General Terms & Conditions
Our products and services, including, without limitation, all auctions, our website and our mobile applications (collectively, the “Services”), are governed by the following General Terms and Conditions (the “General Terms”). By using any of our Services, including, without limitation, participating or registering to participate in an auction, setting up an account, using the website, or using any of our mobile applications, you are agreeing to be bound by these General Terms. These General Terms apply in addition to any applicable Auction Terms (Collectively, this “Agreement”). As used in these General Terms, “you” and “your” refer to the individual or legal entity that uses or accesses any of our Services, and “Nicholls Auction” and “we” and “our” refer to Nicholls Auction Marketing Group, Inc.
Auctioneer’s Authority on Bidding Procedures and Bidding
Bidding Procedures: Open and verbal. Announcements made on the day of the auction will take precedence over all printed material or other oral statements made. (1) Method, order of sale, and bidding increments shall be at the sole discretion of the auctioneer. (2) The auctioneer reserves the right to delete or add additional properties at this discretion. (3) Nicholls Auction may act to protect the seller’s reserve, as an agent of the seller, by bidding on behalf of the seller. The auctioneer has the authority, at his or her sole and absolute discretion, to deviate from, change, alter, or modify the bidding procedures and conduct of the auction at any time including after commencement of the auction.
Bidding: All bidding is open to the public without regard to race, color, sex, religion, or national origin. As used in these General Terms, the term the “Final Bid” means the highest bid acknowledged by the auctioneer, and the term “Purchase Price” means the sum of the Final Bid and the Auction Premium. The highest bidder acknowledged by the auctioneer shall be the buyer (the “Buyer”). The auctioneer has the right to reject any bid or raise which, in his opinion, is not commensurate with the value of the property being offered. The auctioneer may advance the bidding at his absolute discretion and, in the event of any dispute between bidders, may determine the successful bidder or re-offer and resell the property in dispute. Should there be any dispute after the sale, the record of final sale shall be conclusive. Please contact our offices for information on absentee and/or phone bidding.
Closing Costs: The deed shall be prepared and acknowledged by the property seller (the “Seller”) at Seller’s expense and recorded at the expense of Buyer. Buyer shall pay all title searches, title insurance charges, survey expense, usual conveyance expenses, and recordation taxes, including the Grantor’s tax. Real estate taxes, water and sewer charges, if any, will be prorated as of the date of closing.
Conditions of Default: If any conditions contained herein are not complied with by the Buyer, Nicholls Auction may, in addition to asserting all remedies available by law, including the right to hold defaulting Buyer liable for the Purchase Price, a) cancel the sale and retain, as liquidated damages for Nicholls Auction, Buyer’s earnest money deposit, b) resell the property at public auction or privately on seven days’ notice to such Buyer, or c) take such other action as it deems necessary or appropriate. If Nicholls Auction chooses to resell the property, the original defaulting Buyer shall be liable for the payment of any difference between Buyer’s Purchase Price and the resale purchase price, as well as all costs and expenses, the expenses of both sales, reasonable attorney’s fees, commissions, incidental damages, and all other charges due hereunder. For clarity, retention by Nicholls Auction of Buyer’s earnest money deposit will not affect Buyer’s indemnification obligations hereunder nor Buyer’s liability to the Seller.
Governing Law: This Agreement and your and our rights and obligations hereunder shall be governed by the laws of the Commonwealth of Virginia without regard to any conflict of laws principles that would require the application of the laws of any other jurisdiction. In the event that redress to a court of law is necessary to resolve any dispute that arises between you and Nicholls Auction arising out of or relating to this Agreement or your use of any of our Services, then the proceedings shall be initiated in one of the following courts that has appropriate subject matter jurisdiction: the state courts for Spotsylvania County, Virginia, or the United States District Court for the Eastern District of Virginia, Richmond Division. With respect to any proceedings that are appropriately brought in one of the foregoing courts, you agree that the court shall have exclusive jurisdiction and venue to adjudicate the dispute. You consent to exclusive venue and jurisdiction in such courts and waive all questions and defenses of personal jurisdiction, improper venue, or forum non conveniens for the purpose of any proceedings brought to resolve a dispute described in this section. You and we each agree that, to the fullest extent permitted by applicable law, the provisions of the Uniform Computer Information Transactions Act (as implemented in any jurisdiction) shall not apply to this Agreement. For clarity, this paragraph does not affect or apply to any agreement or dispute solely between Buyer and Seller.
Real Estate Salespersons/Brokers: When offered, a fee equal to a specified commission will be paid to any qualified real estate salesperson/broker who is duly licensed in the same state where the property is located, and whose properly registered client successfully buys and closes on the property. To qualify for a commission the licensed real estate salesperson/broker must first, if the bidder is not yet registered, register the prospective bidder on the Nicholls Auction website, and then complete and submit to Nicholls Auction the Auction Bidder Representation Form. A registered real estate salesperson/broker can only represent one buyer at each auction event. If you are a real estate salesperson/broker, you agree that if the Auction Premium is reduced due to negotiations, the commission to you shall be 10% of total Auction Premium earned (non-negotiable). All forms, letters and statements required by Nicholls Auction must be received by Nicholls Auction no later than 6:00 A.M. (Eastern) on the day of the auction. Commission to a property is contingent upon, and will only be paid if the Auction Bidder Representation Form is received by Nicholls Auction no later than 6:00 A.M. (Eastern) on the day of the auction. Registered real estate salespersons/brokers must (i) attend all auction events with a live bidding component regardless of whether their bidder (or client) is bidding live in person on site or bidding online off site, and (ii) adhere to all terms.
Inspection: All property is sold “As Is, With All Faults.” Descriptions are provided as a service to customers only and do not constitute a warranty, either expressed or implied. Nicholls Auction disclaims all responsibility for physical condition. All bidders are responsible for prior inspection of properties on which they bid, and by bidding are deemed to have so inspected the property. Placing a bid on the offered property, whether in person/online or by agent, by written bid, telephone bid or other means, constitutes an agreement by you to this Agreement. For residences built prior to 1978, you waive the right to a 10 calendar-day opportunity to conduct a risk assessment or inspection for the presence of Lead-Based Paint and/or Lead-Based Paint Hazards. Square footage dimensions and acreage are approximate and should be independently verified prior to bidding. Nicholls Auction, its agents and subagents, and the sellers, assume no liability for errors or omissions in this or any other property listing or advertising or promotional/publicity statements and materials. All information and dimensions were derived from sources believed to be correct, but are not guaranteed. You agree to rely on your own information, judgment, and inspection of the property. All announcements made on the day of the auction will take precedence over all previously provided material and any other oral statements made.
Indemnification by You: You agree to indemnify, defend and hold harmless, Nicholls Auction and its affiliates, and each of their officers, directors, employees and agents (each, an “Indemnified Party”), from and against any and all claims, damages, liabilities, assessments, costs and expenses (including court costs and reasonable attorneys’ fees) asserted against or incurred by an Indemnified Party arising out of any breach by you of any of your representations, warranties, covenants or obligations under this Agreement or any agreement between you and the Seller.
LIMITATION OF LIABILITY: TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, NICHOLLS AUCTION SHALL NOT BE LIABLE, WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, EXEMPLARY, PUNITIVE, OR SPECIAL DAMAGES, OR LOST BUSINESS OPPORTUNITIES, IN CONNECTION WITH OR ARISING OUT OF THIS AGREEMENT OR YOUR USE OF ANY OF OUR SERVICES, EVEN IF NICHOLLS AUCTION HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL NICHOLLS AUCTION’S TOTAL LIABILITY UNDER OR ARISING OUT OF THIS AGREEMENT OR THE SERVICES EXCEED, IN THE AGGREGATE, (I) THE AMOUNT, IF ANY, PAID BY YOU TO NICHOLLS AUCTION FOR THE SPECIFIC SERVICES DIRECTLY RELATED TO THE CLAIM UNDER THIS AGREEMENT, OR (II) ONE HUNDRED DOLLARS ($100), WHICHEVER AMOUNT IS GREATER.
Termination for Breach: We may terminate this Agreement, your account or any of the Services at any time by providing you with notice via one of the contact methods you have provided to us. You may terminate your account or this Agreement at any time by contacting us. Upon termination of the Agreement or your account, information and content previously provided by you will no longer be accessible through your account, but we may continue to store such information and content in accordance with our records retention or backup processes, or for our legitimate business purposes, or as otherwise permitted under applicable law, and it may also be stored by third parties to whom it has been transferred through your use of the Services.
Modification of the Terms: Nicholls Auction may modify the Agreement and impose new or additional terms or conditions on any use of the Services. If we do so, we will notify you by posting the updated Agreement on our website and in the App, and in some cases, including where required by law, we may provide you with an additional notice, such as via email to the email address you have provided us. Such modifications and additional terms and conditions will be effective immediately upon such posting or notice. Your continued use of the Services will constitute your acceptance of the modified terms and any applicable new or additional terms or conditions. If you do not agree to the modified terms or new or additional terms or conditions, you must stop using the Services, and if applicable, close your Nicholls Auction accounts. By using or accessing the Services, you agree to the Agreement, as updated from time to time. You can determine when the Agreement was last updated by referring to the “Last Updated” date appearing at the beginning of the General Terms.
The following additional terms and conditions form a part of the Agreement and apply if you use any of our software applications, including desktop and mobile bidding applications (each an “App”):
Ownership of Apps; Restrictions. Each Nicholls Auction App is licensed, not sold, to you for use in placing bids during an auction where Nicholls Auction elects to accept bids placed through the App. The App is a white-labeled auction platform used by auction companies to allow bidders to participate remotely in live or online auctions. Nicholls Auction and its licensors retain ownership of the App and they reserve all rights not expressly granted to you. The terms of this Agreement will govern any software upgrades that replace and/or supplement the App unless such upgrade is accompanied by a separate license agreement, in which case the terms of that license agreement will govern such upgrade. Subject to the terms and conditions of this Agreement, you are granted a limited non-exclusive license to install and use our mobile Apps, and to use our desktop Apps, on a device owned or controlled by you. You may not rent, lease, lend, sell, redistribute or sublicense the Apps.
Bids and Auctioneer’s Authority. Neither Nicholls Auction nor any of its licensors is your employee, agent, representative, or contractor with respect to any auction in which you may participate. Any bid that you place through the App in an auction is a legally binding offer to purchase the real or personal property being auctioned. Your bid may be accepted by Nicholls Auction, in which case you will be obligated to complete the purchase of the property in accordance with this Agreement. All bids shall be deemed pending unless and until duly accepted by Nicholls Auction. Nicholls Auction has the sole and absolute discretion to advance the bidding, including the discretion to reject any bid which it believes does not advance the auction and/or is injurious to the auction. Bids that may be rejected include without limitation bids that appear to Nicholls Auction to be nominal, suspicious and/or suspect. No bid shall be deemed a valid bid unless and until accepted by Nicholls Auction. All bids are accepted at the sole discretion of Nicholls Auction. For any given auction, the successful bidder is deemed the bidder that places the bid that is accepted by Nichols Auction, and Nicholls Auction shall have sole discretion in deciding the successful bidder in the event of a bidding dispute. Nicholls Auction’s determination of the successful bidder shall be the final determination of the successful bidder. All sales are final upon the determination of the successful bidder by Nicholls Auction.
Location; Shipping. Unless otherwise expressly provided by Nicholls Auction, all property is auctioned and sold where it is located on the day of the auction (i.e., "where-is"). The successful bidder shall make arrangements with Nicholls Auction for accepting delivery of any personal property that is purchased at an auction. Any shipping expenses shall be governed by the Auction Terms for the given auction. There shall be no returns or exchanges except as may be expressly permitted in writing by Nicholls Auction under the Auction Terms for the given auction.
Disclaimer of Warranties: You may be entitled to warranties, conditions, and terms that may not be excluded or limited by Nicholls Auction under applicable law. Except for warranties, conditions, and terms that Nicholls Auction may not exclude under applicable law, the App is made available “as is.” Except for those non-excludable warranties, conditions, and terms, Nicholls Auction makes no warranties, representations, or guarantees (express or implied, whether by statute, common law, custom, usage or otherwise) as to any matter including performance, results, security, noninfringement, merchantability, integration, quiet enjoyment, satisfactory quality, and fitness for any particular purpose. This disclaimer of warranty may not be valid in some states. You may have warranty rights under law which may not be waived or disclaimed. Nicholls Auction does not seek to limit your warranty rights to any extent not permitted by law.
No Support for Apps; No liability for Apps Operation. Neither Nicholls Auction nor its licensors provide support services for the Apps, and none of them shall be held responsible or liable for a missed bid or the failure of an App to function properly for any reason. You acknowledge that an App may not be operational at any given time for various reasons, including repairs, maintenance, upgrades to the App and many causes that are not within the control of Nicholls Auction, including, without limitation, power failures, defects in third-party equipment, and acts of God. In the event that an App fails to properly operate for any reason during any auction, thus preventing you from placing a bid, you acknowledge and agree that you are subject to the limitation of liabilities set forth above.
The disclaimer of warranties and limitations of warranties set forth above, including all exclusions and limitations set forth therein, will apply to the maximum extent permitted by applicable law, even if any remedy fails its essential purpose.
Termination of App Rights. The non-exclusive license granted to you in this Agreement is effective until terminated. Your rights to use our Apps under this Agreement will terminate automatically or otherwise cease to be effective without notice from Nicholls Auction if you fail to comply with any term(s) of this Agreement pertaining to the Apps. Upon the termination of your rights to use our Apps under this Agreement, you shall cease all use of the Apps and destroy all copies, full or partial, of the Apps.
