USER AGREEMENT/TERMS & CONDITIONS
For Unregistered Users
TABLE OF CONTENTS
A. General Provisions
- 1) Definitions
- 2) CNH Capital America LLC May Serve As
- 3) Restrictions on Use.
- 4) No Unlawful or Prohibited Purpose.
- 5) Company Responsibilities; User Responsibilities.
- 6) Trademark Notice.
- 7) Warranty Disclaimer.
- 8) Limitation of Liability.
- 9) Confidential and Proprietary Information; License to use information.
- 10) Links or Pointers to Other Sites.
- 11) Applicable Law; Resolution of Disputes.
- 12) Entire Agreement.
- 13) Severability.
- 1) Buyer Responsibilities.
- 2) Payment and Shipping.
A. General Provisions
Auto Bid: A feature providing Buyer with a convenient way to automate the increase of their bid(s) using their maximum desired bid and pre-determined bid increments.
Bidibility: Availability of a Listing to be bid upon by an eligible Registered User.
Bid Environment: That segment of Listings that may be bid upon until pulled or moved to the Hot Environment.
Buy it Now: The opportunity to purchase Listing at the advertised price, which removes it from the bid environment.
Company: CNH Capital America LLC
Condition Report Types:
(1) "Company-provided Condition Report" is a document provided to Company by Seller or Inspector indicating the units condition details following a thorough Inspection by a Company-approved Appraiser of equipment, implements or accessories.
(2) "Seller-provided Condition Report" is a document provided to Company by Seller or Inspector indicating the units condition details following a thorough Inspection by a non-Company approved Appraiser of equipment, implements or accessories.
Conditions of Sale: Those terms of sale established to purchase Listings.
Dealer/Distributor: A business entity having a contract with a manufacturer to formally represent and sell their products and/or services.
Hot Environment: That segment of Listings that may be bid upon until the closing deadline.
Hot Lists: Inventory of active Listings found in the Hot Environment.
Inspections: Thorough examination and assessment of equipment, implement or accessory, resulting in a completed Condition Report.
(1) "Classified Listing" means any equipment Listing offered without an end date at a market value and in which the Seller continues to serve as the point of contact. The Site serves as a venue for Registered Sellers to list equipment and for Registered Buyers to locate such equipment. Company is not a party to, nor involved in, the Classified Listing transactions between Buyers and Sellers, nor has control over the Sellers, Buyers or any aspect of the transactions.
(2) "Bid Listing" means any Listing offered within the Bid Environment, and offered without an end date with either a wholesale or retail price depending upon the business rules as published within the "Sell Equipment" web pages, selected for the Listing by the Seller.
(3) "Hot Listing" means any Listing offered within the Hot Environment with either a wholesale or retail price depending upon the business rules, as published within the "Sell Equipment" web pages, selected for the Listing by the Seller.
Opening Bid: The first acceptable bid submitted for a Bid or Hot Listing.
Product Category: Classification or ‘family of equipment or items for sale.
Registered Buyer: A User that has created a Buyer profile within the Tool.
Registered Seller: A User that has created a Seller profile within the Tool.
Registered User Types: (1) "Captive Dealer/Distributor" refers to any CNH dealer/distributor of agricultural, construction, lawn and garden, or recreational equipment, implements, attachments or parts; or commercial vehicles and trailers.
(2) "Non-Captive Dealer/Distributor" refers to any non-CNH dealer/distributor of agricultural, construction, lawn and garden, or recreational equipment, implements, attachments or parts; or commercial vehicles and trailers.
(3) "End User - Commercial" refers to any entity or person that uses agricultural, construction, lawn and garden, or recreational equipment, implements, attachments or parts; or commercial vehicles and trailers to generate income.
Sell Equipment: The link within the web site where Seller creates and edits its Listings of equipment, implements, or accessories.
Services: The tools, feature sets, reports, promotions, communications offered by Company.
System Login: Your assigned User ID and password needed to access restricted areas of the Tool.
Site: The web site known as EquipmentAlley.com
Tool: The web site known as EquipmentAlley.com
Toolset: Applies only to Captive Dealers/Distributors, and is comprised of EquipmentAlley.com and any applicable CNH branded Used.com tool.
Trojan Horse: A computer program that grants the "intruder" access while hiding inside other software, or by pretending to be something it is not.
User Access: Visibility to information and Listings, and bidibility of Listings granted to User based upon Users Profile.
User Profile: Registered Users account details, including Tool access (sell, bid/buy or both), preferred language and currency, and opt in/out preferences.
Winning Bid: The last successful bid at or above any posted minimum or reserve amount for a Bid Listing or Hot Listing.
Worm: Self-replicating computer program that copies itself to other network terminals without any intervention, and consumes bandwidth.
2) CNH Capital America LLC may serve as:
a) Direct Seller: One who offers items for lease or sale to a third party
b) Agent: An agent who negotiates contracts of lease and purchase of its own equipment or that of other Sellers.
c) Creditor: One who deals and provides moneys for investments, leases and purchases
3) Restrictions on Use.
This web site, including all pages within it and all text and graphics made available for viewing or downloading (collectively, the "Site") are the property of CNH America LLC and/or its subsidiaries and affiliates. Issuance of a User ID(s) and password(s) provides you with the ability to gain access to and use the Site in accordance with these TERMS & CONDITIONS.
User acknowledges that they have the following responsibilities regarding the use of Site, their User ID(s) and password(s):
a) Your User profile information shall be kept current, complete and accurate.
b) You alone are responsible for the use of and protection of your User ID and password. It is strongly suggested that you do not disclose your login information to anyone.
c) You will change your password whenever you suspect that others may know your current password.
d) You will refrain from transferring your account profile and Login to another party without our prior written or electronic consent as your password is your signature and verifies your User ID. If you chose to appoint someone as your authorized representative by sharing with them your account profile and Login details, you assume full responsibility for all actions taken under your User ID and password.
e) You may only access data for which you have specific authorization. All data in the Site is confidential and proprietary. You agree not to electronically copy, modify or distribute the data to any other party and to use it only as permitted in these TERMS & CONDITIONS.
f) You will refrain from harvesting or otherwise collecting information about Users, including email addresses, without their consent.
g) You will be responsible for any security breach, such as but not limited to, unauthorized access, collection, modification, or distribution of data, traceable to you or your assigned User ID(s).
h) You will be liable for any willful misuse or intent to cause system damage traceable to you or your assigned User ID(s).
i) All attempts to access the Site and data are recorded by User ID. Upon written request by you for cancellation of your User ID(s), Company will release you from these defined TERMS & CONDITIONS.
j) You will not use our Site and Services if you are not able to form legally binding contracts, are under the age of 18, or are temporarily or indefinitely suspended from our Site.
User agrees to indemnify, defend at your own expense, and hold harmless Company, its subsidiaries, affiliates or related entities, and its service and content suppliers, and the members, managers, officers, directors, employees, consultants and agents of each of them, from any and all claims, liability, damages and/or costs, including but not limited to, attorneys fees, arising from your use of our services, your violation of the TERMS & CONDITIONS, or your infringement, or infringement by any other user of your account, of any intellectual property or other right of any person or entity.
Upon identifying or being informed of non-compliance with or breach of any of the above responsibilities, or TERMS & CONDITIONS, or learning that User has provided false or misleading information, interfered with use by others or administration of our services, Company may in its sole and absolute discretion suspend or terminate Users access to the Site, and may take legal action.
4) No Unlawful or Prohibited Purpose.
As a condition of Users use of this Site, User warrants to Company that User will not use the Site for any purpose that is unlawful or that is prohibited by these TERMS & CONDITIONS. User shall comply with all applicable laws, statutes, ordinances, and regulations regarding Users use of the Site and use of any purchased Listings.
5) Company Responsibilities; User Responsibilities
a) Company agrees to work with and discuss with Seller the Sellers pricing of the equipment (Companys best estimate of the equipments value), selling options- including Hot Lists, EquipmentAlley Auctions, timing of sale, minimum bids, bid increments.
b) Company shall post Equipments pictures and Condition Report provided by Seller on Site.
c) Company shall follow progress of bids, discuss the Bid Listing and Hot Listings with potential Buyers, and market the Bid Listing and Hot Listings in a professional manner to facilitate the sale.
d) For Bid and Hot Listings, Company shall invoice Buyer, collect funds, clear funds and remit to Seller, net of fees as stated in the Conditions of Sale.
e) Company reserves the right to pull equipment and/or prohibit Sellers access to the Site for any breach of the TERMS & CONDITIONS by Seller.
f) Some Listings posted to Site include property not owned by Company, but may be available for purchase in a private foreclosure sale pursuant to the Companys rights as a creditor under Article 9 of the Uniform Commercial Code ("UCC"). Each Listing not owned by Company is subject to the rights of the owner of that Listing under Article 9 of the UCC including, without limitation, the exercise of the right of redemption at any time until the Listing is sold.
g) Company shall inform Buyers of their responsibility for timely pick-up, loading, shipping, and transporting the equipment from the Sellers site to Buyers location.
h) Company agrees to accept Sellers Condition Reports submitted by either fax, mail or electronic format. If the request is sent electronically, a signed hard-copy along with payment of the full monthly listing fee must be forwarded and received within five (5) days for Companys files. Company will not post the Listing until the hard-copy and listing fee are received from the Seller.
6) Trademark Notice.
The Equipment Alley; EquipmentAlleySM; EA; EquipmentAlley.com together with any associated designs and logos, are trademarks and/or service marks of Company, and may not be used without the prior written consent of Company. All other trademarks, service marks and logos used in this Site are the trademarks, service marks or logos of their respective owners.
The Site is protected by federal and international copyright and trademark laws. No portion of the materials on these pages may be reprinted, republished, modified, or distributed in any form without the express written permission of Company. User may download material from the Site solely for the internal use of THEIR business. User shall keep intact any proprietary notices, including copyright notices, contained on any downloaded materials. Any additional rights not expressly granted by these TERMS & CONDITIONS are reserved by Company.
7) Warranty Disclaimer.
COMPANY MAY MODIFY OR DISCONTINUE THE SITE OR ANY OF THE SERVICES OR FEATURES OF THE SITE, INCLUDING SPECIFIC AUCTIONS, WITH OR WITHOUT NOTICE, WITHOUT LIABILITY TO YOU, ANY OTHER USER OR ANY THIRD PARTY FOR ANY REASON. COMPANY ASSUMES NO RESPONSIBILITY FOR THE TIMELINESS, DELETION, MIS-DELIVERY OF OR FAILURE TO STORE ANY USER CORRESPONDENCES.
THIS SITE, INCLUDING ANY CONTENT OR INFORMATION CONTAINED WITHIN IT OR ANY SITE-RELATED SERVICE, AND ALL ITEMS PURCHASED THROUGH SITE ARE PROVIDED "AS-IS", WITH ALL FAULTS, AND "WHERE-IS", WITH NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, EITHER EXPRESSED OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT OF TITLE. USER ASSUMES ALL RESPONSIBILITY AND RISK FOR THEIR USE OF THIS SITE, ITS CONTENT, SITE-RELATED SERVICES, AND HYPERLINKED WEB SITES. COMPANY MAKES NO WARRANTY THAT EQUIPMENT, SITE OR SERVICES WILL MEET BUYERS/END USERS REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING EQUIPMENT ON THE SERVICE OR SITE, THE EQUIPMENT WILL SELL OR WILL BE SUITABLE FOR ANY PURPOSE.
8) Limitation of Liability.
THESE TERMS & CONDITIONS MAY BE REVISED PERIODICALLY. UPON REVISING THESE TERMS & CONDITIONS COMPANY WILL POST THE REVISION TO SITE. THE REVISIONS WILL BE EFFECTIVE IMMEDIATELY. COMPANY ASKS AND ENCOURAGES USER TO REVIEW THESE TERMS & CONDITIONS PERIODICALLY TO BE AWARE AND IN AGREEMENT WITH ANY CHANGES. CONTINUED USE OF THE SITE FOLLOWING CHANGES TO AND POSTING OF REVISED TERMS & CONDITIONS CONSTITUTES USERS AGREEMENT TO THOSE CHANGES. IF, FOR ANY REASON, USER DOES NOT AGREE TO ABIDE BY COMPANYS TERMS & CONDITIONS, USER IS ASKED TO NOT USE THE SITE.
COMPANY MAY CHANGE ITS SITE, OR PRICING STRUCTURE ASSOCIATED WITH SITE SERVICES, AT ANY TIME TO ADD, AMEND OR DISCONTINUE FEATURES, SERVICES, OR AUCTIONS IN ITS SOLE DISCRETION, AND WITHOUT LIABILITY TO ANY USER.
SITE OFFERS A SERVICE FOR CURRENCY EXCHANGE RATE QUOTES. CURRENCY CALCULATIONS ARE FOR INFORMATIONAL PURPOSES ONLY.
COMPANY AND ITS SUBSIDIARIES AND AFFILIATES INCLUDING, WITHOUT LIMITATION, THEIR DIRECTORS, OFFICERS, EMPLOYEES, AGENTS AND REPRESENTATIVES, ARE NEITHER RESPONSIBLE NOR LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, PUNITIVE, OR OTHER DAMAGES ARISING OUT OF OR RELATING IN ANY WAY TO THE SITE, SITE-RELATED SERVICES, CONTENT OR INFORMATION CONTAINED WITHIN THE SITE, LISTINGS, AND/OR ANY HYPERLINKED WEB SITE. USERS SOLE REMEDY FOR DISSATISFACTION WITH THE SITE, SITE-RELATED SERVICES, AND/OR HYPERLINKED WEB SITES IS TO STOP USING THE SITE AND/OR THOSE SERVICES. IN NO EVENT SHALL COMPANY OR A SELLER BE LIABLE FOR ANY DAMAGES OR LOSSES OF ANY KIND ARISING FROM (A) USE OF OR INABILITY TO USE THE SERVICE, THE SITE OR ITS CONTENT; (B) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE EQUIPMENT; OR (C) DEFECTS IN SUCH EQUIPMENT ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY.
COMPANYS TOTAL LIABILITY FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT, TORT [INCLUDING NEGLIGENCE AND STRICT LIABILITY], OR OTHERWISE) RELATING TO A LISTING, SHALL NOT EXCEED THE AMOUNT ACTUALLY PAID FOR THE LISTING. ALTHOUGH COMPANY MAKES REASONABLE ATTEMPTS TO ENSURE ACCURACY OF THE TEXT AND GRAPHICS AVAILABLE ON THE SITE, IT MAKES NO GUARANTEES WHATSOEVER AS TO THE ACCURACY OF SUCH MATERIAL. SUCH MATERIAL MAY INCLUDE INACCURACIES AND ERRORS, AND UNAUTHORIZED ADDITIONS, DELETIONS AND ALTERATIONS COULD BE MADE TO SUCH MATERIAL BY THIRD PARTIES. EACH SELLER IS RESPONSIBLE FOR THE INFORMATION CONTAINED OR NOT CONTAINED WITHIN EQUIPMENTS CONDITION REPORT. TEXT AND GRAPHICS DISPLAYED ON THE SITE MAY BE CHANGED OR UPDATED WITHOUT NOTICE.
9) Confidential and Proprietary Information; License to use information.
Do not send confidential or proprietary information to or through the Site; this excludes Credit Application information, Federal Reseller ID number and expiration date, and your EquipmentAlley User ID and password. Any information or material sent to Company through the Site, including email, will be deemed NOT to be confidential. By sending Company any information or material, User grants Company an unrestricted, irrevocable, world-wide, cost free license to use, reproduce, display, perform, modify, transmit, or distribute that material or information in and on all media now known or later developed, and User also agrees that Company is free to use any ideas, concepts, know-how, or techniques that User sends to Company.
10) Links or Pointers to Other Sites.
Company makes no representations whatsoever about any other web sites that User may access through this Site. Non-Company web sites are not the property of Company, and thus Company has no control over their content. The presence on the Company Site of a hyperlink to a non-Company web site does not mean that Company endorses or accepts any responsibility for the content, or the use of the linked site from the Company Site. It is up to User to take precautions to ensure that whatever User uses or download is free of such items as viruses, Worms, Trojan Horses, or other destructive software or the effects of the same.
11) Applicable Law; Resolution of Disputes.
The purchase of a Company Listing is d deemed to occur in Racine, Racine County, Wisconsin, United States of America. These TERMS & CONDITIONS shall be for all purposes governed by and construed in accordance with the laws of the State of Wisconsin, exclusive of its choice of law rules. User agrees that all actions or proceedings arising in connection with Users use of the Site, the Bid and Hot Listings, and/or these TERMS & CONDITIONS shall be tried and litigated exclusively in the state courts sitting in Racine County, Wisconsin, or the federal courts sitting in Milwaukee County, Wisconsin. This choice of venue is intended by the parties to be mandatory and not permissive. Each party waives any right it may have to assert the doctrine of forum non conveniens or similar doctrine or to object to venue with respect to any proceeding brought in accordance with this Section. The parties expressly agree that the resolution of disputes shall be conducted in the English language.
12) Entire Agreement.
These TERMS & CONDITIONS constitute the entire agreement between Company and User pertaining to the subject matter hereof, superseding all prior written or oral negotiations, understandings and agreements. In its sole discretion, Company may modify these TERMS & CONDITIONS by posting the revised version on this Site and any such modification shall become effective immediately upon being so posted and shall be applicable to all existing and new Listings. Users continued use of Site and the Services following posting of changes will constitute Users agreement to such changed agreement.
If any portion of these TERMS & CONDITIONS is found or deemed by a court of competent Jurisdiction to be invalid or unenforceable, such portion shall be severable from the remainder of the TERMS & CONDITIONS and shall not cause the remainder of the TERMS & CONDITIONS to be invalid or unenforceable.
B. Terms of Buying (Unregistered Users as Buyers)
1) Buyer Responsibilities.
a) Buyer agrees that Site contains Listings of used equipment, attachments and accessories of Sellers who are making the offer for sale rather than Company.
b) Buyer agrees that Company assumes no responsibility or liability specifically but not limited to any information, specifications, Condition Reports, photography, availability, pricing, taxes or duties, or warranty information found at Site, or at any link contained in a linked site.
c) Buyer agrees that each Seller is responsible for the information contained in or omitted from a Listing.
2) Payment and Shipping.
a) Final cost and payment terms for sale transactions shall be made according to the Sellers Conditions of Sale.
b) Methods of acceptable payment are at the Sellers direction.
c) Buyer and Seller together will agree upon the responsible party(ies) for all costs and expenses, including shipping, handling insurance, export and import licenses, permits and approvals associated with transporting and delivering purchased items from Sellers location of the equipment to Buyers location.
d) Buyer agrees that Company shall have no responsibility for costs and expenses, including shipping, handling insurance, export and import licenses, permits and approvals associated with transporting and delivering purchased items from Sellers location of the equipment to Buyers location.
e) Buyer agrees that Buyer is responsible for paying and remitting all applicable excise taxes, customs duties, sales and use taxes, and other taxes including without limitation value-added taxes (including the Goods and Services Tax and the Harmonized Sales Tax or any successor tax), and provincial retail sales taxes.
f) Buyers interested in requesting financing through Company can review the TERMS & CONDITIONS of the Credit Application. Click here to view.
g) Buyer agrees that if the equipment will be shipped to Canada, Buyer is responsible for shipment to the Canadian destination in compliance with the laws of such destination and the United States, and that there will be no re-export or diversion from such specified destination.