All items, property or product offered for sale ("Items", "Property", "Product") are offered by
TMC Auction & Realty (“Agent”), as an agent of the Property owner (“Seller”), subject to the
following general terms of sale (“General Terms of Sale”), which, combined with any
supplemental or revised terms posted in materials, on the web or as announced by Agent at the
time of sale (“Sale Specific Terms”), make-up the complete and entire Terms of Sale (“Terms of
Sale”) that govern any sale by Agent to a Buyer. References to “Landlord(s)” throughout these
terms shall be defined to include the property owners of each sale location upon which Items are
located (“Sale Site”).
1. Registration, Deposit and Payments.
All persons participating in the Sale, whether or not successful at purchasing Property, (referred
to as a “Bidder” or “Buyer”) must register to become eligible to participate in the Sale, and must
provide complete and accurate information as required by Agent. This information may be used
as necessary to ensure Buyer’s fulfillment of its obligations as defined herein. Information
obtained at the time of registration will also opt Buyer into Agent’s sale notification system,
which may be opted out by following the instructions at the bottom of each Sale notice. Buyer’s
information will not be sold, or otherwise shared with other companies, with the exception of the
Seller and, in the case of a legal sale, to those parties as may be dictated by the rules governing
the sale process.
Registration Deposit
In order to qualify to bid, Buyer must provide Agent with an initial deposit of 25% of Buyer’s
anticipated purchases, but in no event less than the amount posted in the Sale Specific Terms
(“Initial Deposit”). The initial deposit must be provided in the form of cash, cashiers’ check (made
payable to (“TMC Auction & Realty”), wire transfer or by a check accompanied by bank letter of
guarantee deemed acceptable by Agent, unless posted otherwise in the Sale Specific Terms
(“Acceptable Payment Forms”). Initial Deposits will be refunded upon request and provision to
Agent of Buyer's deposit receipt, provided no purchases of Items are made. In the event Buyer
fails to pay the entire purchase price by the payment deadline and/or remove all items in the
timeframes allotted, the 25% deposit will become non-refundable and buyer may be charged
additional fees as liquidated damages. Deposit refunds must be claimed within 30 days of the
date of the Sale with a proper Deposit receipt, or otherwise shall be deemed as forfeited.
International buyers, please see sale specific terms for deposit requirements.
Buyers participating online must provide the Initial Deposit 24 hours prior to the Sale. TMC
Auction may not be able to respond to registration requests on the day of sale. Credit
cards may be accepted for the Initial Deposit from online Buyers up to and during the sale on
the following conditions: 1) Buyer grants Agent the irrevocable right to authorize Buyer’s credit
card for the minimum deposit and such subsequent amounts necessary to secure Buyer’s
purchases; 2) Buyer grants Agent the irrevocable right to capture the authorizations on Buyer’s
credit card to secure Buyer’s purchases; 3) Buyers acknowledges that a credit card
authorization shall not be sufficient to secure purchases over $10,000, and therefore shall
provide any additional deposit necessary in one of the other Acceptable Payment Forms 24
hours prior to the Sale; 4) Buyer acknowledges and accepts that credit card authorizations are
subject to a 3-7 day hold on funds with Buyer’s credit card company, which hold is not under
the control of Agent to release.
Upon Buyers’ successful award of bid, Buyer shall be immediately responsible for 25% of their
total purchased Items as a non-refundable deposit (the “Deposit”), in one of the Acceptable
Payment Forms. Buyers who have provided a credit card for the initial deposit hereby authorize
Agent to charge their credit card for the 25% Deposit. Agent’s election not to collect the 25%
Deposit, pending full payment, does not waive Buyer’s obligation to such amount in the event of
default, nor does it waive Agent’s right to process Buyer’s credit card for the 25% Deposit at a
later date.
Unless posted otherwise in the Sale Specific Terms, Payment of the Balance Due (“Final
Payment”) is required by 12:00 noon on the day following the Sale.
Final payments must be made in one of the Acceptable Payment Forms or, if allowed per the
Sale Specific Terms, by Visa or MasterCard. Unless alternative arrangements have been
acknowledged and accepted by Agent prior to the conclusion of the Sale, Online Buyers hereby
authorize Agent to process the payment for the balance of their purchased Items using the credit
card provided. However, Buyers spending in excess of $10,000 must provide an alternate
Acceptable Payment Form for the portion of Buyer’s purchases exceeding $10,000. Buyers
paying by credit card hereby waive their rights to chargeback.
All Deposits and payments must be made in U.S. Dollars. IRS regulations require us to report all
cash payments, as defined by the IRS, exceeding $10,000 from any one purchaser for one
transaction or two or more related transactions. When accepted, business checks must be
accompanied by a bank letter, drawn on a bank which is acceptable to the Agent, which states
that the bank will guarantee payment up to a specified amount (this letter must contain the
words “guarantee payment”). Buyer authorizes Agent to complete and deposit signed checks
provided to Agent without the dollar amount.
2. Buyer’s Premium. A Buyer’s premium will be added to the price of each item purchased. See
each sale’s listing on the tmcauction.com website for the specific buyers’ premium rate to be
charged. Buyers’ premium rates may vary based on method of purchase (i.e. live vs. online).
3. Taxes. When required by law, Agent shall collect and Buyer shall pay all sales/use taxes or
other applicable taxes, which will be added to the purchase price, including the Buyers’
premium, on all purchased items. PRIOR TO THE CLOSE OF THE SALE, Buyers who purchase
for resale must fax or email to Agent documentation to prove their exemption status, including,
but not limited to, their resale permit and a completed and signed resale certificate form, without
which all applicable taxes will be charged by Agent. Buyers purchasing from out-of-state are
required to provide a Bill of Lading proving that the purchased Items are being transported
directly out-of-state by a common carrier. Sales/use taxes will be refunded in full to Buyers who
prove their qualified exemptions as described above at the time documentation deemed
acceptable by Agent is received by Agent, provided such information is submitted within 7 days
of the Sale closing. TMC Auction reserves the right to reject any claim for sales tax exemption
that it believes to be insufficient to satisfy the scrutiny of the applicable taxing authority. Buyer’s
obligation to make payment, in full, for all items purchased, is not contingent upon or subject to
any determination by TMC Auction regarding Buyer’s sales/use tax exemption status or the
timely notice in which Buyer’s sales/use tax exemption status is provided to the Buyer.
4. Bidding. Agent reserves the right to add to, group, withdraw, re-catalog items in all Sales, or
to sell in any order Agent deems suitable, as well as adjust minimum bids and/or reserve prices
and extend or shorten closing times. In the event there is a dispute between two or more claims
of entitlement as the successful bidder, Agent reserves the right to resell the item(s) in dispute.
Agent reserves the right to hold all bulk bids in abeyance and at the conclusion of the sale or
after the offering of a specific item, to accept either the bulk bid or the aggregate of the
individual bids received during the sale, whichever is higher. Agent reserves the right to reject
any bid which is only a fractional advance over the preceding bid or which is not commensurate
with the value of the lot. Some of the items offered may be subject to a reserve price (minimum
allowable selling price).
Buyers participating online are responsible to confirm submittal of online bids for accuracy.
When offered, Internet bidding is provided via a 3rd Party Bidding System. Under no
circumstances shall Buyer hold Agent liable for system failures resulting in Buyer’s bid not being
properly submitted. All bidding and subsequent transactions shall be in U.S. dollars.
5. Representations. Agent makes every effort to provide accurate information about the items
being sold; however in no other way is accuracy of same guaranteed by Agent. Neither Seller
nor Agent will assume responsibility for Buyer’s bidding errors. Buyers shall be deemed to have
relied entirely upon their own inspections and investigations. Buyers are recommended to
inspect all items. When provided, descriptions, photos, conditions, dimensions, etc. are offered
as a guide only. In certain cases, a photo of like product may be used to represent several
different lots. Photos may also capture nearby items not listed as part of the lot. Agent shall not
be held responsible for such errors as posting the wrong photo, description, condition,
dimension, etc. for an item. When in doubt, please physically inspect or bid accordingly.
6. Vehicle Titles. Where applicable, vehicle title documents, which are in the possession of the
Auctioneer, will be provided to the buyer within five (5) business days following the sale, or as
soon thereafter as such documents become available.
7. All Sales are Final. A successful bid at Auction, whether live or online, constitutes
acceptance of the Terms of Sale and is a legally binding contract of sale. All sales are final.
There will be no refunds, returns or exchanges.
8. Removal of Items Purchased. See Sale specific information regarding removal dates,
deadlines and conditions. No checkout will be permitted during the Sale. Checkout will be
scheduled by appointment or specified check times only. All Items purchased must be paid in
full before an appointment can be scheduled or Items will be released from the premises. Buyers
without an appointment will be required to wait for the next available checkout clerk. Buyer is
solely responsible to pickup its purchased Items within the timeframes provided. Buyer must
provide its invoice at time of pickup. All Items must be removed by Buyer at its own risk and
expense, and in compliance with all applicable laws, regulations or ordinances. Quantities
should be checked by Buyer or their Agent before removal of items. No allowances will be made
for claims or shortages once Items have been removed.
Buyer is responsible to arrange to have its purchased Items packed, insured, rigged, moved or
shipped, and shall accept full responsibility for all labor, materials and costs necessary to
complete its removal, as well as any damages, losses, acts or omissions related to Buyer's
removal of purchased Items from the Sale Site. Buyer represents that it is familiar with the
Item(s) it is purchasing, as well as their condition, location, contents, etc., and is purchasing
such Item(s) with a knowledge and understanding of the removal requirements of the Item(s),
including any regulations related to the dismantling, rigging or moving of the Item(s). In the event
Agent assists Buyer with any part of the removal process, it does so as a courtesy, and shall
assume no responsibility for damages, losses, acts or omissions of any packer, carrier, rigger or
mover, whether or not such packer, carrier, rigger or mover is recommended by Agent. Agent is
under no obligation to provide materials or other services, and in no event will be liable for
damage to Buyer's purchased Items regardless of cause. In the event buyer uses a third party to
remove their Item(s), buyer is responsible to coordinate such removal within the posted
checkout times for each specific sale with their 3rd party service providers. Buyers are also
responsible to provide their 3rd party service providers with Agent Release Authorizations. An
‘Agent Release Authorization’ form is available on the TMC site for use when retaining any 3rd
party to pickup purchases.
Agent requires Certificates of Insurance from any purchaser or their agents that will be removing
items which require rigging, moving, dismantling, cutting, grinding, purging, cutting or
disconnecting electrical or plumbing utilities, use of any type of vehicle or material handling
equipment (i.e. forklift, crane or similar), or based on special circumstances as determined
exclusively by Agent. All Certificates of Insurance, must be properly completed, list all loss
payees, as required by Agent and must evidence general liability insurance at a minimum of $5
million per occurrence, auto liability at a minimum of $1 million per occurrence and workers
compensation insurance at statutory limits or such other limits as may be required for a
specific sale.
In the event the sale involves the removal of installed items, Buyer acknowledges that they are
responsible for and entitled to remove the item as described to first point of utility disconnect.
Further, Buyer acknowledges that they are purchasing the item and its contents, but should not
assume it is entitled to any controls, in wall wiring, cables, connectors or down line components,
unless specifically stated so in the lot description. In the event the removal of an item results in
damage to the Sale Site and/or the creation of trash and debris on or around the Sale Site,
Buyer shall be responsible for associated repair and clean up of the Sale Site. This includes, but
is not limited to, patching of an exterior wall or roof to reasonable standards when the removal of
the item results in a hole.
9. Export. Buyer is responsible to obtain proper licenses, where required for the export of any
items that are considered controlled commodities and which are restricted from export outside
of the United States without proper export licenses. Buyer further agrees to fully comply with all
applicable export control laws, regulations, rules, and orders of the United States and all other
applicable jurisdictions, and will not export, re-export, release, or transfer (collectively "export"),
directly or indirectly, any Equipment, or enter into any transactions, for any proscribed end-use,
or to or with any proscribed country, entity, or person (wherever located), including but not
limited to those entities and persons listed on the U.S. Government's Denied Persons List,
Unverified List, Entity List, Debarred Parties List or Specially Designated Nationals List, without
first obtaining at its own expense written authorization from the U.S. Government. Agent will
have the right to cancel any sale at any time in the event it determines, in its sole discretion, that
the sale does or may violate applicable U.S. export control or similar laws.
10. Failure to Remove Purchased Items. In the event Items (including portions of a lot) are not
removed by Buyer in the timeframes allotted, the Items shall be deemed abandoned and subject
to the following actions without any further notice to Buyer: (i) Buyer may lose any right, title or
interest Buyer has acquired in the Item(s); (ii) Agent, Seller or Landlord, in their sole discretion,
may reposes the Items and retain title for their own interests; and/or (iii) Agent, Seller or Landlord
may arrange for the Items to be discarded, removed, stored or resold, and shall be entitled to
any costs associated with these actions and/or any other charges, fees, and expenses incurred
as a result of Buyer's failure, including all attorney fees and costs incurred by Agent, Seller
and/or Landlord to enforce Buyer’s obligations hereunder.
11. Failure to Pay. In the event Buyer fails to pay the entire purchase price by the payment
deadline, Agent may retain and/or recover, upon demand, from Buyer the required Deposit per
Paragraph 1 as liquidated damages for such failure. In addition thereto, Agent may, at its
discretion, either resell Buyer's items at a public or private sale without further notice to Buyer
and/or dispose of the item at Buyer’s sole expense. Any difference between the bid price for an
item by the defaulting Buyer and the price received by Agent at a resale shall be paid to Agent
by the defaulting Buyer. In addition, a defaulting Buyer shall be deemed to have granted Agent a
security interest in the item, which Agent shall retain as collateral security for Buyer’s obligation
to Agent.
12. Non-Delivery. Until such time as purchased items are removed from the premises by the
Buyer, Agent shall have the right to cancel or void the sale of any such items purchased by
Buyer. Agent shall have no liability to Buyer due to the non-delivery of any purchased item other
than the return of Buyer’s deposit or payment for a canceled or voided sale item. No claim of
any kind for purchased items, whether or not based on negligence, shall be greater in amount
than the purchase price paid by Buyer.
13. Absence of Warranties. The condition of the items being offered varies. The Buyer
understands and agrees: (1) that any description or sample of the items given or furnished by
Agent is solely for identification, and does not create any warranty expressed or implied, that the
item actually conforms to such description or sample, (2) that Buyer or agent on Buyer’s behalf
has inspected or has had the opportunity to inspect, all of the items upon which Buyer will be
bidding and/or does purchase, (3) that all items are purchased and
accepted by Buyer “AS IS”, “WHERE IS” and “WITH ALL FAULTS”. AGENT MAKES NO
REPRESENTATIONS, WARRANTIES OR GUARANTEES WHATSOEVER WHETHER WRITTEN,
ORAL OR IMPLIED AS TO QUALITY, QUANTITY, CONDITION, USEABILITY, SALEABILITY,
WEIGHT, MEASUREMENT, DATE OF EXPIRATION YEAR, MODEL, MECHANICAL CONDITION,
PERFORMANCE, OR OTHER SPECIFICATIONS, INCLUDING ANY WARRANTY OF
MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE OR WARRANTY AGAINST
PATENT, TRADEMARK, COPYRIGHT OR TRADE SECRET INFRINGEMENT, (4) THERE IS NO
WARRANTY RELATING TO QUIET ENJOYMENT, OR THE LIKE IN THE DISPOSITION OF
ANY OF THE ASSETS." Buyers are hereby advised that the Agent and Seller have no
knowledge with respect to, and have no obligation to investigate, the merchantability or fitness
for any particular purpose or use of any of the Assets. (5) in the event there are manufacturer
warranties in effect for the item purchased, Buyer must make all claims hereunder directly with
the provider of the warranty. NO WARRANTY OR REPAIR PROGRAM FOR THE ASSETS IS
BEING OFFERED AS PART OF THE SALE. No statement or statements of any other paragraph
herein shall be construed to in any way contradict the provisions of this paragraph.
14. Appropriate Rights and Clearances Not Included. All items are sold by Agent without any
corresponding grant of rights or clearance from any third parties. Since some of the items may, if
commercially used, infringe third party rights, Buyer acknowledges and agrees that it shall be
solely responsible for acquiring all appropriate rights and clearances from all third parties. Such
rights and clearances include, but are not limited to, third party copyright, trademark, patent,
trade secret, and privacy rights.
15. Buyer’s Responsibility. Upon the Agent's declaration of an item as "Sold" and Buyer’s full
payment, title to the offered lot shall pass to the Buyer, who shall forthwith assume full risk and
responsibility for the lot. Dependent upon the Item(s) value, Buyer may consider taking steps to
have the Item(s) insured as of such transfer of title Buyer is solely responsible to provide any
personnel, equipment or material needed to pick up items purchased and shall assume all
responsibility for the removal of any item purchased at the sale and any and all risks associated
with such removal including, without limitation, the responsibility for providing licensed, qualified
and bonded professionals to ensure proper water, gas and/or power disconnection, and to leave
the Sale Site in a safe condition, undamaged by the removal process. Agent retains the right to
prohibit and stop the ongoing removal of any item, by a Buyer, which Agent, at its’ sole
discretion, determines is not being removed in a professional and reasonable manner.
16. Hazardous Materials. Buyer agrees that in the event any purchased Items contain
Hazardous Materials1 , Buyer shall be responsible for disposing of such Hazardous Materials.
Buyer agrees to provide Agent with evidence that Buyer or its representatives are licensed for
such removal and shall comply with all applicable local, state and/or federal rules, laws and
regulations. Agent, its agents or representatives shall not be responsible for its containment,
storage or removal. Buyer shall indemnify, defend and hold Agent harmless with respect to all
costs, expenses, liabilities, damages or claims, including attorneys’ fees, asserted by any
person, entity or governmental agency or against Agent directly or indirectly relating in any
manner to any hazardous or toxic materials which may be regulated under applicable laws, rules
or regulations and which relate in any way to the dismantling and removal of any purchased
item. Agent shall in no event be obligated to sell any item which contains any hazardous
materials or to incur any costs or expenses relating in any manner, either directly or indirectly to
any hazardous materials. Buyer shall be responsible for any and all remediation costs relating to
the dismantling and removal of any purchased item containing hazardous materials, whether or
not such hazardous materials were known to Buyer prior to Buyer’s purchase, as Buyer is expected to have conducted all necessary due diligence to
assess and determine the presence of hazardous materials within purchased items. Buyer will
not bring any Hazardous Materials onto the premises.
17. Acts of Others. All persons entering the Auction premises acknowledge that an auction site
is a potentially dangerous place, which includes the operation of equipment and access to
certain lots and areas that may be inherently dangerous. Every person, which includes, but is not
limited to the Buyer, as well as Buyer’s representatives, agents and associates, who enter the
auction site, before, during and after the auction sale shall be deemed to be there at their own
risk with notice of the condition of the premises, the activities on the premises and the conduct
of any third parties and shall so advise their agents, employees and associates. No person shall
have any claim against Auctioneer, Seller or Landlords, or any of their respective agents,
employees or principals at any Sale Site, for any injuries sustained nor for damages to or loss to
persons or property which may occur from any cause whatsoever. Auctioneer, Seller and
Landlords, as well as their agents, employees or representatives, shall not be liable by reason of
any defect in or about the condition of the premises on which the auction is held. Buyer
specifically releases Auctioneer, Seller and Landlords, as well as their agents and
representatives from all liability thereof.
18. Limits of Liability. In no event shall Agent’s liability to Buyer exceed the purchase price
actually paid for an individual item or lot. A Buyer’s claim shall be limited to the amount paid for
the merchandise, and shall not extend to any obligation, risk, liability, right, claim, remedy for
loss of use, revenue or profit, liability of Buyer to any third party, personal injury, or any other
direct, indirect, incidental or consequential damages. Buyer further acknowledges that each item
it purchases at the sale represents a separate transaction, and that no one transaction shall be
conditioned upon another transaction. Buyer hereby holds Agent, Seller and Landlords harmless
from: (1) the acts or omission of any party who provided any items to Agent for sale, (2) the acts
or omission of the owner or Lessor of the Sale Site or the site where the Items are stored, (3) any
claims Buyer may have against Agent, Seller, Landlords, or any former owner of the property
being sold, (4) Buyer’s failure in any way to properly inspect items and/or fulfill its obligations per
the terms and conditions of the sale, as indicated within this document or as announced by
Agent at the time of sale. In the event Buyer provides a deposit or payment using a Credit Card,
Buyer acknowledges that it is purchasing under the As-Is, Where-Is terms of the Sale and that
Buyer shall waive all rights of charge back based on any claims of misrepresentation, nondelivery
or non-performance.
19. Assignment of Rights. Buyer acknowledges that its failure to comply with the Terms of Sale
may result in damages incurred by Agent, Seller and/or Landlords (“Damaged Party”). Buyer
hereby authorizes Agent to assign Agent’s rights under this Agreement to any Damaged Party,
so that the Damaged Party may pursue Buyer directly to recover losses incurred.
20. Right of Removal. Agent reserves the right to remove any person from the Sale Site,
as well as to refuse an individual’s bid, whether offered live, by proxy or by Internet.
Agent further reserves the right to deny registration or auction participation to any party,
and may revoke such privilege at any time.
21. Indemnification. Buyer shall indemnify, hold harmless and defend Agent, Seller and
Landlords, from and against any and all losses, damages, liabilities and claims, including
attorney fees, costs and expenses arising out of based upon or resulting from: (1) failure to
secure all safety equipment and to meet all applicable government safety standards in removing
items purchased or used by Buyer, (2) failure to comply with safety instructions issued to Buyer
from Agent, (3) any act or omission of Agent, Seller, Landlords or their respective agents,
representatives or employees, relating to or affecting the items bid on or purchased by Buyer, (4)
the claim of any third party claiming or challenging title to any items purchased by Buyer or
claiming infringement of any proprietary interest, (5) the claim of any person resulting from Agent
offering for sale or selling the items purchased by Buyer, (6) any injury to Buyer or any other
person or property of any type whatsoever caused during the inspection, dismantling, removing
or transporting of items purchased by Buyer.
22. Bidder’s Number. The bidder’s number is nontransferable. All bids made using the bid
number will be the responsibility of Buyer.
23. Governing Law. The validity, construction and performance of these Terms of Sale shall be
governed by the substantive law of the State of California as applied to agreements among
California residents entered into and to be performed entirely within California, without giving
effect to its conflict of laws provisions. The prevailing party shall be entitled to reimbursement by
the losing party of all statutory and non-statutory costs and expenses, including, but not limited
to, all of its attorney fees.
24. Severability. If any provision of these Terms of Sale is deemed to be illegal, invalid, or
unenforceable, the legality, validity, and enforceability of the remaining parts shall not be
affected.
1: As used herein, “Hazardous Materials” means any toxic or hazardous substance, material or waste which is regulated by any local or
US governmental authority, including, but not limited to, any material or substance whether in the form of a solid, liquid, gas or any
other form whatsoever, which by any Governmental Requirements either requires special handling in its use, transportation,
generation, collection, storage, handling, treatment or disposal, or is defined as “hazardous” or harmful to the environment.