptance of the new Terms of Service.
1. Access and Use of the Services.
1.1 Services Description. The Service is designed to provide owners of wind turbines, spare parts and components (respectively, the “Sellers” and the “Goods”), a convenient platform for offering, managing and communicating with potential buyers (“Buyers”) and third party vendors and suppliers (“Vendors”). Sellers may use the Service to display, promote and sell Goods and provide related services to Buyers and to better manage their operations with Buyers. Buyers may use the Service to find and purchase Goods and services.
1.2 Registration. To use the Services, you must register by creating an account (the “Account”) using your email address and a password. A confirmation of the activation of your Account will be sent to you to the indicated email address. Only legal entities and physical persons are allowed to be a member of the Website. You are solely responsible for keeping your password secret and secure and you agree to provide us with truthful and correct information about you as required by the registration process or subscription and update this information promptly as needed to ensure that it remains fair and complete. You must notify us immediately of any breach of security or unauthorized use of your Account. A member account is not transferable and Wind Aftermarket reserves the right to refuse the registration of a member for any reason Wind Aftermarket deems reasonable.
1.3 Modifications to Service. Wind Aftermarket reserves the right to modify or discontinue the Service (or any part thereof), temporarily or permanently, with or without notice. You agree that Wind Aftermarket will not be liable to you or to any third party for any modification, suspension or discontinuance of the Service.
1.4 General Practices Regarding Use and Storage. You acknowledge that Wind Aftermarket may establish general practices and limits concerning use of the Service, including without limitation the maximum period of time that data or other content will be retained by the Service and the maximum storage space that will be allotted on Wind Aftermarket’s servers on your behalf. You agree that Wind Aftermarket has no responsibility or liability for the deletion or failure to store any data or other content maintained or uploaded by the Service. You acknowledge that Wind Aftermarket reserves the right to terminate accounts that are inactive for an extended period of time.
2. Condition of Use.
2.1 The Wind Aftermarket Platform. Wind Aftermarket is merely an intermediator and is not a party to any agreement between Sellers, Buyers, Vendors or other Third Parties. All dealings are solely between the respective parties and Wind Aftermarket will have no liability for any interactions therein. Wind Aftermarket is not responsible for any contracts or proposals that Sellers upload to the Service other than making such contracts available for review on its Website. You acknowledge and agree that Wind Aftermarket is not a party to (though it may be an intended third party beneficiary of) any agreements executed between Sellers, Buyers, Vendors or other Third Parties, and the formation of such agreements will not, under any circumstances, create an employment or other service relationship between Wind Aftermarket and such parties, and Wind Aftermarket will have no liability under any such agreements. Your interactions with other Sellers or Buyers are at your sole risk. Wind Aftermarket will have no liability with respect to the acts, omissions, errors, representations, warranties, breaches or negligence of any Seller or Buyer, or for any personal injuries, death, property damage, or other warranties, damages or expenses resulting from your interactions herein. Wind Aftermarket may provide services relating to accepting payments from Buyers, by itself or via PayPal, and in such case, Wind Aftermarket will deliver payment received on behalf of a Buyer to the Seller, less any commissions as previously agreed between Wind Aftermarket and Seller and any fees charged by PayPal. Wind Aftermarket has no control over and does not guarantee the existence, quality, safety, or legality of any Goods or any services advertised by Sellers; the truth or accuracy of any advertisements; the ability of Sellers to sell Goods or services; the ability of Buyers to pay for any Goods or services; or, the completion of any transaction on the Website. Wind Aftermarket does not warrant or guarantee that any Goods or services offered through the Service will meet a Buyer’s requirements.
2.2 User Conduct. By using the Services you are representing that you have the right, power and legal capacity to enter into a binding agreement and are not otherwise prohibited from using or receiving the Services pursuant to any applicable laws of the local or national jurisdiction from which you are accessing or using the Services. You further agree not to use the Services for any illegal or unauthorized purpose and in accordance with the terms set forth by these Terms of Service, the Website’s policies and any applicable laws, rules and regulations. Without derogating of the foregoing, you agree to fully comply with: (i) all applicable laws regarding online conduct and with respect to your activities in the Website and your content; (ii) all export control laws, regulations, and related administrative requirements of the country of your residence and any relevant jurisdictions. Without derogating of these terms, you further agree that you will not engage, under any circumstances whatsoever, in any export transaction prohibited by your respective national export control laws and regulations. If you are a Seller using the Services you further agree, represent and warrant that: (i) you shall be solely responsible for compliance with all applicable export control compliance and shall obtain the necessary export control license and any other certificates and authorizations required according to the laws of any applicable jurisdiction, including your country of residency; (ii) you will conduct a proper “Know your Customer” procedure and will not export Goods to a party sanctioned by your national government; (iii) the Goods offered by you are and will at all times: (a) comply with any applicable laws, rules or regulations, including without limiting the export control under the Export Administration Regulations (“EAR”); (b) shall not consist of counterfeit parts; (c) if the Goods are promoted via other platforms (i.e. third party web sites, Seller’s web site or marketing materials, etc.) the Goods pricing quoted on Wind Aftermarket’s platform will not be higher than the pricing quoted on such other platforms. You are solely responsible for your conduct and any data, text, information, screen names, graphics, photos, profiles, audio and other media, links or any other content that you submit post or display on the Website and will not publish any data which may be considered as technical data (i.e. drawings, descriptions of manufacturing process, etc.), unless you explicitly certify that such data is in the public domain. As a Seller, you agree to deliver the items that have been purchased unless the material conditions of delivery are not met. You agree not to modify, adapt or hack the Website or modify another website to falsely imply that it is associated with Wind Aftermarket. You agree not to solicit, harass or impersonate Wind Aftermarket users. Furthermore, while Wind Aftermarket discourages certain conduct and content on the Website, you acknowledge and agree the Website is a venue and as such is not responsible for the content posted on it. You agree to use the Website and use the Service at your own risk. You are solely responsible for any information you provide to Wind Aftermarket or other users in the registration, in the listing process (which may include items, item descriptions, messaging text, newsletters, photographs, audio, video and descriptions, content and any other information submitted via the Website, in any messaging service on the Website, in any public message area (including forums or feedbacks), or through any email feature (“Content”). Wind Aftermarket shall bear no liability whatsoever in respect of any of your Content and “Your Activities” which includes, for example, listing items, posting comments and/or blogging, providing feedback and the like, email, selling and buying products, communication with a party to a transaction etc. Wind Aftermarket reserves the right to investigate and take appropriate legal action against anyone who, in Wind Aftermarket’s sole discretion, violates this provision, including without limitation, removing Content from the Service, suspending or terminating the account of such violators and reporting you to the law enforcement authorities.
2.3 You agree to not use the Service to: (A) upload any Content that: (i) you do not have a right to upload under any law or under contractual or fiduciary relationships; (ii) poses or creates a privacy or security risk to any person; (iii) constitutes unsolicited or unauthorized advertising, promotional materials, commercial activities and/or sales, “junk mail,” “spam,” “chain letters,” “pyramid schemes,” “contests,” “sweepstakes,” or any other form of solicitation; or in the sole judgment of Wind Aftermarket, is objectionable or which restricts or inhibits any other person from using or enjoying the Service, or which may expose Wind Aftermarket or its users to any harm or liability; (B) harass, stalk or abuse another user of the Website; (C) be false, misleading, untruthful or inaccurate, defamatory, trade libelous, unlawfully threatening or unlawfully harassing, harmful, abusive, vulgar, promote violence, racial hatred terrorism or illegal acts; (D) be fraudulent or involve the sale of illegal, counterfeit, stolen items or items which violate the Terms of Service in any way; (E) infringe any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (F) violate any law, local, state, federal or international law, statute, ordinance or regulation; (G) contains software viruses, worms, trojan horses, time bombs, trap doors or any other computer code, files or programs or repetitive requests for information designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment or to diminish the quality of, interfere with the performance of, or impair the functionality of the Website or the Service; or (H) interfere with or disrupt the Service or servers or networks connected to the Service, or disobey any requirements, procedures, policies or regulations of networks connected to the Service; impersonate any person or entity, or falsely state or otherwise misrepresent your credentials or your affiliation with a person or entity. You agree to comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our Service and your listings, purchases, solicitation of offers, and sale of items, if and to the extent applicable.
2.4 Fees. We may provide additional services to you in consideration for agreed fees. If you are a Seller paying fees for our Services, or you are a Buyer paying a Seller for Goods or services via the Service, you may be required to provide Wind Aftermarket information regarding your credit card or other payment instrument. You represent and warrant to Wind Aftermarket that such information is true and that you are authorized to use the payment instrument. You will promptly update your Account information with any changes (for example, a change in your billing address or credit card expiration date) that may occur. If you dispute any charges by Wind Aftermarket you must let Wind Aftermarket know within thirty (30) days after the date that Wind Aftermarket charges you. If as a Buyer you dispute any charges by a Seller, you must contact the Seller directly. As a Seller, if you agree to refund any fees to a Buyer, you are responsible and will pay Wind Aftermarket (and Wind Aftermarket may retain) any direct transaction costs associated with such a refund. You shall be responsible for all taxes associated with the services.
3. Intellectual Property.
3.1 You hereby grant to Wind Aftermarket the right to use your trademark, logo and Content in promotional campaign in all forms of media. You expressly agree that Wind Aftermarket is allowed to use your trademark, logo and Content in marketing materials and on its website and to identify you as a customer. Service Content, Software and Trademarks: You acknowledge and agree that the Service may contain content or features (“Service Content”) that are protected by copyright, patent, trademark, trade secret or other proprietary rights and laws. Any use of the Service or the Service Content other than as specifically authorized herein is strictly prohibited.
3.2 Submissions. In connection with any content that you post on or through the Service or the Website (each, a “Submission”) you agree that such Submissions are intended for public display on the Website and hereby grant Wind Aftermarket a worldwide, non-exclusive, perpetual, irrevocable, unrestricted, royalty-free, sub-licensable and transferable license to store and publicly display the Submissions, including for removal of doubts any designs, images and prints of such designs (in each case directly or through subcontractors), for the purposes of providing or promoting the Service without compensation, liability or notice to you.
3.3 Third Party Materials. Under no circumstances will Wind Aftermarket be liable in any way for any content or materials of any third parties (including users), including, but not limited to, for any errors or omissions in any content, or for any loss or damage of any kind incurred as a result of the use of any such content. You acknowledge that Wind Aftermarket does not pre-screen content, but that Wind Aftermarket will have the right (but not the obligation) in its sole discretion to refuse or remove any content that is available via the Service if we reasonably determine such action is appropriate to prevent errors or any other harm with respect to the Services, it violates this Agreement or our policies, or to avoid or limit our liability. You agree that you must evaluate, and bear all risks associated with, the use of any content, including any reliance on the accuracy, completeness, or usefulness of such content.
6. Disclaimer of Warranties. WIND AFTERMARKET’S WEBSITE AND SERVICES ARE PROVIDED “AS IS” AND WITHOUT ANY WARRANTY OR CONDITION, EXPRESS, IMPLIED OR STATUTORY. WIND AFTERMARKET DISCLAIMS ANY IMPLIED WARRANTIES OF TITLE, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. WIND AFTERMARKET DOES NOT WARRANT THAT THE SERVICES OR THE WEBSITE WILL BE UNINTERRUPTED OR ERROR-FREE, THAT THE SERVICES WILL MEET YOUR REQUIREMENTS OR THAT ANY DEFECTS IN THE SERVICE WILL BE CORRECTED. THERE MAY BE DELAYS, OMISSIONS AND INTERRUPTIONS IN THE AVAILABILITY OF THE WEBSITE.
7. Limitation of Liability. YOU EXPRESSLY UNDERSTAND AND AGREE THAT WIND AFTERMARKET WILL NOT BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY DAMAGES, PUNITIVE DAMAGES, OR DAMAGES FOR LOSS OF PROFIT INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF GOODWILL, USE, DATA OR OTHER INTANGIBLE LOSSES (EVEN IF WIND AFTERMARKET HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), WHETHER BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE, RESULTING FROM: (I) THE USE OR THE INABILITY TO USE THE SERVICES; (II) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES RESULTING FROM ANY GOODS, DATA, INFORMATION OR SERVICES PURCHASED OR OBTAINED OR MESSAGES RECEIVED OR TRANSACTIONS ENTERED INTO THROUGH OR FROM THE SERVICES; (III) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR TRANSMISSIONS OR DATA; (IV) STATEMENTS OR CONDUCT OF ANY THIRD PARTY ON THE SERVICES; OR (V) ANY OTHER MATTER RELATING TO THE SERVICE. IN NO EVENT WILL WIND AFTERMARKET’S TOTAL LIABILITY TO YOU FOR ALL DAMAGES, LOSSES OR CAUSES OF ACTION EXCEED THE AMOUNT OF UP TO USD $100. IF YOU ARE DISSATISFIED WITH ANY PORTION OF THE SERVICES OR WITH THESE TERMS OF SERVICE, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SERVICE.
8. Acknowledgment. EACH PARTY RECOGNIZES AND AGREES THAT THE WARRANTY DISCLAIMERS AND LIABILITY AND REMEDY LIMITATIONS IN THIS AGREEMENT ARE MATERIAL, BARGAINED FOR BASES OF THIS AGREEMENT AND THAT THEY HAVE BEEN TAKEN INTO ACCOUNT AND REFLECTED IN DETERMINING THE CONSIDERATION TO BE GIVEN BY EACH PARTY UNDER THIS AGREEMENT AND IN THE DECISION BY EACH PARTY TO ENTER INTO THIS TERMS OF SERVICE.
9. Disputes and Governing Law. In the event a dispute arises between you and Wind Aftermarket, please email Wind Aftermarket at support@wind aftermarket.com and we will work quickly towards a solution. Any dispute between you and Wind Aftermarket shall attempt to be resolved in a spirit of cooperation without formal proceedings and if not resolved amicably shall be finally settled by the courts located in Bernalillo County, New Mexico. You agree that the Service shall be deemed a passive one that does not give rise to personal jurisdiction over Wind Aftermarket, either specific or general, in jurisdictions other than New Mexico. These Terms of Service shall be governed by the internal substantive laws of the State of New Mexico. You agree to submit to the personal jurisdiction of a state court located in Bernalillo County, New Mexico or the U.S. District Court for the District of New Mexico for any actions for which we 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 our copyrights, trademarks, trade secrets, patents, or other intellectual property or proprietary rights, as set forth in the Arbitration provision below.
10. Arbitration. In the unlikely event that Wind Aftermarket has not been able to resolve a dispute it has with you after attempting to do so informally, we each agree to resolve any claim, dispute, or controversy (excluding any Wind Aftermarket claims for injunctive or other equitable relief) arising out of or in connection with or relating to this Agreement, or the breach or alleged breach thereof (collectively, “Claims”), by binding arbitration in the county of Bernalillo, New Mexico. The award rendered by the arbitrator shall include costs of arbitration, reasonable attorney’s fees and reasonable costs for expert and other witnesses, and any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction. Nothing in this Section shall be deemed as preventing Wind Aftermarket from seeking injunctive or other equitable relief from the courts as necessary to protect any of Wind Aftermarket’s proprietary interests. All claims must be brought in the party’s individual capacity, and not as a class member in any purported class or representative proceeding. You agree that, by entering into this agreement, you and Wind Aftermarket are each waiving the right to a trial by jury or to participate in a class action.
11.1 Termination by Wind Aftermarket. You agree that Wind Aftermarket, in its sole discretion, may suspend or terminate your Account (or any part thereof) or use of the Services and remove and discard any content within the Services, for any reason, including, without limitation, for lack of use or if Wind Aftermarket believes that you have violated or acted inconsistently with the letter or spirit of these Terms of Service. You agree that any termination of your access to the Services under any provision of this Terms of Service may be effected without prior notice, and acknowledge and agree that Wind Aftermarket may immediately deactivate or delete your Account and all related information and files in your Account and/or bar any further access to such files or the Services. Further, you agree that Wind Aftermarket will not be liable to you or any third party for any termination of your access to the Services
11.2 Termination by you. You can remove your profile at any time by deleting your Account. You will not be entitled to a refund of any payment as a consequence of the termination of your membership.
12. User Disputes. You agree that you are solely responsible for your interactions with any other user in connection with the Service and Wind Aftermarket will have no liability or responsibility with respect thereto. Wind Aftermarket reserves the right, but has no obligation, to become involved in any way with disputes between you and any other user of the Service.
13. Entire Agreement/Severability. These Terms of Service, together with any amendments or referenced documents, constitute the entire agreement between you and Wind Aftermarket and govern your use of the Services, superseding any prior agreements between you and Wind Aftermarket with respect to the Services. You may not assign these Terms of Service without the prior written consent of Wind Aftermarket, but Wind Aftermarket may assign or transfer these Terms of Service, in whole or in part, without restriction. The Services may also provide notices to you of changes to these Terms of Service or other matters by displaying notices or links to notices generally on the Service. If a court of competent jurisdiction deems any provision of these Terms of Service invalid, the invalidity of such provision shall not affect the validity of the remaining provisions, which shall remain in full force and effect.
14. No Waiver. No waiver of any term of this Agreement shall be deemed a further or continuing waiver of such term or any other term, and Wind Aftermarket’s failure to assert any right or provision under these Terms of Service shall not constitute a waiver of such right or provision.