National Powersport Auctions Dealer Terms & Conditions
Last Revised: October 24, 2019
By registering as a dealer with Cycle Express, LLC dba National Powersport Auctions (“NPA”) and as a condition to entering into any transaction through any website maintained or operated by NPA (including but not limited to npauctions.com) (collectively “NPA’s websites”), any transaction at an NPA facility (including a live or online auction conducted by NPA), or any transaction otherwise facilitated by NPA, including your assignment of a vehicle to NPA, you (“Dealer” or “Dealers”) agree to be bound by the following Dealer Terms & Conditions. NPA reserves the right to amend the Dealer Terms & Conditions at any time without prior notice to Dealer. In addition, any terms and conditions printed on NPA sales sheets, any conditions displayed on NPA’s websites are incorporated into these Dealer Terms & Conditions by reference. These Dealer Terms & Conditions affect Dealer’s legal rights against NPA. Dealer should read the entire Dealer Terms & Conditions carefully before accepting them. By placing a bid with NPA or assigning a vehicle to NPA, Dealer represents and warrants to NPA that Dealer has read and understood the Dealer Terms & Conditions in their entirety and that Dealer agrees to be bound by them in all respects.
PROVISIONS APPLICABLE TO BOTH PURCHASE AND ASSIGNMENT OF VEHICLES
Dealers may register with NPA as a Dealer if they are a licensed dealer, dismantler or wholesaler in good standing who can legally perform under applicable laws. In addition, state-specific registration requirements and applicable laws, regulations, and restrictions as well as NPA policies may further limit Dealer sign up and vehicle purchasing eligibility. NPA reserves the right to deny dealer privileges to, or exclude from NPA facilities, any individual or entity, for any reason in its sole and absolute discretion. Prior to making any bid or assigning any vehicle to NPA, Dealer must provide to NPA a complete dealer information sheet and any other information required by NPA. Dealer represents that all the information provided to NPA by or on behalf of Dealer is true and correct. Only registered Dealers in good standing with NPA may assign or bid on a vehicle.
Except where prohibited by law, guests 16 years of age or older are allowed to enter NPA facilities (when accompanied by a Dealer). Guest passes must be displayed at all times. Guests are not permitted to bid on or assign vehicles unless they are registered authorized contacts for a Dealer in good standing.
Dealers are responsible for all account activity, including, without limitation, all bids submitted under the Dealer’s username and password through NPA’s websites, all bids submitted in person by anyone designated by Dealer as authorized to bid on its behalf, and any vehicle assigned to NPA by Dealer. A Dealer’s account may not be transferred or assigned to any other person or entity. The Dealer shall promptly notify NPA in writing in the event the Dealer’s account, username or password are used without authorization. The Dealer shall be responsible for all account activity and charges incurred prior to NPA’s receipt of written notice from the Dealer of the unauthorized activity.
Compliance with Law
Dealers shall comply with all applicable laws, statutes, ordinances, and regulations regarding their use of NPA’s services, including but not limited to laws and regulations regarding the transportation, storage, transfer, resale, dismantling, or retitling of a purchased vehicle. All fines, penalties, fees, and other amounts assessed by a governmental authority as a result of a Dealer’s failure to so comply (collectively, “Vehicle Fines”), including but not limited to parking citations, toll road violations, tax liens, and impound fees, are the Dealer’s sole responsibility and each Dealer hereby agrees to indemnify and hold harmless NPA from and against all such Vehicle Fines. NPA may assess a processing fee per item against the Dealer’s account for the receipt and processing of citations, notices, and other legal documents pertaining to Vehicle Fines. NPA further reserves the right to pay upon receipt all Vehicle Fines on the Dealer’s behalf and to charge the Dealer a fee of up to 150% of the Vehicle Fine amount plus the processing fee by deducting such amount from funds held in the Dealer’s NPA account or, if sufficient funds are not available, by invoicing the Dealer for immediate payment. In addition, failure to comply with applicable laws and regulations, including the timely payment or other resolution of all outstanding Vehicle Fines relating to a Dealer’s purchased or assigned vehicles, may result in the Dealer’s buying or assignment privileges being suspended or revoked by NPA.
NPA Facility Rules
Dealers and their agents, representatives and guests visiting NPA’s facilities must comply with all facility rules and with the reasonable requests and instructions of NPA facility personnel. Persons younger than 16 years of age are not permitted to enter NPA facilities. Dealers must not remove keys, accessories or any other items, including any envelopes or paperwork, related to a vehicle on NPA premises. Anyone caught stealing or damaging vehicles will be arrested and prosecuted to the fullest extent of the law. This includes theft of or damage to any items on a vehicle, including keys and key fobs. Dealers and their representatives and guests may not bring tools of any kind, including diagnostic code readers and jump boxes, into NPA facilities. NPA reserves the right to remove from or prohibit entry to any NPA facility to any person or entity for any reason at NPA’s sole discretion. THERE IS NO SMOKING (THIS INCLUDES BUT IS NOT LIMITED TO VAPE PENS, VAPES, CIGARS, CIGARETTES AND E-CIGARETTES) PERMITTED IN THE OFFICES OR WAREHOUSE AT ANY TIME. Repairing or dismantling vehicles on NPA premises is strictly prohibited. All Dealers must arrange to safely and legally remove purchased vehicles from NPA’s facility prior to undertaking any repairs or dismantling.
NPA reserves the right to inactivate, suspend or revoke a Dealer’s account for any reason, in its sole and absolute discretion.
Release of Liability and Indemnification
Dealers and their guests irrevocably and unconditionally waive and release their rights (if any) to recover from NPA, its directors, officers, employees, representatives, agents, subsidiaries, partners, and affiliates, and vehicle sellers (“NPA Indemnitees”) any and all damages, losses, liabilities, costs, expenses, or claims, whether direct or indirect, known or unknown, or foreseen or unforeseen, which may arise from or be related to bodily injury, property damage, or other loss which occurs on NPA premises. Dealers agree to indemnify, defend, and hold NPA Indemnitees harmless from any and all damages, losses, liabilities, costs or expenses (including attorneys’ fees) arising from claims made by the Dealer and the Dealer’s guests arising from or related to: 1) bodily injury or property damage occurring on NPA premises, 2) the Dealer’s failure to comply with applicable laws or regulations, 3) the Dealer’s sale or transfer of vehicles to third parties, and 4) claims made against NPA Indemnitees by the Dealer’s guests, agents, employees, or customers. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, WILL NPA INDEMNITEES BE LIABLE FOR ANY SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OR LOST PROFITS THAT RESULT FROM OR ARE RELATED TO THE SALE, DISTRIBUTION, USE OF, OR INABILITY TO USE, ANY VEHICLE, EVEN IF NPA INDEMNITEES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. Dealers and guests who are California residents waive California Civil Code §1542, which reads: “A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor.”
No Liability for Property
NPA assumes no responsibility for collision, fire, theft, or any other damage to any vehicle or property, including before, during, or after its sale if applicable. Vehicles and property present on NPA premises are present at the Dealer’s own risk.
Marketing and Promotional Materials
Forum Selection, Venue, Jurisdiction, Choice of Law, and Service of Process
The Dealer acknowledges and accepts the following as express conditions to membership as a Dealer with NPA and hereby consents to the forum selection, choice of law, jurisdiction, and venue provisions described below:
Any action or proceeding arising directly or indirectly out of a vehicle bid or purchase transaction shall be conducted in the state/province and county where the purchase transaction was consummated, and the substantive laws of such jurisdiction shall apply to such action or proceeding. For example, if a Dealer bids on or purchases a vehicle that was offered through NPA’s facility in Flower Mound, Texas, at the time such bid was entered or such purchase was consummated, any action or proceeding arising out of such bid or purchase must be conducted in Denton County, Texas, and the substantive laws of the State of Texas would apply to such action or proceeding. All other actions and proceedings – i.e., those not arising directly or indirectly out of a vehicle bid or purchase transaction – must be conducted in Dallas County, Texas, and the substantive laws of the State of Texas will apply to such actions and proceedings. The Dealer consents to service of process by certified or registered mailing of the summons and complaint to the last address provided by the Dealer to NPA.
Limitation of Liability
NPA SHALL NOT BE LIABLE TO DEALER FOR ANY INCIDENTAL, SPECIAL, EXEMPLARY, PUNITIVE, OR INDIRECT DAMAGES OF ANY NATURE, FOR ANY REASON CLAIMED BY DEALER, INCLUDING WITHOUT LIMITATION, THE BREACH OF THIS AGREEMENT OR ANY EXPIRATION OR TERMINATION OF THIS AGREEMENT, WHETHER SUCH LIABILITY IS ASSERTED ON THE BASIS OF CONTRACT, TORT (INCLUDING NEGLIGENCE OR STRICT LIABILITY), OR OTHERWISE, EVEN IF DEALER HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.
NPA’s liability to Dealer in any way arising out of these Dealer Terms & Conditions or Dealer’s presence at NPA’s facility shall be limited to the lesser of (i) $5,000.00 or the (ii) the fees paid to NPA by Dealer in the preceding twelve (12) month period.
Dealers may not solicit any other NPA Dealer, buyer, seller, vendor or employee for any purpose at any time. Dealers may not offer products or services that compete with NPA products and services.
These Dealer Terms & Conditions constitute the entire and sole agreement between the Dealer and NPA with respect to the subject matter hereof. There have been no representations, warranties, or promises given or made that are not set forth in these Dealer Terms & Conditions.
II. NPA’S WEBSITES
NPA’s websites are only for internal use by authorized NPA customers, vendors, Dealers and their employees.
Use of Information and Pictures
The NPA website contains information, data, services, products, images, vehicle listings, condition report and other matters (collectively, “Content”) that is offered for informational purposes only and is not to be shared with anyone outside authorized Dealer’s business. Dealer acknowledges and agrees that the Content and any necessary software used in connection with the auction ("Software") contain proprietary and confidential information that is protected by applicable intellectual property and other laws. Dealer further acknowledges and agrees that the Content presented to Dealer through this website is protected by copyrights, trademarks, service marks, patents or other proprietary rights and laws. All Content is owned by NPA. Except as otherwise noted, NPA is the owner of all trademarks and service marks on this website. No portion of the Content may be displayed on other websites or printed materials in any form.
Dealers shall not use software packages or other means to "scrape" information from NPA’s websites. Misusing NPA's information, pictures, brand, logo or other abuses will result in termination of Dealer's account.
Usernames are visible to others. Usernames may not contain profanity or spellings that can be interpreted as obscene or defamatory. If such names are discovered to be in use, NPA will ask Dealer to change it and may temporarily block Dealer’s account access until the change is complete.
III. TRANSPORTATION AND LOADING OF VEHICLES
Dealers are responsible for their own transportation and proper loading, securing, and unloading of their vehicles. NPA will, in no event, be responsible or liable for any damage occurring as a result of unsafe or improper loading or securing of a vehicle for transport, whether or not NPA personnel or equipment were involved in such loading or unloading, and Dealer agrees to indemnify, defend, and hold NPA harmless from any and all claims, damages, losses, liabilities, obligations, costs and expenses (including attorneys’ fees) arising from or related to any failure of Dealer or Dealer’s agent or representative to properly load, unload and/or secure a vehicle for transport.
Dealer assumes all liability for its selection of a transportation company. Any trucking firm suggested by NPA is only a recommendation. Dealer warrants that it will perform its own due diligence in regard to any trucking firm and will not rely upon NPA in any way for the selection of the trucking firm or any payments thereto. Dealer agrees to hold NPA harmless, and to defend and to indemnify it against any liability arising from Dealer’s transportation company’s actions or omissions. Dealer will also confirm that its transportation company has adequate property and liability insurance to indemnify both Dealer and NPA from any resulting damages or losses.
PROVISIONS APPLICABLE TO PURCHASE OF VEHICLES THROUGH NPA
I. GENERAL PROVISIONS
Dealer Auctions Only
All NPA auctions are dealer only auctions. Dealers must be approved, registered and in good standing with NPA before purchasing vehicles. Dealers are considered professionals and are responsible for knowing all applicable laws, vehicle characteristics, title and registration requirements and customary auction terms and conditions.
Dealer represents that it is a licensed vehicle dealer engaged in the business of buying and selling vehicles. Dealer represents that Dealer is an experienced and sophisticated commercial purchaser and user of vehicles and equipment like those sold by NPA and that Dealer is able to personally and independently evaluate vehicles and equipment for condition and safety.
Dealers are responsible for understanding the details of an auction and the details of their bid. Dealers take full responsibility and assume all risk associated with placing a bid. Once a bid has been submitted, it cannot be retracted, deleted, or cancelled. NPA reserves the right to interpret its policies at its discretion. NPA’s decision is final. Laws related to vehicles sold by NPA can vary, including titling laws and regulations. Dealer has the sole responsibility for determining whether vehicles purchased by Dealer comply with applicable laws.
NPA Not Seller
Dealer recognizes and acknowledges that NPA is not to be deemed the seller of any vehicle assigned to NPA under these Dealer Terms and Conditions. The transferor of the vehicle to NPA will be the seller named on any Bill of Sale. Such transferor is required to give the Federal Odometer Mileage Statement in connection with any sale from this auction within the contemplation of the Motor Vehicle Information and Cost Saving Act of 1972 (pub.192.513) as amended or similar laws. Dealer shall not represent to any person or entity that NPA is the seller of a vehicle assigned to NPA under the Dealer Terms and Conditions.
Sale Terms and Conditions
All sales are conducted under NPA terms and conditions as included herein and on NPA’s Websites. Dealer acknowledges receipt of a copy these Dealer Terms and Conditions and the terms posted on NPA’s Websites and Dealer agrees to be bound by such terms and conditions as amended from time to time.
NPA considers a vehicle sold when an auctioneer or auction software says sold and recognizes the winning bidder number. At that time, the winning bidder is responsible to complete the purchase transaction with NPA on auction day, including full payment for the vehicle.
Sale Day Announcements
Announcements made on sale day will take precedence over any items listed in the auction catalog.
It is the responsibility of the Dealer to arrange transportation of their purchased vehicles and to remove them from NPA facilities within 5 business days of the date the sale of the vehicle is deemed final. NPA may assist Dealer with transportation contacts and loading, if requested. If a vehicle is not removed by Dealer within 5 days after the date the sale of the vehicle is deemed final in accordance with these Dealer Terms & Conditions, a daily storage fee per unit may be assessed to Dealer’s account.
NPA will disclose the type of title or legal documentation that will be provided with a vehicle. Dealers are responsible for ensuring that the titles or documentation provided are sufficient for their purposes. NPA is not responsible for providing any other documentation other than what is disclosed. Vehicles with salvage history are the responsibility of the Dealer, whether or not such history is known to NPA.
Dirt bike stands and watercraft carts are not a part of the sale and will remain the property of NPA. Vehicles may be started before the auction begins but no party may rev or gun engines while examining vehicles. AT NO TIME MAY VEHICLES BE DRIVEN! During the auction, no vehicle may be started or removed from the premises without consent of NPA. Removal or switching to another vehicle of any parts, items or labels from a vehicle is strictly prohibited. No mechanical work, unless performed by NPA with a work order, is allowed on NPA property.
Dealer is responsible to inspect vehicles closely before bidding. NPA does not guarantee any vehicle. Dealer will examine and accept the vehicle in its present condition.
Except as otherwise expressly provided by applicable law, all vehicles sold through NPA are sold “AS-IS WHERE-IS,” WITHOUT ANY WARRANTY, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OF FITNESS FOR A PARTICULAR PURPOSE OR MERCHANTABILITY. As used in these Dealer Terms & Conditions, “vehicle(s)” means all items posted for sale on NPA’s websites or otherwise offered or being prepared for sale at NPA facilities, including but not limited to motorcycles, boats, jet skis, RV’s, etc. However, Dealer expressly acknowledges and agrees that “vehicle(s)” does not mean or include, and NPA does not purport to facilitate the sale of, any cargo or items of personal property which may be contained in a vehicle but are not part of the vehicle. It is the sole responsibility of the Dealer purchasing a vehicle to take possession and/or dispose of any such cargo or contents in accordance with applicable law.
NPA expressly disclaims the accuracy or completeness of any and all information provided to Dealer regarding vehicles, whether provided in written, verbal, or digital form (“Vehicle Information”). Vehicle Information provided by NPA and its vehicle sellers is for convenience only. Dealers shall not rely on Vehicle Information in deciding whether or how much to bid on a vehicle offered for sale through NPA. Vehicle Information includes but is not limited to: year, make, model, condition, ACV, damage amount, damage type, drivability, accessories, mileage, odometer disclosures, vehicle identification number (e.g. “VIN,” “HIN,” and serial number), title, repair cost, repair history, title history, and total loss history. No effort has been made to list open recalls applicable to any vehicles. Any recalls are the sole responsibility of the Dealer and can be found at locations like www.NHTSA.org. NPA and its vehicle sellers expressly disclaim any and all representations, warranties, and guarantees regarding vehicles sold through NPA. Vehicle parts may be missing. NPA does not guarantee that vehicles meet or can be modified to meet emission and/or safety requirements. It is the sole responsibility of the Dealer to ascertain, confirm, research, inspect, and/or investigate vehicles and any and all Vehicle Information prior to bidding on vehicles. Dealer agrees and acknowledges that any condition report provided by NPA is solely a subjective assessment and it is not a representation or warranty by NPA as to fitness, condition, value, or safety of the vehicle or equipment and will not be relied upon by Dealer for any such purpose, which purpose is expressly disclaimed. A vehicle may require maintenance or repairs, including maintenance that can arise with the passage of time or that may not be reflected in its condition rating. NPA is not responsible for performing, disclosing or paying for any potential maintenance or repairs. NPA does not test or maintain vehicle batteries, which are perishable over time. Condition information, book values and vehicle history ratings are not guaranteed by NPA for accuracy. NPA has not verified and makes no representation or warranties as to the description, equipment, and odometer readings on any vehicle. NPA does not guarantee that the vehicles are in safe condition, or suitable for use on public roads or waterways. Dealer assumes the responsibility to verify all such representations and descriptions of catalog in relation to each lot number up for bid.
III. FEES AND PAYMENT
Dealer will pay NPA the purchase price of the vehicle(s) plus applicable fees, by the method pre-approved by NPA for Dealer’s purchases immediately upon checkout on auction day. All checks must be company checks in the Dealer’s business name made payable to National Powersport Auctions. All non-cash payment methods, including company checks, wire transfers and bank or flooring credit lines must be pre-approved. No bank drafts will be accepted. Dealer represents that, upon delivery to the auction of a check, sufficient funds are available and will remain on deposit at Dealer’s bank to fund the check. Until full payment has been made to auction for vehicles purchased and Dealer has no outstanding fees owed to NPA, all related vehicles, title to such vehicles, and all rights to such vehicle(s) will remain in NPA’s control. Dealer grants to NPA a security interest in all vehicles until Dealer has paid for vehicles and any outstanding fees in full.
All returned checks will be subject to a return check fee and must be paid immediately by cash or cashier’s check in order to avoid any further collection expenses.
Penalties for Failure to Pay
Upon failure to pay on the date or in the manner as required herein, NPA may charge a late payment fee per day for each applicable vehicle until the sales price and associated fees are paid in full. In addition, if Dealer fails to make payment as required herein, NPA may, without notice to Dealer, resell the applicable vehicle(s) and Dealer will be liable to NPA for any loss in value, all costs of collection, and any other damages NPA may sustain, including reasonable attorney’s fees incurred in collecting payments due and interest.
Taxes, Liens, Fees
Dealer is responsible for any and all taxes, liens, or applicable penalties and fees due from the Department of Motor Vehicles or any government agency. In addition, Dealers represent to NPA that vehicles purchased from NPA will be resold by Dealer in the form of tangible personal property. In the event any such property is used for any such purpose other than retention, demonstration, or display while holding it for sale in the regular course of business, Dealer understands and acknowledges that it is required by the Sales and Use Tax Law to report and pay tax, measured by the purchase price of such property or other authorized amount and hereby releases, holds harmless, indemnifies and defends NPA from any liability arising out such taxes or Dealer’s payment or failure to pay same. NPA may charge Dealer a per vehicle fee for vehicles purchased via Simulcast, winning proxy bid, eSale, or other online exchanges.
PROVISIONS APPLICABLE TO ASSIGNMENT OF VEHICLES TO NPA
In addition to the terms and conditions of any remarketing agreement or other auction or sales agreement between Dealer and NPA, the following general terms and conditions shall apply. Unless otherwise specified in any such agreement, in the event of any conflict between any such agreement and these Dealer Terms & Conditions, the provisions of these Dealer Terms & Conditions shall take precedence.
Availability for Auction
A vehicle and its title or necessary documentation must be received by NPA at least two days prior to a scheduled auction to be eligible to be included in said auction. (A vehicle and its title or necessary documentation assigned to NPA’s Atlanta facility must be received at least three days prior to a scheduled auction to be eligible to be included). NPA may offer any vehicle at any time in any of its auction or online platforms in its sole discretion.
Cross Dock Fee
All vehicles dropped off as a cross dock require pre-approval from NPA prior to drop off, which NPA may allow or deny for any reason or no reason at all and are subject to a cross dock fee. All cross-dock fees are required to be paid in full prior to release.
NPA Does Not Insure Title
NPA does not provide title insurance and does not warrant or guarantee that a title or documentation provided by any party is valid, assignable, unattached, or is not a forgery.
Unless otherwise agreed in writing by Dealer and NPA, if a vehicle assigned by Dealer has a non-functioning battery or is missing keys, NPA will install a replacement battery or keys as applicable, and Dealer will be billed by NPA accordingly.
Vehicles that are seller redeemed and picked up by Dealer will be subject to a No Sale Fee. Any vehicle sold subject to a conditional sale must not be removed from the NPA auction facility until the purchaser has had an opportunity to purchase unit at Dealer’s agreed price.
NPA reserves the right, but is not obligated, to announce all known defects, damages, recalls, or title brands related to assigned vehicles.
Dealer represents and warrants that all information provided with the assignment of a vehicle, including the odometer statement, title and condition of vehicle, is complete and correct.
Except to the extent caused by NPA, Dealer agrees to indemnify, defend, and hold NPA and its subsidiaries, affiliates, officers, directors, employees, agents, successors, and assigns harmless from and against all losses, damages, liabilities, claims, demands, suits, and expenses arising out of, based upon, or resulting from: (i) any judgments, liens, or citations placed on a vehicle, (ii) defects in a vehicle’s title, (iii) mechanical or design defects in a vehicle, (iv) any inaccuracy of the odometer reading on any vehicle or any odometer statement prepared in connection with the sale of any vehicle, or (v) any incorrect or incomplete information provided by Dealer or any other misrepresentation made by Dealer, whether same was known or unknown to be incorrect, incomplete, or a misrepresentation by Dealer at the time it was made.
Fees paid by Dealer to NPA for the sale of a vehicle assigned to NPA by Dealer shall be those fees agreed to by Dealer and NPA in a separate writing. If no such fees have been established, fees shall be set by NPA, in its reasonable discretion, taking into account Dealer’s industry, volume, and past dealings with NPA. Unless otherwise agreed in writing between NPA and Dealer, all sold vehicles are subject to a Sales and a Processing Fee. Any title that is not received by auction will receive a Title Coming fee that will be assessed per title (including floored titles). Any vehicle that accrues three No Sales from the live auctions will be automatically redeemed to Dealer and charged all applicable re-run and redemptions fees.