McFadden Lighting, commercial & church manufacturing

by Portland Industries

Ended Oct 13, 2022 3:18pm CT (9:18pm BST) Timed Online Auction

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Terms and Conditions

This Agreement for Sale of Used Equipment (“Agreement”) entered into by and between  (“Buyer”) and Portland Industries Inc., a LLC corporation, with its principal office at 1517 Indian Hill Lane, Manchester MO 63021 and email address of (“Seller’s Agent”). McFadden lighting, (“Seller”) (Seller’s Agent and Seller will be known as collectively, “Seller”), has appointed Seller’s Agent to act on its behalf in connection with this Agreement. This Agreement shall be effective (the “effective date”) when Buyer has provided to Seller’s Agent a fully executed copy of this Agreement.

Special Terms of Sale:

PLEASE READ: At the request of the auction company, this auction permits bids to be placed by the auctioneer, an employee of the auctioneer, or the seller or an agent on the seller's behalf. While Bidspotter's Unified User Agreement prohibits this behavior, in accordance with UCC 2-328, this auction is permitted to engage in this activity by providing this clear disclosure to you, the bidder.

PLEASE READ: This auction company has requested and been granted access to see all bids placed including any maximum pre-bids. This auction is permitted to engage in this activity by providing this clear disclosure to you, the bidder.

1. Corporate checks, Wire Transfer, or ACH payable to PORTLAND INDUSTRIES will be accepted. No equipment will be removed from the site until payment is received by PORTLAND INDUSTRIES. All checks must clear before pick up can be scheduled. Wire transfers will be subject to a $40 fee and ACH is the preferred payment with no additional cost to you. With both ACH & wire transfer please note the lot numbers you purchased. All check types must be mailed to: Portland Industries, Attn.Portland Industries, attn Karen, 1517 Indian Hill Lane, Manchester, MO 63021. Please contact Portland Industries for wire transfer instructions. If the item is not paid by October 21,2022, Portland will file a dispute with Bidspotter to recover said monies. All purchases must be PAID IN FULL (CHECKS MUST CLEAR) before equipment will be released.
2. While descriptions are believed to be correct, the Seller’s Agent or the Seller make no warranties or guarantees expressed or implied, as to the genuineness, authenticity of, or defect in any lot and will not be held responsible for advertising discrepancies or inaccuracies. Everything sold “AS IS”, “WHERE IS” “WITH ALL FAULTS” except as expressly made in writing. No warranties are made as to the merchantability of any items or their fitness for any purpose.
3. Seller warrants that it is the lawful owner of the Used Equipment, free and clear of all liens and encumbrances.
4. Buyer acknowledges that Seller is not the manufacturer or supplier of the Used Equipment and Buyer represents that is has selected the Used Equipment based upon its sole judgment and expertise. In addition, Buyer acknowledges that nothing contained in any discussions between the parties or between Buyer and any broker claiming to represent Seller (including without limitation, Seller’s Agent) shall be deemed to constitute a representation or warranty upon which Buyer can rely. Except as set forth in Section 3 above, BUYER ACKNOWLEDGES THAT IT HAS BEEN PROVIDED THE OPPORTUNITY TO INSPECT THE USED EQUIPMENT, BUYER TAKES THE USED EQUIPMENT AS IS, WHERE IS, WITH ALL FAULTS AND DEFECTS BOTH LATENT AND PATENT AND BUYER AGREES THAT NEITHER SELLER NOR SELLER’S AGENT HAS MADE AND MAKES NO REPRSENTATIONS OR WARRANTIES, EXPRESS OR IMPLIED. SELLER EXPRESSLY DISCLAIMS ALL WARRANTIES WITH RESPECT TO SUITABILITY, DURABILITY, FITNESS FOR USE, FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY OF ANY OF THE USED EQUIPMENT, FOR THE PURPOSES AND USES OF BUYER OR OTHERWISE. IN NO EVENT, SHALL SELLER BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES. Buyer specifically waives all rights to make any claim against Seller for breach of any warranty of any kind whatsoever, other than the warranty in Section 2. Seller shall not be liable to Buyer for any loss, damage, or expense of any kind or nature caused directly or indirectly by the Used Equipment or the disassembly, removal, use, transportation, or maintenance thereof, or for the failure of operations thereof, or for repairs, service, or adjustment thereto, or for any interruption of service or loss of use thereof, or for any loss of business or any other damages whatsoever and howsoever caused.
5. Buyer hereby agrees to defend, indemnify and hold harmless the seller and any agent of the seller (collectively, “Seller”) and PORTLAND INDUSTRIES and their respective directors, officers, employees and other agents and representatives from and against any and all liabilities, judgments, claims, settlements, losses, damages, penalties, obligations and expenses, including attorney's fees and expenses and other professional fees and expenses, incurred or suffered by such person arising from, by reason of, or in connection with any loss, damage or injury to person or property arising from, by reason of or in connection with the Goods sold hereunder. This indemnification shall survive delivery of the Goods to Buyer and any subsequent sale or other transfer of the Goods to a third party.
6. It is the Buyer’s responsibility to secure all equipment to meet all applicable government safety standards in using or removing items purchased. All Import, Export, Taxes, Packaging, Rigging & Transportation fees are the Buyer's responsibility. PORTLAND INDUSTIES will provide its customary invoice.
7. Sales tax will be added to the purchase price of all taxable items. Dealers and users who purchase for resale must file their resale permit numbers. If sales tax is not collected at the time of sale and is deemed needed to be paid at a later date, Buyer agrees to pay all required taxes.
8. PORTLAND INDUSTRIES and Seller shall have no liability to Buyer due to non-delivery of any item for any reason other than to return to Buyer the monies deposited for non-delivered items.
9. In the event Buyer fails to pay the whole of the purchase price plus any applicable premium within the time set forth by PORTLAND INDUSTIES and/or fails to comply with any of the conditions or terms of sale, the Seller may retain and/or recover the deposit specified as liquidated damages and, in addition thereto, items that are not paid for can be resold at public or private sale without further notice. Any deficiency resulting from such resale shall be paid to PORTLAND INDUSTIES by the defaulting Buyer together with all charges, fees, and expenses incurred by such resale and enforcement of the obligation hereunder.
10. The Buyer becomes solely responsible for all items purchased by him/her immediately following his/her purchase. Therefore, he/she is advised to further guard and insure his/her items at his/her own discretion.
11. Items must be removed from the premises within the removal time announced. No item can, on any account, be removed before consummation of the sale and payment to PORTLAND INDUSTRIES of the purchase price and any applicable premium. Removal shall be at the expense, risk, and liability of Buyer. PORTLAND INDUSTRIES shall not be responsible for items not removed within the time allowed. If equipment is not removed within specified removal time, Buyer shall be liable for any moving and storage costs incurred and, if not so removed, the items shall be deemed abandoned.
12. If any shortage exists on estimated counts, an adjustment will be made if claims are made at time of removal. No adjustment will be allowed after items are removed from the premises.
13. Some items may have minimums or reserves. Therefore, Buyer acknowledges they have been informed that PORTLAND INDUSTRIES may bid at the auction for its own account or on behalf of a third party or the Seller.
14. Technology Disclaimer: PORTLAND INDUSTRIES does not warrant that the functions, features or content contained in the auction website, including any third-party software, products or other materials used in connection with the website, will be timely, secure, uninterrupted or error-free, or that defects will be corrected. Contested or Tie Bids: The high bidder for each lot shall be the Buyer, and in the event two (2) or more Bidders claim the same lot after the Auctioneer has declared an item sold, the Auctioneer may re-open the sale of said item and allow bidding to continue between those Bidders until a high bidder is determined. The re-opening of any bid will be at the sole discretion of the Auctioneer, who may also decide not to re-open a bid if a bid was considered late and the item was clearly sold. The Auctioneer may also refuse any bid considered a mere fractional advance. The Auctioneer reserves the right to group, batch, withdraw, create or break-apart any lot.
15. Eighteen percent (18%) Buyer’s premium will be applied to all sales. Seller reserves the right to accept or reject any and all bids.
16. Removal of Used Equipment. Buyer shall remove the Used Equipment from Seller’s facility or warehouse on or before October 31, 2022 (Any lot numbers not removed by October 31, 2022 5pm cst shall be deemed abandoned).
17. Promptly upon removal of the Used Equipment from Seller’s facilities, Buyer shall remove from the Used Equipment any and all symbols, designs, figures, trademarks, trade names, service marks, logos, or any other matter owned, developed, or created by Seller, its parent, subsidiary, or affiliated companies.
18. This Agreement cannot be amended or waived except by an agreement in writing signed by authorized representatives of both parties and specifically referring to this Agreement.
19. If any provision of this Agreement is deemed to be invalid or unenforceable by any court of competent jurisdiction, then the balance of this Agreement shall remain enforceable, and such invalid or unenforceable provision shall be enforced by such court to the maximum possible extent.
20. Indemnity and Release.
a. Buyer assumes liability for, and hereby agrees to indemnify, defend, and hold harmless Seller, its successors, assigns, parent, subsidiary, and affiliated companies, and the agents (including Seller’s Agent), employees, officers, directors of each of the foregoing (the “Released Parties”), from and against any and all liabilities, obligations, losses, damages, claims, demands, actions, costs, and expenses (including attorney’s fees and costs, whether or not suit is brought and at trial and all levels of appeal, and in any insolvency, bankruptcy, or similar proceeding), of whatsoever kind and nature arising out of the disassembly, removal, use, condition (including, but not limited to, latent and other defects and whether or not discoverable by Buyer or Seller), operation, transportation, ownership, selection, delivery, installation, or use and subsequent disposition of the Used Equipment after the sale to Buyer hereunder.
b. It is agreed that this indemnity shall apply notwithstanding the joint, concurring or contributory fault or negligence of Seller and further notwithstanding any theory of law including, but not limited to, a characterization of Seller’s joint, concurring, or contributory fault or negligence as either passive or active in nature. With respect to the Released Parties’ rights pursuant to this Indemnity, Buyer expressly waives all statutory defenses, including, but not limited to those under workers’ compensation, contribution, comparative fault, or similar statutes that are inconsistent with or would defeat the purpose of this Indemnity.
c. Buyer hereby fully and forever releases and discharges and covenants not to sue the Released Parties from any and all claims, demands, damages, rights of action, or causes of action, present or future, whether the same be known or unknown, anticipated or unanticipated, resulting from or arising out of the Used Equipment after the closing date. This Release and the above indemnity are intended to be as broad and inclusive as permitted by law, and if any portion thereof is held invalid, the balance shall continue in full legal force and effect. This Release and the above indemnity shall be binding on Buyer and all persons or entities claiming through Buyer, including Buyer’s heirs, executors, administrators, shareholders, partners, affiliates, successors, and assigns.
d. The Released Parties shall give Buyer prompt notice (by email) return receipt requested, addressed to Buyer at the address set forth above ) of any claim brought against any of them coming within the purview of this Section 20 (“Claim”). Within five (5) business days after receipt of such notice, the Buyer shall undertake the defense of each such Claim with counsel satisfactory to and approved by the Released Party. The Released Party’s failure to timely notify Buyer of a Claim does not relieve Buyer of its indemnity obligations under this Section 5. The Released Party’s failure to timely notify Buyer of a Claim does not relieve Buyer of its obligations to defend the Released Party under this Section 5 unless Buyer is materially prejudiced. If the Buyer fails to undertake and sustain the defense of any Claim in the manner required by this Section 5, the Released Party may engage separate counsel, pay, settle, or otherwise finally resolve such Claim for the account and at the risk and expense of the Buyer. Any payment, settlement or final resolution otherwise by the Released Party shall NOT release the Buyer from liability for such Claim. If the Buyer undertakes the defense of a Claim in the manner required by this Section 5, the Released Party may, at its own expense, engage separate counsel and participate in the defense of any Claim brought against it.
21. Checkout Procedures: Check-out locations, dates, times, and other important information for each auction yard can be found on Bidspotter. Portland will hold equipment until all invoices are paid in full. Buyers may be asked to submit a Certificate of Insurance prior to load-out at some yards. Buyer must present a copy of their paid in full Pick Ticket to the on-site check-out Supervisor upon arrival at each yard. Buyer shall provide Bill of Lading for lots purchased & email a copy to
Partial removal of any lot must be noted on the paid in full invoice. All counts, including pipe or multi-unit lots, must be confirmed by the on-site check-out Supervisor and the Buyer representative picking up the lots. Any lots or partial lots that are not claimed by the end of the check-out period will be considered abandoned. Auctioneer, Consignor or Seller or yard owner, are released from any claim for injury, damage or loss incurred to either person or equipment during or after the check-out period. Load-Out/Transportation Disclaimer: Neither Portland or the Seller(s) are involved in any part of Load-Out or Transport. The responsibility of any load-out or transport arrangements and charges are the sole responsibility of the Buyer. Neither Portland nor the Seller(s) should be considered the Shipper, Consignor or Consignee. Agreement: This Agreement is between the Bidder and the “Auctioneer” (Portland Industries LLC) and shall be governed by and interpreted by the laws of the State of Missouri. Venue for any dispute arising between Auctioneer and any Buyer, Bidder, Shipper, Consignor or Consignee or agent representing the same will be limited to St. Louis County, Missouri and may be referred to Arbitration by either party prior to the filing of any suit or subsequent thereto. Any fees incurred by Portland Industries LLC in the enforcement of these terms and conditions shall be assessed against Bidder as damages for which Superior will seek recovery. By registering for this auction, the Bidder understands and agrees to be bound by all Terms and Conditions as stated herein