THIS BUYER’S AUCTION SERVICE AGREEMENT (the “Agreement”) is made and entered into by and between PCARMARKET, Inc. (“PCARMARKET”), and the undersigned purchaser of personal property (the “Buyer”). PCARMARKET and Buyer agree as follows:
1. PCARMARKET shall provide Buyer with access to https://www.pcarmarket.com (the “Website”) to search for, identify, and place bids, make offers or use the "Buy Now" feature on vehicles or Items that Buyer may be interested in purchasing (the “Services”). In the event that Buyer places the highest bid, offer or clicks the "Buy Now" feature on any vehicle or Item listed on the Website (the “Vehicle” or “Item”), Buyer gives PCARMARKET the exclusive right to provide any information necessary to the Seller so that they can complete a transaction for the purchase of the Vehicle or Item from the owner of the Vehicle or Item (the “Seller”).
2. In exchange for the Services, Buyer agrees to pay to PCARMARKET as compensation a fee of five percent (5%) with a minimum of $500 USD and a maximum of $5,000 USD of the winning Vehicle bid, offer or "Buy Now" amount entered by Buyer with respect to the Vehicle (the “Buyer’s Fee”). For Non-Vehicle auctions the Buyer agrees to pay ten percent (10%) of the winning auction bid, offer or "Buy Now" amount entered by the Buyer with respect to the Non-Vehicle (the "Buyer's Fee). Buyer understands that, except as provided in Section 6 hereof, the Buyer’s Fee will not be refunded to Buyer under any circumstance. At the sole discretion of PCARMARKET, a portion of the proceeds may be paid to the buyer or seller by PCARMARKET should a bid fall short of the Reserve Price in order to meet the final reserve price. All bids, offers and fees are in USD.
3. Buyer’s Obligations. Bids and offers may be placed verbally, in writing or electronically. In the event that Buyer places a bid, offer or clicks "Buy Now" on a Vehicle or Item which is listed for sale on the Website pursuant to a form of auction in which a minimum price at which the Vehicle or Item may be sold is established (the “Reserve Price”), Buyer hereby agrees that insofar as Buyer’s bid or offer is equal to or higher than the Reserve Price and Buyer’s bid or offer is the highest bid or offer received by PCARMARKET, Buyer will be deemed to have purchased the Vehicle or Item. In the event that Buyer places a bid on a Vehicle or Item which is listed for sale on the Website pursuant to a form of auction which does not contain a Reserve Price, Buyer hereby agrees that insofar as Buyer’s bid is the highest bid received by PCARMARKET with respect to the Vehicle or Item, Buyer will be deemed to have purchased the Vehicle or Item. Upon receiving notification that Buyer has purchased the Vehicle or Item, Buyer shall, within seven (7) business days, issue payment in full for the Vehicle or Item to Seller. Within forty-eight (48) hours after Buyer submits payment in full for the Vehicle or Item (the “Delivery Period”), Seller will make the Vehicle or Item available for Buyer and Buyer shall make arrangements for the pick-up or delivery of the Vehicle or Item unless other arrangements have made and agreed upon between Buyer and Seller. PCARMARKET shall not be liable or responsible for arranging payment and delivery of the vehicle or Item.
4. PCARMARKET’s Obligations; Disclaimers. The Website is a public venue where persons can sell and buy property. Unless otherwise expressly stated by PCARMARKET, PCARMARKET is involved only as a facilitator in the transaction between buyers and sellers. As a result, PCARMARKET has limited control over the items put up for auction, including without limitation, control with respect to quality, safety or legality of items for sale, truth or accuracy of listing for sale items, or the ability of seller(s) to engage in any transaction over the Website. Because user authentication on the Internet is difficult and many times impossible, PCARMARKET cannot and does not confirm that each user is who he or she claims to be. Buyer agrees that PCARMARKET is not an agent of Buyer and that PCARMARKET is not acting in a fiduciary capacity. Buyer agrees that PCARMARKET is not an advocate for the interests of either Buyer or any other party related to the sale of the Vehicle or Item. Buyer acknowledges and consents that PCARMARKET may represent and/or assist other buyers who may have an interest in purchasing the Vehicle/Item or any other vehicle/Item listed for sale on the Website. Buyer understands and acknowledges that PCARMARKET makes no warranty or guaranty in connection with whether the details provided by Seller about the Vehicle or Item are truthful or accurate, including with respect to the quality of title to the Vehicle or Item, or whether the quality of the Vehicle or Item ultimately differs from the quality of the Vehicle or Item as displayed on the Website. PCARMARKET shall not be liable for any loss suffered by Buyer relating to the Vehicle/Item or subject matter hereto including, but not limited to, Seller refusing to enter into a sales contract, failing to make the Vehicle or item available to Buyer after purchase, or otherwise not completing a purchase of a Vehicle or Item. PCARMARKET shall not be charged with delivery of the Vehicle/Item or with the custody of the Vehicle or Item, its management, maintenance, security, insuring, or repair and shall have no ability to control whether the Vehicle or Item undergoes any change or damage following the purchase of the Vehicle or Item by the Buyer but before Buyer receives possession thereof.
5. Buyer Default. If Buyer fails to comply with its obligations hereunder, including, but not limited to, failing to issue payment in full for the Vehicle or Item pursuant to Section 3 hereof or failing to pick up or arrange for delivery of the Vehicle or Item within the Delivery Period, Buyer shall be in default under this Agreement and shall be obligated to pay to PCARMARKET, as liquidated damages, an amount equal to the Buyer’s Fee, administrative charges, any and all collection agency and attorney fees or other expenses incurred by PCARMARKET, on the basis of Buyer’s default. Buyer also acknowledges that it may be additionally liable to Seller. Buyer and PCARMARKET agree and acknowledge that it would be difficult to ascertain the precise amount of damages incurred by PCARMARKET due to Buyer’s default and that the liquidated damages provided for herein are a reasonable estimate of those damages. Buyer hereby agrees and acknowledges that PCARMARKET is authorized to charge any amount mentioned in this Section to the credit card that PCARMARKET has on file for Buyer.
6. Seller Default. In the event that Seller fails to make the Vehicle or Item available to Buyer, Buyer agrees and acknowledges that PCARMARKET will not be liable for such default by Seller. In such event, and provided that the vehicle or item has not been delivered to Buyer within 45 days of payment in full, Buyer will receive a refund equal to the Buyer’s Fee, less any administrative charge incurred by PCARMARKET in processing the refund. Buyer acknowledges that Buyer shall have no other claim against PCARMARKET with respect to the default by Seller.
7. Representations and Warranties of Buyer. Buyer represents and warrants that Buyer: (i) has all appropriate consents, approvals and authority to enter into this Agreement, (ii) has all appropriate licenses, permits and authorizations to the extent required by law to carry out its responsibilities set forth herein, and (iii) shall not rely on PCARMARKET to provide services as an agent/closer, title company, attorney, appraiser, certified public accountant or any other expert for Buyer and Buyer has been expressly advised to seek independent advice from an attorney and any other expert of Buyer’s choosing regarding this Agreement and all other matters relating to the purchase of the Vehicle or Item, including, without limitation, the valuation and condition of the Vehicle or Item. Buyer further represents and warrants that all of the information provided herewith, or which may be provided to PCARMARKET, shall be true, complete and correct.
8. Buyer hereby agrees to indemnify PCARMARKET, its successors, assigns, licensees, owners, officers, employees and agents, and hold them harmless from and against any and all claims, liability, losses, damages, costs, and expenses (including reasonable attorneys’ fees and costs), judgments and penalties (collectively “Liabilities”) arising out of, resulting from, or based upon the breach by Buyer of any representation, warranty or covenant made under this Agreement, including, but not limited to, any and all Liabilities arising from Seller’s failure to provide true and accurate information to PCARMARKET or execute a sales contract with Seller or otherwise close the sale of the Vehicle or item in accordance with the sales contract and/or the terms and conditions hereof. Buyer will give prompt notice to PCARMARKET of any correspondence or actual or threatened law suit or other legal action which may cause Liabilities hereunder and of which Buyer becomes aware.
9. All notices which either party shall be required or shall desire to give to the other party shall be given in writing in one of the following ways: by personal delivery; by certified mail, return receipt requested, postage prepaid, in the mail; or by deposit with Federal Express, DHL or other comparable overnight courier. Addresses for purposes of delivery of notice hereunder are as set forth below, or as otherwise designated in writing after the execution of this Agreement.
85 Pine Hollow Road
Oyster Bay, NY 11771
Buyer: To the address which Buyer provides when registering as a member of PCARMARKET.
10. Governing Law. This Agreement shall be governed by the laws of the State of New York without reference to the principles of conflicts of law. In the event that the agreement to arbitrate herein is found not to apply to this Agreement, Buyer hereby irrevocably submits to the jurisdiction of the courts of the State of New York, sitting in Nassau County, and the courts of the United States for New York.
11. Dispute Resolution. Buyer agrees that any claim, demand, controversy, dispute, or cause of action arising out of or in any way concerning, relating, or referring to this Agreement (each a “Claim”) shall be resolved exclusively by binding arbitration according to the then-existing rules of the American Arbitration Association (“AAA”). Such proceedings will be governed by and in accordance with substantive New York law and shall be decided by a panel of arbitrators or an arbitrator located in Nassau County, New York. The arbitrator and not any federal, state, or local court or agency shall have exclusive authority to resolve any dispute relating to the interpretation, applicability, enforceability, conscionability, or formation of this Agreement, including but not limited to any claim that all or any part of this Agreement is void or voidable. Buyer agrees that any Claim shall be resolved exclusively through final and binding arbitration, rather than in state or federal court. Buyer and PCARMARKET both hereby waive any right to a jury trial under this Agreement.
12. Attorney Fees. Except as specifically provided under this Agreement, the AAA rules, or by applicable law, the parties hereto acknowledge and agree that (a) each party shall bear its own costs, expenses, and attorneys’ fee incurred in connection with any Claim, and (b) any right to an award of costs and expenses (including attorneys’ fees) provided for in this Agreement is limited to the specific circumstances set forth therein and is not intended to provide any party with a general right to an award of costs and expenses (including attorneys’ fees), even if such party is the “prevailing party” in connection with any Claim.
13. If any term or provision of this Agreement is held by a court of competent jurisdiction to be invalid, void or unenforceable, the remainder of the terms and provisions set forth herein shall remain in full force and effect and shall in no way be affected, impaired or invalidated, and the parties hereto shall use their best efforts to find and employ an alternative means to achieve the same or substantially the same result as that contemplated by such term or provision.