Participation in Auction. The services provided by FabExchange (“Auctioneer”) with a known address of 4040 Clipper Court, Santa Fremont, CA 994538 are governed by these Terms and Conditions. By participating in this Auction, you consent to be bound by these Terms and Conditions as well as by any additional terms that may be imposed by the Seller or announced at the Auction.
Mandatory Online Registration. All potential bidders must register online at auction.fabexchange.com before the Auction. Auctioneer may, in its sole discretion, deny registration to any person or entity.
Auctioneer has Sole Authority over Conduct of Auction. The Auction will be conducted in accordance with California Commercial Code 2328 and California Civil Code Sections 2362 and 2363 along with these Terms and Conditions. Auctioneer will have sole and complete authority over the conduct of the Auction and any decision of Auctioneer with respect to the conduct of the Auction and any decision of Auctioneer with respect to the conduct of the Auction and the acceptance or rejection of any bid shall be final.
Assets sold to Highest Bidder. All assets in the Auction shall be sold to the highest bidder; provided, however, that some assets may be auctioned with minimum reserve prices and/or subject to Seller’s right of confirmation. All items will remain in the possession of Auctioneer until full payment has been received from the Purchaser.
Auctioneer’s Right to Reject or Accept Bids. Auctioneer 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 Auctioneer believes was made illegally or in bad faith. Further, Auctioneer, and/or its affiliates or subsidiaries, may bid at the Auction either for its own account or on behalf of a third party. In the event of a dispute among bidders, Auctioneer may, in its sole discretion, either accept what it deems to be the final bid or solicit further bids on the item in dispute. All sales are final. No returns or refunds will be permitted, unless authorized by the Seller in writing.
Auctioneer’s Records Control. In the event of any dispute concerning the winning bid price for an asset, the record kept by Auctioneer shall control.
No Warranty by Auctioneer or Seller. Bidders shall examine or inspect items prior to the auction. ALL ITEMS ARE SOLD “AS IS, WHERE IS” AND WITH ALL FAULTS. NEITHER AUCTIONEER NOR SELLER MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE NATURE, QUALITY, VALUE OR CONDITION OF ANY ASSET. AUCTIONEER AND SELLER EXPRESSLY DISCLAIM ANY WARRANTY OF TITLE, MERCHANTIABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Auctioneer will announce if any item carries a manufacturer’s warranty at the time the item is offered for sale. Assets are intended to be sold without software, if any is applicable. In the event that a Seller’s software is included in an asset sale, notwithstanding the disclaimers set forth above, Auctioneer makes no representations or warranties regarding the Purchaser’s right to use such software, as to the performance of the software, its non-infringement or otherwise. In such circumstances, Auctioneer recommends that Purchaser contact the software manufacturer directly to resolve any such issues. Auctioneer relies on information about assets in the Auction provided by the Seller. Auctioneer undertakes no investigation of that information, and makes no representation or warranty concerning the truth or completeness of that information. Photographs are provided solely for the bidder’s convenience and shall not be construed to create representations or warranties of any kind pertaining to the assets. Purchaser acknowledges that it has had the opportunity to inspect all assets prior to tendering its bid and waives any and all claims against Auctioneer and/or Seller relating to asset photographs or descriptions.
Auctioneer’s Collection of Buyer’s Premium in addition to Purchase Price. Auctioneer shall add an 18% buyer’s premium to the purchase price.
Applicable Taxes. Collection of applicable taxes will be in accordance with the laws of the State where the purchased asset is located.
Payment of Deposit. Each successful bidder must pay a 25% deposit toward the purchase price immediately following the successful bid. If a bidder fails to make a timely deposit, Auctioneer and the Seller may resell the items in question without notice.
Sales are Final: All sales are final and no refund will be made for any reason.
Payment of Full Purchase Price. Full payment of the purchase price is due at the earlier of (i) 48 hours after the bidder has received an invoice, or (ii) the close of business on the third (3rd) business day after the Auction. Without limiting the foregoing, full payment of the balance of the purchase price is due prior to removal of any purchased assets. In the event, for any reason, purchased assets are released to bidder prior to making full payment, bidder agrees to make full payment within 24 hours from the date of release. Failure to do so will constitute a breach of this Agreement.
Failure to Pay Entire Purchase Price. In the event that a bidder fails to pay the entire amount due (purchase price, buyer’s premium and sales tax, if applicable) within the time specified by Auctioneer or otherwise fails to comply with these Terms and Conditions, Auctioneer and the Seller will retain any deposit as liquidated damages without notice. Auctioneer and the Seller reserve the right to resell such items without notice, and the defaulting Purchaser shall be liable to Auctioneer and Seller for any resulting deficiency, including costs incurred in storing and reselling such assets. In the event of such resale, the defaulting Purchaser shall be liable to Auctioneer and Seller for any resulting deficiency, including costs incurred in storing and reselling the assets in question.
Acceptable Methods of Payment. Auctioneer accepts the following methods of payment: cash, cashier’s check, and wire transfer made payable to “FabExchange”. Auctioneer will also accept a check drawn on a company account if it is accompanied by a letter from the company’s bank guaranteeing payment in full, without condition and upon demand.
Warranty by Bidder. By participating in an Auction, each bidder represents, warrants and covenants that (i) it shall not misrepresent its ability to close the transaction pursuant to the terms and conditions of sale, (ii) it has the capacity to close the transaction, (iii) it has actual authority to enter a bid, and to enter into an agreement to purchase the item, and (iv) any bid it makes on an item constitutes an irrevocable offer to buy the item for the full amount of the bid.
Assets for Sale by Piece or Lot. Auctioneer may, in its discretion, offer the assets for sale by the piece or by the lot. In addition, Auctioneer may augment this auction with assets from various sellers. These assets may be interspersed throughout the Auction. The Seller has the right to remove assets from the Auction either before or after bidding has completed. In the event of a removal after bidding has been completed, the purchaser’s sole remedy shall be the refund of any purchase price actually paid.
Additions or Deletions to and from Catalog. Auctioneer will announce any additions to or deletions from the catalog on the day of the Auction. Auctioneer and the Seller assume no responsibility for, and make no representations or warranties concerning, descriptions of assets contained in marketing materials for the Auction. It is the bidder’s obligation to verify such descriptions prior to the Auction.
Limitation of Liability by Auctioneer or Seller. Neither Auctioneer nor Seller shall be liable for any damages of any type or nature (whether in contract, tort or otherwise) sustained or claimed by any bidder or any other person or entity in connection with the Auction. Without limiting the foregoing, in no event shall Auctioneer’s liability to any bidder for any act or omission occurring in connection with the Auction exceed the amount that such bidder has actually paid to Auctioneer as a deposit or as payment for a purchased item.
Removal and Shipment of Purchased Items by Purchaser. Auctioneer will announce the removal, or check-out, period on the day of the Auction. Auctioneer shall have no responsibility to disconnect utilities to the sold asset, including electric, gas, waste and water lines. It is the purchaser’s sole responsibility to arrange and pay for the removal and shipment of purchased items.
Purchaser’s Responsibility to Insure Agents Performing Removal. It is the Purchaser’s responsibility to provide and/or insure his, her, or its agent(s) performing removals on their behalf provide, upon demand, evidence of the following insurance policies with reliable insurance companies, and in the following amounts: $2,000,000 combined single limit, $1,000,000 property damage and $1,000,000 comprehensive general liability with contractual liability in the case of all triggers; and $500,000 cargo and $1,000,000 comprehensive general liability in the case of carriers; and such other insurance as may be required by any governmental authority, including workers’ compensation insurance. Removal shall be conducted responsibly and with due care from the Seller’s premises. The Purchaser shall restore and repair all real and personal property that is altered or damaged as a result of the removal of purchased items. If the Purchaser does not remove an item within the announced check-out period, Auctioneer and the Seller may, in their sole discretion, deem the item to have been abandoned by the Purchaser and the Purchaser will have no further rights with respect to the item. Notwithstanding the foregoing, Auctioneer and the Seller reserve the right to charge the Purchaser for the costs of storage beyond the check-out period.
Dangerous Materials at Auction Site. Bidders acknowledge 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. Bidders shall so advise their agents and employees. No person shall have any claim against Auctioneer, the Seller or their respective agents or employees for any injuries sustained or for damages to or loss of property that may occur at the auction site.
Purchaser’s Duty to Indemnify Auctioneer. It is the purchaser’s sole responsibility to meet all governmental safety and environmental standards in removing, shipping and using purchased items. Certain of the items for sale may contain “hazardous substances,” as that term is defined under federal, state or local environment laws and regulations. Auctioneer has no duty to remove any hazardous substances that are contained in or are a part of any item. Purchasers agree to defend (by counsel satisfactory to Auctioneer) and indemnify Auctioneer and hold Auctioneer harmless from and against any claim, demand, cause of action, liability or expense (including attorneys’ fees and costs) asserted against or incurred by Auctioneer in connection with the sale, removal, shipment or use of any purchased items.
Purchaser’s Agreement to Comply with US Export Control and Related Laws. Purchaser agrees to comply with all United States export control and related laws, and acknowledge that Auctioneer 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 of the United States. Auctioneer makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute Restricted Technology. Seller reserves the right to cancel any sale at any time in the event it determines, in its sole discretion that the sale does or may violate applicable United States export control or similar laws.
Entire Agreement. These Terms and Conditions contain the entire agreement between Auctioneer and Purchaser relating to the rights granted and obligations assumed hereunder. Any oral representations or modifications concerning this Agreement will be of no force or effect excepting a subsequent modification in writing, signed by the party to be charged.
Partial Invalidity. If any part of these Terms and Conditions is declared invalid for any reason, the remainder of this agreement shall be unaffected. The other parts of these Terms and Conditions shall remain in effect as if the agreement never had the invalid part. The parties declare that they intend and desire that the remaining parts of the agreement continue to be effective without any part or parts that have been declared invalid.
Amendments and Waivers. Any term or provision of these Terms and Conditions may be amended and the observance of any term set forth hereunder may be waived (either generally or in a particular instance and either retroactively or prospectively) only by a writing signed by the party to be bound thereby. The waiver by a party of any breach of this Terms and Conditions will not be deemed to constitute a waiver of any other default or succeeding breach or default.
Governing Law. These Terms and Conditions, and all questions with respect to the interpretation of these Terms and Conditions, shall be governed by and construed in accordance with the internal laws of the State of California, without regard to conflict of law provisions. All bidders and Purchasers expressly consent to personal and exclusive jurisdiction of the federal and state courts located in Santa Clara County, California.
Legal Fees. Bidder and Purchaser agree to pay any and all expenses and costs incurred by Auctioneer to enforce this Agreement, with or without suit, in any bankruptcy proceeding including contested matters and adversary proceedings, on appeal, in pre-judgment collections actions and in post-judgment collections enforcement, including but limited to the following expenses and costs: attorneys’ fees, taxable court costs, non-attorney (such as accountants and expert witnesses) professional fees, costs and other charges, and non-taxable costs including all photocopy, private investigation, computerized legal research, messenger, overnight courier, postage, travel, transportation and clerical overtime charges. If Bidder or Purchaser bring suit against Auctioneer arising out of this Agreement, then the non‑prevailing party must pay the prevailing party’s reasonable attorneys’ fees, taxable court costs, non-attorney professional fees, non-taxable costs, collections actions and enforcement and other expenses of suit, bankruptcy proceedings and appeals as described in the preceding sentence, all as determined by the court. For purposes of this Section, “prevailing party” means: (a) in the case of the plaintiff, one who is successful in obtaining substantially all of the relief sought by him; and (b) in the case of the defendant, one who is successful in defeating substantially all of the relief sought by the plaintiff.
California Civil Code Section 1654 Waiver. The determination of the terms of, and the drafting of these Terms and Conditions have been by mutual agreement after negotiation with, consideration by and participation of all parties. The presumption found in Civil Code Section 1654, that uncertainties in a contract are interpreted against the party causing an uncertainty to exist, is hereby waived by all parties under these Terms and Conditions.