TERMS AND CONDITIONS OF SALE
The auction will be conducted by ProStar Auctions, LLC ("Auctioneer") on behalf of the owners of the property, referred to as the "Seller". The term "Auctioneer" shall include, but is not limited to, any and all of its agents, employees, representatives, officers, and directors. The auction shall be governed by the terms set forth herein (the "Agreement"), any pre-sale announcements, and the Real Estate Purchase Agreement. The pre-sale announcements take precedence over this Agreement and/or any printed material. The Auctioneer is the agent of the Seller.
1. Bidder's Registration. All persons who wish to bid in the auction must register with the clerk and obtain a bidder number. To register, you must provide all of the registration information requested, provide cash, credit card or a cashier's check in the amount of $25,000.00 payable to yourself, sign the Terms and Conditions Agreement as well as provide a bank letter of guaranteed availability of funds If registering to bid online, the same requirements are necessary 48 hours prior to the auction. Buyers must make arrangements with Auctioneer for payment prior to access or approval of bidding. Buyer must be at least 18 years of age and have a valid driver's license or other proper identification. Auctioneer reserves the right to refuse to register or admit Buyer at its sole discretion. Buyer should register as early as possible to obtain information about the properties and increase the likelihood of being notified of any pertinent changes that take place prior to the auction.
2. Real Property. The real estate is to be identified by the Auctioneer. The sale is not contingent upon an inspection or the Buyer's ability to obtain a loan. Buyer must consider these issues prior to bidding at the auction. If Buyer is the successful bidder on an item, Buyer agrees to sign the Real Estate Purchase Agreement immediately after the auction. The Buyer's name and information and the final purchase price are the only items that need to be completed on the Real Estate Purchase Agreement. Buyer must also pay a deposit in the amount of Ten (10%) percent of the final purchase price on each property that you purchase, with a minimum of $25,000.00, immediately after the sale. Cash or cashier's checks are accepted. In the event that Ten (10%) percent of the final purchase price exceeds $25,000.00, an additional payment is required from the Buyer. A personal check, company check, or credit card payment may be required to pay the difference between the Earnest Money deposit required and the amount of the cashier's check or cash already surrendered. The Earnest Money deposit will be held by the designated escrow company or closing attorney as Earnest Money for the sale. Earnest money is not considered an "option" payment.
3. Payment. All properties must close on or before thirty (30) days after the auction. Payment of the full purchase price (including the buyer's premium when applicable) must be made by Buyer before or at the closing for any real property purchased. Buyer shall pay the purchase price, plus any and all closing costs, and any and all applicable taxes, unless such taxes are exempted by law (proof of exemption must be provided). The closing costs may include, but is not limited to, the following: escrow/closing fees; recording fees; normal pro-rations; document fees; lender fees; homeowner association fees, and title insurance premiums.
4. Agent/Broker Participation. Real Estate Agent or Broker (collectively "Broker") participation is invited. The Buyer Brokers who registers a client, has the opportunity to earn up to a 30% net commission of ProStar Auctions Buyer's Premium which typically equates to 3% of the high bid price. The client must be the high bidder, abide by the Terms and Conditions of Sale, and successfully close on the property. In order to be paid a commission, the Buyer Broker must do the following:
a. Review all disclosures, Real Estate Purchase Agreement, and the "Terms and Conditions of Sale" with each client you are representing;
b. Professionally assist your client by providing relevant advice and property information;
c. Inspect the property with the client prior to the auction;
d. Properly register the client at least forty-eight (48) hours prior to the auction day;
e. Attend the auction and notify clerks at the registration;
f. Sign your client's bid acknowledgment, deposit receipt, and Real Estate Purchase Agreement at the auction;
g. Represent a client who gives a high bid that is accepted by the Seller and closes on the transaction.
Each step must be completed. If any of these steps have not been completed, the Broker will not be paid a commission. Without exception, Buyer must notify the clerks and acknowledge the Buyer-Broker relationship as they register for the auction.
5. Buyer's Premium. A buyer's premium of ten percent (10%) will be charged in each sale. A buyer's premium is an advertised percentage of the high bid added to the high bid to determine the total contract price to be paid by Buyer. For example, if the high bid is $100,000.00 and there is a ten percent (10%) buyer's premium, the premium will be $10,000.00, for a total contract price of $110,000.00. In this sale, Buyer agrees and will be responsible for 10% of the high bid. This amount does not include any taxes that may also be due. The buyer's premium does not create any agency relationship between Buyer and Auctioneer. Auctioneer is the agent of the Seller only. Buyer agrees to these provisions and will pay the applicable buyer's premium.
6. Stop Payment/Insufficient Funds. Upon making payment for an item(s), no stop payment of funds will be honored. Any stop payment order of a check or credit card charge, or giving a check which is returned marked "insufficient funds" or credit card that is requesting a reversal of said charge, shall be deemed by the parties to be prima facie evidence of fraud existing at the time the transaction was consummated and shall be construed by the parties as intent to defraud.
7. Acceptance of Terms. A bid placed by Buyer shall be conclusive proof that he or she has acquainted himself or herself with the Agreement and agreed to be bound by it prior to placing any bid.
8. Representations and Warranties. All representations and/or warranties made, if any, are between Buyer and Seller. Auctioneer shall not be held responsible for the correctness of any representations and/or warranties of any kind with respect to the property. Auctioneer shall not be held responsible for any representations and/or genuineness of description of any property. UNLESS OTHERWISE EXPRESSLY NOTED BY AUCTIONEER, ALL SALES ARE FINAL AND ALL PROPERTY IS SOLD "AS-IS," "WHERE-IS," AND "WITH ALL FAULTS" - THERE ARE NO EXPRESS OR IMPLIED WARRANTIES (INCLUDING THE WARRANTY OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE) ON THE ITEM OR ITEMS. ANY AND ALL WARRANTIES (UNLESS EXPRESSLY NOTED OTHERWISE) ARE DISCLAIMED AND WAIVED BY BUYER.
9. Sales Final and Inspection of Items. Buyer acknowledges that he/she has been provided the opportunity to inspect the property before bidding on and purchasing same. Buyer either has inspected the property or elected not to inspect the property at Buyer's sole discretion. Buyer is solely responsible for determining the condition of any property. Buyer represents and warrants that he or she is relying solely on Buyer's own investigation and inspection of the property and not on any information provided or to be provided by the Auctioneer, Seller, or participating Listing Broker.
10. Reserve Auctions. Unless explicitly stated otherwise by Auctioneer, each item is being sold subject to Seller's confirmation as a reserve auction. These terms are applicable to all reserve auctions. The Auctioneer and Seller reserve the right to withdraw any property before and during the sale of such property. The Seller also reserves the right to reject any and all bids for any reason. The sale should be approved or rejected by Seller within seven (7) days. However, in the event that the high bid is not accepted or rejected by the Seller within seven (7) days, Buyer's offer to purchase shall continue to be valid unless Buyer requests, in writing, that it be terminated or Seller rejects the high bid offer. If the Buyer or Seller terminates the transaction as provided in the preceding sentence, Buyer shall have the Earnest Money refunded to him or her. The Auctioneer, at its sole and complete discretion, may reject a nominal and/or fractional bid advance. Auctioneer reserves the right to place a bid on any item on behalf of the Seller up to the amount of the reserve, if any. Auctioneer will not specifically identify bids placed on behalf of the Seller.
11. Auctions Without Reserve. The terms in this paragraph only apply to items specifically designated as being sold without reserve. Auctioneer and Seller reserve the right to withdraw any property or cancel the sale at any time prior to calling for bids at the beginning of the sale. The property may be withdrawn if there are no bids within a reasonable period of time after Auctioneer has started calling for bids. Once a bid has been made for the property, it may not be withdrawn.
12. Disputes between Bidders. In case of any dispute between bidders, Auctioneer, at his or her sole and complete discretion, may reopen the bidding pursuant to specific terms determined by Auctioneer between the two highest bidders only, until the property is sold. If a dispute arises after the sale of any item, the Auctioneer's records shall be deemed conclusive in all respects.
13. Bidding. It is the responsibility of each bidder to make sure that Auctioneer is aware of his or her intent to place a bid. As the high bidder at the auction, as recorded by the Auctioneer, buyer hereby makes an irrevocable offer to purchase the item identified by Auctioneer. The offer shall be irrevocable by the Buyer for seven (7) days from the date of the Auction. Seller may accept the offer during this period or thereafter. The Buyer shall be bound by the offer unless and until the Broker/Agent receives from Buyer a written revocation of the offer after the seven (7) day timeframe and prior to notification to Buyer by Broker/Agent of Seller's acceptance of the offer. Auctioneer disclaims any liability for damages, whether direct, indirect, consequential, or incidental, resulting from bids not spotted, executed, or accepted. Bidders should also be careful to bid on the correct item and ensure that his/her bid is for the amount intended. Auctioneer is not responsible for errors in bidding, and Buyer hereby releases Auctioneer and waives any and all claims for bidding errors. The sale is complete when the Auctioneer so announces in the customary manner.
14. Internet Bidding. Buyer may be able to bid on the property at this Auction through the Internet. The terms in this paragraph apply only to individuals bidding on-line via the Internet.
(A) Buyer acknowledges that Auctioneer does not have any responsibility or liability for the website(s) used for Internet bidding. Seller acknowledges that the Auctioneer may not have any control over the website(s) and cannot guarantee its operation or performance. There are occasional interruptions and delays relating to the use of the Internet and the Website. Furthermore, Auctioneer shall not be held liable (for lost profits or special damages) or responsible for the function of the website or its inability to function. Buyer acknowledges that hardware malfunctions, software malfunctions, viruses, and similar issues do occur and are beyond the knowledge, scope, and control of Auctioneer. Auctioneer makes no representations whatsoever about any website that may be used to sell the property. In addition, Auctioneer does not endorse or accept responsibility for the content, performance, or function of the third-party auction website. Use of the Internet bidding option through any website is at your own risk. To ensure proper bidding, Buyer should personally attend the Auction.
(B) Buyer must register and obtain a bid number to participate in the auction. In connection with such registration, you will be required to provide a credit card number (Visa or MasterCard) in order for an authorization and hold of Twenty-Five Thousand Dollars ($25,000.00) to be placed on the credit card or wire transfer said funds into ProStar Auctions, LLC Escrow Account as well as a bank letter of guaranteed availability of funds. Buyer must state whether he or she will pay cash or expect to finance the purchase. If Buyer expects to finance the purchase, he or she will need to be pre-approved or provide information regarding the third-party financing company. Please follow the instructions carefully to make sure that the registration process is complete and accepted.
(C) Buyer will be emailed final registration approval upon successful completion of the registration process. Registration for online bidding closes forty-eight (48) hours prior to the auction. Buyer should register as early as possible to obtain information about the properties and increase the likelihood of being notified of any pertinent changes that take place prior to the auction. Buyer can and should inspect the property or have a representative inspect the property.
(D) The website is administered by Auctioneer from its offices in the United States of America. Individuals must reside in the United States to register to bid online. Auctioneer will not accept bids from individuals who reside outside of the United States of America and its territories. If you access the website from a location outside of the United States of America and its territories, Buyer consents to jurisdiction in the United States of America and agrees to be bound by and comply with all applicable laws.
(E) Online bidders are limited to only one purchase per auction, unless otherwise approved by Auctioneer in advance. Any online bidder who is interested in purchasing more than one item, should contact Auctioneer at 573.365.7272 prior to the auction.
(F) The bid number, authorization, and login information given to Buyer upon successful registering to bid shall only be used by Buyer during the auction to bid on the properties. The registration is not transferable or assignable. No one else may register for Buyer or participate on Buyer's behalf.
(G) Buyer Broker participation is not approved or authorized for online bidding. No commission will be paid to Buyer Broker.
(H) Auctioneer reserves the right to deny any person for any reason permission or access to bid online.
(I) If Buyer is the successful bidder, Auctioneer will contact you via phone at the phone number provided during registration. Once contacted by an Auctioneer, Buyer will be sent, via e-mail, the Real Estate Purchase Agreement and certain other documents for electronic signature. Buyer must also pay the deposit as referenced above. The Real Estate Purchase Agreement will contain the exact terms and conditions of the sale. Additionally, Buyer must agree to be bound by all terms, provisions and conditions of the Real Estate Purchase Agreement and the related conveyance documents, if any, for each particular Property. As between Buyer and Seller, the Real Estate Purchase Agreement supersedes any and all other documents or information (including without limitation these "Terms and Conditions of Sale") and serves as the governing document for the sale of each Property. After executing the Real Estate Purchase Agreement electronically, Buyer will be contacted by an escrow agent/holder or closing representative who will provide them certain additional information pertaining to the closing process. If the Buyer cannot be reached within thirty (30) minutes of Auctioneer's acknowledgment of the high bid, or Buyer fails to timely electronically execute the Real Estate Purchase Agreement, then Auctioneer or Seller can declare the Buyer to be in default. In such event, the Buyer shall be subject to liquidated damages in the amount as provided herein. In addition, Auctioneer may charge Buyer's credit card in such amount. Furthermore, Auctioneer reserves the right to immediately put the property back up for sale at the Auction. Those Bidders who are not successful bidders during the auction will have the authorization hold on their credit card removed following the day after the auction.
15. Acceptance of Bids. The Auctioneer, at his or her sole discretion, may reject, disqualify or refuse any bid believed to be fraudulent, illegitimate, not in good faith, made by someone who is not competent, or made in violation of this Agreement or any applicable law.
16. Bids at the Close of the Auction. During the sale of each item or in the event that a bid is made while the sale is being closed by the fall of the hammer or other customary manner, Auctioneer may reopen the bidding at his or her sole and complete discretion.
17. Limitation of Liability. NEITHER AUCTIONEER NOR SELLER (INCLUDING EMPLOYEES AND AGENTS) SHALL BE LIABLE FOR ANY DAMAGE AND/OR INJURY TO ANY PROPERTY AND/OR PERSON AT AND/OR UPON THE SALE PREMISES. EACH PERSON ENTERING UPON THE SALE PREMISES ASSUMES ANY AND ALL RISKS WHATSOEVER FOR HIS OR HER SAFETY (AND FOR ANY MINORS WITH HIM OR HER). AUCTIONEER AND SELLER (AND ANY AGENTS) EXPRESSLY DISCLAIMS ANY "INVITEE" RELATIONSIP AND SHALL NOT BE LIABLE FOR HIDDEN DEFECTS. AUCTIONEER IS NOT RESPONSIBLE FOR ANY LOST, STOLEN, OR DAMAGED PROPERTY.
18. Breach of Contract. If this Agreement, or any terms announced by Auctioneer, are not complied with, in addition to other remedies available to the Seller by law, including without limitation, the right to hold the Buyer liable for the full purchase price, Auctioneer and Seller may: (1) publicly or privately resell the property, with the non complying Buyer being held liable for the payment of any deficiency purchase price, plus all costs incurred; and/or (2) cancel the sale and retain as liquidated damages, and not a penalty, all deposits and payments made by the non complying Buyer. Auctioneer's commissions, all incidental damages, expenses, court costs, costs of collection and/or attorneys' fees will be charged to and be the responsibility of the non complying Buyer. Buyer authorizes Auctioneer or Seller to obtain and review Buyer's credit report for any lawful purpose in the conjunction with any collection activities.
19. Memorandum of Sale. Buyer authorizes Auctioneer to execute any memorandum of sale on behalf of and in the name of Buyer, or in Auctioneers own name, in connection with the purchase of any item, in accordance with his or her bid.
20. Auctioneer Liability. Auctioneer acts solely as an agent for Seller and is not a party to any contract for the sale of any property offered by the Seller for sale and/or sold at this auction. IN NO EVENT SHALL AUCTIONEER BE LIABLE TO BUYER FOR ANY INDIRECT, SPECIAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF OR RELATED TO THIS AUCTION OR THE PERFORMANCE OR BREACH THEREOF. AUCTIONEER'S LIABILITY TO A BIDDER SHALL IN NO EVENT EXCEED THE TOTAL OF THE PURCHASE PRICE, BUYER'S PREMIUM, AND TAXES PAID BY BIDDER TO AUCTIONEER, REGARDLESS OF WHETHER BUYER'S CLAIM IS BASED ON CONTRACT, TORT, STRICT LIABILITY, OR OTHERWISE.
21. Sale by Lots. All sales are to be put up per lot, unless otherwise announced by the Auctioneer. Each lot or item is the subject of a separate sale. Auctioneer reserves the right to include in the auction any item and the right to withdraw any item. Auctioneer may combine, subdivide, regroup or reorganize any items.
22. Recording Devices. No photographs, tape recordings and/or video recordings of any type are permitted without the express written prior approval of Auctioneer. It is understood, however, that Auctioneer, including its agents, employees, representatives, or affiliates, may be taking pictures and video for future commercials or advertisements. The use of a photograph or video with Buyer's image or likeness is hereby authorized. Use of the Buyer's image or likeness is limited to video footage, audio, or photographs.
23. Severability. If any provision of this Agreement is declared or determined to be null, void, inoperative, illegal or invalid for any reason, the validity of the remaining parts, terms or provisions will not be affected thereby and they will retain their full force and effect, and said null, void, inoperative, illegal or invalid part, term or provision will not be deemed to be part of this Agreement.
24. Interpretation. Each party to this Agreement acknowledges that it has read, or has had the opportunity to read, the terms provided herein. The parties agree that this Agreement reflects the terms as agreed to by the parties hereto. In the event a term or terms is considered ambiguous, neither party hereto, nor their respective counsel, will be considered the draftsperson of this agreement for the purpose of causing the terms of this Agreement to be construed against a party hereto.
25. Governing Law. The parties hereto acknowledge and agree that this Agreement is made and entered into in the State of Missouri, and will in all respects be interpreted, enforced and governed under the internal laws (and not the conflicts of laws) of the State of Missouri. In the event that the parties hereto, or any one of them, litigate any actual or potential breach of this Agreement, the parties hereto stipulate and agree to jurisdiction and continuing venue for any such action in the State of Missouri.
26. Rights not Transferable. All rights granted herein are personal and exclusive to the registered bidder, and may not be assigned or transferred to another person or entity, by operation of law or otherwise. Any attempt to assign or transfer any such rights shall be void and unenforceable. No third party may rely on any benefit or right conferred herein or granted to any bidder.
27. Binding Effect. Each party binds itself and its partners, representatives, employees, successors, executors, administrators and assigns to the other party of this Agreement and to the partners, representatives, employees, successors, executors, administrators and assigns of such other party, in respect to the promises, representations, acknowledgements, covenants and responsibilities contained in this Agreement.
28. Partial Payment. In the event that the Buyer pays only a portion of the purchase price for any or all items purchased, Auctioneer shall apply the payment received to such item or items as Auctioneer, in its sole discretion, deems appropriate.
Thank you for coming to the Auction.