TERMS AND CONDITIONS REGARDING BIDDER PARTICIPATION IN ONLINE AUCTION AND USE OF WEBSITE
Thank you for your interest in registering to participate in the Auction (hereinafter defined). All bidders must register acknowledging that they have read and agree to the Terms and Conditions of the Auction and sales resulting therefrom as outlined herein. These TERMS AND CONDITIONS (this “Agreement”) concern the http://auction.basices.com website (together with its pages and features, the “Site”). This Agreement is made and entered into by and between you and any person helping you visit, access or use the Site (collectively, “you” or “your”), on the one side, and BASIC ENERGY SERVICES, L.P., a Delaware limited partnership (“BES”), on the other side. You and BES are sometimes referred to herein, individually, as a “Party” and, collectively, as the “Parties.” PLEASE READ THIS AGREEMENT CAREFULLY BEFORE ACCESSING OR USING THE SITE BECAUSE IT CONSTITUTES A LEGALLY BINDING CONTRACT BETWEEN YOU AND BES with respect to the use of this Site and the auctions conducted thereon.
YOUR USE OF THIS SITE SIGNIFIES AND CONSTITUTES YOUR ACCEPTANCE OF THIS AGREEMENT IN ITS ENTIRETY, AS IT MAY BE AMENDED FROM TIME TO TIME. IF YOU DO NOT ACCEPT AND AGREE TO THIS AGREEMENT IN ITS ENTIRETY, THEN YOU ARE STRICTLY PROHIBITED FROM VISITING, ACCESSING, REGISTERING WITH OR USING THE SITE. BES MAY SUPPLEMENT, AMEND OR OTHERWISE MODIFY THIS AGREEMENT AT ANY TIME. SUCH MODIFICATIONS WILL BE POSTED ON THIS OR ANOTHER PAGE OF THE SITE, AS BES DEEMS APPROPRIATE IN ITS SOLE DISCRETION, AND SUCH MODIFICATIONS SHALL BE DEEMED EFFECTIVE AS OF THEIR STATED EFFECTIVE OR MODIFICATION DATES. IT IS YOUR RESPONSIBILITY TO CAREFULLY REVIEW THIS AGREEMENT EACH TIME YOU VISIT, ACCESS, REGISTER WITH OR USE THE SITE.
Article 1: Participation in Online Auction
1.1. Auction. The Site will be utilized primarily for administering one or more online auctions (each, an “Auction” and collectively, the “Auctions”), whereby registered bidders shall be permitted to bid on certain equipment, vehicles, trade fixtures, oilfield service assets, and/or other goods (the “Goods”) owned by BES or one or more of its affiliates or subsidiaries. The Goods shall be auctioned in specific groups as designated by BES in its sole discretion on the Site. Each Auction shall run for a specified period of time as designated on the Site, provided BES shall have the right in its sole discretion to modify or extend any such time periods even after bidding has commenced. Furthermore, before the time period for a particular Auction has elapsed, BES shall have the right, in its sole discretion, to cancel such Auction and/or accept a direct offer with respect to the Goods offered for sale as part of such Auction. BES reserves the right to reject any bid or bidder and has the right to accept back-up contracts the day of sale.
1.2. Registration. Only bidders who accurately and truthfully complete the registration process on the Site will be permitted to participate in the Auctions. BES reserves the right to void a successful bid award and/or deny further use of the Site to any bidder who misrepresents information during registration in any material respect. By registering, all bidders agree to abide by all of the Terms of Sale (hereinafter defined).
1.3. Bidding Process. No bid may be withdrawn by a bidder once submitted on the Site. All bids are an irrevocable offer to buy and shall remain valid and enforceable to until the time period for a particular Auction has elapsed and such Auction has concluded. BES reserves the right, but has no obligation, to bid on behalf of the Seller up to the reserve price, unless the Goods are declared “Absolute” or the “Reserve has been met”. If the bid price does not reach the Reserve Price, the high bidder’s offer to seller shall remain irrevocable for seven (7) business days following the Auction.
1.4. All Sales are Final. By registering and bidding, each bidder acknowledges they understand and agree to the terms of sale as set forth on the Site, this Agreement, and the Bill of Sale (collectively, the “Terms of Sale”). Each bidder acknowledges that they have read this Agreement and the Bill of Sale and agrees to accept this Agreement and the Bill of Sale without any changes to the pre-printed text. The high bidder must sign all contract documents, including, without limitation, the Bill of Sale, no later than two (2) Business Days after the Auction has concluded and the high bid is awarded.
1.5. No Representations. THE BES PARTIES (AS HEREINAFTER DEFINED) DO NOT MAKE, NOR HAS ANY BES PARTY MADE, ANY REPRESENTATIONS OR WARRANTIES OF ANY KIND OR NATURE (WHETHER DIRECT OR INDIRECT, ORAL OR WRITTEN, OR EXPRESS OR IMPLIED) TO YOU WITH RESPECT TO THE SITE, ANY OF THE GOODS, ANY SUCH INFORMATION, COMMUNICATIONS, CONTENT AND FEATURES OR THEIR SUCCESS, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY OR SAFETY. THE BES PARTIES EXPRESSLY DISCLAIM ANY AND ALL EXPRESS WARRANTIES, IMPLIED WARRANTIES (INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, GOOD FAITH AND FAIR DEALING, TITLE, NON-INFRINGEMENT, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY AND SAFETY) AND WARRANTIES ARISING FROM CONDUCT, COURSE OF DEALING, CUSTOM AND USAGE IN TRADE WITH RESPECT TO THE SITE, THE GOODS, ANY SUCH INFORMATION, COMMUNICATIONS, CONTENT OR FEATURES AND THEIR SUCCESS, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY AND SAFETY. THE BES PARTIES DO NOT MAKE, NOT HAS ANY BES PARTY MADE, ANY AFFIRMATION OF FACT, PROMISE OR WARRANTY (EXPRESS, IMPLIED OR OTHERWISE) RELATING TO THE SITE, THE GOODS OR ANY SUCH INFORMATION, COMMUNICATIONS, CONTENT OR FEATURES OR ITS SUCCESS, PERFORMANCE, FUNCTIONALITY, QUALITY, COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY OR SAFETY.
1.6. AS IS; WHERE IS. The Goods offered for sale at each of the Auctions are being sold “AS IS”, “WHERE IS”, “WITH ALL FAULTS AND DEFECTS”, without warranty, representation or guarantee of any kind, except as expressly provided for in the Bill of Sale. Each potential bidder must perform his/her own independent inspections, inquiries and due diligence concerning the described Goods. Any information being furnished to bidders on the Site is for the bidder's convenience and it is the responsibility of the bidder to determine that any such information is accurate and complete. Any reliance on the contents of such information shall be solely at the recipient's risk. It is the bidder’s responsibility to inspect the Goods prior to bidding to make their determination as to the condition or seek professional inspection (at the bidder’s expense) of the Goods. Accordingly, Seller shall not be liable to Buyer for errors, inaccuracies or omissions with respect to the listed descriptions or quantities of the Goods described on the Site. By bidding on the Goods, you are accepting all terms and conditions stated herein.
1.7. Purchase Price. In the event a high bid is accepted, payment of such winning bid (the “Purchase Price”) is due to BES via wire transfer as provided on the Site within two (2) Business Days of confirmation of the winning bid. BES may, in its sole discretion, elect to void the bid award in the event payment of the Purchase Price by the winning bidder is not timely transmitted. The Purchase Price is exclusive of any and all sales, use, or excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by the winning bidder under the Terms of Sale, including, without limitation, any motor vehicle taxes or other assessments due upon the transfer of title of the Goods. Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the sales made under any Auction are for the winning bidder’s account, and the winning bidder hereby agrees to pay any such taxes, duties and charges and shall indemnify, defend and hold harmless BES and its affiliates and subsidiaries in connection with same. As sometimes used herein, the term “Buyer” shall mean the winning bidder of a particular Auction. As used herein, the term “Seller” shall mean BES and/or its affiliates or subsidiaries which own the Goods to be conveyed in connection with a particular Auction.
1.8. Removal. Unless otherwise agreed in writing by BES, all Goods purchased pursuant to an Auction must be removed from the real property on which the Goods are located (the “Location”) no later than fourteen (14) days after the Closing (hereinafter defined) (the “Removal Date”). To the greatest extent permitted by applicable law, except to the extent of the negligence or willful misconduct of BES or its agents or employees, Buyer will indemnify, defend and hold harmless BES, its affiliates, parents and subsidiaries, and their respective agents, partners, directors, managers, officers, employees, representatives, contractors, vendors and licensees (collectively, the “BES Parties”) against any liabilities, claims, demands, causes of action, damages, costs, expenses, losses and liabilities, including, without limitation, any property damage, personal injury, claim of lien against the Location and reasonable attorneys’ fees and expenses paid or incurred by the BES Parties during litigation (if any), arising out of or in any manner directly or indirectly connected with (i) Buyer’s removal of the Goods from the Location, and/or (ii) Buyer’s failure to timely remove the Goods from the Location as provided in the Terms of Sale. If Buyer fails to remove the Goods from the Location on or before the Removal Date, Buyer shall pay to Seller a rental charge in the amount of $250.00 per day until the Goods are removed from the Location in accordance with the Terms of Sale.
1.9. Indemnity. EACH BIDDER ASSUMES FULL RESPONSIBILITY AND LIABILITY FOR ANY CLAIM OR ACTIONS BASED ON OR ARISING OUT OF INJURIES, DEATH, DAMAGE, LOSS OF PROPERTY, SUSTAINED OR ALLEGED TO HAVE BEEN SUSTAINED BY SUCH BIDDER, ITS AGENTS, PRINCIPALS, ASSOCIATES, FRIENDS, FAMILY AND/OR EMPLOYEES, IN CONNECTION WITH OR TO HAVE ARISEN OUT OF OR INCIDENTAL TO THE AUCTIONS AND THE USE OF THE SITE INCLUDING BUT NOT LIMITED TO THE PERFORMANCE UNDER THIS AGREEMENT. REGARDLESS OF WHETHER SUCH CLAIMS OR ACTIONS ARE FOUNDED WHOLE OR IN PART UPON ALLEGED NEGLIGENCE OR NEGLIGENT MISREPRESENTATION OF ANY OF THE BES PARTIES, EACH BIDDER AGREES TO INDEMNIFY AND HOLD HARMLESS THE BES PARTIES IN RESPECT OF ANY SUCH MATTERS AND AGREES TO DEFEND ANY CLAIM OR SUIT OR ACTION BROUGHT AGAINST THE BES PARTIES IN CONNECTION WITH THE FOREGOING.
1.10. Transfer of Title. To the extent the Goods are titled, Seller will transfer titles to the Goods to Buyer as soon as practicable, but no later than 30 days following the Closing.
1.11. Bill of Sale; Closing. Upon the earlier of (i) two (2) Business Days after the Auction has concluded and the high bid is awarded, or (ii) one (1) Business Day after delivery of the Bill of Sale from Seller, Buyer will sign the bill of sale (the “Bill of Sale”) in the form attached hereto as Exhibit A and made a part hereof for all purposes without any changes to the pre-printed text (provided the blanks will be populated with the particulars of the subject transaction, including the party names, Purchase Price, the description of the Goods, etc.). The winning bidder will receive via overnight or electronic delivery all necessary documents to sign and return, and the Parties shall execute the Bill of Sale using electronic signatures via DocuSign. Following Seller’s receipt of the full Purchase Price and the Buyer executed Bill of Sale, Seller will execute the Bill of Sale effectuating the conveyance of the Goods. The date of Seller’s execution of the Bill of Sale is referred to herein as the “Closing”. Buyer acknowledges and agrees that TIME IS OF THE ESSENCE with respect to all time periods relating to Buyer’s obligations set forth in the Terms of Sale.
1.12. Buyer Default. In the event a high bid is accepted and the Buyer fails to close or comply with the Terms of Sale for any reason except failure by Seller to perform thereunder, BES shall be entitled (but not obligated) to immediately void the bid award and to add the subject Goods back to the Site for another Auction. In addition to the foregoing, BES and/or Seller shall be entitled to exercise any remedies that BES and/or Seller may have at law or in equity in connection with Buyer’s default. Buyer shall reimburse BES for all expenses incurred by BES (including attorneys' fees and disbursements), by reason of any failure to perform or violation by Buyer of any covenant or provision of the Terms of Sale. The foregoing is not intended and shall not be construed as a limitation on BES’s and/or Seller’s remedies for Buyer’s breach of the indemnity agreements contained in this Agreement or in the Bill of Sale. No right or remedy of BES and/or Seller shall be exclusive of any other right or remedy. Each right and remedy shall be cumulative and in addition to any other right and remedy now or subsequently available to BES and/or Seller at law, in equity, by statute, in any other agreement between the parties or otherwise.
1.13. Conflicts. In the case of a conflict between the Bill of Sale and this Agreement, the Bill of Sale shall control.
Article II: Use of Site
2.1. Use of Contents: You may use the Site only for you or your entity’s internal general business purposes. You shall access or use the Site and its content only to process transactions and shall not access or use the Site or its Content to provide information to third parties unrelated to the purchase and sale of items using this Site. Content copied, downloaded or printed must retain all the copyright, trademark and other proprietary notices. For commercial use of the informational content of the Site, outside of the intended purchase and sale of goods as a result of the Site, you must secure the written consent from BES.
2.2. Prohibited Activities. You shall not engage in any of the following activities at any time with respect to the Site: (a) the impersonation of any person or entity; (b) any act that infringes or otherwise violates the intellectual property, privacy or publicity rights of any person or entity (including, without limitation, the copyrights, trademarks, patents, and trade secrets held by BES or its licensors with respect to the Site); (c) the reproduction of the Site or any communications, information or content found thereon or therein, in whole or in part, or the creation of any derivative works of the foregoing (unless expressly authorized by BES herein); (d) the publication of any content that is objectionable or illegal (including, without limitation, content that is indecent, obscene, infringing, an invasion of privacy, defamatory, disparaging, false, deceptive, misleading, untruthful, fraudulent, threatening or abusive); (e) the publication of a person’s or entity’s personal information or private facts without his/her/its prior written consent; (f) the publication of any machine, computer or randomly generated content; (g) supplying or publishing any information or statements on, through or in relation to the Site that is false, misleading, deceptive or incorrect; (h) any act intended or designed to drive traffic to or boost the search rankings of third-party websites, networks, platforms, servers or applications; (i) the systematic retrieval or copying of any information or content found on, through or in relation to the Site or its servers to directly or indirectly create or compile, in whole or in part, a collection, compilation, database or directory; (j) the use of any software, program, process, device, application or routine (including, by way of example only, robots, scrapers, spiders, viruses, spyware and malware) to monitor, copy, disrupt, damage, injure, interfere with or impermissibly access, in whole or in part, the Site or its servers; (k) any act that involves or concerns decrypting, security bypassing or circumventing, hacking, data mining, data scraping, data harvesting, reverse engineering, decompiling, disassembling, attempting to derive source code, modifying, copying or the like on, through or in relation to the Site or its servers; (l) any act that overloads, unreasonably disrupts, or unreasonably interferes with the infrastructure of the Site or its servers; (m) any act that gains or attempts to gain unauthorized access to computer systems, networks, information or materials on, through or in relation to the Site or its servers; or (n) any other act that BES becomes aware of and believes in good faith is improper, illegal or harmful to the Site, its servers or any person, entity or property.
2.3. Take Down. BES reserves the right, but not the obligation, to take down or otherwise exclude from the Site, without notice or recourse, any communications, names, photographs, information and/or content made or submitted by you or others on or through the Site that BES believes at any time and in its sole discretion to be infringing or otherwise in violation of the proprietary, privacy or publicity rights of any person or entity; defamatory, disparaging or embarrassing of or towards any person or entity; profane, indecent or obscene; derogatory in terms of race, nationality, religion, gender, gender identification, sexual orientation or otherwise; threatening; abusive; false, misleading or deceptive; or otherwise illegal or something that BES considers unsuitable for the Site or its users.
2.4. License of User Materials. All names, videos, photographs, information, communications and any other content that you submit to or publish on, through or in relation to the Site, including those which you submit to or publish on any online social media account (e.g., Facebook, Google Plus, Twitter, Instagram) that you own and link or otherwise associate with the Site, if any and as applicable, is hereinafter defined as the “User Materials.” You hereby grant BES an irrevocable, non-exclusive, royalty-free, fully-paid, transferable, sub-licensable, perpetual and universe-wide license for BES to host, store, reproduce, transmit, distribute, sell, resell, license, sublicense, market, modify, adapt, create derivative works, communicate, publish, syndicate, publicly perform, publicly display, archive and otherwise use and exploit all or any part of such User Materials and any elements and derivatives thereof in any manner, medium or form, whether now known or hereinafter devised, as BES sees fit in its sole discretion.
2.5. User Representations, Warranties and Covenants. You represent, warrant and covenant to BES that: (a) you are a natural person and of eighteen (18) years of age or older, or otherwise the age of majority in your jurisdiction; (b) you have read and understand this Agreement in its entirety; (c) you have the full right and authority to enter into and abide by the terms and conditions of this Agreement; (d) you understand and acknowledge that by accepting this Agreement you are giving up certain legal rights and remedies; (e) you voluntarily accept and agree to, and will fully comply with, the terms and conditions of this Agreement; (f) you will not violate any applicable international, federal, state or local laws which may concern the Site, the Site’s servers or any information, communications or content found on or through them; (g) you are the exclusive owner of all rights, titles and interests in and to the User Materials (including, without limitation, all copyrights, trademarks, patents, trade secrets, rights of publicity and rights of privacy) and/or, if applicable, have secured all necessary rights and permissions from all subjects depicted in, and all persons and entities who contributed to, the User Materials to allow for your performance and grant of rights hereunder; (h) the User Materials are wholly original to you; (i) the User Materials do not and will not infringe upon or otherwise violate the proprietary, publicity or privacy rights of any person or entity; (j) the User Materials do not and will not defame, disparage, embarrass or disclose confidential, private or personal information about or belonging to any person or entity; (k) nothing contained in the User Materials is or will be, or contains or will contain, links to material that is profane, indecent, obscene, threatening, abusive, illegal, false, misleading or any form of spam, malware, virus, bug, bot, spyware or other malicious or tracking technology; (l) BES is not required to seek the permission of or compensate any third party to exercise any of the rights granted by you under this Agreement; (m) no obligation, disability, agreement or adverse claim exists that may restrict your performance or grant of rights hereunder; (n) all information you provide to BES in connection with your visit, access or use of the Site is truthful and accurate; and (o) you are not listed on any United States government list of prohibited or restricted parties. Nothing in this Agreement restricts or limits BES’s rights, titles or interests in or to the Site, the User Materials or any elements or derivatives of the foregoing. PLEASE NOTE THAT THE USER MATERIALS MIGHT BECOME THE SUBJECT OF PUBLIC DISCLOSURE. THUS, BES IS NOT RESPONSIBLE FOR, AND EXPRESSLY DISCLAIMS ANY LIABILITY ARISING FROM OR IN CONNECTION WITH, ITS USE OF ANY USER MATERIALS IN ACCORDANCE WITH THE TERMS AND CONDITIONS OF THIS AGREEMENT.
2.6. Suspension of Termination of Service; Disclaimer. BES has the right, but not the obligation, to suspend or terminate the function or existence of all or any part of the Site. BES SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY LOSS OR DAMAGE THAT IS CAUSED BY OR ARISES FROM OR IN CONNECTION WITH ANY SUCH SUSPENSION OF TERMINATION (INCLUDING, WIHTOUT LIMITATION AND BY WAY OF EXAMPLE ONLY, REFUNDS, LOST PROFITS, LOST OPPORTUNITIES, MONETARY DAMAGES, DISRUPTION IN OR LOSS OF SERVICE OR LOSS OF CONTENT).
2.7. Ownership. The Site and all elements and derivatives of the Site (including, without limitation, all content, information, source codes, object codes, data, instructions, documentation and expressions), as well as all copyrights, trademarks, trade secrets and other intellectual properties of the foregoing, are owned, licensed or permissibly used by BES. In no event shall you have or retain any rights, titles or interests in or to the foregoing other than those limited rights expressly granted to you under this Agreement. No rights or permissions granted to you under this Agreement are coupled with an interest. Nothing contained in this Agreement shall be construed as a waiver or limitation of BES’s or its licensors’ respective rights and remedies under applicable law.
2.8. General Disclaimer. YOUR VISIT, ACCESS, REGISTRATION WITH OR USE OF THE SITE AND/OR ANY PRODUCTS OR SERVICES MADE AVAILABEL TO YOU ON, THROUGH OR IN RELATION TO THE SITE IN ANY WAY IS DONE AT YOUR OWN RISK. THE SITE, THOSE PRODUCTS AND SERVICES, THE SUCCESS OF PERFORMANCE OF THE SITE OR THOSE PRODUCTS AND SERVICES AND ALL INFORMATION, COMMUNICATIONS, CONTENCT AND FEATURES OFFERED, MARKETED, SOLD PROVIDED, LICENSED OR MADE AVAILABLE ON, THROUGH OR IN RELATION TO THE SITE OF THOSE PRODUCTS AND SERVICES ARE PROVIDED TO YOU ON AN “AS IS,” “WHERE IS,” “AS AVAILABLE,” AND “WITH ALL FAULTS” BASIS. BES DOES NOT MAKE, NOR HAS BES MADE, ANY REPRESENTATIONS OF WARRANTIES OF ANY KIND OF NATURE (WHETHER DIRECT OR INDIRECT, ORAL OR WRITTEN, OR EXPRESS OR IMPLIEC) TO YOU WITH RESPECT TO THE SITE, ANY OF THOSE PRODUCTS AND SERVICES, ANY SUCH INFORMATION, COMMUNICATIONS, CONTENCT AND FEATURES OF THEIR SUCCESS, PERFORMANCE, FUNCTIONALITY, QUALITY COMPLETENESS, ACCURACY, RELIABILITY, MARKETABILITY OR SAFETY. BES expressly disclaims any and all express warranties, implied warranties (including, without limitation, implied warranties of merchantability, fitness for a particular purpose, good faith and fair dealing, title, non-infringement, performance, functionality, quality, completeness, accuracy, reliability and safety) and warranties arising from conduct, course of dealing, custom and usage in trade with respect to the Site, those products and services, any such information, communications, content or features and their success, performance, functionality, quality, completeness, accuracy, reliability, marketability and safety. BES does not make, nor has BES made, any affirmation of fact, promise or warranty (express, implied or otherwise) relating to the Site or any such information, communications, content or features or its success, performance, functionality, quality, completeness, accuracy, reliability, marketability or safety.
2.9. Disclaimer About System Delays. You understand and acknowledge that the Site may be subject to limitations, delays and other problems inherent in the use of third-party communication networks and facilities that are outside of BES’s control. Accordingly, BES shall not be responsible for, and expressly disclaims, any delays, failures, losses, injuries, liabilities or damages associated with the Site which result from any system delays, downtimes, interruptions or other failures of or problems with the Site which are outside of BES’s control (including, without limitation, scheduled maintenance or network failure).
2.10. Disclaimer About Certain Information, Communications and Content. Any opinions, advice, reviews, statements, offers or other information, communications or content found on, through or in relation to BES, the Site or any third-party providers (including, without limitation, online forums, other websites, advertisements, and social media pages) are those of their respective authors, and not necessarily those of BES; thus, they should not necessarily be relied upon. Such authors are solely responsible for the accuracy of such information, communications or content. BES does not guarantee, adopt or endorse the accuracy, completeness, reliability or usefulness of any such information, communications or content, even if BES is the author. BES is not responsible for the accuracy, completeness, reliability or usefulness of any such information, communications or content. Under no circumstances shall BES be liable to you or any third parties for any loss or damage caused by or arising from or in connection with your reliance on any such information, communications or content.
2.11. Limitations of Liability. In no event shall the BES Parties be held liable to (or be obligated to indemnify) you or any third party for any direct, indirect, punitive or special damages (including, without limitation, legal costs, attorney fees, lost profits, replacement costs or repair costs) caused by or arising from or in connection with: (i) your visit, access or use of the Site, or your inability to visit, access or use the Site; (ii) any products or services made available on, through or in relation to the Site; (iii) any statements, content or conduct of any third party on, through or in relation to the Site or any such products or services; (iv) any unauthorized access to or alteration of your personal information; (v) any hacking, denial of service attacks, data security breaches or other third-party conduct that may lead to a compromise of your personal information or damage to your device(s), software, operating system(s), file(s), carrier(s) or network(s); (vi) any transmission, download or infection of any software, system, program, file, process, device, application or routine (including, without limitation and by way of example only, robots, scrapers, spiders, viruses, spyware and malware) that may lead to a compromise of your personal information or damage to your device(s), software, operating system(s), file(s), carrier(s) or network(s); (vii) the fact that you have relied on any information, content or communications published on, through or in relation to the Site or any such products or services; or (viii) any acts, errors or omissions of any third-party providers. If you are dissatisfied with the Site or any products or services offered, sold, licensed or made available on, through or in relation to the Site, then your sole and exclusive remedy is to discontinue your access and use of the Site and such products and services. If BES or any BES Party breaches or otherwise violates this Agreement, then in no event shall you be entitled to recover any special, incidental, consequential, speculative or punitive damages arising out of or in relation to such breach or other violation, even if BES has been notified of the possibility of such damages. The disclaimers and limitations set forth in this Section are not intended to limit liability or alter your rights as a consumer that cannot be limited or altered under applicable law.
2.12. General Release of Claims. You hereby release and hold harmless the BES Parties from and against all claims that you have or may have against them for infringement, violation of the rights of privacy or publicity, defamation, disparagement, unpaid benefits, unpaid wages, overtime, discrimination, personal injury, property damage, negligence and/or any other legal theory arising from or in connection with the Site, the products or services made available on, through or in relation to the Site and/or the rights and privileges granted or conveyed by you under this Agreement (including, without limitation, those rights and privileges relating to the User Materials and/or any elements, derivatives or marketing of the foregoing). Further, you waive your right to, and in no event shall you seek to, (a) enjoin BES or any of the BES Parties or (b) exercise any of the rights or privileges granted or conveyed by you under this Agreement (including, without limitation, the User Materials).
YOU ALSO HEREBY WAIVE ANY RIGHTS YOU HAVE OR MAY HAVE UNDER SECTION 1542 OF THE CALIFORNIA CIVIL CODE AND ANY OTHER STATUTE OR COMMON LAW PRINCIPLE OF SIMILAR EFFECT, WHICH PROVIDES: “A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS WHICH THE CREDITOR DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE, WHICH IF KNOWN BY HIM OR HER MUST HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR.”
2.13. Indemnification. You hereby agree to indemnify, release and hold harmless the BES Parties from and against any and all liabilities, claims, suits, demands, actions, judgments, losses, damages, fines, penalties and expenses (including costs and reasonable outside attorney fees and reasonable and necessary expert fees) incurred by such indemnitees, or asserted against such indemnitees by third parties, arising out of or in connection with (a) your acts, errors or omissions, (b) your use of the Site or any products or services made available on, through or in relation to the Site in any manner contrary to the terms and conditions of this Agreement, (c) your violation of the rights of or other injury to any third party, and/or (d) your breach of all or any part of this Agreement.
2.14. Use of Site: Your use of the Site is at the sole discretion of BES, who may deny you further use of the Site at any time, for any reason, with or without cause. Your use of the Site does not entitle you to continued use of the Site.
Your use of the Site must always comply with applicable law. In particular, but without limitation, you agree and represent not to use the Site to:
(a) impersonate any person or entity or falsely state or otherwise misrepresent your affiliation with any person or entity;
(b) upload, post, email or otherwise transmit any content that is unlawful, harmful, threatening, abusive, harassing, tortuous, defamatory, vulgar, obscene, libelous, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable;
(c) upload, email or otherwise transmit any message that could be construed as spam or compile a list of email addresses of users of this Site for the purpose of solicitation;
(d) upload, post, email or otherwise transmit any content that infringes any patent, trademark, trade secret, copyright or other proprietary rights of any party; or
(e) upload, post, email or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software, network, hardware or telecommunications equipment.
BES makes no representation regarding accessing the materials on this Site from jurisdictions where their contents are illegal is prohibited. Those users who choose to access this Site from other locations do so at their own risk and are responsible for compliance with local laws and regulations.
Article III: Miscellaneous
3.1. Binding Effect. Except as otherwise expressly provided herein, this Agreement shall be binding upon and inure to the benefit of the Parties hereto and their respective legal representatives, successors, and permitted assigns.
3.2. Construction. All references to “Sections” or “Paragraph(s)”, contained in this Agreement are, unless specifically indicated otherwise, references to sections or paragraphs of this Agreement. Whenever in this Agreement the singular number is used, the same shall include the plural where appropriate (and vice versa). As used in this Agreement, the following words or phrases shall have the meanings indicated: (i) “day” means a calendar day; (ii) “including” or “include” means “including without limitation”; and (iii) “person” means any individual, corporation, partnership, joint venture, limited liability company, trust, unincorporated association, or other legal entity or form of business or governmental entity.
3.3. Business Day. A "Business Day" means any day (other than a day which is a Saturday, Sunday or legal/federal holiday) on which banks are open for business.
3.4. Governing Law. This Agreement shall be enforced, governed, and construed in all respects in accordance with the laws of the State of Texas, United States of America, without regard to the principles thereof relating to conflicts of laws.
3.5. Headings. The section headings of this Agreement are for convenience of reference only and shall not be deemed to alter or affect the meaning or interpretation of any provision hereof.
3.6. Severability. If any provision of this Agreement or the application of such provision to any person or circumstance shall be held (by a court of competent jurisdiction) to be invalid, illegal, or unenforceable under the applicable law of any jurisdiction, (i) the remainder of this Agreement or the application of such provision to other persons or circumstances or in other jurisdictions shall not be affected thereby, and (ii) such invalid, illegal, or unenforceable provision shall not affect the validity or enforceability of any other provision of this Agreement.
3.7. Non-Waiver. Waiver by BES of the breach of the terms and conditions of this Agreement shall not be construed as a waiver of any other breach.
3.8. Force Majeure. BES shall not be liable for delays in performance caused by any act of God, fire or other casualty, accident, strike, shortage of labor or materials, governmental action, industrial disturbances, pandemic, worldwide illness, epidemic/pandemic outbreak, quarantine or any other cause beyond BES’s reasonable control, and the time for BES’s performance shall be extended by the period of any such delay.
3.9. Third-Party Beneficiaries. Nothing express or implied in this Agreement is intended or shall be construed to confer upon or give any person or entity other than the Parties hereto and their respective permitted assigns any rights or remedies under of/by reason of this Agreement or the transactions contemplated hereby.
3.10. Term; Termination; Survival. If this Agreement is terminated for any or no reason, then all rights granted to you under this Agreement shall automatically revert back to BES, and the following shall survive in perpetuity: (a) all defined terms under this Agreement; (b) all rights and privileges under this Agreement which were granted to and/or accrued in favor of the BES Parties as of the date of this Agreement’s termination; (c) all payments which accrued as of the date of termination; (d) all disclaimers, limitations of liability and limitations of remedies; and (e) all representations, warranties, covenants, certifications, releases, indemnifications and promises made by you under this Agreement.
3.11. Waiver of Jury Trial and Class Action. Regardless of whether a particular dispute is subject to arbitration or litigation, and to the fullest extent permitted by law, each Party does hereby waive his/her/its right to a trial by jury, to participate as the member of a class in any purported class action or other proceeding or to name unnamed members in any purported class action or other proceedings in connection with this Agreement and the Site.
3.12. Electronic Signatures. If your acceptance of this Agreement is further evidenced by your affirmative assent to the same (e.g., by a “check the box” acknowledgment procedure), then that affirmative assent is the equivalent of your electronic signature to this Agreement. However, for the avoidance of doubt, your electronic signature is not required to evidence or facilitate your acceptance and agreement to this Agreement, as you agree that the conduct described in this Agreement as relating to your acceptance and agreement to this Agreement alone suffices.
3.13. Notice. Unless otherwise expressly stated in this Agreement, BES may give or deliver all other notices to you by means of a general notice posted on this or another page of the Site, as applicable, or by email to your email address as you may provide to BES on or through the Site, and such notices shall be deemed effective as of their stated effective dates.
3.14. Relationship. In no event shall this Agreement, the performance of a Party’s rights or obligations under this Agreement, the Site or a Party’s visit to, access of or use of the Site create any type of fiduciary, franchise, agency, employment, independent contractor, partnership or joint venture relationship between you and BES.
3.15. Submission to Jurisdiction. The Parties hereto hereby irrevocably submit first to the exclusive jurisdiction of any federal court located in Fort Worth, Texas (if federal jurisdiction exists) over any dispute arising out of or relating to this Agreement or any of the transactions contemplated hereby and each Party hereby irrevocably agrees that all claims in respect of such dispute or any suit, action proceeding related thereto shall be heard and determined in such courts. If federal jurisdiction does not exist, the Parties submit to the exclusive jurisdiction of any state court in Fort Worth, Texas. The Parties hereby irrevocably waive, to the fullest extent permitted by applicable law, any objection which they may now or hereafter have to the laying of venue of any such dispute brought in such court or any defense of inconvenient forum for the maintenance of such dispute. Each of the Parties hereto agrees that a judgment in any such dispute may be enforced in other jurisdictions by suit on the judgment or in any other manner provided by law.
Form Bill of Sale
BILL OF SALE
This Bill of Sale (“Agreement”), dated as of _________________ ____, 2020 (the “Effective Date”), is entered into by and between _______________________, a _____________________, whose address is ________________________________ ("Buyer"), and _______________________, a _____________________ [and _______________________, a _____________________] ([collectively,] “Seller”), [each] having an address at 801 Cherry Street, Suite 2100, Fort Worth, Texas 76102.
For good and valuable consideration in the amount of $________________ (the “Purchase Price”), and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Seller hereby irrevocably sells to Buyer, and Buyer hereby purchases, accepts and acquires all of Seller’s right, title, and interest in and to the goods listed in Exhibit A attached to and made a part of this Agreement for all purposes ("Goods"). Buyer shall promptly pay Seller or Seller’s designee an amount equal to the Purchase Price in immediately available funds by wire transfer on or before the Effective Date of this Agreement. Buyer has heretofore inspected the Goods and the Goods have been delivered by Seller and accepted by Buyer in their present location(s) at ________________________________________________________________; (collectively, the “Location”), as may be further specified on Exhibit A. Title and risk of loss to the Goods shall pass to the Buyer upon the Effective Date of this Agreement. Buyer shall be solely responsible for all cost, risk, and expense associated with transporting the Goods from the Location (including, without limitation, all freight charges). Buyer shall remove the Goods from the Location no later than 14 days following the Effective Date hereof (the “Removal Date”). If Buyer fails to remove the Goods from the Location on or before the Removal Date, Buyer shall pay to Seller a rental charge in the amount of $250.00 per day until the Goods are removed from the Location in accordance with this Agreement.
For the goods listed in Exhibit A, Buyer acknowledges and agrees to adhere to the following requirements for removal:
Any failure by Buyer to follow the requirements related to removal of Goods as described in this Agreement, in particular the scheduling of removal with Seller’s Yard Contact, will incur a $500.00 disruption of operations penalty per incident of removal without prior scheduling.
Any penalties incurred are due immediately via wire transfer and payment must be confirmed by Seller prior to releasing any titles owed for Goods sold.
The Purchase Price is exclusive of any and all sales, use, or excise taxes, and any other similar taxes, duties, and charges of any kind imposed by any federal, state, or local governmental entity on any amounts payable by Buyer under this Agreement, including, without limitation, any motor vehicle taxes or other assessments due upon the transfer of title of the Goods. Any such taxes, duties, and charges currently assessed or which may be assessed in the future, that are applicable to the sales made under this Agreement are for Buyer's account, and Buyer hereby agrees to pay any such taxes, duties and charges and shall indemnify, defend and hold harmless Seller in connection with same. To the greatest extent permitted by applicable law, except to the extent of the negligence or willful misconduct of Seller or its agents or employees, Buyer will indemnify, defend and hold harmless Seller and its agents, partners, directors, officers, employees and representatives against any liabilities, claims, demands, causes of action, damages, costs, expenses, losses and liabilities, including, without limitation, any property damage, personal injury, claim of lien against the Location and reasonable attorneys’ fees and expenses paid or incurred by Seller during litigation (if any), arising out of or in any manner directly or indirectly connected with (i) Buyer’s removal of the Goods from the Location, and/or (ii) Buyer’s failure to timely remove the Goods from the Location as provided in this Agreement. To the extent the Goods are titled, Seller will transfer titles to the Goods to Buyer as soon as practicable, but no later than 30 days following the Effective Date hereof.
Each of the Seller and the Buyer represents and warrants to the other that it has all necessary power and authority to enter into this Agreement and perform the actions contemplated hereby. This Agreement is executed by duly authorized officer or representative of Seller and Buyer, and constitutes a legal, valid, and binding obligation of Seller and Buyer, enforceable in accordance with the terms and conditions of this Agreement.
EXCEPT AS EXPRESSLY PROVIDED IN THIS AGREEMENT, SELLER MAKES NO EXPRESS OR IMPLIED REPRESENTATIONS OR WARRANTIES REGARDING THE GOODS, IT BEING THE INTENTION OF SELLER AND BUYER EXPRESSLY TO NEGATE AND EXCLUDE ALL WARRANTIES. WITHOUT LIMITING THE GENERALITY OF THE FOREGOING, SELLER EXPRESSLY DISCLAIMS ANY AND ALL REPRESENTATIONS, WARRANTIES, INCLUDING BUT NOT LIMITED TO ANY (a) WARRANTY OF MERCHANTABILITY; (b) WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE; (c) WARRANTY AGAINST INFRINGEMENT OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY; OR (d) WARRANTIES CREATED BY ANY AFFIRMATION OF FACT OR PROMISE OR BY ANY DESCRIPTION OF THE GOODS CONVEYED HEREUNDER, OR BY ANY SAMPLE OR MODEL THEREOF, AND ALL OTHER WARRANTIES WHATSOEVER CONTAINED IN OR CREATED BY THE TEXAS UNIFORM COMMERCIAL CODE; WHETHER EXPRESS OR IMPLIED BY LAW, COURSE OF DEALING, COURSE OF PERFORMANCE, USAGE OF TRADE OR OTHERWISE. BUYER UNDERSTANDS AND AGREES THAT BUYER IS PURCHASING THE GOODS “AS IS”, “WHERE IS” AND “WITH ALL FAULTS” AND WITH NO WARRANTIES, REPRESENTATIONS OR QUALIFICATIONS OF ANY KIND OR NATURE. Seller shall not be liable to Buyer for errors, inaccuracies or omissions with respect to the listed descriptions or quantities of the Goods described on Exhibit A.
IN NO EVENT SHALL SELLER BE LIABLE FOR ANY CONSEQUENTIAL, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR ENHANCED DAMAGES, LOST PROFITS OR REVENUES OR DIMINUTION IN VALUE, ARISING OUT OF, OR RELATING TO, AND/OR IN CONNECTION WITH ANY BREACH OF THIS AGREEMENT, REGARDLESS OF (a) WHETHER SUCH DAMAGES WERE FORESEEABLE, (b) WHETHER OR NOT SELLER WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (c) THE LEGAL OR EQUITABLE THEORY (CONTRACT, TORT OR OTHERWISE) UPON WHICH THE CLAIM IS BASED, AND (d) THE FAILURE OF ANY AGREED OR OTHER REMEDY OF ITS ESSENTIAL PURPOSE. Subject to the limitations of liability contained in this Agreement, if Seller consists of more than one person or entity, the word “Seller” shall apply to each such party, provided that each such party shall be severally (and not jointly) liable for all obligations under this Agreement.
IN NO EVENT SHALL SELLER BE LIABLE DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATED TO THE PRESENCE OF ANY CHEMICALS OR HAZARDOUS MATERIALS IN THE GOODS, INCLUDING WITHOUT LIMITATION, ANY FAILURE OF SELLER TO GIVE MORE SPECIFIC WARNING WITH RESPECT TO THE IDENTITY OR NATURE OF ANY SUCH SUBSTANCES OR THE CONSEQUENCES OF THE PRESENCE OF ANY SUCH SUBSTANCES. IN NO EVENT SHALL SELLER'S AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE PURCHASE PRICE.
This Agreement is made in and shall be governed by and construed and enforced in accordance with the laws of the State of Texas, without regard to conflicts of laws. For the convenience of the parties, this Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same document. If any provision of this Agreement shall be held invalid under any applicable laws, such invalidity shall not affect any other provision of this Agreement that can be given effect without the invalid provision, and, to this end, the provisions hereof are severable.
This Agreement, the exhibits referred to herein, and the documents delivered pursuant hereto contain the entire understanding of the parties hereto with regard to the subject matter contained herein or therein, and supersede all prior agreements or understandings between or among any of the parties hereto. This Agreement may be executed in one or more counterparts with the same effect as if each party had executed one counterpart and shall be considered one and the same document. Each party agrees that any portable document format file (.pdf), facsimile or other reproduction of its signature on any counterpart (including, without limitation, DocuSign) shall be considered equal to its original signature and fully enforceable. This Agreement shall not be amended, modified or supplemented except by a written instrument signed by an authorized representative of each of the parties hereto. The provisions of this Agreement shall be binding upon, and shall inure to the benefit of, the successors and assigns of Seller and Buyer, respectively. Wherever there is a day or time period established for performance and the day or the expiration of such time period is a Saturday, Sunday or federal holiday, then the time for performance will be automatically extended to the next business day.
The agreements and representations made by the parties to this Agreement shall survive the conveyance of the Goods. Unless and to the extent otherwise expressly provided herein, all rights and remedies provided in this Agreement are cumulative and not exclusive, and the exercise by either party of any right or remedy does not preclude the exercise of any other rights or remedies that may now or subsequently be available at law, in equity, by statute, in any other agreement between the parties or otherwise. Except as otherwise expressly contemplated herein, nothing in this Agreement, express or implied, shall be deemed to confer upon any other person any rights or remedies under, or by reason of, this Agreement.
[Signature Page and Exhibit A to be added]