Set forth below are the terms and conditions (the “Terms”) that shall apply to every bid or purchase by any party (“Buyer” or “Bidder”) either directly from Terra Point, LLC (“TPL”) as an owner of any item, goods, fixtures or real property, or in a transaction (“Transaction”) in which TPL serves as broker, agent, liquidator or auctioneer for any third party owner. The Terms apply to every transaction, including without limitation, public auctions conducted by TPL or conducted by its partner companies and direct purchases by Buyer of any item either before, after or independent of any public auction.
TERMS AND CONDITIONS
1. All machinery, equipment, merchandise and other items (the “Goods”) are sold on an “AS IS/WHERE IS” basis with no warranties or representations whatsoever, either express or implied. Neither TPL, the consignor or anyone acting on their behalf, make any warranties or representations of any kind or nature with respect to the property, its condition, or its value, and in no event shall they be responsible for correctness of description, genuineness, attribution, provenance, title, chain of title, authenticity, authorship and completeness. Prospective Bidders are strongly urged to contact TPL directly for detailed information regarding any lot and to conduct their own inspection of the lots through private or open inspection dates made available to all prospective Bidders. No statement (oral or written), including any catalog description, at any auction, or elsewhere shall be deemed such a warranty or representation, or any assumption of responsibility of any kind or nature, whatsoever. Prospective Bidders are strongly urged to contact TPL directly for detailed information regarding any lot. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, ANY AND ALL WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY OF GOODS ARE EXPRESSLY DISCLAIMED.
2. Registration. Buyers must register as Bidders prior to bidding at any auction sale. All Bidders must provide their name, company (if applicable), mailing address and phone number prior to the auction. Bidders are required to deposit with TPL a valid Visa or MasterCard to secure its obligations hereunder. Electronic Bidders are required to provide a valid email address and Visa or MasterCard number, together with security code. In its sole discretion, TPL may charge Bidders a registration fee for electronic bidding. This registration fee will be clearly displayed during the registration process.
3. Deposits. TPL requires a non-refundable deposit of not less than twenty five percent (25%) of the Buyer’s TOTAL PURCHASE PRICE by the end of sale day – with the balance due by the end of the next business day. The non-refundable deposit can be in the form of cash, a cashier’s check or wire transfer or, at TPL’s option, by way of a charge to the credit card referred to in Paragraph 2, above. For Electronic Bidders, at its discretion, TPL may contact Bidders via email or telephone before or during the sale to require a bank letter of guarantee or wire transfer as a deposit. If TPL does not receive a response from its attempts to contact Buyer or if the Buyer does not provide a deposit, TPL reserves the right refuse or cancel Buyer’s bids and re-sell Goods. On-line Buyers shall effect payment in full no later than twenty-four (24) hours after receiving an invoice from TPL.
4. Invoices & Payment Instructions. Winning Bidders can request a printed, paper invoice from the Accounting Manager at the auction or sale location during or after the sale or auction. Electronic Bidders will be sent an electronic invoice to the email address provided during registration. Invoices can be faxed upon request. Detailed payment instructions for each sale are available in the printed auction or sale lot catalog at the sale or auction location on the day of the sale or auction. Electronic Bidders will be sent detailed payment instructions via email along with their invoice.
5. Payments. TPL must receive the balance of the total purchase price no later than the close of business on the day following the auction (the “Final Payment Date”). All payments must be in cash, cashier’s check, or federal wire transfer of immediately available funds, and all of the foregoing must be in form, scope and substance acceptable to TPL in its sole discretion. Credit cards, which are accepted for electronic bidding registration and for payment of the non-refundable deposit will not be accepted for payment of the balance of the total purchase price. No title shall pass to Buyer until the total purchase price and all Taxes (defined in Section 6 below) have been paid to TPL in collected funds.
6. Taxes. Buyer must also pay to TPL on or before the Final Payment Date, all sales, export, use, delinquent taxes due and penalties thereon, and all other applicable taxes due to any federal, state or local taxing authority (the “Taxes”) as a result of Buyer’s purchase, including without limitation, any taxes arising from any Buyer’s Premium (as defined in Section 7 below). To receive the benefit of any sales tax exemption, Buyer must supply TPL with a state sales tax exemption certificate acceptable in form, scope and substance to TPL in TPL’S sole discretion.
7. Buyer’s Premium. TPL in its sole discretion may impose a Buyer’s premium (“Buyer’s Premium”) on any Goods sold. The Buyer’s Premium is a percentage that is added to the final purchase price of any item. TPL shall charge and collect from each successful Bidder a buyer’s premium for each sale at the auction, in addition to the purchase price as bid. TPL makes the Buyer’s Premium information available in writing electronically or in printed format prior to each auction for each of the Goods identified for auction or sale.
8. Removal. (1) Unless otherwise agreed in writing, Buyers or their Agents must remove all Goods purchased before the final removal date and time announced by TPL at the auction (the “Removal Date”). (2) No Goods shall be removed until the full purchase price and all applicable Taxes thereon have been received by TPL in the form required herein. ANY ITEMS NOT REMOVED ON OR BEFORE THE REMOVAL DATE SHALL BE DEEMED ABANDONED AND TPL SHALL HAVE NO FURTHER OBLIGATION TO BUYER WITH RESPECT TO SUCH ITEMS EXCEPT THAT BUYER SHALL NONETHELESS BE OBLIGATED TO PAY THE BALANCE OF THE PURCHASE PRICE INCLUDING ANY BUYER’S PREMIUM AND ANY ADDITIONAL COSTS INCURRED BY TPL, INCLUDING A $500.00 PER DIEM FEE PER ITEM UNTIL SUCH ITEM(S) IS (ARE) REMOVED. BUYER CONSENTS THAT TPL MAY DISPOSE OF ANY AND ALL ITEMS NOT PAID FOR AND REMOVED BY THE REMOVAL DATE AND MAY RESELL SCRAP, AND/OR OTHERWISE DISPOSE OF SUCH ITEMS.
9. Buyer shall be responsible for the safe and proper removal of any Goods purchased by Buyer. TPL does not pack, ship, store, crate or rig items. Buyers may either pick up Goods at the designated auction site personally or can contract with a third party agent to manage the removal process for them. Before Goods can be removed by an Agent, Agent must provide TPL with (1) proof of payment in full (Paid In Full Invoice) and (2) an “Agent Release Authorization” form which allows TPL to release items to a third party contractor for shipping, crating or packing purposes. If an exclusive rigger and or pre-approved rigger(s) is (are) appointed to the auction, Buyer must utilize their services and abide to the posted fees. No exceptions.
10. Goods that cannot be removed from the premises from “Non-Mechanized” transport must be removed by a qualified, insured rigger. Before any removal, Buyer must provide TPL with a certificate of insurance from the rigger, which certificate must be in form, scope and content acceptable to TPL in TPL’S sole discretion. Without limiting TPL’S discretion, such certificate must show that the rigger carries comprehensive liability insurance written by an insurance carrier of national standing, in an amount of not less than three million dollars ($3,000,000.00) and naming TPL as an additional insured party. Without limiting the generality of the foregoing, Buyer shall restore and repair all real and personal property and fixtures that are altered or damaged as a result of Buyer’s removal of the Goods to a condition substantially similar to the pre-removal condition. TPL shall review the repair and make a determination in its sole discretion, whether the repair is acceptable to TPL. TPL shall have no responsibility to disconnect utilities to the sole asset, including electric, gas, waste and water lines. Buyer is solely responsible for the proper removal and storage in appropriate containers of all fluids, oils, hazardous chemicals, etc., from machinery purchased. Buyer does hereby indemnify TPL, the owner of the Goods and the owner of the premises in which the Goods are located, from any and all claims, damages, and losses arising from Buyer’s actions or actions with respect to the Goods and Buyer’s presence on the premises in which the Goods are located, including without limitation, injuries to persons or property and environmental violations or contamination. Risk of loss on any Goods shall pass to the Buyer upon payment in full to TPL of all sums due from Buyer in respect to the Goods.
11. Small Lot Removal. TPL shall have no responsibility whatsoever for any missing or lost items that can be removed by hand if such items have not been removed within forty-eight (48) hours of the conclusion of the sale. There will be NO removal of any lots until the auction is complete.
12. Default. Bidders must bid only on those items they are prepared to pay for and remove in accordance with the terms and conditions of this sale. All items awarded to high Bidders must be paid for by the Final Payment Date and removed by the Final Removal Date. IN THE EVENT BUYER FAILS TO PERFORM CONTRACTUAL OBLIGATIONS (PAYMENT AND REMOVAL). BUYER WILL BE DEEMED TO BE IN DEFAULT AND TPL, AT ITS OPTION, MAY REMARKET AND RESELL THE PROPERTY, IN WHICH EVENT, BUYER WILL BE LIABLE FOR ALL LOSSES, COSTS OF RESALE AND ANY OTHER LOSSES TO TPL AS A RESULT OF BUYER’S DEFAULT.
13. After Buyer has removed any item from TPL’S possession or within two (2) days of the date of the auction, whichever is sooner, TPL shall have no obligation to make any adjustment or accommodation to Buyer because of any mistake in quantity or other defect or problem with respect to such item. Buyer must make all requests for adjustments in writing to TPL before any item is removed from the premises where the auction is conducted.
14. TPL shall not be responsible for any damages, loss or theft of Goods except in the case of TPL’s willful misconduct. Without limiting the foregoing, TPL shall not be responsible for damages or losses caused by strikes, civil disorders, acts of nature, or acts of God.
15. If for any reason TPL is unable to deliver any Goods purchased by Buyer, TPL’S sole liability shall be to return all sums paid by Buyer to TPL in respect of such Goods. Buyer/Bidder hereby agrees that under all possible circumstances, TPL’s maximum liability in any and all auctions and sales transactions is hereby limited to the purchase price actually paid by the Buyer or Bidder for the applicable sale or auction transaction.
16. Minimum or Reserve Prices. TPL, in its sole discretion, reserves the right to establish a reserve or minimum price on any Goods without having to announce, post or publish notice to attendees and buyers at any auction. TPL reserves the right to confirm or reject the final bid. Further, TPL, and/or its affiliates or subsidiaries, may bid at the auction either for its own account or on behalf of a third party.
17. Absentee Bids. By completing an “Absentee (Proxy) Bidder Form,” Bidders may appoint TPL to be an agent and proxy for the sole purpose of purchasing the items listed when the Bidder CANNOT bid on the day of the sale. ALL BIDS ARE FINAL AND BINDING and DO NOT include any applicable buyer’s premiums and sales taxes. TPL will bid up to the specified maximum bid amount to win the item, using only the amount needed to win the item. TPL has complete discretion whether and when to accept Proxy bids. The auctioneer’s announcements at the time the lot is sold take precedence on any and all published materials. Proxy Bidders will be notified only if they have been declared the high bid. Notification will take place in the form of an electronic invoice, which will be sent to the email address provided during registration.
18. TPL, in its sole discretion, reserves the right to refuse the bid of any person without providing any notice or reason therefore.
19. TPL, in its sole discretion, shall control all bidding increments and advances at any auction. TPL reserves the right to reject any bid that is only a minimal increase over the preceding bid, that is not commensurate with the value of the item being offered or that TPL believes was made illegally or in bad faith. In the event of a dispute among Bidders, TPL may, in its sole discretion, either accept what it deems to be the final bid or solicit further bids on the item in dispute. No returns or refunds will be permitted, unless authorized by the seller in writing.
20. TPL reserves the right, in its sole discretion, to sell items advertised as a public auction sale, on a piece-by-piece basis or as a complete lot. Without limiting the generality of the foregoing, TPL may accept a complete lot bid and then conduct an item by item auction which auction shall be effective only if the total proceeds therefrom exceed the amount of the complete bid.
21. All information provided by TPL to a Buyer, including without limitation, any advertising, lot sales catalogs or otherwise, is subject to deletions, errors, additions, and changes without notice. Although information is gathered from sources thought to be reliable, TPL shall have no responsibility whatsoever for any information provided to any attendee or buyers. Every Buyer hereby agrees to rely solely on the Buyer’s own independent investigation and inspection of any and all Goods.
22. The auctioneer may add other terms and conditions of sale, such additional terms and conditions to be announced prior to the auction.
23. If TPL is selling or auctioning any Goods on behalf of a third party owner, TPL shall act as an agent only and shall have no liability whatsoever for the acts of any owner/principal.
24. Buyer hereby agrees to comply with all US export and import control and related laws, and acknowledge that TPL is not the exporter or importer of any purchased item. Certain items offered for sale at the auction may constitute “Restricted Technology.” Under federal law, such items may not be shipped outside the United States. TPL makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute Restricted Technology, or whether any item may have been imported in violation of any U.S. laws or international treaties.
25. Each and every Buyer acknowledges that an auction site is a potentially dangerous place, Flammable, noxious, corrosive and pressurized substances may be present. Heavy equipment may be operated and electrical circuits may be live. Every person enters the auction site at his or her own risk with notice of the condition of the premises and the activities that will be or have been conducted on the premises. No person shall have any claim against TPL, the seller or their respective agents for any injuries sustained or for damages to or loss of property that may occur at the auction site.
26. If the Buyer fails to comply with any of the Terms and Conditions herein, in addition to the remedies provided for Default, TPL shall have all rights and remedies available to it at law and in equity. Without limiting the generality of the foregoing, TPL may retain all deposits and partial payments received from Buyer and may resell any Goods that Buyer fails to purchase. Buyer shall be responsible for all costs, losses, and damages suffered by TPL (i) as a result of Buyer’s breach of any of the Terms, including without limitation, lost profits and consequential damages, and (ii) incurred in connection with the enforcement of TPL’S rights, including, without limitation, legal fees and costs and expenses related to the resale of Goods, including storage and rigging fees.
27. As a prerequisite to asserting any claims against TPL, a Buyer must set forth those claims in writing in sufficient detail to advise as to the particulars of such claim and deliver it in person or by Certified Mail, Return Receipt Requested, to TPL within thirty (30) days of the conclusion of the auction at its address at 1213 RR 620 South, Suite 105, Lakeway, TX 78734. Any dispute of any nature whatsoever asserted by a Buyer against TPL shall be instituted within one (1) year of the assertion of its written claim in a state or federal court in Travis County, Texas, which shall have sole jurisdiction over such dispute. Any claim that TPL may have against the Buyer arising out of its default under the terms of this Agreement, shall similarly be instituted in the Travis County of Texas to which jurisdiction the Buyer irrevocably consents. Costs and attorneys’ fees shall be awarded to the prevailing party.