Bidder Agreement Provisions -

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Agreement Provisions

Bidder Agreement Provisions

Bidder Agreement Provisions

1. Acknowledgements, representations, warranties and agreements of individual identified on the reverse side of this document, hereby referred to as (Bidder) and Russo and Steele L.L.C. (RS)

A. Bidder hereby represents, warrants, and covenants that as a condition precedent to Bidder’s participation in the auction, and prior to making any bid on any Vehicle, Bidder, or Bidder’s qualified representative shall, inspect and examine all Vehicles upon which Bidder may make any bid, to the extent Bidder believes necessary, in Bidder’s sole discretion, sufficient to verify or discover all facts material to a purchase of any such Vehicle. Further, the amount offered by Bidder to purchase any Vehicle shall be determined solely by Bidder’s inspection of the Vehicle, or that of Bidder’s authorized and qualified independent agent, and shall in no manner whatever be based on or in reliance upon any representation by RS, or any person affiliated with RS, or assumption based on the reputation or knowledge of RS. In addition, Bidder represents, warrants, and covenants that no bid on any Vehicle shall be made by Bidder without a prior examination of the Vehicle to such degree as Bidder, in its sole and absolute discretion, believes sufficient for Bidder’s purposes, which purposes are known only to Bidder. Bidder hereby accepts and assumes all risks with respect to any damage, defect, fault, or nonconformity of any Vehicle, whether obvious, hidden, or intentionally concealed. Bidder hereby acknowledges, represents, and agrees that Bidder has no right to rely and will not rely on any statement, representation, reputation, or knowledge made by or thought to be possessed by RS or any person affiliated with RS; including, but not limited to, representations or knowledge with respect to any fact or factor affecting or concerning any Vehicle such as: condition, make, year, model, mileage, authenticity, equipment, originality, provenance, use, restoration, ownership or manufacture.

B. Bidder acknowledges, understands, and agrees that each Vehicle is described and catalogued using facts and figures provided by the owner of the Vehicle, or its authorized representative. RS makes, and assumes no duty to undertake, any independent investigation or verification of such facts and figures. Each Vehicle is sold “AS IS – WHERE IS,” and without recourse. RS will issue no refund or credit in any event.

C. Bidder acknowledges, understands, and agrees that: (i) RS offers each Vehicle for sale by auction on consignment from the owner of the Vehicle; (ii) RS is the exclusive agent of the owner; (iii) All Vehicles are offered “AS IS, WHERE IS;” (iv) most of the Vehicles are not new; (v) Certain defects and faults in the condition of the Vehicles are to be expected, some of which are not readily ascertainable by inspection, and for none of which may RS be held responsible; (vi) RS does not inspect the Vehicles and offers no warranty of any kind or description with respect to the Vehicles; (vii) All descriptions, opinions of value, statements of condition, statements of provenance, and documents of title are provided by the owner of the Vehicle, are not independently verified by RS, and RS may not be held liable or responsible for same (viii) RS makes no representation and expresses no opinion with respect to any Vehicle; (ix) RS undertakes no duty to inspect any Vehicle or document of title for any reason; including, but not limited to defects, faults, or determination or estimate of value; (x) RS expresses no opinion with respect to and undertakes no duty to investigate or inspect the provenance of any vehicle.

D. Bidder hereby acknowledges that RS has a duty to Bidder only to the extent of release of the Vehicle upon performance by Bidder of the duties prerequisite or precedent to such delivery under the terms of this Agreement.

E. Except as specifically provided herein, Bidder hereby indemnifies, releases, waives, and holds harmless RS from and against any liability, claim, demand, responsibility or duty of any kind with respect to the Vehicle, Bidder’s purchase of the Vehicle or participation in the auction as a bidder on or potential buyer of any Vehicle; including, but not limited to, claims of negligence and negligent misrepresentation or breach of warranty. Notwithstanding the foregoing, RS’s obligation to deliver the Vehicle, as set forth immediately above, is not subject to this provision. Bidder specifically agrees not to serve or join RS as a party to any litigation involving, directly or indirectly, the condition of any Vehicle or its documents of title, any representation with respect to any Vehicle or its provenance, or any event or occurrence other than RS’s alleged failure to deliver a Vehicle according to the terms hereof. Bidder specifically acknowledges that all issues, other than delivery of a Vehicle, with respect to any Vehicle offered for sale by auction hereunder, are the sole responsibility of the owner of the Vehicle.

2. Disclaimer:

A. All statements or descriptions of any Vehicle offered for sale by auction hereunder, whether written or oral, and whether relating to the condition of any Vehicle, its history, use, identity, origin, or otherwise, are provided for purposes of identification only, and are not intended to be relied upon for any purpose, but specifically including value. All such descriptions and statements have been provided to RS by the owner of the Vehicle in question and RS has not and undertakes no duty to independently investigate or verify the veracity of any such description or statement.

B. RS makes, and no agent, employee or representative of RS is authorized to make, any representation, statement, guaranty of value, or offer any opinion with respect to any fact or factor with respect to any Vehicle. RS is the disclosed agent of the owner of the Vehicle and all information provided with respect to any Vehicle is provided by the owner. RS has not, and assumes no duty to, independently investigate or verify any information provided by the owner of the Vehicle.

C. RS hereby expressly disclaims any and all warranties, express or implied, with respect to all Vehicles offered for sale by auction; including, but not limited to the warranty of merchantability or fitness for a particular purpose.

D. All Vehicles are offered with reserve, unless specifically otherwise designated as “without reserve, as set forth in ARS § 47-2328, which was adopted from the Uniform Commercial Code for Sales. RS hereby represents that RS is authorized to make, procure, and receive bids on behalf of the owners of the Vehicles offered for sale by auction hereunder. Notice is further given pursuant to ARS Section 47-2328 that auctioneers may receive bids on the seller’s behalf and that the seller may make or procure such a bid on their own items. RS does not permit undisclosed free or low cost buy back options for sellers.

E. Each successful Bidder shall pay to RS, in addition to the amount of the final bid, an amount equal to ten (10%) percent of the final bid on each Vehicle (“Premium”) purchased at the auction, and all state, local, and federal taxes levied on the sale, the sum of which amounts shall be the final settlement figure (“Final Settlement Figure”) for payment by Bidder prior to release of the Vehicle.

3. Final Settlement Figure:

A. The Final Settlement Figure shall be paid by Bidder on or before the close of the auction and in all events prior to taking delivery of any Vehicle. RS shall accept only United States funds by wire transfer to the account specified by RS. In the event the Final Settlement Figure for any Vehicle is not paid in full by the successful Bidder, or such a Vehicle is not removed to possession and control of the successful Bidder, on or before the close of business on the date of sale or close of the auction, RS may remove said Vehicle to a public warehouse, without notice to the successful Bidder, and at the sole cost and risk of the successful Bidder. The successful Bidder shall pay all storage and removal costs to RS prior to taking delivery of the Vehicle. In the event a successful Bidder defaults by breach of this Agreement subsequent to removal of the Vehicle, as provided herein, the successful Bidder hereby agrees to pay the total amount of any Commission and Premium (both buyer and seller commissions) otherwise due to RS in the event the sale had closed without breach by the successful Bidder. Further, such Bidder hereby authorizes RS to charge any such amount to bidder’s bankcard, plus all storage and removal costs, to Bidder’s bankcard, information for which is on file with RS.

B. In the event that a successful Bidder defaults in the obligation to complete the sale by payment, as provided herein, and by taking possession of the Vehicle, said successful Bidder, in addition to other damages and remedies in law and equity, shall pay to RS an amount equal to twenty (20%) percent of the Final Settlement Figure, plus the Entry Fee ($1,000.00) paid by the owner of the Vehicle. Bidder hereby agrees to pay all costs of collection of this amount; including; but not limited to, court costs and attorneys’ fees.

4. Taxes and Fees: The successful Bidder shall be liable for and shall pay to RS all applicable state, local, and federal taxes or levies arising as a consequence of the purchase and sale of the Vehicle. Bidder is responsible for providing satisfactory written evidence of exemption, as determined in the sole discretion of RS. No tax or other levy shall be refundable to any successful Bidder more than fourteen (14) days after the sale or after such tax or levy has been paid by RS, whichever is first to occur.

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Bidder Initials
Bidder Agreement Provisions Page 2

5. Transfer: Ownership and risk of loss with respect to any Vehicle passes to the successful Bidder upon the auctioneer’s call of “Sold,” at which time Bidder assumes all risk of loss and responsibility for the Vehicle and becomes liable for the Final Settlement Figure. From and after the call of “Sold,” neither the previous owner of the Vehicle nor RS shall have any liability for loss or damage to the Vehicle as a result of theft, fire, vandalism, third party negligence, or any other cause whatsoever. Upon the auctioneer’s call of “Sold,” the successful Bidder shall sign a confirmation of purchase in the form supplied by RS and shall pay the Final Settlement Figure in full.

6. Removal of Vehicle: The successful Bidder shall cause any Vehicle purchased by said Bidder to be removed from the auction site within seventy-two (72) hours of the sale. Any Vehicle not removed by the successful Bidder shall be held in storage by RS, at the sole expense of the successful Bidder. In addition, the successful Bidder shall pay a “handling charge” to RS in the amount of one (1%) percent of the Final Settlement Figure for each thirty (30) day period or portion thereof during which the Vehicle is stored by RS. If the Vehicle is not removed within sixty (60) days of the date of sale, the successful Bidder shall pay an additional handling charge equal to five (5%) percent of the Final Settlement Figure, and if any Vehicle is not removed from the possession of RS within ninety (90) days of the date of sale, RS may dispose of the Vehicle by any means determined, in the sole and absolute discretion of RS, to be reasonable under the circumstances and without refund to the successful Bidder. The successful Bidder hereby waives any requirement of notice, advertisement, and disposition of proceeds as otherwise provided by law and equity, and releases RS from any liability whatsoever in connection with disposal of the Vehicle.

7. Release of Documents of Title: Documents of title and Bills of Sale shall be delivered to the successful Bidder only at such time as payment of the Final Settlement Figure, in good funds, has been finally deposited by wire transfer to the account of RS.

8. Breach: In the event of breach of this agreement, the right of termination and monetary damages shall not be the exclusive remedies of either party, and the exercise thereof by such party shall not preclude the exercise by either of any other right or remedy that it may have by law or in equity against the other party on account of any breach or default by such other party. Because the Vehicle subject to this agreement is unique, breach of this agreement is not fully remedied by monetary damages. Therefore, in addition to all rights and remedies available in law or equity, RS shall have the following rights and remedies:

A. The right to an order for specific performance requiring Bidder to pay the Final Settlement Figure and take possession of the Vehicle;

B. The right to hold the title to any vehicle Bidder has consigned and/or the proceeds from the sale of any of Bidder’s vehicles until all obligations of Bidder to RS at the auction have been fulfilled, including but not limited to, obligations as a Seller of a vehicle as well as obligations as a Bidder or Buyer at RS’s auction at which Bidder has consigned vehicles;

C. The right to resell, at public or private auction, any Vehicle without written notice to Bidder and hold Bidder liable for the difference between the amount received at public or private auction and the Final Settlement Figure, plus all costs of storage and removal of the Vehicle, and all costs and expenses of sale;

D. The right to sue for damages in the amount of the difference between the Final Settlement Figure and the fair market value of the Vehicle; and

E. The right to rescind the sale and retain as liquidated damages any amount paid to RS by Bidder. Bidder shall be limited to an action for damages against the owner of the Vehicle, without right of rescission, upon the auctioneer’s call of “Sold,” and Buyer shall not be permitted to maintain any action for consequential damages.

9. ARBITRATION: ANY CONTROVERSY OR CLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT, OR ANY BREACH THEREOF, SHALL BE FINALLY DETERMINED BY A SINGLE ARBITRATOR WITHOUT APPEAL UNDER THE RULES OF COMMERCIAL ARBITRATION OF THE AMERICAN ARBITRATION ASSOCIATION. SUCH ARBITRATION SHALL OCCUR IN PHOENIX, ARIZONA UNLESS OBJECTED TO BY EITHER PARTY. IN THAT EVENT THE LOCATION SHALL BE DETERMINED BY AGREEMENT OF THE PARTIES, AND IF THE PARTIES CANNOT AGREE, THE NEUTRAL ARBITRATOR WILL DETERMINE THE LOCATION. THE JUDGMENT UPON THE AWARD RENDERED MAY BE ENTERED IN ANY COURT HAVING JURISDICTION THEREOF, OR APPLICATION MAY BE MADE TO SUCH COURT FOR A JUDICIAL ACCEPTANCE OF THE AWARD AND AN ORDER OF ENFORCEMENT, AS THE CASE MAY BE. IN THE EVENT RS INCURS LEGAL FEES AND/OR COSTS, WHETHER IN LITIGATION OR COLLECTION, IN ENFORCING THIS AGREEMENT OR DEFENDING AGAINST ANY CLAIM ARISING HEREUNDER, BIDDER SHALL PAY SUCH LEGAL FEES AND COSTS.

10. Force Majeure: Any delay in or failure by either party hereto in the performance of any other obligation hereunder shall be excused if and to the extent caused by occurrences beyond such party's reasonable control, including acts of God, strikes or other labor disturbances, war, whether declared or not, sabotage, or any other cause or causes which cannot be reasonably controlled by such.

11. INCIDENTAL OR CONSEQUENTIAL DAMAGES: NEITHER PARTY SHALL BE LIABLE TO THE OTHER PARTY OR ANY THIRD PARTY FOR ANY INDIRECT, SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES RESULTING FROM THE PERFORMANCE OR NONPERFORMANCE OF THIS AGREEMENT EVEN IF SUCH PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

12. Notice: Any notice or other communication required or permitted hereunder to either party to this Agreement shall be in writing and shall be deemed to have been served on the earlier of when actually received or seven days after having been mailed to RS at the address set forth herein or Seller at the address set forth herein, as the case may be, by registered U.S. mail, return receipt requested postage prepaid.

13. Entire Agreement: This Agreement constitutes the entire agreement between the parties hereto and supersedes all prior agreements, understandings and arrangements, oral or written, between the parties hereto with respect to the subject matter hereof.

14. Effect of Waiver or Consent: The failure of any party to require strict performance of a covenant hereunder or of any obligation hereunder, irrespective of the length of time for which such failure continues, shall not be a waiver of such party's right to demand strict performance in the future. No consent or waiver, express or implied, to or of any breach or default in the performance of any obligation hereunder shall constitute a consent or waiver to or of any other breach or default in the performance of the same or any other obligation hereunder.

15. Severability: If any provision of this Agreement is held to be unenforceable, this Agreement shall be considered divisible and such provision shall be deemed inoperative to the extent it is deemed unenforceable, and in all other respects this Agreement shall remain in full force and effect; provided, however, that if any provision may be made unenforceable by limitation thereof, then such provision shall be deemed to be so limited and shall be enforceable to the maximum extent permitted by applicable law.

16. Amendment of Agreement: No amendment, modification, or addition to this Agreement shall be binding upon either party unless reduced to writing and duly executed by the parties.

17. Applicable Law: This Agreement shall be construed under the laws of the state of Arizona.

18. Exclusivity: Bidder hereby acknowledges the exclusive character of RS’s right to offer the Vehicle for sale and agrees that in the event Bidder acquires, within ninety (90) days following the close of the auction, any Vehicle offered for sale by RS at the auction or consigned and displayed at such auction and not sold thereat, Bidder shall be jointly and severally liable for payment to RS of twenty (20%) percent of the greater of (a) the Reserve price of the Vehicle at the auction; (b) the highest bid received at the auction; or (c) the price paid by Bidder for the Vehicle.

This Agreement entered into by and between Russo and Steele, an Arizona limited liability company (“RS”) and the undersigned (“Bidder”). Whereas, RS is in the business of accepting vehicles on consignment for sale by auction (“Vehicles”); and whereas, Bidder desires to become authorized to bid on Vehicles offered for sale at auction by RS, Bidder hereby authorizes RS to investigate credit worthiness by any commercially reasonable means. Bidder hereby represents and warrants that Bidder has read and understands the provisions of this Agreement as set forth on this and the reverse side. Bidder hereby acknowledges and agrees to personal responsibility for any use of the “paddle” provided to Bidder for purposes of identification and, further, understands and agrees that Bidder is personally liable under the provisions of this Agreement in the event said paddle is used in bidding on any Vehicle by any other party.

Bidder acknowledges having reviewed and accepts all of the foregoing provisions of the Agreement.

Signature: ___________________________________________ Date:_______________________________