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Terms and Conditions
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Last revised: March 6, 2008
Welcome to the DoveBid.com Website (the "Website"), the premiere website for the sale of industrial machinery, equipment, and surplus capital assets.
The auction and related services provided by DoveBid, Inc. ("DoveBid") through the Website ("Service" or "Services") and the use of the Website and provision of the Services are governed by these Terms and Conditions (the "Terms and Conditions"). By accessing or using the Services or the Website or by registering as either a buyer or seller ("Buyer", "Seller" or "User"), you agree that (1) you have read the Terms and Conditions, (2) you understand the Terms and Conditions, and (3) you are bound by the Terms and Conditions in your use of the Services and the Website. If you do not agree to the Terms and Conditions, you may not access or use the Services or the Website. If you do not understand the Terms and Conditions, please contact DoveBid at customerservice@dovebid.com. The Terms and Conditions, together with any additional terms and conditions specific to a particular auction (which are incorporated herein by reference and can be found through one or more links on the detail page for the auction in question), constitute the entire agreement (the "Agreement") between DoveBid and User regarding its subject matter and supersede and replace any and all prior or contemporaneous agreements between the parties regarding such subject matter.
Registration and Eligibility. The Services and the Website are only available to persons with the legal capacity to enter into this Agreement. DoveBid may, at its sole discretion, refuse to accept a person's (or entity's) registration, and may, at any time after accepting registration, refuse to permit a person's (or entity's) continuing use of the Services and the Website for any reason.
Changes to Services, Website and Terms and Conditions. User acknowledges and agrees that DoveBid may change, modify, amend, suspend or discontinue any aspect of the Services or the Website, at any time, without notice and without liability to User or to any third party. DoveBid reserves the right to impose limits on certain features of the Services or the Website, at any time, without notice and without liability to User or to any third party.
Further, User acknowledges and agrees that DoveBid may amend any or all of the Terms and Conditions (including fees and transaction rules) at any time, at DoveBid's sole discretion, without notice. Any amendment of the Terms and Conditions will be reflected on the Website. User is encouraged to periodically review the Terms and Conditions posted on the Website. Use of the Services and the Website constitutes acceptance of the Terms and Conditions, including any amendments.
Role of DoveBid. DoveBid provides the Services and the Website so that Sellers may offer assets for sale and Buyers may place offers to purchase these assets. As such, DoveBid is neither a principal interested in the transactions, nor an agent of Buyer or Seller. DoveBid does not have the power to transfer title to any assets offered by Sellers. Because DoveBid is not a party to any transaction, DoveBid does not make, and should not be construed as having made, any representation or warranty of any kind concerning any of the offered assets, including without limitation any representation or warranty regarding the quality, safety or legality of the offered assets, or the truth or accuracy of any offerings. Additionally, DoveBid makes no representation or warranty of any kind as to the willingness or ability of either Buyer or Seller to complete a sale in accordance with the Agreement. Buyers and Sellers are solely responsible for independently verifying the background and credit-worthiness of those Users with whom they enter into, or with whom they prospectively will enter into, a transaction, as well as the condition or any description of an asset involved in a prospective transaction.
In the event of any controversy or dispute regarding any transaction conducted through use of the Services or the Website (a "Dispute"), User hereby releases DoveBid, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (the "Released Parties"), and each of the foregoing, from any and all manner of action, claim or cause of action or suit, at law or in equity, and from any and all losses, damages, costs or expenses, including without limitation court costs and attorneys' fees, which User may have against the Released Parties, or any of them, known or unknown, disclosed or undisclosed, which arise out of or relate in any way to a Dispute. If User is a California resident, User waives its rights under Section 1542 of the California Civil Code, which states: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
Excluded Items. DoveBid only permits the sale of capital assets, as that term is understood under generally accepted accounting principles (i.e., industrial machinery, equipment and surplus assets). DoveBid may, in its sole discretion, remove from the Website assets that, in DoveBid's judgment, do not constitute capital assets. The sale of illegal or inappropriate items is strictly prohibited.
Password and Security. After you register to use the Service or the Website, you will be prompted to select a User name and a User password. User is solely responsible for maintaining the confidentiality of its User name and User password. User is obligated to complete those transactions that occur using its User name and User password, whether such transactions are authorized or unauthorized. User agrees that it shall immediately notify DoveBid in writing or by electronic mail of any unauthorized use of its User name or User password.
User Information. User will provide information to DoveBid during the registration process and to DoveBid and other Users during the course of the use of the Services and the Website (the "User Information"). User represents and warrants: (1) that all User Information is accurate and complete at the time of registration, and (2) that User information will be continuously updated such that the User Information shall at all times be current, accurate, and complete. Subject to the terms of the DoveBid Privacy Policy, User grants to DoveBid a non-exclusive, worldwide, perpetual, royalty-free and irrevocable license to use the User Information, including any associated copyrights, trademarks, or other intellectual property or proprietary rights User may have in the User information, for any purposes in connection with the Services or the Website.
Privacy Policy. The terms of the DoveBid Privacy Policy are incorporated by reference into these Terms and Conditions. User is encouraged to periodically review the DoveBid Privacy Policy posted on the Website at www.dovebid.com/info/privacy.asp.
User Conduct. User is solely responsible for all conduct and transmissions that take place under its User name and password. Without limiting the foregoing, User represents, warrants and covenants that its use of the Services and the Website shall not:
(a) violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. Without limiting the foregoing, User represents, warrants and covenants that it will not sell or buy any assets that may not be lawfully offered for sale or purchase in the United States and that User will not export from the United States any asset in violation of U.S. law. Certain items offered for sale at an auction may constitute Restricted Technology. Under federal law, such items may not be shipped outside of the United States. DoveBid makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute Restricted Technology;
(b) interfere with or disrupt computer networks connected to the Service or the Website;
(c) impersonate any other person or entity, or make any misrepresentation as to User's employment by or affiliation with any other person or entity;
(d) forge headers or in any manner manipulate identifiers in order to disguise the origin of any User Information;
(e) interfere with or disrupt the use of the Services or the Website by any other User, nor "stalk", threaten, or in any manner harass another User;
(f) upload, post, transmit, publish, or distribute any material or information which contains a computer virus, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Services, the Website, or that of other computer systems;
(g) use the Services or the Website in such a manner as to gain unauthorized entry or access to the computer systems of others;
(h) upload, post, transmit, publish or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law;
(i) upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable; or
(j) reproduce, copy, modify, sell, distribute or otherwise exploit for any commercial purposes the Services or the Website, or any component thereof (including, but not limited to any materials or information accessible through the Website).
Buyer Conduct. In addition to those other obligations set forth herein, Buyer acknowledges and agrees that by placing a bid on an asset, Buyer represents, warrants and covenants (1) that it shall not misrepresent its ability to close the transaction pursuant to the terms and conditions of sale, and in accordance with these Terms and Conditions, (2) that it has the capacity to close the transaction, (3) that it has actual authority to enter a bid, and to enter into an agreement to purchase the asset, and (4) that any bid that it makes on an item constitutes an irrevocable offer to buy the item for the full amount of the bid.
Payment; Asset Removal. The following payment and asset removal terms apply to all DoveBid sales with the exception of Real Estate, which are governed by the specific Real Estate Auctions terms and conditions shown on the Auction Detail Page for Real Estate Auctions. Each successful bidder must pay a 25% deposit toward the purchase price immediately following the successful bid and authorizes DoveBid to charge Buyer's credit card for the amount of such deposit. If a bidder fails to make a timely deposit, the assets in question may be resold without notice. 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 business day after the subject auction. Without limiting the foregoing, full payment is due prior to the removal or shipment of purchased assets. In the event that the Buyer fails to pay the entire purchase price (in addition to the buyer's premium and any applicable tax) within the time specified by DoveBid or otherwise fails to comply with these Terms and Conditions, DoveBid and the Seller will retain the Buyer's deposit as liquidated damages without notice. In addition, DoveBid and the Seller reserve the right to resell such items without notice, and the defaulting purchaser shall be liable to DoveBid and Seller for any resulting deficiency, including any and all costs incurred in storing and reselling such assets. DoveBid will announce the removal, or "check-out," period on the day of the auction. DoveBid shall have no responsibility with respect to disconnecting utilities to the sold asset, including electric, gas, waste and water lines. It is the Buyer's sole responsibility to arrange and pay for the insurance, removal and shipment of purchased items and to provide evidence of such insurance, upon demand. Removal shall be conducted responsibly and with due care for the Seller's premises. The Buyer 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 Buyer does not remove an item within the announced check-out period, the Buyer will be deemed to have abandoned the item and the Buyer will have no further rights with respect to the item. No claims of any kind shall be allowed after assets have been removed by the Buyer.
Improper Auction Behavior. All forms of shill bidding (for instance, bidding on an item that you have listed for sale), bid manipulation and collusion between Users are forbidden. Users may not make a bid under a false name or with an invalid credit card.
Buyer's Premium. DoveBid may, in its discretion, charge a Buyer's Premium or other service charge on assets sold. All such charges will be indicated in the relevant auction brochure, asset detail page or other clearly marked area of the Website. If charged, the Buyer's Premium shall be collected by DoveBid directly from each successful bidder, in addition to the purchase price as bid. Notwithstanding the foregoing, a discount from the Buyer's Premium shall apply to Buyers who pay in the form of cash, cashier's check, company check (with a letter of guarantee) or wire transfer. In addition, DoveBid reserves the right to charge a nonrefundable registration fee for its own account to Buyers who bid electronically at a Webcast auction. All references herein to a "Buyer's Premium" shall include this registration fee.
Withdrawal of Auction/Auction Assets. User acknowledges and agrees that assets in an auction may be withdrawn or sold prior to or after the end of the designated auction period, that the auction may be discontinued, either temporarily or permanently, and that the auction may, in DoveBid's sole discretion, be extended beyond the designated auction period, all without notice to User. Generally, offered assets 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. DoveBid 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 DoveBid believes was made illegally or in bad faith. Further, DoveBid, and/or its affiliates or subsidiaries, may bid at the auction either for its own account or on behalf of a third party. Any such proxy bids made by DoveBid shall be considered bids of the third party and not DoveBid.
Termination. DoveBid expressly reserves the right to terminate the use of, or to refuse to permit the use of, the Services and the Website by any person or entity, at the sole discretion of DoveBid, for any reason and without notice.
Taxes. Unless otherwise agreed in writing, User acknowledges and agrees that DoveBid not responsible for the calculation of any taxes or the reporting or remittance of any taxes to any taxing authority, with the possible exception of sales taxes. User expressly agrees and warrants that it shall comply with any and all applicable laws and regulations, including without limitation, those with respect to taxes. Users agree to defend, indemnify, and hold harmless DoveBid from and against any and all damages, penalties, costs and expenses incurred by or imposed upon DoveBid resulting from any failure by User to comply with applicable tax laws.
No Relationship. Buyer and DoveBid are independent contractors. Neither party is an agent, representative, broker, employee, partner or joint venturer of the other party. This Agreement shall not be interpreted or construed to create an association, joint venture, agency, franchise or partnership between the parties or to impose any partnership obligation or liability upon either party.
Links to Third Parties. The Services and the Website may provide links to the websites or services of others, including shipping, rigging and other services ("Third-Party Services"). Links to such Third-Party Services, or any explanation or statement regarding those Third-Party Services, do not constitute an endorsement or guarantee by DoveBid of such Third-Party Services, or the products, content, materials or information presented or made available by such Third-Party Services. User acknowledges and agrees that DoveBid is not responsible for any damages or losses caused or alleged to have been caused by any Third Party or the use of any Third-Party Services, or from the products, content, material, services or information presented by or made available through such Third-Party Services.
Downloading Information/Material. User hereby releases DoveBid, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns from any and all actual or alleged damages which may result from User downloading any information or materials from the Website.
Choice of Law; Consent to Jurisdiction. This Agreement, and all questions with respect to the interpretation of this Agreement, shall be governed by and construed in accordance with the internal laws of the State of California, without regard for conflict of laws provisions. Consistent with the Dispute Resolution section below, User expressly consents to personal and exclusive jurisdiction in the courts of the State of California located in San Mateo County.
Indemnification. User will defend, indemnify and hold harmless DoveBid, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns (collectively, "Indemnified Parties"), from and against any claim, loss, damage, liabilities, judgments, fees and expenses related thereto (including, without limitation, reasonable attorney's fees) incurred by any of the Indemnified Parties arising from or related to: (1) the use of the Services or the Website by User, (2) any breach or violation of these Terms and Conditions by User and (3) any breach of any of User's representations, warranties and covenants.
Dispute Resolution. Any Dispute involving DoveBid arising from or in any way related to this Agreement or User's use of the Services or the Website shall be submitted to binding arbitration to be conducted in accordance with the Rules of Commercial Arbitration of the American Arbitration Association ("AAA"). A single arbitrator with knowledge of the auction business shall conduct the arbitration in San Mateo County, California. The parties shall mutually agree upon such arbitrator. In the event that the parties have not agreed to a mutually acceptable arbitrator within thirty (30) days of the date of the notice of intention to arbitrate, the AAA shall be select the arbitrator from its regularly maintained list of commercial arbitrators. Within 60 days after the arbitrator has been selected, the arbitrator shall conduct a single hearing no longer than one day in duration for the purpose of receiving evidence and shall render a decision within ten days after the conclusion of the hearing. The Federal Rules of Evidence and the Federal Rules of Civil Procedure shall apply to any arbitration hearing, and aggregate deposition discovery conducted in connection with any such hearing shall not exceed ten hours for each party. The decision of the arbitrator shall be binding and final, and the arbitration award may be filed in a court of competent jurisdiction. In the event that a civil or administrative proceeding with respect to any disputes subject to arbitration under this provision is commenced, any other party to such proceeding shall be entitled to demand arbitration with respect to that dispute and shall be entitled to a permanent stay and injunction against any such civil or administrative proceeding. In the event that a party asserts multiple claims or causes of action, some but not all of which are subject to arbitration under law, any and all claims subject to arbitration shall be submitted to arbitration in accordance with this provision.
Disclaimer of Warranties. THE SERVICES AND THE WEBSITE, INCLUDING ALL ASSETS LISTED FOR SALE, CONTENT, FUNCTIONS, MATERIALS, SERVICES AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SERVICES OR THE WEBSITE, ARE PROVIDED ON AN "AS IS", "WHERE IS", "AS AVAILABLE" BASIS "WITH ALL FAULTS" AND WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. DOVEBID DOES NOT WARRANT THAT THE SERVICES OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED MADE AVAILABLE ON OR ACCESSED THROUGH SERVICES OR THE WEBSITE, INCLUDING WITHOUT LIMITATION ANY THIRD-PARTY SOFTWARE, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH THE SERVICES OR THE WEBSITE, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. DOVEBID MAKES NO WARRANTY THAT THE WEBSITE OR THE SERVICES WILL MEET USERS' REQUIREMENTS, AND EXPRESSLY DISCLAIMS ANY REPRESENTATIONS, WARRANTIES OR GUARANTEES THAT ANY ASSET FOR SALE THROUGH THE SERVICES OR THE WEBSITE WILL BE SOLD. IF USER IS DISSATISFIED WITH THE SERVICES OR THE WEBSITE, USER'S SOLE REMEDY IS TO DISCONTINUE USING THE SERVICES AND THE WEBSITE. DOVEBID MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING ANY GOODS OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES OR THE WEBSITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES OF THE WEBSITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY USER FROM DOVEBID OR THROUGH THE SERVICES OR THE WEBSITE SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE IN THE AGREEMENT. DOVEBID EXPRESSLY DISCLAIMS ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANY USER.
Limitation of Liability. IN NO EVENT SHALL DOVEBID BE LIABLE FOR ANY DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, THE WEBSITE OR THE CONTENT, MATERIALS AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION, SPECIAL, INDIRECT, INCIDENTAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS, LOST GOODWILL, OR LOST SALES, EVEN IF SUCH PARTY SHALL HAVE BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES OR COULD HAVE FORESEEN SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF DOVEBID TO A USER FOR ALL DAMAGES, LOSSES, CLAIMS AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE OR OTHERWISE) ARISING FROM THIS AGREEMENT OR THE USE OF THE SERVICES OR THE WEBSITE EXCEED, IN THE AGGREGATE, ONE HUNDRED DOLLARS ($100.00) OR, IN THE CASE OF AN ASSET PURCHASE, THE AMOUNT ACTUALLY PAID FOR THE ASSET IN QUESTION.
THE FOREGOING LIMITATION SHALL APPLY AND SURVIVE NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY.
Notices. Notices shall be given:
To DoveBid: To be valid, notices must be sent by email (legal@DoveBid.com) and by certified mail, return receipt requested, to DoveBid, Inc.; Attention Legal Department; 10877 Wilshire Boulevard, Suite 600; Los Angeles, California, 90024 or to such other address as may be designated from time to time.
To User: Notices to User will be sent by email at the email address reflected in User's registration information.
Notices to User shall be deemed to have been received 24 hours after the email is sent. Notices to DoveBid shall be deemed to have been given three days after the date of mailing by certified mail, return receipt requested.
Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision shall be enforced to the maximum extent permissible so as to effect the intent of this Agreement, and the remainder of this Agreement shall continue in full force and effect.
Waiver. The failure of DoveBid to exercise or enforce any right or provision of this Agreement will not deemed a waiver of such right or provision.
Trademarks. DoveBid, Business Auctions & Valuations Worldwide, and the logos of DoveBid are trademarks or service marks of DoveBid, Inc. No display or use of such marks may be made without the express written permission of DoveBid, Inc.
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