|IronPlanet Limited, Suite 11, Plaza 212, Blanchardstown Corporate Park, Ballycoolin, Dublin 15, Ireland||Tel: |
Last revised January 20, 2011
It is recommended that new Buyers and Sellers read the full text of IronPlanet's Terms and Conditions below before Acceptance. At no time shall these key points, replace or modify in anyway IronPlanet's full Terms & Conditions.
10 Key Buyer Points: Buyer agrees
10 Key Seller Points: Seller agrees
The IronPlanet Limited website currently located at http://eu.ironplanet.com (the "IronPlanet Site" or "Site" or "Service") and other services offered herein including without limitation the auction services in the IronPlanet Featured Auctions ("Featured Auction") or IronPlanet Daily Marketplace ("Daily Marketplace" and collectively the "Auction" or "Auctions") for equipment and other items (collectively "Equipment") are provided by IronPlanet Limited ("IronPlanet" or "we") to you ("you" or "user") in your capacity as a seller of Equipment ("Seller") or a bidder for or buyer of Equipment ("Buyer") subject to the following terms and conditions (the "Terms and Conditions").
These Terms and Conditions shall apply to the Services available from the domain of http://eu.ironplanet.com. If you reside in the Republic of Ireland or another country that is a member of the European Union ("EU"), you are contracting with IronPlanet, an Irish limited liability company and these Terms and Conditions shall govern your use of the Services.
Acceptance of Terms. Before you attempt to buy or sell any Equipment through the Services and/or begin participating in or using the Site, IronPlanet requires that you read and accept the following Agreement. BY CHECKING ON THE SPACE NEXT TO THE "ACCEPT TERMS & CONDITIONS" TEXT, YOU HEREBY REPRESENT THAT YOU HAVE READ, UNDERSTOOD AND ACCEPT THESE TERMS AND CONDITIONS AND ALL AGREEMENTS INCORPORATED HEREIN BY REFERENCE. THERE SHALL BE NO BINDING CONTRACT BETWEEN YOU AND IRONPLANET UNTIL IRONPLANET HAS CONFIRMED RECEIPT OF YOUR ACCEPTANCE OF THESE TERMS AND CONDITIONS REGARDLESS OF THE METHOD IN WHICH IT IS DELIVERED TO IRONPLANET. If you choose not to accept these Terms and Conditions, you may not have full access to all services on the site. If you have any questions regarding these Terms and Conditions , please contact EuropeCare@ironplanet.com.
These Terms and Conditions are valid from October 21, 2008 and shall be effective upon acceptance by you.
Amendment. IronPlanet may, at its sole discretion, change, modify, add or remove any portion of the Terms and Conditions, in whole or in part, from time to time and at any time without notice to you, by posting such changes on the Site. The amended Terms and Conditions shall be effective immediately upon their posting the Site. Your continued use of the Site and the Service after the amended Terms and Conditions have been posted will constitute your agreement to the amended Terms and Conditions. For the avoidance of doubt, any sales arising from winning bids made prior to the amended Terms and Conditions being posted on the Site shall be governed by the Terms and Conditions in force at the time the winning bid was made.
These Terms and Conditions were last revised on July 23, 2010.
I. Participation Requirements
Capacity to Contract. These Services are available only to business users and not to individuals contracting in their capacity as a consumer. You represent and warrant that you are contracting in a business capacity or you are a business entity only and the Services will not be provided to you in your personal capacity as a consumer. If you are entering into these Terms and Conditions on behalf of a company, partnership or other legal entity, you represent and warrant that you have authority to bind that entity to the Terms and Conditions. Without limiting the foregoing, neither minors in any jurisdiction nor individuals or entities who IronPlanet has declined to deal with and have been suspended from participating in the Services (including any services provided by IronPlanet Inc.) may participate in IronPlanet's Services.
Registration. In order to participate in the Services, users must register with IronPlanet by completing a registration form and providing certain information to IronPlanet. When IronPlanet has notified a user that their registration form has been approved, such user shall become a "Registered User." You agree that such information shall be (and kept) current, complete and accurate. IronPlanet reserves the right to disapprove, suspend or terminate your registration for any reason, at its sole discretion, and to prohibit you from participating in the Services.
Login ID, Password and Security. During the registration process, you will select a login ID and password. You are solely responsible in all respects for all use of and for protecting the confidentiality of your login ID and password. You shall not transfer your IronPlanet login ID and/or account to another party without IronPlanet's consent. You agree to notify IronPlanet immediately of any unauthorized use of any login ID and password or any other breach of security regarding the Services. Remember you are responsible for all actions taken under your account name. If you lose control of your password you may be subject to legally binding actions taken through your account. Therefore, if your password is compromised, you should initiate a password change immediately.
IronPlanet's Relationship to Users. In the Auctions, IronPlanet is not a party to any transaction relating to Equipment and IronPlanet is only a venue for registered Sellers to list Equipment and for registered Buyers to make bids on such Equipment. IronPlanet is not a party to, nor involved in, the transactions between Buyers and Sellers. You will not hold IronPlanet responsible for the actions or inactions of Buyers or Sellers involved in transactions or for ensuring that they actually complete transactions and you shall not seek to name IronPlanet as a party in any related legal proceedings. You accept sole responsibility for the legality of your actions under laws applying to you and the legality of any items you list on the IronPlanet Site. In the event that IronPlanet shall be named in any legal proceedings brought against you by Buyer or Seller arising out of any actions or inactions taken by you, you agree to indemnify IronPlanet and its Affiliates (and the officers, directors, agents and employees thereof) in respect of any costs incurred by IronPlanet in defending such proceedings and shall seek to recover such costs, from the Buyer/Seller as applicable as part of such proceedings. "Affiliates" for the purpose of these Terms and Conditions means any entity, regardless of form, now or hereafter controlled by, controlling, or under common control with, IronPlanet, including, without limitation, any direct or indirect parent or subsidiary of IronPlanet, including IronPlanet.com, Inc. From time to time, IronPlanet may have title to Equipment listed on the Site and, in effect, act as a "Seller" in relation to such Equipment.
Release. In the event that you have a dispute with one or more users, you release IronPlanet and its Affiliates (and the officers, directors, agents and employees thereof) from claims (including for specific performance), demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Inspections. If you choose to have your Equipment inspected by IronPlanet ("Inspection") and an inspection report is produced ("Inspection Report"), you agree to abide by the terms and conditions associated with Equipment Inspections in the Inspection Terms and Conditions which are hereby incorporated by reference and located at http://eu.ironplanet.com/pop/inspect_terms_printable_eu.jsp.
Information Control. Whilst IronPlanet makes every effort to ensure the accuracy of Inspection Reports that it publishes on the Site it has no control over inaccurate or deceptive information provided to it by users which is made available through the Site, nor does IronPlanet have control over the quality, safety or legality of the Equipment listed. Users may find other users' information to be offensive, harmful, inaccurate or deceptive. Please use caution and common sense when using the Site.
CE Marking. Certain items sold at auction may require a CE-marking. It is the Seller's obligation to provide a valid CE Certificate to ensure the necessary measures are taken to certify the item as required under the Machinery Directive 98/37/EC (as amended) and other applicable legislation. All costs of certifying and upgrading imported equipment will be the responsibility of Buyer. Please contact the manufacturer, dealer, or their authorized representative within the EU for details.
II. Listing Equipment for Auction
Consignment Agreement. In order to auction your Equipment in a Featured Auction or in the Daily Marketplace, you agree to abide by the terms and conditions in the Auction Consignment Agreement which is hereby incorporated by reference and located at http://eu.ironplanet.com/pop/consignment_printable.jsp.
Auction Period. The Auction Period shall be determined by IronPlanet.
Buyer Conduct. You acknowledge and agree that once you have placed a bid, you may not retract the bid. In addition, sale price manipulation of any kind, directly or indirectly, by users is prohibited, including, but not limited to, bidding through a secondary account, agent or assigns on Equipment that you are selling, by communicating with other Buyers and Sellers, or by shill bidding.
Binding Offer to Purchase. IronPlanet will determine that you have placed the winning bid in relation to Equipment in a Featured Auction if you are the highest bidder at the close of the auction and have met the applicable opening bid. If IronPlanet determines that you have placed the winning bid, you are obligated to complete the transaction with the Seller unless the transaction is prohibited by law or by these Terms and Conditions. In relation to Equipment in the Daily Marketplace, IronPlanet will determine that you have placed the winning bid if you are the highest bidder at the end of the [Auction Period] and have met the applicable Reserve Price, if any. If IronPlanet determines that you have placed the winning bid, you are obligated to complete the transaction with the Seller unless the transaction is prohibited by law or by these Terms and Conditions. Buyers agree that bidding on the IronPlanet Site is the legal equivalent of an irrevocable offer and acknowledge that IronPlanet may have rights to compel Buyers to complete such transactions.
Void Bids. IronPlanet reserves the right to reject or void bids, whether winning or not, which it believes have not been made in good faith, are intended to manipulate the Auction process, or are prohibited by applicable law.
Winning Bids. IronPlanet is the one and only judge for the determination of winning bids, but IronPlanet shall not be liable for any errors or omissions relating to such determination, whether by IronPlanet or some other person.
Postponement and Cancellation. IronPlanet reserves the right to postpone or cancel any Featured Auction or Daily Marketplace listing, in its own discretion, without notice. IronPlanet will have no liability to prospective Buyers or Sellers as a result of any, cancellation or postponement of Auctions.
IV. Fees and Commissions
In consideration of IronPlanet providing the Services you agree to pay the following fees and/or commissions: Fees and commissions for Sellers are available at http://eu.ironplanet.com/jsp/s/howto/howtoSell.html?id=499; Fees for Buyers are located at http://eu.ironplanet.com/jsp/s/howto/howtoBuy.html?id=489, and are hereby incorporated by reference. IronPlanet may change its fees and commissions from time to time, but no such change shall apply retrospectively to Equipment already listed for an Auction.
V. Completion of Transactions
Liability for Equipment. Except where explicitly stated otherwise, title to and risk in the Equipment shall be and remain with the Seller (and not IronPlanet) until the Equipment is removed from the posted Equipment location (the "Posted Location") by the Buyer or the Buyer's designated transportation provider at which point, title and risk in the Equipment shall pass to the Buyer except where explicitly stated otherwise in these Terms and Conditions. Without prejudice to the foregoing and for completeness, it is hereby acknowledged and confirmed that title to and risk in the Equipment shall be and remain with the Buyer and/or the Buyer's designated transportation provider (and not IronPlanet) while in transport; and title to and risk in the Equipment shall be and remain with the Buyer once delivered to the designated location.
VAT. All bids and offers must be net of any VAT imposed with respect to the sale or purchase transaction. Buyers are liable for all such taxes for all purchases. IronPlanet will remit taxes to the Buyer upon receipt of either a valid exemption certificate or bill of lading. Accordingly, the amount of the successful bid in respect of any item of Equipment shall be exclusive of VAT and the price payable by the successful Buyer shall be increased by the VAT chargeable in respect of the supply of the Equipment to the Buyer. Similarly, all fees and other amounts payable to IronPlanet howsoever arising pursuant to these Terms and Conditions are calculated without regard to VAT so the amount payable by the user shall be increased by the amount of VAT which may be chargeable in respect of the relevant supply.
Self Billing. In order to participate in the Services, each Seller who would otherwise be entitled to raise a VAT invoice addressed to IronPlanet in respect of the sale of Equipment at an Auction agrees not to raise such an invoice and instead to accept a VAT invoice raised by IronPlanet on its behalf in relation to Equipment sold at Auction (ie a self-billed invoice).
IronPlanet shall promptly raise an appropriate 'self-billing' invoice after an item of Equipment is sold at Auction. Each Seller shall enter their VAT registration number on becoming a Registered User and shall immediately notify IronPlanet if that number ceases to be valid for any reason.
You shall indemnify IronPlanet and its Affiliates (and the officers, directors, agents and employees thereof) against any tax, cost or expense relating to your failure to satisfy any VAT chargeable in relation to a transaction. For the avoidance of doubt, it is your responsibility to satisfy yourself that any VAT charges or related obligations have been met in relation to a transaction.
Transaction Fee. All Equipment purchased at an Auction is subject to a fee on each unit which is to be paid by the Buyer ("Transaction Fee") in addition to the final closing auction price (the "Auction Price") in respect of the Equipment. The Transaction Fee is calculated as follows: a) for items with a final Auction Price of €2,000 or less, the Transaction Fee is 10% of the Auction Price; b) for items with an Auction Price of €2,001 or more, the Transaction Fee is 2.95% of the Auction Price, with a minimum payment of €200 and a maximum payment of €944. All fees, including this Transaction Fee, must be paid to IronPlanet prior to releasing any Equipment for pick-up and transport.
Payment and Payment Schedule. Full payment from the winning Buyer in the amount of the Auction Price, applicable taxes and the Transaction Fee (and the Default Payment (as defined below), if applicable) must be sent via wire transfer [in the currency in which the bid was made] to a secure payment account designated by IronPlanet ("Designated Client Account") within three (3) business days after the close of the Auction for the piece of Equipment. IronPlanet shall hold the Auction Price less all applicable taxes and commissions, fees and other payments due to IronPlanet on trust for the Seller. IronPlanet shall have no liability to pay the Seller if the winning Buyer defaults on payment.
Buyer Default. If, after three (3) business days after the close of the Auction for an item of Equipment, the Buyer does not make full payment in accordance with the payment schedule and terms set forth above, the Buyer is considered in default and shall be subject to a default payment which is set forth on the IronPlanet Site ("Default Payment"). In addition, the Buyer will be excluded from further use of the IronPlanet Site until the Default Payment is paid. The Buyer confirms that the Default Payment represents a genuine pre-estimate of the loss suffered by IronPlanet in the event of default by the Buyer under this clause.
Buyer Removal of Equipment. Buyers are responsible for contacting the seller atleast 24 hours before picking up a purchase, having the proper Transportation Authorization document when arriving to collect a purchase, loading and shipping the Equipment for transportation, unless otherwise noted in the Equipment listing. The Seller agrees to have the Equipment available for collection by the Buyer or its agent, complete with ignition key (if applicable), no later than one (1) business day after the conclusion of the Auction for the item of Equipment. Buyer may remove the Equipment from the Posted Location once the Auction Price (and any applicable taxes and fees) has been received into the Designated Client Account. If a Buyer has not removed the Equipment from the Posted Location within eight (8) business days after the close of the Auction for the item of Equipment, a Buyer will be responsible for directly paying the Seller any and all storage fees if levied by the Seller.
Notice to Buyer. IronPlanet may deem Buyer's failure to claim property within sixty (60) days following a final sales transaction to be evidence of Buyer's intent to abandon the property. Where Buyer fails to claim property within sixty (60) days following a final sales transaction, IronPlanet may take action that is adverse to Buyer's interest in the property, including but not limited to any appropriate steps under the law to dispose of the property. Depending upon the value of the property (as determined by the Final Selling Price before the buyer's transaction fee in the original auction), disposition of the property may consist of a public auction or some other means. For those items with a Final Selling Price of less than $500, IronPlanet will dispose of the item as we see fit. For those items with a Final Selling Price of $500 or greater, the item will be sold in a public IronPlanet auction. Once the item sells, IronPlanet will withhold 25% of the sale price, or $200, whichever is greater, to cover IronPlanet's administrative and sale execution costs, plus additional proceeds will be withheld to cover any outstanding sales taxes. The remaining proceeds will be provided to the original seller to be applied toward storage, insurance, maintenance, and administrative costs.
Freight and Transportation. The Buyer is responsible for all freight, shipping and other costs related to transporting the Equipment from the Posted Location, including but not limited to any costs associated with certificates and/or permits required to move the Equipment within or across state, province and/or country borders. Buyers are advised to have all such certificates and permits issued and completed prior to transporting the Equipment; otherwise Buyer may be subject to clearing, permit, and/or other payments if the Equipment is stopped and held at a port of entry to a state, province or country. All Buyers, regardless of their chosen transportation arrangement, must submit all necessary delivery and carrier selection information to the Site prior to picking-up the Equipment in order to generate Equipment release documents. Sellers shall not release and Buyers may not transport the Equipment until full payment (including any applicable taxes and Fees) has been received into the Designated Client Account.
Constructive Receipt. Once "Constructive Receipt" (as defined below) has occurred for any given item of Equipment, remittance of Net Proceeds (as defined below) to the Seller may occur. Any Claims (as defined in Section VI) subsequently filed by the Buyer under protection of IronClad Assurance shall be invalid, as set forth in Section VI. Constructive Receipt of Equipment occurs at the first occurrence of any of the following situations (unless a claim has been previously filed by the Buyer), provided full payment for the Equipment has been received into the Designated Client Account:
a) At the time the Equipment is removed from the Posted Location, if Buyer elects to transport the Equipment itself rather than use a common carrier. Buyers transporting the Equipment themselves are encouraged to examine the Equipment thoroughly prior to removing it from the Seller's location; or
b) At the time the Equipment is removed from the Posted Location if Equipment is self-transporting, such as a truck. Buyers of self-transporting Equipment are encouraged to examine the Equipment thoroughly prior to removing it from the Seller's location; or
c) Ten (10) business days after the close of the Auction for the Equipment; or
d) 24 hours after delivery of the Equipment to the Buyer's designated location, if purchased Equipment is sold from the same country that it is subsequently delivered into. (If the expiration of the 24-hour period falls on a Saturday, Sunday or a public holiday in that jurisdiction, Constructive Receipt will not occur until the sooner of a) the first non-weekend day or b) the first non-public holiday). If purchased Equipment is sold from European Union member states, Switzerland and Norway and is subsequently to be delivered outside of the European member states Switzerland and Norway, Constructive Receipt will occur 24 hours after Equipment delivery to the relevant [port of export]; or
e) At the time Buyer or Buyer's agent begins disassembly of Equipment from its as-inspected configuration, including disassembly for transport.
Remittance of Net Proceeds to Seller. IronPlanet shall remit the total Auction Price plus VAT, less any commission, fees and/or other payments and any amounts required to remove Encumbrances (as defined below) ("Net Proceeds") to the Seller for such Equipment within two (2) business days of the Buyer's receipt of any title documents (if applicable) and Constructive Receipt of Equipment by the Buyer. Payments by IronPlanet to Sellers will be made by electronic wire transfer. IronPlanet shall be entitled to all and any interest accruing on the Net Proceeds whilst they remain in the Client Trust Account.
VAT. means value added tax as provided for in the Value Added Tax Acts 1972-2008 and legislation supplemental thereto or in any primary or secondary legislation promulgated by the European Union or any official body or agency thereof and any tax similar or equivalent to value added tax imposed in any country other then the Republic of Ireland and any similar or turnover tax which replaces or is introduced in addition to any of the same.
Encumbrances. Sellers are responsible for providing Equipment which is free from any third party interests or equities of any nature, including any mortgage, charge, pledge, lien, security interest, title, retention, security agreement or arrangement or any agreement to create any of the foregoing or any other form of encumbrance ("Encumbrance") on or over the Equipment unless it is expressly agreed otherwise with IronPlanet. Notwithstanding the foregoing, IronPlanet reserves the right to carry out any title or other search against the Equipment and/or the Seller to investigate the title of the Seller to the Equipment and IronPlanet shall be entitled to charge the Seller a search fee in respect of such investigations. If the Seller fails to remove any Encumbrance affecting Equipment sold by it or fails to perform or comply with any other of its agreements contained in these Terms and Conditions, IronPlanet may at its sole discretion remove such Encumbrance using the Auction Price received from the Buyer or refund to the Buyer a portion or all of the Auction Price of the Equipment (less any commissions due to IronPlanet) and/or cancel the transaction. The Seller shall pay IronPlanet upon demand all of IronPlanet's expenses and fees incurred in connection with any removal of any Encumbrance together with interest 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 obligations under these Terms and Conditions.
Removal Payment Prior to Auction Close - Reserve not met. If, for any reason, the Seller withdraws a piece of Equipment listed on the IronPlanet Site after the time of Equipment listing but before either the reserve, if any, is met or the auction closes, the Seller agrees to pay IronPlanet a removal payment equivalent to the greater of (i) 2% of the Reserve Price (as set by the Seller) or (ii) €50 ("Removal Payment Prior to Auction Close"). If, for any reason prior to the Auction Close, IronPlanet removes Equipment from an Auction due to Seller's breach of the Auction Consignment Agreement, the Seller agrees to pay IronPlanet the Removal Payment Prior to Auction Close.
Default Payment- Reserve met. If, for any reason, the Seller withdraws a piece of Equipment (or causes IronPlanet to withdraw their Equipment in breach of the Seller Consignment Auction Agreement) listed in the Daily Marketplace after the Seller Reserve Price is met, the Seller agrees to pay IronPlanet a default payment ("Seller Default Payment") equivalent to the commission fee of the winning Auction Price as if the Equipment were sold, as well as the listing fee.
Seller Confirmation. The Seller acknowledges and confirms that the Removal Payment Prior to Auction Close and Seller Default Payment represent a genuine pre-estimate of the loss IronPlanet would suffer as a result of the Equipment being removed from the IronPlanet Site.
VI. IronClad Assurance
Each Inspection Report includes an inspection summary, detailed component evaluation and numerous photographs. Buyers should note that carefully reviewing all the available Equipment photographs offers a broader description of used Equipment condition than can be obtained from reading a short written comment.
IronPlanet's IronClad Assurance is based on knowledgeable Buyers who read the condition evaluation and also review each photograph contained within the Inspection Report carefully to make the best bidding and buying decision possible. As Equipment is used and ages, it becomes difficult to make comment on each scratch, dent or maintenance repair. Therefore, conditions that can be seen in the Equipment photographs stand as additions to the written narrative description. IronClad Assurance does not cover disputes concerning conditions visible in any of the photographs contained in the Inspection Report (including the full-size image visible through zooming), even if these conditions are not specifically mentioned in the written narrative comments. Buyers should therefore review all the equipment photographs carefully.
If a Buyer discovers and reasonably concludes Equipment it has purchased is not substantially in the condition as represented in the Inspection Report, and provided that Constructive Receipt of the Equipment, (as detailed in Section V) has not occurred, IronClad Assurance protection permits the Buyer to submit a written claim to IronPlanet. All items constituting the basis for the dispute must be identified, in writing, in such claim (a "Claim"). In addition to the validity conditions stated above, all Claims shall be subject to the following conditions:
1. Determination of a changed condition will be made only as the result of a re-inspection by IronPlanet and a comparison of the re-inspection results with the conditions as shown by the Inspection Report.
2. Only conditions found by the Buyer to be substantially different than reported in the Inspection Report may be disputed. Leaks of any kind (including tyres) that are found by the Buyer, but which are not reported on the Inspection Report, may not be disputed. Conditions which are beyond the scope of a general condition inspection and are not disputable include: those which can be identified only through the operation of a machine on a job site, e.g. digging or lifting; operating the machine through the full range of speeds required to evaluate all forward and reverse gears; replacement or addition of attachments to the machine; disassembly or the use of diagnostic or test equipment in order to evaluate such characteristics such as engine compression.
3. If the Buyer submits a Claim, the Buyer must not use the Equipment from the time of submission of the Claim to the time the dispute is resolved. The Buyer must have the Equipment available for immediate re-inspection upon IronPlanet's request and not make any material changes to the condition of the Equipment, including disassembling or making any repairs, until the Claim is resolved.
4. IronPlanet shall not be responsible for any dispute with the Equipment's Inspection Report unless the Buyer has made the purchase of the Equipment and has paid the relevant purchase price, applicable taxes and the Transaction Payment into the Designated Client Account.
5. The equipment must be located in a European Union member state, Switzerland or Norway.
6. IronPlanet makes every effort to accurately describe Equipment using common industry terms. However, Equipment, trucks and Equipment options and attachments can be known by different terms in different locations. Buyers must refer to the photographs contained in the Inspection Report to clarify their understanding of specific equipment characteristics. IronPlanet cannot be responsible for misinterpretation or oversight by the Buyer.
7. IronPlanet shall not be responsible for Claims filed if the Buyer transfers ownership, operates, leases, rents, or in any way cause or allows the Equipment to be used or operated prior to the expiration of the time periods identified in Section V (Completion of Transactions) above. The only exception to this is operation necessary to load/unload the Equipment, or to verify the reported inspection condition after receipt of the Equipment. In any event, IronPlanet shall not be liable for any dispute relating to a difference in the Equipment hour meter of more than five (5) hours or ten (10) odometer miles from the Inspection Report.
8. IronPlanet shall not be responsible for Claims filed if the Equipment is damaged by the Buyer or the transportation company.
9. IronPlanet shall not be responsible for Equipment operating manuals or keys. The absence of either or both of these items, or costs related thereto, are not the basis for a valid Claim.
10. IronPlanet shall not be responsible for Claims filed due to changes in Equipment condition as a result of exposure to the elements, including during shipment (wind, rain, snow, freezing temperatures, sleet, etc.) such as leaky seals, belts/pulleys, hoses, corrosion, paint fade, window grazing, water contamination or fuel contamination. Furthermore, IronPlanet shall not be liable for failure of electronic control modules for systems or components nor for electronic displays, dead batteries or lights.
11. The estimated total cost to fix items subject to a Claim must exceed €500. This €500 deductible will be applied to any settlement of a Claim.
12. Disputes based on system failures due to a lack of lubrication or other appropriate servicing before the Buyer puts the machine to work are not covered by IronClad Assurance. IronPlanet personnel will evaluate lubrication and maintenance records of post-sale servicing and oil sample results from failed components as part of the of the dispute resolution process. Buyers should ensure that lubrication, cooling, hydraulic and air conditioning systems are serviced in accordance with the manufacturer's specifications prior to the machine being put onto a job site.
In the event that a Claim is determined by IronPlanet to be a valid Claim in accordance with the conditions in subparagraphs 1-12, above then IronPlanet may either refund the full purchase price to the Buyer (inclusive of the Transaction Fee and any applicable taxes) and reimburse the Buyer for any [expenses incurred when initially transporting the Equipment from the Seller's location to the Buyer's location] or IronPlanet may settle such Claim in another mutually beneficial manner for the Buyer (subject to a €500 deductible).
Adjudication of Equipment Dispute. IronPlanet will be solely responsible for the review and adjudication of any dispute in relation to any Claim made above. All determinations made by IronPlanet shall be final.
VII. Disclaimer; Limitation of Liability; Indemnity
Except as provided below and to the extent permitted under any governing laws, the Equipment, Site and Service, including all content, functions, materials and information made available on or accessed through the Site or the Service (including without limitation the Inspection Report), are provided on an "as is," "as available" basis without representations or warranties of any kind whatsoever, express or implied, including without limitation, non-infringement, merchantability or fitness for a particular purpose. To the extent permitted under any governing law, IronPlanet does not warrant that the Equipment, Service or the functions, features or content including the Inspection Report contained therein or in the Site will be functional, timely, secure, uninterrupted or error free, or that defects will be corrected. To the extent permitted under any governing law, IronPlanet and the Seller make no warranty that the Equipment, Site or Service will meet Buyers'/users' requirements or expectations, and expressly disclaims any warranties or guarantees that by listing Equipment on the Service or the Site, the listed Equipment will be sold or will be suitable for any purpose. If you are dissatisfied with the Site or any Services on the Site, your sole remedy is to discontinue using the Site and the Service. To the extent permitted under any governing laws, IronPlanet makes no warranty regarding any Equipment or Services purchased or obtained through the Service or any transactions entered into through the Service. To the extent permitted under any governing law, no advice or information, whether oral or written, obtained by you from IronPlanet or through the Service shall create any warranty not expressly made herein. Except as provided below, and to the extent permitted under any governing law, IronPlanet expressly disclaims any endorsement or warranty of any Equipment sold on or through the Service, and any responsibility for any misrepresentations or breaches committed by another user.
Limitation of Liability.
Nothing in these Terms and Conditions shall limit or exclude IronPlanet's or a Seller's liability for breach of any implied condition as to title or quiet enjoyment; for death or personal injury caused by IronPlanet's or a Seller's negligence; for fraud or fraudulent misrepresentation; or for any matter which it would be illegal for IronPlanet or a Seller to exclude or attempt to exclude its liability under any applicable laws.
Subject to the first paragraph of this clause above, neither IronPlanet nor a Seller shall be liable under or in relation to these Terms and Conditions or its subject matter (including your use of the Site and the Service) (whether such liability arises in tort (including negligence), product liability, breach of contract, misrepresentation or otherwise) for:
(a) any economic losses (including, without limitation, loss of revenues, profits, contracts, business or anticipated earning);
(b) the cost of obtaining similar or substitute goods and/or services from anyone else;
(c) any loss of goodwill or reputation;
(d) any special indirect, or consequential losses;
in each case whether or not such losses were in the contemplation of the parties at the date of acceptance of the terms and conditions contained in these Terms and Conditions.
Subject to the first paragraph of this clause, IronPlanet's total liability under or in relation to these Terms and Conditions shall not exceed in aggregate €150.
Indemnity. You agree to defend, indemnify and hold harmless IronPlanet and its Affiliates (and the officers, directors, agents and employees thereof) from claims, demands and damages, actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, to the extent arising out of or in any way connected with any breach or violation by you of these Terms and Conditions, any use by you of the Site or any disputes or damages arising out of your use of or contracts formed with you through this Site.
VIII. General Provisions Eligibility
Only Registered Users are eligible to participate in IronPlanet's Services.
Prices. All prices are listed according to their value in Euros. Other currencies displayed on the website are for reference only.
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.
Shill Bidding Penalty. If IronPlanet determines that a Seller or someone associated with a Seller has bid on that Seller's own item, shill bidding penalties will be assessed against the Seller. IronPlanet will exclude the Seller from future use of IronPlanet websites; IronPlanet will cancel the involved transaction(s).
Dispute Resolution. You agree to mediate and ultimately arbitrate any dispute or claim between or among you and any other Registered User or IronPlanet arising out of or relating to the Agreement, any sale of Equipment, any Inspection Report or any other transaction contemplated by the Agreement including, but not limited to, all contract and tort claims, statutory claims, claims for relief whether equitable or legal, issues of arbitrability, and disputes about the scope of this clause. Dispute resolution shall be conducted pursuant to the following procedures. Before initiating any arbitration, the parties shall engage in mediation, in the event that any dispute or claim, either party may, by notice to the other party and the International Centre for Dispute Resolution, demand mediation under the Mediation Rules of the International Centre for Dispute Resolution. If settlement is not reached within 60 days after service of a written demand for mediation, any unresolved dispute or claim arising out of or relating to this terms and conditions shall be settled by arbitration in accordance with the International Arbitration Rules of the International Centre for Dispute Resolution by a sole arbitrator appointed in accordance with those Rules. The seat of arbitration shall be Dublin, Ireland. The language used in the arbitral proceedings shall be English.
Modification and Availability. IronPlanet may, at any time, to the extent permitted by law, delete, modify or supplement the content of this Site without prior notice. IronPlanet reserves the right, for any reason, at its sole discretion, to terminate, change, suspend or discontinue any aspect of the Site or the Service, including, but not limited to, content, features or hours of availability. IronPlanet may also impose limits on certain features of the Service or restrict your access to part or all of the Site or the Service without notice or penalty.
Monitoring. You agree that IronPlanet has the right, but not the obligation, to monitor at any time, for any reason at its sole discretion, all material and content on the Site and the Service. IronPlanet reserves the right at all times to edit, disclose or refuse to post any material or information or request removal of or remove any material or information from the Site.
Access and Interference. You agree that you will not use any automatic device or manual process to monitor or copy IronPlanet's web pages or the content contained herein. You agree that you will not use any device, software or routine to interfere or attempt to interfere with the proper working of the Site. You agree that you will not take any action that imposes an unreasonable or disproportionately large load on IronPlanet's infrastructure.
Service Integrity. IronPlanet makes reasonable commercial efforts to make its Service and Site available at all times. However, IronPlanet is not responsible for any service interruptions, including, but not limited to, interruptions that may affect the receipt, processing and acceptance of bids or other aspects of an auction or sale.
No Spam. IronPlanet does not tolerate spam (unsolicited commercial communications). You may not add other IronPlanet users, even a user who has purchased or sold an item from/to you, to your mailing list (email or physical mail) without their consent. To report spam from other users, please contact EuropeCare@ironplanet.com. You will not harvest or otherwise collect information about other IronPlanet users, without their express consent.
Assignment. IronPlanet may assign these Terms and Conditions or any part of it to any person, firm or company without your consent.
Termination. These Terms and Conditions constitute a legally binding agreement between you and IronPlanet until terminated by you or IronPlanet, which IronPlanet may do at any time, without notice, at IronPlanet's sole discretion. If you become dissatisfied with the Service or the Site, in any way, your only recourse is to immediately discontinue use of the Service and pay any required Removal Payment Prior to Auction Close and/or Seller Default Payment, if applicable.
Governing law. These Terms and Conditions shall be governed by and construed in accordance with the laws of Ireland.
Copyright and Trademarks. The trademarks, trade names, designs and all material contained on this Site, including all portions of the web site, content, site design, text, graphics, and all intellectual property rights thereto are the sole and exclusive property of IronPlanet or its licensors. The use of any such property for any other reason, on any other web site, or the modification, distribution or republication of this material without the prior written permission from IronPlanet is strictly prohibited.
Survival. If any provision of these Terms and Conditions are held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible under the applicable law so as to effect the intent of these Terms and Conditions, and the remainder of these Terms and Conditions shall continue in full force and effect. The failure by either you or IronPlanet to exercise or enforce any rights or provisions of these Terms and Conditions shall not constitute a waiver of such right or provision. [You agree that any cause of action arising out of or related to the Service or these Terms and Conditions must commence within six (6) months after the cause of action arose; otherwise, such cause of action is permanently barred.] (Unfair terms) All provisions in these Terms and Conditions regarding representations and warranties, indemnification, disclaimers and limitations on liability shall survive any termination of these Terms and Conditions.
Third Party Links. The Site contains links to third party websites. Your use of third party sites is subject to the terms and conditions of use contained within each of those websites. Access to and use of any other site through the Site is at your own risk. IronPlanet is not responsible or liable for nor does it make any warranties or representations in respect of the accuracy of any information, data, opinions, or statements made on third party sites or the security of any link or communication with those sites. IronPlanet reserves the right to terminate a link to a third party site at any time. The fact that IronPlanet provides a link to any third party site does not mean that IronPlanet endorses, authorises or sponsors that site, nor does it mean that IronPlanet is affiliated with the third party sites, owners or sponsors. IronPlanet provides these links merely as a convenience for those who use the Site and is not liable for any damages or injury arising from use of such sites.
Privacy. IronPlanet's Privacy Statement, located at http://eu.ironplanet.com/main/privacy_eu.jsp is hereby incorporated by reference.
Entire Agreement. These Terms and Conditions set out the entire understanding between IronPlanet and customers, users, Sellers, and Buyers with respect to the use of this Site and supersedes all prior agreements between the parties, regarding the subject matter contained herein. No other terms, whether express or implied, shall apply unless specifically incorporated by reference herein. The following policies which are accessible through click-through links in these Terms and Conditions (together with all further policies that can be accessed via click-through links contained in such policies) are part of these Terms and Conditions and provide additional terms and conditions applicable to some or all of the Services. Please read all of the linked documents carefully:
IronPlanet Privacy Statement
IronPlanet Inspections Terms and Conditions
IronPlanet Auction Consignment Agreement
IronPlanet Buyer Fees Policy
IronPlanet Seller Fees Policy
Each of these policies may be changed from time to time. Your continued use of the Site and the Services after such changes are posted will constitute your agreement to such changed policies.
The parties expressly agree that all performance under these Terms and Conditions and the resolution of disputes shall be conducted in the English language. If a translation of these Terms and Conditions into any other language is required by law, the English version will prevail to the extent that there is any conflict or discrepancy in meaning between the English version and any translation thereof. If these Terms and Conditions are provided to you in a language other than English, IronPlanet does so solely as a convenience for you.