Auction Participation Agreement

These Participation Terms (“Terms”) apply to each auction, or other sale transaction event (each, an “Event”) conducted by SiteBid and/or its affiliates (collectively, “SiteBid”) on behalf of a property owner, landlord, assignor or other party (each, a “Site Owner”) with an interest in real property, license or lease(s) (each, a “Property”, and collectively, “Properties”). As used in these Terms, each bid or offer submitted in any Event is an “Offer”, each prospective party who makes on offer in any Event is a “Bidder”, and the Bidder that submits an offer during any Event that is accepted by Site Owner is the “Winning Bidder” (or “Assignee”). The terms “SiteBid”, “Site Owner” and “Bidder” shall also refer to the respective principals, agents, and affiliates of each (collectevely, the “Parties”).

  1. ACCOUNT CREATION AND AUCTION PROCESS
    Site Owners may register an account and submit their Property to SiteBid through an auction Event. Upon submission, the Site Owner is entering into an exclusive agreement (“LOI”) with SiteBid to purchase Site Owners interest’s in the Property (“Offering”). SiteBid will then make the offering available to prospective Bidders who will submit offers directly to SiteBid. SiteBid conducts Events solely on behalf of SiteBid, and is not acting as an agent or broker for any party in any capacity. By submitting a Property to SiteBid or submitting an Offer at www.SiteBid.com or any other SiteBid website (“Website”), the Parties acknowledges having read and accepted these Terms along with the Terms of Use for the website.
  2. BIDDING AND AUCTION PROCESS
    1. Reserve Price. All Properties in auction Events have a minimum selling price established by Site Owner (“Reserve Price”). Site Owner may accept a bid that is below the Reserve Price in its sole and absolute discretion. Regardless of the Reserve Price, Site Owner is under no obligation to sell a Property until the Purchase Documents have been signed by the Site Owner.
    2. Winning Bid. All Events are subject to final transaction terms, including Site Owners approval of the Winning Bidder. Upon Site Owners acceptance of the Winning Bidder, the LOI will be assigned from SiteBid to the Winning Bidder through an Assignment Agreement (“Assignement Agreement”). Winning Bidder must sign the Assignement within three business days after they are sent to Winning Bidder. If Winning Bidder fails to timely sign the Assignment Agreement, SiteBid or Site Owner may declare Winning Bidder to be in default of these Terms and reject Winning Bidder’s Offer.
  3. DUE DILIGENCE.
    1. Purchase Documents. Prior to submitting an Offer, Bidders must review the posted agreements, any applicable addenda, Site Owner’s disclosure documentation, assignement agreement terms, and all other transaction documents (collectively, “Purchase Documents”), on the Property Page. All Offers must be based on the posted Purchase Documents. If a purchase agreement is not provided by the Site Owner, the Winning Bidder may submit their a purchase agreement to Site Owner within 10 days of acceptance.
    2. Due Diligence. It is each Bidder’s responsibility to conduct its own due diligence and investigate all matters relating to each Property that Bidder is interested in purchasing, including, without limitation, legal matters, physical condition and attributes, environmental matters, economic matters, encumbrances, and all other aspects. Bidder must coordinate any such inspection with Site Owner. In some circumstances Site Owner may be unable to provide physical access for inspections and Bidders must submit Offers accordingly at their own risk. All Offers should be based solely on Bidder’s independent due diligence and any information contained in the Purchase Documents.
    3. Property Information. Property information has been gathered from a variety of sources and has not been independently verified by SiteBid. This information is provided on an “as is, as available” basis with all faults and defects. Bidder may use this information for their own internal purposes and in a manner that is usual and customary for professionals within the ordinary scope of Bidder’s licensed or regular business activity. Bidders are encouraged to consult with a licensed real estate broker, contractor, attorney, financial advisor, tax advisor, and/or other relevant professionals.
    4. Inspections. Bidder is responsible for all liability, damages and/or costs directly or indirectly arising from Bidder’s inspection, visit, or investigation of the Property. Bidder agrees to indemnify, defend and hold harmless Site Owner and SiteBid from any such liability, damages and/or costs, and to maintain all applicable policies of insurance insuring over such liability, damages and/or costs.
  4. BUYING.
    1. Irrevocability of Offers. All Offers submitted during any Event are irrevocable, except where an Offer withdrawal option is expressly made available to Bidders through the Website or as otherwise set forth herein.
    2. Signing Purchase Documents. The final Purchase Documents will be emailed to the parties for electronic signature using the email address associated with their respective SiteBid account. The Site Owner must sign (or respond with redlines to) the Purchase Documents within ten business days after they are sent. If either party fails to timely sign (or respond to) the Purchase Documents, SiteBid may declare Site Owner or Winning Bidder to be in default of these Terms and the Assignement Agreement may be cancelled.
    3. Payment of Earnest Money Deposit. The Purchase Documents for each Property may require Winning Bidder to pay a deposit to the escrow/closing agent (“Earnest Money Deposit”). The amount of the Earnest Money Deposit is specified in the Purchase Documents or the Property Page for each Property. Unless otherwise specified in the Purchase Documents, the Earnest Money Deposit must be received by the escrow or closing agent no later than two business days after Winning Bidder receives wire instructions, time being of the essence. If the Earnest Money Deposit is not timely received, SiteBid or Site Owner may declare Winning Bidder to be in default of these Terms and Site Owner may reject Winning Bidder’s Offer.
    4. Proof of Funds and Additional Information. SiteBid or Site Owner may require Bidders to provide proof of readily available funds and/or additional information at any time. Bidder must respond to such inquiries within one business day, time being of the essence. If such proof of funds or additional information is not timely received, SiteBid or Site Owner may reject Winning Bidder’s Offer and declare Winning Bidder to be in default of these Terms. Winning Bidders wanting to take title in the name of an entity (not as an individual) may be required to provide entity formation documents and resolutions authorizing the purchase within the timeframe specified by SiteBid (which may be before or after the Event, in SiteBid’s sole discretion). Site Owner and/or the escrow/closing agent may require additional documentation prior to closing.
    5. Bidder’s Fee. If the Property Page for a Property states that a Bidder’s premium, assignment fee, or transaction fee (“Bidder’s Fee”) applies to the sale, then Winning Bidder will be required to pay the Bidder’s Fee in addition to Winning Bidder’s Offer amount at closing. Unless otherwise specified for a particular Property, the Bidder’s Fee will be added to Winning Bidder’s Offer amount to establish the total purchase price payable by Winning Bidder. The Bidder’s Fee, where designated by the Site Owner as applicable to any Property, is an additional charge that among other things may defray the Site Owner’s costs in the sales process including but not limited to the Platform Fee that it may pay and/or to provide compensation for services provided by SiteBid to the successful Bidder.
    6. Property Restrictions. Some Properties have Right of First Refusal (“ROFR”) in their lease agreements or are subject to approval by a 3rd party (“Restricted Property”). All Offers for ROFR and Restricted Properties are subject to the approval of the applicable consent holders (“3rd party Consent”). If 3rd party Consent is not approved, the transaction will be cancelled and the Earnest Money Deposit will be returned to Bidder.
  5. BROKER/AGENT PARTICIPATION
    1. Broker Participation. We encourage real estate broker and agent participation. A cooperating broker commission or referral fee may be offered for some Properties. Please see the applicable Property Page for details regarding broker/agent participation and cooperating broker commissions or referral fees related to a specific Property. No cooperating broker commission or referral fee shall be paid to any broker or agent representing the Bidder unless expressly set forth in writing for the applicable Property. For certain Events, a registered broker/agent may submit Offers on behalf of a Bidder identified to SiteBid prior to Offer submission. By submitting an Offer on behalf of a Bidder, the broker/agent (i) represents and warrants that the broker/agent has received all Bidder authorizations and satisfied all legal requirements necessary to submit Offers on the Bidder’s behalf, (ii) acknowledges and agrees that any Offer submitted will be binding upon the broker/agent and the Bidder identified at registration to the same extent as if the Bidder had submitted the Offer, and (iii) agrees to indemnify and hold harmless SiteBid from any breach of these representations or warranties. Bidder shall indemnify and hold harmless SiteBid from any claims brought against SiteBid by any broker/agent representing Bidder.
    2. Brokerage Services. Site users may make requests to contact a broker. By making such requests, the Site user authorizes SiteBid to share the user’s personal information including their search history, favorites and saved searches to a professional in order to satisfy the user’s request. When Site users make such requests to SiteBid they are extending an express invitation for SiteBid, or another appropriate entity or person, to contact the User. You understand and agree that if you use the services provided by SiteBid to locate and broker, SiteBid may be compensated by that broker for the referral service. You agree that your use of the Site does not constitute or create a fiduciary or brokerage relationship with SiteBid involving the purchase and sale of any property or security. You understand that all the data on properties available for sale or rent is maintained by various real estate brokers, real estate agent boards, MLSs and associations in the communities where you are searching or where your property is located. These local boards of real estate are independent of SiteBid and are solely responsible for the accuracy of the information on properties entered into their own MLS data. SiteBid does not alter or add to this information on the properties in any way.
  6. GENERAL INFORMATION
    1. General. Site Owner and SiteBid reserve the right to deny, limit, or impose conditions on submitting Offers and/or access to the Website or any Event at any time, for any reason (including, without limitation, Bidder’s solvency, credit history, transaction history, and Cancellation Fee amounts). SiteBid may at any time postpone or cancel an Event, rearrange the order or sequence of the Properties in the Event, modify these Terms by posting notice of modification on the Property Page, remove any Property from the Event, or reject any or all Offers. SiteBid, Site Owners and/or their agents may issue press releases and other public communications regarding the Event and/or any Property offered or sold during at an Event. These Terms and the conduct of each Event shall be governed by the laws of California. Any information on any website, in any brochure, e-mail or postcard and any and all information available regarding the Properties shall not constitute an offer to sell or a solicitation of any offer to buy any of the Properties. Offers submitted or solicitations made during any Event are void where prohibited by law. If any sale would require registration or qualification under applicable state securities laws, no such sale may be consummated until such applicable requirements have been met. As between Site Owner and Bidder, no obligation to sell shall be binding on Site Owner unless and until the Purchase Documents have been signed and delivered by Site Owner and the Earnest Money Deposit has been received as required hereunder. After the Purchase Documents have been fully signed, the Purchase Documents shall govern the relationship between Winning Bidder and Site Owner and SiteBid shall be released from any liability in connection therewith.
  7. Indemnification. You agree to indemnify, defend, and hold harmless SiteBid, our affiliates, and our respective directors, officers, employees, and agents from any and all claims and demands made by any third party due to or arising out of: (a) your access to or use of the Services; (b) your breach of these Terms of Use; (c) your violation of any law or the rights of a third party; (d) any dispute or issue between you and any third party; (e) any User Materials you upload to, or otherwise make available through, the Services; (f) your willful misconduct; and (g) any other party’s access to or use of the Services using your account and password. SiteBid reserves the right, at their own expense, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, and in that case, you agree to cooperate with SiteBid’s defense of that claim.
  8. Choice of Law; Disputes. These terms and conditions are governed by and construed in accordance with the laws of the State of California, applicable to agreements made and entirely to be performed within the State of California, without resort to its conflict of law provisions. You agree that any action at law or in equity arising out of or relating to these terms and conditions can be filed only in state or federal court located in the State of California, and you hereby irrevocably and unconditionally consent and submit to the exclusive jurisdiction of such courts over any suit, action or proceeding arising out of these terms and conditions.
  9. Dispute Resolution.
    1.  Binding Arbitration. If you reside in the United States, you and SiteBid agree to resolve any claims relating to this Agreement (collectively, “Disputes”) through final and binding arbitration, except as otherwise specifically provided herein.
    2. Waiver of Class Action. You acknowledge and agree that you and SiteBid are each waiving the right to a trial by jury or to participate as a plaintiff or class member in any purported class action lawsuit, class-wide arbitration, private attorney-general action, or any other representative proceeding. Further, unless both you and SiteBid otherwise agree in writing, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of any class or representative proceeding. If this specific paragraph is held unenforceable, then the entirety of this “Dispute Resolution” section will be deemed void. Except as provided in the preceding sentence, this “Dispute Resolution” section will survive any termination of this Agreement.
    3. Arbitration Rules and Governing Law. This agreement to arbitrate evidences a transaction in interstate commerce, and thus the Federal Arbitration Act (the “FAA”) governs the interpretation and enforcement of this provision. The arbitration will be administered by the American Arbitration Association (“AAA”) in accordance with the Consumer Arbitration Rules (the “AAA Rules”) then in effect, except as modified by this “Dispute Resolution” section. (The AAA Rules are available at www.adr.org/arb_med or by calling the AAA at 1–800–778–7879.) If the FAA and AAA Rules are found not to apply to any Dispute hereunder, or the enforcement thereof, then that issue shall be resolved under the laws of the State of California without giving effect without giving effect to its conflict of laws provisions.
    4. Notice; Informal Dispute Resolution. A party who intends to seek arbitration must first send written notice to the other party by certified mail. Notice to SiteBid, should be sent to 4752 Palm Ave. Suite 102, La Mesa, CA 91942, with a copy to the Legal Department. Your notice must include (a) your name, postal address, telephone number, email address, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that you are seeking. SiteBid’s notice to you will be sent electronically to the email address SiteBid has on file associated with your SiteBid account, and will include (a) SiteBid’s name, postal address, telephone number and an email address at which SiteBid can be contacted with respect to the Dispute, (b) a description in reasonable detail of the nature or basis of the Dispute, and (c) the specific relief that SiteBid is seeking.If you and SiteBid cannot agree how to resolve the Dispute within thirty (30) days after the date notice is received by the applicable party, then either you or SiteBid may, as appropriate and in accordance with this Agreement, commence an arbitration proceeding.
    5. Arbitration Process. A party who desires to initiate arbitration must provide the other party with a written Demand for Arbitration as specified in the AAA Rules. (The AAA provides a form Demand for Arbitration.) The arbitrator will be either a retired judge or an attorney licensed to practice law in the State of California and will be selected by the parties from the AAA’s roster of consumer dispute arbitrators. If the parties are unable to agree upon an arbitrator within seven (7) days of delivery of the Demand for Arbitration, then the AAA will appoint the arbitrator in accordance with the AAA Rules.
    6. Arbitration Location and Procedure. Unless you and SiteBid agree otherwise, the arbitration will be conducted in San Diego County, California and the state and federal courts located in San Diego County, California shall have exclusive jurisdiction over any appeals and the enforcement of an arbitration award. If the Dispute does not exceed $10,000, you or SiteBid may elect to have the arbitration conducted by telephone or based solely on written submissions, which election shall be binding on you and SiteBid subject to the arbitrator’s discretion to require an in-person hearing, if the circumstances warrant. In cases where an in-person hearing is held, you and/or SiteBid may attend by telephone, unless the arbitrator requires otherwise. If the Dispute exceeds $10,000, the right to a hearing will be determined by the AAA Rules. Subject to the AAA Rules, the arbitrator will have the discretion to direct a reasonable exchange of information by the parties, consistent with the expedited nature of the arbitration.
    7. Arbitrator’s Decision. The arbitrator will render an award within the time frame specified in the AAA Rules. The arbitrator’s decision will include the essential findings and conclusions upon which the arbitrator based the award. Judgment on the arbitration award may be entered in any court having jurisdiction thereof. The arbitrator’s award damages must be consistent with the terms of the “Liability Limitation; Exclusive Remedy” section as to the types and the amounts of damages for which a party may be held liable. The arbitrator may award declaratory or injunctive relief only in favor of the claimant and only to the extent necessary to provide relief warranted by the claimant’s individual claim. The prevailing party shall be entitled to an award of reasonable attorney fees.
    8. Fees. Your responsibility to pay any AAA filing, administrative and arbitrator fees will be solely as set forth in the AAA Rules.
    9. Changes. Notwithstanding the provisions of the “Changes; Discontinuance” section, if SiteBid changes this “Dispute Resolution” section after the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement), you may reject any such change by sending SiteBid written notice (including by email) within 30 days of the date such change became effective, as indicated in the “Last Updated” date above or in the date of SiteBid’s email to you notifying you of such change. By rejecting any change, you are agreeing that you will resolve any Dispute between you and SiteBid in accordance with the provisions of this “Dispute Resolution” section as of the date you last accepted this Agreement (or accepted any subsequent changes to this Agreement).
    10. Exceptions to Agreement to Arbitrate. Either party may bring a lawsuit solely for injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents, or other intellectual property rights without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in San Diego County, California to resolve your claim.
  10. DISCLAIMERS; BIDDER REPRESENTATIONS; CANCELLATION; LIQUIDATED DAMAGES. SITEBID MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND OR CHARACTER WHATSOEVER, WHETHER EXPRESS OR IMPLIED, WITH RESPECT TO ANY PROPERTY, OR THE LEGAL SUFFICIENCY OR TAX CONSEQUENCES OF ANY DOCUMENT PROVIDED BY SITEBID. EACH BIDDER HEREBY RELEASES SITEBID AND ITS EMPLOYEES, OFFICERS, DIRECTORS, REPRESENTATIVES, ATTORNEYS, BROKERS AND AGENTS (COLLECTIVELY, “REPRESENTATIVES”) FROM ANY AND ALL CLAIMS THAT ANY SUCH BIDDER MAY NOW HAVE OR HEREAFTER ACQUIRE AGAINST SITEBID OR ANY OF ITS REPRESENTATIVES FOR ANY DAMAGE OR INJURY RESULTING FROM OR RELATING TO ANY ERRORS, OMISSIONS OR OTHER CONDITIONS AFFECTING ANY PROPERTY, THE DOCUMENTS USED IN EVALUATING OR ACQUIRING ANY PROPERTY, OR THE CONDUCTING OF ANY EVENT. THIS RELEASE INCLUDES CLAIMS OF WHICH BIDDER IS PRESENTLY UNAWARE OR DOES NOT PRESENTLY SUSPECT TO EXIST IN BIDDER’S FAVOR WHICH, IF KNOWN BY BIDDER, WOULD MATERIALLY AFFECT BIDDER’S RELEASE OF SITEBID. EACH BIDDER SPECIFICALLY WAIVES THE PROVISIONS OF CALIFORNIA CIVIL CODE SECTION 1542 (AND OTHER SUBSTANTIALLY SIMILAR APPLICABLE STATE STATUTES) WHICH PROVIDES AS FOLLOWS: A GENERAL RELEASE DOES NOT EXTEND TO CLAIMS THAT THE CREDITOR OR RELEASING PARTY DOES NOT KNOW OR SUSPECT TO EXIST IN HIS OR HER FAVOR AT THE TIME OF EXECUTING THE RELEASE AND THAT, IF KNOWN BY HIM OR HER, WOULD HAVE MATERIALLY AFFECTED HIS OR HER SETTLEMENT WITH THE DEBTOR OR RELEASED PARTY. BIDDER agrees to indemnify and hold harmless SiteBid from any liability, damages and/or costs (including reasonable attorneys’ fees) arising from any first-party or third-party claim related to (i) BIDDER’s actions or inactions, (ii) any information or communications supplied by SiteBid, or (iii) the condition or occupancy status of any Property. CANCELLATION; LIQUIDATED DAMAGES. IF BIDDER BREACHES THESE TERMS, (1) BIDDER’S OFFER MAY BE REJECTED BY SITEBID AND/OR SITE OWNER, (2) THE PROPERTY MAY BE IMMEDIATELY SOLD TO ANOTHER BIDDER OR PLACED IN ANOTHER EVENT, AND (3) BIDDER WILL BE RESPONSIBLE FOR PAYING SITEBID LIQUIDATED DAMAGES IN AN AMOUNT EQUAL TO THE GREATER OF THE AMOUNT OF THE CANCELLATION FEE SHOWN AT THE TIME OF BIDDING OR THE AMOUNT OF THE CANCELLATION FEE OTHERWISE AGREED TO BY BIDDER IN WRITING. SITEBID IS AUTHORIZED TO CHARGE THE CREDIT CARD PROVIDED BY BIDDER AT REGISTRATION OR RETAIN THE AMOUNT DEPOSITED WITH SITEBID PURSUANT TO A SEPARATE WRITTEN AGREEMENT TO SATISFY ALL OR PART OF THE LIQUIDATED DAMAGES OWED BY BIDDER. BIDDER ACKNOWLEDGES THAT THE ACTUAL DAMAGES RESULTING FROM BIDDER’S BREACH OF THESE TERMS WOULD BE DIFFICULT AND IMPRACTICAL TO CALCULATE, AND THAT THE AMOUNT EQUAL TO THE CANCELLATION FEE IS A REASONABLE PRE-ESTIMATE OF THE RESULTING DAMAGES TO SITEBID AND IS NOT A PENALTY OR FORFEITURE.