Terms & Conditions
National Powersport Auctions Dealer Terms & Conditions
Last Revised: July 31, 2020
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 these Dealer Terms & Conditions at any time without prior notice to Dealer. In addition, any terms and conditions printed on NPA sales sheets and any conditions displayed on NPA's websites are incorporated by reference. The Dealer Terms & Conditions affect Dealer's legal rights against NPA. Dealer should read the entire Dealer Terms & Conditions carefully before accepting them. By registering as a Dealer, 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.
I. DEALER REGISTRATION & MEMBERSHIP
Dealers may register with NPA as a Dealer if they are a licensed dealer, dismantler, or wholesaler in good standing with the applicable licensing authority who can legally perform the actions contemplated by these Dealer Terms & Conditions under applicable law. In addition, state-specific registration requirements and NPA policies may further limit sign up and vehicle purchasing eligibility. NPA reserves the right to deny dealer privileges to any individual or entity for any reason in its sole and absolute discretion.
- Registered Guest Access. Dealer must register and provide a complete dealer information sheet and any other information as required by NPA to obtain access as a Registered Guest Dealer. Dealer represents that all the information provided to NPA by or on behalf of Dealer is true and correct. Registered Guest Dealers may search inventory, but Registered Guest Dealers may not bid on or purchase vehicles unless they upgrade to a Dealer Membership.
- Dealer Membership. Dealer must register and provide a complete dealer information sheet, copies of current licenses, completed sales tax exemption certificates (if applicable), and any other information as required by NPA. Dealer represents that all the information provided to NPA by or on behalf of Dealer is true and correct. In addition, Dealer must pay the initial Member registration fee. Memberships are renewed annually by paying an annual nonrefundable member renewal fee and submitting copies of all current licenses (if applicable), and any information regarding change of ownership or address. NPA reserves the right to modify registration and renewal fees at any time without prior notice to Dealer.
Member Dealers may authorize up to ten individuals to submit bids on behalf of Dealer, including Dealer's owner. Authorization of more than ten individuals to submit bids is subject to NPA's discretion and may require payment of additional fees. Dealers are responsible for removing any individual who is no longer authorized to submit bids on behalf of Dealer from Dealer's account and the Dealer is liable for all bids placed on its accounts.
Dealer is responsible for all account activity, including, without limitation, all bids submitted under Dealer's username and password through NPA's websites, all bids submitted in person by anyone designated by Dealer as an Authorized Bidder, and any vehicle assigned to NPA by Dealer. Dealer is responsible for maintaining the confidentiality of Dealer's usernames and passwords and for ensuring that Dealer exits from its account at the end of each session. Dealer's account may not be transferred or assigned to any other person or entity. Dealer shall promptly notify NPA in writing in the event the Dealer's account, usernames, or passwords are used without authorization. Dealer is responsible for all account activity and charges incurred prior to NPA's receipt of written notice from the Dealer of the unauthorized activity.
Dealer acknowledges and agrees that NPA, in its sole and absolute discretion, may inactivate, suspend, or revoke Dealer's usernames, passwords, account (or any part thereof), or use of the NPA websites, and remove and discard any content within the NPA websites for any reason, including, without limitation, for lack of use or if NPA believes that Dealer has violated or acted inconsistently with the letter or spirit of these Dealer Terms & Conditions. Further, Dealer agrees that NPA is not liable to Dealer or any third-party for any termination of Dealer's account or access to the NPA website.
Usernames are visible to others. Usernames must 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.
Compliance with Laws
Dealer shall comply with all applicable laws, statutes, ordinances, and regulations regarding its 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 Dealer's account or, if sufficient funds are not available, by invoicing 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.
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. Guest passes must be displayed at all times. Only Dealer Members and their Authorized Bidders are permitted to bid on vehicles.
Visitors 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. A $100 reward will be paid to anyone providing information leading to the arrest and conviction of individuals stealing or damaging vehicles at NPA facilities. 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 (for example diagnostic code readers or jump boxes) into NPA facilities. Repairing or dismantling vehicles on NPA premises is strictly prohibited. NPA reserves the right to remove from or prohibit entry to any NPA facility to any person or entity for any reason in NPA's sole discretion. THERE IS NO SMOKING PERMITTED IN THE NPA FACILITIES AT ANY TIME. THIS INCLUDES BUT IS NOT LIMITED TO VAPE PENS, VAPES, CIGARS, CIGARETTES AND E-CIGARETTES.
Release of Liability and Indemnification
Dealer and its guests irrevocably and unconditionally waive and release their rights (if any) to recover from NPA, its directors, officers, employees, representatives, agents, parents, 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 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."
Marketing and Promotional Materials
Dealer agrees it has affirmatively requested to receive marketing and promotional materials via mail, email, push email, facsimile, app, social media, text message, or other then-current methods of communication. Dealer agrees that all marketing materials, presentations, vehicle listings, images, videos, condition reports, websites, and other material and information produced by NPA are the property of NPA and may not be reproduced, republished, or used by Dealer in any form for any reason other than for which NPA intended.
II. BUYING VEHICLES THROUGH NPA
Dealer Auctions Only
All NPA auctions are dealer only auctions. Dealer must be approved, registered as a Dealer Member, and in good standing with NPA before participating in NPA auctions. Dealers are considered professionals and are responsible for knowing all applicable laws, vehicle characteristics, title and registration requirements, and auction customs. 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. Dealer represents it is able to personally and independently evaluate vehicles and equipment for condition and safety.
Vehicles available for sale will be listed in the NPA auction catalog. NPA may update information contained in the vehicle listing at any time prior to auction. Any announcements with respect to a vehicle made on the date of auction will take precedence over any prior information listed in the auction catalog. NPA will identify the type of title or legal documentation to be provided to the purchaser in the applicable vehicle auction listing. Dealer is responsible for ensuring that the titles or documentation provided are sufficient for its purposes. NPA is not responsible for providing any documentation other than as identified in the vehicle auction listing. Dealer acknowledges that a vehicle eligible for clean title in one jurisdiction may require a salvage title in another. Vehicles with salvage history are the responsibility of the Dealer whether or not such history is known to NPA.
- Responsibility for Bid. Dealer is responsible for understanding the details of an auction and the details of its bid. Dealer takes full responsibility and assume all risk associated with placing a bid. Once a bid has been submitted, it cannot be retracted, deleted, or cancelled.
- Bid Rejection. NPA reserves the right to reject or void bids for any reason in NPA's sole and absolute discretion. Should a dispute arise regarding a bid, NPA is the exclusive deciding authority with sole and absolute discretion in resolving disputes. Dealer agrees to indemnify, defend, and hold NPA harmless from any and all liability arising out of decisions made by NPA in resolving disputes. 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.
- Tie Bid Policy. In the event of a tie between an in-person bidder and a bidder participating in an auction online, the auctioneer may award the winning bid in the auctioneer's sole discretion.
- Minimum Bids, Bid to Be Approved, and Counter Bidding.
- If (a) a vehicle seller designates a vehicle as "bid to be approved" or "on approval" or (b) the seller designates a minimum bid for a vehicle and the high bid in the auction is less than the minimum bid amount, then the vehicle will not be released to the Dealer with the high bid unless and until the seller has notified NPA of its acceptance of the bid. The seller has until 8 p.m. (Pacific Time) on the next business day following the day of the auction to notify NPA of such acceptance.
- Counter Bidding allows sellers who have designated a vehicle as minimum bid or bid to be approved to directly counterbid a bidder after the auction ends. Dealer acknowledges and agrees that, regardless of any counterbids made by the seller of a vehicle, the Dealer's high bid on a minimum bid or bid to be approved vehicle is an offer that remains open to acceptance by the seller until 8 p.m. (Pacific Time) on the next business day after the day of the auction.
- NPA Not Seller. Dealer acknowledges and agrees that NPA is not to be deemed the seller of any vehicle offered for sale in the auction catalog unless otherwise explicitly stated. 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 the 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 offered for sale in the auction catalog unless NPA is explicitly designated as the seller therein.
- Sale Cancellation. NPA may, in its sole and absolute discretion and with or without notice, postpone or cancel a sale or withdraw a vehicle from a sale. NPA will have no liability or obligation to Dealer as a result of any vehicle withdrawal or sale cancellation or postponement. Further, NPA reserves the right to cancel or reverse a sale transaction in the event of fraud, material misrepresentation, or patent defect in the vehicle listing or bidding information, as determined by NPA in its sole discretion. In the event a sale is cancelled after the Dealer has remitted payment, NPA will credit the amount of the payment to the Dealer's account.
- Final Sale. 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.
- Miscellaneous. 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 revving or gunning engines is permitted 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. Removing or switching any parts, items or labels from a vehicle is strictly prohibited. Mechanical work, other than work performed by NPA personnel, is prohibited on NPA property. Dealer must arrange to safely and legally remove purchased vehicles from NPA's facility prior to undertaking any repairs or dismantling.
- Vehicle Title and Release. NPA reserves the right not to release any vehicle or vehicle title for any reason.
- Risk of Loss. Each Dealer takes full responsibility and assumes all risk of loss for all vehicles purchased from the time NPA accepts the Dealer's bid. From and after acceptance of the Dealer's bid, the Dealer acknowledges that NPA is acting as bailee of the Dealer's vehicle until such time as the vehicle is removed from NPA's premises by the Dealer or the Dealer's agent or representative. The Dealer agrees that under the terms of the bailment, (1) NPA is not responsible for damage to or loss of the vehicle or parts thereof due to operational procedures in place at all NPA facilities, from acts of theft or vandalism, or acts of God; (2) NPA is only responsible for damage to or loss of the vehicle or parts thereof caused by the direct willful or grossly negligent act or omission of NPA; and (3) NPA is not responsible for any claim of damage made after the vehicle has left NPA's premises, regardless of whether the Dealer or any agent, employee or other representative on the Dealer's behalf picks up the vehicle.
Vehicle Storage and Transportation
- Timely Removal of Purchased Vehicles. Dealer is solely responsible to arrange transportation of their purchased vehicles and to remove them from NPA facilities within 5 business days of the date the sale is deemed final. If a vehicle is not removed by Dealer within by 4:45 pm local time on the 5th day after the date of sale, a daily storage fee per unit may be assessed to Dealer's account.
- The Dealer shall comply, and shall cause its agents and representatives to comply, with all applicable laws and regulations when removing a vehicle from an NPA facility, including properly loading and securing all vehicles for safe travel. NPA personnel may load purchased vehicles for Dealers upon request; however, in so doing, NPA personnel take no responsibility for ensuring that the vehicles are properly loaded or secured for safe transport. NPA shall 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 and the 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 the Dealer or the Dealer's agent or representative to properly load and/or secure a vehicle for transport.
- Dealer is solely responsible for selecting a transportation company. Any transportation company suggested by NPA is only a recommendation. Dealer warrants that it will perform its own due diligence with respect to any transportation service provider. 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 acts or omissions arising out of or related to Dealer's transportation company. 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.
- NPA may provide transportation services to Dealer for vehicles purchased by Dealer at rates to be agreed between NPA and Dealer. All terms and conditions of this Section will continue to apply, except that NPA will remain responsible for damage to or loss of the vehicle or parts thereof caused by the direct willful or grossly negligent act or omission of NPA while the vehicle is in NPA's possession.
- Once a vehicle is removed from NPA's premises it is accepted AS-IS, and (except as explicitly stated in Section II(D)(4)) under no circumstances will NPA be liable for subsequent claims of damage or loss of any kind or nature whatsoever. In the event NPA is responsible, damages shall be limited to the lesser of (i) the amount of the diminution in value of the vehicle as reasonably estimated by NPA or (ii) the auction sale price (in which case the Dealer shall return the vehicle to NPA). NPA may, in its sole discretion, resell the vehicle at an NPA sale, and the difference between the original sale price and the resale price shall be conclusive as to the amount of diminution of value, if any.
- 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 and its vehicle sellers expressly disclaim 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. NPA is not responsible for performing or paying for any potential maintenance or repairs. NPA does not test or maintain vehicle batteries, which are perishable over time. vehicle parts may be missing. NPA does not guarantee that keys are available for any vehicle sold through NPA, regardless of whether keys are present in online vehicle images or were present in the vehicle prior to the time of purchase. 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.
- Registration Laws Disclaimer. NPA does not guarantee that any vehicle sold can be legally registered in any state or country, and the Dealer accepts all risks associated with variations in vehicle title and registration laws between states, provinces, and countries that may negatively impact the marketability of vehicles purchased at NPA. (For example, a vehicle legally purchased on a clean title by a Dealer at a NPA facility located in State "A" may be required to be sold on a salvage title if Dealer transports and resells the vehicle in State "B".)
- DMV/MVD/DOR Paperwork Disclaimers. NPA is not responsible for defects, errors, or omissions (i) related to motor vehicle department or department of revenue paperwork not processed by NPA or (ii) made by any motor vehicle department, department of revenue or other governmental entity.
- NMVTIS Reporting Disclaimer. vehicles listed for sale at NPA may have been reported to the National Motor vehicle Title Information System ("NMVTIS"), and transaction data related to vehicles purchased at NPA may be reported to NMVTIS, in NPA's sole discretion. Each Dealer accepts all risks associated with purchasing vehicles at NPA resulting from the reporting of the vehicle or the purchase transaction data to NMVTIS by NPA or others. Dealers may be subject to NMVTIS reporting requirements when purchasing certain vehicles. For more information on reporting requirements, exemptions, and how to obtain a NMVTIS Reporting ID, visit www.vehiclehistory.gov.
- Disclosure of Dealer Information. Each Dealer expressly agrees that NPA may, if and to the extent necessary to comply with applicable law, disclose information regarding NPA's Dealers and regarding transactions conducted by Dealers through NPA if requested to do so in any judicial or administrative proceeding or by any governmental agency or regulatory authority (whether by deposition, interrogatory, request for documents, subpoena, civil investigative demand, or otherwise).
III. Assigning a vehicle to NPA
Dealer and NPA agree that the terms and conditions set out in this Section will apply to any vehicle assigned by Dealer to NPA. If Dealer and NPA have entered into a separate valid and duly signed remarketing agreement, the terms of that agreement will take precedence.
Assignment; Availability for Auction
Dealer may make vehicle assignments electronically via e-mail or system upload to www.npauctions.com. NPA is not liable or responsible for any assignment which has not been communicated to NPA electronically in writing. 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.
Dealer Representations and Warranties
Dealer is the lawful owner of each vehicle assigned to NPA with all necessary power and authority to sell the vehicle and to transfer title and ownership of the vehicle to a third-party purchaser free and clear of any encumbrances. Prior to sale of a vehicle, Dealer shall deliver: (i) the original certificate of title for the vehicle (and any other documents necessary to evidence Dealer's ownership and right to sell the vehicle); and (ii) any documents necessary for NPA to sell and transfer title and ownership of the vehicle to a third party purchaser. Dealer represents and warrants that all information provided with the assignment of a vehicle, including the odometer statement, title, and condition of vehicle are complete, true, and correct. NPA reserves the right, but is not obligated, to announce all known defects, damages, recalls, or title brands related to assigned vehicles.
Dealer shall execute and deliver to NPA a power of attorney as may be required in a particular jurisdiction to permit NPA to offer the assigned vehicles for sale.
- NPA will offer each assigned vehicle for sale, at auction, to the highest bidder. NPA may auction the vehicle by live auction or via NPA eSale channels. Whether a vehicle is offered via live auction or online auction will be in NPA's sole discretion.
- No less than 48 hours prior to the commencement of an auction for an individual vehicle, Dealer may, at its discretion, enter a Minimum Bid amount for that vehicle, via the NPA website. Dealer may also instruct NPA to set a Minimum Bid amount on Dealer's behalf based on the market value determined by the NPA Value Guide. If this Minimum Bid amount or greater is bid during the auction, the bid amount will be accepted automatically.
- In the alternative, no less than 48 hours prior to the commencement of an auction for an individual vehicle, Dealer may, at its discretion, condition the acceptance of any high bid for that vehicle upon Dealer approving or rejecting the bid following the auction ("Bid to be Approved" or "BTBA"), by entering the BTBA via the NPA website. Dealer must approve or reject a BTBA within 24 hours following notification of the auction result or the bid will be rejected automatically, and the vehicle rescheduled for auction.
- Dealer may also elect to re-auction a vehicle that either does not meet its Reserve Amount, or that has a rejected BTBA subject to applicable reauction fees.
- NPA is not liable or responsible for and does not guarantee that it will implement any Reserve Amounts or BTBAs which Dealer does not directly enter via the Website.
- If Dealer does not enter a Reserve Amount or a BTBA for any vehicle auction, the auction is considered a "pure sale" and the final highest bid amount will be accepted automatically.
- Once NPA has listed a vehicle in an auction, Dealer shall not solicit bids or accept offers from any third party for that vehicle.
Limitation of Liability for Assigned Vehicles
NPA's liability for damage to a vehicle in its possession is limited to the lesser of (i) the actual cost to repair the damage to the vehicle caused by the gross negligence of NPA; or (ii) the negative impact to the salvage value of the vehicle caused by the gross negligence of NPA. And, in no event will NPA be liable for any damage to a vehicle in its possession due to an act of God.
Replacement Keys & Batteries
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 obtain keys, as applicable, and Dealer will be billed by NPA at NPA's then current rates.
Vehicles that are Dealer 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 the vehicle at Dealer's agreed price.
Indemnification and Hold Harmless
Except to the extent caused by NPA's negligence, Dealer shall indemnify, defend, and hold NPA and its subsidiaries, affiliates, and their officers, directors, employees, agents, successors, and assigns harmless from and against any and all losses, damages, liabilities, claims, demands, suits, costs and expenses arising out of, based upon, or resulting from any: (i) judgments, liens, or citations placed on a vehicle; (ii) defects in a vehicle's title; (iii) mechanical or design defects in a vehicle; or (iv) inaccuracy in the odometer reading for any vehicle or any odometer statement prepared in connection with the sale of any vehicle.
IV. Image and Data License Agreement
The NPA website contains information, data, services, products, images, vehicle listings, condition reports 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. The Content is owned by NPA and/or its affiliated companies, licensors and suppliers. Dealer may not reproduce, sell, publish, distribute, modify, display, repost or otherwise use any portion of the Content in any other way or for any other purpose without the written consent of NPA. Dealer 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.
Requests regarding use of the Content for any purpose other than personal, non-commercial use should be directed to National Powersport Auctions, Legal Department,14185 Dallas Parkway Ste. 300, Dallas, TX 75254.
Except as otherwise noted, NPA and/or its affiliates are the owners of all trademarks and service marks on this website. Except as specifically authorized in subsection (C) below or otherwise agreed in writing, no portion of the Content may be displayed on other websites or printed materials in any form.
Dealer acknowledges that the Content includes certain trademarks and service marks owned by Cycle Express, LLC, dba National Powersport Auctions and/or its affiliated companies, and certain logotypes, as well as trademarks owned by other information providers. Dealer agrees not to copy, use or otherwise infringe upon these trademarks or service marks. Dealer further agrees that Dealer will not alter or remove any trademark, copyright or other notice from any copies of the Content. If Dealer operates a Web site and wish to link to the Service, Dealer may not do so without NPA express written approval. Requests for approval to link to the Service may be directed to the address provided above.
NPA hereby grants Basic Dealer Members the non-transferable, non-exclusive, terminable right to display vehicle images and condition reports pertaining to vehicles purchased by Basic Dealer Member through NPA ("vehicle Materials"). Basic Dealer Member must not (1) use the vehicle Materials in violation of applicable law or regulation or in any manner that would cause material risk to NPA or (2) remove, obscure, or alter any proprietary notices associated with the vehicle Materials (i.e. watermarks) without NPA's prior written consent.
V. FEES, PAYMENT, & DELIVERIES
All fees are subject to change without prior notice to Dealer. Dealer is solely responsible for ascertaining applicable fees prior to bidding on a vehicle.
- Vehicle Purchases and Membership Fees. Dealers agree to pay the membership fee (as applicable) and other fees applicable to each vehicle purchase or assignment. The current fee schedules pertaining to membership and vehicle purchases may be accessed by registered Dealers from the "My Account" page of NPA's website.
- Vehicle Assignment Fees. NPA and Dealer may agree to the fees applicable to NPA's provision of remarketing services in a separate writing. If NPA and Dealer have not executed a separate written fee agreement, NPA may determine the fees, in its sole, 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 fee and a processing fee. Any title that is not received prior to the date of auction will incur a title coming fee to 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.
Payment & Payment Method
- Vehicle purchase price and other fees applicable to vehicle sale are due at checkout on the sale date. All outstanding fees owed to NPA for a vehicle assigned to NPA will be deducted from auction sales proceeds for that vehicle. If auction sales proceeds are insufficient to satisfy all outstanding fees owed to NPA, NPA will invoice Dealer for any shortfall and Dealer shall pay NPA within 7 days of the invoice date.
- All payment methods (other than cash) are subject to NPA pre-approval. Pre-approved payment methods may include company check, credit or debit card, wire transfer, electronic funds transfer, cashier's check, or flooring credit line. All checks must be company checks in the Dealer's business name made payable to National Powersport Auctions. No bank drafts will be accepted. Dealer represents that, upon delivery to NPA of a check, sufficient funds are available and will remain on deposit at Dealer's bank to fund the check.
- Commencing on the third day after the sale date, a finance charge in an amount equal to the greater of 1.5% per month (18% per annum) or the maximum allowed by law will be charged on any unpaid balance until payment in full is received by NPA. Until full payment has been made to NPA 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. If Dealer fails to make payment in full for the vehicle within 30 dates of the date of sale, NPA may, without notice to Dealer, resell the applicable vehicle(s) and Dealer will remain liable to NPA for any loss in value, all costs of collection, and any other losses or damages NPA may sustain. In the event of a dishonored cashier's check, money order, or check, the Dealer agrees to make payment within two days after receipt of notice from NPA of a dishonored check, and to pay NPA's NSF processing fee, and any and all collection costs including but not limited to, collection agency fees, administrative fees, and/or attorney's fees and court costs.
- Any Dealer with an excessive number of unpaid fees or NSF checks will be subject to automatic account suspension.
Sales Tax. Dealer is responsible for and agrees to pay all taxes, liens, or applicable penalties and fees assessed in relation to vehicles purchased by Dealer. Dealers represents that all vehicles purchased from NPA are purchased for the purpose of resale and will provide NPA with a complete and valid sales tax exemption certificate upon request. Dealers agrees to indemnify, defend, and hold NPA and its affiliated companies harmless from any and all sales tax assessments, fines, penalties, damages, and costs, including attorneys' fees, incurred as a result of a determination by taxing authorities that the transaction was subject to the payment of sales, use, or excise tax.
Priority of Application of Payments. Payments made by a Dealer to NPA will be applied in the following order: first towards any unpaid fees (including but not limited to Dealer registration fees, e-Sale fees, convenience, storage, late payment, and proxy bid fees), then towards payment of the sale price of any vehicles purchased by the Dealer. For example, if a Dealer makes a payment of $1,000, but has outstanding storage fees of $400, NPA shall apply the first $400 towards the unpaid storage fees, with the remaining $600 applied towards payment for vehicles. The Dealer agrees that NPA has no duty to release vehicles or vehicle titles until all fees are paid in full.
VI. CHOICE OF LAW AND VENUE; ENTIRE AGREEMENT
Forum Selection, Venue, Jurisdiction, Choice of Law, and Service of Process
. The Dealer acknowledges and accepts the following as express conditions to membership with NPA:
- Any action or proceeding arising directly or indirectly out of a vehicle bid or purchase transaction will be conducted in the state/province and county where the vehicle was located at the time the bid was entered or 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 the forum selection, choice of law, jurisdiction, and venue provisions described above.
- 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.
Entire Agreement. 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.