BIDDER TERMS AND CONDITIONS
These Bidder Terms and Conditions apply to auctions conducted by ONE DAY REO LLC ("ODR"), and constitute a legal, valid, binding, and enforceable contract between ODR and each Bidder. These bidder terms and conditions also form the basis for the contract of sale between the Seller and the Buyer. IF YOU ARE UNSURE ABOUT ANY OF THE TERMS OR CONDITIONS OR HAVE QUESTIONS ABOUT ANY OF THE TERMS AND CONDITIONS SET FORTH IN THIS DOCUMENTS, YOU SHOULD HAVE THESE BIDDER TERMS AND CONDITIONS REVIEWED BY AN ATTORNEY ON YOUR BEHALF PRIOR TO PARTICIPATING IN THE AUCTION. For the purposes of these Bidder Terms and Conditions, the term “YOU” refers to each Bidder (as defined below).
- Bidder Terms and Conditions; Posted Terms; Announcements at the Time of the Auction; Agreement to Be Bound. The Auction is conducted under and in accordance with these Bidder Terms and Conditions and any and all other terms and conditions posted on the ODR website – www.OneDayREO.com - and on the websites of any Online Auction Platform Provider(s) used by ODR. The Auction is subject to any announcements or corrections by ODR. By participating in the Auction in any way, YOU agree to be bound by, and to abide by, these Bidder Terms and Conditions.
- Definitions. The following definitions apply to these Bidder Terms and Conditions:
“Absolute Auction” or “Absolute” means that property is sold to the highest bidder regardless of the amount of the final bid, without reservation. This type of auction is also known as an Auction Without Reserve. Once a bid is received on property exposed for sale at an Absolute Auction, the property cannot be withdrawn and will be sold to the highest bidder.
"Auction" means the auction event conducted by ODR at which real property is exposed for competitive bidding.
"Ballroom Auction" means an auction event conducted (i) as a live event only in a ballroom, meeting room, or other such facility, or (ii) as an online event only, or (iii) as a simulcast event (with live and online participation), during which an individual parcel or multiple parcels of real property (which may include property of different sellers) is exposed for sale through competitive bidding.
"Bidder" means any person or entity, and the agents or representative of any such person or entity, that registers, bids (directly or indirectly), buys, and/or otherwise participates in the Auction, regardless of whether such person or entity tenders a bid.
"Bidder Account" means a number or other identifier issued by ODR to a Bidder.
"Bidder Registration" means the information provided by a Bidder, and the process of registering such prospective Bidder to bid at the Auction, including the prospective Bidder's agreement to be bound by these Bidder Terms and Conditions.
"Bidder Terms and Conditions" means these Bidder Terms and Conditions.
"Buyer" means, with respect to each property exposed for competitive bidding at an ODR Auction, the Winning Bidder.
"Buyer's Premium" is an administrative fee, calculated as a percentage of the Hammer Price, that is payable by the Buyer of a property to ODR for ODR's own account. The Buyer's Premium is separate from, and is not a credit against, any amounts payable by Seller. No portion of the Buyer's Premium is due or payable to Broker/Agent or to Seller. The Buyer's Premium is earned by ODR, and may be retained by ODR, with the Fall of the Hammer.
"Contract Price" means an amount equal to the Hammer Price plus the Buyer's Premium. Any real estate transfer tax, recording fees, or similar such taxes or fees will be based on the Contract Price.
"Fall of the Hammer" means the point, after bids have been received for a property, at which ODR accepts the final and highest bid on behalf of the Seller. During an auction that is exclusively online, the Fall of the Hammer will occur electronically at the end of timed (or extended) bidding.
"Fall of the Hammer" means the point, after bids have been received, at which ODR declares a property "sold" to the Bidder acknowledged by ODR as having made the Winning Bid. During an online Auction, the Fall of the Hammer will occur electronically at the end of timed (or extended) bidding.
"Hammer Price" means the high bid amount recognized by ODR with the Fall of the Hammer.
"High Bid" means the high bid amount recognized by ODR at the conclusion of bidding.
"High Bidder" means the Bidder recognized by ODR as having made the High Bid.
“Listing Agent” means the licensed real estate broker or agent who has entered into a Listing Agreement and/or Exclusive Right to Sell Agreement with the seller of real estate exposed for competitive bidding at an ODR Auction.
“Listing Agreement” means the Listing and Exclusive Right to Sell Agreement between a Seller and a Listing Agent.
"No Sale" occurs if a property is put up at an ODR Auction but is not sold, and ODR passes on such property, withdraws the property, or declares a No Sale of the property.
"Online Auction Platform" means the hardware and software utilized to conduct an ODR online and to facilitate online bidding, including any associated, adjunct, and/or complementary websites, services, premiums and promotions.
"Online Auction Platform Provider" means the provider of the Online Auction Platform and related services.
"Online Bidding Period" means any established period during which online bids may be tendered.
“Participating Broker” means a licensed real estate broker or agent, approved or appointed by ODR, who serves as a Buyer’s Broker or Agent at an ODR Auction, and/or who is authorized to bid on behalf of a prospective buyer of real estate exposed for competitive bidding at an ODR Auction.
"Participating Broker Fee" means an amount that is paid to a Participating Broker. The Participating Broker Fee will be as described in the Listing Agreement.
“Private Sale” means an event in which a property is sold (or gifted) by a Seller, or on the Seller’s behalf, other than at an ODR Auction.
“Private Sale Price” means the fair market price paid, or agreed to be paid, at a Private Sale in an arms-length transaction between a Seller and a purchaser. If the Property is sold through a Private Sale for less than its fair market value, or in a transaction that is not an arms-length transaction, or is gifted by the Seller, the Private Sale Price will be an amount equal to the fair market value of the property in an arms-length transaction.
“Property” means the real property, with improvements thereon, that is being auctioned by ODR under and in accordance with these Bidder Terms and Conditions
"Purchase Agreement" means the contract for the purchase and sale of a property, executed at the close of bidding by the Winning Bidder.
"Purchase Deposit" is the good faith deposit made by the Buyer against the Contract Price. The Buyer's Premium is not part of the Purchase Deposit.
"Registration Deposit" means a deposit that may be required from Bidders by ODR in order to register to bid at an ODR Auction.
"Reserve" or "With Reserve" means that property exposed for competitive bidding at an ODR auction may be withdrawn by ODR and/or bids may be rejected by ODR prior to the Fall of the Hammer. It is not necessary for there to be a Reserve Price for an Auction to be With Reserve.
"Reserve Price" means the minimum price that a Seller is willing to accept for a property exposed for competitive bidding at an ODR Auction. If the Property is subject to a Reserve Price, the property will not be sold unless the Reserve Price is met or waived. It is not required for any Reserve Price to be disclosed.
“Seller” means, with respect to each property exposed for competitive bidding at an ODR Auction, (i) the owner of the property, or (ii) the person or entity empowered to convey title to the property.
"Winning Bid" means the highest bid received and accepted by ODR on a property exposed for competitive bidding at an ODR Auction.
"Winning Bidder" means the Bidder who is recognized by ODR as having made the Winning Bid.
“YOU” means a Bidder and the Participating Broker acting on behalf of such Bidder.
- Bidder Registration; Bidder Qualification. YOU must register to bid. Unless otherwise agreed by ODR, YOU must register through a Participating Broker. In order to register to bid, YOU must provide such information (including identifying information and qualifications) as requested by ODR. ODR may refuse to accept a Bidder Registration from any potential Bidder or potential Participating Broker, and may revoke the bidding privileges of any Bidder or Participating Broker. YOU Acknowledge and agree that YOU have read, understand, and agree to be bound by, these Bidder Terms and Conditions. In ODR’s sole and absolute discretion, bids may be received from a person who has not registered to bid, and/or who has not satisfied all requirements for Bidder Registration, and, by bidding, such person will be bound by these Bidder Terms and Conditions. ODR may establish such Bidder qualifications as ODR determines, in ODR’s sole and absolute discretion, are reasonably necessary or appropriate. Bidder qualification provisions (which may include proof of the availability of funds) are intended for the benefit of ODR and Sellers, and create no rights or interests in any other persons, including competing Bidders. ODR and/or a Seller may (but will not be required to) waive any Bidder qualifications, either globally or on a case by case basis.
- Buyer's Premium. Each property exposed for competitive bidding at an ODR Auction is subject to a non-refundable Buyer’s Premium in an amount equal to five percent (5.0%) of the Hammer Price or as set by ODR for a parcel being auctioned, payable by YOU to ODR for ODR’s own account.
- Access to Auction Site and/or Online Auction Platform. Bidders and Participating Brokers assume all risks associated with their presence at the Auction Site and/or their access to any Online Auction Platform utilized by ODR. Any person may be denied access to the Auction, the Auction Site, and any Online Auction Platform utilized by ODR, and may be removed at ODR’s sole and absolute discretion.
- Reserve Auction. Unless expressly stated otherwise in writing, all ODR Auctions are With Reserve. Any bid may be rejected by ODR, and any property may be withdrawn by ODR at any time before the Fall of the Hammer. If a property is subject to a Reserve Price, the Property will not be sold unless the Reserve Price is met or waived. The opening bid for a property is not necessarily, and typically is not, the Reserve Price. It is not required for any Reserve Price to be disclosed. Once a Winning Bid has been accepted by ODR, Winning Bidder will execute the Purchase Agreement and deliver Purchase Deposit. ODR may bid on behalf of the Seller of any property up to the amount of the Reserve Price (and no such bid will result in a sale of the property). If the Reserve Price is not met, the Seller of property is under no obligation to sell the property; however, in Seller's sole and absolute discretion, a Seller may accept the highest bid even if it is below the Reserve Price.
- Bidding. YOU may only bid at the Auction by agreeing to be bound by these Bidder Terms and Conditions, and, by bidding, YOU acknowledge and agree that YOU are subject to and bound by these Bidder Terms and Conditions.
- No Bid Retraction. YOU may not retract a bid that has been acknowledged by ODR or that has been submitted online. YOU acknowledge and agree that ODR is acting in reliance on tendered bids in the conduct of the Auction, and that bid retraction is disruptive and interferes with the Auction, and that, as an inducement for ODR to accept YOUR Bidder Registration, and to afford YOU the privilege of bidding at the Auction, YOU agree not to withdraw or to attempt to withdraw any bid tendered by YOU or on YOUR behalf.
- Online Auction. The following terms and conditions apply if the Auction is conducted, in whole or in part, online:
- Online Bidding Registration. Anyone desiring to bid online, or to establish the possibility of bidding online, will be required to create an online bidding account by completing all necessary forms and providing required information.
- Bidder Terms and Conditions; Notices and Announcements. The Auction will be conducted in accordance with these Bidder Terms and Conditions and any notices or announcements by ODR will be posted online and/or onsite.
- Posted Times. All times are based on the Eastern Standard Time zone unless stated otherwise. Posted closing times and time displays are approximate. ODR reserves the right to close early or extend the Auction at ODR’s sole and absolute discretion.
- Online Bidding Increments. ODR may establish bid increments, and may modify or change bid increments, in ODR's sole and absolute discretion.
- Records of Online Activity. Absent clerical errors, ODR’s records will be final and conclusive.
- Technology Disruptions. ODR will not be responsible for technology disruptions, errors, or failures (including disruptions to bidding or the failure to execute, recognize, or record online bids), whether caused by (i) loss of connectivity, breakdown, disruption, or failure of the Online Auction Platform, (ii) breakdown, disruption, or failure of YOUR internet connection, computer, or system, or (iii) otherwise. ODR may, but will not be required to, continue, suspend, delay, extend, reschedule, or close the Auction because of disruptions caused by technology failures, even after bidding has commenced.
- Failures by Online Auction Platform Provider and its Affiliates or Contractors. ODR may use an Online Auction Platform Provider to facilitate the Auction. Under no circumstances will ODR be liable for any failure of the Online Auction Platform Provider to perform all or any of its obligations, or for the failure of any affiliates, employees, agents, representatives, or contractors of the Online Auction Platform Provider to perform their obligations.
- Auto Extend Feature. Any Online Bidding Period may include an auto extend feature. This means that, if an online bid is entered within a set time period approaching the end of the established Online Bidding Period, the Online Bidding Period will automatically be extended for an additional amount of time in increments established by ODR and disclosed on the Online Auction website, and will continue to be so extended until there is a set period of time that lapses during which no online bids are received, after which bidding will close.
- Disclaimer. ODR makes no representations or warranties, and disclaims all representations and warranties, (i) that the Online Auction Platform or any related website or technology will be uninterrupted, error free or virus free, (ii) as to the results that may be obtained by using the Online Auction Platform or any related website or technology, or (iii) as to the accuracy, completeness, reliability, security, or current nature of the Online Auction Platform or any related technology.
- Responsibility for Online Bids. YOU are responsible for all bids transmitted from YOUR computer, or from YOUR IP address, or from YOUR Bidder Account for the Online Auction Platform.
- Winning Bidder Subject to Certification by ODR. The final determination of the Winning Bidder for each property is subject to certification by ODR; and any email or electronic message (whether generated manually or automatically) is subject to such certification.
- Absentee Bids; Remote Bidding. In ODR’s sole and absolute discretion, ODR may receive Absentee Bids and/or bids tendered by remote Bidders (whether telephonically or otherwise). Absentee Bids may be initiated and advanced in accordance with ODR’s policies and procedures. ODR will make reasonable efforts to execute Absentee Bids, but ODR will have no liability to any Absentee Bidder for the failure to execute any Absentee Bids for any reason whatsoever. Each Absentee Bidder acknowledges and agrees that Property may be sold to another Bidder for the maximum amount of the Absentee Bid based on a bidding sequence that causes another Bidder to reach such amount first. If the execution of an Absentee Bid at its maximum amount would require ODR to accept a bid that is less than a full bidding increment, ODR has the sole and absolute discretion to acknowledge or reject such bid. An Absentee Bidder may authorize ODR to advance the bid by one or more bidding increments after the maximum amount of the Absentee Bid is, or would be, reached. ODR acts as a marketing representative of the Seller only, and the receipt and/or execution of Absentee Bids will not create an agency relationship between ODR and any Absentee Bidder.
- Competing Bids at the Same Amount. In the event of contemporaneously made online and onsite bids, or online or remote bids made at a maximum amount to be executed competitively, ODR will determine which bid is the prevailing bid at each increment.
- Bid Increments. Bid increments are established and controlled by ODR, and may be adjusted or modified in ODR’s sole and absolute discretion. ODR may reject or refuse to accept bids that are considered trifling increases over the preceding bid.
- Responsibility for Bids Placed on Bidder Number. ODR is not responsible for monitoring or policing the use of Bidder Numbers, and YOU are responsible for all bids made on the Bidder Number issued to YOU. Absent a clerical error, ODR’s records will be conclusive.
- Withdrawal of Property by ODR. Unless specific Property is, in express written terms, put up at Absolute Auction, ODR has the right to withdraw any Property from the Auction prior to the Fall of the Hammer.
- Winning Bid; Buyer. Pursuant to these Bidder Terms and Conditions, the Bidder making the Winning Bid for any property will be the Buyer of such property.
- All Property Sold “AS IS”, “WHERE IS”, and “WITH ALL FAULTS”. ALL PROPERTY IS BEING OFFERED AND SOLD IN ITS AS IS/WHERE IS CONDITION AT THE TIME OF THE AUCTION, WITH ALL FAULTS, INCLUDING ANY HIDDEN DEFECTS OF ANY NATURE. NEITHER AUCTIONEER NOR SELLER MAKES ANY REPRESENTATIONS, WARRANTIES, OR GUARANTEES WHATSOEVER, EXPRESS OR IMPLIED, REGARDING THE NATURE, VALUE, SOURCE, AUTHENTICITY, FITNESS, MERCHANTABILITY, AND/OR ANY OTHER ASPECT OR CHARACTERISTICS OF SUCH PROPERTY. NO STATEMENT ANYWHERE, WHETHER EXPRESS OR IMPLIED, INCLUDING VERBAL STATEMENTS MADE BY AUCTIONEER, WILL BE DEEMED A WARRANTY OR REPRESENTATION BY AUCTIONEER OR SELLER. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, THERE ARE NO WARRANTIES OF TITLE, NON-INFRINGEMENT, AUTHENTICITY, ORIGIN, MERCHANTABILITY, OR FITNESS FOR A PARTICULAR PURPOSE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. YOU ACKNOWLEDGE AND AGREE THAT YOU CANNOT RELY, AND HAVE NOT RELIED, ON ANY REPRESENTATION, WARRANTY, OR GUARANTY MADE BY ODR, ANY REAL ESTATE AGENT OR BY ANY SELLER, ORALLY OR IN WRITING. BY BIDDING, YOU ACKNOWLEDGE AND AGREE THAT YOU HAVE HAD A FULL AND FAIR OPPORTUNITY TO INSPECT THE PROPERTY, AND THAT YOU ARE RELYING SOLELY ON, OR HAVE WAIVED, YOUR INSPECTION AND INVESTIGATION (i) IN DETERMINING WHETHER TO BID, (ii) IN DETERMINING THE AMOUNT OF A BID, AND (iii) IN BIDDING.
- Announcements. Subject to the limitation set forth in these Bidder Terms and Conditions, all terms and conditions and other announcements made by ODR on the day of the Auction are binding and take precedence over any advertisements or listings.
- Bidder’s Inspection. By bidding, YOU acknowledge and agree that YOU have had a full and fair opportunity to inspect the property, and that YOU are relying solely on, or that YOU have waived, YOUR inspection and investigation (i) in determining whether to bid, (ii) in determining the amount of a bid, and (iii) in bidding.
- Description of Property. Unless otherwise expressly stated otherwise in writing, any descriptions of property are based solely on visual impression, or on review of public records, and are given solely for identification purposes, and do not create any warranty, expressed or implied, or representation by ODR. Any and all descriptions or information provided by ODR are believed to be accurate, but are not guaranteed.
- Sale of the Real Property. The following terms and conditions apply:
- Bidder Qualification. ODR may impose qualifications for bidding. Any such qualifications, which may include, without being limited to, proof of the availability of funds, will be posted or otherwise made available by ODR. Bidder qualification provisions (which may include proof of the availability of funds) are intended for the benefit of ODR and Seller, and create no rights or interests in any other persons, including competing Bidders. ODR and/or Seller may (but will not be required to) waive any Bidder qualifications, either globally or on a case by case basis.
- Registration Deposit. In ODR’s sole and absolute discretion, ODR may require Bidders to make a Registration Deposit in order to bid. If YOU are required to make a Registration Deposit, and YOU are the Winning Bidder, the Registration Deposit will be applied, first, to the Buyer’s Premium, and any remaining funds will be paid against the Purchase Deposit. Registration Deposits made by anyone other than the Winning Bidder will be returned at the conclusion of the Auction.
- Participating Broker. All Bidders will be represented by the One Day REO-appointed licensed real estate agent at no cost to the Bidder, unless otherwise arranged in writing between the Bidder and ODR prior to the start of the auction. This appointed agent will act as a transaction broker as defined by the New Jersey Real Estate Commission, primarily serving as a manager of the transaction, communicating information between the parties, and in closing the transaction. The Participating Broker does not promote the interests of one party over those of the other party to the transaction. By registering for this Auction, you acknowledge that the One Day REO-appointed Participating Broker is Peter Klein of Keller Williams Elite Realtors (NJ Real Estate Commission # 1642809), who can be contacted with questions at firstname.lastname@example.org.
- Separately Deeded Parcels of the Same Seller. If the property of a single Seller consists of two or more separately deeded parcels, ODR may, in ODR’s sole and absolute discretion, put the parcels up for bid individually, as an entire group, and by various combinations, and the bids received by each method will be held until it is determined which method yields the highest aggregate Contract Price. Bidding may be conducted in multiple rounds, and in a round robin fashion, and methods or combinations may be eliminated until the final method or grouping yielding the highest aggregate Contract Price is determined.
- Breaks and Recesses. ODR may take breaks or recesses during the bidding on a property, and such breaks or recesses will not terminate the bidding unless expressly stated. ODR may suspend bidding on a property without declaring a No Sale. If announced by ODR, the Auction may continue for a stated period of time, during which period ODR may receive bids in person, telephonically, electronically, online, or by other means.
- Purchase Agreement. If YOU are the Winning Bidder on a property, YOU will execute the Purchase Agreement at the close of bidding. The Purchase Agreement is available for review prior to the bidding, and is incorporated in and made a part of these Bidder Terms and Conditions. If you fail to execute the Purchase Agreement, you will be in Default under these Bidder Terms and Conditions as described in paragraph titled “Breach” below.
- Purchase Deposit. If YOU are the Winning Bidder, YOU will make a Purchase Deposit on execution of the Purchase Agreement in an amount equal to ten percent (10%) of the Hammer Price. The Purchase Deposit will be held by the Settlement Agent. If you fail to make such Purchase Deposit, you will be in Default under these Bidder Terms and Conditions and the Purchase Agreement as described in paragraph titled “Breach” below.
- No Buyer Contingencies. There will be no Buyer conditions or contingencies, except that the Seller must deliver good and marketable title.
- Settlement. Unless extended by mutual agreement, Settlement will occur within twenty-one (21) days after the Auction.
- Broker Participation. If a broker, who has registered with ODR, has participated in procuring a Buyer, or has otherwise assisted in facilitating the sale of a property at the Auction, such broker may be paid a Broker Participation Fee, in an amount and manner established by ODR.
- Settlement Fees, Expenses and Prorations. Buyer will pay all recording and transfer fees, including the Realty Transfer Fee, any Mansion tax (if applicable), as well as the costs of any title searches, title insurance, and surveys ordered or commissioned by or on behalf of Buyer. Buyer will be responsible for obtaining any and all municipal certificates, including, but not limited to, smoke detector, carbon monoxide detector and Certificate of Occupancy (if required) or licenses required in connection with this purchase.
- Apportionment. Taxes and all other periodic realty costs, if any, will be apportioned pro rata as of the date of closing. Seller will pay for all days up to and including the date of closing, and Purchaser will pay for all days following the date of the closing.
- Zoning; Off-Site conditions and Land Use. Neither Auctioneer nor Seller has made any representations or warranties as to the zoning of the Property, any off-site conditions or any other land use restrictions affecting the Property, and Buyer is not relying on any representations by Auctioneer or Seller concerning zoning or other land use restrictions affecting the Property. Buyer is relying exclusively on Buyer’s own inquiries and investigations to confirm the applicable zoning and land use restrictions affecting the Property. The purchase of the Property by the Buyer is not contingent in any way on zoning or land use restrictions, or on whether the Buyer may put the real property to any desired use. Buyer assumes all responsibility for any and all issues that may arise regarding zoning and/or land use and will indemnify and hold Seller and Auctioneer harmless with respect to same.
- Seller’s Breach. If a Seller breaches any of such Seller’s obligations with respect to the sale of a property, the Buyer’s sole and exclusive remedy will be return, from the Seller, of monies actually paid by the Buyer. Under no circumstances will ODR or Seller be liable for incidental or consequential damages, including, without being limited to lost profits or reduced productivity. Specific performance is not available as a remedy to Buyer. Seller will also be responsible for of ODR’s costs and expenses (including reasonable attorneys’ fees and costs to resolve any such issues (this may include but not be limited to, discussions which involve, negotiations, mediation, arbitration, litigation, and/or settlement).
- Buyer’s Breach. If Buyer breaches any of Buyer’s obligations, Buyer will forfeit the Deposit and any other monies actually paid to Seller or ODR, and will pay all of Seller’s and ODR’s costs and expenses (including reasonable attorneys’ fees and costs to resolve any such issues (this may include but not be limited to, discussions which involve, negotiations, mediation, arbitration, litigation and/or settlement). If a property is subsequently offered for sale (at auction or otherwise), Buyer will be responsible for any and all costs and expenses incurred with respect there to, including, without being limited to, advertising and labor. Buyer will also be responsible for any shortfall between the Contract Price established at the Auction and any subsequent lower Contract Price for which the property may be sold.
- Risk of Loss. The risk of loss or damage to a property is assumed by the Seller until Settlement, except for in the event of loss or damage to a property exceeding ten percent (10%) of the Contract Price, then Seller may elect to either repair the damages, provide credit at Settlement, or terminate the Purchase and Sale Agreement.
- Time is Of the Essence. Time is of the Essence with respect to the purchase and sale of each property.
- Bidding by or on Behalf of Seller. Neither Seller nor anyone acting on a Seller's behalf may bid, directly or indirectly, at the Auction; provided, however, that ODR may place bids on a Seller’s behalf up to the Reserve Price.
- Conduct of the Auction. ODR will regulate all matters relating to the conduct of the Auction and ODR’s decisions will be final and binding. ODR will have control over bidding, and ODR will resolve any and all disputes. ODR may, in ODR’s sole and absolute discretion, reopen the bidding (but will not be required to) if (i) a bid is made while the hammer is falling in acceptance of a prior bid or while bidding is otherwise being terminated, or (ii) promptly after the Fall of the Hammer or other termination of the bidding ODR is made aware of a bid that was unnoticed prior to the Fall of the Hammer or other termination of the bidding, and it is demonstrated to ODR’s satisfaction that such bid was, in fact, timely made, or (iii) promptly after the Fall of the Hammer or other termination of the bidding ODR is made aware that ODR and a bid assistant or ringman, or multiple bid assistants or ringmen, have acknowledged bids in the same amount bid from different bidders, or (iv) some other bid dispute arises. Any contract formed with the Fall of the Hammer will be subject to the conditions set forth in this Section. If bidding is reopened pursuant to this Section, the bid recognized by ODR prior to the reopening of the bidding will be held, and may not be retracted, and, if no further bids are received, such bid will be the Winning Bid.
- Buyer’s Remedies; Bidders/Buyers Not Entitled to Incidental or Consequential Damages. The sole and exclusive remedy available to YOU for a Seller’s breach is reimbursement, from Seller, in an amount equal to monies actually expended by YOU. Under no circumstances will ODR or the Seller be liable for incidental or consequential damages, including, without being limited to lost profits or reduced productivity. Under no circumstances will YOU be entitled to specific performance or other equitable relief.
- Seller’s Remedies. If YOU breach any of YOUR obligations under these Terms and Conditions or under a Purchase Agreement, the property may be resold and YOU will be responsible for any and all damages, including any deficiency or reduction in the selling price, along with incidental damages as well as reasonable attorney fees and costs incurred on behalf of Seller and/or ODR.
- Indemnification. YOU agree to indemnify and hold ODR and Seller harmless from any current or future claim regarding the Auction or property exposed for competitive bidding at the Auction, including, without being limited to, fitness, use, damage, safety, or injuries to persons or property.
- Private Sale. YOU agree not to offer and/or enter into a Private Sale for the purchase of any property that is part of the Auction prior to or during the Auction. If any property is not sold at the Auction and a Seller enters into an agreement to sell such property within sixty (60) days after the Auction, ODR will be entitled to receive an amount equal to ODR’s Buyer’s Premium and reimbursable expenses, and YOU will be jointly and severally liable, along with the Seller, to ODR as well as reasonable attorney fees and costs incurred on behalf of Seller and/or ODR.
- Waiver. Certain provisions of these Bidder Terms and Conditions are for the exclusive benefit of ODR and/or Seller(s). Such provisions, including, without being limited to, Bidder registration and qualification requirements, deposit and payment terms (including the method, form, and timing of payment), removal and delivery terms, and property inspection terms), do not create, and will not be deemed to create, any benefits or rights in favor of any other persons, including competing Bidders, and may not be enforced by any other persons. Either globally or on a case by case basis ODR and/or Seller may (but will not be required to) waive any provisions of these Bidder Terms and Conditions that are intended for the benefit of ODR and/or Seller.
- Governing Law; Jurisdiction; Venue; Waiver of Jury Trial. These Bidder Terms and Conditions will be governed by and construed in accordance with the laws of the State of New Jersey, including its statutes of limitations, but without regard to its rules governing conflict of laws. YOU irrevocably and unconditionally agree that any claim, suit or cause of action relating to these Bidder Terms and Conditions, or the transactions contemplated hereby, will be brought in the state or federal courts sitting in and for Middlesex County, New Jersey, which courts will have exclusive jurisdiction, and will be the exclusive venue, for any and all such claims, disputes, and other matters, and YOU consent to the jurisdiction of such courts for any such claim, suit or cause of action. YOU waive any and all objections to venue in Middlesex County, New Jersey. YOU further waive the right to a jury trial.
- Attorneys’ Fees. If any Bidder or Participating Broker breaches such party’s obligations under these Bidder Terms and Conditions or under a Purchase Agreement, ODR and/or the applicable Seller will be entitled to recover all costs and expenses, including attorneys’ fees incurred in enforcing their respective rights under these Bidder Terms and Conditions and/or the Purchase Agreement.