SURPLUS ASSET AUCTIONS, LLC
TERMS AND CONDITIONS
By using this Auction Site (this “Site”) or any services of Surplus Asset Auctions, LLC (“Auctioneer”), you accept, acknowledge and agree that the following terms and conditions (collectively, these “Terms”) will govern all matters arising from or relating to the use of this Site or any of Auctioneer’s services, and that you will abide by and be bound by these Terms. No purchase order, order acknowledgement or other document or communication issued by any user of this Site will amend or terminate the applicability of any of these Terms, even if such document or other communication is accepted by Auctioneer.
These Terms may be modified by Auctioneer at any time, with or without prior notice, by amending these Terms as they appear on Auctioneer’s website, by including other or additional terms in auction catalogs or descriptions made available by Auctioneer in connection with an auction, or by other information made available on Auctioneer’s website or posted or otherwise announced by Auctioneer in connection with a given auction.
A. Purpose of Site
This Site is intended to provide a venue for the purchase and sale of auctioned items. Auctioneer merely facilitates private transactions between Sellers and Bidders in an online format. Auctioneer is not responsible for the actions, errors or omissions of any Seller or Bidder.
B. Site Exclusively for Registered Users
In order to be eligible to use this Site, you must be at least 18 years of age and be a registered user of this Site.
You may become a registered user of this Site by clicking on “Become a Member” on the home page of Auctioneer’s website, and then completing the instructions to obtain a Member ID and Password. You will need your Member ID and Password to bid on auctioned items. Registration is free.
Users of this Site are prohibited from sending unsolicited emails (i.e., spam) to other users of this Site.
Auctioneer reserves the right, in its sole discretion, to terminate the status of any registered user, with or without prior notice. Additionally, Auctioneer has the right, but not the obligation, to take action against any person or entity that engages in any unlawful or improper conduct in connection with its use of this Site.
C. Condition of Items Offered for Sale
Before bidding on an item, it is a Bidder’s obligation to fully familiarize itself with the item, determine any additional costs that may be incurred in purchasing the item (e.g., sales taxes, shipping costs), and confirm that the Bidder wishes to purchase the item. A winning Bidder is responsible for all sales taxes, impositions and other charges of all federal, state and local government authorities.
Auctioneer is not responsible for the accuracy, genuineness or authenticity of any descriptions, photographs, representations or warranties provided by a Seller regarding any item. If a Bidder wishes to learn more about any item, the Bidder should e-mail its questions to the Seller or contact the Seller to arrange a time to conduct an on-site inspection of the item. Unless otherwise expressly stated in writing by Seller, all items are offered for sale “AS IS, WHERE IS, WITH ALL FAULTS.” No sale will be set aside due to any incorrect or incomplete information provided by the Seller.
Auctioneer is not responsible for any communications between the Seller and Bidders. Auctioneer makes no representation or warranty regarding any item, and expressly disclaims any and all representations and warranties regarding all items, both written and oral, including, without limitation, all express and implied warranties of quality, quantity, weight, dimensions, specifications, year, model, condition, performance, usability, suitability, merchantability, and fitness for a particular purpose or use.
Every auctioned item has a Minimum Opening Bid Amount, which is set by the Seller.
Every auctioned item also has a Minimum Bid Increment, which is set by Auctioneer’s software system. The software system is designed to reject any bid which is lower than the Minimum Opening Bid Amount, or which does not increase a current bid by at least the Minimum Bid Increment. For example, if a Minimum Bid Increment is $100, and a Bidder increases a current bid by $50, the bid will not be accepted.
If an inappropriate bid is placed, a Bidder will be advised that its bid has not been accepted, and will be provided with an option to correct the bid. Any current high bidders who are overbid as a result of a corrected bid will be notified via email.
On items with a quantity of one (1), a Bidder may place a Maximum Bid, which is sometimes referred to as a proxy bid. A Maximum Bid is confidential, and will be used by our software system to automatically increase a Bidder’s bid if the bid is exceeded by another Bidder. Our software system will only increase a Bidder’s last bid by the amount required to outbid the current high bidder, in accordance with the Minimum Bid Increment. This feature allows Bidders to have our software system bid on their behalf, without having to constantly monitor the auction.
When a Bidder places a bid, the Bidder is making an irrevocable, legally binding offer to purchase the item for an amount equal to that bid. If a Bidder’s bid is the high bid and is accepted by the Seller, the Bidder is legally obligated to complete the transaction. A winning Bidder’s failure to complete a transaction constitutes a breach of these Terms and may be grounds for legal action by the Seller, as well as grounds for the suspension or termination of the Bidder’s status as a registered user.
Bidders may not directly or indirectly take, or attempt to take, any action intended to circumvent these Terms or compromise Auctioneer’s right to receive a Buyer’s Premium in accordance with these Terms. Without limiting the foregoing, Bidders may not contact or otherwise communicate with any Seller for the purpose of purchasing directly from such Seller any item available for purchase on this Site.
E. Reserve Price Auctions
Auctions may be conducted with Reserve Prices. A Reserve Price is the lowest price that the Seller is willing to accept for an item. A Reserve Price is not disclosed to Bidders. This feature allows a Seller to list an item at a lower Minimum Opening Bid Amount without being obligated to sell the item until the bidding reaches the Reserve Price. A Seller sometimes utilizes this feature to encourage bidding on an item. Where there is a Reserve Price, the Auctioneer reserves the right to bid on behalf of the Seller. When the bid of any Bidder reaches or exceeds the Reserve Price, an indication is displayed showing that the Reserve Price has been met.
F. Buyer’s Premium
Auctioneer has the right to impose a Buyer’s Premium on all items sold at auction. The Buyer’s Premium is a percentage that is added the purchase price of any item, and is payable by the winning Bidder. The Buyer’s Premium is always explicitly disclosed on the auction site.
G. Becoming a Seller
A Seller should consider setting the Minimum Opening Bid Amount as reasonably low as possible. A Minimum Opening Bid Amount that is too high may discourage Bidders from making any bid at all. However, a Seller should recognize that the Seller may be required to accept the Minimum Opening Bid Amount as the purchase price for the item if that is the lowest bid, unless a Reserve Price has been set.
Our software system will automatically set the Minimum Bid Increment for an item, based on the Minimum Opening Bid Amount.
A Seller is irrevocably, legally obligated to accept the high bid for an item – unless a Reserve Price has been set, but not met. If the high bid for an item is at or above the Minimum Opening Bid Amount (or, where applicable, the Reserve Price), the Seller is legally required to complete the transaction.
Bidders expect that all information provided by a Seller regarding an item will be accurate and not misleading. This includes all descriptions, photographs, representations and warranties. Additionally, Sellers should make clear all arrangements that a successful Bidder will need to make to obtain possession of the item, as well as all additional costs the successful Bidder may incur (e.g., sales tax, shipping charges). Moreover, Sellers should respond promptly and truthfully to Bidders’ questions.
When choosing to use our site to auction agreed-upon items, Seller is designating Auctioneer’s site as the sole and exclusive means for the sale of such items until the end of the auction and the consummation of any qualifying bids for such items. Sellers may not directly or indirectly take, or attempt to take, any action intended to circumvent these Terms or compromise Auctioneer’s right to receive a Buyer’s Premium in accordance with these Terms.
H. Certain Rights and Disclaimers of Auctioneer
Auctioneer reserves the right, in its sole discretion, to alter the order and conduct of any auction, offer items for sale in groups or lots, subdivide any groups or lots into two or more selling groups or lots, withdraw any item from an auction, sell items not listed in any auction, and reject any or all bids.
The Internet is a fragile environment. Auctioneer is not responsible for any downtime of our server or software system, the inability of Sellers or Bidders to access the Site, delays in email notifications to Sellers or Bidders, other technical difficulties, or any other events or circumstances beyond Auctioneer’s reasonable control. Upon the occurrence of any such event or circumstance, Auctioneer reserves the right, in its sole discretion, to suspend, terminate, extend or restart any affected auction.
I. Auction Closings
Each auction has its own designated ending time. Auctions end automatically at that time. At about midnight on that date, notifications are sent out to the winning Bidder on each item included in the auction, with a copy sent to the Seller. The winning Bidder and the Seller must thereafter make arrangements to complete the transaction.
Auctioneer is not responsible for facilitating or enforcing any transaction.
Promptly following the closing of an auction, the winning Bidder will be invoiced for the item it has won. The winning Bidder is obligated to pay for the item it has won within 24 hours of being invoiced. Any alternative payment arrangements will be at the sole discretion of Seller and subject to Seller’s written consent.
All payments must be made in cash or by cashier’s check or wire transfer. All checks must be made payable to Surplus Asset Auctions, LLC. If a winning Bidder is the successful Bidder on more than one item in a lot, the winning Bidder must make full payment for all such items within the prescribed time period before being entitled to remove any item.
If a winning Bidder does not pay within the prescribed time period for an item it has won, Auctioneer has the right, in its sole discretion, to deem the item abandoned by the winning Bidder. In such event, the Bidder will lose any right, title or interest which the Bidder may otherwise have had in the item, and the item will be deemed to have been returned to Auctioneer for further handling. Any such action by Auctioneer will not prejudice the exercise by Auctioneer and the Seller of any additional rights or remedies they may have against a Bidder that defaults on its payment obligations.
K. Removal of Items
All purchased items must be removed from their designated location on or before the date specified in the auction information appearing on Auctioneer’s website. No item may be removed from its location prior to the closing of the auction.
Removal of all items will be at the sole expense, risk and liability of the winning Bidder. A winning Bidder will not be permitted to remove any item without first presenting evidence confirming the Seller’s receipt of full payment for the item.
All oil, coolants and fluids must be drained from all machinery and equipment prior to removal. The removal and shipment of all items must comply with all applicable laws, statutes, regulations and other legal requirements.
All winning Bidders must provide the Seller and, if applicable, the owner or landlord of the facility where the item is located, with evidence of appropriate liability insurance for both the winning Bidder and any riggers and shippers to be used by the winning Bidder.
All Bidders assume all risk to person and property while inspecting or removing items from the site where they are located. Neither Seller nor Auctioneer shall be liable for any injury to person or property suffered by any Bidder in such circumstances.
Neither Auctioneer nor the Seller will be responsible for any item that is not removed by the specified date. The Seller has the right, but not the obligation, to remove and store the item either on or off its premises at the winning Bidder’s sole risk and expense. The Seller also has the right, in its sole discretion, to resell the item at public or private sale, with or without notice, in which case the winning Bidder will be liable for any deficiency in the purchase price obtained by the Seller, plus all costs and expenses incurred by the Seller in connection with such sale.
If the Seller refuses to permit a winning Bidder to remove an item in accordance with the requirements set forth in the auction description and these Terms, Auctioneer may, in its sole discretion, refund to the winning Bidder any portion of the purchase price that Auctioneer has collected for that item and still possesses at such time.
L. Disputes Between Bidders and Sellers
Auctioneer encourages all Bidders and Sellers to advise Auctioneer of any dispute that arises with respect to any auctioned item. In the event of a dispute, Auctioneer shall have the right, but not the obligation, to address and resolve the dispute in a manner which Auctioneer, in its sole discretion, deems appropriate. The resolution of a dispute may involve, by way of illustration but not limitation, the termination of an auction with respect to an item, the offering of an item for sale in a new auction, or the awarding of an item to the next highest bidder. All decisions of the Auctioneer will be final and binding on all parties.
All Bidders agree to comply with all applicable laws, statutes, regulations and other legal requirements governing the export of items purchased at auction. Certain items offered for purchase may constitute restricted technology under federal law, and the shipment of such items outside the United States may be limited or prohibited. It is responsibility of all Bidders to determine whether and to what extent such legal restrictions apply. Neither Auctioneer nor the Seller has conducted any investigation, and neither Auctioneer nor the Seller makes any representations or warranties, regarding a Bidder’s right to export any item outside the United States.
Each user of this Site agrees to indemnify and hold Auctioneer, its owners, officers, managers, employees, representatives and agents harmless from and against any and all claims, demands, causes of action, damages, judgments, liabilities, fines, penalties, costs and expenses (including reasonable attorneys’ fees, investigation fees, court costs, and related costs and expenses) arising from or relating to the use of this Site, any pending, completed or failed transaction, any unlawful, fraudulent or improper conduct of such user, and any breach by such user of these Terms.
O. Choice of Law
All issues, disputes and other matters arising from or relating to the use of this Site, any auction or any related matter shall be governed by the laws of the State of Illinois, without reference to rules governing conflicts of law.
All legal actions and proceeds arising from or relating to the use of this site, any auction or any related matter shall be litigated only in a State or Federal court located in Chicago, Illinois, and all users irrevocably consent to the personal jurisdiction of such courts and venue therein. All users of this site hereby waive any right such user may have to assert the doctrine of forum non conveniens or to object in any other way to such venue.
Q. No Jury Trial
All users of this site hereby knowingly, voluntarily and irrevocably waive all rights to a trial by jury, and agree that all legal actions and proceedings arising from or relating to the use of this site, any auction or any related matter shall be adjudicated by a judge and not a jury.