Heat Exchange LLC 

Terms of Use 

Terms.  The terms and conditions set forth below (“Terms of Use”) are the terms by which Heat Exchange, LLC, a Nevada limited liability company (“Heat Exchange”) offers any site, tools, application, and services (collectively “Services”) to any person or entity (each individually a “User”).  By utilizing the Services of Heat Exchange, User is agreeing to all of the terms and conditions contained in these Terms of Use. 

Termination.  Without limiting Heat Exchange’s ability to refuse, modify, or terminate all or part of its Services, Heat Exchange may also terminate a User’s account at any time for any reason, in Heat Exchange’s sole discretion, by giving a User notice of such termination.

Acceptable Use.  In the event Heat Exchange provides User any Services hereunder, User shall at all times comply with and conform its use of the Services to Heat Exchange’s requirements for acceptable use of Heat Exchange’s Services, as set forth on the Heat Exchange’s Website, as such requirements may be amended by Heat Exchange from time to time (“Acceptable Use Policy”).  

Policy Enforcement.  When a buyer or seller issue arises, Heat Exchange may consider the User's performance history and the specific circumstances in applying its policies. Heat Exchange may choose to be more lenient with policy enforcement in an effort to do the right thing for both buyers and sellers. The foregoing does not limit or impair Heat Exchange’s right to refuse, modify, or terminate all or part of its Services to anyone, or to terminate a Heat Exchange account with anyone, for any reason at its sole discretion.  Disputes between buyers or sellers must be handled between the parties directly.  Heat Exchange, may, but is not obligated to, assist in dispute resolution on a case-by-case basis.  In the event that Heat Exchange is requested to intervene in a dispute, the requesting party agrees that any decision made by Heat Exchange shall be in it’s sole discretion, and agrees to be bound by Heat Exchange’s decision. 

Proprietary Rights.  As between the User and Heat Exchange, all rights, title and interest in and to all products and services, all confidential information of Heat Exchange and all technology, data, information and other materials utilized by or on behalf of Heat Exchange to provide any products and/or services to User, together with all patents, copyrights, trade secrets and other intellectual property rights in or to the foregoing (collectively, “Heat Exchange Property”), shall be and remain vested in Heat Exchange (or its third party licensors or service providers).  User shall not do or cause to be done any act contesting or in any way impairing any rights, title or interest in any Heat Exchange Property or in any manner represent that it possesses any ownership interest in any Heat Exchange Property.  User shall notify Heat Exchange immediately in the event User becomes aware of (i) any unauthorized use of any Heat Exchange Property, (ii) the loss, theft or other compromise of any access method of User, and/or (iii) any information relating to any alleged or suspected infringement or other violation of any Heat Exchange Property.  Notwithstanding the foregoing, Heat Exchange shall not have any obligation to User to investigate, prosecute or otherwise take any action of any violation of which it is notified by User, and User shall have no right to prosecute or otherwise take any action in respect of such violation.

Content.  

When User provides content using Heat Exchange’s Services (directly or indirectly), User grants Heat Exchange a non-exclusive, worldwide, perpetual, irrevocable, royalty-free, sublicensable (through multiple tiers) right to exercise any and all intellectual property rights User has in that content in connection with Heat Exchange’s provision, expansion, and promotion of Heat Exchange Services, in any media known now or developed in the future. To the fullest extent permitted under applicable law, User waives its right to enforce Heat Exchange intellectual property rights in that content against Heat Exchange, its assignees, its sublicensees, and their assignees in connection with Heat Exchange’s, those assignees', and those sublicensees' use of that content in connection with our provision, expansion, and promotion of Heat Exchange’s Services.

User represents and warrants that, for all such content User provides, User own or otherwise control all necessary rights to do so and to meet User’s obligations under these Terms of Service. User represents and warrants that such content is accurate. User represents and warrants that use of any such content (including derivative works) by Heat Exchange, its users, or others in contract with Heat Exchange, and in compliance with these Terms of Use, does not and will not infringe any intellectual property rights of any third party. Heat Exchange takes no responsibility and assumes no liability for any content provided by User or any third party.

Heat Exchange offers product data (including images, descriptions and specifications) that are provided by third parties (including Heat Exchange users). User may use that content solely in its Heat Exchange listings. Heat Exchange may modify or revoke that permission at any time in its sole discretion. The product data includes copyrighted, trademarked and other proprietary materials. User agrees not to remove any copyright, proprietary, or identification markings in the product data and not to create any derivative works based on that data (other than by including the data in User’s listings).

Notice for Claims of Intellectual Property Violations and Copyright Infringement Pursuant to Section 512(c) of Title 17 of the United States Code.  Heat Exchange responds to notices of alleged copyright infringement under the United States Digital Millennium Copyright Act. If User believes that its intellectual property rights have been infringed, please notify Heat Exchange and it will investigate.

Limitation of Liability.

IN NO EVENT SHALL HEAT EXCHANGE BE LIABLE UNDER TO ANY PERSON FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR SPECIAL DAMAGES, OR FOR LOSS OF PROFITS, LOSS OF DATA (INCLUDING CUSTOMER DATA) OR TECHNOLOGY, GOODWILL, CONTRACTS OR LOST BUSINESS OPPORTUNITIES (WHETHER ARISING OUT OF TRANSMISSION INTERRUPTIONS OR PROBLEMS, ANY INTERRUPTION OR DEGRADATION OF SERVICE), WHETHER ARISING FROM NEGLIGENCE, BREACH OF CONTRACT OR OTHERWISE, AND WHETHER OR NOT ANY SUCH PERSON HAS BEEN ADVISED OF, HAS FORESEEN, OR REASONABLY COULD HAVE FORESEEN SUCH DAMAGES.  IN NO EVENT SHALL HEAT EXCHANGE BE LIABLE HEREUNDER FOR ANY PRODUCTS OR SERVICES OF ANY THIRD-PARTY PROVIDER THAT ARE PROCURED OR PROVIDED BY HEAT EXCHANGE HEREUNDER OR USED BY OR ON BEHALF OF HEAT EXCHANGE TO PROVIDE ANY OF ITS SERVICES. 

Without limiting the generality of the foregoing, Heat Exchange (including its parent, subsidiaries, and affiliates, and our and their officers, directors, agents and employees) are not liable, and User agrees not to hold Heat Exchange responsible, for any damages or losses (including, but not limited to, loss of money, goodwill or reputation, profits, other intangible losses, or any special, indirect, or consequential damages) resulting directly or indirectly from:

The content User provides (directly or indirectly) using Heat Exchange’s Services;

User’s use of or User’s inability to use Heat Exchange’s Services;

Pricing, shipping, format, or other guidance provided by Heat Exchange;

Delays or disruptions in Heat Exchange’s Services;

Viruses or other malicious software obtained by accessing or linking to Heat Exchange’s Services;

Glitches, bugs, errors, or inaccuracies of any kind in Heat Exchange’s Services;

Damage to User’s hardware device from the use of any Heat Exchange;

The content, actions, or inactions of third parties, including items listed using Heat Exchange’s services or the destruction of allegedly fake items;

A suspension or other action taken with respect to User’s account or breach of Heat Exchange’s Acceptable Use Policy.

The duration or manner in which User’s listings appear in search results; or

User’s need to modify practices, content, or behavior, or User’s loss of or inability to do business, as a result of changes to this User Agreement or Heat Exchange policies.

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

Monetary Cap.  Notwithstanding any language to the contrary herein, if Heat Exchange is found to be liable, Heat Exchange’s liability to User or to any third party is limited to the lesser of i) amount of fees in dispute not to exceed the total fees, which User paid to Heat Exchange in the 12 months prior to the action giving rise to the liability, or $100.00. 

Release

If User has a dispute with one or more Users, User releases Heat Exchange (and its 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. In entering into this release, User expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which User may know or suspect to exist in User’s favor at the time of agreeing to this release.

Indemnity.

User will indemnify and hold Heat Exchange (including its affiliates and subsidiaries, as well as its 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 User’s breach of these Terms of Use, User’s improper use of Heat Exchange’s Services or User’s breach of any law or the rights of a third party.

Disclaimer.  

THE SERVICES ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS, AND HEAT EXCHANGE DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED INCLUDING ANY AND ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, AND NON-INFRINGEMENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE OR TRADE PRACTICE, UNDER THESE TERMS OF USE.  WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, HEAT EXCHANGE SPECIFICALLY DISCLAIMS ANY REPRESENTATION OR WARRANTY THAT THE SERVICES, OR THE USE THEREOF, WILL BE AVAILABLE, SECURE, FREE OF DEFECTS, ERRORS OR MALICIOUS CODE, OR UNINTERRUPTED.

Governing Law and Venue.  The validity and effectiveness of these Terms of Service shall be governed by, and construed and enforced in accordance with, the internal laws of the State of Nevada, without giving effect to the provisions, policies or principles of any state law relating to choice or conflict of laws.  Any legal action or proceeding with respect to this Agreement shall be brought exclusively in the Federal or state courts located in Clark County, Nevada.  Each Party waives, to the fullest extent permitted by applicable laws, any objection to the laying of venue in such courts of any legal action or proceeding arising out of or relating to this Agreement and any claim that any such action or proceeding has been brought in an inconvenient forum.  EACH PARTY IRREVOCABLY WAIVES THE RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING OUT OF OR RELATING TO THESE TERMS OF USE.  Service of process shall be made in any manner allowed by applicable laws.  

Amendment.  Heat Exchange may modify, supplement and/or otherwise amend these Terms of Use from time to time in Heat Exchange’s discretion, by posting such updates to [INSERT WEBSITE] and such amendments shall be effective upon posting.  User’s continued use of any Services following such posting by Heat Exchange of such amendment will be deemed to constitute User’s acceptance of such amendment.  

Interpretation.  References to sections and exhibits are to sections of, and exhibits to, these Terms of Use, unless otherwise indicated.  Section headings are inserted for convenience of reference only and shall not affect the construction of these Terms of Use.  The singular number shall include the plural, and vice versa.  Any use of the word “including” will be interpreted to mean “including, but not limited to,” unless otherwise indicated.  All references to dollars (including via the symbol “$”) shall refer to the currency United States dollars.  References to any person (including the parties and any other entities referred to) shall be construed to mean such person and its successors in interest and permitted assigns, as applicable. 

Severability.  Each provision of these Terms of Use shall be considered separable; and if, for any reason, any provision of these Terms of Use is determined by a court of competent jurisdiction to be invalid, unlawful, or unenforceable, such determination shall not affect the enforceability of the remainder of these Terms of Use or the validity, lawfulness, or enforceability of such provision in any other jurisdiction.  If any court of competent jurisdiction shall deem any provision of these Terms of Use too restrictive, the other provisions hereof shall stand, and the court shall modify the provisions at issue to the point of greatest restriction permissible by applicable laws.

Relationship.  Nothing in these Terms of Use shall constitute or be deemed to establish a partnership, joint venture, association or employment relationship between User and Heat Exchange, and neither User or Heat Exchange shall have the authority or power to bind the other, or to contract in the name of the other, in any manner or for any purpose.  

California Resident.  If User is a California resident, in accordance with Cal. Civ. Code §1789.3, User may report complaints to the Complaint Assistance Unit of the Division of 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.