These online terms and conditions (“Terms and Conditions”), which may be amended from time and time, shall govern the relationship between XLerate Group, and its various subsidiaries and affiliates (collectively, “XLerate”) and the persons or entities (“Customer”) using XLerate’s online auction services (“Online Auctions”). 

  1. General. Customers that wish to participate in the Online Auctions as a Customer that purchases a consigned Vehicle (as defined below) (“Buyer”) and a Customer that consigns a Vehicle (collectively, “Seller”) agree to these Terms and Conditions as consideration of XLerate permitting such participation.  Breach of these Terms and Conditions may result in the assessment of penalties, and/or temporary or permanent suspension of Online Auction privileges.

 

  1. Eligibility and Registration. Customer warrants that Customer is a licensed retail wholesale dealer (collectively, “Dealer”) of automobiles, motorcycles, recreational vehicles, power equipment, vessels, and recreational watercraft (collectively, “Vehicles”).  Xlerate participates in the AuctionACCESS® and requires all Buyers to completely register with AuctionACCESS®, 

 

  1. Accuracy of Information. Customer certifies and agrees that all registration and representative information that is provided to XLerate and/or AuctionACCESS®, is true, correct, and complete, and that Customer will promptly notify AuctionACCESS®, if there is any change to the information.

 

  1. Electronic Signature. Customer acknowledges and agrees that XLerate may utilize electronic signature(s), acknowledge(s), consent(s), “clickthrough(s),” or other approval(s), direct and indirect, for access to online auction, transfer document(s), disclosure(s), and other necessary documents to the transaction(s).  

 

  1. Authorized Representatives/Authorized Users. Customer authorizes the person(s) designated in the AuctionACCESS® Application and other documents as “Authorized Representative(s)” Or “Authorized User(s)” to purchase and sell Vehicles on Customer’s behalf. The authority of the Authorized Representatives shall continue in full force and effect until terminated by Dealer in AuctionACCESS®.   Attempted oral revocation, alteration, or naming of additional Authorized Representatives shall be of no effect whatsoever. Customer guarantees, as principal, all transactions made at the Auction by its Authorized Representatives, irrespective of any dispute regarding the actual authority to do the specific transaction. No Authorized Representative shall be under the age of eighteen (18) years and neither Customer nor its Authorized Representative(s) shall bring any person under such age onto the Auction premises as driver, assistant, observer, or otherwise. Auction Company, at its sole discretion, reserves the right not to do business with any Customer and/or Authorized Representative.  

 

  1. Payments. Payments for goods or services must be made by the registered customer purchasing those goods or services or a pre-established direct floor planner acting on that customer’s behalf.  Payments must be made in good funds and in a form, acceptable to XLerate.  XLerate reserves the right, in its sole discretion, to change the forms and types of payment that are accepted at XLerate.  With respect to any fees which may become due from Customer, XLerate may (a) set off, deduct or retain out of any amounts payment to XLerate from amounts it owes to Customer, (b) retain possession of any Vehicles owned or controlled by Customer, (c) withhold title documents until all amounts owed by Customer to XLerate have been paid, (d) cancel the transaction to which the amount owed relates, and/or (e) charge late payment fees of $25 per day, storage fees, and/or charge interest on any past due payments at the rate of one and half percent (1.5%) per month calculated in US dollars, or the maximum rate allowed by law, whichever is less. 

 

  1. Parties to the Transfer. Buyer is the transferee and agrees to purchase the Vehicle; Seller is the transferor and agrees to sell the Vehicle.  XLerate is merely the auctioneer or facilitator in the transaction and expressly disclaims all express and/or implied warranties as to merchantability, fitness for a purpose, or any other matter whatsoever with respect to a Vehicle.  Customer acknowledges and agrees that it is a sophisticated commercial party and agrees to satisfy itself as to the condition and value of a Vehicle and terms of any bid before bidding or selling.  XLerate is not a party to any sale contract, but shall be deemed a third-party beneficiary of such contract, entitled to the parties’ performance and to seek legal remedies for the parties’ breach. Customer further agrees to look at the counter-party in such transaction, and not XLerate, for any legal claims falling outside its rights under the XLerate Arbitration Policy. 

 

  1. Title Transfer/Security Interest. Title to a Vehicle does not pass to Buyer until good funds are received.  Buyer grants XLerate a security interest in each Vehicle to secure payment of the purchase price and of any other debt owing from Buyer to XLerate or its affiliates.  Customer agrees that XLerate may resell any Vehicle, if retained or repossessed, at a regular XLerate sale or through any affiliated sale, online or physical sale, which are established commercially reasonable markets for the sale of Vehicles.

 

  1. Arbitration. Customer agrees that all disputes are between Buyer(s) and Seller(s), and are governed and resolved by National Auto Auction Association’s Arbitration Online (the “NAAA Arbitration Policy”), as may be amended from time to time. [See http://www.naaa.com/standards/standards.html].  Notwithstanding the above, certain commercial Sellers may adhere to their own arbitration policies and procedures.

 

  1. Bids. All offers are not binding until accepted by the Sellers.

 

  1. Vehicle Pick Up Deadline. Vehicles must be removed from the storage property no later than three (3) days following the date of sale, and thereafter, XLerate may charge a reasonable daily fee of up to $25 per day should any Vehicle be left past the pickup deadline. 

 

  1. Seller Obligations. It is Seller’s obligation to fairly represent its Vehicle and to correct any errors made regarding disclosed conditions.  Seller is responsible for the accuracy and completeness of all disclosures regardless of whether Seller has relied on third party resources (e.g. inspection company, vehicle listing service, electronic data vehicle history report, etc.).  Seller acknowledges responsibility for completion and execution of the required odometer mileage statement pertaining to any Vehicle on the invoice for such Vehicle and/or on the certificate of title for such Vehicle.

 

  1. Buyer Obligations. Before bidding on a Vehicle, Buyer is required to know the arbitration rules in place for the Vehicle. 

 

  1. Risk of Loss. Except as otherwise expressly provided in this Terms and Conditions, the risk of loss for a Vehicle shifts from the Seller to the Buyer upon the closing of the sale.

 

  1. Representations.
    1. Seller represents, warrants and guarantees to Buyer that Seller is the true and lawful owner of the Vehicle being sold; possession and conveyance of a certificate of title, properly executed and valid in the state where the transaction is occurring and clear of all liens and encumbrances (except current year California DMV fees), and Seller? warrants and will defend the title, against the claims and demands of all person whatsoever.  Seller further acknowledges that with respect to purchased Vehicles, XLerate has assumed no responsibility to investigate Seller’s title or to otherwise identify defects in Seller’s title or title documents, and makes no warranty whatsoever regarding title or title documents.
    2. Buyer represents, warrants and guarantees to XLerate that it is solvent, that it is a licensed motor vehicle dealer in good standing or otherwise authorized to buy on a commercial wholesale basis in the relevant jurisdiction(s), and that any Vehicle purchased by Buyer is purchased solely for resale.

 

  1. Indemnity. Customer shall indemnify, defend and hold harmless XLerate, its subsidiaries, affiliates, directors, officers, agents, employees, representatives, and as necessary, other Customers, from and against any liability, loss, damage, cost, expense, claim, suit or demand, including, without limitation, attorneys’ fees and other legal costs, resulting from, arising out of or connected, directly or indirectly, with any claim of breach of warranty or by a breach by Customer of any of these Terms and Conditions, including, but not limited to, all claims, allegations, and demands whatsoever challenging the validity of Seller’s title or title documents.

 

  1. Routed Export Transaction.
    1. All Vehicle purchases that become export transactions shall be “routed export transaction” under section 30.3(e) of the Foreign Trade Regulations (15 C.F.R. 30.3(e)), in which the Buyer is acting as the Foreign Principal Party in Interest (“FPPI”). As the FPPI, the Buyer will authorize a U.S. forwarding agent to facilitate the export of such Vehicles from the United States, and prepare and file any required Electronic Export Information (“EEI”).  The Buyer or its forwarding agent shall provide XLerate with a copy of the authorization if requested by XLerate pursuant to section 30.3(e)(2) (15 C.F.R. §30.3(e)(2)).  XLerate shall release the Vehicles purchased by the FPPI through XLerate’s online auctions to the FPPI’s U.S. Forwarding Agent in the United States.
    2. FPPI agrees that neither Xlerate nor the consignors who sell Vehicles through the XLerate’s online auctions will be exporter under the Export Administration Regulations (“EAR”) in such routed export transactions. The FPPI also acknowledges that Vehicles purchased on the XLerate’s online auction could, potentially, be subject to export licensing requirements.  The FPPI agrees to undertake, with respect to Vehicles purchased through the XLerate’s online auctions, the following responsibilities: (1) to determine any applicable export license requirements; (2) to obtain any required export license and/or any other required export authorization; (3) to carry out any customs formalities for the export of the Vehicles; and (4) to authorize the U.S. Forwarding Agent, who will be the exporter for EAR purposes, to act on behalf of the FPPI, in connection with the exportation of such Vehicles and to prepare and file the EEI and any required export license applications.

 

  1. Delivery of Vehicle and Title. Buyer is liable for all expenditures, mileage, wear, damage, and all other losses to a Vehicle after it is purchased.  XLerate is not liable for any expense whatsoever incurred by Buyer in the event title is not delivered.  Seller assumes all risk of loss related to or arising from titles or related documents lost, destroyed, or erroneously completed by the governmental agency processing a title, or any title lost in transit, whether sent by postal service or other couriers.  If the Vehicle is exported, Buyer is responsible for verifying that the Vehicle satisfies all export requirements of the originating country and all import requirements of the destination country.  XLerate is not the importer or exporter, and is not responsible for supplying export or import documentation.  In the event a Vehicle does not meet export requirements; Buyer is responsible for all auction fees and any loss incurred on the resale of the Vehicle.

 

  1. No Right to Do Business. Customers have no obligation to do business with XLerate.  Likewise, Customer agrees and acknowledges that XLerate has no obligation to do business with Customer.  XLerate is a private business; it reserves the right to cease doing business with Customers, at any time, for any reason or no reason, in its sole discretion, collectively or separately among its affiliates; and Customer shall have no right, remedy, or cause of action for same.  Customer acknowledges and agrees that there are numerous sources, other than XLerate, for Customer to acquire and sell Vehicles.

 

  1. Information Sharing. Customer authorizes XLerate to pull, gather, obtain, receive, share, disseminate, and disclose financial, credit, and transactional information about Customer in its sole discretion, including, without limitation, credit histories and limits, buy and sell histories, check information, collateral location and status, and eligibility status, from and with financial institutions, trade creditors, affiliates and third parties, including without limitation AuctionACCESS® and Auction Insurance Agency.

 

  1. Choice of Law and Consent to Jurisdiction. These Terms and Conditions shall be governed and interpreted in accordance with internal laws of the State of Indiana, United States, where XLerate’s corporate office is located, and without regard to Indiana’s internal conflicts of law analysis.  By online acceptance of these Terms and Conditions, Customer submits to the personal exclusive jurisdiction of the courts of the State of Indiana and to venue in the Circuit and Superior Courts of Marion County, Indiana and the federal courts of the United States, sitting in Indiana for the adjudication of any matters arising under or in connection with these Terms and Conditions.  Any action initiated by Customer against XLerate related to these Terms and Conditions shall be filed and conducted in said Courts.  XLerate may bring any suit against Customer under or related to these Terms and Conditions in any court of competent jurisdiction.