Seller Terms and Conditions
KEY SELLER POINTS
Terra Point is a marketplace for used heavy equipment that enables sellers to list and advertise their items for sale to a global audience of buyers. The actual contract for sale is directly between sellers and buyers. Terra Point is not a traditional auctioneer, but a marketplace for promoting equipment for sale.
The Key Seller Points above provide an overview of our terms and conditions for participating as a seller in Terra Point's marketplace and are subject to the complete Seller Terms and Conditions below.
SELLER TERMS AND CONDITIONS
These Seller Terms and Conditions, including all schedules and other policies, establish the terms of your use of Terra Point's sites and services (through www.Terra Point.com and/or any third party marketplace) (together, the “Marketplace”) to bid on and purchase equipment and other items (“Equipment”). The listing of items on the Marketplace is further referred to as an “Advertisement(s)”. Terra Point, LLC, is a limited liability company formed under Delaware law, and is registered with the Texas Secretary of State. Terra Point is bonded with International Sureties in the Northern and Eastern Districts of Texas (under bond # 016031968) and with the Southern and Western Districts of Texas (under bond # 016032297).
The Seller Terms were last revised on January 9, 2018.
1. TERRAPOINT'S SERVICES
1.1. Services of Terra Point. Under the terms of this Agreement, Terra Point offers you the use of the Marketplace, which functions as a platform on which you can list and advertise Equipment for sale to potential buyers (“Buyers”). Each party is acting on its own behalf, and Terra Point is not a party to the subsequent purchase contract for Equipment that is entered into between you and the Buyer. Nor does Terra Point represent either party in the conclusion of such purchase contract. In consideration of your use of the Marketplace for the listing and advertising of Equipment for sale (the “Equipment”), commissions and fees as listed in Schedule 1 are payable by you.
1.2. Exclusive Listing. The Marketplace shall be the exclusive listing site for Equipment and you shall not offer for sale or sell the Equipment in any other manner until the earlier of (a) the date such Equipment is sold via the Marketplace or (b) the date you withdraw the Equipment from the Marketplace (but in such event no less than ninety (90) days). By entering into an Agreement for use of the Marketplace, you hereby extend an irrevocable offer to sell the Equipment, as applicable, (a) to a Buyer who is the highest bidder and who meets or exceeds the opening bid, the Reserve Price, or Asking Price, as applicable, (b) to a Buyer who commits to purchase Equipment at the Buy Now Price; or (c) to a Buyer who commits to purchase Equipment at the Negotiated Price.
1.3. Opening Bid and Scheduling. For Online Sales, Terra Point will set the opening floor bid for the Equipment and schedule the listing opening times. For Buy Now and Make Offer listings, Terra Point will set the opening flor bid for the Equipment and schedule the listing opening times; you will have the option of setting a Buy Now Price (“ Strike / Buy Now Price”) or an Asking Price (“Asking Price”), mutually agreed upon by you and Terra Point which falls in line of estimated market value as determined by Terra Point. You may lower the Buy Now Price or the Asking Price during a listing period, but you may not add a Buy Now or an Asking Price after the opening time. If you have selected to list the Equipment by Reserve, you will have the option of setting a minimum floor price mutually agreed upon by you and Terra Point which falls in line of estimated market value as determined by Terra Point (“Reserve Price”). Terra Point will determine the period of time that the Reserve listing is published on the website and available for Buyers to submit bids (the “Reserve Period”). If, at the end of the Reserve Period, the Reserve Price has been met, the highest bid received from a Buyer will be automatically accepted. If the Reserve Price is not met during the Reserve Period, Terra Point may offer the option to re-list the Equipment. All Buy Now, Make Offer and Reserve listings will be scheduled to run for up mutually agreed upon consecutive days, as per the listing agreement.
1.4. Additional Options. For Make Offer listings and Reserve listings where the Asking Price or Reserve Price is not met, you have the option to (a) accept bids lower than the Asking Price or Reserve Price, as applicable; (b) counter bids lower than the Asking Price or Reserve Price, as applicable, with a higher offer (“Counter Offer”); or (c) reject bids lower than the Asking Price or Reserve Price, as applicable, at any time during a listing. Counter Offers are valid for up to two (2) business days. However, only one (1) Counter Offer can be valid at any time; the last Counter Offer you issue supersedes and invalidates any previous Counter Offers. Upon acceptance of the Counter Offer by the Buyer, the listing is closed and you are legally bound to complete the transaction.
1.5. Conclusion of Purchase Contract; Bill of Sale. After the winning bid for a piece of Equipment has been established by Terra Point or the Buyer has (a) committed to purchase the Equipment at the Buy Now Price or the Asking Price or (b) met or exceeded the Reserve Price at the end of the Reserve Period, the bid or purchase commitment of Buyer will be automatically accepted by you and a purchase contract between you and Buyer is automatically concluded (“Purchase Contract”). All applicable terms and conditions of this Agreement shall apply to the Purchase Contract. Further, for Make Offer listings, you may accept or counter an offer below the Asking Price. In the event that you accept an offer or the Buyer accepts your Counter Offer (the “Negotiated Price”), the Purchase Contract is concluded and all terms herein shall apply. Buyer and Seller will be notified of the conclusion of the Purchase Contract by an email or other notification that is generated automatically by the Marketplace. Subject to your receipt of payment for the Equipment, you at your own expense shall deliver a bill of sale and such other documentation as may be reasonably necessary to transfer title to the Equipment to Buyer. Unless otherwise agreed, the Equipment listing will only show your “Terra Point Seller ID”, but not your formal identity, business name and/or address details. This information will only be provided to Buyer at the conclusion of the Purchase Contract.
1.6. No Guarantee on Proceeds; No Shill Bidding. There is no guarantee as to the gross proceeds that may be realized from a listing on the Marketplace. You may not manipulate the bidding in any way, including bidding on your own Equipment, to artificially raise the final sales price. In the event of price manipulation, Terra Point will (a) ban you from future use of the Marketplace, (b) cancel any involved transaction(s), and (c) charge you a Shill Bidding Fee.
1.7. Equipment Availability; Risk of Loss. Subject to Terra Point's receipt of full payment and Buyer’s completion of any additional, required documents, you and the Buyer will be notified that the Equipment is available for pick-up via an email that is generated automatically by the Marketplace (“Item Release”). You agree to have the Equipment available for transportation, complete with ignition key, to the Buyer no later than one (1) business day after conclusion of the Purchase Contract. If the Equipment is not available, you will be subject to pay a Post-Closing Delay Fee. Further, if you fail for any reason to release the Equipment to the Buyer after a Purchase Contract is concluded, you will be subject to a Seller Default Fee in addition to any other rights or remedies that Terra Point or Buyer may have. Unless otherwise dictated in the Agreement, the responsibility and risk of loss for Equipment shall be and remain with you (and not Terra Point or Buyer) until the earlier of: (a) the removal of the Equipment from the posted Equipment location by Buyer or Buyer's designated transportation provider or (b) receipt by you of all proceeds from the sale of Equipment. Thereafter, the Equipment shall be and remain at the risk of Buyer or Buyer's designated transportation provider (and not Terra Point or you). Unless otherwise dictated in the Agreement, Terra Point has no obligation to maintain insurance coverage pertaining to the Equipment in the possession of Terra Point for purposes hereunder.
1.8. Authorization to Use Marks. In connection with your use of the Marketplace, you agree that Terra Point may use your name, trademark, logos, service marks and other designations (“Marks”) to list you as a reference customer and to advertise, promote and market the Equipment. You hereby grant to Terra Point, and represent and warrant that you have a right to grant, a non-exclusive, worldwide license to use, publicly display and perform, reproduce, and distribute the Marks, solely as permitted in this Agreement, including distributing e-mails to potential Buyers that incorporate Marks.
1.9. Regulatory. The Equipment shall be in compliance with all Federal and State regulations regarding emissions, safety or any other regulations as required by law. Titled items must have a legible VIN or other I.D. as required by law. You will disclose to Terra Point any and all modifications or omissions to the aforementioned Federal and State regulations including whether the item has been salvaged, reconstructed, or damaged in a flood.
2. EQUIPMENT LISTINGS. You may not list goods that are illegal to use or possess under any applicable law, rule or regulation. Terra Point reserves the right, in its sole discretion, to (a) refuse to list any piece of Equipment at any time; (b) withdraw any Equipment listing from the Marketplace; (c) review and verify a listing's information and description; or (d) cancel any transaction that it deems to be suspicious or fraudulent and report it to applicable authorities. The information you provide during the Equipment listing process, combined with the Inspection Report, constitute the listing details for the Equipment (“Equipment Listing”). You agree to fully, completely and accurately disclose to Terra Point all information relating to the Equipment of which you are aware. Any information (including brand name or other indication of origin or manufacture) that you provide related to the Equipment must be complete and accurate, and you shall be responsible for any inaccuracies, errors or omissions. Equipment Listings on the Marketplace may not include links to or a description of other items that you may have for sale outside of the Marketplace.
3. INSPECTIONS; RESTRICTIONS ON USE
3.1. Equipment Inspections. For all requested inspections, you agree to permit Terra Point and/or its authorized representatives to test and inspect each piece of Equipment at a time and place specified in the listing agreement or as otherwise mutually agreed. Terra Point shall produce an inspection report (“Inspection Report”) for each piece of Equipment inspected by Terra Point. Terra Point inspections are solely for the purpose of reporting on the visible condition of the Equipment's major systems and attachments. Terra Point inspections are NOT intended to detect latent or hidden defects or conditions that could only be found in connection with the physical dismantling of the Equipment or the use of diagnostic equipment or techniques. Your failure to properly maintain the Equipment from the date of inspection until its removal from your location by Buyer will void the inspection. If you alter or perform repairs or other maintenance to the Equipment after the inspection, another inspection will be required, and you will be subject to a Re-inspection Fee.
3.2. Ownership of Inspection Report. The Inspection Report is the sole and exclusive property of Terra Point. Except as expressly stated, nothing in this Agreement shall be deemed to grant to any other party, by implication, estoppel or otherwise, license rights, ownership rights or any other intellectual property rights in the Inspection Report. You cannot use the Inspection Report for any other purpose without the prior written approval from Terra Point.
3.3. Restrictions on Use of Equipment. From the time you provide Listing Details to the Terra Point Marketplace or an inspection is performed by Terra Point until the Equipment is removed from its location by or on behalf of Buyer following conclusion of a Purchase Contract, you may not operate, lease, rent, modify or alter the Equipment. In addition to any other rights and remedies that Terra Point may have, a breach of this provision prior to the conclusion of a Purchase Contract for the Equipment may result in either of the following: (a) Terra Point may remove the Equipment from the Marketplace and charge you a Removal Charge; or (b) Terra Point may continue with the listing in which case if the Equipment was inspected previously by Terra Point, you must have the Equipment re-inspected and pay Terra Point for such Re-Inspection Fee. If the Equipment was not inspected, you must supply updated Listing Details to Terra Point and pay Terra Point an additional Listing Fee. In the event of a breach of this provision is determined by Terra Point in its reasonable discretion and the Equipment has been sold by a Purchase Contract, the transaction is subject to cancellation and you will be charged a Seller Default Charge in addition to reimbursement of transportation and other costs incurred by Buyer.
4.1. Disclosure of Liens. You are responsible for making full disclosure to potential Buyers of all liens, adverse claims and other title encumbrances and third party interests that may exist on or pertain to your Equipment. You will at your own cost and expense warrant and defend title to the Equipment on behalf of the Buyer, its successors and assigns, against the claims and demands of all persons. If your net proceeds from the sale of Equipment listed on the Marketplace are insufficient to discharge creditor claims on the Equipment, you are fully responsible for paying the outstanding debt balance immediately upon demand by Terra Point.
4.2. Government Liens. If any government body, including but not limited to tax administrations, the U.S. Small Business Administration or any other governmental entity, holds a lien or encumbrance on the Equipment, then you shall be responsible for the payment of any independent equipment appraisals and documentation fees required to release such liens. You acknowledge and agree, and hereby authorize, that Terra Point may, in its discretion, pay for such appraisals and documentation fees and deduct the amount from the proceeds due to you. If the net proceeds due to you are insufficient to pay the fees, you agree to promptly pay Terra Point upon receipt of an invoice for the fees.
5. FEES AND PAYMENT
5.1. Fees. The commissions and fees payable to Terra Point in consideration for using the Marketplace to list and advertise Equipment for sale are set forth in the listing agreement. Terra Point's standard Fee Schedule is detailed in Schedule 1. Seller may request any of the services outlined in Schedule 1 in association with the sale of Equipment and agrees to pay all fees due for services completed. The cost of the services will be deducted from amounts otherwise due Seller when available. Otherwise, service fees will be invoiced directly to Seller. Terra Point may change its fees from time to time, in its sole discretion, with or without notice to you, but no such change shall apply retroactively to Equipment already subject to a listing agreement. It is your responsibility to check all applicable fees prior to entering into a listing agreement.
5.2. Payment of Proceeds. After the Purchase Contract is concluded between you and Buyer, the Terra Point Marketplace will generate a third party invoice that is issued to Buyer on your behalf. Buyer is responsible for paying you the purchase price for the Equipment upon conclusion of a Purchase Contract, and you hereby instruct Terra Point to facilitate receipt of the purchase price. Further, you hereby grant Terra Point the right, in its own name, to enforce your right to payment. You agree that no monies shall be payable to you until paid by the Buyer. Once received by Terra Point, any monies due to you, net of any commissions and fees due Terra Point, as detailed in this Agreement, shall be disbursed within fifteen (15) business days after conclusion of the Purchase Contract. You hereby consent to Terra Point's right to offset any other commissions and fees specified in this Agreement or that result from additional services requested by you, with any remainder to be paid within fifteen (15) days following receipt of an invoice. You acknowledge that Buyers may fail to perform or pay on a timely basis and that Terra Point shall not have any liability to you for any act or omission of Buyers.
5.3. Taxes and Compliance with Laws. You shall be responsible for the payment of any tax or duty that is your responsibility as a seller of the Equipment. You acknowledge and undertake to make yourself aware of and comply with all laws that may be applicable to your access and use of the Marketplace, and your entering into a transaction on the Marketplace. Terra Point disclaims any and all liability in respect of your use of the Marketplace and your sale of any Equipment resulting in any taxes (whether direct, indirect, local or federal), fines or penalties being levied on you. For the avoidance of doubt, it is your responsibility to satisfy yourself of any charges, taxes (whether direct, indirect, local or federal) or related obligations becoming applicable in respect of the transactions that you enter into on the Marketplace. You shall indemnify Terra Point and its affiliates (and the officers, directors, agents and employees thereof) against any tax, cost or expense arising from your failure to satisfy any laws or regulations in relation to a transaction.
6. YOUR OPTIONS AFTER BUYER DEFAULT. If the Buyer fails to pay in accordance with the Purchase Contract, the Buyer is considered to be in default. In the event of a Buyer default, you may at your own risk and account rescind the Purchase Contract with Buyer after which you may elect any one of the following options:
6.1. Offer Equipment to Second Highest Bidder. If there was more than one bidder for the defaulted Equipment, you may elect to offer the Equipment to the second highest bidder. If the second highest bidder accepts, a Purchase Contract for the Equipment will be concluded by the Marketplace, and you will receive proceeds based on that second bidder's highest bid, less any applicable commissions and fees payable to Terra Point;
6.2. Re-list the Equipment. You may elect to relist the Equipment in a subsequent online listing within thirty (30) days of the Buyer default without incurring an additional Listing Fee. In such case, all other terms and conditions continue to apply; or
6.3. Withdraw the Equipment. You may elect, without penalty, to withdraw the Equipment from listing on the Marketplace.
7. REPRESENTATIONS AND WARRANTIES. You represent and warrant that: (a) no Equipment shall be fraudulent, stolen or counterfeit, (b) you are duly authorized to enter into the Agreement, (c) you are solvent and have not made any assignment, proposal or other proceeding for the benefit of your creditors, and (d) you own all right, title and interest in and to the Equipment and the Equipment is free and clear of all liens or other encumbrances, except as otherwise disclosed by you to Terra Point in writing.
8. INDEMNIFICATION. You agree to indemnify and hold harmless Terra Point, its affiliated companies and their respective officers, directors, employees, agents, successors and assigns (“Indemnified Parties”) from and against any claim or demand (including reasonable attorneys' and experts' fees and costs) made by any third party due to or arising out of your breach of this Agreement, your improper use of the Marketplace, or your violation of any law or the rights of a third party. Terra Point shall promptly notify you in writing of any threatened or actual claim or demand and reasonably cooperate with you to facilitate the settlement or defense thereof. You shall have sole control of the defense or settlement of any claim or demand, provided that Terra Point, at its option and expense, may participate and appear on equal footing with you. You shall not settle any claim or demand without the written consent of the indemnified parties, with such consent not to be unreasonably withheld or delayed.
9. DISCLAIMER; LIMITATION OF LIABILITY. TO THE FULLEST EXTENT PERMITTED BY LAW, THE MARKETPLACE PROVIDED BY OR THROUGH IRONPLANET IS PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT SHALL TERRA POINT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, COVER, INCIDENTAL OR CONSEQUENTIAL DAMAGES, HOWEVER CAUSED, WHETHER IN CONTRACT OR TORT OR UNDER ANY OTHER THEORY OF LIABILITY, INCLUDING LOSS OF REVENUE, PROFITS, OR BUSINESS, ANY LOSS OF GOODWILL OR REPUTATION, OR THE COSTS OF SUBSTITUTE GOODS OR SERVICES, EVEN IF IRONPLANET OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
10. LEGAL DISPUTES
10.1. Contracting Entity. Unless otherwise indicated in an agreement with Terra Point, you are contracting with Terra Point, LLC (the “Contracting Entity”) and transacting in U.S. Dollars.
10.2. Governing Law; Jurisdiction and Venue. For disputes between you and Terra Point, Inc., this Agreement shall be governed by the laws of the State of Texas without regard to conflict of laws principles. The United Nations Convention on Contracts for the International Sale of Goods and, if you are located in the United States, the Uniform Computer Information Transactions Act, do not apply. Any action against Terra Point arising from or relating to this Agreement or any bid or purchase hereunder shall be commenced in the appropriate Civil District Court of Travis County, Texas or, if applicable, the United States District Court for the Western District of Texas. In the event of any litigation arising from breach of this Agreement, or the services provided under this Agreement, the prevailing party shall be entitled to recover from the non-prevailing party all reasonable costs incurred including staff time, court costs, attorneys’ fees, and all other related expenses incurred in such litigation.
10.3. English Controlling Language. All performance under this Agreement and the resolution of disputes shall be conducted in the English language. If a translation of this Agreement into any other language is required by law, the English version will prevail to the extent that there is any conflict or discrepancy between the English version and any translation. If this Agreement is provided to you in a language other than English, Terra Point does so solely for your convenience.
10.4. Limitation Period. YOU AGREE THAT ANY CLAIM ARISING OUT OF OR RELATED TO THIS AGREEMENT MUST BE COMMENCED WITHIN SIX (6) MONTHS AFTER THE DISPUTE AROSE, AND IF NOT COMMENCED TIMELY SHALL BE PERMANENTLY BARRED.
10.5. Improperly Filed Legal Disputes. Any claims that are filed or brought contrary to this Agreement shall be improperly filed and of no force and effect.
11. TERMINATION, RESCISSION AND DEFAULT. Terra Point shall have the right, in its sole discretion, to terminate this Agreement in whole or in part in the event (a) there are liens, encumbrances or adverse claims on or to any Equipment in addition to those that are listed in the listing agreement, (b) your net proceeds are insufficient to discharge creditor claims and pay Terra Point's fees after title is cleared, (c) your lien holders are unwilling to release liens and/or allow Equipment to be listed for sale, (d) you are in breach of the Agreement, (e) you have provided inaccurate, fraudulent, outdated or incomplete information during the registration or Listing process or thereafter, (f) you have violated applicable laws, regulations or third party rights, (g) Terra Point believes in good faith that such action is reasonably necessary to protect the safety or property of other customers, Terra Point personnel or third parties, or (h) for fraud prevention, risk assessment, security or investigation purposes. In the event of such termination, in addition to any other remedies available to Terra Point, you shall pay Terra Point (a) 25% of the estimated market value of Equipment, (b) the Listing Fee and (c) any costs incurred by Terra Point.
12. AMENDMENT OF SELLER TERMS. Terra Point may modify, add or remove any portion of the Seller Terms from time to time, in its sole discretion, with or without notice to you, by posting such changes on the Marketplace. Once posted such changes shall come into full force and effect; however no change in commissions and fees payable to Terra Point in consideration for using the Marketplace shall apply retroactively to Equipment already subject to a listing agreement. In addition to other forms of acceptance, use of the Marketplace constitutes acceptance of these Seller Terms, including continued use after such changes are posted. It is your responsibility to check periodically for changes to Seller Terms.
13. NOTICES. Any notice to Terra Point must be in writing and must be sent via email to email@example.com and by registered mail or overnight courier to Terra Point, LLC, 1213 Ranch Road 620 South Suite 105 Lakeway, TX 78734, U.S.A. Any notice to you shall be given by email to the email address provided to you during registration as a Registered User, or as subsequently updated by you, or via posting on the Site, any of which you agree shall be sufficient notice to you. Notice shall be deemed to have been given to you upon twenty-four (24) hours after it has been sent or at the time the information was posted on the Site. If you change your email address, you are responsible for updating your account profile.
14. PRIVACY. Terra Point's Privacy Statement, located at https://terrapoint.com/terms, is hereby incorporated by reference. By entering into this Agreement, you are consenting to have your personal data transferred to and processed in the United States.
15. GENERAL. This Agreement contains the entire agreement of the parties and supersedes all previous communications, representations, understandings and agreements, either oral or written, between us. In the event of a conflict between the Seller Terms and the listing agreement, the listing agreement shall control. This Agreement supersedes and replaces the terms in any Seller purchase order or other ordering document, and such documents shall be of no force or effect. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be struck out and the remaining provisions shall continue in full force and effect. The failure by either party to exercise or enforce any rights or provisions of this Agreement shall not constitute a waiver of such right or provision. No partnership, joint venture, franchisor-franchisee, or agency relationship is intended or created by this Agreement. You may not assign or transfer this Agreement or your obligations hereunder in whole or in part, whether by operation of law or otherwise, without Terra Point's prior written consent. In the event of a permitted transfer, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns. To the extent any novation is required for Terra Point to assign this Agreement, you hereby appoint the officers of Terra Point as your attorney-in-fact to execute all documents necessary to effect such novation. All provisions in this Agreement regarding representations and warranties, indemnification, disclaimers, limitations on liability, and payment obligations for fees incurred prior to the termination date shall survive any termination of this Agreement. Any delay in the performance of any duties or obligations of either party will not be considered a breach of this Agreement if such delay is caused by a labor dispute, market shortage of materials, fire, earthquake, flood or any other event beyond the control of such party, provided that such party uses reasonable efforts, under the circumstances, to resume performance as soon as reasonably practicable.