Terms of Service

(referred to in this document as “Terms of Service”)

These Terms of Service were last updated on 17 SEP 2020

CONTACT

Heave LLC

4707 W Clear Avenue

Tampa, Florida 33629

1-888-HEAVE-IT

By accessing or using this website, any of its pages and/or any of the services referenced herein, you accept and agree to be bound by the Terms of Service set forth below.

  1. ARBITRATION AGREEMENT AND WAIVER OF RIGHT TO BRING COLLECTIVE ACTION.

You and Heave LLC agree to final and binding arbitration of all Claims before the American Arbitration Association pursuant to the written arbitration agreement found here.

PLEASE READ THE ARBITRATION AGREEMENT CAREFULLY. IT AFFECTS YOUR RIGHTS, AND THOSE TO WHOM YOU PROVIDE ACCESS TO YOUR ACCOUNT. THE AGREEMENT TO ARBITRATE ALL CLAIMS IS A CONDITION OF YOUR USE OF THE HEAVE.CO WEBSITE AND/OR ANY OF THE SERVICES REFERENCED HEREIN.

  1. CHOICE OF LAW.

Except as otherwise expressly provided in the Heave.co Arbitration Agreement (which applies the Federal Arbitration Act), the relationship between you and Heave.co are governed by the laws of the State of Florida without regard to its conflict/choice of law provisions.

  1. ACCEPTANCE OF TERMS.

Heave LLC (“Heave.co,” “we,” “us,” or “our”) provides users with an online equipment sales and rental information and communications platform, as well as related services that can be accessed from or through this website (collectively, “Services”). Please carefully read these Terms of Service before using the Services. By accessing or using the Services, including this website, you accept and agree to be bound by these Terms of Service (“Terms of Service”) and all applicable laws, rules, and regulations associated with your use of the Services. If you do not agree to the Terms of Service, you are not authorized to use this website or the Services. These Terms of Service also apply to any co-branded or framed version of this website.

Your use of certain materials and features of this website and/or the Services may be subject to additional terms and conditions which are incorporated herein by reference and become part of the Terms of Service. By using those materials and features, you also agree to be bound by such additional terms and conditions. Unless explicitly stated otherwise, any new features that augment or enhance the current Services shall be subject to the Terms of Service.

This website is controlled and operated by Heave.co from its offices within the United States. Heave.co makes no representation that information or materials available on this website are appropriate or available for use in other locations, and access to this website from territories where its contents are illegal is prohibited. Those who choose to access this website from other locations do so at their own initiative and are responsible for compliance with applicable local laws.

  1. USER CONDUCT

You are authorized by Heave.co to access and use the Services, including the information on this website, solely for your personal, non-commercial use provided that you are at least 18 years of age. The information and materials displayed on this website may not otherwise be copied, transmitted, displayed, distributed, downloaded, licensed, modified, published, posted, reproduced, used, sold, transmitted, used to create a derivative work, or otherwise used for commercial or public purposes without Heave.co’s express prior written consent. Any use of data mining, robots or similar data gathering or extraction tools or processes in connection with this website, and any reproduction or circumvention of the navigational structure or presentation of this website or its content, is strictly prohibited. You agree not to use the Services, including this website, for any unlawful purpose.

In order to access certain features of this website you may be required to register. You are responsible for maintaining the confidentiality of your password and account and are fully responsible for all activities that occur under your password or account. You agree to immediately notify Heave.co in writing of any unauthorized use of your password or account or any other breach of security, and ensure that you exit from your account at the end of each session. Heave.co is not liable for any loss or damage arising from your failure to comply with this section. You agree not to modify the Services or use modified versions of the Services (except if modified by Heave.co), including for the purpose of obtaining unauthorized access to the Services. You agree not to access the Services by any means other than through the interface that is provided by Heave.co for use in accessing the Services.

  1. TELEPHONIC COMMUNICATIONS WITH HEAVE.CO AND PARTICIPATING DEALERS

You acknowledge that telephone calls to or from Heave.co or participating dealers may be monitored and recorded and you agree to such monitoring and recording. If you select text only when submitting your telephone number to a Heave.co participating dealer, your number will be masked to the dealer. Heave.co will have access to your text communications with the dealer using our services to help resolve any disputes, enforce text limitations using this service to respect your privacy and better tailor our services to you.

You verify that any contact information provided to Heave.co or a participating dealer, including, but not limited to, your name, mailing address, email address, your residential telephone number, and/or your mobile telephone number, is true and accurate. You verify that you are the current subscriber or owner of any telephone number that you provide.

You agree to indemnify, defend and hold Heave.co and participating dealers harmless from and against any and all claims, losses, liability, costs and expenses (including reasonable attorneys’ fees) arising from your voluntary provision of contact information (including a telephone number) that is not your own, and/or from your violation of any federal, state or local law, regulation or ordinance.

You acknowledge that by voluntarily providing your telephone number(s) to Heave.co or participating dealers, you expressly agree to receive prerecorded voice messages and/or autodialed calls or text messages related to pricing and offers, your account, any transaction with us, and/or your relationship with Heave.co or participating dealers. You also agree to be contacted at email and mailing addresses provided by you. Consent to receive automated marketing calls/texts is not a condition of purchasing or leasing any equipment or service. Calls or text messages may be sent by Heave.co or participating dealers even if your telephone number is registered on any state or federal Do Not Call list. You acknowledge that we may add to or withdraw dealers from our list at any time, and you consent to be contacted, as explained above, by these dealers notwithstanding the date of the start of your relationship with Heave.co. Your consent to be contacted applies to participating dealers that may have existed at the start of your relationship with Heave.co and that may thereafter be added to our participating dealers list. You acknowledge that you may incur a charge for calls or text messages by your telephone carrier and that neither Heave.co nor participating dealers are responsible for these charges.

You may opt-out of automated calls or text messages at any time. To opt-out of text messages, reply STOP to any text message you receive or follow other opt-out instructions included with the text message. You acknowledge and agree that you may receive a text message confirming your opt-out. To opt-out of automated telephone calls from Heave.co (but not text messages), call (888)-HEAVE-IT. To opt-out of receiving automated telephone calls or texts from participating dealers, please contact the dealer directly. Please allow up to thirty (30) days to process any opt-out request. Please note that if you opt out of automated calls, we reserve the right to make non-automated calls to you relating to your account, any transaction, or your relationship with us. Your obligations under this Section shall survive termination of these Terms of Service.

  1. PRIVACY

Heave.co is committed to respecting your privacy and protecting your personally identifiable information. Upon your request, Heave.co shares the information you enter on this website with participating dealers and/or renters and buyers in order to provide you with the information you requested, and with other service providers associated with the Services. Heave.co account data and certain other information about you and that you enter and/or we collect through your use of this website are subject to the Heave.co Privacy Policy at http://www.Heave.co/privacy. You understand that through your use of the Services, including this website, you consent to the collection and use (as set forth in the Heave.co Privacy Policy) of this information. Please review our Privacy Policy for further information on our data collection and use practices.

  1. SERVICES

All information provided on this website is for informational purposes only. Information displayed through the Services related to any equipment purchase or rental you may request, such as dealer cost, invoice, market average, MSRP, Heave.co Average, Heave.co Estimate, or Estimated Savings off MSRP, either reflects or is based on available data relevant to your equipment request and does not reflect a dealer's price for actual equipment consistent with your preferences. Any savings information that you may receive from a selling dealer or user, such as estimated savings, estimated price, total dealer fees, or estimated Heave.co dealer price is provided directly to you by the selling dealer or user, and is not provided by Heave.co. Neither the accuracy of information provided on this website, nor the availability, quality, or safety of equipment, is guaranteed or controlled by Heave.co, and Heave.co assumes no responsibility for the foregoing. You agree that any reliance on the information on this website is at your own risk. Any discrepancies or mistakes made regarding equipment availability, condition, pricing, and the like are not the responsibility of Heave.co and should be directed to the dealer or third party vendor. You are encouraged to thoroughly review any documents you are asked to sign at the time of purchase or lease of equipment or of other products or services. We do invite you to bring to our attention any material on our website that you believe to be inaccurate; please forward a copy of such material and your reasons for your belief to feedback@Heave.co.

By using the Services, you acknowledge and agree that participating dealers may not have in inventory equipment that exactly matches any equipment you may request on the website, and certain models or configurations may not be available. Your dealer will confirm equipment availability, including available options, from actual inventory. Each dealer sets and controls its own pricing. You may negotiate the purchase price directly with the dealer, and Heave.co plays no role in that negotiation. The savings information communicated directly to you by a selling/rental dealer for equipment consistent with the preferences expressed in any equipment you may configure may change if the actual in-stock equipment that you choose to buy or rent differs from the configuration of your online equipment request. Used equipment is subject to prior sale.

For the avoidance of doubt, Heave.co is solely a research and communications platform. Heave.co is not an equipment seller, renter, supplier, dealer, broker, or agent for equipment sellers or dealers, nor a provider of, or broker or agent for, other equipment-related products or services offered by third parties. Heave.co receives a fee from the participating dealers or third-party service providers in connection with the Services.

  1. NO COMMERCIAL USE OF SERVICES

You agree not to reproduce, duplicate, copy, sell, trade, resell or exploit for any commercial purposes, any portion or use of, or access to, the Services.

  1. RIGHT TO DENY ACCESS AND TO MODIFY THE SERVICES

Heave.co reserves the right to deny use of, or access to, the Services to you and/or anyone for any or no reason. Heave.co also reserves the right at any time and from time-to-time to modify or discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice. You agree that Heave.co shall not be liable to you or to any third party for any modification, suspension or discontinuance of the Services (or any part thereof).

  1. INDEMNIFICATION

You will indemnify, defend and hold harmless Heave.co and its subsidiaries, affiliates, partners, officers, directors, managers, members, employees, and agents (collectively, “Heave.co Entities”) from all claims, whether actual or alleged (collectively, “Claims”), that arise out of or in connection with a breach of these Terms of Service, use of the Services, including any content you submit, post, transmit, modify or otherwise make available through the Services, and/or any violation of law and/or the rights of any third party. You are solely responsible for defending any Claim against a Heave.co Entity, subject to such Heave.co Entity’s right to participate with counsel of its own choosing, at its own expense, and for payment of all judgments, settlements, damages, losses, liabilities, costs, and expenses, including reasonable attorney fees, resulting from all Claims against a Heave.co Entity, provided that you will not agree to any settlement that imposes any obligation or liability on a Heave.co Entity without its prior express written consent.

  1. DISCLAIMER OF WARRANTIES

THE SERVICES, INCLUDING ALL INFORMATION AND CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO THE SERVICES, THIS WEBSITE OR ANY THIRD-PARTY WEBSITE, PRODUCT, OR SERVICE LINKED TO OR FROM THIS WEBSITE, ARE PROVIDED “AS IS” WITHOUT WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TIMELINESS, AND NONINFRINGEMENT. IN ADDITION, HEAVE.CO DOES NOT WARRANT AGAINST DEFECTS IN ANY EQUIPMENT, AND DOES NOT MAKE ANY WARRANTY OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING REPRESENTATIONS, PROMISES, OR STATEMENTS AS TO THE CONDITION, FITNESS, OR MERCHANTABILITY OF ANY EQUIPMENT OR SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM HEAVE.CO OR THROUGH OR LINKED FROM THE SERVICES SHALL CREATE ANY WARRANTY EXPRESS OR IMPLIED. Heave.co is not responsible for making repairs to any equipment. If you have complaints or concerns about defects or repairs, please contact the dealer, seller, or manufacturer directly.

  1. LIMITATION OF LIABILITY; WAIVER

IN NO EVENT SHALL THE HEAVE.CO ENTITIES BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, OR EXEMPLARY DAMAGES, INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE OF DATA, INFORMATION, AND/OR CONTENT, OR OTHER INTANGIBLE LOSSES ARISING OUT OF, OR IN CONNECTION WITH THE SERVICES, INCLUDING ALL INFORMATION AND CONTENT ON OR OTHERWISE RELATED IN ANY WAY TO THIS WEBSITE OR ANY THIRD-PARTY WEBSITE, PRODUCT, OR SERVICE LINKED TO OR FROM THIS WEBSITE, OR ANY EQUIPMENT REFERENCED THEREIN. WITHOUT LIMITING THE FOREGOING, ANY INFORMATION AND CONTENT DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SERVICES IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR AND HEREBY WAIVE ANY AND ALL CLAIMS AND CAUSES OF ACTION WITH RESPECT TO ANY DAMAGE TO YOUR COMPUTER SYSTEM, INTERNET ACCESS, DOWNLOAD OR DISPLAY DEVICE, OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH INFORMATION AND CONTENT. YOUR SOLE AND EXCLUSIVE REMEDY FOR DISSATISFACTION WITH ANY SERVICE AND/OR THIS WEBSITE IS TO STOP USING THE SERVICE AND/OR WEBSITE.

YOU HEREBY IRREVOCABLY WAIVE ANY CLAIM (WHETHER FOR INJURY, ILLNESS, DAMAGE, LIABILITY AND/OR COST) AGAINST THE HEAVE.CO ENTITIES ARISING OUT OF YOUR USE OF OR INABILITY TO USE, OR IN CONNECTION WITH, THE SERVICES, INCLUDING ANY INFORMATION AND CONTENT ON THIS WEBSITE OR ANY THIRD-PARTY WEBSITE, PRODUCT, OR SERVICE LINKED TO OR FROM THIS WEBSITE, INCLUDING ANY CONTENT YOU PROVIDE TO THIRD PARTIES (INCLUDING PERSONALLY IDENTIFIABLE INFORMATION).

  1. EXCLUSIONS AND LIMITATIONS

SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES, OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE EXCLUSIONS AND LIMITATIONS MAY NOT APPLY TO YOU.

  1. NOTICE

Heave.co may provide you with notices by email, regular mail, SMS, MMS, text message, postings on the Services/website, or other reasonable means now known or hereafter developed. You acknowledge and agree that Heave.co will have no liability associated with or arising from your failure to maintain and supply Heave.co with accurate contact information about yourself, including your failure to receive important information and updates about the Services or this website.

  1. TRADEMARK INFORMATION AND INTELLECTUAL PROPERTY

You agree that all of Heave.co’s trademarks, trade names, service marks, logos, brand features, and product and Service names are trademarks and the property of Heave.co, and that you will not display or use any of the foregoing without Heave.co’s prior written approval in each instance.

You agree that the Services contain proprietary information protected by applicable intellectual property and other laws in favor of Heave.co. You further agree that content and information presented to you through the Services is protected by copyrights, trademarks, service marks, patents and/or other proprietary rights and laws.

  1. COPYRIGHT OR INTELLECTUAL PROPERTY COMPLAINTS

Heave.co respects the intellectual property of others. If you believe that your work has been copied in a way that constitutes copyright infringement, or your intellectual property rights have been violated, please provide us with the following information:

a physical signature of the person authorized to act on behalf of the owner of the copyright or other intellectual property right;

a description of the copyrighted work or other intellectual property that you claim has been infringed or violated;

a description of where the material that you claim is infringing is located on our website;

your address, telephone number, and email address;

a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright or intellectual property owner, its agent, or the law;

a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright or intellectual property owner or authorized to act on the copyright or intellectual property owner's behalf.

Please send the foregoing information to our agent for notice of claims of copyright or other intellectual property infringement at:

Copyright Agent

Heave LLC

Attn: Legal Department

4707 W Clear Avenue

Tampa, Florida 33629

  1. GENERAL INFORMATION

These Terms of Service may be amended from time to time without notice in Heave.co’s sole discretion. Any changes to the Terms of Service will be effective immediately upon the posting of the revised Terms of Service on this website. The Terms of Service, including any agreements and terms incorporated by reference herein, constitute the entire agreement between you and Heave.co and govern your use of the Services, including this website, and supersede any prior version of these Terms of Service between you and Heave.co with respect to the Services. You agree that no agency relationship is created between you and Heave.co as a result of these Terms of Service or your access to and/or use of the Services. The failure of Heave.co to exercise or enforce any right or provision of the Terms of Service shall not constitute a waiver of such right or provision. If any provision of the Terms of Service is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the Terms of Service remain in full force and effect. You agree that, except as otherwise expressly provided in these Terms of Service, there shall be no third-party beneficiaries to these Terms of Service. The headings in these Terms of Service are for convenience only and have no legal or contractual effect. As used in these Terms of Service, the word “including” is a term of enlargement meaning “including without limitation” and does not denote exclusivity, and the words “will,” “shall,” and “must” are deemed to be equivalent and denote a mandatory obligation or prohibition, as applicable. All definitions apply both to their singular and plural forms, as the context may require. Please report any violations of the Terms of Service to violations@Heave.co. Questions regarding these Terms of Service should be sent to legal@Heave.co.

THE HEAVE.CO ENTITIES DO NOT MAKE ANY REPRESENTATION OR WARRANTY THAT YOU LOCATE ACCEPTABLE EQUIPMENT FOR PURCHASE OR RENTAL, OBTAIN AN ACCEPTABLE PRICE FOR YOUR EQUIPMENT NEED, RECEIVE LEGITIMATE INQUIRIES OR SOLICITATIONS FROM QUALIFIED DEALERS, OR RECEIVE ANY INQUIRIES REGARDING YOUR EQUIPMENT NEED.

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Arbitration Agreement

Heave LLC Arbitration Agreement

This Arbitration Agreement was last updated on 17 SEP 2020

Please read this agreement carefully—it affects your rights.

By your access to or use of the Heave.co websites or mobile applications (collectively, the “Website”) and/or any service offered through them or referenced in the Terms of Service, You (defined below) and Heave.co (defined below) agree to the terms and conditions of this Arbitration Agreement (“Arbitration Agreement” or “Agreement”).

To expedite resolution of disputes and control related costs, You and Heave.co agree that any past, present, or future legal or equitable Claims (defined below) will be resolved as follows:

  1. Informal Resolution.
  2. We will first try to resolve any Claim informally. Accordingly, neither You nor Heave.co may start a formal proceeding for at least 60 days after one of us notifies the other of a Claim in writing, consistent with the Notice and Demand Procedure below.
  3. If You intend to file a demand for arbitration pursuant to this Arbitration Agreement, in order to give Heave.co an opportunity to informally resolve your Claim, You must first send to Heave.co, by certified mail, a written Notice of Dispute (“Notice”). The Notice should be addressed to Heave.co Arbitration, Attn: Legal Department, 4707 W Clear Avenue, Tampa, Florida 33629.
  4. Any statute of limitations will be tolled (extended) for the time period from the date of mailing of your Notice of Dispute and the date that Heave.co responds to Your Notice of Dispute. If Heave.co and You do not reach an agreement to resolve the Claim within 60 days after the Notice is received, or immediately upon Heave.co’s denial of Your Claims, You or Heave.co may commence an Arbitration proceeding by filing a Demand for Arbitration (“Demand”). During the Arbitration, the amount of any settlement offer made by Heave.co or You shall not be disclosed to the Arbitrator until after the Arbitrator determines the amount, if any, to which Heave.co or You is entitled.
  5. Formal Resolution.
  6. If we cannot resolve a Claim informally, and if either of us wishes to pursue the dispute, then we will formally resolve any Claim that either of us asserts under the following agreed procedure and rules.
  7. Except as noted in Section 2.k, Heave.co and You agree that any and all Claims (defined below) shall be submitted to final, binding, and confidential Arbitration before National Arbitration and Mediation (NAM), 2151 Chianti Place, Palm Harbor, Florida 34683 - Tel: (727)-474-2151 (www.namadr.com), in accordance with the applicable NAM Arbitration Rules (“NAM Rules”). Our agreement to arbitrate is retroactive in effect and applies to all Claims regardless of whether they accrued before or after this Agreement went into effect.
  8. Our agreement to submit all Claims to arbitration includes all disputes or questions about arbitrability, all claims for temporary, injunctive, or declaratory relief, and all claims arising under any federal or state statute, rule, or regulation. Arbitration means that You and Heave.co waive your right to a jury trial. We both understand that arbitration is a dispute-resolution process that is different from filing a lawsuit in court and that by agreeing to submit all Claims to arbitration, we are each giving up our right to file a lawsuit and our right for a jury to decide our case. You can opt out of the arbitration by following the instructions in Section 3.
  9. If either party files an arbitration, You and Heave.co agree that both parties will keep all aspects of the arbitration strictly confidential, except where disclosure is required by law (including regulatory reporting, or tax reporting, to any governmental agency or entity). Otherwise, we agree not to disclose to any other person facts about the arbitration proceedings, documents filed in the proceedings, or award and rulings in the proceedings. This provision will not preclude either party from moving to vacate or confirm an arbitral award in court, but both parties agree to use best efforts to file an arbitral award or other order under seal in court proceedings.
  10. HEAVE.CO AND YOU AGREE THAT CLAIMS MAY ONLY BE BROUGHT IN AN INDIVIDUAL CAPACITY AND IN THE NAME OF AN INDIVIDUAL PERSON OR ENTITY AND THAT CLAIMS MUST PROCEED ON AN INDIVIDUAL AND NON-CLASS AND NON-REPRESENTATIVE BASIS. THAT MEANS YOU AND HEAVE.CO WAIVE THE RIGHT TO BRING A CLASS ACTION AND CANNOT ARBITRATE ANY CLAIM AS A REPRESENTATIVE OR NON-REPRESENTATIVE MEMBER OF A CLASS. HEAVE.CO AND YOU AGREE THAT CLAIMS OF TWO OR MORE PERSONS MAY NOT BE JOINED OR CONSOLIDATED IN THE SAME ARBITRATION UNLESS ARISING FROM THE SAME TRANSACTION. FURTHERMORE, HEAVE.CO AND YOU AGREE THAT NEITHER YOU NOR HEAVE.CO MAY PURSUE THE CLAIMS IN ARBITRATION AS A CLASS OR COLLECTIVE ACTION, PRIVATE ATTORNEY GENERAL ACTION OR OTHER REPRESENTATIVE ACTION. CLAIMS MAY NOT BE PURSUED IN ANY COURT OTHER THAN TO ENFORCE THE ARBITRATOR’S AWARD. THE ARBITRATOR SHALL HAVE THE AUTHORITY TO AWARD RELIEF ONLY ON AN INDIVIDUAL AND NON-CLASS AND NONREPRESENTATIVE BASIS. ACCORDINGLY, YOU AND HEAVE.CO AGREE THAT THE NAM RULES FOR CLASS ACTIONS DO NOT APPLY TO OUR ARBITRATION.
  11. Heave.co and You agree that Your access to or use of the Website and/or any service offered through it has an effect on interstate commerce. Therefore, Heave.co and You agree that this Arbitration Agreement shall be construed and interpreted under the Federal Arbitration Act, 9 U.S.C. Section 1, et. seq.
  12. You acknowledge and agree that You voluntarily and knowingly entered into this Arbitration Agreement, and chose to use the Heave.co Website and/or the services offered through it rather than companies that offer similar services and who may not have an arbitration agreement.
  13. In the event this Agreement conflicts with the Heave.co Terms of Service, the NAM Rules, or any other agreement, this Agreement shall control.
  14. Arbitrator and Qualifications. You and Heave.co agree that Claims submitted to Arbitration shall be decided in a single arbitration before a single Arbitrator who must be on the NAM National Roster of Commercial Arbitrators and selected in accordance with the NAM Rules. The Arbitrator must also be a retired state court or federal court judge of the state in which You reside. The Arbitrator shall have the authority to award the same damages and all other relief that a court can award. The Arbitrator’s decision is final and binding on all parties and may be enforced in a court of competent jurisdiction.
  15. Arbitration Rules. The applicable NAM Rules shall apply to the arbitration of Claims except as expressly provided in this Agreement, including that:
  16. Small Claims Court Option. For Claims that do not exceed the jurisdictional limit of small claims court, Heave.co or You may bring Claims in small claims court instead of arbitration. The mandatory venue for small claims court is Hillsborough County, Florida. The rules of the small claims court shall apply.
  17. Claims seeking $75,000 or less. After Heave.co receives the required Demand for Arbitration filed with the NAM, Heave.co will reimburse You for Your payment of the filing fee. The Arbitration will take place in Hillsborough or Pinellas County, Florida, unless otherwise agreed in writing by Heave.co and You. Heave.co waives any right to recover attorney fees or costs from You except as expressly provided in this Agreement. If the Notice procedure above was followed and: a) Heave.co did not make a written offer to settle the dispute before an arbitrator was selected, and the Arbitrator awards You any relief on the merits; or b) after finding in Your favor in any respect on the merits of Your claim, the Arbitrator issues You an award that is greater than the value of Heave.co’s last written settlement offer made before an arbitrator was selected, then Heave.co will: i) pay You the amount of the Arbitrator’s award or $7,500, whichever is greater (“Alternative Payment”); and ii) pay Your attorney, if any, the amount of reasonable attorneys’ fees incurred by You, and reimburse any expenses (including expert witness fees and costs) that Your attorney reasonably accrued for investigating, preparing, and pursuing Your Claim in Arbitration (“Attorney Premium”).
  18. Claims seeking $15,000 or less. In addition to sub-paragraph “2” above, You may choose whether the Arbitration proceeds in person, by telephone, or based only on written submissions.
  19. Claims seeking in excess of $500,000. Payment of all fees will be governed by NAM Rules. The Arbitration will take place in Hillsborough or Pinellas County, Florida, unless otherwise agreed in writing by Heave.co and You. The Federal Rules of Evidence shall apply unless otherwise agreed to in writing by Heave.co and You.
  20. Arbitrator’s Authority. The Arbitrator shall issue a written decision sufficient to explain the essential findings and conclusions on which the award is based (a reasoned decision). The Arbitrator has the authority to make rulings and resolve all disputes concerning Claims, and the rights of the Parties (if any) to the payment and reimbursement of arbitration and attorneys’ fees, costs, expenses, and the Alternative Payment and the Attorney Premium described above. The Arbitrator has the authority to award any form of individual relief that a court would have the authority to award, including equitable relief, and other relief available under applicable law. The Arbitrator is bound by the terms of this Agreement. All issues are for the Arbitrator to decide, including all issues of arbitrability such as the scope and enforceability of the Arbitration Agreement.
  21. Statute of Limitations. The Arbitrator shall apply a statute of limitations to all Claims as though such Claims were brought in a court of competent jurisdiction, subject to the tolling provision above.
  22. Arbitration Fees. Except as otherwise provided in this Agreement, Heave.co will pay all NAM filing, administration, and arbitrator fees for any Arbitration initiated in accordance with the Notice Procedure above. Current filing fees are available at www.namadr.com. If, however, 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 such fees will be governed by the NAM Rules. In such case, You agree to reimburse Heave.co for all monies previously disbursed by it that are otherwise Your obligation to pay under the NAM Rules.
  23. Attorney Fees and Costs. The right to attorney fees and expenses provided under this Agreement is in addition to any right to attorney fees You may have under applicable law. However, You may not recover duplicative awards of attorney fees or costs. 
  24. Your Right to Opt-out of Arbitration Agreement.

If you do not wish to be bound by this Arbitration Agreement, You must timely notify Heave.co by sending an email to arbitrationoptout@Heave.co.com and providing the following information in Your email: (1) Your name; (2) Your address; (3) Your phone number; and (4) a clear statement that You wish to opt out of this Arbitration Agreement. To be effective, the opt-out notice must be emailed no later than 30 days after the date You become bound by the Arbitration Agreement. Please note that You will continue to be bound by any prior arbitration agreement You did not opt-out of and any arbitration agreement that otherwise governs Your relationship with Heave.co.

  1. Severability.

A court may sever any portion of Section 2 that it finds to be unenforceable, except for the prohibitions on class, representative, and private attorney general arbitration.

  1. You and Heave.co agree that any arbitration ruling allowing class action arbitration or allowing any claimant to seek relief for other persons in a representative capacity would be contrary to Your and Heave.co’s intent and would require immediate judicial review of such ruling.
  2. In the event that a court allows any litigation of a dispute to go forward notwithstanding this arbitration agreement (which demonstrates the parties’ intent to arbitrate all claims), Heave.co and You agree to waive rights to a trial by jury with respect to that litigation, and the judge will be the finder of fact.
  3. Survival.

This Arbitration Agreement survives any termination of the Terms of Service, this Agreement, and Your relationship with Heave.co.

  1. Definitions.

Unless otherwise stated in this Agreement, any definitions used in the Terms of Service will apply herein. For purposes of this Agreement:

“Heave.co” means Heave LLC and its employees, agents, members, managers, and other representatives, and its subsidiaries, insurers, parent, and affiliates, and each of their respective employees, agents, and other representatives.

“You” means you and all other users of your Heave.co account.

“Claims” means any and all disputes, claims and/or causes of action arising out of or relating in any way to Your dealings or relationship with Heave.co including, but not limited to, Your access to or use of the Heave.co Website, and/or any service offered through it, advertising on the Website, and/or Your purchase of any vehicle in connection with the use of Your Heave.co account. The foregoing definition of Claims specifically includes any dispute with Participating Dealers and other third parties that arise out of or relates in any way to Your relationship or interaction with Heave.co, and in this regard Participating Dealers and any such other third parties are third-party beneficiaries of this Arbitration Agreement.

“Participating Dealers” means any new and/or used equipment sales and rental dealer that participates in the Heave.co network.

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