1. YOUR AGREEMENT
2. USE OF THE AUCTION ACCESS SYSTEM
Membership Eligibility. Only licensed dealers and other individuals or businesses that have been approved by us and their authorized representatives are eligible to use the AuctionACCESS System.
Registration. To use the AuctionACCESS System, you must register with us by completing a registration application form and providing other information as requested. You will provide true, accurate, current, and complete information about yourself during the registration process and will promptly update this information as necessary. You authorize us to pull and share, as we deem appropriate, credit reports for your dealership, as well as consumer reports (including credit scores) for your owners, principals, and other designated representatives. You authorize us to periodically verify, at our discretion, bank information that you provide to us and to share the results with our customers. This verification may include electronically confirming a routing or bank number, account holder, account status, return activity, etc. and may also include manually contacting your bank to confirm such information. You understand that we, our affiliate Auction Insurance Agency and our customers that subscribe to the AuctionACCESS System (“Customers”) will obtain, store, and use the information you provide or otherwise gathered by us in regards to your account, including financial and credit information. You understand that we may not verify this information and disclose the information on an “as is” basis, and we will not be liable for any errors or omissions in the information. You also understand that Customers are not limited to businesses engaged in the automobile dealer or auction industries, but may also include other businesses providing goods or services to these industries. You release us, our affiliate Auction Insurance Agency, and our Customers, as well as representatives of the foregoing, from any and all claims, demands, damages, or expenses arising out of our storage, dissemination, or use of the information you provide to us. We reserve the right to deny membership in the AuctionACCESS System to any person or entity in our sole discretion.
Card, ID Number, Password, and Account. Subject to our continuing discretion, we issue a company ID number to each company authorized to use the AuctionACCESS System and a personal ID number to each individual authorized by you to use the System and transact on your account. These ID numbers are our trade secrets, and neither you nor your representatives may disclose them to anyone other than Customers with whom you are registered. We may also issue AuctionACCESS cards to any authorized individuals. You alone are authorized to use your AuctionACCESS card and ID numbers and agree not to allow anyone else to use them. You are responsible for maintaining the security of your card and the confidentiality of your ID numbers, username, and password, and are fully responsible for all activities that occur under your membership. If you provide your card, ID numbers, username, or password to an unauthorized person, we may suspend or terminate your membership privileges. You agree to immediately notify us of any unauthorized use of your card, ID numbers, username, or password, or any other breach of security. You may not trade, sell, or otherwise transfer your membership or any membership privileges to another party by any means, including online auctions or forums. Neither we nor our Customers are liable for any loss or damage arising from your failure to comply with this section.
Dealer Authorization/Removal of an Individual. You may authorize and register an individual to represent you in various capacities by printing and completing the Dealer Authorization Letter (“DAL” or “authorization”) form on our website, or through AuctionACCESS.com, AuctionACCESS Express, AuctionACCESS Direct, or AuctionACCESS Mobile. Upon our receipt and approval of an authorization, you acknowledge and agree to the following:
- The capacities in which in which you authorize an individual representative apply to dealings with us and with all Customers where you are registered to do business, subject to each Customer’s right to reject that authorization at any time for any reason.
- The authorization will be valid until you provide written notice of termination as set forth below; and even then, will continue to apply to all transactions conducted prior to termination.
- The most recent authorization accepted by us will replace any prior authorization(s) for that individual from the date of most recent authorization forward. If an authorized individual is designated to the capacity of “Representative,” “Owner,” or “Officer or Authorized Signatory,” you agree that the individual may buy and sell automobiles for you and execute company checks, drafts, certificates of title, and any other necessary instruments or documents on your behalf at/with any Customer, including those where you are registered to do business. You guarantee performance of all obligations incurred by such an authorized individual under the DAL. This guaranty includes but is not limited to losses from dishonored checks or drafts, defective titles, and false or inaccurate Odometer Mileage Statements. You will indemnify and hold harmless Customers, AutoTec, LLC and its affiliates, and the officers, directors, employees, and agents of each, against any liability, loss, damages (including punitive damages), claim, settlement payment, cost, expense, award, judgment, fee, or other charge, including reasonable attorneys’ fees, arising out of or relating to the authorized Individual’s actions, as well as any expense incurred in attempting to collect such losses, including attorney fees.
Use of the AuctionACCESS System is open only to licensed dealers and their business associates. You may authorize and register only those individuals who are bona fide employees or contractors with your business. Retail buyers or others not affiliated with your business are not eligible to use the System. By submitting an authorization for an individual, you also certify that the individual is affiliated with your business and is eligible to use the System. We reserve the right to immediately terminate any authorization obtained for ineligible persons. We also reserve the right to terminate your AuctionACCESS membership if you authorize a person who is not eligible to use the System under this section.
You may terminate an authorization by printing and completing the Dealer Removal Letter (“DRL” or “removal”) form on our website, or through AuctionACCESS Direct, AuctionACCESS Express, or AuctionACCESS Mobile. Such removal will be effective within one (1) business day following our receipt and processing of the DRL.
Compliance with Law. You agree to comply with all laws, regulations, and rules that apply to your use of the AuctionACCESS System and/or the Customer privileges it accords you wherever you are located.
Compliance with Customer Policies. You agree to comply with all Customer policies, procedures, terms, and conditions and to conduct your business with our Customers in a fair and ethical manner. You recognize the AuctionACCESS System and access to our Customers is a privilege and not a right, and that we may communicate with any of our Customers in terminating, suspending, or otherwise reviewing that privilege.
3. DISCLAIMER OF WARRANTIES
Your use of the AuctionACCESS System, including any reliance upon any of information in the System, is at your sole risk. You assume all risk and liability arising from your use of the System, including the risk of breach in the security of the communications or transactions you conduct with us or our Customers. We disclaim any responsibility or liability for the accuracy, completeness, reliability, or availability of information accessible through the System.
THE AUCTIONACCESS SYSTEM IS “AS IS” WITHOUT WARRANTY OF ANY KIND. WE MAKE NO WARRANTY AS TO THE USE OR THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE AUCTIONACCESS SYSTEM NOT EXPRESSLY STATED IN THIS AGREEMENT, AND DO NOT WARRANT THAT THE OPERATION OF THE SYSTEM WILL BE UNINTERRUPTED OR ERROR FREE. NO OTHER WARRANTY IS EXPRESSED AND NONE WILL BE IMPLIED, INCLUDING WARRANTY OF MERCHANTABILITY OR WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE.
4. LIMITATION OF LIABILITY
NEITHER WE NOR OUR CUSTOMERS WILL BE LIABLE OR OBLIGATED IN ANY MANNER FOR ANY EXEMPLARY, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) ARISING OUT OF OR RELATING TO USE OF THE AUCTIONACCESS SYSTEM OR TO THIS AGREEMENT REGARDLESS OF THE FORUM OR FORM OF ACTION, WHETHER IN CONTRACT, TORT, NEGLIGENCE, STRICT PRODUCT LIABILITY, OR OTHERWISE, WHETHER BASED ON TORT OR BREACH OF CONTRACT CLAIMS, OR ON ANY OTHER BASIS, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Your AuctionACCESS membership will continue until terminated by either you or by us. You may terminate that membership at any time by submitting a written termination letter to us, which will be effective the business day following our receipt and acceptance; provided that you will remain responsible for any transactions conducted on your account prior to confirmed receipt of your termination by us. We may, with or without cause, immediately terminate your AuctionACCESS membership and access to the AuctionACCESS System without prior notice. Without limiting the foregoing, we may terminate your membership for any of the following: (a) breach or violation of this Agreement or any other incorporated agreement or guideline, (b) request by law enforcement or other government or judicial authority, (c) request by you to terminate your membership, (d) unexpected technical issue or problem, (e) your failure to renew your membership (if requested by us); or (f) your failure to follow policies or procedures of Customers or other complaints from Customers about you. Termination of your AuctionACCESS membership means you will no longer have access to the AuctionACCESS System. We will not be liable to you or any third-party for termination of your account or access to the AuctionACCESS System. Any section of this Agreement that might reasonably be deemed to survive termination will survive termination of this Agreement.
6. SAFETY AND ASSUMPTION OF RISK
Our Customers operate auto auctions and other facilities that are busy with many vehicles and people moving around their private premises at all times, particularly during sales events. You agree to obey all signs posted by our Customers at their facilities and to follow the instructions of our Customers’ personnel, particularly as they relate to safety and security issues. You also agree to use extreme care while on ours or any Customer’s premises to avoid injury to yourself and others, both in moving vehicles on and off of the premises and in traversing any sale lanes, parking lots, and offices on foot or otherwise. By entering ours or our Customers’ private premises, you assume the risk of injury and will indemnify and defend us, our Customers, and our respective personnel, under section 7 below, for any injuries you or your agents suffer or cause.
You will indemnify and defend us, our corporate affiliates, our Customers, and the officers, directors, employees, and agents of each against any third-party liability, loss, damages (including punitive damages), claim, settlement payment, cost, expense, award, judgment, fee, or other charge, including reasonable attorneys’ fees, arising out of or relating to (i) your failure to comply with this Agreement; (2) the inaccuracy of any information you provide to us, including information you provide during the registration process; (3) your use of the AuctionACCESS System; and (4) your failure to follow the policies and procedures of our Customers.
The trademarks, logos, service marks, and trade names (“Trademarks”) displayed in the AuctionACCESS System or on material available through the System are registered or unregistered Trademarks of AutoTec and others and may not be used unless authorized by the trademark owner. All Trademarks not owned by us that appear in the AuctionACCESS System or on material available through System, if any, are the property of their respective owners. Your AuctionACCESS membership may not be construed as granting, by implication, estoppel, or otherwise, any license or right to use any Trademark displayed in the AuctionACCESS System or on material available through the System without our written permission or that of the third party owner. We will aggressively enforce our Trademark rights to the fullest extent of the law, including the seeking of criminal prosecution. We may suspend or terminate your membership privileges for your breach of this (or any other) section.
9. MEDIATION; ARBITRATION
Any controversy or claim, whether based on contract, tort, strict liability, misrepresentation, or any other legal theory, related directly or indirectly to this Agreement that cannot be settled by good faith negotiation between the parties, will be submitted to non-binding mediation. If complete agreement cannot be reached within 30 days after submission to mediation, any remaining issues will be resolved by binding arbitration conducted by a single arbitrator who is knowledgeable in commercial matters. The arbitrator’s decision and award will be final and binding and may be entered in any court of competent jurisdiction. The arbitrator will not have the authority to modify or expand any of the provisions of this Agreement. The mediation or arbitration will be conducted in Birmingham, Alabama under the rules of the alternative dispute resolution (ADR) firm selected by the parties. If the parties are unable to agree to an ADR firm, the mediation/arbitration will be conducted under the rules and supervision of the American Arbitration Association (AAA). Each party will (i) bear its own attorney fees associated with the mediation/arbitration, and (ii) pay all other costs and expenses of the mediation/arbitration in accordance with the rules of the selected ADR firm.
Choice of Law. The laws of the State of Alabama govern this Agreement, including, without limitation, its validity, interpretation, construction, performance, and enforcement. Each party to this Agreement consents to the exclusive jurisdiction of federal courts sitting in the Northern District of Alabama or any court of the State of Alabama sitting in Birmingham, Alabama
Assignment and Delegation. You may not assign any of your rights under this Agreement. All assignments in violation of this section are prohibited, whether they are voluntary or involuntary, by merger, consolidation, dissolution, operation of law, or any other manner. Any purported assignment of rights or delegation of performance in violation of this section is void. We may freely assign or delegate all our rights and obligations under this Agreement without notice.
Merger. This Agreement constitutes the final agreement between you and us. It is the complete and exclusive expression of the agreement between you and us on the matters contained herein. All prior and contemporaneous negotiations and agreements between the parties on the matters contained in this Agreement are expressly merged into and superseded by this Agreement. In entering into this Agreement, you agree that you have not relied upon any statement, representation, warranty, or agreement made by us except for those expressly contained in this Agreement.
Third-Party Beneficiaries. Our Customers are third-party beneficiaries of this Agreement. At their election, and in their sole discretion, you agree that each of our subscribing Customers may avail itself of any provision or protection in this Agreement. However, this Agreement is a supplement to, and not a replacement for or modification of, any agreement that you may have with a Customer, or any policies and procedures of a Customer, as such Customers may amend from time to time.
Waiver. Our failure or delay in exercising any right or remedy or in requiring the satisfaction of any condition under this Agreement will not operate as a waiver or estoppel of any right, remedy, or condition. A waiver made on one occasion is effective only in that instance and only for the purpose that it is given, and is not to be construed as a waiver on any future occasion.
E-Signature. Your electronic signature or acknowledgement, or that of any authorized representative, in the form of an email, online click-through, or otherwise, of this and any other agreement with us or with any Customer is enforceable to the same extent as a physical signature.
Severability. If any provision of this Agreement is determined to be invalid, illegal, or unenforceable, the remaining provisions of this Agreement remain in full force.
Force Majeure. Any delay or failure by us to perform our obligations under this Agreement will be excused to the extent that it is caused by an event beyond our reasonable control, such as acts of God, actions by governmental authority (whether valid or invalid), fires, floods, weather, explosions, riots, natural disasters, wars, sabotage, or labor problems that occur on an industry-wide, region-wide, or nationwide basis.
(Rev. 9/24/2016) © Copyright 2004-2016 AutoTec, LLC. All rights reserved.