BIDDER TERMS AND CONDITIONS
These terms and conditions (which we refer to below as this "Agreement") are a binding contract between each registered bidder or participant ("Bidder") and Silicon Valley Disposition, Inc. ("SVD"). This Agreement applies to (1) all bids and purchases by Bidder in sales conducted by SVD ("Sales"), whether involving sales of goods owned by SVD or auctions or other sales conducted by SVD for a third party (a "Seller"), (2) all services provided by SVD in connection with Sales (the "Services"), and (3) Bidder's usage of SVD's website, mobile application and all of content and functionality thereon (collectively, the "Site"). Bidder and SVD are sometimes referred to below as the "Parties." At times, this Agreement may be supplemented or modified by Sale-specific terms and conditions posted on the Sale-specific page to such Sale found on the Site; provided, however, that this Agreement shall govern and control to the extent of any inconsistency between this Agreement and those Sale-specific terms.
1. Bidder Registration.
a. Bidders must register prior to participating in any Sale. Bidders must be at least 18 years old, have legal capacity to enter into a contract and not be a person barred from accessing the Site or the Services under the laws of the United States or any other country. SVD may, in its sole discretion, deny registration to any Bidder and may refuse to permit a Bidder to participate in a Sale.
b. SVD may, in its sole discretion, charge a registration fee. Any such fee will be displayed during the registration process.
c. SVD may, in its sole discretion, require a Bidder to provide a credit card number to secure in advance payments for purchases in Sales and other amounts due hereunder. If SVD does require a credit card number, Bidder authorizes SVD to charge to that card all amounts due from Bidder in connection with a Sale, including liquidated damages under Section 15 below.
d. Bidders are advised to seek legal counsel regarding this Agreement prior to registering to participate in any Sale and to seek professional advice regarding any items it intends to purchase.
2. Conduct of Sales.
a. All bids are irrevocable, final and binding.
b. Bids do not include Buyer's Premium (as defined in Section 8 below) or Taxes (as defined in Section 9 below).
c. SVD reserves the right to reject any bid in its sole discretion.
d. SVD has the right in its sole discretion to control all aspects of the Sales, including the bidding process, and without limitation to:
i. Modify the method or conditions of Sales upon announcement prior to or during a Sale;
ii. Control bidding increments;
iii. Add items to, or remove items from, a Sale;
iv. Establish minimum or reserve prices, with or without notice;
v. Sell items on a piece-by-piece basis or as a complete lot;
vi. Accept a complete-lot bid and then conduct an item-by-item auction to be effective only if the total proceeds therefrom exceed the amount of the complete-lot bid;
vii. Bid for its own account or on behalf of a third party; and
viii. Accept or reject any bid, including the final high bid.
e. In the event of any dispute among Bidders, or in the event of doubt on the part of SVD as to the validity or priority of any bid, SVD will have the sole discretion to determine the high bid and the winning Bidder, cancel the Sale, or reoffer for sale the item in question.
f. If any dispute arises after a Sale, SVD's records shall determine conclusively all bidding issues, including but not limited to the high bid and the winning Bidder.
g. Bidder acknowledges and agrees that SVD is not an auctioneer in the traditional or legal sense; rather, SVD provides the Services and the Site solely to connect sellers and buyers to one another for the purpose of entering into transactions to buy and sell assets. To the extent that SVD voluntarily complies with statutory or regulatory requirements governing auctioneers, that does not constitute an admission that such statutes or regulations apply to it or that it is acting as an auctioneer in any capacity.
3. Absentee / Proxy Bids. By completing a proxy bidder form in form and substance satisfactory to SVD, Bidder may appoint SVD to be an agent and proxy for the sole purpose of bidding in a Sale. SVD will bid up to the specified maximum bid amount, using only the amount needed to win the item. SVD has sole discretion whether and when to allow or to accept proxy bids. Proxy bidders will be notified only if they have been declared the high bidder. Notification will take place in the form of an electronic invoice to the email address provided during registration.
4. No Collusion. Bidders agree they will not participate in any bidding practices with the intent of manipulating the bidding or engage in any activity that is illegal or may be considered an unfair business practice. Collusion between Bidders is forbidden. Bidders agree they will not place bids using false names or information.
5. Deposits. A winning Bidder may be required to pay a 25% deposit toward the purchase price immediately following the winning bid. The Bidder would be notified of this immediately upon the end of the auction. This deposit can be in the form of cash (up to $2000), a cashier's check, or by using the Zelle application. If a Bidder fails to make a timely deposit, Bidders expressly authorize SVD to use their credit card to satisfy the deposit amount.
6. Invoices and Payment Instructions. Winning Bidders can request a printed paper invoice from SVD's Accounting Manager at the Sale location. Online Bidders will be sent an electronic invoice to the email address provided during registration. Detailed payment instructions for each Sale are available in the printed lot catalog at the Sale location on the day of the sale. Online Bidders will be sent detailed payment instructions via email.
7. Payments for Goods. The balance of the purchase price is due no later than 5:00 p.m. Pacific time on the second business day following the Sale (the "Final Payment Date"). All payments must be paid in cash (up to $2000) cashier's or certified check, federal wire transfer of immediately available funds or by using the Zelle application, and all of the foregoing must be in form and substance acceptable to SVD. Unless agreed by SVD in advance, credit cards are not accepted for payment.
8. Buyer's Premium. SVD shall charge and collect from each winning bidder a buyer's premium in the amount of 18% of each winning bid (the "Buyer's Premium"), which is in addition to the purchase price as bid. The Buyer's Premium is due and payable no later than the Final Payment Date.
9. Taxes. Each winning bidder must also pay to SVD on or before the Final Payment Date all sales, export, use and other taxes due to any federal, state or local taxing authority ("Taxes") as a result of the purchase, including any taxes arising from the Buyer's Premium. Collection of Taxes will be in accordance with the laws of the jurisdiction in which the purchased asset is located. To receive the benefit of any sales tax exemption, Bidder must supply SVD with a valid sales tax exemption certificate acceptable in form and substance to SVD. If the item sold is located within California, the only document accepted for the removal of partial or full taxes to be collected is a bill of lading.
10. Title to Goods. Title shall not pass to Bidder until the total purchase price, Buyer's Premium and Taxes have been paid to SVD, and Bidder has successfully removed the goods in compliance with this Agreement.
11. Removal of Goods; Abandonment.
a. Goods may not be removed until completion of a Sale, which means that Bidder has paid to SVD the total purchase price, Buyer's Premium and Taxes.
b. Bidders must remove all items purchased on or before the final removal date and time announced by SVD (the "Removal Date"). All items not removed on or before the Removal Date, for whatever reason, shall be deemed abandoned by Bidder, and Bidder shall have no further rights with respect to such items. In that event, Buyer shall forfeit any deposit and SVD and/or Seller may remarket, resell or scrap the item without further notice. In addition, Bidder will be required to pay all expenses incurred by SVD or the Seller to store and transport such items.
c. Bidder shall be responsible for the safe and proper removal of any items purchased by Bidder at its sole cost and expense. SVD does not disconnect, pack, ship, store, crate or rig items for removal.
d. Bidders may either pick up items at the designated site or designate an approved third-party agent (a "Removal Agent") to remove purchase items for Bidder. Before items can be removed by a Removal Agent, the Removal Agent must provide SVD with (i) proof of payment in full acceptable to SVD; and (ii) an "Agent Release Authorization" form, in form and substance satisfactory to SVD, that allows SVD to release items to the Removal Agent for shipping, crating, rigging or packing purposes.
e. Items weighing more than 100 pounds must be removed by a qualified, insured rigger. Before removal of any such item, Bidder must provide SVD with a certificate of insurance from the rigger, which certificate must be in form and substance acceptable to SVD and must show that the rigger carries at least $2 million in comprehensive liability insurance written by an insurance carrier of national standing.
f. After Bidder has removed any item, neither SVD nor Seller shall have any obligation to make any return, adjustment or accommodation to Bidder because of any mistake in quantity or other defect, damage or problem with respect to such item. Bidder must make all requests for adjustments in writing to SVD before any item is removed.
g. Bidder shall restore and repair all real and personal property altered or damaged as a result of Bidder's, or its Removal Agent's, acts or omissions.
h. SVD shall have no responsibility to disconnect utilities, including but not limited to electric, gas, waste and water lines, to any sold asset.
i. Bidder is solely responsible for properly storing, removing and disposing of all fluids, oils and other hazardous materials from machinery or other goods purchased.
j. In connection with the removal process, Bidder must follow all written or oral instructions given by SVD or Seller.
12. Site of Sale. Bidders acknowledge that the site of each Sale and any removal site is a potentially dangerous place. Flammable, noxious, corrosive and pressurized substances may be present. Heavy equipment may be operated, and electrical circuits may be live. Every person enters the site at his or her own risk with notice of the condition of the premises and the activities that will be or have been conducted on the premises and agrees to comply with all safety guidelines and protocols imposed by the Seller and the owner of the site. No person shall have any claim against SVD, Seller or their respective officers, directors, owners, employees or agents for any injuries sustained, or for damages to or loss of property that may occur, at the site or otherwise during removal.
13. No Returns or Refunds. No returns or refunds are permitted unless authorized in writing by the Seller and SVD.
14. Bidder Default. Upon any breach of this Agreement by Bidder, it shall forfeit any deposit and lose all right, title, and interest that it might otherwise have acquired in and to any goods as to which it was the high bidder. Without limiting the foregoing, SVD and/or Seller may remarket, resell or scrap the item without further notice.
15. Liquidated Damages. The Parties agree that in the event Bidder fails to purchase an item for which it is declared the high bidder (a "Payment Breach"), it would be impractical and extremely difficult to estimate the damages that SVD and Seller would suffer. Therefore, the Parties agree that a reasonable estimate of such damages in such event (the "Liquidated Damages Amount") is the lesser of (a) 20% of Bidder's high bid for such item plus the Buyer's Premium that Bidder was responsible for paying on such item, and (b) in the event that the item is promptly resold, the excess of the invoice price over the resale price, plus any expenses incurred to remarket and resell the item, plus the Buyer's Premium that Bidder was responsible for paying on such item. The Parties agree that recovery of the Liquidated Damages Amount, plus recovery of any storage or transportation costs as provided elsewhere in this Agreement, is Seller's and SVD's sole remedy in the event a Payment Breach. Bidder authorizes SVD to charge its credit card for all such amounts.
16. No Representations and Warranties; Due Diligence and Inspection.
a. Bidders are solely responsible for conducting due diligence and investigation that they deem necessary or desirable prior to participating in a Sale and shall examine and inspect items prior to the day of the Sale.
b. All items are offered for sale in their "as is, where is and with all faults" condition. There are no conditions or contingencies in connection with any Sale.
c. Neither Seller nor SVD nor any of their respective officers, directors, owners, employees or agents makes any representation or warranty, express or implied, as to the nature, quality or value of any asset. SELLER, SVD AND THEIR RESPECTIVE OFFICERS, DIRECTORS, OWNERS, EMPLOYEES AND AGENTS EXPRESSLY DISCLAIM ANY AND ALL WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY (I) WARRANTIES OF MERCHANTABILITY; (II) WARRANTIES OF FITNESS FOR A PARTICULAR PURPOSE; AND (III) WARRANTIES AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; IN EACH CASE, WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE, OR OTHERWISE.
d. Photographs and descriptions of goods in marketing materials or on the Site for, or other communications about, Sales are not representations and warranties and are not guaranteed to be accurate. Bidders are required to inspect all goods prior to removal to ensure that they are satisfactory.
17. No Representations or Warranties About Software. Items are intended to be sold without software. In the event that software is incorporated into a good sold, neither Seller nor SVD nor any of their respective officers, directors, owners, employees or agents makes any representation or warranty regarding the Bidder's right to use such software, as to the performance of the software, its non-infringement or otherwise.
18. No Responsibility for Seller Information, Acts or Omissions. SVD relies on information about and descriptions of goods provided by Seller or other third parties, like the product manufacturer. SVD and its officers, directors, owners, employees and agents undertake no investigation to verify that information; make no representation or warranty concerning the accuracy or completeness of that information; and are not responsible for the inaccuracy of any such information or any Seller act or omission in connection with a Sale, including a Seller's failure or refusal to deliver goods. In the event of any nondelivery of goods to a Bidder for which Bidder is not at fault, SVD's sole and exclusive liability and obligation shall be to refund to the Bidder the amounts that such Bidder paid for the specific goods that were not delivered.
19. No Responsibility for Manufacturer Warranties. SVD and its officers, directors, owners, employees and agents do not represent or warrant that manufacturer warranties are transferable to Bidders and will have no responsibility for a manufacturer's refusal to honor a warranty.
20. Bidder Representations and Warranties. Bidder represents and warrants to SVD that all information provided to SVD is true and correct and that its actions in connection with any Sale will be in compliance with applicable laws. Any individual registering to participate in a Sale on behalf of an entity represents and warrants to SVD that he or she is duly authorized to do so and to participate in a Sale on that entity's behalf.
21. Time Limitation on Bidder Claims. Notwithstanding any other statute of limitations that might otherwise be applicable, any claim or cause of action that Bidder may have arising out of this Agreement or a Sale must be commenced within one year after the claim or cause of action accrues. Any claim or cause of action commenced later than this one-year period will be time-barred.
22. Technology Disclaimer; Unavailability of the Site. SVD does not guarantee that the Site or any functionality relating to a specific Sale, including but not limited to any third-party software or technology, will be free from defects, outages or loss of functionality or that any defects will be corrected. SVD is not liable if its Site or any part thereof is unavailable or suffers other loss of functionality.
23. Privacy Policy. SVD's privacy policy, which can be found at https://svdisposition.com/policy, is a part of this Agreement and incorporated by reference herein.
24. Limitations of Liability.
a. In no event shall SVD or any of its officers, directors, owners, employees or agents be liable to Bidder for any loss of use, revenue or profits or for any consequential, indirect, incidental, special, exemplary or punitive damages, whether arising out of breach of contract, tort (including negligence) or otherwise, regardless of whether such damages were foreseeable and whether or not SVD has been advised of the possibility of such damages, and notwithstanding the failure of any other remedy of its essential purpose.
b. Without limiting the foregoing, in no event shall the aggregate liability to Bidder and its officers, directors, owners, employees and agents by SVD and its officers, directors, owners, employees and agents, for any claim arising out of or in any way relating to this Agreement, whether arising out of breach of contract, tort (including negligence) or otherwise, exceed the total compensation actually received by SVD pursuant to purchases completed by Bidder at a Sale.
c. To the maximum extent permitted by law, each of the Parties waives and relinquishes all rights and benefits under Section 1542 of the California Civil Code, which reads as follows, or any similar statute:
"1542. General Release; Extent.

A general release does not extend to claims that the creditor or releasing party does not know or suspect to exist in his or her favor at the time of executing the release and that, if known by him or her, would have materially affected his or her settlement with the debtor or released party."
25. Bidder Indemnification. Bidder must defend (by counsel satisfactory to SVD), indemnify and hold harmless SVD and its officers, directors, owners, employees and agents (collectively, "Indemnified Parties") from and against any claim, loss, damage, liability, judgment, cost, fee and expense related thereto (including, without limitation, reasonable attorneys' fees) incurred by any of the Indemnified Parties arising from or related in any way to (a) any breach of this Agreement by Bidder, or (b) the negligence, recklessness, willful misconduct or violation of law by Bidder or any of its officers, directors, owners, employees or agents in any way related to a Sale or the removal of goods.
26. Ownership of SVD's Intellectual Property. Bidder shall acquire no interests to SVD's intellectual property under this Agreement or in connection with any Sale.
27. Export Law Compliance. Bidder agrees to comply with all U.S. export control and related laws, and acknowledge that SVD is not the exporter of any purchased item. Certain items offered for sale may constitute "Restricted Technology." Under federal law, such items may not be shipped outside the United States. SVD officers, directors, owners, employees and agents make no representation or warranty concerning, and have conducted no investigation to ascertain which items, if any, constitute Restricted Technology.
28. Site Usage. Tampering with the Site or SVD's other IT systems, copying any information thereon, misrepresenting identity or conducting illegal activities on the Site or SVD's other IT systems are prohibited. Any use of the Site or SVD's other IT systems not expressly permitted by this Agreement is prohibited.
29. Consent to Electronic Communications. Bidder agrees that SVD may communicate with it electronically, including through email, in any matter relating to this Agreement or a Sale.
30. No Third-Party Beneficiaries Except as Expressly Provided. Except for provisions expressly benefitting Seller or its or SVD's officers, directors, owners, employees and agents, this Agreement is for the sole benefit of the Parties hereto (and their respective heirs, executors, administrators, legal representatives, successors, and permitted assigns) and nothing herein, express or implied, is intended to or shall confer upon any other Person any legal or equitable right, benefit, or remedy of any nature whatsoever under or by reason of this Agreement.
31. Further Assurances. Upon SVD's reasonable request, Bidder shall, at its sole cost and expense, execute and deliver all such further documents and instruments, and take all such further acts, necessary to give full effect to this Agreement.
32. Severability. If any term or provision of this Agreement is invalid, illegal, or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction. Upon a determination that any term or provision is invalid, illegal, or unenforceable, the Parties authorize and direct the presiding court or arbitrator to modify this Agreement to effect the original intent of the parties as closely as possible and enforce such term or provision to the greatest extent possible.
33. Mandatory Arbitration. The Parties agree to submit all controversies, disputes, claims and matters of difference arising out of or relating to this Agreement or a Sale, including but not limited to its enforcement, scope and/or interpretation, exclusively to arbitration before a single arbitrator in San Francisco, California in accordance with the Commercial Arbitration Rules of the American Arbitration Association from time to time in effect (the "Arbitration Rules"), which are incorporated by reference herein. All such decisions and awards rendered by the arbitrator will be final and binding on both parties. Judgment upon the award may be entered in any court of competent jurisdiction, and application may be made to such court for a judicial acceptance of the award and an order of enforcement. All employees, officers, directors, shareholders, agents and representatives of SVD shall be entitled to enforce this Section 33 to the same extent as SVD.
34. Class Action Waiver. The Parties agree to bring any dispute in arbitration on an individual basis only, and not on a class or collective basis. There will be no right or authority in arbitration for any dispute to be brought, heard, or arbitrated as a class, collective, or representative, or for either {arty to be a participant in any purported class, collective, or representative, including without limitation pending but not certified class actions. (This Section 34 will be referred to as the "Class Action Waiver.") Disputes regarding the validity and enforceability of this Class Action Waiver may be resolved only by a civil court of competent jurisdiction and not by an arbitrator. In any case in which (1) the dispute is filed as a class, collective, or representative action, and (2) a civil court of competent jurisdiction finds all or part of the Class Action Waiver unenforceable, the class, collective, and/or representative action to that extent must be litigated in a civil court of competent jurisdiction, but the portion of the Class Action Waiver that is enforceable shall be enforced in arbitration.
35. Exclusive Jurisdiction. Subject to and without limiting Sections 33 and 34 above, all legal actions arising out of or relating to this Agreement shall be heard and determined exclusively in a court sitting in San Mateo County, California. The parties hereby (a) submit to the exclusive jurisdiction of any federal or state court sitting in San Mateo County, California for the purpose of any legal action arising out of or relating to this warranty and (b) irrevocably waive, and agree not to assert by way of motion, defense, or otherwise, in any such legal action, any claim that it is not subject personally to the jurisdiction of the above-named courts, that the legal action is brought in an inconvenient forum, that the venue of the legal action is improper, or that this warranty may not be enforced in or by any of the above-named courts.
36. Attorneys' Fees and Costs. In any legal action, arbitration or other proceeding arising out of or relating in any way to this Agreement, including a motion or petition to compel arbitration or confirm an arbitration award, the prevailing party shall be entitled to recover its reasonable attorneys' fees and costs.
37. Governing Law. This Agreement, and all matters arising out of or relating to this Agreement, are governed by, and construed in accordance with, the laws of California without regard to the conflict of laws provisions thereof; provided, however, that the Parties agree that this Agreement arises in connection with interstate commerce and therefore Section 33 shall be governed by the Federal Arbitration Act.
38. Assignment. Bidder may not assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of SVD. SVD may assign any of its rights or delegate any of its obligations to any of its affiliates or to any person or entity acquiring all or substantially all of SVD's assets. Any purported assignment or delegation in violation of this Section is null and void.
39. Force Majeure. SVD shall not be liable or responsible to Bidder, nor be deemed to have defaulted under or breached this Agreement, for any failure or delay in fulfilling or performing any term of this Agreement, when and to the extent such failure or delay is caused by or results from acts beyond SVD's reasonable control, including, without limitation: (a) acts of God; (b) flood, fire, earthquake or explosion; (c) war, invasion, hostilities (whether war is declared or not), terrorist threats or acts, riot, or other civil unrest; (d) Law; (e) actions, embargoes or blockades in effect on or after the date of this Agreement; (f) action by any governmental authority; (g) national or regional emergency; (h) strikes, labor stoppages, or slowdowns or other industrial disturbances; (i) shortage of adequate power or transportation facilities; and (j) pandemics or other public health conditions.
40. Relationship of the Parties. Nothing in this Agreement creates any agency, joint venture, partnership or other form of joint enterprise, employment or fiduciary relationship between the parties. SVD and Bidder are independent contractors.
41. No Oral Waivers. SVD will not be deemed to have waived any of its rights under this Agreement except in a writing expressly identified as a waiver and signed by a duly authorized executive officer of SVD. No SVD employee or agent has been authorized to add to, vary or waive the terms of this Agreement orally or (except in strict compliance with this Section 41 or Section 44 below) in writing.
42. Entire Agreement. This Agreement constitutes the sole and entire agreement of the Parties with respect to the subject matter contained herein and therein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter.
43. Non-Reliance on Representations and Warranties. None of SVD or any other person or entity has made or makes any other express or implied representation or warranty, either written or oral, on behalf of themselves or SVD, or any representation or warranty arising from statute or otherwise in law, in connection with this Agreement and the Sales. The Bidder confirms that it has not relied on any representation or warranty from SVD or any other person or entity on behalf of SVD in determining to enter into this Agreement.
44. Changes to This Agreement and the Services. SVD may amend this Agreement at any time by posting the amended Agreement on www.svdisposition.com. SVD's right to amend this Agreement includes the right to modify, add to or remove terms in this Agreement. SVD will provide 30 days' notice of any amendment. Additionally, SVD will notify Bidders through email. Bidders' continued access or use of the Services constitutes acceptance of the amended Agreement. SVD may also ask Bidders to acknowledge acceptance of the amended Agreement through an electronic click-through. This Agreement may not otherwise be amended except through mutual written agreement by Bidder and an SVD representative who intends to amend this User Agreement and is duly authorized to agree to such an amendment.
45. Accessing the Site and Account Security. From time to time, SVD may restrict access to some parts of the Site, or the entire Site, to users, including registered users. Each Bidder must ensure that all persons who access the Site through its internet connection are aware of this Agreement and comply with it. It is a condition of each Bidder's use of the Site that all the information it provides on the Site is correct, current and complete. Each Bidder agrees that all information it provides to register with this Site or otherwise, including through the use of any interactive features on the Site, is governed by SVD's Privacy Policy, and it consents to all actions SVD takes with respect to such information consistent with the Privacy Policy. If a Bidder chooses, or is provided with, a user name, password or any other piece of information as part of SVD's security procedures, it must treat such information as confidential and not disclose it to any other person or entity. Each Bidder acknowledges that its account is personal to it and agrees not to provide any other person with access to this Site or portions of it using its user name, password or other security information. Each Bidder agrees to notify SVD immediately of any unauthorized access to or use of its user name or password or any other breach of security. Each Bidder also agrees to exit from its account at the end of each session. SVD has the right to disable any user name, password or other identifier, whether chosen by a Bidder or provided by SVD, at any time in its sole discretion.

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