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NATIONAL EQUIPMENT REGISTER INC.
STANDARD TERMS AND CONDITIONS
RELATING TO THE USE OF THE SEARCH FACILITY
WHEREAS National Equipment Register, Inc. (hereinafter “NER”) has developed a nationwide system for the database registration of the ownership of heavy equipment (hereinafter “Equipment”); and
WHEREAS this database provides those considering the purchase of used Equipment (“User”) a mechanism to ascertain whether or not the Equipment has been registered with NER; and
WHEREAS this database, the National Equipment Register (hereinafter the “Register”), enables NER to swiftly identify lost and stolen Equipment;
NOW, THEREFORE, in consideration of the covenants set forth herein, the parties agree as follows:
On payment of a search fee, NER will undertake a search of the Register on behalf of the User to establish whether certain designated Equipment is recorded on the Register. For this purpose, the User will supply NER with details of the designated Equipment as set out by NER (the “Prescribed Information”) either by email, via an online form, fax, letter or as contained in a sales catalogue.
By requesting the search and paying the search fee, User warrants that User:
(a) has the designated Equipment legitimately in its custody, or
(b) has legitimate access to the designated Equipment, or
(c) has a prospective, good faith interest in acquiring the designated Equipment.
NER will complete the search as soon as reasonably possible. On completion of the search, NER will notify User by email, fax, or letter either that no object conforming to the Prescribed Information is recorded on the Register or that an object which conforms to the Prescribed Information is recorded on the Register, or that there is a possible “match” between the designated Equipment and an object recorded on the Register and that NER is making further inquiries and will keep User informed as to its progress.
CONDUCT OF SEARCH
User understands that a “match” on the Register does not necessarily mean that the item is stolen. While NER will undertake each search with due care and attention, NER cannot accept responsibility for, and makes no representation or warranty to User or any other person with respect to, any loss, claim, damage or expense arising from or in relation to: the failure to “match” User’s designated Equipment with Equipment on the Register; the accuracy of any report recorded on the Register; the fact that Equipment has not been listed on the Register; the failure of an owner of Equipment that has recovered Equipment listed on the Register, or the failure of the owner’s agent or insurer or law enforcement, to notify NER of the recovery; or the act or omission of NER or any agent or employee of NER, except for gross negligence or willful misconduct.
All information supplied by NER to User, either orally or in writing, with respect to any search, shall be treated by User as confidential information. Such information shall not be redistributed or published in any way without the prior written consent of NER, except that such information may be redistributed or published by User, on written notice to NER, to any person having a direct financial interest in such information.
NER reserves the right to conduct and record audit trails in relation to all searches and search inquiries received by NER and to provide statistics and other information on demand to any person, including law enforcement, in NER’s sole discretion.
In the event that designated Equipment is confirmed as Equipment on the Register, User will reasonably cooperate with NER and others, including law enforcement, in the restoration of the designated Equipment to the rightful owner.
This Agreement shall be construed and enforced in accordance with the laws of the State of New York without giving effect to conflict of laws. Any controversy or claim arising out of or relating to this Agreement or breach thereof shall be brought only in a court of competent jurisdiction (whether federal or state) sitting within the State and County of New York. 10. Indemnification. Each party shall indemnify, defend and hold harmless the other party from and against any and all liability, damage, loss, actions, demands and claims (including costs and attorney’s fees associated with both third party and inter-party claims) which arise out of, caused by or resulting from the acts or omissions of the indemnifying party in connection with the responsibilities and obligations of the respective parties arising pursuant to this Agreement. Notwithstanding the above, NER shall not have any liability or responsibility of any kind, nature or description to User for any act or omission in connection with the supplying of information to NER, including but not limited to (i) errors in notification or non-notification, (ii) the timeliness, completeness or accuracy of information supplied, (iii) any breakdown or failure of the service arising from or based on information supplied, (iv) any failure in the operation of any online communication network, any public telephone communication system, or other communication service provider; or (v) any liability attributable to User’s negligence or misconduct.
a) This Agreement constitutes the entire agreement and understanding of the parties with respect to the subject matter hereof and supersedes any prior oral or written agreements, arrangements, and understandings with respect thereto. No representation, promise, inducement, or statement of intention has been made by any party hereto that is not embodied herein, and no party shall be bound by or liable for any alleged representation, promise, inducement, or statement not so set forth herein. b) This Agreement may be modified, amended, superseded, or cancelled, and any of the terms, covenants, representations, warranties or conditions hereof may be waived, only be a written instrument executed by the party or parties to be bound by any such modification, amendment, supersession, cancellation, or waiver. c) Any provision of this Agreement that imposes an obligation or confers a right or benefit after termination or expiration of this Agreement shall survive the termination or expiration of this Agreement and be binding on NER and/or the Member (as applicable). d) The provisions of this Agreement shall be binding upon and shall insure to the benefit of the successors and assigns of NER and the Member; provided, however, NER may not assign or delegate any of its obligations hereunder without the prior written consent of the Member, such consent not to be unreasonably withheld. e) Wherever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under New York State law. By their execution of this Agreement, NER and the Member expressly signify their understanding and acceptance of all terms and provisions expressed herein and their agreement to be bound by them.