Last revised on 14-Jul-2008
The Coates Used Equipment Sales web site currently located at http://usedequipment.coates.com.au (the "Coates Site" or "Site") and services offered herein including without limitation the sale and auction of equipment and other items (collectively "Equipment") are provided by Coates Trading Pty Limited . ("Coates" 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. Before you attempt to buy or sell any Equipment through the
Services and/or begin participating in or using the Site, Coates requires that you read and accept the
following Agreement. BY CHECKING ON THE SPACE NEXT TO THE "ACCEPT TERMS
& CONDITIONS" TEXT, YOU HEREBY REPRESENT 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 otherwise use the Site. If you have any questions
regarding this Agreement, please contact us.
Amendment. Coates may, at its sole discretion, change, modify, add or remove 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 the
Site and the Service after such changes are posted will constitute your
agreement to such changed Agreement. This Agreement was last revised on 14th
July 2008.
I. Participation Requirements
Capacity to Contract. These Services are
available only to individuals or entities who can form
legally binding contracts. Without limiting the foregoing, neither minors in
any jurisdiction nor individuals who have been suspended from the Services may
participate in Coates Services.
Registration.
In order to participate in the Services, users must register with Coates by filling out a registration form and
providing certain information to Coates. When Coates has notified
users that their registration form has been approved, such user shall become a
"Registered User." You agree that such information shall be (and
kept) current, complete and accurate. Coates reserves the right to
disapprove, suspend or terminate your registration for any reason, at its sole
discretion, and to prohibit you from participating in the Services.
Login ID, Password and Security. During the registration process, you
will select a login ID and password. You are solely responsible in all respects
for all use of and for protecting the confidentiality of your login ID and
password. You agree to notify Coates immediately of any unauthorized use
of any login ID and password or any other breach of security regarding the
Services.
Release. In the event that you have a dispute with one or more users, you release Coates (and our officers, directors, agents, subsidiaries and employees) from claims, demands and damages (actual and consequential) of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, arising out of or in any way connected with such disputes.
Information Control. Coates cannot control the information provided by users which is made
available through the Services. Users may find other user's information to be
offensive, harmful, inaccurate or deceptive. Please use caution and common
sense when using the Site. Coates has no control over the quality,
safety or legality of the Equipment listed, the truth
or accuracy of the listings or any other information provided by the user about
the Equipment.
II. Auctions
Auction Period. The Auction period shall be
determined by Coates and will end at either a time to be determined by Coates
or a three-minute period 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,
including, but 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.
Binding Offer to Purchase. If you are the highest bidder ("Buyer") at the end of a Reserved
Auction and have met the applicable Reserve Price, if any, or if you
accept a Second Chance Offer extended by the Coates, if any such offer is made,
you are obligated to complete the transaction with the Coates unless the
transaction is prohibited by law or by this Agreement. Bidders agree that
bidding on the Coates Site is the legal equivalent of a firm purchase
order.
Notification of Assignment of Rights. Coates 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.
Void Bids. Coates reserves the right to reject or void bids, whether winning or not, which
it believes have not been made in good faith, are intended to manipulate the
Auction process, or are prohibited by applicable law.
Winning Bids. Coates is the one and
only judge for the determination of winning bids, but Coates shall not
be liable for any errors or omissions relating to such determination, whether
by Coates or some other person.
Postponement and Cancellation. Coates
reserves the right to postpone or cancel any Featured Auction or Daily Marketplace,
or any sale resulting there from, in its own
discretion, without notice. Coates will have no liability to prospective
bidders or Sellers as a result of any withdrawal, cancellation or postponement
of Auctions or sales.
III. Completion of Transactions
Liability for Equipment. The equipment shall be and remain at the risk of the Buyer and/or the Buyer's designated transportation provider (and not Coates) while in transport. The equipment shall be and remain at the risk of the Buyer once delivered to the designated location.
Goods and Services Tax. All bids and offers
must EXCLUDE Goods and Services Tax imposed with respect to the sale or
purchase transaction. Buyers are liable for all such taxes..
Each Buyer shall indemnify Coates
against any tax, cost or expense relating to the failure of the Buyer to
satisfy any Goods and Services Tax, sales or use tax liability related to a
transaction. Each Seller shall indemnify Coates against any tax, cost or
expense relating to the failure of the Seller to satisfy any Goods and Services
Tax, sales or use tax liability related to a transaction within their
jurisdiction
Payment and Payment Schedule. Full payment
from the winning bidder in the amount of the auction closing price, applicable Goods
and Services Tax must post to a secure payment account
designated by Coates within three (3) business days after the close of
the Auction for the piece of Equipment. Buyers from Australia may send
payments via wire transfer or certified bank check. Buyers from outside the Australia
must send all payments via wire transfer.
Buyer Default. If, after five (5) 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 Coates Site. In addition, the
Buyer will be barred from further use of the Coates Site until the
Default Penalty is paid.
Buyer Removal of Equipment. The Buyer is
responsible for loading the Equipment and for the transportation of the Equipment, unless
otherwise noted in the Equipment listing. The Buyer acknowledges that it must
conduct its own investigations to ascertain the safe and proper method for
loading and transporting the Equipment in compliance with all applicable state
and federal laws.
Coates makes no representation as to how the Equipment must be loaded or
transported. The Buyer acknowledges that it will be liable for any failure to
comply with any road transport legislation or regulations or any other laws
relating to the decommissioning, loading or carriage of the Equipment. Coates
agrees to have the Equipment available for transportation to the Buyer no later
than one (1) business day after the receipt of cleared funds from the Buyer.
Buyer may remove the Equipment from Coates location once the total purchase price
(and any applicable Goods and Services Tax) has been received by and posted to a
secure payment account designated by Coates. If a Buyer has not removed the
Equipment from Coates location within eight (8) business days after the close
of the Auction for the piece of Equipment, a Buyer will be responsible for
directly paying Coates any and all storage fees if levied by Coates.
Notice to Buyer: Coates may deem Buyer's failure to claim property within
thirty (30) days following a final sales transaction to be evidence of Buyer's
intent to abandon the property. Where Buyer fails to claim property within
thirty (30) days following a final sales transaction, Coates may take action
that is adverse to Buyer's interest in the property, including but not limited
to any appropriate steps under Australian law to dispose of the property
through Coates which will remit proceeds to the abandoning Buyer, net of actual
and reasonable costs to include a twenty-five (25%) percent commission.
Freight and Transportation. The Buyer is
responsible for all freight, shipping and other costs related to transporting
the Equipment from the posted Equipment location, including but 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 are
advised to have all such certificates and permits issued and completed prior to
transporting the equipment; otherwise Buyer may be subject to cleaning, permit,
and/or other fees if the Equipment is stopped and held at a Port of Entry to a
state, province or country. Buyers may arrange transportation of Equipment on
the Coates web site through a third party, but Coates 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 Coates 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) has been received by and posted
to a secure payment account designated by Coates.
IV. Disclaimer; Limitation of Liability;
Indemnity
Disclaimer. THE EQUIPMENT, SITE AND SERVICE,
INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON
OR ACCESSED THROUGH THE SITE OR THE SERVICE (INCLUDING WITHOUT LIMITATION THE
INSPECTION REPORT), ARE PROVIDED ON AN "AS IS," "AS
AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND
WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT,
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. COATES DOES NOT
WARRANT THAT THE EQUIPMENT, SERVICE OR THE FUNCTIONS, FEATURES OR CONTENT
INCLUDING THE INSPECTION REPORT CONTAINED THEREIN OR IN THE SITE WILL BE
FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL
BE CORRECTED. COATES AND SELLER MAKE NO WARRANTY THAT THE EQUIPMENT,
SITE OR SERVICE WILL MEET BUYERS'/USERS' REQUIREMENTS OR EXPECTATIONS, AND
EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING EQUIPMENT ON
THE SERVICE OR THE SITE, THE LISTED EQUIPMENT WILL BE SOLD OR WILL BE SUITABLE
FOR ANY PURPOSE. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY SERVICES ON THE
SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICE. COATES
MAKES NO WARRANTY REGARDING ANY EQUIPMENT OR SERVICES PURCHASED OR
OBTAINED THROUGH THE SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE
SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU
FROM COATES OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT
EXPRESSLY MADE HEREIN. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN
WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS. COATES
EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY EQUIPMENT SOLD ON
OR THROUGH THE SERVICE, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR
BREACHES COMMITTED BY ANOTHER USER.
Limitation of Liability. IN NO EVENT SHALL
COATES NOR SELLER BE LIABLE FOR ANY DAMAGES OF ANY KIND
ARISING FROM (A) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE EQUIPMENT
OR (B) DEFECTS IN SUCH EQUIPMENT ON ANY THEORY OF LIABILITY INCLUDING WITHOUT
LIMITATION PRODUCT LIABILITY. IN ADDITION, IN NO EVENT SHALL COATES OR
SELLER BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE
DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE
SERVICE, THE SITE OR ITS CONTENT INCLUDING WITHOUT LIMITATION THE INSPECTION
REPORT AND MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT
LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST
SALES, EVEN IF COATES OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. SOME JURISDICTIONS DO NOT ALLOW THE
LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO
SOME OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN NO EVENT SHALL
THE TOTAL LIABILITY OF COATES TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES
OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO,
NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) ARISING FROM THIS AGREEMENT OR YOUR
USE OF THE SITE AND THE SERVICE EXCEED, IN THE AGGREGATE, $100.00.
Indemnity. You agree to defend, indemnify
and hold harmless Coates, its officers, directors, agents, subsidiaries
and employees from claims, demands and damages, actual and consequential, of
every kind and nature, known and unknown, suspected and unsuspected, disclosed
and undisclosed, to the extent arising out of or in any way connected with any
breach or violation by you of this Agreement, any use by you of the Site or any
disputes or damages arising out of your use of or contracts formed with you
through this Site.
V. General Provisions
Eligibility.
Prices. All prices are listed according to
their value in Australian dollars.
Taxes. Buyers, if applicable, are
responsible for providing Coates valid Australian Business Numbers for
each transaction processed through our marketplace Service.
No Price Manipulation. You may not manipulate the price of listed
Equipment by any means, including but not limited to using secondary accounts,
colluding with third parties, or bidding on your own Equipment. You may not use
an alias to place bids on any Equipment you are selling, either directly or
indirectly for any reason.
Arbitration. YOU AGREE TO MEDIATE AND
ARBITRATE ANY DISPUTE OR CLAIM BETWEEN OR AMONG YOU AND ANY OTHER REGISTERED
USER OR COATES ARISING OUT OF OR RELATING TO THE AGREEMENTS, ANY SALE OF
EQUIPMENT, ANY INSPECTION REPORT OR ANY OTHER TRANSACTION CONTEMPLATED BY THE
AGREEMENTS INCLUDING, BUT NOT LIMITED TO, ALL CONTRACT AND TORT CLAIMS,
STATUTORY CLAIMS, CLAIMS FOR RELIEF WHETHER EQUITABLE OR LEGAL, ISSUES OF
ARBITRABILITY, AND DISPUTES ABOUT THE SCOPE OF THIS CLAUSE. DISPUTE RESOLUTION
SHALL BE CONDUCTED PURSUANT TO THE FOLLOWING PROCEDURES. BEFORE INITIATING ANY
ARBITRATION, THE PARTIES SHALL ENGAGE IN MEDIATION, WHICH IS A PROCESS IN WHICH
PARTIES ATTEMPT TO CONFIDENTIALLY RESOLVE ANY DISPUTE BY SUBMITTING IT TO AN
IMPARTIAL, NEUTRAL MEDIATOR WHO IS AUTHORIZED TO FACILITATE THE RESOLUTION OF
THE DISPUTE BUT WHO IS NOT EMPOWERED TO IMPOSE A SETTLEMENT. MEDIATION SHALL BE
CONDUCTED IN SYDNEY, AUSTRALIA, BY A MEDIATOR AGREED TO BY THE PARTIES. SHOULD
MEDIATION PROVE UNSUCCESSFUL TO RESOLVE THE DISPUTE, AND WITHIN ONE YEAR OF THE
DISPUTE ARISING, A PARTY SHALL MAKE A DEMAND FOR ARBITRATION. THE PARTIES SHALL
RESOLVE THE DISPUTE THROUGH FINAL AND BINDING ARBITRATION TO BE CONDUCTED
PURSUANT TO THE COMMERCIAL ARBITRATION RULES. ARBITRATION SHALL BE CONDUCTED IN
Third Party Links. Where Coates
provides links to third party Internet sites, no representations or
endorsements are made in connection with such sites. Coates is not
liable for any damages or injury arising from use of such sites.
Modification and Availability. Coates
may, at any time, delete, modify or supplement the content of this Site without
prior notice. Coates reserves the right, for any reason, at its sole
discretion, to terminate, change, suspend or discontinue any aspect of the Site
or the Service, including, but not limited to, content, features or hours of
availability. Coates may also impose limits on certain features of the
Service or restrict your access to part or all of the Site or the Service
without notice or penalty.
Monitoring. You agree that Coates has
the right, but not the obligation, to monitor at any time, for any reason at
its sole discretion, all material and content on the Site and the Service. Coates
reserves the right at all times to edit, disclose
or refuse to post any material or information or request removal of or remove
any material or information from the Site.
Access and Interference. You agree that you
will not use any automatic device or manual process to monitor or copy Coates
web pages or the content contained herein. You agree that you will not
use any device, software or routine to interfere or attempt to interfere with
the proper working of the Site. You agree that you will not take any action
that imposes an unreasonable or disproportionately large load on Coates
infrastructure.
Service Integrity. Coates makes
reasonable commercial efforts to make its Service and Site available at all
times. However, Coates is not responsible for any service interruptions,
including, but not limited to, interruptions that may affect the receipt,
processing and acceptance of bids or other aspects of an auction or sale.
Termination. This Agreement constitutes a
legally binding agreement between you and Coates until terminated by you
or Coates, which Coates may do at any time, without notice, at Coates
sole discretion. If you become dissatisfied with the Service or the
Site, in any way, your only recourse is to immediately discontinue use of the
Service and pay any required Removal Fee, if applicable.
Jurisdiction. The laws of the State of New
South Wales shall govern this Agreement.
Copyright and Trademarks. The trademarks, tradenames,
designs and all material contained on this Site, including all portions of the
web site, content, site design, text, graphics, and all intellectual property
rights thereto are the sole and exclusive property of Coates or its
licensors. The use of any such property for any other reason, on any other web
site, or the modification, distribution or republication of this material
without the prior written permission from Coates is strictly prohibited.
Survival. If any provision of this Agreement
is held by a court of competent jurisdiction to be invalid or unenforceable,
then such provision shall be enforced to the maximum extent permissible so as
to effect the intent of this Agreement, and the
remainder of this Agreement shall continue in full force and effect. The
failure by either you or Coates to exercise or enforce any rights or
provisions of this Agreement shall not constitute a waiver of such right or
provision. You agree that any cause of action arising out of or related to the
Service or this Agreement must commence within six (6) months after the cause
of action arose; otherwise, such cause of action is permanently barred. This
Agreement comprises the entire agreement between you and Coates and
supersedes all prior agreements between the parties, regarding the subject
matter contained herein. All provisions in this Agreement regarding
representations and warranties, indemnification, disclaimers and limitations on
liability shall survive any termination of this Agreement.
Privacy. Coates Privacy Statement,
located at http://www.coates.com.au/Article.aspx?A=5054 is hereby incorporated
by reference.
Entire Agreement. These terms set out the
entire understanding between Coates 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.