Auctioneer's Terms and Conditions of Sale
TERMS OF SALE
Set forth below are the terms and conditions (the "Terms") that shall apply to any purchase by any party (a "Buyer") either directly from Silicon Valley Disposition, Inc. ("SVD") or in a transaction (a "Transaction") in which SVD serves as broker, agent, liquidator or auctioneer for any third party owner ("Consignor"). The Terms apply to all Transactions, including without limitation, public auctions conducted by SVD and direct purchases by Buyer of any item either before, after or independent of any public auction. By using or accessing any and all SVD Services and or Websites you agree you have read and understand the Terms and Conditions stated herein and are bound to these Terms and Conditions. You may not use or access any and all SVD Services if you do not agree to the Terms and Conditions stated herein. If you do not understand any or all the Terms and Conditions herein please contact SVD via email at email@example.com or call at 650-344-3282 for further assistance.
TERMS AND CONDITIONS
1. Registration. Buyers must register prior to bidding at any auction sale and must be of legal capacity to enter into this agreement. Buyers must register online at www.svdisposition.com. Auctioneer may, in its sole discretion, deny registration to any person or entity. All bidders must provide their name, company (if applicable), mailing address, phone number and email address prior to the auction. By registering, you represent and warrant any and all Buyer Information is accurate and complete. It is solely the Buyers responsibility to maintain current Buyer Information for completeness and accuracy. SVD reserves the right to deny and or terminate Registrations at any time at its sole discretion without notification. SVD reserves the right to deny usage and access of SVD Services and Websites at any time without notice or liability to any persons or third parties. When applicable, Electronic Bidders are required to provide a valid credit card number. At its discretion, SVD may charge a registration fee for Electronic bidding. This fee will be clearly displayed during the registration process. THE BIDDER AUTHORIZES SVD TO CHARGE LIQUIDATED DAMAGES TO THE CREDIT CARD LEFT ON FILE DURING THE REGISTRATION PROCESS. (See section 6 "Default" below.)
2 . No Warranty. Bidders shall examine or inspect items prior to the day of the auction. ALL ITEMS ARE SOLD AS IS, WHERE IS AND WITH ALL FAULTS. NEITHER SELLER NOR AUCTIONEER MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE NATURE, QUALITY, VALUE OR CONDITION OF ANY ASSET. AUCTIONEER AND SELLER EXPRESSLY DISCLAIM ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Assets are intended to be sold without software, if any is applicable. In the event that a Seller's software is included in an asset sale, notwithstanding the disclaimers set forth above, Auctioneer makes no representations or warranties regarding the Buyer's right to use such software, as to the performance of the software, its non-infringement or otherwise. In such circumstances, Auctioneer recommends that Buyer contact the software manufacturer directly to resolve any such issues.
Auctioneer relies on information about assets in the auction provided by the seller. Auctioneer undertakes no investigation of that information, and makes no representation or warranty concerning the truth or completeness of that information. Photographs are provided solely for the bidders' convenience and shall not be construed to create representations or warranties of any kind pertaining to the assets. Buyer acknowledges that it has had the opportunity to inspect all assets prior to tendering its bid and waives any and all claims against Auctioneer and/or seller relating to asset photographs or descriptions.
3. Deposits. Each successful bidder must pay a 25% deposit toward the purchase price immediately following the successful bid. This can be in the form of cash, a cashier's check, or business check with a bank letter of guarantee. If a bidder fails to make a timely deposit, Bidders expressly authorize Auctioneer to use their credit card to satisfy the deposit amount. Auctioneer and the seller may resell the items in question without notice.
4. Invoices & Payment Instructions. For Onsite and Webcast auctions, winning bidders can request a printed paper invoice from the Accounting Manager at the sale location during or after the sale. Electronic Bidders will be sent an electronic invoice to the email address provided during registration. Detailed payment instructions for each sale are available in the printed lot catalog at the sale location on the day of the sale. Electronic Bidders will be sent detailed payment instructions via email along with their invoice.
5. Payments. SVD must receive the balance of the total purchase price no later than the close of business on the second day following the auction (the "Final Payment Date"). All payments must be in cash, cashier's or certified check, federal wire transfer of immediately available funds or a corporate check accompanied with a bank letter of guarantee, and all of the foregoing must be in form, scope and substance acceptable to SVD. Credit cards are not accepted for payment, Electronic bidding registration and for Liquidated Damages in the event of a default. If paying by credit card, the exchange rate for sales conducted in foreign currencies will be posted the day of the sale and will be based upon the current currency conversion rates. Without limiting SVD's discretion, no corporate checks without a bank guarantee and no personal checks will be accepted. No title shall pass to Buyer until the total purchase price and all Taxes have been paid to SVD in collected funds
6. Default. Bidders must bid only on those items they are prepared to pay for and remove in accordance with the terms and conditions of this sale. All items awarded to high bidders are contractually theirs and must be paid for by the Final Payment Date and removed by the Final Removal Date. IN THE EVENT PURCHASER FAILS TO PERFORM CONTRACTUAL OBLIGATIONS (PAYMENT AND REMOVAL) AS SPECIFIED IN THESE TERMS AND CONDITIONS, THE FOLLOWING ACTION APPLIES: PURCHASER WILL AUTOMATICALLY BE PLACED IN DEFAULT. THIS IS YOUR OFFICIAL NOTICE OF DEFAULT. Upon default, the purchaser shall lose all right, title, and interest which he/she might otherwise have acquired in and to such property as to which default has occurred. SVD will re-market and re-sell this property.
Failure to pay invoices in full by the Final Payment Date in accordance with payment terms will subject Bidder to pay as Liquidated Damages a sum equal to the lesser of (1) 20 percent of the invoice price of the item(s) as to which the default has occurred, or (2) the full amount of the difference between the original invoice price and the re-sold price plus any expenses incurred to re-market or re-sell these items. IF SVD HAS NOT RECEIVED PAYMENT FOR WINNING BIDS WITHIN 24 HOURS OF THE FINAL PAYMENT DATE, THE BIDDER AUTHORIZES SVD TO CHARGE LIQUIDATED DAMAGES TO THE CREDIT CARD LEFT ON FILE DURING THE REGISTRATION PROCESS.
Failure to remove items by the Final Removal Date in accordance with removal terms will subject Bidder to pay as Liquidated Damages the full amount of the expenses incurred to store or transport items until they are re-sold. IF BUYER HAS NOT REMOVED ITEMS WITHIN 24 HOURS OF THE FINAL REMOVAL DATE, THE BIDDER AUTHORIZES SVD TO CHARGE LIQUIDATED DAMAGES TO THE CREDIT CARD LEFT ON FILE DURING THE REGISTRATION PROCESS.
7. Taxes. Buyer must also pay to SVD on or before the Final Payment Date, all sales, export, use and other taxes due to any federal, state or local taxing authority (the "Taxes") as a result of Buyer's purchase, including without limitation, any taxes arising from any Buyer's Premium. Collection of applicable taxes will be in accordance with the laws of the jurisdiction in which the purchased asset is located. To receive the benefit of any tax exemption, Buyer must supply SVD with a sales tax exemption certificate acceptable in form, scope and substance to SVD in SVD'S sole discretion.
8. Buyer's Premium. SVD in its sole discretion may impose a buyer's premium ("Buyer's Premium") on any Goods sold. The Buyer's Premium is a percentage that is added to the final purchase price of any item. SVD shall charge and collect from each successful bidder a 18% buyer's premium if paying by cash, cashier's or certified check, federal wire transfer or corporate check for each sale at the auction, in addition to the purchase price as bid.
9. Removal of Goods. (1) Buyers or their Agents must remove all Goods purchased before the final removal date and time announced by SVD at the auction (the "Removal Date"). (2) No Goods shall be removed until the full purchase price and all applicable taxes thereon have been received by SVD in the form required herein. ANY ITEMS NOT REMOVED ON OR BEFORE THE REMOVAL DATE SHALL BE DEEMED ABANDONED AND SVD SHALL HAVE NO FURTHER OBLIGATION TO BUYER WITH RESPECT TO SUCH ITEMS.
Buyer shall be responsible for the safe and proper removal of any Goods purchased by Buyer. SVD does not pack, ship, store, crate or rig items for removal. Buyers may either pick up Goods at the designated auction site themselves or can contract with a third party agent to manage the removal process for them. Before Goods can be removed by an Agent, Agent must provide SVD with (1) proof of payment in full (Paid In Full Invoice) and
(2) an "Agent Release Authorization" form which allows SVD to release items to a third party contractor for shipping, crating or packing purposes.
Goods weighing more than 100 pounds must be removed by a qualified, insured rigger. Before any removal, Buyer must provide SVD with a certificate of insurance from the rigger, which certificate must be in form, scope and content acceptable to SVD in SVD'S sole discretion. Without limiting SVD'S discretion, such certificate must show that the rigger carries comprehensive liability insurance written by an insurance carrier of national standing and in an amount of not less than two million dollars ($2,000,000.00). Without limiting the generality of the foregoing, Buyer shall restore and repair all real and personal property that is altered or damaged as a result of Buyer's removal of the Goods. SVD shall have no responsibility to disconnect utilities to the sold asset, including electric, gas, waste and water lines. Buyer is solely responsible to properly remove and store in appropriate containers all fluids, oils, hazardous chemicals, etc., from machinery purchased. Buyer does hereby indemnify SVD, the Consignor and the owner of the premises in which the Goods are located, from any and all claims, damages, and losses arising from Buyer's actions or actions with respect to the Goods and Buyer's presence on the premises in which the Goods are located, including without limitation, injuries to persons or property and environmental violations or contamination. Risk of loss on any Goods shall pass to the Buyer upon payment in full to SVD of all sums due from Buyer in respect to the Goods.
SVD shall have no responsibility whatsoever for any missing or lost items that can be removed by hand if such items have not been removed within forty-eight (48) hours of the conclusion of the sale.
There will be NO removal of any lots until the auction is complete.
10. Adjustments. After Buyer has removed any item from SVD'S possession, SVD shall have no obligation to make any adjustment or accommodation to Buyer because of any mistake in quantity or other defect or problem with respect to such item. Buyer must make all requests for adjustments in writing to SVD before any item is removed from the premises where the auction is conducted.
11. Damages. SVD shall not be responsible for any damages, loss or theft of Goods except in the case of SVD's willful misconduct. Without limiting the foregoing, SVD shall not be responsible for damages or losses caused by strikes, civil disorders, or acts of God.
12. Changes. SVD reserves the right to withdraw or sell any assets contained in an auction prior to or proceeding the stated auction period without notification. SVD reserves the right to temporarily or permanently end an auction prior to or during the stated auction period at is sole discretion without notification. SVD, in its sole discretion, reserves the right to extend the stated auction period without notification. If for any reason SVD is unable to deliver any Goods purchased by Buyer, SVD'S sole liability shall be to return all sums paid by Buyer to SVD in respect of such Goods.
13. Minimum or Reserve Prices. SVD, in its sole discretion, reserves the right to establish a reserve or minimum price on any Goods without having to announce post or publish notice to attendees and buyers at any auction. SVD reserves the right to confirm or reject the final bid. Further, SVD, and/or its affiliates or subsidiaries, may bid at the auction either for its own account or on behalf of a third party.
14. Absentee/Proxy Bids. By completing an "Absentee (Proxy) Bidder Form," Bidders may appoint SVD to be an agent and proxy for the sole purpose of purchasing the items listed when the Bidder CANNOT bid on the day of the sale. ALL BIDS ARE FINAL AND BINDING and DO NOT include any applicable buyer's premiums and sales taxes. SVD will bid up to the specified maximum bid amount to win the item, using only the amount needed to win the item. SVD has complete discretion whether and when to accept Proxy bids. The auctioneer's announcements at the time the lot is sold take precedence on any and all published materials. Proxy bidders will be notified only if they have been declared the high bid. Notification will take place in the form of an electronic invoice which will be sent to the email address provided during registration.
15. Right to Refuse Bids of Deny Access. SVD, in its sole discretion, reserves the right to refuse the bid of any person without providing any notice or reason therefore. SVD reserves the right to deny the usage and access by any person or third party of any and all SVD Services and Websites without notification.
16. Bid Increments. SVD, in its sole discretion, shall control all bidding increments and advances at any auction. SVD reserves the right to reject any bid that is only a minimal increase over the preceding bid, that is not commensurate with the value of the item being offered or that SVD believes was made illegally or in bad faith. In the event of a dispute among bidders, SVD may, in its sole discretion, either accept what it deems to be the final bid or solicit further bids on the item in dispute. No returns or refunds will be permitted, unless authorized by the Consignor in writing.
17. Aggregate Bids. SVD reserves the right, in its sole discretion, to sell items advertised as a public auction sale, on a piece by piece basis or as a complete lot. Without limiting the generality of the foregoing, SVD may accept a complete lot bid and then conduct an item by item auction which auction shall be effective only if the total proceeds there from exceed the amount of the complete bid.
18. Information Subject to Error. All information provided by SVD to Buyers, including without limitation, any advertising, lot sales catalogs or otherwise, is subject to deletions, errors, additions, and changes without notice. Although information is gathered from sources thought to be reliable, SVD shall have no responsibility whatsoever for any information provided to any attendee or buyers. All buyers shall rely solely on their own investigation and inspection of any Goods.
19. Right to Amend Terms and Conditions. SVD reserves the right to amend any and all of the Terms and Conditions stated herein at any time without notification at SVD's sole discretion. It is the Buyers responsibility to read and review the Terms and Conditions for each sale. SVD provides the Terms and Conditions through its Websites and in printed form at on-site auctions.
20. Agency Relationship. When SVD is selling or auctioning any Goods on behalf of a Consignor, SVD shall act as an agent only and shall have no liability whatsoever for the acts of any owner or principal.
21. Export Law Compliance. Buyers agree to comply will all United States export control and related laws, and acknowledge that SVD is not the exporter of any purchased item. Certain items offered for sale at the auction may constitute "Restricted Technology." Under federal law, such items may not be shipped outside the United States. SVD makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute Restricted Technology.
22. Auction Sites. Buyers acknowledge that an auction site is a potentially dangerous place, Flammable, noxious, corrosive and pressurized substances may be present. Heavy equipment may be operated and electrical circuits may be live. Every person enters the auction site at his or her own risk with notice of the condition of the premises and the activities that will be or have been conducted on the premises. No person shall have any claim against SVD, the seller or their respective agents for any injuries sustained or for damages to or loss of property that may occur at the auction site.
23. SVD Rights and Remedies. If the Buyer fails to comply with any of the Terms, SVD shall have all rights and remedies available to it at law and in equity. Without limiting the generality of the foregoing, SVD may retain all deposits and partial payments received from Buyer and may resell any Goods that Buyer fails to purchase. Buyer shall be responsible for all costs, losses, and damages suffered by SVD (i) as a result of Buyer's breach of any of the Terms, including without limitation, lost profits and consequential damages, and
(ii) incurred in connection with the enforcement of SVDS' rights, including, without limitation, legal fees and costs and expenses related to the resale of Goods, including storage and rigging fees.
24. No Collusion. Buyers agree they will not participate in any bidding practices with the intent of manipulating the bidding. Any and all forms of collusion between Buyers is forbidden. Buyers agree they will not place bids using false names or Buyer Information.
25. Buyers Indemnification. Buyers agree they will defend, indemnify and hold harmless SVD, including its affiliates, directors, officers, employees, agents, shareholders, co-branders, or partners, from and against any and all claim, loss, damage, liabilities, judgments, fees and expenses incurred by SVD, including its affiliates, directors, officers, employees, agents, shareholders, co-branders, or partners, through the use of SVD Services and Websites
26. Website Usage. The following is specific to the access and usage of SVD Websites including and not limited to any and all features and applications:
A) Each Registrant will specify a unique User Name and Password and it is solely the responsibility of the Registrant to maintain the confidentiality of this User Name and Password.
B) Registrants are solely responsible for any and all transactions or transmissions using their User Name and Password
C) SVD is not responsible for any and all unauthorized or compromised usage of the Registrant's User Name and Password. Registrants are responsible for contacting SVD in writing for any and all unauthorized usage of their User Name and Password.
D) Registrants agree they will not:
i) Disrupt, interfere or create outages to computer networks that directly or indirectly affect SVD Websites.
ii) Falsely misrepresent or impersonate any other person or entity. Registrants are forbidden from misrepresenting a Registrant's employment by or affiliation with any third party.
iii) Registrants are forbidden from posting, uploading, transmitting, publishing or distributing any and all information that contains viruses, code, files or programs with the malicious intent of affecting SVD Websites.
iv) Registrants agree they will not copy, modify, reproduce, distribute or sell any information or material provided through SVD Websites.
E) SVD is not responsible for any and all products, content, information or material provided by links to or statements regarding third party services. This includes but not limited to riggers, shippers, partners and any third party services listed.
F) Registrants agree SVD and its affiliates, including partners, officers, directors, employees, agents, shareholders or co-branders, are not responsible for any and all damages, actual or alleged, resulting from the downloading of any information or materials from SVD Websites.
These Terms and Conditions, and all questions with respect to the interpretation of these Terms and Conditions, shall be governed by and construed in accordance with the internal laws of the State of California, without regard to conflict of law's provisions. All bidders expressly consent to personal and exclusive jurisdiction in the courts of the State of California.