Terms and Conditions of Business

1. Definitions

a. Data Protection Legislation means as applicable (a) any law, statute, declaration, decree, directive, legislative enactment, order, ordinance, regulation, rule or other binding restriction (as amended, consolidated or re-enacted from time to time) which relates to the protection of individuals with regards to the Processing of Personal Data to which a party is subject, including the Data Protection Act 2018 ("DPA"), the General Data Protection Regulation ((EU) 2016/679) (”GDPR”), the GDPR as it forms part of the law of England and Wales, Scotland, and Northern Ireland by virtue of section 3 of the European Union (Withdrawal) Act 2018 ("UK GDPR") and the Privacy and Electronic Communications (EC Directive) Regulations 2003;

b.Fees means the fees to be paid to us, or other good and valuable consideration, in exchange for provision of the Services;

c. Online Auction Module Terms and Conditions means the terms and conditions applicable to the module of the Platform that allows for the marketing and posting of certain items for sale to be sold through an online auction process and for bidding on and purchasing such items, set out at [link].

d. Order Form means the registration for and the confirmation of purchase of a Subscription for Services either on the Website or by signature of an order form which may incorporate additional license and support terms and conditions;

e. Seller Declaration means the declaration to be signed by the Seller in the standard form as referred to in the Online Auction Module Terms and Conditions.

f. Services means the provision of a networking and sales marketplace platform which incorporates the functionality for equipment sale and rental listings and conducting online auctions (both timed and live auctions, including with real time video capability) for the marketing and sale of heavy plant machinery by owners, dealers and sellers of such heavy plant machinery to their private network of potential bidders and buyers, as further described on the Website;

g. Subscription means a subscription obtained or purchased by you from us which enables access to the Services;

h. We, our or us means Krank Limited;

i. Website means www.krank.com ; and

j. Website Terms of Use means the Krank Limited website terms of use, which can be found at https://krank.com/term-of-use.


    2. Basis of Contract

    1. These terms and conditions (“these terms”), along with the Order Form, the Website Terms of Use, and the Online Auction Module Terms and Conditions,(as applicable) and Seller Declaration, and any other terms or declarations you are required to agree to when using the Services (for example when using any optional selling modules or functionalities) 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 through our Website or through signing an Order Form.
    3. A legally binding contract between us and you comprising these terms, the Order Form, the Website Terms of Use, the Online Auction Module Terms and Conditions (as applicable) and Seller Declaration will come into effect when the screen confirming successful purchase of a Subscription appears on the Website or upon signature of an Order Form.
    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 or sign an Order Form 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) or as otherwise specified in an Order Form.
    4. If your Subscription renews in accordance with clause 9.c we will automatically debit the card used to purchase your Subscription with the renewal amount.
    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 Form, incorporating the Online Auction Module Terms and Conditions, (as applicable), 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, approvals, permissions and consents in relation to materials provided by you, your use of the Services and the activities undertaken by you on the Website or while using the platform and its functionalities, as are required for us to perform the Services or as are required by applicable laws, regulations, governing bodies and authorities, including in your place of business.
    4. You undertake not to upload to, or submit to us for uploading onto, the Website, any material which is illegal or that promotes illegal activity, is confidential or defamatory of any person, offensive, fraudulent, deceptive, threatening, violent, discriminatory, abusive, hateful, inflammatory, obscene or sexually explicit, or which infringes any copyright or any other intellectual property right or rights of any third parties, which exposes our Website to any virus, harm or damage, which is in breach of any applicable laws or regulations 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, the Order Form, the Online Auction Module Terms and Conditions (as applicable) and Seller Declaration, when accessing and using the Website and Services.

    5. Service Levels

    1. We do not warrant that the Services will be uninterrupted, error free or completely secure. You acknowledge and agree that this may be due to bugs in the software or your use of the software being facilitated via the internet. Subject to scheduled downtime (of which we will usually aim to notify you of at least 24 hours in advance), we shall use reasonable endeavours to ensure that the Website target availability is 99.7% 24 x 7 x 365.

    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, 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 and Data Protection

    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 for a period of three years from the date on which is contract is formed pursuant to term 2.c.
    2. Each party shall comply with the applicable Data Protection Legislation in force from time to time.

    8. Limitation of Liability

    1. OTHING 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.
    2. WE SHALL NOT BE LIABLE WHETHER IN CONTRACT, TORT (INCLUDING FOR NEGLIGENCE OR BREACH OF STATUTORY DUTY), MISREPRESENTATION OR OTHERWISE 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.
    3. 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 FORM 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.

    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 or the start date of any Renewal Term.
    2. Your Subscription will be automatically renewed for a further minimum term of 12 months (the "Renewal Term") on the same terms as are applicable on the date immediately prior to the end of the Subscription Period or previous Renewal Term unless you cancel your subscription for the Services within seven working days of the end of the Subscription Period or previous Renewal Term. 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 or applicable Renewal Term.
    3. Unless otherwise agreed in an Order Form, the specific terms of which shall prevail, 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.
    4. In the event of termination pursuant to clause 9.c above, no refunds will be given in respect of any outstanding Subscription term remaining.
    5. 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.
    6. 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, and an Order Form, the Online Auction Module Terms and Conditions (as applicable) and Seller Declaration, along with any other terms or declarations you are required to agree to when using the Platform (for example to use other optional selling modules), constitute the entire agreement between the parties. To the extent that any part of these terms and an Order Form conflict, the Order Form 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 the contract 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 9 inclusive shall survive termination of the contract between us.
    9. These terms are governed by English law and subject to the exclusive jurisdiction of the courts of England.