- Fees means the fees to be paid to us in consideration for the Services;
- Order Confirmation means the confirmation of purchase on the Website of a Subscription for the Services;
- Services means the provision of an online auction platform for heavy plant machinery and network services for dealers and users of such heavy plant machinery, as further described on the Website;
- Subscription means a subscription obtained or purchased by you from us which enables access to the Services, as further described on the Website;
- We, our or us means Krank Limited;
- Website means www.krank.com; and
2. Basis of Contract
- In order to access the Services, you must first purchase a Subscription from our Website.
- You acknowledge that such contract is conditional upon you passing our credit checking process.
3. Charges and Payment
- The fees payable by you for the Services will be dependent upon the type of Subscription you purchase. The fees for each Subscription shall be those stated at the time you subscribe to the Website for the Services or at the time your Subscription automatically renews.
- The Fees will be payable in advance.
- Fees (and any subsequent fees payable on renewal of a Subscription) shall be paid for online using credit or debit cards (where payment confirmation will be provided after the payment has been taken).
- If your Subscription renews in accordance with clause 9.c we will automatically debit the card used to purchase your Subscription with the amount identified in the email notification delivered pursuant to clause 9.b.
- Online payments will be carried out by Stripe and will be subject to Stripe's terms and conditions which can be found here: Stripe terms and conditions
- We will use reasonable endeavours to perform the Services in accordance with these terms and the Order Confirmation in all material respects, including any performance dates (for which time shall not be of the essence).
- We reserve the right to make changes to the Services or Subscriptions if required for technical or legal reasons, provided that such changes do not materially affect the Services.
- You will co-operate with us in all matters relating to the Services, provide us with such accurate and up-to-date information and materials as we may require to perform the Services, and ensure that you hold such licences, permissions and consents in relation to materials provided by you as are required for us to perform the Services.
- You undertake not to upload to, or submit to us for uploading onto, the Website, any material which is illegal, defamatory, offensive, fraudulent, violent, discriminatory, obscene or sexually explicit or which may adversely affect us or our reputation.
5. Service Levels
- Subject to scheduled downtime (of which we will notify you at least 24 hours in advance), we shall use reasonable endeavours to ensure that the Website is available to you at least 90% of the time (Monthly Uptime Percentage").
- In the event that the Website availability falls below the Monthly Uptime Percentage, you shall be entitled to a credit to your account equal to £250,
(a Service Credit")
- In order for you to receive a Service Credit you must request such Service Credit within seven (7) calendar days after Website availability falls below the Monthly Uptime Percentage by sending an email to [email protected] Failure to make a request, or failure to promptly provide any other information as reasonably required by us, will disqualify you from receiving a Service Credit.
- If we confirm that the Website availability was less than the Monthly Uptime Percentage, the relevant Service Credit will usually be applied within 30 days of your request.
Receipt of a Service Credit shall be your sole and exclusive remedy in the event that Website availability falls below the Monthly Uptime Percentage.
6. Intellectual Property
- You warrant and represent that you are the owner or licensee of all intellectual property rights in any materials provided to us or uploaded to the Website and hereby irrevocably agree that you will indemnify and hold us harmless from and against any claims, losses, costs or damages we incur that arise from or as a result of your breach of this warranty.
- b. All intellectual property rights in our Website, the materials provided by us, our techniques and know-how and any intellectual property created during the provision of the Services shall belong exclusively to us.
Each party shall keep in strict confidence all technical or commercial know-how, specifications, inventions, processes or initiatives which are of a confidential nature and have been disclosed to it by the other party for a period of three years from the date on which is contract is formed pursuant to term 2.c.
8. Limitation of Liability
- Nothing in these terms shall limit or exclude our liability for: death or personal injury caused by our negligence; fraud or fraudulent misrepresentation; or for any matter for which it would be illegal for us to exclude or to attempt to exclude our liability.
- We shall not be liable for any pure economic loss, loss of profits, loss of business, loss of revenue, loss of contract, loss or depletion of goodwill and/or business opportunity, loss of anticipated earnings or savings or like loss; wasted management, operational or other time; or any special, indirect or consequential losses.
- Our total liability under or in connection with the contract (whether in contract, tort, breach of statutory duty, restitution or otherwise) in respect of all and any loss or damage howsoever caused shall in no circumstances exceed the Fees actually paid by you as set out in the Order Confirmation to which the loss relates.
- Except as set out in these terms, all warranties, other terms implied by statute or common law are, to the fullest extent permitted by law, excluded.
9. Term and Termination
- Your Subscription shall, unless otherwise agreed by us, continue in force for a period of 12 months (the "Subscription Period) beginning from the date on which you purchase the Subscription
- We shall notify you via email at least seven days before your Subscription is due to expire, with such notice including information regarding the Fees payable if your Subscription is renewed.
- Your Subscription will be automatically renewed for a further minimum term of 12 months on the same terms as are applicable on the date immediately prior to the Subscription Period unless you cancel your subscription for the Services within seven working days of the end of the Subscription Period. This can be done from within your personal account section on the Website. If you elect not to have your Subscription auto-renew then your Subscription will automatically terminate on the last day of your Subscription Period.
- Either party may terminate the contract formed pursuant to term 2.c on 30 days notice using the option to cancel within your personal account section on the Website or in writing, or immediately in the event that the other party participates in or is subject to any winding up, liquidation or other analogous event.
- In the event of termination pursuant to clause 9.d above, no refunds will be given in respect of any outstanding Subscription term remaining.
- When you terminate the contract, your account will be suspended. To enable you to easily return to using the Services in the future, unless you tell us otherwise your personal information will lay dormant until such time as you may choose to purchase a new Subscription and enter into a new contract with us for Services. This will allow you to return to the service at any time, continuing to use your original account and historical data. If you wish for your account to be permanently deleted, you will need to specify this when terminating by selecting the option to completely delete your account.
- Without prejudice to any other remedy, we may terminate your account and any or all Subscriptions, contracts and Services with immediate effect in the event of:
- you not providing full or accurate contact or company information; or
- us considering that you are acting inappropriately or illegally.
- Neither party shall be liable to the other for any failure to perform its obligations under these terms where such performance is delayed or prohibited by events that are beyond its reasonable control.
- Neither party may assign its obligations under these terms without the others consent. Any notice given under these terms shall be in writing and shall be delivered to the other party personally or sent by prepaid first-class post to the registered office of the other party.
- If part of these terms is invalid, illegal or unenforceable, that provision or part-provision shall be deemed deleted, and the validity and enforceability of the other provisions of the contract shall not be affected.
- Nothing in these terms creates a partnership or joint venture of any kind between the parties. A person who is not a party to this contract shall not have any rights under or in connection with it.
- Any variation of these terms must be agreed in writing and signed by us.
- We reserve the right to vary these terms or the Fees at any time at our sole, discretion provided that no such change shall be retrospective in its effect.
- Clauses 5 to 9 inclusive shall survive termination of the contract between us.
- These terms are governed by English law and subject to the exclusive jurisdiction of the courts of England.