BIDDER TERMS AND CONDITIONS
Together with Terms and Conditions set forth on Auctioneer’s website and/or on any Online Auction Platform utilized by Auctioneer, these Bidder Terms and Conditions apply to auctions conducted by MOUNTAINEER MACHINERY & AUCTIONEERS LLC (“Auctioneer”), and constitute a legal, valid, binding, and enforceable contract between Auctioneer and YOU. These Bidder Terms and Conditions also form the basis for the contract of sale between YOU and the Seller if YOU are the Winning Bidder on any Lot(s).
1. Auction Conducted Under and In Accordance with These Bidder Terms and Conditions, Additional Terms and Conditions Posted by Auctioneer, and Announcements Made at the Time of the Auction, and Applicable Law; Acceptance of Bidder Terms and Conditions. The Auction is conducted under and in accordance with these Bidder Terms and Conditions, any and all other Terms and Conditions posted by Auctioneer (whether at the Auction Site or online), any announcements or corrections made by Auctioneer at the time of the Auction, and applicable law. YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE HAD A FULL AND FAIR OPPORTUNITY TO REVIEW THESE BIDDER TERMS AND CONDITIONS, THAT YOU HAVE READ THESE BIDDER TERMS AND CONDITIONS, THAT YOU UNDERSTAND THESE BIDDER TERMS AND CONDITIONS, AND THAT YOU ACCEPT AND AGREE TO BE BOUND BY THESE BIDDER TERMS AND CONDITIONS. YOUR participation in the Auction, whether at the Auction Site, online, telephonically, or through any other means (including Absentee Bid), is further evidence of YOUR agreement to be bound by, and to abide by, all Bidder Terms and Conditions.
2. Auction Conducted in the State of West Virginia. The Auction is conducted in the State of West Virginia. All Lots are offered for sale in the State of West Virginia, and will be sold and delivered in the State of West Virginia. Notwithstanding YOUR physical location, these Bidder Terms and Conditions are entered into in the State of West Virginia, all bids and payments are received in the State of West Virginia, and all contracts between Seller and Buyer are formed and entered into in the State of West Virginia, and all Lots will be delivered in the State of West Virginia. .
3. All Transactions in U.S. Dollars. All transactions, and payments associated with the Auction are in U.S. Dollars.
4. Definitions. The following definitions apply to these Bidder Terms and Conditions for each auction conducted by Auctioneer:
“Absentee Bid” means a bid submitted to Auctioneer by an Absentee Bidder for the execution during the Auction under terms established by Auctioneer.
“Absentee Bidder” means a person or entity that submits an Absentee Bid. An absentee Bidder may or may not be physically present at the Auction Site during the Auction.
“Absolute Auction” or “Absolute” applies only if and when expressly indicated in writing and means that property is sold to the highest bidder regardless of the amount of the final bid, with no limiting conditions, restrictions, or reservations. This type of auction is also known as an auction Without Reserve. Provided that a bid is received within a reasonable time after bidding opens on a Lot, the Lot will be sold to the highest bidder regardless of the final bid amount. A Lot exposed for sale at Absolute Auction may be withdrawn by Auctioneer if a bid is not received within a reasonable time after bidding opens on the Lot. UNLESS SPECIFICALLY AND EXPRESSLY STATED BY AUCTIONEER IN WRITING, NO LOT IS BEING EXPOSED FOR SALE AT ABSOLUTE AUCTION OR WITHOUT RESERVE.
“Auction” means an auction conducted by Auctioneer.
"Auctioneer" means Mountaineer Machinery & Auctioneers LLC., a West Virginia corporation.
“Auction Site” means the physical location where the Auction is conducted and/or where the Property is located, and/or where inspections may be made, and/or where pick-up occurs.
"Bid" means the oral or written offer tendered by a Bidder via verbal exchange, regular mail, telecommunications, the Internet, an electronic transmission, or a physical gesture. A Bid can be made before the Auction sale.
“Bidder” means any person or entity (and the agents or representatives of any such person or entity) that registers, and/or bids, and/or buys, and/or otherwise participates in the Auction (including, without being limited to, inspection and/or pick-up), regardless of whether such person or entity tenders a bid.
“Bidder Account” the online account identified to a Bidder by Auctioneer or by an Online Auction Platform Provider on Bidder’s Registration. (See, also, Bidder Number).
“Bidder Number” means the number or other identifier issued by Auctioneer to a Bidder for the purposes of identifying bids to such Bidder. (See, also, Bidder Account).
“Bidder Registration” means the registration of a Bidder to participate at the Auction (either online, or onsite, or both), including the information provided by a Bidder, and the Bidder’s to be bound by these Bidder terms and Conditions.
"Bidder Terms and Conditions" means these Bidder Terms and Conditions.
"Bidder Terms and Conditions" means these Bidder Terms and Conditions.
"Buyer" means the Winning Bidder on a Lot.
“Buyer’s Premium” is a non-refundable administrative fee calculated as a percentage of the Hammer Price that is payable by the Buyer of each Lot to Auctioneer for Auctioneer’s own account. If a Lot is offered Subject to Seller’s Confirmation, the Buyer’s Premium will be calculated on the amount of the High Bid Subject to Confirmation or such other amount as may be agreed to between Seller and Buyer, whichever is greater. The Buyer’s Premium is earned by Auctioneer, and becomes Auctioneer’s property, at the Fall of the Hammer.
“Cashier” means the person who collects money from Winning Bidders.
“Checker” means the person who verifies lot numbers bought with a Buyer’s receipt.
“Clerk” means the person who records the Hammer Price and Bidder’s Numbers for each Lot sold at the Auction.
“Commission” means the amount payable by or on behalf of Seller to Auctioneer for Auctioneer’s services, calculated as a percentage of the Hammer Price.
“Contract Price” means an amount equal to the Hammer Price plus the Buyer’s Premium.
“Delivery” means the transfer of possession a Lot to the Buyer. Unless otherwise stated in writing, Delivery of a Lot will occur where the Lot is physically located during the Auction or at such other address as indicated on Auctioneer’s website. Delivery does not mean that Auctioneer will move or relocate any Lot to Buyer’s location or to any other location directed by the Buyer. Unless otherwise expressly agreed in writing, Auctioneer will not move or relocate any Lot(s) on behalf of the Buyer.
“Fall of the Hammer” means the point, after bids have been received, at which Auctioneer declares a Lot “sold” to the Bidder acknowledged by Auctioneer as having made the Winning Bid. During an online auction, the Fall of the Hammer may occur electronically at the end of timed (or extended) bidding. If a Lot is exposed for sale Subject to Seller’s Confirmation, the Fall of the Hammer will occur on Seller’s confirmation of the sale either at the High Bid Subject to Confirmation or at such other amount as may be agreed to, in good faith, by Seller and the Buyer.
“Hammer Price” means the High Bid amount recognized by Auctioneer with the Fall of the Hammer. If a Lot is exposed for sale Subject to Seller’s Confirmation, the Hammer Price will be (a) the High Bid Subject to Confirmation if confirmed by Seller, or (ii) such other amount as may be agreed to, in good faith, by Seller and the Buyer, whichever is greater.
"High Bid Subject to Confirmation" means the high bid amount recognized by Auctioneer at the conclusion of bidding on a Lot that is Subject to Seller's Confirmation. If (in) the High Bid Subject to Confirmation is confirmed by Seller, or (ii) Seller and Buyer agree, in good faith, to some other greater amount, it will be the Hammer Price.
"High Estimate" means an amount that Auctioneer anticipates that a Lot may bring at the high end of a spectrum of possible bids. The High Estimate, if used, is not a valuation or appraisal, and cannot be relied on as such.
“Lot” means each individual item or grouping of items exposed for sale at one time by Auctioneer.
"Low Estimate" means an amount that Auctioneer anticipates that a Lot may bring at the low end of a spectrum of possible bids. The Low Estimate, if used, is not a valuation or appraisal, and cannot be relied on as such.
“No Sale” occurs if bidding opens on a Lot, but the Lot is not sold because Auctioneer passes the Lot or declares a No Sale. Once a bid is received on a Lot exposed for sale at Absolute Auction (expressly designated in writing as such), the Lot will not be passed and there will not be a No Sale.
“Online Auction Platform” means the hardware and software utilized to conduct the Auction online and to facilitate online bidding, including any associated, adjunct, and/or complementary websites, services, premiums and promotions.
“Online Auction Platform Provider” means the provider of an Online Auction Platform and related services.
"Online Bidding Period" means, with respect to an Auction conducted in whole or in part online, any established period during which online bids may be tendered.
“Private Sale” means an event in which Property is sold by Seller, or on Seller’s behalf, other than at the Auction (including a sale at an auction conducted by a person or entity other than Auctioneer).
“Private Sale Price” means the fair market purchase price of the Property paid, or agreed to, at a Private Sale in an arms-length transaction, and in good faith, between Seller and the purchaser of the Property. If the Property is sold through a Private Sale for less than its fair market value, or in a transaction that is not an arms-length transaction, or is gifted by Seller, the Private Sale Price will be an amount equal to the fair market value of the Property in an arms-length transaction.
“Registration Deposit” means, if required by Auctioneer, the deposit made by a Bidder in order to register for the Auction. Auctioneer may require that the Registration Deposit be made in certified funds or in such other form as determined by Auctioneer in Auctioneer’s discretion.
“Reserve” or “With Reserve” means that property may be withdrawn by Auctioneer and/or bids may be rejected by Auctioneer prior to the Fall of the Hammer. Bids may be tendered by or on behalf of the Seller at an Auction with Reserve, and other reservations may be imposed. UNLESS SPECIFICALLY AND EXPRESSLY STATED OTHERWISE BY AUCTIONEER IN WRITING, ALL LOTS ARE BEING EXPOSED FOR SALE WITH RESERVE.
“Reserve Price” means the minimum price that Seller is willing to accept for a specific Lot. If a Lot is subject to a Reserve Price, the Lot will not be sold unless the Reserve Price is met or waived. It is not necessary for any Reserve Price to be disclosed. There is no promise or guarantee that a Lot will be sold if bidding meets or exceeds an established Reserve Price, as all other reservations continue to apply.
“Seller” means the person or entity having title to a Lot and/or having the power and authority to sell, transfer, and convey title to a Lot. Auctioneer may be the Seller on certain Lots.
“Subject to Seller's Confirmation” means, with respect to any Lot expressly identified as being sold Subject to Seller’s Confirmation, that after the High Bid Subject to Seller’s Confirmation has been received and acknowledged by Auctioneer, Seller may determine, in Seller's sole and absolute discretion, to (i) accept such bid, (ii) reject such bid, or (iii) negotiate the price.
“Winning Bid” means the highest bid received and accepted by Auctioneer.
"Winning Bidder" means the Bidder who is recognized by Auctioneer as having made the Winning Bid, subject to Auctioneer’s final certification.
“Withdrawn,” “Withdrawal,” or “Withdraw” refers to the circumstance in which a Lot is removed or withdrawn from the Auction, or in which it is determined that such Lot will not be offered or sold at the Auction.
“Without Reserve” means Absolute.
5. Bidder Registration; Bidder Qualification. YOU are required to register to bid, and YOU must provide a valid credit card in order to be approved for bidding. Auctioneer may make a nominal charge or place a temporary hold against YOUR credit card for verification purposes and may charge YOUR credit card for YOUR purchases. Auctioneer may establish such other Bidder Registration requirements and Bidder qualifications as Auctioneer determines to be reasonably necessary or appropriate and may require YOU to present a Bank Letter of Credit or other proof of available funds. YOU represent and warrant that all information YOU provide with respect to YOUR Bidder Registration will be true and accurate; and YOU acknowledge and agree that YOU may be banned from participation in the Auction, and from participation in future Auctions conducted by Auctioneer, if YOU provide any false information. YOU must provide such information (including identifying information and qualifications) as requested by Auctioneer. Auctioneer may refuse to accept a Bidder Registration from any potential Bidder, may refuse to grant bidding privileges to any potential Bidder, and may suspend or revoke the bidding privileges of any Bidder at any time. By registering to bid, YOU represent to Auctioneer that, if YOU are a natural person, YOU are at least eighteen (18) years of age and that YOU are otherwise legally able to enter into a contract. Each entity (i.e., corporation, limited liability company, or other organization) registering to bid represents that it has the power and authority to register, to bid, and to complete the purchase transaction if it is the Winning Bidder. If bids are made by or on behalf of an entity, the entity and any individual making the bid will be jointly and severally liable on account of the bid. YOU are required to, and YOU agree to, keep YOUR Bidder Registration information current, and to update YOUR Bidder Account whenever any change occurs. YOU acknowledge and agree that YOU have read, understand, and agree to be bound by, these Bidder Terms and Conditions, any and all other terms and conditions posted at the Auction Site or on Auctioneer website(s), and the terms and conditions posted on the websites of any Online Auction Platform Provider(s) used by Auctioneer. Auctioneer may, in Auctioneer’s sole and absolute discretion, receive bids from a person or entity that has not registered to bid and/or has not satisfied all requirements for Bidder Registration, and, by bidding, such person or entity will be bound by all other Bidder Terms and Conditions, any and all other terms and conditions published by auctioneer (including those posted at the Auction Site or on Auctioneer’s website(s), or otherwise), and the terms and conditions posted on the websites of any Online Auction Platform Provider(s) used by Auctioneer. BIDDER QUALIFICATION PROVISIONS ARE INTENDED FOR THE BENEFIT OF AUCTIONEER AND SELLER AND CREATE NO RIGHTS OR INTERESTS IN ANY OTHER PERSONS, INCLUDING COMPETING BIDDERS. AUCTIONEER AND/OR SELLER MAY (BUT WILL NOT BE REQUIRED TO) WAIVE ANY BIDDER QUALIFICATION REQUIREMENTS, EITHER GLOBALLY OR WITH RESPECT TO A SPECIFIC BIDDER, OR SPECIFIC BIDDERS, ON A CASE-BY-CASE BASIS.
6. Access to Auction Site and/or Online Auction Platform; Assumption of Risk; Limitation of Liability. YOU assume all risks in connection with YOUR participation, or attempted participation, in the Auction, including, without being limited to, risks arising from or associated with: (i) YOUR presence at the Auction Site; (ii) YOUR use of any Online Auction Platform utilized by Auctioneer; (iii) removal, transport, or use of any Lot(s); and/or (iv) any harm, injury, or damage to YOU or YOUR property resulting from acts other than those caused exclusively by Auctioneer’s gross negligence or intentional misconduct. YOU further agree that neither YOU nor any person accompanying YOU to, or otherwise visiting, the Auction Site will attempt to operate or activate any machinery or equipment at the Auction Site without Auctioneer’s express consent; and, that, YOU will assume all liability for property damage and/or personal injury caused by YOU or YOUR representatives, employees, independent contractors, or agents. YOU acknowledge and agree that the Auction Site may be a potentially dangerous place that requires YOU to be vigilant, alert, and aware at all times. Flammable, noxious, corrosive, pressurized and otherwise hazardous substances may be present at the Auction Site. Machinery, equipment, and vehicles may be operated at the Auction Site, and electrical circuits may be live at the Auction Site. YOU enter the Auction Site at YOUR own risk with notice of the condition and activities that will be, or have been, conducted at the Auction Site; and YOU assume such risks with respect to YOURSELF and anyone, including any minor children, accompanying YOU or visiting the Auction Site on YOUR behalf. YOUR representatives, employees, independent contractors, or agents also assume such risks. No person will have any claim against Auctioneer and/or Seller, or their respective agents or employees, for any injuries sustained or for damages to or loss of property that may occur at the Auction Site. Neither Auctioneer nor Seller will be liable for any damages of any type or nature sustained or claimed by YOU or by any other person or entity in connection with, or in any way related to, the Auction. YOU waive any and all claims and/or causes of against Auctioneer arising in connection with, or in any way related to (i) YOUR presence at the Auction Site; (ii) YOUR use of any Online Auction Platform utilized by Auctioneer; (iii) removal, transport, or use of any Lot(s); and/or (iv) any harm, injury, or damage to YOU or YOUR property resulting from acts other than those caused exclusively by Auctioneer’s gross negligence or intentional misconduct.
7. Nature of the Auction. UNLESS EXPRESSLY STATED OTHERWISE IN WRITING, THE AUCTION IS WITH RESERVE. Auctioneer may Withdraw any Lot prior to the Fall of the Hammer on such Lot, even if bids have been tendered and/or recognized against such Lot, and there may be other reservations. In addition to being With Reserve, certain specific Lots identified by Auctioneer may be sold Subject to Seller’s Confirmation, which means that after the High Bid Subject to Confirmation has been received and acknowledged by Auctioneer, Seller may, in Seller’s sole and absolute discretion, accept or reject the final bid on such Lot(s) UNLESS EXPRESSLY STATED IN WRITING, THE AUCTION IS NOT AN ABSOLUTE AUCTION OR AN AUCTION WITHOUT RESERVE.
8. Bid Increments. Bid increments are established and controlled by Auctioneer, and may be adjusted or modified in Auctioneer’s sole and absolute discretion.
9. Absentee Bids; Remote Bidding. In Auctioneer’s discretion, Auctioneer may receive Absentee Bids and/or bids tendered by remote Bidders (whether telephonically or otherwise). Absentee Bids may be initiated and advanced in accordance with Auctioneer’s policies and procedures. Auctioneer will make reasonable efforts to execute Absentee Bids, but Auctioneer will have no liability to any Absentee Bidder for the failure to execute any Absentee Bids for any reason whatsoever. Each Absentee Bidder acknowledges and agrees that a Lot may be sold to another Bidder for the maximum amount of the Absentee Bid based on a bidding sequence that causes another Bidder to reach such amount first. If the execution of an Absentee Bid at its maximum amount would require Auctioneer to accept a bid that is less than a full bidding increment, Auctioneer has the sole and absolute discretion to acknowledge or reject such bid. An Absentee Bidder may authorize Auctioneer to advance the bid by one or more bidding increments after the maximum amount of the Absentee Bid is, or would be, reached. Auctioneer acts as the agent of the Seller only, and the receipt and/or execution of Absentee Bids will not create an agency relationship between Auctioneer and any Absentee Bidder.
10. Buyer's Premium. Each Lot is subject to a Buyer's Premium that will be calculated as a percentage of the Hammer Price and paid by the Winning Bidder in addition to the Hammer Price. The Buyer’s Premium will be in an amount equal to ___TEN____ percent (_10_%) of the Hammer Price of each Lot. In Auctioneer’s discretion, the Buyer’s Premium may be adjusted either globally or on a case-by-case basis to account for additional costs and expenses, including, without being limited to, credit card processing fees and check verification fees, or may be reduced or otherwise modified. The Buyer’s Premium is earned at the Fall of the Hammer and will not be refunded by Auctioneer. The Buyer's Premium will be added to the Hammer Price to determine the final Contract Price. If YOU are the Winning Bidder on any Lot(s) and YOU default on YOUR obligations as set forth in these Bidder Terms and Conditions, or otherwise, there will be no set-off or reduction in the Buyer's Premium even if a Lot is subsequently sold to another Buyer. Because the Buyer's Premium is earned with the Fall of the Hammer, Auctioneer has no obligation to mitigate damages with respect to the Buyer's Premium, and YOU acknowledge and agree that mitigation of damages is not possible.
11. Posted Times. All times are based on the Eastern Time Zone unless stated otherwise. Posted closing times and time displays are approximate. Auctioneer reserves the right to close early or extend the Auction at any time at Auctioneer’s sole and absolute discretion.
12. Online Bidding; Maximum Bids. Online bids may be submitted as a single advancing bid on a Lot, or as a maximum bid on a Lot, and bidding will advance competitively to the next available increment. Just like an Absentee Bid, Auctioneer may view YOUR bids as they are entered and advanced, including YOUR maximum bid. If YOU submit a single advancing bid on a Lot and YOUR bid is equal to or less than the maximum bid previously submitted by another Bidder on the same Lot, YOU will be outbid. If YOU submit a maximum bid on a Lot and a maximum bid has previously been submitted by another Bidder on the same Lot, bidding will advance to the next highest bid increment after which either YOUR maximum bid or the previously submitted maximum bid has been exhausted, whichever occurs first, and the then-current bid will be shown at that amount. If YOUR bid is shown as the current high bid on a Lot and another Bidder submits a bid (either as a single bid or as a maximum bid), bidding will advance to the next highest bid increment after which either YOUR maximum bid or the maximum bid of the competing Bidder has been exhausted, whichever occurs first, and the then-current bid will be shown at that amount. It is YOUR responsibility to refresh YOUR browser to keep current with the bidding. Limitations in technology, connectivity issues, and refresh rates may cause delays that result in an attempted bid on a Lot not being posted before the Lot closes.
13. Technology Disruptions. YOU acknowledge and agree that the Auction is conducted electronically and relies on hardware and software that may malfunction without warning. Auctioneer will not be responsible for, and will suffer no liability for, technology disruptions, errors, or failures (including disruptions to bidding or the failure to execute, recognize, or record online bids), whether caused by (i) loss of connectivity, breakdown, disruption, or failure of the Online Auction Platform(s), (ii) breakdown, disruption, or failure of a Bidder's internet connection, computer, or system, or (iii) otherwise. Auctioneer may, but will not be required to, continue, suspend, delay, extend, reschedule, or close the Auction because of disruptions caused by technology failures, even after bidding has commenced.
14. Failures by Online Auction Platform Provider and Its Affiliates or Contractors. Under no circumstances will Auctioneer be liable for any failure of the Online Auction Platform Provider(s) to perform, or for the failure of any affiliates, employees, agents, representatives, or contractors of the Online Auction Platform Provider(s) to perform regardless of whether such obligations are owing, directly or indirectly, to Auctioneer, to YOU, to Seller, or otherwise.
15. Staggered Closing; Automatic Extension Feature. Auctioneer’s online Auctions are designed to mimic traditional “live” actions. For this reason, the Auction will have a staggered, dynamic closing. YOU must continuously refresh YOUR browser during the closing process to see the most current bidding activity. The Auction will typically begin to close at a rate of two Lots per minute. The estimated closing time on a Lot will be displayed on the website, but may be extended past their scheduled closing time as a result of Auctioneer’s dynamic closing (automatic extension) feature. The closing time of a Lot is typically extended an additional three minutes if a bid is placed within the last three minutes leading up to the Lot’s estimated closing time, and such extensions will continue until there is a set period of time that lapses during which no advancing online bid is received, after which bidding on the Lot will close. Auctioneer may adjust the automatic extension period.
16. Disclaimer. THE ONLINE AUCTION PLATFORM(S) AND AUCTIONEER’S WEBSITE ARE PROVIDED ON AN “AS IS” BASIS WITHOUT WARRANTIES OF ANY KIND EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. AUCTIONEER MAKES NO REPRESENTATIONS, WARRANTIES, OR GUARANTEES, AND DISCLAIMS ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES, (i) THAT THE ONLINE AUCTION PLATFORM(S) OR ANY RELATED WEBSITE OR TECHNOLOGY WILL BE UNINTERRUPTED, ERROR FREE OR VIRUS FREE, (ii) AS TO THE RESULTS THAT MAY BE OBTAINED BY USING THE ONLINE AUCTION PLATFORM OR ANY RELATED WEBSITE OR TECHNOLOGY, OR (iii) AS TO THE ACCURACY, COMPLETENESS, RELIABILITY, SECURITY, OR CURRENT NATURE OF THE ONLINE AUCTION PLATFORM OR ANY RELATED WEBSITE TECHNOLOGY. IF YOU ARE DISSATISFIED WITH THE AUCTION, OR THE NATURE, CHARACTER, OR FUNCTIONALITY OF TECHNOLOGY ASSOCIATED WITH THE AUCTION, YOUR SOLE AND EXCLUSIVE RECOURSE IS TO IMMEDIATELY DISCONTINUE YOUR PARTICIPATION IN THE AUCTION. AUCTIONEER RESERVES THE RIGHT TO TERMINATE YOUR BIDDER REGISTRATION, TO SUSPEND OR TERMINATE YOUR ACCESS TO THE AUCTION, TO IMPOSE LIMITS ON CERTAIN FEATURES OF THE ONLINE AUCTION PLATFORM, AND/OR LIMIT, RESTRICT, OR TERMINATE YOUR ACCESS TO AUCTIONEER’S WEBSITE OR TO THE AUCTION WITHOUT NOTICE.
17. Restrictions on Use. YOU agree not to take any action or use any hardware, software, program, or system that would interfere with the orderly conduct of the Auction. YOU agree not to copy, reproduce, or publicly display any content from Auctioneer’s website without first obtaining written permission from Auctioneer. YOU agree that YOU will not use any robot, spider, other automatic device, or manual process to monitor or copy the Online Auction Platform(s), Auctioneer’s website, any technology associated with the Auction, and/or any content associated with the Auction. YOU agree that YOU will not use any device, software or routine to interfere with, or to attempt to interfere with, the proper functioning of the Online Auction Platform(s), Auctioneer’s website, any technology associated with the Auction, or any activity being conducted in connection with the Auction. YOU agree that YOU will not take any action that imposes an unreasonable or disproportionately large load on the Online Auction Platform(s) and/or Auctioneer’s website and/or online infrastructure. YOU agree that YOU will not copy, reproduce, alter, modify, create derivative works, or publicly display any content from the Online Auction Platform(s) and/or Auctioneer’s website. Access and use of any Online Auction Platform is subject to any and all terms and conditions of the Online Auction Platform Provider(s).
18. Reporting Bidding Errors. YOU should refresh YOUR browser often to view the most up-to-date bid information, and should carefully review every bid YOU choose to make before submitting that bid. Auctioneer will not assume that any bid, even a bid that increases YOUR own lower bid, was made in error. Bidders may strategically increase their own bids. YOU understand and agree that YOU will be held responsible for having made all bids that are made using YOUR account information, even if YOU claim the bid was made in error.
19. Security of Bidder Account. YOU are responsible for monitoring and maintaining the security of YOUR Bidder Account information. If, at any time, YOU know or suspect that YOUR Bidder Account has been hacked, cloned, compromised, or improperly accessed, YOU must immediately notify Auctioneer, and YOU
must also report the incident to the appropriate law enforcement authorities (with a copy of the police report sent to Auctioneer).
20. No Bid Retraction; Irrevocable Offer. Without Auctioneer’s consent (which consent may be granted or withheld in Auctioneer's sole and absolute discretion), YOU may not retract or revoke a bid that has been acknowledged by Auctioneer or that YOU have submitted online. YOU acknowledge and agree that Auctioneer is acting in reliance on tendered bids in the conduct of the Auction, and that bid retraction: (i) is disruptive and interferes with the Auction; (ii) may cause other Bidders to question the integrity of the Auction (among other things, affecting Auctioneer’s reputation); (iii) may reduce Bidder confidence in the Auction process; and (iv) may have a negative effect on the Hammer Price, thereby harming the Seller. As an inducement for Auctioneer to accept YOUR Bidder Registration and to grant YOU the privilege of bidding at the Auction, and in consideration of the ability to bid at the Auction, YOU acknowledge and agree that, without Auctioneer's prior consent, YOU will not withdraw or to attempt to withdraw any bid tendered by YOU or on YOUR behalf. YOU, further, acknowledge and agree that YOUR bid constitutes an irrevocable offer that will not be terminated by Auctioneer's solicitation and/or acknowledgment of advancing bids, neither of which constitutes a rejection of YOUR bid.
21. Responsibility for Bids. YOU are responsible for all bids made using YOUR Bidder Number or YOUR Bidder Account, and if YOU tender a bid that is determined by Auctioneer to be the Winning Bid, or if a Winning Bid is submitted from YOUR computer, or YOUR device, or from YOUR Bidder Account, YOU will be the Buyer. YOUR failure to inspect or otherwise become fully informed about a Lot will not be grounds for a refusal to pay, and will not support a claim against Auctioneer or the Seller. If YOUR Bidder Number is lost, stolen, or misappropriated, or if YOUR Bidder Account has been hacked or compromised YOU should notify Auctioneer immediately. YOU will be liable for all bids tendered using YOUR Bidder Number or Bidder Account prior to giving Auctioneer notice that YOUR Bidder Number was lost, stolen, or misappropriated or that YOUR Bidder Account was hacked or compromised.
22. Conduct of the Auction. Auctioneer will regulate all matters relating to the conduct of the Auction and Auctioneer’s decisions will be final and binding. Auctioneer will have control over bidding, and Auctioneer will resolve any and all disputes. If (i) after the Fall of the Hammer or other termination of the bidding Auctioneer is made aware of a bid that was tendered but not recognized or posted prior to the Fall of the Hammer or other termination of the bidding, or (ii) some other bid dispute arises, Auctioneer may, in Auctioneer’s sole and absolute discretion, reopen the bidding (but will not be required to). Any contract formed with the Fall of the Hammer will be subject to the conditions set forth in this Section. If bidding is reopened pursuant to this Section, the last bid recognized by Auctioneer prior to the reopening of the bidding will be held, and may not be retracted, and, if no further bids are received, such bid will be the Winning Bid. Auctioneer will suffer no liability on account of Auctioneer’s determination to reopen the bidding or not. Auctioneer reserves the right, for any reason, in Auctioneer’s sole discretion, to terminate, change or suspend the sale of any Lot or any aspect of any Auction. Auctioneer reserves the right, in Auctioneer’s sole and absolute discretion, to (i) add or remove Lots from the Auction, (ii) split or combine Lots, (iii) add minimum bids or Reserve Prices, (iv) cancel, suspend, extend, or reschedule the sale of any Lot or of the Auction in whole or in part, (v) make changes to the Auction’s closing, inspection, or removal times, and/or (vi) take any other action Auctioneer deems necessary or appropriate. Advertised times for bidding on particular Lots are estimates provided for convenience only, and Auctioneer will have no liability with respect to any Lots sold before or after an advertised time.
23. Seller/Auctioneer Bidding. Unless the Auction is explicitly described, in writing, as an Absolute Auction that is not a forced sale, Seller reserves the right to bid at the Auction. Seller, or those acting on Seller's behalf, may bid on any Lot(s) with the exception of Lot(s) expressly identified, in writing, as being exposed for sale at Absolute Auction that is not a forced sale. Auctioneer may execute bids on Seller’s behalf, or on its own behalf, and there is no requirement that any specific bids be identified as such or tendered under any single (or designated) Bidder Number or Bidder Account.
24. Withdrawal by Auctioneer. Auctioneer has the right to withdraw any Lot from the Auction prior to the opening of bidding on such Lot, and unless the Auction is explicitly described, in writing, as an Absolute Auction that is not a forced sale, Auctioneer has the right to withdraw any Lot from the Auction at any time prior to the Fall of the Hammer.
25. All Property Sold “AS IS,” “WHERE IS,” and “WITH ALL FAULTS.” EACH LOT IS BEING EXPOSED FOR SALE, AND WILL BE SOLD, IN ITS AS IS/WHERE IS CONDITION AT THE TIME OF THE AUCTION, WITH ALL FAULTS, INCLUDING ANY HIDDEN DEFECTS OF ANY NATURE. UNLESS EXPRESSLY STATED OTHERWISE, NO LOT THAT IS EXPOSED FOR SALE IN ITS “AS IS" CONDITION HAS BEEN MODIFIED, ALTERED, INSPECTED, OR TESTED BY AUCTIONEER. NEITHER AUCTIONEER NOR SELLER MAKES ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE NATURE, VALUE, SOURCE, AUTHENTICITY, FITNESS, MERCHANTABILITY, AND/OR ANY OTHER ASPECT OR CHARACTERISTICS OF SUCH LOT, INCLUDING, WITHOUT BEING LIMITED TO, MILEAGE, HOURS, MAINTENANCE, AND MANUFACTURER’S WARRANTIES. NO STATEMENT ANYWHERE, WHETHER EXPRESS OR IMPLIED, INCLUDING VERBAL STATEMENTS MADE BY AUCTIONEER, WILL BE DEEMED A WARRANTY OR REPRESENTATION BY AUCTIONEER OR SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE ARE NO WARRANTIES OF NON-INFRINGEMENT, AUTHENTICITY, ORIGIN, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR ANY COMMON LAW WARRANTY, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. AUCTIONEER DISCLAIMS ANY RESPONSIBILITY FOR LIENS OR ENCUMBRANCES THAT MAY ATTACH TO OR BE ASSOCIATED WITH ANY LOTS; AND YOU ARE SOLELY RESPONSIBLE FOR SEARCHING OR INVESTIGATING LIENS AND ENCUMBRANCES. IT IS BELIEVED THAT DESCRIPTIONS ARE ACCURATE, BUT THEY ARE NOT GUARANTEED. AUCTIONEER DISCLAIMS LIABILITY FOR ANY TECHNOLOGY-RELATED LOCK, IMPEDIMENT, OR ENCUMBRANCE ASSOCIATED WITH ANY LOT; AND AUCTIONEER HAS NO OBLIGATION TO PROVIDE ANY PASSWORD, LICENSE, TECHNICAL SUPPORT, OR OTHER TECHNOLOGY-RELATED SERVICE, PRODUCT, OR THING ASSOCIATED WITH ANY LOT. AUCTIONEER MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING EMBEDDED SOFTWARE LICENSES, OR WHETHER ANY ACTS OR OMISSIONS BY OR ON BEHALF OF CONSIGNOR HAVE VOIDED ANY MANUFACTURER WARRANTIES. YOU ACKNOWLEDGE AND AGREE THAT YOU CANNOT RELY ON, AND HAVE NOT RELIED ON, ANY REPRESENTATION, WARRANTY, OR GUARANTEE MADE BY AUCTIONEER, OR SELLER, OR ANYONE ACTING AS AGENT OF SELLER, ORALLY OR IN WRITING, ABOUT ANY LOT. BY BIDDING, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE HAD A FULL AND FAIR OPPORTUNITY TO INSPECT ALL LOTS, AND THAT YOU ARE RELYING SOLELY ON, OR THAT YOU HAVE WAIVED, SUCH INSPECTION AND INVESTIGATION (i) IN DETERMINING WHETHER TO BID, (ii) IN DETERMINING THE AMOUNT OF A BID, AND (iii) IN BIDDING. IF A PRE-AUCTION INSPECTION IS NOT AVAILABLE, YOU ACKNOWLEDGE AND AGREE THAT (i) YOU ARE KNOWINGLY AND WILLING BIDDING WITHOUT A PRE-AUCTION INSPECTION, (ii) YOU ARE NOT RELYING ON ANY REPRESENTATIONS OR WARRANTIES BY AUCTIONEER OR SELLER, AND (iii) YOU ARE ASSUMING ANY AND ALL RISKS ASSOCIATED WITH YOUR PURCHASE OF THE LOT(S) WITHOUT A PRE-AUCTION INSPECTION. THIS “AS IS” DISCLAIMER APPLIES PRE-AUCTION, POST-AUCTION, AND DURING THE AUCTION.
26. Inspection; Photographs and Images; Due Diligence. By bidding, YOU acknowledge and agree that YOU have had a full and fair opportunity to inspect the Lot(s), and that YOU are relying solely on YOUR inspection and investigation, or that YOU have waived inspection and investigation, and that YOU have not relied on any statement, representation, warranty, or guarantee made by Auctioneer, or by Seller, or by anyone acting as agent or representative of Seller; provided, however, that if a pre-auction inspection is not available due to social distancing restrictions or otherwise, YOU acknowledge and agree that (i) YOU are knowingly and willing bidding without a pre-auction inspection, (ii) YOU are not relying on any representations or warranties by auctioneer or seller, and (iii) YOU are assuming any and all risks associated with YOUR purchase of the Lot(s) without a pre-auction inspection. YOU, further, acknowledge and agree that any photographs or other images of Lot(s) are adequate for YOUR purposes. YOU, further, acknowledge and agree that YOU have had a full and fair opportunity to ask questions and to conduct any and all due diligence that YOU deem to be necessary or appropriate, and that the responses YOU have received, if any, are adequate for YOUR purposes.
27. Reliance on Photographs; Disputes. Auctioneer typically posts item descriptions and photographs. Multiple Lots, or items from multiple Lots, may appear in a single photograph. Do not assume that a Lot consists of more than one item merely because various items appear connected or are featured in the same photograph. On occasion, the wrong photograph may be displayed for a particular Lot; however, at all times, YOU are bidding on Lots as they are described. YOU are only entitled to the items described within the Lot Description. YOU are not entitled to any item or items located on, under, in, or about any LOT unless specifically included in the Lot description. If YOU come into possession of any personal property not identified in the description for a Lot purchased by YOU, YOU must promptly notify Auctioneer and return the item(s) that were not described. Any items non-included items that come into YOUR possession are to be considered lost or mislaid property, and not abandoned property. If YOU fail to return any item or items not included in the Lot description, Auctioneer may take immediate action to recover such items (including, without being limited to, commencing an action in conversion and for replevin), and may immediately notify law enforcement, and file a police report.
28. Description of Lots. UNLESS EXPRESSLY STATED OTHERWISE IN WRITING, ANY DESCRIPTION OF A LOT IS BASED SOLELY ON VISUAL IMPRESSION, AND IS GIVEN SOLELY FOR IDENTIFICATION PURPOSES, AND DOES NOT CREATE ANY WARRANTY, EXPRESSED OR IMPLIED, OR REPRESENTATION BY AUCTIONEER OR SELLER.
29. Announcements. Subject to the limitation set forth in these Bidder Terms and Conditions, all terms and conditions and other announcements made by Auctioneer on the day of the Auction are binding and take precedence over any advertisements or listings.
30. Contract of Sale for Personal Property. Regardless of the Contract Price, no additional or further writing will be required to evidence the existence of a contract of sale for any Lot, and these Bidder Terms and Conditions, together with Auctioneer’s clerking sheets or other physical or digital notation identifying the Lot, the Hammer Price, the Contract Price, and the Buyer, will be conclusive evidence as to the terms of the sale. These Bidder Terms and Conditions will be incorporated into and made a part of the contract between each Buyer and Seller. Notwithstanding the foregoing, YOU agree that, if requested by Auctioneer, YOU will sign a memorandum of sale or similar such document.
31. Winning Bid; Certification by Auctioneer. If it appears that YOU have tendered the Winning Bid on one or more Lots, any notice or declaration that the Lot has been “sold” to YOU and any email or invoice that YOU receive will be subject to final certification by Auctioneer. Any dispute regarding the identity of the Winning Bidder on a Lot will be resolved by Auctioneer, and Auctioneer may reopen the Bidding if deemed necessary or appropriate. Auctioneer’s final determination of the Winning Bidder on any Lot will be conclusive. If Auctioneer determines that YOU were not the Winning Bidder on a Lot with respect to which YOU were invoiced, or YOUR credit card was charged, Auctioneer will void the Invoice, and will refund YOUR payment for any amounts charged in error (but YOU will not be entitled to interest of any other compensation). YOU may not rely on a paid receipt or an initial credit card charge to challenge any determination by Auctioneer that YOU were not, if fact, the Winning Bidder on a disputed Lot.
32. Invoice and Communications from Auctioneer. YOU will be invoiced for your purchases at the conclusion of the Auction. If YOU are present at the Auction Site at the conclusion of the Auction, an invoice will be delivered to YOU at that time, and may also be sent to YOU by email. If YOU are a remote Bidder, an invoice will be sent to you by email after the conclusion of the Auction. YOU ACKNOWLEDGE AND AGREE THAT EMAIL COMMUNICATIONS, INCLUDING, WITHOUT BEING LIMITED TO, INVOICES, PAYMENT INSTRUCTIONS, AND PAYMENT REMINDERS, MAY BE SENT TO YOU BY AUCTIONEER, OR THOSE ACTING ON AUCTIONEER’S BEHALF, AT ANY TIME DURING THE DAY OR NIGHT, AND YOU EXPRESSLY CONSENT TO THE TRANSMISSION OF EMAIL COMMUNICATIONS, INCLUDING, WITHOUT BEING LIMITED TO, INVOICES, PAYMENT INSTRUCTIONS, AND PAYMENT REMINDERS FROM AUCTIONEER, OR THOSE ACTING ON AUCTIONEER’S BEHALF, AT ANY TIME DURING THE DAY OR NIGHT WITHOUT LIMITATION AS TO THE DAY OF THE WEEK OR THE TIME THAT SUCH EMAIL IS TRANSMITTED OR RECEIVED.
33. All Sales Final. ALL SALES ARE FINAL. NO REFUNDS OR RETURNS.
34. Limitation of Liability. Auctioneer is not responsible for any actions of Seller or others, including Bidders or Buyers, taken before, during, and after the Auction. Auctioneer will not be held liable for typographical errors, misprints, loss of merchandise/money, damage or failure of equipment, at the Auction Site, or otherwise related to the Auction.
35. Auctioneer’s Records Conclusive. Absent clerical errors, Auctioneer’s records will be final and conclusive.
36. Title. If YOU are certified as the Winning Bidder on a Lot, YOU will be contractually obligated to pay the Contract Price; however, title and ownership of the Lot will not pass from the Seller to YOU until payment is made and clears. After payment is received, and clears, title will pass form the Seller to YOU at the Auction Site.
37. Possession, and Risk of Loss. Possession and risk of loss will pass to YOU at the Auction Site. If YOU are physically present at the Auction Site during the Auction, possession and risk of loss with respect to each Lot on which YOU are the Winning Bidder will pass to YOU with the Fall of the Hammer, even if YOU have not yet paid for the Lot, and YOU will be solely responsible for safeguarding and protecting each such Lot.
38. Payment. Unless other written arrangements are made with Auctioneer: (i) if YOU are physically present at the Auction Site, all Lots must be paid for at the Auction Site at the close of the Auction, and (ii) if YOU are a remote or online Bidder, not physically present at the Auction Site, all Lots must be paid for in-full within 24 hours after the close of the Auction. Payments may be made in cash, or by credit card, or by certified funds, or by wire transfer; provided, however, that any online purchases in excess of ____________________ Dollars ($__________) must be paid by wire transfer unless other arrangements acceptable to Auctioneer are made.
39. Delivery. All Lots will be delivered to YOU at the physical location of such Lot(s) at the close of the Auction which will be either (i) at Auctioneer's location in the State of West Virginia, or (ii) at such other location within or outside the State of West Virginia as indicated in the specific Auction listing, or (iii) as otherwise designated by Auctioneer. Auctioneer has no obligation to move or relocate any Lot(s) to YOUR location or to a location designated by YOU. YOU may designate, appoint, and empower an agent to accept delivery of YOUR purchases at the point of sale, and to arrange for shipment of YOUR property to a location designated by YOU.
40. Sales Tax. Unless an exemption applies, all purchases are subject to sales tax in the jurisdiction where delivery occurs as set forth in the specific Auction listing and these Bidder Terms and Conditions. Sales tax will be calculated and collected at the point of sale as set forth in the specific Auction listing and these Bidder Terms and Conditions and will be remitted to the applicable taxing authorities. Sales tax will be calculated based on the Contract Price (i.e., the Hammer Price plus the Buyer’s Premium). If the taxing authority from a jurisdiction other the jurisdiction in which the Auction occurred and where delivery was made, including, without being limited to, the jurisdiction in which YOU reside, conduct business, or will maintain the Lot(s) purchased by YOU, requires the collection and remittance of sales tax, use tax, or a similar tax, YOU will be responsible for payment of an amount equal to such tax, and YOU agree to indemnify Auctioneer and hold Auctioneer harmless with respect to the same. If it is determined that sales tax is collected and paid to the wrong taxing authority, YOU and Auctioneer will cooperate in efforts to obtain a refund of such tax and its remittance to the proper taxing authority.
41. Tax-Exempt Status. If YOU are exempt from payment of sales tax, or other taxes applicable to YOUR purchases at the Auction, YOU must submit proof of tax-exempt status at the time YOU register for the Auction; and YOU must submit a new tax-exempt form for every Auction. If YOU have not submitted proof of tax exempt status at the time you Registered for the Auction, Auctioneer will be unable to consider identifying YOU as exempt from taxation and YOUR only recourse will be to apply directly to the applicable taxing authority for a refund. Notwithstanding YOUR submission of proof of tax exempt status to Auctioneer, tax exempt determinations are made by the applicable taxing authorities. YOU agree that if an applicable taxing authority denies or rejects your tax exempt status after the Auction, YOU will be responsible for payment of the required taxes, and YOU agree to indemnify Auctioneer and Seller, and to hold Auctioneer and Seller harmless, from and against any claims by an applicable taxing authority. It is YOUR responsibility to confirm YOUR tax exempt status with the applicable taxing authorities.
42. Failure to Pay. If you fail to pay for your purchase(s) within the time provided under these Bidder Terms and Conditions (or as otherwise posted on Auctioneer’s website), YOU will be deemed to have abandoned any interest in the Lot(s), but YOU will remain liable for payment of the Contract Price. Unpaid Lot(s) may be retained by Seller, resold at a subsequent auction, or otherwise disposed of. If unpaid Lot(s) are sold at a subsequent auction, YOU will be liable for any shortfall or deficiency on the resale of the Lot(s), plus the costs incurred in connection with reselling the Lot(s). Under no circumstances will YOU be entitled to any surplus from the resale of any unpaid Lot(s). Auctioneer and/or Seller may, at any time, commence a lawsuit against YOU for the Contract Price of any unpaid Lot(s) and/or for any deficiency realized on the resale of such Lot(s).
43. Failure to Pick-up or Remove; Abandonment. If YOU are the Winning Bidder on any Lot(s), and, after paying the Contract Price for such Lot(s), YOU fail to pick-up or remove such Lot(s) within __________ (___) days after the Auction, YOU will be deemed to have abandoned such Lot(s), and any interest therein, to Auctioneer, and YOU will give up any and all rights with respect to such Lot(s). Lots that have been abandoned to Auctioneer may be retained by Auctioneer, sold at a subsequent auction, or otherwise disposed of. YOU will not be entitled to any proceeds from the sale of any abandoned Lot(s).
44. Storage Charges. Auctioneer may charge a storage fee in the amount of _______________ Dollars ($__________) per Lot/per day (i) beginning __________ (___) days after the Auction for Lot(s) with respect to which payment has not been made, and/or (ii) beginning __________ (___) days after payment for Lot(s) that have been paid but not picked-up or removed from the Auction Site. Storage fees will accrue until YOUR abandonment of the Lot(s), or any interest in purchasing the Lot(s), as provided elsewhere in these Bidder Terms and Conditions.
45. Possessory Lien. At any time during which Auctioneer is in possession of any Lot(s) with respect to which YOU are the purchaser, or with respect to which you may have (or claim) an interest, Auctioneer will have a possessory lien against such Lot(s) to secure payment of any and all amounts owing from YOU to Auctioneer and/or any Seller, and such Lot(s) may be sold in order to recover monies owing from YOU to Auctioneer and/or any Seller.
46. Set-Off. Any monies in Auctioneer’s possession that are payable to YOU may be applied against any amounts due and owing from YOU to Auctioneer or to any Seller.
47. Calculation of Sales Tax; Sales Tax Disputes. Unless otherwise directed by the appropriate taxing authority, sales tax will be calculated, and collected, based on the Contract Price, which includes the Hammer Price plus the Buyer’s Premium. If (i) YOU believe that YOUR purchase is subject to a sales tax exemption that is not recognized by Auctioneer, or (ii) YOU believe that the Buyer’s Premium portion of the Contract Price should not be subject to sales tax, or (iii) you otherwise dispute the sales tax, YOU should address YOUR dispute to the appropriate taxing authority and seek a refund from the appropriate taxing authority to the extent that the same may be available to YOU.
48. Pick-up and Removal; Shipping; Insurance. YOU are responsible for pick-up and removal of Lot(s) purchased by YOU. Pick-up and removal dates and times will be as posted or announced by Auctioneer. Unless otherwise agreed, YOU are solely responsible for the disassembly, rigging, loading, removal, shipping, and transportation of each Lot purchased by YOU. Disassembly and removal must be done in a workmanlike manner, and YOU will indemnify and hold harmless both Auctioneer and Seller(s) against any and all damage caused by YOU or YOUR employees, agents, representatives, or independent contractors in connection with the disassembly or removal of any Lot(s). Any and all damage, including, without being limited to damage to land or buildings, caused by YOU or by YOUR employees, agents, representatives, or independent contractors, will be repaired by YOU, or at YOUR expense, to the satisfaction of Auctioneer and Seller(s). YOU are responsible for insuring all Lots purchased by YOU.
49. Transportation of Machinery, Equipment, and Vehicles; and Indemnification. YOU are solely responsible for the transportation of machinery, equipment, and vehicles purchased by YOU. YOU must inspect any and all machinery, equipment, and vehicles purchased by YOU to determine the road worthiness and operating capability of such equipment and vehicles, as applicable. YOU are responsible for any damages or injuries resulting from YOUR operation of machinery, equipment, or vehicles, whether at the Auction Site or after being removed from the Auction Site. YOU are responsible for ensuring that all warning signs and lights, and all other safety features are in place and functioning. YOU agree to indemnify Auctioneer and Seller, and to hold Auctioneer and Seller harmless from and against any and all claims, demands, suits, actions, causes of action, damages, costs or charges whatsoever by any person or entity whatsoever arising from, or in any way related to, the movement, operation, transportation, repair, or condition of any machinery, equipment, vehicles, or other Lot(s) purchased by YOU.
50. Auctioneer and/or Seller Assistance. If Auctioneer and or Seller assist YOU (or YOUR agents or representatives) in any way with the rigging, loading, securing, or movement of any Lots at the Auction Site or otherwise, all such assistance will be under YOUR direction and supervision, and YOU will be solely responsible for the same; and YOU will indemnify and hold harmless both Auctioneer and Seller against any and all damage, loss, or injury.
51. Returned Checks. Any checks that are returned unpaid will be subject to a returned check fee in the amount of $__________. In addition to the foregoing, Auctioneer will be entitled to recover, from the issuer of a returned check, all costs and expenses, including attorneys’ fees, for the collection of payment made in the form of a check that has been returned unpaid.
52. No Stop Payment Orders or Credit Card Chargebacks. YOU agree that YOU will not, under any circumstances, (i) issue a stop payment order with respect to any checks issued at or in connection with the Auction, or (ii) initiate a credit card chargeback with respect to any purchases at the Auction. YOU further agree that if, in violation of these Terms and Conditions, a stop payment order is issued or a credit card chargeback is initiated, these Bidder Terms and Conditions will be conclusive evidence of YOUR (i) waiver of any rights to issue a stop payment order or to initiate a credit card chargeback, and (ii) agreement not to issue a stop payment order or to initiate a credit card chargeback; and YOU acknowledge and agree that on Auctioneer’s presentation of these Bidder Terms and Conditions to the bank, credit card company, or other financial institution against which a check was drawn or that issued the credit card on which charges were made, such bank, credit card company, or other financial institution will reverse any stop-payment order and/or reverse or deny any credit card chargeback, and will re-credit all amounts to or for the account of Auctioneer. If, in violation of these Bidder Terms and Conditions, YOU issue a stop payment order or initiate a credit card chargeback, YOU will remain liable for all purchases made at the Auction, and YOU will be responsible for all costs and expenses, including attorneys’ fees, incurred by or on behalf of Auctioneer and/or Seller in challenging the stop payment order or credit card chargeback and/or in collecting payment. YOU acknowledge and agree that the covenant not to issue a stop payment order or to initiate a credit card chargeback is a condition to the issuance of a Bidder Number or Bidder Account to YOU, and is being made as an inducement for Auctioneer to accept YOUR Bidder Registration, to issue a Bidder Number or Bidder Account to YOU, and to permit YOU to bid at the Auction. YOU acknowledge and agree that Auctioneer is relying on the covenant not to issue a stop payment order or to initiate a credit card chargeback in accepting YOUR Bidder Registration, in issuing a Bidder Number or Bidder Account, and in permitting YOU to bid at the Auction.
53. Claims. After a Lot has been removed from the Auction Site by YOU, or on YOUR behalf, no claims or returns will be allowed and no claim will be allowed for adjustments or rescission of any sales based on the failure of a Lot to correspond with any standard and/or expectation.
54. Discretionary Late Removal Policy. Auctioneer may, in Auctioneer’s sole and absolute discretion, allow YOU to remove any Lot that YOU have won at the Auction at a time beyond the published removal times in exchange for a late removal fee (the “Late Removal Fee”). The Late Removal Fee will equal $150 for the first hour during that Auctioneer allows for the late removal of Lots, and $50 for each additional hour. For avoidance of doubt, (i) the minimum Late Removal Fee is $150, (ii) Auctioneer is not required to allow the late removal of any Lot, and (iii) if Auctioneer does allow for late removal, Auctioneer is not required to allow for the late removal to continue for any given amount of time, and may set an end time for such late removal in Auctioneer’s sole and absolute discretion. Any Lot not removed during the period during which Auctioneer agrees to allow for late removal will be deemed abandoned.
55. Buyer Remedies; Bidders/Buyers Not Entitled to Incidental or Consequential Damages. To the extent that YOU may be entitled to damages or remedies, the sole and exclusive remedy available to YOU is a return of the monies actually paid by YOU. Under no circumstances will Auctioneer or any Seller be liable for incidental or consequential damages, including, without being limited to, lost profits or reduced productivity. YOU acknowledge and agree that YOU are not entitled to specific performance or other equitable relief.
56. Auctioneer and Seller Remedies. If YOU breach YOUR obligations under these Terms and Conditions or under a sale contract with the Seller of any Lot(s), the Lot(s) may be resold and YOU will be responsible for any and all damages, including any deficiency or reduction in the Contract Price, along with incidental damages. YOU acknowledge and Agree that YOU will be liable for the full amount of the Buyer’s Premium even it a Lot is sold at a subsequent sale, and that Auctioneer has no obligation to mitigate damages regarding the Buyer’s Premium. YOU agree, further, that Auctioneer and/or Seller may seek equitable relief (including injunctive relief or specific performance) without the necessity of any bond or similar deposit in a court having jurisdiction.
57. Indemnification. YOU agree to indemnify and hold Auctioneer and Seller harmless from any current or future claim regarding the Auction or the Property, including, without being limited to, fitness, use, damage, safety, or injuries to persons or property. Without limiting the generality of the foregoing sentence, YOU accept responsibility for, and agree to indemnify, defend and hold harmless Seller and Auctioneer, and each of them, and their respective employees, governing body, officers, owners, affiliates, subsidiaries, directors, agents, attorneys, and representatives, from and against any and all claims, losses, damages, liabilities, judgments, fees, costs and expenses (including reasonable attorneys’ fees and expenses) related to, arising from or associated with YOUR participation in the Auction, including, without being limited to, personal injuries, property damage, or financial loss, incurred by YOU or any other person or entity at the including, without being limited to, access to or use of any Online Auction Platform, access to or presence at the Auction Site, and/or removal, transport, use, or subsequent sale of any Lot(s).
58. Private Sale. YOU agree not to enter into, or to agree to enter into, a Private Sale for the purchase of any Property included, or scheduled to be included in, the Auction, prior to or during the Auction. If YOU purchase any Property included in, or scheduled to be included in, the Auction in a Private Sale prior to, or during, or within ten (10) days after the Auction, Auctioneer will be entitled to receive an amount equal to Auctioneer’s full Commission, Buyer’s Premium, and reimbursable expenses, and YOU and Seller will be jointly and severally responsible for the payment of such amount.
59. YOUR Relationship With Auctioneer. Auctioneer is not YOUR agent, and does not represent YOU.
60. Third-Parties and Subsequent Purchasers. With respect to any Lot(s) purchased by YOU, Auctioneer has no relationship with any third-parties or subsequent purchasers of such Lot(s), and no third-party or subsequent purchaser may rely on any statements or descriptions made by Auctioneer, nor will Auctioneer have any liability to such persons or entities. YOU agree to indemnify Auctioneer and to hold Auctioneer harmless from and against any and all claims made by third-parties or subsequent purchasers of any Lot(s) purchased by YOU.
61. Mailing List. Auctioneer may use Bidder Registration information to notify previously registered Bidders (by email or otherwise) about future Auctions and events. YOU may opt out of receiving such notifications by providing written notice to Auctioneer.
62. Audio and Video Recording; Photographs. The Auction Site may be subject to security surveillance, including video, audio, and photographic recording. Video, audio, and photographic recording may also be taken by Auctioneer and used on Auctioneer’s website, or, otherwise, in advertising and/or for other commercial purposes. As a condition to, and in consideration of, YOUR presence at the Auction Site, YOU acknowledge and agree that such video, audio, and photographic recordings may be made, and that YOU may be included on such video, audio, and photographic recordings, and YOU consent to the same. YOU further agree that Auctioneer may use any such images or recordings in advertising and/or for other commercial purposes on a royalty-free basis with no further consideration or remuneration to YOU.
63. Governing Law; Jurisdiction; Venue; Dispute Resolution. These Bidder Terms and Conditions will be governed by and construed in accordance with the laws of the State of West Virginia, including its statutes of limitations, but without regard to its rules governing conflict of laws. Any controversy or claim arising out of or relating to these Bidder Terms and Conditions or any breach hereof will be settled by binding arbitration in accordance with the West Virginia Uniform Arbitration Laws and will be instituted and maintained in Morgan County, West Virginia. YOU agree that any and all suits for any and every claim arising out of or connected to a breach of this Agreement or challenge to the arbitration proceedings or award will be instituted and maintained in Morgan County, West Virginia or any other place to which Auctioneer expressly consents in writing. YOU WAIVE THE RIGHT TO TRIAL BY JURY.
64. Attorneys’ Fees. YOU breach YOUR obligations under these Bidder Terms and Conditions, Auctioneer and/or Seller will be entitled to recover all costs and expenses, including attorneys’ fees incurred in enforcing their respective rights hereunder.
65. Waiver. CERTAIN PROVISIONS OF THESE BIDDER TERMS AND CONDITIONS ARE FOR THE EXCLUSIVE BENEFIT OF AUCTIONEER AND/OR SELLER(S). SUCH PROVISIONS, INCLUDING, WITHOUT BEING LIMITED TO, BIDDER REGISTRATION AND QUALIFICATION REQUIREMENTS, PAYMENT TERMS, REMOVAL AND DELIVERY TERMS, AND INSPECTION TERMS, DO NOT CREATE, AND WILL NOT BE DEEMED TO CREATE, ANY BENEFITS OR RIGHTS IN FAVOR OF ANY OTHER PERSONS, INCLUDING COMPETING BIDDERS, AND MAY NOT BE ENFORCED BY ANY OTHER PERSONS. EITHER GLOBALLY OR ON A CASE-BY-CASE BASIS AUCTIONEER AND/OR SELLER MAY (BUT WILL NOT BE REQUIRED TO) WAIVE ANY PROVISIONS OF THESE BIDDER TERMS AND CONDITIONS THAT ARE INTENDED FOR THE BENEFIT OF AUCTIONEER AND/OR SELLER.
66. PUBLIC HEALTH. YOU understand that there may be public health risks associated with being in the proximity of others (including, without being limited to, possible exposure to COVID-19). YOU voluntarily agree to release, indemnify, defend, and hold harmless, Auctioneer and Auctioneer's agents, representatives, and employees, from any and all liabilities, claims, losses, causes of action or expense of any kind related, in any way, to bodily injury or infection associated as a result of YOUR presence at the Auction Site. YOU, further, acknowledge and agree that YOU are accepting such risks for YOURSELF and for anyone who may accompany YOU to the Auction Site, or who may handle Property from the Auction Site. YOU further acknowledge and agree that YOU are familiar applicable public health guidelines for social distancing, and that YOU enter the Auction Site of YOUR own free will and at YOUR own risk.
