Effective Date: January 1st, 2018
Welcome to Rewind. We take the hassle out of buying and selling surplus wind energy assets.
This Agreement is being entered by and between you and Rewind.Energy (“Broker”). Broker is the owner of an online marketplace for buying and selling wind turbines, parts, components, or other windfarm assets (“Services”), which are provided subject to the terms of this Agreement. The person or entity selling the Asset is referred to as “you”, “you”, or “Seller”. The person or entity buying the Asset is referred to as “Buyer”. Buyer and Seller are collectively referred to as the Parties.
BY AGREEING TO THIS AGREEMENT YOU ARE MAKING A FORMAL OFFER TO SELL AN ASSET “AS IS” AND WITHOUT ANY CONTINGENCIES EXCEPT AS OTHERWISE EXPRESSLY PROVIDED. YOU SHOULD ONLY AGREE TO THESE TERMS AND CONDITIONS IF YOU ARE WILLING AND ABLE TO COMPLETE THE SALE.
THIS AGREEMENT IS A LEGALLY BINDING CONTRACT AND YOU HAVE A DUTY TO READ THIS AGREEMENT BEFORE USING THE WEBSITE OR SERVICES. WHEN YOU LIST YOUR ASSET FOR SALE, YOU MANIFEST YOUR ASSENT TO THE TERMS AND CONDITIONS CONTAINED WITHIN THIS AGREEMENT. IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MUST IMMEDIATELY CEASE YOUR USE OF THE WEBSITE OR SERVICES. BROKER RESERVES THE RIGHT TO MODIFY, AMEND, REPLACE, SUSPEND, OR TERMINATE THIS AGREEMENT AT ANY TIME AND WITHIN ITS SOLE DISCRETION. IN THE EVENT BROKER MODIFIES, AMENDS, OR REPLACES THIS AGREEMENT, THE EFFECTIVE DATE, LOCATED ABOVE, WILL CHANGE. YOUR USE OF THE WEBSITE OR SERVICES AFTER A CHANGE IN THE EFFECTIVE DATE CONSTITUTES YOUR ACQUIESCENCE TO AND ACCEPTANCE OF ANY MODIFICATION, AMENDMENT, OR REPLACEMENT.
1. Listing with Rewind and Offer to Sell. By listing an Asset for sale through Broker’s website and Services, Seller has made an offer to sell said Asset and has appointed Broker to identify a Buyer. In addition to the sale of the Asset, Seller is also agreeing to provide any ancillary services, as detailed on the listing page of your Asset on Broker’s marketplace. Broker reserves the right to reject any Asset submission for any reason.
2. Eligibility. By using the Rewind website or Services, you warrant and agree that you are either above the age of majority in your nation, state, province, territory, or city, or the age of eighteen (18), whichever is greater. You warrant that you are of sound mind, have the capacity to contract, and agree to the terms and conditions contained within this Agreement. If you are using the Services on behalf of a business entity or third party, you warrant that you have actual authority to act as an agent of that business entity and third party and have the right and ability to agree to the terms of this Agreement on behalf of that third party or business entity.
3. Seller Warranties. Seller warrants that:
i. Seller has the full power and legal authority to execute this Agreement;
ii. Seller has clear and unencumbered title to the Asset and all related assets to be sold through the Broker’s Marketplace, including all intellectual property rights;
iii. Seller has not placed the Asset to be sold subject to a mortgage, pledge, lien, or encumbrance, except for those taxes which shall be prorated as of the date of the Completed Closing;
iv. Seller has truthfully and accurately provided details relating to the Asset to Broker including, but not limited to, details regarding condition, location, and operational and service history;
v. There are no bankruptcy or reorganization proceedings currently filed against Seller that would impede its ability to complete this Agreement; and
vi. To the best of your knowledge, there is no lawsuit or pending charge against your Asset.
4. Nonexclusive Listing and Broker’s Fee. Unless otherwise agreed to in writing by Broker and Seller, your Asset listings on Broker’s website shall be nonexclusive and remain active for a period of 12 months from the date that each listing is approved by Broker (“Listing Term”).
Seller agrees to pay Broker a commission of ten percent (10%) of the total sale price of the Asset (“Fee”) if the Asset is sold during the Listing Term, regardless of whether the Asset was sold as a result of an introduction made by, or a direct sale made through, Broker’s website or Services. In addition, Seller agrees to pay any damages in connection with the breach of this provision, including the costs and attorney fees Broker incurs in connection with enforcing this Agreement.
Further, if you sell the Asset to a buyer who was introduced to your Asset through Broker, after expiration of the Listing Term, you agree to pay Broker said Fee of 10% of the total sale price of the Asset.
5. Buyer Identification and Introduction. Broker shall use reasonable efforts to identify a prospective Buyer and exercise its best judgement when introducing a prospective Buyer to the Seller. When a new prospective Buyer submits an offer, makes a purchase, or is interested in opening communications with the Seller, the Broker shall inform the Seller of such, and shall provide the Seller with information and contact details as required to facilitate the introduction and communications with Buyer.
In order for Broker to ensure that it is familiar with the Asset and to aid in identifying a prospective Buyer, Seller agrees to provide the Broker with promotional and sales literature as necessary.
6. Confidentiality. The Parties and Broker agree to keep all Confidential Information in relation to the business of the other confidential during and after the term of the Agreement. This Clause 6 will not apply to:
i. Any information which has been published or otherwise entered the public domain other than through a breach of this agreement;
ii. Information in the possession of the recipient party before the disclosure under this agreement took place;
iii. Information obtained from a third party who is free to disclose it;
iv. Information which a party is required by law to disclose.
i. The Seller and Broker hereby irrevocably agree not to circumvent or attempt to circumvent the provisions of this Agreement, including but not limited to those provisions regarding the calculation and payment of the Fee, and affirm that in every case that they will act with the highest standards of ethics in their dealings with each other.
ii. The Seller agrees not to solicit the prospective Buyer for any business purpose during the term of this Agreement.
iii. The Seller hereby irrevocably agrees not to attempt to circumvent, avoid or bypass the Broker directly or indirectly in connection with the equipment and any other additions, renewals, extensions, rollovers, amendments, renegotiations, new contracts, parallel contracts or third party assignments relating to the equipment. Nor shall the Seller intentionally disclose or otherwise reveal to any third party any confidential information provided by the Broker and in particular that of a prospective Buyer or their names, addresses, email addresses, telephone and fax numbers or any means of access hereto, including bank information, project & financial details without the specific formal/written consent from the Broker. In the event that the Seller does attempt to breach or otherwise breaches this Agreement, then the Seller shall be responsible to the Broker for damages and losses sustained by the Broker as well as those sustained by prospective Buyer or buyers together with any attorney fees or costs incurred by the Broker in pursuing such damages and losses.
8. Broker’s Termination. Broker reserves the right to terminate a listing or a Seller at any time for any reason or no reason at all. If Broker determines such a termination is required, Broker will cancel the sale, the Asset will be returned to Seller, and the Purchase Price will be returned to Buyer. The Parties agree to cooperate to complete these actions.
9. Remedies for Material Breach. The Parties, including the Broker, understand and agree that monetary damages would not be a sufficient remedy for any breach of this Agreement and that, in addition to monetary damages and all other rights and remedies available at law or according to the terms of this Agreement, the non-breaching Party, including the Broker, shall be entitled to equitable relief, including injunctive relief, specific performance and/or the granting of an immediate restraining order or preliminary injunction (without posting bond) enjoining any such breach or reasonably anticipated breach as a remedy. Such equitable remedies shall not be the exclusive remedies available to the Parties, including the Broker, for breach of this Agreement, but shall be in addition to all other remedies available at law, equity or according to the terms of this Agreement. Broker’s termination of a listing, a seller, a Closing Process, or the Inspection Period is not a breach of this Agreement.
10. Indemnification between Buyer and Seller.
i. Seller agrees to indemnify Buyer from all liabilities arising out of Seller’s operation of the Asset prior to the Completed Closing;
ii. Buyer has agreed to indemnify Seller from all liabilities arising out of Buyer’s operation of the Asset after the Completed Closing; and
11. Indemnification of Broker. You agree to hold harmless, defend, and indemnify Broker from and against any and all claims, demands, judgments, liabilities, costs, and fees, including attorneys’ fees, arising out of or related to: (1) the use of the Rewind’ Website; (2) the use of any Service; (3) the review and listing of your Asset for sale; (4) the violation of any term or condition of this Agreement; (5) the violation of the rights of third parties, including rights of privacy or publicity or intellectual property rights; and (6) the violation of any law, statute, regulation, ordinance, or treaty, whether local, state, provincial, national, or international. Your obligation to defend and indemnify Broker will not provide you with the ability or right to control Broker’s defense, and Broker reserves the right to control its defense, including, but not limited to, the choice to litigate or settle and the choice of counsel.
12. Limitation of Liability.
YOU AGREE THAT THE SERVICES ARE PROVIDED ON AN AS-IS BASIS AND WITHOUT WARRANTY OF ANY KIND, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF QUALITY, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SECURITY, NON-INFRINGEMENT, AND TITLE. YOU AGREE THAT BROKER WILL NOT BE HELD RESPONSIBLE OR LIABLE FOR ANY CLAIMS, DAMAGES, JUDGMENTS, CHARGES, OR FEES ARISING OUT OF OR RELATED TO YOUR USE OF THE SERVICES OR THE PERFORMANCE OF THE PRODUCTS, INCLUDING, BUT NOT LIMITED TO, COMPENSATORY DAMAGES, CONSEQUENTIAL DAMAGES, SPECIAL DAMAGES, INCIDENTAL DAMAGES, PUNITIVE DAMAGES, EXEMPLARY DAMAGES, COSTS AND ATTORNEYS’ FEES, DAMAGES ARISING OUT OF ERRORS OR OMISSIONS, AND DAMAGES ARISING OUT OF THE UNAVAILABILITY OF THE REWIND WEBSITE OR SERVICES OR OTHER DOWNTIME. YOU ACKNOWLEDGE THAT YOUR USE OF THE SERVICES IS AT YOUR SOLE RISK AND THAT BROKER’S LIABILITY IS LIMITED TO THE AMOUNT THAT YOU PAID TO USE THE WEBSITE OR SERVICES OR $1,000, WHICHEVER IS LESS.
13. General Provisions.
i. Costs. The Parties agree to pay their own costs and expenses incurred with respect to this Agreement.
ii. Valid and Binding Agreement. This Agreement represents a binding legal obligation and is enforceable in accordance with its terms and is binding and shall inure to the benefit of each Parties’ respective heirs, legal representatives, successors, and assigns.
iii. Confidentiality. The Parties agree to maintain complete confidentiality regarding this Agreement.
iv. Waivers. A waiver by either Party to any provision of this Agreement does not constitute a waiver of any other provision of this Agreement.
v. Notices. Any notice to Broker required under this Agreement shall be in writing and shall be deemed properly given when emailed to email@example.com.
vi. No Third-Party Beneficiaries. Except as otherwise provided, nothing in this Agreement will provide any benefit to any third party or entitle any third party to any claim, cause of action, remedy, or right of any kind. This Agreement is not a third-party beneficiary contract.
vii. Sections and Headings. The sections and headings in this Agreement are for organization and clarification purposes only and should not be interpreted as part of this Agreement.
viii. Choice of Laws and Venue. Parties and Broker agree that any and all claims arising out of or related to this Agreement brought by or against Broker, including its validity, interpretation, breach, violation, or termination, shall be brought in the exclusive forum of the state or federal courts located in Bernalillo County, New Mexico and pursuant to New Mexico law. The Parties expressly consent to personal and subject matter jurisdiction in this forum. The prevailing party is entitled to payment of its costs, expenses, and attorney fees by the non-prevailing party for actions, disputes, or litigation arising out of or related to this Agreement. This Agreement is deemed to have been negotiated, executed, and performed exclusively within Bernalillo County, New Mexico.
ix. Entire Agreement. Except as otherwise provided, this Agreement is the entire agreement between the Parties. This Agreement supersedes any prior written or oral agreement between the Parties.
x. Severability. If any provision of this Agreement is held to be invalid or unenforceable for any reason, the remaining provisions will continue to be valid and enforceable. If a court finds that any provision of this Agreement is invalid or unenforceable, but that by limiting such provision it would become valid and enforceable, then such provision will be deemed to be written, construed, and enforced as so limited.
xi. Amendments. This Agreement may be amended in writing with both Parties’ signatures and date.
xii. Effective Date. The Effective Date of this Agreement is the date it is agreed to by Seller.