Hodgins
Online Auctions Terms and Conditions
THIS
IS A LEGAL AGREEMENT BETWEEN YOU AND HODGINS AUCTIONEERS INC.
(“Hodgins”) STATING THE TERMS THAT GOVERN YOUR
USE OF THE HODGINS ON-LINE AUCTION SERVICE. THIS AGREEMENT
– TOGETHER WITH ALL UPDATES, ADDITIONAL TERMS, SOFTWARE
LICENSES, AND ALL OF HODGINS’ RULES AND POLICIES REFERRED
TO IN THIS AGREEMENT – COLLECTIVELY CONSTITUTE THE “AGREEMENT”
BETWEEN YOU AND HODGINS. TO AGREE TO THESE TERMS, CLICK “AGREE”.
IF YOU DO NOT AGREE TO THESE TERMS, DO NOT CLICK “AGREE”
AND DO NOT USE THE SERVICE. YOU MUST ACCEPT AND ABIDE BY THESE
TERMS AS PRESENTED TO YOU; CHANGES, ADDITIONS OR DELETIONS
ARE NOT ACCEPTABLE AND HODGINS MAY REFUSE ACCESS TO THE HODGINS
ON-LINE AUCTION SERVICE FOR NON-COMPLIANCE WITH ANY PART OF
THIS AGREEMENT.
The
Hodgins Online Auctions web site currently located at www.hodginsauctioneers.com
(the "Auction Site”, “Website” or "Site")
and services offered (the "Service") for equipment
and other items (collectively "Equipment") are provided
by Hodgins Auctioneers Inc. ("Auctioneers" or “Hodgins”)
to you ("you" or "user") subject to the
terms and conditions set forth in these Terms and Conditions
and the Privacy Policy [add hyperlink] (collectively the "User
Agreement" or "Agreement"). Hodgins is licensed
and bonded in the province of Saskatchewan, Canada.
Acceptance
of Terms: Before
you attempt to use this Site or the Service, whether as a
buyer or as a seller of Equipment through the Auction Site,
Hodgins requires that you read and accept all of the terms
and conditions of this Agreement. BY CLICKING ON "AGREE",
YOU HEREBY AGREE THAT YOU HAVE READ, UNDERSTOOD AND ACCEPTED
THIS AGREEMENT, INCLUDING THE TERMS AND CONDITIONS, THE PRIVACY
POLICY AND ALL OTHER AGREEMENTS INCORPORATED BY REFERENCE
IN ANY OF THE FOREGOING. In order to use this Site, you must
accept this Agreement, otherwise access will not be granted
to you. If you have any questions regarding this Agreement,
please contact us at 1-800-667-2075.
I.
User Requirements
General
Hodgins may revise these Terms and Conditions at any time
by updating this posting and without providing any further
notice to you. You should visit this page each time you access
the Site to review the current Terms and Conditions because
they are binding on you. Certain provisions of the Agreement,
including these Terms and Conditions, may be superseded by
expressly designated legal notices or terms located on other
pages on this Site. Your continued use of the Site and the
Services after any such changes are posted on the Site will
constitute your continued agreement to be bound to this Agreement,
as amended. This Agreement was last revised on March 9, 2006.
Legal
Contracts
This Site and the Service are available only to individuals
aged 18 years of age or older and to authorized representatives
of other legal entities capable of entering into contractual
relationships. If you register to use the Site and Service
as an authorized representative you represent and warrant
to Hodgins that you have authority to enter into binding commitment
on behalf of the legal entity you purport to represent. Without
limiting the generality of the foregoing, no minors in any
jurisdiction nor individuals who have been suspended from
the Site and/or the Service may participate in Hodgins On-Line
Auctions.
Your
use of the Service includes the ability to enter into agreements
and/or to make purchases electronically. YOU ACKNOWLEDGE
AND AGREE THAT YOUR ELECTRONIC SUBMISSIONS CONSTITUTE YOUR
AGREEMENT AND INTENT TO BE BOUND BY AND TO PAY FOR SUCH AGREEMENTS
AND PURCHASES. YOUR AGREEMENT AND INTENT TO BE BOUND BY ELECTRONIC
SUBMISSIONS APPLIES TO ALL RECORDS RELATING TO ALL TRANSACTIONS
YOU ENTER INTO ON THIS SITE, INCLUDING NOTICES OF CANCELLATION,
POLICIES, CONTRACTS AND APPLICATIONS.
Objectionable
Material
You understand that by using the Service, you may encounter
content that may be deemed offensive, indecent, or objectionable.
Notwithstanding this, you agree to use the Service at your
sole risk and that Hodgins shall have no liability to you
for content that may be found to be offensive, indecent or
objectionable.
System
Requirements
Use of the Service requires compatible hardware, Internet
access and certain software and may require obtaining updates
or upgrades from time to time. All fees and costs related
to such hardware, Internet access and software, including
all updates and upgrades, shall be your sole financial responsibility.
Because use of the Service involves hardware, software and
Internet access, your ability to use the Service may be affected
by the performance of these factors. High speed Internet access
is strongly recommended. You acknowledge and agree that such
hardware compatibility requirements, which may be changed
from time to time, are your responsibility.
Hodgins’
Privacy Policy
Except as otherwise expressly provided for in this Agreement,
the Service is subject to Hodgins’ Privacy Policy at
http://www.hodginsauctioneers.com/privacypolicy.html,
which is expressly made a part of this Agreement. If you have
not already read Hodgins’ Privacy Policy, you should
do so now.
Limitation
of Liability
IN NO EVENT SHALL AUCTIONEERS BE LIABLE FOR ANY DIRECT, INDIRECT,
SPECIAL, PUNITIVE, INCIDENTAL, EXEMPLARY OR CONSEQUENTIAL,
DAMAGES, OR ANY DAMAGES WHATSOEVER.
Management
of Information
Auctioneers cannot control all of the information provided
by users which may be made available through the Site or the
Services. Persons using this site may find the user's information
to be inaccurate or deceptive. Additionally, while users of
this Site are bound by these Terms and Conditions not to submit
false material, Auctioneers cannot be held responsible for
any violation of these terms by users, or for the reliance
by users upon false or misleading material submitted by other
users. Caution and common sense must be exercised at all times
by all users when using the Site and the Service. Auctioneers
have no control over the quality, safety or legality of the
Equipment listed or any other information provided by the
user about the Equipment.
You
agree that you are using the Site and all material posted
on the Site at your own risk.
Typographical
Errors
In the event that Equipment is listed at an incorrect price
due to a typographical error or error in pricing information
received from our sellers, Auctioneers shall have the right
to refuse or cancel any transaction for Equipment listed at
the incorrect price.
Registration
In order to participate in the On Line Auction, all users
must register with Auctioneers by filling out a registration
form and providing specific information to Auctioneers. When
Auctioneers have notified users that their registration form
is complete and has been approved, the user will be allowed
to become "Registered”.
Your
Information
You agree to provide accurate, current and complete information
required to register with the Service and at all other points
as may be required in the course of using the Service (“Registration
Data”). You further agree to maintain and update your
Registration Data as required to keep it accurate, current
and complete. Hodgins may terminate your rights to any or
all of the Service if any information you provide is false,
inaccurate, misleading or incomplete. You agree that Hodgins
may store and use the Registration Data you provide (including
payment card information, where applicable) for use in maintaining
your accounts and billing fees to your payment card.
Account
and Password
As a registered user of the Service, you may receive or establish
an account (“Account”). You are solely responsible
for maintaining the confidentiality and security of your Account.
You should not reveal your Account information to anyone else
or use anyone else’s Account. You are entirely responsible
for all activities that occur on or through your Account and
you agree to immediately notify Hodgins of any unauthorized
use of your Account or any other breach of security. Hodgins
shall not be responsible for any losses arising out of the
unauthorized use of your Account which is not due to the negligence
of Hodgins.
Security
During the registration process, you will be required to select
a login ID and a password. You (the user) are responsible
for the protection and confidentiality of your login ID and
password. You agree to notify Auctioneers immediately of any
unauthorized use of your login ID or password or any other
breach of security regarding the Site or the Service.
You
agree not to attempt to, or assist another person to, circumvent,
reverse-engineer, decompile, disassemble or otherwise tamper
with any of the security components related to the Service
for any reason whatsoever. Your compliance with these security
rules may be controlled and monitored by Hodgins and Hodgins
reserves the right to enforce these security rules with or
without further notice to you. You agree that you will not
access the Service by any means other than through software
that is provided by Hodgins for access to the Service. You
agree that you shall not access or attempt to access an Account
that you are not authorized to access. You agree not to modify
the software in any manner or form, or to use modified versions
of the software for any purposes including obtaining unauthorized
access to the Service. Violations of system, network or Service
security may result in civil or criminal liability.
Mandate
You acknowledge and agree that the Site and Service is only
a venue for registered sellers to list Equipment and for registered
buyers to make bids on Equipment. Auctioneers are not involved
in the transactions between buyers and sellers. Auctioneers
have no control over the sellers, buyers or any other aspect
of the transactions between buyers and sellers.
Inspections
If you choose to have your Equipment inspected, you agree
to abide by the terms and conditions associated with Equipment
Inspections in the Inspection Terms and Conditions which are
hereby incorporated by reference, and which are located at
http://www.hodginsauctioneers.com/inspectiontermsandconditions.html.
It is your responsibility to ensure that you have read and
understood the Inspection Terms and Conditions. If you have
not already read the Inspection Terms and Conditions, you
should do so now.
Disputes
In the event that you have a dispute with another user of
the Site or Service, you hereby agree to release Hodgins and
our officers, directors, agents, subsidiaries and employees
from all claims, demands and damages (including, without limitation,
actual and consequential) of every kind and nature, direct
or indirect, known or unknown, suspected or unsuspected, disclosed
or undisclosed, arising out of or in any way connected with
all such disputes.
II.
Agreement
On-Line
Consignment Agreement. In order to list your Equipment to
be auctioned in a Showcase Auction, Signature Auction or an
Immediate Purchase Listing, you agree to abide by the terms
and conditions in the On-Line Consignment Agreement. All of
the terms and conditions of the On-Line Consignment Agreement
are hereby incorporated by reference in this Agreement and
can be viewed at http://www.hodginsauctioneers.com/consignmentagreement.html.
If you have not already read the On-Line Consignment Agreement,
you should do so now.
III.
Auction
Auction Period
Unless otherwise specified by the seller when the Equipment
is posted to the Site, the Auction period shall be determined
by Auctioneers and will end at a time to be determined by
Auctioneers or following a two and one half (2 ½) minute
period of no bidding activity, whichever is later.
Bidder
Conduct
You acknowledge and agree that once you have placed a bid,
you are bound to honour that bid. You may not retract the
bid. Manipulation of the sale price of Equipment in any manner
is strictly prohibited including, without limiting the generality
of the foregoing, bidding through an agent or any other entity,
or by communicating with other buyers or sellers, or by shill
bidding. Without in any manner limiting the remedies available
to Hodgins or any other person or entity that may be affected
by such activity, any such attempt to improperly affect the
sale price of Equipment will result in the termination of
all of your rights to use the Site and the Service.
Binding
Offer to Purchase
If you are the highest bidder at the end of a Showcase Auction
and the opening bid has been met or exceeded, you are obligated
to complete the transaction with the seller unless the transaction
is prohibited by law or by this Agreement.
If
you are the highest bidder at the end of a Signature Auction
and the Reserve Price, if any, has been met or exceeded, or
if you accept a Sharper Pencil Offer extended to you by the
Seller, if the Seller chooses to extend such an offer, you
are obligated to complete the transaction with the Seller
unless the transaction is prohibited by law or by this Agreement.
If your bid meets the Immediate Puchase Listing Reserve Price,
you are obligated to complete the transaction with the Seller
unless the transaction is prohibited by law or by this Agreement.
All bidders agree that the placing of a bid on the Site is
the legal equivalent of a firm purchase order.
Postponement
and Cancellation
Auctioneers reserve the right to postpone or cancel any Showcase
Auction, Signature Auction or Immediate Purchase Listing,
or any sale resulting there from, in its absolute, unfettered
discretion, without notice. Auctioneers will have no liability
to any bidders, whether apparently successful or unsuccessful,
or sellers as a result of any withdrawal, cancellation or
postponement of any Showcase Auction, Signature Auction or
Immediate Purchase Listing or any sales, or apparent sale,
that may result there from.
Void
Bids
Auctioneers reserve the right to reject or void bids that
they feel have not been made in good faith, or are intended
to manipulate the auction process, or are prohibited by law.
Auctioneers will have no liability to any bidders, whether
apparently successful or unsuccessful, or sellers as a result
of any such rejection or voiding of bids.
Winning
Bids
Auctioneers will be the sole and exclusive judge in the determination
of whether a bid is a winning bid. Notwithstanding the foregoing,
Auctioneers shall not be liable for any errors or omissions,
negligently caused or otherwise, relating to any such determination,
whether by Auctioneers or some other person acting under the
direction and control of Auctioneers.
IV.
Fees, Commissions and Penalties
Auctioneer’s fees, payments and commissions for buyers
and sellers are incorporated by reference herein and can be
viewed at http://www.hodginsauctioneers.com/paymentsandfees.html
for buyers and http://www.hodginsauctioneers.com/commissionsandfees.html
for sellers. Auctioneers may change their fees, payments and
commissions from time to time as deemed necessary by Auctioneers.
All such changes will be effective immediately following the
posting of same on the Site.
V.
Transaction process
Liability
for Equipment
The Equipment shall be and remain at the risk of the seller
until Deemed Receipt (as hereinafter defined). The Equipment
shall be and remain at the risk of the buyer and/or the buyer's
designated transportation provider while in transport. The
equipment shall be and remain at the risk of the buyer once
delivered to the designated location.
Sales
and Other Taxes
All bids and offers entered by buyers or prospective buyers
must be net of all taxes imposed with respect to the sale
or purchase transaction. Buyers are liable for all such taxes
or for establishing to Auctioneers satisfaction a valid exemption
from all such taxes. Buyers and Sellers acknowledge and agree
that Auctioneers are providing a service in the calculation,
reporting or remittance of all taxes which may be assessed,
due or owing to the taxing authorities of any taxing jurisdiction
for transactions that arise in connection with your use of
the Service. Each buyer agrees that it shall indemnify and
hold Auctioneers harmless from or in respect of any tax, cost
or expense relating to the failure of the buyer to satisfy
any tax liability related to a transaction. Each seller agrees
that it shall indemnify and hold Auctioneers harmless from
or in respect of any tax, cost or expense relating to the
failure of the seller to satisfy any tax liability related
to a transaction.
Transaction
Fee
The transaction fee is calculated as follows: 2% of the final
sale price per item to a maximum fee of $500.00 per item.
Payment
Full payment from the winning bidder in the amount of the
auction closing price, plus all applicable taxes plus the
Transaction Fee must be posted to our bank account within
three (3) business days after the close of all auctions. Buyers
from within Canada may send their payments via wire transfer
or certified bank cheque. Buyers from outside Canada must
send all payments via wire transfer.
Buyer
Default
If, after six (6) business days after the close of the auction,
the successful bidder does not make full payment in accordance
with the payment schedule and terms set forth above, the buyer
shall be considered to be in default and shall be subject
to a Default Penalty which is set forth on the Site http://www.hodginsauctioneers.com/paymentsandfees.html.
In addition, any buyer considered to be in default pursuant
to the terms of this Agreement will be barred from further
use of the Site.
Buyer
Removal of Equipment
Buyers (successful bidders) are responsible for loading and
shipping the Equipment for transportation, unless otherwise
noted in the Equipment listing. Seller agrees to have the
Equipment available for transportation to the successful bidder
no later than one (1) business day after the conclusion of
the auction for the piece of Equipment. Buyer may remove the
Equipment from the seller's location once the total purchase
price (and all applicable sales tax and the Transaction Fee)
has been received by, and posted to, a secure payment account
designated by Auctioneers. If a Buyer has not removed the
Equipment from the Seller's location within ten (10) business
days after the close of the Auction for the piece of Equipment,
the Buyer will be responsible for directly paying the seller
any and all storage fees, if levied by the seller.
Notice
to Buyer:
Hodgins is a Saskatchewan, Canada registered and bonded auction
company. Seller may deem a Buyer's failure to claim purchased
Equipment within thirty (30) days following a final sales
transaction to be evidence of the Buyer's intention to abandon
the Equipment. Where a Buyer fails to claim property within
thirty (30) days following a final sales transaction, a Seller
may take action that is adverse to Buyer's interest in the
Equipment including, but not limited to, any appropriate steps
to dispose of the Equipment through Hodgins On-Line Auctions.
In the event that this occurs, Hodgins will remit the sale
proceeds to the abandoning Buyer, net of actual and reasonable
costs which may include, without limitation, a fifteen (15%)
percent commission payable to Hodgins.
Freight and Transportation
The buyer (successful bidder) is responsible for all freight,
shipping and other costs related to transporting the Equipment
from the seller's posted Equipment location, including but
not limited to, all costs associated with certificates and/or
permits required to move the Equipment within or across provincial,
state and/or country borders. Buyers are advised to have all
such certificates and permits issued and completed prior to
transporting the Equipment; otherwise buyer may be subject
to cleaning, permit, and/or other fees if the Equipment is
stopped and held at any Port of Entry or border crossing.
Auctioneers will not be liable for any acts or omissions arising
from third party transportation arrangements and Auctioneers
shall not be liable for any act or omission of any transportation
provider. Buyers may not transport the Equipment until full
payment (including all applicable tax and the Transaction
Fee) has been received by, and posted to, a secure payment
account designated by Hodgins.
Deemed
Receipt
Once Deemed Receipt (as defined below) has occurred for any
given piece of Equipment, remittance of sale proceeds from
Hodgins (on behalf of the buyer) to the seller may occur,
and any dispute claims subsequently filed by the buyer under
Hodgins' Guaranteed Inspection Report are invalid, as set
forth more fully in Section VI. Deemed Receipt of Equipment
occurs at the first occurrence of any of the following milestones
(unless a dispute claim has been previously filed by the buyer),
provided full payment has been received for the Equipment:
a)
At the time the Equipment leaves the point of pick-up at the
seller's location, if Buyer transports the Equipment itself
rather than using a common carrier. Buyers transporting the
Equipment themselves are required to thoroughly examine, and
shall for all purposes be deemed to have examined and accepted,
the Equipment prior to removing it from the Seller's location
b)
At the time the Equipment leaves the point of pick-up at the
seller's location if Equipment is self-transporting, such
as a truck. Buyers of self-transporting Equipment are required
to thoroughly examine, and shall for all purposes be deemed
to have examined and accepted, the Equipment prior to removing
it from the Seller's location
c)
Ten (10) business days after the conclusion of the Auction
for the Equipment
d)
Twenty-four (24) hours after delivery of the Equipment to
the Buyer's designated location, if purchased Equipment is
sold from Canada or the United States and is subsequently
delivered within Canada or the United States. If the end of
this 24-hour period falls on a Saturday, Sunday or a Saskatchewan,
Canada statutory holiday, Deemed Receipt (on the basis of
the passing of this 24 hour period) will not occur until the
earlier of (i) the first non-weekend day or (ii) the first
non-statutory holiday day). If purchased Equipment is sold
from Canada or the United States and such Equipment is to
be delivered outside of Canada or the continental United States,
Deemed Receipt (on the basis of the passing of this 24 hour
period) will occur 24 hours after the Equipment is delivered
to a Canadian or United States Port of Export.
Remittance of Proceeds to
Seller
Auctioneers shall remit the total purchase price (less any
commission or fees) to seller for such Equipment within two
(2) business days of the buyer's receipt of any registration
documents (if applicable) and Deemed Receipt of Equipment
by the Buyer. Payments will be made by electronic wire transfer
or cheque (subject to additional fees for overnight courier).
Ownership
Certification, Verification and Lien Searches
Sellers are responsible for providing Equipment to the Site
and/or to the Service, free and clear of all liens and encumbrances
of any nature or kind. In its sole discretion, Auctioneers
may carry out registration, encumbrance and lien searches
to investigate the existence of filed PPSA or UCC financing
statements on the Equipment that may affect the transfer of
title to the Equipment to a new Buyer. Auctioneers may charge
the Seller a lien search fee for this verification and the
Seller hereby acknowledges and agrees that Hodgins may deduct
such lien search fee from the seller's sale proceeds. If the
seller fails to remove any lien, encumbrance or adverse claim
on or to any Equipment sold by it or fails to perform or comply
with any other of its obligations contained in this Agreement,
Auctioneers may, in its sole discretion, remove such lien,
encumbrance or adverse claim using seller proceeds or Auctioneers
may refund to the buyer a portion or all of the purchase price
of the Equipment (less any Fees) and cancel the transaction.
The seller shall pay Auctioneers, on demand, all of Auctioneer’s
fees and costs incurred in connection with any removal of
any liens, encumbrances or adverse claims or in connection
with Auctioneer's performance thereof, as the case may be,
together with interest thereon at the rate of 10% per annum
compounded daily until paid in full. No such payment or performance
by Auctioneers shall be deemed to be a waiver of this breach
of this Agreement by the seller, nor shall it relieve the
seller of any of its obligations under this Agreement.
Removal
Penalty Prior to Signature Auction Close - Reserve not met
If, for any reason, the seller withdraws a piece of Equipment
listed in an Signature Auction from the Hodgins On-Line Auctions
Site after the time of Equipment Listing but before the Reserve
Price is met or before the auction closes, the seller agrees
to pay Auctioneers a removal fee equivalent to the greater
of (i) 2% of the Reserve Price (as set by the seller) or (ii)
$50 ("Removal Penalty Prior to Signature Auction Close").
If, for any reason, prior to the auction close, Auctioneers
removes Equipment from an Signature Auction due to seller's
violation of the On-Line Consignment Agreement, the seller
agrees to pay Auctioneers the Removal Penalty prior to the
closing of the Signature Auction.
Default
Penalty Signature Auction - Reserve met
If, for any reason, the seller withdraws a piece of Equipment
(or causes Auctioneers to withdraw the Equipment in violation
of the On-Line Consignment Agreement listed in a Signature
Auction after the Reserve Price has been met, the seller agrees
to pay Auctioneers a Default Penalty ("Seller Default
Penalty") equivalent to the Commission Fee of the winning
auction closing price as if the Equipment were sold, as well
as the Listing Fee.
Removal
Penalty Prior to Showcase Auction Close
If, for any reason, the seller withdraws a piece of Equipment
listed in a Showcase Auction after the time of Equipment Listing
but before the auction closes, the seller agrees to pay Auctioneers
a removal fee equivalent to the Listing Fee plus the greater
of (i) the commission fee for the opening bid (as set by Auctioneers)
or (ii) the commission fee for the highest bid submitted on
the Equipment to the Site ("Removal Penalty Prior to
Showcase Auction Close"). If, for any reason prior to
the close of the Showcase Auction, Auctioneers removes Equipment
from a Showcase Auction due to the seller's violation of the
On-Line Consignment Agreement, the seller agrees to pay Auctioneers
the Removal Penalty Prior to Showcase Auction Close.
Removal
Penalty Prior to Immediate Purchase Listing Close –
Reserve Met
If, for any reason, the seller withdraws a piece of Equipment
(or causes Auctioneers to withdraw the Equipment in violation
of the On-Line Consignment Agreement listed in an Immediate
Purchase Listing, after the Reserve Price has been met, the
seller agrees to pay Auctioneers a Default Penalty ("Seller
Default Penalty") equivalent to the Commission Fee of
the winning bid closing price as if the Equipment were sold,
as well as the Listing Fee.
Removal
Penalty Prior to Immediate Purchase Listing Close –
Reserve Not Met
If, for any reason, the seller withdraws a piece of Equipment
listed in an Immediate Purchase Listing after the Equipment
Listing but before the Reserve Price has been met or before
the auction closes, the seller agrees to pay Auctioneers a
removal fee equivalent to the greater of: (i) 2% of the Reserve
Price (as set by the seller) or (ii) $50 ("Removal Penalty
Prior to the Immediate Purchase Listing Close"). If,
for any reason, prior to the Listing close, Auctioneers removes
Equipment from an Immediate Purchase Listing (due to seller's
violation of the On-Line Consignment Agreement, the seller
agrees to pay Auctioneer the Removal Penalty Prior to the
Immediate Purchase Listing Close.
VI.
Hodgins Guaranteed Inspection Report
Hodgins' Guaranteed Inspection Reports are prepared by knowledgeable
inspectors and are as comprehensive as possible. Each Guaranteed
Inspection Report includes an inspection summary, detailed
component evaluation and numerous pictures. It should be pointed
out that carefully reviewing all the available equipment pictures
offers a broader description of used equipment condition than
can be obtained from reading a short written comment.
Hodgins
Guaranteed Inspection Reports are prepared on the understanding
that our Buyers are knowledgeable Buyers who both read our
condition evaluation and also review each picture carefully
to make the best bidding and buying decision possible. As
equipment is used and ages, it becomes difficult to make comments
on each scratch, dent or maintenance repair. Therefore, all
imperfections that are visible in the equipment pictures stand
as additions to the written narrative description. Hodgins
Guaranteed Inspection Reports do not cover disputes concerning
conditions visible in any of the Guaranteed Inspection Report
equipment pictures (including the full-size image visible
through zooming) and any other pictures of the Equipment that
may be posted on the Site, even if these conditions are not
specifically mentioned in the written narrative comments.
Don't be a disappointed Buyer, review all the equipment pictures!
If
a Buyer discovers and reasonably concludes Equipment purchased
by the Buyer is not substantially in the condition as represented
in the Guaranteed Inspection Report, and Deemed Receipt of
the Equipment, as detailed in Section V has not occurred,
Hodgins Guaranteed Inspection Reports permits the buyer to
submit a written claim to Auctioneers. All items constituting
the basis for the dispute must be identified, in writing,
in this claim. In addition to the validity conditions stated
above, all valid claims are also subject to the following
conditions:
1.
Determination of a changed condition will be made only as
the result of a re-inspection by Auctioneers, and a comparison
of the re-inspection results with the initial Auctioneer’s
inspection.
2.
Only conditions found by the buyer to be substantially different
than reported in the Hodgins Guaranteed Inspection Reports
may be disputed. Leaks of any kind which are found by the
buyer, but which are not reported on the inspection report
may not be disputed. Conditions which are beyond the scope
of a general condition inspection and are not disputable include,
among other things: those which can be identified only through
the operation of a machine through the full range of speeds
required to evaluate all forward and reverse gears, replacement
or addition of attachments to the machine, disassembly, or
the use of diagnostic or test equipment in order to evaluate
characteristics such as engine compression.
3.
If the buyer submits a dispute claim, the buyer must not use
the Equipment from the time of claim submission until the
time that the dispute is resolved. The buyer (or seller, where
applicable) must have the equipment available for immediate
re-inspection upon Auctioneer’s request and not make
any material changes to condition of equipment, including
disassembling or making any repairs, until the dispute is
resolved.
4.
Auctioneers shall not be responsible for any dispute with
the Equipment's inspection report unless the buyer has made
the purchase of the Equipment and has paid through the secure
payment account designated by Hodgins.
5.
The pick-up location for the purchased Equipment must be in
Canada or the United States.
6.
Auctioneers make every effort to accurately describe Equipment
using common industry terms. However, equipment, trucks and
equipment options and attachments can be known by different
terms in different parts of the country. Buyers must refer
to the pictures contained in the inspection report to clarify
their understanding of specific equipment characteristics.
Auctioneers cannot be responsible for misinterpretation or
oversight by the Buyer.
7.
Auctioneers shall not be responsible for dispute claims filed
if the buyer operates, leases, rents, or in any way causes
or allows the Equipment to be used or operated prior to the
expiration of the time periods identified in section V. The
only exception to this prohibition is operation necessary
to move the Equipment around the lot, to load/unload the Equipment,
or to verify the reported inspection condition after receipt
of the Equipment. In any event, Auctioneers shall not be liable
for any dispute relating to a difference in the Equipment
hour meter of more than ten (10) hours or fifty (50) odometer
kilometers from the Inspection Report.
8.
Auctioneers shall not be responsible for dispute claims filed
if the Equipment is damaged by the buyer or the transportation
company.
9.
Auctioneers shall not be responsible for equipment operating
manuals or keys. The absence of, either or both of these items,
or costs related thereto, are not the basis for a valid dispute.
10.
Auctioneers shall not be responsible for dispute claims filed
due to changes in Equipment condition as a result of exposure
to the elements (wind, rain, snow, sleet, etc.) such as leaky
seals, belts/pulleys, hoses, corrosion, paint fade, water
contamination, or fuel contamination. Furthermore, Auctioneers
shall not be liable for EMS/LCD monitor failure, dead batteries
or lights.
11.
The estimated total cost to fix items subject to a valid dispute
must exceed $500. This $500 deductible will be applied to
any settlement of a claim.
12.
Auctioneers strongly suggests to each buyer that lubrication,
cooling, hydraulic and air conditioning systems be serviced
in accordance with the manufacturer's specifications prior
to the machine being put onto a job site. Disputes based on
system failures due to a lack of lubrication or other appropriate
servicing before the buyer puts the machine to work will not
be covered by Hodgins Guaranteed Inspection Reports. Auction
personnel will evaluate lubrication and maintenance records
of post-sale servicing and oil sample results from failed
components as part of the dispute resolution process.
In
the event of a valid claim, Auctioneers may either refund
the full purchase price to the buyer (inclusive of the Transaction
Fee and any applicable taxes) and reimburse the buyer for
any expenses incurred for the initial transport of the Equipment
from the seller to the buyer's location, or Auctioneers may
settle such claim in another mutually beneficial manner to
all three parties, that being the buyer, seller and the Auctioneer
(subject to a $500 deductible).
Adjudication
of Equipment Dispute
Auctioneers will be the sole authority responsible for the
review and adjudication of any dispute between buyer and seller.
All determinations made by Hodgins On-Line Auctions shall
be final.
VII.
Disclaimer; Limitation of Liability; Indemnity
Disclaimer
THE EQUIPMENT, SITE AND SERVICE, INCLUDING ALL CONTENT, FUNCTIONS,
MATERIALS AND INFORMATION MADE AVAILABLE ON OR ACCESSED THROUGH
THE SITE OR THE SERVICE (INCLUDING WITHOUT LIMITATION THE
INSPECTION REPORT), ARE PROVIDED ON AN "AS IS",
"AS AVAILABLE" BASIS WITHOUT REPRESENTATIONS OR
WARRANTIES OF ANY KIND WHATSOEVER, EXPRESS OR IMPLIED, INCLUDING
WITHOUT LIMITATION, NON-INFRINGEMENT, MERCHANTABILITY OR FITNESS
FOR A PARTICULAR PURPOSE. HODGINS DOES NOT WARRANT THAT THE
EQUIPMENT, SERVICE OR THE FUNCTIONS, SHOWCASES OR CONTENT
INCLUDING THE INSPECTION REPORT CONTAINED THEREIN OR IN THE
SITE WILL BE FUNCTIONAL, TIMELY, SECURE, UNINTERRUPTED OR
ERROR FREE, OR THAT DEFECTS WILL BE CORRECTED. HODGINS MAKES
NO WARRANTY THAT THE EQUIPMENT, SITE OR SERVICE WILL MEET
USERS' REQUIREMENTS OR EXPECTATIONS, AND EXPRESSLY DISCLAIMS
ANY WARRANTIES OR GUARANTEES THAT BY LISTING EQUIPMENT ON
THE SERVICE OR THE SITE, THE LISTED EQUIPMENT WILL BE SOLD.
IF YOU ARE DISSATISFIED WITH THE SITE OR ANY SERVICES ON THE
SITE, YOUR SOLE REMEDY IS TO DISCONTINUE USING THE SITE AND
THE SERVICE. HODGINS MAKES NO REPRESENTATION OR WARRANTY REGARDING
ANY EQUIPMENT OR SERVICES PURCHASED OR OBTAINED THROUGH THE
SERVICE OR ANY TRANSACTIONS ENTERED INTO THROUGH THE SERVICE.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED
BY YOU FROM HODGINS OR THROUGH THE SITE OR THE SERVICE SHALL
CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN. SOME JURISDICTIONS
DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SO SOME
OF THE ABOVE EXCLUSIONS MAY NOT APPLY TO CERTAIN USERS. HODGINS
HEREBY EXPRESSLY DISCLAIMS ANY ENDORSEMENT OR WARRANTY OF
ANY EQUIPMENT SOLD ON OR THROUGH THE SERVICE, AND ANY RESPONSIBILITY
FOR ANY MISREPRESENTATIONS OR BREACHES COMMITTED BY ANOTHER
USER.
Limitation
of Liability
IN NO EVENT SHALL AUCTIONEERS BE LIABLE FOR ANY DAMAGES OF
ANY KIND ARISING FROM (A) ANY INJURY TO ANY PERSON OR PROPERTY
CAUSED BY THE EQUIPMENT OR (B) DEFECTS IN SUCH EQUIPMENT;
ON ANY THEORY OF LIABILITY INCLUDING, WITHOUT LIMITATION,
PRODUCT LIABILITY. IN ADDITION, IN NO EVENT WILL AUCTIONEERS
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 SERVICE, THE SITE OR ITS CONTENT
INCLUDING WITHOUT LIMITATION THE INSPECTION REPORT AND MATERIALS
AND FUNCTIONS RELATED THERETO, INCLUDING WITHOUT LIMITATION,
LOSS OF REVENUE OR ANTICIPATED PROFITS OR LOST BUSINESS OR
LOST SALES, EVEN IF HODGINS OR AN AUTHORIZED REPRESENTATIVE
THEREOF HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION
OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO SOME
OF THE ABOVE LIMITATIONS MAY NOT APPLY TO CERTAIN USERS. IN
NO EVENT SHALL THE TOTAL LIABILITY OF AUCTIONEERS 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 SERVICE EXCEED, IN THE AGGREGATE,
$250.00.
Indemnity
You agree to defend, indemnify and hold harmless Hodgins,
its officers, directors, agents, subsidiaries and employees
from claims, demands and damages, actual and consequential,
of every kind and nature, direct or indirect, known or unknown,
suspected or unsuspected, disclosed or undisclosed, arising
out of or in any way connected with any breach or violation
by you of this Agreement, any use by you of the Site or any
disputes or damages arising out of your use of or contracts
formed with you through this Site.
VIII.
General Provisions
Prices
All prices and dollar amounts listed in this Agreement or
on the Site are expressed in Canadian dollars.
No
Price Manipulation
You may not manipulate the price of listed Equipment by any
means, including but not limited to using secondary accounts,
colluding with third parties, or bidding on your own Equipment.
You may not use an alias to place bids on any Equipment you
are selling, either directly or indirectly for any reason.
Arbitration
YOU AGREE TO MEDIATE AND ARBITRATE ANY DISPUTE OR CLAIM BETWEEN
OR AMONG YOU AND ANY OTHER USER OF THE SITE, OR HODGINS, ARISING
OUT OF OR RELATING TO THIS AGREEMENT, ANY SALE OF EQUIPMENT,
ANY INSPECTION REPORT OR ANY OTHER TRANSACTION CONTEMPLATED
BY THIS AGREEMENT INCLUDING, BUT NOT LIMITED TO, ALL CONTRACT
AND TORT CLAIMS, STATUTORY CLAIMS, CLAIMS FOR RELIEF WHETHER
EQUITABLE OR LEGAL, ISSUES OF ARBITRABILITY, AND DISPUTES
ABOUT THE SCOPE OF THIS CLAUSE.
DISPUTE
RESOLUTION SHALL BE CONDUCTED PURSUANT TO THE FOLLOWING PROCEDURES.
BEFORE INITIATING ANY ARBITRATION, THE PARTIES IN DISPUTE
SHALL ATTEMPT TO SETTLE MATTERS BETWEEN THEMSELVES AND, FAILING
A SUCCESSFUL RESOLUTION BY SUCH METHOD, THE PARTIES IN DISPUTE
SHALL ENGAGE IN MEDIATION TO FACILITATE THE RESOLUTION OF
THE DISPUTE.
UNLESS
THE PARTIES IN DISPUTE OTHERWISE AGREE, MEDIATION SHALL BE
CONDUCTED IN SASKATOON, SASKATCHEWAN, CANADA, BY AN INDEPENDENT
THIRD PARTY MEDIATOR AS SELECTED BY HODGINS IN ITS SOLE DISCRETION.
SHOULD MEDIATION PROVE UNSUCCESSFUL TO RESOLVE THE DISPUTE,
AND WITHIN ONE YEAR OF THE DISPUTE ARISING, A PARTY SHALL
MAKE A WRITTEN DEMAND FOR ARBITRATION. THE PARTIES SHALL RESOLVE
THE DISPUTE THROUGH FINAL AND BINDING ARBITRATION TO BE CONDUCTED
PURSUANT TO THE INTERNATIONAL COMMERCIAL ARBITRATION ACT AND
REGULATIONS IN FORCE IN THE PROVINCE OF SASKATCHEWAN, CANADA.
ARBITRATION SHALL BE CONDUCTED IN SASKATOON, SASKATCHEWAN,
CANADA. THE PROCEDURAL AND SUBSTANTIVE LAW TO BE APPLIED TO
AND IN THE ARBITRATION SHALL BE THE LAW OF THE PROVINCE OF
SASKATCHEWAN, EXCEPT FOR ITS CONFLICT OF LAW PRINCIPLES. THE
PARTIES SHALL AGREE ON A SINGLE ARBITRATOR OR, FAILING SUCH
AGREEMENT, ANY PARTY TO THE DISPUTE MAY APPLY TO THE SASKATCHEWAN
COURT OF QUEEN'S BENCH TO HAVE AN ARBITRATOR APPOINTED.
THE
ARBITRATOR SHALL HAVE NO POWER TO AWARD CONSEQUENTIAL, PUNITIVE
OR TREBLE DAMAGES, OR ANY OTHER MANNER OF ENHANCED DAMAGES.
THE PREVAILING PARTY IN ANY ARBITRATION SHALL HAVE THE RIGHT
TO AN AWARD OF ATTORNEYS' FEES AND COSTS. THE AWARD OF THE
ARBITRATOR SHALL BE FINAL AND BINDING AND ANY PARTY TO THE
DISPUTE MAY SEEK TO CONFIRM THE AWARD OF THE ARBITRATOR IN
ANY PROVINCE, STATE OR FEDERAL COURT OF COMPETENT JURISDICTION
AND TO ENFORCE THE AWARD AS A JUDGMENT. EXCEPT TO CONFIRM
OR ENFORCE AN ARBITRATOR'S AWARD, WHICH FILING IS PERMISSIBLE,
ANY PARTY WHO INITIATES LITIGATION, OR WHO INITIATES ARBITRATION
WITHOUT FIRST MEDIATING A DISPUTE, SHALL FORFEIT ANY AND ALL
RIGHT TO ATTORNEYS' FEES AND COSTS AS A PREVAILING PARTY,
AND SHALL REIMBURSE ALL OTHER PARTIES TO THE ARBITRATION OR
LITIGATION, AS THE CASE MAY BE, FOR THEIR COSTS OF LITIGATION
INCLUDING ATTORNEYS' FEES AND COSTS.
Third
Party Links
Where the Site provides links to third party Internet sites,
no representations or endorsements are made in connection
with such sites. Hodgins is not liable for any damages or
injury arising from use of such sites. All such links are
provided for your convenience and you choose to use them at
your own risk.
Modification
and Availability
Auctioneers may, at any time, delete, modify or supplement
the content of this Site without prior notice. Auctioneers
reserve the right, for any reason, at its sole discretion,
to terminate, change, suspend or discontinue any aspect of
the Site or the Service, including, but not limited to, any
content, auction service or hours of availability. Auctioneers
may also impose limits on certain features of the Service
or restrict your access to part or all of the Site or the
Service without notice or penalty.
Monitoring
You agree that Auctioneers shall have the right, but not the
obligation, to monitor at any time, for any reason at its
sole discretion, all material and content on the Site and
the Service. Auctioneers reserve the right at all times to
edit, disclose or refuse to post any material or information
or request removal of or remove any material or information
from the Site.
Access
and Interference
You agree that you will not use any automatic device or manual
process to monitor or copy Hodgins On-Line Auctions web pages
or the content contained herein. You agree that you will not
use any device, software or routine to interfere or attempt
to interfere with the proper working of the Site. You agree
that you will not take any action that imposes an unreasonable
or disproportionately large load on Hodgins On-Line Auction’s
infrastructure.
Service
Integrity
Auctioneers make reasonable commercial efforts to make their
Service and Site available at all times, however, Auctioneers
are not responsible for any service interruptions, including,
but not limited to, interruptions that may affect the receipt,
processing and acceptance of bids or other aspects of an auction
or sale.
Termination
This Agreement constitutes a legally binding agreement between
you and Hodgins On-Line Auctions until terminated by you or
Auctioneer, which Auctioneers may do at any time, without
notice, at Auctioneer’s sole discretion. If you become
dissatisfied with the Service or the Site, in any way, your
only recourse is to immediately discontinue use of the Service
and pay any required Removal Fee.
Jurisdiction
This Agreement and the use of the Service shall be interpreted
and shall be governed by the laws of the Province of Saskatchewan
and the laws of Canada applicable therein, without regard
to conflicts of laws rules.
Copyright
and Trademarks
The trademarks, tradenames, designs and all material contained
on this Site, including all portions of the web site, content,
site design, text, graphics, and all intellectual property
rights thereto are the sole and exclusive property of Hodgins
or its licensors. The use of any such property for any other
reason, on any other web site, or the modification, distribution
or republication of this material without the prior written
permission from Hodgins On-Line Auctions is strictly prohibited.
Severability
If any provision of this Agreement is held by a court of competent
jurisdiction to be invalid or unenforceable, then such provision
shall be enforced to the maximum extent permissible so as
to affect the intent of this Agreement, and the remainder
of this Agreement shall continue in full force and effect.
Waiver
The failure by either you or Auctioneers to exercise or enforce
any rights or provisions of this Agreement shall not constitute
a waiver of such right or provision.
Limitation
Period
You agree that any cause of action arising out of or related
to the Service or this Agreement must commence within twenty-four
(24) months after the cause of action arose; otherwise, such
cause of action is permanently barred.
Survival
All provisions in this Agreement regarding representations
and warranties, indemnification, disclaimers and limitations
on liability shall survive any termination of this Agreement.
Entire
Agreement
This
Agreement comprises the entire agreement between you and Auctioneers
and supersedes all prior agreements between the parties, regarding
the subject matter contained herein. No other terms, whether
express or implied, shall apply unless specifically incorporated
by reference herein.
Need
assistance?
You can always speak with a Hodgins On-Line Auctions representative
who will help you with any question you may have. They can
be reached at 1-800-667-2075, Monday through Friday from 8
a.m. to 5 p.m. Saskatchewan Time.
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