TERMS OF SALE
Set forth below are the terms and conditions (the "Terms") that shall apply to any purchase by any party (a "Buyer") in a transaction (a "Transaction") in which Fox Commercial Auctions LLC (FOX) serves as broker, agent, liquidator or auctioneer for the owner. The Terms apply to all Transactions relating to the public auction to be conducted by FOX of any item either before, during, or after any public auction.
TERMS AND CONDITIONS
1. All machinery, equipment, merchandise and other items are sold on an "AS IS/WHERE IS" basis with no warranties or representations whatsoever, either expressed or implied. Neither FOX nor the seller make any warranties or representations of any kind or nature with respect to the property or it's value, and in no event shall they be responsible for correctness of description, genuineness, authenticity, completeness, condition of the property or estimate of it's value. No statement (oral or written) in the catalog, at the auction, or elsewhere shall be deemed such a warranty or representation, or any assumption of responsibility.
WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THE WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE AND MERCHANTABILITY are expressly disclaimed.
ALL BIDS ARE SUBJECT TO APPROVAL BY THE U.S. BANKRUPTCY COURT.
2. Registration. Buyers must register prior to bidding at any auction sale. All bidders must provide their name, company (if applicable), mailing address, email address and phone number prior to the auction.
The balance due by the end of the auction by wire transfer. For Electronic bidders, at its discretion, FOX may contact bidders via email or telephone before or during the sale to provide an ACH or wire transfer as a deposit. If FOX does not receive a response from its attempts to contact Buyer or if the Buyer does not provide a deposit, FOX reserves the right to refuse or cancel Buyer's bids and to sell or re-sell Good to other parties..
4. Invoices & Payment Instructions. Electronic bidders will be sent an electronic invoice to the email address provided during registration. Electronic bidders will be sent detailed payment instructions via email along with their invoice.
5. Payments. FOX must receive the balance of the total purchase price no later than the close of business Friday, October 2, 2020, (the "Final Payment Date"). NO EXCEPTIONS!! All payments must be in federal wire transfer of immediately available funds or ACH, and all of the foregoing must be in form, scope and substance acceptable to FOX . Without limiting FOX 's discretion, no corporate checks and no personal checks will be accepted. No title shall pass to Buyer until the total purchase price and all Taxes have been paid to FOX in collected funds.
6. Taxes. Buyer must also pay to FOX on or before the Final Payment Date, all sales, export, use and other 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 below). To receive the benefit of any tax exemption, Buyer must supply FOX with a sales tax exemption certificate acceptable in form, scope and substance to FOX in FOX 's sole discretion.
7. Buyer's Premium. FOX will impose a buyer's premium of 15% ("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. FOX 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.
8. Removal. (1) Buyers or their Agents must remove all Goods purchased starting on and ending on the final removal date defined as MONDAY AND TUESDAY, OCTOBER 5 AND 6 from 10 am until 5 pm, (the "Removal Date"). NO EXCEPTIONS!! (2) No Goods shall be removed until the full purchase price and all applicable taxes thereon have been received by FOX in the form required herein. Any Goods not removed on or before the Removal Date shall be subject to storage charges that FOX may in its discretion impose. ANY ITEMS NOT REMOVED ON OR BEFORE THE REMOVAL DATE SHALL BE DEEMED ABANDONED AND FOX SHALL HAVE NO FURTHER OBLIGATION TO BUYER WITH RESPECT TO SUCH ITEMS. (See also #8C.)
8A. Buyer shall be responsible for the safe and proper removal of any Goods purchased by Buyer. FOX 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 FOX with (1) proof of payment in full (Paid In Full Invoice) and (2) an "Agent Release Authorization" form which allows FOX to release items to a third party contractor for shipping, crating or packing purposes.
8B. Goods weighing more than 100 pounds must be removed by a qualified, insured rigger. Before any removal, Buyer must provide FOX with a certificate of insurance from the rigger, which certificate must be in form, scope and content acceptable to FOX in FOX’s sole discretion. Without limiting FOX’s discretion, such certificate must show that the rigger carries comprehensive liability insurance written by an insurance carrier of national standing and in an amount of not less than one million dollars ($1,000,000.00). Without limiting the generality of the foregoing, Buyer shall restore and repair all real and personal property that is altered or damaged as a result of Buyer's removal of the Goods. Fox shall have no responsibility to disconnect utilities to the sold asset, including electric, gas, waste and water lines. Buyer is solely responsibility to properly remove and store in appropriate containers all fluids, oils, hazardous chemicals, etc., from machinery/equipment purchased. Buyer does hereby indemnify FOX, 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 FOX of all sums due from Buyer in respect to the Goods.
9 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 are contractually theirs and must be paid for by the Final Payment Date and removed by the Final Removal Date. IN THE EVENT PURCHASER FAILS TO PERFORM CONTRACTUAL OBLIGATIONS (PAYMENT AND REMOVAL) AS SPECIFIED IN THIS INVITATION TO BID, THE FOLLOWING ACTION APPLIES: PURCHASER WILL AUTOMATICALLY BE PLACED IN DEFAULT. THIS IS YOUR OFFICIAL NOTICE OF DEFAULT. Upon default, the purchaser shall lose all right, title, and interest which he/she might otherwise have acquired in and to such property as to which default has occurred. FOX will re-market and re-sell this property.
9A. Payment Default. Failure to pay invoices in full by the Final Payment Date in accordance with payment terms will subject Bidder to pay as Liquidated Damages a sum equal to the greater of (1) 20 percent of the invoice price of the item(s) as to which the default has occurred, or (2) the full amount of the difference between the original invoice price and the re-sold price plus any expenses incurred to re-market or re-sell these items. IF FOX HAS NOT RECEIVED PAYMENT FOR WINNING BIDS WITHIN 24 HOURS OF THE FINAL PAYMENT DATE, THE BIDDER AUTHORIZES FOX AND SELLER TO CHARGE LIQUIDATED DAMAGES.
9B. Removal Default. Failure to remove items by the Final Removal Date in accordance with removal terms will subject Bidder to pay as Liquidated Damages the full amount of the expenses incurred to store or transport items until they are re-sold. IF BUYER HAS NOT REMOVED ITEMS WITHIN 24 HOURS OF THE FINAL REMOVAL DATE, THE BIDDER AUTHORIZES FOX TO CHARGE LIQUIDATED DAMAGES.
10. After Buyer has removed any item from FOX’s possession, FOX 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 FOX before any item is removed from the premises where the auction is conducted.
11. FOX shall not be responsible for any damages, loss or theft of Goods except in the case of FOX's willful misconduct. Without limiting the foregoing, FOX shall not be responsible for damages or losses caused by strikes, civil disorders, or acts of God.
12. If for any reason FOX is unable to deliver any Goods purchased by Buyer, FOX’s sole liability shall be to return all sums paid by Buyer to FOX in respect of such Goods.
13. Minimum or Reserve Prices. FOX, in its sole discretion, reserves the right to establish a reserve or minimum price on any Goods, individually and/or collectively, without having to announce, post or publish notice to attendees and buyers at any auction. FOX reserves the right to confirm or reject the final bid. Further, FOX, and/or its affiliates or subsidiaries, may bid at the auction either for its own account or on behalf of a third party.
14. FOX, in its sole discretion, reserves the right to refuse the bid of any person without providing any notice or reason therefore.
15. FOX, in its sole discretion, shall control all bidding
increments and advances at any auction. FOX 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 FOX believes was made illegally or in bad faith. In the event of a dispute among bidders, FOX 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.
16. FOX reserves the right, in its sole discretion after consulting with seller, to sell items advertised at a public auction sale, on a piece by piece basis or as a complete lot. Without limiting the generality of the foregoing, FOX may accept a complete lot bid and then conduct an item by item, or groups of items, auction which auction shall be effective only if the total proceeds therefrom exceed the amount of the complete lot or entirety bid.
17. All information provided by FOX to Buyers, 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, FOX shall have no responsibility whatsoever for any information provided to any attendee or buyers. All buyers shall rely solely on their own investigation and inspection of any Goods.
18. The auctioneer may add other terms and conditions of sale, such additional terms and conditions to be announced prior to the auction. The headings contained herein are for convenience only and shall not limit or alter the Terms hereof.
19. If FOX is selling or auctioning any Goods on behalf of an owner, FOX shall act as an agent only and shall have no liability whatsoever for the acts of any owner/principal.
20. Buyers agree to comply with all US export control and related laws, and acknowledge that FOX is not the exporter 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. FOX makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute Restricted Technology.
Every person enters the auction site at his or her own risk. No person shall have any claim against, FOX, the seller or their respective agents for any injuries sustained including but not limited to Covid 19 or for damages to or loss of purchased property that may occur at the auction site.
23. If the Buyer fails to comply with any of the Terms, FOX and seller shall have all rights and remedies available to it at law and in equity. Without limiting the generality of the foregoing, FOX and seller 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 FOX (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 FOX’s rights, including, without limitation, legal fees and costs and expenses related to the resale of Goods, including storage and rigging fees.