Recovery and Asset Liquidation Service Terms and Conditions
Last Revised: July 15, 2022
By signing the Client Fee Agreement, the Client agrees to these Recovery and Asset Liquidation Service Terms and Conditions (“Terms and Conditions”) between Cycle Express, LLC dba National Powersport Auctions (“Agency”) and the assigning/consigning entity (“Client”), as of the date listed in the Client Fee Agreement. These Terms and Conditions may be amended from time to time by Agency.
NOW, THEREFORE, in consideration of the foregoing and the mutual promises, covenants, and conditions set forth below and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged. Agency and Client agree to the following:
- Agency represents and warrants that Agency, its employees, agents and subcontractors have all of the necessary licenses to do business in each state in which it will conduct business under these Terms and Conditions.
- Agency will contact the Client supplied contact to set up a time to pick up the merchandise within one (1) business day of notification of assignment by Client. Client agrees to provide minimum merchandise pick-up accessibility of (3) business days and (30) hours per week. Failure to provide minimum accessibility to pick-up locations could result in prolonged transit times and additional fees to the Client. Within two (2) business days of receipt of merchandise, Agency will complete a report of the condition of the merchandise (“Condition Report”).
- Agency will use commercially reasonable efforts to liquidate the merchandise in a commercially reasonable manner, either by live auction or via NPA eSale. The auction process: either via live auction or eSale is at the discretion of the Agency. Merchandise reserves can be set by the Client or Agency. Agency generated reserves will be derived using proprietary auction data, i.e. NPA Value Guide. All reserves must be input (24) hours prior to the date of the auction.
- SALE OF VEHICLE: All merchandise must be sold during scheduled auctions, unless otherwise directed by Client in writing. A sale shall be deemed completed when the auctioneer so announces sold. All merchandise is sold as is, where is on a “cash basis”, due payable by purchasing dealer within a timely fashion. Agency shall be responsible for any and all collection matters relating to the sale of consigned merchandise. Agency will make payment to client (a) within 2 business days from the date of sale if a vehicle is sold at live auction or (b) within 2 business days following the end of the week during which the applicable vehicle was sold if vehicle is sold through online e-Sale (e.g. when Vehicle is sold via e-Sale on Wednesday, Net Price will be settled by close of business on the following Tuesday.
- Agency shall maintain Client’s records as they pertain to referred accounts in such a manner as to be auditable by Client or its designated agents during normal business hours. Agency will cooperate fully with Client and allow inspection of books and records so Client may review performance of liquidation services, adequacy of recovery efforts, cash controls, sales, costs, expenses and payments, compliance with the Terms and Conditions and any other such audit procedures and tests. Any such information or documentation obtained by such audit shall be and remain property of Client.
- Upon request of Client, Agency will provide Client with evidence of insurance coverage for comprehensive general liability, fire, and theft coverages in the amounts listed in Exhibit B – Insurance, attached hereto.
- INDEMNITY – THEFT OR CONVERSION: Agency shall be responsible to Client for, and indemnify and hold it harmless from, any theft or conversion of any merchandise or any part thereof after the same has been consigned to Agency and until sold to a purchaser at auction. Agency shall not be responsible for loss or damage resulting from Acts of God such as, but not limited to earthquakes, for mechanical failures not caused by Agent, its agents or employees or for acts or omissions of Client, its agents or employees. Subject to the immediately preceding sentence, in the event merchandise is deemed a total loss or is not recovered within 30 (thirty) days after its theft or conversion, Agency will promptly pay Client an amount equal to the current wholesale value of the merchandise reflected in the NPA Value Guide (subject to adjustment for the mileage and condition of the merchandise prior to such loss), such amount to be Client’s sole and exclusive remedy for this indemnity.
- Client Agrees to pay Agency pursuant to a mutually executed Fee Schedule on the gross sale proceeds received from the sale and liquidation of the merchandise.
a. In addition to the above referenced fees, Agency may also deduct from gross sale proceeds all approved lot charges paid by Agency on behalf of the Client required to secure merchandise from other parties.
- Agency’s liability for damage to a Vehicle in its custody or control is limited to the lesser of (i) the actual cost to repair the damage to the Vehicle caused by the negligence of Agency; or (ii) the negative impact to the current wholesale value of the Vehicle reflected in the NPA Value Guide (subject to adjustment for the Vehicle mileage and condition prior to such loss or damage) caused by the negligence of the auction company. In no event will the auction company be liable for any damage to a Vehicle due to a force majeure event.
- The client agrees to adhere to the Terms and Conditions for a term of 24 (twenty-four) months and may be extended for successive 24 (twenty-four) months upon the mutual consent of the parties. Services may be terminated at any time at the option of either party by 90 (ninety) days written notice certified to the addresses below. It is the duty of the Agency to provide an immediate accounting to the Client upon termination of this relationship.
- Agency shall protect, defend, indemnify and hold harmless Client (including its subsidiaries and affiliates), its directors, officers, agents, servants and employees from any and all liabilities, damages, claims, suits, judgments, costs and expenses (including reasonable attorney fees and court costs), directly or indirectly incurred by Client resulting directly or indirectly from the grossly negligent acts or omissions, wrongful repossession, or wrongful sale of merchandise by Agency, its agents, servants, employees, representatives, or subcontractors it engages to assist in recovery of merchandise.
- Client shall protect, defend, indemnify and hold harmless Agency (including its subsidiaries and affiliates), its directors, officers, agents, and employees from any and all liabilities, damages, claims, suits, judgments, costs and expenses (including reasonable attorney’s fees and court costs) directly or indirectly incurred by Agency resulting directly or indirectly from the negligent acts, omissions or errors of Client, its agents, servants, employees, representatives or resulting from Client’s breach of the Terms and Conditions. For purposes of this section, Agency shall not be considered an “agent, servant, employee or representative” of Client.
- Neither the Terms or Conditions nor any rights granted or payments due hereunder shall at any time be transferred, assigned sold or pledged by Agency.
- Agency is pursuant to the Terms and Conditions acting and occupying the status of independent contractor only and the relationship of Agency to Client is not that of an agent, partner joint venture or employee.
- Neither Agency nor any person employed or associated with Agency shall have the authority to make representations on behalf of Client nor may in any way bind Client, in any manner except as is specifically authorized by t the Terms and Conditions. Client is not responsible for acts or omissions of Agency.
- The Terms and Conditions may be modified, extended, amended, or waived only by mutual agreement in writing and signed by both Agency and an authorized officer of Client.
- All notices, consents or acknowledgements provided for or permitted to be given hereunder shall be in writing and shall be sent by registered mail or certified mail with return receipt requested to the other party at its address as stated in the Client Fee Agreement or to such other address provided to the other party. All notices, consents or acknowledgments hereunder shall be deemed given when mailed.
- Agency agrees that Client can withdraw or recall any accounts at any time for any reason, within the sole discretion of the Client. Agency will cease all recovery efforts upon notification, written, electronically, or oral. Upon notification of the withdrawal or recall of an account, Agency shall take such steps as necessary and appropriate to protect the interests of Client and any merchandise recovered.
- The Terms and Conditions constitute the entire agreement between the parties.
- The Terms and Conditions will be interpreted and enforced under the laws of the state of Delaware. Any action will be brought in the state or federal courts in Delaware.
- The Terms and Conditions are expressly declared to be severable.