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Terms of Service

Last Updated: August 19, 2024

These terms of service ("Terms") are between you and Boom and Bucket Inc. ("Boom & Bucket," "we," "our," or "us"), and establish the terms that apply to you when you use the Service (as defined below).

BY USING THE SERVICE OR BY CLICKING "I AGREE" OR "SUBMIT" YOU INDICATE YOUR ACCEPTANCE OF THESE TERMS AND YOUR AGREEMENT TO BE BOUND BY THESE TERMS. YOU MAY NOT USE THE SERVICE IF YOU DO NOT AGREE TO THESE TERMS. We are constantly improving the Service, so these Terms may need to change as we do. We can change these Terms at any time, and if we do, we will make reasonable efforts to provide you with prior notice of any material changes. Your continued use of the Service after any change to these Terms means that you accept the new version. You should consult these Terms each time you access the Service to view any changes. These Terms were last modified on the date indicated above.

AS DESCRIBED BELOW, THESE TERMS PROVIDE FOR THE USE OF ARBITRATION ON AN INDIVIDUAL BASIS TO RESOLVE DISPUTES, RATHER THAN JURY TRIALS OR CLASS ACTIONS, AND LIMIT THE REMEDIES AVAILABLE TO YOU IN A DISPUTE. YOU CAN OPT OUT OF THIS AGREEMENT TO ARBITRATE BY CONTACTING SUPPORT@BOOMANDBUCKET.COM WITHIN THIRTY (30) DAYS AFTER FIRST ACCEPTING THESE TERMS AND STATING YOUR FIRST AND LAST NAME AND THAT YOU DECLINE THIS AGREEMENT TO ARBITRATE.

Please review our Privacy Policy which explains how we collect, use, and share information about you when you access or use the Service and our Boom & Bucket Powerhouse Protection Plan ("Protection Plan"). By accepting these Terms, you agree to the Privacy Policy and the Protection Plan. These Terms do not alter any Consignment Agreement between Boom & Bucket and a Seller (as defined below) or Bill of Sale between a Seller and Buyer (as defined below).

1. Use of the Service.

A. Service. The “Service” includes: (1) Boom & Bucket's website (located at https://boomandbucket.com) (the “Site”) as may be updated, relocated, or otherwise modified from time to time; (2) Boom & Bucket's facilitation of third-parties' (“Sellers”) listing for sale and sale of used equipment or vehicles (“Units”) to purchasers (“Buyers”) on Boom & Bucket's platform (the “Platform”); (3) Boom & Bucket’s direct purchase and sale of Units to Buyers; and (4) all content on the Site and all intellectual property rights arising out of or related to the foregoing. Any person who accesses or uses the Service, whether on their own behalf or on behalf of any third party, is a “User.”

B. Right to Access. Subject to your compliance with these Terms, Boom & Bucket hereby grants you a non-exclusive, revocable, non-transferable right to access and view the Site for the purpose of listing, considering purchasing, or purchasing Units.

2. Responsibilities; Restrictions.

A. Accuracy of Information. You acknowledge that if you provide any information to us that is not current, complete, and accurate, Boom & Bucket may terminate these Terms and your continued access and use of the Service. You agree to update your information if it is no longer current, complete, and accurate.

B. Eligibility. You represent and warrant that: (1) you are at least eighteen (18) years of age; (2) you have not been previously suspended or removed from the Service; and (3) your registration and your use of the Service is in compliance with all applicable laws. Boom & Bucket provides the Service from the United States and directs the Service to Users in the United States. If you are using the Service from outside the United States, the Service may not be appropriate or permitted under applicable law. It is your responsibility to use the Service in accordance with all applicable law in any jurisdiction that applies to you.

C. User Responsibilities. As a User, you may use the Service solely for lawful purposes, and you may not (and you may not allow or assist any third party to):

1. use, copy, modify, create derivative works, install, transfer, or distribute the Service, except as specifically described in these Terms and any usage limitations communicated to you;

2. rent, lease, or otherwise permit third parties to use the Service, or reformat, mirror, or frame any portion of the Service;

3. circumvent or disable any security features of the Service, or probe, scan, or test the vulnerability of the System;

4. gain unauthorized access to the Service, to other Users' accounts, names, or personally identifiable information, or to other computers or websites connected or linked to the Service;

5. use the Service to distribute any viruses or other malicious code, or to transmit large amounts of data in a way that would be expected to have a detrimental effect on the Service;

6. use any robot, spider, site search/retrieval application, or other manual or automatic device or process to retrieve, index, “data mine,” or reproduce or circumvent the navigational structure or presentation of the Service or its contents;

7. reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, know-how, or algorithms related to the Service (except to the extent this restriction is prohibited by applicable law);

8. use the Service to transmit (i) any content or information that is unlawful, fraudulent, threatening, harassing, abusive, hateful, libelous, defamatory, obscene or otherwise objectionable, (ii) any material, non-public information about individuals or companies without the authorization to do so, (iii) any trade secret of any third party, and/or (iv) any advertisements, solicitations, chain letters, pyramid schemes, investment opportunities, or other unsolicited commercial communication (except as otherwise expressly permitted by us), or engage in spamming or flooding;

9. restrict, discourage, or inhibit any other User from using the Service;

10. disclose personal information about a third party or another User on the Service or obtained from the Service without the consent of such third party or User, or solicit, harvest, or collect information about other Boom & Bucket Users without their consent;

11. violate any applicable federal, state, or local laws or regulations;

12. use the Service in violation of Boom & Bucket's or any third party's intellectual property or other rights;

13. express or imply that any statements you make are endorsed by Boom & Bucket, without our prior written consent in each instance; or

14. use or access the Service to build a competing service.

15. CAUTION: ANY ATTEMPT TO DO ANY OF THE FOREGOING PROHIBITED ACTS, OR TO OTHERWISE UNDERMINE THE OPERATION OF THE SERVICE OR INAPPROPRIATELY UTILIZE USER CONTENT, MAY BE A VIOLATION OF CRIMINAL AND CIVIL LAW. SHOULD SUCH AN ATTEMPT BE MADE, WE RESERVE THE RIGHT, IN ADDITION TO OUR OTHER REMEDIES, TO SEEK DAMAGES (INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES) FROM ANY SUCH INDIVIDUAL OR ENTITY TO THE FULLEST EXTENT PERMITTED BY LAW, INCLUDING CRIMINAL PROSECUTION.

D. Seller Responsibilities

1. When listing or selling a Unit for sale through Boom & Bucket, Seller is responsible for providing accurate condition reports, pictures, and disclosures to potential Buyers and Boom & Bucket.  

2. Seller will use best efforts to ensure that potential Buyers are made aware of the past usage of a Unit and will provide all relevant usage details to enable Buyers to make an informed decision about purchasing the Unit.

2. Once a Unit is purchased by a Buyer, Seller will use best efforts to consummate the purchase as quickly as possible, but in no event more than one (1) week from the actual date of purchase. 

E. Buyer Responsibilities.

1. Prior to making an offer to buy a Unit through Boom & Bucket, Buyer is responsible to review all condition reports, pictures, and disclosures made available by the Seller and Boom & Bucket.

2. If Buyer elects to visit a Unit on-site prior to a purchase, Buyer (a) assumes responsibility for verifying the material and operating condition of the Unit and waives any claim under the Protection Plan; and (2) must comply with any safety precautions stipulated by the Seller while on Seller's property.

3. Buyer will inspect the Unit immediately upon arrival at Buyer's location, or onsite at the Sellers location as applicable. The Buyer must verify the Seller's representations and notify Boom & Bucket of any discrepancies within forty-eight (48) hours of receiving the Unit.

4. Buyer is financially responsible and assumes all risk of damage and loss on the Unit beginning at the point of pick up (by Buyer or its agent) or delivery (by third party transporter), unless shipping is conducted by a Boom & Bucket preferred shipping partner.

5. Buyer will not have any repairs performed prior to Boom & Bucket validating the claim under the Protection Plan. Cost for any repairs performed prior to validation of the claim will not be covered under the Protection Plan.

F. Buyer Expectations. Boom & Bucket's assessment of a Unit before sale is limited to the following:

1. Boom & Bucket inspectors drive the Unit around Seller's lot, but do not test Units at road speeds.

2. Boom & Bucket provides an on-site visual inspection of the Unit listed through Boom & Bucket's platform, including exterior, interior, undercarriage and frame (without lifting the vehicle).

3. The mechanical inspection may be limited to checking the engine oil and coolant, starting and running the engine, and driving the Unit in the lot to test the functionality of the transmission by getting the transmission into first gear and reverse

G. Processing Procedure.

1. When a Unit is sold through the Boom & Bucket platform, Boom & Bucket will email Buyer and Seller a Bill of Sale. Seller will also receive an express shipping label for the title paperwork if it has not already been provided.

2. Upon receipt of the Bill of Sale, Seller must send the title to Boom & Bucket within seven (7) calendar days.

3. Seller will either provide a signed title, or an unsigned title and a signed Power of Attorney giving Boom & Bucket the right to sign the title on Seller's behalf.

4. If there are any issues with the title that Boom & Bucket is not permitted to revise under an existing power of attorney, Boom & Bucket will return the title to the seller for correction, and the seller will correct such issues within a reasonable time.

5. Once Boom & Bucket has received the title from Seller (and payment from Buyer), Boom & Bucket will send the title to Buyer.

6. If Buyer has chosen to use Boom & Bucket-arranged transportation facilitation services, Boom & Bucket will arrange for transportation of the Unit.

7. We are committed to an efficient closing process. Once payment has been made to Boom & Bucket for sale of the Unit, we will issue the closing paperwork including a Bill of Sale and Equipment Release. Seller’s will make the Unit available for transportation within seven (7) calendar days from issuance of the closing documents. Buyers who elect to conduct their own logistics will have the Unit removed from Seller’s location within seven (7) calendar days from issuance of the closing documents. Customers who delay logistics in excess of seven (7) calendar days are subject to a daily fee. This fee will be accrued at One Hundred Fifty United States Dollars ($150.00) each day and is payable to Boom & Bucket Inc. The parties intend that such payment constitutes compensation for costs incurred, and not a penalty.

3. Payment.

A. Payment. All prices are in United States Dollars unless otherwise indicated. Before you pay any fees, you will have an opportunity to review the fees that you will be charged before you accept them. 

B. Payment Processing. Payment processing services for Boom & Bucket may be provided by our third-party payment processors, which may include Stripe Inc. (“Stripe”). Stripe uses your credit card to make payments. The processing of credit card charges or credits, as applicable, relating to your use of the Service will be subject to the Stripe Services Agreement, which includes the Stripe Terms of Service (collectively, the “Stripe Services Agreement”). You hereby agree to be bound by the Stripe Services Agreement, which may be modified by Stripe from time to time as set forth therein. As a condition of Boom & Bucket enabling payment processing services through Stripe, you agree to provide Boom & Bucket with current, accurate, and complete information about you and your payment methods (billing address, credit card number, expiration date, etc.) and you authorize Boom & Bucket to share it and transaction information related to your use of the payment processing services provided by Boom & Bucket.

C. Units. Prices and descriptions for Units are dependent on the Seller and subject to change without notice. We may limit the sales of Units to any person, geographic region, or jurisdiction. We do not warrant that the quality of any Units you purchase will meet your expectations. The only guarantees we make concerning the Units are those contained in the Protection Plan. We may refuse any order you place with us. If we make a change to or cancel an order, we may attempt to notify you by contacting the email, billing address, or phone number you provide. 

D. Shipping, Returns, and Cancellation by Boom & Bucket. Boom & Bucket maintains partnerships with several commercial shipping companies, whose services we make available for use with our Buyers.  Boom & Bucket will use commercially reasonable efforts to ensure that said partners (a) have the requisite licenses and certifications to execute logistics services on behalf of our Buyers safely & efficiently and (b) carry the appropriate Certificate of Insurance (COI) required to ship Units purchased on our platform.  Buyers/Sellers can generally expect pickup and delivery of equipment within one week of a successful transaction (once both parties have signed the Bill of Sale via e-signature). If the Buyer elects to arrange for its own logistics or have a third party of its choice perform logistics or shipping services, the Buyer certifies that equipment will be picked up within one week of signing the Bill of Sale.  Furthermore, if Buyer elects to arrange its own transportation for the Unit, the Buyer assumes all liability and responsibility for all damage incurred from the time of pickup at the Sellers location and waives the right to bring claims under the Protection Plan. The risk of loss and title for all Units purchased by you and shipped by us one of our preferred vendors pass to you upon the vendor's delivery of the Unit to the location you have designated. If Boom & Bucket cancels a sale and the Unit has already been delivered to the Buyer, the Buyer assumes full responsibility for safety and security of the Unit until the Unit is returned to the Seller.

4. Content Submitted to the Service.

A. User Content. Certain features of the Service may permit Users to upload and publish content to the Service, including messages, Unit descriptions, reviews, ratings, images, video, data, text, and other types of works (“User Content”). You own any User Content you provide. Except as expressly described in these Terms, no ownership rights in the User Content are transferred to Boom & Bucket by these Terms.

B. License to Boom & Bucket. By sending us User Content or by posting or publishing it to the Service, you grant Boom & Bucket and its designees a worldwide, non-exclusive, sublicensable (through multiple tiers), assignable, royalty-free, perpetual, irrevocable right to use, reproduce, distribute (through multiple tiers), create derivative works of, publish, publicly display, and use such User Content in any media now known or hereafter developed, to provide the Service to you and other Users and to enhance and develop the Service, including by marketing and advertising the Service, without compensation to you. 

C. Responsibility for User Content. You are solely responsible for your User Content and the consequences of posting it on the Service or providing it to us to post. None of the User Content will be subject to any obligation, whether of confidentiality, attribution, or otherwise, on our part and we will not be liable for any use or disclosure of any User Content. Boom & Bucket may (but is not obligated to) remove or alter any User Content at any time for any reason. We neither endorse nor are responsible for any User Content. We are not responsible for any errors or omissions in articles or postings, for hyperlinks embedded in messages, or for any results obtained from the use of such information. The opinions expressed on the Service by Users reflect solely the opinions of the Users and do not reflect the opinions of Boom & Bucket. If you believe User Content violates these Terms or any policies we provide, please contact Boom & Bucket immediately at support@boomandbucket.com so that we can consider its editing or removal. You understand that when using the Service you will be exposed to User Content from a variety of sources and acknowledge that User Content may be inaccurate, offensive, indecent, or objectionable. You hereby waive any legal or equitable right or remedy you may have against Boom & Bucket with respect to User Content.

5. Optional Third-Party Services. Boom & Bucket and third parties may make available integrations between the Service and third-party products or services, including plugins and related services such as financing services (“Third-Party Services”) that you may elect to use. Any use by you of such Third-Party Services is solely between you and the applicable Third-Party Service provider. Because the Third-Party Services rely on the Third-Party Service provider's continued operation, Boom & Bucket does not warrant or provide support for Third-Party Services. Boom & Bucket is not responsible for any violations of applicable law by Third-Party Service providers, or for any liability arising from your use of Third-Party Services. Boom & Bucket does not guarantee the continued availability of any Third-Party Services (or any integration with Third-Party Services or related Service features), and if such Third-Party Services or related features are discontinued, you will not be entitled to any refund, credit, or other compensation. Depending on your location, certain Third-Party Services may not be available to you.

6. Ownership.

A. Boom & Bucket IP. The Service, including any content, modifications, and updates, and all intellectual property rights therein (collectively, “Boom & Bucket IP”), is owned by Boom & Bucket and its licensors. No ownership rights in the Boom & Bucket IP are transferred to you by these Terms. You do not have any rights in or to the Boom & Bucket IP except for the limited express rights granted in these Terms.

B. Trademarks. You acknowledge that Boom & Bucket has acquired, and is the owner of, common law or registered trademark rights in the name and word mark "Boom & Bucket" and in the other marks and design marks displayed on the Service. You acknowledge that these names and marks are famous and internationally known. You will not challenge the validity of, or Boom & Bucket's ownership of, the foregoing names or marks, and you waive any rights you may have to do so. You may not use our names or marks in connection with any product or service that is not ours, or in any manner that is likely to cause confusion. All use of the foregoing names and marks by you will inure exclusively to Boom & Bucket's benefit.

C. Feedback. If you give Boom & Bucket feedback, comments, or suggestions concerning the Service (collectively, “Feedback”), you hereby assign to Boom & Bucket all right, title, and interest in and to the Feedback, and Boom & Bucket is free to use the Feedback without payment, attribution, or restriction.  Boom & Bucket will be entitled to reduce to practice, exploit, make, use, copy, disclose, display or perform publicly, distribute, improve and modify any Feedback you submit for any purpose whatsoever, without restriction and without compensating you in any way. For this reason, Boom & Bucket asks that you not send us any Feedback that you do not wish to assign to Boom & Bucket.

7. Confidentiality. 

A. In the course of providing the Service, Boom & Bucket may disclose or make available to you information about its business. You acknowledge that all knowledge, information, and data provided by Boom & Bucket to you with respect to the business, operations, and marketing of Boom & Bucket's products and services that is not generally known or publicly available, whether or not designated as “confidential,” is Boom & Bucket's confidential information and you will not use or disclose such confidential information to any third party without Boom & Bucket's prior written consent.

8. Data.

A. Usage Data. Boom & Bucket may collect and analyze data relating to your use of the Service that is aggregated and/or deidentified in such a way that it is not associated with you (“Usage Data”) and other information relating to the provision, use, and performance of various aspects of the Service and related systems and technologies (including information provided by third-party analytical tools). Boom & Bucket may analyze, process, collect, and use Usage Data for any purpose, including for improving the Service and developing new products, services, features, and functionality.

9. Consent to Electronic Communications.

A. Administrative Communications. By using the Service, you agree that we may communicate with you electronically regarding registration, security, privacy, and administrative issues relating to your use of the Service. 

B. Consent. You consent to receiving our email newsletter and other marketing-related emails from us. If you wish to remove yourself from our email list for such marketing-related emails, please use the unsubscribe link in any email received from us, or email us with “OPT-OUT”, “UNSUBSCRIBE”, “STOP”, or “REMOVE” in the subject line.

C. SMS Messaging. By using the Service, you agree that Boom & Bucket may send you transactional and promotional text (SMS) messages in connection with your use of the Service. You may opt out of receiving text (SMS) messages through the Service at any time by responding “STOP” or emailing support@boomandbucket.com. Opting out of receiving text (SMS) messages may impact and limit your use of the Service. Please be aware that your cellular carrier may charge fees in connection with your use of the Service. You are responsible for any mobile charges that you may incur in connection with using the Service, including data charges. If you are not sure what those charges may be, you should ask your carrier before using the Service. Boom & Bucket is not responsible or liable for any fees, costs, or overage charges associated with any data charges or data plan. 

10. Term and Termination.

A. Term. The term of these Terms will commence on the date on which you first access or use the Service and will continue as long as you continue until terminated. 

B. Termination. If you breach (or if Boom & Bucket suspects you have breached) these Terms, Boom & Bucket may, in its sole discretion, terminate these Terms and your User account and/or limit, suspend, or terminate your access to the Service, with or without notice. You may terminate these Terms by contacting us at support@boomandbucket.com.

C. Effect of Termination. Upon termination of these Terms, you remain obligated to pay any outstanding fees relating to your use of the Service that were incurred prior to termination. The following Sections of these Terms will survive termination of these Terms: 1.A (Service), 2 (Responsibilities; Restrictions), 4 (Content Submitted to the Service) – 8 (Data), 10.C (Effect of Termination), 11 (Representation and Warranties; Disclaimer) through– 23 (Contact Us). Either party's termination of these Terms is without prejudice to any other remedies it may have at law or in equity, and does not relieve either party of liability for breaches occurring prior to the effective date of termination. Neither party will be liable to the other for damages arising solely as a result of terminating these Terms.

D. Deactivation. Boom & Bucket may, without notice to you: (1) restrict, deactivate, or terminate your access to the Service (or any portion); or (2) terminate or modify the Service (or any portion). Boom & Bucket will not be liable to you or any third party for any termination of or modification to the Service regardless of the reason for such termination or modification. If you are dissatisfied with any termination or modification of the Service, your only remedy is to stop using the Service.

11. Representations and Warranties; Disclaimer.

A. User Content. You represent and warrant that: (1) you are the creator and owner of any User Content you provide or otherwise have sufficient rights and authority to grant the rights granted to Boom & Bucket in these Terms; (2) Boom & Bucket's use of your User Content in accordance with these Terms will not infringe, violate, or misappropriate any third-party right, including any intellectual property right, proprietary right, or privacy right; (3) your User Content does not contain any viruses, adware, spyware, worms, or other harmful or malicious code; and (4) unless you have received prior written authorization, your User Content does not contain any confidential information of any third party. 

B. DISCLAIMER. YOU ACKNOWLEDGE THAT OTHER THAN AS EXPRESSLY PROVIDED IN THESE TERMS AND THE PROTECTION PLAN, BOOM & BUCKET HAS NOT MADE, AND DOES NOT MAKE, AND YOU HAVE NOT RELIED AND DO NOT RELY ON, ANY REPRESENTATION, EXPRESSED OR IMPLIED, PERTAINING TO THE SERVICE OR THE UNIT.  BOOM & BUCKET MAKES NO EXPRESS OR IMPLIED WARRANTIES WITH RESPECT TO THE SERVICE, UNITS, THIRD-PARTY SERVICES, OR OTHERWISE, AND SPECIFICALLY DISCLAIMS ALL IMPLIED AND STATUTORY WARRANTIES, INCLUDING THE IMPLIED WARRANTIES OF NON-INFRINGEMENT OF THIRD-PARTY RIGHTS, MERCHANTABILITY, SATISFACTORY QUALITY, ACCURACY, TITLE, AND FITNESS FOR A PARTICULAR PURPOSE, AND ANY WARRANTIES ARISING FROM COURSE OF DEALING, USAGE, OR TRADE PRACTICE. THE SERVICE IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BOOM & BUCKET DOES NOT WARRANT THAT THE SERVICE, UNITS, OR THIRD-PARTY SERVICES WILL SATISFY YOUR REQUIREMENTS, ARE WITHOUT DEFECT OR ERROR, OR THAT THE OPERATION OF THE SERVICE, UNITS, OR THIRD-PARTY SERVICES WILL BE UNINTERRUPTED. Some jurisdictions may limit or prohibit warranty disclaimers, and this Section 11.B (Disclaimer) will apply solely to the extent permitted under applicable law.

12. Indemnification.

A. Defense. At Boom & Bucket's option and request, you will defend Boom & Bucket, its affiliates, and their respective directors, officers, employees, agents, and contractors (the “Boom & Bucket Parties”) from any actual or threatened third-party claim, proceeding, or suit arising out of or based on: (1) your breach of any representation, warranty, or covenant in these Terms; (2) your violation of applicable law or any third-party intellectual property, proprietary, or privacy right; (3) any dispute between you and any other User or any third party; or (4) your use of the Service in a manner not authorized under these Terms (each, a “Claim”). If Boom & Bucket requests you to defend a Boom & Bucket Party from any Claim, Boom & Bucket will: (a) give you prompt written notice of the Claim; (b) grant you full and complete control over the defense and settlement of the Claim; (c) provide assistance in connection with the defense and settlement of the Claim as you may reasonably request; and (d) comply with any settlement or court order made in connection with the Claim. Notwithstanding the previous sentence, you may not enter into any settlement that involves an admission of guilt or liability of a Boom & Bucket Party without Boom & Bucket's prior written consent. Boom & Bucket may participate in the defense of a Claim at its own expense and with counsel of its own choosing.

B. Indemnification. You will indemnify the Boom & Bucket Parties from and pay: (1) all damages, costs, and attorneys' fees finally awarded against a Boom & Bucket Party in any Claim; (2) all out-of-pocket costs (including attorneys' fees) reasonably incurred by a Boom & Bucket Party in connection with the defense of a Claim; and (3) all amounts that you agree to pay to any third party to settle any Claim.

13. Limitation of Liability.

A. EXCLUSION OF DAMAGES. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER BOOM & BUCKET NOR ANY BOOM & BUCKET PARTY WILL BE LIABLE TO YOU FOR ANY CONSEQUENTIAL, INCIDENTAL, SPECIAL, OR EXEMPLARY DAMAGES ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE, INCLUDING LOST PROFITS, LOSS OF BUSINESS, OR LOSS OF DATA, EVEN IF BOOM & BUCKET IS APPRISED OF THE LIKELIHOOD OF SUCH DAMAGES OCCURRING. NEITHER BOOM & BUCKET NOR ANY BOOM & BUCKET PARTY SHALL BE LIABLE FOR ANY DAMAGES, LIABILITY, OR LOSSES ARISING OUT OF YOUR RECEIPT OR PROVISION OF THE SERVICE, OR ANY THIRD-PARTY SERVICES.

B. DAMAGES CAP. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, BOOM & BUCKET'S AND ANY BOOM & BUCKET PARTY’S TOTAL LIABILITY OF ALL KINDS ARISING OUT OF OR RELATED TO THESE TERMS OR YOUR USE OF THE SERVICE OR ANY THIRD-PARTY SERVICES (INCLUDING WARRANTY CLAIMS), REGARDLESS OF THE FORUM AND REGARDLESS OF WHETHER ANY ACTION OR CLAIM IS BASED ON CONTRACT, TORT, OR OTHERWISE, WILL NOT EXCEED THE GREATER OF: (1) THE AMOUNT OF FEES PAID BY YOU FOR UNITS SOLD BY BOOM & BUCKET DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING THE CLAIM (DETERMINED AS OF THE DATE OF ANY FINAL JUDGMENT IN AN ACTION); OR (2) ONE HUNDRED UNITED STATES DOLLARS ($100.00).

14. New Jersey Notice. 

A. IF YOU ARE A RESIDENT OF NEW JERSEY, SECTIONS 11.B (DISCLAIMER) AND 13 (LIMITATION OF LIABILITY) ARE INTENDED TO BE ONLY AS BROAD AS IS PERMITTED UNDER THE LAWS OF THE STATE OF NEW JERSEY. IF ANY PORTION OF THESE SECTIONS IS HELD TO BE INVALID UNDER THE LAWS OF THE STATE OF NEW JERSEY, THE INVALIDITY OF SUCH PORTION SHALL NOT AFFECT THE VALIDITY OF THE REMAINING PORTIONS OF THE APPLICABLE SECTIONS.

15. 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 all claims, demands, and damages (actual and consequential) of every kind, known and unknown, arising out of or in any way connected with such disputes. You expressly waive any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which you may know or suspect to exist in your favor at the time of agreeing to this release. Nothing in this provision will prevent Boom & Bucket from canceling a sale as provided in Section 3.D (Shipping, Returns, and Cancellations by Boom & Bucket). 

16. Disputes; Arbitration.

A. Generally.  Boom & Bucket tries to address any disputes without the need to initiate a formal legal proceeding. In the event you have any dispute with Boom & Bucket arising out of your use of the Services, you shall first try in good faith to settle such dispute by providing written notice to Boom & Bucket describing the facts of the dispute (including any relevant documentation) and allowing Boom & Bucket thirty (30) days to respond before initiating any formal dispute resolution proceeding. Upon receipt of your notice, Boom & Bucket will send any dispute related notice to you at the contact information Boom & Bucket has for you. If for some reason the dispute is not resolved satisfactorily within thirty (30) days after receipt, any further dispute resolution will occur according to the provisions below. Engaging in this informal dispute resolution process is a requirement that must be fulfilled before commencing a formal dispute resolution proceeding.

B. Arbitration. If you are not a resident of the United States, this Section 16 (Disputes; Arbitration) will only apply to you to the extent applicable law in your country of residence permits. In the interest of resolving disputes between you and Boom & Bucket in the most expedient and cost-effective manner, you and Boom & Bucket agree that any dispute arising out of or related to these Terms or your use of the Service will be resolved by binding arbitration. Arbitration uses a neutral arbitrator instead of a judge or jury and can be subject to very limited review by courts. Arbitrators can award the same damages and relief that a court can award. This agreement to arbitrate disputes includes all claims arising out of or in any way related to these Terms or your use of the Service, whether based in contract, tort, statute, fraud, misrepresentation, or any other legal theory, and regardless of whether a claim arises during or after the expiration or termination of these Terms. YOU UNDERSTAND AND AGREE THAT, BY ENTERING INTO THESE TERMS, YOU AND BOOM & BUCKET ARE EACH WAIVING THE RIGHT TO A TRIAL BY JURY OR TO PARTICIPATE IN A CLASS OR COLLECTIVE ACTION. YOU FURTHER UNDERSTAND THAT THIS SECTION 16 (DISPUTES; ARBITRATION) WILL APPLY TO YOU AND BOOM & BUCKET UNLESS YOU CHOOSE TO OPT OUT PURSUANT TO SECTION 16.K (OPT OUT). Whether to agree to arbitration is an important decision. It is your decision to make, and you should not rely solely on the information provided in these Terms, as they are not intended to contain a complete explanation of the consequences of arbitration. You should take further steps to conduct research and to consult with others, including an attorney, regarding the consequences of your decision, just as you would when making any other important business or life decision.

C. Exceptions. Despite the provisions of this Section 16(Disputes; Arbitration), nothing in these Terms will be deemed to waive, preclude, or otherwise limit the right of either party to: (1) bring an individual action in small claims court; (2) bring an action in a court pursuant to the California Private Attorneys General Act of 2004, California Labor Code § 2698 et seq.; (3) seek injunctive relief in a court of law; or (4) file suit in a court of law to address an intellectual property infringement claim.

D. Arbitrator. Any arbitration between you and Boom & Bucket will be governed by the Federal Arbitration Act, and governed by the Commercial Dispute Resolution Procedures and the Supplementary Procedures for Consumer Related Disputes (collectively, “AAA Rules”) of the American Arbitration Association (“AAA”), as modified by these Terms, and will be administered by the AAA. The AAA Rules and filing forms are available online at www.adr.org, by calling the AAA at 1-800-778-7879, or by contacting Boom & Bucket. The arbitrator has exclusive authority to resolve any dispute relating to the interpretation, applicability, or enforceability of this binding arbitration agreement.

E. Notice; Process. A party who intends to seek arbitration must first send a written notice of the dispute to the other party within the applicable statute of limitations period (“Notice”). Boom & Bucket's email address for Notice is support@boomandbucket.com. The Notice must: (1) describe the nature and basis of the claim or dispute; (2) set forth the specific relief sought; and (3) if you are sending the Notice to Boom & Bucket, include your name and address (“Demand”). The parties will make good faith efforts to resolve the claim directly, but if the parties do not reach an agreement to do so within forty five (45) days after the Notice is received, you or Boom & Bucket may commence an arbitration proceeding. During the arbitration, the amount of any settlement offer made by you or Boom & Bucket must not be disclosed to the arbitrator until after the arbitrator makes a final decision and award, if any. If the dispute is finally resolved through arbitration in your favor, Boom & Bucket will pay you the highest of the following: (a) the amount awarded by the arbitrator, if any; (b) the last written settlement amount offered by Boom & Bucket in settlement of the dispute prior to the arbitrator's award; or (c) One Thousand United States Dollars ($1,000.00).

F. Fees; Location; Language. If you commence arbitration in accordance with these Terms, Boom & Bucket will reimburse you for your payment of the filing fee, unless your claim is for more than Fifteen Thousand United States Dollars ($15,000.00) or as set forth below, in which case the payment of any fees will be decided by the AAA Rules. Any arbitration hearing will take place at a location to be agreed upon in Austin, Texas but if the claim is for Fifteen Thousand United States Dollars ($15,000.00) or less, you may choose whether the arbitration will be conducted: (1) solely on the basis of documents submitted to the arbitrator; (2) through a non-appearance-based telephone hearing; or (3) by an in-person hearing as established by the AAA Rules in the county (or parish) of your billing address. If the arbitrator finds that either the substance of your claim or the relief sought in the Demand is frivolous or brought for an improper purpose (as measured by the standards set forth in Federal Rule of Civil Procedure 11(b)), then the payment of all fees will be governed by the AAA Rules. In that case, you agree to reimburse Boom & Bucket for all monies previously disbursed by it that are otherwise your obligation to pay under the AAA Rules. Regardless of the manner in which the arbitration is conducted, the arbitrator must issue a reasoned written decision sufficient to explain the essential findings and conclusions on which the decision and award, if any, are based. The arbitrator may make rulings and resolve disputes as to the payment and reimbursement of fees or expenses at any time during the proceeding and upon request from either party made within 14 days of the arbitrator's ruling on the merits. The language of the arbitration shall be English, unless you do not speak English, in which case the arbitration shall be conducted in both English and your native language. 

G. Confidentiality. The parties agree to keep confidential the existence of the arbitration, the arbitral proceedings, the submissions made by the parties, and the decisions made by the arbitrator, including its awards, except as required by applicable law and to the extent not already in the public domain.

H. No Class Actions. YOU AND BOOM & BUCKET AGREE THAT EACH MAY BRING CLAIMS AGAINST THE OTHER ONLY IN YOUR OR ITS INDIVIDUAL CAPACITY AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING (OTHER THAN ACTIONS UNDER THE CALIFORNIA PRIVATE ATTORNEYS GENERAL ACT OF 2004, CALIFORNIA LABOR CODE § 2698 ET SEQ., WHICH ARE NOT COVERED BY THIS SECTION 16 (ARBITRATION)). Unless both you and Boom & Bucket agree otherwise, the arbitrator may not consolidate more than one person's claims and may not otherwise preside over any form of a representative or class proceeding. 

I. Modifications to this Arbitration Provision. If Boom & Bucket makes any future change to this arbitration provision, other than a change to Boom & Bucket's address for Notice, you may reject the change by sending us written notice within thirty (30) days of the change to Boom & Bucket's address for Notice, in which case this arbitration provision, as in effect immediately prior to the changes you rejected, will continue to govern any disputes between you and Boom & Bucket. If you do not send such written notice, your continued use of the Service following any such change means that you have consented to such change.

J. Enforceability. If Section 16.H (No Class Actions) is found to be unenforceable or if the entirety of this Section 16 (Arbitration) is found to be unenforceable, then the entirety of this Section 16 will be null and void and the exclusive jurisdiction and venue described in Section 20.B (Governing Law) will govern any action arising out of or related to these Terms or your use of the Service.

K. Opt Out. Arbitration is not a mandatory condition of these Terms. If you do not want to be subject to this Section 16 (Arbitration), you may opt out by notifying Boom & Bucket in writing of your decision by sending, within thirty (30) days after the effective date of these Terms, an email to support@boomandbucket.com, stating clearly your full name, address, and intent to opt out of this Section 16 (Disputes; Arbitration). Should you choose not to opt out within the 30-day period, you and Boom & Bucket will be bound by the terms of this Section 16 (Disputes; Arbitration). You have the right to consult with counsel of your choice regarding your right to opt out of this Section 16 (Disputes; Arbitration), and you understand that you will not be subject to retaliation if you exercise your right to opt out.

17. Cooperation with Authorities. 

A. Boom & Bucket may cooperate with legal authorities and/or third parties in the investigation of any suspected or alleged crime or civil wrong. Except as may be expressly limited by the Privacy Policy, Boom & Bucket may disclose any information as Boom & Bucket deems necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to edit, refuse to post, or to remove any information or materials, in whole or in part, in Boom & Bucket's sole discretion.

18. Protected Activity Not Prohibited. 

A. Nothing in these Terms limit or prohibit you from filing a charge or complaint with, or otherwise communicating or cooperating with or participating in, any investigation or proceeding that may be conducted by any federal, state, or local government agency or commission (“Protected Activity”). In connection with such Protected Activity, you are permitted to disclose documents or other information as permitted by law, and without giving notice to, or receiving authorization from, Boom & Bucket. In making any such disclosures or communications, you agree to take all reasonable precautions to prevent any unauthorized use or disclosure of any information that may constitute Boom & Bucket confidential information to any parties other than the applicable government agencies. 

19. Compliance with Applicable Law. 

A. Each party will comply with all applicable federal, state, and local laws, regulations, binding regulatory guidance, directives, and governmental requirements in connection with exercising its rights or performing its obligations under these Terms.

20. Miscellaneous.

A. Subcontractors. Boom & Bucket may use subcontractors or other third parties to perform its obligations under these Terms, but Boom & Bucket will remain responsible for all such obligations.

B. Governing Law. These Terms are governed by Texas law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Subject to Section 16 (Arbitration), all claims arising under these Terms will be litigated exclusively in the federal or state courts of Austin, Texas. The parties submit to the jurisdiction of those courts. In any proceeding to enforce rights under these Terms, the prevailing party will be entitled to recover costs and attorneys' fees.

C. Injunctive Relief. If you breach Sections 2 (Responsibilities; Restrictions), 6 (Ownership), or 7 (Confidentiality), Boom & Bucket may suffer irreparable harm, and monetary damages may be inadequate to compensate Boom & Bucket. Accordingly, Boom & Bucket may, in addition to any other remedies available, seek injunctive or other equitable relief in response to any such breach.

D. Further Assurances. You agree to execute and deliver any documents or instruments, and take any further actions that are reasonably required, to provide the other party the full benefits and rights described in these Terms.

E. Assignment. You may not assign these Terms or delegate your performance without Boom & Bucket's prior written consent, and any attempt to do so is void. Boom & Bucket may assign or transfer these Terms without your consent. These Terms are binding upon and inure to the benefit of the parties' permitted successors and assigns.

F. Severability. If any provision of these Terms or portion of a provision is invalid, illegal, or unenforceable, the rest of these Terms will remain in effect.

G. No Waiver. Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under these Terms.

H. Entire Agreement. Except as explicitly stated, these Terms constitute the entire agreement and supersede any other agreement of the parties relating to their subject matter. No usage of trade or other regular practice or method of dealing between the parties will be used to modify, interpret, or supplement these Terms.

I. Nature of Rights. The licenses granted under these Terms are rights in “intellectual property” within the scope of Section 101 (or its successors) of the United States Bankruptcy Code (the “Code”). Each party as licensee will have and may fully exercise all rights available to a licensee under the Code, including under Section 365(n) or its successors.

J. Relationship. Neither Boom & Bucket's provision of the Service to you, nor your access to and use of the Service, creates any direct business relationship between you and Boom & Bucket. You acknowledge and agree that these Terms are not an employment agreement, nor does it create an employment or contractor relationship, between you and Boom & Bucket; and no joint venture, partnership, or agency relationship exists between you and Boom & Bucket. As a User, YOU ACT EXCLUSIVELY ON YOUR OWN BEHALF AND FOR YOUR OWN BENEFIT, AND NOT ON BEHALF OF OR FOR THE BENEFIT OF BOOM & BUCKET. YOU AGREE NOT TO DO ANYTHING TO CREATE A FALSE IMPRESSION THAT YOU ARE ENDORSED BY, PARTNERING WITH, OR ACTING ON BEHALF OF OR FOR THE BENEFIT OF BOOM & BUCKET, INCLUDING BY INAPPROPRIATELY USING ANY BOOM & BUCKET IP. 

K. No Third-Party Beneficiaries. There are no third-party beneficiaries of these Terms.

L. Notices. All notices under these Terms must be in writing, and will be considered given: (1) upon delivery, if delivered personally or by internationally recognized courier service; (2) three business days after being sent, if delivered by U.S. registered or certified mail (return receipt requested); or (3) upon acknowledgement of receipt, if delivered by email. Either party may update its notice address by notice to the other party in accordance with this Section 20.L (Notices). All notices to Boom & Bucket will be sent to:

Boom and Bucket Inc.  

701 Brazos St., Suite 300

Austin, Texas 78701

Email: support@boomandbucket.com

Attn: Legal

M. Force Majeure. Boom & Bucket will not be liable for any delay or failure to perform under these Terms as a result of any cause or condition beyond Boom & Bucket's reasonable control (a “Force Majeure Event”), so long as Boom & Bucket uses reasonable efforts to avoid or remove those causes of delay or non-performance. If a Force Majeure Event causes Boom & Bucket to delay or fail to perform its obligations under these Terms for thirty (30) consecutive days, either party may terminate these Terms.

N. Interpretation. Any heading, caption, or section title contained in these Terms is for convenience only, and does not define or explain any provision. Any use of the term “including” or variations thereof should be construed as if followed by the phrase “without limitation.”O. Governing Law.  These Terms are governed by Texas law without reference to its conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms. Subject to Section 16 (Disputes; Arbitration), all claims arising under this Agreement will be litigated exclusively in the federal or state courts in Austin, Texas. The parties submit to the jurisdiction in those courts. THE PARTIES HEREBY WAIVE ANY RIGHT TO A JURY TRIAL OF ANY CLAIM. THE COURT CAN DECIDE ONLY YOUR AND/OR BOOM & BUCKET’S INDIVIDUAL CLAIMS.

P. Severability.  If any provision of these Terms or portion of a provision is invalid, illegal, or unenforceable, the rest of the Terms will remain in effect.

Q. No Waiver.  Neither party will be treated as having waived any rights by not exercising (or delaying the exercise of) any rights under this Agreement.

21. Notice For California Users. 

A. Under California Civil Code Section 1789.3, Users located in California are entitled to the following notice: The Complaint Assistance Unit of the Division of Consumer Services of the California Department of Consumer Affairs may be contacted in writing at 400 R Street, Suite 1080, Sacramento, California 95814, or by telephone at (916) 445-1254 or (800) 952-5210.

22. Procedure for Alleging Copyright Infringement.  

A. Boom & Bucket does not knowingly violate or permit others to violate the copyrights of others. Boom & Bucket will promptly remove or disable access to material that Boom & Bucket knows is infringing or if Boom & Bucket becomes aware of circumstances from which infringing activity is apparent.

If you are requesting removal of content because of a violation of your copyrights, please note that the Digital Millennium Copyright Act of 1998 (“DMCA”) provides recourse for copyright owners who believe that material appearing on the Internet infringes their rights under U.S. copyright law. If you believe that your own work, or the work of a third party for whom you are authorized to act, is featured on the Site or has been otherwise copied and made available on our Site in a manner that constitutes copyright infringement, please notify Boom & Bucket immediately. Your notice must be in writing and must include:

  1. an electronic or physical signature of the copyright owner or 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 Site(s) (including the URL, title and/or item number if applicable, or other identifying characteristics);

  4. your name, address, telephone number, and email address, and, if you are not the owner of the copyright, the name of the owner;

  5. a written 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; and

  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 your statement to:  support@boomandbucket.com

Any notification by a copyright owner or a person authorized to act on its behalf that fails to comply with requirements of the DMCA shall not be considered sufficient notice and shall not be deemed to confer upon Boom & Bucket actual knowledge of facts or circumstances from which infringing material or acts are evident.

23. Contact Us. 

A. If you have any questions about these Terms or otherwise need to contact us for any reason, you can reach us at support@boomandbucket.com.