Auction Terms & Conditions
Bidder Terms and Conditions - Hash Auctions LLC- Berryville, Virginia
These Bidder Terms and Conditions apply to auctions conducted by HASH AUCTIONS, LLC ("Auctioneer"), and constitute a legal, valid, binding, and enforceable contract between Auctioneer and each Bidder. These bidder terms and conditions also form the basis for the contract of sale between the Seller and the Buyer. For the purposes of these Bidder Terms and Conditions, the term "YOU" refers to each Bidder (as defined below).
1. Bidder Terms and Conditions; Posted Terms; Announcements at the Time of the Auction; Agreement to Be Bound. The Auction is conducted under and in accordance with these Bidder Terms and Conditions and any and all other terms and conditions posted on the Auctioneer website(s) and on the websites of any Online Auction Platform Provider(s) used by Auctioneer. The Auction is subject to any announcements or corrections by Auctioneer. By participating in the Auction in any way, YOU agree to be bound by, and to abide by, these Bidder Terms and Conditions.
2. Definitions. The following definitions apply to these Bidder Terms and Conditions:
"Auction" means an online auction sale conducted by Auctioneer.
"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" means the number or other identifier issued by Auctioneer to a Bidder.
"Bidder Registration" means the information provided by a prospective Bidder, and the process of registering such prospective Bidder to bid at the Auction, including the prospective Bidder's agreement to be bound by 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 an amount with respect to each Lot, calculated as a percentage of the Hammer Price, that is payable by the Buyer to Auctioneer for its own account.
"Contract Price" means an amount equal to the Hammer Price plus the Buyer's Premium.
"Delivery" means the transfer of possession a Lot or Lots 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 from its physical location during the Auction, or as indicated on Auctioneer's website, 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 will occur electronically at the end of timed (or extended) bidding.
"Hammer Price" means the High Bid amount recognized by Auctioneer with the Fall of the Hammer.
"High Bid" means the amount recognized by Auctioneer as the highest bid at the conclusion of bidding on a Lot.
"High Bidder" means the Bidder recognized by Auctioneer as having made the High Bid on a Lot.
"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 personal property put up 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 a Lot is put up at the Auction but is not sold, and Auctioneer passes on such Lot, withdraws the Lot, or declares a No Sale of the Lot.
"Online Auction Platform" means any hardware and/or software utilized to conduct the Auction online and to facilitate online bidding, including any associated, adjunct, and/or complementary websites, services, premiums, and promotions. Auctioneer may utilize one or more Online Auction Platforms.
"Online Auction Platform Provider" means the provider of an Online Auction Platform and related services. Auctioneer may utilize one or more Online Auction Platform Providers.
"Online Bidding Period" means any established period during which online bids may be tendered.
"Private Sale" means an event in which a Lot is sold (or gifted) by the Seller, or on the Seller's behalf, other than at the Auction.
"Private Sale Price" means the fair market purchase price of a Lot paid, or agreed to be paid, at a Private Sale in an arms-length transaction between the Seller and the purchaser. If a Lot 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 the Seller, the Private Sale Price will be an amount equal to the fair market value of the Lot in an arms-length transaction.
"Reserve" or "With Reserve" means that property put up at auction may be withdrawn by Auctioneer and/or bids may be rejected by Auctioneer prior to the Fall of the Hammer. It is not necessary for there to be a Reserve Price for an Auction to be With Reserve. UNLESS SPECIFICALLY AND EXPRESSLY STATED OTHERWISE BY AUCTIONEER IN WRITING, ALL LOTS ARE BEING SOLD WITH RESERVE.
"Reserve Price" means the minimum price that Seller is willing to accept for a Lot. If a Lot put up With Reserve is subject to a Reserve Price, the Lot will not be sold unless the Reserve Price is met or waived. It is not required for any Reserve Price to be disclosed.
"Winning Bid" means the highest bid received and accepted (and if Subject to Seller's Confirmation, confirmed by Seller).
"Winning Bidder" means the Bidder who is recognized by Auctioneer as having made the Winning Bid.
"Without Reserve" means Absolute.
3. Bidder Registration; Bidder Qualification. YOU must register to bid. Auctioneer may establish such Bidder Registration requirements and Bidder qualifications as Auctioneer determines, in its discretion, to be reasonably necessary or appropriate. In order to register to bid, 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 revoke the Bidder Registration or bidding privileges of any Bidder. 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 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. 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 on the 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 its absolute discretion, receive bids from a person or entity that has not registered to bid, and/or who has not satisfied all requirements for Bidder Registration, and/or that has not previously been granted bidding privileges, and, by bidding, such person or entity will be bound by these Bidder Terms and Conditions, any and all other terms and conditions posted on the Auctioneer website(s), 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 its Seller(s), and create no rights or interests in any other persons, including competing Bidders. Auctioneer and/or its Seller(s) may (but will not be required to) waive any Bidder qualifications, either globally or on a case by case basis.
4. Bids Received in the Commonwealth of Virginia. Notwithstanding YOUR physical location or the physical location of any Lot(s), all bids and payments are received in the Commonwealth of Virginia.
5. Buyer's Premium. A Buyer's Premium, or Buyer's fee, will be charged on all Lots. The Buyer's Premium, which will be paid by the Buyer to Auctioneer for its own account, will be calculated as a percentage of the Hammer Price for each Lot, and will be added to the Hammer Price to determine the final Contract Price. The Buyer's Premium will be ten percent (10%) of the Hammer Price for each Lot, and is earned by (and may be retained by) Auctioneer with the Fall of the Hammer.
6. Access to Online Auction Platform; Premises; Reviews. YOU assume all risks associated with YOUR access to the Auction, including the Online Auction Platform, the premises of Auctioneer, and any other physical location associated with Auctioneer or the Auction. Any person may be denied access to the Auction, the Online Auction Platform, and the premises of Auctioneer or any other physical location associated with Auctioneer or the Auction. Auctioneer reserves the right to post truthful reviews of Bidders, including blocked Bidders, on social media and elsewhere.
7. Nature of the Auction. Unless expressly stated otherwise in writing, the Auction will be With Reserve. Auctioneer may Withdraw any Lot prior to the Fall of the Hammer on such Lot.
8. No Bid Retraction. YOU may not retract a bid that has been acknowledged by Auctioneer or that has been 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 is disruptive and interferes with the Auction, and that, as an inducement for Auctioneer to accept YOUR Registration and to grant YOU bidding privileges, and for YOU to bid at the Auction, YOU agree not to withdraw or to attempt to withdraw any bid tendered by YOU.
9. Posted Times. All times are based on the Eastern Standard Time Zone ("EST"). Posted closing times and time displays are approximate. Auctioneer reserves the right, in Auctioneer's sole and absolute discretion, to close early or extend the Auction.
10. Handling of Online Bids; Maximum Bid Amounts. YOU may establish a maximum bid amount. Online Bids will ordinarily be initiated at an established opening bid amount or at the next bid increment, which amount may be less than YOUR maximum bid amount. Online bids will automatically be executed competitively up to the Fall of the Hammer (or other termination of the bidding). The receipt and execution of online bids will not create an agency relationship between Auctioneer and YOU.
11. Relationship of the Parties. Auctioneer is the agent of the Seller(s), and represents the Seller(s) exclusively. Auctioneer is not YOUR agent or representative, and is not acting on YOUR behalf.
12. Bid Increments. Auctioneer may establish bid increments, and may modify or change, bid increments.
13. Records. Absent clerical errors, the records of Auctioneer will be final and conclusive for all purposes.
14. Technology Disruptions. Auctioneer will not be responsible 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, (ii) errors in programming or set-up of the online Auction, (iii) breakdown, disruption, or failure of a Bidder's internet connection, computer, or system, or (iv) otherwise. Auctioneer may, but will not be required to, continue, suspend, delay, extend, reschedule, close, re-set, or re-start the Auction because of disruptions caused by technology failures or errors, even after bidding has commenced.
15. Failures by Online Auction Platform Provider and its Affiliates or Contractors. Auctioneer may use an Online Auction Platform Provider to facilitate the Auction. Under no circumstances will Auctioneer be liable for any failure of the Online Auction Platform Provider to perform all or any of its obligations, or for the failure of any affiliates, employees, agents, representatives, or contractors of the Online Auction Platform Provider to perform their obligations.
16. Auto-Extend Feature. Any Online Bidding Period may include an auto-extend feature. This means that, if an online bid is entered within one (1) minutes of the scheduled closing of the established Online Bidding Period, the Online Bidding Period will automatically be extended for an additional one (1) minutes, and will continue to be so extended until there is a set period of time that lapses during which no advancing online bids are received, after which bidding will close.
17. Disclaimer Regarding Online Auction Platform(s). Auctioneer makes no representations or warranties, and disclaims all representations and warranties, (i) that any Online Auction Platform(s) or any related website(s) or technology will be uninterrupted, error free or virus free, (ii) as to the results that may be obtained by using any Online Auction Platform(s) or any related website(s) or technology, or (iii) as to the accuracy, completeness, reliability, security, or current nature of any Online Auction Platform(s), or any related website(s) or technology.
18. Responsibility for Online Bids. YOU are responsible for all bids transmitted from YOUR computer or from YOUR Bidder Account. If a Winning Bid is sent from YOUR computer or using YOUR Bidder Account, YOU will be the Buyer on certification by Auctioneer.
19. Winning Bidders Subject to Final Certification by Auctioneer. The final determination of the Winning Bidder is subject to certification by Auctioneer, and any email or electronic message (whether generated manually or automatically) is subject to such certification.
20. Winning Bid; Buyer. Pursuant to these Bidder Terms and Conditions, the Bidder making the Winning Bid for any Lot, will be the Buyer of the Lot on final certification by Auctioneer.
21. All Property Sold "AS IS", "WHERE IS", and "WITH ALL FAULTS". ALL PROPERTY IS BEING OFFERED AND SOLD IN ITS "AS IS/WHERE IS" CONDITION AT THE TIME OF THE AUCTION, WITH ALL FAULTS, INCLUDING ANY HIDDEN DEFECTS OF ANY NATURE. NEITHER AUCTIONEER NOR ANY 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 PROPERTY. NO STATEMENT ANYWHERE, WHETHER EXPRESS OR IMPLIED, INCLUDING VERBAL STATEMENTS MADE BY AUCTIONEER, WILL BE DEEMED A WARRANTY OR REPRESENTATION BY AUCTIONEER OR ANY SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE ARE NO WARRANTIES OF TITLE, NON-INFRINGEMENT, AUTHENTICITY, ORIGIN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. YOU ACKNOWLEDGE AND AGREE THAT YOU CANNOT RELY ON, AND YOU HAVE NOT RELIED ON, ANY REPRESENTATION, WARRANTY, OR GUARANTY MADE BY ANY SELLER OR ANYONE ACTING AS AGENT OF A SELLER (INCLUDING AUCTIONEER), ORALLY OR IN WRITING, ABOUT ANY LOT. 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 HAVE WAIVED, YOUR INSPECTION AND INVESTIGATION (i) IN DETERMINING WHETHER TO BID, (ii) IN DETERMINING THE AMOUNT OF YOUR BID(S), AND (iii) IN BIDDING. IT IS YOUR RESPONSIBILITY TO DETERMINE CONDITION, AGE, GENUINENESS, VALUE, OR ANY OTHER DETERMINATIVE FACTORS REGARDING ANY LOT ON WHICH YOU BID.
22. Bidder's Inspection; Adequacy of Description and Images. YOU are encouraged to inspect the Lot(s), or to have the Lot(s) inspected by YOUR agent or representative before bidding. 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 guaranty made by any Seller or anyone acting as agent or representative of a Seller (including Auctioneer), and any photographs or other images of Lot(s) are adequate for YOUR purposes.
23. Description of Property. Unless otherwise expressly stated 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.
24. High and Low Estimates. If and to the extent that High Estimates and Low Estimates are used, they are merely a guide. You may not rely on High Estimates or Low Estimates as a prediction of the Hammer Price or the value of any Lot, or for any other purpose. High and Low Estimates are not a guaranty of price or value, and are not an indicator of the possible re-sale value of any Lot. High Estimates and Low Estimates do not include the Buyer's Premium.
25. Announcements. Announcements made, or posted, by Auctioneer on the day of, or during, the Auction are binding and take precedence over any prior advertisements or listings.
26. Bidding by or on Behalf of Seller(s). Seller(s) may not bid directly, or indirectly, on any of their Lot(s).
27. Conduct of the Auction. Auctioneer will regulate all matters relating to the conduct of the Auction and the decisions of Auctioneer will be final and binding. Auctioneer will have control over bidding, and Auctioneer will resolve any and all disputes. Auctioneer may, in Auctioneer's sole and absolute discretion, reopen the bidding (but will not be required to) if (i) a bid was tendered prior to the fall of the Hammer but went unnoticed by Auctioneer until called to Auctioneer's attention after the Fall of the Hammer or other termination of the bidding, or (ii) a technology disruption, failure, or error, caused a bid that was tendered, or attempted to be tendered, prior to the hammer from being received or recognized, or (iii) some other error or dispute occurs. Any contracts formed with the Fall of the Hammer will be subject to the conditions set forth in this Section. If bidding is reopened, the High 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.
28. Contract of Sale for Personal Property. No additional or further writing will be required to evidence the existence of a contract of sale for any Lot sold at the Auction regardless of the Hammer Price, and these Bidder Terms and Conditions, together with the records of Auctioneer identifying the Lot, the Hammer 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 each contract between a Buyer and a Seller.
29. Payment. All Lots must be paid for in-full at or before the pick-up date and time set forth in the specific Auction listing. Payment may be made in cash, by approved check, by credit card, by certified funds, or by wire transfer. Auctioneer may require that the payment of large amounts be made by certified funds or wire transfer. Purchases will be shipped only after payment has cleared. For Debit/Credit Cards payments, an Additional Buyer's Premium will be added five percent (5%) of the Total, and is earned by (and may be retained by) Auctioneer with the Fall of the Hammer.
30. Title. If YOU are certified as the Winning Bidder on a Lot by Auctioneer, YOU will be contractually obligated to pay the Contract Price for that Lot. However, title and ownership of the Lot will not pass from the Seller to YOU until payment is made and clears.
31. Delivery; Sales Tax. 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 Commonwealth of Virginia, or (ii) at such other location inside or outside the Commonwealth of 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 delivery, and to arrange for shipment of YOUR property to a location designated by YOU. 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 collected at the point of delivery as set forth in the specific Auction listing and these Bidder Terms and Conditions and will be remitted to the applicable taxing authorities. The foregoing notwithstanding, if another jurisdiction or taxing authority (including, without being limited to, the jurisdiction in which YOU reside, conduct business, or 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. 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.
32. Pick-up and Removal; Shipping; Insurance. YOU are responsible for pick-up and removal of Lot(s) purchased by YOU. Pick-up location and removal dates and times will be as posted on Auctioneer's website or otherwise announced by Auctioneer. Unless otherwise agreed, YOU are solely responsible for the disassembly, rigging, 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). Any Lot(s) shipped to YOU will be via a shipment contract free on board at the location at which the Lot(s) are handed over to the United States Postal Service, a common carrier, courier, or other delivery service as indicated in the Auction listing. Possession and risk of loss will pass to you at the point of shipment. YOU are responsible for insuring all Lots purchased by YOU.
33. Failure to Pick-up or Arrange for the Delivery; Abandoned Property; Storage. Any Lot(s) not removed within one (1) days after the Auction will be deemed abandoned to Auctioneer, even if paid for, and YOU will give up all rights with respect to such Lot(s). Under any circumstances, YOU are responsible for the full Contract Price of all Lots on which YOU are the Winning Bidder.
34. All Sales Final. ALL SALES ARE FINAL. NO REFUNDS OR RETURNS.
35. No Credit Card Chargebacks. YOU agree that such YOU will not, under any circumstances, 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 credit card chargeback is initiated, these Bidder Terms and Conditions will be conclusive evidence of YOUR agreement not to initiate a credit card chargeback; and YOU acknowledge and agree that on the presentation of these Bidder Terms and Conditions to the bank, credit card company, or other financial institution that issued the credit card on which charges were made, such bank, credit card company, or other financial institution will 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 initiate a credit card chargeback, even if successful, 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 any Seller(s) in challenging the credit card chargeback and in collecting payment. YOUR agreement not to initiate a credit card chargeback is a condition to YOUR Registration as a Bidder, and for the privilege of bidding at the Auction, and is being made as an inducement for Auctioneer to accept YOUR Registration and to permit YOU to bid at the Auction. Auctioneer is relying on YOUR agreement not to initiate a credit card chargeback in accepting YOUR Bidder Registration and in permitting YOU to bid at the Auction.
36. Claims. Unless otherwise provided in writing, after a Lot has been picked-up or removed by YOU or on YOUR behalf, no claims or returns will be allowed and there will be no adjustments or rescissions.
37. Third-Parties and Subsequent Purchasers. Auctioneer has no relationship with any third-parties or subsequent purchasers of 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.
38. Buyer's Remedies; Bidders/Buyers Not Entitled to Incidental or Consequential Damages. To the extent that YOU may be entitled to any remedies in connection with the Auction, the sole and exclusive remedy available to YOU is a return, from Seller, of (i) the Hammer Price actually paid, and (ii) an amount equal to the Buyer's Premium. Under no circumstances will Auctioneer or the Seller be liable for incidental or consequential damages, including, without being limited to lost profits or reduced productivity. YOU, further, acknowledge and agree that YOU are not entitled to specific performance or other equitable relief.
39. Seller's Remedies. If YOU breach any obligations under these Terms and Conditions or under a contract with a Seller, such property may be re-sold and YOU will be responsible for any and all damages, including any deficiency or reduction in the Contract Price, along with incidental damages.
40. Private Sale. YOU agree not to enter into a Private Sale transaction with the Seller(s) of any Lot(s) prior to or during the Auction. If YOU enter into a Private Sale transaction with the Seller(s) of any Lot(s) prior to or during the Auction, or within __________ (___) days after the Auction (for any Lot(s) not sold at the Auction), Auctioneer will be entitled to receive an amount equal to its full Commission and Buyer's Premium (calculated as a percentage of the Private Sale Price), together with reimbursable expenses; and YOU and the Seller will be jointly and severally liable to Auctioneer for the payment of such amounts.
41. 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.
42. Indemnification. YOU agree to indemnify Auctioneer, and to hold Auctioneer harmless, with respect to any damages claimed in connection with the Auction or purchases made at the Auction and with respect to any subsequent sale of Lots.
43. Email List; Agreement to Receive Email. YOU agree to be added to the email list maintained by Auctioneer. Each email Auctioneer sends will have an unsubscribe link at the bottom of the email. YOU agree not to report any email sent by or on behalf of Auctioneer as spam.
44. Governing Law; Dispute Resolution. These Bidder Terms and Conditions will be governed by and construed in accordance with the laws of the Commonwealth of Virginia, including its statutes of limitations, but without regard to its rules governing conflict of laws. If a dispute arises, the parties will submit to mediation; and, if a resolution is not reached through mediation, to binding arbitration. For mediation, the mediator will be a neutral party, mutually agreed on by the parties, and located within thirty (30) miles of Berryville, Virginia. If the dispute is not settled within thirty (30) days after submission to mediation, it shall be submitted to binding arbitration with a single neutral arbitrator, mutually agreed on by the parties. Arbitration will be conducted within thirty (30) miles of Berryville, Virginia. The time allotted for arbitration proceedings will be limited to a period of sixty (60) days, commencing on the date that the matter is submitted to arbitration. The decision rendered by the arbitrator will be final and binding on all parties, and will be non-appealable. All expenses incurred in connection with mediation and/or arbitration will be shared equally among all parties. Notwithstanding the foregoing, if the parties are unable to mutually agree to mediation or arbitration at a site within thirty (30) miles of the Town of Berryville, Virginia, the parties irrevocably agree to the exclusive jurisdiction of the courts located in the Town of Berryville, Virginia for the resolution of all disputes. If a dispute is submitted to civil litigation (other than mediation or arbitration), all expenses, including the reasonable attorney's fees of the prevailing party, will be fully and promptly paid by the losing party. YOU WAIVE THE RIGHT TO A JURY TRIAL.
Sebae Data Solutions, Inc.
SERVICE TERMS AND CONDITIONS
ACCEPTANCE OF TERMS
Sebae Data Solutions, (the makers of Auction Flex & HiBid (formerly Bidopia) hereafter referred to as "Sebae"), provides its service to you, subject to the following Terms & Conditions ("TAC"), which we may update from time to time without notice to you. The most current version of the TAC can be found found at any time by visiting the link: http://www.auctionflex.com/showtandc.ap
USE AND REGISTRATION
Our services are available only to, and may only be used by individuals who can form legally binding contracts under applicable law. Without limiting the foregoing, our services are not available to children (persons under the age of 18) or to temporarily or indefinitely suspended members. If you are under the age of 18, you can use this service only in conjunction with, and under the supervision of your parents or guardians. If you do not qualify, please do not use our service. If you are registering as a business entity, you represent that you have the authority to bind the entity to the TAC.
In consideration of your use of the Service, you agree to: (a) provide true, accurate, current and complete information about yourself as prompted by the Service's registration form (such information being the "Bidder Information") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. If you provide any information that is untrue, inaccurate, not current or incomplete, or Sebae has reasonable grounds to suspect that such information is untrue, inaccurate, not current or incomplete, Sebae has the right to suspend or terminate your account and refuse any and all current or future use of the Service (or any portion thereof).
DESCRIPTIONS OF SERVICE
Sebae provides the following services under the Auction Flex & HiBid trademarks: Integrated Web Service (for auctioneers), internet bidding (absentee, online-only, & webcast). You can learn more about these services in the following sections.
HIBID INTERNET AUCTION PLATFORM & WEB SERVICE DESCRIPTION
Sebae provides the HiBid (formerly Bidopia) Internet Auction Platform & Web Service ("HWS") under the HiBid trademark as a software solution for auctioneers wishing to extend the audience of their live auctions to the internet. The HWS provides various features including internet absentee bidding, internet-only auctions, and webcast auctions.
The HWS is able to changes its appearance to coincide with the website that it is powering. Accordingly, the HWS powers the www.hibid.com website as well as numerous Auction Flex customer websites. This ability to change appearance is a feature of the HWS. Much like internet merchant account providers can host a secure web page for a vendor to easily process payments, the HWS hosts certain portions of the auctioneer's website to easily enable advanced features such as internet bidding.
INTERNET ABSENTEE BIDDING
Internet absentee bidding allows you to place a bid for an item in advance of an auction. This allows you to place bids on lots without actually attending the auction.
Internet only bidding allows you to place a bid for an item prior to the auction lot closing online. In an internet-only auction there is no live auction.
Webcast auctions allow you to bid in real-time against other bidders or place pre-bids prior to a lot going "live".
Lots are sold in accordance with the Auctioneer's terms and conditions which are accessible from each lot's page. It is your responsibility to read and accept the Auctioneer's terms and conditions prior to placing your bid.
When you place a bid you are agreeing to be bound by the Auctioneer's & Sebae's terms and conditions. By placing a bid you are entering into a legally binding and enforceable contract. Please keep in mind that you are bidding against other internet bidders as well as floor bidders, phone bidders, and regular absentee bidders (this list does not constitute a complete list of bidder types but does highlight the common bidder channels).
The auctioneer, at their discretion, can approve or deny bidders. The auctioneer reserves the right to accept or deny bidders for any reason. Prior to approval the auctioneer may contact you to determine your credit worthiness. If the auctioneer approves your bid, the auctioneer will then process your bid in accordance with their terms and conditions.
Should your bid for a lot prove successful, the auctioneer may contact you to arrange for payment & shipping (if applicable). If the auctioneer required registration via a credit card, the auctioneer reserves the right to process your winning bids to the credit card provided during registration.
Sebae, through the Auction Flex & HiBid products & services, facilitates the internet bidding process between the Auctioneer & the bidder. Sebae is in no way a party to the transaction. Because Sebae is not a party to the transaction, you accept that you will have no claim or cause of action against Sebae in respect of the sale (or non-sale) of any Lot. If you have a dispute with an Auctioneer or another user of the Service with regard to the sale (or non-sale) of any Lot you agree that Sebae, its officers, agents, employees will not be liable for losses (including, but not limited to, loss of profits, special loss, indirect loss and consequential los), costs, damages, liabilities, claims, demands and expenses of any kind arising out of or connected with such dispute. You also accept that none of the aforementioned are under any obligation to take any action to resolve any dispute between you and an Auctioneer
Sebae is not responsible for any typographical, pictorial or technical errors in information about Lots on the Site as provided by Auctioneers. Sebae does not evaluate Lots and does not act as a specialist or expert on any related subject matter. Sebae makes no warranties or representation of any kind or nature with respect to Lots (including but not limited to representations or warranties as to the accuracy of description, genuineness, quality, authorship, attribution, provenance, period, culture, source, origin or safety). If you have any questions, e-mail the Auctioneer directly. In particular, make sure that you understand the Auctioneer's payment terms and shipping terms.
The Service requires you to login with your username and password prior to placing a bid on a Lot. Making bids with false information or with stolen credit card information is prohibited and illegal.
Your user name and password are required in order to place internet bids. Making bids in a false name or with an invalid or stolen credit card is prohibited. Each bid carries the computer coding of the Internet provider which allows the individual user to be traced and Sebae may at its discretion release this information to enable legal action to be taken. Sebae may, in its entire discretion, refuse or remove bids where it suspects that bids contravene this prohibition. By placing a bid, you are making a binding and irrevocable offer to purchase the Item at any price up to the maximum bid amount you submit. If you win, you must complete the transaction, subject to any contractual right or other right at law to rescind the contract in certain circumstances. Failure to complete transaction without lawful reason is not only a breach of your contract with the Seller but also a breach of this User Agreement.
The amount bid can be increased but cannot be decreased. The auctioneer may, at their discretion, allow you to withdraw and resubmit a bid in the case of bids containing an obvious typographical error. You may forward a request to withdraw a bid and resubmit a correct bid by immediately sending an email to the auctioneer, however, there is no guarantee that any bid will be withdrawn. Although Sebae will use best efforts to forward all bids, Sebae does not accept any responsibility for lost bids or problems with the recipient auctioneer's ability to process your bid. Moreover, Sebae cannot guarantee that bids received will be processed by the individual auctioneers.
Please note that Sebae's role is limited to the provision of the Site for dissemination and publication of information provided by the Sellers.
THE WINNING BID
The winning bid in an auction will be the highest bid that exceeds any reserve (if a reserve exists). In the case of equal bids, the earliest bid received will be the winning bid. If a higher bid is subsequently withdrawn or removed then the auctioneer shall have the right to accept the next highest bid.
NOTICE OF END OF SALE, PAYMENT & SHIPPING
After the sale has ended, the auctioneer will notify the winning bidder via phone, fax or mail that they have won. If you do not receive notice that you have made the winning bid and think that you are the top bidder, you should check with the auctioneer directly. You will make all payment for Items to the auctioneer in accordance with their terms and conditions.
BUYER'S PREMIUM, TAXES AND DUTIES
If you are a successful bidder, you are responsible for paying any buyer's premium, taxes and duties (including any VAT, sales tax and import duties) that may be imposed on the final price paid for an Item. Accordingly, it is your responsibility to check the applicable taxes and duties that may be imposed on an Item prior to bidding for it.
All material and content as provided by the Service is protected by copyright and similar rights. You can not use or make available any of that material for any commercial purpose.
SPECIAL ADMONITIONS FOR INTERNATIONAL USE
Recognizing the global nature of the Internet, you agree to comply with all local rules regarding online conduct and acceptable content. Specifically, you agree to comply with all applicable laws regarding the transmission of technical data exported from the United States or the country in which you reside.
DISCLAIMER OF WARRANTIES
You expressly understand and agree that:
a. Your use of the service is at your sole risk. The service is provided on an "as is" and "as available" basis. Sebae expressly disclaims 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.
b. Sebae makes no warranty that (i) the service will meet your requirements, (ii) the service will be uninterrupted, timely, secure, or error-free, (iii) the results that may be obtained from the use of the service will be accurate or reliable, (iv) the quality of any products, services, information, or other material purchased or obtained by you through the service will meet your expectations, and (v) any errors in the software will be corrected.
c. Any material downloaded or otherwise obtained through the use of the service is done at your own discretion and risk and that you will be solely responsible for any damage to your computer system or loss of data that results from the download of any such material.
d. no advice or information, whether oral or written, obtained by you from Sebae or through or from the service shall create any warranty not expressly state in the TAC.
LIMITATION OF LIABILITY
You expressly understand and agree that Sebae shall not be liable for any direct, indirect, incidental, special, consequential or exemplary damages, including but not limited to, damages for loss of profits, goodwill, use, data or other intangible losses (even if Sebae has been advised of the possibility of such damages), resulting from: (i) the use or the inability to use the service; (ii) the cost of procurement of substitute goods and services resulting from any goods, data, information or services purchased or obtained or messages received or transactions entered into through or from the service; (iii) unauthorized access to or alteration of your transmissions or data; (iv) statements or conduct of any third party on the service; or (v) any other matter relating to the service.
EXCLUSIONS AND LIMITATIONS
Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations of of the previous two sections titled 'Disclaimer of Warranties' and 'Limitation of Liability' may not apply to you.
You agree to indemnify and hold Sebae harmless from any claim or demand, including reasonable attorneys' fees, made by any third party due to or arising out of your breach of this Agreement or the documents it incorporates by reference, or your violation of any law or the rights of a third party.
You shall comply with all applicable domestic and international laws, statutes, ordinances and regulations regarding your use of our service and your bidding on, listing, purchase, solicitation of offers to purchase, and sale of items.
The TAC constitute the entire agreement between you and Sebae and govern your use of the Service, superseding any prior agreements between you and Sebae. The TAC and the relationship between you and Sebae shall be governed by the laws of the State of Florida without regard to its conflict of law provisions. You and Sebae agree to submit to the personal and exclusive jurisdiction of the courts located within the county of Marion, Florida. The failure of Sebae to exercise or enforce any right or provision of the TAC shall not constitute a waiver of such right or provision. If any provision of the TAC is found by a court of competent jurisdiction to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and the other provisions of the TAC remain in full force and effect. You agree that regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to use of the Service or the TAC must be filed within one (1) year after such claim or cause of action arose or be forever barred.