This Seller Agreement (the "Agreement") is by and between You ("Seller" or "You") and FairBid International, LLC, a Pennsylvania limited liability company ("FairBid" or "We") in which You agree to abide by the terms and conditions of this Agreement regarding Your posting and/or sale of certain equipment, vehicles, commodities or other items (collectively, "Equipment") through the FairBid Website currently located at http://www.fairbid.com (the "FairBid Site" or "Site") and the use of certain services provided by FairBid with respect to such posting(s) and sale(s) ("Services"). All capitalized terms used and not otherwise defined herein shall have the meanings ascribed to them in FairBid's standard Terms of Use, which are located on FairBid's Website at http://www.fairbid.com/ and any associated domains with www.fairbid.com and which You have read and agreed to as a condition of registration on the Site.
FairBid reserves the right to change any of the terms and conditions contained herein at any time and in its sole discretion, without notice. Any changes will be effective upon posting of the revisions on the Site. YOUR CONTINUED USE OF THIS SITE AND THE SERVICES FOLLOWING FAIRBID’S POSTING OF ANY CHANGES WILL CONSTITUTE YOUR ACCEPTANCE OF SUCH CHANGES OR MODIFICATIONS. IF YOU DO NOT AGREE TO ANY CHANGES TO THESE TERMS, DO NOT CONTINUE TO USE THE SERVICES OR THIS SITE.
In consideration of the mutual promises and covenants, You agree to abide by the following terms and conditions:
1.Services
(a) Available Services. Equipment may be posted for purchase on the Site via an auction (“FairBid Auction”), Standalone Buy It Now, Make Offer and FairBid Classifieds (collectively, the “FairBid Marketplace”). FairBid also offers “FairBid Plus”, which is a premium service, whereby Seller can engage FairBid (for a negotiated fee as set forth hereunder) to act as its agent to sell items at auction (“FairBid Plus Auction”) or as a Standalone Buy It Now (“FairBid Plus Standalone Buy It Now”), Make Offer posting (“FairBid Plus Make Offer”) or a Classifieds listing (“FairBid Plus Classifieds”)(collectively, the “FairBid Plus Marketplace”). Seller is fully responsible for compliance with the terms of this Agreement and any terms specific to the applicable method of sale for any item of Equipment for which Seller lists or posts on the Site and/or otherwise participates in the sale process. Provided that you are in compliance with all of the Terms of Use, the Privacy Policy and with all terms and conditions of this Agreement, You may post Equipment for sale on the Site.
(b)Equipment Listing – FairBid Auctions and FairBid Marketplace. For each item of Equipment that You wish to sell on the Site via a FairBid Auction or any FairBid Marketplace, You shall completely and accurately complete and submit the FairBid Details Form located on the Site. Upon FairBid’s acceptance of a FairBid Details Form (“Listing Acceptance”), You will be permitted to continue with the sale of the Equipment set forth on the applicable FairBid Details Form. FairBid shall have no obligation to accept or approve any FairBid Details Form, and shall have no liability to You in the event FairBid does not accept or approve your FairBid Details Form. FairBid reserves the right to refuse to list for auction or sale any item of Equipment.
(c)Equipment Listing – FairBid Plus Auction and FairBid Plus Marketplace. For each item of Equipment that You wish to sell on the Site via a FairBid Plus Auction or a FairBid Plus Marketplace, You shall completely and accurately complete and submit the FairBid Plus Details Form located on the Site. If you need assistance with the completion of the FairBid Plus Details Form, please contact FairBid customer service at 1-855-FairBid.
(d)Listing Details. You are responsible for the provision and content of all descriptions and photos of Your Equipment, whether posted as a FairBid Auction, a FairBid Plus Auction, a FairBid Marketplace or FairBid Plus Marketplace (“Listing Details”). You agree to fully disclose completely and accurately to FairBid all information of which You are aware relating to the Equipment. The Listing Details may only include text, maintenance records, logos, marks, graphics, pictures, Seller terms and conditions, and corresponding documents. The Listing Details may not be used o advertise or promote Your other goods or services generally. You will not link to, or include descriptions of, other items You have for sale outside of the Site. Any brand name or other indication of origin or manufacture included with the Listing Details must be completely accurate and not capable of misleading any Buyer or potential Buyer. You are responsible to ensure that the Listing Details are accurate at all times, and if at any time the Equipment is altered or modified in any way which might affect the accuracy of the Listing Details, You must immediately inform FairBid of any updates to the Listing Details and update such information on the Site. If You choose to include a “Buy It Now” price for any item of Equipment, or a Standalone Buy It Now posting, such price must be identified in the Listing Details.
(e)Inspections. Prior to and during any FairBid Auction, Standalone Buy It Now, FairBid Plus Auction or FairBid Plus Standalone Buy It Now, You shall promptly respond to any prospective Buyers requesting to inspect the Equipment. You shall not be required to permit such inspections.
(f)Restrictions on Use. From the time of Listing Acceptance and until the Buyer removes the Equipment from Your location (or You withdraw the Equipment from the FairBid Site as authorized herein), and only except as expressly stated in a FairBid Classified listing or FairBid Plus Classified listing, You may not operate, lease, rent, modify, use or allow the Equipment to be altered in any way which might affect the accuracy of the Listing Details. Additionally, if FairBid discovers that You have violated this section after the Equipment has been sold in any FairBid Auction, FairBid Marketplace, FairBid Plus Auction or FairBid Plus Marketplace, in addition to any other rights and remedies FairBid may have, title and/or ownership will not transfer to the Buyer and shall remain with You, and You shall not receive any proceeds for the affected Equipment.
(g)No Price Manipulation. You may not manipulate the price of listed Equipment by any means, including but not limited to, using secondary accounts, shill bidding, colluding with third parties, bidding on Your own Equipment or having a third party bid on Your Equipment on Your behalf. You may not use an alias to place bids on any Equipment You are selling, either directly or indirectly, for any reason. If You fail to comply with this restriction, in addition to any other rights or remedies FairBid may have, FairBid may withdraw the Equipment from auction and You will be barred from future use of the FairBid Site.
(h)Risk of Loss. Unless otherwise agreed between Buyer and Seller, title to and risk of loss of the Equipment shall remain with Seller until payment has been made by Buyer, You have submitted all title documents to FairBid or Buyer, as applicable, necessary for transfer of title, and the applicable Equipment has been made available for retrieval by Buyer. You shall maintain adequate insurance covering the Equipment until ownership passes from You to Buyer. In the event Buyer does not pay the purchase price for Equipment per the terms of sale, ownership of the Equipment shall remain with You.
(i)You expressly acknowledge and agree that:
(1)FairBid reserves the right to postpone, cancel or terminate any FairBid Auction, FairBid Plus Auction, FairBid Marketplace listing, FairBid Plus Marketplace listing, or any sale resulting therefrom, in its sole discretion, without notice. FairBid will have no liability to You or any other prospective bidders, Buyers or Sellers as a result of any withdrawal, cancellation or postponement of any of the foregoing.
(2)FairBid reserves the right to reject or void bids, whether winning or not, which it believes have not been made in good faith, are intended to manipulate the auction process, or are prohibited by any applicable law, restriction or regulation.
(3)In FairBid Plus Auctions or FairBid Plus Marketplace posting or listing, You may not contact any Buyer or potential Buyer unless and until approved by FairBid in writing (which may be by confirmed email) or unless pursuant to a request by a Buyer via the Site.
(4)FairBid shall be under no duty or obligation to pursue, and shall not pursue, legal action against any Buyer or potential Buyer for any reason, including failure to perform Buyer’s obligations with respect to any transaction on the Site.
(5)You represent and warrant that You have the full legal right to any marks, logos, data, information or any other intellectual property (“Seller Material”) You choose to include on the Site. You hereby grant FairBid a worldwide, royalty-free, perpetual, non-exclusive, irrevocable right and license to post and include the Seller Material on the Site. You represent and warrant to FairBid that the Seller Material does not infringe upon any patent issued as of the date of this Agreement, copyright, trade secret or other proprietary right of any third party. You hereby indemnify, defend and hold harmless the FairBid Group (as hereinafter defined) against any breach of any of the foregoing warranties or any third party claim attributable to an infringement of a patent, copyright, trade secret or other proprietary right of any third party.
(6)The Site may be unavailable from time to time for routine or emergency maintenance, a breach of this agreement by You or another Site visitor, acts or omissions of third parties, third party providers of hosting services and other communication services, outages of communications, and events of force majeure. FairBid shall have no liability or responsibility with respect to such periods of unavailability.
2.Seller Representations.
(a)Except as otherwise expressly permitted under Sections 5(a) and 7(c), by submitting a FairBid Details Form or a FairBid Plus Details Form, you represent and warrant that You have full legal and equitable, good and marketable title to the Equipment, and have full rights to sell the Equipment. You further represent and warrant that the Equipment is free of all liens, claims or other encumbrances. FairBid does not investigate or verify whether any Seller has legal title to the Equipment regardless of how such equipment is being offered or sold via FairBid.
(b)You represent and warrant that the sale of Your Equipment is not subject to any United States or United Nations embargo or banned by any United Nations resolutions and that You have disclosed all restrictions, laws or regulations regarding the sale of such Equipment.
(c)You represent and warrant that: (1) the Equipment is in a safe condition and free of hazardous materials; (2) all Listing Details You provide and all answers to questions from FairBid, bidders, potential bidders and Buyers shall be truthful, accurate and complete, and shall accurately represent the conditions of the Equipment until removed from Your location by the Buyer; (3) no Equipment You list on the Site shall be fraudulent, stolen or counterfeit; and (4) the Equipment is in compliance with applicable US EPA and OSHA requirements.
(d)You shall be solely liable for any inaccuracies, errors or omissions in the Listing Details provided or omitted by You. You agree to indemnify and save harmless FairBid from and against any and all such claims, suits, proceedings, costs, expenses, losses, liabilities, and damages arising out of or relating to the Equipment, or the auction or sale thereof, including but not limited to, breach of the Seller warranties and covenants set forth in this Section 2 or elsewhere herein. If a third party brings a claim, suit or proceeding against FairBid arising out of or relating to the Equipment, including without limitation its condition, or the auction or sale thereof, Seller with provide FairBid with full information and cooperation in connection therewith. In addition, if a Buyer takes legal action against You arising from, but not limited to, the Seller warranties listed above, FairBid may support such action by providing the Buyer with any relevant documentation or information.
3.FairBid Auction. If you have selected a FairBid Auction, the following terms shall apply:
(a)Listing Period. By listing your Equipment in a FairBid Auction, You acknowledge and agree that You are extending an irrevocable offer to sell the Equipment to (i) the highest bidder who meets or exceeds the opening bid (if you do not set a reserve price) or (ii) the highest bidder who meets or exceeds your reserve price (if you do set a reserve price). You agree that during the period commencing at the time of the Listing Acceptance and until (i) such Equipment is sold on the FairBid Site; (ii) You withdraw the Equipment from the FairBid Site as permitted hereunder; or (iii) a transaction for the Equipment is terminated by FairBid as provided by this Agreement or the Auction Buyers Agreement (the "Auction Period") the FairBid Site will be the exclusive listing for the sale of such Equipment. You agree to remove any listings of such Equipment from other auctions and any other sales forums during the Auction Period (including, but not limited to, on the FairBid Classifieds). For a FairBid Auction, the Listing Details must include payment and Equipment retrieval terms.
(b)Auction Timing. Seller sets the Opening Bid for the Equipment. Seller also sets the FairBid Auction opening date and FairBid Auction closing date ("FairBid Auction Opening Date and Closing Date") for the Equipment. The maximum period between the FairBid Auction Opening Date and Closing Date is three hundred and sixty-five (365) days. If the Equipment is not sold prior to the FairBid Auction Closing Date, You may re-list the Equipment in any FairBid Auction, a FairBid Plus Auction, a Buy It Now, the FairBid Classifieds or terminate the Auction as of the FairBid Auction Closing Date.
(c)Auction and Post Auction Obligations. FairBid will notify You if there is a winning bid for Your FairBid Auction. FairBid will provide you with the contact information for the Buyer with the winning bid. You are responsible to contact Buyer to finalize the transaction. You acknowledge and agree that FairBid is expressly not acting as the agent for Buyer or Seller in any FairBid Auction and that FairBid shall have no role whatever in the auction (other than permitting the posting of the FairBid Auction on the Site), sale, inspection, payment, delivery, title transfer and/or other processing of Equipment included in a FairBid Auction. Buyer and Seller are completely responsible for all such arrangements. Seller is further responsible for providing Buyer with evidence of title to the Equipment and all documents necessary to transfer full title to the Equipment to the Buyer. Upon payment from Buyer, You must make the Equipment, along with ignition key (if applicable) and all owners’ manuals available to Buyer for retrieval by or shipment to Buyer.
(d)Seller Default. If for any reason You fail to release the Equipment to the Buyer after a FairBid Auction has closed and You have received payment in full from the Buyer, You shall be in default of this Agreement, and You will be barred from further use of the FairBid Site.
(e)Your Options after Bidder Default. If the winning bidder does not make payments in accordance with the Buyer Agreement, the winning bidder is considered in default ("Bidder Default"). As the seller of any piece of Equipment subject to Bidder Default, You may elect any one of the following options after FairBid notifies You of such Bidder Default.
(i)Offer Equipment to Second Highest Bidder at Second Highest Bid Price. If there was more than one bidder for the affected Equipment, You may elect to offer the Equipment to the second highest bidder in the FairBid Auction at the maximum bid amount entered by the second highest bidder (“Second Bidder Purchase Amount”). The second highest bidder will have two (2) business days to decide whether to purchase the Equipment at the Second Bidder Purchase Amount. If the second highest bidder so chooses to proceed, Your Equipment will be sold and You will receive proceeds based on the Second Bidder Purchase Amount, in accordance with the terms and conditions of this Agreement; or
(ii)Re-list the Equipment for Subsequent Auction. You may elect to list the Equipment in a subsequent FairBid Auction at any time. All other terms and conditions of this Agreement continue to be enforced for any such re-listing in a subsequent auction; or
(iii)Withdraw the Equipment. You may elect, without penalty, to withdraw the Equipment from the Site.
(f)Release. YOU HEREBY, VOLUNTARILY AND KNOWINGLY, FOREVER RELEASE AND DISCHARGE FAIRBID, ITS PARENTS, SUBSIDIARIES AND AFFILIATES, AND THEIR RESPECTIVE EMPLOYEES, OFFICERS, DIRECTORS, MEMBERS, CONTRACTORS, SUBCONTRACTORS, AGENTS, REPRESENTATIVES, SUCCESSORS AND ASSIGNS (COLLECTIVELY, THE “FAIRBID GROUP”) FROM AND AGAINST ALL CLAIMS, OBLIGATIONS, SUITS, LIABILITIES, DEMANDS, LOSSES, DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES AND COSTS, EXPERT FEES AND COSTS, AND OTHER LITIGATION FEES AND COSTS) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR PARTICIPATION IN ANY MANNER ON THE SITE, WITH THE SERVICES, WITH RESPECT TO ANY FAIRBID AUCTION, WITH RESPECT TO ANY TRANSACTION ON OR VIA THE SITE THAT MAY OR MAY NOT BE CONSUMMATED, AND/OR ANY DISPUTES YOU MAY HAVE WITH ANY BUYER, POTENTIAL BUYER OR THIRD PARTY WITH RESPECT TO ANY FAIRBID AUCTION OR ANY TRANSACTION, WHETHER OR NOT CONSUMMATED, RESULTING THEREFROM.
4.Standalone Buy It Now. If you have selected a Standalone Buy It Now, the following terms shall apply:
(a)By listing your Equipment as a Standalone Buy It Now, You acknowledge and agree that You are extending an irrevocable offer to sell the Equipment the first bidder who accepts the Buy It Now price You have set. You agree that during the period commencing at the time of the Listing Acceptance and until (i) such Equipment is sold on the FairBid Site; (ii) You withdraw the Equipment from the FairBid Site as permitted hereunder; or (iii) a transaction for the Equipment is terminated by FairBid as provided by this Agreement or the Buyers Agreement (the "Buy It Now Sale Period") the FairBid Site will be the exclusive listing for the sale of such Equipment. You agree to remove any listings of such Equipment from other auctions and any other sales forums during the Buy It Now Sale Period (including, but not limited to, on the FairBid Classifieds). For a Standalone Buy It Now, the Listing Details must include payment and Equipment retrieval terms.
(b)FAIRBID SHALL HAVE NO OBLIGATIONS, RESPONSIBILITIES OR LIABILITY WITH RESPECT TO THE RUNNING OF YOUR BUY IT NOW LISTING, ANY BUYER OR PROSPECTIVE BUYER, THE TRANSACTION AND/OR CONSUMMATION OF ANY SALE THEREON.
(c)You have the full responsibility to schedule the Standalone Buy It Now opening and closing dates ("Buy It Now Opening and Closing Dates") for Your Equipment; provided that the maximum length of a Buy It Now posting shall be 365 days. You acknowledge and agree that You are responsible to remove your posting following sale of the applicable Equipment, and that any Standalone Buy It Now posted for longer than 365 days shall be removed from the Site.
(d)If the Equipment is not sold in the Standalone Buy It Now prior to the Buy It Now Closing Date, You may re-list Your Equipment in a FairBid Auction or FairBid Plus Auction (subject to applicable fees), as a Make Offer posting, in the FairBid Classifieds, in any FairBid Plus Marketplace (subject to applicable fees) or withdraw Your Equipment from the Site.
(e)AS FAIRBID IS EXPRESSLY NOT ACTING AS THE AGENT FOR BUYER OR SELLER IN ANY BUY IT NOW TRANSACTION, FAIRBID SHALL HAVE NO ROLE WHATEVER IN THE POSTING, LISTING, OFFER FOR SALE, SALE, INSPECTION, PAYMENT, DELIVERY, TITLE TRANSFER AND/OR OTHER PROCESSING OF EQUIPMENT LISTED IN ANY BUY IT NOW POSTING. BUYER AND SELLER ARE COMPLETELY RESPONSIBLE FOR ALL SUCH ARRANGEMENTS. ACCORDINGLY, YOU HEREBY, VOLUNTARILY AND KNOWINGLY, FOREVER RELEASE AND DISCHARGE THE FAIRBID GROUP (AND ANY OF ITS AFFILIATED ENTITIES) FROM AND AGAINST ALL CLAIMS, OBLIGATIONS, SUITS, LIABILITIES, DEMANDS, LOSSES, DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES AND COSTS, EXPERT FEES AND COSTS, AND OTHER LITIGATION FEES AND COSTS) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR PARTICIPATION IN ANY MANNER WITH ANY BUY IT NOW TRANSACTION OR POSTING AND/OR ANY DISPUTES YOU MAY HAVE WITH ANY BUYER, POTENTIAL BUYER OR THIRD PARTY WITH RESPECT TO ANY BUY IT NOW POSTING OR ANY TRANSACTION, WHETHER OR NOT CONSUMMATED, RESULTED THEREFROM.
5.Make Offer. If you have selected Make Offer, the following terms shall apply:
(a)By listing your Equipment as a Make Offer posting, You acknowledge and agree that You are inviting Buyers to submit offers to purchase the Equipment. For a Make Offer posting, the Listing Details must include payment and Equipment retrieval terms. NOTWITHSTANDING THE TERMS IN SECTION 2(A), AND WITH RESPECT ONLY TO MAKE OFFER POSTINGS, YOU ACKNOWLEDGE THAT YOU MAY NOT HAVE FULL LEGAL AND EQUITABLE, GOOD AND MARKETABLE TITLE TO THE EQUIPMENT OR AND HAVE FULL RIGHTS TO SELL THE EQUIPMENT AT THE TIME OF THE LISTING ACCEPTANCE OR THE MAKE OFFER OPENING DATE. YOU REPRESENT AND WARRANT THAT, AFTER ACCEPTANCE OF AN OFFER FROM A BUYER FOR THE PURCHASE OF THE EQUIPMENT, AT THE TIME THE TRANSACTION IS CONSUMMATED YOU SHALL HAVE FULL LEGAL AND EQUITABLE, GOOD AND MARKETABLE TITLE TO THE EQUIPMENT TO TRANSFER TO THE BUYER OR HAVE FULL RIGHTS TO SELL THE EQUIPMENT TO THE BUYER.
(b)FAIRBID SHALL HAVE NO OBLIGATIONS, RESPONSIBILITIES OR LIABILITY WITH RESPECT TO THE RUNNING OF YOUR MAKE OFFER POSTING, ANY BUYER OR PROSPECTIVE BUYER, THE TRANSACTION AND/OR CONSUMMATION OF ANY SALE THEREON.
(c)You have the full responsibility to schedule the Make Offer opening and closing dates ("Make Offer Opening and Closing Dates") for Your Equipment; provided that the maximum length of a Make Offer posting shall be 365 days. You acknowledge and agree that You are responsible to remove your posting following sale of the applicable Equipment, and that any Make Offer posted for longer than 365 days shall be removed from the Site.
(d)You have the full responsibility to schedule the Make Offer opening and closing dates ("Make Offer Opening and Closing Dates") for Your Equipment; provided that the maximum length of a Make Offer posting shall be 365 days. You acknowledge and agree that You are responsible to remove your posting following sale of the applicable Equipment, and that any Make Offer posted for longer than 365 days shall be removed from the Site.
(e)AS FAIRBID IS EXPRESSLY NOT ACTING AS THE AGENT FOR BUYER OR SELLER IN ANY MAKE OFFER TRANSACTION, FAIRBID SHALL HAVE NO ROLE WHATEVER IN THE POSTING, LISTING, OFFER FOR SALE, SALE, INSPECTION, PAYMENT, DELIVERY, TITLE TRANSFER AND/OR OTHER PROCESSING OF EQUIPMENT LISTED IN ANY MAKE OFFER POSTING. BUYER AND SELLER ARE COMPLETELY RESPONSIBLE FOR ALL SUCH ARRANGEMENTS. ACCORDINGLY, YOU HEREBY, VOLUNTARILY AND KNOWINGLY, FOREVER RELEASE AND DISCHARGE THE FAIRBID GROUP (AND ANY OF ITS AFFILIATED ENTITIES) FROM AND AGAINST ALL CLAIMS, OBLIGATIONS, SUITS, LIABILITIES, DEMANDS, LOSSES, DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES AND COSTS, EXPERT FEES AND COSTS, AND OTHER LITIGATION FEES AND COSTS) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR PARTICIPATION IN ANY MANNER WITH ANY BUY IT NOW TRANSACTION OR POSTING AND/OR ANY DISPUTES YOU MAY HAVE WITH ANY BUYER, POTENTIAL BUYER OR THIRD PARTY WITH RESPECT TO ANY MAKE OFFER POSTING OR ANY TRANSACTION, WHETHER OR NOT CONSUMMATED, RESULTED THEREFROM.
6.FairBid Classifieds. If You list Your Equipment on the Site in the FairBid Classifieds, You agree to the following terms and conditions:
(a)FAIRBID SHALL HAVE NO OBLIGATIONS, RESPONSIBILITIES OR LIABILITY WITH RESPECT TO THE RUNNING OF YOUR FAIRBID CLASSIFIED LISTING, ANY BUYER OR PROSPECTIVE BUYER, THE TRANSACTION AND/OR CONSUMMATION OF ANY SALE THEREON.
(b)You have the full responsibility to schedule the FairBid Classified opening and closing dates ("FairBid Classified Opening and Closing Dates") for Your Equipment; provided that the maximum length of a FairBid Classified posting shall be 90 days. You acknowledge and agree that You are responsible to remove your posting following sale of the applicable Equipment, and that any FairBid Classified posted for longer than 90 days shall be removed from the Site.
(c)If the Equipment is not sold in the FairBid Classifieds prior to the FairBid Classifieds Closing Date, You may re-list Your Equipment in a FairBid Auction or FairBid Plus Auction (subject to applicable fees), as a Standalone Buy It Now, as a Make Offer, in any FairBid Plus Marketplace (subject to applicable fees) or withdraw Your Equipment from the Site.
(d)AS FAIRBID IS EXPRESSLY NOT ACTING AS THE AGENT FOR BUYER OR SELLER IN ANY FAIRBID CLASSIFIEDS TRANSACTION, FAIRBID SHALL HAVE NO ROLE WHATEVER IN THE POSTING, LISTING, OFFER FOR SALE, SALE, INSPECTION, PAYMENT, DELIVERY, TITLE TRANSFER AND/OR OTHER PROCESSING OF EQUIPMENT LISTED ON THE FAIRBID CLASSIFIEDS. BUYER AND SELLER ARE COMPLETELY RESPONSIBLE FOR ALL SUCH ARRANGEMENTS. ACCORDINGLY, YOU HEREBY, VOLUNTARILY AND KNOWINGLY, FOREVER RELEASE AND DISCHARGE THE FAIRBID GROUP (AND ANY OF ITS AFFILIATED ENTITIES) FROM AND AGAINST ALL CLAIMS, OBLIGATIONS, SUITS, LIABILITIES, DEMANDS, LOSSES, DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES AND COSTS, EXPERT FEES AND COSTS, AND OTHER LITIGATION FEES AND COSTS) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR PARTICIPATION IN ANY MANNER ON THE FAIRBID CLASSIFIEDS AND/OR ANY DISPUTES YOU MAY HAVE WITH ANY BUYER, POTENTIAL BUYER OR THIRD PARTY WITH RESPECT TO THE FAIRBID CLASSIFIEDS OR ANY TRANSACTION, WHETHER OR NOT CONSUMMATED, RESULTED THEREFROM.
7.FairBid Plus Auctions and FairBid Plus Marketplace. If you have selected a FairBid Plus Auction or FairBid Plus Marketplace, the following terms shall apply:
(a)FairBid Plus Auctions. By listing your Equipment in a FairBid Plus Auction, You acknowledge and agree that You are extending an irrevocable offer to sell the Equipment to Equipment to (i) the highest bidder who meets or exceeds the opening bid (if you do not set a reserve price) or (ii) the highest bidder who meets or exceeds your reserve price (if you do set a reserve price). You agree that during the period commencing at the time of the Listing Acceptance and until (i) such Equipment is sold on the FairBid Site; (ii) You withdraw the Equipment from the FairBid Site as permitted hereunder; or (iii) a transaction for the Equipment is terminated by FairBid as provided by this Agreement or the Auction Buyers Agreement (the "FairBid Plus Auction Period") the FairBid Site will be the exclusive listing for the sale of such Equipment. You agree to remove any listings of such Equipment from other auctions and any other sales forums during the FairBid Auction Period (including but not limited to the FairBid Classifieds). Seller sets the Opening Bid for the Equipment. Seller also schedules the FairBid Auction opening date and FairBid Auction closing date ("FairBid Plus Auction Opening and Closing Dates") for the Equipment. The maximum period between the FairBid Auction Plus Opening Date and Closing Date is three hundred and sixty-five (365) days If the Equipment is not sold prior to the FairBid Auction Closing Date, You may re-list the Equipment in any FairBid Plus Auction or withdraw Your Equipment with no penalty and end the Auction Period.
(b)FairBid Plus Standalone Buy It Now. By listing your Equipment as a FairBid Plus Standalone Buy It Now, You acknowledge and agree that You are extending an irrevocable offer to sell the Equipment the first bidder who accepts the Buy It Now price You have set. You agree that during the period commencing at the time of the Listing Acceptance and until (i) such Equipment is sold on the FairBid Site; (ii) You withdraw the Equipment from the FairBid Site as permitted hereunder; or (iii) a transaction for the Equipment is terminated by FairBid as provided by this Agreement or the Buyers Agreement (the "Buy It Now Sale Period") the FairBid Site will be the exclusive listing for the sale of such Equipment. You agree to remove any listings of such Equipment from other auctions and any other sales forums during the Buy It Now Sale Period (including, but not limited to, on the FairBid Classifieds). For a FairBid Plus Standalone Buy It Now, the Listing Details must include payment and Equipment retrieval terms. FairBid shall schedule the FairBid Plus Standalone Buy It Now opening and closing dates according to the dates provided by You on the FairBid Plus Details Form ("FairBid Plus Buy It Now Opening and Closing Dates") as for Your Equipment; provided that the maximum length of a Buy It Now posting shall be 365 days
(c)FairBid Plus Make Offer. By listing your Equipment as a FairBid Plus Make Offer posting, You acknowledge and agree that You are inviting Buyers to submit offers to purchase the Equipment. For a FairBid Plus Make Offer posting, the Listing Details must include payment and Equipment retrieval terms. NOTWITHSTANDING THE TERMS IN SECTION 2(A), AND WITH RESPECT ONLY TO MAKE OFFER POSTINGS, YOU ACKNOWLEDGE THAT YOU MAY NOT HAVE FULL LEGAL AND EQUITABLE, GOOD AND MARKETABLE TITLE TO THE EQUIPMENT OR AND HAVE FULL RIGHTS TO SELL THE EQUIPMENT AT THE TIME OF THE LISTING ACCEPTANCE OR THE MAKE OFFER OPENING DATE. YOU REPRESENT AND WARRANT THAT, AFTER ACCEPTANCE OF AN OFFER FROM A BUYER FOR THE PURCHASE OF THE EQUIPMENT, AT THE TIME THE TRANSACTION IS CONSUMMATED YOU SHALL HAVE FULL LEGAL AND EQUITABLE, GOOD AND MARKETABLE TITLE TO THE EQUIPMENT TO TRANSFER TO THE BUYER OR HAVE FULL RIGHTS TO SELL THE EQUIPMENT TO THE BUYER. FairBid shall schedule the FairBid Plus Make Offer opening and closing dates according to the dates provided by you on the FairBid Plus Details Form ("FairBid Plus Make Offer Opening and Closing Dates") for Your Equipment; provided that the maximum length of a FairBid Plus Make Offer posting shall be 365 days. FairBid will contact you with any offers to purchase the Equipment, and You shall provide written notice to FairBid authorizing FairBid to complete the transaction for the FairBid Plus Classifieds posting.
(d)FairBid Plus Classifieds. By listing your Equipment as a FairBid Plus Classifieds posting, You acknowledge and agree that You are inviting Buyers to submit offers to FairBid to purchase the Equipment. For a FairBid Plus Classifieds posting, the Listing Details must include payment and Equipment retrieval terms. FairBid shall schedule the FairBid Plus Classified opening and closing dates according to the dates provided by You on the FairBid Plus Details Form ("FairBid Plus Classified Opening and Closing Dates") for Your Equipment; provided that the maximum length of a FairBid Plus Classifieds posting shall be 90 days. FairBid will contact you with any offers to purchase the Equipment, and You shall provide written notice to FairBid authorizing FairBid to complete the transaction for the FairBid Plus Classifieds posting.
(e)FairBid Plus Services. By choosing to list your Equipment in a FairBid Plus Auction or in any FairBid Plus Marketplace, you are engaging FairBid to run the auction or sale and provide related services to You (“FairBid Plus Services”). The FairBid Plus Services may include the following services provided by FairBid: taking photographs of the Equipment for posting on the Site, arranging of Equipment inspections, creation of auction and/or Buy It Now advertisements, use of FairBid’s sales team to provide off-line sales support, such as emails and telephone calls to potential Buyers, answering Buyer questions, facilitation of loading and shipping of Equipment, handling of payment transfers in accordance with Section 7(f) hereof and follow up to confirm transfers of title between Sellers and Buyers. You may select any or all of the foregoing assistance as part of the FairBid Plus Service. Certain of the foregoing FairBid Plus Services are available for an additional charge payable by Seller, and which may require an advance deposit. Please contact FairBid customer service to determine if any services You require are subject to additional charge. Charges for FairBid Plus Services are non-refundable, regardless of whether the applicable Equipment is sold via a FairBid Plus Auction or in a FairBid Plus Marketplace.
(f)Fees. If the Equipment is sold during a FairBid Plus Auction in a FairBid Plus Marketplace, You agree to pay FairBid a fee as negotiated and agreed upon between FairBid and Seller ("Seller’s Fee"). The Seller’s Fee will be automatically deducted from the total sales proceeds due to You. Additionally, all FairBid Plus Services fees not yet paid by You to FairBid and penalties assessed by FairBid and payable by You hereunder shall also be automatically deducted from the total sales proceeds due to You. You expressly acknowledge and agree that FairBid shall not remit any sales proceeds to You, nor shall FairBid be liable to pay any amounts to You, unless and until FairBid has received payment in full from the Buyer, You have submitted all documents necessary to transfer full title to the Equipment to the Buyer and the Equipment is free of all liens, claims and encumbrances. If You cannot transfer full title to the Equipment to the Buyer, the transaction will be null and void and You shall pay to FairBid a failure of title penalty. If Your Equipment is sold during the FairBid Plus Auction or in a FairBid Marketplace and the transaction closes without default by You or Buyer, FairBid shall remit any monies due to You received from Buyer within two (2) business days following the later of the Equipment being made available to Buyer for retrieval or your delivery of all necessary title and transfer documentation.
(g)Title. Upon FairBid’s notification to You that there is a winning bid for Your FairBid Plus Auction or an accepted offer in a FairBid Plus Marketplace, You will send to FairBid, via overnight delivery (using any delivery materials provided by FairBid), evidence of title to the Equipment and all documents necessary to transfer full title to the Equipment to the Buyer or such other documents as directed by FairBid. FairBid shall retain all such documents until such time as full payment is received from Buyer and You have properly made the Equipment available to Buyer for retrieval.
(h)Release of Equipment Upon Sale. Immediately after FairBid notifies You that it has received payment from Buyer, You must make the Equipment, along with ignition key (if applicable) and all owners’ manuals available to Buyer for retrieval by or transportation to Buyer. Following FairBid’s receipt of the documents required by Section 7(g) and full payment from Buyer, FairBid shall provide Buyer with notice of the Equipment location for retrieval (“Release Notice”). Buyer shall retrieve the Equipment within 10 days of such notice, or such other period of time as is agreed between Buyer and Seller. Buyer and Seller are responsible to inform FairBid of any change in the timeframe for retrieval of any Equipment
(i)Seller Default. If, for any reason, after FairBid has notified You of receipt of full payment from the Buyer, You either do not have the Equipment in a "ready" condition for transport or You delay the release of Your Equipment to the Buyer, You agree to pay FairBid a post-auction delay penalty. Further if, for any reason You fail to release the Equipment to the Buyer after a FairBid Plus Auction has closed or FairBid Plus Marketplace transaction is completed, You agree to pay FairBid a post-auction default penalty, which is set forth on the FairBid Site, no proceeds will be paid to You, and You will be barred from further use of the FairBid Site. Additionally, if You fail to make any payments due to FairBid hereunder, whether for FairBid Plus Services, default or otherwise, You will be barred from further use of the FairBid Site.
(j)Your Options after Bidder Default in FairBid Plus Auction. If the winning bidder does not make payments or retrieve the Equipment in accordance with the Buyer Agreement, the winning bidder is considered in default ("Bidder Default"). As the seller of any piece of Equipment subject to Bidder Default, You may elect any one of the following options after FairBid notifies You of such Bidder Default.
(i)Offer Equipment to Second Highest Bidder at Second Highest Bid Price. If there was more than one bidder for the affected Equipment, You may elect to offer the Equipment to the second highest bidder in the FairBid Plus Auction at the maximum bid amount entered by the second highest bidder (“FairBid Plus Second Bidder Purchase Amount”). The second highest bidder will have two (2) business days to decide whether to purchase the Equipment at the FairBid Plus Second Bidder Purchase Amount. If the second highest bidder so chooses to proceed, Your Equipment will be sold and You will receive proceeds based on the FairBid Plus Second Bidder Purchase Amount, less the Seller’s Fee and all other applicable commissions and fees, in accordance with the terms and conditions of this Agreement; or
(ii)Re-list the Equipment for Subsequent Auction. You may elect to list the Equipment in a subsequent FairBid Plus Auction at any time. All other terms and conditions of this Agreement continue to be enforced for any such re-listing in a subsequent auction; or
(iii)Withdraw the Equipment. You may elect, without penalty, to withdraw the Equipment from the Site.
(k)Your Options after Buyer Default in a FairBid Plus Marketplace. If the Buyer does not make payments or retrieve the Equipment in accordance with the Buyer Agreement, the Buyer is considered in default ("Buyer Default"). As the seller of any piece of Equipment subject to Buyer Default, You may elect any one of the following options after FairBid notifies You of such Buyer Default.
(i)Re-list the Equipment in another FairBid Plus Marketplace. You may elect to list the Equipment in another FairBid Plus Marketplace at any time. All other terms and conditions of this Agreement continue to be enforced for any such re-listing in a subsequent FairBid Plus Marketplace; or
(ii)Withdraw the Equipment. You may elect, without penalty, to withdraw the Equipment from the Site.
(l)Release. YOU HEREBY, VOLUNTARILY AND KNOWINGLY, FOREVER RELEASE AND DISCHARGE THE FAIRBID GROUP FROM AND AGAINST ALL CLAIMS, OBLIGATIONS, SUITS, LIABILITIES, DEMANDS, LOSSES, DAMAGES AND EXPENSES (INCLUDING REASONABLE ATTORNEYS FEES AND COSTS, EXPERT FEES AND COSTS, AND OTHER LITIGATION FEES AND COSTS) OF EVERY KIND AND NATURE, KNOWN AND UNKNOWN, SUSPECTED AND UNSUSPECTED, DISCLOSED AND UNDISCLOSED, ARISING OUT OF OR IN ANY WAY CONNECTED WITH YOUR PARTICIPATION IN ANY MANNER ON THE SITE, WITH THE SERVICES, WITH RESPECT TO ANY FAIRBID PLUS AUCTION OR FAIRBID PLUS MARKETPLACE, WITH RESPECT TO ANY TRANSACTION ON OR VIA THE SITE THAT MAY OR MAY NOT BE CONSUMMATED, AND/OR ANY DISPUTES YOU MAY HAVE WITH ANY BUYER, POTENTIAL BUYER OR THIRD PARTY WITH RESPECT TO ANY FAIRBID PLUS AUCTION, FAIRBID PLUS MARKETPLACE OR ANY TRANSACTION, WHETHER OR NOT CONSUMMATED, RESULTING THEREFROM.
8. Taxes. All bids and offers are net of any taxes (including but not limited to sales, use and transfer taxes) imposed with respect to the sale or purchase transaction. Unless otherwise agreed between Buyer and Seller, Buyers are liable for all such taxes or for establishing to Seller’s satisfaction a valid exemption certificate from such taxes. Seller shall indemnify FairBid against any tax, cost or expense relating to the failure of Seller to satisfy any Seller sales, use or transfer tax or other tax liability related to any transaction on the FairBid Site, including but not limited to FairBid Auctions, FairBid Plus Auctions, FairBid Marketplace and FairBid Plus Marketplace.
9.Prohibited Items. You may not list any Equipment for which the possession or use of which is illegal or the sale of which would not comply with any applicable law, rule or regulation. FairBid reserves the right, in its sole discretion, to refuse to list any piece of Equipment at any time. FairBid reserves the right, in its sole discretion, to withdraw any listing from the Site or cancel any transaction that it deems to be suspicious or fraudulent in nature. FairBid will cooperate with authorities to prosecute to the fullest extent of the law any Seller, Buyer, bidder or other party engaged in fraudulent activities while using the Site and/or Services.
10. DISCLAIMER; LIMITATION OF LIABILITY; INDEMNIFICATION.
(a) DISCLAIMER. THE SITE AND SERVICES, INCLUDING ALL CONTENT, FUNCTIONS, MATERIALS, EQUIPMENT AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH THE SITE OR THE SERVICES, ARE PROVIDED BY FAIRBID ON AN "AS IS," "AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, COURSE OF DEALING OR USAGE OF TRADE. FAIRBID DOES NOT WARRANT THAT THE EQUIPMENT, SITE OR SERVICES OR THE FUNCTIONS, FEATURES OR CONTENT CONTAINED THEREIN OR IN THE SITE WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED, AVAILABLE OR ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. FAIRBID MAKES NO WARRANTY THAT THE EQUIPMENT, SITE OR SERVICE WILL MEET THE REQUIREMENTS OR EXPECTATIONS OF ANY BUYER OR POTENTIAL BUYER, AND EXPRESSLY DISCLAIMS ANY WARRANTIES OR GUARANTEES THAT BY LISTING EQUIPMENT ON THE SERVICE OR THE SITE, SUCH EQUIPMENT WILL BE SOLD OR WILL BE SUITABLE FOR ANY PURPOSE. IF YOU ARE DISSATISFIED WITH THE SITE OR ANY SERVICES ON THE SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND THE SERVICES. FAIRBID MAKES NO WARRANTY REGARDING ANY EQUIPMENT OR SERVICES PURCHASED OR OBTAINED THROUGH THE SERVICES AND/OR THE SITE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICES AND/OR THE SITE. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU OR ANY THIRD PARTY FROM FAIRBID OR THROUGH THE SERVICES SHALL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. FAIRBID EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF ANY EQUIPMENT SOLD ON OR THROUGH THE SITE AND/OR THE SERVICES, AND ANY RESPONSIBILITY FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY YOU OR ANY BUYER OR ANY OTHER PERSON OR ENTITY.
(b)LIMITATION OF LIABILITY. IN NO EVENT SHALL FAIRBID BE LIABLE FOR ANY DAMAGES OF ANY KIND ARISING FROM (A) ANY INJURY TO ANY PERSON OR PROPERTY CAUSED BY THE EQUIPMENT; (B) DEFECTS IN SUCH EQUIPMENT ON ANY THEORY OF LIABILITY INCLUDING WITHOUT LIMITATION PRODUCT LIABILITY; AND/OR (C) ANY BREACH OF THIS AGREEMENT, THE TERMS OF USE, THE PRIVACY POLICY OR ANY OTHER FAIRBID POLICY OR PROCEDURE BY YOU, OR ANY OTHER PERSON OR ENTITY. IN ADDITION, IN NO EVENT SHALL FAIRBID BE LIABLE FOR ANY SPECIAL, INCIDENTAL OR CONSEQUENTIAL DAMAGES THAT ARE DIRECTLY OR INDIRECTLY RELATED TO THE USE OF, OR THE INABILITY TO USE, THE SERVICES, THE SITE OR ITS CONTENT, INCLUDING WITHOUT LIMITATION, LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR LOST SALES, EVEN IF FAIRBID OR AN AUTHORIZED REPRESENTATIVE THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT SHALL THE TOTAL LIABILITY OF FAIRBID TO YOU FOR ALL DAMAGES, LOSSES, AND CAUSES OF ACTION (WHETHER IN CONTRACT OR TORT, INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE, PRODUCT LIABILITY OR OTHERWISE) ARISING FROM THIS AGREEMENT OR YOUR USE OF THE SITE AND THE SERVICES EXCEED, IN THE AGGREGATE, $100.00. THERE IS NO GUARANTEE WHATSOEVER BY FAIRBID AS TO THE PROCEEDS, IF ANY, TO BE REALIZED IN CONNECTION WITH THE SALE OF THE EQUIPMENT. FAIRBID HAS NO RESPONSIBILITY WHATSOEVER FOR ANY TYPOGRAPHICAL OR PHOTOGRAPHICAL ERRORS THAT MAY APPEAR ON THE SITE.
(c)Indemnity. You agree to defend, indemnify and hold harmless FairBid, its parents, affiliates and subsidiaries, and their respective officers, directors, members, agents, representatives, contractors, subcontractors and employees from all claims, demands, liabilities, expenses, obligations and damages, actual and consequential, of every kind and nature, known and unknown, suspected and unsuspected, disclosed and undisclosed, to the extent arising out of or in any way connected with: any breach or violation by You of this Agreement, the Terms of Use, Privacy Policy and/or all other FairBid policies and procedures, including all representations and warranties contained therein; any use by You of the Site; any disputes or damages arising out of Your use of or agreements formed between You and any Buyer or potential Buyer through the Site (including via the FairBid Classifieds); failure of title to the Equipment; representations made by You in conjunction with the Equipment; defects in the Equipment; personal injury or property damage; the inherent dangerous nature of the Equipment; and environmental problems caused by, or claimed to have been caused by, You or for which You may be responsible with respect to Your operations and/or the Equipment.
11.General. This Agreement shall be binding upon and inure to the benefit of the parties to this Agreement and their successors in interest. This Agreement shall not be assigned by Seller. This Agreement shall be construed in accordance with and governed by the substantive and procedural laws of the Commonwealth of Pennsylvania. Any legal action arising from or related to this Agreement shall be brought in the federal or state courts located in or for Delaware County, Pennsylvania, agree to accept service of process by mail and hereby waive any jurisdictional and venue defenses otherwise available. This Agreement, including the Terms of Use and the Privacy Policy contains the complete understanding and agreement of the parties and supersedes all prior or contemporaneous agreements or understandings, oral or written, relating to the subject matter herein. You and FairBid are independent contractors, and this Agreement will not establish any relationship of partnership, joint venture, employment, franchise, or agency between Seller and FairBid. If any provision of this Agreement shall be deemed unlawful, void, or for any reason unenforceable, then that provision shall be deemed severable from these terms and conditions and shall not affect the validity and enforceability of any remaining provisions. FairBid's failure to enforce the strict performance of any provision of this Agreement will not constitute a waiver of FairBid's right to subsequently enforce such provision or any other provisions of this Agreement. In the event of a dispute between the parties regarding or relating to this Agreement, the prevailing party shall have its attorneys’ and professionals’ fees, costs and expenses paid by the losing party. FairBid shall not be liable for any failure or delay in its performance under this Agreement due to act of war, acts of God, earthquake, flood, embargo, riot, sabotage, governmental act, outage of communications (including the Internet or other networked environment), power or other utility, labor problem, unavailability of supplies, extraordinary market conditions or any other cause, whether similar or dissimilar to any of the foregoing, which could not have been prevented by FairBid using reasonable care. Any notices provided by FairBid to You hereunder may be sent by confirmed email.