Heartland Iron, LLC
TERMS AND CONDITIONS
Revised June 12, 2007
Welcome to Heartland
Iron's online marketplace http://www.heartlandiron.com
(the "Site"). Any person who wishes to access the Site to buy
or bid for equipment or to use the other services provided on the Site
(collectively, the "Services") must accept the terms and conditions
of this User Agreement, without change. PLEASE REVIEW THE FOLLOWING TERMS
OF SERVICE CAREFULLY BEFORE USING THE SITE. BY REGISTERING FOR AND USING
THE SERVICES, YOU AGREE TO BE BOUND BY ALL TERMS AND CONDITIONS OF THIS
AGREEMENT AND ALL POLICIES AND GUIDELINES INCORPORATED BY REFERENCE.
The Heartland Iron web site, or online marketplace currently located at
http://www.heartlandiron.com
(the "Heartland Iron Site" or "Site") and services
offered herein including without limitation the auction services in the
Heartland Iron Feature Auctions ("Feature Auction") or Heartland
Iron Direct Auctions ("Direct Auction" and collectively the
"Services", "Auction" or "Auctions") for
equipment and other items (collectively "Equipment") are provided
by heartlandiron.com, Inc. ("Heartland Iron" or "we")
to you ("you" or "user") subject to the following
terms and conditions set forth in this User Agreement (the "Agreement").
Acceptance of Terms.
Any person who wishes to access the Site to buy or bid for goods or to
use the other services provided on the Site (collectively, the "Services")
must accept the terms and conditions of this User Agreement, without change
and become a registered user. YOU MUST CHECK THE SPACE NEXT TO THE "I
AGREE TERMS & CONDITIONS" TEXT, WHICH REPRESENTS 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 use the Site.
Amendment.
Heartland Iron is able to, at its sole discretion, modify, change, remove
or add 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 this Service and/or the Site after such
changes are posted will establish your agreement to such changed Agreement.
Eligibility Requirements
Eligibility. Use of the Site and the Services is limited to parties that
lawfully can enter into and form contracts under applicable law. Minors
may not use the Services. Every person who uses the Services hereby represents
to Heartland Iron that he or she is not a minor, is at least over the
age of eighteen (18) and may otherwise enter into and form binding contracts
under applicable law. To register, you must provide your real name, address,
phone number and e-mail address, along with other information that may
be required from time to time. Without limiting the preceding, no minors
in any jurisdiction nor individuals who have been suspended from the Services
may participate in Heartland Iron's Services.
Registration
In order to participate in the Services, users must register with Heartland
Iron by filling out a registration form and providing certain public and
nonpublic information to Heartland Iron. When Heartland Iron has notified
users that their registration form has been approved, such user shall
become a "Registered User" of Heartland Iron Auctions. You agree
that such information shall be (and kept) current, complete and accurate.
Heartland Iron reserves the right to disapprove, inactivate, discontinue,
suspend or terminate your registration for any reason, at its sole discretion,
and to prohibit you (“Registered User”) from participating
in the Services or Site.
Password Security.
During the registration process, you will select a bidder number and password.
You are entirely responsible in all respects for all use of and for protecting
the confidentiality of your bidder number and password. You are solely
responsible for any use of or action taken under your password on this
Site. You agree to notify Heartland Iron as soon as possible of any unauthorized
use of any bidder number and password or any other breach of security
regarding the Services or Site.
Heartland Iron is not an auctioneer.
Although Heartland Iron is commonly referred to as an online auction web
site, it is important to realize that we are not a traditional "auctioneer."
Instead, the Site is a service and acts as a venue to allow certain persons
to sell and buy certain products at anytime, from anywhere, in a variety
of pricing formats commonly referred to as "online auctions"
or "auctions." Heartland Iron is not a party to any transaction
relating to Equipment. Heartland Iron is not involved in, nor a party
to, the transactions between Buyers and Sellers. Heartland Iron has no
control over the Sellers, Buyers or any aspect of any/all transactions.
Release
In the event that you have a dispute with one or more users, you release
Heartland Iron (and our officers, directors, agents, and employees) from
claims, demands and damages (actual and consequential) of every kind and
nature, disclosed and undisclosed, known and unknown, suspected and unsuspected,
arising out of or in any way connected with such disputes.
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 URL
Location
II. Consignment Agreement
Consignment Agreement. In order to auction your equipment, you agree to
abide by the terms and conditions in the Auction Consignment Agreement
which is hereby incorporated by reference and located at URL LOCATION
III. Auctions and Bids
Heartland Iron’s auctions. Heartland Iron features two types of
auctions. Heartland Iron’s role differs in each type of auction.
A. Direct Auction. A Direct Auction is a piece of machinery
being consigned by it’s owner. The event is unscheduled and does
not appear on any sale bill or scheduled auction of Heartland Iron’s.
The seller is responsible for obtaining all information for this sale.
Heartland Iron takes not responsibility for all aspects of the product
listing, descriptions, identification of quantities, establishment of
reserve requirements (if necessary), and establishment of starting and
maximum bid prices.
B. Feature Auction. A Feature Auction is a scheduled,
timed event and usually appears on a sale bill created by Heartland Iron
and usually contained on the Heartland Iron Site. The seller has the option
to obtain an inspection by Heartland Iron and attain an “Anvil Approval”
guarantee. Any item sold by this method is subject to Heartland Iron obtaining
a tiered consignment fee. Consignment fees are described in their entirety
in Heartland Iron's Consignment
Agreement
Auction Period.
The Auction period shall be determined by Heartland Iron and will end
at either a time to be determined by Heartland Iron or set period of time,
being of three minutes, or of no bidding activity, whichever is later.
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. This includes, but is 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.
Winning Bids.
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 a Direct Auction and have met the applicable Reserve Price,
if any, 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 HEARTLAND IRON SITE IS THE LEGAL EQUIVALENT
OF A PURCHASE ORDER. Heartland Iron is the only judge for the determination
of winning bids, however, Heartland Iron shall not be held liable for
any errors or omissions relating to such determination, whether by Heartland
Iron or some other person.
Notification of Assignment of Rights.
Heartland Iron 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. If you are an agricultural
farmer of the State of Nebraska and are using the machinery for agricultural
use, you may qualify for tax exemption by using Form
13AG. Out of state agricultural farmers should use the equivalent
of Nebraska Form 13. If you are a machinery
or equipment dealer, you may qualify for exemption by using
form 13 A. If you should have any further questions, you should contact
The Department of Revenue of the state you live in. An example
of a Nebraska Department of Revenue Form
13AG can be found at http://www.revenue.ne.gov/tax/current/f_13.pdf
Heartland Iron Rights.
Heartland Iron retains the right, but does not have the obligation, to
immediately halt any auction or product sale, prevent or restrict access
to the Site or the Services or take any other action in case of technical
problems, objectionable material, inaccurate listings, inappropriately
categorized items, auction inaccuracies, product inaccuracies, unlawful
items, items, procedures, or actions otherwise prohibited by the procedures
and guidelines contained on the Site, or for any other reason in the sole
and absolute discretion of Heartland Iron, and to correct any inaccurate
listing, auction inaccuracies, product inaccuracies, inappropriately categorized
items or technical problems on the Site.
Postponement and Cancellation.
Heartland Iron reserves the right to postpone or cancel any Feature Auction
or Direct Auction, or any sale resulting thence, in its own discretion,
without notice. Heartland Iron will have no liability to prospective bidders
or Sellers as a result of any withdrawal, postponement or cancellation
of Auctions or sales.
IV. Listing Fees, Commission Fees, and Penalty Fees
Heartland Iron's fees and commissions for Sellers are available on our
Schedule of Fees and
are hereby incorporated by reference. Heartland Iron 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. Transactions
Liability for Equipment.
Seller’ Liability.
The Equipment shall be and remain at the risk of the Seller (and not Heartland
Iron) until the Equipment is removed from the Equipment location posted
by the Buyer or the Buyer's designated transportation provider.
Buyer’s Liability.
The equipment shall be and remain at the risk of the Buyer and/or the
Buyer's designated transportation provider (and not Heartland Iron) while
in transport and shall remain at the risk of the Buyer once delivered
to the designated delivery 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 Heartland Iron's satisfaction on behalf of the Seller
a valid exemption certificate from such taxes. Buyers and Sellers acknowledge
and agree that Heartland Iron 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 Heartland Iron 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 Heartland Iron 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.
Payment and Payment Schedule.
Full payment from the winning bidder (Buyer) in the amount of the auction
closing price, applicable sales tax and the Buyer Fee must post to a secure
payment account designated by Heartland Iron within three (3) business
days after the close of the Auction for the specified piece of Equipment.
Buyers from the United States may send payments via wire transfer or certified
bank check.
Buyer Default.
If, after three (3) 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 Heartland Iron Site. In addition, the
Buyer will be barred from further use of the Heartland Iron Site until
the Default Penalty is paid.
Transport and Constructive Receipt.
Freight and Transportation.
The Buyer is responsible for all freight, shipping and other costs related
to transporting the Equipment from the posted Equipment location. This
includes, but is 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 may also arrange for transportation
of Equipment on the Heartland Iron web site through a third party, but
Heartland Iron 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 Heartland Iron 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
any applicable fees) has been received by and posted to a secure payment
account designated by Heartland Iron.
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 to the Buyer no later than
three (3) 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 applicable
fees) have been received by and posted to a secure payment account designated
by Heartland Iron. If a Buyer has not removed the Equipment from the Seller's
location within fifteen (15) 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.
Seller may levy storage fees on equipment that has been purchased and
has not been removed by the Buyer from the Seller’s location within
fifteen (15) business days if so desired. Seller must contact Heartland
Iron if the aforementioned levy(s) are placed on the Buyer.
Release Documents
Equipment release documents will be generated when payment is secured
into Heartland Iron’s designated account. Equipment release documents
will be generated within 3 business days of receipt.
Constructive Receipt.
Constructive Receipt of Equipment occurs when full payment is made and
one of the following occurs:
IF THE BUYER TRANSPORTS:
1. At the time of the equipment leaving the pickup point.
2. Ten business days after close of the auction.
3. At the time of buyer disassembly for transport.
IF COMMON CARRIER OR OTHER TRANSPORT IS USED:
1. 24 hours after delivery of the equipment to the buyer’s designated
location.
2. At the time of disassembly by the buyer’s agent or common carrier.
3. Fifteen (15) Business Days after the close of the auction.
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 the Anvil Approval Guarantee are
invalid, as set forth in Section VIII.
VII. Payment, Transaction Fees, Penalty Fees
Remittance of Proceeds.
Heartland Iron will remit the total purchase price less any commission
or applicable fees to Seller for such sold Equipment within three (3)
business days of the Buyer's receipt of any title documents (if applicable)
and/or Constructive Receipt of Equipment by the Buyer. Payments will be
made preferably by electronic wire transfer or by cashier’s check
(subject to additional fees for overnight courier).
Ownership Certification, Verification and Lien Searches.
In its sole discretion, Heartland Iron may perform title and lien searches
to investigate the existence of filed UCC financing statements and/or
Security Agreements on the Equipment. Heartland Iron may charge the Seller
a fee for this verification. Sellers are responsible for providing lien-free
Equipment to Heartland Iron's Website or Service. 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, Heartland Iron may at its sole discretion
remove such lien, encumbrance or adverse claim using Seller proceeds payable
to the rightful lienholder 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 further pay Heartland Iron upon demand all of Heartland
Iron'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 18% per annum compounded daily. No such
payment or performance by Heartland Iron shall be deemed to waive breach
by the Seller, or relieve the Seller, of its obligations under this Agreement.
Removal Penalty Prior to Direct Auction Close.
If, for any reason, the Seller withdraws a piece of Equipment listed in
a Direct Auction from the Heartland Iron Site after the time of Equipment
Listing but before the auction closes, the Seller agrees to pay Heartland
Iron a removal fee equivalent to the greater of (i) the full commission
fee or (ii) the equivalent of the commission fee of the winning auction
closing price as if the Equipment were sold. If any equipment is removed
by Heartland Iron for any reason due to Seller’s misconduct, the
Seller will pay Heartland Iron the removal penalty prior to the direct
auction close.
VIII. Anvil Approval Guarantee
Registered Buyers must realize that Heartland Iron’s Inspection
Reports are prepared by knowledgeable inspectors and are as comprehensive
as possible. One should understand that used equipment is exactly that,
used. It is the Site’s Mission Operative that a registered buyer
should be a more knowledgeable buyer in that it has been inspected to
the best of the Service’s ability.
Heartland Iron's Anvil Approval Guarantee is based on knowledgeable Buyers
who both read our comprehensive 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. Anvil Approval Guarantee 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.
Please review all the pictures in a detailed manner.
If a Buyer discovers and reasonably concludes an Equipment purchase 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, Anvil Approval protection permits the Buyer
to submit a written claim to Heartland Iron. 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:
Determination of a changed condition will be made only as the result
of a re-inspection by Heartland Iron and a comparison of the re-inspection
results with the initial Heartland Iron inspection.
Only conditions found by the Buyer to be substantially different than
reported in the Heartland Iron 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 in field work conditions, e.g. 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; machinery
under load; disassembly or the use of diagnostic or test equipment in
order to evaluate such characteristics such as engine compression.
Heartland Iron shall not be responsible for dispute claims filed due
to changes in Equipment condition as a result of exposure to the elements
(wind, rain, snow, sleet, etc.) such as leaky seals, belts/pulleys, hoses,
corrosion, paint fade, window grazing, water contamination or fuel contamination.
Furthermore, Heartland Iron shall not be liable for failure of Electronic
Modules for systems or components nor for electronic displays, dead batteries
or lights.
Heartland Iron 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 into field conditions. 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 Anvil Approval. Heartland Iron 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,
if applicable.
Heartland Iron cannot be responsible for misinterpretation or oversight
by the Buyer. Heartland Iron 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.
Heartland Iron 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.
Heartland Iron shall not be responsible for dispute claims filed if
the Equipment is damaged by the Buyer or the transportation company.
Heartland Iron shall not be responsible for dispute claims filed if
the Buyer operates, leases, rents, or in any way causes or allows the
Equipment to be used or operated prior to the expiration of the time periods
identified in Section V. 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, Heartland Iron 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.
Heartland Iron 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 Heartland
Iron.
Heartland Iron shall not be responsible for any dispute claims filed
due to changes in Equipment due to an “act of God” such as
a tornado, flood, earthquake or other natural disaster.
The pick-up location for the purchased Equipment must be in the United
States.
In the event of a valid claim, Heartland Iron may either refund the full
purchase price to the Buyer (inclusive of the Buyer 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
Heartland Iron may settle such claim in another mutually beneficial manner
for the Buyer (subject to a $500 deductible).
Adjudication of Equipment Dispute.
Heartland Iron will be solely responsible for the review and adjudication
of any dispute. All determinations made by Heartland Iron shall be final.
Entire Agreement.
These terms set out the entire understanding between Heartland Iron 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.
