BY SIGNING THESE TERMS AND CONDITIONS OF BUSINESS AND/OR DOWNLOADING, AND/OR ACCESSING OR USING THE WEBSITE OR SERVICES IN ANY MANNER (WHETHER AUTOMATED OR OTHERWISE), YOU REPRESENT THAT (1) YOU HAVE READ, UNDERSTAND, AND AGREE TO BE BOUND BY THESE TERMS AND CONDITIONS OF BUSINESS, (2) YOU ARE OF LEGAL AGE TO FORM A BINDING CONTRACT WITH KRANK, AND (3) YOU HAVE THE AUTHORITY TO ENTER INTO THESE TERMS AND CONDITIONS OF BUSINESS PERSONALLY OR ON BEHALF OF THE COMPANY YOU HAVE NAMED AS THE USER, AND TO BIND THAT COMPANY TO THESE TERMS AND CONDITIONS OF BUSINESS. IF YOU DO NOT AGREE TO THESE TERMSAND CONDITIONS OF BUSINESS, YOU MAY NOT ACCESS OR USE THE WEBSITE OR SERVICES. THESE TERMS AND CONDITIONS OF BUSINESS ALSO INCLUDE: (I) A CLASS ACTION WAIVER, WHICH MEANS THAT YOU AGREE TO PROCEED WITH ANY DISPUTE INDIVIDUALLY AND NOT AS PART OF A CLASS ACTION; AND (II) A JURY TRIAL WAIVER.

1. Definitions

a. Fees means the fees to be paid to us in consideration for the Services;

b. Order Confirmation means the confirmation of purchase on the Website of a Subscription for the Services;

c. Services means the provision of an online auction platform for

• Heavy plant and machinery
• General transportation & engines, including cars, trucks and all varieties of transportation vehicles, spare parts etc.
• All varieties of oil & gas equipment, spare parts and attachments
• All varieties of aircraft and aircraft spare parts
• All varieties of marine vessels, offshore platforms, attachments
• All varieties of general construction equipment and tools
• All varieties of farming and forestry equipment, attachments and tools and network services for dealers and users of such heavy plant machinery, as further described on the Website (the “Platform”);

d. Subscription means a subscription obtained or purchased by you from us which enables access to the Services, as further described on the Website;

f. Website means www.krank.com ; and

g. Website Terms of Use means the Krank Limited website terms of use, which can be found at [insert link to terms of use].

2. Basis of Contract

1. These terms and conditions (“these terms”), along with (i) the Website Terms of Use, (ii) the Order Confirmation and (iii) any other terms or declarations you are required to agree to when using the Platform (for example to use optional selling modules) including, but not limited to, the Online Auction Agreement [insert link] entered into by you and Krank (the “Online Auction Agreement”), and the Seller’s Declaration [insert link] (if applicable)(collectively, the “Additional Agreements”), form the basis of the legal relationship between you and us under which we will agree to provide you with the Services.
2. In order to access the Services, you must first purchase a Subscription from our Website.
3. A legally binding contract between us and you comprising these terms, the Website Terms of Use, the Order Confirmation and the Additional Agreements will come into effect when the screen confirming successful purchase of a Subscription appears on the Website.
4. You acknowledge that such contract is conditional upon you passing our credit checking process.

3. Charges and Payment

1. 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.
2. The Fees will be payable in advance.
3. 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).
4. 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.
5. 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.

4. Obligations

1. 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).
2. 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.
3. 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.
4. 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. You agree that you will at all times comply with our Website Terms of Use when accessing and using the Website or accessing or using the Services.

5. Service Levels

1. 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”).
2. In the event that the Website availability falls below the Monthly Uptime Percentage, you shall be entitled to a one-time credit to your account equal to US $300 , (a Service Credit)
3. 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.
4. 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.
5. 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

1. 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.
2. All intellectual property rights in our Website, Platform, 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.

7. Confidentiality

1. 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 (“Confidential Information”) for a period of three years from the date on which is contract is formed pursuant to term 2.c. Confidential Information will not include any information that: (a) is or becomes generally known to the public without breach of any obligation owed to the disclosing party; (b) was known to a party prior to its disclosure by the other party without breach of any obligation owed to the other party; (c) was independently developed by a party without breach of any obligation owed to the other party; or (d) was or is received from a third party without breach of any obligation owed to the other party.

8. Limitation of Liability

1. NOTHING IN THESE TERMS SHALL LIMIT OR EXCLUDE OUR LIABILITY FOR: DEATH OR BODILY INJURY CAUSED BY OUR GROSS 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.
2. 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. INCIDENTIAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOSSES.
3. OUR TOTAL LIABILITY UNDER OR IN CONNECTION WITH THESE TERMS (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.
4. 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, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE, MERCHANTABILITY, TITLE OR NON-INFRINGEMENT.
5. ANY CAUSE OF ACTION OR CLAIM YOU MAY HAVE ARISING OUT OF OR RELATING TO THESE TERMS MUST BE COMMENCED WITHIN ONE (1) YEAR AFTER THE CAUSE OF ACTION OR CLAIM ACCRUES, OTHERWISE, SUCH CAUSE OF ACTION OR CLAIM IS PERMANENTLY BARRED.

9. Term and Termination

1. 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.
2. 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.
3. 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.
4. 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.
5. In the event of termination pursuant to clause 9.d above, no refunds will be given in respect of any outstanding Subscription term remaining.
6. 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.
7. 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:
   1. a material or persistent breach of these terms or the Website Terms of Use by you;
   2. you not providing full or accurate contact or company information; or
   3. us considering that you are acting inappropriately or illegally.

10. General

1. 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.
2. Neither party may assign its obligations under these terms without the other’s 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.
3. These terms, our cookie and privacy policies which are available on the Website, the Website Terms of Use, Order Confirmation and the Additional Agreements constitute the entire agreement between the parties. To the extent that any part of these terms and an Order Confirmation conflict, the Order Confirmation shall prevail. To the extent that any part of these terms and the Online Auction Agreement conflict, the terms of the Online Auction Agreement shall prevail.
4. 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 these terms shall not be affected.
5. 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.
6. Any variation of these terms must be agreed in writing and signed by us.
7. 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.
8. Clauses 5 to 10 inclusive shall survive termination of these terms.
9. Any dispute arising out of or in connection with these terms, including any question regarding its existence, validity or termination, shall be referred to and finally resolved by arbitration under the LCIA Rules, which Rules are deemed to be incorporated by reference into this clause.
   1. The seat, or legal place, of arbitration shall be London.
   2. The language to be used in the arbitral proceedings shall be English.
   3. The governing law of these terms shall be the substantive law of England.
10. JURY TRIAL AND CLASS ACTION WAIVER. YOU AND KRANK EACH UNCONDITIONALLY WAIVE ANY RIGHT TO A JURY TRIAL. THIS MEANS THAT ANY CLAIM WOULD BE DECIDED BY A JUDGE, NOT A JURY. FURTHER, WITH RESPECT TO ANY CLAIM THAT PROCEEDS IN A COURT, YOU AND WE AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING.
11. CLASS ACTION WAIVER OPT-OUT PROCEDURE. IF YOU DO NOT WISH TO BE BOUND BY THE CLASS ACTION WAIVER IN SUBSECTION 10.J ABOVE, YOU MUST NOTIFY KRANK IN WRITING WITHIN 30 DAYS OF THE DATE THAT YOU ACCEPT THESE TERMS FOR THE FIRST TIME. YOU MAY OPT OUT BY MAILING A WRITTEN NOTICE TO KRANK AT THE FOLLOWING ADDRESS: [INSERT ADDRESS]. YOUR WRITTEN NOTIFICATION TO KRANK MUST INCLUDE YOUR NAME, MAILING ADDRESS, E-MAIL ADDRESS, PHONE NUMBER AND KRANK ACCOUNT NUMBER AS WELL AS A CLEAR STATEMENT THAT YOU DO NOT WISH TO WAIVE YOUR RIGHT TO BRING A CLAIM AS A PLAINTIFF OR CLASS MEMBER IN A CLASS , REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. IF YOU OPT OUT OF THE CLASS ACTION WAIVER PROVISIONS IN THIS SECTION 10.k, ALL OTHER PROVISIONS OF THESE TERMS WILL CONTINUE TO APPLY.