Public Auction - McKibbin Excavating Retirement Thrs. Oct. 29 2020 New Paris, Indiana TERMS & CONDITIONS: 6% Buyers Premium on items over $2501, or 13% Buyers Premium on items selling $2500 and less, on all Internet Purchases. (These include internet fee. Three points less for on site buyers) Payment from internet buyers must be received on or before 3 business days after auction completion, by wire transfer, or as otherwise approved by auctioneer. On site buyers, everything must be for PAID IN FULL on SALE DAY by Cash, Guaranteed or Certified Check. Company or Personal Checks MUST have current and positive bank letter of guarantee at registration. Auctioneers assume no liability for errors or omissions in this listing. Announcements sale day take precedence over previous statements and printed matter. Equipment is sold As Is, Where Is, without any warranties whatsoever, whether express, implied or statuatory. Expressly excluded are warranties of merchantability, fitness for use and purpose and description. Complete terms posted at sale site. Non-USA Bidders: Bidders outside USA and Canada without sufficient proxibid history may be required to make a $10,000 deposit by wire transfer with Frey & Sons before bidding privileges will be granted. This deposit will be applied as downpayment on any purchases. Any balance due must be paid within 2 business days after the auction by wire transfer in US funds. Any unused deposit remaining after the auction will be promptly returned to the bidder.We reserve the right to set credit limits, require a additional deposit, or to deny bidding privileges to any non-USA bidder, for any reason. IMPORTANT INTERNET BIDDER NOTES: 1) All internet bidders must preregister at proxibid.com. Payment in full must be made in full on day of sale by Cash, Wire Transfer, Cashiers Check or a Company Check accompanied with a bank letter of guarantee, as specified above. Auctioneer reserves the right to set credit limits, require a deposit, or to deny bidding privileges to any bidder, for any reason. 2) 6% Buyers Premium on items over $2501, or 13% Buyers Premium on items selling $2500 and less, on all Internet Purchases. (Three points less for on site buyers), in addition to any applicable fees that may be charged at the auction. 3) Applicable State and Local Sales Taxes will be charged on all lots at this auction. Bidders wishing to claim exemption from Sales Tax must provide an approved tax exemption form and exception certificates that are acceptable to the state in which the auction is held. 4) Absolutely no agency relationship shall be created in any way between Bidder and Auctioneer. Auctioneer is solely an agent for the seller. 5) In the event of a tie bid amount, preference shall be given to the bidder attending the auction, or the bidder chosen by the Auctioneer, using any method he determines. 6) Bids are not made until accepted by the auctioneer at the sale site. Absolutely no liability shall be accepted by Auctioneer for placement or execution of bids. Due to technological limitations, and the potential for "glitches" or dropped communication with the sale site and auctioneer, Internet bids are not guaranteed to be placed or executed, in any way. 7) THERE IS A SIGNIFICANT TIME LAG BETWEEN INTERNET SOUND AND THE ACTUAL BIDDING ON SITE. Please watch the increments on the screen, for the actual bidding action, and base your bids on the information displayed by the text on your screen. Even the displayed information can be slow or incorrect due to internet congestion, slow connections, human reaction time or error, etc. PLEASE get in a bid early in the process- the auctioneer has no other way of knowing you are interested. Remember, even after you press the bid button, it still has to go through the internet to a person on-site to make the bid. In that time, the item could be sold, or the bid may advance. What happens on-site takes precedence over any internet bid that may have been placed but not yet received by the auctioneer. ie: If the bidding is at $25, and you press the bid button for $50, but a person on site places a bid for $50 before your internet bid is received, you are still out, and need to bid the next increment. Remember, if in doubt, the auctioneer will take the bid from the person on site, who has spent their time and money attending the auction. You (Internet Bidder) are not the buyer of an item(s) until you are notified by Frey & Sons and such bid is confirmed and invoiced as such, regardless of what the proxibid website may tell you. 8) CAVEAT EMPTOR! Buyer understands that all items are sold AS-IS, WHERE-IS, with no warranties or guarantees whatsoever. All descriptions of equipment on the website are believed to be correct and have been conscientiously set forth by the owner, etc. However, neither the owner nor the Auctioneers are responsible for any errors in description or condition. The equipment is available prior to the Auction for inspection, and any bidding without inspection is solely at the bidder's risk. The Catalog posted on line is a guide only- it does not guarantee anything. By making an internet or absentee bid, Bidder acknowledges that he is not relying in any way, upon the representations of Auctioneer, its staff, and / or the Owner of the equipment. Bidder waives any right to inspection, approval or acceptance of items, and fully agrees that any items bought are bought SIGHT UNSEEN with NO RIGHT TO INSPECTION OR APPROVAL AFTER PURCHASE. 9) All items remain at the auction site solely at the buyer's risk, and Frey & Sons bears no responsibility for their security and protection. All purchases must be removed from the premises as announced sale day. Items left after this date may be moved at the buyers's risk and expense. 10) Elias H. Frey & Sons, Inc., Auctioneers, and Robert G. Frey, president & auctioneer, and affiliated auctioneers, are licensed by the Department of Agriculture of the state of Ohio, Reynoldsburg, Ohio and a member of the Auction Recovery Fund. 11) All Internet bidders also agree to our standard Auction Terms of Sale as noted below: AUCTION TERMS OF SALE 1. All bidders must register before the auction, and proper identification is required. The Auctioneers reserve the right to refuse any applicant for a bidding card the privilege of bidding at this auction sale, and to revoke such privilege at any time. 2. Auctioneer has been hired by the seller, and is acting as their agent in conducting the auction, and Auctioneer is not serving as an agent for any bidder or buyer. 3. The highest bidder recognized by Auctioneer will be the Buyer for a lot, subject to the satisfaction of any reserve amount for that lot. No buyer shall retract any bid. All sales are final. 3a. Auctioneers may, at any time, at their sole discretion and without notice or liability to bidder: withdraw from sale or cancel the sale of any lot, or protect the interests of lienholders or owners in any manner as Auctioneer sees fit. Seller reserves right to bid a reserve price. 4. At its discretion, Auctioneer may accept and execute absentee bids in a competitive manner for the bidder, but in no way shall this create an agency relationship between the bidder and Auctioneers. Auction staff may place bona-fide bids to purchase items. 5. Each and every lot will be sold AS-IS, WHERE-IS, caveat emptor. There shall be no guarantees or warranties, expressed or implied, statutory or otherwise of any nature whatsoever. Specifically, but not to restrict the generality of the foregoing, the auctioneers make no representation or warranty that any of the auction items conform to any safety or pollution standard, or law or regulation, or are fit for any particular purpose, or are merchantable or financeable, or are of a particular age, year of manufacture, make, model or condition. 6. No sale shall be invalidated by reason of any defect or inaccuracy in any of the lots by reason of their being incorrectly described in the Catalog or elsewhere and no liability shall be borne by the Auctioneers in respect of any such fault or errors. This catalog has been prepared only as a guide based on information from sources generally believed to be reliable and from the Consignor but the accuracy thereof cannot be guaranteed or warranted by the Auctioneers. 7. Bidder agrees that he has satisfied himself and is not relying on the Auctioneers, nor are Auctioneers liable, for any matter in respect of the above. Bidder acknowledges that it is his responsibility to inspect all equipment and to make his own inquiries. Buyer acknowledges that prior to the auction all lots were available for inspection. Bidder/Buyer is deemed to have accepted a lot when he makes a bid. ALL SALES ARE FINAL, WITH NO REFUNDS FOR ANY REASON. 9. All applicable sales or use taxes will be added to the purchase price of all purchases deemed taxable in accordance with Federal, State and/ or Local Laws. 10. All payments must be made in full on day of auction by Cash or wire transfer. No purchases may be removed until paid in full. There will be a $50 minimum charge to Buyer for a check dishonored for any reason. Legal action will be instituted to collect any unpaid accounts, and Buyer agrees to pay all costs of collection, including attorney's fees, plus a finance charge of Two Percent per month (Twenty Four Percent per Annum) from date of auction until paid in full. 11. 3% Buyers Fee to be added to final bid on all absentee purchases. 12. Electronic Check Conversion: For customers paying by check, Frey & Sons may convert your payments by check to an electronic automated clearinghouse (ACH) debit transaction. The debit transaction will appear on your bank statement, although your check will not be presented to your financial institution or returned to you. This debit transaction will not enroll you in any automatic debit process and will only occur when a check is received. Any re-submission due to insufficient funds, closed accounts or other reasons may also occur electronically. For re-submission due to insufficient funds, a $50 fee may be electronically debited from your account. Please be aware that all checking transactions are secure. Your payment by check constitutes acceptance of these terms. 13. Any dispute arising as to any bidding shall be settled by the Auctioneers at their sole discretion and the Auctioneers may, at their sole discretion, immediately put the lot in dispute up again for sale. The Auctioneers reserve the right to refuse any bid which is considered to be an insignificant advance over the preceding bid. Auctioneers may offer any lots in groups or with privilege as they see fit or necessary. 14. On any dispute regarding the amount of a final bid or the buyer of an item, the Auctioneer's decision, and the Auctioneer's record, either by electronic recording, Clerking Sheet and/or Auctioneer's Record Book, shall be final. An incorrectly issued invoice shall in no way relieve the Buyer of immediately paying the full and correct amount due. 15. Purchases become the immediate responsibility of, and shall be and remain at the sole risk of the Buyer, upon acceptance of his bid. It shall be the immediate responsibility of the Buyer to insure his purchases. Auctioneers provide limited checkout assistance, and Auctioneers shall not be responsible for any theft, loss and/or damage to any lot, at any time. Auctioneers will have no responsibility for any loss or damage resulting from Auctioneers staff carrying, handling, or loading any items for any person. 16. The Buyer shall not be entitled to possession of any of his purchases until the total purchase price of all his purchases has been fully paid. In the event the Buyer fails to pay the full purchase price for any lot within the prescribed time, or fails to comply with any other terms of sale, the Auctioneers shall retain a possessory lien on all lots of the Buyer, and have the right to resell such lots for and on behalf of the Buyer, by public or private sale, without notice of any kind to the Buyer. Should the Auctioneers resell any lot, the proceeds therefrom (after deducting commission of 10% and any expenses) shall be credited to the original Buyer's account and the original Buyer shall pay the Auctioneers upon demand, any deficiency arising from the resale. 17. All purchases must be removed from the Auction Site within the time announced or posted at the auction site, and all costs, responsibility and risk of such removal shall be borne by the Buyer and, in every case, the Buyer shall use prudence in effecting such removal. Buyer agrees to indemnity and save harmless both the Consignor and the Auctioneers against any damage caused by the acts of the Buyer and/or his agents in connection with the dismantling or removal of any lot. If for any reason, the Buyer fails to remove any lot within the time specified, the lot shall be deemed abandoned, and the Auctioneers at sole discretion may resell per clause (9) above, or remove and store the said lot at Buyer's sole risk and expense. In addition, Buyer shall be liable for any rent incurred or damages suffered by the Auctioneers because of Buyer's failure to remove any lot. 18. All necessary documents will, if available, be delivered to the Buyer against payment in full of the purchase price as set out above and clearing of funds by Auctioneer's bank, and will otherwise be mailed within 21 days of such payment or when provided to auctioneers by the holding party. Availability of these documents is subject to provision of the same by the Seller. Documents provided will be prepared to be effective only in the State in which the auction is being conducted. 19. If, for any reason whatsoever, the Auctioneers are unable to make available or otherwise effect delivery of any lot or clear title to same, or any necessary documentation required in respect of any lot, whether before or after delivery of such lot, the Auctioneer's sole liability, if any, shall be the return of any monies paid on such lot upon return of the particular lot, at the sole option of the auctioneers. Any lot the subject of this paragraph shall be returned or surrendered to the Auctioneers forthwith upon demand, but to be at the sole option of the Auctioneers. 20. Bidder acknowledges that an Auction Site is a potentially dangerous place. Flammable, noxious, corrosive and pressurized substances are present, heavy equipment is being operated and electric circuits may be live. Every person at the Auction Site before, during and after the auction sale shall be deemed to be there at his own risk with notice of the condition of the premises, the activities on the premises. No person shall have any claim against the Auctioneers, their agents, employees, or principals for any injuries sustained nor for damages or loss to property which may occur from any cause whatsoever. 21. All non-USA bidders, and US bidders at Auctioneers discression, must deposit $10,000 with Frey & Sons for the privilege of bidding. This deposit will be placed in the Auction Trust Account of Frey & Sons, and will credited against the final amount due on purchases made. This deposit will be returned to the bidder if no successful bids are placed. No interest shall be paid on these funds. For wire information, contact Frey & Sons at 419-445-3739, fax 419-445-8888. 22. These terms will be exclusively construed and governed in accordance with the laws of the State of Ohio, without regard to its conflict of laws principles. The exclusive jurisdiction and venue for any controversy or claim between the parties will be the County of Fulton in the State of Ohio. Any action or suit of any kind must be commenced within one (1) year from the date when the cause of action or suit accrued or it will be forever barred. The right of action or suit will accrue, and the one (1) year limitation period will begin to run, on the date the breach, damage, or injury is sustained and not when the resulting cost, damage, harm or loss is discovered. 23. All statements made sale day take precedence over printed matter or previous statements. 24. Frey & Sons, Inc and Robert G. Frey, and other auctioneers are licensed in the state of Ohio by the Department of Agriculture, Reynoldsburg, Ohio and members of the auction recovery fund or bonded in favor of the state of Ohio. ITEMS ARE SOLD AS-IS, WHERE-IS!!! All property is sold "AS IS", and ALL SALES ARE FINAL. Property is open to thorough public inspection. It is the Bidder's responsibility to determine condition, age, genuineness, value or any other determinative factor. Frey and Sons, Inc. may attempt to describe the merchandise in advertising, on the Internet and at the auction but makes no representations. In no event shall Frey and Sons, Inc. be held responsible for having made or implied any warranty of merchantability or fitness for a particular purpose. Bidder shall be the sole judge of value. Bidders who bid from off site and are not present at the live auction or preview understand and acknowledge that they may not be able to inspect an item as well as if they examined it in person. It is the Bidder's responsibility to determine condition, age, genuineness, value or any other determinative factor. Frey and Sons, Inc. shall endeavor to describe in detail each item and any pertinent information about it. Frey and Sons, Inc. will not be responsible for any errors or omissions in the description of the merchandise unless it is a material and intentional misrepresentation of the item itself. Bidder agrees that everything is sold as is and that they may not return any item they purchase. Frey and Sons, Inc. is providing Internet pre-auction and live bidding as a service to Bidder. Bidder acknowledges and understands that this service may or may not function correctly the day of the auction. Under no circumstances shall Bidder have any kind of claim against Frey and Sons, Inc. or anyone else if the Internet service fails to work correctly before or during the live auction. Frey and Sons, Inc. will not be responsible for any missed bids from any source. Frey and Sons, Inc. reserves the right to withdraw or re-catalog items in this auction. No internet bid is a valid auction bid until received by, and acknowledged by the auctioneer as an advancing bid at the live auction. Registering to bid, or attending the auction, indicates full understanding and acceptance of these terms, along with the agreement to be so bound. These terms supersede all previous announcements, advertisements and published information, except for any announcements made sale day by the auctioneer, which will take precedence.