Dana Auctions LLC
PA License #AU006175
41 Taylor Rd, Princeton, NJ 08540
BIDDER TERMS AND CONDITIONS
These Bidder Terms and Conditions apply to auctions conducted by Dana A. Balsamo ("Auctioneer"), and constitute a legal, valid, binding, and enforceable contract between Auctioneer and YOU. These Bidder Terms and Conditions also form the basis for the contract of sale between YOU and the Seller if YOU are the Winning Bidder on the Real Property.
1. Auction Conducted Under and In Accordance with These Bidder Terms and Conditions, Additional Terms and Conditions Posted by Auctioneer, and Announcements Made at the Time of the Auction, and Applicable Law. The Auction is conducted under and in accordance with these Bidder Terms and Conditions, any and all other Terms and Conditions posted by Auctioneer (whether at the Auction Site or online), any announcements or corrections made by Auctioneer at the time of the Auction, and applicable law. By participating in the Auction, whether at the auction site, online, telephonically, or though any other means (including Absentee Bid), YOU agree to be bound by, and to abide by, all such Bidder Terms and Conditions.
2. Definitions. The following definitions apply to these Bidder Terms and Conditions for each auction conducted by Auctioneer:
“Absentee Bid” means a bid submitted to Auctioneer in advance by an Absentee Bidder for the execution during the Auction under terms established by Auctioneer.
“Absentee Bidder” means a person or entity that submits an Absentee Bid. An absentee Bidder may or may not be present at the Auction.
“Absolute Auction” or “Absolute” applies only if and when expressly indicated and means that property is sold to the highest bidder regardless of the amount of the final bid, with no limiting conditions, restrictions, or reservations. This type of auction is also known as an auction Without Reserve. Provided that a bid is received within a reasonable time after property is put up at Absolute Auction, the property will be sold to the highest bidder regardless of the final bid amount. Property put up at Absolute Auction may be withdrawn by Auctioneer if a bid is not received within a reasonable time.
“Auction” means the auction sale at which Auctioneer solicits bids, or is scheduled to solicit bids.
“Auction Site” means the physical location of the Auction.
“Bidder” means any person or entity, and the agents or representatives of any such person or entity, that registers, and/or bids, and/or buys, and/or otherwise participates in the Auction (including, without being limited to, inspection), regardless of whether such person or entity tenders a bid.
“Bidder Account” means the number or other identifier assigned to a Bidder by Auctioneer or by an Online Auction Platform Provider. (See, also, Bidder Number).
“Bidder Number” means the number or other identifier issued by Auctioneer to a Bidder for the purposes of identifying bids to such Bidder. (See, also, Bidder Account).
“Bidder Registration” means the information provided by a Bidder, and the process of registering such Bidder to bid at the Auction, including the Bidder’s agreement to be bound by these Bidder Terms and Conditions.
“Bidder Terms and Conditions” means Auctioneer’s Bidder Terms and Conditions.
“Buyer” means the Winning Bidder. “Buyer’s Premium” is a non-refundable administrative fee calculated as a percentage of the Hammer Price, that is payable by the Buyer to Auctioneer for Auctioneer’s own account. If the Real Property is offered Subject to Seller’s Confirmation, the Buyer’s Premium will be calculated on the amount of the High Bid Subject to Confirmation or such other amount as may be agreed to between Seller and Buyer, whichever is greater.
“Contract Price” means an amount equal to the Hammer Price plus the Buyer’s Premium. Any real estate transfer tax, recording fees, or similar such taxes or fees will be based on the Contract Price.
“Fall of the Hammer” means the point, after bids have been received, at which Auctioneer declares the Real Property “sold” to the Bidder acknowledged by Auctioneer as having made the Winning Bid. During an online Auction, the Fall of the Hammer will occur electronically at the end of timed (or extended) bidding. During an auction that is exclusively online, the Fall of the Hammer may occur electronically at the end of timed (or extended) bidding. In an auction that is Subject to Seller’s Confirmation, the Fall of the Hammer will occur on Seller’s Confirmation of the High Bid Subject to Confirmation.
“Hammer Price” means the Winning Bid established with the Fall of the Hammer.
“High Bid Subject to Confirmation” means the High Bid amount recognized by Auctioneer at the conclusion of bidding on Real Property put up at Auction Subject to Seller’s Confirmation. If the High Bid Subject to Confirmation is confirmed by Seller, it will be the Hammer Price.
“No Sale” occurs if the Real Property is put up at the Auction but is not sold, and Auctioneer passes, withdraws the Real Property, or declares a No Sale.
“Online Auction Platform” means the hardware and software utilized to conduct an Auctioneer online and to facilitate online bidding, including any associated, adjunct, and/or complementary websites, services, premiums and promotions.
“Online Auction Platform Provider” means the provider of the Online Auction Platform and related services.
“Online Bidding Period” means any established period during which online bids may be tendered.
“Participating Broker” means a licensed real estate broker or agent who has (i) registered with and has been approved by Auctioneer, (ii) served as a buyer’s broker for the Winning Bidder at the Auction, and (iii) complied with all of Auctioneer’s requirements.
“Participating Broker Fee” means an amount that is payable to a Participating Broker in accordance with Auctioneer’s policy and these Bidder Terms and Conditions.
“Private Sale” means an event in which the Real Property is sold (or gifted) by Seller, or on the Seller’s behalf, other than at the Auction.
“Private Sale Price” means the fair market price paid, or agreed to be paid, at a Private Sale in an arms-length transaction between Seller and a purchaser. If the Real Property is sold through a Private Sale for less than its fair market value, or in a transaction that is not an arms-length transaction, or is gifted by the Seller, the Private Sale Price will be an amount equal to the fair market value of the Real Property in an arms-length transaction.
“Purchase Agreement” means the contract for the purchase and sale of the Real Property to be executed at the close of bidding by the at the Winning Bidder, or the Bidder making the High Bid Subject to Confirmation, as the case may be. In an Auction Subject to Seller’s Confirmation, Seller will execute the Purchase Agreement only on Seller’s confirmation, approval, and acceptance of the High Bid Subject to Confirmation.
“Purchase Deposit” is the good faith deposit made by the Buyer against the Contract Price. The Buyer’s Premium is not part of the Purchase Deposit.
“Realty Closing” means the settlement on the sale of the Real Property at which Seller sells, transfers, assigns, and conveys Seller’s right, title, and interest in the Real Property to the Buyer, and the Buyer pays the balance of the Contract Price.
“Realty Closing Date” means the date on which the Realty Closing occurs.
“Realty Deposit” is the good faith deposit made by the Buyer against the Contract Price for the Real Property.
“Real Property” means the single or multiple parcels of real estate exposed for sale at Auction by Auctioneer.
“Registration Deposit” means a deposit that Auctioneer may require from Bidders in order to register for the Auction.
“Reserve” or “With Reserve” means that property exposed for competitive bidding at the Auction may be withdrawn by Auctioneer and/or bids may be rejected by Auctioneer prior to the Fall of the Hammer. It is not necessary for there to be a Reserve Price for an Auction to be With Reserve.
“Reserve Price” means, if applicable, the minimum price that Seller is willing to accept for the Real Property. If the Real Property is subject to a Reserve Price, the Real Property will not be sold unless the Reserve Price is met or waived. It is not required for any Reserve Price to be disclosed. “Seller” means (i) the owner or the Real Property, or (ii) the person or entity empowered to convey title to the Real Property.
“Subject to Seller’s Confirmation” means that, after the conclusion of bidding, Seller may determine, in Seller’s sole and absolute discretion, to (i) accept the high bid acknowledged by Auctioneer or (ii) reject the high bid acknowledged by Auctioneer.
“Winning Bid” means the highest bid received and accepted (and if Subject to Seller’s Confirmation, confirmed by Seller).
“Winning Bidder” means the Bidder who is recognized by Auctioneer as having made the Winning Bid.
“Withdrawn”, “Withdrawal”, or “Withdraw” refers to the circumstance in which the Real Property is removed or withdrawn from the Auction, or in which it is determined that the such Real Property will not be offered or sold at the Auction.
“Without Reserve” means Absolute.
“YOU” means a Bidder.
3. Bidder Registration; Bidder Qualification. All persons desiring to bid at the Auction, must register to bid and be issued a Bidder Number. In order to register to bid, each potential Bidder must provide such information (including identifying information and qualifications) as requested by Auctioneer. Each person registering to bid represents to the Auctioneer that such person is at least eighteen (18) years of age and is otherwise legally able to enter into a contract. Auctioneer may refuse to accept a Bidder Registration from any potential Bidder, may refuse to issue a Bidder Number to any potential Bidder, and may revoke any Bidder Registration or Bidder Number. Each person registering to bid, or otherwise participating, at the Auction acknowledges and agrees that such person has read, understands, and agrees to be bound by these Bidder Terms and Conditions. In Auctioneer’s discretion, bids may be received from a person who has not registered to bid, and/or who has not satisfied all requirements for Bidder Registration, and/or who has not been issued a Bidder Number, and, by bidding, such person will be bound by these Bidder Terms and Conditions. Auctioneer may establish such Bidder qualifications as Auctioneer determines, in Auctioneer’s discretion, are reasonably necessary or appropriate. Bidder qualification provisions (which may include proof of the availability of funds) are intended for the benefit of Auctioneer and Seller, and create no rights or interests in any other persons, including competing Bidders. Auctioneer and/or Seller may (but will not be required to) waive any Bidder qualifications, either globally or on a case by case basis.
4. Auction Conducted in the State of New Jersey. The Auction is conducted in the State of New Jersey. The Real Property is offered for sale in the State of New Jersey, and will be sold in the State of New Jersey. Notwithstanding the physical location of any Bidder, these Bidder Terms and Conditions are entered into in the State of New Jersey, all bids and payments are received in the State of New Jersey, and all contracts between Seller and Buyer (including the Purchase Agreement), are formed and entered into in the State of New Jersey.
5. Buyer’s Premium. A Buyer’s Premium in an equal to TEN percent (10%) of the Hammer Price will be paid by the Buyer to Auctioneer for Auctioneer’s own account. The Buyer’s Premium is earned by Auctioneer with the fall of the Hammer and is non-refundable. The Buyer’s Premium will be added to the Hammer Price to determine the Contract Price.
6. Access to Auction Site and/or Online Auction Platform. YOU assume all risks associated with their presence at the Auction Site and/or their access to any Online Auction Platform utilized by Auctioneer. Any person may be denied access to the Auction, the Auction Site, and any Online Auction Platform utilized by Auctioneer, and may be removed at Auctioneer’s discretion.
7. Nature of the Auction.
_X__The Auction for the Real Property will be an Absolute Auction. This means that, once a bid is received on a parcel of Real Property put up at the Auction such parcel of Real Property will be sold to the highest Bidder.
___The Auction for the Real Property will be With Reserve. Prior to the Fall of the Hammer, Auctioneer may Withdraw the Real Property, or any of it, from the Auction.
___The Real Property will be sold Subject to Seller’s Confirmation. This means that after the High Bid Subject to Confirmation has been received and acknowledged by Auctioneer, Seller may determine, in Seller’s sole and absolute discretion, to (i) accept such bid or (ii) reject such bid. Seller will confirm or reject the High Bid Subject to Confirmation within three (3) business days after the Auction.
8. Bidding. By bidding, YOU acknowledge and agree that YOU are to, and bound by, these Bidder Terms and Conditions.
9. No Bid Retraction. YOU may not retract a bid that has been acknowledged by Auctioneer or that has been submitted online. YOU acknowledge and agree that Auctioneer is acting in reliance on tendered bids in the conduct of the Auction, and that bid retraction is disruptive and interferes with the Auction, and that, as an inducement for Auctioneer to accept YOUR Bidder Registration and for YOU to bid at the Auction, YOU agree not to withdraw or to attempt to withdraw any tendered bid.
10. Online Auction. The following terms and conditions apply if the Auction is conducted, in whole or in part, online:
10.1. Online Bidder Account. Anyone desiring to bid online, or to establish the possibility of bidding online, will be required to create an online bidding account by completing all necessary forms and providing required information.
10.2. Bidder Terms and Conditions; Notices and Announcements. The Auction will be conducted in accordance with these Bidder Terms and Conditions and any notices or announcements by Auctioneer and/or posted online or onsite.
10.3. Posted Times. All times are based on the local time zone at the Auction Site unless stated otherwise. Posted closing times and time displays are approximate. Auctioneer reserves the right to close early or extend the Auction at Auctioneer’s sole and absolute discretion.
10.4. Technology Disruptions. Auctioneer will not be responsible for technology disruptions, errors, or failures (including disruptions to bidding or the failure to execute, recognize, or record online bids), whether caused by (i) loss of connectivity, breakdown, disruption, or failure of the Online Auction Platform, (ii) breakdown, disruption, or failure of a Bidder's internet connection, computer, or system, or (iii) otherwise. Auctioneer may, but will not be required to, continue, suspend, delay, extend, reschedule, or close the Auction because of disruptions caused by technology failures, even after bidding has commenced.
10.5. Failures by Online Auction Platform Provider and its Affiliates or Contractors. Auctioneer may use an Online Auction Platform Provider to facilitate the Auction. Under no circumstances will Auctioneer be liable for any failure of the Online Auction Platform Provider to perform all or any of its obligations, or for the failure of any affiliates, employees, agents, representatives, or contractors of the Online Auction Platform Provider to perform their obligations.
10.6. Auto Extend Feature. Any Online Bidding Period may include an auto extend feature. This means that, if an online bid is entered within a set time period approaching the end of the established Online Bidding Period, the Online Bidding Period will automatically be extended for an additional amount of time in increments established by Auctioneer, and will continue to be so extended until there is a set period of time that lapses during which no online bids are received, after which bidding will close.
10.7. Disclaimer. Auctioneer makes no representations or warranties, and disclaims all representations and warranties, (i) that the Online Auction Platform or any related website or technology will be uninterrupted, error free or virus free, (ii) as to the results that may be obtained by using the Online Auction Platform or any related website or technology, or (iii) as to the accuracy, completeness, reliability, security, or current nature of the Online Auction Platform or any related technology.
10.8. Responsibility for Online Bids. YOU are responsible for all bids transmitted from YOUR computer or device, or from YOUR Bidder Account. If a Winning Bid is sent from YOUR computer or device, or from YOUR Bidder Account, YOU will be the Buyer.
10.9. Winning Bidders Subject to Certification by Auctioneer. The final determination of the Winning Bidder is subject to certification by Auctioneer; and any email or electronic message (whether generated manually or automatically) is subject to such certification.
11. Absentee Bids; Remote Bidding. In Auctioneer’s discretion, Auctioneer may receive Absentee Bids and/or bids tendered by remote Bidders (whether telephonically or otherwise). Absentee Bids may be initiated and advanced in accordance with Auctioneer’s policies and procedures. Auctioneer will make reasonable efforts to execute Absentee Bids, but Auctioneer will have no liability to any Absentee Bidder for the failure to execute any Absentee Bids for any reason whatsoever. Each Absentee Bidder acknowledges and agrees that the Real Property may be sold to another Bidder for the maximum amount of the Absentee Bid based on a bidding sequence that causes another Bidder to reach the same amount first. If the execution of an Absentee Bid at its maximum amount would require Auctioneer to accept a bid that is less than a full bidding increment, Auctioneer has the sole and absolute discretion to acknowledge or reject such bid. An Absentee Bidder may authorize Auctioneer to advance the bid by one or more bidding increments after the maximum amount of the Absentee Bid is, or would be, reached. Auctioneer acts as the agent of the Seller only, and the receipt and/or execution of Absentee Bids will not create an agency relationship between Auctioneer and any Absentee Bidder.
12. Bid Increments. Bid increments are established and controlled by Auctioneer, and may be adjusted or modified in Auctioneer’s sole and absolute discretion.
13. Registered Bidders Responsible for Bids Placed on Bidder Number. Each Registered Bidder is responsible for the Bidder Number issued to such Registered Bidder. Auctioneer is not responsible for monitoring or policing the use of Bidder Numbers, and each Registered Bidder is responsible for all bids made on the Bidder Number issued to such Registered Bidder even if the Registered Bidder claims that the Bidder Number was lost, stolen, or misappropriated, unless notice of a lost, stolen, or misappropriated Bidder Number was provided to Auctioneer prior to an unauthorized bid being made.
14. Withdrawal of Real Property by Auctioneer. Unless specific Real Property is, in express written terms, put up at Absolute Auction, Auctioneer has the right to withdraw the Real Property from the Auction prior to the Fall of the Hammer.
15. Winning Bid; Buyer. Pursuant to these Bidder Terms and Conditions, the Bidder making the Winning Bid will be the Buyer.
16. Real Property Sold “AS IS”, “WHERE IS”, and “WITH ALL FAULTS”. THE REAL PROPERTY IS BEING OFFERED AND SOLD IN ITS AS IS/WHERE IS CONDITION AT THE TIME OF THE AUCTION, WITH ALL FAULTS, INCLUDING ANY HIDDEN DEFECTS OF ANY NATURE. NEITHER AUCTIONEER NOR SELLER MAKES ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE NATURE, VALUE, SOURCE, AUTHENTICITY, FITNESS, MERCHANTABILITY, AND/OR ANY OTHER ASPECT OR CHARACTERISTICS. NO STATEMENT ANYWHERE, WHETHER EXPRESS OR IMPLIED, INCLUDING VERBAL STATEMENTS MADE BY AUCTIONEER, WILL BE DEEMED A WARRANTY OR REPRESENTATION BY AUCTIONEER OR SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE ARE NO WARRANTIES OF TITLE, NON-INFRINGEMENT, AUTHENTICITY, ORIGIN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. YOU ACKNOWLEDGE AND AGREE THAT YOU CANNOT RELY, AND HAVE NOT RELIED, ON ANY REPRESENTATION, WARRANTY, OR GUARANTY MADE BY THE SELLER OR ANYONE ACTING AS AGENT OF THE SELLER, ORALLY OR IN WRITING, ABOUT THE REAL PROPERTY. BY BIDDING, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE HAD A FULL AND FAIR OPPORTUNITY TO INSPECT THE REAL PROPERTY, AND YOU ARE RELYING SOLELY ON, OR YOU HAVE WAIVED, YOUR INSPECTION AND INVESTIGATION (i) IN DETERMINING WHETHER TO BID, (ii) IN DETERMINING THE AMOUNT OF A BID, AND (iii) IN BIDDING.
17. Announcements. Subject to the limitation set forth in these Bidder Terms and Conditions, all terms and conditions and other announcements made by Auctioneer on the day of the Auction are binding and take precedence over any advertisements or listings.
18. Inspection. By bidding, YOU acknowledge and agree that YOU have had a full and fair opportunity to inspect the Real Property, and that YOU are relying solely on YOUR inspection and investigation, or that YOU have waived inspection and investigation, and that you have not relied on any statement, representation, warranty, or guaranty made by Auctioneer or by any Seller or anyone acting as agent or representative of a Seller. YOU, further, acknowledge and agree that any photographs or other images of the Real Property are adequate for YOUR purposes. YOU have made all necessary inquiries and investigations regarding the Real Property, and YOU are prepared to purchase the Real Property in its AS IS, WHERE IS condition, with all faults and with no contingencies.
19. Description of Real Property. Unless otherwise expressly stated otherwise in writing, any description of Real Property is based solely on visual impression, and is given solely for identification purposes, and does not create any warranty, expressed or implied, or representation by Auctioneer.
20. Registration Deposit. In Auctioneer’s discretion, Auctioneer may require Bidders to make a registration deposit in order to bid on the Real Property. The registration deposit of the Winning Bidder will be applied against the Contract Price for the Real Property, and registration deposits made by others will be returned at the conclusion of the Auction.
21. Separately Deeded Parcels. If the Real Property consists of two or more separately deeded parcels, Auctioneer may, in Auctioneer’s discretion, put the parcels up for bid individually, as an entire group, and by various combinations, and the bids received by each method will be held until it is determined which method yields the highest aggregate amount. Bidding may be conducted in multiple rounds, and in a round robin fashion, and methods or combinations may be eliminated until the final method or grouping yielding the highest aggregate amount is determined.
22. Breaks and Recesses. Auctioneer may take breaks or recesses during the bidding on the Real Property, and such breaks or recesses will not terminate the bidding unless expressly stated. Auctioneer may suspend bidding on the Real Property without declaring a No Sale of the Real Property. A No Sale of the Real Property will only occur if Auctioneer declares a No Sale in those terms, or if the Auction concludes in its entirety without a Winning Bid or a High Bid Subject to Confirmation. If announced by Auctioneer, the Auction may continue for a stated period of time, during which period Auctioneer may receive bids in person, telephonically, electronically, online, or by other means.
23. Purchase Agreement. The Purchase Agreement will be executed at the close of bidding by the Winning Bidder, or the Bidder making the High Bid Subject to Confirmation, as the case may be. In auctions Subject to Seller’s Confirmation, Seller will execute the Purchase Agreement on Seller’s confirmation and acceptance of the High Bid Subject to Confirmation. The Purchase Agreement is available for review prior to the Real Property being offered, and is incorporated in and made a part of these Bidder terms and Conditions.
24. Realty Deposit. The Winning Bidder, or the Bidder making the High Bid Subject to Confirmation, as the case may be, will make a Realty Deposit on execution of the Purchase Agreement. The Realty Deposit (which will include any registration deposit made by such Bidder) will be:
_X__The amount of ONE THOUSAND Dollars ($1000.00); or
___ __________ percent (_____%) of the Hammer Price or High Bid Subject to Confirmation.
The Realty Deposit may be paid in cash or its equivalent, by certified funds, by credit card (if that service made available by Auctioneer), or by personal or company check. The Realty Deposit will be held by Auctioneer in a non-interest bearing account. If the Realty Deposit is forfeited by the Winning Bidder, it will be applied to the payment of amounts due and owing to Auctioneer before any distribution to Seller or otherwise.
25. No Buyer Contingencies. There will be no Buyer conditions or contingencies to the sale of the Real Property, except Seller’s delivery of good and marketable title.
26. Realty Closing. The Realty Closing will occur at a mutually agreed time and place within FOURTEEN (14) days after the Auction, unless extended with the written consent of Seller and Auctioneer.
27. Broker Participation. If a Participating Broker who has registered with Auctioneer prior to the Auction produces the Buyer, or has otherwise assisted in facilitating the sale of Real Property at the Auction, such broker may be paid a Broker Participation Fee, in an amount and manner established by Auctioneer.
28. Realty Transfer Tax. Realty transfer taxes will be allocated as follows:
___Paid by Buyer ___Paid by Seller _X__Equally between Buyer and Seller ___Other ________________.
29 Calculation of Realty Transfer Tax; Disputes. Realty transfer tax will be calculated based on the Contract Price, which includes the Hammer Price plus the Buyer’s Premium. If YOU believe that the Buyer’s Premium portion of the Contract Price should not be subject to realty transfer tax, or if you otherwise dispute the calculation of realty transfer tax, YOU should address YOUR dispute to the appropriate taxing authority and seek a refund from the appropriate taxing authority to the extent that the same may be available to YOU.
30. Recording Fees. Buyer will pay the fees for recording the deed for the Real Property.
31. Settlement Fees and Expenses. Buyer will pay any and all settlement fees and expenses, including, without being limited to, title searches, title insurance charges, and survey costs.
32. Apportionment. Taxes and all other periodic realty costs, if any, will be apportioned pro rata as of the date of the Realty Closing. Seller will pay for all days up to and including the date of the Realty Closing, and Purchaser will pay for all days following the date of the Realty Closing.
33. Zoning; Land Use. NEITHER AUCTIONEER NOR SELLER MAKES ANY REPRESENTATIONS OR WARRANTIES AS TO THE ZONING OF THE REAL PROPERTY OR ANY OTHER LAND USE RESTRICTIONS AFFECTING THE REAL PROPERTY. IT IS YOUR RESPONSIBILITY TO MAKE SUCH INQUIRIES AND INVESTIGATIONS AS MAY BE NECESSARY TO CONFIRM THE APPLICABLE ZONING AND LAND USE RESTRICTIONS AFFECTING THE REAL PROPERTY. THE PURCHASE OF THE REAL PROPERTY WILL NOT BE CONTINGENT IN ANY WAY ON ZONING OR LAND USE RESTRICTIONS, OR ON WHETHER A BIDDER OR BUYER MAY PUT THE REAL PROPERTY TO ANY DESIRED USE. YOU ACKNOWLEDGE AND AGREE THAT YOU ARE NOT RELYING ON ANY REPRESENTATIONS BY SELLER OR AUCTIONEER CONCERNING ZONING OR OTHER LAND USE RESTRICTIONS AFFECTING THE REAL PROPERTY.
34. Seller’s Residential Real Estate Disclosure Statement. If the Real Property is residential real estate,
___The Real Property is residential real estate and Seller has completed a Seller’s residential real property
disclosure statement that is available for review prior to bidding.
_x__The Real Property is residential real estate but Seller is exempt from providing a residential real property
___The Real Property is not residential real estate and no residential real property disclosure statement is
35. Lead-based Paint Disclosure. If the Real Property includes residential improvements constructed prior to 1978, Seller will complete a Lead-based Paint Disclosure Statement.
36.1. Seller’s Breach. If Seller breaches any of Seller’s obligations with respect to the purchase and sale of the Real Property, Buyer’s sole and exclusive remedy will be return of the Realty Deposit and any other monies actually paid by the Buyer; provided, however, that the Buyer’s Premium is non-refundable. Notwithstanding the foregoing, if Seller breaches Seller’s obligations under these Bidder Terms and Conditions or under the Purchase Agreement, Seller will be liable to pay Buyer an amount equal to the Buyer’s Premium actually paid by Buyer in addition to the Realty Deposit. Under no circumstances will Auctioneer or Seller be liable for incidental or consequential damages, including, without being limited to lost profits or reduced productivity. Specific performance is not available as a remedy to Buyer.
36.2. Buyer’s Breach. If Buyer breaches any of Buyer’s obligations, Buyer will forfeit the Deposit and any other monies actually paid to Seller or Auctioneer, and will pay all of Seller’s and Auctioneers costs and expenses (including reasonable attorneys’ fees and costs of litigation). If the Real Property is subsequently offered for sale (at auction or otherwise), Buyer will be responsible for any and all costs and expenses incurred with respect thereto, including, without being limited to, advertising and labor. Buyer will also be responsible for any shortfall between the Contract Price established at the Auction and any subsequent lower amount for which the Real Property may be sold.
37. Risk of Loss. The risk of loss or damage to the Real Property is assumed by the Seller until Settlement, except for in the event of loss or damage to the Real Property exceeding ten percent (10%) of the Hammer Price, then Seller may elect to either repair the damages, provide credit at Settlement, or terminate the Purchase Agreement.
38. Time is Of the Essence. Time is of the Essence with respect to the purchase and sale of the Real Property.
39. Bidding by or on Behalf of Seller. Seller, or those acting on Seller’s behalf, may bid at the Auction unless the Auction is an Absolute Auction that is not being conducted pursuant to a court order. If the Real Property is subject to a Reserve Price, Auctioneer may bid up to the Reserve Price on Seller’s behalf.
40. Conduct of the Auction. Auctioneer will regulate all matters relating to the conduct of the Auction and Auctioneer’s decisions will be final and binding. Auctioneer will have control over bidding, and Auctioneer will resolve any and all disputes. Auctioneer may, in Auctioneer’s sole and absolute discretion, reopen the bidding if (i) a bid is made while the hammer is falling in acceptance of a prior bid or while bidding is otherwise being terminated, or (ii) after the Fall of the Hammer or other termination of the bidding Auctioneer is made aware of a bid that was unnoticed prior to the Fall of the Hammer or other termination of the bidding, and it is demonstrated to Auctioneer’s satisfaction that such bid was, in fact, timely made, or (iii) after the Fall of the Hammer or other termination of the bidding Auctioneer is made aware that Auctioneer and a bid assistant or ringman, or multiple bid assistants or ring men, have acknowledged bids in the same amount bid from different Bidders, or (iv) an online bid, or other bid by a remote Bidder, tendered or attempted to be tendered prior to the Fall of the Hammer goes unrecognized, or (v) some other bid dispute arises. Any contract formed with the Fall of the Hammer will be subject to the conditions set forth in this Section. If bidding is reopened pursuant to this Section, the bid recognized by Auctioneer prior to the reopening of the bidding will be held, and may not be retracted, and, if no further bids are received, such bid will be the Winning Bid. The determination of whether to reopen the bidding is within Auctioneer’s sole and absolute discretion, Auctioneer is not required to reopen the bidding, and Auc tioneer’s determination will be final and conclusive.
41. Auctioneer’s Records Conclusive. Absent clerical errors, Auctioneer’s records will be final and conclusive.
42. Returned Checks. Any checks that are returned unpaid will be subject to a returned check fee in the amount of $_30.00_. In addition to the foregoing, Auctioneer will be entitled to recover, from the issuer of a returned check, all costs and expenses, including attorneys’ fees, for the collection of payment made in the form of a check that has been returned unpaid.
43. No Stop Payment Orders or Credit Card Chargebacks. YOU agree that YOU will not, under any circumstances, (i) issue a stop payment order with respect to any checks issued at or in connection with the Auction, or (ii) initiate a credit card chargeback with respect to any purchases at the Auction. YOU further agree that if, in violation of these Terms and Conditions, a stop payment order is issued or a credit card chargeback is initiated, these Bidder Terms and Conditions will be conclusive evidence of YOUR (i) waiver of any rights to issue a stop payment order or to initiate a credit card chargeback, and (ii) agreement not to issue a stop payment order or to initiate a credit card chargeback; and YOU acknowledge and agree that on Auctioneer’s presentation of these Bidder Terms and Conditions to the bank, credit card company, or other financial institution against which a check was drawn or that issued the credit card on which charges were made, such bank, credit card company, or other financial institution will reverse any stop-payment order and/or reverse or deny any credit card chargeback, and will re-credit all amounts to or for the account of Auctioneer. If, in violation of these Bidder Terms and Conditions, YOU issue a stop payment order or initiates a credit card chargeback, YOU, even if successful, will remain liable for all purchases made at the Auction, and will be responsible for all costs and expenses, including attorneys’ fees, incurred by or on behalf of Auctioneer and/or Seller in challenging the stop payment order or credit card chargeback and in collecting payment. YOU acknowledge and agree that the covenant not to issue a stop payment order or to initiate a credit card chargeback is a condition to the issuance of a Bidder Number or Bidder Account, and is being made as an inducement for Auctioneer to accept YOUR Bidder Registration, to issue a Bidder Number or Bidder Account, and to permit YOU to Bid at the Auction. YOU acknowledge and agree that Auctioneer is relying on the covenant not to issue a stop payment order or to initiate a credit card chargeback in accepting YOUR Bidder Registration, in issuing a Bidder Number of Bidder Account, and in permitting YOU to bid at the Auction.
44. Incidental or Consequential Damages: Specific Performance. YOU will not be entitled to incidental or consequential damages, including, without being limited to lost profits or reduced productivity for any reason. YOU will not be entitled to specific performance or other equitable relief for any reason.
45. Indemnification. YOU agree to indemnify and hold Auctioneer and Seller harmless from any current or future claim regarding the Auction or the Real Property, including, without being limited to, fitness, use, damage, safety, or injuries to persons or property.
46. Private Sale. YOU agree not to offer to enter into a Private Sale for the purchase of the Real Property prior to or during the Auction. If the Real Property is not sold at the Auction and Seller enters into an agreement to sell the Real Property to YOU within FOURTEEN (14) days after the Auction, Auctioneer will be entitled to receive an amount equal to Auctioneer’s Commission, Buyer’s Premium, and reimbursable expenses. Any you will be jointly and severally liable, along with Seller, to pay such amount to Auctioneer.
47. Waiver. Certain provisions of these Bidder Terms and Conditions are for the exclusive benefit of Auctioneer and/or Seller(s). Such provisions, including, without being limited to, Bidder registration and qualification requirements, deposit and payment terms (including the method, form, and timing of payment, and inspection terms), do not create, and will not be deemed to create, any benefits or rights in favor of any other persons, including competing Bidders, and may not be enforced by any other persons. Either globally or on a case by case basis Auctioneer and/or Seller may (but will not be required to) waive any provisions of these Bidder Terms and Conditions that are intended for the benefit of Auctioneer and/or Seller.
48. Bid Pooling. Bid pooling occurs when Bidders collude to regulate, and artificially suppress, bidding in an effort to reduce the Hammer Price. Bid pooling is a felony. Anyone participating in bid pooling will be referred for prosecution.
49. Governing Law; Jurisdiction; Venue; Waiver of Jury Trial. These Bidder Terms and Conditions will be governed by and construed in accordance with the laws of the State of New Jersey, including its statutes of limitations, but without regard to its rules governing conflict of laws. All claims, disputes, and other matters between the parties will be brought in the state or federal courts sitting in and for Mercer County, New Jersey, which courts will have exclusive jurisdiction, and will be the exclusive venue, for any and all such claims, disputes, and other matters. By submitting a Bidder Registration and accepting a Bidder Number YOU irrevocably and unconditionally (i) agree that any claim, suit or cause of action relating to these Bidder Terms and Conditions, the Auction, or the transactions contemplated hereunder, will be brought in the state or federal courts sitting in and for Mercer County, New Jersey; (ii) consent to the jurisdiction of such courts for any such claim, suit or cause of action; (iii) waive any objection that YOU may have to the laying of venue of any such claim, suit or cause of action in such courts; and (iv) waive any objection to the bringing of such claim, suit or cause of action in such courts on the grounds of forum non conveniens. YOU WAIVE THE RIGHT TO A JURY TRIAL.
50. Attorneys’ Fees. If YOU breach YOUR obligations under these Bidder Terms and Conditions, Auctioneer and/or Seller will be entitled to recover all costs and expenses, including attorneys’ fees incurred in enforcing their respective rights hereunder.