GENERAL TERMS AND CONDITIONS OF SALE
Agency: SmartBid.auction, LLC, the listing agents, auction manager, and/or brokerage and their representatives represent the seller(s).
CLOSING AND PAYMENT OF PURCHASE PRICE:
Closing in 30 days of auction:
(a) Seller shall only have the right to extend the Closing for an additional thirty (30) calendar days by providing written notice to the Buyer. The Closing will be coordinated and administered through the offices requested on behalf of the Buyer/Seller.
(b) The remaining balance of the Purchase Price will be due and payable by Buyer at Closing by Transfer of immediately available funds, pursuant to written instructions from the Escrow Agent / Auction Company. Buyer shall receive credit for any Escrow Deposit and/or holding fee, upon clearance, which shall be released from escrow and applied to the Purchase Price at Closing. Escrow deposit and/or other fees differ for each auction be sure to review “Auction Specific Terms” before bidding.
(c)Your bidding and purchase of the property is NOT CONDITIONAL UPON FINANCING. Be sure you have arranged financing, if needed, and are capable of paying cash at closing.
2.TITLE INSURANCE and ZONING:
(a) Seller, at its expense, will procure an Owner’s Title Commitment and Policy on the Property. The premium for the Owner’s Title Policy shall be paid by the Seller. The Commitment and Owner’s Title Insurance Policy shall be issued by the Settlement Agent from Commonwealth Land Title.
(b) Except as provided for herein, it is understood and agreed that fee simple title to the Property is being sold to the Buyer without representation or warranty and subject to the Permitted Exceptions.
(c) The Seller will convey title by a General Warranty Deed (“Deed”). Property will be deeded in the manner purchased at the auction. There will be no assigning of tracts or deeds between bidders.
(d) Title to the Property will be subject to the exceptions set forth in the proposed Commitment (“Permitted Exceptions”). Buyer agrees to take title to the Property subject to the Permitted Exceptions, among other matters as described in these General Terms and Conditions of Sale and in the Contract.
(e) Buyer agrees that the Property is subject to all laws, ordinances, codes, rules and regulations of applicable governmental authorities pertaining to the ownership, use and occupancy of the Property including, but not limited to, zoning, land use, building codes and agrees to take title subject to such matters, and the following permitted exceptions: (i) all covenants, restrictions, easements and agreements of record now on the Property; (ii) all liens for unpaid municipal charges not yet due; (iii) the state of facts which would be shown by a current survey or inspection of the Property; (iv) any Homeowner’s Association Documents / Fees; (v) any matter created by or through Buyer; (vi) any title matters which Buyer has accepted or is deemed to have accepted as set forth in the Contract; and (vii) such other matters that will not make the Property unusable or unmarketable for residential purposes.
(f) Seller is not providing to Buyer any survey of the Property. In the event Buyer desires to obtain a survey of the Property, Buyer will be solely responsible to obtain, and pay for, such survey without reducing the proceeds of the Purchase Price payable to Seller at the Closing. Buyer shall not have the right to terminate the Contract based upon the results of the survey.
(a) The sale of the Property is an “All Cash” transaction and shall not be subject to any contingencies, or post due diligence.
(b) The Seller, SmartBid.auction LLC and their representatives, attorneys, agents, and sub-agents, assume no liability for errors omissions in this or any other property listing or advertising or promotional/publicity statements and materials. The Seller, SmartBid.auction LLC and their representatives, attorneys, agents and sub-agents, make no representation or guarantee as to the accuracy of the information herein contained or in any other property listing or advertising or promotional/publicity statements and materials. Neither SmartBid.auction LLC nor the Seller has any obligation to update this information. Neither SmartBid.auction LLC nor the Seller, their Agents and Sub-Agents, attorneys, Escrow Agent / Settlement Agent, representatives, members, managers or affiliates has any liability whatsoever for any oral or written representations, warranties, or agreements relating to a Property except as is expressly set forth in the Contract.
(c) The Property is sold in its “AS IS AND WHERE IS” condition and with all faults and defects, with no representations or warranties, expressed or implied. All Bidders are encouraged to inspect the Property prior to placing any bid at the Online Auction and the Successful Bidder, as Buyer, acknowledges that it has had a reasonable opportunity to inspect and examine all aspects of the Property and make inquiries of applicable governing authorities pertaining to such matters in connection with the Property as Buyer has deemed necessary or desirable prior to the Online Auction. Bidders should review all applicable zoning, land use, code compliance, environmental matters, physical condition, and any and all other governmental statutes, ordinances, rules, laws and regulations and do such other due diligence in advance of execution of this document and all of the accompanying documents in connection with the purchase of the Property (“Governing Documents”). Please review all Governing Documents carefully, and seek the advice of an attorney.
(d) Competitive bidding is an essential element of an online auction sale, and such a sale should be conducted fairly and openly with full and free opportunity for competition among bidders. Any conduct, artifice, agreement, or combination the purpose and effect of which is to stifle fair competition and chill the bidding, is against public policy and will cause the sale to be set aside. Collusion / Bid Rigging is a Federal Felony punishable by imprisonment and fine. Auctioneer will report all illegal conduct to the F.B.I. and cooperate with any prosecution.
(e) The Property may be withdrawn from the Online Auction at any time without notice.
(f) Seller, in its absolute sole discretion, reserves the right to amend, negotiate, modify, or add any terms and conditions to these General Terms and Conditions of Sale, the Contract and to announce such amendments, modifications, or additional terms and conditions at any time, including during this Online Auction.
(g) All bids will be recorded. Should the Property not close with the high bidder or should the high bidder not comply with any term or condition of any document executed by Buyer in connection with the Property, the Seller will have the option, but not the obligation, to pursue back-up bids and/or restart the auction.
(h) If you are unsure about anything regarding the Property or the Governing Documents, do not place a bid or participate in the Online Auction. Review of the Governing Documents and all of the terms and conditions as well as a review of the Property before making any bids is strongly recommended and you will be deemed to have done so on execution of these General Terms and Conditions of Sale.
(i) In the event a conflict exists between the Contract and the General Terms and Conditions of Sale, then, (i) prior to Buyer’s execution and delivery of the Contract, the terms of the General Terms and Conditions of Sale shall govern and control and (ii) following Buyer’s execution and delivery of the Contract, the terms of the Contract shall govern and control over the General Terms and Conditions of Sale.
(j) Bids placed may not be withdrawn without permission of the auction company. Users are fully responsible for all activity on their account.
4.ANNOUNCEMENTS / NOTICES:
All announcements/notices provided to the bidders shall supersede and take precedence over all previously written or printed material and any other oral statements made; provided however that the Auctioneer shall be authorized to make any representation or warranty (express or implied) with respect to the Property. The Auctioneer has the sole and absolute discretion to make any announcements via this Online Auction. In the event of a dispute over the bidding process, the Auctioneer shall make the sole and final decision and will have the right either to accept or reject the final bid or re-open the bidding.
If the Buyer fails to comply with any of these General Terms and Conditions of Sale, the Seller shall retain the required Escrow Deposit, which shall be considered fully earned and non-refundable, under this Agreement and / or the Contract as liquidated damages and not as a penalty. The Escrow Agent / Settlement Agent must immediately release the Escrow Deposit less “Holiday Fee” upon request of the Seller. Buyer acknowledges and understands that this provision is enforceable and shall not be deemed a penalty because the damages are not readily ascertainable and generally impossible to calculate under the circumstances. Upon Default and notice of same by Seller to Escrow Agent / Settlement Agent, Buyer understands and agrees to the immediate release of the Escrow Deposit funds to the Seller by Escrow Agent / Settlement Agent without the requirement of further documentation or consent from Buyer. These remedies are in addition to any other remedies, including specific performance and/or additional money damages that the Seller and/or the Auctioneer may have in equity or at law. The Auctioneer and the Seller also reserve the right to immediately put the Property up for sale again.
All information was derived from sources believed to be correct, but is not guaranteed. Bidders shall rely entirely on their own information, judgment, and inspection of the Property and records. Neither the Seller, SmartBid.auction LLC, its Agents nor Sub-Agents makes any representation or warranties as to the accuracy or completeness of any information provided. All sizes, dimensions, drawings are approximations only.
Boundary Lines: Boundaries on aerial photos and topo maps are approximate. Refer to survey for exact boundary locations.
7.FINAL BID PRICE:
Unless otherwise specified as “Absolute”, the he Property is being sold SUBJECT TO OWNER CONFIRMATION to the highest Bidder. A buyer’s premium may be applicable in some auctions, look for details before bidding
8.ACKNOWLEDGMENT AND ACCEPTANCE:
By participating in the auction, user acknowledges receipt of a copy of these General Terms and Conditions of Sale, and having read and understood the provisions set forth therein, accepts same and agrees to be bound thereby.
Buyer shall defend, indemnify, and hold harmless Auctioneer, SmartBid.auction LLC, its officers, directors, employees, and agents, from and against any and all claims, demands, causes of action, costs, liabilities, losses, damages, and expenses (including reasonable attorneys and expert witness fees and expenses) (collectively, “Claims”), and by whomever brought, to the extent arising out of or in any way related to (i) the sale of, (ii) the performance of the parties’ obligations under this Agreement; (iii) the physical condition and quality (and express or implied representations regarding such condition and quality) of the Property or any portion thereof, (iv) any breach of these General Terms and Conditions of Sale, Governing Documents, or the Contract; (v) any claim arising from the sale of the Property; (vi) any claim arising from Buyer’s participation in the Online Auction; or (vii) any other act, omission or representation by Buyer.
Bidders inspecting property enter at their own risk. SmartBid.auction LLC and its partners, agents, and representatives assume no risk for bodily injury or damage to personal property.
10.GOVERNING LAW /JURISDICTION/VENUE:
This Agreement shall be construed, enforced and governed by the laws of the State of West Virginia, without regard to choice of law and similar doctrines. The parties consent to jurisdiction in the State of West Virginia and venue, for any litigation arising out of this Agreement.
11.WAIVER OF JURY TRIAL:
Each party to this agreement hereby knowingly, voluntarily and intentionally waives any right they may have to a trial by jury in respect of any litigation based upon this agreement or arising out of, under or in connection with this agreement or any other agreement contemplated and executed in connection herewith, or any course of dealing, course of conduct, statements (whether verbal or written) or actions of any party hereto.
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret any provision or provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs, whether at the trial court and appellate level, in addition to all other costs associated with the action whether or not the action advances to judgment, in addition to any other relief to which that party may be entitled.
This Agreement embodies the entire agreement between the parties relative to the subject matter, and there are no oral or written agreements between the parties, or any representations made by either party relative to the subject matter, which are not expressly set forth herein. To the extent that any of the terms or provisions contained herein differs or conflicts with those contained within the Contract, the Contract shall control.