Terms for Timed Auction - December 13, 2022
ITEMS CLOSE OUT STARTING AT 9 AM PACIFIC TIME.
• 4 items will every 3 minutes, with additional time extension when bids are made in the last 90 seconds of close.
NOTICE: Everything will be sold at absolute auction to the highest bidder regardless of price.
PREMIER AUCTION LOCATIONS:
Site Phone: (503) 449-4171
Site Fax: (360) 326-1935
ONLINE AUCTION PURCHASER TERMS AND CONDITIONS OF SALE
INTRODUCTION: These purchaser terms and conditions ("Purchaser Terms") apply to all bidding at any auction conducted by J.J. Kane Exchange, LLC ("Exchange") or J.J. Kane Associates Inc. d/b/a "J.J. Kane Auctioneers," "Ken Porter Auctions" and "First Capitol Auction" ("Associates"). By registering to participate in an Auctioneer (defined below) auction sale, whether at a live auction sale, via online bidding in a timed internet auction or a live internet auction ("Online Bidding") or by electing to purchase equipment or other auction items ("Auction Items") by clicking the "Buy Now" icon on the applicable Auctioneer online marketplace (each, an "Auction"), each person or entity ("Bidder") expressly agrees to these Purchaser Terms. Participation in an Auction by any person under the age of 18 is strictly prohibited and in violation of these Purchase Terms. A Bidder who is the highest accepted bidder at a live Auction or an Online Bidding Auction, or a person or entity purchasing an Auction Item by clicking the "Buy Now" icon on the Auctioneer website is referred to herein as a "Purchaser". In addition, use of Auctioneer’s Online Bidding service is at all times subject to the Site Terms and Conditions found at https://www.jjkane.com/info/site-terms-and-conditions/. These Purchaser Terms were last revised on May 26, 2022.
AUCTIONEER: For all sales of Auction Items subject to these Purchaser Terms that are located at physical site(s) owned or operated by Associates, Associates shall be deemed to be the "Auctioneer," and for all sales of Auction Items subject to these Purchaser Terms that are located at physical site(s) not owned or operated by Associates, Exchange shall be deemed to be the "Auctioneer." To the extent Associates is deemed to be "Auctioneer," Seller acknowledges and agrees that Associates is authorized to engage Exchange or other third parties to provide certain services necessary for Associates to perform hereunder including, without limitation, the utilization of online auction platforms, invoicing, and billing services.
NO WARRANTY; AS-IS/WHERE-IS AUCTION SALES: ALL SUCCESSFULLY BID OR PURCHASED AUCTION ITEMS AT AN AUCTION ARE SOLD ON AN “AS-IS WHERE-IS” BASIS WITHOUT ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. THE DESCRIPTION OF EACH AUCTION ITEM IS SOLELY FOR THE PURPOSE OF IDENTIFICATION AND DOES NOT CONSTITUTE A REPRESENTATION OR WARRANTY THAT THE AUCTION ITEM WILL CONFORM TO SUCH DESCRIPTION OR TO ANY CONDITION REFERRED TO THEREIN. NEITHER AUCTIONEER NOR THE AUCTION ITEM SELLER (“SELLER”) MAKES ANY WARRANTY THAT THE AUCTION ITEM WILL PROPERLY FUNCTION OR OPERATE WHEN REMOVED FROM THE AUCTION SITE NOR THAT IT WILL CONTINUE TO OPERATE OR FUNCTION FOR ANY PERIOD OF TIME AFTER SUCH REMOVAL.
INSPECTIONS: Neither Auctioneer nor Seller is responsible for any inspections of an Auction Item prior to or after purchase of such Auction Item. Conditions provided by Auctioneer are solely for the purpose of reporting on the visible condition of the Auction Item’s major systems and attachments observed on the day of inspection and do not include road testing or load testing of mechanical condition. Purchaser acknowledges that conditions can change during the time between initial inspections, auction and time of removal. Purchaser is solely responsible for any inspection required with respect to equipment or vehicle Auction Items that have upper units or chassis (e.g., cranes, man lifts, buckets, diggers, construction equipment, trailers or vehicles of any type). Purchaser is solely responsible for ensuring that each Auction Item is given thorough inspections according to the manufacturer’s recommendations by only those persons who are able to detect and assess defects and potential hazards that could limit the safe performance of the Auction Item’s functions.
FEES AND TAXES:
(a) For each Auction Item purchased from Seller through an Auction, Purchaser agrees to pay a transaction fee. Auctioneer may change or add additional fees from time to time, in its sole discretion, with or without notice to Purchaser. Other fees that may be payable by Purchaser with respect to an Auction Item are detailed on the Auctioneer’s online marketplace for the applicable Auction Item.
(c) For each titled Auction Item sold in California, Purchasers who are California residents will be charged California sales tax and transfer fees at the time of purchase, and Purchasers who are not California residents will be charged California sales tax, but will be eligible for a refund of such sales tax after presenting Auctioneer with a signed bill of lading showing the Auction Item has been successfully removed from the state of California by a third party carrier.
(d) For all non-titled Auction Items, sales tax will be collected in accordance with applicable state law and regulations. The applicable tax rate is determined by the physical location of the Auction Item(s).
(e) To support sales tax treatment of the Auction sale, Purchaser is responsible for providing Auctioneer with any necessary documentation (e.g., Bills of Lading, export documents, etc.) no later than ten (10) business days from the applicable date of purchase. If Purchaser has an exemption certificate that was not submitted at the time of sale, Purchaser has ten (10) business days from the date of purchase to submit a valid exemption certificate in order for Auctioneer to process a refund. After ten (10) business days, Purchaser will need to submit any refund request directly to the state for which the original sales tax was collected and remitted by Auctioneer.
TITLE TO VEHICLES: With respect to each vehicle Auction Item for which Auctioneer has received payment in full, unless otherwise provided in the Auction Item’s description on the Auctioneer’s online marketplace for the Auction Item, Auctioneer guarantees free and clear title to the vehicle Auction Item and Auctioneer shall use its best efforts in accordance with applicable law to obtain and convey to Purchaser title to such vehicle Auction Item; provided, however, that should a delay in the obtaining the title occur, Auctioneer shall in no way be responsible for any losses, damages, attorney’s fees, costs of any kind, interest, punitive damages or any other type of damages resulting from such delay and Auctioneer shall have no liability to Purchaser or any subsequent purchaser for any title delays for any reason whatsoever. Auctioneer may provide the name of Seller upon request by Purchaser.
TITLE REQUEST FORM: Purchaser must complete a Title Request Form provided by Auctioneer in the name and address desired in order to receive an executed title within 3 days of the close of the Auction. If a Title request form is not completed and returned by Purchaser within 3 days of the close of the Auction, titles will be executed in the name and address of Purchaser that appear on Purchaser’s auction registration and invoice.
ONLINE BIDDING: Auctions will feature online bidding powered by Proxibid, Inc. (“Proxibid”). All Bidders are required to register online with Proxibid prior to participating in an Auction at the following URL: https://www.proxibid.com. Bidders will be required to comply with these Purchaser Terms and all other specific terms and conditions of the Auction detailed on Auctioneer’s online marketplace for the applicable Auction Item, including the payment and removal procedures. For all specific internet bidding questions, please contact Proxibid at (877) 505-7770.
BIDDING; BUY NOW; VOID BIDS; WITHDRAWALS, POSTPONEMENTS OR CANCELLATIONS:
(a) When bidding at a live Auction, after the winning bid has been established by Auctioneer, the bid will be automatically accepted by Seller and create a binding obligation to purchase and sell the Auction Item between Purchaser and Seller (a “Binding Obligation”).
(b) When Online Bidding, Proxibid is the final judge for determination of winning bids and, upon such determination, the bid will be automatically accepted by Seller and create a Binding Obligation between Purchaser and Seller. Purchaser and Seller will be notified of the completion of the Binding Obligation by an email or other notification generated automatically by Auctioneer’s online marketplace.
(c) When purchasing an Auction Item via “Buy Now” on Auctioneer’s website, by clicking the “Buy Now” icon for the listed purchase price of such Auction Item, the purchase commitment of Purchaser will be automatically accepted by Seller and become a Binding Obligation between Purchaser and Seller. Purchaser and Seller will be notified of the completion of the Binding Obligation by an email or other notification generated automatically by Auctioneer’s online marketplace.
(d) Should a Bidder become the winning Purchaser at an Auction, such Purchaser will be contractually obligated at the time the Binding Obligation is created to pay for and remove the Auction Item from the lot where such Auction Item is located in accordance with the paragraph entitled Removal of Auction Items below. Bids cannot be removed for any reason after 8 a.m. Central Time on the close date of Auction.
(e) Auctioneer reserves the right to reject or void any Auction bid, whether winning or otherwise, that it believes, in its sole discretion, (i) has been made in bad faith, (ii) is intended to manipulate the Auction listing and sale process, (iii) violates any applicable law or regulation, or (iv) results from an online marketplace outage, failure, error, or delay.
(f) Auctioneer reserves the right to withdraw any Auction Item listed for sale at an Auction or to postpone or cancel any Auction for any reason, in its sole discretion, with or without notice, and without liability to any Bidder. Auctioneer also reserves the right to cancel and declare a “Non-Sale” any Binding Obligation or Auction sale, whether or not payment has been made, in the event Auctioneer determines, in its sole discretion, that: (i) the Binding Obligation or sale is the result of an online marketplace application, system and/or user error, (ii) the Seller has breached or defaulted under the Binding Obligation, or (iii) Auctioneer is unable to clear title to the applicable Auction Item. In such event, Purchaser’s sole remedy, and Auctioneer’s sole liability to Purchaser, shall be a refund of any amount previously paid by Purchaser and remaining in Auctioneer’s possession with respect to the cancelled Binding Obligation or Auction sale.
REMOVAL OF AUCTION ITEMS: Auction Items are located across the nation. Because each location has different hours of operation, all Auction Items must be removed by appointment and pickup must be scheduled at least 24 hours prior to Purchaser’s desired date of removal. All Auction Items must be removed by Purchaser within seven (7) calendar days following the date of completion of the Binding Obligation, without exception, and Purchaser will be charged a storage fee of $25.00/day per Auction Item for any Auction Item remaining on site thereafter. All storage fees must be paid prior to removal. A “paid in full” receipt must be presented by Purchaser for removal, and in certain cases Purchaser will be asked to sign a Delivery and Acceptance Certificate indicating that Purchaser has accepted and taken delivery of the Auction Items. Purchaser shall be deemed to have taken delivery of all Auction Items on execution of the Delivery and Acceptance Certificate regardless of whether Purchaser removes the same in a single or multiple trips to the Auction site. Additional gate fees may apply at select Auction locations. If Purchaser has not removed an Auction Item within thirty (30) calendar days following the date of completion of the Binding Obligation, Auctioneer will deem Purchaser’s failure to remove such Auction Item to be evidence of Purchaser’s intention to abandon Purchaser’s Auction Item. In such instance, Auctioneer will deem the Auction Item abandoned, assume ownership of the Auction Item and take steps to dispose of the Auction Item. Auctioneer will determine the appropriate disposition approach in its sole discretion, which may include: (a) moving the Auction Item from the Auction Site and disposing of the Auction Item as Auctioneer deems appropriate; (b) scrapping the Auction Item; or (c) re-listing the Auction Item for sale on Auctioneer’s online marketplace, whereby Auctioneer will retain the entire resale amount.
DIGGER DERRICKS AND AERIAL DEVICES: The following provision shall apply to digger derricks and any of the following vehicle-mounted aerial device Auction Items(hereinafter referred to as an “aerial device”):
ATTENDANCE AT AUCTION SITE: Each person attending an Auction acknowledges that an auction site is a potentially dangerous place. Flammable, corrosive and pressurized substances will be present, heavy equipment is being operated and electric circuits may be live. Each person attending an Auction at an auction site before, during or after the Auction shall be deemed to be there at his or her own risk with notice of the condition of the premises, the activities on the premises and the conduct of third parties, and each Bidder shall notify such Bidder’s agents and employees of the foregoing. No person or entity shall have any claim against Auctioneer, its agents, employees or principals for any injuries sustained, or for any damages to or loss of property which may occur from any cause whatsoever at an Auction site.
ADDITIONAL TERMS: Auction Items may be added to any Auction. The information listed online or included in any Auction brochure is only a guideline and the accuracy of such information cannot be guaranteed.
AVAILABILITY OF ONLINE MARKETPLACE: By participating in an Online Bidding Auction, each Bidder acknowledges and agrees that Auctioneer cannot guarantee the continuous or secure operation of, or access to, its online marketplace powered by Proxibid. Auctioneer’s and Proxibid’s servers, computers, communications components and systems, and application functionality, are subject to outages, failures, and delays. Each Bidder further acknowledges and agrees that Auctioneer will have no liability for any claims or alleged losses arising out of or relating to any such outage, failure, or delay.
COMMUNICATION; INFORMATION SHARING: Purchaser authorizes Auctioneer to (i) contact it via phone, email or text regarding company business and (ii) process and share information regarding the bidder with the original equipment manufacturer (“OEM”) of any Auction Item purchased hereunder and any of the OEM’s dealers or service providers in Purchaser’s geographic area. Auctioneer shall have no liability to Purchaser for the disclosure of any information regarding such Purchaser to the applicable OEM, its dealers, service providers or other representatives.
ASSUMPTION OF RISK; WAIVER; INDEMNITY: Risk of loss or damage to each Auction Item shall pass to Purchaser immediately after when a Binding Obligation to purchase such Auction Item is created. Delay in titling any titled Auction Items in Purchaser shall not alter the passage of the risk of loss and damage. Purchaser shall, at its own expense, maintain and carry in full force and effect appropriate insurance coverage on each Auction Item purchased immediately after a Binding Obligation is created, and neither Auctioneer nor the owner of the auction sale site property (“Site Owner”) will be responsible for any losses or damages thereto from and after the time a Binding Obligation is created whether resulting from acts of nature, theft, accident and/or vandalism (other than as a result of the gross negligence or willful misconduct of Auctioneer or Site Owner). Purchaser agrees to look solely to its insurance to cover such losses or damages. Purchaser assumes all liability whatsoever resulting from the possession, use or disposition of each Auction Item purchased at an Auction from and after the time a Binding Obligation to purchase is created. Purchaser hereby releases, waives, discharges and covenants not to sue Auctioneer and its parent, subsidiaries and Affiliates (as defined below),Site Owner, Seller and each of their respective directors, officers, employees and other representatives (collectively, “Released Persons”) of and from any and all claims, liabilities, losses or damages that Purchaser may have or has ever had against any Released Person arising out of or relating to the Auction Items purchased at the Auction or use thereof, including without limitation, any liability or damage relating to injury to person or property. Purchaser hereby agrees to indemnify, defend and hold Auctioneer and its parent, subsidiaries and Affiliates, Site Owner, Seller and each of their respective directors, officers, employees and other representatives (collectively, “Indemnified Persons”) harmless from any and all costs, expenses, damages and liabilities (including, without limitation, attorneys’ fees) incurred or sustained by, or imposed upon any Indemnified Person arising out of or relating to (i) Purchaser’s breach of these Purchase Terms, (ii) Purchaser’s improper use of Auctioneer’s online marketplace, (iii) the inspection, loading and transport of the Auction Items by Purchaser or Purchaser’s agent and/or any property damage or bodily injury arising therefrom, (iv) Purchaser’s ownership, repair, maintenance (or lack thereof) and/or use of the Auction Items, and/or any property damage or bodily injury arising therefrom, (v) Purchaser’s violation of any applicable law, or (vi) the enforcement of this indemnity by Auctioneer. For purposes of this paragraph, (a) the term “Affiliate” means any person or entity that directly or indirectly controls, is controlled by, or is under common control with, Auctioneer, and (b) the term “control” means (i) the possession, directly or indirectly, of the power to vote fifty percent (50%) or more of the securities of a person or entity having ordinary voting power, (ii) the possession, directly or indirectly, of the power to direct or cause the direction of the management policies of a person or entity, by contract or otherwise, or (iii) being a director, manager, officer, executor, trustee, or fiduciary (or their equivalents) of a person or entity or a person or entity that controls such person or entity.
GOVERNING LAW; JURISDICTION: ALL MATTERS ARISING OUT OF OR RELATING TO THESE PURCHASER TERMS ARE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF ALABAMA WITHOUT GIVING EFFECT TO ANY CHOICE OR CONFLICT OF LAW PROVISION OR RULE (WHETHER OF THE STATE OF ALABAMA OR ANY OTHER JURISDICTION) THAT WOULD CAUSE THE APPLICATION OF THE LAWS OF ANY JURISDICTION OTHER THAN THOSE OF THE STATE OF ALABAMA. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY AGREES THAT IT WILL NOT COMMENCE ANY ACTION, LITIGATION, OR PROCEEDING OF ANY KIND WHATSOEVER AGAINST ANY OTHER PARTY IN ANY WAY ARISING FROM OR RELATING TO THESE PURCHASER TERMS AND ALL CONTEMPLATED TRANSACTIONS IN ANY FORUM OTHER THAN THE US DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA OR THE COURTS OF THE STATE OF ALABAMA SITTING IN JEFFERSON COUNTY, ALABAMA. EACH PARTY IRREVOCABLY AND UNCONDITIONALLY SUBMITS TO THE EXCLUSIVE JURISDICTION OF SUCH COURTS AND AGREES TO BRING ANY SUCH ACTION, LITIGATION, OR PROCEEDING ONLY IN THE US DISTRICT COURT FOR THE NORTHERN DISTRICT OF ALABAMA OR THE COURTS OF THE STATE OF ALABAMA SITTING IN JEFFERSON COUNTY, ALABAMA. EACH PARTY AGREES THAT A FINAL JUDGMENT IN ANY SUCH ACTION, LITIGATION, OR PROCEEDING IS CONCLUSIVE AND MAY BE ENFORCED IN OTHER JURISDICTIONS BY SUIT ON THE JUDGMENT OR IN ANY OTHER MANNER PROVIDED BY LAW.