Auction Terms & Conditions
Online Auction Terms and Conditions
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT USE THE SERVICES OR THE WEBSITE AND DO NOT PARTICIPATE IN ANY AUCTION. YOUR USE OF THE SERVICES, THE WEBSITE AND/OR YOUR PARTICIPATION IN ANY AUCTION CONSTITUTES YOUR ACCEPTANCE OF AND AGREEMENT TO COMPLY WITH THESE TERMS.
These Terms constitute a binding contract and the entire agreement between you and SVD regarding their subject matter and supersede and replace any and all prior or contemporaneous agreements between the parties regarding such subject matter.
If applicable, SVD sales are conducted in compliance with California Commercial Code Section 2328, Section 535 of the California Penal Code, and applicable provisions of the California Civil Code. By participating in any sale, you acknowledge having received notice of SVD's name, telephone number, and bond number, that SVD sales are conducted online, and you waive any rights under California Civil Code Section 1812.607(b). You further acknowledge that SVD has posted or distributed to you the terms, conditions, restrictions, and procedures whereby goods will be sold.
SVD possesses surety bond number 100178167 which is on file with the California Secretary of State. You acknowledge that SVD is an agent for the Seller and not a principal in any sales transaction.
Changes to Website and Terms and Conditions. SVD may revise and update these Terms from time to time in its sole discretion. All changes are effective immediately when posted on the Website, and apply to your access to and use of SVD's Services and the Website thereafter. However, SVD does not represent that the Website or its content is necessarily complete or up to date. Any of the material on the Website may be out of date at any given time, and we are under no obligation to update such material. Your continued use of the Website and/or your participation in any auction following the posting of revised Terms means that you accept and agree to the changes. In addition, different or supplemental terms and conditions may be contained on the specific page for a particular auction. In that case, those auction specific terms control over these general Terms. You are expected to check the Terms and each specific auction page from time to time so you are aware of any changes, as they are binding on you.
Accessing the Website. We reserve the right to amend this Website, and any service or material we provide on the Website, in our sole discretion without notice. We will not be liable if for any reason all or any part of the Website is unavailable at any time or for any period. From time to time, we may restrict access to some parts of the Website, or the entire Website, to users, including registered users.
You are responsible for:
o Making all arrangements necessary for you to have access to the Website.
o Ensuring that all persons who access the Website through your internet
Connection, user name or password (if applicable) are aware of these Terms and comply with them.
To access the Website, use the Services or access the resources the Website offers, you may be asked to provide certain registration details or other information by SVD or a third party vendor. It is a condition of your use of the Website that all the information you provide is correct, current and complete.
Registration; Bidding. SVD's Services may be provided, in whole or in part, by third parties who are not affiliated with SVD. When you register, you may be redirected to a third party's website and may also be required to agree to the third party's terms. Bidders must register prior to using SVD's Services and/or the Website and prior to bidding at any auction sale. Bidders must be of legal capacity and over 18 years of age to use SVD's Services or the Website. Bidders must register online at the Website. SVD may, in its sole discretion, deny registration to any person or entity and may refuse to permit a Buyer's continuing use of the Website or its auction participation for any reason or no reason at all. 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 that your registration information is accurate and complete. If you register on behalf of an organization or company, you also affirm that you have the legal authority to bind any such organization or company to these terms. It is solely the Bidder's responsibility to maintain current, complete and accurate contact and registration Information. SVD reserves the right to deny and or terminate Registrations at any time at its sole discretion without notification. When applicable, online Bidders are required to provide a valid credit card number. At its discretion, SVD may charge a registration fee for online bidding. This fee will be clearly displayed during the registration process.
IF APPLICABLE, THE BIDDER AUTHORIZES SVD TO CHARGE LIQUIDATED DAMAGES TO THE CREDIT CARD LEFT ON FILE DURING THE REGISTRATION PROCESS. (See section 6 "Default" below.)
Tampering with the Website, misrepresenting your identity or conducting fraudulent activities on the Website are prohibited. All auction bidding is open to the public without regard to race, color, sex, religion, familial status, disability or national origin. SVD reserves the right to reject any bid in its sole discretion. All bids are irrevocable, final and binding and do not include any applicable Buyer's Premium or Taxes (as defined below). In the event of any dispute among Bidders, or in the event of doubt on the part of SVD as to the validity of any bid, SVD will have the final discretion to determine the high bid, the winning Bidder, to cancel the Auction, or to re-offer the subject item for auction. If any dispute arises after the auction, SVD's auction record shall determine conclusively all bidding issues, including but not limited to the high bid and the Buyer.
SVD reserves the right to modify or amend any terms of the auction, the auction method or particular conditions of the Auction upon announcement prior to or during the course of the auction. You should regularly consult the applicable auction page on the Website prior to the date of the auction for the most current information regarding any Auction, and the auction method and terms and conditions.
No Warranty; Due Diligence. Bidders are solely responsible for conducting any necessary due diligence and investigation prior to participating in any sale and shall examine or inspect items prior to the day of the auction.
EACH BIDDER ASSUMES ANY AND ALL RISKS ASSOCIATED WITH ANY SUCH INSPECTION AND INVESTIGATION. ALL ITEMS ARE OFFERED FOR SALE IN THEIR "AS IS, WHERE IS AND WITH ALL FAULTS" CONDITION. NEITHER SELLER NOR SVD MAKES ANY REPRESENTATION OR WARRANTY, EXPRESS OR IMPLIED, AS TO THE NATURE, QUALITY, VALUE OR CONDITION OF ANY ASSET. SVD AND SELLER EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY (A) WARRANTY OF MERCHANTABILITY; (B) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; OR (C) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
Items 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, SVD 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, SVD recommends that Buyer contact the software manufacturer directly to resolve any such issues and to obtain any required licenses. SVD relies on information about sale items provided by the Seller. SVD undertakes no investigation to verify that information, and makes no representation or warranty concerning the accuracy or completeness of that information. Photographs and asset descriptions are provided solely for the Bidder's convenience and shall not be construed to create representations or warranties of any kind pertaining to the assets. Bidder acknowledges that it has had the opportunity to inspect all assets prior to tendering its bid and, to the fullest extent allowable under applicable law, waives any and all claims against SVD and Seller relating to its asset purchases.
SOME JURISDICTIONS LIMIT OR DO NOT ALLOW THE DISCLAIMER OF IMPLIED OR OTHER WARRANTIES SO THE ABOVE DISCLAIMER MAY NOT APPLY TO YOU. YOU AFFIRM THAT SVD SHALL NOT BE LIABLE, UNDER ANY CIRCUMSTANCES, FOR ANY BREACH OF WARRANTY CLAIMS OR FOR ANY DAMAGES ARISING OUT OF THE MANUFACTURER'S FAILURE TO HONOR ITS WARRANTY OBLIGATIONS TO YOU.
Deposits. Each successful bidder must pay a 25% deposit toward the purchase price immediately following the successful bid. This deposit can be in the form of electronic funds (wire transfer or Zelle app), 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 SVD to use their credit card to satisfy the deposit amount. Invoices & Payment Instructions. Winning Bidders can request a printed paper invoice from the Accounting Manager at the sale location during or after the sale. Online Bidders will be sent an electronic invoice to the email address provided during registration. Detailed payment instructions for each sale are available in the online lot catalog. Online Bidders will be sent detailed payment instructions via email along with their invoice. Payments. SVD must receive the balance of the total purchase price no later than the close of business on the second business day following the auction (the "Final Payment Date"). All payments must be in electronic funds (wire transfer or Zelle app), 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. Unless agreed by SVD in advance, credit cards, are not accepted for payment. Without limiting SVD's discretion, no corporate checks without a bank guarantee, and no personal checks will be accepted. Title shall not pass to Buyer until the total purchase price and all Taxes have been paid in full to SVD and you have fully complied with these Terms. Default. Bidders must bid only on those items they are prepared to pay for and remove in accordance with these Terms. All sales to winning Bidders (sometimes referred to as "Buyers") are FINAL and full payment must be received by the Final Payment Date and the purchased assets removed by the Final Removal Date.
IN THE EVENT BIDDER FAILS TO PERFORM ITS OBLIGATIONS (PAYMENT AND REMOVAL) AS SPECIFIED IN THESE TERMS, BIDDER WILL AUTOMATICALLY BE PLACED IN DEFAULT. THIS IS YOUR OFFICIAL NOTICE OF DEFAULT.
UPON DEFAULT, YOU SHALL LOSE ALL RIGHT, TITLE, AND INTEREST WHICH YOU MIGHT OTHERWISE HAVE ACQUIRED IN AND TO SUCH PROPERTY AS TO WHICH DEFAULT HAS OCCURRED. SVD WILL REMARKET AND RE-SELL THE ITEM WITHOUT FURTHER NOTICE TO YOU.
THE PARTIES AGREE THAT IT WOULD BE IMPRACTICAL AND EXTREMELY DIFFICULT TO ESTIMATE THE DAMAGES WHICH SVD AND/OR SELLER MAY SUFFER IN THE EVENT THAT BIDDER DEFAULTS. THEREFORE THE PARTIES AGREE THAT A REASONABLE ESTIMATE OF THE TOTAL NET DETRIMENT THAT SELLER AND SVD WOULD SUFFER IN THE EVENT THAT BIDDER DEFAULTS AND FAILS TO COMPLETE A PURCHASE IS 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 RESOLD 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 AND AGREES THAT SVD MAY RESELL THE ITEM WITHOUT NOTICE TO BIDDER. THESE AMOUNTS WILL BE PAID BY BIDDER TO SVD AS THE FULL, AGREED, AND LIQUIDATED DAMAGES FOR A BREACH OF THIS AGREEMENT BY BIDDER, AND PROVIDED SUCH SUM PROMPTLY IS PAID OR DISBURSED TO SVD, ALL OTHER CLAIMS TO DAMAGES OR OTHER REMEDIES IN RESPECT OF BIDDER'S BREACH OF THIS AGREEMENT BEING HEREIN EXPRESSLY WAIVED BY SELLER. SUCH PAYMENT IS NOT INTENDED AS A PENALTY, BUT AS FULL LIQUIDATED DAMAGES. FAILURE TO REMOVE ITEMS BY THE FINAL REMOVAL DATE IN ACCORDANCE WITH THESE TERMS WILL SUBJECT BIDDER TO PAY AS LIQUIDATED DAMAGES THE FULL AMOUNT OF THE EXPENSES INCURRED TO STORE OR TRANSPORT SUCH ITEMS. 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 AND TO RESELL SUCH ITEMS.
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.
Buyer's Premium. SVD in its sole discretion may impose a buyer's premium ("Buyer's Premium") on any items 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 electronic funds (wire transfer or Zelle app), cashier's or certified check, federal wire transfer or corporate check with a bank guarantee for each sale at the auction, in addition to the purchase price as bid.
Removal of Purchased Items. (1) Buyers or their Agents must remove all items purchased before the final removal date and time announced by SVD at the auction (the "Removal Date"). (2) No items 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 items purchased by Buyer at its sole cost and expense. SVD does not pack, ship, store, crate or rig items for removal. Buyers may either pick up items at the designated auction site themselves or can contract with a third party agent to manage the removal process for them. Before items 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. Items 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 or its Agent's removal of the items. 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 Seller and the owner of the premises in which the items are located, from any and all claims, damages, and losses arising from Buyer's actions or actions with respect to the items and Buyer's presence on the premises in which the items are located, including without limitation, injuries to persons or property and environmental violations or contamination. Risk of loss on any items shall pass to the Buyer upon payment in full to SVD of all sums due from Buyer in respect to the items. 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 items until the sale is complete. No returns or refunds will be permitted, unless authorized by the Seller in writing.
Adjustments. After Buyer has removed any item from SVD'S possession, SVD shall have no obligation to make any return, adjustment or accommodation to Buyer because of any mistake in quantity or other defect, damage 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.
LIMITATION OF LIABILITY. IN NO EVENT WILL SVD BE LIABLE FOR DAMAGES OF ANY KIND, UNDER ANY LEGAL THEORY, ARISING OUT OF OR IN CONNECTION WITH YOUR USE, OR INABILITY TO USE, THE SERVICES, THE WEBSITE, ANY WEBSITES LINKED TO IT, ANY CONTENT ON THE WEBSITE OR SUCH OTHER WEBSITES OR ANY SERVICES OR ITEMS OBTAINED THROUGH THE WEBSITE OR SUCH OTHER WEBSITES, INCLUDING ANY DIRECT, INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, INCLUDING PERSONAL INJURY, PAIN AND SUFFERING, EMOTIONAL DISTRESS, LOSS OF REVENUE, LOSS OF PROFITS, LOSS OF BUSINESS OR ANTICIPATED SAVINGS, LOSS OF USE, LOSS OF GOODWILL, LOSS OF DATA, AND WHETHER CAUSED BY TORT (INCLUDING NEGLIGENCE), BREACH OF CONTRACT OR OTHERWISE, EVEN IF FORESEEABLE AND EVEN IF SVD HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. OUR SOLE AND ENTIRE MAXIMUM LIABILITY, FOR ANY REASON, AND YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY CAUSE WHATSOEVER, SHALL BE LIMITED TO A REFUND OF THE ACTUAL AMOUNT PAID BY YOU FOR THE ITEMS AND SERVICES YOU HAVE PURCHASED THROUGH THE WEBSITE. THE FOREGOING DOES NOT AFFECT ANY LIABILITY WHICH CANNOT BE EXCLUDED OR LIMITED UNDER APPLICABLE LAW.
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 control bidding processes and 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 items purchased by Buyer, SVD'S sole liability shall be to return all sums paid by Buyer to SVD in respect of such items.
Minimum or Reserve Prices. SVD, in its sole discretion, reserves the right to establish a reserve or minimum price on any items without having to announce post or publish notice to attendees and Bidders at any auction. SVD reserves the right to confirm or reject the final bid in its sole and absolute discretion. 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.
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. 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 over any and all published materials including these Terms. 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.
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.
Bidding Process; Increments. SVD, in its sole discretion, shall control all aspects of the bidding process and bidding increments and advances at any auction. SVD reserves the right to reject any bid in its discretion including 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.
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.
Information Subject to Error. All information provided by SVD to Bidders, 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 items.
Agency Relationship. When SVD is selling or auctioning any items on behalf of a Seller, SVD shall act as an agent for the Seller only and shall have no liability whatsoever for the acts of any owner or principal.
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.
Auction Sites. Bidders 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.
SVD Rights and Remedies. If the Bidder 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 Bidder and may resell any items that Bidder fails to purchase. Bidder shall be responsible for all costs, losses, and damages suffered by SVD (i) as a result of Bidder'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, attorney's fees and costs and expenses related to the resale of items, including storage and rigging fees.
No Collusion. Bidders agree they will not participate in any bidding practices with the intent of manipulating the bidding. Any and all forms of collusion between Bidders is forbidden. Bidders agree they will not place bids using false names or information.
Indemnification. Bidders 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, arising out of or related to any breach of these Terms or through the use of SVD Services and Website, including but not limited to attorney's fees and costs.
Electronic Communications. When you visit the Website or send e-mails to us, you are communicating with us electronically and you consent to receive communications from us electronically. We may communicate with you by e-mail or by posting notices on this Website. You agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Force Majeure. We will not be liable or responsible to you, nor be deemed to have defaulted or breached these Terms, for any failure or delay in our performance under these Terms when and to the extent such failure or delay is caused by or results from acts or circumstances beyond our reasonable control, including, without limitation, acts of God, flood, fire, earthquake, explosion, governmental actions, war, invasion or hostilities (whether war is declared or not), terrorist threats or acts, riot or other civil unrest, national emergency, revolution, insurrection, epidemic, lockouts, strikes or other labor disputes (whether or not relating to our workforce), or restraints or delays affecting carriers or inability or delay in obtaining supplies of adequate or suitable materials, materials or telecommunication breakdown or power outage.
No Third-Party Beneficiaries. These Terms do not and are not intended to confer any rights or remedies upon any person other than you.
Dispute Resolution. All disputes, controversies and claims arising under or relating to these Terms, the Services and/or the Website (whether in contract, tort, or both), including but not limited to the interpretation, performance, enforcement and/or the breach of this Agreement, shall be resolved by binding arbitration conducted in accordance with California Code of Civil Procedure Sections 1280-1294.2 and administered in accordance with the then existing Commercial Arbitration Rules of the American Arbitration Association (the "Rules") - in the event of any inconsistency between such rules, the Rules shall control.
The parties understand and agree that they are waiving their rights to a jury trial. However, this arbitration provision shall not preclude the parties from seeking provisional remedies in aid of arbitration from a state or federal court located in San Mateo County, California and either party may seek any provisional or interim relief that is necessary to protect the rights or property of that party.
The party demanding arbitration must submit a written claim to the other party, setting out the basis of the claim. The responding party has 10 business days in which to respond to this demand in a written answer. Should either party refuse or fail to participate in the arbitration, notwithstanding notice in accordance with the applicable law or rules, the arbitrators are empowered to issue any award supported by the evidence presented by the appearing party.
Within 10 business days after a dispute subject to arbitration arises, the parties will select an arbitrator. If the parties are unable or unwilling to agree on an arbitrator within that time, each party will designate an arbitrator within 5 business days thereafter, and those two arbitrators will designate a third arbitrator within 5 business days after their designation. If either party fails to select an arbitrator within the designated period, then on the request of either party, the American Arbitration Association will select that arbitrator.
All arbitrators must be retired or former judges and have expertise in the process of deciding disputes and interpreting contracts within the auction industry, and must have at least ten years' experience in his or her field. No one who has ever had any business, financial, family, or social relationship with any party may serve as an arbitrator unless the related party informs the other party of the relationship and the other party consents in writing to the use of that arbitrator.
The arbitration will take place exclusively in San Mateo County, California, at a time and place selected by the arbitrator. The arbitration must be completed and a decision rendered within six months after the pre-arbitration hearing, unless the parties otherwise agree in writing. The arbitrator will establish any deadlines necessary to accomplish this goal.
The arbitrator has the following powers: (a) To issue subpoenas for the attendance of witnesses and subpoenas duces tecum for the production of books, records, documents, and other evidence from third parties; (b) To order depositions to be used as evidence; (c) To enforce the rights, remedies, procedures, duties, liabilities, and obligations of discovery as if the arbitration were a civil action before a California superior court; (d) To conduct a hearing on the arbitrable issues; (e) To administer oaths to parties and witnesses; (f) To impose sanctions and to take other actions with regard to the parties that the arbitrators deem necessary to the same extent that a judge could do so pursuant to the California Code of Civil Procedure; (g) To enter and serve a written award after the arbitration hearing is concluded; and (h) To correct the award on the grounds for correction stated in California Code of Civil Procedure §1286.6(a) and (c) within 10 days after serving a signed copy of the award on the party asking for correction.
The arbitrator(s) shall have discretion to order prehearing exchange of information, including but not limited to the production of requested documents and exchanges of summaries of testimony of proposed witnesses. No more than 30 calendar days before the arbitration, a party may serve a document request calling for any document that would be discoverable in civil litigation in accordance with the California Code of Civil Procedure. The party served with this request will deliver the requested documents and any objections within 10 business days. Thereafter, each party may take no more than two depositions, each of which will last no more than 4 hours each. There shall be an early and prompt designation and exchange of the names and addresses of expert witnesses who may be called upon to testify at the arbitration hearing and their depositions and all other discovery shall be allowed by the arbitrators upon a showing of good cause. Any additional discovery shall be conducted at the discretion of the arbitrators. The arbitrator may resolve any dispute regarding discovery as they would be resolved in state civil litigation (e.g. CCP § 1283.05).
Within 15 days after completion of the arbitration, the arbitrator will submit a tentative decision in writing, including factual findings and specifying the reasoning for the decision and any calculations necessary to explain the award. Each party has 15 days in which to submit written comments to the tentative decision. Within 10 days after the deadline for written comments, the arbitrator will announce the final award.
The arbitrators shall not have the power to commit errors of law or legal reasoning. The award is subject to review for legal error, confirmation, correction or vacatur only in a California state court of competent jurisdiction and only pursuant to the California Arbitration Act. A party may apply to such court for an order confirming, modifying or vacating the award. The court shall have the power to review (a) whether the findings of fact rendered by the arbitrators are supported by substantial evidence and (b) whether, as a matter of law based on such findings of fact, the award should be confirmed, corrected or vacated. Upon such determination, judgment shall be entered in favor of either party consistent therewith.
Each party to the arbitration shall promptly pay a pro rata share of the arbitrator's expenses and fees, and the other arbitration expenses incurred or approved by the arbitrator, excluding attorney's fees, witness fees, and other expenses incurred by a party for its own benefit. The parties must estimate their costs in good faith and pay their estimated share before commencement of the arbitration. Any extra arbitration costs will be paid within 10 business days after the close of the proceeding and before the award. A party that fails to pay its share will not be allowed to participate in the arbitration. If a party fails to pay its share, the other parties will pay pro rata the cost of the party that failed to pay. The arbitrators will add that payment to the final award in a manner as to return the parties to the position they would have been in, to the greatest extent possible, if all had paid their share.
Notwithstanding the foregoing, the arbitrators may award the prevailing party its expenses and fees of arbitration, including reasonable attorney's fees and witness fees and costs, in whatever proportion the arbitrators decide.
Class Action/Jury Trial Waiver. With respect to all persons and entities, regardless of whether they have obtained or used the Services or the Website for personal, commercial or other purposes, all claims must be brought in the parties' individual capacity, and not as a plaintiff or class member in any purported class action, collective action, private attorney general action or other representative proceeding. This waiver applies to class arbitration, and, unless we agree otherwise, the arbitrator may not consolidate more than one person's claims. You agree that, by entering into this agreement, you and SVD are each waiving the right to a trial by jury or to participate in a class action, collective action, private attorney general action, or other representative proceeding of any kind.
Website Usage. The following is specific to the access and usage of SVD Websites or links to third's party websites. including and not limited to any and all features and applications:
A) Each Bidder will specify a unique User Name and Password and it is solely the responsibility of the Bidder to maintain the confidentiality of this User Name and Password.
B) Bidders 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 Bidder's User Name and Password. This is not applicable. HiBid is holder of registration and buyers' confidential data. SVD does not have access to HiBid to edit buyers's info
D) Bidders 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. Bidders are forbidden from misrepresenting a Registrant's employment by or affiliation with any third party.
iii) Bidders 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) Bidders 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) Bidders 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 and enforcement of these Terms and Conditions, shall be governed by, construed and enforced in accordance with the internal laws of the State of California, without regard to conflict of laws provisions. All bidders expressly consent to personal and exclusive jurisdiction in the courts of the State of California. In the event of any conflict between these Terms and the terms and conditions of any third party vendor involved in the Services, these Terms shall control the relationship between you and SVD.
Your Comments and Concerns
All feedback, comments, requests for technical support and other communications relating to the Website should be directed to email@example.com.
Seller User Terms
Bidder User Terms