General Nexstro Auction Terms and Conditions
These Terms and Conditions apply to any use of the Platform and each and every auction (“Auction”) conducted on nexstro.com, or by Nexstro or its affiliates (collectively “Nexstro VD”) on behalf of one or more sellers (each, a “Seller”) of tangible or intangible property or goods (collectively “Items” and individually an “Item”). Persons who participate in an Auction are referred to in these Terms and Conditions as “Users”. A User who submits the winning bid on an Auction is referred to in these Terms and Conditions as a “Winning Bidder”. Offers or bids submitted by any User in an Auction are referred to individually as a “Bid” and collectively as “Bids”. Nexstro.com, the website auction platform and all associated tools and serves are referred to in these Terms and Conditions as the “Platform”.
BY USING THE PLATFORM, YOU ARE ENTERING INTO A LEGALLY BINDING AGREEMENT WITH NEXSTRO AND ARE AGREEING TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS IN THEIR ENTIRETY, YOU MAY NOT USE THE PLATFORM.
1. POSTPONEMENT; DISPUTES
Nexstro reserves the right to postpone, extend, or cancel any Auction, bid, or items in any Auction at any time without prior notice. By using the Platform, you agree that in any dispute on or relating to the Platform or any Auction or Item or Bid, Nexstro has the exclusive authority to make binding and non-appealable decision(s) regarding any such dispute.
Bids. A Bidder may request to have any bid removed prior to auction close. Once an auction closes, all bids are irrevocable, unless otherwise stated on the Auction page. Nexstro reserves the right to cancel any Bid for any reason at any time prior to the end of an Auction, or after the Auction pursuant to Nexstro’s confirmation of the purchase and sale. All Auctions are subject to confirmation by Nexstro and/or the Seller, meaning that the Winning Bidder’s purchase of the Item(s) is subject to, and conditioned upon, Nexstro’s and/or Seller’s approval of the purchase and sale. If Nexstro and/or the Seller choose not to approve the purchase and sale of the Item(s), Nexstro will refund the Deposit to the Winning Bidder.
The Deposits are non-refundable to the Winning Bidder unless Nexstro and/or the Seller elect not to approve the purchase and sale of the Item(s), as provided above.
Buyer’s Premium. If the Auction page for a particular Item or Items indicates that a “Buyer’s Premium” is in effect for the Auction, the Winning Bidder will be required to pay the Buyer’s Premium, in the amount specified on the Nexstro.com website page for a particular Item or Items, in addition to the Winning Bidder’s Bid amount in accordance with the “Payment” section of these Terms and Conditions.
Default; If payment in full is not received by the end of the stipulated period following the day on which the Auction closed, Nexstro may cancel all Bids. Any Deposit paid by the Winning Bidder will be applied accordingly.
Notice of Reserve. ALL AUCTIONS ARE WITH RESERVE. Pursuant to UCC § 2-328 and applicable state law, notice is hereby given that in the event of a reserve, Nexstro or its affiliates may implement such reserves by bidding on behalf of the seller, using one or more bidder numbers, until the lot or lots have reached a bid amount that is acceptable to the Seller.
Notwithstanding the existence of any reserve, a Seller may accept a bid lower than any reserve price in its sole discretion.
Counterbidding. Except where prohibited by applicable law, Nexstro may counterbid on behalf of a Seller on any Item or Items.
Interest. If Nexstro has an interest in an offered Item or lot other than any commissions, including risk of removal, Seller’s objection to selling an Item or lot for a particular price, or any other interest, Nexstro may bid using one or more “house” bidder numbers to protect such interest.
4. ITEM REPRESENTATION
Descriptions, photos and any other information given by Nexstro or any of its agents or representatives, is solely for informational purposes. Nexstro is not responsible for inaccurate photos, descriptions or information, express or implied. Users are encouraged to view items in person, when possible, and to do their own research and due diligence prior to bidding. All items in any Auction are sold “AS IS”, “WHERE IS”, and “WITH ALL FAULTS” with no warranty, express or implied, unless otherwise stated on the Auction in express terms.
NEXSTRO MAKES NO REPRESENTATIONS OR WARRANTIES WHATSOEVER, EXPRESS OR IMPLIED, WITH RESPECT TO ANY AUCTION OR ITEM OR ITEMS, INCLUDING, WITHOUT LIMITATION, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSES, TITLE AND NON-INFRINGEMENT. EACH USER HEREBY RELEASES AUCTION NATION AND ITS REPRESENTATIVES, AFFILIATES, SUBSIDIARIES, EMPLOYEES, OFFICERS, DIRECTORS, ATTORNEYS OR AGENTS (“REPRESENTATIVES”) FROM ANY AND ALL CLAIMS THAT SUCH USER MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST AUCTION NATION OR ANY REPRESENTATIVES FOR ANY DAMAGES, INJURY, EXPENSES, LOSSES, CLAIMS, COSTS, OR LIABILITIES ARISING FROM OR RELATED TO ANY ERROR, INFORMATION, OMISSION, ACT, OR CONDITION AFFECTING ANY ITEM OR ITEMS IN ANY MANNER WHATSOEVER. THIS SECTION SURVIVES ANY TERMINATION OF THESE TERMS AND CONDITIONS.
5. LIMITATION OF LIABILITY
USERS VIEW AUCTIONS AND SUBMIT BID(S) AT THEIR OWN RISK. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, NEITHER NEXSTRO NOR ANY OF ITS REPRESENTATIVES SHALL UNDER ANY CIRCUMSTANCES BE LIABLE TO ANY USER (INCLUDING WINNING BIDDERS) OR THIRD PARTY FOR ANY DAMAGES, INJURY, EXPENSES, LOSSES, CLAIMS, COSTS, OR LIABILITIES ARISING FROM OR RELATED TO THE USE OF THE PLATFORM, OR PARTICIPATION AS A USER OR SELLER IN ANY AUCTION OR RELATED IN ANY WAY TO THE PLATFORM. THE FOREGOING LIMITATION OF LIABILITY EXTENDS TO ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, PUNITIVE OR EXEMPLARY DAMAGES. THIS PARAGRAPH SURVIVES ANY TERMINATION OF THESE TERMS AND CONDITIONS.
You agree to indemnify, defend, and hold Nexstro and Nexstro’s Representatives harmless, including any and all damages, losses, costs, liabilities and legal fees, from any claim or demand made by any third party arising out of or relating to: (A) your access to or use of the Platform; (B) your violation of any third party right, including without limitation any copyright, property, or privacy right; or (C) any violation of these Terms and Conditions. Nexstro reserves the right, at your expense, to assume the exclusive defense and control of any matter subject to this indemnification, and you agree to cooperate in such defense. You agree not to settle any matter in which you have indemnity obligations without Nexstro’s prior written consent. This paragraph survives any termination of these Terms and Conditions
7. LIMITED LICENSE
The Platform is owned or licensed by iProo BIM. Nexstro grants Users a limited, transferable and revocable license to use the Platform as provided in these Terms and Conditions. Any copying, adapting, modifying, distribution, licensing, sale, transfer, display, transmission, broadcast, or other use of the Platform without Nexstro’s express written consent is prohibited. Any violation by any User of these Terms and Conditions, including this paragraph, may result in immediate termination of the limited license and right to use the Platform.
8. PROHIBITED USE
No User may use or access the Platform, or cause or allow the Platform to be used or accessed by any third party, in any way that violates these Terms and Conditions, including any use which:
- Violates any law;
- Competes with Nexstro’s business, directly or indirectly, in Nextsro\s sole discretion;
- Impairs the Platform or any Nexstro property, whether through transmission of software viruses, harmful files, or excessive use;
- Interferes with any other User’s or Nexstro’s use of the Platform;
- Threatens, harms, harasses, misleads or deceives others, including other Users or Nexstro;
- Solicits personal information from any User;
- Defames any other User or Nexstro;
- Promotes illegal substances, pornography, discrimination or bigotry, or other information which Nexstro determines to be harmful to the Platform or Nextsro’s business or any Users;
- Creates any derivative works of the Platform, or any other adaptation or modification of the Platform; or
- Attempts to gain or gains unauthorized access to the Platform in any manner whatsoever.
9. LEGAL DISPUTES
PLEASE READ THIS SECTION CAREFULLY. IT AFFECTS YOUR RIGHTS AND WILL HAVE A SUBSTANTIAL IMPACT ON HOW CLAIMS YOU AND NEXSTRO HAVE AGAINST EACH OTHER ARE RESOLVED.
You agree that any claim or dispute at law or equity that has arisen, or may arise, between you and Nexstro (including any claim or dispute between you and a third-party agent of Nexstro) that relates in any way to the Platform or arises out of this or previous versions of these Terms and Conditions, your use of or access to the Platform, the actions of Nexstro or its Representatives, or any products or services sold or purchased through the Platform, will be resolved in accordance with the provisions set forth in this Legal Disputes section.
- Applicable Law. Except to the extent preempted or inconsistent by federal law, the laws that govern these Terms and Conditions and the Platform and any claim that has arisen or may arise from the same, without regard to conflict of laws principles.
- Arbitration. You and Nexstro agree that any and all disputes or claims that have arisen, or may arise, between you and Nexstro or its Representatives that relate in any way to or arise out of this or previous versions of these Terms and Conditions, your use of or access to the Platform, the actions of Nexstro or its Representatives, or any products or services sold or purchased through the Platform shall be resolved exclusively through final and binding arbitration, rather than in court. Alternatively, you may assert your claims in small claims court, if your claims qualify and so long as the matter remains in such court and advances only on an individual (non-class, non-representative) basis. The Federal Arbitration Act governs the interpretation and enforcement of this section.
- YOU AND NEXSTRO AGREE THAT EACH OF US MAY BRING CLAIMS AGAINST THE OTHER ONLY ON AN INDIVIDUAL BASIS AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS, OR REPRESENTATIVE OR PRIVATE ATTORNEY GENERAL ACTION OR PROCEEDING. UNLESS BOTH YOU AND NEXSTRO AGREE OTHERWISE, THE ARBITRATOR MAY NOT CONSOLIDATE OR JOIN MORE THAN ONE PERSON’S OR PARTY’S CLAIMS. THE ARBITRATOR MAY AWARD RELIEF (INCLUDING MONETARY, INJUNCTIVE, AND DECLARATORY RELIEF) ONLY IN FAVOR OF THE INDIVIDUAL PARTY SEEKING RELIEF AND ONLY TO THE EXTENT NECESSARY TO PROVIDE RELIEF NECESSITATED BY THAT PARTY’S INDIVIDUAL CLAIM(S). ANY RELIEF AWARDED CANNOT AFFECT OTHER USERS. If a court decides that applicable law precludes enforcement of any of this paragraph’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to the right to appeal the court’s decision. All other claims will be arbitrated.
- Procedures. An arbitrator should apply the terms of these Terms and Conditions as a court would. All issues are for the arbitrator to decide, except for issues related to the ability or requirement to arbitrate or the scope or enforcement of this section or these Terms and Conditions. The arbitration shall be conducted by the American Arbitration Association (“AAA”) under its rules and procedures determined by Nexstro. The AAA’s rules are available at www.adr.org.If you intend to seek arbitration, you must first send to Auction Nation a written notice by certified mail specifying in detail the claim or claims you seek to arbitrate, including, without limitation, the date upon which the claim or claims were discovered, the alleged basis for such claim or claims, any and all relief sought, and any efforts prior to such written notice that were made in an effort to resolve the dispute. The notice must be sent to Nexstro via mail. If you and Nexstro are not able to resolve the claim or claims within 60 days of the date of Nexstro’s receipt of the written notice, you or Nexstro may arbitrate the claim or claims. In addition to filing the appropriate forms with the AAA in accordance with its rules and procedures, you must mail a copy of the completed forms to Nexstro. The arbitrator will determine the substance of the claim or claims in accordance with the AAA rules and regulations and applicable law. The arbitrator shall not be bound by rulings in prior arbitrations involving any other User but is bound by any prior ruling including the same User who brought the instant arbitration claim or claims. The arbitrator’s award is final and binding and non-appealable, and judgment on the award rendered by the arbitrator may be entered in any court having proper jurisdiction.
- Costs. All fees and costs related to any claim submitted to arbitration are governed by the AAA’s rules and regulations. In any arbitration arising out of or related to these Terms and Conditions, the arbitrator shall award to the prevailing party, if any, the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration. If the prevailing party won on some but not all of the claims and counterclaims, the arbitrator may award the prevailing party an appropriate percentage of the costs and attorneys’ fees reasonably incurred by the prevailing party in connection with the arbitration.
- Forum. In the event that the above arbitration procedures are found not to apply to you or to a particular claim or claims or dispute, you agree that any claim or claims or dispute that arises or has arisen shall be subject to the exclusive jurisdiction of the state or federal courts. You and Nexstro agree to submit to the personal jurisdiction of the courts for purposes of litigating any such claim or claims or disputes.
- Survival. This section survives any termination of these Terms and Conditions.
Nexstro may amend these Terms and Conditions at any time by posting the amended Terms and Conditions on Nexstro.com. Such amendment may include modification, addition or removal of terms in these Terms and Conditions. Your continued access and/or use of the Platform constitutes acceptance of any such amended Terms and Conditions. Nexstro may also request that you accept the Terms and Conditions affirmatively through the Platform.
Except as otherwise provided in these Terms and Conditions, if any provision of the Terms and Conditions is held to be invalid, void or for any reason unenforceable, such provision shall be struck out and shall not affect the validity and enforceability of the remaining provisions.
If you create an account or use an account on the Platform on behalf of an entity, you represent and warrant that you are authorized to act on behalf of said entity and are able to bind such entity to these Terms and Conditions. By creating an account or using such an account on the Platform, you understand that Nexstro is relying on your representation and warranty by allowing the entity’s participation in Auctions and use of the Platform.
The creation of an account by and User for or on behalf of any other person is strictly prohibited. The use of any account by a person who is not the owner (or authorized agent, if the account is registered to an entity) of such account is strictly prohibited. Nexstro may terminate your ability and/or the account holder’s ability to use the Platform or participate in Auctions, or cancel any Bids placed by you or the account holder (under the same account or otherwise) for violation of the terms and conditions in this section.