BioPharma Exchange #236

Auctioneer’s Terms and Conditions of Sale

1.         The services provided by the relevant GoIndustry DoveBid Group Company (“Auctioneer”) are governed by these Terms and Conditions.  By participating in this auction, you consent to be bound by these Terms and Conditions as well as by any additional terms that may be imposed by the seller or announced at the auction.

2.         All potential buyers must register online at www.go-dove.com.  Auctioneer may, in its sole discretion, deny registration to any person or entity.

3.         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 seller’s right of confirmation.  Auctioneer 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 Auctioneer believes was made illegally or in bad faith.  Further, Auctioneer, may bid at the auction either for its own account or on behalf of a third party.  In the event of a dispute among bidders, Auctioneer 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 seller in writing.

4.         In the event of any dispute concerning the winning bid price for an asset, the record kept by Auctioneer shall control.

5.         Bidders shall examine or inspect items prior to the day of the auction.  ALL ITEMS ARE SOLD AS IS, WHERE IS AND WITH ALL FAULTS.  NEITHER SELLER NOR AUCTIONEER MAKES ANY WARRANTY, EXPRESS OR IMPLIED, AS TO THE NATURE, QUALITY, VALUE OR CONDITION OF ANY ASSET.  AUCTIONEER AND SELLER EXPRESSLY DISCLAIM 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 a Seller's software is included in an asset sale, notwithstanding the disclaimers set forth above, Auctioneer 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, Auctioneer recommends that Buyer contact the software manufacturer directly to resolve any such issues. 

6.            Auctioneer relies on information about assets in the auction provided by the seller.  Auctioneer undertakes no investigation of that information, and makes no representation or warranty concerning the truth or completeness of that information.  Photographs are provided solely for the bidders' convenience and shall not be construed to create representations or warranties of any kind pertaining to the assets.  Buyer acknowledges that it has had the opportunity to inspect all assets prior to tendering its bid and waives any and all claims against Auctioneer and/or seller relating to asset photographs or descriptions.

7.         A buyer’s premium of 18% of the bid price will be added to the bid price for each lot, provided that buyers who pay in the form of cash, cashier's check, company check (with a letter of guarantee) or wire transfer within 72 hours from receipt of Auctioneer’s invoice shall receive a discount from the buyer's premium equal to 2% of the bid price. 

8.            Collection of applicable taxes will be in accordance with the laws of the jurisdiction in which the purchased asset is located.

9.         Each successful bidder must pay a 25% deposit toward the purchase price immediately following the successful bid.  Bidders expressly authorize Auctioneer to use their credit card to satisfy the deposit amount.  If a bidder fails to make a timely deposit, Auctioneer and the seller may resell the items in question without notice.  Full payment of the purchase price is due at the earlier of (i) 48 hours after the bidder has received an invoice, or (ii) the close of business on the third business day after the auction but in any event by the Payment Date set out in the Notice to Purchasers.  Without limiting the foregoing, full payment of the balance of the purchase price is due prior to removal of any purchased assets.  In the event that a bidder fails to pay the entire purchase price (in addition to the buyer’s premium and any applicable tax) within the time specified by Auctioneer or otherwise fails to comply with these Terms and Conditions, Auctioneer and the seller will retain the deposit as liquidated damages without notice.  Auctioneer and the seller reserve the right to resell such items without notice, and the defaulting purchaser shall be liable to Auctioneer and seller for any resulting deficiency, including costs incurred in storing and reselling such assets.  In the event of such resale, the defaulting purchaser shall be liable to Auctioneer and seller for any resulting deficiency, including costs incurred in storing and reselling the assets in question.

10.            Auctioneer accepts the following methods of payment: cash, cashier’s check, and wire transfer made payable to Auctioneer also will accept a company check if it is accompanied by a letter from the company’s bank guaranteeing payment in full, without condition and upon demand. Auctioneer will also accept VISAÒ, MasterCardÒ, American ExpressÒ if so indicated in the Notice to Purchasers.

11.        By participating in an auction, each bidder 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.

12.            Auctioneer may, in its discretion, offer the assets for sale by the piece or by the lot.  In addition, Auctioneer may augment an auction with assets from various sellers.  These assets may be interspersed throughout the auction.  The seller 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 purchaser’s sole remedy shall be the refund of any purchase price actually paid.

13.            Auctioneer will announce any additions to or deletions from the catalog on the day of the auction.  Auctioneer and the seller assume no responsibility for, and make no representations or warranties concerning, descriptions of assets contained in marketing materials for the auction.  It is the bidders’ obligation to verify such descriptions prior to the auction.

14.        Neither Auctioneer nor seller shall be liable for any damages of any type or nature (whether in contract, tort or otherwise) sustained or claimed by any bidder or any other person or entity in connection with the auction.  Without limiting the foregoing, in no event shall Auctioneer’s liability to any bidder for any act or omission occurring in connection with the auction exceed the amount that such bidder has actually paid to Auctioneer as a deposit or as payment for a purchased item.

15.            Auctioneer will announce the removal, or "check-out" in the Notice to Purchasers. Auctioneer shall have no responsibility to disconnect utilities to the sold asset, including electric, gas, waste and water lines. It is the buyer's sole responsibility to arrange and pay for the removal and shipment of purchased items. Also, it is the buyer's responsibility to provide, and/or ensure their agent(s) performing removals on their behalf provide, upon demand, evidence of valid insurance policies with reliable insurance companies, providing the types of coverage and in the amounts more particularly described in the Sample Required Insurance Certificate located in the Shipping Information section of Auctioneer’s website and such other insurance as may be required by any governmental authority, including workers' compensation insurance. Removal shall be conducted responsibly and with due care for the seller's premises. Auctioneer reserves the right on any sale to require that all buyers utilize the services of the movers/shippers/riggers to those listed on Auctioneer’s website under “Directory of Shippers” and/or those listed on the sale website as “exclusive, approved” for a particular auction.  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, Auctioneer and the seller may, in their sole discretion, deem the item to have been abandoned by the buyer and the buyer will have no further rights with respect to the item. Notwithstanding the foregoing, Auctioneer and the seller reserve the right to charge the buyer for the costs of storage beyond the check-out period.

16.        Bidders acknowledge that an auction site or the seller’s 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 such 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.  Bidders shall so advise their agents and employees.  No person shall have any claim against Auctioneer, the seller or their respective agents or employees for any injuries sustained or for damages to or loss of property that may occur at such site.

17.        It is the buyer’s sole responsibility to meet all governmental safety and environmental standards in removing, shipping and 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.  Auctioneer 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 Auctioneer) and indemnify Auctioneer and hold Auctioneer harmless from and against any claim, demand, cause of action, liability or expense (including attorneys’ fees and costs) asserted against or incurred by Auctioneer in connection with the sale, removal, shipment or use of any purchased items.

18.        Buyers agree to comply with all US export control and related laws, and acknowledge that Auctioneer is not the exporter of any purchased item.  Certain items offered for sale at the auction may constitute “Restricted Technology.”  Under federal law, such items may not be shipped outside of the United States.  Auctioneer makes no representation or warranty concerning, and has conducted no investigation to ascertain which items, if any, constitute Restricted Technology.  Seller reserves the right to cancel any sale at any time in the event it determines, in its sole discretion, that the sale does or may violate applicable U.S. export control or similar laws.

19.        These Terms and Conditions, and all questions with respect to the interpretation of these Terms and Conditions, shall be governed by and construed in accordance with the internal laws of the State of Maryland, without regard to conflict of laws provisions.  All bidders expressly consent to personal and exclusive jurisdiction in the courts of the State of Maryland located in Baltimore.

GoIndustry DoveBid
May 2009