AGENT AUCTION BIDDER TERMS & CONDITIONS

RESIDENTIAL AGENT AUCTION, A DBA OF RESIDENTIAL AGENT INC AUCTION AGREEMENT
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(“Auction Date”)
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(“Property”)
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(“Owner”)

Bid Information:
• Sealed Bid with Published Reserve
• Sealed Bid with Non-Published Reserve
• Sealed Bid with No Reserve
• Online Bid with Published Reserve
• Online Bid with Non-Published Reserve
• Online Bid with No Reserve
• Live Bid with Published Reserve
• Live Bid with Non-Published Reserve
• Live Bid with No Reserve
• Live / Online Bid with Published Reserve
• Live / Online Bid with Non-Published Reserve
• Live / Online Bid with No Reserve

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Mortgage/Liens
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Please attach recent copy of Mortgage Statement
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This Auction Agreement (including those terms set forth above, the “Agreement”) is effective as of the date of the last party’s signature between Agent Auction, and the Owner. Owner engages Agent Auction to market the Property for sale via Auction (the “Auction”) on the terms and conditions set forth in this Agreement.

1. AUCTION FORMAT. The Property will be offered for sale on an “as-is, where-is” basis. The Auction shall be conducted through Agent Auction. Bidding shall commence on the Auction Date at the time stipulated on Page 1 where the Property is located and shall continue as stipulated on Page 1 (the “Auction Duration”), unless modified by Agent Auction in its discretion.

If the Auction is Without Reserve: Owner shall be obligated to sell the Property to the highest bidder (or back-up bidder as described below), regardless of price. Owner shall have the right to cancel the Auction in writing between 9:00 a.m. and 12:00 p.m. local time where the Property is located on the Auction Date. If Owner elects to cancel the Auction: (i) Owner shall promptly pay the Fee to Agent Auction by wire transfer, and (ii) the Buyer’s Premium will be due in the event of a sale of the Property outside of the Auction as set forth below. No attempt to cancel the Auction by Owner shall be effective unless written notice of cancellation has been provided by Owner to Agent Auction as set forth in Section 11 of this Agreement and Owner has paid the Fee to Agent Auction.

If the Auction is with a Non-Published or Published Reserve: Owner shall be obligated to sell the Property to the highest bidder (or back-up bidder as described below) if the highest Auction bid is equal to or greater than the Published Reserve.

Agent Auction shall have absolute authority to regulate all aspects of the Auction bidding process, including but not limited to opening the bidding at any threshold amount at or below the highest opening bid and any subsequent bidding increments.

2. DUTIES OF OWNER. Owner agrees to cooperate with Agent Auction in all ways consistent with this Agreement. If Owner does not have a recent survey of the Property and/or professional home inspection, then immediately following the execution of this Agreement, Owner will allow Agent Auction to conduct a survey of the Property and a professional home inspection to allow Agent Auction to provide them for bidder due diligence, at Owner’s expense. Owner will allow Agent Auction, its agents, the listing broker and potential bidders access to the Property at all reasonable times. Owner will convey fee simple, marketable and insurable title (or the equivalent) to the Property by appropriate deed if the Property is sold. If the Property is sold, prior to closing Owner shall remove or clear any title defects and other monetary liens if they may impact a sale of the Property. Owner will not allow the Property to become subject to any mortgages, liens or encumbrances other than those listed herein and will remain current on all payment obligations under any existing mortgages against the Property (unless such non-payment is previously disclosed to and agreed by Agent Auction. Owner will promptly notify Agent Auction of any inquiries regarding the Property and/or Auction and will instruct such person(s) to contact Agent Auction. Owner will not enter into any agreement to sell all or any portion of the Property or grant any person the right to acquire any portion of the Property or any interest in the Property, except under this Agreement. Owner agrees to take such other actions and to execute such documents consistent with the terms of this Agreement as may be reasonably requested by Agent Auction to conduct the Auction and to complete the sale of the Property, including working with Agent Auction to prepare an “as-i is” purchase contract with no conditions or contingencies consistent with applicable laws (“Purchase and Sale Contract”). Owner may not bid, instruct, or permit any other person to bid on Owner’s behalf at the Auction. In connection with the sale of the Property, Owner shall pay all costs associated with title and title insurance, and Buyer shall pay all other costs associated with the transfer of the Property. Owner agrees that it will pre-execute the Purchase and Sale Contract prior to the commencement of the Auction, subject to Owner’s right to cancel the Auction as set forth in this Agreement. Owner agrees that after the Auction, Owner’s Broker and/or Agent Auction will be authorized to complete such Purchase and Sale Contract (including adding the purchaser’s name, purchase price, opening bidder credit and other pertinent details determined by the winning bid amount at Auction) in accordance with this Agreement, and then submit the Purchase and Sale Contract to the winning bidder for execution.

3. REPRESENTATIONS OF OWNER. Owner represents and warrants to Agent Auction that: (i) Owner has full power and authority to execute this Agreement and to consummate the transactions contemplated by this Agreement, which is a valid and binding agreement of Owner, enforceable against Owner in accordance with its terms; (ii) Owner shall maintain at all times adequate liability and property insurance coverage pertaining to the Property for the duration of this Agreement, the Auction and related activities; (iii) Owner has good and marketable fee simple title (or the equivalent) to the Property, free and clear of all liens, claims and/or encumbrances or limitations of any nature except as set forth herein; (iv) Owner has not caused any work or improvements to be performed upon the Property for which there remains outstanding any obligation that could serve as the basis for any lien or encumbrance except as set forth herein; (v) no litigation or proceeding is pending against Owner or the Property, and no such litigation has been threatened; and (vi) Owner is able to repay any shortfall between (a) the sale price of the Property and (b) any mortgages, liens or encumbrances on the Property. If the terms of this Agreement may result in a deficiency balance, unless previously agreed by Agent Auction in writing, Owner has informed any such lienholder of the terms of this Agreement and has obtained such lienholder’s approval to conduct the auction and made arrangements to satisfy any potential deficiency. Owner authorizes Agent Auction to contact any of its then existing lienholders to confirm the terms of any arrangement between the Owner and the lienholder related to a potential deficiency balance.

4. ACKNOWLEDGEMENTS OF OWNER. Owner acknowledges and agrees that: (i) there is no guarantee that the Property will be sold at the Auction, that any registered bidder will place a bid, that buyer will perform its obligations or that Owner will receive any specific amount or sales price from the Auction or otherwise, and that Owner has not received from Agent Auction or any of its employees or agents, and is not relying on, any representations, warranties or guarantees as to the sale price from the Auction – any such statements are opinions only and should not be construed promises or guarantees about the outcome of the Auction; (ii) Agent Auction shall have no responsibility whatsoever for any act associated with the closing or consummation of any sale of the Property, and Owner and/or its third party agents are solely responsibility for such acts; (iii) Agent Auction shall have the absolute right: (a) to place a sign on the Property and to remove all other signs, (b) to permit inspections of the Property, (c) to disseminate any information regarding the Property, (d) to Auction the Property for sale to registered bidders, (e) to disclose Owner as Principal, (f) to record in the public records in which the Property is located, a notice of Agreement and any other material agreement affecting title to the Property of which Agent Auction is aware and which is not recorded; and (g) to publicly announce and publicize the high bid of the Property post auction; (iv) Owner agrees to assist in gaining the cooperation of the listing broker with the auction marketing process; (v) Owner is responsible for all commissions due to the listing real estate agent and selling or cooperating broker, if any and (vi) Agent Auction’s employees and agents have no authority to add to or vary the terms of this Agreement orally or (except in a written amendment duly executed by an authorized officer of Agent Auction) in writing. Owner authorizes Agent Auction and its representatives to enter upon and use the Property for all purposes related to its services under this Agreement, without any fee. Owner acknowledges that Agent Auction is acting as an agent for Owner only in its capacity as auctioneer and is not acting as its real estate broker. Owner is responsible for the accuracy of the information about the Property provided to Agent Auction and expressly releases Agent Auction from any liability related to information disseminated in connection with the sale of the Property if such information was provided by Owner or its agents; provided that Agent Auction presented such Property information accurately and in good faith.

5. SERVICES OF AGENT AUCTION. Agent Auction will use commercially reasonable efforts to market the Property for Auction. Agent Auction may change the Auction Date by up to 30 days and/or extend the Auction Duration, and Agent Auction will promptly notify Owner of any such change. Agent Auction agrees to provide written notice of Opening Bids to Owner prior to the commencement of bidding on the Auction Date. Agent Auction will have the right, in its sole discretion, to decline the registration of any potential bidder for the Auction.

6. COMPENSATION TO AGENT AUCTION. Agent Auction will receive as compensation for its services, for each separate Property sold, a fee equal to the amount stipulated Page 1 of either (a) the high bid for the Property at Auction, or (b) the accepted purchase price of the Property if sold outside of Auction per Property (the “Buyer’s Premium”). The successful bidder will be required to pay the Buyer’s Premium to Agent Auction if the Property is sold at Auction and the Buyer’s Premium shall be deemed earned upon the conclusion of the Auction. Owner acknowledges and agrees that Agent Escrow shall hold any bidder deposits and that the Buyer’s Premium shall be disbursed to Agent Auction by Agent Escrow upon closing. In the event that the Property is sold prior to the Auction, Owner agrees that the terms of such sale shall be substantially similar to the Purchase and Sale Contract (“as-is”, Buyer Premium Percentage as stipulated Page 1, and a similar closing timeframe), and Owner will be obligated to pay Agent Auction the Buyer’s Premium. In the event that the Property is not sold at the Auction (or the Auction is cancelled and this Agreement is terminated) and the Property is contracted to be sold or otherwise transferred by Owner during the 60-day period after the expiration or termination of this Agreement to anyone, Owner will be obligated to pay Agent Auction the Buyer’s Premium. A sale or transfer of the Property shall include any long-term lease or other form of conveyance intended to accomplish the equivalent of a sale of the Property. After execution by Owner and buyer of the Purchase and Sale Contract, if the sale of the Property does not close due to the actions of Owner or its agents or assigns, Owner shall pay Agent Auction the Buyer’s Premium as if the Property had sold for the contracted sale price. Owner shall be obligated to provide Agent Auction with a copy of the Purchase and Sale Contract. The Buyer’s Premium shall be reflected on any settlement statement issued for the Property regardless of who is paying the Buyer’s Premium and regardless of whether the Property is sold at Auction or otherwise. Owner hereby authorizes Agent Auction to provide Agent Escrow and/or closing agent a breakdown of all fees and commissions to be paid. Owner also authorizes the title company and/or closing agent to provide Agent Auction with a copy of the settlement statement for the Property.

7. BUYER DEFAULT. In the event that Owner enters into any contract for the sale of the Property for which Agent Auction would be entitled to the Buyer’s Premium, and the buyer defaults, then Agent Auction and Owner shall split equally (50% to Agent Auction and 50% to Owner) any deposit made by the buyer in connection with the sale of the Property (or any other amounts collected from the buyer) (subject to applicable laws). In addition, if after the Auction the Buyer defaults under the Bidder Terms and Conditions and/or the Purchase and Sale Contract, Agent Auction shall have the right to declare the second-place bidder to be the back-up bidder and Buyer of the Property within no more than three business days after the completion of the Auction, but only if such back-up bid will result in Owner receiving the same or better net proceeds related to the sale of the Property. In that case, Owner shall comply with the terms of this Agreement and the Purchase and Sale Contract as to such back-up bidder. In the alternative, Agent Auction shall have the right at no additional cost, in its sole discretion, to conduct another auction of the Property at any time within the 30-day period after Owner provides written notice to Agent Auction of Buyer’s default. Notwithstanding the foregoing, Agent Auction shall have no obligation to initiate legal action or otherwise to pursue any action to enforce buyer’s obligations under the Purchase and Sale Contract.

8. INDEMNIFICATION; LIMITATION OF LIABILITY. Owner shall indemnify, defend (by counsel satisfactory to Agent Auction) and hold harmless Agent Auction and its officers, employees, agents and representatives (collectively, the “Indemnitees”), against any claim, demand, cause of action, loss, liability, deficiency, fine, penalty, damage or expense (including reasonable attorney’s fees and costs and including interest and penalties) (a “Loss”) which any Indemnitee may suffer, incur, sustain or become subject to, as a result of or in connection with: (i) any breach by Owner of any representation, warranty, obligation or covenant set forth in this Agreement; (ii) any breach by Owner of any Purchase and Sale Contract entered into with any successful bidder, or (iii) any breach by Owner of the listing agreement with the listing broker, or (iv) any claim from any third party related to damage sustained by the third party on the Property. Owner acknowledges and agrees that Agent Auction shall not be responsible for damage or injury to the Property resulting from or arising in connection with the sale of the Property, except to the extent that such damage or injury is caused by Agent Auction’s gross negligence. Agent Auction shall not be liable for any loss suffered by Owner relating to the Property, including but not limited to a bidder/buyer that refuses to enter into a Purchase and Sale Contract or to perform its obligations. Agent Auction’s maximum liability for the breach of any obligation in connection with this Agreement, and for damages of any type or nature (whether in contract or in tort, compensatory, consequential or punitive in nature) sustained or claimed by Owner or any other person in connection with this Agreement, even if such party shall have been informed of the possibility of such damages or could have foreseen such damages, shall be limited to the greater of (i) the compensation actually received by Agent Auction under this Agreement or (ii) the limits of liability insurance available to Agent Auction. In no event shall Agent Auction be liable to Owner for any indirect, incidental, consequential, special or punitive damages arising out of any breach of its obligations in connection with this Agreement.

9. CANCELLATION, TERMINATION & SURVIVAL. The term of this Agreement will commence upon execution by the last party and terminate either (i) on the date of the closing of the sale of the Property or (ii) the date of delivery of written notice of termination if permitted herein. In addition to any cancellation rights of Owner (and Owner shall have no cancellation rights if this is a Reserve Auction), Agent Auction shall have the right to cancel, postpone or reschedule the Auction in its sole discretion for any reason. If Agent Auction or Owner cancels the Auction as permitted under this Agreement, this Agreement shall terminate on such date and Agent Auction shall promptly inform all registered and prospective bidders of such cancellation. Any party electing to terminate this Agreement shall provide prompt written notice of termination to the other party. The obligations contained in Sections 2, 3, 4, 5, 6, 8, 9, 15 and 17 shall survive the termination of this Agreement for any reason.

10. NOTICES. Any notice to a party under this Agreement (including but not limited to notice of cancellation) shall be in writing and shall be delivered by electronic mail (to Agent Auction at [email protected]) to the Owner at the address or electronic mail set forth on the signature page of this Agreement.

11. ENTIRE AGREEMENT. This Agreement and the related Exhibits/Addendum contain the complete and final obligation and understanding between the parties relating to the subject matter hereof and merge all prior discussions, negotiations and agreements between them, whether written or oral, and the parties shall not be bound by any representations, warranties, covenants, or other understandings, except as expressly provided or referred to herein.

12. ASSIGNMENT. This Agreement may not be assigned by any party without the written consent of all of the other parties; except that Agent Auction may assign to its affiliates. This Agreement shall be binding upon and inure to the benefit of the parties and their successors, heirs, representatives, and permitted assigns.

13. WAIVER & AMENDMENT. This Agreement may be amended or modified only in writing signed by both parties. Compliance with any provision of this Agreement may be waived only by a writing signed by the party against which enforcement of the change, waiver, discharge or termination is sought. Time is of the essence of this Agreement.

14. CONFIDENTIALITY. Owner and Agent Auction agree to maintain the terms of this Agreement and all details regarding the Auction and the sale of the Property under this Agreement in strictest confidence and not to disclose, publish or divulge such information to any third party; provided that Owner and Agent Auction may disclose this Agreement to the current listing agent and/or broker designated on the attached Listing Agreement Addendum, its attorneys, accountants, financial advisors, the title company and/or escrow or settlement agent that closes the sale of the Property, or as required by law or any governmental or regulatory agency. Nothing in this provision is intended to preclude Agent Auction from discussing bidding issues and procedures with prospective auction participants.

15. TECHNOLOGY. Owner acknowledges that the Auction may be conducted online over the Internet, through Agent Auction’s digital bidding application and that it may utilize third party technology in order to conduct the Auction and/or to accept bids, all in Agent Auction’s discretion. AGENT AUCTION DOES NOT WARRANT THAT THE FUNCTIONS, FEATURES OR CONTENT CONTAINED IN ITS WEBSITE OR ANY AUCTION PLATFORM, APPLICATION OR BIDDING SOFTWARE, INCLUDING ANY THIRD-PARTY SOFTWARE, TECHNOLOGY, PRODUCTS OR OTHER MATERIALS USED IN CONNECTION WITH THE AUCTION, WILL BE TIMELY, SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS WILL BE CORRECTED.

16. ARBITRATION; VENUE; PREVAILING PARTY. The parties shall submit any and all controversies, disputes, claims and matters of difference arising out of or relating to this Agreement, including but not limited to its performance, enforcement, scope and/ or interpretation, exclusively to arbitration in Orange County, California in accordance with the Commercial Arbitration Rules and Mediation Procedures of the American Arbitration Association then in effect (the “Rules”). Notwithstanding anything to the contrary contained in this Agreement, each of the Parties agrees that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act applies to and governs this arbitration provision and shall preempt any inconsistent state or federal rule or law. The parties agree to grant all powers to the arbitrator to the fullest extent of the Rules. The parties will attempt, in good faith, to agree on a retired judge as sole arbitrator. In the absence of such agreement, there will be three arbitrators, selected in accordance with the Rules. If there are three arbitrators, a decision reached by at least two of the three arbitrators will be the decision of the arbitration panel. The parties agree to abide by all decisions reached and awards rendered in such arbitration proceedings, and all such decisions and awards will be final and binding on both parties. Judgment upon the award may be entered in any court of competent jurisdiction or application may be made to such court for a judicial acceptance of the award and an order of enforcement. Each of the Parties consents to the exclusive jurisdiction of the state and federal courts located in the County of Orange, State of California (and of the appropriate appellate courts therefrom) in any such action or proceeding (including an action to compel arbitration or to stay any proceeding inconsistent with this provision) and in any other action or proceeding arising out of or relating to this Agreement, including but not limited to its performance, enforcement, scope and/or interpretation, and waives any objection to venue or to the jurisdiction of such courts. Each of the Parties agrees that process in any action or proceeding may be served personally or by registered mail anywhere in the world. In the event of any such arbitration or any permitted court action, the prevailing party shall be entitled to reimbursement from the non-prevailing party of all reasonable attorney’s fees and costs/expenses of the prevailing party and any award of the arbitrator(s) or court will include costs and reasonable attorneys’ fees to the prevailing party. If any Party files a court action arising out of or relating to this Agreement or the breach, termination, enforcement, interpretation or validity thereof, including the determination of the scope or applicability of this agreement to arbitrate, to compel or stay arbitration (by petition, motion, or otherwise), or to confirm, vacate or modify an arbitration award (except for a non-contested application to confirm), or to seek payment of any attorneys’ fees and/or costs awarded by the arbitrator(s) but not paid by the non-prevailing party in the arbitration, or in the event any Party seeks enforcement of any arbitration award or judgment arising out of an arbitration award, reasonable attorney’s fees and other costs incurred by the prevailing Party in such court action or in connection with such judgment enforcement shall be reimbursed by the non-prevailing Party. THE PARTIES UNDERSTAND AND AGREE THAT, ABSENT THIS AGREEMENT, THEY WOULD HAVE THE RIGHT TO SUE EACH OTHER IN COURT, AND THE RIGHT TO A JURY TRIAL, BUT THEY GIVE UP THOSE RIGHTS VOLUNTARILY AND AGREE TO RESOLVE ANY AND ALL GRIEVANCES BY ARBITRATION IN ACCORDANCE WITH THIS SECTION 17.

17. SEVERABILITY. Whenever possible, each provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision of this Agreement is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating the remainder of this Agreement.

18. GOVERNING LAW. This Agreement has been entered into and shall be construed and enforced in accordance with the laws of the State of California without regard to conflicts of law principles.

19. LICENSING/BONDING. Agent Auction is licensed and/or bonded as required in the jurisdictions in which it conducts business including, but not limited, to the following states: California Auction Bond No. 64610603 (on file with the Secretary of State). Licenses and bonds are routinely updated. For Agent Auction’s current licensing and bonding information, contact [email protected]

20. ADDITIONAL TERMS AND CONDITIONS. None.

AGENT AUCTIONS
By
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Name: John McMonigle
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Residential Agent Inc.
CA DRE: 02068079

By
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Name: Ron Mazzano
Title: Broker of Record

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By signing above, Owner and Agent Auction acknowledge that they have carefully read and agree to be bound by the terms and conditions of this Agreement, any related documents and addenda, all of which form the Agreement between Agent Auction and Owner, and that they have been given the opportunity to seek legal advice and to have this Agreement reviewed by an independent attorney prior to signing it.