GENERAL TERMS AND CONDITIONS OF SALE
These Terms and Conditions of Sale (“Sale Terms”) govern all items which are offered for sale by RABIN WORLDWIDE, INC. (“Rabin Worldwide”) and any of its employees, agents, designees, affiliates, joint venture partners, and co-auctioneers (together with Rabin Worldwide, collectively, “RABIN”) to a buyer (the “Buyer”) of any machinery, equipment or other personal property items offered by RABIN and purchased by Buyer (collectively, the “Purchased Items”). The owner of the items upon which Buyer will be bidding may be owned either by Rabin or by another entity who has retained RABIN to sell such items (the “Owner”). RABIN reserves the right to modify these Sale Terms at any time and any such modification shall become part of these Sale Terms. By registering at the auction online the Buyer agrees that it has read and fully understands these Sale Terms and agrees to be bound by these Sale Terms.
1. Payment. If Buyer is the winning bidder for the Purchased Items, full payment of the purchase price for the Purchased Items due to RABIN (the “Purchase Price”), must be made in United States Dollars, and must be made on the day of sale as set forth in the invoice sent to Buyer at the end of the auction (the “Invoice”). Payment is due and payable in cash, by cashier’s check, wire transfer, company check, payable to Rabin Worldwide. For any Purchased Items paid in cash with a value of $10,000 or greater, Buyer is required to complete United States Treasury Form Number 8300 and return it to RABIN at the time of purchase. Buyer shall pay RABIN a late penalty on all amounts over 30 days past due computed at the greater of (i) 18% per annum, and (ii) the maximum rate permitted by applicable California law. If Buyer fails to pay the Purchase Price in accordance with these Sale Terms, Buyer agrees that it remains responsible for payment of the Purchase Price and RABIN shall have the right to commence all legal actions against Buyer for collection of the entire Purchase Price amount. Buyer shall also be liable for any and all costs and expenses incurred by RABIN arising out of or in connection with RABIN’s efforts to collect any unpaid amounts hereunder including, without limitation, attorney or collection agency fees and expenses. No forbearance, indulgence, or delay by RABIN in taking any action hereunder shall be deemed a waiver of any rights of RABIN hereunder. Until RABIN has received payment in full of the Purchase Price, the Rigger Release and Indemnification Agreement executed by the Buyer or rigger named therein, (the “RRIA”) along with an approved Certificate of Insurance (“COI”), and any other documents required by RABIN, Buyer shall have no right to dismantle or remove any of the Purchased Items from the real property located at the auction site (the “Real Property”).
2. Taxes. Prices do not include any federal, state or local taxes, which are in addition to the Purchase Price and must be paid by Buyer where applicable and may be added by RABIN to the Invoice unless Buyer furnishes RABIN with an acceptable tax exemption certificate. In addition, any and all foreign duties and taxes are also the responsibility of Buyer and Buyer hereby indemnifies and holds RABIN harmless from any and all claims, costs, expenses and liability incurred by RABIN resulting from Buyer’s failure to pay any foreign duties and taxes. If an acceptable tax exemption certificate is not submitted at the time of payment, Buyer may submit said exemption certificate within ten (10) business days to RABIN, and the tax originally paid will be refunded back to the Buyer. The failure of RABIN to include any such federal, state or local taxes does not excuse the Buyer from responsibility for paying any such taxes and Buyer hereby indemnifies and holds RABIN harmless from any and all claims, costs, expenses and liability incurred by RABIN resulting from Buyer’s failure to pay any federal, state or local taxes.
3. Buyer’s Premium. RABIN will charge and retain a non-negotiable buyer’s commission (“Buyer’s Premium”) on the proceeds of any sale based on the final and accepted bid for the Purchased Items. The Buyer’s Premium will 18% for online bidders. The Buyer’s Premium will be posted on the Real Property and announced prior to the auction.
4. Title. Title shall pass to Buyer upon the satisfactory completion of all of the following: (i) RABIN’s receipt of full payment for the Purchased Items in accordance with these Sale Terms; (ii) the Purchased Items have been removed from the Real Property in compliance with the RRIA; (iii) all damage, if any, to the Real Property and to any other personal property located at the Real Property caused by removing the Purchased Items has been repaired to the satisfaction of RABIN and the owner of the Real Property; (iv) Buyer shall not be in breach of any of items set forth in these Sale Terms.
5. INSPECTION. BUYER SHALL BE DEEMED TO HAVE RELIED ENTIRELY UPON ITS OWN INSPECTIONS AND INVESTIGATIONS OF ALL OF THE ITEMS UPON WHICH BUYER WILL BE BIDDING AND/OR PURCHASING. BUYER HEREBY ACKNOWLEDGES THAT BUYER AND BUYER’S AGENTS OR REPRESENTATIVES HAVE HAD THE OPPORTUNITY TO INSPECT, OR HAVE INSPECTED, ALL OF THE ITEMS UPON WHICH BUYER WILL BE BIDDING AND/OR PURCHASING. BUYER AGREES THAT BY SUBMITTING A BID FOR ANY ITEM, BUYER SHALL BE DEEMED TO HAVE INSPECTED ALL OF THE ITEMS UPON WHICH BUYER WILL BE BIDDING AND/OR PURCHASING. AFTER A SALE OF PURCHASED ITEMS HAS BEEN CONFIRMED, THE BUYER SHALL BE DEEMED TO HAVE INSPECTED ALL PURCHASED ITEMS AT THE TIME OF SALE CONFIRMATION.
6. Acceptance by Buyer. Buyer agrees that its acceptance of the Purchased Items shall constitute an acknowledgment by Buyer that the Purchased Items satisfies any and all obligations of RABIN hereunder. Buyer may not revoke its acceptance for any reason whatsoever.
7. Safety Standards. Buyer expressly assumes all responsibility to obtain all safety equipment and to meet all applicable local, state and federal laws, regulations and standards in removing any of the Purchased Items. Buyer further agrees to comply with the Rigger Release Agreement, if applicable.
8. Removal of Purchased Items. Purchased Items can only be removed from the Real Property within the removal time as announced at the sale and as indicated on the Invoice (the “Removal Deadline”). No Purchased Items can be removed, segregated, or dismantled by Buyer before the conclusion of the auction. Prior to removal of any Purchased Items, the entire Invoice for all Purchased Items must be paid in full in order to gain access to the Real Property and Buyer and/or Buyer’s Rigger must submit a fully completed & executed RRIA along with the approved COI to a RABIN representative for approval. Once approved, Buyer must present the RABIN representative with an original Invoice marked “PAID.”
9. Failure to Remove Purchased Items/Bankruptcy. If Purchased Items are not removed by the Removal Deadline (i) such Purchased Items will be deemed abandoned by the Buyer, (ii) Buyer shall forfeit all monies paid to RABIN for such Purchased Items, and (iii) Buyer shall forfeit any rights to such Purchased Items. In addition, Buyer shall be responsible for all damages suffered by RABIN, including, but not limited to, any dismantling, transportation, storage or other costs, including attorneys’ fees and expenses incurred by RABIN as a consequence of Buyer’s failure to remove such Purchased Items. Buyer hereby grants to RABIN a security interest in the Purchased Items to secure Buyer’s obligation to remove the Purchased Items from the Real Property not later than the Removal Deadline and in compliance with the terms of the Rigger Release Agreement, if applicable. Buyer hereby authorizes RABIN the right to file and/or record such documents and financing statements as are necessary or useful to perfect such security interest in the Purchased Items as provided in this Section 9, and Buyer shall execute and deliver to RABIN such documents as requested in connection therewith. In the event Buyer fails to remove the Purchased Items on or before the Removal Deadline, RABIN shall have the right to foreclose its security interest in the Purchased Items by a public or private sale in accordance with applicable law. In addition, in the event any one or more of the following shall occur, any and all obligations of RABIN hereunder, including without limitation, any obligations to Buyer in respect of the Purchased Items shall immediately terminate and without further action by RABIN: (a) Buyer files a voluntary petition in bankruptcy or a bankruptcy petition is filed against Buyer; (b) Buyer becomes insolvent or makes an assignment for the benefit of its creditors; or (c) Buyer discontinues its business or a receiver is appointed for Buyer or its business.
10. Integration; Modifications. Buyer acknowledges that these Sale Terms, the Invoice, the RRIA along with COI, a bill of sale, if applicable, and all attachments and exhibits hereto and thereto, (a) are the only terms and conditions of sale for the Purchased Items, (b) are intended by the parties as a complete and exclusive statement of the terms of their agreement in respect of the Purchased Items, and (c) supersede all prior agreements, written or oral in respect of the auction and Purchased Items, except for any and all announcements made by the auctioneer on the day of the auction concerning the Sale Terms, which Buyer acknowledges and agrees to be bound. Any variation from the terms hereof contained in the Buyer’s acceptance of the Purchased Items is hereby rejected.
11. Online Bids. All bid must be placed online at www.bidspotter.com. Any taxes and/or Buyer’s Premium will be added to the winning bid price. Buyers who choose to bid at any auction online using bidspotter.com shall do so at their own risk. RABIN cannot guarantee the transmission of online bids when situations or circumstances beyond RABIN’s control interfere with the normal operation of bidspotter.com. RABIN has no responsibility or liability for items lost at auction due to any system malfunction of bidspotter.com. It is the responsibility of the Buyer to follow instructions of bidspotter.com to properly operate the online bidding system.
12. Bidding. If any dispute arises between two or more bidders, the auctioneer has the right in its sole and absolute discretion to determine the winning bidder or to re-offer and resell the item or lot in dispute. RABIN shall have no liability arising from any dispute between two bidders. RABIN reserves the right to group one or more lots into one or more selling items or lots, or to add to or delete items or lots at its sole discretion. RABIN reserves the right to set the bidding increments. RABIN also reserves the right to reject any bid which is only a fractional advance over the preceding bid. RABIN, or the owners, reserves the right to set and/or to modify a minimum price.
13. Hazardous Materials. Buyer acknowledges that Purchased Items may contain Hazardous Materials. BUYER HEREBY INDEMNIFIES, DEFENDS, PROTECTS AND HOLDS HARMLESS, THE INDEMNIFIED PARTIES FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LIABILITIES, ACTIONS, CAUSES OF ACTION, COSTS AND JUDGMENTS, INCLUDING WITHOUT LIMITATION, ATTORNEYS’ FEES, ARISING FROM OR RELATING TO ANY RELEASE OF ASBESTOS, PCBS OR OTHER HAZARDOUS MATERIALS IN CONNECTION WITH THE REMOVAL AND TRANSPORTATION OF THE PURCHASED ITEMS FROM THE REAL PROPERTY. As used in these Sale Terms “Hazardous Materials” means (a) substances that are defined or listed in, or otherwise classified pursuant to, any applicable laws or regulations as “hazardous substances,” “hazardous materials,” “hazardous wastes,” “toxic substances,” or any other formulation intended to define, list, or classify substances by reason of deleterious properties such as ignitability, corrosivity, reactivity, carcinogenicity, reproductive toxicity, or “EP toxicity,” (b) oil, petroleum, or petroleum-derived substances, natural gas, natural gas liquids, synthetic gas, drilling fluids, produced waters, and other wastes associated with the exploration, development, or production of crude oil, natural gas, or geothermal resources, (c) any flammable substances or explosives or any radioactive materials, and (d) asbestos in any form or electrical equipment that contains any oil or dielectric fluid containing levels of polychlorinated biphenyls in excess of 50 parts per million. As used in these Sale Terms, “Indemnified Parties” means collectively RABIN, the owner of the Real Property, the Owner and their respective managers, officers, directors, shareholders, members, agents, attorneys, employees, successors and assigns.
14. Buyer’s Responsibility and Indemnity. Buyer acknowledges the Real Property where items upon which Buyer may be bidding are located, held or presented for inspection, may be potentially dangerous places which may include noxious, corrosive and pressurized substances being present, heavy equipment being operated, and live electric circuits. Buyer and its agents and representatives present at the Real Property before, during or after an auction shall be deemed to be present at their own risk. Buyer further acknowledges that RABIN shall have no liability for any injuries sustained to Buyer and its agents and representatives, nor damages to or loss of property which may occur from any cause whatsoever. Removal of Purchased Items shall be at the sole expense, risk, and liability of the Buyer. In addition, all freight and insurance charges are the responsibility of the Buyer unless otherwise agreed by RABIN and Buyer in writing. Buyer shall be responsible for and pay all expenses, losses, and damages that may arise from the removal and transportation of the Purchased Items from the Real Property, and all losses, damages, debts, and liabilities incurred by Buyer in connection with Buyer’s purchase and removal of the Purchased Items and all other expenses relating or incidental thereto. BUYER HEREBY INDEMNIFIES, DEFENDS, PROTECTS AND HOLDS HARMLESS, THE INDEMNIFIED PARTIES FROM AND AGAINST ALL SUITS, CLAIMS, COSTS, DAMAGES AND EXPENSES, INJURIES TO ANY PROPERTY OR PERSONS (INCLUDING DEATH) INCLUDING, WITHOUT LIMITATION, ATTORNEYS’ FEES, ARISING OUT OF OR IN CONNECTION WITH BUYER’S ATTENDANCE AT THE AUCTION, VISITS TO THE REAL PROPERTY, PURCHASE, OWNERSHIP, DISMANTLING, REMOVAL FROM THE REAL PROPERTY, TRANSPORTATION, REASSEMBLY, USE AND/OR RESALE OF THE PURCHASED ITEMS, OR THE PERFORMANCE OF ANY OF THE OBLIGATIONS OF BUYER.
15. No Warranties. Neither RABIN nor the Owner makes any representations, warranties or guarantees, expressed or implied, as to the genuineness, authenticity, quantity, quality, condition, usability, salability, weight, measure, count, make, model, year, age, mechanical condition, performance, description, or other specifications of any items upon which Buyer will be bidding or in any lot(s). Neither RABIN nor the Owner shall be liable for any fault or defect in any lot(s). RABIN shall not be held liable for any inaccurate, incomplete or incorrect description, of any items or lot(s) upon which Buyer will be bidding, or in any media pertaining to the auction, whether in a catalog, advertisement, website listing, or otherwise. Descriptions of items are prepared FOR GUIDE PURPOSES ONLY and shall not be relied upon by the Buyer for accuracy or completeness. BUYER ACKNOWLEDGES THAT NO REPRESENTATIVE OF RABIN HAS AUTHORITY TO MAKE ANY REPRESENTATIONS OR WARRANTIES WITH RESPECT TO THE PURCHASED ITEMS. THE PURCHASED ITEMS SOLD BY RABIN HEREUNDER ARE SOLD “AS IS”, “WHERE IS”, AND WITHOUT REPRESENTATION, WARRANTY OR RECOURSE OF ANY KIND OR NATURE. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ALL IMPLIED OR EXPRESS WARRANTIES ARISING UNDER THE UNIFORM COMMERCIAL CODE OR UNDER ANY OTHER APPLICABLE LAW INCLUDING THOSE OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE HEREBY DISCLAIMED BY RABIN AND OWNER IN THEIR ENTIRETY. IN ADDITION, RABIN AND OWNER MAKE NO REPRESENTATIONS OR WARRANTIES AS TO THE TITLE, POSSESSION, QUIET ENJOYMENT, LOCATION OR COMPLETENESS OF THE PURCHASED ITEMS.
16. Default/Non-Compliance. In addition to the matters set forth in Section 1 above, if Buyer fails to pay the Purchase Price for any of the Purchased Items, RABIN may resell such items at a public or private sale without further notice. If, at such a sale, such item(s) is sold for a lesser price; the defaulting Buyer will be responsible to pay for the difference together with all charges, fees and/or expenses, including but not limited to, the cost of removal and resale of the abandoned item(s), commissions, and legal fees incurred by Rabin as a result of resale.
17. Limitation of RABIN’s Liability. RABIN shall not be liable to Buyer for any damages, including, without limitation, incidental, consequential, exemplary, treble or special damages or damages for breach of contract, tort (including negligence), strict liability, patent infringement or otherwise arising out of or in any way related to the (i) auction, (ii) Purchased Items or any act or omission of RABIN concerning the Purchased Items, (iii) removal and/or delivery of any Purchased Items from the Real Property, or (iv) dismantling, removal, transport, reassembly, use, operation, maintenance, or repurchase and/or resale of the Purchased Items by any person. If for any reason whatsoever, RABIN is unable to deliver any lot, RABIN sole liability, if any, shall be the return of any monies paid on such lot only.
18. Acts of Others. RABIN is not responsible for the acts or omissions of (i) of any party who provided any items to the auctioneer for sale, (ii) owner or lessor of the Real Property, or (iii) any party who provides services to the auctioneer and/or Buyer, including, but not limited to telecommunication, internet bidding services, removal, rigging, or shipping, of Purchased Items.
19. Headings. The section headings in these Sale Terms are inserted for convenience only and are not intended to modify or define any term or provision of these Sale Terms.
20. Governing Law; Jurisdiction. THESE SALE TERMS SHALL BE DETERMINED UNDER, GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF CALIFORNIA WITHOUT GIVING EFFECT TO PROVISIONS FOR CHOICE OF LAW THEREUNDER. EACH OF THE PARTIES HERETO AGREES THAT ALL ACTIONS OR PROCEEDINGS ARISING IN CONNECTION WITH THESE SALE TERMS SHALL BE TRIED AND LITIGATED ONLY IN THE STATE COURTS AND, TO THE EXTENT PERMITTED BY APPLICABLE LAW, FEDERAL COURTS LOCATED IN THE SAN FRANCISCO COUNTY, CALIFORNIA.
21. Severability. If any provision of these Sale Terms is deemed illegal, invalid or unenforceable, the legality, validity, and enforceability of the remaining parts, shall not be affected.
IN WITNESS WHEREOF, the Buyer hereby (i) acknowledges that it has read and fully understands all of the provisions of these Sale Terms, and (ii) agrees to be bound by these Sale Terms.