KD CAPITAL AUCTIONS, LLC. and its affiliated companies (KDAUCTIONS) welcome you to participate in our online auctions as they take place. By your acknowledgment at the end of these terms and conditions, you agree that you fully understand and accept these terms and conditions as written.
KDAUCTIONS will, from time to time, conduct online auctions of various types of business personal property at times and on property to be designated by us. We employ no agents or others and only those employed by KDAUCTIONS are acting on our behalf. This website is the only venue for our auctions.
Do not participate in our auctions if you do not understand the terms and conditions outlined herein or if you will not agree to be bound by these terms and conditions.
KDAUCTIONS role is to list, accept bids and facilitate the exchange of information between Buyer’s and Seller’s by providing a website platform where registered users can buy and sell many different types items/lots.
AGENCY- KDAUCTIONS is not an agent of the Buyer or Seller and is not involved in the formation of the actual transaction. KDAUCTIONS does not take title to items/lots at any time during the transaction, therefore we have no control of and do not warranty or guarantee the accuracy, legality or any other issue relating to Sellers listing, ability to sell or Buyers ability to pay, or if Seller or Buyer ultimately finalize a transaction. This agreement does not create nor shall it be construed by Buyer, Seller, third party or person as creating any type of agency relationship, partnership, joint venture with KDAUCTIONS and the relationship shall be strictly limited to that of independent contractors.
OTHER SERVICES- KDAUCTIONS may offer non-auction third party goods or services on this website to which KDAUCTIONS may receive compensation in the form of a fee commission or other form of remuneration. Buyer specifically acknowledges that KDAUCTIONS is not the Vendor and should any dispute/s arise must be resolved strictly between Buyer and Seller.
“Website Policy” and “Privacy Policy” terms and conditions (which may be accessed on the website) specifically apply and are herein incorporated by reference.
“Sellers Listing Agreement” and “Asset Sales Agreement” terms and conditions specifically apply and are herein incorporated by reference.
KDAUCTIONS reserves the right to withdraw for the sale of the items/lots, to sell items/lots at the auction that may not be listed, to sell singly or in lots as it sees fit, or to sell one or more items in bulk and in the order of sale that KDAUCTIONS determines is best.
KDAUCTIONS reserves the right to postpone or cancel any scheduled auction in its sole
discretion and has no obligation to reschedule any auction that is cancelled or subsequently sell any items previously offered.
KDAUCTIONS without limiting other remedies, reserves in its sole discretion the right to limit or terminate any user’s access to the website or registered account and may refuse to accept a new user’s registration. All provisions of this agreement shall survive such termination and shall continue in full force and effect without limitation.
SELLER’S COMMISSION FEE- For items/lots sold on this website, KDAUCTIONS will be paid a percentage of the sale price by Seller, which shall be deducted from the sale proceeds. The actual percentage of the Seller’s Commission Fee will be subject to future negotiations between Seller and KDAUCTIONS.
BUYER’S PREMIUM- All purchases are subject to a Buyer’s Premium at the published percentage rate for each item sold. This buyer’s premium is addition to all other components of the sale, including applicable taxes and is due at the time of payment as provided herein.
PAYMENT- KDAUCTIONS only accepts payment by cash, cashier’s check, money order,
wire transfer or other forms of payment if agreed by KDAUCTIONS in writing prior to
the scheduled auction. All other forms of payment are, at the option of KDAUCTIONS,
not allowed and will not be considered as payment.
REMOVAL OF PURCHASES AFTER AUCTION- It is buyer’s sole responsibility to
remove purchases from KDAUCTIONS announced Seller’s location of those items within required number of days (as published in each item/lots auction) of the auction, unless additional time is agreed to by KDAUCTIONS in writing. Buyer bears the sole responsibility to remove the items purchased in a safe and professional manner and buyer agrees to accept all liability for any damages to person or property caused during such removal, whether caused by Buyer’s negligence or not. Buyers are required to comply with any and all safety requirements for the removal of any machinery and equipment. Buyer must maintain and provide Seller with any and all appropriate insurance certificates protecting Seller, Landlord and KDAUCTIONS from any claims resulting from their actions. If Buyer uses the services of any third party rigger or machinery mover, it is Buyers and Sellers responsibility to make sure that acceptable insurance policies are in place covering all parties involved. KDAUCTIONS reserves the right to charge storage for all items not removed after the deadline, including all costs incurred to move the items to other suitable locations, if necessary. Items/lots not removed within thirty days of the auction will be considered as abandoned by the purchaser and KDAUCTIONS is authorized to re-sell those items as it sees fit, retaining the sales proceeds.
DISCLAIMERS- Each and every item/lot sold on KDAUCTIONS website is sold on an “as-is”, “where-is” basis with absolutely no representations of any warranties, express or implied,
including the warranties of merchantability and fitness for use, or any other warranties
that may be available. Buyer understands that KDAUCTIONS does not represent any of
the qualities, components, accessories, capabilities or any other matter as it regards each
item/lot offered for sale and by bidding on any item, buyer represents and warrants that it has
conducted its own investigation of the item/lot and after doing so, the item/lot meets with its
specifications and capabilities. Any advertisement, circular, brochure or other written
document describing the items/lots is for reference purposes only and KDAUCTIONS does
not represent or warrant that the information is accurate. Buyers are urged to take any
necessary actions and activities to inspect any item/lot that it intends to place a bid. KDAUCTIONS does not warrant that the website will always be available, accessible, uninterrupted, secure or operate without error. KDAUCTIONS disclaims any liability caused by a breach or misrepresentation by Buyer or Seller.
RIGHT TO REJECT ANY BID OR BIDDER- KDAUCTIONS reserves the sole right to
reject any bid for any reason it deems necessary and further reserves the right to prohibit
any person or entity from bidding for any reason.
LIMITATIONS OF KDAUCTIONS LIABILITY- IN NO EVENT SHALL
KDAUCTIONS BE HELD RESPONSIBLE, LIABLE OR BOUND FOR ANY
LOSS, CLAIM, DAMAGE OR EXPENSE, OR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, DIRECT OR INDIRECT DAMAGES, WHETHER GENERAL, SPECIAL OR PUNITIVE, OF ANY KIND OR NATURE, INCLUDING LOST REVENUES, LOST PROFITS, USE, DATA OR OTHER ECONOMIC ADVANTAGE THAT ARE DIRECTLY OR INDIRECTLY ARISING OUT OF YOUR PURCHASE OR ATTEMPTED PURCHASE OR YOUR SALE OR ATTEMPTED SALE OF ANY ITEM/LOT OR ITEMS/LOTS OFFERED BY KDAUCTIONS ON THIS WEBSITE OR OTHERWISE, TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW. NOTWITHSTANDING THE FOREGOING, IF KDAUCTIONS IS FOUND LIABLE FOR ANY LOSS OR DAMAGE CONNECTED WITH THIS AGREEMENT OR THE USE OF THE WEBSITE, THE LIABILTY OF KDAUCTIONS TO BUYER, SELLER, OR ANY THIRD PARTY SHALL NOT BE GREATER THAN THE FEES PAID TO KDAUCTIONS WITH RESPECT TO THE SPECIFIC TRANSACTION. IF YOU DO NOT AGREE TO BE BOUND BY THIS LIMITATION OF LIABILITY, YOU SHOULD NOT BID ON OR OFFER FOR SALE ANY ITEM/LOT. PERSONS ATTENDING ANY AUCTION PREVIEW OR REMOVING ALL PURCHASED ITEMS/LOTS, INCLUDING THEIR EMPLOYEES AND AGENTS, ASSUME ALL RISK OF DAMAGE OR LOSS TO PERSON OR PROPERTY AND SPECIFICALLY RELEASE KDAUCTIONS FROM LIABILITY FOR SUCH DAMAGES. ALL ATTEMPTS TO INSPECT OR REMOVE ITEMS/LOTS ARE DONE AT BUYER’S SOLE RISK.
INDEMNIFICATION- Buyer and Seller agrees to indemnify, defend and hold harmless
KDAUCTIONS, its employees, agents and officers, from and against any and all claims,
losses, damages, liabilities, judgments, fees and expenses related thereto, including
attorneys fees and costs, brought by any third party against KDAUCTIONS that arises out
of or in any way concerns any breach or violation by Buyer or Seller, or your agents and
employees, including, without limitation, any breach of your representations, warranties
and covenants contained herein or any personal injury, death, property damages or any
other damage caused by you or your agents or employees during the inspection, removal
or use of the items purchased or intended to be purchased, to the fullest extent allowed by
law. Should any dispute arise by Buyer or by Seller, due to actions or inactions relating to the purchase or sale of any listed item/lot, Buyer and Seller agree to release KDAUCTIONS, its affiliates and subsidiaries, and their respective officers, directors, managers, members, agents, employees, and third party suppliers or vendors, from all claims, demands and damages of every kind and nature, whether they are actual or consequential, disclosed or undisclosed, suspected or unsuspected and further agree to waive any Civil Code that may contradict.
LIMITATION OF LIABILITY BETWEEN BUYER AND SELLER- ANY TRANSACTION USING KDAUCTIONS WEBSITE, BUYER AND SELLER AGREE EACH AND EVERY ITEM/LOT SOLD ON KDAUCTIONS WEBSITE IS SOLD ON AN “AS-IS”, “WHERE-IS” BASIS WITH ABSOLUTELY NO REPRESENTATIONS OF ANY WARRANTIES, EXPRESS OR IMPLIED, INCLUDING THE WARRANTIES OF MERCHANTABILITY AND FITNESS FOR USE, OR ANY OTHER WARRANTIES THAT MAY BE AVAILABLE UNLESS OTHERWISE EXPRESSLY SET FORTH IN THE TERMS OF SALE FOR SUCH ITEM WHEN LABELED AS A “WARRANTY”.
IN NO EVENT SHALL BUYER AND SELLER BE HELD RESPONSIBLE, LIABLE OR BOUND FOR ANY LOSS, CLAIM, DAMAGE OR EXPENSE, OR ANY SPECIAL, INCIDENTAL, DIRECT OR INDIRECT DAMAGES, WHETHER GENERAL, SPECIAL OR PUNITIVE, OF ANY KIND OR NATURE, INCLUDING LOST REVENUES,
LOST PROFITS, THAT ARE DIRECTLY OR INDIRECTLY ARISING OUT OF
YOUR PURCHASE OR ATTEMPTED PURCHASE OR YOUR SALE OR ATTEMPTED SALE OF ANY ITEM/LOT OR ITEMS/LOTS. IN NO EVENT SHALL THE LIABILITY OF BUYER TO SELLER OR SELLER TO BUYER FOR ANY TRANSCATION EXCEED THE ACTUAL SALE PRICE. THIS PROVISION MAY BE ENFORCED BY BUYER OR SELLER AS IF IT HAD BEEN AGREED DIRECTLY BETWEEN BUYER AND SELLER.
ESCROW- KDAUCTIONS will act in the capacity of Escrow Agent. After the selection of the winning bid, Buyer agrees to pay the purchase price and all other fees to KDAUCTIONS which shall be held in a separate segregated bank account used for Escrow Funds “Escrow Funds”. Buyer and Seller agree and shall be bound by the following: KDAUCTIONS is not a principle or a participant in the transaction and is merely acting as an Escrow Agent. Should there be any conflict or dispute with respect to Escrow Funds between Buyer and Seller, KDAUCTIONS shall have the right to a) retain custody of the Escrow Funds until receipt of a court produced final order, judgment or joint written instructions executed by Buyer and Seller b) accept instructions by an appointed arbitrator should Buyer and Seller agree to resolve their issue through binding arbitration c) submit pleadings in any court to ascertain the rights of Buyer and Seller d) withdraw funds from Escrow Funds to cover fees, Buyers premium and Sellers commission which shall be deemed earned by KDACUTIONS e) in the event that KDAUCTIONS becomes involved in any litigation due to it’s capacity as Escrow Agent, Buyer and Seller agree to pay to KDAUCTIONS any commissions earned, any and all costs incurred including reasonable attorney’s fees, which funds may be deducted and drawn from Escrow Funds prior to final disbursement at the sole discretion of KDAUCTIONS.
SELLERS WARRANTY- Seller warrants and represents that it has the legal authority to sell such item/lot, free and clear of any liens or encumbrances of any nature. Seller further agrees to use all commercially reasonable efforts to accurately describe the item/lot and will be solely responsible for the listing information provided. Seller hereby grants KDAUCTIONS free of charge, a perpetual, irrevocable, non exclusive worldwide right to use any and all trademarks, advertising or copyright that Seller may have in their provided content, known or unknown.
KDAUCTIONS COPYRIGHT AND TRADEMARKS- Any material contained on the KDAUCTIONS website, including but not limited to Trademarks, Copyright, Design, Layout, Documents, Products, Logos, Text, Auctions, Images or Graphics and all intellectual property are the sole and exclusive property of KDAUCTIONS and/or its Third Party Providers. Without express prior written permission of KDAUCTIONS, any dissemination, modification, replication, distribution, downloading, reproduction, republication, posting or transmission in any form or by any means, including but not limited to electronic, mechanical, photocopying, recording, or other means of any or all such material is strictly prohibited to the fullest extent of law. You may not “mirror any materials contained on this website on any other server or website without the prior written approval of KDAUCTIONS.
APPLICABLE LAW AND VENUE- This website, any and all auctions conducted
herewith, and any and all disputes arising hereunder shall be governed by the laws of the
state of Arizona and all disputes must be venued in the courts of the County of
Maricopa, State of Arizona for all purposes. By agreeing to the terms and
conditions below, Buyer and Seller agree to submit to the jurisdiction of the courts of the State of
Arizona for all purposes.
NOTICES- Notices sent to KDAUCTIONS shall be given by Certified Mail, return receipt requested to:
KD Capital Auctions, LLC
16454 N. 91st Street 101
Scottsdale, AZ 85260.
Or such other address as may be designated from time to time.
KDAUCTIONS notices sent to Buyer or Seller will be sent by email to the email address as provided and will be deemed received the following business day after the email was sent.
ENTIRE AGREEMENT- These terms and conditions constitute the entire agreement
and understanding between the parties in respect to the subject matter and supersedes all
prior understandings, agreements, representations, and to the extent that there were prior
agreements or representations, they are hereby terminated, except as provided herein.
SEVERABILITY- To the extent that any provision or term is held to be invalid or
unenforceable, such provision shall be struck and the remaining provisions shall continue
to be enforceable to the fullest extent allowed by law.
AMENDMENT-KDAUCTIONS- KDAUCTIONS reserves the right to amend these terms and conditions
as it sees fit, in its sole discretion, with regard to future auctions. Any continued use of KDAUCTIONS website after the posting of these amendments will constitute your acceptance of such amendments. This agreement may not otherwise be amended except when agreed in writing by Buyer / Seller and KDAUCTIONS with original signatures.
FORCE MAJEURE- No party shall be liable to the other if the failure to perform its obligations are due to causes beyond its control, including but not limited to acts of God, war, fire, computer viruses, unauthorized access, failures of computer or telecommunication equipment, severe weather, natural disasters or governmental authority.
ASSIGNMENT- No party shall be liable to the other if the failure to perform its obligations are due to causes beyond its control, including but not limited to acts of God, war, fire, computer viruses, unauthorized access, failures of computer or telecommunication equipment, severe weather, natural disasters or governmental authority.
SUCCESORS- All the terms, agreements, covenants, representations, warranties and conditions of this Agreement are binding upon, and inure to the benefit of and are enforceable by, the parties and their respective successors and permitted assigns.
WAIVER- Any failure by KDAUCTIONS to exercise or enforce any or all of the rights or provisions of this Agreement, or any delay, will not be deemed or be construed as being waived.
By accepting, Buyer and Seller acknowledges each and every term and condition and agrees
to be strictly bound by each term and condition.
DO NOT ACCEPT IF YOU DO NOT UNDERSTAND ANY OF THE TERMS CONTAINED HEREIN OR REFUSE TO BE BOUND THEREBY.
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