Important Information
All bidders residing outside of the United States or Canada are required to submit via wire transfer a qualifying deposit of 25% of their total expected purchases. Deposit must be received and confirmed prior to start of auction, and can take up to 48 hours to clear. Please register at least 2 business days prior to sale to allow sufficient time to process deposit. Please contact Accounting at Maynards Industries for wire transfer information.
Terms and Conditions
MAYNARDS INDUSTRIES USA LLC
BIDDER’S BINDING CONTRACT
1. DEFINITIONS:
AGREEMENT is defined as MAYNARDS INDUSTRIES USA LLC BIDDER’S BINDING CONTRACT.
AUCTIONEER is defined as Maynards Industries USA LLC acting as the auctioneer of LOTS, seller of LOTS, and who may from time to time be the legal owner of LOTS.
BIDDER is defined as the individual identified as the representative of any sole proprietor, limited partnership, partnership, limited liability company, corporation, trust, administrator, agent, executor, legal representative, assignee, successor in interest, trustee, trustor, officer, director, manager, or any and all other types or forms of business entities not specifically identified herein as well as the authorized signor on behalf of the business entity that enters into this AGREEMENT by receiving authorization to participate in AUCTIONEER’S auction and thereby consenting to the terms of this AGREEMENT. BIDDER understands and acknowledges BIDDER in its individual capacity and as a representative for any entity shall be jointly and severally liability for all payments and obligations arising from BIDDERS bids. .
BUYER PREMIUM is defined as a percentage of the final bid that is added to the bid price. Example with 23% Buyers Premium: Bidder bids $100.00. Bidder is invoiced $123.00 plus applicable sales tax.
LOTS are defined as any items, of any type whatsoever, offered by AUCTIONEER to be bid upon by BIDDERS at the time of any auction or other sale conducted by AUCTIONEER.
OWNER is defined as any person or entity, of any type whatsoever, who is the legal owner of any items at the time that AUCTIONEER places said items into LOTS to be bid upon by BIDDERS.
2. BINDING CONTRACT; IRREVOCABLE ACCEPTANCE BY CONDUCT:
Registration for this auction, acceptance of a bidder number, paddle or bidding credentials (whether in person, online, by telephone, or otherwise), submission of any bid, or participation in the auction in any manner constitutes BIDDER’S express and irrevocable acknowledgment that Bidder has received notice of, read, understands, and agrees to be legally bound by all Terms and Conditions of this Agreement.
Assignment of a bidder number, paddle or bidding credentials by Auctioneer is expressly conditioned upon Bidder’s agreement to these Terms and Conditions. By receiving a bidder number or placing any bid, Bidder manifests its assent to this Agreement and forms a legally binding contract with Auctioneer. Each bid submitted by Bidder constitutes a reaffirmation of Bidder’s agreement to these Terms and Conditions.
No signature shall be required to form a binding and enforceable contract between Auctioneer and Bidder. The parties agree that participation in the auction and submission of bids constitute acceptance sufficient to satisfy any applicable statute of frauds or similar legal requirement.
AUCTIONEER at its sole discretion may deny entry, registration or bidding at any time to any person or entity. BIDDER paddles and invoices are nontransferable. All bids made by the holder of the bid paddle are the responsibility of the BIDDER. All sales are final and there are no refunds, returns, credits, exchanges or rebids once AUCTIONEER knocks down the LOTS or declares LOTS sold to BIDDER.
3. INSPECTION, DISCLAIMER OF WARRANTIES, AS-IS SALE AND ASSUMPTION OF RISK:
BUYER BEWARE
RESERVE; THIS AUCTION IS BEING CONDUCTED WITH RESERVE. THE AUCTIONEER RESERVES THE RIGHT IN ITS SOLE DISCRETION TO BID ON ANY AND ALL LOTS, IN SUCCESSION, BID AFTER BID, LOT AFTER LOT, AND IN BULK.
BIDDER AND BIDDER ALONE ACKNOWLEDGES THAT BIDDER IS A SOPHISTICATED COMMERCIAL PARTY WITH EXPERTISE AND RELEVANT INDUSTRY KNOWLEDGE AND IS RESPONSIBLE FOR INSPECTING LOTS TO SATISFY BIDDER AS TO CONDITION, SUITABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR FOR ANY OTHER REASON BEFORE A BID IS MADE ON ANY LOTS BY BIDDER.
ALL LOTS ARE SOLD ON “AS IS, WHERE IS” BASIS AND WITH ALL FAULTS WITHOUT EXCEPTION AND WITH REMOVAL FROM THE AUCTION PREMISES OR STORAGE SITE AT BIDDER’S SOLE RISK AND EXPENSE. NEITHER AUCTIONEER OR OWNER MAKES ANY REPRESENTATIONS, WARRANTIES, PROMISES, COVENANTS OR GUARANTEES OF ANY KIND, EXPRESS OR IMPLIED, AS TO THE NATURE, QUALITY, DURABILITY, CAPABILITY, FUNCTION, PERFORMANCE, VALUE, TITLE (EXCEPT THAT ALL OF OWNER'S TITLE AND INTEREST IN SUCH LOT WILL BE TRANSFERRED TO THE SUCCESSFUL BIDDER), FITNESS FOR A PARTICULAR PURPOSE, OR CONDITION OF THE LOTS BEING AUCTIONED OR THE LOTS SUITABILITY FOR ANY USE, PURPOSE, OR OTHERWISE. AUCTIONEER EXPRESSLY AND SPECIFICALLY DISCLAIMS, WITHOUT LIMITATION, ANY WARRANTY OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OF THE LOTS.
Neither AUCTIONEER or OWNER makes any representations, warranties, promises, covenants or guarantees, expressed or implied, as to defects in, fitness for a specific purpose, or the completeness or accuracy of the description in any description or advertising of any LOTS being auctioned and is not responsible for any advertising discrepancies, descriptions, nomenclature or inaccuracies of any kind including but not limited to descriptions, age, year of manufacturer, model, make, prior use, maintenance, or otherwise INCLUDING THE DESCRIPTION CONTAINED IN FINAL INVOICE. BIDDER hereby expressly acknowledges and agrees that any LOT description information has been prepared for informational purposes only and shall not and may not be relied upon by BIDDER for any purpose, including (without limitation) accuracy, fitness for a specific purpose, or completeness INCLUDING THE DESCRIPTION CONTAINED IN THE FINAL INVOICE. By bidding, BIDDER represents, warrants, covenants and agrees that BIDDER is solely relying upon BIDDER’S own investigation, inspection, research, and analysis of the LOTS for which a bid has been submitted and is not in any way relying upon any of the above information provided by AUCTIONEER or any other third party INCLUDING THE DESCRIPTION CONTAINED IN THE FINAL INVOICE. THE AUCTIONEER HAS NO OBLIGATION TO PROVIDE ANY PASSWORD, LICENSE, TECHNICAL SUPPORT, OR OTHER TECHNOLOGY-RELATED SERVICE, PRODUCT, OR THING ASSOCIATED WITH ANY LOT OR ITEM.
BIDDER hereby acknowledges that it has inspected, had the opportunity to inspect, and/or voluntarily waived the opportunity to inspect all of the LOTS upon which it will be bidding and/or purchases. Once AUCTIONEER knocks down the item or declares it sold to BIDDER, there are no credits, returns, exchanges, refunds or rebidding unless in AUCTIONEER’S sole discretion or a request for rebid is made directly to AUCTIONEER within five (5) minutes by BIDDER after the LOTS have been sold and AUCTIONEER acknowledges and accepts BIDDER’S request for a rebid in its sole discretion.
AUCTIONEER shall have the right to make image and audio video recordings of the auction, to use the recordings and if deemed appropriate in AUCTIONEER’S sole discretion to make such image and video recordings public.
4. RELEASE AND INDEMNITY:
BIDDER hereby waives, releases, remises, acquits and forever discharges AUCTIONEER, OWNER, any property manager, and their respective employees, agents, or any other person acting on behalf of AUCTIONEER or OWNER, of and from, any claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which BIDDER now has or which may arise in the future on account of or in any way arising out of or connected with any defects, latent or otherwise, the physical condition of any LOTS purchased, or any law, statute, or regulation applicable thereto. BIDDER shall indemnify and hold AUCTIONEER, OWNER, and their respective employees, agents, or other persons acting on behalf of AUCTIONEER or OWNER against any claims, actions, causes of action, demands, rights, damages, costs, expenses or compensation whatsoever, direct or indirect, known or unknown, foreseen or unforeseen, which the undersigned now has or which may arise in the future on the account of or in any way arising out of or connected with any defects, latent or otherwise, or the physical condition of any LOTS purchased or any law or regulation applicable thereto.
5. DEPOSIT AND AUCTION PROCEDURES:
In order to participate in the auction, all BIDDERS must provide AUCTIONEER a 25% deposit in cash, cashier’s check, or company check accompanied by a bank letter of guarantee of unqualified payment to AUCTIONEER, or a wire transfer (with a wire transfer fee included) of BIDDER’S maximum expected spending inclusive of taxes and fees. Credit cards are not acceptable form of payment and will not be accepted. The final payment in full of BIDDER’S invoice must be received via wire transfer by AUCTIONEER within the first banking day 24 hours after the auction or BIDDER will be in default of AGREEMENT. AUCTIONEER will charge BIDDERS a taxable surcharge BUYERS PREMIUM on AUCTIONEER’S invoice to BIDDER. BIDDER shall provide proof satisfactory to AUCTIONEER of BIDDER’S entitlement to claim exemption from sales tax. BIDDER’S proof of any claimed tax exemption must be representative of the same industry as the LOTS purchased. In the absence of proof satisfactory to AUCTIONEER, BIDDER shall pay all taxes. AUCTIONEER is not responsible for any Department of Motor Vehicle fees, taxes, registration, licensing, penalties, smog certificate, or any other fees. Certain vehicles as announced and/or noted in the auction catalog or on BIDDER’S invoice will be sold “AS IS” with a Bill of Sale only. Each titled item will be charged a $75 title transfer fee. If available to AUCTIONEER, titles will be sent to BIDDER approximately 7-30 business days after receipt of payment from BIDDER to AUCTIONEER. Sales tax on Motor Vehicles is the responsibility of BIDDER to be remitted to BIDDER’S appropriate state Department of Motor Vehicles. All vehicles are sold “AS IS, WHERE IS, WITH NO WARRANTIES EXPRESSED OR IMPLIED”. It is the BIDDER’S responsibility to inspect the vehicle to verify accurate description, model, year, mileage, condition and any and all details pertaining to the vehicle. AUCTIONEER is not responsible for any inaccuracies regarding LOTS of any kind INCLUDING THE DESCRIPTIONS ON THE FINAL INVOICE.
LOTS are subject to cancellation and withdrawal from the auction without prior notice. AUCTIONEER reserves the right to augment this auction with LOTS from additional sellers. These additional LOTS may be interspersed and not specifically identified throughout the auction. AUCTIONEER shall regulate all matters relating to the conduct of the auction and AUCTIONEER’S decisions shall be final and binding on all BIDDERS. AUCTIONEER reserves the right to group, regroup, reduce, add to or delete LOTS as well as accept or reject any or all bids at AUCTIONEER'S sole and absolute discretion. AUCTIONEER reserves the right to offer any or all LOTS in bulk at any time during the auction at AUCTIONEER’S sole and absolute discretion. AUCTIONEER shall determine the bidding increments and AUCTIONEER reserves the right to bid on any LOTS at AUCTIONEER’S sole and absolute discretion.
All aspects of this auction are subject to change without notice. The AUCTIONEER reserves the right to – at any time and in the AUCTIONEER’S sole and absolute discretion – (a) add or remove items from the auction, (b) split or combine lots, (c) add minimum bids or reserve prices, (d) cancel, suspend, extend, or reschedule the sale of an individual item, lot, auction, and/or auction event, (e) make changes to the auction’s closing, inspection, or removal times, or (f) take any other action the AUCTIONEER deems necessary to effect the fair conduct of this sale or protection of buyers’, sellers’, or other parties’ interests. In the event a seller withdraws an item from this auction prior to the close of the auction, the AUCTIONEER may leave the item on the catalog and buy the item back on behalf of the seller to establish the AUCTIONEER’S earned commission and the buyer’s premium due to the AUCTIONEER from the seller.
Immediately upon AUCTIONEER announcing sold or knock down, BIDDER shall be the purchaser of the LOTS and thereafter the LOTS shall become the sole and absolute responsibility of BIDDER. BIDDER shall thereupon and thereafter assume all risk of loss (including but not limited to loss by way of theft or damage) and liability relating to the LOTS. BIDDER is advised to pre-arrange insurance coverage for BIDDER’S purchases as there will be no refunds for missing, lost, damaged or stolen LOTS unless and only at AUCTIONEER’S sole discretion. In no event shall the AUCTIONEER’S liability to BIDDER exceed the amount actually paid by BIDDER for the LOTS.
BIDDER HEREBY ACKNOWLEDGES AND AGREES THAT NEITHER AUCTIONEER OR OWNER SHALL BE LIABLE FOR SPECIAL, CONSEQUENTIAL, OR INCIDENTAL DAMAGES including but not limited to lost profits, production interruption, downtime or lost business opportunities.
Title to and possession of LOTS shall not pass to BIDDER until AUCTIONEER has received payment in full for all LOTS purchased by BIDDER. All LOTS and the entirety of BIDDER’S invoice require payment in full prior to AUCTIONEER releasing any LOTS. If all LOTS are not paid in full by BIDDER for any reason, and BIDDER has provided AUCTIONEER any monetary consideration, AUCTIONEER will retain all LOTS and any and all monetary consideration paid by BIDDER to mitigate AUCTIONEER’S financial damages caused by BIDDER. If after the subsequent mitigation amounts (if any) received by AUCTIONEER exceed the amount of BIDDER’S invoice and costs incurred by AUCTIONEER , AUCTIONEER will refund such amounts to BIDDER once determined by AUCTIONEER in AUCTIONEER’S sole discretion. BIDDER hereby agrees LOTS purchased at this auction will be invoiced in totality, although in some cases separately priced on the invoice, the total amount due AUCTIONEER of BIDDER’S invoice is deemed a single AGREEMENT in the event of a legal dispute.
AUCTIONEER DOES NOT WARRANT AND HEREBY DISCLAIMS THAT THE FUNCTIONS, FEATURES OR CONTENT CONTAINED IN THE ONLINE OR WEBCAST BIDDING PLATFORM OR SOFTWARE, INCLUDING ANY THIRD-PARTY SOFTWARE, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH THE WEBSITE OR BIDDING WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED. AUCTIONEER RESERVES THE RIGHT TO ACCEPT AND OR REJECT AND OR REMOVE ANY ELECTRONIC BIDS FOR ANY REASON AT ANY TIME IN AUCTIONEER’S ABSOLUTE AND SOLE DISCRETION. BIDDER AGREES ALL OF BIDDER’S ELECTRONIC BIDS ARE BINDING REGARDLESS OF ORDER AND OR TIME IN WHICH THE BIDS ARE ACCEPTED OR REJECTED.
No Liability for Site Malfunction: You understand that this auction is online-only, and so relies on devices, software, and programs that may malfunction without warning. You agree that the Auctioneer will not be liable for any error or inconvenience that may be the result of such a malfunction. You further understand and agree that the Auctioneer may void or suspend any sale, or resell any item if the Auctioneer determines a transaction to have been affected by any site malfunction or human error relating to the site. In no event will the Auction Host have any duty or responsibility to the bidder not directly related to the function of the site. Auctioneer does not promise that the website, or any content, service, or feature of the website and/or any software or application of the website (collectively “Services”) will be error-free or uninterrupted, or that any defects will be corrected, or that your use of the Services will provide specific results. Auctioneer cannot guarantee the continuous operation of or access to its Services. Bid update and other notification functionality on the website may not occur in real time and is subject to delays beyond Auctioneer’s control. You understand and agree that you are making use of the Services at your own risk and that the Services are delivered on an “as-is” and “as-available” basis. Accordingly, to the extent permitted by applicable law, Auctioneer disclaims all express or implied warranties, terms and conditions including, but not limited to, implied warranties of merchantability, fitness for a particular purpose, and non-infringement. To the extent permitted by applicable law, Auctioneer is not liable, and you agree not to hold Auctioneer responsible, for any damages or losses (including but not limited to any special, indirect, incidental, or consequential damages), resulting directly or indirectly from: (i) the content you provide (directly or indirectly) using the Services; (ii) your use of or your inability to use the Services; (iii) delays or disruptions in Services; (iv) viruses or other malicious software obtained by accessing or linking to Services; (v) glitches, bugs, errors, or inaccuracies of any kind in Services; and (vi) damage to your hardware device from the use of any Service. Some jurisdictions do not allow the disclaimer of warranties or exclusion of damages, so such disclaimers and exclusions may not apply to you. You assume total responsibility for your use of the website, and your sole remedy against Auctioneer for dissatisfaction with the Services is to stop using the website or any such Services. AUCTIONEER’S total liability shall not exceed the amount actually paid by BIDDER for the LOT giving rise to the claim or claims.
6. TERMS AND CONDITIONS FOR DISCONNECT AND REMOVAL:
As a courtesy only, AUCTIONEER may provide contact information for riggers, machinery movers or other service providers. AUCTIONEER is not affiliated with, nor shall AUCTIONEER be responsible or liable for the action of, any rigger, machinery mover or other service provider utilized by a BIDDER or BIDDER’S authorized representative. AUCTIONEER may require the use of one or more specific riggers, machinery movers or other service providers at the premises at which LOTS are located. Such a requirement does not constitute a guarantee or endorsement by AUCTIONEER.
All electrical disconnect, liquid removal, rigging, loading, broom cleaning, trash & debris removal, floor stud removal and transportation are the sole and absolute responsibility of BIDDER. BIDDER agrees to remove all of BIDDER’S purchased LOTS in full, with no abandonment privileges from the premises on or before the date on the BIDDER’S invoice.
No LOTS, no matter how small, may be removed while the auction is in progress. Representatives of AUCTIONEER, at AUCTIONEER’S sole discretion, may stay one hour after the auction is completed for the removal of small LOTS. In no event shall small LOTS remain at the auction site, or otherwise. All LOTS must be removed by 4:00 PM on the day following the auction.
BIDDER must present AUCTIONEER’S personnel with proof of valid worker’s compensation insurance and a commercial general liability insurance certificate in a minimum amount of $2,000,000.00 combined single limit per occurrence coverage naming AUCTIONEER Owner and any property manager, and their respective officers, directors, employees, affiliates, successors and assigns as additional insured and provide proof of auto liability coverage.
If available at AUCTIONEER’S sole and absolute discretion, bridge cranes and hoists may be used by BIDDER if crane insurance is included on the above certificate and only with the written permission of the crane owner.
Should any pits, floor bolts or hazards of any type exist after removal of equipment, it is BIDDER’S responsibility, at BIDDER’S cost, to reasonably safe guard these areas using generally accepted safety practices, such as safety tapes, pipes or bars welded in place or suitable safety barriers acceptable to AUCTIONEER. All floor bolts and/or anchoring fasteners are to be cut flush to the floor and the area left broom clean and all debris removed. It is the responsibility of BIDDER to be sure that power to the LOTS is off and then to safely disconnect all electrical wiring and utility piping from the LOTS and to cap at the first electrical or air junction of the LOTS.
LOTS are to be staged for loading in the area assigned by AUCTIONEER'S personnel.
It is BIDDER’S responsibility to secure all safety equipment to meet all applicable government safety standards in using or removing any LOTS purchased. Certain LOTS may contain residual chemicals and/or hazardous materials. Bidder hereby agrees to indemnify and hold harmless AUCTIONEER Owner, and any mortgagee, property manager, and their respective officers, directors, employees, affiliates, successors and assigns from any and all damages, claims, liabilities from any injuries to persons, or damage to property of any type whatsoever caused by BIDDER, its agents, employees, or contractors during the sale, during the removal, use, or operation of the LOTS purchased. Any hydraulic fluid removal and/or oil leaks are BIDDER’S responsibility to remove and clean up. BIDDER acknowledges that no environmental or contaminate testing has occurred and BIDDER assumes all responsibility for hazardous materials or substances contained within the LOTS and takes full responsibility for compliance with all applicable Federal, State, and Local environmental laws, statutes, regulations, rules, and/or ordinances and shall exercise reasonable care to ensure that there is no release to the environment of any hazardous wastes or substances as defined in applicable Federal, State, and Local laws, statues, regulations, rules, and/or ordinances.
AUCTIONEER is not liable for BIDDER’S personal belongings left on premises.
Any surface or structural damage to the premises including but not limited to the walls, ceilings, floors, overhead doors, gates and/or any other item(s), etc. are the BIDDER’S sole responsibility. BIDDER will not be permitted to leave with LOTS until all repairs are made to the premises.
Theft will not be tolerated, and AUCTIONEER reserves the right to inspect all trucks, toolboxes, rigger cases, and any and all other vessels within which LOTS could be placed prior to leaving the premises. Instances of theft will result in immediate termination of auction privileges, removal from the premises, and AUCTIONEER shall file the appropriate report with local law officials and seek prosecution thereof. BIDDER shall check all LOTS quantities prior to removal from the premises. No adjustments will be made after LOTS assets have been removed from the auction premises.
7. GRANT OF SECURITY INTEREST:
To secure the full and timely payment of all amounts due under this Agreement, including without limitation the purchase price, Buyer’s Premium, taxes, fees, interest, costs of collection, and any other obligations owed to Auctioneer (collectively, the “Obligations”), Bidder hereby grants to Auctioneer a purchase money security interest (“PMSI”) in and to all Lots purchased by Bidder at this auction, together with all proceeds thereof (including insurance proceeds), replacements, substitutions, attachments, accessions, additions, and products thereof (collectively, the “Collateral”).
This security interest shall attach immediately upon Auctioneer’s declaration of sale (knockdown) and shall continue until all Obligations are paid in full in immediately available funds.
Bidder authorizes Auctioneer to file one or more UCC-1 financing statements and any amendments or continuations thereof, describing the Collateral, without further signature from Bidder. Bidder agrees to execute and deliver any additional documents reasonably requested by Auctioneer to perfect, maintain, or enforce its security interest. Until payment in full is received, Bidder shall not sell, transfer, encumber, lease, or otherwise dispose of the Collateral without Auctioneer’s prior written consent.
Upon default, Auctioneer shall have all rights and remedies available to a secured party under the Uniform Commercial Code as adopted in the State of Michigan, in addition to all other rights and remedies provided in this Agreement, at law, or in equity.
8. DEFAULT AND AUCTIONEER’S REMEDIES:
If for any reason BIDDER fails to pay via wire transfer the full amount of BIDDER’S invoice within the first banking day (24 hours after the auction), and/or fails to remove all of BIDDER’S LOTS on or before the date posted on BIDDER’S invoice, and/or fails to comply with any other terms and conditions of this AGREEMENT, all LOTS on the BIDDER’S invoice will be considered abandoned and AUCTIONEER in AUCTIONEER’S sole discretion and without further notice to BIDDER may remove, dispose of, scrap, resell at public or private sale, any or all LOTS . BIDDER agrees to pay AUCTIONEER, as applicable, any monetary mitigation deficiency and costs as a result thereof, including all removal, rent, lay and hold over fees, and any other fees or costs associated with AUCTIONEER’S loss. BIDDER understands and acknowledges that there is sufficient consideration by both parties to perform, and that if payment in full is not made within the specific time outlined in this AGREEMENT, BIDDER is in violation and in default of this AGREEMENT. In addition, BIDDER shall be responsible for all expenses, including attorney’s fees, arbitration fees, interest and any and all other expenses in connection with BIDDER’S default, plus a $500.00 per diem administrative fee per LOTS until such LOTS are removed. Bidder agrees that AUCTIONEER may retain all deposits previously received and apply all such deposits to any deficiency, fee or expense as provided in this AGREEMENT without further notice to BIDDER. BIDDER agrees that “TIME IS OF THE ESSENCE” regarding payment of BIDDER’S invoice and removal of BIDDER’S LOTS. For purposes of clarity, BIDDER further acknowledges and agrees AUCTIONEER will be monetarily damaged for the subsequent disposal of any LOTS for any reason and that BIDDER is responsible to pay AUCTIONEER for all costs, damages, fees, any other, damages known and unknown, and any and all other monies expended by AUCTIONEER to collect and enforce this AGREEMENT.
9. DISPUTE RESOLUTION:
Any controversy, claim, or dispute arising out of or relating to this Agreement, the auction, any Lot, any bid, or any transaction between the parties (whether in contract, tort, statute, fraud, misrepresentation, or otherwise) shall, at the sole and exclusive election of Auctioneer, be resolved by binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with its Commercial Arbitration Rules then in effect.
The arbitration shall be conducted before one (1) neutral arbitrator. The seat and place of arbitration shall be Oakland County, Michigan. The arbitrator shall have authority to award any relief available at law or in equity consistent with this Agreement.
Judgment upon the arbitration award may be entered in any court having jurisdiction thereof.
Consent to Jurisdiction Bidder irrevocably submits to the personal jurisdiction of the state and federal courts located in Oakland County, Michigan, for purposes of:
(i) compelling arbitration,
(ii) enforcing this Agreement,
(iii) enforcing any arbitration award, and
(iv) any action not submitted to arbitration.
Bidder expressly waives any objection based on lack of personal jurisdiction, improper venue, or forum non conveniens with respect to such courts.
Emergency and Provisional Relief Notwithstanding the foregoing, Auctioneer may seek temporary, preliminary, or emergency injunctive relief, attachment, repossession, replevin, or other provisional remedies in any court of competent jurisdiction, including courts located outside Michigan, without waiving its right to require arbitration of the underlying dispute. The pursuit of provisional relief shall not constitute a waiver of Auctioneer’s right to elect arbitration.
Recovery of Fees and Costs In any arbitration or legal proceeding arising out of or relating to this Agreement, the prevailing party shall be entitled to recover its reasonable attorneys’ fees, arbitration fees, court costs, collection costs, and all other expenses incurred in connection with the enforcement of this Agreement. Without limiting the foregoing, Bidder agrees that Auctioneer shall be entitled to recover all costs of collection, including attorneys’ fees and expenses, incurred in enforcing Bidder’s payment or performance obligations.
Governing Law; FAA This Agreement shall be governed by and construed in accordance with the laws of the State of Michigan, without regard to conflict-of-law principles. The Federal Arbitration Act shall govern the interpretation, validity, and enforcement of this arbitration provision.
10. Force Majeure:
Auctioneer shall not be liable for any delay in performance, interruption, suspension, cancellation, or failure to perform any obligation under this Agreement (including without limitation conducting the auction, delivering possession of Lots, or providing access for inspection or removal) to the extent such delay or failure is caused directly or indirectly by events beyond Auctioneer’s reasonable control.
Such events include, without limitation: acts of God; fire; flood; severe weather; earthquake; explosion; war; terrorism; civil unrest; labor disputes; strikes; supply chain disruption; transportation interruption; utility outages; internet or telecommunications failure; governmental order, regulation, or restriction; public health emergency; pandemic; epidemic; quarantine; embargo; court order; or any other cause beyond Auctioneer’s reasonable control.
In the event of a force majeure occurrence, Auctioneer may, in its sole discretion, extend payment or removal deadlines, suspend or reschedule the auction, withdraw Lots, or cancel the sale of any Lot without liability, provided that if a Lot is canceled and payment has been received, Auctioneer’s sole obligation shall be to refund the amountsactually paid for such Lot.
11. ENTIRE AGREEMENT, STAND ALONE NO-RELIANCE CLAUSE:
The terms and conditions contained within this AGREEMENT constitute all the terms and conditions with respect to the sale of items at this auction. There are no representations, warranties, terms, conditions, undertakings or collateral agreements, oral or in writing, accept as provided herein.
Bidder acknowledges and agrees that neither Auctioneer, Owner nor third party has made, and Bidder is not relying upon, any representation, warranty, promise, covenant, agreement, statement, projection, estimate, description, photograph, catalog entry, invoice description, advertisement, oral statement, or other information of any kind whatsoever, whether written or verbal, express or implied, concerning any Lot or the auction.
All descriptions and information provided by Auctioneer or Owner are provided solely as a courtesy and for general informational purposes only, and may not be complete, accurate, or current.
Bidder further acknowledges and agrees that no statement or representation made by Auctioneer or Owner shall be deemed a warranty or representation upon which Bidder is entitled to rely, and Bidder expressly waives any claim based upon alleged reliance on any such statement or information.
12. MISCELLANEOUS TERMS:
The LOTS specific Owner is a third-party beneficiary to the terms and conditions of this AGREEMENT and is entitled to the rights and benefits hereunder, and may enforce the provisions hereof as if it were a signatory hereto.
Severability - If any provision of this AGREEMENT as applied to either party or to any circumstance shall be adjudged by a court to be void and unenforceable, the same shall in no way affect:
(a) Any other provision of this AGREEMENT;
(b) The application of such provision in any other circumstances;
(c) The validity or enforceability of the AGREEMENT as a whole.
Binding on Successors - This AGREEMENT and the covenants and conditions contained herein shall apply to, be binding upon and inure to the administrators, executors, relatives of the parties, assignees, successors, agents and assigns of the parties hereto.
Construction - This AGREEMENT shall not be construed against the party preparing it, but shall be construed as if both parties jointly prepared this AGREEMENT and any uncertainty and ambiguity shall not be interpreted against any one party. This AGREEMENT is to be interpreted, enforced and governed by and under the laws of the State of Michigan.
Further Documents - The parties shall execute and deliver all documents and perform all further acts that may be reasonably necessary to effectuate any of the provisions within this AGREEMENT.
To the extend BIDDER has provided AUCTIONEER a signed check for which BIDDER is the authorized signatory for all purposes, without restriction, sufficient to pay this negotiable instrument upon demand. BIDDER authorizes AUCTIONEER to obtain BIDDER’S financial information from any source and complete the check as necessary for the amount of BIDDER’S invoice at the auction to be presented for payment. BIDDER agrees to pay all cost of collections including attorney’s fees, to pay interest at the rate of 18%, unless prohibited by law, and in such case at the highest amount permitted by law from the date of issuance of the check if dishonored by a financial institution, to waive any requirement of presentment, to the exclusive jurisdiction of this Agreement for any dispute relating to this AGREEMENT. A credit instrument is identical to a personal check. Willfully drawing or passing a credit instrument knowing there are insufficient funds in an account upon which may be drawn, or with the intent to defraud, is a crime which may result in criminal prosecution.
Suspension of BIDDER Privileges: You understand and agree that any violation of these Terms and Conditions of this AGREEMENT may result in the AUCTIONEER suspending your online bidding privileges indefinitely. Nothing in this paragraph will limit the AUCTIONEER’S right to any other remedies at law or in equity.