DMC SALEYARD GENERAL TERMS AND CONDITIONS
1 DMC SALEYARD
The following definitions shall be used for the purpose of interpreting this Agreement. Further definitions not contained in this Clause 1 shall apply to the Section in which they are stated and subsequent Sections.
“this Agreement” shall mean the DMC Saleyard General Terms and Conditions as given herein. The terms “this Agreement” and “General Ts&Cs” shall have the same meaning and may be used interchangeably.
“Asset” (or “Assets” in the plural) shall mean any surplus equipment, vessels, or other items that may be listed for sale by DMC on the Site.
“Bid” (or “Bids” in the plural) shall mean any bid, offer or order submitted by a Buyer for an Asset listed on the Site (whether this be a bid on an online auction, a private offer on a Private Treaty sale, an order on a Buy It Now sale, or any other form of bid, offer or order as applicable).
“Buyer” or “Buyers” shall mean any person or company using the Site and/or DMC Services, irrespective of whether or not such person or company places a bid and/or purchases any Assets.
“Buyer’s Premium” shall have the meaning ascribed to it in clause 5.5. The Buyer’s Premium is a fee charged to Buyers that is a percentage of the sale price and which Buyers are obliged to pay.
“Buy It Now” sales shall mean a sale format in which Buyers are able to order Assets on the Site for a fixed price.
“Collection Deadline” shall mean the deadline within which Buyers are obliged to collect and remove the Assets from the Removal Location as per clause 8.1 of this Agreement.
“Consequential Loss” shall have the meaning ascribed in clause 13.
“DMC” shall mean Dixon Marine Consulting Limited, its affiliates, associates, joint venture partners, co-auctioneers and agents (always in respect of this Agreement), and their respective employees, officers, and directors.
“DMC Group” shall mean DMC together with their respective affiliates, invitees, contractors of any tier, agents or other representatives (always in respect of this Agreement) and any employees, officers and directors of the foregoing.
“Ex Works” shall have the meaning ascribed in INCOTERMS 2010.
“General Ts&Cs” shall mean the DMC Saleyard General Terms and Conditions as given herein. The terms “this Agreement” and “General Ts&Cs” shall have the same meaning and may be used interchangeably.
“Information” shall mean any and all descriptions, advertising, lot catalogues or any other source of information (oral or written) concerning the Assets which may be provided by DMC or otherwise obtained by a Buyer from a source other than DMC.
“Listing” shall mean the details listed on the Site against each Asset which is being offered for sale on the Site. For avoidance of doubt, a Listing may include (either directly or by reference) Seller’s Ts&Cs, Special Ts&Cs and other details applicable to the purchase of that Asset.
“Lot” shall mean a Listing in which multiple Assets have been grouped together for sale as a single unit.
“Make An Offer” shall refer to the means by which Buyers may place a bid online for Assets being sold under a Private Treaty sale process.
“No Minimum“ shall mean a form of Online Auction in which a Reserve has not been set for the Assets.
“Online Auctions” shall refer to a sale format in which Buyers are able to participate in timed auction events online by placing bids for Assets on the Site.
“Private Treaty” sales shall refer to a sale format in which Buyers are able to submit private offers for Assets subject to a negotiated sale process;
“Removal Location” shall mean the current physical location of an Asset at the point of purchase, which shall be the location from which Buyers shall be required to collect and remove the Asset.
“Reserve” shall mean the reserve price (if any) which Seller and/or DMC may set for an Asset being sold via an Online Auction.
“Restricted Party Lists” shall have the meaning given to it in clause 2.2.
“Seller” (or “Sellers” in the plural) shall mean the party which owns, sells and transfers title to the Assets. For avoidance of doubt, DMC do not own, sell or transfer title to the Assets and the actual contract for sale shall be a separate agreement entered into directly between the Seller and the Buyer.
“Seller’s Ts&Cs” or “Seller’s Terms and Conditions” shall mean the terms and conditions stipulated by a Seller for the sale of their Assets. The applicable Seller’s Ts&Cs for a Listing shall be given in that Listing.
“Services” shall mean the marketplace, transaction settlement and related services provided by DMC.
“Site” shall mean the DMC Saleyard website (www.dmcsaleyard.com).
“Special Ts&Cs” or “DMC Saleyard Special Terms and Conditions” shall mean any additional DMC terms and conditions that may be applicable to a specific Listing, over and above those given in this Agreement. The applicable Special Ts&Cs for a Listing shall be given in that Listing.
“Tax” or “Taxes” shall mean any and all taxes, levies or fees, including but not limited to Value Added Tax (VAT), General Sales Tax or Use Tax, that may be imposed with respect to either the purchase of Assets and/or the payment of Buyer’s Premium.
“Winning Bidder” shall mean any Buyer whose Bid is accepted and approved by both Seller and DMC.
1.2 Introduction to DMC
DMC provide surplus asset management, valuation and sales solutions for surplus and other Assets.
DMC simply provide marketplace, transaction settlement and related services (Services) and do not own, sell or transfer title to the Assets. The actual contract for sale is directly between the Seller and the Buyer.
1.3 DMC Saleyard General Terms and Conditions
By registering as a Buyer on the Site and/or using our Site and Services, Buyer agrees that they have read, understood and accepted the terms and conditions of this Agreement.
DMC reserve the right to amend these General Ts&cs at any time by posting the change on our Site. Buyers continued use of this Site or our Services after our posting of any such changes shall be deemed to constitute Buyers acceptance of such changes.
Please note that the sale of any specific Assets may also be subject to additional terms and conditions, including but not limited to Sellers Ts&Cs and Special Ts&Cs. Any such additional terms and conditions, if applicable, shall be referenced in the Listing for an Asset. If a conflict arises between the General Ts&Cs and any of the additional Sellers Ts&Cs and/or Special Ts&Cs given in a Listing, then the additional terms and conditions shall take priority over the General Ts&Cs except to the extent such additional terms and conditions adversely affect DMC or would result in a breach of these General Ts&Cs.
1.4 No Mass-Market License
DMC Site and Services are most suitable to businesses or individuals with experience in purchasing specialist marine and industrial assets through online sites (i.e., not for personal, family or household use) and hence any rights to use our Site and Services are not mass market or consumer licenses.
2 RULES FOR USERS
By using the Site, and in order to submit Bids for Assets, Buyers agree to the following rules:
a) Buyers shall register on our Site and provide us with full and correct mailing and physical address, telephone number, email address and other requested information;
b) Buyers must be a real person, business or legal entity;
c) If Buyers are registering as an individual, they must be at least eighteen (18) years of age and able to enter into a legal contract;
d) If Buyers are registering on behalf of a business or legal entity, they must have authority to enter into a legal contract on behalf of that business or legal entity;
e) Buyers may not transfer or otherwise provide their username and password to another third party without our consent;
f) Buyers cannot Bid on their own Assets or Listing;
g) Buyers are responsible for reading the full Listing before making a Bid for any Assets;
h) Buyers are responsible for all Bids placed from their account.
2.2 No Restricted Parties
By registering on and/or using the Site, Buyer represents that they and any business or party for which they are acting as an agent are not listed on, or subject to sanctions under, the U.S. Department of Commerce Denied Persons, Entity or Unverified Lists, the US Treasury (OFAC) Sanctions List, the U.S. Department of State’s Debarred and Nonproliferation Lists , or the Specially Designated Nationals List , any European Union Sanctions List , the United Kingdom HMT List , any United Nations Sanctions List , or similar or successor lists, (collectively, the “Restricted Party Lists”).
If it is found that any Buyer is subject to sanctions under any Restricted Party Lists, or is acting as an agent for a party subject to sanctions under any Restricted Party Lists, then any sale to such Buyer shall be void and the Buyer shall be liable to us for all damages resulting from their misrepresentation.
2.3 Bids Final and Irrevocable
Buyers hereby expressly acknowledge and agree that each and any Bid is irrevocable and binding, and that if a Buyer submits a Bid then the Buyer:
(a) agrees to pay that price for the Asset together with the Buyer’s Premium (as stated in the Listing) and any applicable Taxes; and
(b) confirms their acceptance of all applicable terms and conditions applicable for that Asset, including these General Ts&Cs, Sellers Ts&Cs, and any Special Ts&Cs.
2.4 Compliance with Applicable Laws and Regulations
Buyers must comply with all laws and regulations applicable to the purchase of the Assets and their subsequent transport, use, resale or export.
3 RESERVATION OF RIGHTS
Up until the time at which a Bill of Sale for any Assets has been issued, confirming transfer of title for such Assets to the Buyer, DMC reserve the right to do any of the following:
a) withdraw any Assets offered for sale at DMC sole discretion and for any reason;
b) amend the quantity, price, description, and availability of any Assets at DMC sole discretion and for any reason;
c) if Assets have been grouped together for sale as a single unit (a “Lot”), DMC may combine, sub-divide, alter or amend any Lot;
d) revoke any stated Bid and to correct any errors, inaccuracies or omissions (including after an order has been submitted and whether or not the order has been confirmed and/or payment from the Buyers has been received);
e) reject any Bid at DMC sole discretion and for any reason;
f) delay or rescind the sale of any Asset for any reason;
g) delay and/or condition removal from the premises subject to such conditions as DMC think fit to impose if, in the opinion of DMC or the Seller, removal of any Assets or part thereof will be likely to cause serious damage to the Seller’s premises or any other damage, or if any removal is being done without an approved method statement and/or risk assessment where such a statement or assessment is required;
h) delay or rescind the sale of any Asset if any party should claim possession of or title to all or part of an Asset;
In event of any of the above, DMC liability is limited to refunding to Buyer any monies that DMC have received from such Buyer against that specific transaction.
DMC further reserve the right to change or discontinue part or all of our Services at any time.
4 SALE CATEGORIES
DMC provide online marketplace services to facilitate the sale of Assets via a number of different types of sale, including but not limited to:
– “Online Auctions” in which Buyers are able to take part in timed auction events online by placing bids for Assets on the Site;
– “Private Treaty” sales in which Buyers are able to submit private offers for Assets subject to a negotiated sale process;
– “Buy It Now” sales in which Buyers are able to order Assets on the Site for a fixed price.
4.1 Online Auctions
For Online Auctions, and unless otherwise expressly stated in a Listing, a Buyer must be approved by both the Seller and DMC, must comply with any requirements given in the Listing (including full acceptance of these General Ts&Cs and the Sellers Ts&Cs and any Specific Ts&Cs if applicable), and must have submitted the highest compliant Bid in order for their Bid to be accepted. Online Auctions may be run on either an “Open Bid” basis (in which the current highest Bid for the Asset is openly displayed on the Site) or a “Silent Bid” basis (in which bids are submitted on basis that Buyers are not able to see what Bids may have been submitted for the Asset by any other Buyers).
By placing a Bid on Assets, Buyers represent, warrant and undertake that they have the authority and capacity to enter such Bid and close the transaction, and that any Bid that you make constitutes an irrevocable offer to buy the Assets in question for the full amount of the Bid together with the applicable Buyer’s Premium and any applicable Taxes. If a Bid is accepted then the Buyer shall be legally obliged to complete the transaction with the Seller unless the transaction is prohibited by these General T&Cs or by law.
Each Buyer is solely responsible for checking the Site or taking such other actions as are appropriate to learn of changes to a Listing, including changes to the closing date or time. We will not be responsible for notifying any Buyers of a change in any Listing. Buyers bear the sole risk of transmitting Bids so that such Bids are received prior to close of the Online Auction. For Online Auctions, posted closing times and displays of current time on the Site are approximate. In addition, DMC reserve the right to either reduce or extend the time period for Online Auctions at our discretion.
4.2 Online Auctions: “No Minimum” and “Reserve”
For an Online Auction with “No Minimum”, bidding starts with the bid increment as notified in the Listing.
Alternatively, Sellers may set a reserve price (“Reserve”) for an Asset. At DMC or Seller’s discretion, the Site may or may not display the Reserve for a Listing. For an Online Auction with a Reserve, a Buyer must be approved by both the Seller and DMC, must comply with any requirements given in the Listing (including full acceptance of these General Ts&Cs and the Sellers Ts&Cs and any Specific Ts&Cs if applicable), and must have submitted the highest compliant Bid in excess of the Reserve in order for their bid to be accepted.
If the highest compliant Bid in an Online Auction with Reserve is below the Reserve, then Buyer’s Bid will be presented to the Seller who may accept, reject or counter the Bid. At the conclusion of an Online Auction with Reserve, the Seller may elect that the Reserve be decreased to the level of the highest compliant Bid with the effect that the highest Bid may be accepted.
4.3 Private Treaty Sales
Private Treaty sales are listed on the Site as a Private Treaty transaction type. In a Private Treaty Sale, Buyers make a Bid (binding offer) for Assets through the “Make An Offer” option. By submitting a Bid, a Buyer represents, warrants and undertakes that they have the authority and capacity to make such a Bid and purchase the Assets, that their Bid is based on full acceptance of these General Ts&Cs, the Sellers Ts&Cs, and any Specific Ts&Cs, and that their Bid constitutes an irrevocable offer to buy the Assets for the full Bid amount together with the applicable Buyers Premium and any applicable Taxes. Unless otherwise specified in the Listing, the Seller shall have thirty (30) calendar days to either accept, reject or counter the Bid. If the Bid is accepted by Seller within this time-frame then it becomes binding on the Buyer.
4.4 Buy It Now
For Buy It Now sales, by submitting a Bid (order) online a Buyer is deemed to have agreed to pay the fixed price shown for the Asset, together with any Buyers Premium and any applicable Taxes, and is further deemed to have confirmed that they have the authority and capacity to make such a Bid and purchase the Assets, that they comply with any requirements given in the Listing, that their Bid is based on full acceptance of these General Ts&Cs, the Sellers Ts&Cs, and any Specific Ts&Cs, and that their Bid constitutes an irrevocable offer to buy the Assets. Subject to final review and approval by the Seller and DMC, the Bid becomes binding on the Buyer.
4.5 Notification of Successful Bids
In event that a Buyer participates in an Online Auction, Private Treaty Sale, or Buy It Now Sale, and that Buyer’s Bid is approved and accepted by both Seller and DMC, then DMC shall issue the Buyer with formal notification by email confirming that their Bid has been successful and that they are the Winning Bidder.
5 PAYMENT TERMS
Buyers agree that, if they are a Winning Bidder for any Assets, then they shall make payment in full and free of bank charges for the total transaction amount, including the stated Buyer’s Premium, any other amounts specified in the Listing, and all applicable Taxes due (if any).
5.1 Payment Instructions and Currency
Depending on the specific Listing, payment instructions for the transaction may be included in the Sellers Ts&Cs and/or the Special Ts&Cs on the listing, or DMC may issue you with invoice/s and/or sale agreement/s in electronic form by email. For some Listings, separate payments may be due to Sellers and to DMC. Depending on the specific Listing, invoices for Buyer’s Premium may, at DMC sole discretion, be issued by Dixon Marine Consulting Limited, its agents, subsidiaries, affiliates, joint venture partners or co-auctioneers.
Payment shall be made in the currency specified on the relevant listing. Any bank charges in respect of conversion or transfer of monies shall be met by the Buyer.
5.2 Payment Timing
Unless otherwise stated in the Listing, or in a separate written agreement between Buyer and the Seller and/or DMC, or in an invoice from the Seller and/or DMC, Buyers shall undertake to make full payment within 7 calendar days of being issued with both (a) formal notification by email confirming that they are a Winning Bidder and (b) payment instructions for the transaction.
Interest on overdue amounts will be paid by the Buyer at a rate of 18% per annum or at such other maximum rate permitted by law, together with any legal or collection costs incurred by DMC or the Seller.
5.3 Forms of Payment
Unless otherwise specified in a Listing, or in a separate written agreement between Buyer and the Seller and/or DMC, or in an invoice from the Seller and/or DMC, payments should be made via wire transfer.
5.4 No Third-Party Funds
Unless otherwise agreed in writing, DMC and Seller will not accept payments from third parties on behalf of a Buyer and all funds must come directly from the Buyer.
5.5 Buyer’s Premium
The Buyer’s Premium is a fee charged to Buyers that is a percentage of the sale price. The Buyer’s Premium applicable for specific Assets is stated in the Listing, and every Buyer is obliged to pay this fee. The Buyer’s Premium will typically be a taxable amount. Taxes will be calculated at the appropriate rate and will be to the Buyer’s account.
DMC, when acting as agent for the Seller, may also receive a commission from the Seller.
5.6 Failure to Pay
Without limiting the foregoing, Buyers will be held liable for any expenses, legal fees, court costs, and other damages incurred by DMC or the Seller for the collection of fees or amounts not paid on the date they are due. If a Buyer does not pay all amounts due in respect of the Assets within the required time-frame, the Buyer forfeits all rights to the Assets.
All Bids are made net of any and all Taxes, including but not limited to Value Added Tax (VAT), General Sales Tax or Use Tax, that may be imposed with respect to the purchase of the Assets and/or the payment of the Buyer’s Premium. Buyers are liable for all such Taxes or for establishing a valid exemption certificate from such Taxes, and the amount payable by Buyer to DMC and/or the Seller will be increased by any such applicable Taxes. Buyer hereby acknowledges and agrees that DMC and/or the Seller are providing a service in the calculation, reporting and remittance of applicable Taxes for transactions that arise in connection with Buyer’s use of the Site, and that the Buyer ultimately remains liable for, and indemnifies DMC and/or the Seller against, any applicable Tax liabilities, including but not limited to any Taxes required to be paid by DMC and/or the Seller to the relevant local tax authorities and not collected from the Buyer on or before the date on which the Buyer is issued with the Bill of Sale. Buyers are advised to seek their own tax advice.
Any Buyer who claims one or more exemptions from any such Taxes expressly agrees to provide proof satisfactory to DMC and/or the Seller, in the sole discretion of DMC and/or the Seller, of such Buyer’s entitlement to each such exemption. In the absence of proof satisfactory to DMC and/or Seller, in our sole discretion, Taxes shall be paid by the Buyer. DMC and/or Seller are not obliged to refund Taxes due to late submission of Tax exemption documentation.
7 DELIVERY AND TRANSFER OF TITLE AND RISK
7.1 Transfer of Title and Risk
In exchange for payment of all funds the Seller, or DMC on behalf of Seller, shall issue the Buyer with a Bill of Sale whereby Seller shall transfer, convey, sell, deliver and assign to Buyer the Assets in their present condition and location (the Removal Location), free and clear of all liens, claims and other encumbrances. The Bill of Sale may be issued electronically and Title to the Assets including all risk of loss / damage, shall transfer to Buyer immediately upon issue of the Bill of Sale. To the extent that Buyers want to limit their risk of loss / damage, the Buyer is responsible for insuring any such risks.
Buyer shall be responsible for all title, registration, freight and transportation costs and shall use the Assets in accordance with all applicable laws.
7.2 Delivery of Assets
Unless specified otherwise in a Listing, delivery of the Assets shall be Ex Works (as defined in INCOTERMS 2010) at the Removal Location.
8 REMOVAL OF ASSETS
8.1 Removal of Assets
Buyer hereby expressly acknowledges and agrees that time is of the essence in performing Buyer’s obligations associated with the purchase and removal of the Assets.
Unless otherwise specified in the Listing, it is agreed that:
a) the Buyer shall be responsible for the removal, loading and transportation of the Assets, including all associated costs and risks;
b) the Buyer shall collect and remove the Assets within the Collection Deadline which shall be not later than 30 calendar days after the Buyer has been issued with a Bill of Sale for such Assets. For avoidance of doubt, the Buyer shall not be permitted to remove Assets until all payments due have been made, including the Buyer’s Premium and any applicable Taxes, and the Buyer has been issued with a Bill of Sale for such Assets;
c) the Buyer shall remove the Assets during normal business hours by prior arrangement with, and subject to the supervision of, DMC and/or Seller or their respective nominated agent/s or representative/s;
d) if so requested by either DMC and/or the Seller, the Buyer shall be obliged to provide method statements and/or risk assessments for the removal of the Assets to the satisfaction of the Seller and/or the Seller’s appointed agent/s or representative/s. Buyer shall further undertake to remove the Assets in compliance with any such agreed method statement;
e) the Buyer shall take all due care during removal process and will be responsible for any damage caused to the Removal Location. Save to the extent that the Buyer shall make good, with the consent and approval of DMC and/or the Seller, any damage to the land and/or buildings, the Buyer hereby indemnifies DMC Group and the Seller against any costs, damage, claims and other liabilities arising from such damage;
f) the Buyer shall be responsible for ensuring that, throughout the removal process, Buyer and any of Buyer’s employees, affiliates, associates, agents, invitees, independent contractors, subcontractors, or other representatives comply fully with all security, environmental, and health and safety legislation, rules and regulations applicable at the Removal Location. The Buyer hereby indemniﬁes DMC Group and/or the Seller against any costs, damage, claims and other liabilities arising from any breach by the Buyer and any of Buyer’s employees, affiliates, associates, agents, invitees, independent contractors, subcontractors, or other representatives of such legislation, rules or regulations;
g) the Buyer is responsible for all work required to disconnect any Assets which are connected or fixed to any supply services, another Asset, or the land and/or buildings in any way. All such work must be carried out by suitably qualified persons, safely and lawfully and without the use of flame cutters, explosives or any other dangerous equipment or processes (unless with the express written permission of the Seller, given expressly in relation to that removal);
h) the Buyer is responsible for the removal from the Removal Location of any ﬂuids and/or waste contained in and/or emanating from the purchased Assets and shall carry out the removal strictly in accordance with all current legislation, rules and regulations governing those ﬂuids or waste. The Buyer hereby indemniﬁes DMC Group and/or the Seller against any costs, damages, claims and other liabilities arising from any breach by the Buyer and any of Buyer’s employees, affiliates, associates, agents, invitees, independent contractors, subcontractors, or other representatives of such legislation, rules or regulations;
i) DMC and/or the Seller shall have no responsibility to disconnect utilities to any purchased Assets, including electric, gas, waste and water lines;
j) in the event that DMC and/or the Seller consider that the removal of the Assets will be likely to cause serious damage to the Removal Location, and agreement cannot be reached between the Buyer and DMC and/or the Seller on a satisfactory method statement for removal of the Assets, then DMC may by notice to the Buyer rescind the sale of such Assets;
k) DMC and/or Seller or their respective nominated agent/s or representative/s reserve the right to stop the removal process if in their sole discretion they deem that the removal process is being carried out in an unsatisfactory manner;
l) the Buyer shall provide, or shall ensure that Buyer’s affiliates, associates, agents, invitees, independent contractors, subcontractors, or other representatives performing removals on behalf of the Buyer shall provide, evidence of insurance policies satisfactory to DMC and/or the Seller;
m) the Buyer shall follow any special collection requirements set by the Seller;
n) the Buyer acknowledges that neither DMC, nor Seller nor their respective appointed agent/s or representative/s are obliged to give any other support or owes any other performance other than those described in these Terms and Conditions. In particular, the Buyer acknowledges that neither DMC nor the Seller are obliged to give any start-up assistance or trouble-shooting support during re-assembling or start-up of the Assets;
o) DMC or the Seller may require the Buyer to pay a deposit prior to collection of any purchased Assets to cover any possible damage to the Removal Location, and the deposit shall be returned to the buyer within 5 working days of the Buyer collecting the Assets without damage to the Removal Location.
8.2 Removal Location is a Potentially Dangerous Place
The Buyer acknowledges that the Removal Location is a potentially dangerous place. Flammable, noxious, corrosive and pressurized substances may be present. Heavy equipment may be operated, and electrical circuits may be live. Every person enters the Removal Location, either before, during and/or after the Sale, at his or her own risk with notice of the condition of the premises, the activities on such premises, and the conduct of third parties. The Buyer hereby agrees and undertakes to so advise their employees, affiliates, associates, agents, invitees, independent contractors, subcontractors, or other representatives of the foregoing prior to entering the Removal Location.
No person shall have any claim against DMC Group, the Seller or Seller’s employees, agents, or other representatives for any injuries sustained or for damages to or loss of property that may occur at the Removal Location and the Buyer specifically agrees to defend and indemnify DMC Group, the Seller and Sellers’s employees, agents or other representatives against any claims brought by Buyer’s employees, affiliates, associates, agents, invitees, independent contractors, subcontractors or other representatives relating to the inspection, removal, and transportation of any Assets.
Nothing in this clause shall limit or exclude liability for death or personal injury resulting from the gross negligence or wilful misconduct of DMC.
8.3 Hazardous Materials
It is expressly brought to the Buyer’s attention that, at the time of sale, any Assets:
a) may not necessarily comply with the Health and Safety at Work Etc. Act 1974, Environmental Protection Act 1990 or any other UK and/or EC Acts, Regulations, Directives or their applicable laws or equivalent or similar laws in any relevant jurisdiction; and
b) could contain blue or white asbestos, hazardous substances, dangerous chemicals etc. which if not handled correctly during their removal from a site could be in breach of the Health & Safety at Work Etc. Act 1974, Control of Substances Hazardous to Health Regulations 2002 or any other current legislations covering the use of such substances in a working environment in the UK, the EC, the United States or any other relevant jurisdiction.
DMC and/or Seller have no duty to remove any hazardous substances that are contained in or are a part of any Asset. The Buyer undertakes to comply with all current applicable legislations in any relevant jurisdiction and reasonable instructions by DMC and/or the Seller or their respective employees, agents or representatives in relation to the removal/disposal of waste including hazardous waste.
The Buyer undertakes to remove, ship and use any purchased plant and equipment within any relevant jurisdiction in a way that does not contravene any relevant legislation and in full compliance with all applicable health and safety standards and regulations. The Buyer hereby indemniﬁes DMC and/or the Seller against any costs, damage, claims and other liabilities arising from any breach by the Buyer of such legislation, rules or regulations.
8.4 Abandoned Assets
DMC are not responsible for Assets which have not been removed on or before the specified Collection Deadline. If Assets are not removed on or before the specified Collection Deadline, and the Buyer has not received written confirmation of an extension to the Collection Deadline from DMC or the Seller, then the Buyer shall without further notice be deemed to have breached these General Ts&Cs and to have abandoned all rights, title and interest in the Assets including their purchase price. DMC will provide Buyers with a notice of breach of the General Ts&Cs further to which DMC and/or the Seller shall, at their discretion, be entitled to:
a) charge the Buyer additional storage and handling fees for each day that the Assets remain at the Removal Location after the Collection Deadline;
b) leave the Assets at the Removal Location at the risk of the Buyer;
c) resell, scrap, destroy or otherwise dispose of any such abandoned Assets at the Buyer’s cost and expense and without obligation to refund any previous payments which Buyer made for the abandoned Assets.
The Buyer agrees to comply with all applicable export control and related laws and regulation and not to violate any applicable local, state, national or international law, statute, ordinance, rule or regulation. Buyers acknowledge that DMC is not the exporter of any purchased asset unless expressly stated. DMC makes no representation or warranty concerning, and has conducted no investigation to ascertain which Assets, if any, constitute, for example, “Restricted Technology” for US law purposes or whose export is otherwise restricted under applicable law. DMC and/or the Seller reserves the right to cancel or rescind any sale at any time in the event it determines, in its absolute discretion, that the sale does or may violate applicable export or import control or related laws and regulations.
10 DISCLAIMER OF WARRANTIES
10.1 Assets Sold on “As Is Where Is” basis with No Warranties
BY REGISTERING, BUYER EXPRESSLY ACKNOWLEDGES AND AGREES THAT ALL SALES ARE FINAL AND ON AN “AS IS, WHERE IS”, “IN PLACE”, “WITH ALL FAULTS” BASIS WITH NO CONDITIONS OR WARRANTIES, WHETHER EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OR CONDITIONS AS TO:
(C) FITNESS FOR PARTICULAR PURPOSE(S),
(J) CONFORMITY TO ANY STANDARD IN RESPECT OF SAFETY, POLLUTION OR HAZARDOUS MATERIAL OR TO ANY STANDARD OR REQUIREMENT OF ANY APPLICABLE AUTHORITY, LAW, RULE, ORDINANCE, OR REGULATION,
(L) AGE, YEAR OF MANUFACTURE, MODEL, OR MAKE,
(XIII) OR OTHERWISE.
DMC AND SELLER EXPRESSLY DISCLAIM TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW ALL WARRANTIES, EXPRESSED, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WITHOUT LIMITATION, WARRANTIES OR CONDITIONS AS TO (I) TITLE, (II) DESCRIPTION, (III) FITNESS FOR PARTICULAR PURPOSE(S), (IV) QUANTITY, (V) QUALITY, (VI) MERCHANTABILITY, (VII) STATE, (VIII) CONDITION, (IV) LOCATION, (X) CONFORMITY TO ANY STANDARD IN RESPECT OF SAFETY, POLLUTION OR HAZARDOUS MATERIAL OR TO ANY STANDARD OR REQUIREMENT OF ANY APPLICABLE AUTHORITY, LAW, RULE, ORDINANCE, OR REGULATION, (XI) FINANCABILITY, (XII) AGE, YEAR OF MANUFACTURE, MODEL, OR MAKE, (XIII) OR OTHERWISE.
BUYER AGREES TO REPAIR, AT BUYER’S COST, ANY ASSET PURCHASED TO A SAFE OPERATING CONDITION AND, WITHOUT LIMITATION, TO A CONDITION WHICH MEETS ANY STANDARD OR REQUIREMENT OF ANY APPLICABLE AUTHORITY, LAW OR REGULATION INCLUDING THOSE CONCERNING ANY USE TO WHICH THE ASSET MAY BE PUT.
DMC AND SELLER EXPRESSLY DISCLAIM TO THE GREATEST EXTENT PERMITTED BY APPLICABLE LAW ANY WARRANTY OR OTHER OBLIGATION ON ACCOUNT OF ANY CLAIM OF INFRINGEMENT OR MISSAPPROPRIATION OF PATENTS, COPYRIGHTS, OR OTHER INTELLECTUAL PROPERTY RIGHTS IN CONNECTION WITH THE ASSETS.
UNLESS OTHERWISE STATED IN A LISTING, PHOTOGRAPHS, VIDEO, AND WRITTEN DESCRIPTIONS ARE NOT INTENDED AS REPRESENTATIONS, BUT ARE PROVIDED SOLELY TO AID BUYERS IN DETERMINING WHICH LISTINGS BUYERS WISH TO PHYSICALLY INSPECT.
BUYERS ARE STRONGLY ENCOURAGED TO INSPECT ALL ASSETS BEFORE BIDDING.
10.2 No Reliance on Information
All descriptions, advertising, lot catalogues, or any other source of information (oral or written) concerning the Assets provided by DMC or otherwise obtained by a Buyer from a source other than DMC (collectively, the “Information”) are subject to additions, deletions, amendments, and modifications at any time prior to purchase and sale.
Buyer expressly acknowledges and agrees that no sale of any Asset may be invalidated because of an error, inaccuracy, or other fault in the Information. Buyer hereby expressly acknowledges and agrees that the Information have been prepared for informational purposes only and shall not and may not be relied upon by any Buyer for any purpose, including (without limitation) accuracy or completeness.
By placing Bids on Assets, Buyer represents, warrants, covenants and agrees that it is relying upon its own investigation, inspection, research, and analysis of the Asset(s) for which a Bid has been submitted and that Buyer is not in any way relying upon the Information provided by DMC, Seller or any other third party.
11 LIABILITIES AND INDEMNITIES
To the extent permitted by applicable law, DMC Group are not liable for any claims, damages or losses whatsoever (including, but not limited to, personal injury or death, or loss of or damage to property) resulting directly or indirectly from the performance, contemplated performance or non-performance of this Agreement and including but not limited to any claims, damages or losses relating to:
a) Buyer’s use of or inability to use DMC Services or Site;
b) Buyer’s inspection, purchase, removal, transportation and/or subsequent use of Assets sold on DMC Site;
c) Pricing, shipping, tax or other guidance provided by DMC;
d) Delays or disruptions in DMC Services or Site;
e) Viruses or other malicious software obtained by accessing, or linking to, DMC Services or Site;
f) Glitches, bugs, errors, or inaccuracies of any kind in DMC Services or Site;
g) Damage to Buyer’s hardware device or other computer systems or software from using any of DMC Services or Site;
h) A suspension or other action taken regarding Buyer’s account;
i) Buyer’s need to modify practices, content, or behaviour or Buyer’s loss of or inability to do business, because of changes to these General Ts&Cs or to DMC Services or Site;
j) Buyer’s inability to import or export Assets, or fines or costs incurred related to the import or export of Assets.
k) Any act or omission of a third-party, including without limitation third-party Sellers and their agents or representatives; or
l) Any dispute between Buyer’s and a third-party Seller, including claims relating to Assets sold by such third-party Seller on our Site.
Buyer hereby agrees to indemnify, defend, and hold harmless DMC Group from and against and with respect to any and all claims, demands and damages of every kind and nature, known and unknown (including, but not limited to actual damages, personal injury or death, or loss of or damage to property) arising out of or connected with the performance, contemplated performance or non-performance of this Agreement.
Further, Buyer expressly waives any protections (whether statutory or otherwise) that would otherwise limit the coverage of this release to include only those claims which Buyer may know or suspect to exist in Buyer’s favour at the time of agreeing to this release. If Buyer is a California resident, this means the Buyer expressly acknowledges and agrees to waive both known and unknown claims under the California Civil Code Section 1542, which provides that : “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.”
12 LIMITATIONS OF LIABILITY
Notwithstanding the provisions of clause 11 of this Agreement, if DMC are found to be liable to Buyer, or to Buyer’s employees, affiliates, associates, agents, invitees, independent contractors, subcontractors or other representatives, for any reason, then DMC’s total cumulate liability in contract, tort (including negligence or breach of statutory duty), misrepresentation, restitution or otherwise arising in connection with the performance or contemplated performance of this Agreement shall be limited to the amount of the Buyer’s Premium paid by the Buyer to DMC in relation to the Assets in respect of which the claim arises.
Nothing in these T&Cs shall limit or exclude liability for death or personal injury resulting from the gross negligence or wilful misconduct of DMC, or any other statutory or other liability which cannot be limited or excluded under applicable law.
In the case of Assets located in the United Kingdom, notwithstanding any contrary provision in these T&Cs, DMC does not limit or exclude its liability in respect of fraud, any breach of section 12 of the Sale of Goods Act 1979.
This clause 12 shall apply notwithstanding any provisions to the contrary elsewhere in this Agreement, with sole exception of the provisions of clause 13. In event of a conflict between the provisions of this clause 12 and the provisions of clause 13, the provisions of clause 13 shall take precedence.
13 CONSEQUENTIAL LOSS
For the purposes of this clause, the expression “Consequential Loss” means:
(a) consequential loss or indirect loss under English law; and
(b) damages and losses of every kind and nature, known and unknown, including but not limited to loss of contract, loss of use, loss of money, loss of revenue, loss of profit or anticipated profit (if any), loss of savings or anticipated savings (if any), damage to goodwill or reputation, attorneys fees, or any intangible losses in each case whether direct or indirect to the extent that these are not included in (a), and whether or not foreseeable.
Notwithstanding any provision to the contrary elsewhere in this Agreement, the Buyer shall save, indemnify, defend and hold harmless DMC Group from Buyer’s own Consequential Loss, arising from, relating to or in connection with the performance, contemplated performance, or non-performance of this Agreement.
All exclusions and indemnities given under this clause shall apply irrespective of cause and notwithstanding the negligence or breach of duty (whether statutory or otherwise) of DMC Group or any other entity or party and shall apply irrespective of any claim in tort, under contract or otherwise at law.
14 OWNERSHIP OF INTELLECTUAL PROPERTY IN ASSETS
Buyer acknowledges that any software or intellectual property rights attaching to an Asset may not be the property of the Seller or capable of transfer by the Seller unless expressly stated in a Listing. Neither the Seller nor DMC is in any way authorizing the use by Buyer of such software or intellectual property rights and any use of such software or exploitation of such intellectual property rights shall be at Buyer’s sole risk.
15 TECHNOLOGY DISCLAIMER
DMC makes reasonable endeavours to ensure that the Site is normally available 24 hours a day, but DMC shall not be liable if for any reason the Site is unavailable at any time or for any period, for any reason whatsoever. Access to the Site may be disrupted and/or suspended without notice in event of system failure, maintenance or repair, or for reasons beyond DMC’s control. DMC reserves the right, at our sole discretion, to relist and/or adjust the closing date for any Listing due to system failure, maintenance or repair. Buyer understands and agrees that Buyer is not relying on DMC, and that DMC shall not be liable to Buyer for any matter, in respect of the above.
16 LAW AND DISPUTE RESOLUTION
16.1 Governing Law
These General Ts&Cs shall be governed by and construed according to the laws of England.
16.2 Dispute Resolution
Any dispute and/or differences that may arise between DMC and Buyer shall be settled by mutual discussion among the Parties themselves and if the same is not settled within 30 days of the occurrence of such disputes or differences the matter will be referred to the chief executive of each of DMC and the Buyer for resolution within 14-day period.
Failing resolution, the matter in dispute shall then be referred to arbitration in London in accordance with the Arbitration Act of 1996 or any statutory modification or re-enactment thereof save to the extent necessary to give effect to the provisions of this Clause.
17.1 Electronic Communications
When Buyers use the Site or send emails to DMC, Buyers are communicating electronically. DMC will communicate with Buyers via email or by posting notices on the Site. Buyers hereby consent to receiving communications from DMC electronically and agree that all agreements, notices, disclosures and other communications that we provide to you electronically satisfy any legal requirement that such communications be in writing.
Notices to DMC:
Any legal notice under these General Ts&Cs to DMC shall be served by hand delivering it or by prepaid recorded or special delivery post or prepaid international recorded airmail to:
Dixon Marine Consulting Limited,
11 White Hart Street,
Norfolk NR11 6HG,
or to such other address as DMC may notify from time to time.
Notices to Buyers:
Notices under these General Ts&Cs will be given via email to the email address provided by Buyer to DMC during registration, or as subsequently amended by you. Notice shall be deemed given 24 hours after the email is sent. If Buyer’s email address changes, Buyer is responsible for notifying DMC of such change by updating Buyer’s account details within the Site.
Any notice or other communication given under or in connection with this Agreement shall be in writing, addressed to the respective party (DMC or Buyer) at its registered office (if it is a company) or its principal place of business (in any other case) or such other address as that party may have specified to the other party in writing in accordance with this clause, and shall be given by one of the following methods: delivered personally, sent by pre-paid first class post or other next working day delivery service, commercial courier, fax or e-mail.
A notice or other communication shall be deemed to have been received:
– if delivered personally: when left at the address referred to in clause;
– if sent by pre-paid first-class post or other next working day delivery service: at 12 noon on the second Business Day after posting;
– if delivered by commercial courier: on the date and at the time that the courier’s delivery receipt is signed; or,
– if sent by e-mail, one Business Day after transmission.
The provisions of this clause shall not apply to the service of any proceedings or other documents in any legal action.
If any provision of these General Ts&Cs is found to be unenforceable, that provision shall be severed and the remainder of these General Ts&Cs shall continue in full force effect.
The waiver by DMC of a breach by Buyer of any provision of these General Ts&Cs shall not operate or be construed as a waiver of any other or subsequent breach by Buyer.
The waiver by Buyer of a breach by DMC of any provision of these General Ts&Cs shall not operate or be construed as a waiver of any other or subsequent breach by DMC.
DMC may at any time assign, transfer, mortgage, charge, subcontract or deal in any other manner with all or any of its rights or obligations under these General Ts&Cs.
Buyer may not assign, transfer, mortgage, charge, subcontract, declare a trust over or deal in any other manner with any or all of its rights or obligations under this Agreement without the prior written consent of DMC.
DMC may amend these General Ts&Cs (including any document incorporated by reference) at any time by posting the amended terms on the Site. DMC’s right to amend these General Ts&Cs includes the right to modify, add to, or remove terms in these General Ts&Cs. All amended terms will automatically be effective after they are posted on the Site. Buyer’s continued use of the Site after DMC posting of any amendment will constitute Buyer’s acceptance of such changes. Changes to these General Ts&Cs will be effective from the time they are placed on the Site. Buyer will not receive any other notice of a change in these General Ts&Cs.
Buyer shall not be entitled to amend these General Ts&Cs unless by mutual agreement with DMC, in which case such amendments shall only be effective if in writing and signed by DMC.
22 INDEPENDENT CONTRACTORS
No agency, partnership, co-auctioneer, joint venture, employee-employer or franchiser-franchisee relationship is intended or created by these T&Cs.
23 THIRD PARTY RIGHTS
DMC Group and Sellers listing Assets on our Sites can enforce any term of these T&Cs. Otherwise no other person who is not a party to these T&Cs has any right to enforce any term of these T&Cs. Buyer acknowledges this includes no rights under the United Kingdom’s Contracts (Rights of Third Parties) Act 1999 or otherwise.
24 FORCE MAJEURE
Except for the obligation to pay amounts due to the other party, neither DMC nor Buyer will be liable for any delay or failure to comply with its obligations under these General Ts&Cs if such delay or failure is caused by a Force Majeure Event. A Force Majeure Event means any event beyond a party’s reasonable control, which by its nature could not have been foreseen, or, if it could have been foreseen, was unavoidable, including but not limited to, severe weather, war or hostilities, insurrection, riot or civil unrest, strike or other labour action, environmental contamination or release of radioactive, chemical or biological agent into the atmosphere, epidemic, pandemic, terrorist act(s), cyber-attack, outage with respect to a third party hosting service or similar events beyond the reasonable control of a party.
25 WAIVER OF CLASS ACTION
EXCEPT WHERE PROHIBITED BY APPLICABLE LAW, Buyer agrees and understands that Buyer will not bring against DMC Group CONSOLIDATED OR REPRESENTATIVE action related to the performance, contemplated performance or non-performance of this Agreement AND ANY SUCH CLAIM WILL BE RESOLVED ONLY ON AN INDIVIDUAL BASIS.
The headings of these General Ts&Cs are for identification only and shall not be deemed to be part hereof or be taken into consideration in the interpretation or construction of these General Ts&Cs.
27 ENTIRE AGREEMENT