|IronPlanet, Inc. 4695 Chabot Drive, Pleasanton, California USA 94588-2756||Tel: |
This Auction Seller Agreement (the "Agreement") is by and between you ("Seller" or "you") and IronPlanet, Inc., a Delaware corporation ("IronPlanet" or "we") in which you authorize and instruct IronPlanet to sell certain equipment or other items (collectively "Equipment") set forth below through the IronPlanet website currently located at http://www.ironplanet.com (the "IronPlanet Site" or "Site" or "Service"). All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in IronPlanet's standard Terms and Conditions, which are located on IronPlanet's website at http://www.ironplanet.com/pop/terms.jsp and which you read and agreed to as a condition of registration.
In consideration of the mutual promises and covenants, you agree to abide by the following terms and conditions:
1. Equipment Listing Period. If you desire to use the Site or Service to sell a piece of Equipment, you must provide certain information related to the Equipment during the Equipment Listing process. You agree that during the period commencing at the time of the Equipment Listing and until (i) such Equipment is sold on the IronPlanet Site or (ii) you withdraw the Equipment from the IronPlanet Site (the "Auction Period") the IronPlanet Site will be the exclusive listing for such sale. Notwithstanding the foregoing, the minimum Auction Period will be no less than eight weeks from the time of Equipment Listing. You hereby appoint IronPlanet as an agent for the sale of the Equipment, and IronPlanet hereby accepts the appointment and agrees to act as such agent under the terms and conditions specified in this Agreement. You agree to remove any listings of such Equipment from other auctions and any other public sources during the Auction Period.
2. Featured Auctions. If you list your Equipment on the site in a Featured Auction, you agree to the following terms and conditions:
3. Daily Marketplace. If you list your Equipment on the Site in the Daily Marketplace, you agree to the following terms and conditions:
4. Equipment Inspections. You agree to permit IronPlanet or its authorized representatives to test and inspect at a time and place specified by IronPlanet in the IronPlanet Equipment Listing Request Form each piece of Equipment prior to being listed for auction on the Site. All inspection services rendered by IronPlanet shall be subject to the Inspection Terms and Conditions on the Site. IronPlanet agrees to produce an inspection report ("Inspection Report") for each piece of Equipment, which will include photographs of the Equipment. The data and information from the Inspection Report will be included in the detailed listings of the Equipment ("Listing Details") on the Site.
5. Inspection Process. If you choose to have your Equipment inspected, you agree to allow IronPlanet to inspect the Equipment at a time and location to be determined by IronPlanet and you. You may be required to provide certain support functions to IronPlanet during the inspection of the Equipment including without limitation providing an Equipment operator and supplying proper safety equipment and procedures for IronPlanet to inspect the Equipment.
6. Inspection Report. The Inspection Report is the sole and exclusive property of IronPlanet. Except as expressly stated in this Agreement, nothing in this Agreement shall be deemed to grant to any other party, by implication, estoppel or otherwise, license rights, ownership rights or any other intellectual property rights in IronPlanet's Inspection Report. You cannot use the Inspection Report for any purpose other than for using the Services provided by IronPlanet on the Site. The Inspection Report may not be displayed, published, sold, reproduced, disseminated or otherwise used by you without the prior written approval from IronPlanet except as expressly provided in this Agreement.
7. Right to Refuse Inspection. IronPlanet reserves the right to refuse to inspect any piece of Equipment being registered for listing on the Site.
8. Uninspected Equipment. If you choose not to have your Equipment inspected, you will be responsible for the provision and content of all descriptions and photos of your Equipment. In addition, you will be required to respond to questions by email from interested potential Buyers. IronPlanet will not list for auction uninspected Equipment located outside the United States or Canada. In addition, IronPlanet reserves the right to refuse to list for auction any piece of uninspected Equipment.
9. Listing Details Content. The information you provide during the Equipment Listing process, combined with the Inspection Report will constitute the Listing Details for the Equipment. You agree to fully disclose completely and accurately to IronPlanet all information of which you are aware relating to the Equipment. The Listing Details may only include text, maintenance records, graphics and pictures supplied to IronPlanet by you or from the Inspection Report that describe the Equipment. The Listing Details may not be used by you as a means of communication with one or more other users and may not be used to advertise or promote your other goods or services generally. You will not link directly to, or include descriptions of, other items you have for sale.
10. Restrictions of Use. From the time of Equipment Listing and until the Buyer removes the Equipment from your location (or you withdraw the Equipment from the IronPlanet Site as authorized herein), you may not operate, lease, rent, modify, use or allow the Equipment to be altered in any way which might affect the accuracy of the Listing Details (including without limitation the Inspection Report). If you fail to comply with this restriction, you will incur penalties, which are set forth on the IronPlanet Site. If, prior to the Equipment being sold in any IronPlanet auction, IronPlanet discovers that the Equipment has been altered, you agree to pay to IronPlanet the appropriate removal penalty: Removal Penalty Prior to Featured Auction Close or Removal Penalty Prior to Daily Marketplace close. If IronPlanet discovers that you have violated this section after the Equipment has been sold in any IronPlanet auction, in addition to any other rights and remedies IronPlanet may have, you agree to pay to IronPlanet an unauthorized equipment use penalty ("Unauthorized Equipment Use Penalty"), title and/or ownership will not transfer to the Buyer and you shall not receive any of the proceeds associated with the sale.
11. Changes to Listing Details. If at any time prior to Auction Opening Time the Equipment is altered or modified in any way which might affect the accuracy of the Listing Details (including without limitation the Inspection Report), in order to proceed with an auction you will incur penalties, which are set forth on the IronPlanet Site. If the Equipment was previously inspected, you must have the Equipment re-inspected and pay IronPlanet a re-inspection fee ("Re-inspection Fee "). If the Equipment was not inspected, you must supply updated Listing Details to IronPlanet and pay IronPlanet a second Listing Fee.
12. Post Sale Re-inspection. IronPlanet reserves the right, in its sole discretion, to re-inspect any Equipment after the Auction Closing Time at no additional cost to you.
13. No Price Manipulation. You may not manipulate the price of listed Equipment by any means, including but not limited to using secondary accounts, colluding with third parties or bidding on your own Equipment. You may not use an alias to place bids on any Equipment you are selling, either directly or indirectly, for any reason. If you fail to comply with this restriction, in addition to any other rights or remedies IronPlanet may have, IronPlanet may withdraw the Equipment from auction and you will be barred from future use of the IronPlanet Site.
14. Seller Options after Buyer Default. If the winning bidder does not make payments in accordance with the payment schedule set forth in the Terms and Conditions, the winning bidder is considered in default ("Buyer Default"). As the seller of any piece of Equipment subject to Buyer Default, you may elect any one of the following options after IronPlanet notifies you of such Buyer Default.
15. Compliance With Laws. Whenever you list Equipment for sale, you are certifying that (i) you own all right, title and interest to the Equipment, you have the legal right in your jurisdiction to sell such Equipment and the equipment is free of any and all liens or other encumbrances, except as otherwise disclosed by Seller to IronPlanet in writing as set forth in Section 19 of this Agreement; (ii) the sale of such Equipment is not subject to any United States or United Nations embargo or banned by any United Nations resolutions; (iii) you have disclosed all restrictions, laws or regulations regarding the sale of such Equipment and (iv) the Equipment does not require a license as described by the Department of Commerce.
16. Prohibited Items. You may not list goods the possession or use of which is illegal or the sale of which would not comply with any applicable law, rule or regulation. IronPlanet reserves the right, in its sole discretion, to refuse to list any piece of Equipment at any time. IronPlanet reserves the right, in its sole discretion, to withdraw any listing from the Site or cancel any transaction that it deems to be suspicious or fradulent in nature. IronPlanet will cooperate with authorities to prosecute to the fullest extent of the law any Seller engaged in fraudulent activities while selling Equipment using our marketplace Site and Service.
17. Warranties. As a Seller, you represent and warrant that: (1) the Equipment is in a safe condition and free of hazardous materials; (2) all Listing Details you provide and all answers to questions from IronPlanet shall be truthful, accurate and complete, and shall accurately represent the conditions of the Equipment until removed from your location by the Buyer; (3) no Equipment you list on the Site shall be fraudulent, stolen or counterfeit; (4) the Equipment is in compliance with applicable US EPA or OSHA requirements; (5) and you own all right, title and interest in and to the Equipment, the Equipment is free and clear of all liens or other encumbrances, except as otherwise disclosed by Seller to IronPlanet in writing as set forth in Section 19 of this Agreement, and you otherwise have the right to list the Equipment for sale on the Site and to sell the Equipment through the Service. You shall be solely liable for any inaccuracies, errors or omissions in the Listing Details provided or omitted by you. Any brand name or other indication of origin or manufacture included with the Listing Details must be completely accurate and not capable of misleading any Buyer or potential Buyer. You agree to indemnify and save harmless IronPlanet from and against any and all such claims, suits, proceedings, costs, expenses, losses, liabilities, and damages arising out of or relating to the Equipment, or the auction or sale thereof, including but not limited to, breach of the Seller warranties and covenants set forth in this Section above or elsewhere herein. If a third party brings a claim, suit or proceeding against IronPlanet arising out of or relating to the Equipment, including without limiation its condition, or the auction or sale thereof, Seller with provide IronPlanet with full information and cooperation in connection therewith. In addition, if a Buyer takes legal action against you arising from, but not limited to, the Seller warranties listed above, IronPlanet may support such action by providing the Buyer with any relevant documentation or information.
18. Delivery of Title and Other Documentation for Department of Motor Vehicle On-Road Registration. Prior to any auction period, you shall deliver to IronPlanet documents evidencing your title to the Equipment, including the original Department of Motor Vehicle title, manufacture certificate of origin and any and all other documents required to transfer title of the Equipment to any Buyer, where ownership of the Equipment or any part thereof is capable of being or required to be registered. Prior to delivery to IronPlanet, you shall properly endorse these titles and documents either by your signature or a Power of Attorney as necessary to permit any Buyer to register ownership of the Equipment. In addition, any item listed on the IronPlanet site for which ownership of the Equipment or any part thereof is capable of being or required to be registered, will be subject to a title fee ("On-Road Title Transfer Processing Fee") which is set forth on the IronPlanet Site.
19. Ownership Certification, Verification and Lien Searches. At the time of listing Equipment, Sellers are responsible and obligated to make full representation and disclosure for all liens, adverse claims and other title encumbrances and third party interests that may exist on their Equipment to IronPlanet in writing. Further, the Seller unconditionally gives IronPlanet authorization to contact and verify with their creditors all outstanding encumbrance balances that may affect or compromise the assignment of the Equipment to a new Buyer.
You also represent and warrant to IronPlanet and the buyer that you have good right to sell the same and that good and marketable title to such Equipment will, at such time the Equipment is sold, be conveyed to such buyer free and clear of all liens including without limitation any tax liens, encumbrances and adverse claims. IronPlanet at its sole discretion and prior to Equipment auction may ask the Seller for additional funds to repay their creditor obligations when Seller net proceeds are not estimated to be sufficient to extinguish the Seller obligation.
The Seller shall pay IronPlanet upon demand all of IronPlanet's expenses and payments incurred in connection with any removal of any liens or the performance thereof, as the case may be, together with interst thereon at the rate of 10% per annum compounded daily. No such payment or performance by IronPlanet shall be deemed to waive breach by the Seller, or relieve the Seller, of its creditor obligations.
In its sole discretion, IronPlanet may independently carry out title and lien searches to investigate the existence of filed UCC financing statements on the Equipment that may compromise assignment of the Equipment to the new Buyer. IronPlanet may charge the Seller a lien fee for this verification ("Ownership Verification and Lien Search Fee").