Download in ExcelAUCTION REGISTRATION
Maxim Marketplace
Wilder - KY, United States
David Tobon
Director
Seller Declaration
This declaration is given and made by:
Company: Maxim Crane Works, LP (the “Seller”)
for the benefit of Krank Limited, a company registered in England and Wales with company number 10154742 and who’s registered office is at Suite 2, 200 Cambridge Science Park, Milton Road, Cambridge, CB4 0GZ, UK (“Krank”).
Definitions
Save as expressly set out herein and superseded by the definitions below, the definitions in the Terms and Conditions of Business and Online Auction Module Terms and Conditions will apply.
“Buyer” means the third-party Networked User who has purchased the Item through the Platform.
“Encumbrances” means any burden, interest, right or claim which adversely affects the use of, or the ability to transfer, the Item.
“Item” means the item/ equipment being listed for auction on the Platform.
“Order Form” means the registration for and the confirmation of purchase of a subscription for Services either on the Website or by signature of an order form which may incorporate additional license and support terms and conditions.
“Platform” means Krank’s online networking and marketplace platform including the Online Auction Module at www.krank.com.
"Purchase Contract" means the terms of the contract entered into between the Seller and the Buyer for the sale and purchase of the Item.
“Sale” means the sale of the Item to the Buyer, such sale to be complete upon a) the Seller and the Buyer entering into a Purchase Contract; and b) the payment for the Item at the auctioned price being received by the Seller from the Buyer.
Terms & Conditions and Content Standards
The Seller confirms for itself and on behalf of any of its agents and representatives, by signifying its agreement to this declaration, that they have entered into an Order Form, and have agreed to Krank’s Terms & Conditions of Business Online Auction Module Terms and Conditions and content standards regarding the proposed listing.
Declaration
By signifying its agreement to this declaration, the Seller warrants, represents, certifies and declares that:
1. it is the owner of the Item and / or has the full permission and authority of the legal owner of the Item (as its appointed agent, representative or otherwise) to market and sell it on the Platform including through the Online Auction Module, in compliance with the Online Auction Module Terms and Conditions and as per Krank’s content standards.
2. the Item is free of all liens and Encumbrances prior to being advertised. In the event that any liens or Encumbrances attach to the Item, the Seller agrees to clear these prior to completion of the Sale.
3. the Item is currently being stored on property which is owned or licenced to the Seller, or on property which the Seller has rights of access to and the right to use for storage purposes.
4. the Item is listed on the Platform on an ‘as is where is’ basis and that the photographs, specifications, operational hours and condition reports which accompany the Item and which are posted on the Platform are an accurate representation of the Item.
5. where Video Functionality is used to virtually display the Item for inspection, the Item displayed is the Item listed for sale, it is fairly and clearly depicted and presented and the images displayed and any accompanying verbal description are a fair and accurate representation of the Item and are not intentionally misleading.
6. where Video Functionality is used for an Auction Style Event, it has informed and advised its employees, representatives, agents or similar participating and obtained all necessary consents to their image and contributions being published, processed, seen by and shared with the Sellers' Networked Users.
7. it, or its agent or representative (as appropriate and applicable), has completed and obtained all necessary licenses, registrations, permissions, approvals or consents in compliance with applicable laws and regulations in relation to its activities on the Platform or as required in its place of business, including but not limited to any requirements related to holding auctions or acting as an auctioneer.
8. upon completion of the Sale, it will transfer all legal and beneficial title and ownership in the Item to the Buyer in accordance with the terms of the Purchase Contract.
9. if the Buyer is collecting the Item, it will, at a time and date to be agreed with the Buyer (but no later than within ten (10) working days of completion of the Sale, make the Item available for the Buyer to collect, and the Seller will provide safe and suitable access to the location of the Item, and provide any further reasonable assistance, to facilitate the collection of the Item by the Buyer or it’s transporters. The Seller will advise the Buyer of any health and safety or site specific rules applicable at the location and of any specialist equipment or processes necessary to dismantle/ remove the Item.
10.if the Item will be delivered to the Buyer by the Seller, it will make all necessary arrangements, and will pay all required charges and taxes, and comply with all customs and export control laws, regulations and licensing requirements (if applicable), to ensure that the Item is delivered to the Buyer within 30 days of completion of the Sale.
11.within a period of:
a) 10 working days, if the Buyer is collecting the Item; or
b) 30 working days, if the Seller is delivering the Item to the Buyer,
of completion of the Sale, it will deliver to the Buyer all relevant documentation relating to the Item (including, without limitation, all maintenance history records, operator manuals, and parts manuals).
Highest Bid
The Seller undertakes to sell the Items to the Buyer who submits the “highest bid” (in monetary value) for the Item via the Platform.
The Seller undertakes that it shall not:
1. allow bid-ins or buy-backs.
2. bid for the Item; or
3. arrange a third party to bid for the Item on the Seller’s behalf.
Indemnity
THE SELLER SHALL INDEMNIFY KRANK AGAINST, AND SHALL PAY TO KRANK A SUM EQUAL TO, ALL LIABILITIES, COSTS, EXPENSES, DAMAGES AND LOSSES (INCLUDING ANY LOSS OF PROFIT, LOSS OF OPPORTUNITY, LOSS OF REPUTATION OR LOSS DUE TO ANY RESTRICTIONS PLACED ON KRANK (INCLUDING RESTRICTIONS TO TRADE)) SUFFERED OR INCURRED BY KRANK CAUSED BY SELLER’S BREACH OF THIS DECLARATION.
Exclusion of Liability
TO THE EXTENT PERMITTED BY LAW NEITHER SHALL BE LIABLE FOR ANY CONSEQUENTIAL, SPECIAL, INDIRECT OR INCIDENTAL LOSS, COSTS OR DAMAGES WHATSOEVER INCLUDING LOST PROFITS OR SAVINGS, PURE ECONOMIC LOSS, LOSS OF BUSINESS, LOSS OF REVENUE, LOSS OF CONTRACT, LOSS OR DEPLETION OF GOODWILL AND/OR BUSINESS OPPORTUNITY, LOSS OF ANTICIPATED EARNINGS OR LIKE LOSS, WASTED MANAGEMENT, OPERATIONAL OR OTHER TIME, OR OTHERWISE IN CONNECTION WITH THIS DECLARATION AND ITS SUBJECT MATTER.
NOTHING IN THIS DECLARATION LIMITS LIABILITY FOR DEATH OR PERSONAL INJURY ARISING FROM A PARTY'S NEGLIGENCE OR FROM FRAUDULENT MISREPRESENTATION ON THE PART OF A PARTY.
Rights of Third Parties
This declaration does not confer any rights on any person or party (other than the parties to this declaration) pursuant to the Contracts (Rights of Third Parties) Act 1999.
Governing Law
This declaration (and any dispute or claim relating to it or its subject matter (including non-contractual claims)) is governed by and is to be construed in accordance with English law.
The parties irrevocably agree that the courts of Delaware shall have exclusive jurisdiction to settle any claim, dispute or issue (including non-contractual claims) which may arise out of or in connection with this declaration.
Electronic execution
The Seller agrees to sign this declaration by electronic signature (whatever form the electronic signature takes) and that this method of signature is as conclusive of its intention to be bound by this declaration as if signed by manuscript signature.
Duly signed by:
Seller Signature
IP Address: 12.195.23.130
Name: David Tobon
Email: dtobon@maximcrane.com
Phone Number: +1-3304213003
Maxim Marketplace
Wilder - KY, United States
David Tobon
Director
PURCHASE CONTRACT
FOR USE BETWEEN SELLER AND BIDDER / BUYER
Parties:
David Tobon, Director, Fleet Sales, authorized representative of:
Company: Maxim Crane Works, L.P. (the “Seller”)
1530 Nicholas Road, Dayton, OH 45417]
Telephone: 330-421-3003
Email: dtobon@maximcrane.com
And
[Representative Name], authorized representative of:
Company: [Company Name] (the “Bidder” or “Buyer”)
Company Address: [Company address]
Telephone: [Telephone]
Email: [Email]
Background
WHEREAS, The Seller has listed the Item (as defined below) for sale on the Platform (as defined below) and the Bidder wishes to bid on the purchase of such Item via the Platform.
WHEREAS, the Buyer and the Seller have both electronically signed this contract via the Platform.
WHEREAS, should the Bidder be the highest bidder for the Item at the Closing Date (as defined below), this contract will be dated and effected and the Bidder shall automatically become the Buyer and shall agree to buy, and the Seller shall agree to sell, the Item in accordance with the terms and conditions of this contract.
NOW, THEREFORE, in consideration of the mutual promises set forth herein, and intending to be legally bound hereby, the Parties agree as follows.
Agreed Terms
1. Definitions
"Auction Style Event" means a sales event conducted in an auction style format instigated and run by a Seller for their Networked Users using the Platform's Online Auction Module functionalities, through which a Seller (or their representative or agent) markets the Seller's Item(s) and receives bids with a view to achieving a sale to a Buyer.
“Bid” means an offer made by the Bidder via the Platform to purchase the Item.
"Business Day" means any day (other than a Saturday or Sunday or public holiday) when banks in London are open for business.
“Closing Date” means the date and time at which the Item’s auction on the Platform closes as identified on the applicable listing/ lot.
“Encumbrances” means any burden, interest, right or claim which adversely affects the legal use of, or the ability to transfer, the Item.
"Force Majeure Event" means an event or circumstance beyond a party's reasonable control
“Item” means the item/equipment being listed for sale on the Platform.
"Non-conforming" or “non-conformity” mean an Item that is not the particular make/model as described and shown on the Platform.
“Online Auction Module” means the module of the Platform that allows Networked Users to market and post Items for sale and sell through an online auction process (including by use of Video Functionality) and to bid on and purchase such Items.
“Payment” means the payment to be made by the Buyer to the Seller for the Item, of such amount as is equal to the Price (plus any applicable VAT, delivery taxes, export charges, delivery fees/expenses and/or postage and packaging charges), through the Platform.
“Price” means the price payable for the Item as set out in the Bid.
“Platform” means Krank Limited’s online networking and marketplace platform at www.krank.com, including the Online Auction Module.
"Reserve" means any minimum sales price of the Item as stipulated by the Seller on the applicable listing/ lot.
"Video Functionality" means the capability for the Seller (or its agents or representatives acting on its behalf) and Networked Users/ Bidders to interact virtually face-to-face in real time during an Auction Style Event, which may include the real-time presentation of the Item and accompanying verbal descriptions, explanations, and sales pitch, as well as the opportunity for Bidders to raise questions for immediate clarification.
2. Basis of Contract
2.1. The Bid constitutes an offer by the Bidder to purchase the Item in accordance with the terms of this contract.
2.2. Provided that the Bid is the largest offer the Seller receives via the Platform for the purchase of the Item, and provided the Price is at least equal to the Reserve price the Seller has put on the Item (if applicable), the Seller shall be bound and deemed to accept the Bid as at the Closing Date and the Bidder shall be deemed to become the Buyer and shall be bound to purchase the Item.
3. Delivery/Collection
3.1. Provided that the Seller has accepted the Bid, and Buyer has made the Payment, the Seller will deliver the Item (in accordance with Sections 6.1.3 and 6.1.2) to the Buyer, at Buyer’s sole cost and expense.
3.2. If the Parties subsequently agree in writing to allow Buyer to collect the Item, the Seller will, at a time and date to be agreed with the Buyer (but no later than within ten (10) Business Days of the Closing Date), make the Item available for the Buyer to collect, and the Seller will provide suitable access to the location of the Item to the Buyer or its transporters. Buyer expressly acknowledges that: (i) Seller is in the crane-rental business and that cranes and other heavy and/or dangerous equipment may be present and/or operated at various locations; (ii) Buyer shall be responsible for ensuring that it and its employees, agents, and/or contractors wear proper personal protective equipment (including but not limited to steel-toed boots, reflective vests, and hard hats) and follow all applicable rules and regulations at such location; (iii) Buyer assumes all risk of loss and/or harm to persons and/or property that in any way relate to or arise from Buyer’s collection of the Item(s); and (iv) Buyer shall, to the fullest extent permitted by law, indemnify, defend, and hold harmless Seller and each of Seller’s employees, officers, directors, partners, owners, subsidiaries, affiliates, and parent entities (collectively, the “Seller Indemnitees”) from any and all claims, allegations, causes of action, damages, demands, lawsuits, liabilities, losses, judgments, settlements, fines, and penalties in any way relating to or arising from Buyer’s collection of the Item(s), including but not limited to any harm, damage, loss, or injury to any person or property (real or personal), and regardless of whether the same was caused in part by any Seller Indemnitee; Buyer further agrees that its obligations under this subpart (iv) shall not be construed to negate, abridge, or reduce other rights of indemnity that would otherwise exist as to any Seller Indemnitee, nor shall such obligations be limited on amount or type of damages, compensation, or benefits payable under any workers’ compensation, disability benefit, and/or employee benefit laws.
3.3. If the Item will be delivered to the Buyer by the Seller:
3.3.1. the Seller will inform the Buyer of the costs and charges, including but not limited to packaging, freight, labor, insurance and transport of the Item, together with any anticipated customs duties or taxes (if applicable) which will be invoiced to the Buyer by the Seller under 8.2.2;
3.3.2. the Seller will make all necessary arrangements to ensure that the Item, all relevant documentation relating to the Item (including, without limitation, all maintenance history records, operator manuals, and parts manuals)) is delivered to the Buyer;
3.3.3. the Seller will deliver the Item to such location as will be notified to the Seller by the Buyer subject to any export control laws, regulations and licensing requirements (if applicable);
3.3.4. time of delivery shall not be of the essence, however, the Seller will use reasonable endeavours to deliver the Item to the Buyer within 30 Business Days of the Closing Date;
3.3.5. the Seller shall not be liable for any delay in delivery of the Item that is caused by a Force Majeure Event or the Buyer's failure to provide the Seller with adequate delivery instructions or any other instructions that are relevant to the supply of the Item; and
3.4. The Buyer will not be entitled to the Item, and the Seller will not be obliged to deliver the Item, until the Seller has received the Payment.
4.1. The Buyer shall inspect the Item on collection or delivery. Subject to clause 4.2, if:
4.1.1. the Buyer gives notice in writing to the Seller within one (1) Business Day of the Item(s)’ delivery that the Item is Non-conforming; and
4.1.2. the Seller is given a reasonable opportunity of examining such Item; and
4.1.3. the Buyer (if asked to do so by the Seller) returns such Item to the Seller's place of business at the Buyer’s cost,
If the Seller determines, in its sole and absolute discretion, that the Item in question is Non-conforming, then the Seller, shall at its option, repair or replace the Non-conforming Item, or refund the price of the Non-conforming Item in full.
4.2. The Seller shall not be liable for any non-conformity in the Item set out in clause 4.1 in any of the following events:
4.2.1. The Buyer collects the Item;
4.2.2. the Buyer makes any use of such Item after giving notice in accordance with clause 4.1;
4.2.3. the non-conformity arises because the Buyer failed to follow the Seller's and/or manufacturer’s oral or written instructions as to the storage, use and maintenance of the Item;
4.2.4. the Buyer alters or attempts to repair a non-conformity without the written consent of the Seller;
4.2.5. the non-conformity arises as a result of willful damage, negligence, or abnormal storage or working conditions of the Buyer; or
4.2.6. the Item differs from its description as a result of changes made to ensure it complies with applicable safety, statutory or regulatory requirements.
4.3. Except as set out in this Article 4, the Seller shall have no liability to the Buyer in respect of any non-conformity. Buyer expressly acknowledges and agrees that this Article 4 is Buyer’s sole remedy with respect to any Non-conforming Item, and that this Article 4 is in lieu of any rights and/or remedies that are or may be available to Buyer under the Uniform Commercial Code relating to non-conforming goods and/or rightful rejection.
5. Title and Risk
5.1. Risk and title in the Item shall pass to the Buyer upon receipt by the Seller of the Payment.
5.2. Until title to the Item has passed to the Buyer, the Buyer shall (if the Buyer has possession of the Item):
5.2.1. hold the Item on a fiduciary basis as the Seller's bailee;
5.2.2. store the Item separately from all other goods held by the Buyer so that they remain readily identifiable as the Seller's property;
5.2.3. not remove, deface or obscure any identifying mark or packaging on or relating to the Item; and
5.2.4. maintain the Item in satisfactory condition and keep it insured against all risks for its full replacement value from the date of delivery,
5.3. If, before title to the Item passes to the Buyer, the Buyer has possession of the Item and becomes subject to any of the events listed in clause 10.1.2 below, or the Seller reasonably believes that any such event is about to happen and notifies the Seller accordingly, then, provided that the Item has not been resold, and without limiting any other right or remedy the Seller may have, the Seller may at any time require the Buyer to deliver up the Item (at Buyer’s sole cost and expense) and, if the Buyer fails to do so promptly, enter any premises of the Buyer or of any third party where the Item is stored in order to recover it.
6. Buyer Confirmations
6.1. The Buyer acknowledges and agrees that upon acceptance by the Seller of the Bid:
6.1.1. the Bid will become fully binding and cannot be retracted;
6.1.2. the Price is the full and final, non-negotiable price;
6.1.3. Unless otherwise specified on the face hereof, the Item shall be delivered on an “Ex Works” Seller’s Premises basis, all freight, insurance, the cost of installing the Item and other charges are for Buyer's account, and title and risk of loss or damage shall pass to Buyer upon Seller placing the Item at the disposal of Buyer at Seller’s premises or another named place (i.e., works, factory, warehouse, etc.) specified in writing by the parties not cleared for export and not landed on any collecting vehicle. Any doubt as to Seller’s delivery obligations shall be resolved by reference to ICC Incoterms 2010. Shipping and delivery dates are approximate and subject to confirmation. Prices exclude and Buyer shall pay prior to delivery all federal, state, local and foreign sales, use, excise, VAT, GST, export and import taxes, assessments and similar fees imposed on the sale, transportation, delivery, storage or use of the Item. Buyer shall make any necessary arrangements for importation of the Item into a country other than the United States. All permits, licenses or authorizations necessary for the purchase, importation, installation or use of the Item shall be obtained by the Buyer at its sole cost and expense.
6.1.4. Notwithstanding anything to the contrary contained herein, Buyer hereby engages Seller on an independent contractor basis to load, haul, transport and unload (the “Services”) the Item to and at a location specified and agreed by the parties in writing for Buyer’s exportation thereof. Seller shall not be responsible whatsoever for the exportation of such Item, or any clearances or applications or any other procedures or expenses related thereto. Seller will charge its normal rates for such services. Nothing herein shall be deemed to alter, supplement, narrow or modify whatsoever the freight terms contained herein, including without limitation, delivery of the equipment by Seller on an Ex Works basis. Buyer shall forever indemnify, release and hold harmless Seller, its affiliates, officers and employees from and against any and all claims, losses and expenses whatsoever arising out of or related to the Services.
7. Warranties and Limitation of Liability
7.1. The Seller warrants to the Buyer that:
7.1.1. it is the owner of the Item and/or has the full authority and permission of the legal owner of the Item;
7.1.2. the Item is free of all liens and Encumbrances or will be free of all liens and Encumbrances as at the Closing Date;
7.1.3. the Item is currently being stored on property which is owned, leased, or licensed to the Seller, or on property which the Seller has rights of access to or the right to use for storage purposes; and
7.2. Buyer acknowledges that Seller is NOT the manufacturer of the Item(s). EXCEPT FOR THE WARRANTIES SET FORTH IN THIS ARTICLE 7, THE SELLER MAKES NO OTHER WARRANTY, EXPRESS OR IMPLIED, WITH RESPECT TO ANY ITEM OR SERVICE AND SELLER HEREBY ACKNOWLEDGES AND AGREES THAT THE ITEM LISTED ON THE PLATFORM IS BEING OFFERED ON AN ‘AS IS WHERE IS’ BASIS. THE SELLER HEREBY EXPRESSLY DISCLAIMS ALL OTHER WARRANTIES INCLUDING, BUT NOT LIMITED TO, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, MERCHANTABILITY AND NONINFRINGEMENT. BUYER'S REMEDIES FOR BREACH OF ANY WARRANTY SHALL BE LIMITED TO THOSE REMEDIES DESCRIBED ABOVE WHICH MAY BE AVAILABLE AGAINST THE MANUFACTURER OF THE EQUIPMENT. THE WARRANTY OF TITLE CONTAINED HEREIN WILL INURE ONLY TO THE BENEFIT OF THE BUYER AND MAY NOT BE TRANSFERRED TO ANY OTHER PERSON.
7.3. Because many factors affect equipment operation and performance, Buyer shall determine for itself at its sole cost and expense, by conducting appropriate tests, inspections, or other methods prior to accepting delivery of the Item, whether the equipment is suitable for Buyer’s needs (whether or not Seller knows of such needs). Buyer also shall ensure that the Item is handled, stored, installed, and used in a proper manner. Seller assumes no liability or obligation for any technical advice provided by Seller with respect to the equipment or for the results of the application of such advice to the equipment.
7.4. BUYER HAS THOROUGHLY INSPECTED AND EXAMINED THE ITEM TO THE EXTENT BUYER DEEMS NECESSARY IN ORDER TO ENABLE BUYER TO EVALUATE THE PURCHASE OF THE EQUIPMENT. BUYER REPRESENTS AND ACKNOWLEDGES THAT IT (I) IS A KNOWLEDGEABLE PURCHASER OF PROPERTIES SUCH AS THE ITEM, (II) IS RELYING SOLELY ON ITS OWN EXPERTISE AND THAT OF ITS CONSULTANTS, AND (III) SHALL CONDUCT SUCH INSPECTIONS AND INVESTIGATIONS OF THE ITEM, AND SHALL RELY UPON SAME, AND SHALL ASSUME THE RISK OF ANY ADVERSE MATTERS, WHETHER OR NOT REVEALED BY BUYER'S INSPECTIONS AND INVESTIGATIONS. BUYER FURTHER ACKNOWLEDGES AND AGREES THAT, EXCEPT AS EXPRESSLY PROVIDED HEREIN, IT IS ACQUIRING THE ITEM ON AN AS IS, WHERE IS AND WITH ALL FAULTS BASIS, WITHOUT REPRESENTATIONS, WARRANTIES OR COVENANTS, EXPRESS OR IMPLIED, OR ANY KIND OR NATURE. BUYER HEREBY WAIVES AND RELINQUISHES ALL RIGHTS AND PRIVILEGES ARISING OUT OF, OR WITH RESPECT OR IN RELATION TO, ANY REPRESENTATIONS, WARRANTIES OR COVENANTS, WHETHER EXPRESS OR IMPLIED, WHICH MAY HAVE BEEN MADE OR GIVEN, OR WHICH MAY HAVE BEEN DEEMED TO HAVE BEEN MADE OR GIVEN, BY SELLER AND NOT EXPRESSLY CONTAINED HEREIN. BUYER HEREBY RELEASES AND HOLDS HARMLESS SELLER AND ITS SUCCESSORS AND ASSIGNS FROM AND AGAINST ANY AND ALL LOSSES, CLAIMS, DEMANDS, SURCHARGES AND CAUSES OF ACTION, EITHER AT LAW OR IN EQUITY, WHICH RELATE DIRECTLY OR INDIRECTLY TO THE ITEM(S) PURCHASED FROM SELLER AND IN ANY AND ALL ACTIONS ON OR AFTER THE DELIVERY DATE OF THE ITEM(S) TO BUYER WHICH RELATE DIRECTLY OR INDIRECTLY TO THE ITEM(S).
7.5. Seller shall not be liable for any incidental, consequential, indirect or special damages, including, but not limited to, lost profits and lost production, whether arising under breach of warranty or contract, negligence, strict liability or other tort, indemnity or any other theory of liability. In any event, Seller's liability for any and all claims, damages and causes of action arising out of the sale, use, storage, delivery or non-delivery of any Item, performance of any services or any warranty shall be limited to the price (including freight charges if paid by Buyer) paid to Seller for such equipment or the Services, as applicable.
8. Price and Payment
8.1. The price payable by the Buyer for the Item shall be the Price.
8.2. The Price:
8.2.1. excludes amounts in respect of value added tax ("VAT"), any other applicable duties, sales taxes, fees and surcharges, which the Buyer shall additionally be liable to pay to the Seller at the prevailing rate; and
8.2.2. excludes the costs and charges of packaging, insurance and transport of the Item, which will be invoiced to the Buyer by the Seller.
8.3. The Buyer shall make the Payment within ten (10) Business Days of the Closing Date. Payment shall be made through the Platform via the ‘stripe’ payment system.
8.4. If the Buyer does not make the Payment within ten (10) Business Days of the Closing Date, the Buyer shall be in material breach of the contract and responsible for all resulting damages incurred by the Seller, including but not limited to actual damages, delay damages, cover damages, and consequential damages (including but not limited to all costs and expenses incurred in relisting and/or reselling the Item(s), as well as attorneys’ fees). Moreover, both parties agree and acknowledge that the Seller, in addition to all other rights and remedies available to it, has a right to immediately terminate this contract, treat this contract as rescinded, and/or relist the Item for auction on the Platform, and if it is in the Buyer's possession, demand the return of, and the Buyer must return, the Item.
8.5. The Buyer shall pay all amounts due under this contract in full without any set-off, counterclaim, deduction or withholding (except for any deduction or withholding required by law). The Seller may at any time, without limiting any other rights or remedies it may have, set off any amount owing to it by the Buyer against any amount payable by the Seller to the Buyer.
9. Termination
9.1. Without limiting its other rights or remedies, the Seller may terminate this contract with immediate effect by giving written notice to the Buyer if:
9.1.1. the Buyer commits a material breach of any term of this contract and (if such a breach is remediable)) fails to remedy that breach within two days of the date of receipt of written notice from Seller of such breach; notwithstanding the foregoing, the Seller shall have no obligation to provide the Buyer with written notice of any material breach which relates to Buyer’s failure to make the Payment in accordance with Section 8.4 (or an opportunity to cure the same);
9.1.2. the Buyer takes any step or action in connection with its entering administration, provisional liquidation or any composition or arrangement with its creditors (other than in relation to a solvent restructuring), being wound up (whether voluntarily or by order of the court, unless for the purpose of a solvent restructuring), having a receiver appointed to any of its assets or ceasing to carry on business or, if the step or action is taken in another jurisdiction, in connection with any analogous procedure in the relevant jurisdiction;
9.1.3. the Buyer suspends, threatens to suspend, ceases or threatens to cease to carry on all or a substantial part of its business; or
9.1.4. the Buyer's financial position deteriorates to such an extent that in the Seller's opinion the Buyer's capability to adequately fulfil its obligations under this contract has been placed in jeopardy.
9.2. Termination of this contract shall not affect any of the Seller’s rights and remedies that have accrued as at termination, including the right to claim damages in respect of any breach of this contract that existed at or before the date of termination.
9.3. Any provision of this contract that expressly or by implication is intended to come into or continue in force on or after termination shall remain in full force and effect.
10. Liability
10.1. [Reserved]
10.2 the Buyer expressly acknowledges and agrees that the Seller shall under no circumstances whatsoever be liable to the Buyer, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, for any loss of profit, revenue, opportunity, goodwill, or overhead, or any indirect or consequential loss arising under or in connection with this contract; and the Seller's total liability to the Buyer in respect of all other losses arising under or in connection with this contract, whether in contract, tort (including negligence), breach of statutory duty, or otherwise, shall in no circumstances exceed the Price actually received by the Seller from the Buyer.
11. General
11.1. The parties acknowledge and agree that they have jointly negotiated and drafted this the contract between them and that they have had an opportunity to review the same with legal counsel of their choosing.
11.2. The parties agree that any condition, warranty, representation, or other term which might otherwise be implied into or incorporated in this contract, whether by statute, common law or otherwise, is excluded to the maximum extent permitted by law.
11.3. Any variation of this contract shall be in writing and signed by or on behalf of the parties.
11.4. Neither party shall have any liability to the other party under this contract if it is prevented from, or delayed in, performing its obligations under this contract or from carrying on its business as a result of a Force Majeure Event.
11.5. Any notice, request, or instruction to be given to a party shall be in writing. Notices shall be delivered by messenger, air courier (such as DHL or Federal Express), or mailed by certified mail, postage prepaid, with return receipt requested, to a party at its address below (or if not specified, to its registered address) and shall be deemed delivered when actually received (unless delivery is refused, in which case such notice shall be deemed delivered one (1) business day after being deposited by the messenger or air courier or three (3) business days after being deposited into to U.S. Mail):
If to Seller:
Maxim Crane Works, L.P.
Attn: Legal Department
300 Dunning Street
Canonsburg, PA 15317
11.6. No one other than a party to this contract and their permitted assignees shall have any right to enforce any of its terms save that Krank Limited shall be entitled to rely upon and enforce clause 11.1.
11.7. A waiver of any right under this contract is only effective if it is in writing and it applies only to the party to whom the waiver is addressed and the circumstances for which it is given. Unless specifically provided otherwise, rights arising under this contract are cumulative and do not exclude rights provided by law.
11.8. If any provision of this contract is found by any court or administrative body of competent jurisdiction to be invalid, unenforceable, or illegal, the other provisions shall remain in force. If any invalid, unenforceable or illegal provision would be valid, enforceable, or legal if some part of it were deleted or modified, the provision shall apply with whatever modification is necessary to give effect to the commercial intention of the parties.
11.9. The Buyer shall not, without the prior written consent of the Seller, assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this contract. The Seller may at any time assign, transfer, charge, sub-contract or deal in any other manner with all or any of its rights or obligations under this contract.
11.10. Nothing in this contract is intended to or shall operate to create a partnership or joint venture between the parties, or to authorize either party to act as agent for the other, and neither party shall have authority to act in the name or on behalf of or otherwise to bind the other in any way (including but not limited to the making of any representation or warranty, the assumption of any obligation or liability and the exercise of any right or power).
11.11. This contract constitutes the entire agreement between the parties and supersedes and extinguishes all previous agreements, promises, assurances, warranties, representations, and understandings between them, whether written or oral, relating to its subject matter.
11.12. The parties acknowledge and agree that the Item(s) contemplated under this contract are deemed to be sold in the State of Ohio, regardless of each Item’s temporary physical location at the time of Closing, and that this contract and any disputes or claims arising out of or in connection with it or its subject matter or formation (including non-contractual disputes or claims) are governed by and construed in accordance with the Uniform Commercial Code and other laws of the State of Ohio, and not the United Nations Convention for the International Sale of Goods.
11.13. Any dispute, controversy or claim arising out of or in connection with this Agreement, or the breach, termination, or invalidity thereof, shall be submitted, decided, and resolved with finality by arbitration in accordance with the Commercial Arbitration Rules, of the American Arbitration Association, as amended and in effect, at the time of such dispute, controversy or claim. The arbitration shall be conducted by one single, neutral arbitrator, who shall have a U.S. law degree and be well versed on the Uniform Commercial Code and the Incoterms 2010, and appointed by the American Arbitration Association in accordance with its rules. The Arbitration shall be conducted in English and shall take place in the City of Dayton, Ohio, as the exclusive forum for resolving such dispute, controversy or claim. The decision of the arbitrator shall be binding upon the parties hereto, and the expense of the arbitration (including without limitation the award of attorneys’ fees to the prevailing party) shall be paid as the arbitrator determines. The decision of the arbitrator shall be executory, and judgment thereon may be entered by any court of competent jurisdiction.
11.14. The parties agree to sign this contract by electronic signature (whatever form the electronic signature takes) and that this method of signature is as conclusive of their intention to be bound by these contract terms as if signed by manuscript signature.
11.15. The parties acknowledge and agree that, notwithstanding anything herein to the contrary, this contract, and all interactions relating thereto or arising therefrom, concern and involve a negotiated transaction between and among Seller and Buyer, and do not concern or involve an auction (online, live, in-person, or otherwise).
11.16. The parties acknowledge and agree that, to the extent that this negotiated transaction is instead deemed to be an online auction, it: (i) relates to and involves the sale of Owner’s personal property, which property was not acquired for the purpose of resale; and (ii) was hosted by Krank Limited on the Platform, a forum through the internet for Seller to sell its personal property via submission of offers/bids using a computer or other electronic device, thus making Krank Limited an auction mediation company as that term is defined under Ohio Revised Code §§ 4707.01 and 4702.02(B). As a result, no license is required for either Seller or Krank Limited under Ohio law for purposes of this transaction.
11.17. CALIFORNIA AIR RESOURCES BOARD REQUIRED NOTICE: WHEN OPERATED IN CALIFORNIA, ANY OFF-ROAD DIESEL VEHICLE MAY BE SUBJECT TO THE CALIFORNIA AIR RESOURCES BOARD IN-USE OFF-ROAD DIESEL VEHICLE REGULATION. IT THEREFORE COULD BE SUBJECT TO RETROFIT OR ACCELERATED TURNOVER REQUIREMENTS TO REDUCE EMISSIONS OF AIR POLLUTANTS. FOR MORE INFORMATION, PLEASE VISIT THE CALIFORNIA AIR RESOURCES BOARD WEBSITE AT:
http://www.arb.ca.gov/msprog/ordiesel/ordiesel.htm.
11.18. Buyer acknowledges and agrees that Seller has made no specific representation, warranty or covenant, express or implied, or any kind or nature regarding the applicability of the California Air Resources Board In-Use Off-Road Diesel Vehicle Regulation to the equipment. Buyer hereby releases and holds harmless Seller and its successors and assigns from and against any and all losses, claims, demands, surcharges and causes of action, either at law or in equity, which relate directly or indirectly to the equipment purchased from Seller and in any and all actions on or after the delivery date of the equipment to Buyer which relate directly or indirectly to the equipment and the California Air Resources Board In-Use Off-Road Diesel Vehicle Regulation.
AGREED BY THE PARTIES
Duly signed by:
Seller Signature
IP Address: 12.195.23.130
Name: David Tobon
Email: dtobon@maximcrane.com
Phone Number: +1-3304213003
Maxim Marketplace
Wilder - KY, United States
Online Auction Module Terms and Conditions
This documentsets out the terms and conditions applicable to your use of the Online Auction Module functionality provided as part of the Services available on theWebsite. Byusing the Online Auction Moduleyou are confirming your acceptance to theseterms.
1. Definitions
"AuctionStyle Event"means a sales event conducted in an auction style format instigated and run by a Seller for their Networked Users using the Platform's Online Auction Module functionalities, through which a Seller (or their representative or agent) markets the Seller's Item(s) and receives bids with a view to achieving a sale to a Buyer.
"Bid"means an offer made by a Networked Uservia the Platform to purchase the Item.
"Bidder"means a Networked User participating in an AuctionStyle Event.
"Buyer" means the Networked Userwith the Winning Bid.
"Closing Date" means the date and time at which the Item’s auction on the Platform closes, as stated on the Platform.
"Item" means the item/equipment being listed for sale on the Platform.
"Krank" means Krank Limited a company registered in England with company registration number 10154742 whose registered office is at Suite 2, 200 Cambridge Science Park, Milton Road, Cambridge, CB4 0GZ, UK.
"Networked Users"means Users who have formed an online networking connection using the Platform’s networking features.
"Online Auction Module"means the module of the Platform that allows Networked Users to market and post Items for sale and sell through an online auction process (including by use of Video Functionality) and to bid on and purchase such Items.
"Payment"means the payment to be made by the Buyer to the Seller for the Item, of such amount as is equal to the Price (plus any applicable VAT, delivery taxes, export charges, and/or postage and packaging charges).
"Platform"means Krank’sonline networking and marketplaceplatform at www.krank.com including its Online Auction Module
"Price"means the price payable for the Item as set out in the Winning Bid.
"Purchase Contract"means the terms agreed between the Seller and Buyerfor the sale and purchase of the Item, which shall become effective when there is a Winning Bid;
"Reserve"means the minimum sales price for the Item as stipulated by the Seller.
"Seller"means Maxim Crane Works, L.P., as the Networked Userselling the Item.
"Seller Declaration"means the declaration referred to inSection5.1, below.
"User"means a registered business user of the Platform.
"Video Functionality"means the capability for Seller(or itsagents or representatives acting on itsbehalf) and Networked Users/ Bidders to interact virtually face-to-face in real timeduring an Auction Style Event, which may include the Seller’s real time presentation of its Item(s) and accompanying verbal descriptions, explanations, and sales pitch, as well as the opportunity for Bidders to raise questions for immediate clarification.
"Website Terms of Use"means the terms and conditions relating to access to and use of Krank's Website, which are accessible therein.
"Winning Bid"means the highest Bid on the Item at the Closing Date and which Seller has accepted.
"You"means any and all Bidders.
2. About the Platform
2.1. The Platform is an online networking platform for companies and business users, which enables Users to create multiple private networks with other Users. The Platform includes a marketplace, which enables Networked Users to buy, sell, and rent heavy plant and machinery in a variety of formats, including through an Auction Style Event by use of the Platform's Online Auction Module functionalities.
2.2. Although Krank's OnlineAuction Module uses the term auction and works using traditionally understood auction technology, it is not a traditional auction platform. Each Bidder meets the Seller directly, via first privately networking and becoming Networked Users. Each Seller establishes their own terms & conditions for the sale of their Item. The Seller is using the competitive bid technology and optional Video Functionality provided by the Platform to market and receive Bids on its Item.
2.3. When a Networked User sells or rents any Item to another Networked User whether through the Online Auction Module or otherwise, the sale or rental contract is directly between the Seller and the Buyer on the terms of a Purchase Contract.Krank is purely providing the Platform and takes no part in the sale or rental of the Item and is not an auctioneer or agent for the Seller. Krank has no control over and does not guarantee the existence, quality, safety or legality of items advertised, the truth or accuracy of Users' content or listings, the ability of Sellers to sell items, the ability of Buyers to pay for Items, or that a Buyer or Seller will actually complete a transaction or return an Item.
2.4. The Platform is for use by business users only, and you must not use the Platform as a consumer.
3. Use of the Platform
3.1. In connection with using or accessing the Platform you will not:
• post or upload content or items in inappropriate categories or areas on the Platform;
• breach or circumvent any laws, regulations or third-party rights;
• use the Platform or services of Krank if you are not able to form legally binding contracts;
• fail to pay for items purchased by you or fail to deliver items sold you, unless you have a valid reason in accordance with the Purchase Contract;
• manipulate the price of any item or interfere with any other User’s listings;
• post false, inaccurate, misleading, deceptive, defamatory, or libelous content;
• transfer your account to another party without Krank’sconsent;
• use any robot, spider, scraper, data mining tools, data gathering and extraction tools, or other automated means to access theservices for any purpose, except with the prior express permission of Krank;
• infringe the copyright, trade mark, patent, publicity, moral, database, and/or other intellectual property rights (“Intellectual Property Rights”) that belong or are licensed to Krank;
• infringe or misappropriate any Intellectual Property Rights that belong to third parties
• harvest or otherwise collect information about users without their consent; or
• distribute or post spam, unsolicited or bulk electronic communications, pyramid schemes or chain letters, or distribute any viruses or other technology that may harm Seller, Krank or the interests or property of users.
3.2. All Users shall comply with applicable Data Protection Legislation in force from time to time.
3.3. By electing to use or participate in Video Functionality during an Auction Style Event, Users accept and expressly permit and consent to their image and contributions being published, processed, seen by and shared with other Networked Users during the Auction Style Event. Users will take full responsibility for, and ensure that they have fully informed and procured appropriate consents from, any employees or other representatives or agents participating in use of the Video Functionality on their behalf.
3.4. If you breach any applicable terms and conditions between us, Seller or Krank may, in theirsole discretion and without limiting other rights or remedies which may be available to them, limit, suspend, or terminate your user account and access to any of the services of Krank, delay or remove content provided by you and take technical and/or legal steps to prevent you from using the Platform, the Online Auction Module or any of the other services provided by Krank.
4. Content and Reviews
4.1. Yougrant to both Krank and Seller a non-exclusive, worldwide, perpetual (or for the duration of any copyright or other rights in such content), irrevocable, royalty-free, sublicensable and transferable license to use, display, and broadcast any content provided by youin connection with the provision and promotion of the Platform for the limited purpose of providing the Platform for theauction.
4.2. You will not use, copy, adapt, modify, prepare derivative works of, distribute, license, sell, transfer, publicly display, publicly perform, transmit, broadcast or otherwise exploit the Platform or any content made available on the Platform unless you are the owner or fully authorized and licensed user of that content.
4.3. You are solely responsible for all content that you make available on or through the Platform and accordingly you warrant and represent that: (i) you either are the sole and exclusive owner of all such content or you have all rights, licenses, consents and releases that are necessary to grant to Krank and Seller the rights in and to such content, as contemplated under these terms; and (ii) neither the content nor your posting, uploading, publication, submission or transmittal of the content or Krank’sor Seller’s use of the content as contemplated under these terms will infringe, misappropriate or violate a third party's patent, copyright, trade mark, trade secret, moral rights or other proprietary or intellectual property rights, or rights of publicity or privacy, or result in the violation of any applicable law or regulation.
4.4. The Platform allows Sellers and Bidders to leave public reviews (“Reviews) and submit a rating (“Rating”) about each other. Reviews and Ratings reflect the opinions of individual Users of the Platform and do not reflect the opinion of Krank. Krank does not verify Reviews or Ratings for accuracy and accepts no responsibility or liability in respect thereof.
4.5. If you leave a Review or submit a Rating such Review and Rating must be accurate and may not contain any offensive or defamatory language.
4.6. You must not manipulate or attempt to manipulate the Ratings and Review system in any manner, including without limitation by asking other Users to write Reviews about a Seller or Bidder.
5. General Rules Governing Bidding
5.1. As a pre-condition to using the Platform and Online Auction Module, the Seller may provideaSeller Declaration before listing its Item(s) for sale
5.2. You can only place a Bid on the Item if you have reviewed and executeda Purchase Contractwith the Seller in respect of the Item (which shall only become effective onlyif and when Seller accepts such Bid).
6. Pre-auction Inspection and Best Practice Policy
6.1. In order to place a Bid on the Item, you must first become a Networked User with the Seller.
6.2. Krank and Seller strongly recommend that you inspect the Item before placing a Bid. Bids are accepted on the basis that you have networked with the Seller and have inspected the Item prior to placing the Bid and are satisfied as to the condition of the Item and the accuracy of its description.
6.3. Bidders choosing to inspect an Item in this manner accept in doing so the increased risks associated with a remote visual inspection compared with an in person physical inspection.
7. Cancelling the Auction
7.1. The Seller may withdraw the Item from sale at any point prior to any Bids being placed for that Item.
7.2. If an Item does not achieve its Reserve by the Closing Date the Item will not be sold and the Seller may:
7.2.1. withdraw the Item from sale in which caseall Bidders will be notified that the auction has ended; or
7.2.2. rerun the auction for the Item In which caseall Bidders will be notified that the auction is being rerun and whether or not the format will include Video Functionality.
8. Unwelcome and Malicious Buying and Selling Policy
8.1. You must not:
8.1.1. place a Bid for the Item in order to harm the listing for the Item on the Platform or the Seller’s reputation;
8.1.2. Bid on the item for the purpose of increasing the Price to prevent the sale of the Item;
8.1.3. Bid on the Item for the purpose of leaving the Seller neutral or negative feedback;
8.1.4. Bid on the Item without the intent of purchasing the Item; or
8.2. In the event thatyou place a Bid in breach of these terms, Krank or Seller, , may suspend or disable your account without notice to you.
8.3. If you are the Buyer and you do not pay for the Item in accordance with the Purchase Contract, the Seller, in addition to all other rights and remedies set forth in the Purchase Contract, may terminate the Purchase Contract and claim other legal remedies against you in accordance with its terms.
9. Disputes and Complaints
9.1. By placing a Winning Bid on the Platform you are entering into a direct contractual relationship with the Seller on the terms of the Purchase Contract. Any complaint or dispute relating to the Item purchased must be raised directly with the Seller and Krank shall have no liability in respect of the same.
9.2. Any dispute regarding payment or non-payment for the Item must be raised directly with the Buyer and Krank will have no liability in respect of the same.
9.3. Any Complaint regarding any User behavior on the Platform should be directed to Krank who will investigate the complaint and take such action as they deem appropriate at its sole discretion.
9.4. If you believe your intellectual property might have been infringed by any listing on the Platform please contact Krankdirectly and include the following information:
9.4.1. An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
9.4.2. Identification of the copyrighted work that you claim has been infringed;
9.4.3. Identification of the material that is claimed to be infringing and where it is located on the Platform;
9.4.4. Information reasonably sufficient to permit Krank to contact you, such as your address, telephone number, and, e-mail address;
9.4.5. A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
9.4.6. A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
9.5. For complaints related to Data Protection matters, please refer to Krank’sPrivacy Policy.
10. Limitation of Liability
10.1. YOU AGREE THAT YOU ARE MAKING USE OF THE PLATFORM AT YOUR OWN RISK, AND THAT THE SERVICES BEING PROVIDED TO YOU BY KRANK ARE ON “AS IS” AND “AS AVAILABLE” BASIS AND THAT, TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, NEITHER SELLER NOR KRANK SHALL BE LIABLE FOR ANY DAMAGE OR LOSS WHATSOEVER (WHETHER SOUNDING IN CONTRACT, TORT, BREACH OF STATUTORY DUTY, RESTITUTION OR OTHERWISE).
10.2. ACCORDINGLY, TO THE EXTENT PERMITTED BY THE APPLICABLE LAW, ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT, ARE EXPRESSLY DISCLAIMED AND EXCLUDED.
11. Release and Indemnity
11.1 To the fullest extent permitted by law, you will indemnify, defend and hold Krank and Seller (including theiraffiliates and subsidiaries as well as their respective officers, directors, employees and agents) harmless from any claim, demand, damage, lawsuit, loss, liability, judgment, or settlement(including but not limited to reasonable legal fees), relating to or arising fromyour breach of ,anyTerms and Conditions of Business or these Online Auction Module Terms and Conditions, or your breach of or non-compliance with any law, regulation, registration or licensing requirement, or the rights of a third party.
12. General
12.1. These Online Auction Module Terms and Conditions (and any dispute or claim relating to them) are governed by and are to be construed in accordance with Delawarelaw.
12.2. You irrevocably agree that the courts of Delaware shall have exclusive jurisdiction to settle any claim, dispute or issue (including non-contractual claims) which may arise out of or in connection with these Online Auction Module Terms and Conditions.
12.3. Except as otherwise provided, if any provision of theseOnline Auction Module Terms and Conditions are held to be invalid, void or for any reason unenforceable, such provisions shall be struck out and shall not affect the validity and enforceability of the remaining provisions.
