1-200 gallon Portable SS Tank, center bottom outlet, agitator bracket, open top

ONLINE AUCTION TERMS & CONDITIONS

Welcome to the Keith Machinery Corp.’s (“KMC”) online auction platform.  The following terms and conditions are binding and apply to all online auctions and related sale events:

1)      Keith Machinery sells everything “AS IS” and “WHERE IS” without any representation or warranty whatsoever, as to quality, condition, mileage, OSHA safety equipment, description, merchantability or fitness for any particular purpose.

2)      Registration and Eligibility.  The Services and surplus assets offered by owner and/or KMC as agent for owner and the event Websites are only available to persons with the legal capacity to enter into this Agreement.  Keith Machinery may, at its sole discretion, refuse to accept a person’s (or entity’s) registration, and may, at any time after accepting registration, refuse to permit a person’s (or entity’s) participation for any reason.

3)      Payment and Asset removal.  Each successful Buyer agrees to pay a 25% deposit toward the purchase price which is due and payable immediately following the successful bid and authorizes Keith Machinery to charge Buyer’s credit card for the amount of such deposit.  If a Buyer fails to make a timely deposit, the assets in question may be resold without notice.  Full payment of the purchase price is due at the earlier of (i) 48 hours after the Buyer has received an invoice, or (ii) the close of the third business day after the subject auction.  Without limiting the foregoing, full payment is due prior to the removal or shipment of purchased assets.  In the event that the Buyer fails to pay the entire purchase price (in addition to the buyer’s premium and any applicable tax) within the time specified by Keith Machinery or otherwise fails to comply with these Terms and Conditions, Keith Machinery will retain the Buyer’s deposit as liquidated damages without notice.  In addition, Keith Machinery reserves the right to resell such items without notice, and the defaulting Buyer shall be liable to Keith Machinery for any resulting deficiency, including any and all costs incurred in storing and reselling such assets.  Keith Machinery will post the removal, or “check-out” period on the day of the auction.  Keith Machinery shall have no responsibility with respect to disconnecting utilities to the sold asset, including electric, gas, waste, and water lines.  It is the Buyer’s sole responsibility to arrange and pay for rigging and shipment of purchased items.  Removal shall be conducted responsibly and with due care for the premises. KMC may require the Buyer to use a specific rigger, including KMC itself, at its sole discretion (this detail will be posted during registration and/or bidding.  The Buyer shall restore and repair all real and personal property that is altered or damaged as a result of the removal of purchased items.  If the Buyer does not remove an item within the announced check-out period, the Buyer will be deemed to have abandoned the item and the Buyer will have no further rights with respect to the item.  No claims of any kind shall be allowed after assets have been removed by the Buyer.

4)      Buyer’s Premium.  Keith Machinery, the amount in its discretion, charges a Buyer’s Premium or other service charge on assets sold.  All such charges will be indicated in the relevant auction brochure, or asset detail page, or clearly marked area of the Website.  Keith Machinery shall charge and collect from each successful bidder an 18% Buyer’s Premium for each sale at the auction, in addition to the purchase price at bid.  Purchasers, who pay in the form of cash, cashier’s check, or wire transfer, shall receive a discount from the Buyer’s Premium equal to 3% of the purchase price.  Invoices paid by credit card or company check will pay the 18% Buyer’s Premium.

5)      In instances where the surplus assets offered are owned by an entity other than KMC, KMC is selling as agent for the owner.

6)      Withdrawal of Auction/Auction Assets.  Buyer acknowledges and agrees that assets in an auction may be withdrawn or sold prior to the end of the designated auction period, that the auction may be discontinued, either temporarily or permanently, and that the auction may, at Keith Machinery’s sole discretion, be modified, all without notice to the Buyer.  Generally, offered assets shall be sold to the highest bidder; provided, however, that some assets may be auctioned with minimum reserve prices, and/or subject to Keith Machinery’s right of confirmation.  Keith Machinery reserves the right to reject any bid that is only a minimal increase over the proceeding bid, that is not commensurate with the value of the item being offered or that Keith Machinery believe was made illegally or in bad faith.  Further, Keith Machinery and/or its affiliates or subsidiaries, may bid at the auction either for its own account or on behalf of a third party.  Any proxy bids made by Keith Machinery shall be considered bids of the third party and not Keith Machinery.

7)      Taxes.  Unless otherwise agreed in writing, Buyer acknowledges and agrees that Keith Machinery is not responsible for the calculation of any taxes or the reporting or remittance of any taxes to any taxing authority, with the possible exception of sales taxes.  Buyer expressly agrees and warrants that it shall comply with any and all applicable laws and regulations, including without limitation, those with respect to taxes.  Buyer agrees to defend, indemnify, and hold harmless Keith Machinery from and against any and all damages, penalties, costs, and expenses incurred by or imposed upon Keith Machinery resulting from any failure by Buyer to comply with applicable tax laws.

8)      No Relationship.  Buyer and Keith Machinery are independent contractors.  Neither party is an agent, representative, broker, employee, partner or joint venture or the other party.  This agreement shall not be interpreted or construed to create an association, joint venture, agency, franchise, or partnership between the parties or to impose any partnership obligation or liability upon either party.

9)      Limitation of Liability.  In no event shall Keith Machinery be liable for any damages that are directly or indirectly related to the use of, or inability to use, the services and surplus assets offered (including prior use history and cleanliness of the surplus assets offered, the website, or the content, materials, and functions related thereto, including without limitation, special, indirect, incidental, consequential, or punitive damages, loss of revenue, or anticipated profits, or lost business, lost goodwill, or lost sales, even if such parts shall have been informed of the possibility of such damages or could have foreseen such damages.  In no event shall the total liability of Keith Machinery to a Buyer for all damages, losses, claims, and causes of action (whether on contract or tort, including, but not limited to, negligence or otherwise) arising from this agreement and/or purchase/sale of surplus assets offered, or the use of the Services or the Website exceed, in the aggregate, one hundred US dollars ($100.00), or, in the case of an asset purchase, the return of the amount actually paid for the asset in question.

               The foregoing limitation shall apply and survive notwithstanding any failure of essential purpose of any remedy.

10)   All potential Buyers must register at www.bidspotter.com prior to the auction or follow other instructions as provided by KMC, and may be required to provide a valid driver’s license and/or credit card. Keith Machinery may, in its sole discretion, deny registration to any person or entity.

11)   All assets in the auction shall be sold to the highest bidder; provided, however, that some assets may be auctioned with minimum reserve prices, and/or subject to Keith Machinery's right of confirmation. Keith Machinery reserves the right to reject any bid that is only a minimal increase over the preceding bid, that is not commensurate with the value of the item being offered or that Keith Machinery believes was made illegally or in bad faith. Further, Keith Machinery, and/or its affiliates or subsidiaries, may bid at the auction either for its own account or on behalf of a third party. In the event of a dispute among Buyers, Keith Machinery may, in its sole discretion, either accept what it deems to be the final bid or solicit further bids on the item in dispute. All sales are final. No returns or refunds will be permitted, unless authorized by the Keith Machinery in writing.

12)   In the event of any dispute concerning the winning bid price for an asset, the record kept by Keith Machinery shall supersede any claims by Buyers.

13)   Buyers may choose to examine or inspect items prior to the day of the auction. ALL ITEMS ARE SOLD AS IS, WHERE IS AND WITH ALL FAULTS. KEITH MACHINERY MAKES NO WARRANTY, EXPRESS OR IMPLIED, AS TO THE NATURE, QUALITY, PRIOR USE HISTORY, CLEANLINESS, VALUE OR CONDITION OF ANY ASSET. KEITH MACHINERY EXPRESSLY DISCLAIMS ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT. Assets are intended to be sold without software, if any is applicable. In the event that software is included in an asset sale, notwithstanding the disclaimers set forth above, Keith Machinery makes no representations or warranties regarding the Buyer's right to use such software, as to the performance of the software, its non-infringement or otherwise. In such circumstances, Keith Machinery recommends that Buyer contact the software manufacturer directly to resolve any such issues.  The BUYER understands it is purchasing used goods in “as is, where is” condition.

14)   Collection of applicable taxes will be in accordance with the laws of the state where the purchased asset is located.  Furthermore, the BUYER / PURCHASER is responsible for all applicable taxes required by law. These assets are located in NEW YORK therefore with respect to sales tax, the following will be adhered to:

NEW YORK

Resellers: A sales tax exemption is allowed for companies purchasing for the purpose of resell and registered in the state of NEW YORK ONLY. Buyer must submit a copy of their NEW YORK issued Resell Permit.

Use in Manufacturing: Exemption is according to state laws.  It is the BUYER’S responsibility to perform to all laws.

Shipment out of State: Allowed if using a third party to ship out of the state.

15)   Keith Machinery accepts the following methods of payment: cash, VISA, MasterCard, American Express, cashier's check, and wire transfer made payable to Keith Machinery Corp. Keith Machinery also will accept a company check which must clear our bank prior to scheduling pick up of assets.

16)   By participating in an auction, each Buyer represents, warrants and covenants that (i) it shall not misrepresent its ability to close the transaction pursuant to the terms and conditions of sale, (ii) it has the capacity to close the transaction, (iii) it has actual authority to enter a bid, and to enter into an agreement to purchase the item, and (iv) any bid it makes on an item constitutes an irrevocable offer to buy the item for the full amount of the bid.

17)   Keith Machinery may, in its discretion, offer the assets for sale by the piece or by the lot. In addition, Keith Machinery may augment this auction with assets from various sellers. Keith Machinery has the right to remove assets from the auction either before or after bidding has completed. In the event of a removal after bidding has been completed, the Buyer's sole remedy shall be the refund of any purchase price actually paid.

18)   Keith Machinery shall not be liable for any damages of any type or nature (whether in contract, tort or otherwise) sustained or claimed by any Buyer or any other person or entity in connection with the auction. Without limiting the foregoing, in no event shall Keith Machinery's liability to any Buyer for any act or omission occurring in connection with the auction event and/or the surplus assets offered, exceed the amount that such Buyer has actually paid to Keith Machinery as a deposit or as payment for a purchased item.

19)   Check out for the online sale, will require removal of all assets prior to June 23, 2017.  Assets must be paid in full prior to removal.  Buyers must use the approved rigger to move and load items other than “carry out” assets.  All removal by scheduled appointment between ONLY 9am – 4pm weekdays only. It is the Buyer’s obligation to contact the authorized rigger to schedule appointment and to pay for removal services as needed.

20)   BUYER’S REPRESENTATIONS AND RESPONSIBILITY TO WARN

a)      Buyer represents that it understands the nature and characteristics of each item of surplus equipment, could have contacted KMC requesting personal inspection of the items, is aware that surplus equipment may be, bear, or contain hazardous materials and is familiar with any health, safety, operational and/or environmental hazards arising out of or resulting from the possession, use, storage, transportation, maintenance, handling, treatment, and disposal of such materials or surplus equipment.

b)      Buyer represents that it is accustomed to handling items similar to the surplus equipment and to handling materials bearing or containing hazardous materials and that it has the necessary expertise, equipment, and facilities to safely and lawfully conduct all of Buyer’s activities involving surplus equipment including transportation, handling, storage, disposal, treatment, and use, and will so conduct such activities.  Buyer agrees to take all appropriate cleaning steps prior to reuse of any purchased items, which may include a validated testing and cleaning method for residual product residue after swabbing.

c)      Buyer represents, if provided by seller, any material safety data sheets or other documents, that it received, will be read and understands all information relating to surplus equipment listed above which is contained in any material safety data sheets and other documents, including all information related to such materials which is contained in material safety data sheets and other documents referenced and/or attached to such surplus offering and all such information is hereby incorporated by reference. Buyer agrees to provide all information supplied to it by seller, if any, with respect to any surplus equipment sold hereunder to any subsequent Buyers of such surplus equipment. If any surplus equipment to which this agreement applies are to be relabeled by Buyer, such relabel must include, at a minimum, all the safety information on the labels as delivered, and be labeled in accordance with applicable local, state, and federal regulations.

d)      Buyer represents that the surplus equipment is being purchased for commercial use only and will not be resold donated or otherwise made available to individuals for personal use.

e)      Buyer agrees to warn all persons (including but not limited to Buyer’s employees, subcontractors, and customers) who may become exposed to the surplus equipment, of the hazards associated therewith (including but not limited to any hazards indicated in the documents referenced herein or attached hereto if provided), and Buyer agrees to take all action necessary to protect such persons from said hazards.

21)   Buyers acknowledge that an auction site 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 auction site at his or her own risk with notice of the condition of the premises and the activities that will be or have been conducted on the premises. Buyers shall so advise their agents and employees. No person shall have any claim against Keith Machinery, or their respective agents or employees for any injuries sustained or for damages to or loss of property that may occur at the auction site.

22)   It is the Buyer's sole responsibility to meet all DEA requirements, as well as all governmental safety and environmental standards in removing, shipping, cleaning, using purchased items. Certain of the items for sale may contain "hazardous substances," as that term is defined under federal, state or local environment laws and regulations. Keith Machinery has no duty to remove any hazardous substances that are contained in or are a part of any item. Buyers agree to defend (by counsel satisfactory to Keith Machinery) and indemnify Keith Machinery and hold Keith Machinery harmless from and against any claim, demand, cause of action, liability or expense (including attorneys' fees and costs) asserted against or incurred by Keith Machinery in connection with the sale, removal, shipment or use of any purchased items.

23)   In addition to the Buyer acknowledging its sole responsibility to meet all DEA requirements and all governmental safety and environmental standards, Buyers of certain assets (tablets presses and capsule fillers) will be required by Keith Machinery on behalf of the DEA (Drug Enforcement Agency) to fill out a form and pass DEA authorization prior to the shipment of assets.  Buyer’s of these assets understand and accept these risks and conditions and further acknowledge assets will be reused only for legal and ethical purposes.

24)   GOVERNING LAW: This agreement shall be governed by and shall be construed according to the laws of the State of New York.  All actions, legal or other, instituted by both parties under this Agreement must be filed in a federal or state court located in New York.  Both parties submit to the exclusive jurisdiction of all New York courts.