TERMS AND CONDITIONS
KD CAPITAL AUCTIONS, LLC – ONLINE/ONSITE AUCTION TERMS AND CONDITIONS
Welcome to KD Capital Auctions, LLC and its affiliates, collectively known as “KDAUCTIONS” or “Auctioneer”. We invite you to participate in our online/onsite auctions, subject to modifications announced by the Auctioneer during the auction. Participation implies acceptance of these terms and conditions. If you disagree with these terms or do not understand them, please refrain from participating. Announcements made on auction day supersede prior information. All bids form a binding contract, obligating bidders to comply with sale terms and conditions.
Non-USA Deposit: Participants outside the continental USA must wire a $3,000 refundable deposit to bid online. This deposit will be returned within 24 hours post-auction if you do not win, or applied to your balance if you do. Deposits must be received 24 hours before the sale.
Credit Card Authorization: Bidders must provide a valid MasterCard, Visa, or American Express along with the required authorization form. A $200 deposit authorization will be processed (not charged) on the card. By registering, bidders authorize KDAUCTIONS to charge the card if the invoice is not paid within 48 hours or as needed to enforce this agreement.
Payment Terms: We accept cash, certified or company checks (accompanied by a bank guarantee), and wire transfers for payment. Please note that all payments must be made in US Dollars. The total amount due must be paid within 24 hours following the end of the auction. Should payments not be received within this timeframe, the Auctioneer retains the right to re-offer the items for auction. It’s important to review all invoices on the day of the sale, as we won’t be making any changes to them afterwards. Items not collected after the auction may be treated as abandoned. Additionally, KDAUCTIONS has the authority to adjust or revise these payment conditions as necessary.
Sale and Bidding Process: All items or lots will be sold to the highest bidder in compliance with the bidding procedure. KDAUCTIONS holds the authority to withdraw any item/lot from sale, include unlisted items/lots in the auction, sell items individually or in groups, or in bulk in an order it deems fit. In the case of reserved lots, KDAUCTIONS has the discretion to sell these lots subject to the reserve, and may place bids on its own behalf, for the Seller or Secured Party, or on behalf of others, either directly or through proxy, and this may occur without any obligation to disclose or announce such reserve or bid. KDAUCTIONS also retains the right to sell items on behalf of third parties or on its own account. In the event of a dispute among bidders or regarding a bid, the Auctioneer has the discretion to immediately re-auction the disputed lot. The Auctioneer’s decisions on all auction conduct matters are final and binding. The Auctioneer can modify, withdraw items/lots, or refuse bids at any moment before the sale, binding prior bidders to their bids.
Conclusion of Sale and Title Transfer: The sale is finalized upon the Auctioneer’s signal, such as the fall of the hammer. Once a bid is placed, it cannot be revoked. Ownership of the items/lots transfers only after full payment has been made to KDAUCTIONS. The risk of loss transfers to the buyer upon payment. Any buyer failing to complete a transaction will be liable for damages resulting from such failure. Where applicable, KDAUCTIONS will provide transfer documents, including motor vehicle ownership documents, within 10 days or as soon as possible post-auction.
Representation and Auction Rights: KDAUCTIONS operates without external agents; only its employees represent the company. The Auctioneer, acting as an agent, is not responsible for the acts of KDAUCTIONS’ principals. KDAUCTIONS reserves the right to postpone or cancel any auction at its discretion, with no obligation to reschedule or offer previously listed items/lots for sale again.
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Authority to Decline Bids and Registrations: KDAUCTIONS holds exclusive authority to refuse any bid or prohibit any individual or entity from participating in bidding for reasons it considers justifiable. Additionally, KDAUCTIONS retains the right, at its sole discretion and without limiting other remedies, to restrict or revoke access to its website or any registered account. KDAUCTIONS may also decline to accept new user registrations. All terms of this agreement remain in effect and continue unabated, even in the event of such termination or access restriction.
Buyer’s Premium Terms: Upon purchasing any item or lot, a Buyer’s Premium will be charged. This fee is calculated as a percentage of the sale price, currently set at 18%, unless explicitly stated otherwise. The Buyer’s Premium is an additional charge over and above the sale price and any relevant taxes. It is due and payable alongside the sale amount according to the payment terms specified herein.
Sales Tax Policy: State and local taxes apply to all sales. However, if a valid exemption certificate, complete with a tax-exempt number, is provided at the time of payment, these taxes may be waived.
Post-Auction Removal Obligations: After the auction, buyers are solely responsible for removing their purchases from the location specified by KDAUCTIONS within the announced time frame, unless a written extension is granted by KDAUCTIONS. Removal must be done during standard hours: Monday to Friday, 8:00 am to 4:00 pm local time, unless specified differently at the facility or on KDAUCTIONS’ website. Buyers are accountable for all removal costs and liable for any damage caused during removal, including environmental harm. Buyers must also repair any real or personal property and fixtures damaged during removal to a condition akin to before removal. KDAUCTIONS will assess these repairs and determine their acceptability.
KDAUCTIONS is not responsible for disconnecting utilities for the items/lots, such as electricity, gas, waste, and water lines. Disconnection should occur at the first junction, ensuring everything is safely capped. Electrical systems will be locked and tagged out at the box, maintaining the integrity of conduits, wires, and piping. Buyers, their riggers, representatives, and contractors share joint and several liabilities for any damage or loss during item removal. Buyers must appropriately remove and store all fluids, oils, and hazardous chemicals from machinery, complying with environmental laws, safety requirements, and auctioneer’s removal requirements, including mover bonding.
Buyers must provide and maintain insurance certificates for a minimum of US$ 2,000,000, covering the seller, landlord, and KDAUCTIONS against any claims arising from their actions. This requirement also applies if third-party riggers or machinery movers are used, ensuring adequate insurance coverage for all involved parties.
Storage and Disposal Fees Policy: KDAUCTIONS retains the right to impose storage and disposal fees for any items or lots not removed by the specified deadline. This includes expenses for relocating items to other appropriate locations as needed. KDAUCTIONS is granted explicit permission by the Buyer to recover these costs by charging the Buyer’s credit card in accordance with this agreement’s terms.
If items or lots remain uncollected 30 days post-auction, they will be deemed abandoned by the Buyer. In such cases, KDAUCTIONS has the authority to resell these items at its discretion and keep any proceeds from the sale.
All items must be fully paid for before removal, and they must be removed within the time frame set by the Auctioneer or as indicated on the invoice. Removal of any items or lots, regardless of size or the distance the Buyer needs to travel, is not permitted until the auction has officially concluded.
Packaging and Shipping Policy: KDAUCTIONS does not provide packing, shipping, storing, crating, or rigging services for any items or lots. However, KDAUCTIONS may collect fees for third-party service providers. Fees related to Rigging, Machinery Moving, or services by third-party riggers, machinery movers, or contractors invoiced or collected by KDAUCTIONS are solely for the convenience of Buyers. These collected fees are entirely passed on to the service providers.
Items or lots that are not easily hand-carried, or require utility disconnection or tools for removal, must be removed by a qualified, insured rigger or machinery technician approved by KDAUCTIONS.
For removal of items or lots by an Agent on behalf of a Buyer, the Agent must provide KDAUCTIONS with (1) Proof of Full Payment (Paid in Full Invoice), and (2) an “Agent Release Authorization” form, which enables KDAUCTIONS to release items or lots to a third-party contractor for shipping, crating, or packing.
Recommendations or approvals of third-party vendors, such as Riggers, Machinery Technicians, Trucking Companies, or any other vendors made by KDAUCTIONS or its affiliates, are provided as a convenience to the Buyer. Such recommendations or approvals do not imply any liability for KDAUCTIONS or its affiliates for the actions or omissions of these third-party vendors. Buyers acknowledge that selecting any third-party vendor is at their discretion and agree not to hold KDAUCTIONS or its affiliates liable in any way.
If the Auctioneer assigns an exclusive Rigger, the Buyer must adhere to the posted fees without exception.
Disclaimer of Warranties: – PLEASE READ CAREFULLY: All sales conducted by KDAUCTIONS are final and made on an “AS-IS”, “WHERE-IS”, “IN PLACE” basis. This means that all items/lots are sold without any form of warranty or representation, whether expressed or implied, statutory or otherwise. This includes, but is not limited to, any warranties regarding title, description, merchantability, fitness for a particular purpose, quality, condition, location, or any other aspect. By participating in this sale, the Buyer acknowledges that KDAUCTIONS does not make any representations regarding the attributes, components, accessories, capabilities, or any other features of the items/lots offered.
It is the responsibility of the Buyer to conduct their own thorough investigation and assessment of each item/lot prior to bidding. By bidding, the Buyer represents and warrants that they have independently verified that the item/lot meets their requirements and expectations. Any promotional materials such as advertisements, circulars, brochures, or other written documents are provided for reference purposes only, and KDAUCTIONS does not guarantee the accuracy or completeness of such information.
Buyers are strongly encouraged to inspect each item/lot they intend to bid on. KDAUCTIONS is not responsible for any errors, inaccuracies, or omissions in the commentary, cataloging, or any imperfections not explicitly noted. No sale will be invalidated, nor will any compensation be provided for any such issues. All goods are available for public exhibition and are bought and accepted by the Buyer “AS IS”, “WHERE IS”, “IN PLACE”, and “WITH ALL FAULTS”.
KDAUCTIONS reserves the right to amend, correct, or rectify any errors or typographical mistakes in any of its announcements or documents. Such corrections or amendments do not confer any rights to derive claims or adjustments based on the earlier uncorrected statements. Additionally, KDAUCTIONS is not liable for any direct, indirect, incidental, or consequential damages arising from the sale or the use of the items/lots. This disclaimer constitutes an essential part of the terms and conditions of the sale.
Website and Recording Disclaimer: KDAUCTIONS cannot guarantee that its website will be continuously available, accessible, uninterrupted, secure, or error-free. The company is not liable for any issues arising from a breach or misrepresentation by either the Buyer or Seller. Furthermore, KDAUCTIONS reserves the right to create image, audio, and video recordings of the auction proceedings. These recordings may be used by KDAUCTIONS, and if considered appropriate, may be made public. By participating in the auction, participants implicitly consent to such recording and potential public dissemination.
Limitation of Liability and Risk Assumption: KDAUCTIONS shall not be held responsible or liable for any loss, claim, damage, or expense of any kind, including but not limited to special, incidental, consequential, direct or indirect damages, general, special or punitive damages, lost revenues, lost profits, loss of use, data, or other economic advantages. This applies to losses directly or indirectly related to the purchase, attempted purchase, sale, or attempted sale of any item or lot offered by KDAUCTIONS, either on its website or through other means, to the maximum extent permitted by applicable law.
Should KDAUCTIONS be found liable for any loss or damage related to this agreement or the use of its website, its liability to the buyer, seller, or any third party shall not exceed the fees paid to KDAUCTIONS for the specific transaction in question. If you disagree with this limitation of liability, it is advised not to bid on or offer for sale any item or lot.
Persons attending any auction preview, or removing purchased items/lots, including their employees and agents, do so at their own risk. They assume all risks of damage or loss to person or property and expressly release KDAUCTIONS from any liability for such damages. All inspections or removals of items/lots are undertaken at the sole risk of the buyer.
In the event that KDAUCTIONS is unable to deliver an item or lot sold due to fire, theft, or any other reason, KDAUCTIONS will refund the buyer the full amount paid for the item or lot. Beyond this refund, KDAUCTIONS bears no further liability to the buyer for any resulting loss, including but not limited to loss of profits or other damages.
Indemnification and Liability Waiver: The Buyer and Seller hereby agree to indemnify, defend, and hold harmless KDAUCTIONS, along with its employees, agents, and officers, from any and all claims, losses, damages, liabilities, judgments, fees, and expenses, including but not limited to attorney’s fees and costs. This indemnification covers claims brought by third parties against KDAUCTIONS arising from any breach, violation, or non-compliance by the Buyer or Seller, or their agents and employees. This includes breaches of representations, warranties, and covenants stated herein, as well as any incidents of personal injury, death, property damage, or other harm caused during the inspection, removal, or use of purchased items/lots.
Purchased items/lots may lack certain approved activating mechanisms, operational safety devices, or safety guards as mandated by OSHA or other regulatory bodies. It is the Buyer’s responsibility to ensure that all purchased items/lots are equipped and safeguarded to comply with OSHA and other relevant safety requirements before use.
In the event of any dispute arising from actions or inactions related to the purchase or sale of any item/lot, the Buyer and Seller agree to release KDAUCTIONS, its affiliates, subsidiaries, officers, directors, managers, members, agents, employees, and third-party suppliers or vendors from all claims, demands, and damages of every kind, whether actual or consequential. This release covers both known and unknown claims and includes a waiver of any rights under Civil Codes or other legal provisions that might contradict this release.
Furthermore, the Buyer and Seller acknowledge that KDAUCTIONS is not responsible for ensuring compliance with OSHA or other safety regulations and standards for items/lots sold. It is the sole responsibility of the Buyer to ensure that any necessary modifications or additions are made to comply with such safety regulations before the items/lots are put into operation. The Buyer and Seller also agree to be fully responsible for any legal, regulatory, or safety-related consequences resulting from the failure to comply with such standards and regulations.
Copyright and Trademarks of KDAUCTIONS: All materials featured on the KDAUCTIONS website, encompassing trademarks, copyrights, designs, layouts, documents, products, logos, text, auctions, images, graphics, and any other intellectual property, are the exclusive property of KDAUCTIONS or its third-party providers. The unauthorized dissemination, modification, replication, distribution, downloading, reproduction, republication, posting, or transmission of any such material, in any form and by any means – including but not limited to electronic, mechanical, photocopying, and recording methods – is strictly prohibited under the fullest extent of the law.
Furthermore, “mirroring” or duplicating any content from the KDAUCTIONS website onto any other server or website is not allowed without the express prior written consent of KDAUCTIONS. This prohibition extends to all forms of copying and replication of the website’s content, ensuring the protection of KDAUCTIONS’ intellectual property rights in all jurisdictions. Violation of these terms may result in legal action to enforce these rights and protect the proprietary content of KDAUCTIONS.
Legal Jurisdiction and Communication
Applicable Law and Venue: The KDAUCTIONS website and all associated auctions are governed by the laws of Arizona. Any disputes arising from these activities will be resolved in the courts of Maricopa County, Arizona. By agreeing to these terms and conditions, both Buyer and Seller consent to the jurisdiction of these courts for all related legal matters.
Notices: Communication to KDAUCTIONS should be sent via Certified Mail with return receipt requested to the following address, or to any other address as may be updated:
KD Capital Auctions, LLC
7918 East McClain Drive, Ste 101
Scottsdale, AZ 85260
Communications to Buyers or Sellers will be emailed to the provided address and are considered received the next business day after sending. Buyers and Sellers agree to this email communication method and to indemnify KDAUCTIONS against any issues arising from incorrect or false email addresses. To revoke this authorization, written notice must be sent to KDAUCTIONS.
Entire Agreement: These terms and conditions represent the complete agreement between the parties, superseding all previous understandings, agreements, and representations. Any prior agreements or representations are nullified, except as stated herein.
Severability: If any term or provision is found invalid or unenforceable, it will be excluded, and the remaining terms will continue to be enforceable to the fullest extent of the law.
Amendment: KDAUCTIONS reserves the right to amend these terms at its discretion for future auctions. Continued use of the website after amendments signifies acceptance of these changes. Amendments are otherwise enforceable only when agreed in writing by both Buyer/Seller and KDAUCTIONS.
Assignment: Purchasers cannot assign, transfer, or dispose of rights in purchased items/lots until full payment is made. Reselling from the premises is not permitted.
Successors: The terms, agreements, covenants, representations, warranties, and conditions of this Agreement bind and benefit both parties and their respective successors and permitted assigns.
Waiver: Failure by KDAUCTIONS to enforce any rights or provisions of this Agreement, or any delays, will not be construed as a waiver.
Registration & Bidding Online:
- Pre-approval by KD Capital Auctions, LLC is necessary for bidding.
- Buyers must provide verifiable personal and banking details at registration.
- Telephone numbers will be verified, and agreement to Terms & Conditions confirmed.
- Items governed by U.S. laws and regulations may have restrictions on resale, transfer, or disposal. Compliance with such regulations is mandatory.
By accepting, Buyers and Sellers acknowledge and agree to all terms and conditions.
Do not accept if any term is not understood or agreed upon.