USER AGREEMENT

Introduction

This User Agreement, the User Privacy Notice, the Mobile Devices Terms, and all policies posted on our sites set out the terms on which Flatwater Sales offers you access to and use of out sites, services, applications and tools, (collectively “Services”). You can find an overview of our policies here. All policies, the Mobile Devices Terms, and the User Privacy Notice are incorporated into this User Agreement. You agree to comply with all of the above when accessing or using or Services.

The entity you are contracting with is Flatwater Sales, Inc., PO Box 32, Ord, NE 68862.

Please be advised that this User Agreement contains provisions that govern how claims you and we have against each other are resolved (see Disclaimer of Warranties; Limitation of Liability and Legal Disputes provisions below). It also contains an Agreement to Arbitrate, which will, with limited exceptions, require you to submit claims you have against us to binding and final arbitration, unless you opt out of the Agreement to Arbitrate (see Legal Disputes, Section B (“Agreement to Arbitrate”)). Unless you opt out: (1) you will only be permitted to pursue claims against us on a individual basis, not as plaintiff or class member in any class or representative action or processing and (2) you will only be permitted to seek relief (including monetary, injunctive and declaratory relief) on an individual basis.

About Flatwater Sales, Inc.

Flatwater Sales, Inc. is a marketplace that allows users to offer, sell and buy irrigation equipment in a variety of pricing formats and locations. The actual contract for sale is directly between the seller and buyer. Flatwater Sales is not a traditional auctioneer.

While we may provide pricing, shipping, listing, and other guidance in our Services, such guidance is solely informational and you may decide to follow it or not. Also, while we may help facilitate the resolution of disputes through various programs, Flatwater Sales has no control over and does not guarantee the existence, quality, safety or legality of items advertised; the truth or accuracy of users’ content or listings; the ability of sellers to sell items; the ability of buyers to pay for items; or that a buyer or seller will actually complete a transaction or return an item.

Using Flatwater Sales, Inc.

In connection with using or accessing the Services you will not:

  • breach or circumvent any laws, third-party rights or our systems, policies or determinations of your account status;
  • post, list or upload content or items in inappropriate categories or areas on our sites;
  • use our Services if you are not able to form legally binding contracts (for example if you are under 18), or are temporarily or indefinitely suspended from using our sites, services, applications or tools;
  • manipulate the price of any item or interfere with any other user’s listings;
  • post false, inaccurate, misleading, defamatory, or libelous content;
  • transfer your Flatwater Sales account (including Feedback) and user ID to another party without our consent;
  • distribute or post spam, unsolicited or bulk electronic communications, chain letters, or pyramid schemes;
  • distribute viruses or any other technologies that my harm Flatwater Sales, or the interests or property of users;
  • use any robot, spider, scraper, or other automated means to access our Services for any purpose;
  • bypass our robot exclusion headers, interfere with the working of our Services, or impose an unreasonable or disproportionately large load on our infrastructure;
  • export or re-export any Flatwater Sales application or tool except in compliance with the export control laws of any relevant jurisdictions and in accordance with posted rules and restrictions;
  • reproduce, perform, display, distribute, reverse engineer, or prepare derivative works from content that belongs to or is licensed to Flatwater Sales, or that comes from the Services and belongs to another Flatwater Sales user or to a third party including works covered by any copyrights, trademark, patent, or intellectual property right, except with prior express permission of Flatwater Sales and/or any other party holding the right to license such use;
  • commercialize any Flatwater Sales application or any information or software associated with such application;
  • harvest or otherwise collect information about users without their consent; or circumvent any technical measures we use to provide the Services.

If we believe you are abusing Flatwater Sales in any way, we may, in our sole discretion and without limiting other remedies, limit, suspend, or terminate your user account(s) and access to our Services, delay or remove hosted content, remove any special status associated with your accounts(s), remove and demote listings, reduce or eliminate any discounts, and take technical and/or legal steps to prevent you from using our Services.
We may cancel unconfirmed accounts or accounts that have been inactive for a long time or modify or discontinue our Services. Additionally, we reserve the right to refuse or terminate all or part of our Services to anyone for any reason at our discretion.
Upon any such action provided in this paragraph, all fees paid shall be forfeited and not subject to refund.
Policy Enforcement

When a buyer or seller issue arises, we may consider the user’s performance history and the specific circumstances in applying our policies. We may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers.
Fees

The fees we charge for using our Services are listed on our Standard Selling Fees page. We may change our seller fees from time to time by posting the changes on the Flatwater Sales site 14 days in advance, but with no advance notice required for temporary promotions or any changes that result in the reduction of fees.
Listing Conditions

When listing an item, you agree to comply with Flatwater Sales rules for listing and Selling Practices policy and that:

  • You are responsible for the accuracy and content of the listing and item offered;
  • Your listing may not be immediately searchable by keyword or category for several hours (or up to 24 hours in some circumstances). Flatwater Sales can’t guarantee exact listing durations;
  • Content that violates any of Flatwater Sales policies may be deleted at Flatwater Sales discretion;
  • We strive to create a marketplace where buyers find what they are looking for. Therefore, the appearance or placement of listings in search and browse results will depend on a variety of factors, including, but not limited to: buyer’s location, search query, browsing site, and history; item’s location, listing format, price and shipping cost, terms of service, end time, history, and relevance to the user query; number of listings matching the buyer’s query.
  • Accordingly, to drive a positive user experience, a listing may not appear in some search and browse results regardless of the sort order chosen by the buyer.
  • Some advanced listing upgrades will only be visible on certain Services.
  • Metatags and URL links that are included in a listing may be removed or altered so as to not affect third-party search engine results.

Purchase Conditions

When buying an item, you agree to the rules for buyers and that;
You are responsible for reading the full item listing before making commitment to buy.
We do not transfer legal ownership of items from the seller to the buyer.
Nebraska Uniform Commercial Code § 2-401(2) apply to the transfer of ownership between the buyer and seller, unless the buyer and the seller agree otherwise.
Content

When providing us with content or causing content to be posted using our Services, you grant us a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all copyright, publicity, trademark, and database rights and other intellectual property rights you have in the content, in any media known now or developed in the future. Further, to the fullest extent permitted under applicable law, you waive your moral rights and promise not to assert such rights or any other intellectual property or publicity rights against us, our sublicensees, or our assignees.

You represent and warrant that none of the following infringe any rights mentioned in the preceding paragraph: your provision of content to us, your causing content to be posted using the Services, and use of any such content (including of works derived from it) by us, our users, or others in contract with us that is done in connection with the Services and in compliance with this User Agreement.

We may offer catalogs including stock images, descriptions and product specification that are provided by third-parties (including users). You may use catalogs content solely in connection with your Flatwater Sales listings. The permission to use catalog content is subject to modification or revocation at any time at Flatwater Sales sole discretion.

While we try to offer reliable data, we cannot promise that the catalogs will always be available, accurate, and up-to-date, and you agree that you will not hold our catalog providers or us responsible for inaccuracies. The catalog may include copyrighted trademarked or other proprietary materials. You agree not to remove any copyright, proprietary or identification markings included within the catalogs or create any derivative works based on catalog content (other than by including them in your listings).

Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United State Code
We respond to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. Flatwater Sales Verified Rights Owner (VeRO) program works to ensure that listed items and content on our site or in our apps do not infringe upon the copyright, trademark, or other intellectual property rights of third parties. If you believe that your intellectual property rights have been infringed, please notify our office.

Authorization to Contact You; Recording Calls

Flatwater Sales may contact you via phone or text messages, at any telephone number that you have provided us, to (i) notify you regarding your account; (ii) troubleshoot problems with your account; (iii) resolve a dispute; or (iv) as otherwise necessary to service your account or enforce this User Agreement, our policies, applicable law, or any other agreement we may have with you. Standard telephone minute and text charges may apply and may include overage fees if you have exceeded your plan limits.

Flatwater Sales may share your telephone number with its authorized service providers as stated in our User Privacy Notice. These services providers may contact you using autodialed or prerecorded calls and text messages, only as authorized by Flatwater Sales to carry out the purposes we have indentified above.

Privacy Policy

We may collect and share personally identifiable information when you visit our site. That information may be shared to facilitate purchasing or sale of an item listed on the site. If Flatwater Sales provides you with information about another user, you agree you will use the information only for the purposes it is provided to you. You may not disclose, sell, rent, or distribute a user’s information to a third party for purposes unrelated to the Services. Additionally, you may not use information for marketing purposes, via electronic or other means, unless you obtain the consent of the specific user to do so.

Additional Terms

Returns and Cancellations

Sellers can create rules to automate replacements, returns, and refunds under certain circumstances. Return agreement is between buyer and seller and we will not be involved with any return. You agree to these terms.

The cost of return shipping for an item that is not described is the seller’s responsibility.

Disclaimer of Warranties; Limitation of Liability

We try to keep our Services safe, secure, and functioning properly, but we cannot guarantee the continuous operation of or access to our Services, Bid update and other notification functionality in Flatwater Sales applications may not occur in real time. Such functionality is subject to delays beyond Flatwater Sales control. We use industry standard SSL technology to encrypt data on our site. Any credit card data you provide will be entered into a third party processor gateway embedded into our site.

You agree that you are making use of our Services at your own risk, and that they are being provided to you on an “AS IS” and “AS AVAILABLE” basis. Accordingly, to the extent permitted by applicable law, we exclude all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement.

In addition, to the extent permitted by applicable law, we (including our parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and you agree not to hold us responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, or other intangible losses or any special, indirect, or consequential damages) resulting directly or indirectly from:

  • your use of or your inability to use our Services;
  • pricing, shipping, format, or other guidance provided by Flatwater Sales;
  • delays or disruptions in our Services;
  • viruses or other malicious software obtained by accessing or linking to our Services;
  • glitches, bugs, errors, or inaccuracies of any kind in our Services;
  • damage to your hardware device from the use of any Flatwater Sales Service;
  • the content, actions, or inactions of third parties, including items listed using our Services or the destruction of allegedly fake items;
  • a suspension or other action taken with respect to your account or breach of the Abusing Flatwater Sales Section above;
  • the duration or manner in which your listings appear in search results as set out in the Listing Conditions Section above; or your need to modify practices, content, or behavior or your loss of or inability to do business, as a result of change to this User Agreement or our policies.

Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you.

Regardless of the previous paragraphs, if we are found to be liable, our liability to you or to any third party is limited to the greater of (a) the amount of fees in dispute not to exceed the total fees, which you paid to us in the 12 months prior to the action giving rise to the liability, or (b) $100.

Release

If you have a dispute with one or more users, you release us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees and agents) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, arising out of or in any way connected with such disputes.

Indemnity

You will indemnify and hold us (and our affiliates and subsidiaries, and our and their respective officers, directors, employees, agents) harmless from any claim or demand, including reasonable legal fees, made by any third party due to or arising out of your breach of this Agreement, your improper use of Flatwater Sales Services or your breach of any law or the rights of a third party.

Legal Disputes

PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND FLATWATER SALES HAVE AGAINST EACH OTHER ARE RESOLVED.

You and Flatwater Sales agree that any claim or dispute at law or equity that has arisen or may arise between us relating in any way to or arising out of this or previous versions of the Flatwater Sales User Agreement, your use of or access to the Services, or any products or services sold or purchased through the Services, will be resolved in accordance with the provisions set forth in this Legal Disputes Section.

A. Applicable Law

You agree that, except to the extent inconsistent with or preempted by federal law, the laws of the State of Nebraska, without regard to principles of conflict of laws, will govern the User Agreement and any claim or dispute that has arisen or may arise between you and Flatwater Sales, except as otherwise stated in the User Agreement.

B. Agreement to Arbitrate

You and Flatwater Sales each agree that any all disputes or claims that have arisen or may arise between you and Flatwater Sales relating in any way to or arising out of this or previous versions of the User Agreement, your use of or access to Flatwater Sales’s Services, or any products or services sold, offered, or purchased through Flatwater Sales Services, or an products or services sold, offered, or purchased through Flatwater Sales’s Services shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this Agreement to Arbitrate.

1. Prohibition of Class and Representative Actions and Non-Individualized Relief

YOU AND FLATWATER SALES AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE ACTION OR PROCEEDING. UNLESS BOTH YOU AND FLATWATER SALES AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S

CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF CONSOLIDATED, REPRESENTATIVE, OR CLASS PROCEEDING. ALSO, THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIUDAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT

OTHER USERS. 2. Arbitration Procedures

Arbitration is more informal than a lawsuit in court. Arbitration uses a neutral arbitrator instead of a judge or jury, and court review of an arbitration award is very limited. However, an arbitrator can award the same damages and relief on an individual basis that a court can award to an individual. An arbitrator should apply the terms of the User Agreement as court would. All issues are for the arbitrator to decide, except that issues relating to arbitrability, the scope or enforceability of this Agreement to Arbitrate, or the interpretation of Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), shall be for a court of competent jurisdiction to decide.

The arbitration will be conducted by the American Arbitration Association (“AAA”) under its rules and procedures, including the AAA’s Consumer Arbitration Rules (as applicable), as modified by this Agreement to Arbitrate. The AAA’s rules are available at www.adr.org or by calling the AAA at 1-800-778-7879. The use of the word “arbitrator” in this provision shall not be construed to prohibit more than one arbitrator from presiding over an arbitration; rather, the AAA’s rules will govern the number of arbitrators that may preside over an arbitration conducted under this Agreement to Arbitrate.

A party who intends to seek arbitration must first send to the other, by certified mail, a completed form Notice of Dispute (“Notice”). The Notice to Flatwater Sales should be sent to Flatwater Sales Inc., PO Box 32, Ord, NE 68862. Flatwater Sales will send any Notice to you to the physical address we have on file associated with your Flatwater Sales account; it is your responsibility to keep your physical address up to date. All information called for in the Notice must be provided, including a description of the nature and basis of the claims the party asserting and the relief sought.

If you and Faltwater Sales are unable to resolve the claims described in the Notice within 30 days after the Notice is sent, you or Flatwater Sales may initiate arbitration proceedings. A form for initiating arbitration proceedings is available on the AAA’s site at www.adr.org. In addition to filing this form with the AAA in accordance with its rules and procedures, the party initiating the arbitration must mail a copy of the completed form to the opposing party. You may send a copy to Flatwater Sales at the following address: Flatwater Sales, Inc., PO Box 32, Ord, NE 68862. In the event Flatwater Sales initiates an arbitration against you, it will send a copy of the completed form to the physical address we have on file associated with your Flatwater Sales account. Any settlement offer made by you or Flatwater Sales shall not be disclosed to the arbitrator.

The arbitrator hearing shall be held in the county in which you reside or at another mutually agreed location. If the value of the relief sought is $10,000.00 or less, you or Flatwater Sales may elect to have the arbitration conducted by telephone or based solely on written submission, which election shall be binding on you and Flatwater Sales subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or Flatwater Sales may attend by telephone, unless the arbitrator requires otherwise.

The arbitrator will decide the substance of all claims in accordance with applicable law, including recognized principles of equity, and will honor all claims of privilege recognized by law. The arbitrator shall not be bound by rulings in prior arbitrations involving different users, but is bound by rulings in prior arbitrations involving the same Flatwater Sales user to the extent required by applicable law. The arbitrator’s award shall be final and binding and judgment on the award rendered by the arbitrator may be entered in any court having jurisdiction thereof.

3. Cost of Arbitration

Payment of all filing, administration and arbitrator fees will be governed by the AAA’s rules, unless otherwise stated in this Agreement to Arbitrate. If the value of the relief sought is $10,000.00 or less, at your request, Flatwater Sales will pay all filing, administration, and arbitrator fees associated with the arbitration. Any request for payment of fees by Flatwater Sales should be submitted by mail to the AAA along with Demand for Arbitration and Flatwater Sales will make arrangement to pay all necessary fees directly to the AAA. In the event the arbitrator determines the claim(s) you assert in the arbitration to be frivolous, you agree to reimburse Flatwater Sales for all fees associated with the arbitration paid by Flatwater Sales on your behalf that you otherwise would be obligated to pay under the AAA’s rules.

4. Severability

With the exception of any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”), if an arbitrator or court decides that any part of this Agreement to Arbitrate is invalid or unenforceable, the other parts of this Agreement to Arbitrate shall still apply. If an arbitrator or court decides that any of the provisions in Section 1 of this Agreement to Arbitrate (“Prohibition of Class and Representative Actions and Non-Individualized Relief”) is invalid or unenforceable, then the entirety of this Agreement to Arbitrate shall be null and void. The remainder of the Agreement and its Legal Disputes Section will continue to apply.

5. Opt-Out Procedure

IF YOU ARE A NEW FLATWATER SALES USER, YOU CAN CHOOSE TO REJECT THIS AGREEMENT TO ARBITRATE (“OPT-OUT”) BY MAILING US A WRITTEN OPT-OUT NOTICE (‘OPT-OUT NOTICE’). THE OPT-OUT NOTICE MUST BE POSTMARKED NO LATER THAN 30 DAYS AFTER THE DATE YOU ACCEPT THE USER AGREEMENT FOR THE FIRST TIME. YOU MUST MAIL THE OPT-OUT NOTICE TO FLATWATER SALES INC., PO BOX 32, ORD, NE 68862.

You may Opt-Out of Arbitration by notifying us in writing of your election to Opt-Out. You must sign and date the notice. This procedure is the only way you can opt out of the Agreement to Arbitrate. If you opt out of the Agreement to Arbitrate, all other parts of the Agreement and its Legal Disputes Section will continue to apply to you. Opting out of this Agreement to Arbitrate has no effect on any previous, other, or future arbitration agreements that you may have with us.

6. Future Amendments to the Agreement to Arbitrate

Notwithstanding any provision in the User Agreement to the contrary, you and we agree that if we make any amendment to this Agreement to Arbitrate (other than an amendment to any notice address or site link provided herein) in the future, that amendment shall not apply to any claim that was filed in a legal proceeding against Flatwater Sales prior to the effective date of the amendment. The amendment shall apply to all other disputes or claims governed by the Agreement to Arbitrate that have arisen or may arise between you and Flatwater Sales. We will notify you of amendments to this Agreement to Arbitrate by posting the amended terms on Flatwater Sales website at least 30 days before the effective date of the amendments and by providing notice through the Flatwater Sales Message Center and/or by email. If you do not agree to these amended terms, you may close your account within the 30 day period and you will not be bound by the amended terms.

C. Judicial Forum for Legal Disputes

Unless you and we agree otherwise, in the event that the Agreement to Arbitrate above is found not to apply to you or to a particular claim or dispute, either as a result of your decision to opt out of the Agreement to Arbitrate or as a result of a decision by the arbitrator or a court order, you agree that any claim or dispute that has arisen or may arise between you and Flatwater Sales must be resolved exclusively by a state or federal court located in Nebraska. You and Flatwater Sale agree to submit to the personal jurisdiction of the courts located within Nebraska for the purpose of litigating all such claims or disputes.

General

Flatwater Sales is located at PO Box 32, Ord, NE 68862

Except as otherwise provided in this Agreement, if any provisions of this User Agreement is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions. In our sole discretion, we may assign this User Agreement, by providing notice of such assignment in accordance with the Notices Section.

Headings are for reference purposes only and do not limit 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. We do not guarantee we will take action against all breaches of this User Agreement.

We may amend this User Agreement at any time by posting the amended terms on Faltwater Sales website. Our right to amend the User Agreement includes the right to modify, add to, or remove terms in the User Agreement. We will provide you 30 days’ notice by posting the amended terms. Additionally, we may notify you via phone through the Flatwater Sales Message Center and/or by email. Your continued access or use of Services constitutes your acceptance of the amended terms. We may also ask you to acknowledge your acceptance of the User Agreement through an electronic click-through. This User Agreement may not otherwise be amended except through mutual agreement by you any Flatwater Sales representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.

The policies posted on our sites may be changed from time to time. Changes take effect when we post them on the Flatwater Sales site.

If you create or use an account on behalf of a business entity, you represent that you are authorized to act on behalf of such business and bind the business to this User Agreement. Such account is owned and controlled by the business entity. No agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by this User Agreement.

The User Agreement, the User Privacy Notice, and all policies set forth the entire understanding and agreement between you and Flatwater Sales and supersede all prior understandings and agreements of the parties.

These Sections survive any termination of this User Agreement: Fees, Content, Disclaimer of Warranties; Limitation of Liability; Indemnity, and Legal Disputes.

If you are a California resident, in accordance with Cal. Civ. Code §1789.3, you may report complaints to the Complaint Assistance Unit of the Division Consumer Services of the California Department of Consumer Affairs by contacting them in writing at 400 R Street, Sacramento, CA 95814, or by telephone at (800) 952-5210.

AGREEMENT

Flatwater Sales, Inc., PO Box 32, Ord, NE 68862, (hereinafter “Flatwater”) does hereby agree to provide services as outlined in the Flatwater User Agreement attached here to and made a part here of by this reference, or as posted on the Flatwater website and made a part here of by this reference thereto. Buyer/Seller hereby agrees and acknowledges that Buyer/Seller has read the Flatwater User Agreement and agrees to be bound to the terms thereof and that such User Agreement is incorporated in this agreement by this reference thereto.

That Buyer/Seller hereby agrees to pay Flatwater for such services as stated in the User Agreement. The initial payment of the consideration shall be made contemporaneously with the execution of this agreement. Buyer/Seller acknowledges and agrees there will be no refund of any fee paid. Buyer/Seller acknowledges and agrees that this agreement shall be binding on the heirs, successors and assigns of Buyer/Seller.

FLATWATER SALES, INC.