“Terms of Bidding & Sale”
1. Western Construction Auctions, Inc. (“Auctioneer”) hereby grants to the party (“Bidder” and/or “Purchaser” and/or “Buyer”) whose signature appears on the Bidder’s Registration Agreement, the right to use the number shown on the Bid Card for the purpose of bidding at an auction sale (“Auction”). Such right is granted at the Auctioneer’s sole discretion and may be revoked at any time. An online bidder who is assigned and uses a Bid Number is hereafter included as a Bidder and subject to these “Terms of Bidding and Sale. Auctioneer reserves the right to refuse any bid by any Bidder at Auctioneer’s sole discretion. Bidder understands that all purchases made on Bid Card, whether or not purchases were made on behalf of any other party or were the result of a lost bidder card or for any other reason, agrees that any and all purchases are the sole responsibility of the party whose signature appears on the Bidder Card.
2. By using the Bid Card at the Auction, Bidder acknowledges he has received, read, understands and agrees to the Terms of Bidding and Sale (“Terms”) listed on the Bid Card, in the Listing Catalog, and announced by Auctioneer at the Auction, and Bidder agrees to comply with and be bound by such terms. If any discrepancy exists between the Terms, the Terms of Bidding and Sale in the Listing Catalog shall be binding.
3. The Auction will be conducted by offering the items (“Items”) by lot (“Lot”), either individually or in groups. The Bidder offering the highest bid accepted by the Auctioneer shall be the purchaser (“Purchaser”) of the offered Lot (or “Purchase”) and no Purchaser shall retract his bid. Purchaser accepts a Lot when he makes a bid. All sales are final.
4. Bidder, whether acting as principal, agent, officer or director of a company or otherwise, in any capacity whatsoever, and the company he represents, both jointly and severally agrees:
(a) to indemnify and save harmless Auctioneer and its officers, directors, employees, agents, attorneys and its consignors (“Consignors”), from any and all actions, causes of action, suits, damages, costs, and losses of any nature, including injury and death, arising from the purchase or use of any Items, or the attendance or participation of Bidder, his/her agents or employees, at the Auction and/or on the auction site whether before, during, or after the Auction;
(b) to be responsible for the payment of the purchase price, Auctioneer’s fees, any applicable Department of Motor Vehicles (Herein referred to as “DMV”) fees, and taxes due on all of Bidder’s Purchases;
(c) that all rights and defenses available to Auctioneer hereunder shall extend to the Consignor.
5. The Terms shall be governed by and interpreted under the laws of the State of California, and any action hereunder against Auctioneer shall be commenced in the State of California in San Diego County and any notices shall be sent to Auctioneer Corporate Offices @1588 S Mission Road, Suite 110, Fallbrook, CA 92028.
6. Purchaser shall not be entitled to possession of any of his Purchases until the total purchase price of all his Purchases including all applicable goods, sales or use taxes, has been fully paid. In the event of non-payment of Purchases by Bidder, Auctioneer may charge not less than 18% per annum and up to $20 per day per lot and all collection and legal fees on the unpaid balance. Bidder will also be responsible for not less than 20% of sale price for each lot for lost commissions which would have been received from Consignor. Payments are due no later than the 1st Monday @ 4:30pm following the auction date. Auctioneer, at its sole discretion, has the right to resell such Purchases by public or private sale without notice to Purchaser for failure to pay by the 1st Monday by 4:30pm following the auction. Should auctioneer resell any Purchase, the net proceeds therefrom (after deducting commission of 20%, interest @ 18%, Storage fess @ $20 per day per lot and any other costs as determined by Auctioneer) shall be credited to the original Purchaser’s account and the original Purchaser shall forthwith upon demand pay Auctioneer, as damages any deficiency arising from the resale.
7. There shall be no guarantees or warranties, expressed or implied, statutory or otherwise of any nature whatsoever in respect of the Lots offered at the auction. Each and every Lot will be sold “as is”, “where is”. Specifically, but without limitation, Auctioneer makes no representation or warranty that any of the Lots:
(a) conform to any standard in respect of safety, pollution or hazardous material or to any standard or requirement of any applicable authority, law or regulation, or
(b) are fit for any particular purpose, or
(c) are merchantable or financeable, or
(d) are of any particular age, year of manufacture, model, make, or condition.
Bidder agrees he has satisfied himself and is not relying on Auctioneer, nor is Auctioneer liable, for any matter in respect of above. Bidder further agrees to repair, at his cost, any Lot purchased at the Auction so as to make the Lot in a safe operating condition and, without limitation, to a condition which meets any standard or requirement of any applicable authority, law or regulation including those concerning any use to which the Lot may be put.
8. EVERY ITEM SOLD “AS IS”, “WHERE IS”.
NO GUARANTEES OR WARRANTIES WHATSOEVER.
PLEASE INSPECT THE EQUIPMENT BEFORE BIDDING.
ALL SALES ARE FINAL.
9. 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 at any time, shall be there at his own risk without notice of the condition of the premises and the activities thereon and Bidder shall so advise his agents and employees. No person shall have any claim against Auctioneer, its officers, directors, agents, employees, principals, or attorneys for any injuries sustained, nor for damages to or loss of property, which may occur from any cause whatsoever.
10. If the Bidder registered at this auction under multiple Bid Cards, all purchases under all Bid Cards shall be considered for the purposes of interpreting the Terms, as if purchased under a single Bid Card. One invoice will be printed for all Lots purchased with a single Bid Card.
11. Auctioneer, at any time, and at its sole discretion, without notice or liability to Purchaser may: (a) withdraw or cancel the sale of any Lot, or (b) offer any Lots in groups.
12. No person shall bid on any Lot: (a) of which he is the Consignor; or (b) as agent, associate, or on behalf of the Consignor.
13. Any dispute arising as to any bidding shall be settled by Auctioneer at its sole discretion and Auctioneer may put the Lot in dispute up for sale again. Auctioneer reserves the right to refuse any bid, which it considers to be an insignificant advance over the preceding bid.
14. Purchases become the responsibility of and shall be at the risk of Purchaser upon acceptance of his bid. It shall be the responsibility of Purchaser to insure his purchase immediately. Auctioneer shall not be responsible for loss, damage, or theft of any Purchase. All payments must be received by cashier’s check, money order, company or personal check accompanied by an irrevocable bank letter of guarantee, or wire transfer payable to Western Construction Auctions, Inc. by 4:30 pm on the first Monday following the Auction. Sales tax will be assessed and collected on all Purchases unless legal exemption documentation is provided at the time of sale. A $500 refundable deposit will be required in order to obtain a bid card and bid at the Auction. A $1000 refundable deposit is required of all online bidders. For all international bidders or bidders out of state, a $5000 refundable deposit is required to obtain a bidder’s card. For all Lots, 25% of the purchase price shall be paid Auction day and the balance due by 4:30pm the Monday following the auction. Auctioneer reserves the right to require a 25% deposit on all Lots upon award of bid. Purchaser authorizes Auctioneer to charge 25% of Purchases on credit/debit card accounts provided at registration. If you have made an initial deposit of $1000 or $5000 to obtain a bidder’s card and paid by credit card, your card will be charged up to 25% of your total purchases if your purchases are not paid in full by certified funds by the Monday immediately following the auction. A 5% credit card fee will be added to your invoice if the Auctioneer must charge your card. Payments received on account of this or any other auction may, at Auctioneer’s discretion, be applied to prior outstanding accounts first.
15. Purchases will not be released until all accounts are paid in full and funds have cleared. DMV items and titles are deliverable within thirty (30) days following receipt of full payment for Bidder Purchases. Purchasers will receive titles as “Customer Demands Title” and it will be Purchasers sole responsibility to transfer title. Auctioneer will deliver to Purchaser title free and clear of any liens and encumbrances and guarantees to provide title free of any past due fees. Purchaser agrees to transfer/register any lots requiring a title with the DMV effective the date of the auction within 10 days of receipt of the title paperwork.
16. Internet bidders will be charged a 3% buyers premium in addition to all other fees charged by Auctioneer. . Internet bidders are subject to the same “Terms of Bidding and Sale” as live bidders and agree to abide by these terms.
17. A $45 document processing fee will be charged for every DMV Purchase, whether sold independently or grouped into one Lot and regardless of Purchaser’s intended use of the Purchase. Sales tax will be assessed and collected on document processing fees unless legal exemption documentation is provided at the time of sale.
18. There will be a 10% buyer’s premium on all Lots #1000 and above. Sales tax will be assessed and collected on buyer’s premium amounts unless legal exemption documentation is provided at the time of sale.
19. A Stocking Fee will apply to Purchases of all Lots #999 and below. Stocking Fees will be assessed on a per Lot basis as follows:
$25 for each Purchase of $999 and under
$50 for each Purchase of $1000 to $1999
$150 for each Purchase of $2000 to $3999
$200 for each Purchase of $4000 to $5999
$250 for each Purchase of $6000 to $7999
$300 for each Purchase of $8000 to $9999
$350 for each Purchase of $10000 to $24,999
$400 for each Purchase of $25000 to $49999
$500 for each Purchase of $50000 and Over
Sales tax will be assessed and collected on Stocking Fees unless legal exemption documentation is provided at the time of the sale.
20. No Purchases shall be allowed to leave the auction site until after the last lot is sold and only until dusk and at Auctioneer’s sole discretion. All Purchases must be removed from the auction site by 4:00pm on the first Wednesday following the Auction, and all costs, responsibility, and risk of such removal shall be borne by Purchaser. Loading assistance is provided as a courtesy; however, Purchaser assumes all risk and responsibility for loading and removal of Purchases. Purchaser shall use prudence in effecting such removal. Purchaser agrees to obtain adequate and appropriate insurance coverage for any Purchases requiring dismantling, rigging or hot cutting. Purchaser agrees to indemnify and save harmless both Consignor and Auctioneer, its officers, directors, employees, agents, and attorneys against any damage caused by the acts of Purchaser, Auctioneer or Consignor.
21. The Listing Catalog has been prepared as a guide only, based on information from sources believed to be reliable and from the Consignor; however, its accuracy cannot be guaranteed or warranted. No sale shall be invalidated nor shall Auctioneer, its officers, directors, employees, agents, or attorneys be liable as a result of defects or inaccuracies in the Listing Catalog. Bidder acknowledges that all Lots were available for inspection prior to the Auction and that it is his responsibility to inspect all equipment and to make his own inquiries prior to bidding.
22. Funds must clear prior to the processing or release of Purchases and DMV documents. Titled Documents will be delivered to buyer as “Customer Demands Title” within 30 days after payment in full is received.
23. If for any reason, Auctioneer is unable to make available or deliver any Purchase or clear title to the same, or documentation required in respect of any Purchase, whether before or after delivery, Auctioneer’s sole liability shall be the return of monies paid in respect of such Purchase upon its return by Purchaser. Any such Purchase shall be returned or surrendered upon demand by Auctioneer.
24. Interest on overdue amounts will be paid by Purchaser at a rate of 18% per annum, or at such other maximum rate as allowed by law.
25. If Purchaser claims an exemption based on goods being shipped out of state for use out of state, then the goods must be delivered to and shipped by a third party common carrier from auction site. Purchaser will provide necessary documentation to effect such exemption. In such case, Purchaser shall arrange and assume all risks and costs associated therewith.
26. All claims, disputes, and other matters arising out of, or relating to, these Terms or the performance thereof, shall be according to the laws in the State of California or any court having jurisdiction thereof.
“BIDDER’S REGISTRATION AGREEMENT”
BY USING THE BID CARD, WHOSE NUMBER APPEARS HEREON, AT THE AUCTION, THE UNDERSIGNED (“BIDDER”) ACKNOWLEDGES THAT HE/SHE HAS RECEIVED, READ, UNDERSTANDS AND AGREES TO THE “TERMS OF BIDDING AND SALE” LISTED ON THE BID CARD, IN THE LISTING CATALOG, AND ANNOUNDED BY THE AUCTIONEER AT THE AUCTION, AND BIDDER AGREES TO BE BOUND BY SUCH TERMS.