GRAHAM IRON, LLC

TERMS AND CONDITIONS OF USE

The Graham Iron, LLC Web site currently located at www.grahamiron.com (the “Graham Iron Site” or “Site”) and services offered herein including without limitation the auction services (collectively the “Services”, “Auction” or “Auctions”) for equipment and other items (collectively “Equipment”) are provided by Graham Iron, LLC (“Graham Iron”, “us” or “we”) to you (“you” or “user”) subject to the following terms and conditions set forth in this agreement (the “Agreement”).

Whenever the term “business day(s)” is used in this Agreement it means any day other than a Saturday, Sunday or day on which commercial banking institutions in the United States are authorized by federal law to be closed.

Acceptance of Terms. Before you attempt to buy or sell any Equipment using the Services and/or begin participating in or using the Site, Graham Iron 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 877-750-4398.

Amendment. Graham Iron 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. For your convenience the date of the last revision of this Agreement is shown at the top of this page.

I. Participating Requirements

Capacity to Contract. These Services are available only to individuals or entities that can form legally binding contracts. Without limiting the foregoing, neither minors in any jurisdiction nor individuals who have been suspended from the Service may participate in Graham Iron’s Services.

Registration. In order to participate in the Services, users must register with Graham Iron by filling out a registration form and providing certain information to Graham Iron. When Graham Iron 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. Graham Iron 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 Graham Iron immediately of any unauthorized use of any login ID and password or any other breach of security regarding the Services.

Graham Iron’s Relationship to Users. Unless Graham Iron is expressly designated as either a seller or a buyer in a transaction Graham Iron is not a party to nor involved in any Auction or other transaction relating to the Equipment and is only a venue for registered sellers to list Equipment and for buyers to make bids on such Equipment. Except for Graham Iron’s own participation in any transaction as either a buyer, Graham Iron has no control over any seller, buyer or any aspect of any transaction. From time to time, Graham Iron will have title to or possess Equipment listed on the Site.

Release. In the event that you have a dispute with one or more users, you release Graham Iron (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.

No Information Control. Graham Iron 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. Except for Graham Iron’s own participation in any transaction as a seller as mentioned above, Graham Iron has no control over the quality, safety or legality of the Equipment listed, the trust or accuracy of the listings or any other information provided by the user about the Equipment.

II. Listing Equipment for Auction

Seller Listing Agreement. In order to auction your Equipment through the Site, you agree to abide by the terms and conditions in the Seller Listing Agreement which is hereby incorporated by reference and located here. This feature of the Graham Iron Site is not currently available, but will be in the near future.

III. Auctions

Auction Period. The Auction period shall be determined by the Seller but may not, in any case, exceed seven (7) consecutive calendar days.

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, without limitation, bidding through a secondary account, agent or assigns on equipment that you are selling, or by communicating with other buyers and sellers.

Binding Offer to Purchase. If you are the highest bidder (“buyer”) at the end of an Auction period and have met the applicable opening bid (or reserve, if applicable), 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 Graham Iron Site is the legal equivalent of a firm purchase order.

Void Bids. Graham Iron reserves the right to reject or void bids, whether winning or not, which it determines, in its sole discretion, have not been made in good faith, are intended to manipulate the Auction process, or are prohibited by applicable law.

Winning Bids. Graham Iron shall make the determination of winning bids, but Graham Iron shall not be liable for any errors or omissions relating to such determination, whether by Graham Iron or some other person.

Postponement and Cancellation. Graham Iron reserves the right to postpone or cancel any Auction, or any sale resulting therefrom, in its sole discretion, either with or without notice. Graham Iron will have no liability to prospective bidders or sellers as a result of any withdrawal, cancellation or postponement of Auctions or sales.

IV. Fees, Commissions and Penalties

Graham Iron’s fees and commissions for sellers are available here and are hereby incorporated by reference. Fees for buyers are located at http://www.grahamiron.com/help/buy/buyer-fees.php. Graham Iron may change its fees, payments and commissions from time to time. Any such changes will become effective when posted on the Site. All fees, payments and commissions must be paid by the applicable buyer with receipt confirmed to the seller by Graham Iron before any Equipment will be released for transport.

V. Completion of Transactions

Liability for Equipment. Graham Iron shall not have liability or risk of loss for any Equipment at any time, whether in Graham Iron’s possession or otherwise. For purposes of clarifying when liability and risk of loss for any Equipment shall transfer from seller to buyer, Equipment shall be and remain at the risk of the seller until it is removed from the posted Equipment location by the buyer or the buyer’s designated transportation provider at which time the buyer shall have all liability and risk of loss associated with the Equipment.

Sales and Use Tax. All bids and offers are made net of any taxes imposed with respect to the sale or purchase transaction. Buyers are liable for all such taxes or for establishing to Graham Iron’s satisfaction on behalf of seller a valid exemption certificate from such taxes. Buyers and Sellers acknowledge and agree that Graham Iron is providing a service in the calculation, reporting or 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 and hereby agrees to indemnify, defend and hold harmless Graham Iron against any tax, cost or expense or other Claims of any type arising out of or relating to the failure of the buyer to satisfy any sales or use tax liability related to a transaction. Each seller shall indemnify, defend and hold harmless Graham Iron against any tax, cost or expense or other Claims relating to the failure of the seller to satisfy any sales or use tax liability related to a transaction within their jurisdiction. If, under this provision, the seller has a pre-existing obligation to indemnify Graham Iron for such taxes, costs and fees borne by Graham Iron in connection with any prior use of the Services or the Site, you hereby authorize Graham Iron to deduct such taxes, costs and fees from the sales proceeds received in connection with such sale prior to making any disbursements to the seller as provided herein. Graham Iron’s right to deduct such amounts per the prior sentence is a non-exclusive right and shall not preclude Graham Iron from seeking satisfaction of such amount through any other available remedy.

Payment and Payment Schedule. No payments are to be made directly from the buyer to the seller. Full payment from the winning bidder in the amount of the auction closing price, applicable sales tax, any indemnification costs and the fees and commissions of Graham Iron must be received by and post to a secure payment account designated by Graham Iron within three (3) business days after the close of the Auction with respect to the applicable piece of Equipment. Buyers from the United States may send payments to the designated account via wire transfer or certified cashier’s check. Buyers from outside the United States must send all payments via wire transfer.

Buyer Default. If, after three (3) business days from the close of an Auction for any 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 Graham Iron Site here. In addition, the buyer may be barred by Graham Iron, in its sole discretion, from further use of the Graham Iron Site.

Buyer Removal of Equipment; Late Removal Storage Fees. Buyers are responsible for loading and shipping purchased Equipment for transportation, unless otherwise noted in the Equipment listing. Each seller agrees to have the applicable Equipment available for transportation to the buyer no later than one (1) business day after the conclusion of the Auction for such Equipment. Buyer may remove Equipment from the posted Equipment location only after full payment has been received by Graham Iron (see “Payment and Payment Schedule”, above). If a buyer has not removed Equipment from the posted Equipment location within seven (7) days after the close of the Auction for such Equipment, the buyer will be responsible for directly paying the seller any and all storage fees levied by the seller, or such other location in possession of the Equipment including, without limitation, Graham Iron. Any such storage fees shall be paid by the buyer before the Equipment may be removed from the storage location.

Buyer Abandoned Equipment. A seller may deem a buyer’s failure to claim property within thirty (30) days following a final sales transaction to be evidence of such buyer’s intent to abandon the property. Where a buyer has paid for but fails to claim property within thirty (30) days following a final sales transaction, the seller may take action that is adverse to such buyer’s interest in the property, including but not limited to any appropriate steps under Georgia law to dispose of the property through Graham Iron which will remit proceeds to the abandoning Buyer, net of actual and reasonable costs of disposal to include, without limitation, a percent commission of up to twenty-five (25%) of the sale price.

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 a 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. A buyer may remove Equipment from the posted Equipment location only after full payment has been received by Graham Iron (see “Payment and Payment Schedule”, above).

Constructive Receipt. Once Constructive Receipt has occurred for any given piece of Equipment, remittance of the net sales proceeds from Graham Iron to the seller may occur. Constructive Receipt of Equipment takes place upon the first to occur of any one of the following milestones (unless a dispute claim has been previously filed by the buyer), provided full payment has been received for the Equipment (see “Payment and Payment Schedule”, above):

a) At the time the Equipment leaves the point of pick-up at the posted Equipment location, if Buyer elects to transport the Equipment itself rather than using a common carrier. A buyer transporting the Equipment itself is encouraged to examine the Equipment thoroughly prior to removing it from the posted Equipment location; or
b) At the time the Equipment leaves the point of pick-up at the posted Equipment location if Equipment is self-transporting, such as any self-propelled vehicle. The buyer of self-transporting Equipment is encouraged to examine the Equipment thoroughly prior to removing it from the posted Equipment location; or
c) Ten (10) business days after the conclusion of the Auction for the Equipment; or
d) One (1) Business Day after delivery of the Equipment to the Buyer’s designated location, if purchased Equipment is sold from a location within the United States or Canada and is subsequently delivered to a location within the United States or Canada. If purchased Equipment is sold from a location within the United States or Canada and is subsequently to be delivered to a location outside the continental United States or Canada, Constructive Receipt on the basis of the passing of this milestone will occur 24 hours after Equipment delivery to the United States or Canadian Port of Export.

Buyer Claim for Rescission for Nonconforming Equipment or Seller Disclosure Failure.

IT IS THE BUYER’S OBLIGATION TO INSPECT ANY PURCHASED EQUIPMENT PRIOR TO CONSTRUCTIVE RECEIPT. FAILURE TO MAKE A DEMAND FOR RESCISSION IN ACCORDANCE WITH THIS PARAGRAPH DUE TO NONCONFORMITY OF SUCH PURCHASED EQUIPMENT OR ANY OTHER DEFECT PRIOR TO THE BUYER’S CONSTRUCTIVE RECEIPT OF THE SAME SHALL CONSTITUTE A WAIVER BY BUYER OF ANY AND ALL CLAIMS AGAINST THE SELLER AS WELL AS ANY RIGHT TO ADJUDICATION HEREUNDER AND THE SALE TO BUYER SHALL BE BINDING AND FINAL IN ALL RESPECTS. If a buyer determines from any inspection conducted by such buyer or on its behalf that the condition of any Equipment purchased by it does not conform in all material respects to the Listing Details for such Equipment or that the seller of such Equipment has failed to disclose any defect in such Equipment that materially adversely affects the value, utility and remaining useful life of such Equipment and the buyer desires to rescind the transaction due to such nonconforming condition or defect, then such buyer shall notify Graham Iron in writing of its demand for rescission prior to Constructive Receipt. Any such buyer demand for rescission shall be delivered by e-mail to grahamiron@grahamcompanies.us and shall provide the identities of the parties to the sale transaction and the date of purchase together with a detailed description of the basis for the buyer’s demand for rescission. All claims for rescission that have been timely made shall be reviewed and adjudicated by Graham Iron in accordance with Section VII of this Agreement, below. The failure of a buyer to make a demand for rescission in accordance with this paragraph prior to the Constructive Receipt of the Equipment to which such demand relates shall constitute a waiver by the buyer of its rights to make such a claim, or to bring any other claim in any other venue against the seller of such Equipment or any other person in connection with any nonconformity thereof or defect therein, and the sale of such Equipment to Buyer shall be binding and final in all respects.

Remittance of Proceeds to Seller. Unless a Buyer claim for rescission has been timely made in accordance with the immediately preceding paragraph, Graham Iron shall remit to the seller the total purchase price for the applicable Equipment to the extent received by Graham Iron from the buyer less applicable sales tax, satisfaction of any financing or indebtedness with respect to such Equipment, any indemnification costs and the fees and commissions of Graham Iron for such Equipment within two (2) business days after the date of the buyer’s receipt of any title documents (if applicable) and Constructive Receipt of the applicable Equipment by the buyer. Payments will be made by either electronic wire transfer or certified cashier’s check (subject to additional fees for overnight courier).

Ownership Certification, Verification and Liens. Unless otherwise prominently disclosed by a seller in the Listing Details for Equipment and subject to the following paragraph, Sellers may only offer lien-free Equipment for sale on the Site. It is the buyer’s responsibility to carry out title and lien searches to investigate the existence of filed UCC financing statements on the Equipment that may compromise transfer of clean title to the Equipment to the buyer. If Graham Iron receives notice together with supporting documentation determined to be credible by Graham Iron (such determination to be made in Graham Iron’s sole discretion and without any requirement that it investigate any such supporting documentation to determine the authenticity of the same) that any Equipment being offered for sale on the Site is subject to any lien, claim or encumbrance of any third party that has not been prominently disclosed by the seller in the Listing Details for such Equipment, Graham Iron may, but is not obligated to, terminate any Auction with respect to such Equipment and remove the Equipment from the Site until such time as the seller provides proof acceptable to Graham Iron that such lien, claim or encumbrance has been removed or terminated. Notwithstanding the receipt of any such proof by Graham Iron or any inquiry or other steps taken by or on behalf of Graham Iron with respect to any lien, claim or encumbrance of any Equipment, or the failure of Graham Iron to take or cause to be taken any action with respect to any alleged lien, claim or encumbrance of any Equipment, Graham Iron shall not be responsible for and does not represent or warrant clear title to any Equipment being offered on the Site. Graham Iron reserves the right to charge a new Listing Fee for the Equipment removed due to the apparent existence of an undisclosed lien claim or encumbrance of any third party before permitting it to be re-listed for sale on the Site.

Without limiting the foregoing, if a seller offers Equipment for sale that is subject to any lien, the seller shall (1) prominently notify potential buyers of the existing of such lien(s) in the Listing Details for the applicable Equipment and (2) for each such lien deliver to Graham Iron a pay-off letter from and executed by the applicable lien holder setting forth separately for each day of the applicable auction period and for a period of 14 days thereafter the full pay-off amount of such financing indebtedness (i.e., the amount of any principal, interest and any breakage costs or other charges of any type due and payable to the lien holder in connection with the satisfaction of such lien) on each such day. Delivery to Graham Iron of any pay-off letter constitutes express authority to Graham Iron to use the purchase price proceeds received from the sale of such Equipment to satisfy the financing indebtedness referenced therein.

For your convenience, the following link will take you directly to CT Corporation System where you may order a lien search for Equipment being sold by Seller’s located within the United States (www.ctlegalsolutions.com). Graham Iron makes no representation or warranty regarding the quality or sufficiency of the lien search or other information provided to you by CT Corporation System which you agree is being relied upon at your sole risk and without any claim or recourse against Graham Iron. You acknowledge that Graham Iron may receive a referral fee or commission from CT Corporation System in connection with your use of CT Corporation Systems services.

Removal Penalty Prior to Auction Close – Reserve not met. If, for any reason, Graham Iron removes any Equipment from the Site due to the alleged existence of any lien, encumbrance or third party claim, or the seller withdraws any Equipment listed in an Auction from the Site after the time of Equipment Listing but before either the reserve is met or the Auction closes, the seller agrees to pay Graham Iron the Removal Penalty. Seller shall not be entitled to a refund of the Listing Fee under circumstances in which a Removal Penalty is assessable by Graham Iron.

Default Penalty once Reserve is Met. The seller may not withdraw a piece of Equipment (or causes Graham Iron to withdraw a piece of Equipment) from Auction after a bid has been received that satisfies the Reserve Price. In that circumstance seller agrees to pay Graham Iron a Default Penalty (“Seller Default Penalty”) equivalent to the Commission Fee of the highest bid price issued price to such withdrawal as if the Equipment were sold for such price, as well as the Listing Fee.

VI. Seller’s Representations and Warranties

Each seller of Equipment hereby represents and warrants the following, on and as of the date and at the time of sale of any Equipment, to and for the benefit of Graham Iron and any buyer of such Equipment and their respective heirs, successors and assigns:

(a) Seller is either an individual resident of the United States or Canada and a United States or Canadian citizen or, if an organization, is duly and validly organized and existing in good standing under the laws of its jurisdiction of organization within the United States or Canada;
(b) Seller has full power and authority to execute, deliver and perform and observe the provisions of this Agreement and this Agreement constitutes its legal, valid and binding obligation enforceable against seller in accordance with its terms;
(c) Seller is the sole and exclusive owner of the Equipment and all parts, components, accessories, equipment or systems installed in, attached to or delivered with the Equipment and is conveying to Buyer good and marketable title in and to the Equipment and all parts, components, accessories, equipment or systems installed in, attached to or delivered with the Equipment, free and clear of any and all adverse claims, demands, charges, leases, subleases, conditional sales agreements or other title retention agreements, security agreements, mortgages, pledges, hypothecations, assignments, trust agreements, pooling or exchange agreements, liens and encumbrances, of every kind or nature, whether known, or unknown, recorded or unrecorded, perfected or unperfected, or choate or inchoate, including, without limitation, mechanics’ liens and liens for taxes;
(d) All taxes, duties, penalties, charges, fees, costs and expenses incurred by seller with respect to the Equipment have been paid or, to the extent that they have not, seller agrees to pay the same as and when due to avoid any adverse claim or lien on the Equipment or any part, component, accessory, equipment or system installed in, attached to or delivered with the Equipment.
(e) All of the information provided by seller in the Listing Details is true, correct and complete in all material respects and, to Seller’s knowledge, the Listing Details do not fail to disclose any information, which if known to a potential buyer, would adversely effect such buyer’s decision to purchase the Equipment identified therein or the amount such buyer would be willing to pay for such Equipment.

THESE REPRESENTATIONS AND WARRANTIES APPLY TO ANY AND ALL SALES OF EQUIPMENT UNLESS EXPRESSLY AND SPECIFICALLY DISCLAIMED IN ALL CAPITAL LETTERS AND IN BOLD FACE TYPE BY THE APPLICABLE SELLER IN THE LISTING DETAILS FOR THE PARTICULAR EQUIPMENT THEN BEING SOLD.

VII. Adjudication of Equipment Dispute. Graham Iron will be solely responsible for the review and adjudication of any dispute to which Graham Iron is not party arising directly or indirectly from the Services, use of the Site, the breach of any seller representation or warranty, or any other matters arising directly or indirectly from or in any way connected with Site and the Services including, without limitation, any demands for rescission by any buyer timely made in accordance with this Agreement. All determinations made by Graham Iron shall be final and binding on the parties to the transaction underlying such dispute and not subject to appeal to the same extent as if Graham Iron’s decision was made by the highest court of competent jurisdiction that could hear, or review on appeal, such a claim. You agree to execute and deliver to Graham Iron a general release, in form and substance acceptable to Graham Iron, of Graham Iron and its affiliates and their respective officers, directors, shareholders, controlling persons, agents, successors and assigns following the adjudication by Graham Iron of any dispute in which you are involved. Any dispute with respect to which Graham Iron is a party shall be arbitrated in accordance with Section VIII, “Arbitration”.

VIII. Disclaimer; Limitation of Liability; Indemnity; Covenant Not to Sue; Arbitration; Links to Third Parties.

Disclaimer. THE EQUIPMENT, SITE AND SERVICE, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED OR PURCHASED THROUGH THE SITE OR THE SERVICES, ARE PROVIDED ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE” BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND BY GRAHAM IRON OR ANY PERSON ACTING BY OR ON BEHALF OF GRAHAM IRON INCLUDING, WITHOUT LIMITATION, ANY REPRESENTATION OR WARRANTY AS TO THE CONDITION, DESIGN, OPERATION, MERCHANTABILITY, FREEDOM FROM CLAIMS OF INFRINGEMENT OR THE LIKE, OR FITNESS FOR USE FOR A PARTICULAR PURPOSE OF ANY EQUIPMENT, OR AS TO THE QUALITY OF THE MATERIAL OR WORKMANSHIP OF ANY EQUIPMENT, THE ABSENCE THEREFROM OF LATENT OR OTHER DEFECTS, WHETHER OR NOT DISCOVERABLE, OR AS TO ANY OTHER REPRESENTATION OR WARRANTY WHATSOEVER, EXPRESS OR IMPLIED (INCLUDING ANY IMPLIED WARRANTY ARISING FROM A COURSE OF PERFORMANCE OR DEALING OR USAGE OF TRADE), WITH RESPECT TO THE EQUIPMENT; AND EACH USER HEREBY WAIVES, RELEASES, DISCHARGES, RENOUNCES AND DISCLAIMS EXPECTATION OF OR RELIANCE UPON ANY SUCH WARRANTY OR WARRANTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, (1) GRAHAM IRON DOES NOT WARRANT THAT THE EQUIPMENT, SERVICE OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED IN THE SITE WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED, (2) GRAHAM IRON MAKES NO WARRANTY THAT THE EQUIPMENT, SITE OR SERVICE WILL MEET USERS’ REQUIREMENTS OR EXPECTATIONS, AND (3) EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING EQUIPMENT ON THE SERVICE OR THE SITE, THE LISTED EQUIPMENT WILL BE SOLD. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY SERVICES OFFERED ON THE SITE, YOU AGREE THAT YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM GRAHAM IRON OR ANYONE ACTING ON ITS BEHALF, THE SITE OR THROUGH THE SERVICE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN AND YOU SHALL NOT BE ENTITLED TO RELY UPON ANY SUCH ADVICE OR INFORMATION. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS. GRAHAM IRON 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 GRAHAM IRON OR ANY OF ITS AFFILIATES, OFFICERS, DIRECTORS, SHAREHOLDERS, DULY AUTHORIZED AGENTS, EMPLOYEES, ATTORNEYS-IN-FACT, SUCCESSORS OR ASSIGNS HAVE ANY RESPONSIBILITY OR LIABILITY WHATSOEVER TO ANY USER OR ANY OTHER PERSON FOR ANY DAMAGES OF ANY KIND ARISING FROM (A) ANY INJURY, LOSS OR DAMAGE CAUSED OR ALLEGED TO BE CAUSED DIRECTLY OR INDIRECTLY BY ANY EQUIPMENT OR ANY PART THEREOF OR BY ANY INADEQUACY THEREOF OR DEFICIENCY OR DEFECT THEREIN OR BY ANY OTHER CIRCUMSTANCE IN CONNECTION THEREWITH UNDER ANY THEORY OF LIABILITY IN CONTRACT OR TORT, OUT OF ANY NEGLIGENCE OR STRICT LIABILITY OF GRAHAM IRON, IN EQUITY OR OTHERWISE. IN ADDITION, IN NO EVENT SHALL GRAHAM IRON BE LIABLE FOR ANY SPECIAL INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE ANY EQUIPMENT, THE SERVICE, THE SITE OR ITS CONTENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF GRAHAM IRON 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 GRAHAM IRON TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT OR IN EQUITY, 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.

General Indemnity. You hereby agree and undertake to indemnify, defend, reimburse and hold harmless Graham Iron and its affiliates and their respective officers, directors, shareholders, controlling persons, agents, successors and assigns (each an “Indemnitee”) from and against any and all claims, damages, losses, liabilities, demands, suits, judgments, settlements, causes of action, legal proceedings (whether civil or criminal), penalties, fines, other actions, and any documented attorneys' fees and all other documented costs and expenses in connection therewith, including any of the foregoing arising or imposed with or without any such Indemnitee's fault or negligence or under the doctrine of strict liability or any other theory of liability (any and all of which are hereafter referred to as "Claims") which in any way may result from, pertain to, or arise in any manner out of, or are in any manner related to: (i) the use of this Site, any site linked to this Site, or any Services by you or any transaction entered into by you utilizing this Site or the Services; or (ii) the condition, manufacture, delivery, use, registration, import, export, maintenance, storage or operation of any Equipment; or (iii) any defect in any Equipment purchased or sold by you (whether or not discovered or discoverable by any Indemnitee) arising from any material or articles or parts used therein or from the design, testing, or use thereof or from any maintenance, service, repair, overhaul, or testing of the Equipment; or (iv) any transaction contemplated by this Agreement to which you are a party. In the event you are required to indemnify any Indemnitee hereunder, you shall pay to such Indemnitee an amount which, after deduction of all Taxes (defined below in this Section VIII) and like charges required to be paid by such Indemnitee in respect of such payment, is equal to the amount of the indemnification required.

Covenant Not to Sue. You hereby covenant and agree not to sue or otherwise bring any action or claim in front of any court, board, commission, department, division, organ, instrumentality, or agency of any federal, state or local government, or any political subdivision thereof or local jurisdiction therein, against any Indemnitee with respect to (i) any Claims for which you are obligated to indemnify any Indemnitee in accordance with the immediately preceding paragraph (General Indemnity), whether any such Claims are known or unknown, direct or indirect, liquidated, matured, contingent or otherwise, (ii) any matter with respect to which Graham Iron is solely entitled to adjudicate any dispute pursuant to Section VII, “Adjudication of Equipment Dispute”, or (iii) any matter required to be arbitrated in accordance Section VIII, “Arbitration”. Any breach by you of this paragraph shall constitute a Claim for which each Indemnitee shall have a right to indemnification by you pursuant to the immediately preceding paragraph (General Indemnity).

Liability and Indemnity for Taxes. Buyers, if applicable, are responsible for providing Graham Iron valid resale certificates for each transaction processed through our Service. Buyers that do not provide valid resale certificates in a timely manner will have sales and use taxes assessed and remitted to the appropriate taxing authorities. You acknowledge and agree that Graham Iron is providing a service in the calculation, reporting or 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 our Site. You acknowledge and agree that while the bidder is primarily liable for sales and use taxes due with respect to transactions and seller is secondarily liable for such taxes, you jointly and severally agree to indemnify and hold harmless Graham Iron and each Indemnity from and against all Claims arising in connection with the calculation, collection and remittance of any applicable Taxes. For all purposes of this Agreement the term “Taxes” means any and all sales, use, personal property, transfer, value added, customs, import, export, withholdings or other taxes, excises, or duties of any nature whatsoever, together with any penalties, fines, charges or interest thereon.

Arbitration. YOU AGREE TO MEDIATE AND ARBITRATE ANY DISPUTE OR CLAIM BETWEEN YOU AND GRAHAM IRON ARISING OUT OF OR RELATING TO, DIRECTLY OR INDIRECTLY, THIS AGREEMENT, ANY SALE OR ATTEMPTED SALE OF EQUIPMENT, OR ANY OTHER TRANSACTION CONTEMPLATED BY THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ALL CONTRACT AND TORT CLAIMS, STATUTORY CLAIMS, CLAIMS FOR RELIEF WHETHER EQUITABLE OR LEGAL, ISSUES OF WHETHER A CLAIM IS SUBJECT TO ARBITRATION, AND DISPUTES ABOUT THE SCOPE OF THIS CLAUSE. 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 BINDING SETTLEMENT. MEDIATION SHALL BE CONDUCTED IN ATLANTA, GEORGIA, BY A SOLE 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, THEN THE PARTIES SHALL RESOLVE THE DISPUTE THROUGH FINAL AND BINDING ARBITRATION TO BE CONDUCTED PURSUANT TO THE COMMERCIAL ARBITRATION RULES OF AMERICAN ARBITRATION ASSOCIATION (“AAA”). A SINGLE ARBITRATOR WITH KNOWLEDGE OF THE AUCTION BUSINESS SHALL CONDUCT THE ARBITRATION IN ATLANTA, GEORGIA. THE PARTIES SHALL MUTUALLY AGREE UPON SUCH ARBITRATOR. IN THE EVENT THAT THE PARTIES HAVE NOT AGREED TO A MUTUALLY ACCEPTABLE ARBITRATOR WITHIN THIRTY (30) DAYS OF THE DATE OF THE NOTICE OF INTENTION TO ARBITRATE, THE AAA SHALL SELECT THE ARBITRATOR FROM ITS REGULARLY MAINTAINED LIST OF COMMERCIAL ARBITRATORS. WITHIN SIXTY (60) DAYS AFTER THE ARBITRATOR HAS BEEN SELECTED, THE ARBITRATOR SHALL CONDUCT A SINGLE HEARING NO LONGER THAN ONE DAY IN DURATION FOR THE PURPOSE OF RECEIVING EVIDENCE AND SHALL RENDER A DECISION WITHIN TEN (10) DAYS AFTER THE CONCLUSION OF THE HEARING. THE PROCEDURAL AND SUBSTANTIVE LAW TO BE APPLIED TO AND IN THE ARBITRATION SHALL BE THE LAW OF THE STATE OF GEORGIA APPLICABLE TO CONTRACTS MADE AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE WITHOUT REGARD TO ITS CONFLICT OF LAW PRINCIPLES. THE ARBITRATOR SHALL HAVE THE RIGHT TO ISSUE INJUNCTIONS AND ATTACHMENTS AND OTHER EQUITABLE REMEDIES AND AWARD COMPENSATORY DAMAGES. THE ARBITRATOR SHALL HAVE NO POWER TO AWARD CONSEQUENTIAL, PUNITIVE OR TREBLE DAMAGES, OR ANY OTHER MANNER OF ENHANCED DAMAGES. THE PREVAILING PARTY IN ANY ARBITRATION SHALL HAVE THE RIGHT TO AN AWARD OF ATTORNEYS’ FEES AND COSTS. THE AWARD OF THE ARBITRATOR SHALL BE FINAL AND BINDING AND ANY PARTY TO THE DISPUTE MAY SEEK TO CONFIRM THE AWARD OF THE ARBITRATOR IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN ATLANTA, GEORGIA AND ENFORCE THE AWARD AS A JUDGMENT. EXCEPT FOR THE FILING OF A JUDICIAL ACTION TO CONFIRM, MODIFY, VACATE, OR ENFORCE AN ARBITRATOR’S AWARD, INCLUDING THE AWARD OF AN INJUNCTION OR ATTACHMENT, WHICH FILING IS PERMISSIBLE, ANY PARTY WHO INITIATES LITIGATION, OR WHO INITIATES ARBITRATION WITHOUT FIRST MEDIATING A DISPUTE, SHALL FORFEIT ANY AND ALL RIGHT TO ATTORNEYS’ FEES AND COSTS AS A PREVAILING PARTY, AND SHALL REIMBURSE ANY OTHER PARTY TO THE LITIGATION FOR THEIR COSTS OF LITIGATION INCLUDING ATTORNEYS’ FEES AND COSTS. IN THE EVENT THAT A CIVIL OR ADMINISTRATIVE PROCEEDING WITH RESPECT TO ANY DISPUTES SUBJECT TO ARBITRATION UNDER THIS PROVISION IS COMMENCED, ANY OTHER PARTY TO SUCH PROCEEDING SHALL BE ENTITLED TO DEMAND ARBITRATION WITH RESPECT TO THAT DISPUTE AND SHALL BE ENTITLED TO A PERMANENT STAY AND INJUNCTION AGAINST ANY SUCH CIVIL OR ADMINISTRATIVE PROCEEDING. IN THE EVENT THAT A PARTY ASSERTS MULTIPLE CLAIMS OR CAUSES OF ACTION, SOME BUT NOT ALL OF WHICH ARE SUBJECT TO ARBITRATION UNDER LAW, ANY AND ALL CLAIMS SUBJECT TO ARBITRATION SHALL BE SUBMITTED TO ARBITRATION IN ACCORDANCE WITH THIS PROVISION.

Links to Third Parties. The Services and the Site may provide links to the websites or services of others, including shipping, rigging and other services ("Third-Party Services"). Links to such Third-Party Services, or any explanation or statement regarding those Third-Party Services, do not constitute an endorsement or guarantee by Graham Iron of such Third-Party Services, or the products, content, materials or information presented or made available by such Third-Party Services. User acknowledges and agrees that Graham Iron is not responsible for any damages or losses caused or alleged to have been caused by the use of any Third-Party Services, or from the products, content, material, services or information presented by or made available through such Third-Party Services.

IX. General Provisions

Eligibility. Only Registered Users are eligible to participate in Graham Iron’s Services.

Prices. All prices are listed according to their value in U.S. dollars.

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.

Modification and Availability. Graham Iron may, at any time, delete, modify or supplement the content of this Site without prior notice. Graham Iron 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. Graham Iron 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 Graham Iron 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. Graham Iron 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.

Site Failures and Outages. Graham Iron makes reasonable commercial efforts to make its Service and Site available at all times, however, Graham Iron 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. Graham Iron’s site occasionally experiences outages during which bidders cannot place bids or effectively locate items. When outages occur that are at least four (4) hours in duration, the seller has the option of accepting or rejecting the highest bid on the Equipment in effect at the time of such outage. If any outage extends for more than 24 hours, all bids are deemed withdrawn and void and are no longer capable of being accepted by the seller.

Notices.

To Graham Iron. Any communications to Graham Iron must be made in writing and sent to by email to grahamiron@grahamcompanies.us and by certified mail to Graham Iron or such other address as may be designated from time to time. Only communications made in writing are effective, and you are accordingly not entitled to rely on any verbal communications communicated to Graham Iron.

To You: Except as explicitly stated otherwise, any notices under this Agreement shall be given by email to the email address provided to Graham Iron during your registration, or as subsequently amended by you, on the grahamiron.com web site. Notice shall be deemed given 24 hours after the email is sent. If your email address changes, you are responsible for notifying Graham Iron of such change by updating your Graham Iron profile on the Site. By default, an optional subscription to receive regular marketing information by email from Graham Iron will be activated, as will a mandatory subscription to receive emails regarding service updates and special announcements.

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 Graham Iron 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 Graham Iron is strictly prohibited.

Privacy. Graham Iron Privacy Policy, located at here is hereby incorporated by reference.

Entire Agreement. These terms set out the entire understanding between Graham 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.

Governing Law. The laws of the State of Georgia applicable to contracts made and to be performed entirely within such state shall govern this Agreement.

Termination; Severability. This Agreement constitutes a legally binding agreement between you and Graham Iron until terminated by you or Graham Iron, which Graham Iron may do at any time, without notice, at Graham Iron’s 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 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.

No Waiver; Limitation on Claims; Entire Agreement; Survival. The failure by either you or Graham Iron 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 claim against Graham Iron or any of its affiliates or any of their respective officers, directors, shareholders, controlling persons, agents, successors or assigns arising out of or related to the Service or this Agreement must be asserted pursuant to the arbitration provisions of Section IX within six (6) months after the facts or circumstances giving rise to such claim first arose or existed; otherwise, such claim is permanently barred. This Agreement together with the Seller Listing Agreement and the Privacy Policy comprise the entire agreement between you and Graham Iron with respect to the subject matter hereof and thereof and supersedes all prior agreements between the parties regarding such subject matter. The provisions of Section VIII hereof and this Section IX shall survive any termination of this Agreement. The termination of this Agreement shall not limit or release you from any liability for any due and unpaid amounts owed hereunder prior to such termination.