USER
AGREEMENT
THIS
AGREEMENT DESCRIBES THE TERMS AND CONDITIONS APPLICABLE TO ANY USE
OF ALSCOAutoAuction.com. IF YOU DO NOT AGREE TO BE CONFINED BY AND
CONFORM TO THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT USE
THIS VENUE OR INITIATE ACCESS TO OUR SERVICES.
You must read, agree to, and accept all of
the terms and conditions of this User Agreement and the Privacy
Policy, including the terms and conditions set out below and those
incorporated by reference, before you may become a user of this
venue and/or the services found at
ALSCOAutoAuction.com. Any dispute shall be governed
by the version of this User Agreement that was posted and in
effect on the date the action giving rise to the dispute was
taken.
Users must understand that this site
lists both titled and untitled items. State law in each state
requires all automobiles, and most other motor vehicles, to be
titled in the state in which the item is located. This means that
there must be an official recordation of the ownership interests
in the item. Untitled items are items that do not require an
official recordation of its ownership interests under State law in
the state where the item is located.
In
order to bid on titled items listed on this site, you must be a
licensed dealer in your state and complete the appropriate
application documents on this site. In order to bid on all
untitled items, you must complete the appropriate application
documents on this site.
All
approved, licensed dealers may bid on untitled items without any
further application process.
We
may amend this User Agreement from time to time by posting the
amended terms on the Site. All amended terms automatically become
effective immediately upon posting at
ALSCOAutoAuction.com.
1.
ALSCOAutoAuction.com IS AN ON-LINE AUCTION.
1.1
ALSCOAutoAuction.com is not an Auctioneer or an Associate
Auctioneer. Although we refer to our venue and service as an
online auction, we are NOT a traditional "auctioneer" or
“associate auctioneer.” Though not required by law, all on-line
auctions at ALSCOAutoAuction.com are overseen by an auctioneer
licensed in the State of
Texas.
ALSCOAutoAuction.com
provides services and a venue that allows banks, finance
companies, leasing companies and other credit grantors to offer
and sell almost anything in which these institutions hold a
secured interest. This venue was founded on the abstract concept
commonly referred to as an "online auction." As an online auction,
we provide a venue where sellers and buyers can unite to transact
business. We assist
both sellers and buyers throughout the entire
transaction.
We
review a condition report and list the item, with pictures, on our
website. Our system keeps track of the buyers bidding for listed
items and of bid amounts. At the conclusion of an auction,
assuming a buyer meets all terms and conditions of
ALSCOAutoAuction.com and of the seller, the seller forwards all
appropriate title instruments, within three business days to us,
and the buyer forwards certified funds in the amount of the
winning bid within three business days, plus the associated
buyer’s fee. We, in turn, forward the sales proceeds to the seller
and the title documents to the buyer after the item is inspected
and accepted by the Buyer.
We
do our best to try to ensure that the actions described above are
completed in their entirety. We, however, have no control over the
quality, safety or legality of the items advertised on
ALSCOAutoAuction.com, the completeness or accuracy of the
listings, the ability of sellers to sell items or the ability of
buyers to pay for items. We do not insure that a buyer or seller
will complete a sale or purchase.
Each
bidder has the right to inspect the item prior to bidding and
throughout the bidding process. The buyer has the right
and responsibility to inspect the item prior to taking possession
of the item. The
buyer’s inspection and acceptance or rejection of the item must
take place within five business days of the date the item is
authorized for release to the buyer. The buyer and/or its
representative has the right and responsibility to reject the item
only if the item is materially misrepresented in the description
on the listing page. Once the buyer or its representative accepts
or takes possession of the item (or fails to inspect within the
inspection period), the buyer no longer has a right to reject the
item and ownership transfers.
Because
none of our actions, or anything in this User Agreement, can
modify the governing provisions of the Texas Business &
Commerce Code or the regulations of the Texas Department of Motor
Vehicles, we cannot transfer legal ownership of items from the
seller to the buyer. Consequently, the buyer is responsible for
obtaining delivery and possession of each item purchased, and for
registering the items with the necessary governmental
entities.
1.2
On-line Auction Release. In the event that you have a
dispute with one or more users, you release and agree to indemnify
and hold harmless ALSCOAutoAuction.com. and our officers,
directors, agents, parent, subsidiaries, joint ventures and
employees, from all claims, causes of actions, demands, judgments,
and damages, of every kind and nature, known and unknown,
suspected and unsuspected, disclosed and undisclosed, arising out
of or in any way connected with such disputes.
1.3
Data Control. We do not maintain and control the data
provided by other users that is made available through our
services or on this venue. You may find other user's data to be
harmful, inaccurate, and/or deceptive. We ask that all persons use
caution and common sense when accessing this venue and/or using
our services. Please note that there are also other risks
associated with accessing this venue and/or using our services. By
accessing ALSCOAutoAuction.com, you agree to accept such risks and
hold harmless ALSCOAutoAuction.com for the acts or omissions of
persons or entities that access this venue and/or use our
services.
2.
Eligibility.
2.1
Our venue and services are accessible to and may be used
by, only individuals or entities that can make legally binding
contracts under applicable law. Without limitation to the previous
term, our services are not available to persons or entities that
are not state-licensed vehicle dealers except with regard to
untitled listed items and in certain limited circumstances. If you
do not meet the above criteria, do not access this venue or
attempt to use our services. We reserve the right to
refuse access to this venue to anyone at our
discretion.
Your
ALSCOAutoAuction.com registration and User i.d. may not be
transferred, sold, or otherwise conveyed to another party. If you
are registering as a business entity, you represent that you have
the authority to bind the entity to this User
Agreement.
3.
Fees and Services.
3.1
When you register to bid on items listed on
ALSCOAutoAuction.com, you have an opportunity to review and accept the fees that you
will be charged. We reserve the right to change
our fees. Any changes to the policy are effective immediately as to transactions from
that point on. In our sole discretion, we may change any
or all of this venue or services offered, at any time. In the
event that a new service is offered, the fees for the new service
are effective immediately as to transactions from that point
on.
All fees are quoted, and all
transactions are conducted, in U.S. Dollars. You, as the user, are
responsible for paying all fees associated with using our venue
and/or our services and all applicable sales and use
taxes.
4.
Your Data.
4.1
Definition. "Your data" is defined as any information that
you provide to us or to other users in the registration, bidding
or listing process, the entire transaction, in any public message
area or through any email feature or use. You are solely
responsible for “Your Data” and we act as a passive venue for your
online distribution and publication of “Your
data.”
4.2
Restricted Activities. “Your data” (or any items listed)
and your activities on the Site shall not:
(a)
be false, inaccurate or misleading;
(b)
be fraudulent or involve the sale of stolen items;
(c)
infringe on any third party's proprietary rights or rights
of publicity or privacy;
(d)
violate any law, statute, ordinance or regulation,
including without limitation, those governing export control,
consumer protection, unfair competition, anti-discrimination or
false advertising;
(e)
be defamatory, trade libelous, unlawfully threatening or
unlawfully harassing;
(f)
contain any viruses, Trojan horses, worms, time bombs, or
other clandestine computer programming routines that may damage,
detrimentally interfere with, surreptitiously intercept or
expropriate any system, data or personal information;
(g)
create liability for us or cause us to lose (in whole or in
part) the services of our ISPs or other suppliers; or
(h)
link
directly or indirectly to or include descriptions of goods or
services that:
(1)
are
prohibited under this Agreement;
(2)
are
identical to other items you have up for auction but are priced
lower than your item's reserve or minimum bid amount;
(3)
are
concurrently listed for sale anywhere other than
ALSCOAutoAuction.com.
4.3
License. Solely to enable ALSCOAutoAuction.com to use “your
data” in accordance with our Privacy Policy, you agree to grant us
an irrevocable, non-exclusive, perpetual, worldwide, royalty-free,
sublicensable right to exercise the copyright, publicity, and
database rights that you have or may have in “your data”, in any
media now known or not currently known, with respect to “your
data”.
5.
Privacy.
5.1
We will not sell or rent your personal data to third
parties for their marketing purposes without your explicit written
consent. We only use your data as described in the Privacy Policy.
We believe protecting our user’s data is critical to the success
of ALSCOAutoAuction.com. We process and store your data on
computers located in the United States that are protected by
various security devices. Our Privacy Policy is available at http://www.alscoautoauction.com/privacypolicy.aspx.
If you object to your Data being used in this way please do not
use our services.
6.
Listing.
6.1
Listing
Description. You must be legally able to sell the item(s) you list
for sale on ALSCOAutoAuction.com. Listings may only include text
descriptions, graphics, pictures and other content relevant to the
terms and conditions of your willingness to sell the
item.
6.2
Length
of listing. Items listed on ALSCOAutoAuction.com are open for bids
(“active auction”) for five (5) days. Some exceptions may
apply. In the event
the item does not reach the reserve price and is not sold, the
item may be “re-run” in five (5) day increments.
6.3
Re-run policy. In the event that seller’s reserve price is
not met and seller chooses not to accept the highest bid, seller
may re-run the item previously listed for an additional five (5)
days. There will be no “re-run” or “no-sale” fee assessed to the
seller. Each time an
item is re-run under this policy the seller must lower the
reserve.
6.4
Binding Bids. If seller receives at least one bid at or
above the reserve price, seller is obligated to complete the
transaction with the highest bidder upon the completion of the
bidding process. Once
a bid at or above reserve price is received, the auction becomes
absolute.
6.5
Deceptive Manipulation. Neither bidders nor sellers may
deceptively or otherwise, manipulate the price or description of
any item, nor interfere with other user's listings or
transactions.
6.6
Fraud. Without limiting any other remedies,
ALSCOAutoAuction.com may suspend or terminate your registration
and/or access to this venue if we suspect that you have engaged in
fraudulent activity or have violated this User Agreement in
connection with the Site.
7. POLICY FOR SELLING
MANUFACTURED HOUSING
**NOTE: A “manufactured home” under
Texas law has a very specific definition that includes what was
formerly known as a “mobile home” but does NOT include
“recreational vehicles”, “travel trailers” or “campers”.
Any Lender wanting to sell a repossessed “manufactured
home” on ALSCOAutoAuction.com is required to send a notice to the
Texas Department of Housing and Community Affairs at least thirty
(30) calendar days before the auction starts telling that the
“manufactured home” will be listed for sale to dealers on
ALSCOAutoAuction.com; when the auction will begin; the web address
for the auction; and the physical location of the “manufactured
home” during the auction.
The Seller must keep a copy of
all notices, circulars, or advertisements of any kind relating to
the auction of the “manufactured home”.
After the
“manufactured home” sells, the Auction must send a notice to the
Texas Department of Housing and Community Affairs that includes:
the name of the manufacturer; model; serial and HUD numbers; and
the name, address and license number of the Buyer.
Repossessed “Manufactured Housing” may only be sold to
dealers licensed to sell “manufactured housing”.
**This
policy is based on the requirements of the Texas Administrative
Code, Chapter 80, Rule 80.135.
8.
Bidding.
8.1
Unless the transaction is prohibited by law or this User
Agreement, the highest bidder at or above the reserve amount upon
expiration of the active auction is obligated on the sale. The
high bidder is obligated on the sale if the bid is accepted by the
seller, regardless of whether or not the reserve has been met.
This obligation is subject to the buyer’s right of inspection
prior to taking possession of the item, as long as that right is
exercised within five business days from the date the item is
authorized for release to the buyer.
By
bidding on an item the bidder agrees to the seller’s terms and
conditions of the sale and the description listed on ALSCO Auto
Auction.com, so long as those terms and conditions do not violate
this User Agreement.
Each
active auction has a PRIMARY sale ending DATE and TIME. The
opportunity to bid on a particular item will terminate on the
PRIMARY sale ending date and time unless there is bidding activity
within the fifteen (15) minutes preceding the PRIMARY sale ending
DATE and TIME. If there is bidding activity within the fifteen
(15) minutes preceding the PRIMARY sale ending DATE and TIME, the
sale will be EXTENDED for a period of fifteen (15) minutes. If
there is bidding activity during the first extended period, the
sale will be EXTENDED for another period of fifteen (15) minutes;
and so on.
EXAMPLE:
If a sale has a PRIMARY sale ending date and time of 1/15/09, at
4:00 p.m., and a high bid is submitted and received on 1/15/09, at
3:59 p.m., the sale ending time WILL AUTOMATICALLY RESET FOR AN
ADDITIONAL FIFTEEN (15) MINUTES beginning at 4:00 p.m., allowing
previous bidders the opportunity make another bid. If any bids are
submitted at any time during the 4:00:01 p.m. - 4:15 p.m. extended
bidding period, the sale will be extended for an additional
fifteen (15) minutes, to 4:15:01 p.m. – 4:30 p.m. THIS PROCESS
WILL CONTINUE UNTIL NO FURTHER BID IS RECEIVED WITHIN ANY EXTENDED
PERIOD.
Upon
the conclusion of the auction, the highest bidder is notified
automatically via email of its status as the high bidder. Bids are
NOT retractable except in unusual situations, including (without
limitation and at our discretion) when the seller listing the item
materially changes the item's description after a bid; a clear
typographical error is relied on; or no authentication can be made
as to the identity of the seller listing the
item.
9.
Access
and Interference.
A
large portion of the data on ALSCOAutoAuction.com is updated on a
real time basis and is proprietary and/or is licensed to
ALSCOAutoAuction.com by our users or third parties. Users must agree
that they will not use any automated means to access
ALSCOAutoAuction.com for any purpose without our express
permission.
Additionally, users must agree that
they will not: (a) copy, reproduce, modify, create derivative
works from, distribute or publicly display any content (except for
“your data”) from the Site without the prior expressed permission
of ALSCOAutoAuction.com and any appropriate third party; (b) take
any action that imposes, or may impose an unreasonable or
disproportionately large load on our infrastructure, as determined
by us; (c) bypass measures we may use to prevent or restrict
access to the Site; or (d) otherwise interfere or attempt to
interfere with the proper working of the Site or any activities
conducted on the Site.
10.
Breach.
10.1
Without restricting the availability to us of other
remedies, we may limit users’ activity, immediately remove user
bids or listings, warn other registrants of unauthorized actions,
issue a warning, temporarily suspend, indefinitely suspend or
terminate users’ rights and refuse to provide our services if:
(a)
we believe that unauthorized actions may
cause financial loss or legal liability for other users or us;
(b)
we are unable to verify or authenticate any
data that is provided to us; or
(c)
user violates this User Agreement or the
documents it incorporates by reference.
11.
No Warranty.
11.1 WE, OUR PARENT, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES
AND SUPPLIERS PROVIDE THIS VENUE AND OUR SERVICES "AS IS" AND
WITHOUT ANY WARRANTY, EXPRESS, IMPLIED OR STATUTORY, INCLUDING
WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR
PURPOSE.
All
items are being offered for sale and shall be sold “as is” “where
is” “with all faults, defects, ERRORS, and Omissions.” Neither
ALSCOAutoAuction.com, American Lenders
Service Company, nor the legal owner/lien holder of any item make
any guarantees or warranties, either express or implied, as to the
mechanical integrity, condition, merchantability, or fitness for
any particular purpose of the item or items being sold or offered
for sale, except Sellers are bound by a Buyer’s right and
obligation to inspect and accept the item within five business
days of the time the item is authorized for release to the
buyer.
ALSCOAutoAuction.com,
American Lenders Service Company, and the legal owner/lien holder
OF EACH ITEM expressly disclaim any and all warranties or
guarantees as pertaining to the items being sold or offered for
sale.
OUR
PARENT, SUBSIDIARIES, OFFICERS, DIRECTORS, EMPLOYEES, SUPPLIERS,
AND WE SPECIFICALLY DISCLAIM ANY IMPLIED WARRANTIES OF TITLE,
MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND
NON-INFRINGEMENT.
Some states do not allow the
disclaimer of implied warranties, so the foregoing disclaimer may
not apply to you. This warranty gives you specific legal rights
and you may also have other legal rights that vary from state to
state.
12.
Liability Limit.
12.1 IN NO EVENT ARE
WE, OUR PARENT, AFFILIATES, OFFICERS, DIRECTORS, EMPLOYEES OR
SUPPLIERS, LIABLE FOR LOST PROFITS OR ANY SPECIAL, INCIDENTAL OR
CONSEQUENTIAL DAMAGES, ARISING OUT OF OR IN CONNECTION WITH THIS
SITE, OUR SERVICES, THE PRODUCTS LISTED ON THE SITE OR THIS
AGREEMENT (HOWEVER ARISING, INCLUDING NEGLIGENCE).
OUR
LIABILITY AND THE LIABILITY OF OUR PARENT, AFFILIATES, OFFICERS,
DIRECTORS, EMPLOYEES, AND SUPPLIERS, TO USER(S) OR ANY THIRD
PARTIES IN ANY CIRCUMSTANCE IS LIMITED TO THE GREATER OF (A) THE
AMOUNT OF FEES YOU PAY TO US DURING THE FACILITATION OF THE
TRANSACTION GIVING RISE TO LIABILITY, AND (B)
$50.
Some
States do not allow the exclusion or limitation of incidental or
consequential damages, so the above limitation or exclusion may
not apply to you.
13.
Obligation to inspect.
13.1 Each bidder has the
right to inspect any item listed on ALSCOAutoAuction.com prior to
placing a bid on the item and/or throughout the bidding process.
Any research about the history of the vehicle should be done prior
to bidding. The Buyer and/or the Buyer’s agents or representatives
have the right, obligation and responsibility to inspect each item
within five business days of the date the item is authorized for
release to the buyer, and prior to taking possession of such item.
If the item is substantially different from its description in the
listing, it is the buyer’s right and responsibility to notify the
auction of the discrepancy in the description of the item and
reject (not to take possession of) such item. Historical research
(such as Car-fax reports)may not be the basis for rejection of an
item since no warranty is included in the sale. In the event that
the buyer (or buyer’s agent or representative) do(es) not exercise
the obligation to inspect and reject the item within five business
days of the date the item is authorized for release to the buyer,
or if the buyer or buyer’s representative take(s) possession of
the item at any time, ownership transfers and the item becomes
buyer’s property in accordance with Tex. Bus. & Com. Code §
2-401 and Uniform Com. Code § 2-401.
As stated throughout
this document, all items are sold “as is” “where is” “with all
faults, defects, ERRORS AND OMISSIONS
14.
Indemnity.
14.1
You agree to indemnify and hold harmless,
ALSCOAutoAuction.com and our parent, subsidiaries, affiliates,
officers, directors, agents, and employees, from any claim or
demand, including reasonable attorneys' fees, made by any party
due to or arising out of : (a) any misrepresentation or
negligence, by this Site, its representatives, subsidiaries,
affiliates, and/or third parties regarding the presentation and/or
the description of the item(s) listed on ALSCOAutoAuction.com
based upon “your data”; (b) your breach of this User Agreement or
the documents it incorporates by reference; or (c) your violation
of any law or the rights of a third party.
15.
Legal Compliance.
15.1 User shall
comply with all applicable domestic and international laws,
statutes, ordinances and regulations regarding the use of
ALSCOAutoAuction.com and the bidding on, listing, purchase,
solicitation of offers to purchase, and sale of
items.
16.
No Agency.
16.1 User and
ALSCOAutoAuction.com are independent contractors, and no agency,
partnership, joint venture, employee-employer or
franchisor-franchisee relationship is intended or created by this
User Agreement, the documents incorporated by reference, or the
use of this venue or our services.
17.
Notices.
17.1
Except
as explicitly stated otherwise, any notices given to us shall be
by certified mail, postage prepaid and return receipt requested to
ALSCOAutoAuction.com Attn: Legal Department . P.O. Drawer 7238,
Odessa,
Texas
79761.
Notice to user(s) shall be sent via email to the address provided
to ALSCOAutoAuction.com during the registration process.
Alternatively, notice may be sent via certified mail, postage
prepaid and return receipt requested to the address provided to
ALSCOAutoAuction.com during the registration
process.
Notices
to you are deemed given 24 hours after email is sent, unless the
sending party is notified that the email address is invalid, or 3
days after the date of mailing.
18.
Resolution
of Disputes.
18.1 In the event a
dispute arises between user and ALSCOAutoAuction.com, the goal is
to provide a neutral and cost effective means of resolving the
dispute quickly. Accordingly, all parties agree that any claim or
controversy at law or equity that arises out of this User
Agreement, this venue or our services ("Claims") shall be resolved
in accordance with one of the subsections below or as otherwise
mutually agreed upon in writing by the parties.
18.2 Alternative
Dispute Resolution. ALSCOAutoAuction.com will consider the use of
alternative forms of dispute resolution, such as mediation, to be
held in
Ector
County,
Texas.
18.3 Court. Any Claim may be
adjudicated by a state court of competent jurisdiction located in
Odessa,
Ector County,
Texas. All parties agree to
submit to the personal jurisdiction of the state courts located
within the
county of
Ector County,
Texas and the federal court located in
Midland
County,
Texas.
19.
Additional Terms.
19.1 The Privacy Policy,
Seller Information Page and Buyer Information Page are
incorporated into this Agreement by reference and provide
additional terms and conditions related to specific services
offered on this Site. Policies may be changed from time to time
and are effective immediately upon posting on the Site as
to transactions from that point on. In
addition, when using particular services on the Site, user agrees
that user is subject to any posted policies or rules applicable to
services accessed or used through the Site, which may be posted
from time to time. All such posted policies or rules are hereby
incorporated by reference into this Agreement.
20.
General.
20.1 This Agreement
shall be governed in all respects by the laws of the State of
Texas as such laws are applied to agreements entered into and to
be performed entirely within Texas between Texas
residents.
20.2 We do not
guarantee continuous, uninterrupted or secure access to our
services, and operation of the Site may be interfered with by
numerous factors outside of our control.
20.3 If any
provision of this Agreement is held to be invalid or
unenforceable, such provision shall be struck and the remaining
provisions shall be enforced.
20.4 User agrees
that this Agreement and all incorporated agreements may be
assigned by ALSCOAutoAuction.com in accordance with Section 16
"Notices", in our sole discretion.
21.
ENTIRE AGREEMENT.
21.1 This User
Agreement constitutes the entire agreement between the parties
concerning the matters addressed herein and the provisions hereof
shall be binding upon and inure to the benefit of the parties,
their respective officers, directors, shareholders members,
executors, administrators, successors, and assigns. This User
Agreement may not be modified or amended except in
writing.
Our
failure to act with respect to a breach by any user does not waive
our right to act with respect to subsequent or similar
breaches.
Sections 1.2 (Release), 3 (Fees and
Services), 4.3 (License), 8 (Access and Interference), 11
(Liability Limit), 13 (Indemnity) and 17 (Resolution of Disputes)
shall survive any termination or expiration of this User
Agreement.
22.
Disclosures.
22.1 The venue and
our services are offered by ALSCOAutoAuction.com, located at
312 East
2nd Street,
Odessa,
Texas
79761. Disputes between
any user and ALSCOAutoAuction.com may be reported at legal@americanlenders.com.
We encourage you to report all user-to-user disputes to your local
law enforcement, postmaster general, or a certified
mediator.
23.
Auctioneer.
23.1
The
auctioneer overseeing the sale, O. Machelle Morris, Esq.,
Auctioneer License # 16290, is licensed by the Texas Department of
Licensing and Regulation and is covered by a Recovery Fund
administered by the Department. To file a complaint, you may
download the Complaint Form from the State of
Texas website at www.license.state.tx.us/auction/auctionforms.htm
or contact the Texas Department of Licensing and Regulations, 920
Colorado,
Austin,
Texas
78701. Mailing Address: Texas Department of
Licensing and Regulations Telephone: (512) 462-6599,
P O Box
12157 Toll-Free: (in TX) (800) 803-9202
Austin,
TX
78711 Fax: (512)
475-2871.