Agreement Special Conditions and Terms of Sale

Introduction

1. The contractual relationship between Yoder & Frey Auctioneers, LLC and the Purchaser is governed by

 

1.1. these terms and conditions;

1.2. the information as detailed in the sale catalogue for each Auction; and

1.3. any additional notices and terms printed in the sale catalogue in each case as amended by any saleroom notice or Auctioneer’s announcement.

2. Definitions “Agreement” means this agreement “Auction” means an auction undertaken by Yoder & Frey Auctioneers, LLC “Auction Site” means any Yoder & Frey Auctioneers, LLC premises from where the Auction is conducted “Auctioneer” means Yoder & Frey Auctioneers, LLC, its staff, representatives, and person and persons for the time being authorised by the Auctioneer to have the conduct of an Auction “Bidder” means any person who has registered with the Auctioneer and has been issued with a Bidding Number for an Auction “Bidding Number” means the unique bidding number assigned to the Bidder upon registration with the Auctioneer for an Auction “Commission” means the percentage payment due by the Purchaser to the Auctioneer upon the sale of any Lots “Deposit” means $10,000 Dollars (at the Auctioneer’s discretion) or any additional amount payable in accordance with clause 5 below. “Hammer Price” means the highest bid for any Lot accepted by the Auctioneer at an Auction “Lot” means any individual single part of a consignment put up for Auction by the Auctioneer “Purchaser” means the highest Bidder for any Lot “Purchase Price” means the sum total of the Hammer Price plus TAX and the Commission plus TAX (where applicable)

 

“Vendor” means the seller of any Lot Terms and Conditions

3. Bidder acknowledges that an Auction site is a potentially dangerous place. Flammable, noxious, corrosive and pressurised substances are present, heavy equipment is being operated and the electric circuits may be live. Every person at the Auction site at any time shall be there at their own risk with 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 Auctioneers, their Agents, Employees, or Principals for any injuries sustained, nor for damages to or loss of property which may occur from any cause whatsoever.

4. All Bidders are required to register before entering the Auction. The Auctioneer shall have the right, at its discretion, to refuse any person admission to the Auction Site or attendance at any Auction.

5. On registration, the Auctioneer shall be entitled to require Bidders to pay the Deposit in cleared funds. A Deposit of $10,000 will entitle the Bidder to bid up to an initial aggregate credit limit of $50,000 (excluding TAX and Commission) at the Auction. Deposits will only be refunded if no purchase is made and where the Bidder has no balance outstanding from any other Yoder & Frey Auctioneers, LLC or any other affiliated auction in any other country. In cases where the Bidder has an outstanding balance from any other auction the

 

 

Auctioneer reserves the right to consider this deposit as payment on account. Please note card refunds may take up to 7 days to be credited to buyer’s bank account. All Bidders who intend to bid for any Lot(s) with an aggregate value in excess of $50,000 excluding TAX and Commission (or such other sum as the Auctioneer shall determine) must notify the Auctioneer at registration. If any Bidder intends to, or makes, a bid in excess of the initial credit limit the Auctioneer will require the Bidder to pay to the Auctioneer an amount equivalent to 10% of the projected selling price of the Lot(s) as the Deposit in cleared funds on the day of the Auction. Any estimation of the value or projected selling price of any Lot to be undertaken under this clause will be carried out by the Auctioneer in its sole and absolute discretion. The Auctioneer reserves the right to refuse the bid of any Bidder who does not comply with the provisions of this clause.

6. The Auctioneer reserves the right to revoke any Bidding Number at any time.

7. The Auctioneer sells as agent for the Vendor and as such is not responsible for any default by Vendor or Purchaser.

8. The highest Bidder shall be the Purchaser. Any dispute as to any bid shall be settled at the Auctioneer’s absolute discretion. Every Bidder shall be deemed to act as a principal unless there is in force written acknowledgement by the Auctioneer that the Bidder acts as agent on behalf of a named principal. Any such agency arrangements must be notified to the Auctioneer at registration.

9. Pre-Bids placed will be executed by the auctioneer, however, Auctioneer shall not be liable for any claims or costs arising from its failure to do so. However, Pre-Bids placed on lots passed or not sold due to reasons under the Auctioneers control will be automatically deemed null and void. Any system generated email messages or purchases added to an online account can be updated at any time to reflect a change. Pro-forma invoices are subject to change.

10. Pro-forma Invoices are emailed out at the end of every auction and are subject to change.

11. Lots sold subject to an existing finance agreement will be listed on the pro-forma invoice, however, said lots are not free to collect until Auctioneer receives final release confirmation from finance company. Pro-forma invoices are subject to change.

12. No Bidder may advance less at a bid than a sum to be named from time to time by the Auctioneer.

13. The Auctioneer has absolute discretion without giving any reason to refuse any bid, to divide any Lot, to combine any two or more Lots, to withdraw any Lot from the Auction and in case of dispute put any Lot up for Auction again. The Auctioneer has the absolute discretion to choice lots which will be sold for individual hammer prices.

14. Without prejudice to the generality of clause 7, all Lots are sold as seen and with all faults and imperfections and errors of description. Illustrations, descriptions and years in catalogues or brochures are for identification only. Descriptions in each case are provided by the Vendor. All Lots are available for inspection and Purchasers should satisfy themselves prior to the Auction to as to the condition of each Lot and should exercise and rely on their own judgement as to whether the Lot accords with its description. The Purchaser of any Lot is deemed to have inspected the Lot prior to purchase. The Auctioneer gives no warranty as to the description, condition, year or otherwise in relation to any Lot and all warranties, conditions and other terms implied by statute or common law are, to the fullest extent permitted by law, excluded from the Agreement. Each and every Lot shall be sold ‘as is, where is’. Specifically, but without limitation, the 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 of 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.

 

The Purchaser agrees he has satisfied himself and is not relying on the Auctioneer, nor are the Auctioneer liable, for any matter in respect of the above. Bidder further agrees to repair, at his cost, any Lot purchased at the Auction to 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.

15. The Auctioneer may offer Lots to internet bidders using its online service; however, Auctioneer shall not be liable for any claims or costs arising from its failure to do so. Inaccuracies in the catalogue or on the internet will under no circumstances relieve the Purchaser from responsibilities accepted on the Bidders Registration form.

16. The Auctioneer will use reasonable endeavours to ensure that all Lots appearing in the catalogue for sale are presented for sale at the Auction but the Auctioneer accepts no liability for loss or damage howsoever arising (included but not limited to costs of attendance of Bidders at the Auction) in the event that any Lot is withdrawn or otherwise is not presented for sale at any Auction.

17. The Purchaser of any Lot will be charged Commission on the Hammer Price at a rate of ten percent (10%) will be charged on the first $2,500 of the last bid made or received (“the Hammer Price”) for each item, and three and nine tenths percent (3.9%) on the balance. All applicable sales tax will be added to the purchase price of all purchases deemed taxable in accordance with Federal, State and/or Local Laws.

18. No Titles will be given out on sale day. If you are a Florida resident paying sales tax, Titles will be mailed out by certified mail the later of (1) ten banking days after the last day of the sale, or (2) ten banking days after payment of your item(s) has been received. Purchasers who purchase Titled items will be charged a $75 processing fee per titled item.

19. If, for any reason whatsoever, the Auctioneers are unable to make available or otherwise effect delivery of any lot or clear title to same, or any necessary documentation required in respect to any lot, whether before or after delivery of such lot, the Auctioneer’s sole liability, if any, shall be the return of any monies paid on such lot upon return of the particular lot. Any lot the subject of this paragraph shall be returned or surrendered to the Auctioneers forthwith upon demand to be at the sole option of the Auctioneers.

 

20. All sums owed under this Agreement shall be paid in full within 7 days of the Auction failing which the Auctioneer may charge interest on late payments on a daily basis at a rate equivalent to 4% above the Bank base lending rate in force.

21. Bidder acknowledges and agrees that the acquisition, delivery, export, and ownership of certain products or source of funds for such products are subject to international, federal, state, and local regulations. Bidder expressly represents that it is presently in full compliance with and shall continue to comply with all applicable international, federal, state and local laws, statutes, ordinances and regulations relation to the acquisition, delivery, export, and ownership of any Lots as may be required by Bidder.

22. Tax

 

22.1 Tax on Hammer Price

22.1.1 US Purchasers

Tax is payable by the Purchaser on the Hammer Price and Commission unless a valid Sales Tax Exempt form is received in the legal entity of the Purchaser.

22.1.2 Non US Purchasers

Applicable Tax is payable by the Purchaser on the Hammer Price and Commission of all Lots. The Purchaser can request a refund of this Tax from the Auctioneer provided the Purchaser provides to the Auctioneer’s satisfaction an original Bill of Lading in connection with the purchased Lot.

23. The Auctioneer will accept the following as means of payment subject to the conditions below:

 

Bank Wire Cash; Cashier or Certified Check; Personal or Company Checks (must have a bank letter of guarantee; Card; subject to a 3% non-refundable fee

In each case the Purchaser must cause cleared funds equivalent to the Purchase Price to be paid to the Auctioneer within 7 days from the Auction. No payment shall be deemed

to have been received by the Auctioneer until the Auctioneer has received cleared funds. Time for payment shall be of the essence. Cash over the amount of $10,000 will not be accepted as a means of payment unless the Auctioneer is in receipt of valid identification documents and completion of Form 8300.

24. The Auctioneer shall not be obliged to release any funds to the Vendor for Lots sold until such time as the Auctioneer has received cleared funds from the Purchaser of such Lots or 21 days from the Auction Date

25. Each Lot shall be at the Purchaser’s risk from the fall of the hammer but must be paid for in full before ownership of the Lot passes to the Purchaser. The Purchaser agrees to insure the purchased Lot against all losses from the Auction until removal of the Lot by the Purchaser.

26. The Purchaser, or its servants or agents, will be responsible for the loss or damage to the Lots purchased from the time of the Auction and neither the Auctioneer or its servants or agents shall afterwards be responsible for any loss or damage of any kind, whether caused by negligence or otherwise, while any Lot is in their custody or under their control.

27. The Purchaser shall at its own expense take away the Lot purchased not later than 2 weeks after the day of the Auction but not before payment to the Auctioneer of the Total Invoice Price. The Purchaser will be responsible for any removal, storage and insurance charges on any Lot not taken away within 2 weeks after the day of the Auction. Purchasers are responsible for breaking down equipment for transport. Yoder & Frey Auctioneers, LLC will only assist in the loading process and are not liable for any damage that may be caused in the loading of any purchased lots.

28. If any Lot is not paid for in full and taken away in accordance with the above conditions, the Auctioneer may, at its absolute discretion and without prejudice to any other rights it may have, resell the Lot or cause for it to be resold by public auction or private sale. The defaulting Purchaser shall then pay to the Auctioneer any resulting deficiency in the Purchase Price from the first sale after deduction of any part payment and addition of sale costs. Any surplus shall belong to the defaulting Purchaser.

29. Neither a Bidder nor any person affiliated with, or as agent of, a Bidder shall collude with any Vendor or any other Bidder in the making of bids for Lots at the Auction.

30. This Agreement can only be amended or varied by written agreement between the parties and constitutes the entire agreement between the parties and overrides prior contracts or agreements or understandings between the parties in relation to the sale by Auction and ensures for the benefit of and is binding upon the heirs, executors, administrators, successors in title and assigns of the parties herein.

31. The Purchaser accepts that Auctioneer may vary the invoice in relation to lots bought as a direct result of errors in buyer numbers during sale day. Auctioneer will endeavour to minimise this possibility at all times however, buyers will accept lots bought at auction.

 

32. The Purchaser may also be Vendor and the Auctioneer can contra both accounts.

In relation to Contras:

a) The Purchaser agrees that where a contra has been applied to the Purchaser’s account the Auctioneer reserves the right to remove or amend this at a later date. Should this occur the new Invoice will supersede any previous invoices or pro-forma and the Purchaser will be liable for any outstanding amount.

b) The Purchaser agrees that contras will be made against the oldest outstanding debt.

 

33. The formation, existence, construction, performance, validity and all aspects of this Agreement shall be governed by US Law and the parties submit to the non-exclusive jurisdiction of the US Courts.