| IronPlanet.com, Inc. 4695 Chabot Drive, Pleasanton, California USA 94588 | Tel: |
Last revised 10-Jan-08
The IronPlanet.com, Inc. web site currently located at http://www.ironplanet.com (the "IronPlanet Site" or "Site") and services offered herein including without limitation the auction services in the IronPlanet Featured Auctions ("Featured Auction") or IronPlanet Owner Auctions ("Owner Auction" and collectively the "Services", "Auction" or "Auctions") for equipment and other items (collectively "Equipment") are provided by IronPlanet.com, Inc. ("IronPlanet" or "we") to you ("you" or "user") subject to the following terms and conditions set forth in this User Agreement (the "Agreement"). As an Auction Company, IronPlanet has a bond (#70259785) on file with the Secretary of State, CA.
Acceptance of Terms. 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 THE TERMS AND CONDITIONS OF THIS USER AGREEMENT AND ALL AGREEMENTS INCORPORATED BY REFERENCE. If you choose not to accept this Agreement, you may not access or otherwise use the Site. If you have any questions regarding this Agreement, please contact CustomerCare@ironplanet.com.
Amendment. IronPlanet may, at its sole discretion, change, modify, add or remove any portion of this Agreement, in whole or in part, from time to time and at any time without notice to you, by posting such changes on the Site. Your continued use of the Site and the Service after such changes are posted will constitute your agreement to such changed Agreement. This Agreement was last revised on January 10th, 2008.
I. Participation Requirements
Capacity to Contract. These Services are available only to individuals or entities who can form legally binding contracts. Without limiting the foregoing, neither minors in any jurisdiction nor individuals who have been suspended from the Services may participate in IronPlanet's Services.
Registration. In order to participate in the Services, users must register with IronPlanet by filling out a registration form and providing certain information to IronPlanet.
When IronPlanet has notified users 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 agree to notify IronPlanet immediately of any unauthorized use of any login ID and password or any other breach of security regarding the Services.
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. IronPlanet has no control over the Sellers, Buyers or any aspect of the transactions. From time to time, IronPlanet may have title to or possess Equipment listed on the Site.
Release. In the event that you have a dispute with one or more users, you release IronPlanet (and our officers, directors, agents, subsidiaries and employees) from claims, 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. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Information Control. IronPlanet cannot control the information provided by users which is made available through the Services. Users may find other user's information to be offensive, harmful, inaccurate or deceptive. Please use caution and common sense when using the Site. IronPlanet has no control over the quality, safety or legality of the Equipment listed, the truth or accuracy of the listings or any other information provided by the user about the Equipment.
Inspections. If you choose to have your Equipment inspected, 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
II. Listing Equipment for Auction
Consignment Agreement. In order to auction your Equipment in a Featured Auction or an Owner Auction, you agree to abide by the terms and conditions in the Auction Consignment Agreement which is hereby incorporated by reference and located at
III. Auctions
Auction Period. The Auction period shall be determined by IronPlanet.
Bidder 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. If you are the highest bidder ("Buyer") at the end of a Featured Auction and have met the applicable opening bid, you are obligated to complete the transaction with the Seller unless the transaction is prohibited by law or by this Agreement. If you are the highest bidder ("Buyer") at the end of an Owner Auction and have met the applicable Reserve Price, if any, or if you accept a Second Chance Offer extended by the Seller, if any such offer is made, you are obligated to complete the transaction with the Seller unless the transaction is prohibited by law or by this Agreement. Bidders agree that bidding on the IronPlanet Site is the legal equivalent of a firm purchase order.
Notification of Assignment of Rights. IronPlanet hereby notifies prospective bidders/Buyers that the consigners of certain pieces of equipment have assigned to a qualified intermediary their rights, but not their obligations, under the consignment agreement for purposes of effecting a deferred Like-Kind Exchange under section 1031 of the Internal Revenue Code of 1986, as amended, and the applicable regulations.
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 Owner Auction, or any sale resulting therefrom, in its own discretion, without notice. IronPlanet will have no liability to prospective bidders or Sellers as a result of any withdrawal, cancellation or postponement of Auctions or sales.
IV. Fees, Commissions and Penalties
IronPlanet's fees and commissions for Sellers are available at http://www.ironplanet.com/sell/fees.jsp and are hereby incorporated by reference. Fees for Buyers are located at http://www.ironplanet.com/buy/buy_fees.jsp. IronPlanet may change its fees, payments and commissions from time to time, but no such change shall apply retroactively to Equipment already listed for an Auction.
V. Completion of Transactions
Liability for Equipment. The Equipment shall be and remain at the risk of the Seller (and not IronPlanet) until the Equipment is removed from the posted Equipment location by the Buyer or the Buyer's designated transportation provider. The equipment shall be and remain at the risk of the Buyer and/or the Buyer's designated transportation provider (and not IronPlanet) while in transport. The equipment shall be and remain at the risk of the Buyer once delivered to the designated location
Sales and Use Tax. All bids and offers must be net of any taxes imposed with respect to the sale or purchase transaction. Buyers are liable for all such taxes or for establishing to IronPlanet's satisfaction on behalf of the Seller a valid exemption certificate from such taxes. Buyers and Sellers acknowledge and agree that IronPlanet is providing a service in the calculation, reporting and remittance of sales or use taxes which may be assessed, due or owing to the taxing authorities of any taxing jurisdiction for transactions that arise in connection with your use of the Service. Each Buyer shall indemnify IronPlanet against any tax, cost or expense relating to the failure of the Buyer to satisfy any sales or use tax liability related to a transaction. Each Seller shall indemnify IronPlanet against any tax, cost or expense relating to the failure of the Seller to satisfy any sales or use tax liability related to a transaction within their jurisdiction
Transaction Fee. All equipment purchased through IronPlanet is subject to a Transaction Fee on each unit which is to be paid by the Buyer. The Transaction Fee is calculated as follows: a) for items with a final sale price of $2,500 or less, the transaction fee is 8% of the final sales price; b) for items with a final sales price of $2,501 or more, the transaction fee is 2.7% of the final sale price, with a minimum fee of $200 and a maximum fee of $850. All fees, including this Transaction Fee, must be paid prior to releasing any Equipment for pick-up and transport
Payment and Payment Schedule. Full payment from the winning bidder in the amount of the auction closing price, applicable sales tax and the Transaction Fee must post to a secure payment account designated by IronPlanet within three (3) business days after the close of the Auction for the piece of Equipment. Buyers from the United States may send payments via wire transfer or certified bank check. Buyers from outside the United States must send all payments via wire transfer.
Buyer Default. If, after five (5) business days after the close of the Auction for the piece 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 Penalty which is set forth on the IronPlanet Site. In addition, the Buyer will be barred from further use of the IronPlanet Site until the Default Penalty is paid.
Buyer Removal of Equipment. Buyers are responsible for loading and shipping the Equipment for transportation, unless otherwise noted in the Equipment listing. Seller agrees to have the Equipment available for transportation, complete with ignition key, to the Buyer no later than one (1) business day after the conclusion of the auction for the piece of Equipment. Buyer may remove the Equipment from the Seller's location once the total purchase price (and any applicable sales tax and the Transaction Fee) has been received by and posted to a secure payment account designated by IronPlanet. If a Buyer has not removed the Equipment from the Seller's location within eight (8) business days after the close of the Auction for the piece 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 is a California registered and bonded (#70259785) auction company. Seller, consistent with California law, may deem Buyer's failure to claim property within thirty (30) days following a final sales transaction to be evidence of Buyer's intent to abandon the property. Where Buyer fails to claim property within thirty (30) days following a final sales transaction, Seller may take action that is adverse to Buyer's interest in the property, including but not limited to any appropriate steps under California law to dispose of the property through IronPlanet which will remit proceeds to the abandoning Buyer, net of actual and reasonable costs to include a twenty-five (25%) percent commission.
Freight and Transportation. The Buyer is responsible for all freight, shipping and other costs related to transporting the Equipment from the posted Equipment 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 cleaning, permit, and/or other fees if the Equipment is stopped and held at a Port of Entry to a state, province or country. Buyers may arrange transportation of Equipment on the IronPlanet web site through a third party, but IronPlanet will not be liable for any acts or omissions arising from such third party transportation and claims no responsibility for the actions of any transportation provider. All Buyers, regardless of their chosen transportation arrangement, must submit delivery and carrier selection information to the IronPlanet Site prior to picking-up the equipment in order to generate equipment release documents. Buyers may not transport the Equipment until full payment (including any applicable sales tax and the Transaction Fee) has been received by and posted to a secure payment account designated by IronPlanet.
Constructive Receipt. Once Constructive Receipt has occurred for any given piece of Equipment, remittance of proceeds to the Seller may occur. Any dispute claims subsequently filed by the Buyer under protection of IronClad Assurance are invalid, as set forth in Section VI. Constructive Receipt of Equipment occurs at the first occurrence of any of the following milestones (unless a dispute claim has been previously filed by the Buyer), provided full payment has been received by IronPlanet for the Equipment:
a) At the time the Equipment leaves the point of pick-up at the Seller's location, if Buyer elects to transport the Equipment them self 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
b) At the time the Equipment leaves the point of pick-up at the Seller's 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
c) Ten (10) business days after the conclusion of the Auction for the Equipment.
d) 24 hours after delivery of the Equipment to the Buyer's designated location, if purchased Equipment is sold from the United States or Canada and is subsequently delivered within the United States or Canada. (If the expiration of the 24-hour period falls on a Saturday, Sunday or a United States Federal Holiday, Constructive Receipt on the basis of the passing of this milestone will not occur until the sooner of a) the first non-weekend day or b) the first non-Federal Holiday). If purchased Equipment is sold from the United States or Canada and is subsequently to be delivered outside the continental United States or Canada, Constructive Receipt on the basis of the passing of this milestone will occur 24 hours after Equipment delivery to the United States or Canadian Port of Export. Any dispute claims must be initiated and settled prior to export.
e) At the time buyer or buyer’s agent begins disassembly of equipment from its as-inspected configuration, including disassembly for transport.
Remittance of Proceeds to Seller.IronPlanet shall remit the total purchase price less any commission or fees to 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 will be made by either electronic wire transfer or check (subject to additional fees for overnight courier).
Ownership Certification, Verification and Lien Searches. Sellers are responsible for providing lien-free Equipment to IronPlanet's marketplace Service. In its sole discretion, IronPlanet may 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 a new Buyer. IronPlanet may charge the Seller a lien fee for this verification. If the Seller fails to remove any lien, encumbrance or adverse claim on or to any Equipment sold by it or fails to perform or comply with any other of its agreements contained in this Agreement, IronPlanet may at its sole discretion remove such lien, encumbrance or adverse claim using Seller proceeds or refund to the Buyer a portion or all of the purchase price of the Equipment (less any Fees) and cancel the transaction. 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 interest thereon at the rate if 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 this Agreement.
Removal Penalty Prior to Owner Auction Close - Reserve not met. If, for any reason, the Seller withdraws a piece of Equipment listed in an Owner Auction from the IronPlanet Site after the time of Equipment Listing but before either the reserve is met or the auction closes, the Seller agrees to pay IronPlanet a removal fee equivalent to the greater of (i) 2% of the Reserve Price (as set by the Seller) or (ii) $50 ("Removal Penalty Prior to Owner Auction Close"). If, for any reason prior to the auction close, IronPlanet removes Equipment from an Owner Auction due to Seller's violation of the Auction Consignment Agreement, the Seller agrees to pay IronPlanet the Removal Penalty Prior to Owner Auction Close.
Default Penalty Owner Auction - Reserve met. If, for any reason, the Seller withdraws a piece of Equipment (or causes IronPlanet to withdraw their equipment in violation of the Seller Consignment Auction Agreement) listed in an Owner Auction after the Seller Reserve Price is met, the Seller agrees to pay IronPlanet a Default Penalty ("Seller Default Penalty") equivalent to the Commission Fee of the winning auction closing price as if the Equipment were sold, as well as the Listing Fee.
VI. IronClad Assurance
Buyers must understand that IronPlanet's Inspection Reports are prepared by knowledgeable inspectors and are as comprehensive as possible. Each report includes an inspection summary, detailed component evaluation and numerous pictures. It should be pointed out that carefully reviewing all the available equipment pictures offers a broader description of used equipment condition than can be obtained from reading a short written comment. With used equipment "a picture is worth a thousand words".
IronPlanet's IronClad Assurance is based on knowledgeable Buyers who both read our condition evaluation and also review each picture 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 pictures stand as additions to the written narrative description. IronClad Assurance does not cover disputes concerning conditions visible in any of the Inspection Report equipment pictures (including the full-size image visible through zooming), even if these conditions are not specifically mentioned in the written narrative comments. Don't be a disappointed Buyer, review all the equipment pictures!
If a Buyer discovers and reasonably concludes an Equipment purchased by the Buyer is not substantially in the condition as represented in the Inspection Report, and 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 this claim. In addition to the validity conditions stated above, all valid claims are also 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 initial IronPlanet inspection.
2. Only conditions found by the Buyer to be substantially different than reported in the IronPlanet Inspection Report may be disputed. Leaks of any kind (including tires) 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 dispute claim, the Buyer must not use the piece of Equipment from the time of submission of the dispute to the time the dispute is resolved. The customer must have the equipment available for immediate re-inspection upon IronPlanet's request and not make any material changes to condition of equipment, including disassembling or making any repairs, until the dispute 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 through the secure payment account designated by IronPlanet.
5. The pick-up location for the purchased Equipment must be in the United States or Canada.
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 parts of the country. Buyers must refer to the pictures 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 dispute 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 paragraph V., Completion of Transactions, above. The only exception to this is operation necessary to move the Equipment around the lot, 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 dispute 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 dispute.
10. IronPlanet shall not be responsible for dispute 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 valid dispute must exceed $500. This $500 deductible will be applied to any settlement of a claim.
12. IronPlanet suggests to each Buyer that lubrication, cooling, hydraulic and air conditioning systems be serviced in accordance with the manufacturer's specifications prior to the machine being put onto a job site. Disputes based on system failures due to a lack of lubrication or other appropriate servicing before the Buyer puts the machine to work will not be 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.
In the event of a valid claim, 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 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. All determinations made by IronPlanet shall be final.
VII. Disclaimer; Limitation of Liability; Indemnity
Disclaimer. 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. 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. IRONPLANET AND 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. IRONPLANET MAKES NO WARRANTY REGARDING ANY EQUIPMENT OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE. 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. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS. 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. IN NO EVENT SHALL IRONPLANET NOR SELLER BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (A) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE EQUIPMENT OR (B) DEFECTS IN SUCH EQUIPMENT ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY. IN ADDITION, IN NO EVENT SHALL IRONPLANET OR SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICE, THE SITE OR ITS CONTENT INCLUDING WITHOUT LIMITATION THE INSPECTION REPORT AND MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF IRONPLANET OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL THE TOTAL LIABILITY OF IRONPLANET TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SITE AND THE SERVICE EXCEED, IN THE AGGREGATE, $100.00.
Indemnity. You agree to defend, indemnify and hold harmless IronPlanet, its officers, directors, agents, subsidiaries and employees 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 breachor violation by you of this Agreement, 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 U.S. dollars.
Taxes. Buyers, if applicable, are responsible for providing IronPlanet valid resale certificates for each transaction processed through our marketplace Service. Buyers that do not provide valid resale certificates in a timely manner will have sales and use taxes assessed and remitted to the appropriate taxing authorities. Buyers and Sellers acknowledge and agree that IronPlanet is providing a service in the calculation, reporting or remittance of sales or use taxes which may be assessed, due or owing to the taxing authorities of any taxing jurisdiction for transactions that arise in connection with your use of our marketplace. You acknowledge and agree that while the bidder is primarily liable for sales and use taxes due with respect to transactions and Seller is secondarily liable for such taxes, you jointly and severally agree to indemnify IronPlanet for the calculation, collection and remittance of any applicable taxes or other expenses which may be incurred or assessed in connection with your use of the Service and the sale of such Equipment.
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 ban the seller from future use of IronPlanet websites, IronPlanet will cancel the involved transaction(s) and the seller will be charged the full Seller Default Penalty of 25% of the equipment final auction price.
Arbitration. YOU AGREE TO MEDIATE AND ARBITRATE ANY DISPUTE OR CLAIM BETWEEN OR AMONG YOU AND ANY OTHER REGISTERED USER OR IRONPLANET ARISING OUT OF OR RELATING TO THE AGREEMENTS, ANY SALE OF EQUIPMENT, ANY INSPECTION REPORT OR ANY OTHER TRANSACTION CONTEMPLATED BY THE AGREEMENTS INCLUDING, BUT NOT LIMITED TO, ALL CONTRACT AND TORTCLAIMS, 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, WHICH IS A PROCESS IN WHICH PARTIES ATTEMPT TO CONFIDENTIALLY RESOLVE ANY DISPUTE BY SUBMITTING IT TO AN IMPARTIAL, NEUTRAL MEDIATOR WHO IS AUTHORIZED TO FACILITATE THE RESOLUTION OF THE DISPUTE BUT WHO IS NOT EMPOWERED TO IMPOSE A SETTLEMENT. MEDIATION SHALL BE CONDUCTED IN SAN FRANCISCO, CALIFORNIA, BY A MEDIATOR AFFILIATED WITH JAMS/ENDISPUTE AGREED TO BY THE PARTIES. SHOULD MEDIATION PROVE UNSUCCESSFUL TO RESOLVE THE DISPUTE, AND WITHIN ONE YEAR OF THE DISPUTE ARISING, A PARTY SHALL MAKE A DEMAND FOR ARBITRATION. THE PARTIES SHALL RESOLVE THE DISPUTE THROUGH FINAL AND BINDING ARBITRATION TO BE CONDUCTED PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF JAMS/ENDISPUTE. ARBITRATION SHALL BE CONDUCTED IN SAN FRANCISCO, CALIFORNIA. THE PROCEDURAL AND SUBSTANTIVE LAW TO BE APPLIED TO AND IN THE ARBITRATION SHALL BE THE LAW OF THE STATE OF CALIFORNIA, EXCEPT FOR ITS CONFLICT OF LAW PRINCIPLES. THE PARTIES SHALL AGREE ON A SINGLE NEUTRAL ARBITRATOR AFFILIATED WITH JAMS/ENDISPUTE WHO IS A RETIRED JUDGE. THE ARBITRATOR SHALL BE BOUND TO APPLY THE LAW, INCLUDING THE RULES OF EVIDENCE, AND SHALL BE EMPOWERED TO HEAR AND DETERMINE DISPOSITIVE MOTIONS INCLUDING MOTIONS TO DISMISS AND MOTIONS FOR SUMMARY JUDGMENT. THE PARTIES SHALL HAVE THE RIGHT TO CONDUCT TWO DEPOSITIONS OF EACH OPPOSING PARTY. THE ARBITRATOR SHALL HAVE THE RIGHT TO ISSUE INJUNCTIONS AND ATTACHMENTS AND OTHER EQUITABLE REMEDIES AND AWARD COMPENSATORY DAMAGES. THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CONSEQUENTIAL, PUNITIVE OR TREBLE DAMAGES, OR ANY OTHER MANNER OF ENHANCED DAMAGES. THE PREVAILING PARTY IN ANY ARBITRATION SHALL HAVE THE RIGHT TO AN AWARD OF ATTORNEYS' FEES AND COSTS. THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING AND ANY PARTY TO THE DISPUTE MAY SEEK TO CONFIRM THE AWARD OF THE ARBITRATOR IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN SAN FRANCISCO, CALIFORNIA AND ENFORCE THE AWARD AS A JUDGMENT. EXCEPT FOR THE FILING OF A JUDICIAL ACTION TO CONFIRM, MODIFY, VACATE, OR ENFORCE AN ARBITRATOR'S AWARD, INCLUDING THE AWARD OF AN INJUNCTION OR ATTACHMENT, WHICH FILING IS PERMISSIBLE, ANY PARTY WHO INITIATES LITIGATION, OR WHO INITIATES ARBITRATION WITHOUT FIRST MEDIATING A DISPUTE, SHALL FORFEIT ANY AND ALL RIGHT TO ATTORNEYS' FEES AND COSTS AS A PREVAILING PARTY, AND SHALL REIMBURSE ANY OTHER PARTY TO THE LITIGATION FOR THEIR COSTS OF LITIGATION INCLUDING ATTORNEYS' FEES AND COSTS.
Third Party Links. Where IronPlanet provides links to third party Internet sites, no representations or endorsements are made in connection with such sites. IronPlanet is not liable for any damages or injury arising from use of such sites.
Modification and Availability. IronPlanet may, at any time, 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 ofor 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.
Termination. This Agreement constitutes 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 Fee, if applicable.
Jurisdiction. The laws of the State of California shall govern this Agreement.
Copyright and Trademarks. The trademarks, tradenames, 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 this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect. The failure by either you or IronPlanet to exercise or enforce any rights orprovisions of this Agreement 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 this Agreement must commence within six (6) months after the cause of action arose; otherwise, such cause of action is permanently barred. This Agreement comprises the entire agreement between you and IronPlanet and supersedes all prior agreements between the parties, regarding the subject matter contained herein. All provisions in this Agreement regarding representations and warranties, indemnification, disclaimers and limitations on liability shall survive any termination of this Agreement.
Privacy. IronPlanet's Privacy Statement, located at http://ironplanet.com/main/privacy.jsp is hereby incorporated by reference.
Entire Agreement. These terms set out the entire understanding between IronPlanet and customers, users, Sellers, and bidders with respect to the use of this Site. No other terms, whether express or implied, shall apply unless specifically incorporated by reference herein.
The parties expressly agree that all performance under this Agreement and the resolution of disputes shall be conducted in the English language. If a translation of this Agreement 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 this Agreement is provided to You in a language other than English, IronPlanet does so solely as a convenience for You.
