|Terms: ||Please review this document (“Terms and Conditions”) carefully. In order to be eligible to bid on the Property, a Bidder must sign their Acknowledgment and Acceptance of these General Terms and Conditions of Sale prior to Bidding.|
1. START / END DATES AND TIMES:
The Online Real Estate Auction (“Online Auction” or “Auction”) shall begin on Monday, May 23, 2016 @ 10:00 A.M. E.T. and will end on Wednesday, May 25, 2016 @ 2:00 P.M. E.T.
2. ONLINE AUCTION REGISTRATION:
Registration is required to become a qualified and eligible online bidder (“Bidder”). To register, a prospective Bidder must:
(a) Complete the Online Bidder Registration Form providing Bidder’s full name, company name, residence/business addresses with telephone numbers, cellular telephone number, facsimile number, email address, a copy of a U.S. State valid driver’s license number or a valid passport, and the name(s) and / or entity in which the Bidder will wish to take title to the Property.
(b) Bidders must wire transfer the required Escrow Deposit in the amount of $350,000.00 in U.S. Funds to Richard G. Coker, Jr., P.A. Trust Account, d/b/a Coker & Feiner, (Escrow Agent), 1404 South Andrews Avenue, Fort Lauderdale, FL 33316-1840; Phone: 954.761.3636 no later than 5:00 P.M. E.T., Tuesday, May 24, 2016 (for wiring instructions contact Auctioneer at 800.331.6620 or 954.942.0917 for international calls).
(c) Sign/Date/Time an acknowledgment that the Bidder has read and agrees to be bound by these General Terms and Conditions of Sale.
(d) Execute the Online Bidder Contract and the Return of Escrow Deposit Form.
(e) Return the required four (4) executed documents to Fisher Auction Company (“Auctioneer”), 2112 East Atlantic Boulevard, Pompano Beach, Florida 33062; Facsimile: 954.782.8143; Email: firstname.lastname@example.org no later than 5:00 P.M. E.T. Tuesday, May 24, 2016.
3. SUCCESSFUL BID, TOTAL PURCHASE PRICE (BUYER’S COMMISSION / PREMIUM), ESCROW DEPOSIT / NOTARY:
(a) If the Seller, by and through the Auctioneer, accepts a bid (“Successful Bid”) for the Property, then the successful Buyer will be required to execute, as Buyer (“Buyer”), the required Documents (“Documents”) that will be provided by Paul Flandoli Velez, an Ecuadorian Notary (“Notary”), whom will be handling the transfer of the Property between Seller and Buyer. The successful Buyer will have twenty-four (24) hours to execute and return the Documents. If the Successful Buyer does not execute and return the executed Documents within twenty-four (24) hours from the conclusion of the Auction, they will be considered in default.
(b) The amount of (i) the Successful Bid AND (ii) 7% of the Successful Bid (“Buyer’s Commission / Premium”), added together, will be the Total Purchase Price (“Total Purchase Price”) for the Property to be purchased by the Buyer under the Documents together with the required fees as further provided in the Documents.
4. TRANSFER AND PAYMENT OF TOTAL PURCHASE PRICE:
(a) The Transfer (“Transfer”) of the Property from Seller to Buyer will be on or before Tuesday, June 28, 2016. Seller shall have the right to extend the Transfer for an additional thirty (30) calendar days by providing written notice to the Buyer. The Transfer will be coordinated and administered through the offices of the Notary, Paul Flandoli Velez, 24 de mayo 0828 and 10 de Agosto, Loja-Ecuador; Phone: 011 593 99 273 51 62.
(b) The Total Purchase Price will be due and payable by Buyer by the Transfer date by Wire Transfer of immediately available U.S. Funds, pursuant to written instructions from the Escrow Agent and or the Notary. Buyer shall receive credit for the Escrow Deposit, upon clearance, which shall be released from escrow to the Seller and applied towards the Total Purchase Price at the Transfer.
(c) The Seller will provide, via the Notary, Buyer the proper Deeds to the Property.
(d) Time shall be of the essence as to Buyer's obligations in these General Terms and Conditions of Sale.
5. BUYER’S ACKNOWLEDGEMENTS:
(a) The sale of the Property is an “All U.S. Cash” transaction and shall not be subject to any contingencies, or post due diligence.
(b) The Seller, Abundant Living Ecuador and Auctioneer and their representatives, attorneys, agents, and sub-agents, assume no liability for errors or omissions in this or any other property listing or advertising or promotional/publicity statements and materials. The Seller, Abundant Living Ecuador and Auctioneer and their representatives, attorneys, agents and sub-agents, make no representation or guarantee as to the accuracy of the information herein contained or in any other property listing or advertising or promotional/publicity statements and materials. Neither Auctioneer, Abundant Living Ecuador nor the Seller has any obligation to update this information. Neither Auctioneer, Abundant Living Ecuador nor the Seller, their Agents and Sub-Agents, attorneys, Escrow Agent, Notary, representatives, members, managers or affiliates has any liability whatsoever for any oral or written representations, warranties, or agreements relating to a Property except as is expressly set forth in the Documents.
(c) The Property is being sold in its “AS IS AND WHERE IS” condition and with all faults and defects, with no representations or warranties, express or implied. All Bidders are encouraged to inspect the Property prior to placing any bid at the Online Auction and the Successful Buyer acknowledges that it has had a reasonable opportunity to inspect and examine all aspects of the Property and make inquiries of applicable governing authorities pertaining to such matters in connection with the Property as Buyer has deemed necessary or desirable prior to the Online Auction. Bidders should review all applicable zoning, environmental matters, physical condition, and any and all other governmental statutes, ordinances, rules, laws and regulations and do such other due diligence in advance of execution of this Agreement and all of the accompanying documents in connection with the purchase of the Property. Seek the advice of an attorney.
(d) Competitive bidding is an essential element of an Online Auction sale, and such a sale should be conducted fairly and openly with full and free opportunity for competition among bidders. Any conduct, artifice, agreement, or combination the purpose and effect of which is to stifle fair competition and chill the bidding, is against public policy and will cause the sale to be set aside. Collusion / Bid Rigging is a Federal Felony punishable by imprisonment and fine. Auctioneer will report all illegal conduct to proper legal authorities and cooperate with any prosecution.
(e) The Property may be withdrawn from the Online Auction at any time without notice and is subject to prior sale.
(f) Seller, in its absolute sole discretion, reserves the right to amend, negotiate, modify, or add any terms and conditions to these General Terms and Conditions of Sale, the Documents and to announce such amendments, modifications, or additional terms and conditions at any time, including during this Online Auction.
(g) The highest bid shall be the Successful Bid only if same is acceptable to and accepted by Seller, by and through the Auctioneer via this Online Auction, and as evidenced by Seller and the Successful Buyer each executing the Documents.
(h) Back-up bids will be recorded and received by Seller in Seller’s absolute discretion. Should the Property not close with the Buyer or should the Buyer not comply with any term or condition of any document executed by Buyer in connection with the Property, the Seller will have the option, but not the obligation, to pursue back-up bids.
(i) If you are unsure about anything regarding the Property or the Documents, do not place a bid or participate in this Online Auction. Review of the Documents and all of the terms and conditions as well as a review of the Property before making any bids is strongly recommended and you will be deemed to have done so on execution of these General Terms and Conditions of Sale.
(j) At the close of this Online Auction, upon the acceptance of the Purchaser’s bid is an acknowledgment that such bid is the highest bid, at which time it became a binding agreement to purchase the Property. Whether such bid is accepted is subject to this Agreement, including any announcements/notices made by the Auctioneer. Thereafter, you may not withdraw your bid and you are obligated to execute the Documents.
7. ANNOUNCEMENTS / NOTICES:
All announcements/notices provided to the bidders shall supersede and take precedence over all previously written or printed material and any other oral statements made; provided however that the Auctioneer shall not be authorized to make any representation or warranty (express or implied) with respect to the Property. The Auctioneer has the sole and absolute discretion to make any announcements via this Online Auction, including but not limited any announcements that may amend or alter these Online Auction terms, conditions, or procedures that were previously set forth in written materials. In the event of a dispute over the bidding process, the Auctioneer shall make the sole and final decision and will have the right either to accept or reject the final bid or re-open the bidding.
If the Buyer fails to comply with any of these General Terms and Conditions of Sale, the Seller shall retain the required Escrow Deposit, which shall be considered fully earned and non-refundable, under this Agreement and / or the Documents as liquidated damages and not as a penalty. The Escrow Agent must immediately release the Escrow Deposit upon request of the Seller. Buyer acknowledges and understands that this provision is enforceable and shall not be deemed a penalty because the damages are not readily ascertainable and generally impossible to calculate under the circumstances. Upon Default and notice of same by Seller to Escrow Agent, Buyer understands and agrees to the immediate release of the Escrow Deposit funds to the Seller by Escrow Agent without the requirement of further documentation or consent from Buyer. These remedies are in addition to any other remedies, including specific performance and/or additional money damages that the Seller and/or the Auctioneer may have in equity or at law. The Auctioneer and the Seller also reserve the right to immediately to put the Property up for sale again.
(a) All information was derived from sources believed to be correct, but is not guaranteed. Bidders shall rely entirely on their own information, judgment, and inspection of the Property and records. Neither the Seller, Abundant Living Ecuador nor Auctioneer, it’s Agents and Sub-Agents makes any representation or warranties as to the accuracy or completeness of any information provided. All sizes, dimensions, drawings are approximations only.
(b) Fisher Auction Company is performing auction-marketing services as part of this transaction, and is not performing any real estate services.
10. BUYER’S BROKER PARTICIPATION:
Two Percent (2%) of the Final Bid Price will be paid to a qualified Buyer’s Broker (“Broker”) whose registered Buyer’s offer is accepted by the Seller and is transferred the Property, provided the Broker is not prohibited by law from being paid such commission. To qualify for a commission, the Broker must first register their prospect on the MANDATORY BUYER’S BROKER PARTICIPATION REGISTRATION form. The form must be received by the office of the Auctioneer no later than 5:00 P.M. E.T., Tuesday, May 24, 2016. This registration MUST be sent to Fisher Auction Company, 2112 East Atlantic Boulevard, Pompano Beach, FL 33062. Brokers may fax their broker registration(s) to 954-782-8143 or email to email@example.com. NO LATE REGISTRATIONS WILL BE ACCEPTED. Fees will be paid only after the successful transfer of the Property and after Auctioneer and Abundant Living Ecuador have been paid in full. If a Broker has not met all of these requirements, no fee will be paid to the Broker, even if the Broker’s prospect purchases the Property. No oral registrations will be accepted. Under no circumstances whatsoever will any fee be paid if the Property does not transfer to the Buyer for any reason.
11. FINAL BID PRICE:
The final bid price for the Property shall be determined by competitive bidding at the Online Auction. The Property is being sold to the highest Bidder at or above a bid price of $3,500,000.00 plus the seven percent (7%) Buyer’s Commission / Premium and is subject to the terms and conditions of the Documents.
12. ACKNOWLEDGMENT AND ACCEPTANCE:
The Undersigned Bidder acknowledges receipt of a copy of these General Terms and Conditions of Sale, and having read and understood the provisions set forth therein, accepts same and agrees to be bound thereby. Facsimile or electronic signatures will be treated and considered as original.
Buyer shall defend, indemnify, and hold harmless Auctioneer, Abundant Living Ecuador, its officers, directors, employees, and agents, from and against any and all claims, demands, causes of action, costs, liabilities, losses, damages, and expenses (including reasonable attorneys and expert witness fees and expenses) (collectively, “Claims”), and by whomever brought, to the extent arising out of or in any way related to (i) the sale of, (ii) the performance of the parties’ obligations under this Agreement; (iii) the physical condition and quality (and express or implied representations regarding such condition and quality) of the Property or any portion thereof, (iv) any breach of these General Terms and Conditions of Sale, Documents; (v) any claim arising from the sale of the Property; (vi) any claim arising from Buyer’s participation in the Online Auction; or (vii) any other act, omission or representation by Buyer.
14. GOVERNING LAW /JURISDICTION/VENUE:
This Agreement shall be construed, enforced and governed by the laws of the State of Florida, without regard to choice of law and similar doctrines. The parties consent to jurisdiction in the State of Florida and venue, for any litigation arising out of this Agreement.
15. WAIVER OF JURY TRIAL:
EACH PARTY TO THIS AGREEMENT HEREBY KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVES ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED UPON THIS AGREEMENT OR ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER AGREEMENT CONTEMPLATED AND EXECUTED IN CONNECTION HEREWITH, OR ANY COURSE OF DEALING, COURSE OF CONDUCT, STATEMENTS (WHETHER VERBAL OR WRITTEN) OR ACTIONS OF ANY PARTY HERETO.
16. ATTORNEY’S FEES:
If any action at law or in equity, including an action for declaratory relief, is brought to enforce or interpret any provision or provisions of this Agreement, the prevailing party will be entitled to reasonable attorneys' fees and costs, whether at the trial court and appellate level, in addition to all other costs associated with the action whether or not the action advances to judgment, in addition to any other relief to which that party may be entitled.
17. ENTIRE AGREEMENT:
This Agreement embodies the entire agreement between the parties relative to the subject matter, and there are no oral or written agreements between the parties, or any representations made by either party relative to the subject matter, which are not expressly set forth herein. To the extent that any of the terms or provisions contained herein differs or conflicts with those contained within the Documents, the Documents shall control.
THE BIDDER ACKNOWLEDGES AND AGREES THAT THE BIDDER HAS READ ALL OF THE TERMS AND CONDITIONS AND EACH OF THE TERMS AND CONDITIONS CONTAINED IN THE GOVERNING DOCUMENTS AND AGREES TO BE BOUND TO SAME BY BIDDER PLACING ANY BID ONLINE.