Last Modified: May 23, 2017
[JJ Kane Properties, LLC] , a [Delaware] limited liability company doing business as “J.J. Kane Auctioneers”( “Company” , “We” “Us” ), provides live auctions as well as online bid boards, auctions and stores via www.jjkane.com and other related websites (collectively, the “Website” ). The Website facilitates transactions by allowing governmental bodies, municipalities and other related parties ( “Sellers” or “You” ) to sell surplus goods and other property to buyers of all types ( “Buyers” ).
AS A CONDITION TO ACCESSING, REGISTERING WITH OR USING THE WEBSITE AND RECEIVING THE BENEFIT OF THE SERVICES PROVIDED BY COMPANY VIA THE WEBSITE OR OTHERWISE (THE “SERVICES”), YOU ACCEPT AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS, REGISTER WITH OR OTHERWISE USE THE WEBSITE OR THE SERVICES.
ACCESSING THE WEBSITE AND USING OUR SERVICES
Seller Representations. By accessing, registering with or using the Website or the Services, You represent,warrant and covenant as follows:
- You are: (1) 18 years of age and otherwise able to enter into a binding contract with Company in the jurisdiction in which you reside; and (2) if you represent an entity, you are a duly authorized representative of, and have the legal authority to bind, such entity to this Agreement.
- Any information that You have provided to Company, including without limitation at the time of
registering with the Website or otherwise using the Services, is true, complete and correct, and You are dealing in good faith and are not attempting to defraud, cheat or wrong Company or any Buyer.
- You will comply with all applicable laws, statutes, ordinances and regulations regarding Your use of the Website or the Services and the offer and sale of property under your username or account, and You hereby release Company from any liability arising out of Your breach of this provision.
Seller Obligations. In listing or offering items for sale on the Website or otherwise using the Services in any way, You acknowledge and agree to the following:
- Your offer for sale shall not include any other contingency or condition for sale other than those stated in the listing at the time of offer for sale, and You warrant to Buyer that the property offered for sale will materially conform to its description.
- You shall be responsible and obligated for delivering and transferring property sold using Your
username and password.
- You are the owner of right and title to the property offered for sale and You are fully capable of transferring such right and title to the property offered for sale in a timely manner.
- At the close of an auction in which a property listed or offered by You is purchased by any Buyer, You agree to make the property immediately available for pickup and/or delivery, unless Company has already taken possession of such property.
- You agree that You will take all steps necessary to ensure that Your employees, contractors, and agents comply with the terms, conditions and covenants contained in this Agreement, and You acknowledge and agree that You will be responsible and liable for any damages, claims, liabilities, and expenses of any kind suffered by Company or any of our affiliated companies arising from any and all actions or failures to act taken by any party using Your username or account or taken by Your employees, contractors or agents.
INSPECTION, BIDDING AND AUCTIONS
Inspection. Most property offered for sale is used and may contain defects not immediately detectable. Potential Buyers may inspect the property prior to bidding. Potential Buyers must adhere to the inspection dates and times indicated in the property description. Any claim by Buyer that the property does not materially conform to the description must be made prior to removal of the property. Upon removal of the property, all sales are final.
[Buyer’s Certificate. Successful Buyers will receive a Buyer’s Certificate by email from Company.]
[Removal. All property purchased by Buyer must be removed within [ten (10) business days] from the time and date of issuance of the Buyer’s Certificate. Purchases will be released only upon receipt of payment in full. Successful Buyers are responsible for loading and removal of any and all property awarded to them from the place where the property is located as indicated on the Website and in the Buyer’s Certificate. A daily storage fee may be charged for any item not removed within [ten (10) business days] from the time and date of issuance of the Buyer’s Certificate.]
FEES, DEPOSITS AND PAYMENT TERMS
Fees. [Company does not charge fees for You to register with the Website or to list property for sale on the Website]. However, Company does charge a transaction fee and applicable taxes for each sale through the Website. Other fees may apply for other Services or charges as described on the Website. Our fees and charges may change from time to time.
Deposits. We reserve the right to require an earnest money deposit prior to or during the listing of certain property in our sole discretion.
Payment. You are responsible for paying all fees, charges and any applicable taxes associated with transactions effected under your user name or account [not later than five (5) business days from the time and date of issuance of the Buyer’s Certificate]. [Payment must be made electronically through the Website with valid debit or credit card information or via wire transfer as instructed by Company.] If your payment method fails or Your account is otherwise past due, Company may collect fees owed, interest in the amount of 1.5% or the maximum amount allowed by law, whichever is greater, and the costs and expenses incurred in collecting such amounts, including without limitation reasonable attorneys’ fees.
MODIFICATION; SUSPENSION OR TERMINATION
Company reserves the right, in its sole discretion, to modify, suspend or terminate any aspect of the Website or the Services without notice.
Company reserves the right to suspend or terminate Your access to the Website and the Services for any reason or no reason, including without limitation if We suspect that You have engaged in fraudulent activity or that Your actions may cause detriment or legal liability for You, our users, or Company, including its subsidiaries or affiliates.
You agree to indemnify, defend and hold harmless Company from and against any and all debts, liabilities, obligations, claims, suits, judgments, damages, expenses, including reasonable attorneys’ fees, and demand, made or incurred by Company arising out of Your breach or alleged breach of this Agreement or Your violation or alleged violation of any applicable law or any rights of a third party.
DISCLAIMER OF WARRANTIES
THE WEBSITE AND SERVICES, INCLUDING ALL CONTENT, FUNCTIONALITY, MATERIALS AND INFORMATION ON OR ACCESSED THROUGH THE WEBSITE OR SERVICES, ARE PROVIDED ON AN “AS IS,” “AS AVAILABLE” BASIS. COMPANY DISCLAIMS ALL WARRANTIES OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTY OF MERCHANT-ABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. COMPANY DOES NOT WARRANT THAT THE WEBSITE, ITS FEATURES OR ITS CONTENT WILL BE FUNCTIONAL, SECURE, UNINTERRUPTED OR ERROR FREE OR THAT DEFECTS WILL BE CORRECTED.
LIMITATIONS OF LIABILITY AND RELEASES
Marketplace; Absence of Liability. You will not hold Company responsible for actions or inaction’s of Buyers or other users, including the failure of a Buyer to take delivery or make payment for an item. You acknowledge and agree that we are not the buyer or seller of the property sold via the Website. Instead, the Website is solely a marketplace to facilitate the offering, buying and selling of products in a variety of pricing formats and venues. As such, we are not involved or otherwise party to any transaction between You and any Buyer.
Release. If you have a dispute with a Buyer or any other Seller or user of the Website, You release Company (and our officers, directors, employees, agents, subsidiaries and affiliates) from claims, demands and damages of every kind and nature, regardless of legal theory or whether known or unknown, arising out of or related to such disputes. If You are a California resident, You waive California Civil Code §1542, which states: “A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.” If You are a resident of a State with a similar statute, You waive the applicable statute.
Exclusion of Damages. IN NO EVENT SHALL COMPANY, ITS SUBSIDIARIES OR AFFILIATES, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, MEMBERS, EMPLOYEES, OR AGENTS, BE LIABLE UNDER THIS AGREEMENT TO YOU OR ANY THIRD PARTY FOR CONSEQUENTIAL, INDIRECT, SPECIAL, INCIDENTAL, EXEMPLARY, PUNITIVE OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (I) WHETHER SUCH DAMAGES WERE FORESEEABLE; (II) WHETHER OR NOT IT WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND (III) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED.
Maximum Liability. IN NO EVENT SHALL COMPANY’S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE [TOTAL FAIR MARKET VALUE OF THE ITEMS OR PROPERTY OFFERED FOR SALE BY YOU VIA THE WEBSITE OR SERVICES GIVING RISE TO THE CLAIM OR $[5,000], WHICHEVER IS LESS]. The limitation of liability provisions set forth herein shall apply even if Your remedies under this Agreement fail of their essential purpose. You further acknowledge and agree that Company provides access to the Website and the Services in reliance upon the limitations of liability set forth in this Agreement, that the same reflect an allocation of risk between the parties, and that the same form an essential basis of the bargain between the parties.