| I. BASIC REGISTRATION AND SERVICE INFORMATION
1.1 ACKNOWLEDGMENT AND ACCEPTANCE OF TERMS OF SERVICE
By clicking on "I agree" below, and by completing the registration process to become a member ("Member") of the Auction-Equipment.com web site (the "Site"), you acknowledge having reviewed, accept and agree to be bound by the terms of service, operating rules and/or policies of Auction-Equipment.com, published by Auction-Equipment.com as described below (all such Terms of Service, operating rules and/or policies as they may be amended from time to time shall hereinafter be referred to as these "Terms of Service"). Members may be referred to as "Member," "User," "Buyer" when a Member is being described as acting as a buyer in a Auction-Equipment.com transaction, "Bidder" when a Member is being described as bidding on an used equipment in order to act as a potential buyer in a Auction-Equipment.com transaction, and "Seller" when a Member is acting as a seller in a Auction-Equipment.com transaction. These Terms of Service comprise the entire agreement between Member and Auction-Equipment.com and supersede all prior agreements between the parties, regarding the subject matter contained herein.
1.2 DESCRIPTION OF AUCTION-EQUIPMENT.COM SERVICE
Auction-Equipment.com provides an online venue for Sellers to list used equipment and/or parts & attachments for sale and for Buyers to locate used equipment and/or parts & attachments for sale in order to facilitate the transfer of ownership of used equipment and/or parts & attachments, including but not limited to real and personal property, ownership interests and goods ("used equipment and/or parts & attachments"). The used equipment and/or parts & attachments available through the Site are offered by Sellers and not by Auction-Equipment.com. Auction-Equipment.com is not a party to the offer or sale of these used equipment and/or parts & attachments, does not own the used equipment and/or parts & attachments listed on the Site, and only provides the technical means for the offer and sale of the used equipment and/or parts & attachments. Auction-Equipment.com does not ensure that a Seller and Buyer will complete a transaction. Unless otherwise indicated/engaged, Auction-Equipment.com is not responsible for fulfillment of any used equipment sale or for facilitating the delivery of said used equipment(s). Although Auction-Equipment.com may supervise the content of information of the Site (see "Supervision of Content" below), Auction-Equipment.com does not assume responsibility for verifying the material, content and information on its Site and is not responsible for any damages, losses, expenses or other injuries incurred by any Member as a result of relying on any material, content and information posted on the Site. The Site is solely a technical venue for Sellers, whether private parties or other merchants, to advertise or list used equipment and/or parts & attachments that are available for sale, and for bidders, whether private parties or other organizations, to bid for used equipment and/or parts & attachments posted by Sellers. The completion of the purchase and sale of an used equipment is the responsibility of the Sellers and the winning Bidders.
1.3 MEMBER REGISTRATION AND INFORMATION
(a) Registration Data. Each Member expressly agrees to: (1) provide certain current, complete, and accurate information about Member as prompted to do so on the Site and (2) maintain and update this information as required to keep it current, complete and accurate. All information requested on original registration shall be referred to as "Registration Data." Furthermore, Member grants Auction-Equipment.com the right to use Member-related data for purposes described in the Auction-Equipment.com Privacy Policy. Member is further directed to review the Auction-Equipment.com Privacy Policy for further information concerning the collection and usage of Member information. Auction-Equipment.com membership is non-transferable. If any information provided by Member is incomplete or inaccurate, Auction-Equipment.com retains the right to terminate Member's rights to use the Site. Member has the right to seek cure within five (5) business days of notification. A Member agrees not to use a false or misleading name or a name that the Member is not authorized to use in registration or use of the Site. Providing fraudulent Member information could subject a Member to criminal or civil liability as well as being a violation of these Terms of Service. Member may change personal information on its existing membership account only to update the Member account.
(b) User Name and Password. Once a party becomes a Member of the Site, the Member will select a user name and a password. Members are entirely responsible for maintaining the confidentiality of their user names and passwords. Furthermore, Members are entirely responsible for any and all activities, which occur under a Member's Member ID and password. Member agrees to immediately notify Auction-Equipment.com of any unauthorized use of Member's Member ID or any other breach of security known to Member. used equipment and/or parts & attachments may terminate the membership of any Member due to the misuse, improper use or unauthorized use of their user name, password or this Site. Auction-Equipment.com shall not be responsible and the Member shall hold it harmless for any damages whatsoever, including, but not limited to, any actual, special, consequential or incidental losses or damages arising from the misuse, improper use or unauthorized use of their username, password or this Site.
II. CONDUCT OF AUCTIONS ON THE SITE
2.1 PROCEDURE FOR CONDUCTING AUCTIONS
Used equipment and/or parts and/or attachments are listed for the specified bidding periods (the "bidding") shown on the Site and are deemed "sold" at the close of bidding which will be set at a time pre-determined by the Seller, except that Auction-Equipment.com will not close bidding until an entire overtime period (three minutes) has passed without any bidding activity. Each used equipment will have a description, inspection report (if necessary) and disclosure information on the Site, as well as any additional conditions of sale provided by the Seller. Once bidding commences, Bidders may make a bid at any time prior to closing of the bidding. All used equipment and/or parts and/or attachments will have a minimum bid price disclosed on the Site. For certain used equipment and/or parts and/or attachments, the Seller may impose a reserve price, which is not disclosed on the Site. If there are no bids above the minimum bid or reserve price (whichever is higher), then the Seller is not obligated to sell the used equipment. After bidding closes on each used equipment, Auction-Equipment.com will send the highest Bidder and Seller an email detailing the highest bid and contact information (a "Sold Notice"). In all auctions, Buyers who receive a Sold Notice are legally bound to buy the used equipment at the quoted bid amount (see "Contractual Obligations of Buyers and Sellers" below), and the Seller is legally bound to sell the used equipment, pursuant to these Terms of Service, subject to the additional conditions of sale specified by Seller. The Seller is obligated to have the sold equipment, parts and/or attachments ready for pick-up and transporting with 24 hours after confirmation of the funds have been received by Auction-Equipment.com. The winning bidder is also obligated to have the entire funds wire to Auction-Equipment.com within 48 hours. After two (2) business days if the Seller (or the Seller may engage a representative, including Auction-Equipment.com, to contact the winning Bidder on the Seller's behalf, pursuant to prior agreement) is unable to contact the winning Bidder, for whatever reason, the Seller may, in its sole discretion (a) continue to attempt to contact the high bidder with assistance from Auction-Equipment.com or (b) re-list the used equipment on the Site. Once the parties are in contact, the Seller and winning Bidder shall complete the settlement of the purchase and sale of the used equipment, parts and/or attachments pursuant to "Settlement of Transactions" below.
2.2 WANTED ADS
The wnated ads is an advertising feature that is offered on the Auction-Equipment.com site, it is governed by, but not limited to the same terms and conditions of the auction feature of this site. A credit card will be required for this section & will be charged the day the ads is placed based on the fees stated in the fee section of the web site. Your credit card information can be updated or changed to another valid credit card at anytime through the member login section of the web site.
2.3 Extraordinary Circumstances; Limited Rights to Re-open Auction
Notwithstanding anything herein to the contrary, in the rare event of a documented interruption in service, technical error or other exceptional circumstance of a similar nature (defined by and determined at the sole discretion of Auction-Equipment.com and its affiliates), with respect to the services provided by Auction-Equipment.com or its affiliates, the Seller for any adversely affected auction shall have the right, within one (1) business day after such auction has closed, or a “Sold Notice” issued, to direct Auction-Equipment.com to re-open such auction. In such a case, the affected “Sold Notice” shall immediately become void and of no force and effect. Auction-Equipment.com shall promptly send, at the direction of the Seller, an email to all documented bidders, including any bidder that received a “Sold Notice”, specifying the details pursuant to which the affected auction shall be re-opened. In any re-opened auction, only documented bidders from the adversely affected auction may bid.
2.4 SETTLEMENT OF TRANSACTIONS GENERALLY
The settlement of a purchase and sale of any used equipment following a completed bidding process shall be conducted pursuant to this Section, unless otherwise provided in the Seller's conditions of sale or in a written agreement executed by the Buyer and Seller. The conditions of sale for a particular used equipment may provide that a winning Bidder a deposit within a short time after the auction closes, such as one or two business days after a Sold Notice is given, or that a pre-bidding deposit may be required prior to a Bidder being qualified to bid on an used equipment, or no deposit may be required. Unless otherwise provided in the Seller's conditions of sale or otherwise agreed upon by the Seller and Buyer in writing, final settlement shall take place no later than ten (10) business days after Buyer is given a Sold Notice. Sellers shall provide unsigned copies of any documents of transfer or other necessary settlement documents to the Buyer within two (2) business days of receiving the Sold Notice. In order to conduct settlement, the Buyer shall send or wire the full purchase price (minus any deposit previously paid) to the Seller's account pursuant to payment information provided no later than 48 hours after a Sold Notice is issued (or earlier if a deposit is required). Upon receipt of the full purchase price, the Seller shall send the fully executed settlement documents, as appropriate, to Buyer by overnight mail at Seller's expense. All returns and refunds must be handled directly by the Buyer and Seller. Refer to section 3.3(e) for information on the Enforcement of Buyer and Seller Contract Obligations.
2.5 BANKRUPTCY CLAIMS SETTLEMENT
(a) Services of Closing Agent; Settlement. For Bankruptcy Claims settlement, Auction-Equipment.com or its agent (the "Closing Agent") may provide services as a closing agent in connection with the trading of bankruptcy claims. The Closing Agent facilitates the exchange of documents between a Buyer and a Seller, directs Buyer and Seller with respect to the disbursement of funds, and facilitates consummation of the exchange transaction between Buyer and Seller.
A Member must complete and return the Agreement for Electronic Signature within 48 hours of the close of the Bankruptcy Claims auction. This Agreement provides for your informed consent to the electronic execution of documents. Buyers are also required to transmit funds, and provide any additional documentation not already provided to Auction-Equipment.com for the Closing Agent, within 48 hours of the close of the auction. Once all required information and the necessary funds have been received by the Closing Agent, settlement should be completed within 7 business days.
Members should read carefully all of these Terms of Service and the provisions that specifically apply to settlement of Bankruptcy Claims auctions because clicking on "I agree" below, or participating in a Bankruptcy Claims auction constitutes your acceptance of, and agreement to be bound by, these Terms of Service, including the provisions herein related to settlement. (See also paragraph 1.1 above.) Neither the Closing Agent nor Auction-Equipment.com shall be liable under any theory of law or in equity if Buyer or Seller fails to comply in all respects with the Terms of Settlement.
See Section 5.7 for important information regarding the resolution of disputes with respect to settlements for Bankruptcy Claims auctions.
For more information on the Bankruptcy Claims settlement process, please refer to the Bankruptcy Claims FAQ.
(b) Limitation of Liabilities. In addition to the provisions of Articles IV and V below, which shall apply to the services provided pursuant to this Section 2.4, the following important limitations and caveats apply.
NEITHER THE CLOSING AGENT NOR Auction-Equipment.com MAKE REPRESENTATIONS, AND NEITHER HAVE ANY RESPONSIBILITY REGARDING THE VALIDITY, SUFFICIENCY, ACCURACY, GENUINENESS OR AUTHENTICITY OF ANY SIGNATURES OR DOCUMENTATION. MEMBER UNDERSTANDS AND AGREES THAT NEITHER THE CLOSING AGENT NOR AUCTION-EQUIPMENT.COM, IS EXPECTED TO CONDUCT, AND MEMBER IS NOT RELYING ON THE CLOSING AGENT OR Auction-Equipment.com, INC. TO CONDUCT, ANY DUE DILIGENCE REVIEW WITH RESPECT TO SIGNATURES OR THE DOCUMENTATION OR ANY INFORMATION SUPPLIED BY ANY MEMBER. NEITHER THE CLOSING AGENT NOR AUCTION-EQUIPMENT.COM. MAKES ANY REPRESENTATION REGARDING THE VALIDITY OF ANY CLAIM OR THE SUFFICIENCY OF ANY CONSIDERATION PAID FOR ANY CLAIM.
IN NO EVENT SHALL THE CLOSING AGENT OR AUCTION-EQUIPMENT.COM., OR ANY OF THEIR RESPECTIVE EMPLOYEES OR AFFILIATES, BE LIABLE FOR DAMAGES GREATER THAN $100. MEMBER ACKNOWLEDGES THAT THE SERVICES OF THE CLOSING AGENT ARE BEING PROVIDED FREE OF CHARGE AND THE LIMIT OF LIABILITY REFLECTS THE FACT THAT THIS SERVICE IS BEING PROVIDED AS AN ACCOMMODATION TO MEMBER. NEITHER THE CLOSING AGENT NOR AUCTION-EQUIPMENT.COM SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NEITHER THE CLOSING AGENT NOR AUCTION-EQUIPMENT.COM AND THEIR RESPECTIVE AGENTS WILL BE LIABLE FOR LOSSES CAUSED, DIRECTLY OR INDIRECTLY, BY GOVERNMENT RESTRICTION, COMPUTER OR TELEPHONE FAILURES, WAR, GOVERNMENT RESTRICTION, STRIKES, OR ANY OTHER CONDITIONS BEYOND ITS CONTROL. NEITHER THE CLOSING AGENT NOR AUCTION-EQUIPMENT.COM WARRANT THAT THEIR SERVICES WILL BE AVAILABLE 100% OF THE TIME OR THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE.
III. RESPONSIBILITIES OF BUYERS AND SELLERS
3.1 WHO CAN BID?
Bidders must register with Auction-Equipment.com as a Member and be capable of forming legally binding relations under applicable law. The services provided by Auction-Equipment.com are not available to individuals under the age of 18 years old and any other individuals who are legally prohibited from, or otherwise incapable of, entering into binding contracts. Sellers may not manipulate prices of auctions by bidding on their own used equipment and/or parts & attachments or having others bid on their used equipment and/or parts & attachments for them.
All auction bidders agree to use escrow.com if they are the winning bidder as their escrow service provider for full payment of used equipment purchase at Auction-Equipment.com. Escrow is already setup as the escrow provider at Auction-Equipment.com. There is no need to setup another account with Escrow.com.
3.2 WHO CAN SELL?
Sellers must be the rightful owners or authorized by the owners of such property, a court of law, or through power of attorney to sell an used equipment. Sellers must produce evidence of ownership and/or authorization to sell an used equipment upon request of Auction-Equipment.com or a Buyer. In addition, Auction-Equipment.com may require a Seller to pay for a UCC lien search or other due diligence to be conducted with respect to an used equipment prior to listing the used equipment on the Site.
3.3 CONTRACTUAL OBLIGATIONS OF BUYERS AND SELLERS
(a) Terms of Service As Contract. These Terms of Service, together with any additional conditions of sale provided by a Seller for a particular used equipment disclosed on the Site, comprise a contract between a Seller and the winning Bidder in any completed auction. By bidding on an used equipment a Bidder agrees, and by listing an used equipment on the Site, a Seller agrees, to be bound by these Terms of Service and the Seller's conditions of sale included in the used equipment's description, so long as those conditions of sale are not in violation of these Terms of Service or unlawful. In the event of any direct conflict between these Terms of Service and any conditions of sale provided by a Seller, these Terms of Service shall control, except that in the event of a direct conflict regarding the timing and requirements of settlement provided in the Section entitled "Settlement of Transactions" above, the Seller's conditions of sale shall control with respect to such provisions.
(b) Offer and Acceptance - Binding Contract Between Buyer and Seller. A bid made by a Buyer is an offer to purchase the used equipment from the Seller at the stated bid price. The bid is an irrevocable offer, subject only to material changes in the description of any used equipment made after such bid is placed by a Buyer. Buyers are required to conduct any research or due diligence of any used equipment prior to making a bid (See "Other Responsibilities of Bidders/Buyers" below). All used equipment and/or parts & attachments are listed and sold on an "as is" "where is" basis, unless otherwise indicated by the Seller on the auction listing. If a Buyer bids on any used equipment and that bid represents the highest bid for that used equipment, and the highest bid is at or above the Seller's minimum and/or reserve price (whichever is higher), the Buyer's bid is deemed accepted by the Seller (subject to these Terms of Service, including the right of a Buyer to change or retract a bid in the event of a material change in the description of the used equipment, as set forth below), except for an exceptional circumstance, such as a typographical error. Once the Seller accepts a Buyer's bid, the Buyer is obligated to purchase the used equipment at the price he/she offered and pursuant to these Terms of Service and the Seller's conditions of sale. If a Seller receives at least one bid at or above the Seller's stated minimum price (or in the case where the Seller has set a reserve price, at or above the reserve price), the Seller is obligated to complete the transaction with the highest Bidder upon the completion of the bidding, unless there is an exceptional circumstance, such as a clear typographical error or other conditions stated in these Terms of Service. In the case of a sale of any used equipment and/or parts & attachments from a bankruptcy estate, a sale is not final until a bankruptcy court gives final approval of the sale (see "Other Conditions of Purchase and Sale"). The Seller's conditions of sale may provide for a specific form of purchase agreement to be executed by the Seller and winning Bidder after the auction closes. In the absence of a specific form being provided by the Seller in the conditions of sale, the Seller or the winning Bidder may request that the parties execute a standard form of purchase agreement, consistent with these Terms of Service and the Seller's conditions of sale, to memorialize and confirm the agreement between the parties. Sellers and Buyers agree to act reasonably and in good faith in negotiating and entering into a written purchase agreement if requested by either party.
(c) Material Change in Description of used equipment. In the event a Seller materially changes the description of an used equipment after the commencement of the bidding process, then all Bidders who have previously made a bid on such used equipment will be notified by e-mail that the description of the used equipment has been materially changed. Such Bidders will then have three business days (or another period provided in a notice to such Bidders) to amend or retract his/her/its bid, after which time all bids will remain irrevocable.
(d) Other Conditions of Purchase and Sale. All purchases and sales of used equipment and/or parts & attachments and use of the Site by Members shall be conducted in compliance with applicable law. Purchases made on the Site are entirely without recourse to Auction-Equipment.com. All Members acknowledge and agree that closing of all sales of used equipment and/or parts & attachments may be subject to final approval of a court (including a bankruptcy court) or other agency and that if such approval is not obtained, the Seller may withdraw such used equipment after a completed bidding process without any recourse or liability on the part of Seller. In the case of a sale of any used equipment and/or parts & attachments from a bankruptcy estate, a sale is not final until a bankruptcy court gives final approval of the sale. As with any sale of bankruptcy used equipment and/or parts & attachments, third parties involved with a bankruptcy estate may object to a sale of used equipment and/or parts & attachments.
(e) Enforcement of Buyer and Seller Contract Obligations. All Members are third party beneficiaries of these Terms of Service, and Buyers and Sellers shall be entitled to enforce against each other the provisions hereof and may pursue legal action against each other for non-performance of any provision hereof, including without limitation, non-performance of a purchase and sale after a completed bidding process. In addition, Auction-Equipment.com retains the right to terminate a Member's rights to use the Site in the event a Member violates these Terms of Service.
(f) The Site is a venue for Sellers to list properties and Bidders to bid on properties. used equipment and/or parts & attachments is not involved in the actual transactions between Bidders and Sellers and does not assume responsibility nor have control over the quality of the used equipment and/or parts & attachments offered on the Site, nor for actions or omissions of Bidders or Sellers. Any offer made on the Site is invalid where prohibited by the law of the governing jurisdiction. used equipment and/or parts & attachments does not act as a broker in real estate transactions. Pursuant to the Terms of Service for the Site, and to the extent permitted by various state and local laws, Auction-Equipment.com provides no due diligence and/or inspections, except as otherwise set forth on the Site. Buyers acknowledge that all information concerning any property listed on the Site is provided by Sellers and that Auction-Equipment.com provides the technology for the listing and the auction service. In the event you need assistance with respect to properties, due diligence or local real estate issues, either as a Bidder or a Seller, please contact a licensed real estate broker. All Bidders or Sellers should seek the advise of a licensed attorney with respect to any questions the legal force and effects of these Terms of Service.
3.4 OTHER RESPONSIBILITIES OF BIDDERS/BUYERS
(a) Conducting Due Diligence. Unless otherwise indicated by the Seller in the auction listing, all used equipment and/or parts & attachments are listed and sold on the Site on an "as is" "where is" basis and subject to the Disclaimer of Warranties contained in paragraph 5.1. Bidders are required to conduct any necessary research or due diligence of any used equipment that they wish to conduct prior to making a bid. Bidders wishing to physically inspect used equipment and/or parts & attachments seen on the Site may make arrangements to do so at Seller's discretion. The Seller's terms of sale and/or description of an used equipment shall contain information regarding inspections and other due diligence opportunities available. However, in the case of any used equipment such as a promissory note, mortgage, or other used equipment that involves a payer or debtor or other third party that is not a Seller and not part of the purchase and sale transaction on this Site, then Bidders are strictly prohibited from contacting such payers, debtors, or other third parties until the bidding is complete, the winning Bidder has paid for the used equipment in full, and the purchase and sale of the used equipment is settled. In these types of purchases, Buyers are encouraged to seek the advise of an attorney to ensure compliance with all state and federal laws related to the purchase and enforcement of a debt. Permitted due diligence includes, but is not limited to, reviewing the Seller's description of an used equipment, as well as reviewing land records, tax records, appraisals, and other publicly available sources.
(b) Completing a Settlement. After the online bidding is complete, unless otherwise indicated/engaged, Buyers are responsible for taking all necessary actions to complete the sale once a Sold Notice is given to Buyer. Auction-Equipment.com retains the rights to terminate a Buyer's rights to use the Site in the event a Buyer fails to perform its obligations to settle on a completed auction.
(c) The Bidder is obligated to make any necessary examinations or property inspections within a 24 hour period once the used equipment, parts and/or attachment arrives to them by a transporting company organized by Auction-Equipment.com or if the Buyer coordinates it own transporting and picks-up of the bought item(s) then, possession starts at the point of pick-up and the Buyer will have 24 hours to submit any disputes or the Buyers waives this right . If there is a 90 Day Power Train Warranty provided on the piece of used equipment that you bought or was part of the deal then, the warranty will start at the time it arrives to you. If warranty is not included and clearly stated by Auction-Equipment.com on the particular used equipment that you successfully bid on and won online then, there is no expressed or implied warranty by Auction-Equipment.com regarding your purchase equipment. The purchase of properties on the Site is also subject to the specific terms and conditions of the Seller and/or the auction. Each Bidder is obligated to review the specific terms and conditions of the Seller and/or the auction, and such Bidder’s participation in the auction constitutes an agreement to the terms and conditions of such auction.
3.5 OTHER RESPONSIBILITIES OF SELLERS
(a) Description of used equipment and/or parts & attachments. Sellers must accurately describe used equipment and/or parts & attachments in a listing provided for inclusion on the Site and shall be liable for any misstatements or omissions in such description. Failure to accurately describe an used equipment could be fraudulent and could subject a Seller to civil and/or criminal liability, as well as being a violation of these Terms of Service. Auction-Equipment.com retains the right to terminate a Seller's rights to use the Site in the event a Seller includes material misstatements or omissions in any used equipment's description. Seller further agrees to indemnify used equipment and/or parts & attachments against any action brought against used equipment and/or parts & attachments by any person or entity arising out of or due to any action of the Seller whether said action is described herein or not, or may otherwise relate to any transaction between used equipment and/or parts & attachments, the Seller and any third party. Prior to listing any used equipment, Sellers shall provide to Auction-Equipment.com any terms or conditions of sale for particular used equipment and/or parts & attachments in addition to these Terms of Service.
(b) Compliance With All Applicable Laws. Sellers are also responsible for complying with all applicable local, state, federal, or foreign laws, rules, regulations and legal approvals regarding the sale of any used equipment and/or parts & attachments, including without limitation, bankruptcy court approvals, federal and state securities laws regarding the sale of any used equipment and/or parts & attachments that may be deemed a "security," Seller disclosure laws for any used equipment, including export licensing and laws governing the sale, packaging, shipment, distribution and labeling of products, published materials or information, and all other applicable local, state, federal, or foreign laws, rules and regulations pertaining to the sale of any used equipment and/or parts & attachments. Sellers are solely responsible for ensuring that all items offered for sale are offered in full compliance with any applicable legal limitations or restrictions.
(c) Linking With Other Web Sites or Information. Without the prior written consent of Auction-Equipment.com, no listing shall establish a link to any web site or other areas or include any advertisement or statement relating to any business, individual, organization, concept or entity.
(d) Accepting Risk of Buyer's Ability to Complete a Transaction. Auction-Equipment.com may provide Sellers with a range of services in an attempt to assure qualified legal Buyers. Such tools may include escrow, deposits, credit check and others. However, Sellers acknowledge and agree that these services and requirements are not a guarantee that Buyers are qualified Buyers. Auction-Equipment.com does not provide any representations with regard to the ability of Bidders to pay Sellers the bid price for the used equipment being sold.
(e) Completing a Settlement. After the online bidding is complete, unless otherwise indicated/engaged, Sellers are soley responsible for taking all necessary actions to complete the sale once a winning bidder is identified to the Seller. Auction-Equipment.com retains the rights to terminate a Seller's rights to use the Site in the event a Seller fails to perform its obligations to settle on a completed auction.
(f) Payment of Commissions and Fees to Auction-Equipment.com Unless otherwise agreed to by Auction-Equipment.com, payment of the Listing Fee and Premium Services fees (if selected) are due when the Seller completes the listing ("Sell any used equipment") process (these fees are not collected under optional eDeposit Payment Processing Services, and are therefore payable directly to used equipment and/or parts & attachments at the end of the listing process).
Success Fees/Commissions related to a completed auction are due to Auction-Equipment.com at the time that an auction ends and is marked as Sold. Unless the Seller elects to use eDeposit for Payment Processing Services or other payment terms are agreed to by Auction-Equipment.com. It is the Seller's responsibility to consummate the sale of the used equipment. In any event, if the Seller does not notify Auction-Equipment.com in writing of a winning bidder's failure to complete the transaction ("Non-Performing Bidder") within 30 days of the close of the auction, the commission is due in full. Please see our Fees and Commission Schedule for additional information regarding fees and commissions.
Unless otherwise agreed to by Auction-Equipment.com, all fees will be charged to the Seller's credit card account that is provided during the listing process. If this card is no longer valid at the time the auction ends and is marked as Sold, Auction-Equipment.com reserves the right to invalidate the auction unless the Seller has made alternate payment arrangements.
Any fees or charges not paid by the Seller within 30 days of provision of service will be subject to a late fee equivalent to the rate of 1.5% per month from the date of provision of service.
(g) Exclusivity. EXCEPT WITH RESPECT TO USED equipment LISTED IN THE ONLINE CATALOG, SELLER AGREES THAT AUCTION-EQUIPMENT.COM WILL BE THE SOLE VENUE FOR EACH LISTED USED equipment FOR THE TERM OF THE LISTING ONLINE OR OTHERWISE. SELLER MAY NOT DUPLICATE ANY LISTED ADS ON ANY OTHER ONLINE SITE OR THROUGH ANY OFFLINE SALES METHOD. IF A BUYER MAKES AN OFFER OUTSIDE OF THE AUCTION-EQUIPMENT.COM VENUE IT IS SELLER'S OBLIGATION TO HAVE THAT BIDDER REGISTER AND HAVE THAT BID SUBMITTED ON THE AUCTION-EQUIPMENT.COM SITE FOR THE AD IN QUESTION USING THE "INSTANT PURCHASE" FEATURE. AUCTION-EQUIPMENT.COM WILL PROVIDE THIS SERVICE FOR ABSENTEE BIDDERS UPON WRITTEN REQUEST. ONCE ANY USED equipment IS LISTED ON THE SITE, IF A SELLER SELLS THE USED equipment OUTSIDE THE AUCTION-EQUIPMENT.COM VENUE, THEN AUCTION-EQUIPMENT.COM SHALL BE ENTITLED TO RECEIVE THE FULL COMMISSION THAT IT WOULD HAVE RECEIVED IF THE USED equipment WERE SOLD ON THE SITE.
IV. RIGHTS AND RESPONSIBILITIES OF AUCTION-EQUIPMENT.COM
4.1 MODIFICATIONS TO TERMS OF SERVICE
Auction-Equipment.com may change these Terms of Service from time to time. Any amendment shall be effective immediately upon notice by e-mail, conventional mail service or posting on the Site. Member's continued use of the Site constitutes an affirmative: (1) acknowledgment by Member of these Terms of Service and any modifications; and (2) agreement by Member to abide and be bound by these Terms of Service, including any modifications. These Terms of Service may change at any at time and without notice. All changes will be posted on this Site. Both the Seller and Buyer acknowledge that they shall be solely responsible for obtaining updated information concerning changes to these Terms of Service. It is further acknowledged by the Member that the Terms of Service in effect at the time that a dispute shall arise shall control in all matters.
4.2 SUPERVISION OF CONTENT
Auction-Equipment.com reserves the right to supervise all material, content and information on its Site, including, but not limited to, used equipment and/or parts and attachment listings and bidding activity, to determine compliance with the Terms of Service and all current and future operating procedures and rules of conduct established by Auction-Equipment.com. Auction-Equipment.com reserves the right, at its sole discretion, to amend, edit, remove or otherwise block any material posted by a Member, which may violate any state, federal or local law or violate any aspect of these Terms of Service or which may otherwise jeopardize the business operations or goals of Auction-Equipment.com. Auction-Equipment.com shall not be responsible for material content and information contained on this Site, and all parties agree to hold Auction-Equipment.com harmless with regard to same pursuant to the limitation of liabilities contained in paragraph 5.2 and release and indemnifications contained in paragraph 5.6.
4.3 ADDITIONAL SERVICES
Auction-Equipment.com can, upon request, perform additional services associated with the fulfillment of an used equipment including, but not limited to valuation services, insurance, shipping, storage and securing of used equipment and/or parts & attachments. These services are subject to mutual written agreement by Member and Auction-Equipment.com.
4.4 TERMINATION OF MEMBER'S RIGHTS TO USE SITE
Auction-Equipment.com retains the right to terminate a Member's rights to use the Site for any reason, including, but not limited to a Member violates any aspect of these Terms of Service, including a Seller's conditions of sale, or takes any action which may otherwise jeopardize the business operations or goals of Auction-Equipment.com.
4.5 NATURE OF AUCTION-EQUIPMENT.COM RESPONSIBILITIES
Auction-Equipment.com agrees to act with respect to each Auction-Equipment.com transaction in accordance with these Terms of Service. The duties and responsibilities of Auction-Equipment.com and its affiliates shall be limited to those expressly set forth in these Terms of Service and it shall not be subject to, or obliged to recognize, any other agreement between, or direction or instruction of, any or all of the parties to any such Auction-Equipment.com transaction.
MEMBER ACKNOWLEDGES AND AGREES THAT AUCTION-EQUIPMENT.COM'S DUTIES ARE MINISTERIAL IN NATURE. AUCTION-EQUIPMENT.COM IS MERELY A FACILITATOR AND PROVIDES TRANSACTIONAL ASSISTANCE TO ITS MEMBERS AND IS NOT A PRINCIPAL TO ANY TRANSACTION. AUCTION-EQUIPMENT.COM SHALL NOT AND DOES NOT TAKE TITLE OR OWNERSHIP OF ANY PROPERTY OR FUNDS HELD BY IT. TITLE TO SUCH PROPERTY OR FUNDS SHALL BELONG TO THE SELLER OR BUYER, AS THE CASE MAY BE, AND SHALL BE HELD AND DISPOSED OF IN ACCORDANCE WITH THE TERMS AND CONDITIONS CONTAINED IN THESE TERMS OF SERVICE OR AS OTHERWISE AGREED UPON BETWEEN BUYER AND SELLER. ANY DISPUTES AND/OR DISAGREEMENTS BETWEEN BUYER AND SELLER MUST BE ADDRESSED BETWEEN BUYER AND SELLER, AND MEMBER EXPRESSLY AGREES NOT TO HOLD RESPONSIBLE AUCTION-EQUIPMENT.COM OR ANY OF ITS EMPLOYEES, REPRESENTATIVES OR AFFILIATES IN ANY WAY OR IN ANY MANNER. MEMBER ACKNOWLEDGES AND AGREES THAT NEITHER AUCTION-EQUIPMENT.COM NOR ANY OF ITS EMPLOYEES, REPRESENTATIVES OR AFFILIATES ENDORSES ANY OF THE USED equipment, PARTS AND/OR ATTACHMENTS THAT ARE TRANSFERRED THROUGH THE SITE AND THAT NEITHER AUCTION-EQUIPMENT.COM NOR ITS EMPLOYEES, REPRESENTATIVES OR AFFILIATES IS RESPONSIBLE FOR ANY DAMAGES TO GOODS DURING TRANSIT NOR FOR MISREPRESENTATIONS AND/OR BREACHES OF CONTRACT BY EITHER BUYER AND/OR SELLER. AUCTION-EQUIPMENT.COM AND ITS EMPLOYEES, REPRESENTATIVES AND AFFILIATES SHALL ALSO BE FULLY PROTECTED IN RELYING UPON ANY WRITTEN NOTICE, DEMAND, CERTIFICATE OR DOCUMENT, WHICH IT IN GOOD FAITH BELIEVES TO BE GENUINE. NEITHER AUCTION-EQUIPMENT.COM NOR ITS EMPLOYEES, REPRESENTATIVES OR AFFILIATES SHALL INCUR ANY LIABILITY WHATSOEVER, AND BOTH BUYER AND SELLER SHALL INDEMNIFY THE EMPLOYEES, REPRESENTATIVES AND AFFILIATES OF AUCTION-EQUIPMENT.COM, WITH REGARD TO THEIR CONDUCT IN OPERATING OR MAINTAINING THIS WEBSITE OR IN THE FULFILLMENT OF THEIR DUTIES AS EMPLOYEES, REPRESENTATIVES OR AFFILIATES OF AUCTION-EQUIPMENT.COM AS MORE FULLY DESCRIBED IN THE RELEASE AND INDEMNIFICATIONS CONTAINED IN PARAGRAPH 5.6.
V. OTHER PROVISIONS
5.1 DISCLAIMER OF WARRANTIES
MEMBERS EXPRESSLY AGREE THAT USE OF THE SITE IS AT A MEMBER'S SOLE RISK. THE SITE IS PROVIDED ON AN "AS IS" AND "AS AVAILABLE" BASIS. AUCTION-EQUIPMENT.COM EXPRESSLY DISCLAIMS ANY AND ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. AUCTION-EQUIPMENT.COM MAKES NO WARRANTY THAT THE SERVICES PROVIDED ON THE SITE WILL MEET A MEMBER'S REQUIREMENTS, OR THAT SUCH SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES AUCTION-EQUIPMENT.COM MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR AS TO THE ACCURACY OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE OR THAT DEFECTS IN ANY SOFTWARE WILL BE CORRECTED. AUCTION-EQUIPMENT.COM MAKES NO WARRANTY REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY MEMBER FROM AUCTION-EQUIPMENT.COM OR ANY OF ITS EMPLOYEES, REPRESENTATIVES OR AFFILIATES OR THROUGH THE SITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
5.2 LIMITATION OF LIABILITY
IN NO EVENT SHALL AUCTION-EQUIPMENT.COM OR ANY OF ITS EMPLOYEES, REPRESENTATIVES OR AFFILIATES BE LIABLE TO A MEMBER OR ANY OTHER PERSON OR ENTITY IN CONNECTION WITH THIS AGREEMENT FOR ANY ACTUAL, SPECIAL, CONSEQUENTIAL, INCIDENTAL OR RELIANCE DAMAGES (OR ANY LOSS OF REVENUE, PROFITS OR DATA), HOWEVER CAUSED, WHETHER FOR BREACH OF CONTRACT, NEGLIGENCE OR UNDER ANY OTHER LEGAL THEORY, WHETHER FORESEEABLE OR NOT AND WHETHER OR NOT A MEMBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY. BOTH PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK AND ARE REFLECTED IN THE FEES AGREED UPON BY THE PARTIES. FURTHER, AUCTION-EQUIPMENT.COM'S AGGREGATE LIABILITY ARISING WITH RESPECT TO MEMBER'S USE OF THIS SITE SHALL NOT EXCEED THE GREATER OF (A) $100 or (B) THE TOTAL AMOUNTS PAID BY THE MEMBER TO AUCTION-EQUIPMENT.COM UNDER ANY COMMISSION AGREEMENT IN THE 6 MONTHS PRIOR TO THE ACTION GIVING RISE TO LIABILITY. ADDITIONALLY, BOTH BUYER AND SELLER, RESPECTIVELY AGREE TO INDEMNIFY AUCTION-EQUIPMENT.COM AGAINST ANY AND ALL CLAIMS ARISING OUT OF THE LIMITATION OF LIABILITY CONTAINED HEREIN AND DESCRIBED MORE FULLY IN RELEASE AND INDEMNIFICATIONS CONTAINED IN PARAGRAPH 5.6.
5.3 NO RESALE OR COMMERCIAL USE OF THE SERVICES PROVIDED ON THE SITE
Member's right to use the Site is personal to Member. Member agrees not to resell or make any commercial use of the services provided on the Site, without the express written consent of Auction-Equipment.com. Member acknowledges that content appearing on the Site may be protected by copyrights, trademarks or other proprietary or personal rights and that applicable laws will govern the Member's use of such content. Member agrees that without the prior written consent of Auction-Equipment.com, Member shall not resell the Site, or the services provided on the Site, or use the Site for the transmission of commercial solicitations (other than an offer by Seller of used equipment and/or parts & attachments for sale) or for the receipt of responses to commercial solicitations (other than a Buyer's interest in purchasing used equipment and/or parts & attachments offered for sale through the Site). Member agrees not to, for a commercial purpose, upload, transmit, reproduce, distribute or participate in the transfer or sale, or in any way exploit, any content obtained through the Site. Member agrees not to use the Site for the transmission of (or receipt of responses to) chain letters, lotteries, gambling or pyramid schemes of any kind. Member agrees not to use the Site to disseminate any message in a broad-based mailing without the prior written permission of Auction-Equipment.com. Member agrees not to forge communications or take any other action that would disguise the origin of communications Member transmits through the Site. Member agrees not to permit another person to transmit communications that falsely identifies the Member's account as the origin of such communication. Nothing herein shall limit or prevent any Buyer from re-selling any used equipment purchased through the Site.
5.4 MEMBER CONDUCT
Member is solely responsible for the contents of his/her/its transmissions through the Site. Member's use of the Site is subject to all applicable local, state, national and international laws and regulations. Member agrees: (1) to comply with US law regarding the transmission of technical data exported from the United States through the Site; (2) not to use the Site for illegal purposes; (3) not to interfere or disrupt networks connected to the Site; (4) to comply with all regulations, policies and procedures of networks connected to the Site; and (5) to refrain from infringement on any material posted on the Auction-Equipment.com Web site, including information posted by other Members, that is copyrighted, patented, trademarked or similarly protected under proprietary rights or rights of privacy. Member agrees not to transmit through the Site any unlawful, harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature. Member further agrees not to transmit any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation. Attempts to gain unauthorized access to other computer systems are prohibited. Member further agrees not to use the Site in a manner that violates any Federal, state or local laws or statute, including but not limited to the sale of any regulated substances.
5.5 NOTICES - DEFINITIONS
Sold Notices and other notices given by Auction-Equipment.com shall be valid when sent by email to the email address registered with Auction-Equipment.com The term "Buyer", "Bidder", "Seller", and "Member" includes corporations, partnerships, persons, agents, representatives and any legal entity entitled to participate in the Site.
5.6 RELEASE AND INDEMNIFICATION
Notwithstanding any other release, agreement to “hold harmless” or indemnification contained herein, Member hereby further waives, releases, forgives, discharges and relinquishes any and all claims that Member now has or may have against Auction-Equipment.com, its affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives which are connected with, arise out of, relate to or are incidental to any Auction-Equipment.com transaction or the use of the Site. Member hereby agrees to indemnify, defend and hold Auction-Equipment.com, its affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives harmless from and against any and all claims, loss, damage, tax, liability and/or expense that may be incurred by Auction-Equipment.com, its affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives arising out of or in connection with the performance of its duties as described in this Agreement, including the legal costs, fees and expenses of defending itself against any claim by any or all of the parties to any Auction-Equipment.com transaction and/or by any other person and/or as a result of the Member taking any action or refraining from taking any action or instituting or defending any action or legal proceeding. Member further agrees to indemnify and hold Auction-Equipment.com, its affiliates, subsidiaries, parents, shareholders, directors, officers, employees, agents and representatives harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of Member's use of the Site, the violation of these Terms of Service by Member, or the infringement by Member, or other Member of the Site using Member's computer, of any intellectual property or other right of any person or entity.
5.7 RESOLUTION OF DISPUTES
(a) Resolution of Disputes Generally. MEMBER ACKNOWLEDGES AND AGREES THAT ANY DISPUTE INVOLVING AUCTION-EQUIPMENT.COM SHALL BE RESOLVED SOLELY IN ANY COURT OF COMPETENT JURISDICTION LOCATED IN BRANT COUNTY, PROVINCE OF ONTARIO. MEMBER FURTHER ACKNOWLEDGES AND AGREES THAT THEY SHALL BE RESPONSIBLE FOR ALL COSTS TO ENFORCE THIS AGREEMENT, INCLUDING REASONABLE ATTORNEY’S FEES AND COURT COSTS. MEMBER ADDITIONALLY ACKNOWLEDGES AND AGREES THAT THEY SHALL BE RESPONSIBLE FOR ALL COSTS ASSOCIATED WITH THE COLLECTION OF FEES DUE TO AUCTION-EQUIPMENT.COM, INCLUDING BUT NOT LIMITED TO ATTORNEY’S FEES, COURT COSTS PLUS AND OTHER FEES.
(b) Disputes Involving Settlement of Bankruptcy Claims Auctions. MEMBER AGREES THAT ANY DISPUTE ARISING UNDER THE TERMS OF THE BANKRUPTCY CLAIMS SETTLEMENT PROCESS BETWEEN BUYER AND SELLER WILL BE SETTLED BY ARBITRATION IN ACCORDANCE WITH THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION. ANY SUCH CONTROVERSY OR CLAIM SHALL BE ARBITRATED ON AN INDIVIDUAL BASIS, AND SHALL NOT BE CONSOLIDATED IN ANY ARBITRATION WITH ANY CLAIM OR CONTROVERSY OF ANY OTHER PARTY. THE DECISION OF THE ARBITRATOR SHALL BE BINDING AND JUDGMENT ON THE ARBITRATION AWARD MAY BE ENTERED IN ANY COURT OF APPROPRIATE JURISDICTION. ARBITRATION MUST BE INITIATED WITHIN ONE YEAR AFTER THE CAUSE OF ACTION AROSE.
5.8 NO AGENCY
Member and Auction-Equipment.com are independent contractors, and no agency, partnership, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these Terms of Service.
5.9 APPLICABLE LAW AND OTHER TERMS
These Terms of Service shall be governed by and construed in accordance with the laws of the Province of Ontario. If any provision(s) of these Terms of Service is held by a court of competent jurisdiction to be contrary to law, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the parties with the other provisions remaining in full force and effect. Auction-Equipment.com's failure to exercise or enforce any rights or provisions of these Terms of Service shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Auction-Equipment.com in writing. Member and Auction-Equipment.com agree that any cause of action arising out of or related to the use of the Site must commence within one (1) year after the cause of action arose; otherwise, such cause of action is permanently barred and Member and Auction-Equipment.com forever waives any such cause of action. |
HOME 
